Abstract
While there is an acknowledged overlap of transitional justice and jus post bellum, there has been no real attention to delineating a clear relationship between the two or addressing the significant differences regarding aims, scope and audience. These differences must be acknowledged and a clear relationship between the two fields needs to be demarcated for both intellectual clarity and practical reasons. It seems right to question not only where these fields of inquiry fall in relation to each other but how the two can co-exist and inform each other in a meaningful way that works to the benefit of victims of conflict and mass atrocity. Done correctly, this overlap can be ushered into a coherent research agenda where the two perspectives can be brought together in a careful and concise manner. This article aims to start to address this gap.
Introduction
In the aftermath of conflict and mass atrocity, there are important questions to be answered about how to justly and effectively deal with the past and usher in peace for the future. These questions have been, until recently, generally regarded as the domain of the field of transitional justice (TJ), especially as this field developed over the past few decades from one of a response to a particular type of political transition to a standard international response to mass atrocity (McAuliffe, 2011: 87; Macdonald, 2017: 286). This expansion of TJ, from a normative endeavour originating as a discourse about transitions from authoritarian regimes with legacies of violence and human rights violations to democratic rule (Fisher and Stewart, 2014: 1; Zunino, 2016: 35–39) to a discourse of policy in response to a multitude of situations, including those without clear political transition (Freeman and Djukic, 2008: 214; Iverson, 2013: 417–418), led to challenges to the field, not least of which is its uneasy relationship with the emerging area of philosophical and legal inquiry of jus post bellum.
It is not surprising that we face a potentially confusing overlap of jus post bellum and TJ. 1 In fact, it seems somewhat inevitable given the changing nature of war and political conflict that TJ and the just war tradition would merge at the point where questions about peace and justice arise out of conflict which can at best be regarded as a hybrid of international and civil war. Arising from different origins, the two logics cover very similar terrain, but they do so, apparently awkwardly, with different priorities and somewhat divergent goals. The broad concept of jus post bellum has been with us for some time, but recently (in the first decades of the twenty-first century) it has been gaining renewed intellectual attention (Bellamy, 2008; Ohlin 2012; Iverson, 2014: 84). This ‘arrival’ of jus post bellum has coincided with the point at which TJ has become somewhat all encompassing, a way of thinking about transitions from authoritarian regimes to democracies (or at least less abusive authoritarian regimes), from war to peace, and perhaps from social and political norms that hamper inclusiveness and social harmony to political reconciliation. Now ‘transitional justice operates in strikingly different contexts from those for which it was first designed’, and the conception of the term as well as the toolbox of options available has seemingly expanded (Macdonald, 2017: 287). However, when the overlap between TJ and jus post bellum is acknowledged in the literature, there is no real attention to delineating a clear relationship between the two or addressing the significant differences regarding aims, scope and audience. These differences must be acknowledged and a clear relationship between the two discourses needs to be demarcated for both intellectual clarity and practical reasons. It is important to question not only where these fields of inquiry fall in relation to each other but how the two can co-exist and inform each other in meaningful ways that works to the benefit of victims of mass atrocity. Done correctly, this overlap can be ushered into a coherent research agenda where the two perspectives can be brought together in a careful and concise manner.
This article begins by outlining the two distinct discourses, demonstrating through an exploration of their separate definitions, origins and scopes that there are significant and important differences between the two. A principal difference, it will be shown, is a level of analysis one. Jus post bellum is more state-centric (and state-like-actor-centric), concerned predominately with state-level actors and actions and questions of morality and law that govern them. TJ is more concerned with society and society-level actions and actors, though with an interest in state-level actors in terms of how they impact on society and individuals. As an extension of this, jus post bellum is primarily concerned with what belligerents in war owe, whereas TJ starts from a concern for victims and social healing. This article goes on to argue that there is a particular need for the boundaries to be identified as such, the different aims and foci to be acknowledged, and for there to be a clear understanding of how these differences could affect the recommendations made by those working in and influenced by either discourse. A continued development of jus post bellum in the absence of a well-articulated division and understanding of the relationship of the fields risks a multitude of ills, such as a more limited concern for victims. For example, there is the risk that some of the advances made within the field of TJ get lost to a more focused attention to the rules that govern international relations and humanitarian law or the pursuit of sustainable peace to the detriment of the protection and promotion of individual human rights. What is needed is a coherent way in which scholars in both traditions can acknowledge the distinct aims, scope and audiences of each and can use this knowledge to engage in a richer dialogue about post-atrocity justice.
Two distinct fields?
