The responsibility for post-conflict reforms: a critical assessment of jus post bellum as a legal concept.

• Author: De Brabandere, Eric

ABSTRACT

The increasing involvement of international actors in various forms of international missions set up to supervise reconstruction or peace-building processes has raised many questions with respect to both the legal framework applicable to such activity and the authority to engage in such reforms. Recently, new normative propositions on the subject have been labelled jus post bellum. This Article challenges the usefulness and accuracy of jus post bellum as a legal concept. Such theories either amount to an explicit or implicit challenge of the crucial objectivity of the post-conflict phase by linking the rights and obligations of foreign actors to the legality of the use of force, or they simply bring together previously existing obligations.

TABLE OF CONTENTS I. INTRODUCTION II. PEACEKEEPING, PEACEMAKING AND POST-CONFLICT PEACE-BUILDING III. AUTHORITY, TITLE AND LEGAL RESPONSIBILITIES IN POST-CONFLICT RECONSTRUCTION A. Sovereignty, the Security Council and Foreign Administration B. Belligerent Occupation and the Occupiers' Limited Authority IV. A CHALLENGE TO Jus POST BELLUM AS A LEGAL CONCEPT A. Linking the Legality of the Use of Force and (Post-Conflict) Peace-Building 1. The Independence of Post-Conflict Reconstruction 2. Jus Post Bellum and "Just Wars" B. The Legal Framework of Post-conflict Reconstruction: Jus Post Bellum as "Law after Conflict" 1. Rules, Principles and Restrictions on Peace Settlements 2. Rules and Principles of Post-Conflict Governance V. CONCLUSION I. INTRODUCTION

The reconstruction processes in Kosovo, East Timor, Afghanistan, and Iraq are some of the most important examples of comprehensive international efforts to rebuild societies emerging from years of conflict and civil strife. The emphasis that the United Nations and other international actors have placed on the post-conflict phase is a recent phenomenon in international law and clearly contrasts with previous "non-interventionist" approaches to conflicts in which the accent lay too much on negotiating and maintaining a ceasefire, with scant attention paid to addressing the very reasons behind the conflict. The increasing involvement of international actors in various forms of international missions to supervise reconstruction or peace-building processes has raised many questions regarding the applicable legal framework, in terms of both the rights and obligations of the actors involved in the post-conflict phase and the content of reconstruction and reform. (1) The increasing role of foreign states and international organizations in these processes is undeniable. However, scholars often claim that the focus on the activities in post-conflict scenarios has resulted in a "legal void" in the transition from war or conflict to peace because the traditional difference between the law applicable in war and the law applicable in peacetime is considered no longer relevant. (2) Several scholars have drawn attention to the need to move toward a distinct discipline on the law after conflict--jus post bellum--a systemic adaptation of the current division between the "law of war" and the "law of peace." Although jus post bellum resurfaced principally in political philosophy (3) and ethics, (4) international legal scholars have taken up the case for a renewed attention to and recognition of jus post bellum as legal concept. (5)

This Article challenges the existence and usefulness of jus post bellum as a legal concept. The importance of post-conflict reconstruction and the evolution of the United Nations' and states' policies geared toward tackling the root causes of conflicts are beyond doubt. The factual changes in the international law relating to the maintenance of peace and security and the need to tackle the rootcauses of conflicts are irrefutable. However, the suggested normative implications of this evolution are troubling. While some legal scholars claim that it is premature to include jus post bellum in the law relating to the use of force, (6) I argue that jus post bellum theories are detrimental to certain fundamental principles of international law and are not necessarily constructive in the current debate on post-conflict legal frameworks because they either amount to a challenge of the crucial neutral stance in the post-conflict phase or simply bring together already existing obligations under a new name.

