International Territorial Administrations and Post-Conflict Reforms: Reflections on the Need of a Jus Post Bellum as a Legal Framework
Revue Belge de Droit International / Belgian Review of International Law, Vol. 44, No. 1-2, pp. 69-90, 2011
15 Pages Posted: 15 Nov 2012
Date Written: June 14, 2012
The reconstruction processes in Kosovo, East Timor, Afghanistan and Iraq are some of the most important examples of comprehensive international efforts aimed at rebuilding societies emerging from years of conflict and civil strife. The increasing involvement of international actors in various forms of international missions set up to supervise such reconstruction or peace-building processes has nevertheless raised many questions in respect of the applicable legal framework, both in terms of the rights and obligations of the actors involved in the post-conflict phase, as in terms of (limitations to) the contents of reconstruction and reform.
It has become trite to claim that the increasing attention to post-conflict reconstruction and the creation of international administrations to oversee this process has resulted in a «legal void» in the transition from war or conflict to peace. This 'void' would then be filled through recourse to a «law of transition from war to peace», a jus post bellum. In contemporary research, just post bellum is used in several ways, in more than a few disciplines. It is thus difficult to grasp such a notion, let alone to use it as an (emerging) legal concept. On the whole, modern analyses of jus post bellum can be grouped into two different clusters. The first category of jus post bellum theories focus on the legal holder of obligations in the post-conflict phase, and thus on the «inherent» link between post-conflict obligations and the use of force. The main objective then is to redistribute the obligations of states and international organizations towards the states or territory in which the reconstruction process takes place. States and international organizations which have actively participated in the jus ad bellum stage of a conflict could thus be endowed with special compulsory responsibilities in the post-conflict scenario. In a sense, such arguments tie rules relating to which actor should be involved in post-conflict reconstruction with rules in respect of what is allowed in post-conflict reconstruction. The second category understands jus post bellum as a legal framework applicable in the transition from war to peace. Jus post bellum would thus be a corpus of legal rules and principles as a complement to jus ad bellum and jus in bello. The contents of that legal framework would include not only positive obligations such as the holding of trials to try serious crimes committed by former regimes, but would also encompass rules pertaining to the conduct in the post-conflict reconstruction process of states which have participated in the armed conflict or of international organisations involved in the post-conflict phase, i.e. rules relating to the way in which the authority and the mandate should be exercised.
Keywords: jus post bellum, post-conflict, international territorial administration, peace and security
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