'Jus ad bellum', 'jus in bello' ... 'jus post bellum'? - Rethinking the conception of the law of armed force

European Journal of International Law

Volumn 17, Issue 5, 2006, Pages 921-943

  Stahn, Carsten ^a  

^a NONE

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EID: 33847390857     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chl037     Document Type: Article

References (170)

1. See House of Lords, Lord MacNaghten, Janson v Driefontein Consolidated Mines Ltd. [1902] AC 484.
2. Lassa Oppenheim's classical treatise on international law divided the entirety of the rules of international law into the categories of peace and war. See H. Lauterpacht (ed.), Oppenheim's International Law (6th edn., 1947), i (Peace) and ii ('War and Neutrality').
3. See, inter alia, the project of the ILC on the effects of armed conflict on the law of treaties. For a survey of the various reports of the Commission on this topic, see ILC, Effects of armed conflicts on treaties, available at http://untreaty.un.org/ilc/guide/1_10.htm.
4. See S. Neff, War and the Law of Nations (2005), at 315-356.
5. A good example is the parallel applicability of human rights law and international humanitarian law. See ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. Advisory Opinion of 9 July 2004 [2004] ICJ Rep 136, para. 106.
6. Multi-dimensional peacekeeping operations and modern interventions have gradually led to a departure from the notion of peace in the mere absence of violence ('negative peace'). This is, inter alia, reflected in the concept of collective 'responsibility to protect', which encompasses three dimensions of communitarian conflict management in cases of large-scale atrocities: Preventive action, responsive action, and post-conflict engagement ('responsibility to prevent', 'responsibility to react', and 'responsibility to rebuild'). See paras. 138 and 139 of GA Res. 60/1 (2005 World Summit Outcome) of 24 Oct. 2005.
7. See among others Ratner, 'Jus ad Bellum and Jus in Bello after September 11', 96 AJIL (2002) 905
8. Lietzau, 'Old Laws, New Wars: Jus ad Bellum in an Age of Terrorism', 8 Max Planck Yearbk UN L (2005) 383.
9. See generally on this distinction Scelles, 'Jus in Bello, Jus ad Bellum', 6 Nederlands Tijdschrift voor Internationaal Recht (1959) 292
10. Kolb, 'Origins of the Twin Terms Jus ad Bellum/Jus in Bello', 320 Int'l Rev of the Red Cross (1997) 553.
11. On the interplay see Canor. 'When Jus ad Bellum Meets Jus in Bello: The Occupier's Right of Self-defence Against Terrorism Stemming from Occupied Territories', 19 Leiden J Int'l L (2006) 129.
12. To date, scholarship on the concept of 'Jus post bellum' has been rare. Where literature exists, it has mostly approached the topic from the angle of just war theory. See B. Orend, War and International Justice, A Kantian Perspective (2000), 57
13. ibid., 'Jus Post Bellum', 31 J Social Philosophy (2000) 117
14. ibid., The Morality of War (2006), at 160-190
15. Bass, 'Jus Post Bellum', 32 Philosophy & Public Affairs (2004) 384
16. and DiMeglio, 'The Evolution of the Just War Tradition: Defining Jus Post Bellum', 186 Military L Rev (2005) 116.
17. The existing contributions on the subject differ considerably in content. For different treatments see Iasiello, 'Jus Post Bellum. The Moral Responsibilities of Victors in War', 57 Naval War College Rev (2004) 33
18. Boon, 'Legislative Reform in Post-conflict Zones: Jus Post Bellum and the Contemporary Occupant's Law-Making Powers', 50 McGill LJ (2005) 285
19. and the study by C. Schaller, Peacebuilding und ius post bellum, Völkerrechtliche Rahmenbedingungen der Friedenskonsolidierung nach militärischen Interventionen (2006), available at http://www.swp-berlin.org/de/common/ get_document.php?id=1663#search=%22Schaller%20Jus%20Post%20Bellum%22.
