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When the UN General Assembly endorsed the Responsibility to Protect (R2P) in 2005, the members of the United Nations recognized the responsibility of states to protect the basic human and humanitarian rights of the world’s citizens. In fact, R2P articulates concentric circles of responsibility, starting with the individual state’s obligation to ensure the well-being of its own people; nested within the collective responsibility of the community of nations to assist individual states in meeting those obligations; in turn encircled by the responsibility of the United Nations to respond if necessary to ensure the basic rights of civilians, with military means only contemplated as a last resort, and only with the consent of the Security Council.
The Responsibility to Protect is a response to war crimes, genocide, and other crimes against humanity. But R2P is also a response to pattern and practice human rights abuses that include entrenched poverty, widespread hunger and malnutrition, and endemic disease and denials of basic health care — all socio-economic conditions which themselves feed and exacerbate armed conflict. In fact, socio-economic development is a powerful mechanism for guaranteeing the full panoply of human rights, just as the Millennium Development Goals are a means of fulfilling the Responsibility to Protect.
While Responsibility to Protect is often misconstrued as a mandate for military action, it is more intrinsically a call to social action, and the embodiment of the joint and several responsibilities of the community of nations to seek a coordinated global response to life-threatening conditions of armed conflict, repression, and socio-economic misery. While diplomats and public servants debate the legality and prudence of military responses to criminal uses of military force against civilians, we must not neglect the legality, prudence, and urgency of non-military responses to public health and poverty emergencies throughout the world.
The United States has put out a call to like-minded nations to join forces, literally and figuratively, in the degradation and destruction of the criminal militancy of the so-called Islamic State [ISIL or ISIL]. Despite concerns that the 2003-2011 US war in Iraq itself may have led to the inception and flourishing of ISIS, and despite warnings that the training, arming, and assisting of Iraqi forces, Shia militias in Iraq and non-ISIS Sunni militants in Syria may inflame sectarian violence and threaten civilians in both countries, the United States is contemplating another open-ended military intervention in the Levant.
A military intervention against ISIS is not justified by the principles of Responsibility to Protect. Without the authorization of the Security Council or the consent of the Syrian government, military intervention is unlawful in Syria, offending both the UN Charter and the tenets of R2P. In either Syria or Iraq a military intervention, even with the permission of the responsible governments, is unlawful if it is likely to lead to further outrages against civilians. Military action that predictably causes the suffering of civilians disproportionate to any legitimate military objectives violates the principles of humanitarian law and the Geneva Conventions, as well as the UN Charter and R2P.
UNICEF and partners visit the crowded Marché Niger to continue explaining to families how to they can protect themselves from Ebola. UNICEF have visited many markets, churches, mosques, schools, and community centers throughout Conakry and in the Forest region where the outbreak began. CC BY-NC 2.0 via UNICEF Guinea Flickr.
Alongside the criminal militancy of ISIS we face the existential threat of the Ebola virus in West Africa, endangering the people of Guinea, Liberia, Sierra Leone, and their neighbors. Over the past two months, approximately 5000 people have been infected by this hemorrhagic disease, and around 2500 have died, over 150 of them health care workers. At current rates of infection, with new cases doubling every three weeks, the virus could sicken 10,000 by the end of September, 40,000 by mid-November, and 120,000 by the New Year.
Ebola can be contained through basic public health responses: quarantining of the sick, tracing of exposure in families and communities, safe recovery of the bodies of the deceased, regular hand-washing and sanitation, and the all-important rebuilding of trust between effected community members, health care workers, and government officials. But the very countries impacted have fragile health care systems, insufficient hospital beds, and dedicated Red Cross workers, doctors, and nurses nearly besieged by the number of sick people needing care. By funding and supporting more health care and humanitarian relief workers at the international and local levels, more Ebola field hospitals and clinics, and more food, rehydration fluids, and safe blood supplies for transfusions, less new people will fall sick, and more of the infected will be treated and cured. At the same time, the fragile economies and political systems of the effected countries will be strengthened and the threat of regional insecurity will be addressed. Ebola in West Africa is calling out for a coordinated global public health intervention, which will serve our Responsibility to Protect at the local level, while furthering our collective security at the global level.
As the US Congress debates the funding of so-called moderate rebels in Syria in the pursuit of containing the criminal militancy of ISIS, we should turn our national attention to funding Ebola emergency relief in Guinea, Liberia, and Sierra Leone. Such action is consistent with our enlightened self-interest, and required by our humanitarian principles and obligations.
By Carsten Stahn, Jennifer S. Easterday, and Jens Iverson
In our previous post, “Jus post bellum and the ethics of peace,” we introduced the concept of jus post bellum, including its history, functions, and varied definitions. Because jus post bellum can operate simultaneously with related but distinguishable concepts, it is important to keep the goals of related concepts clear. Jus post bellum may serve a particular function in facilitating choice among competing interests in the transition from armed conflict to peace.
