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Occupation as Liberation: International Humanitarian Law and Regime Change

  • Simon Chesterman

Abstract

The U.S. invasion of Iraq in 2003 has been the subject of much discussion for its impact on the use of force outside of UN Security Council authorization. Less commented upon is the fact that the so-called “Operation Iraqi Freedom” resurrected a body of international law that had been dormant through the second half of the twentieth century: the law of military occupation. Developed at a time when war itself was not illegal, this doctrine became something of an embarrassment after the UN Charter established a broad prohibition on the use of force. Nevertheless, through the 1990s the United Nations itself had become involved in operations in Kosovo that looked distinctly like military occupation. Even the most liberal reading of the instruments governing occupation law, however, finds it hard to reconcile this law with military intervention and post-conflict occupation premised on regime change. This article first surveys the law of military occupation before briefly examining the role of the UN Security Council in post-conflict administration. It then turns to the ambiguous responsibilities accorded to the United States and Britain as occupying powers in Iraq in 2003–2004.

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1 Niccolo Machiavelli, The Prince and the Discourses, trans. Christian E. Detmold (New York: Modern Library, 1950), p. 182.

2 Milovan Djilas, Conversations with Stalin, trans. Michael B. Petrovich (New York: Harcourt, Brace, and World, 1962), p. 114.

3 UN Charter, preamble; available at http://www.un.org/aboutun/charter.

4 ICISS, The Responsibility to Protect (Ottawa,: IDRC, 2001); available at http://www.iciss.gc.ca.

5 UN Charter, art. 2(4).

6 UN Charter, art. 51.

7 See, generally, Brownlie, Ian, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963).

8 Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (The Hague: 1907 Hague Regulations, October 18,1907,36 Stat. 2277, 1 Bevans 631), art. 42; available at http://www.icrc.org/ihl.

9 Convention (IV) Relative to the Protection of Civilian Persons in Time of War (Geneva: Fourth Geneva Convention, August 12, 1949), art. 2; available at http://www.icrc.org/ihl.

10 Frankel, Glenn, “ Hopes for ‘Road Map’ Tempered by History: U.S. Role in Plan Seen as Crucial ,” Washington Post , June 3, 2003, p. A15.

11 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (The Hague,: International Court of Justice, July 9, 2004); available at http://www.icj-cij.org and Beit Sourik v. Israel (Israeli High Court, June 30, 2004), HCJ 2056/04.

12 Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex, art. 43. On the replacement of “public order and safety” with “public order and [civil life],” see Benvenisti, Eyal, The International Law of Occupation (Princeton: Princeton University Press, 1993), p. 7.

13 Fourth Geneva Convention, arts. 54–56,64.

14 Scheffer, David J., “Beyond Occupation Law,” American Journal of International Law 97 (2003), p. 848.

15 Pictet, Jean, ed. Commentary: Convention Relative to the Protection of Civilian Persons in Time of War, art. 47 (Geneva,: International Committee of the Red Cross, 1958).

16 Benvenisti, , International Law of Occupation , p. 92.

17 Ibid., pp. 9196.

18 “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations (Declaration on Friendly Relations),” UN GAOR, 25th Sess., Supp. No. 28, UN Doc. A/8028 (1970).

19 Lassa Francis Lawrence Oppenheim, International Law, 7th ed. (London,: Longmans, 1952), vol. 2, p. 140.

20 Roberts, Adam, “What Is a Military Occupation ?” British Yearbook of International Law 55 (1984), pp. 257 – 58.

21 Ibid., p. 258.

22 GA Res. H27(XI), November 21, 1956.

23 GA Res. H33(XI), September 14, 1957.

24 Roberts, “What Is a Military Occupation?” p. 259. Compare this to the situation in Tajikistan, where the Russian Army's 201st Motorized Rifle Division remained after independence in 1991 and was widely regarded as only nominally operating under the CIS peacekeeping mandate it assumed from 1993 to 2000 to deal with the Tajik civil war. It remains in Dushanbe.

25 Fourth Geneva Convention, art. 6(3).

26 Pictet, ed., Commentary, art. 6(3).

27 Ibid.

28 Protocol Additional to the Geneva Conventions of August 12,1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8,1977, art. 3; available at http://www.icrc.org/ihl.

29 Cf. Crawford, James, “The Charter of” the United Nations as a Constitution,” in Fox, Hazel, ed., The Changing Constitution of the United Nations (London: British Institute of International and Comparative Law, 1997).

30 3 UNCIO 365,371–372, Doc. 2G/7 (n) (1) (1945).

31 12 UNCIO 353–355, Doc. 539 III/3/24 (1945).

32 SC Res.16 (1947). See further Kelsen, Hans, The Law of the United Nations (London: Stevens & Sons, 1950), pp. 825–26.

33 2 SCOR, No. 3, 44 (1947); and Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion (ICJ Rep. 16, June 21,1971).

34 “An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping,” Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on January 31, 1992, UN Doc A/47/277-S/24111 (June 17,1992).

35 “Supplement to ‘An Agenda for Peace’: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations,” UN Doc A/50/60-S/1995/1 (Januarys, 1995), paras. 13–14.

