In the Western world, that is, those of us fortunate enough to possess the right to life, liberty and the pursuit of happiness, our politicians run their foreign policy campaigns on platforms that are seen as promoting democracy to less fortunate countries by holding steadfast to our ideals and purposes as free nations. Our political leaders are strong on domestic issues. They are tough negotiators in foreign policy. They should speak softly and carry a big stick. They take a stance on Kosovo, Afghanistan and Libya. They work to ensure that terrorists are being captured and tried for war crimes. And we the constituents don’t question whether or not these actions and events that we see as triumphs are really helping promote these ideals of justice, liberty and freedom. Sure, engaging in war with nations that threaten democracy and executing individuals responsible for commanding orders for genocide demonstrates that, in the West, we don’t take these things lightly. But how much does putting one individual on international criminal trial affect the millions he knowingly ordered to be ostracized, forcibly relocated, humiliated, raped, corralled, and tortured? The media and popular culture are quick to report on news of when enemies of the state have been captured or killed, because the general public wants to see justice being served. But, justice goes one step further than that. By merely pointing the finger and placing the blame does not fix the underlying problem that these events have happened; though legally, these individuals are held responsible for their crimes against humanity, the status quo, what is happening in real time, has not been changed. The victims of these crimes are still suffering, and the international institutions look good saying that they have found the perpetrator guilty. What was done affects the lives of the millions of people and although there is a qualitative positive feeling that comes with convicting war criminals, justice is found in what steps are taken to help these people get to a state of peace and then reaching that state. It is two-fold, and no one talks about the uglier or messier side of it.
Throughout history, the innate need of humans to regulate ourselves in wartime is not new. Even as far back as Early Christian just war theory, St. Augustine, considered one of the first real just war thinkers, argued that, “Peace is not sought in order to provoke war, but war is waged in order to retain peace. Be a peacemaker, then, even by fighting, so that through your victory you might bring those whom you defeat to the advantages of peace.”[1] This puts peace as the main subject of why humans engage in war at all; peace is the end, and if war is the means to the end, then so be it. International humanitarian law (IHL), defined as the law of war or the law of armed conflicts, has been much debated particularly in the beginning of modern warfare and international relations. The numerous solutions and regulations from the Geneva Conventions to Hague Conventions have defined two main aspects of IHL. First, it involves the rules that regulate and limit the means and methods of warfare as written in the Hague Conventions. Second, it defines the rules of protecting victims as stated in the Geneva Conventions. If we are looking at wartime, loosely speaking, these two concepts seem to cover the bases. They discuss when it is legal to engage in war, how states and their soldiers must behave when engaging in war, what weapons are allowed, how to use them and how civilians are protected from danger. The first Geneva Convention in 1864 already included articles that framed the Condition of the Wounded in War that included soldiers at sea. Following that, the Hague Convention of 1899 began to limit the methods of warfare including the prohibition of projectile explosives from balloons.[2] Already before the turn of the 20th century, countries have understood the importance of regulating war on an international level.
But, although there are numerous guidelines surrounding the conduct of states and persons in warfare, our understanding of jus post bellum, that is, justice after war is comparatively new. There are three criteria for understanding the same topic of justice after war, and it is necessary to distinguish between them. Jus post bellum is the philosophical theory, international criminal law the actual law, and transitional justice the politics, with the philosophy grounding our understanding of the latter two. International criminal law was implemented in the creation of the first criminal bodies in the aftermath of World War Two. When the Allies held the International Military Tribunal at Nuremberg, more commonly known as the Nuremberg Trials in contemporary textbooks, the idea was to point fingers and punish the individuals responsible for the war, the Germans. The problem with this, however, was something called Victors’ Justice, as described by US Justice Robert H. Jackson, “that four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of law is one of the most significant tributes that power ever paid to reason.”[3] The winners dictated the law, and the law stated that crimes are violated by men, not “abstract entities” and the only way to enforce international law was to put individuals on trial for punishment. Obviously both sides committed war crimes, killed civilians and utilized unlawful means and methods against the enemy, but the Allies were not about to punish themselves. International criminal law is different from IHL, because IHL deals with before and during war (jus ad bellum and jus in bello), while international criminal law is after. Also, international criminal law only defines the rules and regulations of punishment and does not address the victims of war crimes. This is problem one: is international criminal law too narrow?
