The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (103 page)

As for the UK, it seems from the start to have accepted the view expressed by the Attorney-General in a memorandum presented to the Cabinet on 26 March 2003:

Furthermore, the opposition of much of the Security Council to Operation Iraqi Freedom in March 2003 worked against any proposal in May of that year to turn the entire Iraq situation over to a Security Council-mandated occupation requiring other governments and the Council essentially to assume full responsibility for the future of Iraq. It is not surprising that governments which had opposed the Anglo-American intervention into Iraq, and even those which acquiesced in it, had no interest in validating the intervention by engaging in full-scale occupation of the country and mopping up the mess.

Whether Washington and London appreciated at the time the serious implications of embracing occupation law in Iraq remains uncertain. The potential for American and British liability for the consequences of the military occupation of Iraq will remain for years, perhaps with greater impact following the withdrawal of their troops and the end of the intimidating power they exercise over Iraqi society. If there had been an explicit UN-authorized military deployment in the immediate aftermath of the US-led military intervention, and if there had been the early establishment of a formal UN civilian administration in post-Saddam Iraq, then the wide array of responsibilities and potential liabilities that have arisen under occupation law for the American and British governments would have been narrowed in scope as a consequence of the UN mandate. The fact that on 16 October 2003, Security Council Resolution 1511 ‘
authorize[d]
a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq’ under
Chapter VII
of the UN Charter extinguished neither the Anglo-American military occupation nor all liability that may arise from it. Resolution 1511 created an additional legal framework under which the occupying forces would operate, one that could, depending on the necessary measures’ at play in any particular circumstance, trump occupation law. But the Security Council did not revoke its earlier judgment in Resolution 1483 that the United States and the United Kingdom were occupying powers, and would remain so.

The experience of Iraq in 2003–4 demonstrated some of the difficulties inherent in traditional occupation law. These difficulties have rarely been formally acknowledged and typically require, at least in scholarly works, lengthy explanations and qualified rationales to explain how occupation law is to be applied in the unique circumstances of particular military occupations.
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Regardless of the issue of the legality of Operation Iraqi Freedom,
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the occupation of Iraq demonstrated how much traditional occupation law would have to be reinterpreted to suit modern requirements. Iraq’s unique circumstances were far better suited to this type of tailored nation-building mandate that can be devised by the Security Council. Ideally, that mandate would enforce those principles (particularly humanitarian) of occupation law that remain relevant or are
jus cogens;
would advance principles under modern international law pertaining, for example, to human rights, self-determination, the environment, and economic development; and in general would create a legal regime uniquely tailored for the territory in question. The recognition that certain principles of occupation law are
jus cogens
may require the application of those principles in the circumstances of a UN-approved deployment of troops. In Iraq, the Anglo-American occupying forces and the Coalition Provisional Authority far exceeded the conservationist principles of the law on occupation, thereby profoundly disrupting Iraqi society and contributing to the growth of militias and sectarianism, the deterioration of living standards, the flight of millions of refugees, and very high civilian death tolls for years following the 2003 intervention.

What precisely happened in Iraq? On 22 May 2003, the UN Security Council adopted Resolution 1483, which seized headlines with its six-month plan for the conclusion of the ‘Oil-for-Food’ Programme, the UN’s most widespread project in Iraq.
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But Resolution 1483 also established an unprecedented basis for American and British occupation of Iraq. In the preambular clauses of the resolution, the Security Council declared its understanding of the status of foreign military powers in Iraq. The Council recognized ‘the specific authorities, responsibilities, and obligations under applicable international law’ of the US and the UK ‘as occupying powers under unified command (the “Authority”)’.
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The Council further noted ‘that other States that are not occupying powers are working now or in the future may work under the Authority’.
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The two occupying powers were thus designated to shoulder primary responsibility. The Council, acting under
Chapter VII
of the UN Charter, called ‘upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907’.
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The extent to which any states other than the US and the UK would be held legally liable for strict performance of occupation law responsibilities was left unclear. Such obligations would probably be limited in light of the Security Council’s recognition of the dominant occupying status of the US and the UK and by explicit American and British acceptance of that role (whereas no other state, including Poland, with military forces deployed in Iraq explicitly identified itself as an occupying power).

The Security Council also called upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future’.
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The ‘relevant international law’ must include, in this instance, occupation law. Coupled with the Council’s recognition of the Authority’s occupation of Iraq, the task of promoting the welfare of the Iraqi people may be laudable, but that goal cannot be guided by occupation law alone, regardless of how liberally it may be construed. The Authority had to employ aggressively international human rights law, principles of democratization (as the engine of self-determination), economic initiatives, and perhaps controversial use of force principles in the name of domestic security in order to pull Iraq out of its repressive past and return it to the community of civilized nations. Many of the principles advanced by the Authority did not have traditional occupation law as their source – some had their own
jus cogens
identity or were deeply rooted in the normative principles of the UN Charter. Indeed, conflicts emerged between advancing the welfare of the Iraqi people as the Authority was mandated to do, and adhering to the more narrow constraints of occupation law as the Authority was required to do. During the military occupation of Iraq, the occupying powers consistently failed to meet their occupation law responsibilities and failed to achieve the ambitious, and often conflicting, goals set by the Coalition Provisional Authority.
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The risk can emerge that, unless occupation law is enforced strictly, it may be reinterpreted so liberally as to become ill-suited as a legal framework within which a society can function. If occupation law fails to meet the needs of the situation, then its relevance and legitimacy will be questioned.

