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Transformative occupation and the unilateralist impulse

Published online by Cambridge University Press:  04 December 2012

Gregory H. Fox
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Abstract

The 2003 occupation of Iraq ignited an important debate among scholars over the merits of transformative occupation. An occupier has traditionally been precluded from making substantial changes in the legal or political infrastructure of the state it controls. But the Iraq experience led some to claim that this ‘conservationist principle’ had been largely ignored in practice. Moreover, transformation was said to accord with a variety of important trends in contemporary international law, including the rebuilding of post-conflict states along liberal democratic lines, the extra-territorial application of human rights treaty obligations, and the decline of abstract conceptions of territorial sovereignty. This article argues that these claims are substantially overstated. The practice of Occupying Powers does not support the view that liberal democratic transformations are widespread. Human rights treaties have never been held to require states parties to legislate in the territories of other states. More importantly, the conservationist principle serves the critical function of limiting occupiers' unilateral appropriation of the subordinate state's legislative powers. Post-conflict transformation has indeed been a common feature of post-Cold War legal order, but it has been accomplished collectively, most often via Chapter VII of the UN Charter. To grant occupiers authority to reverse this trend by disclaiming any need for collective approval of ‘reforms’ in occupied states would be to validate an anachronistic unilateralism. It would run contrary to the multilateralization of all aspects of armed conflict, evident in areas well beyond post-conflict reconstruction.

Keywords

transformative occupationconservationist principlelegislative authorityArticle 43 of the Hague Regulationsextra-territorial application of human rights
Type
Articles
Information
International Review of the Red Cross , Volume 94 , Issue 885: Occupation , March 2012 , pp. 237 - 266
Copyright
Copyright © International Committee of the Red Cross 2012 

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References

1 The Coalition Provisional Authority, ‘Coalition Provisional Authority Regulation Number 1’, 16 May 2003, CPA/REG/16 May 2003/01, sec. 1(2), available at: http://www.iraqcoalition.org/regulations/ (last visited 15 March 2012).

2 Special Inspector-General for Iraq Reconstruction, Hard Lessons: The Iraq Reconstruction Experience, U.S. Government Printing Office, Washington, DC 2009, p. 326: ‘[t]he CPA adopted a maximalist approach to reconstruction, developing plans to transform every aspect of Iraqi society, from the banking system to traffic laws’; E. Anthony Wayne, Assistant Secretary for Economic and Business Affairs, Testimony Before the Senate Banking Subcommittee on International Trade and Finance, 11 February 2004, available at: http://2001-2009.state.gov/e/eeb/rls/rm/29288.htm (last visited 15 March 2012): ‘U.S. assistance is predicated on and directed toward reforming Iraq's society and economy. A new, prosperous, peaceful Iraq must be a democratic, free enterprise Iraq, fully integrated into the community of nations.’ For a detailed description of the CPA reforms, see Fox, Gregory H., ‘The occupation of Iraq’, in Georgetown Journal of International Law, Vol. 36, No. 2, 2005, p. 197Google Scholar.

3 Regulations Respecting the Laws and Customs of War on Land, annex to Convention [IV] Respecting the Laws and Customs of War on Land, 18 October 1907 (hereafter Hague Regulations), Art. 43; Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (hereafter GV IV), Art. 64.

4 Article 43 provides in full, ‘The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety [civil life], while respecting, unless absolutely prevented, the laws in force in the country’ (emphasis added).

5 Fox, Gregory H., Humanitarian Occupation, Cambridge University Press, Cambridge, 2008, pp. 233–237CrossRefGoogle Scholar.

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10 Even the Israeli Supreme Court, which has regularly upheld changes to laws in the Palestinian territories, recognized the illegitimacy of future-oriented reforms. In the Elon Moreh case the Court concluded that ‘no military government may create in its area facts for its military purposes that are intended from the very start to exist even after the termination of military rule in that area, when the fate of the territory after the termination of the military rule is unknown’. High Court of Justice (HCJ) 390/79, Dweikat et al. v. Government of Israel et al., 1979, 34(1) PD 1, 22.