Part II briefly depicts the factual context in which this debate must be situated, namely the evolution of dealing with post-conflict situations. Part III addresses the legal responsibilities and authority in post-conflict reconstruction. The analysis of the legal authority in post-conflict situations will evaluate the existing rules on responsibility for post-conflict reconstruction, namely the laws of occupation and the role of the Security Council. Part IV challenges existing conceptions of jus post bellum as a legal notion. Part IV.A addresses how such theories frequently link jus post bellum to the legality or "justness" of the use of force, leading to an explicit or implicit reintroduction of just war theories in international law. Part IV.B tackles the usefulness of jus post bellum as an "objective" notion pertaining to the legal framework containing rules and principles applicable to post-conflict peace building.

2. PEACEKEEPING, PEACEMAKING AND POST-CONFLICT PEACE-BUILDING

   United Nations mission mandates have substantially evolved throughout the years. The differences between the first "traditional" United Nations peacekeeping operations and cases such as Kosovo and East Timor reveal that the United Nations' role has evolved from the interposition of neutral military contingents in a conflict to the supervision of long-term, post-conflict reconstruction processes. Traditionally, the United Nations' task in conflict or post-conflict situations was limited to the deployment of military personnel and a limited number of civilian staff to assist or advise the existing governmental structures. (7) Recent peace-building or post-conflict reconstruction missions are the latest manifestation of the evolution in the approach toward situations presenting a potential threat to international peace and security. Operations in the 1990s underestimated the importance of political, economic, social, and civil reconstruction in building a sustainable peace. (8) The growing awareness of the interrelatedness of political affairs, economy, social services, and governance resulted in the gradual introduction of such elements in peacekeeping activities. A report by former Secretary-General Kofi Annan summarized the evolution from peacekeeping to peace-building as follows:

   While United Nations efforts have been tailored so that they are palpable to the population to meet the immediacy of their security needs and to address the grave injustices of war, the root causes of conflict have often been left unaddressed. Yet, it is in addressing the causes of conflict, through legitimate and just ways, that the international community can help prevent a return to conflict in the future. (9) The United Nations' experience in Cambodia in the 1990s can be seen as the starting point of this development. The United Nations Transitional Authority in Cambodia (UNTAC) was given a mandate with limited legislative power that included many aspects related to human rights--the organization and conduct of free and fair elections; military arrangements; limited civil administration; the maintenance of law and order; the repatriation and resettlement of Cambodian refugees and internally displaced persons; and the rehabilitation of essential Cambodian infrastructure. (10) Many subsequent operations--such as the second United Nations Operation in Somalia (UNOSOM II); (11) the United Nations Mission in Bosnia and Herzegovina (UNMIBH) in combination with a United Nations International Police Task Force (IPTF); (12) and the United Nations Transitional Administration for Eastern Slavonia (UNTAES)(13)--were equally granted some administrative and legislative powers.

   Within this evolution, international administrations hold a special place. The cases of Kosovo and East Timor are, to a certain extent, a culmination of this evolution since the United Nations has taken over the entire administration of a territory in post-conflict scenarios. (14) It is this particular type of operation that has prompted many discussions on the legal obligations of the United Nations and other international actors. Following NATO's armed intervention in Kosovo in March 1999, the Security Council adopted Resolution 1244 (1999), establishing the United Nations Interim Administration Mission in Kosovo (UNMIK). (15) Resolution 1244 called upon UNMIK to promote the establishment of substantial autonomy and self-government in Kosovo; perform basic civilian administrative functions; support the reconstruction of key infrastructure; maintain civil law and order; promote human rights; and assure the safe return of all refugees and displaced persons. (16) UNMIK's competences included full legislative and executive power in the areas of responsibility laid out in Resolution 1244. (17) A few months later, the Security Council authorized the establishment of the United Nations Transitional Authority in East Timor (UNTAET). (18) An earlier "popular consultation" among the East Timorese revealed a clear wish to begin a process of transitioning towards independence. (19) In the transitional process, UNTAET was endowed with overall responsibility for the administration of East Timor and empowered to exercise all legislative and executive authority, including the administration of justice. (20) In Afghanistan and Iraq, the United Nations was not granted any direct administrative powers. The Afghan post-conflict reconstruction process relied principally on local capacity with minimal international participation. (21) In Iraq, on the other hand, the occupying forces exercised...