What will jus post bellum mean? Of new wine and old bottles

Journal of Conflict and Security Law

Volumn 14, Issue 2, 2009, Pages 175-207

  Österdahl, Inger ^a   van Zadel, Esther ^a  

^a UPPSALA UNIVERSITY   (Sweden)

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[No Author keywords available]

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EID: 70949088925     PISSN: 14677954     EISSN: 14677962     Source Type: Journal    
DOI: 10.1093/jcsl/krp018     Document Type: Article

References (161)

1. W. G. O'Neill, 'UN Peacekeeping Operations and Rule of Law Programs', in A. Hurwitz and R. Huang (eds), Civil War and the Rule of Law. Security, Development, Human Rights (2008) 91.
2. C. Stahn, 'Jus Ad Bellum, Jus In Bello ... Jus Post Bellum?-Rethinking the Conception of the Law of Armed Force', (2006) 17 EJIL 936. The term 'post-conflict phase' can be understood as to mean the period from when a state signs a peace agreement after conflict until the moment the state has reached a situation of durable peace, either by returning to its pre-war situation or by achieving an improved version thereof.
3. C. Stahn, 'Just Post Bellum: Mapping the Discipline(s)', (2008) 23 American University International Law Review 321-329, and Stahn, 'Rethinking the Conception', op. cit., fn. 2, p. 943.
4. R. Johnson, 'Jus Post Bellum and Counterinsurgency', (2008) 7 Journal of Military Ethics 216. This view is supported by Johnson, who states that guidelines of jus post bellum 'can inform military action in the hostile post-conflict settings'.
5. Whether the concept of jus post bellum is seen as part of the moral theorists' theory of just war is elaborated upon further in Section 3(B). See also M. Evans (ed.), Just War Theory. A Reappraisal (2005) for further reading on the just war theory,
6. and M. W. Brough, J. W. Lango and H. van der Linden, Rethinking the Just War Tradition (2007) for a more critical reading on the just war theory.
7. S. C. Neff, 'Conflict Termination and Peace-making in the Law of Nations: A Historical Perspective', in C. Stahn and J. K. Kleffner (eds), Jus Post Bellum. Towards a Law of Transition from Conflict to Peace (2008) 77-91.
8. For a more elaborate view on the arguments of moral theorists against the creation of a new concept labelled jus post bellum, see Section 3(B).
9. Stahn, 'Mapping the Discipline(s)', op. cit., fn. 3, p. 325
10. and United Nations Security Council, The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General (August 2004). The process of post-conflict peacemaking has become a domain of international attention and regulatory action, which is also evidenced by the United Nations' regulatory practice.
11. Stahn, 'Rethinking the Conception', op. cit., fn. 2, p. 930
12. and International Commission on Intervention and State Sovereignty, Report on the Responsibility to Protect (December 2001), para. 5.1. This latter report suggested a new conception of responsibility following intervention, thereby stating that modern interventions cannot end after the cessation of hostilities, but that they require ongoing engagement to prevent conflict. Hereby the concept of jus post bellum comes into play.
13. Carsten Stahn is a legal scholar who has published a significant amount of material in recent years on the concept of jus post bellum.
14. Stahn, 'Mapping the Discipline(s)', op. cit., fn. 3, pp. 332-333.
15. Ibid., p. 332.
16. Johnson, 'Jus Post Bellum and Counterinsurgency', op. cit., p. 220
17. and Stahn, 'Rethinking the Conception', op. cit., fn. 4, p. 936.
18. For examples of how the three categories are related, see Stahn, 'Mapping the Discipline(s)', op. cit., p. 345.
19. Stahn, ibid., pp. 333-334
20. and Stahn, 'Rethinking the Conception', op. cit., pp. 924-929. International armed conflicts are conflicts between two or more states (see Common Article 2 of the Geneva Conventions of 12 August 1949); non-international armed conflicts are conflicts restricted to the territory of one state, involving governmental forces and non-governmental armed groups, or between such groups only (see Article 1 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977 in conjunction with Common Article 3 of the Geneva Conventions of 12 August 1949); authorized military interventions are interventions authorized by the United Nations Security Council under Chapter VII of the United Nations Charter, and non-authorized military interventions are interventions not authorized by theUnited Nations Security Council under Chapter VII of the United Nations Charter.