20. For a short analysis of jus post bellum as a legal concept see C. Stahn, Jus Ad Bellum, Jus in Bello, Jus Post Bellum: Towards a Tripartite Conception of the Law of Armed Force, ESIL Inaugural Conference Paper, available at www.esil-sedi.org/english/pdf/Stahn2.PDF.
21. War and peace were diametrically opposed concepts. It was assumed that a 'state of war' excluded the applicability of the law of peace. For an insightful discussion see Neff, supra note 3, at 177-196.
22. See Wright, 'The Outlawry of War and the Law of War', 47 AJIL (1953) 356, at 365
23. H. Lauterpacht, 'The Limits of the Operation of the Law of War', 30 British Yearbk Int'l L (1953) 206, at 240.
24. Some authors began to advocate the existence of a grey zone between war and peace in the 1940s. See Schwarzenberger, 'Jus Pacis, Ac belli?', 37 AJIL (1943) 460, at 470
25. Jessup, 'Should International Law Recognize an Intermediate Status Between War and Peace?', 48 AJIL (1954) 98.
26. See Human Security Report, The Changing Face of Global Violence (2005), at 18 ('[i])n the last decade, 95% of armed conflicts have taken place within states, not between them').
27. Principles of the traditional 'law of peace' are increasingly applied to societies, which are not in a clear situation of war or peace, but are involved in a process of transition from conflict to peace (e.g. the gradual collapse of state structure).
28. There appears to be a growing awareness that to end hostilities requires not only measures to terminate conflict (conflict termination), but active steps to build peace (peacemaking). This type of engagement has facilitated the application of norms of international law to situations of transition from conflict to peace, such as standards for transitional justice, elections, and democratization as well as property claims mechanisms, compensation regimes, and individual human rights procedures in (post-)conflict societies. Some of the rules and procedures applicable in situations from conflict to peace require deviations from commonly established norms in order to accommodate the specific tensions of societies in transition. Standards of democratic governance may have to be adjusted to a polity in transition. Care-taker governments, e.g., may be allowed to exercise governing authority without being formally legitimated through the holding of elections. Criminal proceedings may have to be focused on the prosecution of the 'most serious crimes' ('targeted accountability'). Property claims may have to be dealt with in specific mass claims procedures in order to facilitate a speedy reversion of the consequences of armed conflict and/or to facilitate minority returns. For examples in the cases of Bosnia and Herzegovina and Kosovo see Commission for Real Property Claims of Displaced Persons and Refugees (BiH), End of Mandate Report (1996-2003) (2004), at 3
29. OSCE Mission in Kosovo, Department of Human Rights and Rule of Law, Property Rights in Kosovo 2002-2003 (2003). International military forces, which are traditionally bound by wartime obligations, have been forced to respect certain peacetime standards (such as habeas corpus guarantees), when exercising public authority in a post-conflict environment.
30. See Parliamentary Assembly Res. 1417 (2005), Protection of Human Rights in Kosovo, available at http://assembly.coe.int/main.asp?Link=/documents/ adoptedtext/ta05/eres1417.htm.
31. See generally S. Chesterman, You the People: The United Nations, Transitional Administration and State-building (2004), at 126-152
32. R. Caplan, International Governance of War-torn Territories (2005), at 179-195.
33. See also J. Dobbins et al., The UN's Role in Nation-building: From the Congo to Iraq (2005).
34. For a general treatment see Yoram Dinstein, War, Aggression and Self-Defence (4th edn., 2005)
35. and ibid., The Conduct of Hostilities under the Law of International Armed Conflict (2004).
36. In his De indes et de iure belli relectiones, Vitoria distinguished lawful motives of war from just limits in war. See Vitoria, De iure belli relectiones (1539), Nos. 15 ff and 34 ff.
