The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (102 page)

The combined deployments of UNMIK and KFOR did carry out not only the responsibilities detailed above, but also a body of responsibilities broadly extrapolated from Resolution 1244. By 2004, the UN Secretary-General reported that eight standards for Kosovo’ were being implemented by UNMIK with the security support of KFOR. These eight standards, which would be very difficult to legitimize as a mandate for an occupying force under occupation law, but which are derived from Resolution 1244, include actions relating to the development of functioning democratic institutions, the rule of law (including creation of new courts and police services), freedom of movement, sustainable returns and rights of communities and their members, economic legislation (including privatization), initiatives to protect property rights, political dialogue between Pristina and Belgrade, and development of the Kosovo Protection Corps (a professional civilian emergency agency).
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By 2007, Kosovo was facing the real prospect of independence from Serbia, a development that would bring UNMIK’s jurisdictional and functional roles to an end, perhaps following an interim period of continued engagement in the governance of Kosovo by the international community.

The uncertainty of Kosovo’s final status constituted a further divergence from occupations as traditionally understood under occupation law. Normally, the military occupying power would be required to restore the pre-existing sovereign status of the occupied territory. Final status would not be in question. But an anomaly emerged in Kosovo, where some of the complexities known to occupation law crept into the prolonged UN politico-military presence on the ground as final status preparatory steps and negotiations dragged on. Protecting the rights of minorities within the basket of human rights responsibilities of an occupying power can be as difficult for a UN-authorized force and administrative entity as it is for some national governments. This was particularly true in relation to the Serb minority in Kosovo. KFOR and UNMIK were severely challenged in ensuring that the entire population of Kosovo was protected and humanely treated. In rebuilding the court system in Kosovo – a necessary endeavour – UN authorities encountered difficulties that would have vexed any occupying power there. By operating under a Security Council mandate, UNMIK was able to create criminal courts with international judges and prosecutors that would not have been permitted under occupation law. As essential as it was, the judicial reform project became a difficult and highly controversial undertaking, perhaps revealing why occupation law, which contemplates occupations of quite limited duration, only permits the creation of military courts with narrow jurisdiction.

Following the 30 August 1999 referendum in East Timor, in which the population voted for independence from Indonesia, and the subsequent massacres by pro-Indonesian elements in September 1999, the Security Council authorized the deployment of an Australian-led multinational force (INTERFET) to East Timor to restore peace and security, protect and support the UN Mission in East Timor, and to facilitate humanitarian assistance operations.
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But the Council did not invoke occupation law to guide the behaviour and performance of INTERFET, which deployed throughout East Timor and established a de facto occupation of East Timorese territory. In Security Council Resolution 1272 of 25 October 1999, the UN Transitional Administration in East Timor (UNTAET) was ‘endowed with overall responsibility for the administration of East Timor and will be empowered to exercise all legislative and executive authority, including the administration of justice’.
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UNTAET incorporated a sizable UN military component of up to 8,950 troops and maintained close cooperation with INTERFET while it remained in East Timor. The tasks assigned to UNTAET included the following responsibilities that transformed, or sought to transform, the governmental, judicial, and economic landscape of the emerging country: to provide security and maintain law and order throughout the territory of East Timor; to establish an effective administration; to assist in the development of civil and social services; to ensure the coordination and delivery of humanitarian assistance, rehabilitation, and development assistance; to support capacity-building for self-government; and to assist in the establishment of conditions for sustainable development.
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Hence there were democracy-building, economic transformation, and court-building objectives wrapped up in the UNTAET mandate.

UNTAET was succeeded in 2002 by the United Nations Mission of Support in East Timor (UNMISET), which existed until 20 May 2005. The Security Council authorized UNMISET under
Chapter VII
authority to undertake an ambitious mandate to develop in East Timor democracy, stability, justice, public security, law enforcement, and external security and border control.
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These transformational objectives in the long-suffering post-conflict society of East Timor ran parallel with the country’s independence in 2002.

An occupying military force under occupation law would not exercise such far-reaching responsibilities. But they are integral components of a UN-authorized operation that must address a wide range of security and development needs in order literally to change the society into which the military forces have been deployed. Remarkably, with one exception, no discernible body of law, such as occupation law, is referenced by the Security Council to govern the operations of
INTERFET or the military components of UNTAET or UNMISET deployed under UN command. The exception arose with INTERFET’s acknowledged use of the Geneva Conventions to manage the detention in the Detainee Management Unit of suspected criminals arrested by troops before UNTAET was established.
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UNTAET (followed by UNMISET) quickly became a primary vehicle by which to assist the transition of East Timor to independence. This would normally have been difficult to justify under occupation law. However, the population’s exercise of the right of self-determination through the referendum, and the Security Council’s endorsement of that outcome, provided an underpinning for the intervening force’s actions, in what amounted to a de facto occupation, to facilitate the territory’s acquisition of independence in 2002 and its early development through May 2005.