In Resolution 1483, the Security Council required the appointment of a Special Representative for Iraq who reported to the Council and cooperated with the Authority in relation to a wide range of responsibilities.
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It also set out a number of objectives for the occupation, some of which had a transformative character that was not easily reconciled with the obligation to observe occupation law. The Security Council delegated to the Coalition Provisional Authority substantial responsibilities, including the establishment of the Development Fund for Iraq, a fund which was disbursed by the Authority,
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and facilitation by the Authority of food assistance tied to the production of oil.
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The Council imposed specific obligations not required by occupation law, and in doing so invited the Authority to act beyond restrictions imposed by such law. Examples include the management of petroleum, petroleum products, and natural gas, and the formation of an Iraqi interim administration as a transitional administration run by Iraqis. In each of these areas of responsibility, a strict reading of traditional occupation law likely would prohibit such bold and transformational control of Iraqi society and economy. It is possible to view the Security Council’s decisions as legitimately overriding conflicting norms of occupation law, but if such is the case, then the Council’s insistence elsewhere in Resolution 1483 on compliance with occupation law breeds confusion.
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Some of these mandated tasks could be seen as consistent with the responsibilities of an occupying power. But when occupying powers are given additional resources such as the Iraq Development Fund or when they expend any large grants from donor nations, including from either occupying power, and then fail to apply such funds properly within the constraints of occupation law, potential liability could be even greater in the event of any misuse of additional resources. Such synthesis of Security Council authority and the obligations that flow from occupation law was both unique and exceptionally risky.

These difficulties may point to a simple conclusion, namely that the Security Council has the power to override conservationist principles of occupation law. Perhaps such power should be interpreted in the actions of the Security Council when it adopted Resolution 1483. After all, the thesis of this chapter is that the Security Council should exercise its authority to create a mandate that effectively supplants occupation law from the very beginning of a Council-authorized military intervention. But the wording of Resolution 1483 acknowledges the reality of occupation and then authorizes certain activities that challenge traditional principles of occupation. How those two realities would coexist in Iraq following adoption of Resolution 1483 proved exceptionally difficult and arguably became the slippery slope on which Iraq descended into a bloody civil war with the prolonged engagement of the US and UK military forces, which continued as de facto occupiers. In the end, the Iraqi people might have fared better if the occupying powers had more strictly observed and implemented conservationist principles of the law of occupation and shown more restraint with their ideology of liberation.

Under Resolution 1483, the Security Council supported the formation, by the people of Iraq and with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognized, representative government is established by the people of Iraq and assumes the responsibilities of the Authority’.
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This mandate, fully subscribed to in the early stages by the occupying powers,
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sat uncomfortably with traditional occupation law. Moreover, Resolution 1483 did not attempt to reconcile any conflict between what the Authority might decide is appropriate and what the Special Representative might determine is necessary other than to require both to act in coordination.

In Resolution 1500, the Security Council established a more substantial institutional structure, namely the United Nations Assistance Mission for Iraq to support the Secretary-General in the fulfilment of his mandate under resolution 1483 … for an initial period of twelve months’.
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Tragically, Sergio Vieira de Mello, the UN High Commissioner for Human Rights who was appointed as the first Special Representative for Iraq in late May 2003 and who was struggling to set the new UN mission on a dynamic course of action, died in the bombing of the UN Headquarters in Baghdad on 19 August 2003. The fact that the UN mission lent greater legitimacy to the Anglo-American occupation may have been the primary reason why it was targeted, causing fatalities and destruction of such magnitude that the UN was forced to withdraw from Iraq precipitously, leaving the field solely to the military occupiers and their opponents.

In subsequent months there was no change in the basic status of the US and UK as occupying powers. In October 2003, during the debate over Resolution 1511, Council members were presented with a choice between ending the occupation very soon or effectively validating a longer (albeit ‘temporary’) occupation. They chose the latter option. On 16 October 2003 the Security Council determined in Resolution 1511 that ‘the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its further evolution, embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognized, representative government is established and assumes the responsibilities of the Authority’, and invited the Governing Council to provide the Council by 15 December 2003 with a timetable and a programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution’.
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The Council also authorized ‘a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq’ but left unclear whether such a force would be regarded as part of the occupation regime and occupation law or would stand apart from the occupying armies as a smaller UN-authorized deployment with its far more narrow mandate to contribute to security for the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure’.
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