When jus post bellum recently (re-)emerged (attracting greater attention after a long history of very limited thought) and it seemingly covered much of the same territory as TJ, it seemed right to question what reason there could be for it (Ohlin 2012). It is unlikely that the contemporary emergence of jus post bellum sprang from a specific discontent with the field of TJ, but what could be seen as a challenge to TJ came at a time when the field seemingly became unwieldy and unfocused as it grew to incorporate vastly different contexts and to develop a larger catalogue of options to promote justice and positive peace. In the first decade of the twenty-first century, the TJ field was showing signs of internal discord and was struggling to define and defend itself as a coherent field of study (Bell, 2009; Iverson, 2013: 213; Van der Merwe, 2014; Zunino, 2016: 34). If jus post bellum did not emerge in reaction as a way to contain the investigation, its coincidental arrival as an area of renewed attention may be fortuitous. The re-emergence of jus post bellum might seem to some as either the rebranding of a field or the parcelling out of a segment of the field for greater concentration of attention, but it is more than that. It seems more likely that the contemporary emergence of jus post bellum is an attempt by those within the field to finish the just war tradition that seemed both incomplete without guidelines that govern the end of conflict (Iverson, 2014) and also timely as international law has developed quickly to govern aspects that were once considered the concern of sovereign states. Irrespective of the reasons for this emergence, it is, in fact, an important enterprise, adding a significant perspective to post-atrocity theorizing that should not get lost in ‘the potential for overlap and confusion’ between jus post bellum and TJ (Iverson, 2013: 414). There is an important role for jus post bellum to play in just war theory – finishing the work begun by jus ad bellum (right to war – the legitimate reasons to engage in war) and jus in bello (justice in war – limits to acceptable wartime conduct) – and, I argue, a jus post bellum complement to TJ can provide a more nuanced plan for post-conflict justice.
It is interesting that despite the acknowledgement of the overlap between jus post bellum and TJ, there is relatively little written about the relationship between the two. Jus post bellum literature defends a need to fill what could be regarded as a gap in just war theory and international law, a gap that leaves the moral and legal considerations governing the termination of war insufficiently addressed (Rodin, 2008), but speaks little to how filling of the gap fits within the more developed literature on TJ. In fact, Mark Freeman and Drazan Djukic spend a chapter in an edited volume on jus post bellum describing TJ and analysing ‘the possible ties between the concepts of transitional justice and jus post bellum’ (Freeman and Djukic, 2008: 213), but seemingly refocus the scope of concern from that generally accepted as the focus of TJ, that of human rights and social justice, to a focus on established laws of armed conflict and the possible creation of international laws to govern peace settlements and post-conflict occupations. They conceptualize the relationship between TJ and jus post bellum as uncertain, claiming that since ‘the articulation of many elements of jus post bellum remains incomplete at this stage, it is difficult to assess the degree of harmonization with transitional justice that would be possible or desirable’ (Freeman and Djukic, 2008: 224). This assertion is made based on an understanding of TJ as intrinsically tied to human rights law and of the just war tradition necessarily linked to international humanitarian law. They suggest that within the relationship between TJ and ‘the current law of armed conflict (jus ad bellum/jus in bello) … are legal and conceptual tensions that one can discern’ (Freeman and Djukic, 2008: 221–222). According to these scholars, it is the possible inherent contradictions and tensions between TJ and jus post bellum as an emerging body of international law that might have precipitated the re-emergence of this field of inquiry as a distinct scholarly enterprise. The prospect of these tensions is an interesting point and one that needs further consideration, especially regarding how these tensions ought to be considered, elaborated and resolved. Tensions must be acknowledged and, I would argue, grappling with the prioritizing necessary to relieve tensions might lead to important and rich lines of theorizing.
This section now outlines the boundaries and focus of each discourse. It demonstrates that while the two are fundamentally linked, they are in important ways distinct and that for academic rigour there ought to be a clear understanding of the relationship between what could at times seem to be almost indistinguishable investigations. This section will look at the definition, origin, focus and scope of each field.
Transitional Justice (TJ)
The term ‘transitional justice’ generally is seen to refer to a range of judicial and non-judicial measures that can be implemented in order to serve justice, achieve reconciliation and come to terms with legacies of mass violations of human rights (International Center for Transitional Justice (ICTJ), n.d.). 2 As Padraig McAuliffe (2011) reminds us, however, ‘it has not always been defined so widely or so ambitiously’ (2011: 86). Marcos Zunino (2016) explains in his work on the genealogy of TJ that the definition ‘can be dissected in three parts: a range of mechanisms or processes, the situations where they are implemented, and the goals they serve’ (2016: 31). Arguably, TJ now represents a field of study (and practical application) dedicated to exploring/examining/analysing/evaluating the needs and methods of addressing a particular social history of mass violations of human rights with the particular aim of promoting both backward-looking and forward-looking justice.
As a concept, TJ does not refer to any particular approach to justice (retributive justice, for example); rather, the term refers to a strategy, a way of thinking about justice after atrocity. In a 2011 report, the United Nations (UN) Secretary General claims that ‘Transitional justice initiatives promote accountability, reinforce respect for human rights and are critical to fostering the strong levels of civic trust required to bolster rule of law reform, economic development and democratic governance’ (United Nations, 2011: Section IV, 17). TJ, as a discourse, is ‘a convenient way of describing the search for a just society in the wake of undemocratic, often oppressive and even violent systems’ that offers ‘a deeper, richer and broader vision of justice’, with aims that include addressing the actions of perpetrators and the needs of victims, contributing to a process of transformation from a condition of conflict and violations to one of positive peace and reconciliation (Boraine, 2006: 18).
