The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (101 page)

In recent years, multilateral or humanitarian occupations, particularly those aimed at enforcing international human rights law and atrocity law, have become a more common form of occupation. Occupation law was never designed for such transforming exercises.
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A society in political, judicial, and economic collapse or a society that has overthrown a repressive leader and seeks radical transformation requires far more latitude for transformational development than would be anticipated under existing occupation law. The society may require revolutionary changes in its economy (including a leap into robust capitalism), rigorous implementation of international human rights standards, a new constitution and judiciary, and a new political structure (most likely consistent with principles of democracy) never contemplated by occupation law or the domestic law of the occupied territory. As just one example, the requirement in Article 64 of the 1949 Geneva Convention IV that the penal laws of the occupied territory are to remain in force served little, if any, purpose in areas such as Kosovo in 1999, Iraq in 2003, Darfur in Sudan in 2006, or, had it been in force at the time, in Germany after the Second World War, where the Nazi-era national penal system failed to protect individual and collective rights.

Normative and operational progress, however, has been made, some of which is outlined in this chapter. The general burden of the argument here is that existing occupation law should of course continue to apply, albeit with qualified interpretations if necessary, even to the ‘transformative’ occupier unless either (1) in a particular case, the UN Security Council has called for certain modifications in the application of occupation law obligations consistent with a Council mandate governing the deployment of military forces in a country; or (2) the general international law governing military occupations evolves to accommodate modern transformational occupations.

A basic starting point is that relevant principles of international humanitarian law apply to an occupied territory even if the Security Council has not specified this.
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However, the presumption that applying the entire body of occupation law is the best means of protecting the civilian population, because that is what it was originally designed to accomplish, probably would not hold up under the circumstances of a liberation sanctioned by the UN Security Council. The law as it stands may be too restrictive a framework for the subsequent challenge of transforming a society deeply scarred by the repressive government that ruled prior to the military intervention that ended it. Understandable concern to ensure that the occupying power upholds human rights standards and the economic survival of the occupied society must not become the premise for preserving a traditional reading of occupation law as the means to achieve those ends.

The growing acceptance of a ‘responsibility to protect’,
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the requirements of the burgeoning principle of humanitarian intervention,
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and the desire to enable well-intentioned governments to rescue civilian populations at risk, do not and should not point to some new incarnation or even reaffirmation of occupation law. There is good reason to apply occupation law in shorter occupations in the course of a war, and hold occupying powers accountable under that law for their actions on foreign territory. But armies that operate with international authority (particularly that of the UN Security Council), and set out to advance democracy and save civilian populations from atrocities, should be regulated by a modern occupation regime that can be created by Security Council resolutions under the UN Charter. This would put those forces, their commanders, and the states deploying them at far less risk of legal liability, and could attract broader participation in Council-authorized interventions and subsequent occupations.

UN forces conducting operations under UN command and control must operate in accordance with international humanitarian law.
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Crimes committed by UN peacekeepers are typically handled through status of forces agreements entered into by the UN or by the nations deploying forces pursuant to a Security Council authorization.
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UN Security Council-authorized deployments of national forces remain subject to the laws and customs of war and international humanitarian law in their capacity as national forces.
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But the precise responsibilities of UN forces and Security Council-authorized deployments of national forces are shaped by the Council mandate or authorization, not strictly or only by occupation law. The latter can be greatly modified by the former pursuant to the compulsory authority of the Security Council under
Chapter VII
of the UN Charter and the general principle of Charter supremacy arising from Article 103.
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It is highly unlikely that the Security Council would approve responsibilities that contradict overarching principles of occupation law regarded as
jus cogens
norms. Given the widely varying circumstances that may trigger and even justify military occupation, it would be a mistake to regard many of the codified provisions of occupation law as peremptory norms of international law applicable in all situations of military occupation without deviation or qualification. Relevant fundamental principles requiring provision of humanitarian relief and protection of the civilian populations’ basic human rights would require adherence by any occupying power under any circumstance. But there is normally no explicit recognition in Security Council-authorized operations (peacekeeping or enforcement) that occupation law applies in its totality, or in any substantial respect, to the mission
mandated by the Security Council. Iraq in 2003 proved to be the exception to this rule. A possible reason for application of occupation law in this case was that the occupation was by states acting originally outside a Security Council framework, and the Council was thus responding to a fait accompli rather than having initiated the plan for occupation.

In the practice of the Security Council during the 1990s and the early twenty-first century, excluding Iraq, the deployment of UN peacekeeping forces and multinational forces authorized by Council resolution has never explicitly required compliance with occupation law as a legal requirement for such actions. None of the Security Council resolutions or international agreements governing these deployments invokes occupation law. Rather, the mandates set out specific tasks for the military forces and civilian administration in the relevant territories. Occupation law was never invoked in any meaningful way during the various Security Council-authorized deployments of military forces into Haiti in 1994, into Bosnia prior to and after the Dayton Peace Accords of 1995, into Kosovo in 1999, into East Timor in 1999, into the Democratic Republic of Congo in 1999, into Kabul, Afghanistan, in 2002, or into southern Sudan in 2005.
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The authorizing resolutions for these operations are silent about occupation law obligations. So are the periodic reports of the UN Secretary-General about each operation. At most there are general references to compliance with international humanitarian law. A brief survey of what the Council did, and did not, mandate in four key deployments is illustrative of this general practice.

