JUS POST BELLUM AND TRANSITIONAL JUSTICE This collection brings together jus post bellum and transitional justice theorists to explore the legal and moral questions that arise at the end of war and in the transition to less oppressive regimes. Transitional justice and jus post bellum share in common many concepts that are explored in this volume. In both transitional justice and jus post bellum, retribution is crucial. In some contexts, criminal trials will need to be held, and in others truth commissions and other hybrid trials will be considered more appropriate means for securing some form of retribution. But there is a difference between how jus post bellum, where the key is securing peace, and transitional justice, where the key is often greater democratization are conceptualized. This collection of essays highlights the overlap but also the differences between these emerging bodies of scholarship and incipient law. Larry May is W. Alton Jones Professor of Philosophy and Professor of Law at Vanderbilt University, as well as Professorial Fellow at the Centre for Applied Philosophy and Public Ethics at Charles Sturt and Australian National Universities. He is the author of Crimes Against Humanity: A Normative Account (2005), War Crimes and Just War (2007), Aggression and Crimes Against Peace (2008), Genocide: A Normative Account (2010), and Global Justice and Due Process (2010). He is also the co-editor of International Criminal Law and Philosophy (2009 with Zachary Hosk) and Morality, Jus Post Bellum, and International Law (2013 with Andrew Forcehimes.) Elizabeth Edenberg is currently working on her Ph.D. in philosophy at Vanderbilt University. Her article, Unequal Consenters and Political Illegitimacy, co-authored with Marilyn Friedman, is forthcoming in The Journal of Political Philosophy. in this web service
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ASIL Studies in International Legal Theory Series Editors Elizabeth Andersen (ASIL) Mortimer Sellers (University of Baltimore) Editorial Board Samantha Besson (Université de Fribourg) Allen Buchanan (Duke University) David Kennedy (Harvard University) Jan Klabbers (University of Helsinki) David Luban (Georgetown University) Larry May (Vanderbilt University) Mary Ellen O Connell (University of Notre Dame) Onuma Yasuaki (Meiji University) Helen Stacy (Stanford University) John Tasioulas (University College London) Fernando Tesón (Florida State University) The purpose of the ASIL Studies in International Legal Theory series is to clarify and improve the theoretical foundations of international law. Too often the progressive development and implementation of international law has foundered on confusion about first principles. This series raises the level of public and scholarly discussion about the structure and purposes of the world legal order and how best to achieve global justice through law. This series grows out of the International Legal Theory project of the American Society of International Law. The ASIL Studies in International Legal Theory series deepens this conversation by publishing scholarly monographs and edited volumes of essays considering subjects in international legal theory. Volumes in the Series: International Criminal Law and Philosophy edited by Larry May and Zachary Hoskins (2010) Customary International Law: A New Theory with Practical Applications by Brian D. Lepard (2010) The New Global Law by Rafael Domingo (2010) The Role of Ethics in International Law edited by Donald Earl Childress III (2011) (Continued after index) in this web service
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Jus Post Bellum and Transitional Justice Edited by LARRY MAY ELIZABETH EDENBERG in this web service
32 Avenue of the Americas, New York ny 10013-2473, usa is part of the University of Cambridge. It furthers the University s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. w w w.c a mbr id g e.or g Information on this title: /9781107040175 2013 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of. First published 2013 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication data Jus post bellum and transitional justice / edited by Larry May, Elizabeth Edenberg. pages cm. (ASIL studies in international legal theory) Includes index. ISBN 978-1-107-04017-5 (hardback) 1. Peace-building Moral and ethical aspects. 2. Postwar reconstruction. 3. Reconciliation. 4. Restorative justice. 5. Truth commissions. I. May, Larry, editor of compilation. II. Edenberg, Elizabeth, editor of compilation. JZ 5538. J 86 2013 303.6 9 dc23 2013009968 I S BN 9 78-1 -10 7-0 4 017-5 H a r db ack has no responsibility for the persistence or accuracy of URLs for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate. in this web service
Contents List of Contributors page ix Introduction.................................. 1 Larry May and Elizabeth Edenberg 1. Just Military Occupation? A Case Study of the American Occupation of Japan.......................... 26 Shunzo Majima 2. Was damals Recht war... Nulla Poena and the Prosecution of Crimes against Humanity in Occupied Germany......... 44 Lawrence Douglas 3. Community-Based Accountability in Afghanistan: Recommendations to Balance the Interests of Justice......... 74 Mich a el A. Ne w ton 4. (Re)Defining Crimes against Humanity for a Jus Post Bellum World.................................. 113 Charles Chernor Jalloh 5. Jus Post Bellum and Amnesties..................... 152 Ma x Pe n sk y 6. Earthquakes and Wars: The Logic of International Reparations... 178 Gabriella Blum and Natalie J. Lockwood 7. International Criminal Court, the Trust Fund for Victims, and Victim Participation........................ 217 Jovana Davidovic 8. Truthfulness in Transition: The Value of Insisting on Experiential Adequacy......................... 244 Cin d y Hold e r vii in this web service
viii Contents 9. Nunca Más : Truth Commissions, Prevention, and Human Rights Culture............................. 262 Mar gar e t Urban Walke r 10. Transnationalizing Peacebuilding: Transitional Justice as a Deliberative Process........................ 285 Jam e s B ohm an 11. Jus Post Bellum and Political Reconciliation.............. 305 Colleen Murphy and Linda Radzik Index 327 in this web service
Contributors Gabriella Blum Rita E. Hauser Professor of Human Rights and Humanitarian Law Harvard Law School Cambridge, Massachusetts James Bohman Danforth I Chair in the Humanities, Professor of Philosophy and International Studies Saint Louis University St. Louis, Missouri Jovana Davidovic Assistant Professor of Philosophy The University of Iowa Iowa City, Iowa Lawrence Douglas James J. Grosfeld Professor of Law, Jurisprudence, and Social Thought Amherst College Amherst, Massachusetts Elizabeth Edenberg Ph.D. Student of Philosophy Vanderbilt University Nashville, Tennessee Cindy Holder Associate Professor of Philosophy University of Victoria Victoria, British Columbia Charles Chernor Jalloh Assistant Professor of Law University of Pittsburgh School of Law Pittsburgh, Pennsylvania Natalie J. Lockwood J.D., Harvard Law School, 2011 Cambridge, Massachusetts Shunzo Majima Associate Professor Center for Applied Ethics and Philosophy Hokkaido University Sapporo, Japan Larry May W. Alton Jones Professor of Philosophy, Law, and Political Science Vanderbilt University Nashville, Tennessee ix in this web service
x Colleen Murphy Associate Professor of Philosophy University of Illinois at Urbana-Champaign Urbana, Illinois Michael A. Newton Professor of the Practice of Law Vanderbilt University Law School Nashville, Tennessee Linda Radzik Professor of Philosophy Texas A&M University College Station, Texas Margaret Urban Walker Donald J. Schuenke Chair in Philosophy Marquette University Milwaukee, Wisconsin Contributors Max Pensky Professor of Philosophy Binghamton University Binghamton, New York in this web service