The Jus Post – Bellum Test
To analyse the current Jus Post-Bellum is not an easy task due to the fact that it does not exist as an independent body of law. However in order to do so, here is proposed a methodology which consists of a legal test based on two questions. A question related to the scenario of an occupation after the end of an armed conflict and a question related to the scenario of deployment of a peace operation by the United Nations in the territory of the post-conflict State.
The Jus Post-Bellum test serves to ascertain the current scope that the law permits to treat the three objects of Jus Post-Bellum and achieve its purpose. The fundamental point of the test is that the treatment of the objects requires a great deal of legislative reform in the post conflict state. As a consequence, what needs to be ascertained is if the current law permits such legal reform.
The analysis that follows is imperfect and all are invited to undertake the test and improve the scope of the current Jus Post-Bellum. Further developments on this normative body may depend on the proper analysis of the current applicable law.
This exercise also facilitates the identification of subjects of Jus Post-Bellum and the legislations that may conflict after the conclusion of a war. As a result of the test, here it is proposed that four are the subjects of Jus Post-Bellum:
Subject one: The United Nations– (UN Charter and Resolutions)
Subject two: The Post – Conflict State – (itsdomestic law)
Subject three: Post – Conflict Intervening States or Coalitions – Humanitarian Law – Human Rights Law – their domestics laws.
Subject four: Supportive Subjects – Financial institutions, World Bank. Donors, International Monetary Fund.
It is desirable that a reformed United Nations – one where the Security Council is more representative of today’s world and where the veto power is reduced significantly in scope and use – plays the leading role in the task of reconstruction and rehabilitation of post – conflict states. The future enhanced and comprehensive post-conflict law should express and formalise such role bearing in mind the international legal personality of the United Nations. The International Court of Justice, for instance, has recognised, in advisory opinion dated 11th April 1949, the said ‘personality’ in the following terms:
“The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community.
Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States. This development culminated in the establishment in June 1945 of an international organization whose purposes and principles are specified in the Charter of the United Nations. But to achieve these ends the attribution of international personality is indispensable”.
4.2. Test one, the 1907 Hague Regulations and the 1949 Geneva Convention IV
4.2.1.Starting point: Conservation Vs Transformation
The first question that we must answer is if the provisions contained in the 1907 Hague Regulations and the 1949 Geneva Convention IV, apply in post-conflict situations. In other words, if that body of law regulates occupations which take place after the conflict ended. If the answer is affirmative, then the analysis on the scope for treatment of the Jus Post-Bellum objects can be carried out.
Looking into the categories described by Adam Roberts, post-conflict occupations might correspond to an Armistice Occupation or a Post-Surrender occupation, as they take place after an agreement on the suspension of hostilities or when one part of the armed conflict has surrendered completely. Eyal Benvenisti considers that overall, the law of occupation is relevant and applies to all of the above mentioned categories and in post-conflict situations, he relies on Article 2 of the Geneva Convention IV – which establishes that the convention also applies to all cases of partial or total occupation of the territory of a high contracting party, even if the said occupation meets with no armed resistance” and Article 47 of the same convention, which mandates that protected persons in occupied territories shall not be deprived in any event from the benefits of the convention. Therefore the rule applies generally regardless of the occupation being in time of peace.
Consequently, if after the termination of an armed conflict within the territory of the post-conflict state exists a factual situation of effective control or authority by an intervening state or coalition in the terms of the 1907 Hague Regulations, the post-conflict situation will have to be regulated to a certain extent by the law of occupation, its principles, and obligationsand eventually by the terms of the armistice.
The scope for treatment of the three objects of post – conflict law will depend on the extent allowed by the law of occupation for legislative change. Occupations with transformative purpose therefore, are relevant for this test due to the fact that the treatment of the objects of the Jus Post-Bellum implies a good deal of legislative change in the occupied territory.
The law of belligerent occupation is the product of the political thinking of the nineteenth century which was challenged by the modern conception of the western world. It serves two purposes, one, to protect the sovereign rights of the legitimate government of the occupied territory, and the consequential denial of sovereignty to the occupant and secondly to protect the inhabitants of the occupied territory from being exploited for the prosecution of the occupant’s war in a way which is forbidden by the ordinary rules of war.
