Security related law is undergoing fundamental changes with the growing importance of human rights law, international criminal law and transitional justice. These changes reflect the continuing adaptation and reformulation of legal rules and instruments, as well as the development of new ones. A prominent example is the extension of responsibility for protection and prevention from states to individuals in cases of war crimes, crimes against humanity, and genocide. The rules concerning state responsibility are also changing, in particular the duty of the state to protect its population and the basis for other state or non-state actors to fulfil this duty when it fails to do so (e.g., Responsibility to Protect).

Nevertheless, the current legal regime represents a mismatch of new families of law that extend internal notions of the rule of law, based on individual rights, beyond the nation-state, and classical international law that applies to states, such as international humanitarian law, as well as domestic law. The tensions, gaps and contradictions inherent in this regime raise a number of unsettled questions, for example what body of law should apply in occupation situations like those associated with the ‘war on terror’. The security implications of novel legal instruments, such as the International Criminal Court and various mechanisms of transitional justice, are also currently unclear and subject of ongoing debate. A major part of the programme is about clarifying these developments and analysing how and whether they can address the changing experience of insecurity.

The central research questions for this part of the project are the following:

1. Is the international legal regime adapting to address the security gap and how effectively?

The objective is to assess the changing international legal regime and its accessibility, coherence and effectiveness in addressing insecurity across a spectrum of social conditions. Legal categories such as international armed conflict, internal conflict, internal unrest, displacement, international territorial administration, occupation, and post-conflict reconstruction do not fit easily into contemporary forms of insecurity, thus we will need to redefine what those categories are. Since 1945 the international legal system has evolved from a system for protecting state security to the concept of collective security for the maintenance of international peace and security through the prohibition of the use of force in international relations, except where authorised by the United Nations Security Council. National security, however, remains key in the exception provided for self-defence in the event of an armed attack. Alongside this jus ad bellum is the jus in bello – the legal framework for the conduct of armed conflict and regulation of permissible weaponry (international humanitarian law).

Both these legal regimes assume classic ‘old wars’. The emergence of new forms of insecurity has exposed gaps and uncertainties in the law that have given rise to claims for new exceptions to both regimes. In addition, since 1945 other legal regimes have evolved that are centred on the protection of individuals from arbitrary exercises of power and from deprivation of the essentials of life: human rights law, applicable to all individuals within a state’s jurisdiction and other regimes applicable to particularly vulnerable persons, for example refugees, internally displaced persons, children. These regimes may be more appropriate for ensuring individual security than those crafted for situations of armed conflict but again there is lack of clarity about their scope of application, substantive requirements and permissibility of exceptions.

2. Do novel instruments of international criminal law and transitional justice exacerbate or help to close the security gap?

The objective is to clarify the role of novel justice instruments, in particular international criminal law and evolving mechanisms of transitional justice, in addressing and mitigating contemporary forms of insecurity. The investigation will break with the old paradigm of thinking about justice, peace, and transition, which has been premised on a clear demarcation between ‘war’ and ‘peace’ and discrete, linear stages of conflict and transition (e.g. in the Peace v. Justice debate and discussions of ‘sequencing’). The impact of justice responses on contemporary forms of insecurity will be assessed by exploring their potential to address a set of challenges currently ignored in the literature, such as the persistence and recurrence of conflict, the links between political violence and organized crime, and the erratic course of transition. Against this background, the project will seek to ascertain whether justice exacerbates or mitigates the security gap and in what ways. The methodology will combine conceptual and empirical analysis, focusing on two case-studies: the Balkans and Afghanistan. These regions offer insight across the whole set of questions raised about conflict, peace and transition. They are particularly well-suited to assess the impact of various justice responses (Balkans) and of their absence (Afghanistan), contributing to a balanced examination of the relationship between justice and security.