11 For a creative effort to characterize the Iraq transformation not as regime change but as a by-product of legitimate security-related reforms, see Schmitt, Michael N. and Garraway, Charles H. B., ‘Occupation policy in Iraq and international law’, in Langholtz, Harvey, Kondoch, Boris, and Wells, Alan (eds), International Peacekeeping: The Yearbook of International Peace Operations, Vol. 9, 2004, pp. 27, 36Google Scholar, n. 54 (‘democratization may certainly be a fortuitous by product of valid security actions, as it is in this case’.)

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13 N. Bhuta, above note 9, p. 734; Parsons, Major Breven C., ‘Moving the law of occupation into the twenty-first century’, in Naval Law Review, Vol. 57, 2009, No. 1, pp. 14–15Google Scholar.

14 As one CPA legal advisor put it, ‘[a]t the very least … whatever customary law Article 43 purported to declare in 1907, that law appears to have been overtaken by history and the new norms of state-building in failed and post-conflict states’. McGurk, Brett H., ‘Revisiting the law of nation-building: Iraq in transition’, in Virginia Journal of International Law, 2004–2005, Vol. 45, pp. 451, 459Google Scholar.

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17 E. Benvenisti, above note 12, p. 105.

18 Meron, Theodor, ‘The humanization of humanitarian law’, in American Journal of International Law, Vol. 94, No. 2, 2000, p. 245CrossRefGoogle Scholar : ‘[t]he Fourth Geneva Convention reflects the felt need to enhance the protection of individuals and populations, especially in occupied territories’. Introducing commentary on the new occupation norms, Pictet summarized the recent history that the Convention was designed to address: ‘[d]uring the Second World War whole populations were excluded from the application of the laws governing occupation and were thus denied the safeguards provided by those laws and left at the mercy of the Occupying Power’. Pictet, Jean S. (ed.), The Geneva Conventions of 12 August 1949: Commentary, (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, International Committee of the Red Cross (ICRC), Geneva, 1958, Art. 47, p. 273Google Scholar.

19 Rights protections are dispersed throughout the Fourth Geneva Convention and include protections from discrimination (Art. 27), impositions on honour and dignity (Art. 27), physical or moral coercion (Art. 31), physical suffering (Art. 32), collective punishments (Art. 33), intimidation, retribution, the taking of hostages or pillage (Arts. 33 and 34), mass or individual forced transfers (Art. 49), compulsion to serve in the occupier's armed forces (Art. 51), destruction of personal property (Art. 53), altering the status of judges or other public officials (Art. 54), infringements on the free exercise of religion (Art. 58), executing those under 18 (Art. 68), ex post facto prosecutions (Art. 70), infringements on due process protections in criminal proceedings (Art. 71), and inhumane conditions for detainees (Art. 76).

20 A. Roberts, above note 16, p. 601.

21 J. S. Pictet, above note 18, Art. 47, p. 274 (the Fourth Geneva Convention's ‘object is to safeguard human beings and not to protect the political institutions and government machinery of the State as such’).

22 See, e.g., B. C. Parsons, above note 13, pp. 15 and 16 (describing UN nation-building operations as ‘transformative occupations’ that have ‘impacted the modern law of occupation significantly’).

23 Paris, Roland and Sisk, Timothy D., ‘Introduction: understanding the contradictions of postwar statebuilding’, in Paris, Roland and Sisk, Timothy D. (eds), The Dilemmas of Statebuilding: Confronting the Contradictions of Postwar Peace Operations, Routledge, London and New York, 2009, p. 3CrossRefGoogle Scholar.

