Jus post Bellum as a Key to Sustainable Peace after War

Editors’ note: This post is based on the author’s article-length work, “Jus post bellum: Scope and Assessment of the Applicable Legal Framework” in the International Review of the Red Cross.

International humanitarian law (IHL) primarily addresses the outbreak and conduct of armed conflict between belligerents. My article’s proposed jus post bellum specifically concerns the aftermath of an armed conflict. Both bodies of law deal directly with the consequences of armed conflict. Yet complexity accompanies efforts to determine when IHL ceases to apply and when a jus post bellum phase might commence. Without a clear legislative framework guiding this period, determining the applicable legal regime is a highly delicate and ambiguous undertaking.

This post assesses the interconnection between IHL and a proposed jus post bellum. It compares jus ad bellum and jus in bello to jus post bellum to demonstrate the need for a specific legal framework of principles, rules, or models to rebuild societies after armed conflict.

Jus post bellum

Jus post bellum may be understood as a set of legal norms designed to regulate the transition period from armed conflict to a just and lasting peace. It would constitute a new and emerging branch of international law that encompasses laws, norms, and principles applicable during the transition from war to peace. It clearly corresponds to the transitional period between the end of an armed conflict and peacetime. Thus, jus post bellum must clearly set out the criteria and principles governing the termination of an armed conflict, the post-war period, and the just reconstruction of war-torn communities. However, as this branch of international law has yet to be adopted, it remains a controversial, complex and abstract concept.

This post-conflict period’s regulation is crucial as it determines the end of armed conflict regulation and the start of peacetime law. Moreover, it is an important concept for encompassing the principles or rules for ending hostilities, protecting belligerents (especially those on the defeated side), ensuring the exchange of prisoners of war, holding the parties to the conflict to account, prosecuting criminals, and other measures.

Interconnection

To date, discussions in IHL have primarily revolved around the rights and regulations in the conduct of war, whether international or non-international armed conflict. Unfortunately, regulation of the conclusion of armed conflicts and other related measures has been largely overlooked. Debate has focused primarily on jus ad bellum and jus in bello in conflict and occupation phases thus neglecting the end phase of such conflicts. However, some measures remain neglected including peace agreements, cease-fire agreements, UN Security Council resolutions, lower intensity fighting, return of refugees, official ‘‘political’’ declarations that the war has ended, peace-building and reconstruction efforts such as disarmament, demobilisation and reintegration (DDR), security sector reform, or the start of criminal trials for crimes arising out of the conflict.

Aside from select provisions of the 1907 Hague Regulations and the Geneva Conventions and their Additional Protocols relating to the post-conflict phases of international armed conflicts in the event of belligerent occupation, there is currently no specific regulatory framework covering the post-conflict period.

It is quite clear that a jus post bellum is a logical consequence of jus ad bellum and jus in bello regulations. In other words, jus post bellum would be an offspring of the first two. In this sense, they are inextricably linked and indissociable. Nonetheless, a specific and distinct legal framework, post-war law, is essential for this period. It should focus on the processes for terminating armed conflicts and, once hostilities have ended, restoring lasting peace and establishing strong political, economic, social and cultural institutions that promote social cohesion.

It has become evident that the existing rules of international humanitarian law and human rights law are insufficient to address the consequences of armed conflict. Therefore, it is crucial to establish new regulations for managing these consequences. Legal tools to address the trauma caused by armed conflict, ensuring independent transitional justice, providing compensation for victims, repatriating refugees and internally displaced persons, compensating victims of armed conflict, facilitating the exchange of prisoners of war, protecting the defeated, and balancing the powers of the winners of armed conflict are long overdue.

Objectives

An effective jus post bellum would encompass three primary objectives: controlling the ending of armed conflicts; management of their consequences; and reconstruction of societies affected by war. In the context of armed conflicts ending, this new branch would offer concrete definitions of conflict termination through precise regulations. It would remedy existing IHL rules’ lack clarity and precision in this respect.

A jus post bellum would also facilitate the controlled conclusion of armed conflicts by defining the obligations of warring parties, balancing the powers of the defeated, addressing the rights of those who suffered or perished during the conflict, attending to the rights of prisoners, and determining the rights of the deceased or war dead during armed conflicts.

Finally, a distinct branch of jus post bellum would address rebuilding societies torn apart by armed conflict. Transitional justice is already a widely recognised and frequently employed feature of the aftermath of conflict. It manifests in a variety of forms, influenced by the specific circumstances of each country and the extent of war-induced devastation. The varied approaches to transitional justice stem from the absence of regulatory frameworks during the post-conflict period and the lack of specific laws addressing the aftermath of war. Bringing transitional justice efforts within the ambit of jus post bellum would lend further clarity and integrity to this important subject.

Transitions from Armed Conflict to Peace

The post-conflict period is also crucial to ensuring protection for former combatants, particularly on the losing side. All too frequently, efforts focus on rebuilding communities torn apart by conflict, organizing compensation for victims, repatriating refugees and facilitating the social integration of displaced persons, to the exclusion of remedies for former combatants. Neglect of this important constituency can impede a return to a state of security. Ensuring armistices, cease-fires, peace agreements or other measures relating to disarmament enhance the safety not only of civilians but also former combatants; this is an important objective of an effective jus post bellum. It is an essential aspect of a victor’s responsibility for the long-term well-being of the defeated populations, which has raised concerns about its impact on post-conflict reconstruction and sustainable peace.

Conclusion

There is an urgent need to better define the legal framework applicable during the transition from conflict to peace. To that end, new normative mechanisms to promote peacebuilding and post-conflict reconstruction are required. A distinct legal framework is crucial. Its role will be first the regulation of cease-fires, the aftermath of armed conflicts, and rebuilding a lasting peace. An effective jus post bellum would facilitate the conclusion of armed conflicts, support efforts to re-establish a lasting peace, ensure the impartial administration of post-conflict justice, bring an end to hostilities and kindle hopes for a peaceful society.

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Noël Mfuranzima is lecturer assistant at the University of Burundi and different private universities in Burundi.

Photo credit: U.S. Army, Staff Sgt. Gary Witte