International Law and Transition to Peace in Colombia

Front matter

INTERNATIONAL LAW AND TRANSITION TO PEACE IN COLOMBIA

Assessing Jus Post Bellum in Practice

César Rojas-Orozco

Contents

Acknowledgments 1x List of Abbreviations x

N OO fp WwW

Transition to Peace as a Matter of International Law 4

Introduction

Under current international law, the transition to peace after a non-international armed conflict (NIAC) is no longer a matter of the exclusive discretion of the conflicting parties within a state. Several international legal standards are progressively shaping the ways in which internal peace negotiations are conducted as well as the content of peace agreements.! These standards are represented in legal obligations, principles, and practices mainly derived from International Human Rights Law (1HRL), International Humanitarian Law (IHL), International Criminal Law (ICL), and the United Nations (UN) and states practice in peacemaking and peacebuilding. Colombia provides the most recent and notorious example of a peace process and a peace agreement ending a NIAC conducted under an international legal frame. The 2012-2016 peace negotiations between the Colombian government and the guerilla movement Fuerzas Armadas Revolucionarias de Colombia (FARC) and their final agreement are internationally considered a model for resolving other conflicts around the world.? The Colombian Peace Agreement? has been recognized both for its

1 Carsten Stahn, Jus Post Bellum: Mapping the Discipline(s), in Jus Post Bellum. Towards a Law of Transition from Conflict to Peace, ed. Carsten Stahn and Jann Kleffner (The Hague: T.M.C. Asser Press, 2008), 104. For Sthan: “The substantive components of peace-making are no longer exclusively determined by the discretion and contractual liberty of the warring factions, but are governed by certain norms and standards of international law derived from different fields of law and legal practice.”

2 Even though other peace agreements have been signed around the world after the 2016 Colombian deal was adopted, they do not have the comprehensive dimension of the Colombian one. They are mostly partial or ceasefire agreements, in which an international legal dimension is not as large and comprehensive as in the Colombian case. On this point, see Escola de Cultura de Pau, Peace Talks in Focus 2019. Report on Trends and Scenarios (Barcelona: Icaria, 2019), 27.

3 See, among others: UN Peacebuilding Commission, Informal Meeting on Colombia, Chairperson’s Summary of the Discussion, 13 November 2017, available at: http://www.un.org/ es/peacebuilding/pdf/oc/PBCmeetingonColombia1g3November2017- Chair’s%20summary FINAL.pdf, accessed on 10 June 2018; Jean-Arnault, Chief of the UN Mission in Colombia, “Este proceso de paz es un ejemplo para el mundo”: Jean Arnault, available at: caracol. com.co/radio/2017/06/27/nacional/1498581031_512926.html, accessed on 20 November 2017; Report of the Secretary-General on the UN Verification Mission in Colombia, Security Council, S/2018/1159, 26 December 2018, para. 91.

4 The expressions Colombian Peace Agreement, Peace Agreement, Final Agreement, and Agreement (with capitalization) will be used interchangeably to refer to the peace agreement signed by the Government of Colombia and the Fuerzas Armadas Revolucionarias de Colombia (FARC) on 24 November 2016 and called Final Agreement to End the Armed

© CESAR ROJAS-OROZCO, 2021 | DOI:10.1163/9789004440531_002 This is an open access chapter distributed under the terms of the cc By-NC 4.0 license.

comprehensive approach to ending armed violence and addressing structural causes of the conflict and for its compliance with international law. As noted by Huneeus and Urueña:

That agreement, and, indeed, the entire negotiation process, has been exceptional in the central role that international law plays. Colombia is an intensely legalistic society, with a legal system that has been traditionally open to international law. Moreover, the peace talks are conducted in a global legal context that imposes strict legal limits—in particular, international criminal law and Inter-American human rights law are of constant concern to the negotiators. [...] [M]any of the deal’s particular choices seemed specifically designed to comply with Colombia's international legal obligations.®

The central role of international law in the Colombian transition is due and is expressed in at least two ways. First, several external actors participated in the negotiations or they sent messages that influenced the discussions. These actors included the UN, the Inter-American System of Human Rights, the Prosecutor of the International Criminal Court (1cc), and the guarantor countries. Second, the negotiation and the Agreement not only incorporated international legal standards of justice, truth, reparations, and inclusiveness, but also used international law and international enforcement mechanisms to ensure its compliance.