24 Stirk, Peter M. R., The Politics of Military Occupation, Edinburgh University Press, Edinburgh, 2009, p. 203CrossRefGoogle Scholar (summarizing recent scholarship claiming that ‘the indifference of the Hague Regulations to the quality of local governance has given way to an age in which regime change is a primary intention of occupiers’); Lancaster, Nicholas F., ‘Occupation law, sovereignty, and political transformation: should the Hague Regulations and the Fourth Geneva Convention still be considered customary international law?’, in Military Law Review, Vol. 189, 2006, p. 90Google Scholar, (‘Current occupation practice … allows for much wider scope of legislation than permitted by the language of the Hague Regulations and Fourth Geneva Convention’); A. Roberts, above note 16, p. 588 (‘In many cases … occupants, for a wide variety of reasons, have changed laws in the occupied territory without incurring international criticism’). In Grant Harris's summary view: ‘Changes in warfare have dramatically altered the nature of modern occupation. Occupations no longer consist of the victor simply leaving local law and institutions intact while temporarily holding the territory hostage for political or territorial concessions. Instead, humanitarian and regime change interventions flip the law of occupation on its head by: (1) making the occupation the end goal rather than a byproduct of the war; (2) undercutting the prime rationale for the creation of the traditional law of occupation; (3) embracing nation-building over the law of occupation; and (4) sometimes reversing the calculus of which power is considered to be “legitimate”’. G. T. Harris, above note 12, p. 33.

25 The cases of occupation discussed in this section are compiled and analysed in greater detail in Fox, Gregory H., ‘Exit and military occupations’, in Caplan, Richard (ed.), Exit Strategies and State Building, Oxford University Press, Oxford, 2012, pp. 197–223CrossRefGoogle Scholar.

26 See below, in the section ‘Inspiration from multilateral missions’.

27 See the discussion of Israel's occupation below.

28 Soviet Union in Northern Iran (1941–1946), Soviet Union in Czechoslovakia (1968), Libya in Chad (1973), Syria in Lebanon (1976), Tanzania in Uganda (1979), United States in Grenada (1983), United States in Panama (1989), Uganda in the Democratic Republic of the Congo (1998), Ethiopia in Somalia (2006). See G. H. Fox, above note 25, pp. 201–203.

29 Elkins, Zachary, Ginsburg, Tom, and Melton, James, ‘Baghdad, Tokyo, Kabul …: constitution making in occupied states’, in William & Mary Law Review, Vol. 49, No. 4, 2008, pp. 1139–1178Google Scholar. The authors define occupation constitutions as those ‘drafted or adopted in the extreme condition of one state having explicit sovereign power over another’ (ibid., p. 1140). They have occurred in the majority of occupations: ibid., p. 1152 (new constitutions in 42 of the 107 occupations are examined). The nature of these new constitutions varies widely: some are liberal and some not; some establish entirely new political institutions and some create variations on existing institutions; and some replicate the occupier's political structures and some do not. Occupation constitutions are typically short-lived, with many barely outlasting the end of the occupation. Ibid., pp. 1157 and 1158.

30 Ibid., p. 1153.

31 See, e.g., A. Roberts, above note 16, pp. 601–603 (discussion of ‘Post-1945 occupations with a transformative purpose’ skips from discussion of post-World War II occupations to ‘International military actions since the end of the Cold War’); N. F. Lancaster, above note 24, p. 70 (in section on ‘Occupations since 1949’, discussing Israeli occupation as the only non-UN sanctioned case).

32 Subsequent practice of treaty parties is an accepted source of treaty interpretation. See Article 31(3)(b) of the 1969 Vienna Convention on the Law of Treaties. But that practice must be ‘consistent rather than haphazard and it should have occurred with a certain frequency’. Further, as Article 31(3)(b) itself provides, the practice must ‘establish the agreement of the parties regarding its interpretation’. Villiger, Mark E., Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers, Leiden and Boston, 2009, p. 431CrossRefGoogle Scholar. Given the reception of the Iraqi and Palestinian occupations by the rest of the international community, such agreement seems absent.