Since then and in more recent years, contemporary philosophers and lawmakers are replacing this type of punitive justice with areas of law that focus on restoration rather than pointing fingers. Defined as “a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future” by T. Marshall, restorative justice has been seen as the more useful and forward-thinking reaction to war crimes than punitive justice. A fairly new idea in the discussion of human rights, it is the body of politics that covers criminal prosecutions, reparations committees and truth commissions for the sake of healing a broken nation and its people and transitioning them to peace. More specifically, transitional justice, as the International Center for Transitional Justice defines it, is the following:
“Transitional justice is a response to systematic or widespread violations of human rights. It seeks recognition for victims and to promote possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse. In some cases, these transformations happen suddenly, in others, they may take place over many decades.”[4]
A few pieces are important to dissect here. First, the subject of transitional justice is the victim and the objective is to help guide states to a place of peace after conflict, an overall good notion. Second, they are clear to define transitional justice as an adaptation, not as a separate form of justice. This is because the range of processes in transitional justice can include but is not limited to judicial and legal bodies.[5] Most significant and third, there is no timeframe for transitional justice as each case is unique, with different players and problems. Here is problem two: how do we qualify the effectiveness of transitional justice when it lacks time as a measurement? At least when prosecuting war criminals, there is a definite end point from the time he is captured, tried to convicted, right?
Let’s take a step back. Where are we coming from when we are talking about “transition” and where are we going? What is “justice”? Fair questions. Since there is no time frame to distinguish when we have completed transitioning, Freeman and Djukic have used transition “to refer above all to the early period of a formal transition from war to peace or from authoritarian rule to democratic rule.”[6] This definition is somewhat ambiguous, but we emphasize the word “formal” which indicates a need for an official determination of start and finish, and in most situations, we require a body of law to set those parameters. So the first requirement of transition from wartime to peacetime is legality. Then “justice” must certainly involve a way for institutions to weigh different situations and to judge them fairly. The UN Secretary-General report of August 2004 described justice as:
“…an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant.”[7]
This is slightly wider than the definition of transition, because justice suggests that it is not limited to on legal and judicial rules of fairness. Justice implies that any methods for weighing right or wrong, moral or not is equally as important for preserving peace in societies. Putting it altogether, we see that “transitional justice” needs both a definite legal time frame as well as instruments to measure fairness.
Legally speaking, transitional justice and international law are both compatible and in direct conflict. In many ways, transitional justice compliments the antecedent to war, jus ad bellum, because in dealing with the aftermath of war, “transitional justice measures may take account not only the consequences of such conflicts, but also of the roles and motivations of their participants.”[8] In order to make reparations for victims, transitional justice looks at the factors prior to war. Moving forward, the objectives for both the 1949 Geneva Conventions and the Additional Protocols (1977) were to restrict the amount of suffering of those not involved directly or indirectly in war in addition to limiting the means and methods, the weapons and how they are used, of warfare. Those who violate the laws in bello are subject to penal measures post bellum. However, the tension between transitional justice and the established legal measures arises when discussing the law of occupation, when occupying powers have to follow a certain standard of obligations after war as dictated by the 1907 Hague Conventions.[9] The law gets messier depending on whether the occupying powers are there forcibly or benevolently. Because the law of occupation only allows for the exercise of force to be used when the territory is considered a threat, this creates a problem in cases of humanitarian intervention. In cases of maintaining order in failed states, sometimes force is needed to prevent further destruction, but law of occupation forbids the use of force in these situations. So, even if the use of force in the aftermath of war is within the laws of human rights and consistent with transitional justice, it would be violating existing jus post bellum laws.
