Jus Post Bellum: Towards a Law of Transition From Conflict to Peace

, by Edited by Carsten Stahn , Jann K. Kleffner

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ISBN: 9789067042727 | 9067042722
Cover: Hardcover
Copyright: 7/14/2008

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Warfare is usually theorised in the categories of jus ad bellum (justification for recourse to force) and jus in bello (rules applicable in armed conflict). The challenge of establishing fair and sustainable peace after conflict (jus post bellum) has received less attention in existing law and practice, although it has an established tradition in just war theory. This book sheds a fresh light on the use and relevance of the concept of jus post bellum in contemporary international law and policy. It examines the origins and foundations of the concept from an inter-disciplinary perspective. Moreover, it identifies some of the features and challenges of a framework governing transitions from conflict to peace, such as the treatment of sovereignty, accountability and local ownership, the relationship of jus post bellum to jus ad bellum and jus in bello and the role of human rights law and transitional justice.

Foreword	p. V
Summary of contents	p. VII
List of abbreviations	p. XV
Introduction: From Here to There ... and the Law in the Middle	p. 1
Foundations of a Jus Post Bellum
Reconsidering the Jus Ad Bellum/Jus In Bello distinction	p. 9
Introduction	p. 9
Evolution of the Jus Ad Bellum/Jus In Bello distinction	p. 11
Early Christian Just War theory	p. 11
The medieval scholastics	p. 13
Bellum Justum to Bellum Legale	p. 15
The revival period	p. 17
The Ad Bellum/In Bello distinction reconsidered	p. 19
The 'legalist paradigm'	p. 19
Problems with application	p. 22
Jus Ad Bellum versus Jus In Bello	p. 22
The 'checklist approach'	p. 24
Misinterpreting criteria	p. 25
Undermining the Jus In Bello	p. 26
Conclusion: Towards a Jus Post Bellum?	p. 29
Jus Post Bellum: A Just War Theory Perspective	p. 31
Introduction	p. 31
Explaining the Historical Rejection	p. 33
Kant's Contribution	p. 34
The Case for Having, and not Ignoring, Jus Post Bellum	p. 35
Suggested Principles of a Jus Post Bellum in General	p. 37
Rights vindication	p. 40
Proportionality and publicity	p. 40
Discrimination	p. 41
Punishment	p. 41
Compensation	p. 41
Rehabilitation	p. 41
Suggested Principles for Forcible Post-War Regime Change in Particular	p. 42
The goal of justified regime change	p. 42
The process for achieving the goal	p. 45
Conundrums and Challenges	p. 49
Who should be in charge?	p. 49
Resistance	p. 51
Knowing versus doing	p. 52
Conclusion	p. 52
Two Emerging Issues of Jus Post Bellum: War Termination and the Liability of Soldiers for Crimes of Aggression	p. 53
The Need for a Theory of Just War Termination	p. 53
The Scope of Bellum Terminatio Law	p. 56
Post Bellum Justice: The Liability of Soldiers for Ad Bellum Crimes	p. 62
The self-defense argument	p. 63
The responsibility argument	p. 64
The proportionality argument	p. 66
The consequentialist argument	p. 67
Two Forms of Asymmetry	p. 68
A Contractarian Argument	p. 69
Conflict Termination and Peace-making in the Law of Nations: A Historical Perspective	p. 77
Introduction	p. 77
The Old Jus Post Bellum - The Medieval Jus Victoriae	p. 77
The Decline of the Jus Victoriae	p. 81
After the Great War	p. 85
General Considerations - and a Look Towards the Future	p. 88
Jus Post Bellum: Mapping the Discipline(s)	p. 93
Introduction	p. 93
Jus Post Bellum as a Domain of Legal Scholarship	p. 95
Causes of scholarly disregard	p. 95
The case for renewed attention	p. 98
Erosion of the war/peace dichotomy	p. 99
International practice	p. 99
On the use of a jus post bellum	p. 101
Closing a normative gap	p. 101
Closing a systemic gap	p. 102
Reconfiguring jus in bello	p. 102
The Scholarship Agenda	p. 103
The meaning of the concept	p. 103
