From State responsibility to international individual criminal accountability

IHL, like international law more generally, is concerned with providing norms and standards for the conduct of States, and more specifically, the conduct of States, as well as non-State actors, during armed conflict. IHL holds States responsible for the actions of their nationals, and enforcement of the 1899 and 1907 Hague Conventions relied on States prosecuting their own nationals for crimes committed during wartime.Footnote ⁶ As Stephens and Wooden point out, even after the Nuremberg and Tokyo International Military Tribunals (IMTs) were set up to prosecute individuals for World War II war crimes (as well as crimes against humanity and crimes against the peace), the 1949 Geneva Conventions and their 1977 Additional Protocols did not include provisions for international individual criminal responsibility and instead placed the obligation on States to prosecute grave breaches of IHL in front of their domestic courts.Footnote ⁷ By contrast, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) did explicitly provide in Article VI for persons charged with genocide to be tried by an international penal tribunal as an alternative to a national tribunal.

It took the establishment by the United Nations (UN) Security Council of two ad hoc international tribunals – the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the International Criminal Tribunal for Rwanda (ICTR) in 1994 – to further the nascent development of ICL in relation to international individual accountability for serious violations of IHL represented by the IMTs and Genocide Convention. As with the IMTs, the two ad hoc tribunals strengthened the pursuit of individual criminal responsibility by eliminating the defences of superior orders, command of law and act-of-State immunity.Footnote ⁸ The ICTY was given the power to prosecute war crimes in the form of grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity,Footnote ⁹ while the ICTR had authority to prosecute genocide, crimes against humanity and war crimes in the form of serious violations of Article 3 common to the four Geneva Conventions and of Additional Protocol II (AP II).Footnote ¹⁰

Serious violations of IHL, including but not limited to grave breaches of the Geneva Conventions and Additional Protocols, have generally been categorized as war crimes but were not specified as such in the statutes of the two ad hoc tribunals, the ICTY and ICTR.Footnote ¹¹ The 1998 Rome Statute of the permanent International Criminal Court (ICC) subsequently codified a comprehensive list of war crimes for the first time, including violations of the laws and customs applicable to international and non-international armed conflict and taking into account developments in customary international law since the 1977 Additional Protocols.Footnote ¹² The Rome Statute also expanded on the list of crimes against humanity codified by previous tribunals, including sexual crimes beyond rape, which were also, for the first time, defined as war crimes.Footnote ¹³ The ICC has jurisdiction to prosecute only “the most serious crimes of concern to the international community as a whole”, including genocide (as defined in the Genocide Convention) and the crime of aggression (as later defined and included as an amendment to the Rome Statute in 2010), as well as war crimes and crimes against humanity.Footnote ¹⁴

Leading up to and following the creation of the ICC, there have been a number of hybrid (or mixed) national/international tribunals and courts as well as national mechanisms set up to prosecute the international mass atrocity crimes of genocide, crimes against humanity and/or war crimes. These have included the hybrid Special Panels in East Timor, the international judges and prosecutors in Kosovo, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Iraqi Special Tribunal, the Special Tribunal for Lebanon and the Special Criminal Court in the Central African Republic.Footnote ¹⁵ International crimes can also be prosecuted under universal jurisdiction, such as the six cases brought by the French courts since 2014 against persons accused of committing crimes against humanity and genocide in Rwanda in 1994.Footnote ¹⁶ The ICC, meanwhile, with jurisdiction only over crimes committed since it began operations in 2002, has investigated sixteen different conflict situationsFootnote ¹⁷ and issued fifty-five arrest warrants, with six cases concluded and reparations ordered for victims in Uganda, the Democratic Republic of the Congo (DRC) and Mali, as of October 2024.Footnote ¹⁸