37. For an English translation see E. Nys (ed.), De iure belli relectiones (trans. J.B. Pate, 1917).
38. See C. Wolff, Jus gentium methodo scientifica pertractatum (1749), at paras 888 ff.
39. See E. Vattel, Law of Nations (1758), iii, chap. VIII.
40. It appears in legal writing in the 1920s. Enriques used the term jus ad bellum in 1928. See Enriques, 'Considerazioni sulla teoria della guerra nel diritto internazionale', 20 Rivista di diritto internazionale (1928) 172.
41. Later, Kunz took up the notion in an article pubished in 1934: See Kunz, 'Plus de lois de guerre?', 41 Revue Générale de Droit International Public (1934) 22.
42. However, the breakthrough came only after the end of the Second World War, when the express distinction between jus ad bellum and jus in bello gained widespread acceptance in monographs: See. e.g., L. Kotzsch, The Concept of War in Contemporary History and International Law (1956), at 86 and 89.
43. This is, inter alia, reflected in the preamble to Additional Protocol 1 to the Geneva Conventions which makes it clear that the provisions of the Protocol apply in all circumstances without distinction based on the 'nature or origin' of the underlying conflict.
44. This is also reflected in the factors triggering the applicability of jus in bello. The 'state of war' doctrine provided sovereigns with discretion to recognize the existence of a war in the legal sense. In the 20th century, this subject test was replaced by an objective requirement based on the factual character of a conflict.
45. This appears to be the official position of the ICRC, according to which international humanitarian law 'addresses the reality of a conflict without considering the reasons for or legality of resorting to force': see ICRC, International Humanitarian Law: Answers to your questions (2002), at 14.
46. The most prominent example of the nexus between jus in bello and jus ad bellum is the definition of armed conflict in Art. 1(4) of Additional Protocol I, which extends the applicability of the law governing international armed conflicts to 'armed conflicts which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination'. It is occasionally argued that just in bello and jus ad belllum constitute 'sometimes competing, sometimes complementary' bodies of law. See Berman, 'Privileging Combat? Contemporary Conflict and the Legal Construction of War', 43 Columbia J Transnat'l L (2004) 6.
47. See ASIL, 100th Annual Meeting, The Relationship Between Jus Ad Bellum and Jus In Bello: Past, Present, Future (2007, forthcoming).
48. See the definition of jus in bello in Wikipedia Encyclopedia, Laws of War, available at http://en.wikipedia.org/wiki/Jus_in_bello.
49. This understanding was reflected in the legal tradition of the 19th century according to which the presence of a state of war precluded the application of all rules applicable in peacetime. See Neff, supra note 3, at 178.
50. See recently Berman, supra note 23, at 4-5.
51. See Meron, 'The Humanization of Humanitarian Law', 94 AJIL (2000) 239.
52. For a human-rights-based interpretation of the laws of war see, e.g.. Martin, 'Using International Human Rights Law for Establishing a Unified Use of Force Rule in the Law of Armed Conflict', 64 Saskatchewan L Rev (2001) 347.
53. See Arts 35-41 of the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land.
54. See, inter alia, the provisions on grave breaches of the Geneva Conventions. In its jurisprudence, the ICTY, found that crimes committed in non-international armed conflicts are punishable under customary international law, although 'common Article 3 of the Geneva Conventions contains no explicit reference to criminal liability for violation of its provisions': See ICTY, Prosecutor v Tadic, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, at paras 128-132.
55. See Additional Protocol I, Art. 3(b); See also Fourth Geneva Convention, Art. 6 which provides that the application of the convention shall cease 'on the close of military operations'.
56. See Final Record of the Diplomatic Conference of Geneva of 1949 (Berne: Federal Political Department, 1949. repr. 2005), ii-A, at 815.
57. However, the protracted nature of modern conflicts and the involvement of potentially numerous armed groups and factions make it often difficult to determine a definitive point in time at which the laws of war cease to operate: See Roberts. 'The End of Occupation: Iraq 2004', 54 ICLQ (2005) 27, at 34.
58. See Art. 6 of the Fourth Geneva Convention.
59. See United Nations, Secretary-General's Bulletin, ST/SGB/1999/13, 6 Aug. 1999, at para. 1. This position has been defended by the Institut de Droit International since the early 1970s.