In the 19th century an occupant could not alter the political order of a territory. That purpose remains at the heart of current Applicable Law of the Hague Regulations 1907. On the contrary, the 20th and 21st centuries have presented different types of motives for occupations driven mainly by transformative purposes but these purposes have not been translated into law.
If one is to consider Occupation Law as a body that potentially regulates post-conflict situations, then the conservationist principle would play a role in post-conflict situations, as it frames the International Law in this regard. The said principle suggests a minimal intervention purposeand a duty of respect by the occupant to the occupied power institutions. Furthermore, it is the result of one of the main features of the occupation’s legal framework, namely that there is not transfer of sovereignty from the occupied state to the occupying power.
What seems to be the case is that the conservationist principle overall, has failed to respond to the needs of the population of the occupied territory and the demands of the international community in post conflict situations; such as the occupation of Germany and Japan in 1945 and recently US led occupation of Iraq in 2003, where the aims were transformative. For example, “It was not the intention of the allies to destroy or enslave the German people. It was the intention of the allies that the German People be given the opportunity to prepare for the eventual reconstruction of their life on a democratic and peaceful basis”, and “given the nature of the occupation of Germany, the law in force in Germany remained the German Municipal law, although of course the Control Council, being the Government of Germany was fully competent to change or modify this law in any way”.
Before these apparently irreconcilable notions of transformation and conservation, Adam Roberts proposes that the way they can be unified is trough the application of Human Rights and the involvement of the United Nations. In its advisory opinion concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice, for example, found that the applicability of Human Rights was compulsory for the occupying power. It’s certainly central for the Jus – post bellum to acknowledge in its legal framework this transformative ideal of Human Rights being always observed after the conclusion of an armed conflict.
188.8.131.52. Article 43 of the Hague Regulations 1907 and the basis of Jus Post-Bellum
Article 43 of the 1907 Hague Regulations, represents a mini – constitution, and a set of right and obligations for the occupying power in a post – conflict situation. It also sets the scope of legislative power given to the occupant. The article reads as follows:
“The authority of the legitimate power having in fact passed in the hands of the occupant, the latter shall take all the measures in his power to restore and ensure as far as possible, public order and safety, while respecting unless absolutely prevented, the laws in force in the country.
Public Order and Safety are the English translations of the French words l’ordre etla vie publique. At the Brussels convention (the immediate background of this provision) the meaning of l’orde and la vie publique was discussed and it was concluded that, by l’order, the convention meant security or general safety and by la vie publique it referred to social functions and ordinary transactions which constitute daily life.
It has been suggested that security is a central element of the Institutional Object of Jus Post-Bellum, in fact, it should be considered a basic right of this normative body. The 1907 Hague Regulations in Article 43 provides a fundamental provision as to the obligation of the occupant to guarantee security for the subjects of an occupation. That certainly would be applicable in the case of a post – conflict situation.
When looking at the text of Article 43 of the 1907 Hague Regulations, and the objects of Jus Post bellum, it is important to recognise that the task of restoring and ensuring security and safety by the occupant in the post-conflict state would be difficult in the absence of a strong judiciary system and police in place. In this regard, the word l’ordre has a relationship with the Institutional Object of Post – Conflict Law.
In the same way the concept of la vie publique, is related to the individual and infrastructure objects of Jus Post – Bellum in that the ordinary transactions which constitute daily life cannot be properly restored and ensured, in the absence of an appropriate infrastructure in place, nor without appropriate treatment of the individuals affected by the armed conflict.
In order to safeguard the humanitarian object of jus post – bellum, local laws might be suspended, when they discriminate on a basis of colour, race, political opinion or religion and creed on the grounds that such legislation does not serve to promote the public order and safety for which the occupant is responsible. 
Article 43 of the 1907 Hague Regulations is also clear as to the obligation of the occupant to respect the laws in force in the country. The only exception to this mandate is a situation which absolutely prevents the occupant from doing so.
The relevant Jus post – Bellum points in regard to these provisions will be then to ascertain the degree of legal change needed to meet the demands of the three objects of Jus Post-Bellum the humanitarian, the institutional and the infrastructural and the degree of legal change allowed by the Hague Regulations.