However, this case also evinces the complexity of the legal regulation of transitioning from armed conflict to peace. There is no specific legal regime governing such transitions, but a disparate set of applicable provisions enshrined by different branches of international law that are not specifically designated for that purpose. Thus, these provisions must be interpreted and adapted in their application to the specific transitional context. This process implies a dual role for the parties involved in the transition as both the subjects and creators of law: the apply general existing norms and define, through this practice, new ways to interpret and adapt them to the context. As Kreß and

Conflict and Build a Stable and Lasting Peace. See Government of Colombia and FARC, ‘Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace,’ 2016, especiales.presidencia.gov.co/Documents/20170620-dejacion-armas/acuerdos/acuerdofinal-ingles.pdf.

5 Alexandra Huneeus and Rene Urueña, ‘Introduction to Symposium on the Colombian Peace Talks and International Law, American Journal of International Law 110 AjtL Unbound Symposium on the Colombian Peace Talks and International Law (2016): 161-62.

Grover wrote, “States in transition apply existing law and, in so doing, contribute to its refinement.”

The academic debate on this role of international law in transition has been framed under the concept of jus post bellum. This concept has been proposed as a normative framework to gather—under a common frame of reference— the myriad of international legal considerations applicable to the transition from armed conflict to sustainable peace.” However, the relative novelty of the concept, which only entered the international legal scholarship in 2005,8 is marked by divergent conceptions around its content and scope, and few empirical studies have been conducted on it.

Considering the above-presented elements, this study analyzes the role of international law in transition from internal armed conflict to peace by using the Colombian transition as a case study. Based on this analysis, it discusses to what extent this case fits within the scholarly debate on jus post bellum by identifying what elements are applicable from theory to practice and what lessons can be drawn from the Colombian case toward further developing the concept.

This introduction first discusses how transition to peace became a matter of international law and how the concept of jus post bellum offers a framework for such a debate, examining the state of research on this topic. Then, the introduction discusses the relevance of the Colombian case in assessing the role of international law in the transition to peace and why this case is useful to attaining a better understanding of the concept of jus post bellum. According to these discussions, the introduction reflects on the empirical analysis from the perspective of NIACs and the use of a case study. Lastly, this introduction will delimitate the purpose, some methodological considerations, and the structure of the study.

6 Claus Krefg and Leena Grover, ‘International Criminal Law Restraints in Peace Talks to End Armed Conflicts of a Non-International Character; in Law in Peace Negotiations, ed. Morton Bergsmo and Pablo Kalmanovitz (Oslo: Torkel Opsahl Academic EPublisher, 2010), 46.

7 Vincent Chetail, ‘Introduction: Post-Conflict Peacebuilding: Ambiguity and Identity, in Post- Conflict Peacebuilding: A Lexicon, ed. Vincent Chetail (Oxford: Oxford University Press, 2009), 1-33; Vincent Chetail and Oliver Jiitersonke, ‘Peacebuilding: A Review of the Academic Literature’ (White Paper Series No. 23, Geneva Peacebuilding Platform, 2015), 5, https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2684002.

8 As it will be analyzed in Section 2 of this Introduction, the first academic work addressing jus post bellum from a legal point of view appeared in 2005, analyzing how the concept could frame the application of IHL in the post-occupation context in Iraq: Daniel Thiirer and Malcom MacLaren, ‘ “Ius Post Bellum’” in Iraq: A Challenge to the Applicability and Relevance of International Humanitarian Law?, in Weltinnenrecht: Liber Amicorum Jost Delbriick, ed. Klaus Dicke, and et al. (Berlin: Duncker & Humblot, 2005), 753-82.

4 INTRODUCTION 1 Transition to Peace as a Matter of International Law

Law plays a fundamental role in the transition from armed conflict to peace. Although peace is a politically-oriented goal, legal considerations frame the process of negotiating and building peace.® In particular, international law is gaining increasing relevance in domestic transitions to peace. The international obligations of states according to IHRL, IHL, and ICL are unavoidable considerations for negotiating parties when defining their conditions to end conflict and achieve peace.!° These obligations serve as a framework outlining limits, possibilities, and duties that ought to be followed when negotiating, defining, and implementing measures of transition from armed conflict to peace.