This emerging norm of international criminal prosecutions, named the “justice cascade” by Kathryn Sikkink,Footnote ¹⁹ has created a new set of challenges for States and international actors seeking to negotiate an end to armed conflict: the so-called “peace versus justice” dilemma. The existence of the ICC has sent an especially strong message that impunity for the perpetrators of mass atrocity crimes will no longer be accepted, and has thus posed a dilemma for peacemaking when parties to the conflict are under investigation by the ICC. In a number of cases, violence and atrocities were ongoing when the ICC commenced its investigations, most notably in the case against the leader of the Lord's Resistance Army (LRA), Joseph Kony, and his deputies, suspected of committing war crimes and crimes against humanity in Northern Uganda. The arrest warrant issued against Kony by the first ICC chief prosecutor, Luis Ocampo, caused particular controversy at the time because of the sensitive stage of the peace process and the fact that the only indictees were members of the LRA and not the Ugandan military.Footnote ²⁰ This experience highlighted the developing debate about how much the legalities of justice can be isolated from the politics of peace in the operations of the ICC while at the same time recognizing that the two goals of peace and justice are integrally and inevitably related. This latter point was emphasized by the chief prosecutor, Fatou Bensouda, in her statement announcing the commencement of investigations into the situation of Palestine in March 2021:

The creation of the ad hoc tribunals and the ICC has been premised on the assertion that such grave crimes threaten international peace and security, and that justice is therefore a critical preventive factor in restoring peace and security – but the relationship between peace and justice is far from straightforward in practice. The dilemma of peace versus justice remains a vexed question in political calculations and legal deliberations in the quest for peace agreements to end armed conflicts where atrocities have been committed, and the perceived tensions between peace and justice do not end there, at the point of peacemaking. They continue to play a role in peacebuilding as States grapple with the challenges of Statebuilding and the ongoing expectations of transitional justice, creating a moral dilemma for the pursuit of jus post bellum. The decision to pursue international criminal prosecutions for breaches of IHL could be at the expense of building peace and reconciliation, and conversely, if the choice is made to focus on reintegration and reconciliation through amnesties or other forms of transitional justice not including prosecutions, then the post-war peace may not satisfy jus post bellum requirements. As such, the extent of compliance with IHL during the conflict can affect the potential for building a sustainable peace with justice after the cessation of hostilities.

Transitional justice, peacebuilding and transformation

Whilst its origins can be traced to the beginnings of international criminal justice at Nuremberg and Tokyo after World War II, the term “transitional justice” was first used with reference to the political transitions in Europe, South Africa and Latin America, where there was a need to deal with past human rights violations perpetrated by autocratic or authoritarian regimes which had been discredited, defeated or overthrown to make way for a new democratic government.Footnote ²⁸ Common methods of dealing with the past, especially in post-communist Europe, included restitution and lustration, with the latter term referring to the removal from public office of those implicated in the perpetration of mass human rights violations.Footnote ²⁹ In Latin America, as well as in South Africa, historical inquiries or truth commissions were created in order to uncover past violations and establish the truth of what had occurred in the country prior to the transition.Footnote ³⁰ In order to enable a peaceful transition, amnesties were often granted, either blanket amnesties or conditional amnesties as in South Africa, where the Truth and Reconciliation Commission (TRC) pioneered a more forward-looking approach focusing on restorative justice rather than retributive justice through prosecutions.Footnote ³¹

The development of international criminal justice documented in the previous section has contributed significantly to transitional justice, with the establishment of international, hybrid and domestic courts to prosecute those accused of mass atrocity crimes. In some countries, such as Sierra Leone, truth commissions have been established in conjunction with trials in order to further both justice and reconciliation. As an alternative to or accompanying these formal institutions, transitional justice has also been pursued through the application of Indigenous customary mechanisms such as the traditional gacaca system of community justice, which was adapted to deal with the crimes of the genocide in Rwanda alongside domestic prosecutions and the ICTR. Gacaca is an example of an approach that combines elements of restorative and retributive justice in a single mechanism.Footnote ³²

The UN definition of transitional justice provided by the former UN Secretary-General, Kofi Annan, in 2004 identifies the goals and methods of transitional justice, stating that the term covers

