Occupation as Liberation: International Humanitarian Law and Regime Change
Ethics & International Affairs, Vol. 18, No. 3, pp. 51-64, 2004
14 Pages Posted: 9 Mar 2007
Can the justice of a post-conflict 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 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. The 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 from 2003. Though the series of operations through the 1990s suggests that the Council has the power to modify the traditional obligations of occupying powers, the provisions adopted in relation to Iraq in 2003 evince some uncertainty as to whether these operations have changed occupation law itself. The underlying problem is that international law continues to presume the inappropriateness in all circumstances of the coercive use of force to effect political change in another state. Though it is undesirable to modify this general principle, there is some evidence that where the use of force takes place in contravention of the norm, there may nevertheless be an emerging obligation to contribute to reconstruction that goes beyond providing for the humanitarian needs of the civilian population.
Keywords: occupation law, United Nations, Iraq, United States, post-conflict reconstruction, state-building, nation-building
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