As mentioned, while at the onset, TJ was the name applied to thinking about justice in contexts of transition, from an authoritarian and repressive past that inflicted human rights abuses to a democratic future (Fisher and Stewart, 2014: 1; Zunino, 2016: 35–39), the concept and discourse of TJ has increasingly been used in situations without clear political transition. 3 As Zunino (2016) tells us, the ‘idea of transition that framed transitional justice has somewhat eroded’ (2016: 31). Freeman and Djukic (2008) point to the contested nature of the term ‘transition’, acknowledging that some reject the notion of transition at all, ‘arguing that states and societies are in constant social and political evolution’ and therefore that the idea of a transitional state as distinct from a non-transitional one has little meaning (2008: 214). Nevertheless, TJ scholars and practitioners generally recognize the term to refer to societies that are transitioning from conflict to peace or from authoritarian rule to democratic rule. It has also been used in a more far-reaching manner to refer perhaps to the transitioning of societal attitudes and reconciliation of segments of the population. That ‘the core problem of transitional justice is how to justly pursue societal transformation’ (Murphy, 2017: 160) does not necessarily imply a clear transition from one form of government to another (whether the latter be democratic or not), but rather a societal transformation from a condition in which mass human rights violations are common-place/accepted/endured and in which victims feel helpless and unvalued to one in which such violations are not tolerated and individuals (including those who had been or likely would be victimized) feel that they are valued. In other words, the concept of transition could include ‘normative transitions with respect to historical injustices’ (Sharp, 2015: 7). At the core of the field of TJ, I would argue, is the question of what justice entails in the aftermath of widespread human rights abuses in furtherance of this transformation to positive peace.
The inclusion of the pursuit of democracy as necessary to the concept of TJ is seemingly another area of debate in defining the term. Regarding the pursuit of TJ in the post-Arab Spring environment, Robert Stewart and I question whether liberal democracy ought to be a necessary aspiration of TJ or whether this itself limits the organic transitions or, I would further suggest, the creative options open to the pursuit of justice; while we make no claims that other forms of government could in fact achieve justice, we question whether such an aspiration is a conceptual requirement of TJ (Fisher and Stewart, 2014: 5–7). Larry May and Elizabeth Edenberg (2013) seem to think it is; they describe the distinction between jus post bellum and TJ as the former focused on achieving peace and the latter focused ‘on making the world a more democratic place as a means toward a just social order’ (May and Edenberg, 2013: 1) and go on to suggest that democratization is a core principle of the field (2013: 9). Colleen Murphy (2017) claims that ‘the term transitional justice is generally taken to refer to formal attempts by postrepressive or postconflict societies to address past wrongdoing in their effort to democratize’ (2017: 1), but she acknowledges that while she ultimately defends the inclusion of democracy as necessary ‘the relationship between democracy and transitional justice is the subject of ongoing debate’ (2017: 31). This debate, coupled with the contexts in which TJ discussions and mechanisms are found, leads me to support the omission of the inclusion of democratization in the general definition of TJ.
Jus post bellum
Although there is a relatively common definition of TJ, despite the debates about the inclusion of democratization or the meaning of ‘transition’, definitions of jus post bellum are arguably few, poor and underdeveloped, and far-reaching (Cryer, 2012: 224; Easterday et al., 2014: 3; Evans, 2009; Rodin, 2008), with ‘a strong divide within and across different disciplines concerning the meaning, use and scope of this concept’ (Stahn, 2008: 231). While TJ is a means to attempting to achieve justice in the aftermath of a history of human rights violations, jus post bellum is similarly concerned with a transition from a condition of violence, a good transition from conflict to peace. Jann Kleffner (2008) positions the focal point of jus post bellum as the question of how to move from armed conflict to a durable peace, either between or within states (2008: 1). He claims it is the field of post-conflict law, a
third branch of law next to the two bodies of jus ad bellum and jus in bello; and a branch of law that does neither fit neatly into the ‘law of war’ nor into the ‘law of peace’, as it supplies norms and principles applicable in the aftermath of armed conflict in periods of transition from conflict to peace, with a view to regulate how one gets from ‘here’ to ‘there’. (Kleffner, 2008: 2)
Carsten Stahn (2006) argues that
the increasing interweaving of the concepts of intervention, armed conflict and peace-making in contemporary practice make it necessary to complement the classical rules of jus ad bellum and jus in bello with a third branch of law, namely rules and principles governing peace-making after conflict. (2006: 921)
And yet, there are some scholars who even deny jus post bellum as a pillar of the just war tradition. Alex Bellamy (2008) argues ‘that it is premature to label jus post bellum a third component of Just War tradition’ (2008: 602). Likewise, Daniel Statman (2015) claims that it
now seems that just war theory is composed of three main parts: the first, jus ad bellum, dealing with the rules for instigating wars; the second, jus in bello, dealing with the rules concerning its conduct; and the third, jus ex bello, dealing with the rules for its termination. These are all distinct from questions regarding the justice of postwar arrangements (jus post bellum). (2015: 720)
This concept of jus ex bello is potentially an additional problem for a definition of jus post bellum. While many seem to see questions of how the cessation of conflict is achieved as part of jus post bellum, some parcel out as distinct the seemingly complementary and overlapping area of moral investigation within the just war tradition of jus ex bello, examining whether and how to end wars, seemingly also to overlap with the more established jus in bello (Blum and Luban, 2015; Moellendorf, 2015; Statman, 2015). Larry May (2012), in a work in which he talks of TJ and jus post bellum as distinct and yet almost the same, contends that jus post bellum ‘concern[s] the moral basis for the end of war’ and must be intimately linked to questions of ‘why we fight’ (2012: 12). He also draws our attention to what he calls ‘David Rodin’s helpful categorization of the way war is brought to an end, called jus ad terminationem belli, or bellum termination for short’ (May, 2012: 4).