Transitional justice as a field of practice has subsequently become standardized around four “essential and complementary” key pillars derived from the UN Principles to Combat Impunity, or Joinet Principles: prosecution initiatives (right to justice), truth-seeking processes (right to know), reparations programmes (right to reparation) and institutional reform (guarantees of non-recurrence).Footnote ³⁴ These four key pillars were identified by the UN in 2010 as central to supporting transitional justice in countries seeking to build peace at the same time as addressing the legacies of mass human rights violations.Footnote ³⁵

Transitional justice is thus much broader than the concerns of IHL and application of ICL in the form of prosecutions; it should not be equated with the implementation of international criminal justice.Footnote ³⁶ On the other hand, in moving beyond the context of democratic transition to become associated with peacebuilding after mass violence, transitional justice can be seen as having more in common with the concept of jus post bellum.

According to the UN, peacebuilding encompasses a wide range of political, developmental, humanitarian and human rights programmes and mechanisms designed to prevent the outbreak, recurrence or continuation of armed conflict.Footnote ³⁷ Peacebuilding has short-term as well as long-term objectives aimed at ensuring sustainability in the security, political, economic and justice sectors. These objectives include the promotion of democracy and accountable governance, as well as sustainable development, the eradication of poverty, and respect for human rights and the rule of law.Footnote ³⁸ The focus on peacebuilding thus encompasses the more traditional transitional justice goal of democracy, but also gives weight to other goals associated with development and human rights that contribute to building peace. Analyzing transitional justice in the context of peacebuilding thus can provide an insight into what may be required for a jus post bellum.

As I have argued elsewhere, however, imposing a model of transitional justice that prioritizes criminal justice undermines the ability of States and local communities to pursue other forms of justice that might be more compatible with the ultimate goals of peace and reconciliation highlighted in the above definition.Footnote ³⁹ Colleen Murphy argues similarly, albeit from a different disciplinary perspective, that responses to wrongdoing in the context of transitional justice need to be “just in the sense of responding in an intrinsically fitting and appropriate manner to victims and perpetrators” in order to satisfy what she frames as the jus in bello analogue requirements.Footnote ⁴⁰

In terms of achieving reconciliation, international criminal justice can be seen as inadequate for a number of reasons, especially in the context of genocide or other situations where a significant proportion of the population has been involved directly or indirectly in the mass violation of human rights. These reasons include the emphasis on punishment or retributive justice, which excludes the perpetrator from society and offers no chance for reintegration, and the potential for reinforcement of the identities of “perpetrator” and “victim” rather than seeing all concerned as survivors who need to live together in close proximity and engage in the new polity as equal citizens.

Justice as part of peacebuilding may therefore be seen as something broader than ensuring criminal accountability, and as a process that goes beyond the short-term notion of a political transition. Transitional justice thus becomes part of a long-term process of transformation to support a comprehensive or holistic and sustainable peace, incorporating both the ending of armed conflict (“negative peace”) and the building of a “positive peace” or “peace with justice”.Footnote ⁴¹ As such, it equates to thinking of jus post bellum as addressing not only the justice of how wars end, but also how to prevent a recurrence through building peace and pursuing accountability.

Transitional justice in the context of building a positive peace suggests the need to include socio-economic and political justice, as well as legal justice that combats a culture of impunity and sets up structures to ensure ongoing respect for human rights and the rule of law. I have argued for a combination of retributive and restorative justice that would promote justice as well as reconciliation, along with symbolic justice experienced as a result of public apologies or the establishment of memorials.Footnote ⁴² Transitional justice therefore requires a transdisciplinary mindset and a holistic and comprehensive approach to societal as well as State transformation, incorporating insights and methods from multiple disciplinary perspectives and experiences which go beyond the dominant Western liberal “peace versus justice” paradigm. A narrow legal mindset, by contrast, limits our understanding of transitional justice both in theory and in practice and its ability to support peacebuilding and, by extension, a meaningful modern interpretation of jus post bellum.

