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 to form 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.
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By Marco Roscini
Alarming headlines have recently started to appear in the media (see, for example, the CNN’s “Cyberwar hits Ukraine”). This, however, is sensationalism. What has actually happened so far is limited disruption of mobile communications through Distributed Denial of Service (DDoS) attacks. In addition, certain state-run news websites and social media have been defaced and their content replaced with pro-Russian propaganda. In the months that preceded the current crisis, Ukrainian computer systems were also allegedly targeted by “cyberspies”.
If the above scenario sounds familiar it is because it isn’t the first time that cyber operations have occurred during a military crisis involving the Russian Federation. In 2008, immediately before and after the Russian troops entered the secessionist Georgian province of South Ossetia, several Georgian governmental websites were defaced and their content replaced with anti-Georgian propaganda, while DDoS attacks crippled the Caucasian nation’s ability to disseminate information. Estonia was also the target of severe DDoS attacks in 2007, although in the context of a political, and not military, confrontation with Russia. In neither case has it been convincingly demonstrated that Russia (or any other state) was responsible for the cyber operations. The same can be said of the cyber operations against Ukrainian computer systems and websites, which have also been, at least until now, far less severe than those on Georgia and on Estonia, leading some to suggest that Russia is exercising restraint in the use of its cyber capabilities.
Does international law apply in this scenario?
While the DDoS attacks and the defacement of websites obviously don’t establish on their own an armed conflict between Russia and Ukraine, the fact that they have been conducted in the context of kinetic exchanges of fire and a situation of occupation may potentially lead to the application of the law of armed conflict (jus in bello). Two points are important from this perspective. First, although there have been no extensive armed hostilities between Ukraine and Russia yet, it has been reported that at least one Ukrainian soldier has been killed and another wounded, allegedly by Russian military forces or pro-Russian militias. Unlike in non-international armed conflicts, the jus in bello applies to any shot fired between states, regardless of intensity thresholds. The Commentary to Article 2 common to the 1949 Geneva Conventions on the Protection of the Victims of War clearly states that “[i]t makes no difference how long the conflict lasts, or how much slaughter takes place, or how numerous are the participating forces” (p. 23). Secondly, the fact that Crimea is now under the control of the Russian forces determines a situation of occupation that also falls under the scope of the law of armed conflict (Article 2(2) of the Geneva Conventions).
However, the law of armed conflict would extend to the DDoS attacks and other cyber operations against Ukraine only if these have a “belligerent nexus” with the hostilities and the occupation. Otherwise, they would be mere cyber crimes and would fall under the scope of domestic criminal laws. To have a belligerent nexus, the cyber operations must have been designed to cause a certain threshold of harm to a belligerent (Ukraine) in support of another (Russia) (see Recommendation V(3) of the International Committee of the Red Cross (ICRC)’s Interpretive Guidance on the Notion of Direct Participation in Hostilities). Harm must be either death, injury, or destruction on civilian persons or objects, or military harm, whether physical or not (Recommendation V(1)). Even though they didn’t result in material damage on protected persons and property, then, the threshold of harm would have been crossed if the DDoS attacks and other cyber operations had at least aimed at affecting the Ukrainian government’s ability to communicate with and the operability of its armed forces, so to disrupt Ukraine’s military operations or military capacity. From the information available, we don’t know whether this is the case.
Do the DDoS operations against Ukraine amount to “attacks” under the law of armed conflict? The question is important because the rules on targeting and protecting civilians, including the principles of distinction and proportionality and the duty to take precautions, only apply to “attacks”, defined in Article 49(1) of Protocol I Additional to the Geneva Conventions as “acts of violence against the adversary, whether in offence or in defence”. I have argued elsewhere that a cyber operation is an “attack” in this sense whenever it employs cyber capabilities that produce or are reasonably likely to produce “violent” consequences in the form of loss of life or injury of persons, more than minimal material damage to property, or loss of functionality of infrastructures. From the available information, this doesn’t seem to be the case of the DDoS attacks against the Ukrainian communication systems and, even less, of the defacement operations. Cyber “espionage” also doesn’t normally affect the functionality of the accessed system or amend/delete the data resident therein. It doesn’t have “violent” consequences and is therefore not an “attack”, although it may be an act of hostilities.
To conclude, we can’t establish for sure whether the international law of armed conflict applies to the cyber operations conducted so far against Ukraine because we don’t know whether they were designed to militarily support Russia to the detriment of Ukraine. What we do know is that the operations in questions are not “attacks”, and therefore the rules on targeting don’t apply to them, whether or not they have a belligerent nexus.