Lord McNair and C.A.H. Watts, for instance, mentions that the occupant has not right to make even temporary changes in the law and in the administration of the country, except when it is necessary for the maintenance of order, the safety of his forces or for the realization of the legitimate purpose of his occupation. Ernest Felchenfeld said that a total displacement of national laws and the introduction of the national law of the occupant would violate Art 43 of the 1907 Hague Regulations but the term absolutely prevented cannot be read literally, the imposition of new laws must be adequately justified. Gerard Von Glahn quoting Morgan, talks about legal change for the imperative requirements of war.
Despite these approaches, there is not a clear interpretation of Article 43 and it has to be examined separately in each case. For example, in Graham Vs DPP the Control Commission Court of Criminal Appeal had to decide the appeal of a British National employed by the Control Council for Germany and answer if the military commander of the British Sector of Great Berlin had power to set up courts or legislate, specifically on a) offences punishable by military government courts, b) establishing military government courts c) altering structure of military courts and d) expanding rules of procedure of the courts. The court concluded that the authority of the commandant of the British sector subordinated to the limits set by control council law are declared by Article 43 of the 1907 Hague Regulations and that the provision is sufficient authority to legislate on those aspects.
Art 43 of the 1907 Hague Regulations must be read also in connection with art 64 of the 1949 Geneva Convention IV. It allows the occupying power to repeal or suspend the penal laws of the occupied territory in cases where they constitute a threat to its security or an obstacle to the application of the convention.It further states that the tribunals of the occupied territory shall continue to function in the interest of the effective administration of justice.
184.108.40.206 Other provisions and Jus Post-Bellum Objects
Institutional and Humanitarian rehabilitation and reconstruction in a post – conflict state requires a great investment of resources both human and financial. The task of ‘institutional’ and ‘individual’ rehabilitation is something that must be considered to be in the benefit of the post-conflict state.
Art 48 of the1907 Hague Regulations has especial relevance when it states that if the occupant collects the taxes, doles and tolls imposed for the benefit of the state, he shall do so as far as possible, in accordance with the rules of assessment and incidence in force. The occupant power is therefore bound to administer such income in the same way as the Legitimate Government was bound.
Art 49 of the 1907 Hague Regulations further states that: “if additional money contributions are collected in the occupying territory this shall only be for the needs of the army or of the administration of the territory in question”.
There are limitations to the occupant on management and destination of resources and there is a mandate to direct those resources to the military needs and the administration of the occupied territory not to the own affairs of the occupant. That is an expression of the conservationist principle of an occupation.
These provisions suggest a code of conduct and ethics of post-conflict management and the justice after war. The tasks of reconstruction and rehabilitation in post –conflict situations cannot be seen as a profitable business for the occupant but as a comprehensive humanitarian task.
That is why George Bush was criticised in regard to the occupation of Iraq in 2003 when he stated that France, Germany and Russia should be excluded from lucrative contracts for the US-led reconstruction of Iraq, he said:
“The taxpayers understand why it makes sense for countries that risks life to participate in the contracts in Iraq. It is very simple. Our people risk their life, friendly coalition folks risk their lives and therefore the contracting is going to reflect that”
The destination of resources in post-conflict situations by the occupant should be to the management and treatment of the objects of post – conflict law as that is indispensable for the public order, safety and for the administration of the post-conflict state.
The individual objects of post-conflict law have a comprehensive protection framework in the 1949 Geneva Convention IV, Section III, where a situation of occupation takes place after the conclusion of an armed conflict. The convention delineates a bill of rights for the occupied population, and a set of internationally approved guidelines for the lawful administration of occupied territories”
Basic rights of Individuals are also safeguarded in article 46 of the 1907 Hague Regulations which provides a basic mandate to the occupant to respect honour and rights, the lives of persons and private property, as well as religious convictions and practice.
Article 47 of the 1949 Geneva Convention IV provides that in occupied territories the individuals should remain protected by the Geneva Conventions independently of any legal change taking place after the conclusion of the armed conflict and Article 49, if read as a post – conflict law, would state that “individual or mass forcible transfers and deportation of civilians from the post–conflict state to the occupied territory or other territory are forbidden save for total or military evacuation for the security of the population or military needs.