The approach to transitional justice delineated here I have termed transformative justice which involves rethinking our focus away from “transition” as an interim, liminal stage that provides a bridge between the past and the future, and towards “transformation”, which implies ongoing and long-term, sustainable processes embedded in society.Footnote ⁴³ We therefore need to go beyond the domain of law and legal justice – undoubtedly important though it is – in order to understand how transitional justice can contribute to peacebuilding in a way that meets the justice needs of those most affected by violence and atrocities. As I have argued elsewhere based on the results of my field research interviews,Footnote ⁴⁴ transformative justice involves recognizing and addressing the multiple justice needs and expectations of the local population in a way that draws on the various cultural approaches which coexist with the dominant Western world-view and practice – what I call the principles of localization and contextualization.Footnote ⁴⁵ In terms of transformation, we therefore need to go further than Ruti Teitel does in her focus on the role of law in political transformation and how transitional justice can contribute to transforming societal norms in relation to constitutional and legal regimes.Footnote ⁴⁶

Colleen Murphy argues that the core challenge of transitional justice is how to “pursue and achieve societal transformation in a just manner”, which she defines as the “transformation of relationships among citizens into relationships premised on reciprocal respect for agency”.Footnote ⁴⁷ As such, however, she frames these relationships as being governed by the rule of law, at the same time as requiring a certain level of trust and providing “genuine opportunities to shape the terms for interaction in the political, economic, and social arenas”.Footnote ⁴⁸ Her moral theorizing about transitional justice provides support for a number of principles in my model of transformative justice that are helpful for thinking about jus post bellum, including the importance of local participation and contextualization as well as seeing relational transformation along with structural and institutional reform as fundamental to political and socio-economic transformation.Footnote ⁴⁹ Murphy also identifies holism, in the sense of a coordinated combination of responses, as an important principle, arguing that “no single kind of response to wrongdoing should be designed, implemented, or evaluated in isolation, but must take into account what other response(s) to wrongdoing are being pursued”.Footnote ⁵⁰

Culture plays an important mediating role in how people experience violence and atrocities and the potential for accepting “cultural variation in the form of appropriate or fitting responses to victims and perpetrators as well”.Footnote ⁵¹ The application of internationalized Western concepts of individual criminal accountability focusing on retributive justice may not be as relevant or acceptable in a specific cultural context where community restorative justice processes might be more appropriate and meaningful. The imposition of such a standardized approach can be regarded as a form of neocolonialism that ignores local capacities and approaches to justice and reconciliation after armed conflict.Footnote ⁵² As I have argued elsewhere, learning from traditional customary practices that combine rather than separate justice and reconciliation, such as the nahe biti process in Timor Leste, can potentially assist in resolving the peace versus justice dilemma discussed earlier in this paper.Footnote ⁵³

In the following section, the concept of jus post bellum will be explored, taking into account this analysis of the transformative potential of transitional justice in the context of peacebuilding and integrating references to IHL and international criminal justice as particularly relevant to the origins of jus post bellum.

Jus post bellum

One of the founders of international law, Hugo Grotius, made early links between the rightful waging of war and the need for justice at the end of war: “those who waged war with illegal or wrongful intent would have to be held accountable for their actions”.Footnote ⁵⁴ However, it seems that the type of justice envisaged by Grotius in the early seventeenth century was not so much criminal accountability but about taking responsibility for reparations:

Here Grotius is referring to responsibility for starting a war that does not meet the requirements of a just war as well as for damages caused as part of conducting war, hence making early connections between what constitutes jus ad bellum, jus in bello and jus post bellum.

In the following centuries, the primary focus of jus post bellum was indeed on providing reparations for war damages and the expectation of restoring things to a “putatively just or stable status quo ante”,Footnote ⁵⁶ rather than criminal accountability or a social transformation as envisaged as part of peacebuilding in the modern context. As outlined earlier in this paper, the development of IHL from the mid-nineteenth century was significant in codifying the laws of war (jus in bello) to protect the humanity of combatants and non-combatants, but criminal accountability for serious violations of what came to be known as war crimes and crimes against humanity had to wait another century until the Nuremberg and Tokyo tribunals following World War II. Horror at the destruction of war led to developments in relation to jus ad bellum with the Hague Peace Conferences of 1899 and 1907 and moves to end armed conflict as a legitimate activity of States except in self-defence (later reflected in the Covenant of the League of Nations created after World War I, and more definitively in the UN Charter of 1945). Criminal accountability for what were called “crimes against the peace” for those deemed responsible for starting the war in Europe and in the Pacific respectively was also included in the Nuremberg and Tokyo tribunals.

