The Erosion of War and Peace in International Law

From the AALS Panel on The Concept of Peace in Law, Culture and Society:

International Law Beyond War and Peace

RutiTeitel, Straus Fellow, NYU Law School (2012-2013); Ernst C. Stiefel Prof of Comparative Law, NY Law School

In general, in international law, the distinction between the state of war and the state of peace is becoming less relevant, or at least less determinative of the applicable legal norms. This produces new challenges of interpretation and new trade offs in the relation between law and politics.

Teitel, Humanity's Law

The following are three illustrations of what has been happening.

1. First is the question of when does international criminal justice come into the picture?  At Nuremberg, international criminal responsibility was conceived as fundamentally part of ius post bellum, something that occurs at the end of hostilities.  In a way, it took the place of the kind of collective punishment that became questionable in the wake of the Versaille Treaty.

Today international criminal justice has a transformed functionality, coming into play during conflict, before the peace, and even ex ante (the case of Libya, where referrals to the ICC preceded military intervention in the conflict); indeed it is used as means of regulating conflict itself. We don't need to know whether conflict has ended.

This began with the Balkans war where the International Criminal Tribunal for the former Yugoslavia (ICTY) was created during the conflict by the Security Council and where its jurisdiction to create a tribunal was its peacemaking powers under the UN Charter chapter 7, and where the very stated aim of the law is to regulate the conflict and to restore the peace. Since then this has been reiterated in the ICC Statute.

The introduction of international criminal law during conflict raises the peace versus justice dilemma. What if the prospect of criminal justice intensifies the conflict or makes peace negotiations more difficult (e.g. Quaddaffi in Libya?)? The flip side is the politicization of law, where criminal prosecutions or the threat of them is used to achieve specific strategic political objectives such as may well have been the case vis avis Milosevic’s indictment at the time of the Dayton negotiations.

The second illustration is that it is now rather well established that international human rights law does not apply only in peacetime.

Continue reading below the fold.

Here consider the treatment of this matter by the International Court of Justice (ICJ) in its advisory opinion on the security fence between Israel and the territories; whether and which norms -- human rights or humanitarian law -- apply cannot be determined simply on the basis of whether there is peace or war, and if war, internal or international conflict. Obviously, the determination of the existence of a state of war is still important to how these norms or regimes interact, and whether humanitarian law trumps as a lex specialis (for example permitting the targeting of combatants, which would deviate from the basic norms of human rights).

Hence in the language of the ICJ, it asserted in that case, “In the Court’s consideration of whether or not the construction of the wall is contrary to international law, the Court determines the rules and principles of international law which are relevant to the question posed by the General Assembly.  The Court begins by citing, with reference to Article 2, paragraph 4, of the United Nations Charter and to General Assembly resolution 2625 (XXV), the principles of the prohibition of the threat or use of force and the illegality of any territorial acquisition by such means, as reflected in customary international law. It further cites the principle of self‑determination of peoples, as enshrined in the Charter and reaffirmed by resolution 2625 (XXV).  As regards international humanitarian law, the Court refers to the provisions of the Hague Regulation of 1907, which have become part of customary law, as well as the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949, applicable in those Palestinian territories which before the armed conflict of 1967 lay to the east of the 1949 Armistice demarcation line (or “Green Line”) and were occupied by Israel during that conflict.”  The Court further notes that certain human rights instruments (International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights and the United Nations Convention on the Rights of the Child) are applicable in the Occupied Palestinian Territory.     According to the ICJ, “the protection offered by Human Rights conventions does not cease in case of Armed conflict….”

While there are pros and cons of the overlapping orders, indeed, it is not always clear that applying international human rights law results in a more protective standard -- because many international human rights are derogable and involve considerations of other countervailing social interests.  But the bigger point for our purposes is that the line between war and peace which used to be the defining factor and predicate for the choice of legal order, is no longer the critical divide; now given judicialization of conflict, there is more overlapping legal protection. Particularly to insure gap-filling in  a number of settings to assure a threshold of human security, indeed the shift is elaborated upon in my new book, Humanity's Law. 

Finally, a third and last illustration of the diminishing relevance of the distinction between war and peace as the defining factor occasioning individual legal responsibility under international law can now be seen in the growing role of international criminal law within international law.

While in the past, e.g. Nuremberg,  the nexus to war was a critical dimension both as basis for jurisdiction and for the substantive offense  Now,  international criminal responsibility  is no longer measured in terms of  war crimes: A range of crimes such as “crimes against humanity” don't presuppose waging of armed conflict, nor a nexus to war.  Starting with the post-cold war conflict in Yugoslavia, crimes against humanity are applicable whether international or internal armed conflict.

Now, the nexus has been further diluted as can be seen in the permanent ICC Rome system, what triggers international criminal responsibility can be triggered in peacetime -- enmeshing international criminal law in more domestic situations.  For example, “crimes against humanity” at Article 5 now include a number of offenses associated with peacetime repression and discrimination, so long as there is a “widespread or systematic attack directed against any civilian population, with knowledge of the attack,”  e.g. apartheid, forced disappearances, and which nevertheless, a matter for individualized criminal responsibility under international law.

So for example, post-election violence in Kenya became the subject of International Criminal Court supervision. What this means is that international criminal law is becoming more and more enmeshed in more situations of violence with consequences for potential conflict of laws as well as conflict over ways to approach conflict resolution: e.g., transitional justice, raising dilemmas of peace versus justice, i.e. whether prosecutions should take precedence over peace.

In sum, these are just some illustrations of the destabilization of the war and peace divide within international law.  The interesting question of why this is happening lies at the heart of Mary's book addressing the changing nature of war and its political functions.

From my standpoint, the relevant question today is do we need to be rethinking the relationship between war and peace -- the historical basis for this importance which goes back to Hobbes;  Or, instead, ought we recognize that  the war /peace divide has become relativized in regards to other determinations relating the evolving mix of normative goals at issue, including human security.  The question for the future is whether there can really be any re-establishment of a stable understanding of war and peace; and even if we had it -- it would hardly be determinant of the mix of legal norms and the evolving nature of security relevant today.