Dr. Marco Roscini is Reader in International Law at the University of Westminster. He has written extensively in international security law, including cyber warfare and nuclear non-proliferation law. His most recent book, Cyber Operations and the Use of Force in International Law, has just been published by OUP. He is also the author of ‘Cyber Operations as Nuclear Counterproliferation Measures’, published in the Journal of Conflict and Security Law (2014). Dr. Roscini regularly blogs at Arms Control Law and can be followed on Twitter at @marcoroscini.
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 Sandesh Sivakumaran
The last couple of years have been bad for journalists. I’m not referring to phone-hacking, payments to police, and the like, which have occupied much attention in the United Kingdom these last months. Rather, I’m referring to the number of journalists who have been killed in wartime.
Arab news reporters conduct an on-site interview with 4th Civil Affairs Group Public Affairs Officer Maj. M. Naomi Hawkins in front of the Dr. Talib Al-Janabi Hospital in Fallujah, Iraq, on Dec. 2, 2004. The hospital was one stop during a tour for media to different sites where reconstruction efforts are beginning after the November battle with insurgents. Photo by Cpl. Theresa M. Medina, U.S. Marine Corps.
These last two years alone have seen eminent journalists such as
Marie Colvin and
Tim Hetherington killed while reporting on armed conflicts. Just last month, two journalists were killed while reporting in
Syria. Deaths of journalists during conflicts are not new — Robert Capa and Gerda Taro both died while serving as war photographers. Increasingly, though, we are witnessing the targeting of journalists because they are journalists.
Why are journalists targeted?
Journalists play a critical role in wartime — reporting on events, revealing the horrors of war, investigating abuses by the parties. Their role is a particularly important one given the fog of war. It’s often through media reporting that the public takes notice of a situation and the international community is pushed into action. For these very reasons, journalists are not infrequently viewed as a thorn in the side of the government or the armed group. They may be considered unwanted witnesses to what is going on and targeted for their reporting.
How does the law of armed conflict protect journalists?
The law of armed conflict distinguishes between different types of journalists:
- Journalists who work for media outlets or information services of the armed forces.
- Journalists who accompany the armed forces and are authorized to do so, but who aren’t members of the armed forces, e.g., the embedded reporter.
- Journalists who are undertaking professional activities in areas affected by hostilities but who aren’t accompanying the armed forces, e.g., the broadcaster who is presenting from a conflict zone but who isn’t embedded with the troops.
The first category of journalists constitutes members of the armed forces. Accordingly, they don’t benefit from the protections afforded to civilians and their deaths don’t constitute a violation of the law.
The latter two categories of journalists are civilians. Accordingly, they can’t be attacked, unless and for such time as they take a direct part in hostilities. Reporting on events and investigating abuses committed by the parties can never constitute taking a direct part in hostilities, even if the investigations lead to greater support for one side or another.
Journalists may, however, prove to be casualties of lawful attacks. This is a particular risk for journalists who are embedded with troops. The law allows for the targeting of troops and that targeting may result in bystanders or embedded reporters becoming casualties. In order to judge the legality of such an attack, the law utilizes the principle of proportionality, ie we have to weigh up the expected loss of civilian life, injury to civilians, and damage to civilian objects with the concrete and direct military advantage anticipated. Only where the former is excessive when compared to the latter will the attack be unlawful. Although any loss of life is regrettable, the legal test means that deaths don’t necessarily imply that unlawful acts have been committed.
Particular controversies
One particularly controversial area of the law is the targeting of TV and radio stations. Civilian broadcasting services are protected from attack. They may be legitimate targets, however, if they constitute military objectives. In legal terms, this refers to objects that, “by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”
This would render dual purpose broadcasters that broadcast civilian programmes and which are used for military communications possible targets. Civilian broadcasters that broadcast propaganda are not generally considered military objectives, as propaganda doesn’t satisfy the test for a military objective. Thus, following NATO’s targeting of the RTS studio in Belgrade during the conflict in Kosovo, the Committee established by the Prosecutor of the International Criminal Tribunal for the former Yugoslavia to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia noted that, “if the attack on the RTS was justified by reference to its propaganda purpose alone, its legality might well be questioned by some experts in the field of international humanitarian law” (para. 76). Compare that to Radio Mille Collines, the broadcaster that was inciting genocide in Rwanda and which many people consider a legitimate target. The dividing line is a tricky one to draw.
Sandesh Sivakumaran is Associate Professor and Reader in International Law, University of Nottingham. He is the author of The Law of Non-International Armed Conflict (OUP, 2012), co-editor of International Human Rights Law (OUP, 2010) and recipient of the Journal of International Criminal Justice Giorgio La Pira Prize and the Antonio Cassese Prize. He advises and acts as expert for a range of states, inter-governmental organizations, and non-governmental organizations on issues of international law.
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