Academic journal article Ethics & International Affairs

Occupation as Liberation: International Humanitarian Law and Regime Change

Academic journal article Ethics & International Affairs

Occupation as Liberation: International Humanitarian Law and Regime Change

Article excerpt

He who desires or attempts to reform the government of a state, and wishes to have it accepted and capable of maintaining itself to the satisfaction of everybody, must at least retain the semblance of the old forms; so that it may seem to the people that there has been no change in the institutions, even though in fact they are entirely different from the old ones.

--Niccolo Machiavelli (1)

This war is not as in the past; whoever occupies a territory also imposes on it his own social system. Everyone imposes his own system as far as his army can reach. It cannot be otherwise.

--Joseph Stalin (2)

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Can the justice of a postconflict settlement be anything other than victor s justice? This article will examine that question through the lens of military occupation. Long an accepted element of war at a time when war itself was not illegal, complicated rules outlining the rights and responsibilities of an occupying power developed over the nineteenth century. By the middle of the twentieth century, however, the prohibition of the use of force enshrined in the UN Charter--designed "to save succeeding generations from the scourge of war" (3)--made occupation law something of an embarrassment. Though the latter part of that century was not noted for the absence of conflict, occupation law itself was rarely invoked. The abolition of colonialism and the condemnation of occupation in the 1970 Declaration on Friendly Relations led some to question whether occupation law had fallen into desuetude.

In the 1990s, this reticence in principle coincided with a confusion of practice as the collapse of government institutions in a series of states saw the United Nations assert some or all government powers on virtually every continent. These responsibilities included staging elections in Namibia in 1990 and Cambodia in 1993, restoring a democratic government in Haiti in 1994, administering the eastern Danube region of Croatia (Eastern Slavonia) from 1996 to 1998, assuming control of the Serbian province of Kosovo for an indefinite period from 1999, and ultimately running the entire territory of East Timor from 1999 until its independence in 2002. A similar role was assumed by an ad hoc international consortium established in 1995 by the Dayton Peace Agreement to oversee Bosnia and Herzegovina. Though the language of military occupation was not used, the presence of large numbers of foreign troops, an international war crimes process, and summary dismissal of its politicians by an international administrator in Bosnia bore more than a passing resemblance to occupied Germany of 1945-1949.

Such comparisons were largely academic until the United States, together with Britain, entered and occupied Iraq in 2003. After some initial resistance, both states ultimately embraced their role as occupying powers. Security Council resolutions that endorsed this definition of their role made specific reference to the international humanitarian law instruments concerning military occupation. Occupation law was invoked in part due to the controversy surrounding the decision to go to war, but it also reflected a newfound sensibility that special postconflict obligations fall to belligerents who choose to enter a conflict voluntarily for reasons asserted to be in the common good. Drawing upon the humanitarian intervention discourse of the 1990s, the International Commission on Intervention and State Sovereignty referred to this in its Responsibility to Protect report as the "responsibility to rebuild." (4)

Even the most liberal reading of the instruments governing occupation law, however, finds it hard to reconcile this law with military intervention and postconflict occupation premised on regime change. The essence of occupation law is that occupation should be temporary and should balance the right of an occupying power to protect its forces against the humanitarian needs of the civilian population. …

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