60. See Institut de Droit International. 'Resolution, Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces may be Engaged', 54(II) Annuaire Institut de Droit International (1971) 465.
61. See also generally M. Zwanenburg, Accountability of Peace Support Operations (2005).
62. See Mégret and Hoffmann, 'The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities', 25 Human Rights Quarterly (2003) 314.
63. For a discussion see Bhuta. 'The Antinomies of Transformative Occupation', 16 EJIL (2005) 740.
64. See Art. 43 of the Hague Regulations as well as Art. 47 of the Fourth Geneva Convention. Arts 64 and 65-70 of the Fourth Geneva Convention provide certain exceptions to the continuation of the previously applicable law.
65. For a critique of the deballatio doctrine see E. Benvenisti, The International Law of Occupation (2003), preface and at 72-96.
66. See also Benvenisti, 'The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective'. 1 Israel Defense Forces L Rev (2003) 23, sect. III.
67. The resolution reaffirmed, in particular, that post-war occupation does not entail a transfer of sovereignty or title over the territory, but rather a mandate to build or restore domestic self-determination or self-government. Furthermore, as occupying powers, the US and the UK were bound to promote the welfare of the local population, including ensuring equal rights and justice, while being subjected to a rudimentary form of public accountability via their duty to report to the Security Council: Ibid.
68. SC Resolutions 1483 and 1511 recognized the occupation of Iraq but did not authorize it in a formal way. The Coalition Provisional Authority therefore remained bound by the Hague Regulations and the Geneva Conventions. This was set out in a letter dated 8 May 2003 in which the UK and the US stated that they would 'strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the people of Iraq'.
69. Several responsibilities mentioned in SC Resolution 1483 went beyond the ordinary framework of the maintenance of law and order under the laws of occupation ('effective administration of the territory'; 'creation of conditions in which in which the Iraqi people can freely determine their own political future' (para. 4); establishment of 'national and local institutions for representative governance' (para. 8.c)).
70. See also Zwanenburg, 'Existentialism in Iraq: Security Council Resolution 1483 and the Law of Occupation', 86 Int'l Rev of the Red Cross (2004) 745, at 765-766.
71. CPA Order No. 39 provided the basis for the privatization of the Iraqi economy, while permitting 100% foreign ownership in most sectors. Bids were limited to members of the 'coalition of the willing'.
72. For a critical survey of the practice of the Coalition Provisional Authority in Iraq see Sassòli, 'Legislation and Maintenance of Public Order and Civil Life by Occupying Powers', 16 EJIL (2005) 694.
73. The need for an autonomous set of criteria for jus post bellum under the just war doctrine has been stressed by Michael Walzer with respect to occupations: See Walzer, 'Just and Unjust Occupation', in M. Walzer, Arguing About War (2004), at 163.
74. For a full discussion of the separation of jus ad bellum, jus in bello, and jus post bellum see Boon, supra note 8, at 292.
75. This is partly a result of the ever-widening interpretation of the notion of 'international peace and security' in the practice of the Security Council.
76. See Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Dec. 2001), para. 5.1.
77. See Report of the UN High-level Panel on Threats, Challenges, and Change, A More Secure World: Our Shared Responsibility (2004), at paras 201-203.
78. See Secretary-General, In Larger Freedom, Towards Development, Security and Human Rights for All, 21 Mar. 2005, at para. 135.
79. The UN Secretary-General emphasized a similar need in his report, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, 23 Aug. 2004, at para. 2.
80. See GA Res. 60/1 (2005 World Summit Outcome) of 24 Oct. 2005.
81. See ibid., at paras. 138 and 139.
82. For an analysis of the concept of 'responsibility to protect' see Stahn, 'Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?', 101 AJIL (2007) (forthcoming).
83. See GA Res. 60/1, supra note 51, at paras 97-105.
84. For a survey see Stahn, 'Institutionalizing Brahimi's "Light Footprint": A Comment on the Role and Mandate of the Peacebuilding Commission', 2 Int'l Organizations L Rev (2005) 403.