Another important aspect of the humanitarian object and the infrastructural object in post – conflict situations is to facilitate the employment of civilians, ex-combatants or refugees affected by armed conflict. It is possible that the occupying power in its post-conflict rehabilitative task finds himself being an employer. In that case, articles 51 and 52 of the 1949 Geneva Convention IV, contains basic rules to be observed. There are recommendations on the minimum age of employment, continuity of usual place of employment, and proportionality in the wages to the physical and intellectual capacities of the individual. Furthermore the labour legislation in place in the post–conflict country concerning working conditions and safeguards shall still be applicable. In addition to this, Article 56 mandates the occupant to maintain in good state medical and hospital establishments and services and to comply with basic health and hygiene standards.
On the infrastructural object, Art 56 of the 1907 Hague Regulations gives a special treatment to properties of institutions dedicated to religion and charity or to historic monuments, works of art and science. Buildings dedicated to education purposes are also specially protected. Furthermore Article 53 of the 1949 Geneva Convention IV has a prohibition on the destruction of private property but allows such destruction when it is necessary for military operations.
Clearly the aims and objectives of Jus Post-Bellum goes beyond a mere maintenance of the status quo ante bellum in the post-conflict state but some Jus Post-Bellum principles can be elaborated from these provision, overall, the law of belligerent occupation, the 1907 Hague Regulations and the 1949 Geneva Convention IV, provide a legal framework for post-conflict management and for the treatment of its objects and purpose. Its provisions are very limited in scope but must be regarded basic rules of Jus Post-Bellum.
4.3 Test two, the mandates to Peace – Operations.
4.3.1. The legal sources of Jus post – bellum
The Security Council has the general function of maintaining peace and security pursuant to art 24 (1) of the United Nations Charter which creates and defines peace operations in post – conflict countries through, mainly, Security Council Resolutions.
Article 24 (1) of the United Nations Charter states that:
In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
The most important tool that the Security Council has to carry out this function is provided by Chapter VII of the United Nations Charter where this body could decide upon provisional measures not involving the use of force, which may include complete or partial interruption of economic relations. If such measures are inadequate or have been proved to be inadequate to maintain international peace and security, then the Security Council may decide to use force.
Historically, peace operations have been responses to a situation where international peace and security was at risk and where the International Community as a whole acted with an spirit of cooperation. They were envisaged originally as a United Nations instrument to control conflicts, specifically internal armed conflicts during the 1980s and 1990s, and to prevent their escalation by performing tasks relating to civil order and security.
The original idea of peacekeeping, as deployed in the Middle East in 1948, was based on three principles defined by Dag Hammarskjold: firstly, it required the consent of the parties, secondly, it should not influence the military or political balance of power among the parties, and thirdly, the mission would be temporary in duration.
These principles have special importance for the scope of transformation that a peace operation can undertake in a post – conflict state. The consent, for instance, may help to overcome the prohibition of art 2 (7) of the United Nations Charter to not intervene in matters which are essentially within the domestic jurisdiction of any state. In any event, the question of a matter being solely within the jurisdiction of a state has been regarded as a relative question and the states have tended to accept that the United Nations should be entitled to act against Human Rights violations independently of the provision of article 2(7) of the United Nations Charter, which also provides that the principle of non intervention shall not prejudice the application of enforcement measures under Chapter VII.
In spite of these principles several operations such as the United Nations Mission in Kosovo (“UNMIK”) and the United Nations Transitional Administration in East Timor (“UNTAET”) were not deployed to the territories in question based on the consent of the Sovereign State but pursuant to the enforcement actions provided in Chapter VII of the UN Charter to maintain international peace and security in the regions where the armed conflict was taking place.
Consequently, the legal nature of the Jus Post–Bellum transformation by the United Nations in post – conflict countries and by peace-operations is the result of either – the consent of the sovereign state (post – conflict state) to these missions or – Chapter VII of the UN charter. Those are the Jus–Post bellum sources of test two.