As we can see, the study of jus post bellum is in somewhat of a nascent stage. It is because it is that we should start now to understand how it differs from TJ and how the two fields of inquiry can inform each other positively. Generally speaking, it seems that jus post bellum can be defined as a set of (as yet-undefined) legal norms about what should happen at the cessation of an armed conflict – whether internal or international – with the aim of establishing sustainable peace; arguably, jus post bellum aims to answer what moral obligations might govern the sphere of post-war relations (Chayes, 2013), including the justness of conditions that arise from the terms for ending the war, how to deal with violations of jus ad bellum and jus in bello, and where obligations to rebuild destruction caused by the war fall.
Similarities and differences
Jens Iverson (2014) makes an interesting claim in that he writes that
the vision of Transitional Justice practitioners of their field as not a ‘special’ field of law but a ‘holistic’ practice of judicial and non-judicial approaches to a particular circumstance surely provides some guidance and reassurance to those approaching the definitional questions of jus post bellum. (2014: 101)
He maintains ‘that jus post bellum is best viewed primarily as a system of law’ (Iverson, 2014: 101). This division may not at first glance seem as helpful as it is given that TJ is also rooted in legal scholarship, as is evidenced by the multitude of legal scholars who are leading authorities in the field; the field of TJ has such a history of legality that Ruti Teitel (2003), in her genealogy of TJ, describes it (albeit seemingly too narrowly) as ‘characterized by legal responses to confront the wrongdoing of repressive predecessor regimes’ (2003: 69). TJ is wholly multidisciplinary, encompassing ‘manifold disciplines: law, politics, international relations, sociology, development studies, history, philosophy, psychology, anthropology, criminology and area studies’ (Clark and Palmer, 2012: 1), but it has always had a strong representation from legal scholarship. In fact, it has been argued that what is needed in TJ thinking is a ‘letting go’ of legalism,
a more honest acknowledgement of the limitations of legal thinking and practice … a greater willingness to give space to actors other than the state or ‘state-like’ institutions in justice provision … being open to the insights of disciplines and forms of knowledge other than law in better understanding the meaning of justice. (MacEvoy, 2007: 440)
Iverson is right, however, in that jus post bellum’s primary focus on influencing the development of law and ‘whether legal norms are being applied with jus post bellum as the goal’ distinguishes it in an important way (Iverson, 2013: 426). This is also important since international law is a state-centric institution, arguably created and maintained in the interests of (more powerful) states as well as some other international actors, despite its contention that it aims to operate outside of international politics (Fisher, 2018; Neuwen and Werner, 2010).
And so, the attempts at definitions provided for jus post bellum may not at first glance seem conceptually dissimilar in important ways from that of TJ, except for the narrowing scope of a war (and perhaps the even more narrow scope of interstate war), but within the confusion are stark differences that can have real-world consequences. Besides the actual definition is the scope of the term; Easterday et al. (2014) contend that ‘It is still unclear whether jus post bellum is a construct, a strand of research, or a sub-discipline of existing paradigms’ (2014: 5). Jus post bellum may deal with ‘one of the greatest challenges of warfare and armed force: the management and restoration of peace after conflict’ (Nollkaemper and Schrijver, 2008: v), but it seemingly remains, despite being part of a long tradition, a concept poorly defined or demarcated beyond these most vague and indistinct statements, both in relation to TJ and simply as a coherent field of inquiry. There are, however, distinctions that should be drawn between the two logics based on their origins and development, distinctions that should have significant effects on intellectual discussions and policies pursued in post-conflict contexts. The current lack of clarity regarding jus post bellum offers an opportunity for just war scholars to firmly embrace the distinct boundaries of the emerging logic of jus post bellum as one that is forward-looking and aims to influence the creation of international law, focused on sustainable peace and the responsibilities of belligerents of war in the pursuit of such peace in the aftermath of the conflict. This is a focus distinct from that of TJ, one which will at times conflict with the goals of TJ – goals of positive peace, promotion of human rights and coming to terms with the past (and pursuing meaningful creativity to do so) – but each focus is important and a richer discussion of a good transition from conflict will be possible when both foci and their conflicts are acknowledged and addressed.
