The Politics of Military Occupation

By Peter M. R. Stirk | Go to book overview

Chapter 8
Occupation and Regime Transformation

It is frequently asserted that the greatest challenge to the concept of military occupation, as understood in the law of occupation, is the issue of regime transformation. It is held that Article 43 of the Hague Regulations amounts to a prohibition of regime transformation appropriate to an age in which military occupiers were largely indifferent to the nature of the regime in occupied territory, including ‘misrule’ by the ousted regime, being concerned instead with the strategic value of occupied territory.1 It is further claimed that such indifference has given way to an age in which regime change is a primary intention of occupiers. They justify their actions in the name of liberation from oppressive rule, humanitarian concerns and the self-determination of the inhabitants of occupied territory – although whether the humanitarian concerns frequently invoked in such cases are accepted is another matter. At the same time, the international law of occupation has moved from a concern with the rights of states and governments towards a concern with the rights of individuals and peoples, privileging the principle of self-determination. The outcome of these two trends is an apparently inescapable dilemma, for ‘it is inherently contradictory to impose a government on a population and justify it as part of a process of self-determination’.2

Responses to this dilemma have varied according to which of the two trends is given priority and the broader theoretical positions and sympathies of commentators. One type of argument, often explicitly following Carl Schmitt’s vision of an epochal transition in international law, or rather the collapse of the traditional international order of the sixteenth to the nineteenth centuries and the emergence of a new period of legal indeterminacy, focuses on the first trend.3 Thus, Nehal Bhuta draws on Schmitt’s distinction between commissarial dictatorship, intended to restore the constitution after a period of crisis, and sovereign dictatorship, intended to institute a new constitutional order.4 In the case of the occupation of Iraq in 2003, Bhuta presents the United States’ occupation regime as a ‘sovereign dictatorship’ whose

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