It is possible to create certain Jus Post– Bellum principles from the way the Security Council has drafted its mandates for peace operations. However some of them lack clarity and the language used is not appropriate, the language tend to be not specific and most of them lack the involvement of the international community in the post–conflict tasks.
The definition of the mandates has ranged from vague to clear and from limited in scope to broad. However it can be ascertained that through the deployment of peace-operations there is a legal option to achieve the purpose and to treat the objects of Jus post – bellum.
The attendance of refugees and displaced persons is a priority in post – conflict situations as well as the verification of disarmaments and ceasefires which are in the nature of the peacekeeping missions. Furthermore humanitarian tasks and relief functions are at the heart of most of the mandates. The protection of Human Rights is a key component and emphasis has been made in the assistance of woman and children victims of sexual abuse and violence during the armed conflict.
The mandates for peace–operations show that the United Nations’ legal framework provides a greater scope for transformation, reconstruction and rehabilitation of a post – conflict state. The examples of Kosovo, Iraq and East Timor prove that conclusion.
Whilst the 1907 Hague Regulations and the 1949 Geneva Convention IV provisions relating to occupation are a Jus post-bellum that apply exclusively to International Armed Conflicts, due to the their nature, the peacekeeping missions’ mandates on the other hand are a Jus Post-Bellum that apply both to armed conflicts of inter-state and internal character.
 The Jus post – bellum test is based on: Boon, K., Legislative Reform in Post – Conflict Zones: Jus Post Bellum and the Contemporary Occupant’s Law – Making Powers. . McGill Law Journal 2005. 50(3): p. 3- 41
 Boon, K, op., cit. pg 16
 For an example of such conflict of applicable law in post – conflict situations see Al – Jedda Vs. Secretary of State for Defence  UKHL 58
 The applicable law in the aftermath of an armed conflict is a complex issue. The Brahimi Report so acknowledges and further proposes a provisional common United Nations Justice Package, an interim legal code while the final answer to the “applicable law” question is worked out. United Nations, Report of the panel on United Nations Peace Operations, (2000), Paragraphs 79 – 81, available [on line] at: http://www.un.org/peace/reports/peace_operations/ [accessed: 03 – 11 – 07]
 For an account of proposals of reform on the United Nations’ role and purpose see for example, Müller, J.W., Reforming the United Nations : new initiatives and past efforts. 1997, The Hague ; Boston: Kluwer Law International (Vol 1), pg I/128 – I/209
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion,  I.C.J. Rep. 178.
 Roberts, A., What is a Military Occupation? . British Yearbook of International Law, 1984: p. 296- 271
 Gerhard von Glahn also classifies occupations dividing them into two groups: occupations in times of war and occupations in time of peace. In time of peace he mentioned a category of conventional occupation based on an agreement with the foreign sovereign, other category was forcible occupationwithout the benefit of agreement, and finally policing occupations. von Glahn, G., The occupation of enemy territory : a commentary on the law and practice of belligerent occupation. 1957, Minneapolis: University of Minnesota Press. xiii, pg 27
 Benvenisti, E., Applicability of the Law of Occupation. American Journal of International Law Proceedings, 2005. 99: p. 29-31
 , A. and R. Guelff (1999). Documents on the laws of war. Oxford, Oxford University Press pg 301
 For a definition of territory in the light of a post – conflict legislation it’s worth exploring the idea of War TornTterritory. It help us to envisage that the applicability of the jus post – bellum framework may not be necessary in the whole territory of the post – conflict state but in an specific place with “certain discernible or attributable characteristics”. Those characteristics can be defined based on the assessment of the Jus post – bellum objects, specifically the humanitarian and the infrastructural in that territory. On insights of such concept see Jackson, R., International Engagement in War – Torn Countries. Global Governance, 2004. 10(1): p. 22-23
 Roberts, A. and R. Guelff (1999). Documents on the laws of war. Oxford, Oxford University Press pg 80
 An example of such event was the occupation of Germany after 7th May 1945 and subsequent to the Berlin Declaration of June 5th 1945, where Germany was subjected to the “supreme authority by Governments of the allied power”
 Roberts, A., Op. Cit., (note 97) pg 267
 Benevisti, E., The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective. IDF Law Review, 2003. 1: p 20 – 34
 J Jennings, R.Y., Government in Commission. British Yearbook of International Law, 1946 23: pg 135
 Bhuta, N., The Antinomies of Transformative Occupation. The European Journal of International Law., 2005. 16: p. 721-740
 The occupying power should respect the existing laws and economic arrangements within the occupied territory.