These distinctions are the logical development of the different foundations of jus post bellum (with its historic just war tradition foundation) and TJ, which has its origins in human rights activism and comparative political science. Both have old roots and a contemporary trajectory but TJ grew wildly since it was developed as a coherent area of inquiry in the 1980s (Arthur, 2009; McAuliffe, 2011; Zunino, 2016), from a (fairly state-centric) inquiry of activists and scholars ‘to discuss how successor governments should deal with the crimes of their predecessors’ (Arthur, 2009: 322), transcending ‘its origins in human rights, law and political science to incorporate significant input from fields as diverse as anthropology, the arts, constitution-making, development studies, economics, education, epigraphy, gender studies, healthcare, history, psychology, sociology and theology, at a conservative estimate’ (McAuliffe, 2011: 90). Moving away from attempting to ‘strike the right short-term balance between accountability for past human rights abuses, and the aspiration for a peaceful transition from authoritarianism to liberal democracy’, TJ underwent intellectual, contextual and application expansion (Macdonald, 2017: 287).
The origins of jus post bellum are both more ancient and more recent. Jus post bellum can trace its origins back as far as ancient Egypt (Cox, 2017). As mentioned, jus post bellum originated out of a concern for the rules (normative and legal) that govern how parties to conflict enter and conduct themselves in conflict and what rules should exist to govern how conflicts should end and what obligations the parties to conflict have. In international criminal law and philosophy of law circles, much has been written about the justice of going to war and the justness of conduct during war, but much less has been written about what should happen after war ends (Bass, 2004; Dimeglio, 2005: 117; Freeman and Djukic, 2008; McCready, 2009: 66). To round out the just war tradition, jus post bellum can influence the development of international laws that speak to justice after conflict, as Brian Orend (2007) argues it must (2007: 572). Arguably, it should also tie jus ad bellum to post-war justice. May (2012) argues that if ‘the most important, if not the only, just basis for initiating war is creating a situation of just and lasting peace out of a situation where there is none at the moment, or where it is seriously threatened’, then questions of jus post bellum must be considered in relation to jus ad bellum (2012: 12). The purpose of jus post bellum, then, would be the development of guidelines or laws that regulate the construction of peace treaties, protecting the rights of the vanquished party, constraining what the victors can demand and determining their responsibilities. This necessary connection to international law is echoed throughout the literature on jus post bellum (e.g. Bhuta, 2010; Freeman and Djukic, 2008). The different points of original concern for TJ and jus post bellum lead to quite different scopes and foci of the discourses, as well as different audiences and likely recommendations of possible solutions to post-atrocity problems.
Similarities include the general claim of the pursuit of justice in the aftermath of violence as well as the toolboxes at their disposal, that is the mechanisms and types of interventions they may promote to satisfy the pursuit of justice. TJ has established a set list of mechanisms that can be used in post-atrocity contexts to address a legacy of mass human rights in a way it deems just and in pursuit of social justice, an issue to which I will return later in this article. This list includes criminal trials, vetting and lustration, reparations, truth commissions, various forms of institutional reform, memorialization, as well as the inclusion of ‘traditional mechanisms of justice’. The ICTJ tells us that traditionally a great deal of emphasis has been put on four types of ‘approaches’: criminal prosecutions for at least the most responsible for the most serious crimes, truth-seeking processes, reparations for violations, and reform of laws and institutions (ICTJ, n.d.). In theory, much of the same toolbox could be available to jus post bellum, as victors may choose to use criminal trials to make a statement about the leaders of the vanquished, 4 or vet the leadership or influence the reform of laws to usher in a more peaceful leadership, for examples. The list of differences, however, is more expansive and telling.
One obvious difference is that for TJ, the atrocity after which justice must be attained is the widespread violation of human rights that transpired as part of either armed conflict or authoritarian rule – the focus is the aftermath of atrocity (with political transition being the traditional focus but from which, as examined, the field has expanded), whereas for jus post bellum, the focus is only on armed conflict and the subsequent lack of conflict (and the conflict need not have had any victims) (Iverson, 2014: 88). With a focus on laws that would govern the transition from armed conflict to a durable peace, the scope of jus post bellum is distinct from that of TJ which is concerned with transitions beyond war and peace, and with human rights. Another difference may be in the understanding of peace, with those working in the field of TJ more concerned with the attainment of positive peace, that is building a just society which includes the restoration of relationships and the creation of social systems that serve the needs of the whole population (Mani, 2005; May and Edenberg, 2013: 1; Nagy, 2008), 5 while those working in the just war tradition aim for a sustainable and just peace, that the victors do not take advantage of their position of power over the vanquished (Iverson, 2014: 101; May and Edenberg, 2013: 1; Orend, 2007). Both are important conceptions of justice (with some overlap as some jus post bellum positions demand the installing of good governance mechanisms), but they are not the same nor do they ask the same questions or require or prioritize the same mechanisms.