36 See Chesterman, Simon, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2001), pp. 112218.

37 Sarooshi, Danesh, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford,: Clarendon Press, 1999), pp. 5963.

38 The last trusteeship agreement (on Palau) was terminated on November 10, 1994: SC Res. 956 (1994). By a resolution on May 25, 1994, the Trusteeship Council amended its rules of procedure to remove the obligation to meet annually, agreeing instead to meet as required: Trusteeship Council Res. 2200 (LXI) (1994). Secretary-General Boutros Boutros-Ghali recommended that the Council be eliminated through a Charter amendment, but Malta, among others, urged that the Trusteeship Council be recast as a forum through which member states could exercise their collective trusteeship over areas of common concern, such as the environment and the high seas: GA Res. 50/55 (1995). There was little evidence of enthusiasm for such a move, but since the Council no longer meets, has almost no staff, and uses no UN resources there has been little impetus to shut it down. The Council last met on October 22, 2002: GA Res. 50/55 (1995). There was little evidence of enthusiasm for such a move, but since the Council no longer meets, has almost no staff, and uses no UN resources there has been little impetus to shut it down. The Council last met on October 22, 2002, 2002—its first meeting since 1998—to elect a president and vice-president from its five members.

39 ICISS, The Responsibility to Protect, paras. 5.22–5.24.

40 UN Charter, art. 78.

41 “Report of the Panel on United Nations Peace Operations (Brahimi Report),” UN Doc A/55/305-S/2000/809 (August 21, 2000), para. 78; available at http://www.un.org/peace/reports/peace_operations.

42 “Report of the Secretary-General on the Implementation of the Report of the Panel on United Nations Peace Operations,” UN Doc A/55/502 (October 20,2000).

43 Wilson, Scott, “ Bremer Adopts Firmer Tone for U.S. Occupation of Iraq ,” Washington Post , May 26, 2003, p. A13.

44 See, e.g., Sanger, David E. and Schmitt, Eric, “U.S. Has a Plan to Occupy Iraq, Officials Report,” New York Times, October 11, 2002, p. A1.

45 “ Statement of the Azores Summit ,” Washington Post , March 17, 2003, p. A12.

46 See, e.g., Hammer, Joshua and Soloway, Colin, “Who's in Charge Here?” Newsweek, May 26, 2003, p. 28.

47 Until the suspension of the program during the conflict, the Iraqi government had prepared distribution plans and contracts for the entire country, distributing goods itself in the center and south; the UN distributed goods in the north. The expansion was approved unanimously during the second week of the war: SC Res. 1472 (2003).

48 See, e.g., Gardiner, Nile and Rivkin, David B., Blueprint for Freedom: Limiting the Role of the United Nations in Post- War Iraq (Washington, D.C.: Heritage Foundation, 2003).

49 1907 Hague Regulations, arts. 48,49,55.

50 Spinner, Jackie, “ Firms Cite Concerns With Iraqi Sanctions ,” Washington Post , May 3, 2003, p. E2.

51 Boyer, Peter J., “ The New War Machine ,” New Yorker , June 30, 2003, pp. 7071.

52 Slevin, Peter and Priest, Dana, “ Wolfowitz Concedes Iraq Errors ,” Washington Post , July 24, 2003, p. A1.

53 Bone, James, “ UN Leaders Draw up Secret Blueprint for Postwar Iraq ,” Times (London), March 5, 2003. Humanitarian contingency planning—some of which was leaked in December 2002—was less controversial and more advanced.

54 1907 Hague Regulations, art. 43; and Fourth Geneva Convention, arts. 54–56,64.

55 SC Res. 1483 (2003), preamble, paras. 4, 5. This was later confirmed in SC Res. 1500 (2003), which also welcomed the establishment of the Governing Council of Iraq.

56 Scheffer, , “ Beyond Occupation Law ,” p. 846.

57 SC Res. 1483 (2003), preamble.

58 Ibid., para. 5.

59 Ibid., para. 9.

60 Ibid., paras. 12–14, 17.

61 Ibid., para. 16.

62 Ibid., preamble, para. 8.

63 “Report of the Secretary-General Pursuant to Paragraph 24 of Security Council Resolution 1483 (2003),” UN Doc 8/2003/715 (July 17, 2003), paras. 2,100.

64 See, e.g., Worth, Robert F., “Last Respects Are Paid to Head of UN Mission in Iraq,” New York Times, August 23, 2003, p. A2.

65 SC Res. 1472 (2003). The preamble noted the obligation imposed on an Occupying Power by the Fourth Geneva Convention to ensure “to the fullest extent of the means available to it… the food and medical supplies of the population.”

66 See Rieff, David, “Blueprint for a Mess,” New York Times Magazine, November 2, 2003, p. 28.

67 See Woodward, Bob, Plan of Attack (New York: Simon & Schuster, 2004).

68 ICISS, The Responsibility to Protect, para. 5.1.

69 Meet the Prees, NBC News, April 11,2004; available at http://msnbc.msn.com/id/471/276/.

70 “Press Conference of the President,” Office of the Press Secretary, U.S. White House, April 13, 2004; available at http://www.whitehouse.gov/news/releases/2004/04/20040413-20.html

* This chapter draws upon some material previously published in Simon Chesterman, You, The People: The United Nations, Transitional Administration, and State-Building (New York: Oxford University Press, 2004).

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Occupation as Liberation: International Humanitarian Law and Regime Change

  • Simon Chesterman

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