The lack of criminal accountability following World War I (along with the punishing reparations that Germany was required to pay) has been seen as a contributing factor in the rise of Hitler, his perpetration of World War II and the atrocities of the Holocaust in Europe. This lack of accountability included failing to hold the Ottoman Empire responsible for the crimes that it committed against the Armenian population, and not following through with the prosecution of Kaiser Wilhelm II for “a supreme offence against international morality and the sanctity of treaties” and German military personnel for war crimes committed during World War I.Footnote ⁵⁷ The lessons from this experience led directly to the Allies’ resolve to prosecute after World War II, signalling a new focus of jus post bellum on criminal accountability in addition to reparations, albeit one that had to wait another half-century to be fully realized.

After the fall of the Berlin Wall and end of the Cold War in 1991, the newfound ability of the UN to pursue its mandate for the maintenance of international peace and security and the attainment of human rights led to a renewed capacity to implement international criminal justice, along with expanded peacekeeping and peacebuilding missions to help rebuild States torn apart by internal conflicts. These developments could be seen as signalling a new focus on the norms of jus post bellum in the wake of failed attempts to enforce IHL and the norms associated with jus in bello. Nigel White suggests that the need for a jus post bellum in the modern era can be attributed to the continued relevance of the law of armed conflict in mitigating the effects of warfare, including “[in] response to the specific needs of the post-conflict state”.Footnote ⁵⁸

In a specific criticism of the development of international criminal accountability, Ruti Teitel asks, “How can individualized punishment address the systematic wrongs of war that is waged between collectivities?”Footnote ⁵⁹ Colleen Murphy similarly points out that individual trials can hide the “complicity of ordinary citizens” and the “larger societal context in which the atrocities were planned, supported, and executed”.Footnote ⁶⁰ Part of the response to this concern lies in the establishment of truth commissions, which have the mandate and capacity to create a historical record of collective harms, to redirect the focus onto the groups and organizations responsible – including the government – and to make recommendations for reparations, institutional reform and other measures such as the creation of a national human rights commission to prevent recurrence in the future. Whilst truth commissions are a common response to wrongdoing in the context of transitional justice, it is unclear what role they might play in terms of the stricter conditions of jus post bellum. Walzer, for example, “seems to subsume jus post bellum considerations under jus ad bellum”, meaning that our understanding of jus post bellum is a direct response to aggressive war and is limited to a focus on reparations to be paid by the aggressor State and/or criminal accountability for the crime of aggression.Footnote ⁶¹ There are also duties that follow when a war is just, as observed by Orend: “to preserve the justice of a war justly begun and justly fought”.Footnote ⁶² As observed by Teitel, “the question of jus ad bellum – whether a war is unjust or just – evidently has ramifications for the duties of justice in the aftermath”.Footnote ⁶³

In the relatively underdeveloped field of jus post bellum theory, Larry May has proposed and analyzed six jus post bellum normative principles or conditions drawing directly from just war principles relating to jus ad bellum and jus in bello and the sixteenth- and seventeenth-century writings of Francisco Vitoria and Hugo Grotius: retribution, reconciliation, rebuilding, restitution, reparations and proportionality.Footnote ⁶⁴ As May and Edenberg note, three of these principles – retribution (prosecutions), reconciliation and reparations – are also mentioned in the 2004 UN definition of transitional justice.Footnote ⁶⁵ Of the others, restitution is likely to be subsumed under reparations in the context of transitional justice, while rebuilding can be seen as equivalent to peacebuilding, which has developed as a separate concept and as one of the contexts in which transitional justice takes place. The sixth principle of proportionality is a just war principle not generally seen as relevant to transitional justice.