Also seemingly different are the answers to the question, to whom does the logic aim to speak? TJ has from the beginning been concerned with conflicts and violations internal to a state. Jus post bellum, on the contrary, is part of a programme of inquiry which has traditionally been concerned with interstate war, and therefore, when questions of justice arose, the concern was for fairness in peace settlements and limits to the punishment of the vanquished (Stahn, 2007: 314). As Orend (2007) claims, ‘historically the first figure to offer us truly deep, systematic, and forward looking reflections on justice after war was the German Enlightenment philosopher Immanuel Kant (1724–1804)’ who argued that might did not make right and that victory in war does not, in and of itself, allow the victor to impose rules and obligations on the vanquished (2007: 574). While the modern world is now more impacted by intra-state wars than interstate wars, jus post bellum must adapt, but its history, path and traditional logics lead it to peace building that engages belligerents but not necessarily local community members (Chandler, 2013). The audience of jus post bellum arguments is generally seen to be the high-level agents of conflict (and primarily the victors at that). TJ, with its intra-state violations and activist roots, has always, at least in aim, engaged with local populations. Both, of course, also call upon and influence the wider international community with the creation of norms and international laws.
Both have a decidedly legal starting point, but while TJ has influenced international norms and therefore international laws almost as a consequence of focusing on the needs of local populations, the ultimate aim and goal of jus post bellum is to influence international law. The first two pillars of the just war tradition aim to justify why and how wars are fought by looking to ethical considerations and historical bodies of rules or agreements that have applied in various wars across the ages (Moseley, 2009; Orend, 2005). As part of just war inquiry, despite the fact that it, unlike the other two pillars of the just war tradition, ‘remained at the periphery of legal scholarship’ (Stahn, 2007: 312), the goal of jus post bellum is to aid in the development of international laws that guide just transitions from war to peace. TJ has focused mainly on how abuses of human rights were and should be addressed during political transition, with a focus on accountability, and therefore has been dominated by law and legal scholars (Arthur, 2009: 324; Teitel, 2003), but it has had a decidedly more local focus.
Another important question to which these two discourses could seemingly have different answers is to whom the obligation to provide post-conflict justice applies. It seems that those who write on jus post bellum are often interested solely in ‘the justice of a belligerent power’s postwar conduct’ (Bass, 2004: 386) and the obligations of the victor (Cox, 2016; McCready, 2009; Verdirame, 2013). There is a lot which can fit within this purview, including ‘surrender, official apologies for aggression, possible compensation and sanctions, institutional reconstruction, jump-starting the economy, dealing with insurgents’ (Orend, 2007: 574). A just war settlement could include punishment of individuals responsible for aggression and human rights violations, compensation to victims for losses or harms incurred during the war, economic reconstruction for the vanquished population, ‘and local reforms of social, political, and military institutions in the aggressor society, or more controversially, wholesale social and political reconstruction’ (Walker, 2012: 11). Nevertheless, in such a case, the scope of the field of inquiry is much narrower still than that of TJ if it is limited by an interest in what actions and responsibilities can be attributed to former active participants of the conflict.
From this examination, it should be clear that there are decidedly different origins and logical audiences and foci for jus post bellum and TJ that lead to reasonable different positions in discussions of post-conflict justice. The most impactful are likely the fact that jus post bellum is more state-centric (it is therefore most concerned with wrongdoing or the justness of state actors or entities that are state-like) and that its audience is also the state or state-like belligerents to the war, and that its primary focus is influencing the development of law and legal norms.
The need for a clear relationship to unleash the benefits of two-way influence
There may be many areas where jus post bellum and TJ literatures can explore their difference for fruitful discussions. Here I will discuss a few areas I see as potentially valuable, including how to define peace and what is required when negative peace and justice conflict, and to whom responsibility falls and why. A new perspective and focus on the relationship might lead to important advancements, not least of which might be more creative solutions to tricky post-conflict problems.
Iverson (2014) argues that TJ is generally committed to the fight against impunity and ‘seeks primarily to respond to the real-world gap in the universality of human rights as applied – a universality that is fundamental to the project of human rights’ (2014: 83), and that jus post bellum speaks to international law and seeks ‘simply to integrate the law applicable to a particular phenomenon, the transition to a sustainable peace, into a more coherent whole’ (2014: 84). As such, it seems that there is an important contribution that the TJ literature can make to jus post bellum, and that is in helping to determine ‘whether the quality of that peace is sufficiently just that the work of jus post bellum is complete’ (Iverson, 2013: 427). As the preceding quote demonstrates, Iverson touches upon this contribution that TJ literature can make, but this point, I believe, deserves to be underscored. The difference between sustainable peace and positive peace is stark and this fact demands greater attention. It may not be that we should expect jus post bellum principles to aim to promote positive peace, but such conversations might help jus post bellum guidelines avoid, for example, making demands of victimized populations that are in the interest of promoting a peace that could be maintained without truly addressing grievances.
It would seem that in many respects, TJ is required to ask broader questions of a wider group of stakeholders. This is true because while jus post bellum is concerned with achieving sustainable peace and just peace in the sense that there are no blatant abuses of the vanquished and also that belligerents meet their moral obligations, TJ takes a much deeper understanding of the quality of peace necessary to reach its goals of social reconstruction and social justice, demanding more and broader community ownership.
