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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.


10 comments:

Kirsten J. Fisher said...

I find this post very interesting. I do see a difference in the ground to which each field lays claim, with jus post bellum addressing atrocities committed during armed conflict in a way that transitional justice need not. Branding post-conflict justice in this way, however, with a link to jus in bello and jus ad bellum (and distinguishing it from transitional justice) does seem an attempt to claim this sub-field of inquiry by law and law-related fields, such as philosophy of law. This rebranding, then, might dilute discussions by separating those who have different perspectives and erecting unaccommodating barriers to effective communication. It might also lead to discussions that promote legal solutions over alternatives to a greater extent than is already the case. I worry that what you call an institutional shift might be dangerous to common goals.

You referred to several prominent edited volumes that have been published by major university presses in the last two years. Could you provide the names of these books?

Jens David Ohlin said...

Interesting points. Here are the recent books:

Larry May, After War Ends: A Philosophical Perspective

Carsten Stahn & Jann Kleffner (eds), Jus Post Bellum: Towards a Law of Transition from Conflict to Peace

Larry May & Andrew Forcehimes (eds), Morality, Jus Post Bellum, and International Law

Mark Kersten said...

I enjoyed and agree with the post. Insightful as ever. I think this development could be taken a step further, however, in order to better address how justice fits onto the phases of a conflict and peace process. As I take it, there are three such phases: pre-negotiation (or ongoing conflict), negotiation, and post-negotiation (post-conflict). The dynamics of each of these are distinct yet poorly understood from a transitional justice perspective which has, as we all know, tended to lump everything into the "peace versus jutice" debate. The promise of 'jus post bellum', as I see it, is to provide a sharper tool to asses the particular and unique dynamics of societies after conflict and how the demand and supply of justice contributes to consolidating peace. It remains a remarkable reality that the fields of transitional justice and conflict resolution rarely talk to each other. (On a side note, this is roughly the synopsis of my PhD, just with a particular focus on ICJ rather than TJ)

Anonymous said...

Hello all,

Yes, Transitional Justice and Jus Post Bellum are related. After TJ sprang up as a popular topic it was only a matter of time before scholars spotted a gap at the end of the just war tradition. We love tradition and coherence stretching back over the ages because it makes us seem more 'scientific'. Nothing wrong with this as long as we remember not to fall in love with the 'coherence' of the system and lose sight of the goals. What goals? I would argue that reaching broad international agreement (as broad as possible) on the proper way to advance towards lasting peace after armed conflict (internal or otherwise). Essentially, we are all concerned with advancing the liberal project and building post war liberal economic and political systems around the world. Facilitating trade, merging our cultures. Justice is a part of this which will battle with 'peace' for the main stage in post conflict society. Three excellent books. There is no danger in our area of scholarship, only an ongoing conversation which will hopefully end in consensus around an agreed set of precepts, maybe an international treaty which can be a tool in the politics of regime change, human rights enforcement and global liberalism.

Sebastian Eskauriatza

Garth Amos said...

Thank you for these information and all the insightful comments. I'm currently on my first year as a law student and every possible material available would be extremely helpful.

Isobel Bishop said...

Maybe others think that its the same because of the word transition. If you research it thoroughly, they are two clearly different terms. One is to clean or redress for the social image and one serves as a clean up after a war.

Brenda C. Thomas said...

I’ve been thinking of it the same way as well. I’m curious on how they’ve decided to finally rebrand it.

Shannon Macdonald said...

In a perspective, these two may look synonymous but its not. These are two different terms that when used incorrectly can lead to major confusion . The government should choose their terms correctly to avoid misinterpretation.

Ella Herbert said...

In dealing with issues like this one make sure that the terms were correctly used. Rest assured, that you are getting the right result and explanation for your case.

Andrei Alexandrescu said...

You need to read every line of the papers twice, three times or even more... Maybe they don't use fine rint anymore as a scam method, but they use double meaning and inflexions to confuse you...

SufluNou