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Sunday, August 19, 2012

The Duty to Capture

I have just posted a new draft on ssrn called The Duty to Capture.  The article describes the controversy over when the government is required to attempt capture of a suspected terrorist before resorting to lethal force.  Predictable, I conclude that the question depends on whether human rights law or international humanitarian law applies.  Unpredictably, I argue that the key issue is the concept of necessity and that the term has completely different meaning in these two legal frameworks (human rights vs. armed conflict).

In particular, I spend a long time discussing Francis Lieber's understanding of military necessity, something that I think is often overlooked in contemporary debates about the principle of necessity.  Scholars often quote the definition in article 14 of the Lieber Code, but sometimes ignore articles 15 and 16 which complete the definition.  Only by looking at the entire Lieber Code can one understand what Lieber meant by military necessity.   Legal historian John Witt's forthcoming book on Lieber, entitled Lincoln's Code, is excellent on this point.  Drawing on this historical understanding of Lieber, I conclude that Lieber's version of the principle still operates -- with only little alteration -- in the contemporary law of war. 

Finally, the article closes by suggesting that human rights law applies when the state acts as a sovereign over its own subjects, but that international humanitarian law applies when the state acts as a belligerent.  This distinction is inspired by historian Stephen Neff's excellent book on the Civil War, entitled Justice in Blue and Gray, which is well worth a read.  However, I do not conclude that being a U.S. citizen automatically makes an individual a "subject" under a sovereign, as opposed to a belligerent.  Rather, I conclude that belligerency is always a relationship between groups, and that the relevant question is whether the United States stands in a relationship of belligerency to a non-state organization (i.e. terrorist group) of which the individual is a member.

Here is the full abstract of The Duty to Capture:
The duty to capture stands at the fault line between competing legal regimes that might govern targeted killings. If human rights law and domestic law enforcement procedures govern these killings, the duty to attempt capture prior to lethal force represents a cardinal rule that is systematically violated by these operations. On the other hand, if the Law of War applies then the duty to capture is fundamentally inconsistent with the summary killing already sanctioned by jus in bello. The following Article examines the duty to capture and the divergent approaches that each legal regime takes to this normative requirement, and evaluates internal debates within these regimes over when a duty to capture might apply. At issue in these debates, regardless of the body of law that applies, is the scope and content of the concept of necessity, i.e. when is it truly necessary to target an individual with lethal force. The key question is whether a unified and trans-regime understanding of the concept could promote doctrinal unity across legal regimes. However, this Article concludes that the concept of necessity stubbornly defies such attempts; necessity is a term of art with a distinct history and meaning in each body of law, and unification of these meanings can only come at the cost of betraying the fundamental precepts of one legal regime over the other. Part I begins by examining the scope of international humanitarian law and concludes that the current literature often unduly constrains its application; a new analysis is offered of the classification of armed conflicts, the level of organization required before a non-state actor can be a party to an armed conflict, and the legal geography of armed conflict. Part II examines the concept of necessity and concludes that military necessity (destruction of “life and limb” related to the war aim) is fundamentally incompatible with human rights law and its understanding of necessity as the least-restrictive means. Finally, Part III concludes that the IHL regime, and its permissive notion of military necessity, should apply when the state is acting as a belligerent against other co-equal belligerents, but that human rights law, and its more restrictive notion of necessity, should apply when the state acts as a sovereign over its own subjects.
Since this is a draft, comments, criticisms and suggestions are most welcome, either in the comments section or off-list to me directly.

Friday, August 10, 2012

Guest Post: Contrasting the Content of Transitional Justice and Jus Post Bellum

By Jens Iverson

[Jens Iverson is Researcher in International Law at The Jus Post Bellum Project, Grotius Centre for International Legal Studies, Leiden University, Faculty of Law.]

I would like to thank Prof. Ohlin for the opportunity to post on his fascinating blog, LeiberCode.  This submission responds to his earlier post “When Did TransitionalJustice Become Jus Post Bellum?”  My post is based upon a working paper of mine entitled "Contrasting the Normative and Historical Foundations of Transitional Justice and Jus Post Bellum."