Thus far, we’ve spoken little of the victims of war crimes. The International Criminal Court is the body that consists of 117 member states and sits permanently in The Hague. Governed by the Rome Statute, the ICC is a “court of last resort…[and] only tries those of the gravest crimes”[10] by prosecuting individuals for genocide, crimes against humanity, war crimes and crime of aggression. The Rome Statute defines victims as, “…natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court,”[11] so any matter of gravest crimes. More notably, a victim under law is a natural person but may also include organizations and institutions. This is very different from prosecution, because the ICC can only put individuals on trial, but they are allowed to grant organizations the status of victims and further amend the wrongdoings of war criminals.
The ICC has the power to “for the first time…to order a criminal perpetrator to pay reparation to a victim who has suffered as a result of the perpetrator’s criminal actions.” International human right law, though closely related to international humanitarian law, is different in that it governs and protects human rights, not just during wartime. Briefly, this means that victims of war crimes have the right to reparation from the ICC, and these include the right to[12]:
- Restitution: restoring of liberty and a return to how life was before
- Compensation: proportional to the “gravity of the violation and circumstances of each case,” whether it be monetary or material, physical or mental harm or lost opportunities (Principles, para. 19)
- Rehabilitation: “medical or psychological care as well as legal and social services” (Principles, para. 21)
Although not included in the ICC laws, two other cases for reparations are satisfaction and guarantee of non-repetition.[13] They are not material and cannot be promised by a legal body but are still innately important to victims of war crimes because they offer symbolic and intangible value that cannot make up for their loss.
So conceptually, we see the major issues. First, that it is difficult to discern which lens to view criminality because as the paradox goes, whichever side wins is right and can punish the loser. It is not always based on morality, but purely a winner-loser game. Second, there is no time frame for transitional justice, which is entirely problematic. As we see countries failing to reach peace, we cannot determine if it is on course without looking at each situation case by case. Third, with its foundation still relatively new in the realm of human rights and just war theory and laws, jus post bellum and transitional justice are both in tension and complimentary. However, despite these issues, we can see the institutions and practices in place that are positively contributing to transition.
Just as the West has decided the course of the world’s politics, business and popular culture, a standard for justice and democracy is propounded onto the rest of the world. International crises are dealt with in strict, and sometimes inefficient, parameters with legal regulations and formal treaties, trials, courts and statements that involve countless parties including governments, global institutions and non-state actors – all for the sake of preserving liberty and fighting wars against enemies of the state. And even though we know that humans have engaged in war since antiquity and that the learned, philosophers and political scientists alike, have dedicated their lives to debating when it is legal to provoke war, what is acceptable in the conduct of war and how to deal with criminals of war, we as the learners miss the piece that is lacking in attention. And it’s not innately obvious either. Legally, jus post bellum and transitional justice are imperfect. From the idea of victors’ justice, that the winning side determines the punishment of the losing side, to the nature of reparations from the International Criminal Court, justice after wartime is in need of more attention particularly when are goal is peace.
As members of a global society, we can play our part, too. Instead of rejoicing over Facebook and Twitter about the killing of Osama Bin Laden, we need to start thinking about why, what and how more often. Why are we celebrating? What are we fighting for? If the goal is to bring peace to the nations of the world, how do we move from conflict to non-conflict?
A lofty question, but then again, Rome wasn’t (re)built in a day.
For further reading, I suggest Jus Post Bellum: Towards a Law of Transition From Conflict to Peace, a collection of academic essays edited by Carsten Stahn and Jann K. Kleffner.
[1] S. K. Sharma, “Reconsidering the Jus Ad Bellum/Jus In Bello distinction,” Jus Post Bellum.
[2]International Committee of the Red Cross
[3] J. Baptiste, War in International Order, King’s College London.
[4] International Center for Transitional Justice
[5] UN Doc. S/2004/616, 23 Aug 2004, para. 8.
[6] Freeman and Djukic, “Jus Post Bellum and Transitional Justice,” 214.
[7] UN Doc. S/2004/616, 23 August 2004, para. 4.
[8] Freeman and Djukic, 219.
[10] International Criminal Court
[11] Rules of Procedure and Evidence, art. 85, Rome Statute, 1998.
[12]UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005.
[13] Pablo De Greiff, The Handbook of Reparations