85. For a survey see M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (3rd edn., 2000):
86. see also B. Orend, Michael Walzer on War and Justice (2000)
87. and Stanford Encyclopedia of Philosophy, War, available at http://plato.stanford.edu/entries/war/.
88. See Orend, 'Justice After War', 16 J Ethics & Int'l Affairs (2002) 43, at 44 ('a coherent set of plausible values to draw on while developing an account of just war settlement').
89. See also the definition of jus post bellum in the Stanford Encyclopedia of Philosophy, supra note 54, ('[j]us post bellum refers to justice during the third and final stage of war: That of war termination ... There is little international law - save occupation law and perhaps the human rights treaties - and so we must turn the moral resources of just war theory').
90. See Korhonen, '"Post" as Justification: International Law and Democracy-Building after Iraq', 4 German LJ (2003). No. 7.
91. For a discussion of legality and morality in the context of Kosovo see also Krisch, 'Legality, Morality and the Dilemma of Humanitarian Intervention After Kosovo', 13 EJIL (2003) 323.
92. See N. Feldman, What We Owe Iraq: War and the Ethics of Nation-Building (2004).
93. Ibid., at 3.
94. See Bass, supra note 8, at 384.
95. similar argument is made by DiMeglio, supra note 8, at 162.
96. For arguments in this direction see Reka, 'UNMIK as International Governance within Post-Conflict Societies', New Balkan Politics. Issue 7/8, available only at http://www.newbalkanpolitics.org.mk/ napis.asp?id=17&lang=English, sect, II ('[m]aybe the case of Kosovo could represent a contribution towards the new liberal doctrine for the "re-conceptualization of international law", by which the "transnational legal process thereby spurs internal acceptance of international human rights" principles').
97. The exercise of administering functions by UNMIK and KFOR in Kosovo has been regarded as a formal requirement of the legality of the humanitarian intervention itself. which is said to impose a post-conflict responsibility on the intervening actors ('Verpflichtung zur Nachsorge'): See P. Zygojannis, Die Staatengemeinschaft und das Kosovo (2002) at 125 ('[d]ie Verpflichtung des Intervenienten zur Nachsorge als Rechtsfolge durchgeführter humanitärer Intervention').
98. Ibid.
99. Note that this argument has recently been used by the High-Level Panel on Threats, Challenges, and Change in its list of criteria for the authorization of interventions by the Security Council. The Report of the High-Level Panel on Threats. Challenges. and Change linked the legitimacy of interventions to their capacity to meet 'the threat in question': See High-Level Panel, supra note 49, at para. 207.
100. See Arts 31 and 36 of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc A/56/10 (2001).
101. In particular, a forcible regime change cannot be justified by the mere invocation of the law of occupation: See Chesterman, 'Occupation as Liberation: International Humanitarian Law and Regime Change', 18 Ethics & Int'l Affairs (2004) 51, at 56.
102. For a lack of justification of jus ad bellum violations through jus post bellum see also Orend, Morality of War, supra note 8, at 195.
103. For a broader examination see Franck, Recourse to Force: State Action Against Threats and Armed Attacks (2002), at 158-162.
104. Such a technique was explicitly applied by the Council in the context of its retroactive endorsement of the unauthorized ECOMOG interventions in Liberia and Sierra Leone: See SC Res. 788 (1992) and SC Res. 1260 (1999). A similar argument was made in relation to the NATO action and subsequent UN involvement in Kosovo in 1999 in Operation Allied Force. Although the Council did not expressly validate NATO's intervention ex post facto, the adoption of Res. 1244 (1999) by the Security Council and the subsequent creation of UNMIK could be viewed as an implicit endorsement of NATO action. In the case of Operation Enduring Freedom, it was debated whether the intervention exceeded the parameters of Art. 51 and interfered with the Security Council's responsibilities under Chap. VII, at least insofar as it entailed the overthrow of the Taliban regime.