The increasing involvement of international law in domestic transitions is mainly due to the development of 1HRL as a reliable means of protecting individuals, including from their own state.!! To Cecile Fabre, this phenomenon represents a new paradigm in international relations with at least two rules: “a) individuals are the fundamental unit of moral concern [...], b) whatever rights and privileges states have, they have them only in so far as they thereby serve individual’s fundamental interests.” This argument is reinforced by the fact that IHRL has increased its protection of individuals not only by the substantial development of rights but also through the creation of effective mechanisms to enforce them internationally.

Regarding this paradigm, Stahn affirms that “The rise of human rights obligations and growing limitations on sovereignty [...] have not only changed the attitude toward the ending of conflicts, but have also set certain benchmarks for behavior. The process of peace-making itself has become a domain of international attention and regulatory action.” Here, one should add also the processes of peacekeeping and peacebuilding as matters of international concern. These concepts came to the international policy and legal arena since the 1992 UN Secretary-General’s Agenda for Peace.!* Chetail defines

10 Philipp Kastner, Legal Normativity in the Resolution of Internal Armed Conflict (Cambridge: Cambridge University Press, 2015), 1.

11 Michael Walzer, Just and Unjust Wars. A Moral Argument with Historical Illustrations (New York: Basic Books, 2006), X1.

12 Cecile Fabre, ‘Cosmopolitanism, Just War Theory and Legitimate Authority, International Affairs 84, no. 5 (2008): 964.

14 UN Secretary-General, ‘An Agenda for Peace’ (New York: United Nations, 1992); UN Secretary-General, ‘Supplement to An Agenda for Peace’ (New York: United Nations, 1995).

them as: peacekeeping, meaning the actions aimed to end the immediate violence and hostilities; peacemaking, involving the peaceful resolution of the conflict through negotiation, mediation, or arbitration; and peacebuilding, as the process of addressing the root causes of the conflict with a view to establishing a sustainable peace. From the three concepts, peacemaking and peacebuilding are more closely related to the idea of transitioning to sustainable peace.

Peacemaking and peacebuilding processes have received increasing legal regulation through UN documents, IHRL, and international jurisprudence,!® mainly since the early 2000s after the adoption of the 1cc Statute and different UN guidelines on transitional justice.” This phenomenon is described by Christine Bell in the following terms:

Indeed, legal analysis suggests a more pivotal role for international law in assisting, and perhaps even acting as catalyst to, the trend towards negotiated settlements in intrastate conflicts.

Throughout the 1980s, a number of legal developments relevant to the peace agreement landscape took place and can be argued to have played a little-acknowledged role in creating the peace agreement phenomenon. These legal developments all worked to undo the concept of international law as the law of states, by opening up the black box of ‘the state’ to scrutiny of its internal configurations—traditionally the preserve of state sovereignty. In so doing, they increased the scope for international law to address intrastate conflict.!8

Then, she adds:

The contemporary peace agreement is negotiated in a context where an expanding international machinery has a clear mandate in the areas that many peace agreements deal with, such as human rights, refugees and displaced persons, independence of the judiciary, policing, and economics.

16 Guglielmo Verdirame, ‘What to Make of Jus Post Bellum: A Response to Antonia Chayes, European Journal of International Law 24, no. 1 (2013): 307-8.

17 Astri Suhrke, ‘Post-War States: Differentiating Patterns of Peace; in Jus Post Bellum: Mapping the Normative Foundations, ed. Carsten Stahn, Jennifer Easterday, and Jens Iverson (Oxford: Oxford University Press, 2014), 270-72.

18 Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford: Oxford University Press, 2008), 31.

Never before have international law and international institutions had such an array of tools capable of application to intrastate conflict.

The expansion of the influence of international law in peacemaking and peacebuilding is reflected in a growing number of UN guidelines, reports, and resolutions addressing this matter and recommending the observance and incorporation of international legal standards in reparations, transitional justice, inclusiveness, and the rule of law.2° The General Assembly and the Security Council created the UN Peacebuilding Commission”! aimed at providing international support to countries in transition, and the Council has intervened in many transitional settings—most of them related to NIACs—pursuing its fundamental mandate to safeguard international peace and security.”

