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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.