Finding Peace in the Law of War

Abstract

As the United States navigates what appear to be the closing stages of operations in Iraq and Afghanistan and continues to support domestic counterinsurgency forces in conflict zones, it becomes increasingly important to consider when the lex specialis recedes and domestic civil law, the lex generalis, becomes the governing jurisprudence. This chapter examines whether these standards that define the start of armed conflict, such as in Article 2 of the 1949 Geneva Conventions and the standard expressed in the case of Prosecutor v. Tadic, from the International Criminal Tribunal for the Former Yugoslavia, simply can be reversed to define the end of the law of armed conflict (LOAC) and a return to civil law. The chapter concludes that they do not, in the inverse, define the conditions for transition from the law of war to the law of peace. Next, the chapter examines experiences from two recent armed conflicts to derive from them insights into the transition to civil law. Afghanistan’s and Columbia’s ongoing difficulties with the transition to peacetime law provide informative case studies and offer potential policy factors that may contribute to the success, or failure, of policy framework supportive of successful transition to civil law. Examination of these two countries will show that LOAC and civil law can apply simultaneously, with separate legal regimes supporting efforts gradually to reduce armed conflict and to encourage civil order. These examples show that a return to peacetime law depends on multiple legal, practical, and political factors.