The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (100 page)

DAVID SCHEFFER
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M
ILITARY
occupation law is an ancient set of rules that have long been considered to be an important part of international law.
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This body of law, a main purpose of which is to limit the amount of change that an occupier can impose on an occupied society, remains valid and useful. However, its application can be problematical in certain occupations in which an outside force seeks to transform the laws, institutions, and customs of a society. Such transformation is arguably inconsistent with traditional occupation law. Since the end of the Cold War, an obvious question has arisen. In those occupations which incorporate a degree of control by, or recognition from, the UN Security Council, does the Council have the legal right to set aside certain provisions of occupation law in the interest of transforming the political, legal, and social order within a state? And should it do so?

Until May 2003, when it undertook a highly unusual role in relation to the US-led occupation of Iraq, the UN Security Council had not been involved in managing or overseeing territories administered under occupation law. It had never authorized or deployed a military force that was explicitly intended to operate under the rules relating to military occupations. What the Security Council had done on certain previous occasions, and has continued to do, was to authorize certain peacekeeping and peace enforcement operations to undertake, or assist in, the administration of territories, including transformation of their laws and institutions, but without making specific reference to the law on occupation. There was thus some degree of divergence between UN law and military occupation law, but the divergence had raised few concerns. This was because, while all UN-authorized forces in the Weld (whether under direct UN control, or authorized forces under national/alliance command) have long been assumed to be under a general obligation to observe the laws of war, the specific idea that a force acting under UN auspices might have the character of an occupying army had not been addressed in any Security Council resolution. This was not surprising, as many (but not all) UN involvements were by consent of the host state, and hence were from the start distinct from the typical case of occupation.

This lack of reference to occupation law changed with the Anglo-American military occupation of Iraq. The invasion of Iraq, carried out in March-April 2003 without a specific UN Security Council mandate, created a perplexing interplay of occupation law and practice that should
not
become the model for the future. The occupation resulting from that war was subject to the law on occupation. In May 2003, the Security Council (with the two occupying powers voting as Permanent Members of the Council) set out a legal framework for the administration of a conquered Iraq.
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The Council recognized that the occupation was administered by the armed forces of the US and the UK under international occupation law, a legal framework that the leaders of those two countries publicly acknowledged. The Council passed an authorizing resolution only some weeks after the commencement of the occupation. That same resolution of May 2003 referred briefly to certain ambitious goals for the occupation – goals which arguably went beyond the bounds of what is normally permissible under occupation law. It is this apparent tension between legitimate and internationally approved transformative goals, and the long-established framework of the law on occupation that this chapter seeks to explore. It looks at several Security Council-mandated administrations, including the military occupation of Iraq, and considers the question of the application of occupation law in them.

The fact that the occupation of Iraq has run into such terrible difficulties raises questions about the validity of the idea of transformative intervention that was applied there. The causes of the failures are deep and numerous, and are beyond the scope of this chapter. They include an over-ambitious destruction of the Iraqi state structure before there was anything to put in its place. It is even possible that the US-led coalition would have done well to follow at least some of those rules of occupation law that militate against sudden and radical transformation.

This does not mean that the basic question addressed in this chapter – the question of whether the rules of occupation law need to be varied in particular cases – is discredited or out of date. Iraq is far from being the only case of a massive UN-authorized military and administrative presence in a damaged society: other cases are mentioned below, and more will occur in future. So the issue of whether existing rules are adequate, or need to be overridden in particular cases or even fundamentally revised – and the role of the Security Council in these processes – will continue to be important.

Many situations in which armed forces exercise control over foreign territory involve unique elements and circumstances. The application of a single set of rules to such situations raises difficulties. One possible reason for the reluctance of many states to accept the full
de jure
application of occupation law to occupations in which they are involved may be a belief, whether or not justified, that the situation differs significantly from the typical case of military occupation.
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This has been especially the case in the post-Cold War era.

The occupation of Iraq in 2003, for example, quickly became a transformational process to overcome the legal and institutional legacy of a despotic and criminal regime, and therefore required strained interpretations of occupation law in order to suit modern requirements. As I suggested at the time, such unique circumstances would be far better addressed by a tailored nation-building mandate of the Security Council. Ideally, that mandate would implement (1) those principles of occupation law (particularly humanitarian and due process norms) that remain relevant to the circumstances (including
jus cogens
and
erga omnes
obligations);
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and (2) other principles of modern international law pertaining to human rights, self-determination, democratization, the environment, and economic development so as to create a legal regime uniquely suitable for the territory in question.

A UN Security Council authorization, pursuant to
Chapter VII
of the UN Charter, of a peace operation resulting in de facto military occupation could significantly modify the range of responsibilities under occupation law, except perhaps those of a
jus cogens
character, that would otherwise require strict adherence by the occupying power(s).
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The modern law of occupation should accommodate twin realities: first, the legitimating impact of Security Council authorization and delegation of responsibilities to military forces deployed into a territory, and, second, the fact that it is now commonly the international community’s intent to transform a society under military occupation. In most cases, multilateral military interventions, particularly Security Council-authorized missions that are followed by prolonged and widely supported multilateral deployment of military forces and civilian administrators aimed at transforming societies, will require a far more pragmatic body of rules and procedures than occupation law currently affords.