105. See Frank and Rehman, 'Assessing the Legality of the Attacks by the International Coalition against Terrorism against Al Qaeda and the Taliban in Afghanistan: An Inquiry into the Self-defence Argument under Article 51 of the Charter', 67 J Crim L (2003) 415
106. Delbrück. 'The Fight Against Global Terrorism: Self-defence or Collective Security as Internal Police Action? Some Comments on the International Legal Implications of the "War Against Terrorism", 44 German Yearbk Int'l L (2001) 9, at 21.
107. In that respect. the operation drew some subsequent support from the acknowledgement of the effects of the use of force by the Council through the endorsement of the Bonn Agreement and the subsequent establishment of UNAMA: See SC Res. 1386 (2001). The reaction of the Council to the Iraq crisis may be interpreted as a case of application of the theory of mitigation. Security Council members refrained from acknowledging the (il)legality of Operation Iraqi Freedom, yet they absolved it from legal sanction.
108. Faced with growing security gaps and the need to restore sovereign and democratic institutions in post-war Iraq, the Council decided, as the Secretary-General stated, to 'place the interests of the Iraqi people above all other considerations': See Secretary-General, Press Release SG/ SM/8945, 16 Oct. 2003, available at http://www.un.org/News/Press/docs/ 2003/sgsm8945.doc.htm.
109. Note that the Report of the High-Level Panel on Threats, Challenges, and Changes establishes criteria not only for the authorization, but also for the endorsement of the use of military force: See High-Level Panel, supra note 49, at para. 207.
110. See Suarez, 'The Three Theological Virtues, Disputation XIII', in J.B. Scott (ed.), Classics of International Law (1995), xx, at 836.
111. See also Vitoria. supra note 16, De Indis, iii, at 60 ('Third Canon: When victory has been won and the war is over, the victory should be utilized with moderation and Christian humility, and ... so far as possible should involve the offending state in the least degree of calamity and misfortune, the offending individuals being chastised with lawful limits').
112. However, his findings were deeply shaped by the scholastic tradition. Suarez endorsed, inter alia, a victor's right to just punishment of the conquered state and the entitlement of the victorious power to deprive citizens of the opponent of their goods and their liberty, if necessary for complete satisfaction: See Suarez, supra note 68, at 840 and 843.
113. See H. Grotius, De Jure Belli ac Pacis (trans. F.W. Kelsey), in J.B. Scott (ed.), Classics of International Law (1995), ii.
114. See on Grotius and Just War Theory P. Haggenmacher, Grotius et la Doctrine de la Guerre Juste (1983).
115. See generally Kingsbury, 'A Grotian Tradition of Theory and Practice?: Grotius, Law, and Moral Skepticism in the Thought of Hedley Bull', 17 Quinnipiac L Rev (1997) 3.
116. See Grotius, supra note 70, Bk 3, at 739-740.
117. See ibid., chap. XV, at 770.
118. See ibid., chap. XIX, at 792.
119. See ibid., chap. XX, at 808-819.
120. See E. de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, appliquş à la Conduite et aux Affaires des Nations et des Souverains (1758), iii, English translation by C.G, Fenwick. 'The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns', in J. B. Scott (ed.),. Classics of International Law, Vattel, Text of 1758, Books I-IV (1995), at 15.
121. See Vattel, supra note 76, Bk IV, chap. I. at 343.
122. See ibid., at 346-361.
123. See Orend, War and International Justice, supra note 8, at 57 and 63 (n. 22).
124. Kant's The Science of Right was published in 1796, as the first part of his Metaphysics of MoraIs (Die Metaphysik der Sitten) (1797).
125. See I. Kant, The Science of Right, supra note 80, at 53 (Nature and Division of the Right of Nations),
126. See I. Kant, Perpetual Peace (1795). Sect. 1. Art. 6.
127. Ibid., Sect. 1, Art. 1.
128. See Kant, Science of Right, supra note 80, at 58 (Right after War). A weakness of Kant's law after conflict is that he still relied on the notion of 'conquest' and neglected the concept of individual criminal responsibility. Similarly, he did not rule out the possibility that an 'unjust enemy' can be forced 'to accept a new constitution of a nature that is unlikely to encourage their warlike inclinations'.