Relationship to related concepts
Jus post bellum overlaps with Responsibility to Protect (R2P), Transitional Justice, and the law of peace. It is sometimes even argued that it forms part of these concepts, but there are differences.
The concept of transitional justice emerged in the context of the post-democratic transitions of the 1990s. Traditionally, it has a different focus than jus post bellum. It is geared towards accountability for past violations and the establishment of new political order that would prevent human rights violations from re-occurring. Jus post bellum is not a ‘human rights’ or ‘justice’ project per se. It is geared at peacebuilding more broadly, focusing on the organization of the interplay between actors, norms, and institutions in situations of transitions, and the establishment of sustainable peace.
Jus post bellum is also distinct from Responsibility to Protect. R2P was developed to provide authority for protective duties and response schemes, through a definition of sovereignty as responsibility. Its application is linked to atrocity crimes. This trigger has oriented the concept towards prevention and response to conflict. Ethics of care in the aftermath of conflict have been side-lined in its operation. Jus post bellum is tied to the ending of hostilities. It entails certain due diligence obligations towards intervention, but is mostly focused on the organization of post-conflict peace. It includes negative obligations (i.e. ‘do no harm’ principle) and positive duties. In some cases, conduct may be warranted by R2P (e.g. continued international presence), but sanctioned under jus post bellum, i.e. due to lack of consent (e.g. unlawful occupation).
This ‘toolbox’ logic deserves critical scrutiny. These factors are typically tied to international armed conflicts, rather than dilemmas of internal armed conflicts, or mixed conflicts. More fundamentally, there is an inherent danger that jus post bellum might be used to tell what a ‘just society’ ought to look like.
An alternative way to think about content is to view jus post bellum as a mechanism to facilitate choice among competing interests. The concept provides an incentive to integrate the goal of sustainable peace into decision-making processes requiring a balancing of conflicting rationales. For example, this is relevant to peace arrangements, processes of governance, and redress for victims. How should ‘consent’ used in peace negotiation and peacebuilding efforts, and how inclusive should it be? What factors should be taken into account in the restoration of public authority and democratic rule? How can judicial reform be reconciled with ‘vetting’ of institutions? To what extent is there an adequate equilibrium between protection of fundamental freedoms and socio-economic rights in post-conflict settlements? Is damage repaired in a way that that addresses harm and needs of post-conflict societies?
Jus post bellum may also offer some guidance for specific procedures. One example is the permissibility of derogation from human rights, including their justification and declaration. Existing principles have been applied primarily in the context of human rights obligations of States. In the context of jus post bellum, such principles become relevant in relation to other entities, such as regional organizations, peace operations, or the Security Council.
Another example is ‘sequencing’ and coordination of the temporal application of specific responses. Under a ‘justice after war’ perspective, classical dilemmas of peace v. justice are at forefront of attention. In the context of peacebuilding, sequencing gains broader importance in additional areas, such as the timing of elections or the determination of status issues. Jus post bellum may further determine parameters for ‘exit’ after intervention.
The fundamental problems of minimizing the evils of war and building a robust peace are not new, but they are often treated as new. Too often, contemporary peacebuilding difficulties are treated as essentially unprecedented, when in fact legal history could serve as a valuable aide. A key thesis of jus post bellum is that the rich legal and philosophical traditions that guide the law of armed conflict and the general prohibition on the use of force could also inform the transition from war to peace. Unfortunately, these traditions are too often ignored. Rather than being depreciated or held sacred, those traditions must be refreshed and revisited if they are to be applied meaningfully to contemporary problems. We could extend the dualistic approach of jus ad bellum and jus in bello to a tripartite conception that includes jus post bellum. Such a conception would cover the entire process of entering into armed conflict, fighting, and exiting from armed conflict. This more comprehensive approach would improve our capacity to manage the enduring difficulties inherent in ending war and building peace. Jus post bellum does not offer the promise of a more comprehensive approach on its own, but only in combination with other, related concepts. Together, however, they offer the promise of transitions to peace that are both more just and more secure.
