Legislative reform in post-conflict zones: jus post bellum and the contemporary occupant's law-making powers.

• Author: Boon, Kristen

This article distinguishes the traditional concepts of jus ad bellum and jus in bello (law of war and law in war) from the new doctrine of jus post bellum (law of post-war reconstruction). The author examines jus post bellum in light of the recent non-consensual legal reforms in Iraq, Kosovo, and East Timor to demonstrate how international bodies and coalitions are increasingly assuming legislative functions, legitimately and otherwise, in the context of their duties as interim administrators. The large degree of discretion conferred upon these administrators does not always ensure adequate levels of trusteeship, accountability, and proportionality, which are integral to the stability of post-conflict zones. The author contends that a distinct jus post bellum framework that incorporates these principles of justice would allow for a more systematic and comprehensive approach to legal reform in occupied territories, which would in turn facilitate the transition to legitimate self-government.

Cet article distingue les concepts traditionnels de jus ad bellum et de jus in bello (le droit a la guerre et le droit darts la guerre) de la nouvelle doctrine du just post bellum (droit de la reconstruction apres la guerre). L'auteur se penche sur le jus post bellum suite aux reformes juridiques non consensuelles en Irak, au Kosovo et an Timor oriental pour montrer comment les coalitions et organes internationaux s'attribuent de plus en plus souvent des fonctions legislatives--legitimement ou non--parmi leurs taches en tant qu'administrateurs interimaires. Le degre eleve de discretion dont beneficient ces administrateurs ne garantit pas toujours des niveaux adequats de saine gestion, de responsabilite et de proportionnalite, essentiels a la stabilite de territoires qui ont ete le theatre d'un conflit. L'auteur avance qu'un cadre de jus post bellum distinct incorporant ces principes de justice conduirait a une approche plus systematique et complete a la reforme juridique dans les territoires occupes, ce qui a son tour faciliterait la transition vers un gouvernement autonome legitime.

Introduction: Ethics and Law Making in Occupied Territories A. Two Distinctions: Identity of the Actor and Nature of the Intervention B. Jus Post Bellum C. The Rule of Law and Some Principles of a Jus Post Bellum 1. Trusteeship 2. Accountability 3. Proportionality II. The Context of Law Making in Post-conflict Zones and Occupied Territories III. The Authority of International Actors to Alter Domestic Laws and Legal Systems A. The Legislative Capacities of Occupying Powers B. The Ineffectiveness of the Legislative Provisions of the Laws of Occupation and the Principles of Jus Post Bellum C. The Contemporary Occupant: The CPA in Iraq D. The Legislative Capacities of the UN Civil Administrations: UNMIK and UNTAET E. The Scope of the Legislative Power of the UN Missions F. Jus Post Bellum Principles in the UN Missions IV. Legal Reform and Proportionality V. Conclusion I. Introduction: Ethics and Law Making in Occupied Territories

Legal reform in occupied and administered territories has become a key element in post-intervention reconstruction plans. In Kosovo, East Timor, and Iraq, international organizations, occupying powers, and private "hired guns" are taking on the business of law making. The legitimacy and success of post-conflict interventions are closely linked to the ability of the intervening powers to establish functioning legal systems and to ensure law and order. As the United Nations secretary-general stated in his 2004 report on the rule of law in post-conflict zones, "Justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives." (1) Where this exercise has failed, the legitimacy and authority of interim international administrations have faced serious challenge. (2)

The expanding role of international players in the reform of domestic legal systems demonstrates a shift away from what was traditionally an essential attribute of sovereignty: the exclusive right of a sovereign to make laws within its jurisdiction. (3) This article surveys the legal reforms that have taken place in the contemporary occupations in Kosovo, East Timor, and Iraq in order to demonstrate how international actors are increasingly operating within this area of state domain. Because legal reform in post-conflict zones is now central to the reconstruction effort, I argue that a more coherent legal and ethical framework--a jus post bellum based on the principles of trusteeship, accountability, and proportionality--is required to establish the rule of law in the context of interim international administrations.