129. See also Stanford Encyclopedia of Philosophy, supra note 54, at 2.3.
130. For a survey of the relevant literature see supra note 8.
131. See also Boon, supra note 8, at 290.
132. Note also that jus in bello makes no distinction between lawful and unlawful combatants when determining duties under the law of occupation. The ICTY has clarified in its jurisprudence that the applicability of the law of occupation is based on factual considerations: See, inter alia, ICTY, Appeals Chamber, Prosecutor v Tadic. Case No. IT-94-1-A (1999), at para. 168.
133. This has certain implications for the relationship between jus ad bellum and peacemaking. An illegal use of force does not automatically entail the illegality of all engagement in the post-conflict phase. For an insightful discussion see Schaller, supra note 8, at 15-18.
134. For a different view see Orend, Morality of War, supra note 8, at 162 ('failure to meet jus ad bellum results in automatic failure to meet jus in bello and jus post bellum'). Measures taken by an intervening force after conflict are judged by their own standards. Similarly, violations of principles of conflict termination do not per se justify a return to armed violence. The question when it is justified to resort to armed force remains dictated by the rules on the recourse to force.
135. See also in the context of just war theory Bass, supra note 8, at 389,
136. For a proposed separation of jus post bellum from jus ad bellum and jus in bello see also Boon, supra note 8, at 290-292
137. and Schaller, supra note 8, at 17-19.
138. Note that the crime of aggression forms part of the jurisdiction of the International Criminal Court. However, the exercise of jurisdiction by the Court is contingent on the definition of the crime under Statute: see Art. 5(2) of the Rome Statute of the International Criminal Court, 17 July 1998.
139. For a narrower vision of jus post bellum as a 'law of post-war reconstruction' see Boon, supra note 8, at 285.
140. Sometimes, different legal provisions may conflict or compete with each other (e.g., duty to prosecute v duty of a state to protect the security of its people; right of individual of access to the Court v immunity of international organizations). Such conflicts may be solved by way of a distinction between 'rules' and 'principles': See R. Dworkin, Taking Rights Seriously (1978), at 24 ff.
141. Ibid.
142. Ibid.
143. No common framework of jus post bellum principles has yet been established in the relevant literature. In his War and International Justice, supra note 8, at 232-233.
144. Orend lists the following five principles: Just cause, right intention, public declaration and legitimate authority, discrimination, and proportionality. A more elaborate list is offered by the same author in Morality of War, supra note 8, at 180-181.
145. The peacemaking practice of the 1990s indicates that the neutralization of the bargaining process is one of the central parameters of peacemaking. In cases such as Iraq (SC Res. 687) and Kosovo (SC Res. 1244), the authors of the use of force had a say in shaping the content of post-conflict peace under the umbrella of collective security. The former FRY agreed on the principles contained in Annex II to Res. 1244 (1999) (resolution of the Kosovo crisis): See para. 9 of the preamble to SC Res. 1244 of 10 June 1999. The principles contained in Annex II set a framework for Res, 1244. Iraq participated, without voting, in the discussions on SC Res. 687 of 3 Apr. 1991. Moreover, SC Res. 687 contains several elements of consent: See paras 3 (demarcation of the boundary line between Iraq and Kuwait) and 33 (acceptance of a cease-fire). Furthermore, peace settlements such as the Dayton Accord or the Ethiopia-Eritrea agreement transmit the message that a State using force against another entity should be present when the terms of peace are negotiated.
146. For a survey of institutional models see M. Suksi. Constitutional Options for Self-determination: What Really Works?, available only at http://www.tamilnation.org/selfdetermination/99suksi.htm.