As such, as mentioned, a significant distinction between the two literatures may be in the actors to whom (future-regarding) responsibility can be attributed. This distinction, acknowledged, can be more positive than not. Who has the responsibility towards those negatively affected by war and atrocity to help build sustainable and/or positive peace: the international community and stakeholders generally, working together, or simply those actors who contributed to the harm? While TJ broadly questions many possibilities, this article shows that jus post bellum applies to the belligerents of war. Acknowledging limitations of a jus post bellum that has ‘recently been expanded to mean that the victor in the war is now responsible for the long-term well-being of the people it has defeated’ (Cox, 2016: 28), or responsible for their well-being in the immediate aftermath of conflict and in their search for justice, a jus post bellum that has come to represent minimally restrictions on terms of peace that can be imposed on a vanquished enemy and maximally additional responsibilities head by the victors (Bellamy, 2008), could, if done properly, lead to recognition that different global actors have differing responsibilities due to variant philosophical underpinnings, therefore offering opportunities for richer discussion.
For example, international criminal law, often regarded as the principal instrument of post-atrocity justice, is often best regarded as the purview of international multilateral institutions (Fisher, 2012: 110–119), and as Seth Lazar (2012) writes, ‘just interveners, who have already taken on such a heavy burden, are entitled to expect the international community to contribute to reconstruction after they have made the first and vital steps’. It would seem, then, that a limited focus of jus post bellum on particular actors, if it exists, limits discussions regarding possible approaches to justice, and not to the benefit of the victims of human rights abuses. Justice after atrocity often requires a broad array of actors and creativity if it is to be done well, often this means by actors other than war weary and self-interested former-belligerents. Recognizing a distinct and complementary grounding for a responsibility held by more than the belligerents could mitigate concerns regarding to whom post-atrocity responsibilities fall.
One thing that seems certain is that we must avoid an unwarranted focus on the legality of actions and reactions, with limited attention to questions of morality. Despite the fact that the just war tradition is rooted in moral philosophy, it has been criticized for abandoning moral critical thinking. The criticism Nicholas Rengger (2005) levelled at the evolution of the just war tradition and international law could likely also be levelled at its newest addition, if jus post bellum legal theorists are not careful. He argues that problems arise in just war theorizing when our thinking about justice, war and the law conflate; he tells us that it is right that ‘the framework for moral thinking about war overlaps with, but is not reducible to, legal thinking about war’ but that too often it is reduced to question of international and humanitarian law (Rengger, 2005: 149).
And even if we agree with Orend that as jus post bellum is viewed through a just war perspective rather than an international law perspective, and therefore through the lens of ‘a coherent set of concepts and values designed to enable systematic and principled moral judgment in wartime’ (Orend, 2007: 571), it seems reasonable that this concern has a greater potential of fruition when the discourse is populated by legal scholars to the exclusion of local civil society and human rights activists. This concern seems even more likely when we consider Freeman and Djukic’s warning of the possible inherent contradictions and tensions between TJ and jus post bellum as an emerging body of international law; international humanitarian law, while it overlaps in many ways with international human rights law, does not originate out of a principal concern for individual human beings. Traditional just war theory considers the morality of actions sometimes without sensitivity to how they might affect citizens/neighbours/victims, whether they appropriately promote or redress violations of human rights and other individual-centric interests. Issues
outside of human rights violations, such as violations of the laws of armed conflict, the rights and privileges that spring from the laws of armed conflict, state responsibility outside of the realm of human rights, recognition of states and governments, laws and norms applicable to peace treaties and peace agreements, occupation, and particularly post-conflict peace building … are the fundamental concern of jus post bellum. (Iverson, 2014: 88)
In important ways, morality and social justice may be pushed to the periphery in jus post bellum discussions. While ‘moral and social reconstruction is central to transitional justice, the kind of social, educational, political, and cultural reconstruction envisioned in transitional contexts is a disputed issue in jus post bellum theory’ (Walker, 2012: 12). Discussions admitting contributions from both discourses, while acknowledging these differences, might best be able to save concern for individual humans.
Another benefit of truly demarcating the boundaries of these two literatures might be in a richer discussion about the temporal boundaries of each, and where they ought to lie. In the tradition of just war theory, there ought to be a strict separation of jus ad bellum, in bello and post bellum. TJ is sometimes criticized for its breadth and blurry boundaries, including criticisms for interventions preceding transition, when the conflict is ongoing. Current scholarship has questioned the practical and ethical value of legal (and other) ‘transitional justice’ interventions in ongoing conflict (Kersten, 2016). Some might argue that TJ conflates different phases of conflict (conflict, termination of conflict and post-conflict), therefore muddying the investigation. However, it would seem likely that no matter the intention of focusing on post-conflict justice for the consolidation of peace, the discourse should inevitably (when possible) involve the pre–post phases of conflict and termination. It is not in the best interest of post-conflict justice or victims to wait until negative peace is established before questions of justice are attended for the promotion of positive peace. Therefore, both jus post bellum and TJ are (or should be) concerned with more than simply the phase of transition itself. It would seem that both jus post bellum and TJ are grappling with temporal boundaries, but it might be right that the temporal boundaries are much broader in our current expansive understanding of TJ than in either the original conception of TJ or jus post bellum. Progressive and expansive TJ may be the appropriate means of harnessing creativity again – to the benefit of establishing genuine positive peace that improves the lives of real people. However, with this expansive and progressive creativity comes the blurry boundaries and unwieldiness, including in terms of temporal boundaries. Perhaps a strict concern for temporal divisions within just war theory would be a valuable contribution when the two literatures talk to each other. This is not a recommendation, but it seems to this author that this could be one of the ways in which the two literatures could distinguish and also benefit each other.