Another example of a de facto military occupation occurring under the authority of the Security Council is Afghanistan, where multinational military operations have been underway ever since the US-led intervention in October 2001. At no point during the entire Afghan operation has the Security Council sought to impose occupation law constraints on the various military forces that have been fully authorized or acquiesced in by the Council (the latter being the US military operations primarily aimed against the Taliban and al-Qaida fighters within Afghanistan). To have done so would have undermined, indeed prohibited, the transformational objectives of the international community in that country. The entire UN-authorized exercise has been transformational in character, initially guided by the Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions, signed in Bonn on 5 December 2001 (the ‘Bonn Agreement’).
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Each relevant Security Council resolution has served to further those transitional objectives. Security Council Resolution 1386 of 20 December 2001 authorized the establishment of the International Security Assistance Force (ISAF) to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas’ and referred to the ‘inalienable rights’ to be enjoyed by all Afghans. However, the Council’s authorization imposed no explicit occupation law constraints on ISAF’s actions anywhere in Afghanistan. Since August 2006, ISAF has been under NATO command and continues to operate without any explicit regulation under occupation law. A separate force under US command, called Operation Enduring Freedom, continued to focus on hunting down Taliban and al-Qaida terrorists and, not surprisingly, operated without any explicit resort to the law of occupation.

In March 2002, Security Council Resolution 1401 established the United Nations Assistance Mission in Afghanistan (UNAMA), the mandate of which was the full-scale implementation of the Bonn Agreement. It also requested ISAF to continue to work closely with the UN.
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The UNAMA mandate, as it developed over time, included constitutional reform, elections, security sector reform, police training, significant judicial sector reform, reconstruction, initiatives on gender issues, and new human rights institutions.
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In March 2007, the Security Council extended the mandate of UNAMA for another year, stressing the laundry list of transformational objectives that UNAMA had long sought to implement with only some degree of success in Afghanistan.
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The Council, however, stated a formulation that, with a broad interpretation, could invoke aspects of the law of occupation:

If, for example, a question were to arise as to whether ISAF or Operating Enduring Freedom was a de facto occupying military power in, say, a particular region of Afghanistan over a specific period of time and for certain military operations, then this provision in Security Council Resolution 1746 would assume greater importance in determining the full scope of legal responsibilities on the ground for such forces.

All of this has been to enable, however imperfectly, the transformation of Afghanistan politically, judicially, and to some degree socially and economically following the rule of the Taliban and the post-9/11 intervention by primarily US forces in late 2001. Had it not been for a Security Council mandate authorizing constructive change, occupation law, if applied rigidly, would have crippled such goals if it had been imposed upon the multinational and UN-authorized military deployments in Afghanistan. However, the deteriorating security situation in Afghanistan by 2007
may lead to reassessments as to the strategy and tactics endorsed by the Security Council to mandate the transformation of the country.

The introduction of varying degrees of UN civilian administration into the four territories and countries considered above did not lead to any assumption that obligations under occupation law were somehow triggered. One can argue that traditional occupation law applied or should have applied in some or all of these cases, but the engaged parties (state and institutional) never described their military and administrative actions as subject to this body of law. In all four instances the path to genuine democratic self-determination continued for years to prove difficult and the role of multinational forces, acting under a UN mandate, remained controversial. An essential truth remained firm, namely that foreign military forces must operate within a credible legal framework. Whatever the measure of UN engagement, part of that legal framework may need to draw upon occupation law. But the contrast between these UN-authorized deployments and the machinations of the Iraq adventure of 2003 could not have been sharper.

When the armed forces of the US and the UK invaded Iraq in March 2003 and exercised control over its territory, the law of occupation immediately began to apply to their actions, and the two governments soon recognized such obligations.
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By late May 2003, following the completion of the main combat operations of Operation Iraqi Freedom, the American and British governments and the UN Security Council publicly confirmed the application of the law of occupation in Iraq.
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While this resolution proclaimed certain transformative objectives for the occupation, it did not establish a full UN legal and administrative framework to govern the foreign military deployment and civilian administration in Iraq.
The US and the UK, though embarked on a uniquely designed operation to change Iraqi society in 2003, acknowledged their respective obligations to adhere to the 1907 Hague Regulations and the 1949 Geneva Convention IV,
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and the Security Council (guided by them) required that they comply with such law.
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The methodology that should have been invoked, however, is a Security Council mandate establishing the transformational tasks of a military deployment and civilian administration of a liberated society (whatever the judgment on the legality or illegality of Operation Iraqi Freedom) that explicitly or implicitly implemented only the provisions of occupation law relevant to the particular situation.
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Why did Washington and London choose to accept the law on occupation as the framework for their actions in Iraq? Within the US government, several different factors were involved. In the first few months of 2003, several of the Bush administration’s spokesmen had denied that the US presence in Iraq could be characterized as an occupation. However, others in the government recognized that the law on occupation would apply to their actions in Iraq. In the end, it appears that the administration wanted to maintain the complete control over Iraq that formal military occupation would afford, minimizing the involvement of, and accountability to, the Security Council. The Bush administration’s well-known aversion to the UN, and its commitment to the Bush doctrine of pre-emptive intervention in the aftermath of 9/11, made it implausible that the US would use the Security Council to create a UN administrative and military presence in Iraq such as to take over the management of the occupation.