Transitional Justice, Jus Post Bellum and International Criminal Law: Differentiating the Usages, History and Dynamics

Abstract

This article argues that without an attempt to clarify the distinctions among transitional justice, jus post bellum and international criminal law, none of these concepts will reach its potential. If transitional justice is made so elastic as implicitly to absorb international criminal law and jus post bellum, this lessens the potential value of transitional justice as a discrete, focused practice. What role each concept can play depends in part on when one asks the question. Transitional Justice is particularly useful in consolidating a new, human-rights-centered regime. Jus post bellum applies throughout the transition to peace. International Criminal Law on principle takes an unchanging stance with respect to determining criminal culpability. The article provides an empirical analysis of the usage of each phrase and reviews the historical foundations of each term. It then proceeds to analyzes the dynamics of each concept, that is, how each idea operates in practice over time. The article concludes by applying the theoretical considerations in Parts II and III to a concrete example: analyzing how these concepts could have been applied to work together in recent Cambodian history. The opportunity cost of failing to accurately perceive and pursue the goals driving each of these concepts is immense, and can only be remedied by a clear-headed, objective analysis of the underlying purpose and potential of each concept.

Keywords: international criminal law, jus post bellum, prosecutions, Cambodia, ECCC