Remarks by Michael Semple
Semple, Michael, Proceedings of the Annual Meeting-American Society of International Law
My remarks offer some practitioners' reflections on jus post bellum issues as I encountered them in Afghanistan from 2001 to 2012 in various permutations of my role as a political officer. The broad questions are: How did those involved in the political project of restoring government in Afghanistan after the collapse of the Taliban attempt to use justice to propel the transition from war to peace? To what extent might the jus post bellum framework aid in understanding the justice and peace challenge? And to what extent did the category of terrorism impinge on the attempts to use justice in pursuit of peace? To collate lessons from the Afghan "post-conflict" experience, I selected a set of practical policy issues which practitioners faced, around the interface of justice, conflict, and peace and which seemed to have wide significance. I offer four broad reflections drawn from these practical challenges.
FOUR REFLECTIONS ON THE PURSUIT OF JUSTICE AND PEACE IN A TIME OF TERRORISM
First, many different actors focused on the transitional justice debate--whether and how to pursue it. For over ten years we wondered whether pursuing justice for past crimes or even naming alleged perpetrators would strengthen or threaten the peace. But I eventually concluded that we were agonizing over the wrong issue. If anything has undermined the peace, it has been the failure to account for new crimes and injustices. The real shortcoming in transitional justice was the weak link between old and new impunity.
Second, the distinction between post bellum and in bello was contested and strategically significant. In the early years after 2001, people took a stance on whether Afghanistan was in a state of conflict or post-conflict on the basis of whether they considered the new order legitimate or illegitimate. Key stakeholders embraced a strategy of normalization, asserting that this order represented a decisive break with the past and an end to war. Those opposed to the Bonn Order portrayed the post-2001 situation as a new and destructive phase in the conflict. Not only did they seek to impose war, but they projected the idea that Afghanistan remained in a state of war.
Third, the issues of who were terrorists, which acts constituted terrorism, and whether terrorism was even a major issue were all highly politicized. Stances correlated with actors' positions on the legitimacy of the new order and whether they considered themselves insiders or outsiders. International and national actors ruthlessly instrumentalized all issues around terrorism and tended to use their claims to be combating terrorism as a pretext for pursuing political rivalries (Afghan actors) or sustaining an unpopular military campaign (U.S. actors). By the second half of the decade, Afghan enthusiasm for justifying actions on the basis of counterterrorism had dulled. Only U.S. reaffirmation of international terrorism as the basis of its engagement in the region ensured that terrorism remained a priority issue.
Finally, and perhaps fundamentally, nobody is really in charge in a political process like the one we have witnessed in Afghanistan. This matters in structuring an approach to justice in the erstwhile post-conflict situation. There is no unified vision or strategy for pursuing politics, government, and the law. Although a justice ministry or a presidential office can sign off on a "justice sector strategy," in reality no single actor has competence spanning the full range of issues in post-conflict justice. This creates multiple conflicting strategies and a proliferation of non-strategic action. All six components identified by Professor May as constituting jus post bellum--reconciliation, retribution, rebuilding, restitution, reparations, and proportionality--were on the agenda at some stage in the intervention. However, there was neither a global strategy to link them nor agreement on a conceptual framework to understand them. …