33 While the only other immediate post-World War II Soviet action meeting the definition of occupation occurred in northern Iran, Soviet influence in what became the Warsaw Pact countries soon brought about the demise of liberal democratic institutions. See generally, Judt, Tony, Postwar: A History of Europe since 1945, Penguin Books, Hammersmith, 2006, pp. 165–196Google Scholar. Later Soviet occupations of Hungary (1956) and Czechoslovakia (1968) graphically illustrate the type of reforms that its occupations occasioned.

34 The US proposal would have replaced the then draft Article 55 with the following language: ‘Until changed by the Occupying Power the penal laws of the occupied territory shall remain in force and the tribunals thereof shall continue to function in respect of all offenses covered by the said laws’. See Arai-Takahashi, Yutaka, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Martinus Nijhoff Publishers, Leiden and Boston, 2009, p. 118CrossRefGoogle Scholar. The Soviet delegate objected that the US approach would grant occupying powers ‘an absolute right to modify the penal legislation of the occupied territory’ and would ‘greatly exceed the limited right laid down in the Hague Regulations’ (quoted in ibid.).

35 Ibid. (noting opposition of the Soviet Union, Norway, Romania, and Mexico).

36 G. H. Fox, above note 2, pp. 289–294.

37 Dinstein, Yoram, The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, p. 32CrossRefGoogle Scholar.

38 The passage reads in full: ‘If, after the German surrender, the Allies had indeed annexed the German state there could have been no doubt about the nature of their right in law to do so; the circumstances would have fitted neatly and unquestionably into the familiar category of subjugation. But if as a result of the Allied victory and the German unconditional surrender Germany was so completely at the disposal of the Allies as to justify them in law in annexing the German state, it would seem to follow that they are by the same token entitled to assume the rights of supreme authority unaccompanied by annexation; for the rights assumed by the Allies are coextensive with the rights comprised in annexation, the difference being only in the mode, purpose, and duration of their exercise, the declared purpose of the occupying Powers being to govern the territory not as an integral part of their own territories but in the name of a continuing German state’. Jennings, Robert Y., ‘Government in commission’, in British Year Book of International Law, Vol. 23, 1946, p. 137Google Scholar.

39 Jennings's article, for example, was cited in in the 1958 edition of the British Military Manual but was dropped from the 2004 revised edition. See British Command of the Army Council, Manual of Military Law, Part III, The Law of War on Land, 1958, p. 230; UK Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2004.

40 See Shehadeh, Raja, From Occupation to Interim Accords: Israel and the Palestinian Territories, Kluwer Law International, Cambridge, MA, 1997Google Scholar.

41 See, e.g., A. Roberts, above note 16; S. R. Ratner, above note 15; M. Sassòli, above note 15; A. M. Gross, above note 15.

42 See A. Roberts, above note 8, p. 67, n. 79 (Security Council and General Assembly resolutions have ‘deplored Israel's conduct of the occupation, have condemned as illegal the purported annexation of parts of the occupied territories (including Jerusalem), and have called upon Israel to put an end to its occupation of Arab territories’); G. H. Fox, above note 2, p. 239, n. 264 (collecting Security Council resolutions condemning Israeli occupation practices). Many of these criticisms are addressed and validated in International Court of Justice (ICJ), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, p. 136 (hereafter ICJ, Wall decision).

43 See, e.g., ICJ, Wall decision, above note 42, para. 122 (the construction of the security wall ‘severely impedes the exercise by the Palestinian people of its right to self-determination’).

44 Indeed, the lack of coherence in law applicable in the territories was itself a significant problem during the period of Israeli administration. See Basharat, George E., ‘Peace and the political imperative of legal reform in Palestine’, in Case Western Reserve Journal of International Law. Vol. 31, 1999, p. 265Google Scholar (‘a means for assessing the Palestinian community's need for new legislation was never institutionalized and local Palestinian leaders remained perennially reluctant to seek legislative innovations from an occupying power whose legitimacy they refused to acknowledge. Thus, the law remained stagnant in many areas of importance to the Palestinians’).

45 See Gordon, Neve, Israel's Occupation, University of California Press, Berkeley and Los Angeles, 2008CrossRefGoogle Scholar.