When the Security Council authorized the introduction of primarily US military forces into Haiti in 1994 as part of a multinational force (MNF), it did not establish any compliance criteria under occupation law. Rather, Security Council Resolution 940 of 31 July 1994 set forth the mandate of the MNF as follows:

4.
Acting
under
Chapter VII
of the Charter of the United Nations, [the Security Council]
authorizes
Member States to form a multinational force under unified command and control
and, in this framework, to use all necessary means to facilitate the departure from Haiti of the military leadership, consistent with the Governors Island Agreement, the prompt return of the legitimately elected President and the restoration of the legitimate authorities of the Government of Haiti, and to establish and maintain a secure and stable environment that will permit implementation of the Governors Island Agreement, on the understanding that the cost of implementing this temporary operation will be borne by the participating Member States.
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In the event, the US-led MNF intervened on 19 September 1994 with a degree of last-minute consent from the Haitian authorities. The situation was therefore not a clear case of occupation. Subsequent Security Council resolutions on Haiti reiterated the original tasks outlined in Resolution 940, as well as additional assignments. Security Council Resolution 948 of 15 October 1994 cast the MNF’s duties in specific transitional terms by recognizing in particular the efforts of the multinational force, authorized under resolution 940 (1994), and those of the Member States participating in the multinational force on behalf of the international community in creating the conditions necessary for the return of democracy to the people of Haiti’.
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In Security Council Resolution 975 of 30 January 1995, the successor peacekeeping operation, UNMIH (United Nations Mission in Haiti), assumed the MNF’s functions as specified in Resolution 940
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and took on the further responsibility of helping ‘establish without delay an effective national police force and to improve the functioning of its justice system’.
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UNMIH’s mandate, which was hardly that of a conventional occupying force, aimed, along with UN civilian administrators, to assist the Haitian people in their quest for strong and lasting democracy, constitutional order, economic prosperity and national reconciliation’.
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This included professionalizing the Haitian National Police.
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Thus the US and UN presences in Haiti had transformative purposes, which continued after May 2004 with the new UN Stabilization Mission in Haiti (MINUSTAH). This multinational force was deployed under
Chapter VII
enforcement authority with security and political process’ duties aimed at assisting the transitional government in Haiti to evolve democratically and promote good governance.
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Throughout all of this there was never any attempt by the Security Council to impose occupation law requirements on the multinational forces deployed in UNMIH or MINUSTAH or any other UN deployments occurring between these two in Haiti. The actual performances of these forces in Haiti do not provide evidence of any explicit concerns for or focus on occupation law requirements.

In the voluminous record of Security Council resolutions, Secretary-General reports, and other documents pertaining to the UN-authorized military deployment in Kosovo since 1999, occupation law is given no role whatsoever. In fact, the Kosovo mission constituted one of the most significant transformational mandates in UN history. Security Council Resolution 1244 of 10 June 1999, which was adopted under
Chapter VII
authority, demonstrates from the very outset of the deployment of the multinational force how comprehensive and intrusive the mission’s occupation of Kosovo was intended to be. Many of the tasks were compatible with an occupying army’s responsibilities under occupation law in relation to internal security and public safety. Among other things, the Security Council authorized the NATO-led Kosovo Force (KFOR) to

• enforce and maintain a ceasefire and ensure the withdrawal of Serb and Yugoslav military, paramilitary, and police forces;

• demilitarize the Kosovo Liberation Army (KLA) and other armed Kosovo Albanian groups;

• establish a safe and secure environment for refugee return, the provision of humanitarian aid, and international administration;

• ensure public safety until the international civilian police can assume this task;

• supervise demining activities;

• support and coordinate closely with the international civilian presence.
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However, beyond these strictly military tasks, the Security Council further developed its own methodology of post-conflict occupation by pairing an authorized military deployment (in this case, KFOR) with the establishment of a UN civilian administrative capability in the form of the UN Interim Administration Mission in Kosovo (UNMIK). To that end, Security Council Resolution 1244 of 10 June 1999 authorized

In Resolution 1244, the wide-ranging mandate of the ‘international civil presence’, which included establishment of provisional democratic institutions of self-government, interim civil administration of the territory, reconstruction of the physical infrastructure and economic development, provision of humanitarian aid, promotion of refugee return, maintenance of civil law and order, protection and
promotion of human rights, and work towards the resolution of Kosovo’s status,
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could only be undertaken because of the parallel military mandate working hand in glove with it.