Carsten Stahn, Jennifer S. Easterday, and Jens Iverson are the editors of Jus Post Bellum: Mapping the Normative Foundations. Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies, Universiteit Leiden. Jennifer S. Easterday is a Ph.D Researcher, Faculteit Rechtsgeleerdheid, Instituut voor Publiekrecht, Internationaal Publiekrecht, Universiteit Leiden. Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project and an attorney specializing in public international law, Universiteit Leiden.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
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By Carsten Stahn, Jennifer S. Easterday, and Jens Iverson
Whenever there is armed conflict, international lawyers inevitably discuss the legality of the use of armed force and the conduct of the warring parties. Less common is a comprehensive legal analysis, informed by ethics and policy concerns, of the transition from armed conflict to peace. The restoration of peace after conflict is often sidelined in post-conflict legal analysis. Interventions and peace operations seeking to build a just and sustainable peace frequently suffer from a misalignment between ‘means’ and ‘ends.’ There can be stark discrepancies between the immediate reaction to conflict and post-conflict engagement. It is true that concepts such as ‘humanitarian intervention,’ the ‘Responsibility to Protect,’ (R2P) or the ‘protection of civilians’ (POC) have been used to establish capacity and political will to respond to atrocity situations. But attention shifts quickly to other situations of crisis once a cease-fire or peace agreement has been reached. Some of the underlying premises of engagement, such as ideas of responsibility or the ethics of care, receive limited attention in the aftermath of crisis and during the lengthy process of peacebuilding.
An old idea that seeks to mitigate these dilemmas is the concept of jus post bellum. The basic idea emerged in classical writings (e.g., Alberico Gentili, Francisco Suarez, Immanuel Kant) and has its most traditional and systemic rooting in just war theory. In this context, it is part of a structural ‘framework’ to evaluate the morality of warfare, and in particular the ‘right way to end a war’, including ’post-war-justice’ (Michael Walzer, Brian Orend). Outside just war theory, jus post bellum is largely unexplored. The notion was used sporadically in different contexts over the past decade: peacebuilding and post-conflict reconstruction, transformative occupation, transitional justice, and the law of peace (lex pacificatoria) more generally. But the concept has lacked consistency; there are almost as many conceptions of jus post bellum as scholars, within and across disciplines.
A modern understanding of jus post bellum requires a fresh look at each of the core components of the classical concept, namely the meanings of ‘jus,’ ‘post,’ and ‘bellum.’ In traditional scholarship, jus post bellum has mostly been understood as ‘justice after war’. However, in modern scholarship, the concept of ‘jus’ is debated. Does it mean ‘law,’ ‘justice,’ or a complicated mix of the two? The concept of time and what it means to be ‘post’ conflict, and even that of ‘war’ itself, with blurred distinctions between modern armed conflicts, are now more and more contested.
Functions of jus post bellum
Classical scholarship tied jus post bellum to the vindication of ‘rights’ and ‘duties,’ military victory, and the distinction between ‘victors’ and ‘vanquished’. Today, such conceptions require re-consideration. The experience of the two World Wars has confirmed the Kantian postulate that peace remains fragile if it contains ‘tacitly reserved matter for a future war’ (Perpetual Peace). But in modern conflicts (e.g. Afghanistan, Iraq), the entire concept of ‘victory’ has become open to challenge.
Insights from contemporary conflict research indicate that it is not enough to deal with the formal ending of conflict or the ‘pacification’ of violence. Distinctions between ‘winners’ and ‘losers’ become muddied, making it more difficult to mitigate the risk of a return to violence. Structural approaches to peacebuilding require engagement with social injustices, the ‘violence of peace,’ the establishment of ‘trust’ in norms and institutions and other factors that make a society more ‘resilient’ against conflict.
This makes it necessary to re-think the concept of ‘jus’ beyond its traditional focus on rights and post-war justice (i.e. punishment, responsibility). Past decades have witnessed a rapid rise of the ‘liberal justice model’ and norms and instruments of criminal justice. Core challenges of modern transitions lie therefore not so much in the definition of proper accountability mechanisms, but rather in their coordination with other rationales and priorities (i.e. protection of socio-economic rights) and their perception as elements of ‘just peace.’ This creates space for a modern function of jus post bellum. A modern jus post bellum may pursue different rationales beyond rights vindication or punishment:
(i) it may have a certain preventive function, by requiring actors to look into the consequences of action before, rather than ‘in’ and ‘after’ intervention.
(ii) it may serve as a constraint on violence in armed conflict; and
(iii) it may facilitate a succession to peace, rather than a mere ‘exit’ from conflict.
System, framework, or interpretative device?
The branding of jus post bellum as a modern concept comes with its own problems and politics. The very use of the label creates some risks (e.g. fears of abuse and instrumentalization) and concerns relating to the function and reach of law. But there is some space to ‘think outside the box.’ A modern jus post bellum does not necessarily have to be framed in the structure and form of established concepts, such as jus ad bellum or jus in bello. There is virtue in diversifying the foundations of jus post bellum.
First, Jus post bellum may be said toform a system of norms and principles applicable to transitions from conflict to peace. It provides, in particular, substantive norms and guidance for the organization of post-conflict peace. Some voices have even called for new codification, i.e. a fifth Geneva Convention. But more law and abstract regulation do not necessarily suffice to address tensions arising in the aftermath of conflict. There may a greater need for a better application of the existing law, and its adjustment to context, rather than the articulation of new norms and standards. Some promise may lie in the strengthening of informal mechanisms and flexible principles.