46 See Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, State University of New York Press, Albany, NY, 2002, p. 64Google Scholar.

47 The 7 June 1967 Proclamation Concerning Law and Administration (No. 2) for the West Bank, for example, stated: ‘The law in existence in the Region on June 7, 1967, shall remain in force, insofar as it does not in any way conflict with the provisions of this Proclamation or any other proclamation or Order which may be issued by me, and subject to modifications resulting from the establishment of government by the Israeli Defense Forces [IDF] in the Region’. Quoted in E. Benvenisti, above note 12, p. 114.

48 Ibid., pp. 115–116.

49 Ibid., p. 129.

50 Ibid., p. 118.

51 Ibid., pp. 129–134.

52 Ibid., pp. 129–139.

53 Ibid., p. 123.

54 Ibid., p. 126.

55 Ibid.

56 Ibid., p. 128.

57 Even those who view the occupation of Iraq as having significantly eroded the conservationist principle generally limit themselves to the CPA's political reforms. The economic reforms are generally seen as well beyond the scope of an occupier's authority, even as liberally construed.

58 Contrast Yoo, John, ‘Iraqi reconstruction and the law of occupation’, in UC Davis Journal of International Law & Policy, Vol. 11, 2004, pp. 7–22Google Scholar, with Wolfrum, Rüdiger, ‘Iraq: from belligerent occupation to Iraqi exercise of sovereignty: foreign power versus international community interference’, in von Bogdandy, Armin and Wolfrum, Rüdiger (eds), Max Planck Yearbook of United Nations Law, Vol. 9, 2005, pp. 1–45Google Scholar.

59 See Kaikobad, Kaiyan Homi, ‘II. Problems of belligerent occupation: the scope of powers exercised by the Coalition Provisional Authority in Iraq, April/May 2003–June 2004’, in International and Comparative Law Quarterly, Vol. 54, No. 1, 2005, pp. 253–264CrossRefGoogle Scholar; G. H. Fox, above note 2, pp. 254–262.

60 See M. Zwanenburg, above note 15, pp. 763–767; Benvenisti, Eyal, ‘The Security Council and the law on occupation: Resolution 1483 on Iraq in historical perspective’, in Israel Defense Forces Law Review, Vol. 1, 2003, pp. 19–38Google Scholar.

61 See Fallows, James, Blind into Baghdad: America's War in Iraq, Vintage Books, New York, 2006Google Scholar; Diamond, Larry, Squandered Victory: The American Occupation and the Bungled Effort to Bring Democracy to Iraq, Owl Books, New York, 2005Google Scholar.

62 In Resolution 1483, passed on 22 May 2003, the Security Council expressed ‘resolve that the day when Iraqis govern themselves must come quickly’ (UNSC Resolution 1483, 22 May 2003, preambular para. 4). On 16 October 2003 the Council requested the Governing Council and the Occupying Powers to provide a timetable for drafting a new constitution and holding democratic elections no later than 15 December 2003: see UNSC Resolution 1511, 16 October 2003, para. 7. And in Resolution 1546 the Council dictated the occupation's end: ‘by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty’ (UNSC Resolution 1546, 8 June 2004, para. 2).

63 See Dobbins, James, ‘Who lost Iraq: lessons from the debacle’, in Foreign Affairs, Vol. 86, No. 5, September–October 2007, pp. 61–74Google Scholar; Rush, Trevor A., ‘Don't call it a SOFA! An overview of the U.S.–Iraq Security Agreement’, in Army Lawyer, No. 432, 2009, pp. 34–60Google Scholar.

64 G. T. Harris, above note 12, pp. 37–38 and 56–68. ‘Despite a primarily unilateral intervention, the U.S. was forced to attempt to multilateralize the occupation. The Bush Administration, even despite strong unilateral impulses and the “bad blood” that lingered from the rancorous international debate that preceded the invasion, realized that international support and resources were prerequisites to a successful occupation of Iraq’ (ibid., p. 57).