According to Teitel, the “notion of proportionality demands a consonance of purpose, means and consequences that straddles jus ad bellum, jus in bello and jus post bellum”.Footnote ⁶⁶ Teitel discusses the principle of proportionality as it might apply to jus post bellum in terms of the extent to which justice in the form of criminal prosecutions might support or threaten the peace process. I would argue that justice is being implemented in the quest for peace, so therefore, when faced with the decision about whether or not to prosecute atrocity crimes, the concern for how it might impact on peacemaking or peacebuilding should prevail. The question of how to assess this potential impact is answered to some extent by applying jus in bello analogue moral requirements to jus post bellum which, according to Murphy, “are predicated on a recognition that the justice of responses to wrongdoing is not only a function of instrumental effectiveness in contributing to the jus post bellum aim of relational transformation”.Footnote ⁶⁷

Murphy and Radzik propose a broader set of normative principles that go beyond the traditional just war principles of jus ad bellum and jus in bello to be applied in the context of jus post bellum.Footnote ⁶⁸ They start by identifying three general aspects of jus post bellum: the justice of the transition from war to post-war; the justice of dealing with violations of jus ad bellum and jus in bello (including the possibility of other types of response beside criminal prosecutions); and the justice of post-war reconstruction (including whether to go beyond restoration to transformation), which is their main focus of analysis. They argue that in responding morally to the destruction of war, the principles of jus post bellum must go beyond the rights model of traditional just war thinking, and the needs claims of self-determination and humanitarianism, to focus on relationships in order to build a just peace.Footnote ⁶⁹

As part of understanding the rebuilding component of jus post bellum, I would argue that we need to consider the various types of justice that might be required for building peace in each specific case. The question then might become, how do we conceive of just means and outcomes of rebuilding the political institutions and structures necessary for political justice, the socio-economic structures and institutions for socio-economic justice, and the legal institutions and rule of law for legal justice? Murphy and Radzik's answer lies in the principles of political reconciliation and relational transformation that depend on the creation of reciprocal moral agency based on the rule of law, sufficient trust, and support for fundamental capabilities.Footnote ⁷⁰ They explain how capabilities depend on relationships that “embody reciprocity and respect for mutual agency” and need to be restored because of the impact of violence on these capabilities, including the consequences of psychological trauma, physical injuries, reduced resources, insecurity and disruptions to education, health care and economic well-being.Footnote ⁷¹ This approach to jus post bellum, focusing on relational transformation and the need for third-party intervention, can thus be seen as consistent with the evolving transformative and interventionist approaches to transitional justice and peacebuilding discussed earlier.

The Responsibility to Protect (R2P) doctrine first promulgated in 2001 provides some additional clues as to how we might conceive of jus post bellum in today's context. R2P was developed to prevent genocide, ethnic cleansing, war crimes and crimes against humanity, and it includes the responsibility of individual States to protect their populations from such atrocity crimes and of the international community to assist in this endeavour (responsibility to prevent), with the potential to intervene if a State is “manifestly failing” to protect its population from these crimes (responsibility to react).Footnote ⁷² While the application of R2P to preventing mass atrocities from occurring has been limited in practice, the doctrine also offers guidelines for the responsibility to rebuild. These include a wide range of post-intervention obligations relating to peacebuilding, security, development, and justice and reconciliation, with the statement that “if military intervention action is taken … there should be a genuine commitment to helping to rebuild a durable peace, and promoting good governance and sustainable development”.Footnote ⁷³ The responsibility to rebuild calls for the provision of “full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert”.Footnote ⁷⁴ It thus provides a modern example of linking just war principles with jus post bellum.

This new era of peacebuilding and global interventionism created very different circumstances for understanding the concept of jus post bellum, suggesting the need to take on a more flexible and forward-looking approach informed by the new field of transitional justice and ideas about transformative justice. The previously mentioned shift from a focus on democratic transitions to post-conflict peacebuilding as a context for transitional justice was highlighted by Ruti Teitel as one of a number of shifts in the context in which jus post bellum might be applied today.Footnote ⁷⁵ Whilst these shifts have occurred in policies and practices, past peace and security paradigms and approaches to transitional justice and peacebuilding have also continued to prevail, making the context for understanding and applying jus post bellum principles even more complex.

