The Law of Occupation and Post-Armed-Conflict Governance: Considerations for Future Conflicts

Wallace, David A., Military Review

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Judge advocates provide commanders and their staffs legal advice on the application of occupation law in specific instances in military operations. This article provides an overview of some fundamental principles of occupation law to help commanders and their staffs appreciate, understand, and better prepare for future operations. It is not intended, in any way, to be a substitute for the legal advice provided by their servicing judge advocates. The statements, opinions, and views expressed herein are those of the author only and do not represent the views of the United States Military Academy, the Department of the Army, or the Department of Defense.

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BEFORE THE ONSET of Operation Iraqi Freedom, occupation law occupied a rarely discussed, long neglected, and seldom trained place on the spectrum of support to military operations. Not since the end of the World War II had the U.S. military undertaken the immense responsibility of governing/administering an occupied territory for a prolonged period. Lack of familiarity with the concept and the responsibilities that go along with it led to great initial problems with the occupation. These problems were exacerbated when the government prohibited U.S. personnel from using the term "occupation" to describe the status quo (instead, occupation was referred to as "the O word"). (1)

On 19 March 2003, the United States, the United Kingdom, and a few other members of the "coalition of the willing" began Operation Iraqi Freedom by invading Iraq. (2) Combat actions commenced with a massive wave of "shock and awe." Coalition forces launched cruise missile attacks and F-117 strikes intended to decapitate the Iraqi regime and break the will of the Iraqis to fight for Saddam Hussein and the Ba'ath Party. (3)

Early on the morning of 20 March, coalition ground forces entered Iraq in large numbers, thundering toward Baghdad, the southern oil fields, and other strategic locations. (4) More units quickly followed. Seared into our collective memory are media accounts from reporters embedded with U.S. ground forces as they drove through near-blinding sandstorms, pressing their way to Baghdad. (5)

By early April, Army and Marine Corps units closed on the Iraqi capital. The attack into and sweep through Baghdad were punctuated by periods of intense fighting. By 9 April, all coherent resistance in Baghdad had collapsed. (6) On 1 May, President George W. Bush landed in a Navy combat aircraft on the USS Abraham Lincoln off the coast of southern California. With a large "Mission Accomplished" banner in the background, Bush announced the end of major combat operations in Iraq. The United States and its allies had prevailed in taking down the regime. (7)

In the immediate aftermath of the invasion, Bush appointed a retired U.S. Army general, Jay Garner, as director of the Office for Reconstruction and Humanitarian Assistance for Iraq. Bush soon replaced Garner with L. Paul Bremer III, and named Bremer his special envoy to Iraq. In that capacity, Bremer served as administrator of the

Coalition Provisional Authority (CPA). The CPA was supposed to run Iraq until a sovereign Iraqi government could be reestablished. (8) Coalition leaders avoided the label "occupation" to describe Iraq's post-conflict governance. Instead, they portrayed the coalition-force action as a "liberation." (9) Notwithstanding the political, legal, and cultural baggage associated with an occupation, there was no question that once coalition forces ousted Saddam Hussein's Ba'athist regime and exerted authority over Iraq, the law of occupation applied. (10)

One of the by-products of Operation Iraqi Freedom and its aftermath was reinvigoration and reconsideration of the law of occupation, a long-standing subset of the Law of Armed Conflict. All Soldiers involved in an invasion and control of enemy territory need to understand the law of occupation. Because it is inextricably linked to the planning and execution of military operations, the law is vital to success. This article aims to increase that understanding.

The Law of Occupation: Background, Legal Framework

Armed conflicts are regulated by a body of international law known alternatively as the Law of War, the Law of Armed Conflict, or international humanitarian law. (12) At its core, the Law of Armed Conflict is primarily concerned with humanitarian aims. That is, it exists to mitigate the evils of armed conflicts. (13) Although the basic principles and customary practices embodied in the Law of Armed Conflict evolved to their present states over millennia based on the conduct and beliefs of state parties, (14) it has only been a little over a century since these norms were first memorialized into international agreements among states. (15)

The principles that constitute the law of occupation are a discrete subset of the Law of Armed Conflict. (16) More specifically, the law of occupation is embodied in selected provisions of the Annexed Regulations to Hague Convention IV of 1907, (17) the Fourth Geneva Convention of 1949, (18) and customary international law. The U.S. Army's authoritative guidance on the law of occupation is contained in Field Manual (FM)

27-10, The Law of Land Warfare. (19)

From a historical perspective, World War II marked the most significant benchmark in the development of occupation law. The Axis powers patently failed to adhere to their fundamental obligations as occupying powers in accordance with the Hague Regulations and customary international law then in effect. It has been argued that atrocities committed by the Axis powers in occupied territories during World War I1 contributed significantly to their defeat. (20) The Axis powers, however, were not alone in violating basic norms of occupation law during World War II. The Soviets also violated occupation law. (21) The consequences of that behavior led to unprecedented civilian suffering in occupied territories. In 1949, the international community responded with the Fourth Geneva Convention, which amplified and strengthened the basic protections of occupation law. (22) Put another way, the provisions of the convention related to occupation law reflect the bitter experiences of civilian populations in occupied territories during World War II. (53)

Now, commanders and their staffs must know when they have embarked on an occupation subject to international law. The law is triggered when a successful invader establishes firm control over enemy territory. (24) Framed in a slightly different manner, there are two elements that are necessary to establish an occupation under international law. First, there must be an invasion, resisted or unresisted, in which the invader has rendered the invaded government incapable of publicly exercising its authority over the territory or part of the territory. (25) Second, the invader has substituted its own authority for that of the former government of the invaded country. (26) During an occupation, whether total or partial, the entirety of the Geneva Conventions applies to the warring parties. (27)

By way of illustration, in 2003 the United States and the United Kingdom acknowledged, albeit indirectly, their obligations in Iraq under the law of occupation. In a joint letter to the UN Security Council dated 8 May 2003, the two lead members of the coalition of the willing announced that--

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Publication information: Article title: The Law of Occupation and Post-Armed-Conflict Governance: Considerations for Future Conflicts. Contributors: Wallace, David A. - Author. Journal title: Military Review. Volume: 87. Issue: 6 Publication date: November-December 2007. Page number: 20+. © 2009 U.S. Army CGSC. COPYRIGHT 2007 Gale Group.

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