21. C. Stahn, 'Jus Post Bellum: Mapping the Discipline(s)', in C. Stahn and J. K. Kleffner (eds), Jus Post Bellum. Towards a Law of Transition from Conflict to Peace (2008) 98-105. Rules on the interplay of different rules and their relationship in case of conflict establish a form of hierarchy between the rules which avoids the applicability of conflicting rules on the same situation. It may contain the rule that international rules will go before national rules when conflicting, or that military law will go before criminal law when it concerns crimes.
22. Ibid., pp. 231-237.
23. Stahn, 'Rethinking the Conception', op. cit., fn. 2, p. 942.
24. The just war theory is a collection of concepts and values, in other words, standards for moral reasoning, on waging and fighting a just war, manifested through religious writings and international law. Brian Orend brings forward the following jus post bellum criteria: Just cause for termination; right intention; public declaration, legitimate authority and domestic rights-protection; discrimination; and proportionality,
25. see R. P. DiMeglio, 'The Evolution of the Just War Tradition: Defining Jus Post Bellum', (2005) 186 Military Law Review 140-141,
26. B. Orend, Michael Walzer on War and Justice (2000) 135-152
27. and Stahn, 'Mapping the Discipline(s)', op. cit., p. 336.
28. Gary Bass brings forward the following jus post bellum criteria: the conduct of war crimes trials; compensatory reparation; and the duty to respect the sovereignty of the defeated nation and to seek their consent in any project for reconstruction, see G. J. Bass, 'Jus Post Bellum', (2004) 32 Philosophy & Public Affairs 384-412
29. and Stahn, 'Mapping the Discipline(s)', op. cit., fn. 3/16, pp. 336-337.
30. Michael Walzer proposes similar guidelines for a jus post bellum, see Orend, Michael Walzer, op. cit., fn. 19, pp. 135-152,
31. Stahn, 'Mapping the Discipline(s)', op. cit., pp. 337-338
32. and M. Walzer, Just and Unjust Wars (2000) 61-63.
33. The proposed principles are the following: Repentance by the victor; honorable surrender; and restoration. See DiMeglio, ibid., pp. 134-138.
34. The just war theory views the rules of jus ad bellum, jus in bello and jus post bellum as being dependent on each other, which implies that a violation of a rule under one category of rules results in automatic failure to comply with any other rules from following categories of rules. The legal discipline views all these categories of rules covering different phases of conflict as autonomous rules of behaviour and therefore as being able to apply neutrally from one another (principle of distinction). According to the law of armed conflict, violation of a rule under one category of rules does not preclude compliance with the rules of a different category.
35. Stahn, 'Mapping the Discipline(s)', op. cit., fn. 3/16, pp. 338-342. When basing legal principles solely on moral and theological principles, the following objections arise. Firstly, the just war theory was developed on the basis of the criteria of classical warfare, which means legal principles based on it would not be applicable to internal armed conflicts. Secondly, problems arise when moral and theological principles are translated into a concrete context as all situations are different and a 'one-size-fits-all' approach will not be sustainable. Thirdly, moral considerations are often interwoven with policy assessments which do not make them very normative, and normative is exactly what law ought to be.
36. See supra fn. 19 and 20 for all criteria and principles.
37. Hague Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.
38. DiMeglio, 'Defining Jus Post Bellum', op. cit., fn. 19, p. 131
39. and infra fn. 56 at p. 131.
40. Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. Occupation was only covered because of the residual aspects where one belligerent state had retained control over the territory of another state. See also C. Garraway, 'The relevance of jus post bellum: A practitioner's perspective', in: C. Stahn and J.K. Kleffner (ed.), Jus Post Bellum. Towards a Law of Transition From Conflict to Peace, The Hague: T.M.C. Asser Press 2008, pp. 153-162, p. 153.
41. L.V. Iasiello, 'Jus post bellum. The Moral Responsibilities of Victors in War', Naval War College Review (57) 2004, pp. 33-52, p. 40.
42. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949; Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949; Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
43. War crimes are understood to mean serious violations of international humanitarian law committed during international or non-international armed conflicts. The Geneva Conventions and their Additional Protocols contain these rules of international humanitarian law violation of which can amount to a war crime.
44. DiMeglio, 'Defining Jus Post Bellum', op. cit., fn. 19, p. 131.
45. For a strong argument in favour of incorporating the following legal elements into the framework of jus post bellum: Occupation; the use of force; detention; criminal justice, see C. Garraway, 'The Relevance of Jus Post Bellum: A Practitioner's Perspective', in C. Stahn and J. K. Kleffner (eds), Jus Post Bellum. Towards a Law of Transition from Conflict to Peace (2008) 153-162.
46. For a discussion on the incorporation of human rights norms into the framework of jus post bellum, see C. Bell, On the Law of Peace. Peace Agreements and the Lex Pacificatoria (2008) 271-272
47. and R. Wilde, 'Are Human Rights Norms Part of the Jus Post Bellum, and Should They Be?', in C. Stahn and J. K. Kleffner (eds), Jus Post Bellum. Towards a Law of Transition from Conflict to Peace (2008) 163-186.
48. For a discussion on the incorporation of rules of international humanitarian law, see Bell, Lex Pacificatoria, op. cit., fn. 29, pp. 269-271
49. and H. Charlesworth, 'Think Pieces. Law after War', (2007) 8 Melbourne Journal of International Law 233-247.
50. This provision does not have to be incorporated in the specific legal body itself, but can, for example, be a rule of (codified) customary law regarding treaty interpretation.
51. Stahn, 'Rethinking the Conception', op. cit., fn. 2, pp. 921-943, 942. Carsten Stahn believes that international actors should apply the rules but does not specify the exact reasons for this in his article.
52. By no means is this summary meant as being exhaustive with regard to all compliance mechanisms available. It merely aims at mentioning different possibilities than the one mostly chosen by lawyers.
53. National courts can exercise their jurisdiction since international law is part of a national legal order when it is applicable to a situation in the state in question (this is a simplified explanation as this article does not lend itself to enter into the subject of the exercise of jurisdiction). International courts can exercise their jurisdiction since they have been created with the purpose of enforcing international legal rules.
54. Violations of the rules of jus ad bellum and jus in bello are already criminalized; these amount to, respectively, the crime of aggression and war crimes, and can therefore be prosecuted in the post-conflict phase. Violations of certain rules of jus post bellum might not be criminalized yet and that is therefore desirable.
55. G. Molier, 'Wederopbouw na Gewapend Conflict: Naar Juridificering van the Responsibility to Rebuild of een ius Post Bellum?', (2007) Jaarboek Vrede en Veiligheid 12.
56. Stahn, 'Rethinking the Conception', op. cit., fn. 2, p. 943.
57. S. K. Sharma, 'Reconsidering the Jus Ad Bellum/Jus In Bello Distinction', in C. Stahn and J. K. Kleffner (eds), Jus Post Bellum. Towards a Law of Transition from Conflict to Peace (2008) 9-30.
58. See supra fn. 14.
59. DiMeglio, 'Defining Jus Post Bellum', op. cit., fn. 19, p. 120,
60. L. V. Iasiello, 'Jus Post Bellum. The Moral Responsibilities of Victors in War', (2004) 57 Naval War College Review 36-37
61. and R. E. Williams and D. Caldwell, 'Just Post Bellum: Just War Theory and the Principles of Just Peace', (2006) 7 International Studies Perspective 315. Rules of international law have been based on moral theory which illustrates the closeness between these two concepts.
62. Williams and Caldwell, ibid., pp. 309-320.
63. B. Orend, 'Just Post Bellum: The Perspective of a Just-War Theorist', (2007) 20 Leiden Journal of International Law 573.
64. For another opposing view towards the integration of the concept of jus post bellum into the just war theory, see A. J. Bellamy, 'The Responsibilities of Victory: Jus Post Bellum and the Just War', (2008) 34 Review of International Studies 601-625. In this article it is argued that it is premature to include jus post bellum as a third element of just war thinking.