These shifts have included:

1. 1. a move away from aggressive inter-State wars as the norm to also include international and internal conflicts which may be driven by liberal, humanitarian motivations;

2. 2. a move away from more conservative assumptions about restoring the situation pre bellum to a focus on more radical transformation to a different situation post bellum;

3. 3. a move away from collective sanctions aimed at punishing an aggressor State to individualized punishment of private as well as State actors;

4. 4. a focus on accountability for mass atrocity crimes shared between multiple warring parties who are treated equally in the application of ICL to replace experiences of victor's justice;

5. 5. a focus on human rights and human security rather than simply a State-centric view of security as a motivation for war as well as an objective for peace;

6. 6. a different vision of peace that goes beyond the ending and prevention of armed conflict (negative peace) to the building of a long-term sustainable (positive) peace that addresses the root causes of violence and mass atrocities;

7. 7. developments in the legal means and obligation to pursue justice in the form of individual international criminal accountability for serious violations of IHL/mass atrocity crimes (war crimes, crimes against humanity and genocide) as well as the crime of aggression;

8. 8. a widening of the range of types of justice seen as relevant for building peace and reconciliation, including but not limited to retributive, restorative, reparative and distributive justice;

9. 9. a focus on attaining peace with justice that transcends the perceived dilemma of peace versus justice, even though it remains a challenge in practice; and

10. 10. a greater recognition that armed conflict does not necessarily follow a linear path from ad bellum to in bello and post bellum, such that the language of post bellum may not be appropriate when violence is continuing at the same time as peacebuilding and justice seeking.

At the same time, there are multiple legal orders which may be applied post bellum, including human rights law as well as environmental law, refugee law, financial law and development law, which need to be taken into account when applying justice principles and pursuing a holistic approach to justice as part of building peace.Footnote ⁷⁶

There is a need to acknowledge the real tensions between peace and justice that will be experienced in trying to implement the normative principles and obligations of a jus post bellum. As argued by Grono and O'Brien, “[w]hile impunity for people who have committed the gravest acts of inhumanity is morally repugnant, sometimes doing a deal with perpetrators is unavoidable and necessary to prevent further conflict and suffering”.Footnote ⁷⁷ They detail examples where peace agreements were negotiated with perpetrators, as for example in Cambodia, as discussed earlier in this article. In such cases, the instrumental and moral considerations seem to favour the pursuit of peace, at least in the short term, especially where this seems to be consistent with the local context and victim priorities.

Shunzo Majima explains how the US occupiers of Japan following World War II chose to support the rehabilitation of Emperor Hirohito as a leader for peace and unity in Japan and to shield him from indictment for war crimes, and asks whether this evasion of responsibility to hold the emperor accountable meant the occupation should be considered unjust because of the failure to satisfy the jus post bellum principle of retribution.Footnote ⁷⁸ According to a perfectionist assessment, this would be the case. However, applying a holistic approach and considering the principle of proportionality, Majima concludes that the principle of retribution could be considered as at least partially satisfied because of the presumed greater benefits of avoiding a violent response from the Japanese people to the arrest of their emperor, and because others were held accountable at the Tokyo tribunal.Footnote ⁷⁹ Furthermore, Majima argues that the US occupation satisfied the principle of rebuilding through its extensive economic support programme and human rights initiatives, including land reform, and that the decision not to pursue Japanese reparations, whilst failing to satisfy the jus post bellum principle of reparation, could be justified from a holistic perspective because of the motivation to avoid undermining Japan's economic recovery.Footnote ⁸⁰ Using this example of a military victory and occupation of a defeated country considered responsible for an unjust war conducted using unjust means (violating jus ad bellum and jus in bello principles), Majima demonstrates how jus post bellum could be used to conclude that the peace was not unjust, even if not completely just.