In contemporary practice, it is not enough to establish that the motives which lead up to the recourse to force pursue a lawful and commonly accepted purpose. The acceptability of an intervention is equally measured by its effects and implications after the use of armed force. A legal connection between the use of force and post-conflict engagements may be construed in at least two ways. The performance of post-conflict engagements may either be a building block of the legality of liberal interventions or a means to render the consequences of an unauthorized use of force more acceptable in the international legal system.
Both humanitarian and democratic interventions are directly founded on the idea of peace-making through the restoration of human rights and standards of good governance. This obligation is derived from the very requirements of liberal interventions and considerations of proportionality of the use of force.
Jus In Bello
It is more difficult to establish a link between the use of force and post-conflict engagement in the context of unauthorized interventions. There is some ground to argue that the issue of the legality of the use of force and the conduct after intervention should be kept entirely apart in such cases. Both lines of thought confirm one common trend, namely a growing interweaving of the concepts of intervention and the restoration of peace.
Some interventions appear to require subsequent post- conflict engagement, in order for their outcomes to be recognized as valid or acceptable. This finding lends support to the view that considerations of post- conflict peace should form part of the architecture of the law of armed force. Calls for an expanded conception of the law of armed force are by no means novel.
The plea for a tripartite conception of rules of armed conflict has some precedents in legal history. Francisco Suarez, for example, argued in favour of extending the just war categories to a third period, namely the ending of justly declared and fought wars. Furthermore, he formulated post-conflict principles based on necessity concerning war reparation, the fate of property rights after war and the treatment of the conquered state.
A more refined account of the forms and conditions of conflict termination was given only four years later by Hugo Grotius, who secularized just war theory in his De Jure Belli ac Pacis. It set out general principles concerning the formation, the effect, and the execution of peace treaties, which were designed to serve as guidelines for the conduct of sovereign actors.
This thinking was later developed by Immanuel Kant, who may be counted as one of the conceptual founders of a tripartite conception of warfare. Kant identified a number of parameters, according to which peace should be shaped. Kant emphasized that peace settlements must respect the sovereignty of the vanquished state and the self-determination of its people, foreshadowing thereby some of the key features of modern peace-making. This holistic understanding of the use of armed force gains new relevance in a modern context.
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First, the concept of a fair and just peace must be decoupled from the historical understanding which associated fairness with the idea of justice in favour of the party which had fought a just and lawful war being a war which was waged for the right reasons and fought in an appropriate manner. Today, considerations of fair and just peace must be deemed to apply equally to all parties to a conflict.
Second, the applicability of principles of post-conflict peace can no longer depend exclusively on moral considerations, such as righteousness of waging war. The concept of a fair and just peace must be framed by reference to certain objective rules and standards that regulate guidelines for peace-making in the interest of people and individuals affected by conflict.
Third, peace-making is not strictly aimed at a preservation or return to the legal status quo ante , but must take into account the idea of transforming the institutional and socio-economic conditions of polities under transition. In this sense, peace-making differs from the classical rationale of the law of occupation. The ultimate purpose of fair and just peace-making is to remove the causes of violence. This may require positive transformations of the domestic order of a society. In many cases, a fair and just peace settlement will ideally endeavour to achieve a higher level of human rights protection, accountability and good governance than in the period before the resort to armed force.
However, the classical rationale behind the notion of jus post bellum , namely the idea of regulating the ending of conflicts and easing the transition to peace through certain principles of behaviour, is highly relevant in the context of international law in the 21st century. It may be argued that the classical concepts of jus ad bellum and jus in bello are complemented by a specific set of rules and principles that seek to balance the interests of different stakeholders in transitions from conflict to peace.
Under this construction, armed force must not only be lawful under the law on the recourse to force and in keeping with the rules of jus in bello but must also satisfy certain rules of post- conflict settlement. The regulation of substantive components of peace-making is not merely determined by the discretion and contractual liberty of the warring factions, but is governed by certain norms and standards of international law derived from different fields of law and legal practice.
Just a few examples suffice to illustrate this argument here. It would go beyond the framework of this contribution to present a conclusive account of rules and principles of post-conflict peace. However, six organizing rules and principles may be presented here by way of an example.