 Benevisti, E., Op. Cit (Note 104)
 Charles Garraway in Carsten Stahn & Jahn K. Kleffner (eds.) (2008). Jus Post Bellum Towards a Law of Transition from Conflict to Peace. The Hague, T.M.C. Asser Press Pg 159 – 162; pg 154
 The Times Newspaper, 3 August 1945, as quoted by Jennings, R.Y., Op. Cit.,( Note 2) pg 123,
 Ibid, p 132
 Roberts, A., Transformative Military Occupation: Applying the Laws of War and Human Rights American Journal of International Law, 2006. 100: p580 – 622
AO on the Israel Security Wall (2004) ILMI
 Benvenisti, E., The international law of occupation. Paperback ed. 2004, Princeton, N.J.: Princeton University Press. xviii, pg 9
 See Schwenk, E. H. (1945). “Legislative Power of the Military Occupant under Article 43, Hague Regulations ” Yale Law Journal 54: 394-416
 Roberts, A. and R. Guelff (1999). Op. Cit., (Note 101)
 For the scope of this interpretation see Grahame v. DPP 14 AD 228 “The expression relates to the whole social, commercial and economic life of the community”.
 Schwenk, E. H. (1945). Op. Cit., (Note 114) Pg 398
 Refer to chapter III (3.2.) above.
 Von Glahn, G., The occupation of enemy territory : a commentary on the law and practice of belligerent occupation. 1957, Minneapolis: University of Minnesota Press. xiii, pg 95
 McNair, A.D.M. and C.A.H. Watts, Op. Cit., pg 369
 Feilchenfeld, E.H., Permanent Court of International Justice., and Carnegie Endowment for International Peace. Division of International Law., The international economic law of belligerent occupation. 1942, Washington: Carnegie Endowment for International Peace. xii, pg 89
 Von Glahn Op. Cit., pg 94.
Grahame v. DPP 14 AD 228
 Roberts, A. and R. Guelff (1999). Op. Cit., pg 81
 Bass, G.J., Jus Post Bellum. Philosophy & Public Affairs, 2004. 32(4): p. 391
 For an example of a provision regarding funds and resources in post – conflict situations see Operative Paragraph 24 of S / RES / 1546 (2004) of 8th June 2004 the Development Found for Iraq.
 Section III of 1949 Geneva Convention IV is considered by Yoram Dinstain as a “minimum international standard of due process of law for securing life, liberty and property of civilians in occupied territories”. Yoram Dinstein, Human Rights in Armed Conflict in Meron, T., Human rights in international law : legal and policy, issues, Vol 2. 1984, Oxford: Clarendon. xx, pg 349
 Benvenisti 2003, Op. Cit., (note 104)
 Roberts, A. and R. Guelff (1999). Documents on the laws of war. Oxford, Oxford University Press pg 318 – 320
 Ibid., pg 82
 Evans, M.D., International law documents. 7th ed ed. Blackstone’s statutes. 2005, Oxford: Oxford University Press. viii, pg12
 Ibid, pg 15
 For an account of peacekeeping missions since 1946 See generally Higgins, R., United Nations peacekeeping: documents and commentary 4, Europe 1946-1979. 1981, Oxford: Issued under the auspices of the Royal Institute of International Affairs [by] Oxford University. xii,419.
 For an account of the legal framework of UN intervention and its evolution see Chantal de Jonge Oudraat in Brown, M.E., The international dimensions of internal conflict. CSIA studies in international security ; no. 10. 1996, Cambridge, MA: MIT Press. Pg 490 – 535
 Ratner, S., The new UN peacekeeping : building peace in lands of conflict after the Cold War 1995: MacMilla pg 32
 Boon, K., Legislative Reform in Post – Conflict Zones: Jus Post Bellum and the Contemporary Occupant’s Law – Making Powers. . McGill Law Journal 2005. 50(3): pg. 6