65 See generally, Murphy, Ray (ed.), Post-conflict Rebuilding and International Law, Ashgate, Farnham, 2012Google Scholar.

66 N. Bhuta, above note 9, p. 736 (‘The claimed legitimacy of imposing a new institutional and constitutional structure [in Iraq] was also strengthened by emergent practice of the international administration of territories that has emerged since the end of the Cold War’); B. C. Parsons, above note 13, p. 16; B. S. Brown, above note 15, p. 42; G. T. Harris, above note 12, pp. 25–32.

67 See Stahn, Carsten, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond, Cambridge University Press, Cambridge, 2008CrossRefGoogle Scholar; Wilde, Ralph, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away, Oxford University Press, Oxford, 2008CrossRefGoogle Scholar; G. H. Fox, above note 5; Richard Caplan, International Governance of War-torn Territories: Rule and Reconstruction, Oxford University Press, Oxford, 2005Google Scholar.

68 UNSC Resolution 1270, 22 October 1999.

69 UNSC Resolution 1528, 27 February 2004.

70 UNSC Resolution 1545, 21 May 2004.

71 UNSC Resolution 1542, 30 April 2004.

72 See generally, R. Murphy, above note 65. In its most recent review of peace operations, the United Nations described its tasks as working, inter alia, to ‘facilitate political processes, protect civilians, help refugees return, support elections, demobilize and reintegrate former combatants, and promote human rights and the rule of law’. See United Nations, 2011 UN Peace Operations Year in Review, United Nations, New York, 2012, available at: http://www.un.org/en/peacekeeping/publications/yir/yir2011.pdf (last visited 15 March 2012).

73 See A. Roberts, above note 16, p. 621: ‘Of all the elements of a transformative project, the ones likely to have the strongest appeal include the introduction of an honest electoral system as part of a multiparty democracy’; Reisman, W. Michael, ‘Sovereignty and human rights in contemporary international law’, in American Journal of International Law, Vol. 84, 1990, p. 866 (popular sovereignty justification for pro-democratic intervention and regime change)CrossRefGoogle Scholar; G. H. Fox, above note 5, pp. 52–55 (democracy promotion as central goal of post-conflict reconstruction missions).

74 Fox, Gregory H., ‘Democratization’, in Malone, David M. (ed.), The UN Security Council: From the Cold War to the 21st Century, Lynne Rienner Publishers, Boulder, CO, 2004, p. 69Google Scholar.

75 Steven Ratner has provided the most comprehensive explication of their similarities. S. R. Ratner, above note 15.

76 Franck, Thomas M., The Power of Legitimacy Among Nations, Oxford University Press, Oxford, 1990Google Scholar.

77 Ibid.

78 M. Hmoud, above note 15, pp. 446–447.

79 See sources cited in above note 61.

80 This repertoire of practice has been compiled and assessed by the Peacebuilding Commission, established in 2005. The Commission has established a Working Group on Lessons Learned, which has issued reports on a wide variety of issues in post-conflict reconstruction. See http://www.un.org/en/peacebuilding/doc_lessonslearned.shtml (last visited 15 March 2012).

81 In the Nicaragua case, the ICJ suggested that human rights treaties operate as self-contained regimes and preclude other means of enforcement, even those not inconsistent with general international law. ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports 1986, p. 14, para. 267 (hereafter ICJ, Nicaragua case): ‘where human rights are protected by international conventions, that protection takes the form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions themselves’. While this conclusion is not uncontested, the Court's important distinction between human rights obligations and limited means for their enforcement – particularly in a case in which the US cited Nicaragua's violation of human rights as a justification for the use of force – is indicative of a view pervasive in international law.

82 Draft Articles on Responsibility of States for Internationally Wrongful Acts, Art. 50(1), in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Session, Supp. 10, November 2001, UN Doc. A/56/10 (2001) (counter-measures contravening UN Charter or jus cogens norms not permitted).