Foundation	p. 103
Beyond morality	p. 103
Law v. law	p. 105
Scope of application	p. 105
The content	p. 107
Jus post bellum in operation	p. 110
Conclusion	p. 112
Contemporary Challenges of a Jus Post Bellum
Challenges of Post-Conflict Intercession: Three Issues in International Politics	p. 115
Introduction	p. 115
The Challenge of Sovereignty	p. 116
Rule of Law	p. 120
Distributive Justice	p. 126
Conclusion	p. 129
From Intervention to Local Ownership: Rebuilding a Just and Sustainable Rule of Law after Conflict	p. 131
Introduction	p. 131
A Closer Look at Local Ownership	p. 133
The local ownership debate	p. 133
Who are the local owners?	p. 138
Dilemmas of local ownership	p. 142
Obstacles to Local Ownership	p. 145
Local ownership in corrupt and criminalized environments	p. 145
Potential and limitations of traditional justice	p. 149
Concluding Remarks	p. 151
The Relevance of Jus Post Bellum: A Practitioner's Perspective	p. 153
Introduction	p. 153
Occupation	p. 154
Use of Force	p. 156
Detention	p. 158
Criminal Justice	p. 159
Conclusion	p. 162
Are Human Rights Norms Part of the Jus Post Bellum, and Should they Be?	p. 163
Introduction	p. 163
Key Issues at Stake	p. 164
Should human rights law apply?	p. 164
Methodological challenges	p. 167
Does it apply?	p. 168
What is the threshold test?	p. 171
Interface with other areas of law	p. 172
How it is to be understood in the extraterritorial context	p. 172
The Principled Case for Extraterritorial Applicability	p. 173
Introduction	p. 173
First general principle: double standard	p. 173
Second general principle: indirect discrimination on grounds of nationality	p. 174
Third general principle: the 'legal black hole'	p. 175
Conclusion on the policy considerations in the case law	p. 185
Conclusion	p. 185
Putting an End to Human Rights Violations by Proxy: Accountability of International Organizations and Member States in the Framework of Jus Post Bellum	p. 187
Introduction	p. 187
The Principle of Accountability of International Organizations	p. 189
Accountability of United Nations and Member States Participating in Peace Operations	p. 194
Violations committed by military contingents and concurrent responsibility of sending states	p. 196
Human rights violations made by police or civilian personnel	p. 199
UN accountability in practice	p. 202
The Role of the European Court of Human Rights: from the European Legal Space to the Creation of New 'UN Safe Havens'	p. 206
Conclusion	p. 211
Jus Post Bellum and Transitional Justice	p. 213
What is Transitional Justice?	p. 213
Roots	p. 213
'Transition' and 'justice'	p. 214
Dilemmas	p. 215
Mechanisms	p. 216
Legal doctrine	p. 218
Conclusion	p. 218
Transitional Justice and Jus ad Bellum/Jus in Bello	p. 219
Links between transitional justice and the existing legal framework	p. 219
Limitations of jus in bello from a transitional justice perspective	p. 221
Transitional Justice and a Tripartite Conception of the Law of Armed Force	p. 223
Introduction	p. 223
The relationship between jus ad bellum, jus in bello and jus post bellum	p. 224
Jus post bellum rules and principles	p. 224
Jus post bellum exigencies	p. 225
Jus post bellum's material and temporal scope of application	p. 225
Carriers of jus post bellum obligations	p. 226
Concluding Remarks	p. 226
The Future of Jus Post Bellum
The Future of Jus Post Bellum	p. 231
The 'Moral' versus the 'Legal'?	p. 231
Definition and Conception of Jus Post Bellum	p. 233
Risks	p. 234
Categorization	p. 234
Means and methodologies	p. 235
The Scope of Regulation	p. 236
Index	p. 239
Table of Contents provided by Ingram. All Rights Reserved.

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Jus Post Bellum: Towards a Law of Transition From Conflict to Peace

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Jus Post Bellum: Towards a Law of Transition From Conflict to Peace

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