These principles share some parallels with the parameters of just peace under the just war theory right intention, legitimate authority for a peace settlement; discrimination and proportionality of the terms of peace , 95 without being identical to the latter. They may be derived from a comparative survey of international law and practice in the three major eras of peace settlements: namely , and the post-Cold War era. Firstly, there is some evidence that the establishment of sustainable peace requires a collective bargaining process, involving a fair hearing of the interests of all parties to the conflict at the negotiating table.
At the time of the Treaty of Versailles, the terms of peace were essentially set by a bargaining process amongst the victors over the rights and obligations of the vanquished. Today, such conduct would conflict with certain standards of peace-making. Article 34 of the Vienna Convention on the Law of Treaties posits that a peace treaty does not bind states that did not consent to its terms. Accordingly, no single state and no group of states may unilaterally make binding determinations for a third state.
Moreover, modern practice points towards a neutralization of interests in the bargaining process. If the defeated entity is not present at the negotiation of the peace settlement itself, its interests should be determined by a collective forum with third-party input. Similar considerations of fairness apply in favour of groups and minorities protected by international law by virtue of the right to self-determination and autonomy rights.
These groups may be represented by state entities in treaty negotiations. However, they are entitled to an adequate representation of their collective interests in a constitutional settlement regulating their status. Secondly, international practice since indicates the replacement of the harsh concept of territorial punishment for purposes of deterrence by the more moderate techniques of state responsibility, disarmament and institutional security arrangements. The only organ which could theoretically take punitive measures against states that have placed themselves outside the community of peace-loving and law-abiding nations, is the Security Council.
Such action conflicts with the limits of the Security Council under Article 24 of the Charter, including the recognition of territorial integrity and the principle of self-determination. Moreover, less intrusive post-conflict measures, such as reparation, disarmament and adjudication of war crimes, are usually at hand and better suited to serve the purpose of peace-making which guides the exercise of powers by the Council under the Charter.
A similar trend towards moderation in the treatment of an aggressor may be traced in the area of reparations.
Harsh financial loads may not only make a people accountable for misdeeds of an irresponsible regime, but amount to the collective punishment of an entire population. One of the lessons emerging from the practice of peace treaties is that reparation and compensation claims must be assessed in light of the economic potential of the wrongdoing state and its implications for the population of the targeted state.
Similarly, there is a move from collective to individual responsibility. This principle prohibits collective punishment, that is, punishment of persons not for what they have done, but for the acts of others; furthermore, it establishes the general rule that individuals are punished for their own wrongdoing, and not on behalf of the state. Fifthly, there is a trend towards accommodating post-conflict responsibility with the needs of peace in the area of criminal responsibility.
This specific tension did not receive broad attention in historical peace settlements, partly because the concept of international criminal responsibility was less developed, and partly because peace settlements were less frequently dedicated to the resolution of the problems of civil wars. Today, it is at the heart of contemporary efforts of peace-making.
Modern international practice, particularly in the context of United Nations peace-building, appears to move towards a model of targeted accountability in peace processes, which allows amnesties for less serious crimes and combines criminal justice with the establishment of truth and reconciliation mechanisms.see
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Moreover, a broader notion of internal self-determination has emerged since World War II, which links the protection of a people under international law to the enjoyment of institutional rights such as autonomy of federalist structures in the domestic legal system.
These few examples indicate that that there are certain macro-changes in the conception of peace-making. Modern practice displays a stark tendency to move from a statist and national-interest driven conception of conflict termination to a pluralist and problem-solving approach to peace-making, uniting affected parties, neutral actors and private stakeholders in their efforts to restore sustainable peace. The recognition of a tripartite conception of the law of armed force would serve several purposes.
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It would fill, first of all, a certain normative gap. At present, there is a considerable degree of uncertainty about the applicable law, the interplay of different structural frameworks as well as the possible space for interaction between different legal orders and bodies of law international law v. The articulation of a body of law after conflict would identify legal rules, which ought to be applied by international actors unless an exception applies and clarify specific legal principles, which serve as guidance in making legal policy choices in situations of transition.
Secondly, the revival of a tripartite conception of armed force has a certain systemic function. The recognition of rules and principles of post-conflict peace would establish a closer link between the requirements of the use of force and post-conflict responsibilities in the context of intervention. Under a tripartite conception of the law of armed force, international actors might be forced to consider to a broader extent the impact of their decisions on the post-conflict phase, including modalities and institutional frameworks for peace-making, before making a determination whether to use force.