However, as Bell argues, “peace agreement practice is increasingly posing a fundamental challenge to the existing international legal order.’?3 Despite the rising influence of international law in peace processes and peace agreements, there is no specific legal regime regulating transition from armed conflict to peace, and different branches of law can apply. As such, states and other parties in conflict must interpret and apply relevant international norms according to the specific needs and conditions of their own transitional context, but with no legal framework given to provide coherence to the matter. Offering such a framework is the purpose of jus post bellum.?*

20 See, among others: UNSC, ‘Resolution 1325 (2000), Pub. L. No. S/RES/1325 (2000); UN Secretary-General, ‘Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies’ (New York: UN Security Council, 23 August 2004); UN Secretary-General, ‘Women, Peace and Security, 13 October 2004; UN General Assembly, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Pub. L. No. A /RES/60/147 (2005); UN Secretary- General, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies’ (New York: UN Security Council, 12 October 2011); UN Secretary-General, ‘Strengthening the Role of Mediation in the Peaceful Settlement of Disputes, Conflict Prevention and Resolution’ (UN General Assembly, 25 June 2012).

21 UNSC Resolution 1645, S/RES/1645(2005), 20 December 2005, and General Assembly Resolution 180, A/RES/60/180, 30 December 2005.

23 Christine Bell, ‘Peace Agreements: Their Nature and Legal Status, American Journal of International Law 100, no. 2 (2006): 384.

24 Chetail and Jittersonke, ‘Peacebuilding: A Review of the Academic Literature, 5.

INTRODUCTION 7 2 A Framework on the Legal Dimension of Transition: Jus Post Bellum

In the same way that the conditions for engaging in war are regulated under a legal framework known as jus ad bellum, and the legal regime for conducting armed conflict is defined as jus in bello, moral and legal scholarship has proposed the concept of jus post bellum to designate the legal framework applicable to transition from armed conflict to peace. However, while jus ad bellum and jus in bello are unified legal regimes, the law applicable to the transition from armed conflict to peace is not gathered into a specific legal framework but involves a complex interaction between different branches of law and between international and national law.

Therefore, the concept of jus post bellum appeared as a space to hold the debate around the interaction between law and transition to peace,?> and to offer a normative framework for peacemaking and peacebuilding practice. Following this logic, Vincent Chetail suggests that:

Jus post bellum can be generally defined as the set of norms applicable at the end of an armed conflict—whether internal or international—with a view to establishing a sustainable peace. [...] [T]he grouping disparate standards within the same frame of reference underscores the need for a comprehensive and coordinated approach to the numerous rules governing post-conflict situations. From a systemic perspective, it paves the way for a contextualized interpretation—and, by extension, a contextualized application—of existing norms in order to better take into account the specificities which characterize the difficult transition from war to peace.?6

This definition addresses different components of the concept: the substance of jus post bellum as a set of norms; a temporal scope placed to the end of armed conflict; its applicability to both international armed conflicts (14Ccs) and NIACs; and its systemic function to group different standards governing transition from armed conflict to peace under a common framework, allowing their contextualized interpretation and application. However, notwithstanding the comprehensiveness of this definition, the concept is far from reaching consensus, and Easterday, Iverson and Stahn even sustain that “there are

25 Inger Osterdahl and Esther van Zadel, ‘What Will Jus Post Bellum Mean? Of New Wine and Old Bottles, Journal of Conflict and Security Law 14, no. 2 (2009): 176. 26 Chetail, ‘Introduction,’ 18.

almost as many conceptions of jus post bellum as scholars” working in this field.?”

Looking at the origin of the concept, Stahn sustains that this tripartite conception of the law of war can be found since St. Agustine (City of God, 410), Vitoria, Suarez, Grotius (Laws of War and Peace, 1625) and Kant (Science of Right, 1790).28 However, the first systematization of the idea of jus post bellum is generally attributed to Kant, who referred to a right to war (jus ad bellum), a right in war (jus in bello), and a right after war (jus post bellum).?9

Nevertheless, these three elements have not been developed at the same level. Both jus ad bellum and jus in bello were largely theorized since the 19th century. Then, jus in bello was codified since the 1899 and 1907 The Hague Conventions, and jus ad bellum in the 1945 UN Charter provisions on the use of force. However, jus post bellum did not receive the same attention neither in theory nor in legal codification. For Stahn, this situation is due to at least three reasons. First, until the 20th century there was a split conception of war or peace without intermediate states of transition from one to other.3° Second, peace has been traditionally considered as a matter of the discretion of states.?! And, third, peace-making has been regarded as a case-by-case issue and some legal scholars “even continued to conceive peace-making as an ‘art’ rather than a legal paradigm until the 1980s.”9?

