Procedural Justice, Jus Post Bellum, and Transitions from Armed Conflict: Beyond "Peace versus Justice" to Peace as the Foundation of Procedural Justice

Abstract

This Article reviews major categories of existing procedure guiding the transition from armed conflict to peace. It introduces the concept of peace agreement procedural law. It reviews questions of amnesty and aut dedere aut judicare (Latin for “extradite or prosecute”) in the context of jus post bellum. It addresses the nature of United Nations Security Council resolutions having a bearing on procedural justice and jus post bellum. It covers trusteeship and accountability procedures. It notes the law of state succession. It concludes with reflections on peace as the foundation of procedural justice. The Article seeks to bring a new perspective to the often sterile debate on “peace versus justice.” Peace versus justice is often effectively a euphemism for the question of whether or not to proceed with international criminal law investigations and prosecutions if such criminal law mechanisms may reduce the possibility of achieving a negative peace. This question is unlikely to be universally resolved in the abstract. That said, approaching peace as the foundation of procedural justice widens the scope of considering what “justice” means, not only criminal accountability for those credible accused of international crimes, but also establishing the application of legal procedure for building the post-conflict environment. All of the areas discussed in this Article navigate the difficult tension between establishing a new beginning for justice, while recognizing that the context of recent armed conflict inevitably is a flawed foundation from which to proceed. The Article builds on Lawrence Solum’s emphasis of the value of participation in procedural justice, citing it as essential for legitimacy. Allowing the meaningful participation of affected communities is important not only for the laws governing the formation of peace, but the nature of any criminal accountability for conduct related to the armed conflict. Legitimacy and procedural justice is a cross-cutting issue, not limited to one side or the other in the reified peace versus justice debate. A transition from armed conflict judged to be more procedurally just and legitimate is more likely to sustain a more robust post-conflict criminal law effort.