65. That the concept of jus post bellum does deserve a place within the just war theory is argued by, amongst others, Bass, Iasiello and Orend. See G. J. Bass, 'Jus Post Bellum', (2004) 32 Philosophy & Public Affairs 384-412
66. Iasiello, 'Moral Responsibilities of Victors in War', op. cit., fn. 39, pp. 33-52
67. and Orend, 'The Perspective of a Just-War Theorist', op. cit., fn. 41, pp. 571-591. It can even be argued that the concept of jus post bellum has historical roots in the just war theory as Hugo Grotius addressed post-war issues in The Rights of War and Peace in 1625, and Immanuel Kant explicitly identified three categories of war in The Metaphysics of Moral: The right to war, the right in war and the right after war.
68. Orend, 'The Perspective of a Just-War Theorist', op. cit., fn. 41, pp. 571-591, 575-577.
69. Bass, 'Jus Post Bellum', op. cit., fn. 19, pp. 384-412, 384-388,
70. J. Rawls, The Law of Peoples (2002) 96
71. and S. K. Sharma, 'Reconsidering the Jus Ad Bellum/Jus In Bello Distinction', in C. Stahn and J. K. Kleffner (eds), Jus Post Bellum. Towards a Law of Transition from Conflict to Peace (2008) 9-30.
72. Moral theorist Michael Walzer argues that jus post bellum should be added to the just war theory, and he acknowledges that this chapter on the subject in his book 'Just and Unjust Wars' is 'much too brief'. See M. Walzer, Arguing about War (2005).
73. Orend, 'The Perspective of a Just-War Theorist', op. cit., fn. 41, p. 572.
74. Ibid. According to the just war theory, the concept of the rule of right intention is that a state that wages a just war should be doing so for the cause of justice and not for other reasons. This rule is one of the conditions for states to wage a just war according to the just war theory. The legal discipline does not clearly endorse this rule, meaning that the interpretation of the principle under the just war theory does not amount to a legal condition for a state to wage war.
75. The concept of R2P is a recently developed concept in international law which relates to a state's responsibilities towards its population and to the international community's responsibilities in case a state fails to fulfil its responsibilities. For a more elaborate and complete explanation, see International Commission on Intervention and State Sovereignty, Report on the Responsibility to Protect (December 2001).
76. C. Stahn, 'Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?', (2007) 99 AJIL 99.
77. United Nations Secretary General's High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (2004)
78. United Nations General Assembly, In Larger Freedom: Towards Development, Security and Human Rights for All. Report of the Secretary-General (March 2005)
79. United Nations General Assembly, Implementing the Responsibility to Protect. Report of the Secretary-General (January 2009)
80. and United Nations General Assembly, World Summit Outcome (October 2005).
81. See also Stahn, op. cit., fn. 50, pp. 99-101.
82. Stahn, 'Rethinking the Conception', op. cit., fn. 2, pp. 930-931. The United Nations Peacebuilding Commission was created to address the challenge of helping countries with the transition from war to lasting peace.
83. Stahn, 'Rhetoric or Emerging Legal Norm?', op. cit., fn. 50, pp. 110-115. Carsten Stahn states that 'some of the features of the concept of responsibility to protect are well embedded in contemporary international law, while others are so innovative that it may be premature to speak of a crystallizing practice' and that 'many of the elements of the concept of responsibility to protect are not novel, but rooted in a broader ideological or legal tradition; and it appears to be this link that allowed the concept to gain some acceptance in recent practice'.
84. L. Arbour, 'The Responsibility to Protect as a Duty of Care in International Law and Practice', (2008) 34 Review of International Studies 450-451. The doctrine of the R2P is clearly accepted by Louise Arbour. Her argument is that the heart of the R2P already rests upon an undisputed obligation of international law: The prevention and punishment of genocide.
85. Ibid., p. 458
86. and Stahn, 'Rhetoric or Emerging Legal Norm?', op. cit., fn. 50, pp. 99-120, 101, 120. The fact that the non-enforceability is even admitted to by a strong supporter of the doctrine as Arbour can be understood to show the (currently non-existing) legal nature of the doctrine.
87. International Commission on Intervention and State Sovereignty, Report on the Responsibility to Protect (December 2001), para. 5.1.
