Defining a relationship between transitional justice and jus post bellum: A call and an opportunity for post-conflict justice
| Author | Kirsten J Fisher |
| Published date | 01 October 2020 |
| Date | 01 October 2020 |
| DOI | http://doi.org/10.1177/1755088218814038 |
| Subject Matter | Articles |
https://doi.org/10.1177/1755088218814038
Journal of International Political Theory
2020, Vol. 16(3) 287 –304
© The Author(s) 2018
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DOI: 10.1177/1755088218814038
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Defining a relationship
between transitional justice
and jus post bellum: A call and
an opportunity for post-conflict
justice
Kirsten J Fisher
University of Saskatchewan, Canada
Abstract
While there is an acknowledged overlap of transitional justice and jus post bellum,
there has been no real attention to delineating a clear relationship between the two
or addressing the significant differences regarding aims, scope and audience. These
differences must be acknowledged and a clear relationship between the two fields needs
to be demarcated for both intellectual clarity and practical reasons. It seems right to
question not only where these fields of inquiry fall in relation to each other but how the
two can co-exist and inform each other in a meaningful way that works to the benefit of
victims of conflict and mass atrocity. Done correctly, this overlap can be ushered into
a coherent research agenda where the two perspectives can be brought together in a
careful and concise manner. This article aims to start to address this gap.
Keywords
Human rights, international law, just war theory
Introduction
In the aftermath of conflict and mass atrocity, there are important questions to be
answered about how to justly and effectively deal with the past and usher in peace for the
future. These questions have been, until recently, generally regarded as the domain of the
field of transitional justice (TJ), especially as this field developed over the past few
decades from one of a response to a particular type of political transition to a standard
Corresponding author:
Kirsten J Fisher, Department of Political Studies, University of Saskatchewan, Arts 283B, 9 Campus Drive,
Saskatoon, SK S7N 5A5, Canada.
Email: kirsten.fisher@usask.ca
814038IPT0010.1177/1755088218814038Journal of International Political TheoryFisher
research-article2018
Article
288 Journal of International Political Theory 16(3)
international response to mass atrocity (McAuliffe, 2011: 87; Macdonald, 2017: 286).
This expansion of TJ, from a normative endeavour originating as a discourse about tran-
sitions from authoritarian regimes with legacies of violence and human rights violations
to democratic rule (Fisher and Stewart, 2014: 1; Zunino, 2016: 35–39) to a discourse of
policy in response to a multitude of situations, including those without clear political
transition (Freeman and Djukic, 2008: 214; Iverson, 2013: 417–418), led to challenges
to the field, not least of which is its uneasy relationship with the emerging area of philo-
sophical and legal inquiry of jus post bellum.
It is not surprising that we face a potentially confusing overlap of jus post bellum and
TJ.1 In fact, it seems somewhat inevitable given the changing nature of war and political
conflict that TJ and the just war tradition would merge at the point where questions about
peace and justice arise out of conflict which can at best be regarded as a hybrid of inter-
national and civil war. Arising from different origins, the two logics cover very similar
terrain, but they do so, apparently awkwardly, with different priorities and somewhat
divergent goals. The broad concept of jus post bellum has been with us for some time, but
recently (in the first decades of the twenty-first century) it has been gaining renewed
intellectual attention (Bellamy, 2008; Ohlin 2012; Iverson, 2014: 84). This ‘arrival’ of
jus post bellum has coincided with the point at which TJ has become somewhat all
encompassing, a way of thinking about transitions from authoritarian regimes to democ-
racies (or at least less abusive authoritarian regimes), from war to peace, and perhaps
from social and political norms that hamper inclusiveness and social harmony to political
reconciliation. Now ‘transitional justice operates in strikingly different contexts from
those for which it was first designed’, and the conception of the term as well as the tool-
box of options available has seemingly expanded (Macdonald, 2017: 287). However,
when the overlap between TJ and jus post bellum is acknowledged in the literature, there
is no real attention to delineating a clear relationship between the two or addressing the
significant differences regarding aims, scope and audience. These differences must be
acknowledged and a clear relationship between the two discourses needs to be demar-
cated for both intellectual clarity and practical reasons. It is important to question not
only where these fields of inquiry fall in relation to each other but how the two can co-
exist and inform each other in meaningful ways that works to the benefit of victims of
mass atrocity. Done correctly, this overlap can be ushered into a coherent research agenda
where the two perspectives can be brought together in a careful and concise manner.
This article begins by outlining the two distinct discourses, demonstrating through an
exploration of their separate definitions, origins and scopes that there are significant and
important differences between the two. A principal difference, it will be shown, is a level
of analysis one. Jus post bellum is more state-centric (and state-like-actor-centric), con-
cerned predominately with state-level actors and actions and questions of morality and
law that govern them. TJ is more concerned with society and society-level actions and
actors, though with an interest in state-level actors in terms of how they impact on society
and individuals. As an extension of this, jus post bellum is primarily concerned with what
belligerents in war owe, whereas TJ starts from a concern for victims and social healing.
This article goes on to argue that there is a particular need for the boundaries to be identi-
fied as such, the different aims and foci to be acknowledged, and for there to be a clear
understanding of how these differences could affect the recommendations made by those
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