Having this background, the concept of jus post bellum had only entered into the academic debate at the beginning of the 21st century, after the USled interventions in Iraq and Afghanistan.°? This contemporary discussion on jus post bellum has been held within the framework of two disciplines: moral

27 Jennifer Easterday, Jens Iverson, and Carsten Stahn, ‘Exploring the Normative Foundations of Jus Post Bellum: An Introduction,’ in Jus Post Bellum: Mapping the Normative Foundations, ed. Carsten Stahn, Jennifer Easterday, and Jens Iverson (Oxford: Oxford University Press, 2014), 3.

28 Stahn, Jus Post Bellum: Mapping the Discipline(s); 2008, 94. The same view is shared by Larry May, Jus Post Bellum, Grotius, and Meionexia, in Jus Post Bellum: Mapping the Normative Foundations, ed. Carsten Stahn, Jennifer Easterday, and Jens Iverson (Oxford: Oxford University Press, 2014), 16.

29 Brian Orend, ‘Jus Post Bellum: The Perspective of a Just-War Theorist; Leiden Journal of International Law 20, no. 3 (2007): 574; Brian Orend, War and International Justice: A Kantian Perspective (Wilfrid Laurier University Press, 2000). Chetail, Introduction,’ 18.

30 Stahn, ‘Jus Post Bellum: Mapping the Discipline(s); 2008, 96. On this idea, see also Philip Jessup, ‘Should International Law Recognize an Intermediate Status between Peace and War?, American Journal of International Law 48, no. 1 (1954): 98-103.

philosophy and international law.34 The first has been focused on the moral obligation of reparation and reconstruction in the aftermath of a military intervention, under the just war theory. On the other hand, international legal scholars have tried to identify and articulate the international legal regulation applicable to the transition from armed conflict to peace under this concept.?5

From the perspective of the just war theory, Orend proposed the first contemporary approach to jus post bellum. For him, the “just war theory, as currently conceived, is incomplete’, and now it is necessary to look at “the justice [...] of the move back from war to peace.”38 Then, since 2004, some philosophers used the concept to discuss the moral obligation of reparation and reconstruction after a military intervention.

Walzer presented an analysis on different wars around the world under a just war perspective; and, when referring to the Iraqi case, he has suggested the development of a jus post bellum component within the just war theory.?” Bass used the concept to analyze “the justice of a belligerent power's postwar conduct,’38 which Iasiello supported mapping the moral responsibilities of victors in war?’ In another perspective, Rigby*° discussed the concept and its implications in terms of forgiveness and reconciliation. Later, in 2006, DiMeglio*! continued working on the definition of jus post bellum as part of the just war tradition, and Williams and Caldwell insisted on connecting the justness of “how we intend to fight and what we intend to do after we have fought.”42

In 2012, Larry May published one of the most influential works on jus post bellum, entitled After War Ends: A Philosophical Perspective. Written under the umbrella of the just war theory, this book proposes six normative principles of

34 — Stahn, n2.

35 Christine Bell, ‘Of Jus Post Bellum and Lex Pacificatoria: What’s in a Name?) in Jus Post Bellum: Mapping the Normative Foundations, ed. Carsten Stahn, Jennifer Easterday, and Jens Iverson (Oxford: Oxford University Press, 2014), 181.

36 Brian Orend, ‘Jus Post Bellum, Journal of Social Philosophy 31, no. 1 (2000): 117-18.

37 Michael Walzer, Arguing About War (New Haven: Yale University Press, 2004), 162.

38 Gary Bass, Jus Post Bellum, Philosophy & Public Affairs, 2004, 385.

39 Louis Iasiello, Jus Post Bellum: The Moral Responsibilities of Victors in War, Naval War College Review 57, no. 3—4 (2004): 33-52.

40o Andrew Rigby, ‘Forgiveness and Reconciliation in Jus Post Bellum, in Just War Theory: A Reapprisal, ed. Mark Evans (Edinburgh: Edinburgh University Press, 2005), 177-200.