88. United Nations General Assembly, Implementing the Responsibility to Protect. Report of the Secretary-General (January 2009), para. 48.
89. A. Koeman, 'A Realistic and Effective Constraint on the Resort to Force? Precommitment to Jus in Bello and Jus Post Bellum as Part of the Criterion of Right Intention', (2007) 6 Journal of Military Ethics 212
90. and Molier, 'Naar Juridificering', op. cit., fn. 35, p. 5.
91. The concept of the R2P can be broken down into three different responsibilities aligning with the three different phases of conflict: the responsibility to prevent (pre-conflict phase), the responsibility to respond (conflict phase) and the responsibility to rebuild (post-conflict phase). The ICISS has thereby re-conceptualized the concept of sovereignty as a responsibility to protect and the responsibility to rebuild is an integral part of the R2P. See also International Commission on Intervention and State Sovereignty, Report on the Responsibility to Protect (December 2001), chapter 5.
92. Koeman, Ibid., p. 207.
93. Molier, 'Naar Juridificering', op. cit., fn. 35, pp. 1-35
94. and Stahn, 'Rhetoric or Emerging Legal Norm?', op. cit., fn. 50, p. 110.
95. Chapter 5 of the International Commission on Intervention and State Sovereignty, Report on the Responsibility to Protect (December 2001) clearly states that states ought to have a 'genuine commitment' to the responsibility to rebuild and it does not mention any legal obligation in this regard.
96. Molier, 'Naar Juridificering', op. cit., fn. 50, pp. 1-35. Molier also states that the responsibility to rebuild and a possible framework of jus post bellum overlap each other as both aim at creating a judicial system and stimulate economic recovery in the postconflict phase.
97. The principles of the R2P state that if a state is unwilling or unable to carry out its responsibility to prevent abuses, this responsibility must be transferred to the international community, which must initially attempt to solve the problems through peaceful means, but which may use military force as a last resort.
98. Koeman, 'Resort to Force?', op. cit., fn. 58, pp. 198-220, 212-213.
99. Ibid., pp. 198-220, 201.
100. The United Nations Secretary General also recognized the need for more locally 'tailored' responses to conflict if peace and stability are to be sustainable, see United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies. Report of the Secretary-General (August 2004).
101. See also Turner 2008, pp. 150-151.
102. A.S. Hansen, 'From intervention to local ownership: Rebuilding a just and sustainable rule of law after conflict', in: C. Stahn and J.K. Kleffner (ed.), Jus Post Bellum. Towards a Law of Transition From Conflict to Peace, The Hague: T.M.C. Asser Press 2008, pp. 131-151.
103. Ibid. Some scholars argue that the influence of the concept of local ownership on the concept of jus post bellum should also entail that the latter concept seizes to be applicable when local ownership over laws and legislature has been realized. However, the contemporary debate on local ownership questions its practicability, as there can be a difference between international norms and local preferences. This difference can render the concept of local ownership unable to function, which collides with the possibility of a fruitful relation between the concept of local ownership and that of jus post bellum.
104. Ibid., p. 138. Local owners can be described as: The population in its various organizational forms, the authorities and members of the security sector.
105. M. Freeman and D. Djukić, 'Jus Post Bellum and Transitional Justice', in C. Stahn and J. K. Kleffner (eds), Jus Post Bellum. Towards a Law of Transition from Conflict to Peace (2008) 213-227.
106. For further reading on the concept of transitional justice, see C. Turner, 'Delivering Lasting Peace, Democracy and Human Rights in Times of Transition: The Role of International Law', (2008) 2 The International Journal of Transitional Justice 126-151
107. and C. P. M. Waters, 'Post-conflict Legal Education', (2005) 10 Journal of Conflict & Security Law 101-119.
108. The statement of Mr. Javier Solana on this EULEX Mission included the following: 'The EULEX mission is deployed in order to assist Kosovo in its progress towards reaching European standards in the areas of police, justice, customs and correctional services (...) will be crucial for the consolidation of rule of law in Kosovo (...) the development of rule of law and strengthening of multi-ethnic institutions (...)'. See www.consilium.europa.eu/ueDocs/cmsData/docs/pressData/en/declarations/ 104524.pdf.
