Imagining jus post vim

Standard accounts of just war follow a chronological path: deliberating whether to go to war (jus ad bellum), considering what can be done in war (jus in bello), and determining the responsibilities after war’s end (jus post bellum). This chapter challenges the chronological timeline by arguing that understanding jus post vim, or the justice after limited force, is paramount to discerning the just and unjust uses of limited force. Placing the emphasis on the post-force environment first shifts the focus onto the achievable ends, which then recalibrates the goals, and, by consequence, the means employed to achieve them. The chapter thus begins by distinguishing between jus post bellum and jus post vim, with one of the main differences being that the latter is necessarily a form of truncated victory. This circumscribed nature of victory has ethical implications insofar as many of the lofty goals sometimes associated with jus post bellum (rehabilitation, regime change, war crimes trials, etc.) are not feasible objectives of using limited force. Drawing on the classical just war doctrine’s emphasis on the pursuit of order and justice, the chapter identifies the re-establishment and containment principles as markers of moral truncated victory and the committed pursuit of long-term peace. These jus post vim principles reflect the heavy moral lifting that diplomatic measures play in the pursuit of peace once truncated victory is achieved. The chapter concludes by linking jus post vim to conciliation, inviting deeper engagement with non-Western peace practices and traditions.

‘Guilty of Having Been Obedient’

One of the most debated subjects among academics and experts in the fields of International Humanitarian Law and International Criminal Law is the principle of individual criminal responsibility for war crimes. Even more contentious is that aspect of the principle relating to crimes committed under superior orders – a legal strategy employed by many defendants at the Nuremberg war crimes trials. This paper contributes to the debate by establishing the extent to which Article 33 of the Rome Statute, which adopts the conditional liability approach, is justified. The article achieves its objective by critically discussing the subject from a combination of legal, psychological and moral philosophical perspectives. It presents a historical account of the superior orders defence, highlighting how two conflicting liability doctrines, absolute liability and conditional liability, have traditionally been applied by the courts, and taking a stance in favour of the latter. The article, however, underlines some pressing questions that Article 33 raises. It offers a brief exegesis of the emotion of fear to show how it may destroy voluntariness, arguing that as a modifier of voluntariness, grave fear, in certain circumstances, should exculpate perpetrators in claims of crime under superior orders, even where the orders were manifestly unlawful.

Why were there no war crimes trials for the Korean War?

In the Korean War of 1950-53, U.S. authorities were determined to pursue atrocities perpetrated by North Korean and Communist Chinese forces through legal channels, in keeping with the standards they believed they had set after the Second World War. Yet, their plans foundered in Korea, despite extensive groundwork for prosecutions. Four factors were responsible. First, it was difficult to find reliable evidence and to identify and apprehend suspects. Second, U.S. officials rapidly lost confidence in the idea of prosecuting national leaders. Third, the lack of clear-cut victory in the conflict necessitated a diplomatic solution, which was incompatible with war crimes trials. Fourth, the moral standing of the West, and hence its authority to run trials, was undermined by the large number of atrocities committed by the United Nations side. Thus, the U.S. plan for war crimes trials was dropped without fanfare, to be replaced by an anti-Communist propaganda campaign.

‘We Learnt that from The Hague’

While much attention has been paid to contributions of the International Criminal Tribunal for the former Yugoslavia (ICTY) to International Humanitarian Law and International Criminal Law, the ICTY’s impact on countries under its jurisdiction and on their criminal justice systems is under-researched. Using Bosnia and Herzegovina (BiH) and Serbia as case studies, this chapter discusses the Tribunal’s influence on fairness in war crimes trials that have been conducted in the region since the early 2000s. It shows that the ICTY had only scarce effects on fairness of proceedings, with great impact in BiH and almost absent in Serbia. The difference is explained using the ‘norm cascade model’ and ‘spiral model’, describing how a norm ‘cascades’ from the international level into the national justice system. It shows that the ICTY’s permanent presence in BiH and large absence in Serbia were factors accounting for whether national counterparts followed ICTY jurisprudence and practice.