41 Richard DiMeglio, ‘The Evolution of the Just War Tradition: Defining Jus Post Bellum, Military Law Review 186 (2006): 16-63.

42 Robert Williams and Dan Caldwell, ‘Jus Post Bellum: Just War Theory and the Principles of Just Peace, International Studies Perspectives 7, no. 4 (2006): 309-20.

43 Larry May, After War Ends: A Philosophical Perspective (Cambridge: Cambridge University Press, 2012).

jus post bellum: rebuilding, retribution, restitution, reparation, reconciliation and proportionality. Subsequent works have considered this proposal of principles as a solid basis to develop the content of jus post bellum.+

From the perspective of international law, Thitrer and MacLaren were the first authors to address the issue in 2005. In an article, entitled ‘Tus Post Bellum in Iraq, they analyzed the role of the concept to improve the application of IHL in the occupation and post-occupation period in Iraq.*° Similarly, Boon used the concept to assess the limits of occupant’s law-making powers,*° which Cohen further addressed in 2006 examining the role of international law in post-conflict constitution-making.*” The same year, Stahn presented the first article exploring jus post bellum in a comprehensive way as a legal category.*®

Later, in 2007, under the direction of Stahn, the University of Leiden’s Grotius Center for International Legal Studies undertook the Jus Post Bellum Project.?9 This project was conceived to “investigate whether and how a contemporary jus post bellum may facilitate greater fairness and sustainability in conflict termination and peacemaking.”°° In ten years, the Project published three volumes presenting the most comprehensive contributions to the legal understanding of contemporary jus post bellum. The first one, published in 2008, Jus Post Bellum. Towards a Law of Transition from Conflict to

44 Easterday, Iverson, and Stahn, ‘Exploring the Normative Foundations of Jus Post Bellum: An Introduction’; Aurel Sari, ‘The Status of Foreign Armed Forces Deployed in Post- Conflict Environments: A Search for Basic Principles, in Jus Post Bellum: Mapping the Normative Foundations, ed. Carsten Stahn, Jennifer Easterday, and Jens Iverson (Oxford: Oxford University Press, 2014), 467-501; Carsten Stahn, ‘Jus Post Bellum and the Justice of Peace: Some Preliminary Reflections’ (Final Conference: Jus Post Bellum and the Justice of Peace, The Hague, 2016), http://postconflictjustice.com/jus-post-bellum-andthe-justice-of-peace-some-preliminary-reflections-part-1-2/.

45 Thiirer and MacLaren, ‘“Ius Post Bellum” in Iraq: A Challenge to the Applicability and Relevance of International Humanitarian Law?’

46 Kristen Boon, ‘Legislative Reform in Post-Conflict Zones: Jus Post Bellum and the Contemporary Occupant’s Law-Making Powers, McGill Law Journal 50, no. 2 (2005): 285-326.

47 Jean Cohen, ‘The Role of International Law in Post-Conflict Constitution-Making: Toward m a Jus Post Bellum for “Interim Occupations’, New York Law School Law Review 51 (2007 2006): 497-532.

48 Carsten Stahn, ‘“Jus Ad Bellum’, “jus in Bello” ... “Jus Post Bellum”?—Rethinking the Conception of the Law of Armed Force, European Journal of International Law 17, no. 5 (2006): 921-43.

49 This is the website of the Jus Post Bellum Project, where information about its activities, its team, and its publications can be found: http://juspostbellum.com/default.aspx (accessed on 21 September 2016).

50 Ibid.

Peace,*! has focused on the foundations, contemporary challenges, and the future of the concept. Later, in 2014, they published Jus Post Bellum. Mapping the Normative Foundations,°? with a broader analysis on the different dimensions of the concept, its functions, and dilemmas. Finally, in 2017 the Project released the work Environmental Protection and Transitions from Conflict to Peace: Clarifying Norms, Principles, and Practices,>? in which several scholars have addressed the connection between jus post bellum and environmental protection. At present, these works represent the most advanced analysis of contemporary jus post bellum.5+

However, despite the existing contributions, the concept is still fragmented and contested. Lewkowicz considers that jus post bellum creates semantic confusions on the law of the use of force,” and it is just an abstract doctrine without any substantial contribution to peace practice.5° De Brabandere criticizes the usefulness of the concept,°” and he even affirms “that certain conceptions of jus post bellum pose a danger to some very foundational principles of international law.”5* In turn, even if Bell admits some usefulness in the concept, she has considered it as an aspirational regime for the future, being the current normativity applicable to transitions more a question of lex pacificatoria, understood as the law of peacemakers.°?