109. EU Presidency Statement of Sweden on peacebuilding, February 2001. See www.europa-eu-un.org/articles/en/article_253_en.htm.
110. This was also argued in the report of the European Union Institute for Security Studies, Beyond International Trusteeship: EU Peacebuilding in Bosnia and Herzegovina (February 2007), where it is argued that 'things have begun to visibly change on the ground in Bosnia and Herzegovina only with the emergence of the EU as the main international peacebuilding actor in more recent years'.
111. S. Chesterman, '"Ownership": The Transfer of Authority in Postconflict Operations', in A. Hurwitz and R. Huang (eds), Civil War and the Rule of Law. Security, Development, Human Rights (2008) 139-161, pp. 140-141
112. and Molier, 'Naar Juridificering', op. cit., fn. 35, pp. 18-19. Molier argues that the legal basis for these expanded peacekeeping operations is one of the following: Chapter VII of the United Nations Charter, the theory of 'implied powers' or the United Nations' practice which led to the customary rule that the United Nations Security Council may impose upon countries an internationally led administration.
113. A clear example of this is the focus of both the United Nations Peacekeeping Operations and the jus post bellum framework on the consolidation of peace and the attainment of justice, through, amongst other things, the development and/or establishment of the rule of law in a post-conflict phase. Developing and/or establishing the rule of law in a post-conflict phase is part of a jus post bellum framework. Furthermore, developing and/or establishing the rule of law in post-conflict phases is crucial to the United Nations, which is shown by the establishment of a new Rule of Law Coordination and Resource Group in the United Nations Secretariat.
114. United Nations General Assembly, In Larger Freedom: Towards Development, Security and Human Rights for All. Report of the Secretary-General (March 2005).
115. Ibid.
116. United Nations General Assembly, Resolution 60/180, The Peacebuilding Commission (20 December 2005)
117. and United Nations Security Council, Resolution 1645 (20 December 2005). These resolutions establishing the PBC mandated the PBC, inter alia, to bring together all relevant actors to marshal resources and to advise on the proposed integrated strategies for post-conflict peacebuilding and recover; to help ensure predictable financing for early recovery activities and sustained financial investment over the medium to long-term; to develop best practices on issues in collaboration with political, security, humanitarian and development actors. The resolutions also identify the need for the PBC to extend the period of international attention on post-conflict countries and, where necessary, highlight any gaps which threaten to undermine peacebuilding.
118. Peacebuilding Commission - Report of the Peacebuilding Commission on its Second Session (June 2008).
119. United Nations General Assembly, Resolution 60/180, The Peacebuilding Commission (20 December 2005)
120. and United Nations Security Council, Resolution 1645 (20 December 2005).
121. For a critical opinion on the relations between the PBC and a framework of jus post bellum, see Bellamy, 'The Responsibilities of Victory', op. cit., fn. 42, p. 625. Bellamy argues that the PBC and a framework of jus post bellum do not go together as the PBC should first reach a consensus on the nature of good governance, human rights and economic reconstruction before it may work with a framework of jus post bellum.
122. One can also find expressions of the United Nations' commitment to post-conflict peacebuilding, in its broadest form, through other documents. The following document is a good example of this: United Nations General Assembly, New Partnership for Africa's Development: Progress in Implementation and International Support: Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa (August 2008).
123. Stahn, 'Rethinking the Conception', op. cit., fn. 2, p. 930. The author uses this reasoning to argument in favour of the creation of a framework of jus post bellum.
124. Bellamy, 'The Responsibilities of Victory', op. cit., fn. 42, p. 615,
125. supra fn. 79
126. and Stahn, 'Rethinking the Conception', op. cit., fn. 2, pp. 931-933.
127. Stahn, ibid., p. 942.
128. M. Evans, 'Balancing Peace, Justice and Sovereignty in Jus Post Bellum: The Case of "Just Occupation"', (2008) 36 Journal of International Studies 542
129. and A. Roberts, 'Transformative Military Occupation: Applying the Law of War and Human Rights', (2006) 100 American Journal of International Law 580.