I think a good place to start is with plausible definitions of each term.  I will then discuss the application, goals, past and future of each term.

Defining Transitional Justice

In Transitional Justice Genealogy, Ruti Teitel defines Transitional Justice “as the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.”[1]

The substantive emphasis of Transitional Justice is on justice for human rights violations.  There is no assumption of armed conflict.  The goals of Transitional Justice are fundamentally tied to the aspiration of transition, both towards justice for past violations and towards a cementing of a new political order that will prevent the old order, with its attendant human rights violations, from returning.

Defining Jus Post Bellum

There is, as yet, no authoritative definition for jus post bellum, although many have been proffered.  I think the most useful definition of the term jus post bellum is the body of legal norms that apply to the entire process of the transition from armed conflict to a just and sustainable peace.[2]

Jus post bellum must be understood in the context of its sister terms, jus ad bellum and jus in bello.  None of these terms make sense without armed conflict.  They are concerned with the use of armed force as a matter of primary, central importance.  Collectively, they seek to describe the constraints and rights regarding whether armed force may be used at all, the constraints and rights related to the use of armed force during armed conflict (how it may be used), and the constraints and rights related to the transition from armed conflict to a just and sustainable peace.

The substantive emphasis of jus post bellum is broader than human rights violations.  It also clearly includes, inter alia, violations of the laws of armed conflict, the rights and privileges that spring from the laws of armed conflict, environmental law (including legal access to natural resources and regulating the toxic remnants of war), state responsibility outside of the realm of human rights, recognition of states and governments, laws and norms applicable to peace treaties and peace agreements, peacekeeping, occupation, and post-conflict peace building.

Contrasting the Application of Transitional Justice and Jus Post Bellum

While jus post bellum is substantively broader than Transitional Justice in many respects, jus post bellum is also clearly inapplicable in certain scenarios where Transitional Justice is applicable.  Following a peaceful, non-violent revolution or regime change, the principles of jus post bellum may apply by analogy, but not directly.

Similarly, one can imagine a change in regime in which no significant human rights violations were perpetrated by the previous regime, deposed by armed conflict.  Armed conflicts happen without massive human rights violations.  Additionally, armed conflicts occur without regime change.  In these instances, Transitional Justice would tend not to apply, but jus post bellum would.

Contrasting the Goals of Transitional Justice and Jus Post Bellum

Just as jus post bellum is necessarily connected to an armed conflict, to the degree that jus post bellum has an aspirational character, it must relate in part to questions of war and peace.  One would think that jus post bellum is tied to the contemporary aspirational character of jus ad bellum and jus in bello: to constrain the use of armed force.  A just and sustainable peace is a central aspirational norm of jus post bellum, following a long but not uncontested tradition in international law.

The goals of Transitional Justice, in contrast, are tied to a transition in the human rights regime.  This is not to say that human rights norms are not central to jus post bellum—they are.  As ably demonstrated in such works as Transitional Justice in the Twenty-first Century: Beyond Truth Versus Justice[3] and Selling Justice Short: Why Accountability Matters for Peace[4] the supposed tension between different maximands such as peace and justice or truth and justice is frequently overblown.  Discovering the truth about human rights violations and achieving justice for those violations is widely-recognized as important in building a positive peace.  But there will be responses to human rights violations that are not properly the concern of jus post bellum.

The History and Future of Jus Post Bellum

Transitional Justice has been a subject of increased interest over the last 15 years.  Jus post bellum has also been a subject of increased interest in recent years, although not yet to the same degree as Transitional Justice.  This can be illustrated in the following chart showing usage of each phrase in a large corpus of printed work.[5]

Whether Transitional Justice and jus post bellum continue to grow and endure as useful concepts depends in part on whether these terms are defined with sufficient rigor.  Because both terms deal with complex phenomena and benefit from scholarly interest from disparate fields and traditions, coming closer to a consensus on the definition of these terms is difficult.  

Since Transitional Justice and jus post bellum will often (but not always) apply simultaneously, it is all the more important to attempt this difficult task—to define both terms clearly and develop them in accordance with contemporary realities.  It is important to recognize that multiple maximands will co-exist, rooted in the separate but related traditions, sometimes in tension, but hopefully almost always carried forward with good will.