51 Carsten Stahn and Jan Kleffner, eds., Jus Post Bellum: Towards a Law of Transition from Conflict to Peace (The Hague: T.M.C. Asser Press, 2008).

52 Carsten Stahn, Easterday, Jennifer, and Iverson, Jens, eds., Jus Post Bellum: Mapping the Normative Foundations (Oxford: Oxford University Press, 2014).

53 Carsten Stahn, Jens Iverson, and Jennifer Easterday, eds., Environmental Protection and Transitions from Conflict to Peace: Clarifying Norms, Principles, and Practices (Oxford: Oxford University Press, 2017).

54 For Bell, Carsten Stahn and the Leiden School have led the contemporary discussion on jus post bellum under the perspective of international law. Bell, ‘Of. Jus Post Bellum and Lex Pacificatoria: What’s in a Name?,’ 181.

55 Gregory Lewkowicz, ‘Présentation. Le Jus Post Bellum: Nouveau Cheval de Troie Pour Le Droit Des Conflit Armés?, Revue Belge de Droit International 44, no. 1-2 (2011): 5.

56 Lewkowicz, ‘Présentation. Le Jus Post Bellum: Nouveau Cheval de Troie Pour Le Droit Des Conflit Armés?

57 Eric De Brabandere, ‘International Territorial Administrations and Post-Conflict: Reflections on the Need of a Jus Post Bellum as Legal Framework, Revue Belgue de Droit International 44, no. 1—2 (2011): 69.

58 Eric De Brabandere, ‘The Concept of Jus Post Bellum in International Law: A Normative Critique, in Jus Post Bellum: Mapping the Normative Foundations, ed. Carsten Stahn, Jennifer Easterday, and Jens Iverson (Oxford: Oxford University Press, 2014), 123-41.

59 The concept of lex pacificatoria, as related to jus post bellum, will be analyzed in Chapter 1, Section 5.2. Bell, On the Law of Peace; Bell, ‘Of. Jus Post Bellum and Lex Pacificatoria: What’s in a Name?’

Those discussions have evidenced the need for further research to clarify the concept and its concrete scope. In 2009 Chetail pointed out the importance “to recognize post-war law as a concept in its own right.’®° In 2012 May and Forcehimes considered jus post bellum scholarship as an “emerging field [...] still in its formative years”. In 2014, Easterday, Iverson, and Stahn argued that despite “the expansion of references to jus post bellum in a variety of journals [...], there has been an increase of ambiguity, [instead of] a consolidation around a consensus definition.”©? And, in 2017 Iverson sustained that the concept “remains comparatively under-theorized, and frequently referenced without realizing that many authors be talking past each other, meaning different things while using the same term.”6?

Having this background on the scholarly debate of jus post bellum, this study is aimed at offering an empirical analysis of the concept by testing its theoretical development in practice throughout a relevant case study.

3 The Relevance of the Colombian Transition

The Colombian transitional process from armed conflict to peace offers a proper test case to assess both the role of international law in transition to peace and the viability of jus post bellum as the concept to frame such a role. Several reasons explain the relevance of the Colombian transition for this purpose.

First, the 2016 Peace Agreement in Colombia is the most recent comprehensive® peace deal ending a NIAC in the world.® The comprehensiveness of the

61 Larry May and Andrew Forcehimes, eds., Morality, Jus Post Bellum, and International Law (Cambridge: Cambridge University Press, 2012), 1.

62 Jens Iverson, Jennifer Easterday, and Carsten Stahn, ‘Epilogue: Jus Post Bellum—Strategic Analysis and Future Directions, in Jus Post Bellum: Mapping the Normative Foundations, ed. Carsten Stahn, Jennifer Easterday, and Jens Iverson (Oxford: Oxford University Press, 2014), 547-

63 Jens Iverson, ‘The Function of Jus Post Bellum in International Law’ (Leiden, Leiden University, 2017), 8, https://openaccess.leidenuniv.nl/handle/1887/55949.