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27 Harv. J.L. & Pub. Pol'y 843 (2003-2004)
Factors in War to Peace Transitions

handle is hein.journals/hjlpp27 and id is 853 raw text is: FACTORS IN WAR TO PEACE TRANSITIONS WOLFF HEINTSCHEL VON HEINEGG Situations of international armed conflict regularly give rise to some misunderstandings with regard to the applicable law and its interpretation. This especially holds true if these misunderstandings are reinforced by statements of a purely political character. All too often some commentators, obviously considering such statements to be of higher relevance than the law, prefer to rely upon these statements rather than on a proper analysis of the relevant treaties. The situation in Iraq gives ample proof of legal evaluations that are, to say the least, based on an erroneous interpretation. It is the aim of the present paper to clarify what law applies as the transition from war to peace occurs. To do this, it must first be determined which situations qualify as wars or as international armed conflicts,2 as distinguished from peace. Closely related to this determination are the different forms of terminating and of suspending an international armed conflict. Clarifications of such forms are prerequisites for the identification of the point in time at which the law of armed conflict ceases to apply. After these necessary preliminaries, it will be possible to deal with the rights and duties of an occupying power and with the legal validity of the measures taken by that power. Thus, the ground will be paved for a final determination of what law applies during the different phases marking the transition from war to peace. I. WAR AND PEACE DISTINGUISHED While a state of war may still be brought into existence by a * Prof. Dr. iur., Europa-Universit~t Frankfurt (Oder); Charles H. Stockton Professor of International Law, U.S. Naval War College, Newport, R.I. 1. For example, the claim by the U.S. of having accomplished the mission in Iraq has led to the misperception that the war in Iraq had been terminated. Accordingly, some international lawyers have stated that the law of armed conflict was not applicable to the situation in Iraq and that Saddam Hussein could not be made a prisoner of war. 2. The terms war and international armed conflict are used interchangeably, although the latter term has become more common.