[1] Ruti Teitel, Transitional Justice Genealogy, 16 Harvard Human Rights J., Spring 2003, p. 69  (internal citations omitted).

[2] See e.g. Immanuel Kant, The Science of Right (1790), 53, Nature and Division of the Right of Nations (“The Right of Nations in relation to the State of War may be divided into: 1. The Right of going to War; 2. Right during War; and 3. Right after War, the object of which is to constrain the nations mutually to pass from this state of war, and to found a common Constitution establishing Perpetual Peace.”) (Emphasis added.)  The definition of a “just and sustainable peace” is itself an extremely interesting research topic, involving what many have termed “positive peace” vs. “negative peace,” and definitions of sustainable peace not in terms of the relations of two states but in terms of the international system as a whole.

[3] Roht-Arriaza, Naomi, and Javier Mariezcurrena (eds), Cambridge University Press, 2006.

[4] Human Rights Watch, 1-56432-508-3, July 2009, available here.

[5] Source:  Google Books Ngram Viewer, dataset 20090715, available here, last visited 24 January 2012.  This represents the usage of the two exact terms “Transitional Justice” and “jus post bellum” over time within millions of printed books.  For an additional representation including terms with varied capitalization, generally amplifying the same usage, see here.  For more on the use of bigram analysis of a large corpus of scanned materials, see Michel, Jean-Baptiste, et al., Quantitative Analysis of Culture Using Millions of Digitized Books, Science, 16 December 2010, available here.

Thursday, August 9, 2012

When Did Transitional Justice Become Jus Post Bellum?

Transitional Justice used to be the darling of the human rights nursery -- the subject of so many books, articles, conferences, and centers that it was accurate to describe it as a burgeoning field in its own right.  It even has its own journal.  All of these outlets are dedicated to the study of transitioning from conflict and atrocity to stable democracy and the rule of law.  A central concern of transitional justice was accountability for prior wrongs, hence the field's intersection with international criminal law.  Although these institutional outlets are still there, and undeniably important, I sense that change is afoot.

In the last two years, a new field of inquiry known as Jus Post Bellum has cropped up.  In addition to a recent monograph by Larry May, the Grotius Centre at Leiden University is sponsoring a multi-year research project on the topic, and several prominent edited volumes have been published by major university presses in the last two years.

Jus Post Bellum is latin for "justice after the war."  In that sense it casts a rather wide net, including questions of international criminal law and punishing perpetrators under domestic and international law, respecting or ignoring amnesties for government officials, as well as issues arising under the law of occupation.  It also overlaps with the question of war termination, or when circumstances have sufficiently changed that the original justification for war has evaporated, thus requiring the cessation of hostilities.

The popularity of Jus Post Bellum as a moniker for discussing these issues makes me think that Transitional Justice has essentially been rebranded as Jus Post Bellum, and taken over by a different set of scholars viewing the issue from a slightly different perspective.  The question is why did this rebranding happen?

First, it seems to me that framing these issues within the structure of Jus Post Bellum sets up an expectation that its arguments ought to mirror jus ad bellum and jus in bello, and to highlight any departure from these arguments as standing in need of special justification.    This is a welcome development because it adds structure across the legal spectrum.  Second, the latinized words Jus Post Bellum echo the Just War Tradition, and therefore bring the discourse into the domain of legal theory, history, and philosophy, whereas Transitional Justice as a field has been dominated more by other subdisciplines.  So at least part of the shift seems to me institutional in flavor.

There are, however, relevant differences between Jus Post Bellum and Transitional Justice that shouldn't be glossed over.  Jus Post Bellum is -- literally -- restricted to justice after a war, whereas Transitional Justice includes transitions away from dictatorships and other forms of tyranny involved with atrocities and human rights abuses, but which fall short of what one could honestly describe as an armed conflict.  Transitional Justice is therefore broader than Jus Post Bellum, which suggests to me that Jus Post Bellum cannot completely replace Transitional Justice, which is here to stay.

But I see a coming conflict between the two fields of inquiry, and I question whether peaceful co-existence between them is likely or possible.