1. Two Distinctions: Identity of the Actor and Nature of the Intervention

   Two categories related to legal interventionism must be distinguished at the outset. First, this article examines two different legislative actors: the belligerent occupant bound by the laws of war, such as the Coalition Provisional Authority ("CPA") in Iraq, and the multilateral interim administration or "functional occupant", such as the UN Missions in Kosovo and East Timor. (4) The differing scopes of legislative powers accorded to each is analyzed in Section III.

   Second, two types of intervention must be differentiated: consensual and nonconsensual intervention. National sovereignty is not infringed where foreign legislative intervention is consensual because the consent acts as a source of privilege for the actions taken by a foreign state. (5) In the wake of political transformations in Eastern Europe and South Africa, for example, armies of lawyers, judges, and legislative experts were invited to assist in redrafting national laws and constitutions. Similarly, the UN Chapter VI operations in El Salvador ("ONUSAL") and Cambodia ("UNTAC"), which reshaped aspects of the legal and judicial systems, took place at the invitation of those states. (6) The success of these missions has in fact been attributed to enhanced state consent in the process of reconciliation, rehabilitation, and self-determination. (7)

   Non-consensual legal interventionism (where a state does not consent to foreign law making) does impinge upon national sovereignty. (8) This is because the territorial state is administered by a temporary legal representative that does not assume the state's sovereignty. (9) After Saddam Hussein's government was ousted in Iraq, for example, the United States and the United Kingdom created a temporary occupation government, the CPA, which was accorded certain powers pursuant to the Geneva Conventions and Security Council Resolutions. The sovereignty of the state of Iraq was retained (or "embodied") by the Governing Interim Council ("GIC"). (10) The UN's interventions in Kosovo and East Timor were similarly non-consensual. Acting under Chapter VII of the UN Charter, the Security Council established the United Nations Mission in Kosovo ("UNMIK") and the United Nations Transitional Administration in East Timor ("UNTAET") without the consent of the territorial sovereigns, namely the Former Yugoslavia (today Serbia-Montenegro) and Indonesia respectively. (11)

   This article focuses on cases of non-consensual legal reform in order to explore the outer limits of international intervention in domains normally reserved to the state. These developments add fodder to the already well-established canon that traditional notions of the sanctity of state sovereignty are dissolving. More importantly, recent examples of international legal reform show how international legislators can operate with nearly untrammeled discretion, above the checks and balances that the rule of law ordinarily requires. While the focus of this article is on non-consensual legal reform, its recommendations are applicable to a range of contemporary situations, including peace treaties concluded under Chapter VI of the UN Charter which often leave open-ended issues (including legal reform) to the discretionary authority of the interim administrators. (12)

2. Jus Post Bellum

   To date, the literature on ethics and the rule of law in the context of post-conflict legal reconstruction has been sparse and the issue remains under-theorized. In Just and Unjust Wars, Michael Walzer addressed questions of post-conflict reconstruction, largely in the context of peace settlements. (13) He returned to reconstruction after the invasion of Iraq. In an essay entitled "Just and Unjust Occupations", he states that "we need criteria for jus post bellum that are distinct from (though not wholly independent of) those that we use to judge the war and its conduct." (14) Where the literature exists, it has sometimes proceeded by grafting aspects of the "just war" rules of initiating war and the "just war" law of conduct in war onto the post-war context of the so-called "just peace". (15) Jus post bellum, or the justice of post-war settlements and reconstruction, is assumed to draw on similar principles as jus ad bellum (law of war) and jus in bello (law in war). (16) In my view, the question that requires analysis in the post-conflict reconstruction phase is whether the exercise of law-making authority by international administrations is legitimate, just, and ethical. This proposed separation of doctrines requires explanation.

   First, as a matter of principle, there is no necessary link between the principle of justice as it applies to the cause of war, conduct in war, or reconstruction after war. For example, international humanitarian law clearly separates the reasons for war from the rules of conduct in war. As Adam Roberts explains, "international law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territory." (17) Similarly, Common Article 2 of the Geneva Conventions states that the Conventions apply to all cases of declared war or other armed conflict, even if the state of war is not...