147. For a similar consideration see Bass, supra note 3, at 390-393.
148. The Draft Articles of the International Law Commission on State Responsibility, supra note 64, refrain from approving any concept of punishment of a State for the commission of unlawful acts of force. They limit the consequences of internationally wrongful acts to the level of 'civil responsibility', according to which a State can obtain restitution, compensation, and satisfaction only for the harm suffered.
149. Art. 49 of the Fourth Geneva Convention prohibits forcible transfers of population and deportation.
150. This may be derived from Art. 2(1) of the UN Charter and the prohibition of annexation under international law. See also GA Res. 2625 (XXV). Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
151. For a similar argument with regard to the proportionality of reparations see Orend, War and International Justice, supra note 8, at 227-228
152. Bass, supra note 8, at 408-411.
153. As noted by Professor Brownlie, 'experience has shown that victors can hardly expect to exact "adequate compensation" in reparations for large-scale aggression without violating the principles of humanity and good policy': See I. Brownlie. International Law and the Use of Force by States (1963), 153.
154. The effectiveness of targeted sanctions was highlighted in the Report of the UN High Level Panel, supra note 49, which emphasized that the threat of sanctions' can be a powerful means of deterrence and prevention', but specifically highlighted the utility of targeted sanctions in 'putting pressure on leaders and elites with minimum humanitarian consequences... and can be tailored to specific circumstances'. See also paras 106-108 of GA Res. 60/1 (2005 World Summit Outcome).
155. See also the UK's comment on former Art. 43(3) of the ILC Draft Articles on State Responsibility, noting that reparation must not endanger international peace and security. See UN Doc A/CN.4/488.104.
156. For a discussion of this problem under the angle of just war theory see Orend, War and International Justice, supra note 8, at 232.
157. This principle is expressed in Art. 50 of the Annex to the 1907 Hague Convention No. IV. See also Art. 33 of the Fourth Geneva Civilian Convention which notes that '[c]ollective penalties and likewise all measures of intimidation... are prohibited'.
158. The autonomy of individual responsibility from state responsibility is, in particular, expressed in the removal of official immunity from
159. For a full discussion see Robinson, 'Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court'. 14 EJIL (2003) 481
160. Stahn, 'United Nations Peacebuilding, Amnesties and Alternative Forms of Justice: A Change in Practice?,. 84 Int'l Rev of the Red Cross (2002). 191:
161. ibid.. 'Complementarity, Amnesties and Alternative Forms of Justice - Some Interpretative Guidelines for the ICC', 3 J Int'l Criminal Justice (2005) 695.
162. See, e.g., Human Rights Committee, General Comment No. 26, which established the principle of automatic succession of States into obligations under human rights treaties.
163. See also Boon. supra note 8, at 293-295.
164. For an excellent survey of the transformation of the international legal system see Kingsbury, 'The International Legal Order', in P. Cane and M. Pushnet (eds), Oxford Handbook of Legal Studies (2003), at 271.
165. Principles may be understood as 'optimization commands', which ought to be carried out to the greatest possible degree in the circumstances of an environment of transition.
166. See also Orend, Morality of War, supra note 8, at 181 who speaks of the need for 'an ethical "exit strategy" from war' which deserves 'at least as much thought and efforts as the purely military exit strategy [which is] so much on the minds of policy planners and commanding officers'.
167. The 2005 World Summit Outcome document omitted to define standards for the evaluation of interventions. However, the High-Level Panel suggested five basic criteria of legitimacy to be taken into account by the Security Council 'in considering whether to authorize or endorse the use of military force', namely: (a) Seriousness of threat, (b) Proper purpose, (c) Last resort, (d) Proportional means, (e) Balance of consequences: See High-Level Panel, supra note 49, at para. 207.
168. For a brief discussion of the relationship between jus post bellum and jus in bello see Bass, supra note 8, at 386-387.
169. For a study of this question see M. Kelly, Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework (1999)
170. ibid., 'Iraq and the Law of Occupation: New Tests for an Old Law', 6 Yearbk Int'l Humanitarian L (2003) 127.