Another possible benefit of acknowledging differences could be a promotion of a return to creativity that is warranted in post-atrocity justice and peace building (Chandler, 2013; Fisher and Stewart, 2014). While it is true that TJ shows an abundance of creativity as a field, it has, over time, become stale. Although TJ is not meant to refer to any particular approach to justice, it now generally refers to a set list of mechanisms that can be used in post-atrocity contexts; it has evolved into a catalogue of mechanisms from which transitional societies (or those who implement transitional policy) can choose. TJ, rather than a field of inquiry that inspires a deeper, richer, broader vision of justice that seeks to evaluate unique conditions and determine how best to meet the needs of the victim population and generate an environment to support positive peace, is instead now recognized as a set list of mechanisms such as criminal prosecutions, truth commissions, victim reparations programmes and institutional reform strategies (Fisher and Stewart, 2014; Freeman and Djukic, 2008: 216), what Margaret Urban Walker (2012) calls the transitional justice menu (2012: 12). Although ‘accounts of transitional justice generally take seriously the idea that transitional justice is not reducible to forms of justice with which we are already familiar’ (Murphy, 2017: 24) and ‘advocates of transitional justice generally view justice claims in a context-sensitive manner’ (2017: 21), in practice, creativity has become limited.
Calls for TJ to reembrace its more creative approach to pursuing justice beyond mechanisms familiar and tried have been made (Fisher and Stewart, 2014; Van der Merwe, 2014: 234–235), and the belief that TJ is context-sensitive and may require unique means has not been lost even by those limited in practice by the ‘transitional justice menu’. TJ may need a push to return to its origins as a strategy for thinking about justice after atrocity with the understanding that unique contexts might require unique approaches. The fact that TJ is increasingly characterized by its geographical and disciplinary breadth points to its sustained creative potential. Perhaps by acknowledging that TJ has more opportunity for out-of-the-box thinking than jus post bellum, given it is less hampered by restrictions of thinking in terms of influencing laws, a heightened focus on this difference could usher TJ back to renewed creativity. This could be a positive outcome of discussions between theorists and scholars working from the different perspectives. As a counterbalance for jus post bellum principles, TJ may find it valuable to return to its roots of examining particular abuses and contextual challenges to devise creative solutions to securing justice in the aftermath of human rights abuses: to refocus on its expressed goal of creativity.
Acknowledging this distinction may also influence jus post bellum in a positive way. Jus post bellum might benefit from exploring flexibility in legal norms and the encouragement of creative solutions, and in that jus post bellum is a line of inquiry primarily aimed at guiding the development of international law, it may be through the needed influence of TJ that it avoids further limiting such creativity in post-atrocity contexts. The relationship between the two fields could, therefore, inspire new creativity and limit the obstacles to creativity that could arise within international law.
A conflicted field of inquiry mired in confusion between the aims and options of TJ and jus post bellum seem to introduce some risks of endangering the enterprise of post-atrocity justice and therefore the people it is most meant to assist, whereas a clear demarcation of the fields of inquiry may offer real benefits. It is true that jus post bellum is not currently a field of praxis on the ground in the way that TJ is. This may not be the case for long. It has only been in recent years that jus post bellum has regained the attention of just war theorists. The literature is growing, and so, likely, will its influence on the world. At that time, confusion between TJ and jus post bellum priorities and boundaries would seem to threaten to dilute discussions by not acknowledging the different perspectives that underpin distinct foci and erecting unaccommodating barriers to effective communication. Discussions that acknowledge the different foci of TJ and jus post bellum may bear fruit in a variety of ways, including on the issue of creativity and regarding to whom responsibilities fall, recognizing that the justification for the responsibility of belligerent actors differs considerably from that justifying the responsibility of other actors, thereby offering a foundation from which to promote the responsibility for working towards post-conflict justice to fall to multiple actors.
TJ and jus post bellum attempt to foster peace in the aftermath of conflict and/or mass atrocity, and are often applicable in the same contexts. The two discourses diverge in important ways; however, there is a real risk of obfuscating genuine debates of what justice means in these contexts if the current leaning of talking of each without clear delineation of boundaries and the relationship between jus post bellum and TJ continues. Acknowledging these differences, however, might offer new insights to the benefit of the beneficiaries of post-atrocity justice – the victim populations of conflict and widespread and systemic human rights abuses.
Footnotes
Acknowledgements
The author would like to thank Marcos Zunino, Kiran Banerjee, Kalowatie Deonandan, Robert Stewart and the two anonymous reviewers of this journal for their comments on previous drafts of this article.