The Concept of Jus Post Bellum in International Law

Abstract

This chapter examines the usefulness and accuracy of jus post bellum as a legal concept. It argues that the concept presents a challenge to the objectivity of the post-conflict phase by linking the rights and obligations of foreign actors to the legality of the use of force, or by bringing together already existing obligations. It questions to what extent there is a legal void to which the concept would respond. It further discusses dilemmas that the concept may pose in relation to the ad hoc and neutral character of post-conflict reconstruction, including existing rules on responsibility for post-conflict reconstruction.

Jus Post Bellum

“…"35 However, for him, such a conception would mean that jus post bellum "simply brings together already existing obligations under a new name,"36 without any "added value from a purely legal perspective." 37 Based on the discussed elements, this approach offers important insights to understand jus post bellum in systemic terms. The disparate set of rules applying in transitional contexts requires some integration.…”

Jus Post Bellum Viewed from the Colombian Transition

“…"41 Also on this topic, Orend proposes a principle of rehabilitation of the capacities affected by conflict, 42 Coady a principle of rebuilding and reconstruction, 43 and De Brabandere a principle of reconstruction for the benefit of the population. 44 This principle embodies two kinds of obligations: first, the obligation to reconstruct physical infrastructure and institutional capacities affected during the hostilities; and second, the obligation to address the root causes of conflict and transform the conditions that led to armed confrontation. As such, the principle conveys the idea of both reconstruction and transformation.…”

International Law and Transition to Peace in Colombia

“…32 Having this background, the concept of jus post bellum had only entered into the academic debate at the beginning of the 21st century, after the USled interventions in Iraq and Afghanistan. 33 This contemporary discussion on jus post bellum has been held within the framework of two disciplines: moral Introduction 9 philosophy and international law. 34 The first has been focused on the moral obligation of reparation and reconstruction in the aftermath of a military intervention, under the just war theory.…”

“…Subsequent works have considered this proposal of principles as a solid basis to develop the content of jus post bellum. 44 From the perspective of international law, Thürer and MacLaren were the first authors to address the issue in 2005. In an article, entitled 'Ius Post Bellum' in Iraq, they analyzed the role of the concept to improve the application of ihl in the occupation and post-occupation period in Iraq.…”

“…"62 And, in 2017 Iverson sustained that the concept "remains comparatively under-theorized, and frequently referenced without realizing that many authors be talking past each other, meaning different things while using the same term." 63 Having this background on the scholarly debate of jus post bellum, this study is aimed at offering an empirical analysis of the concept by testing its theoretical development in practice throughout a relevant case study.…”