A second and more ‘modest’ conception of jus post bellum is its qualification as a ‘framework.’ This conception emphasizes the functionality of jus post bellum, such as its capacity to serve an instrument to evaluate action (e.g., legitimate ending of conflict) and to establish a public context for debate. Jus post bellum might be construed as an ‘ordering framework,’ or as a tool to coordinate the application of laws, solve conflicts of norms, and balance conflicting interests.
Thirdly, jus post bellum may constitute an interpretative device. The concept might inform a context-specific interpretation of certain normative concepts, such as ‘military necessity’ or the principle of proportionality. It might, for instance introduce a novel end in relation to the conduct of hostilities, namely the objective not to defeat the goal of sustainable peace through the conduct of warfare.
In moral philosophy, the idea of jus post bellum has been associated with the struggle for ‘justice’ and ‘just peace’ for centuries. It has been driven by ambitions to reconcile ideas of justice and punishment with moderation towards the vanquished. These dilemmas continue today. But underlying tensions have received increased attention in the legal arena since the 1990s. Many of the unexplored strengths and new opportunities lie in the broader role of the concept in relation to peacebuilding. It is here where the concept provides new prospects to rethink some of the fundamental elements of the table of contents and institutions of international law, not necessarily in the form of the ‘liberal’ peace idea, but in a novel, pluralistic way.
Carsten Stahn, Jennifer S. Easterday, and Jens Iverson are the editors of Jus Post Bellum: Mapping the Normative Foundations. Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies, Universiteit Leiden. Jennifer S. Easterday is a Ph.D Researcher, Faculteit Rechtsgeleerdheid, Instituut voor Publiekrecht, Internationaal Publiekrecht, Universiteit Leiden. Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project and an attorney specializing in public international law, Universiteit Leiden.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
Subscribe to the OUPblog via email or RSS.
Subscribe to only law articles on the OUPblog via email or RSS.
With the recent end of the NATO mission in Libya, it is an opportune moment to reflect on what took place and what it may mean for global efforts to prevent mass atrocities. Protests demanding an end to Muammar Gaddafi’s 41-year reign began on February 14th and spread across the country. The Libyan government immediately dispatched the army to crush the unrest. In a speech a week later, Gaddafi said he would rather die a martyr than to step down, and called on his supporters to attack and “cleanse Libya house by house” until protestors surrender. Some six months later, Gaddafi’s response to the contagion from the Arab Spring uprisings in Tunisia and Egypt triggered a series of measures being imposed by the UN Security Council, including what became a NATO-sponsored “no-fly” zone. These measures ultimately resulted in Gaddafi’s ousting from power.
The overarching justification for the international intervention was the “responsibility to protect” (RtoP), a still-evolving doctrine which says all states have an obligation to prevent mass atrocities, including genocide, crimes against humanity, war crimes, and ethnic cleansing. In the wake of the Libya action, however, a fierce debate has raged over whether its use in this case will help or hurt this approach from being used to help future victims of mass atrocities.
Since its adoption, the doctrine has most notably applied in the case of Kenya’s post-election violence in 2007-2008 and as justification for lesser action in places such as the Democratic Republic of Congo, Kyrgyzstan, Guinea, and Côte d’Ivoire. Its application in Libya, however, was only the second time it has been explicitly invoked by the Security Council regarding the situation in a specific country.
In response to Gaddafi’s unyielding assaults on civilians in Libya, the Security Council adopted a unanimous resolution which imposed an arms embargo on Libya, targeted financial sanctions and travel bans against Gaddafi, his family members, and senior regime officials, and referred the situation to the International Criminal Court for investigation of those involved in what was referred to as possible crimes against humanity. In the subsequent six weeks, while the international community debated how to proceed, Gaddafi moved relentlessly moved to quell the uprising, reportedly killing thousands of unarmed civilians.
With the urgency created by Gaddafi’s threats, the presence of his troops just outside Benghazi and a critical public statement by the Arab League urging the immediate imposition of a no-fly zone on Libya, the Security Council adopted a new resolution. Among other actions, it authorized UN member states to take “all necessary measures” to protect civilians, created a no-fly zone over Libyan airspace, and urged enforcement of an arms embargo and asset freeze on Libyan government as well as on key officials and their families.
It was these efforts, after substantial success and failure, which ultimately resulted in the overthrow of Gaddafi many months later. It is in that context there have been a range of perspectives regarding the Libyan intervention which will ultimately shape its legacy.
First, there is a concern that in the name of civilian protection, RtoP was used to justify a regime-change agenda, which was never the purpose of the doctrine. Second, there has been a global focus on the “sharp end” of RtoP being deployed in Libya. This broader agenda of atrocity prevention can easily be lost when an exception of military intervention, at one extreme of a possible response, swallows the entire doctrine, which is much more comprehensive. And third, there is a conc
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