Military occupation law has a well-recorded history of development and is a largely codified, if under-implemented, field of international humanitarian law.
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The poor level of implementation can be attributed in part to the considerable difficulty that can arise in coordinating a strict reading of codified occupation law with its practical application to the variety of circumstances that may arise.

The occupying power must fulfil a range of humanitarian responsibilities that require it to be proactive, and must also adhere to explicit prohibitions in the administration of the occupied territory and in the enforcement of law. The major principles of occupation law are codified in the 1907 Hague Regulations, 1949
Geneva Convention IV, and 1977 Additional Protocol I, which require the occupying 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. The elements of occupation law that may become inconsistent with the goals of a transformational exercise include Article 43 of the Hague Regulations requiring respect, unless absolutely prevented, of the laws in force in the country. Other potentially inconsistent elements are found in Geneva IV, including provisions

• requiring that any individual protected person who is actively hostile to the security of the occupying power shall not be deprived of the rights of fair and regular trial prescribed by Geneva IV (Art. 5);

• preventing the inhabitants being deprived of any of the benefits of Geneva IV by any change introduced into the institutions or government of the occupied territory or by any agreement between local authorities and the occupying power (Art. 47);

• prohibiting individual or mass forcible transfers (Art. 49);

• requiring work only under special conditions (Art. 51);

• prohibiting creation of unemployment (Art. 52);

• prohibiting destruction of real or personal property unless absolutely necessary by military operations (Art. 53);

• forbidding alteration of the status of public officials or judges (Art. 54);

• requiring that the penal laws of the occupied territory be maintained in force unless a designated exception in the law applies (Art. 64);

• prohibiting the creation of retroactive penal provisions (Art. 65);

• allowing the constitution only of non-political military courts sitting in the occupied country (Art. 66);

• prohibiting the arrest, prosecution or conviction of any inhabitant for acts committed or opinions expressed prior to the occupation except for violations of the laws and customs of war (Art. 70) and ensuring certain due process rights of accused persons (Arts. 72–6).

Additional Protocol I requires the occupying power to provide for the physical welfare of the population through the provision of, inter alia, food, shelter, and clothing (Art. 69).
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Occupation law was not designed to transform society.
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It permits tinkering on the edges of societal reform, but it is not a licence to transform. If it were, then the door would be wide open for abuse by aggressive and benevolent armies alike. The fundamental premise of occupation law was traditionally to confine the occupying power to humanitarian objectives that essentially preserved the status quo, and denied the occupying force the power to transform the territory it held (often illegally). The consequence is that, at least in some circumstances, strict compliance with occupation law could have the perverse effect of harming the population in a way that a Security Council-authorized deployment operating under rules tailored for the specific needs of the target society would not.

Responsibilities and constraints thus define the corpus of traditional occupation law, which then must be adjusted to apply to the particular type of occupation at issue. The end result can be anything but clear. This is because the dominant premise of occupation law has been that regulation is required for the temporary military occupation of foreign territory, but not necessarily for its transformation.
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The law’s main objective has been to address the humanitarian and penal law requirements of a society both during and in the immediate aftermath of a conflict when a military force remains on foreign territory on a provisional basis.

Certainly, occupation law should not be construed to encourage or facilitate prolonged occupation, even though it is acknowledged that many modern occupations (denied as such by their sponsors) have lasted for years.
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The law has been designed to encourage temporary occupation and to establish rules for that temporary occupation. The alternative of a prolonged occupation (although quite common) can be far too tempting an objective for an aggressor force or even a benevolent force inclined to use its military might to achieve strategic goals that, as a matter of international law, should be pursued without resort to force.
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The Allied occupations of Germany and Japan after the Second World War offer little guidance. The Allies claimed exemption from the 1907 Hague Regulations, which proved critical since the plans for occupation would not have complied with the then-existing occupation law. Indeed, the unconditional surrender of Germany (but not necessarily of Japan) seemed to fortify the Allied argument at the time that the
debellatio
doctrine applied rather than occupation law.
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The applicability of the
debellatio
doctrine was contested, however, and has little if any place in contemporary practice, particularly following adoption of the 1949 Geneva Conventions. Nonetheless, the underlying idea – that certain foreign military presences should not be constrained by all the rules of occupation law – re-emerged in the post-Cold War era, largely under the auspices of the UN Security Council.

The importance of UN legitimation of the use of force since the end of the Second World War, reflected in UN peacekeeping operations and Security Council-authorized military campaigns, renders a full application of occupation law inappropriate and even undesirable in many situations. A category of occupation law that strives to embrace such operations can be created, as Adam Roberts has skilfully shown.
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But the exercise is increasingly artificial and begs for an alternative legal framework that recognizes, as Roberts has demonstrated, the political realities of modern practice.
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Occupation law remains an important regime in the context of military force leading to belligerent occupation both during and after an armed conflict. Even if an occupying force chooses not to comply with or even recognize occupation law, at least the government and relevant officials executing the action are on notice and can be held to account for violations during a belligerent occupation.