130. See also Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
131. J. L. Cohen, 'The Role of International Law in Post-Conflict Constitution-Making: Toward a Jus Post Bellum for "Interim Occupations"', (2006-2007) 51 New York Law School Law Review 531
132. and Roberts, 'Transformative Military Occupation', op. cit., fn. 84, p. 582.
133. For a more general reading on the relation between occupations and jus post bellum, see K. Boon, 'Legislative Reform in Post-Conflict Zones: Jus Post Bellum and the Contemporary Occupant's Law-Making Powers', (2005) 50 McGill Law Journal 285-326.
134. K. Boon, ibid., pp. 322-325.
135. Iasiello, 'Moral Responsibilities of Victors in War', op. cit., fn. 39, pp. 47-48
136. and Orend, 'The Perspective of a Just-War Theorist', op. cit., fn. 41, pp. 571-591.
137. Peacebuilding Commission - Working Group on Lessons Learned, Concept Note on Justice in Times of Transition (February 2008).
138. United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. Report of the Secretary-General (August 2004).
139. C. Garraway, 'A Practitioner's Perspective', op. cit., p. 159.
140. In order for these violations to be punished through criminal trials, violations of the rules have to be criminalized.
141. Some international fora can prosecute violators of rules even when national courts have the possibility to prosecute, but this is only possible in exceptional circumstances.
142. The type and amount of judicial accountability refer to, respectively, the type of court or commission used to establish accountability and the extent to which leaders and/or combatants will be prosecuted for their crimes. Furthermore, the obligation to prosecute certain crimes is applicable to war crimes, which all states that are a party to the Geneva Conventions are obliged to prosecute.
143. The jurisdiction of the ICC is based on the principle of complementarity, which allows the ICC to only investigate and prosecute an individual if a state is unwilling or unable to genuinely prosecute. For all rules regarding the exercise of jurisdiction by the ICC and for which crimes it can do so, see the Rome Statute of the International Criminal Court, which entered into force on 1 July 2002, via www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf.
144. Article 5 in conjunction with Article 8(2)(b) and (e) of the Rome Statute of the International Criminal Court.
145. Stahn, 'Rhetoric or Emerging Legal Norm?', op. cit., fn. 50, p. 117.
146. Ibid.
147. For a discussion on this, including the question whether states can and should take upon themselves the responsibility for these international organizations, see M. Tondini, 'Putting an end to human rights violations by proxy: Accountability of international organizations and member states in the framework of jus post bellum', in C. Stahn and J. K. Kleffner (eds), Jus Post Bellum. Towards a Law of Transition from Conflict to Peace (2008) 187-212.
148. One can think of the possibility of having a state's people decide which type and what amount of accountability they envisage. One can also think of an approach whereby perpetrators of crimes are not held legally accountable for these crimes when fully abiding by all jus post bellum rules in the post-conflict phase.
149. Molier, 'Naar Juridificering', op. cit., fn. 35, pp. 14-17.
150. Ibid., p. 17.
151. C. Stahn, 'Mapping the Discipline(s)', op. cit., fn. 16, 110-111.
152. Bell, Lex Pacificatoria, op. cit., fn. 29, pp. 144, 175, 260. Stimulation of enforcement of a peace agreement can take place by third parties with clear decision-making authority and enforcement powers, such as courts. Such third party implementation actions are broadly regulated through international law's own constitutional underpinnings. Such a peace agreement can have the form of a treaty, a constitution, domestic legislation or another type of agreement.
153. Ibid., pp. 163-164.
154. Ibid., p. 149.
155. The General Framework Agreement for Peace in Bosnia and Herzegovina. Paris, 14 December 1995.
156. Stahn, 'Rhetoric or Emerging Legal Norm?', op. cit., pp. fn. 50, 99-120, 110.
157. Stahn 2008, pp. 101-103.
158. Boon, 'Legislative Reform in Post-Conflict Zones', op. cit., fn. 85, p. 292.
159. Stahn, 'Mapping the Discipline(s)', op. cit., p. 336.
160. Orend, 'The Perspective of a Just-War Theorist', op. cit., fn. 41, p. 591. Orend has argued strongly in favour of creating a new Geneva Convention for the incorporation of new post-conflict problems and values.
161. United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. Report of the Secretary-General (August 2004).