83 Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UNGA Resolution 2625, 24 October 1970, UN GAOR, 25th Session, Supp. No. 28, at 121, UN Doc. A/8082 (1970); ICJ, Nicaragua case, above note 81; ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Merits, 3 February 2012, (state immunity in national court is not affected by allegation of jus cogens violations). See generally, Dupuy, Pierre-Marie, ‘The place and role of unilateralism in contemporary international law’, in European Journal of International Law, Vol. 11, No. 1, 2000, pp. 19–29CrossRefGoogle Scholar.

84 This is hardly a formalistic distinction. If an occupier makes far-reaching changes in the structure of government, the indigenous regime taking power after the occupation ends may be effectively precluded from reversing the effects of those changes. See Y. Dinstein, above note 37, p. 124: changes to political institutions raise ‘the disquieting possibility that profound structural innovations – once the population gets used to them (especially in the course of a prolonged occupation) – may prove hard to eradicate when the occupation is terminated’.

85 In Julius Stone's words, the difference in legislative authority granted to occupiers and indigenous regimes rests on ‘the contrast between the fullness and permanence of sovereign power and the temporary and precarious position of the Occupant’. Stone, Julius, Legal Controls of International Conflict, Rinehart, New York, 1954, p. 694Google Scholar.

86 See the discussion in below note 113.

87 Some writers argue that the Security Council in fact granted the United States broad latitude to engage in reform in Iraq. See, e.g., E. Benvenisti, above note 60. I have disagreed with that view: G. H. Fox, above note 5, pp. 263–269.

88 See, e.g., P. M. R. Stirk, above note 24, p. 203.

89 Harris, Grant T., ‘Human rights, Israel and the political realities of occupation’, in Israel Law Review, Vol. 41, 2008, p. 102CrossRefGoogle Scholar.

90 Dinstein, Yoram, War, Aggression and Self-Defense, 4th edition, Cambridge University Press, Cambridge, 2005, pp. 70–73CrossRefGoogle Scholar; Gray, Christine, International Law and the Use of Force, Oxford University Press, Oxford, 2000, pp. 24–42Google Scholar.

91 A. Roberts, above note 16, p. 581. See also, Sloane, Robert D., ‘The cost of conflation: preserving the dualism of jus ad bellum and jus in bello in the contemporary law of war’, in Yale Journal of International Law, Vol. 34, 2009, p. 108Google Scholar (‘[t]he emerging idea of transformative occupation, whatever its other merits, may well be in tension with’ the jus ad bellum/jus in bello dichotomy); Giladi, Rotem, ‘The jus ad bellum/jus in bello distinction and the law of occupation’, in Israel Law Review, Vol. 41, Nos. 1–2, 2008, p. 277CrossRefGoogle Scholar (‘Rather than a coincidental by-product of war, occupation is very often the intended result of the war. Often it is a sine qua non for meeting the strategic goals for which a state uses force in the first place’).

92 Article 2(2) of the International Covenant on Civil and Political Rights (ICCPR) typifies such legislative obligations: ‘Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant’.

93 G. T. Harris, above note 89, p. 121.

94 See ICJ, Wall decision, above note 42; ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005, ICJ Reports 2005, p. 168; European Court of Human Rights (ECtHR), Al-Skeini et al. v. The United Kingdom, Judgment, 7 July 2011, App. No. 55721/07; Human Rights Committee, General Comment No. 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, UN Doc. CCPR/C/21/Rev.1/Add.13, para. 10; Milanovic, Marko, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy, Oxford University Press, Oxford, 2011CrossRefGoogle Scholar.

95 A well-planned operation will pair traditional security operations with efforts to build the rule of law and strong state institutions, which in the long run are the only effective guardians against civil unrest. See the thorough discussion in Stromseth, Jane, Wippman, David, and Brooks, Rosa, Can Might Make Rights? Building the Rule of Law after Military Interventions, Cambridge University Press, Cambridge, 2006, pp. 134–177CrossRefGoogle Scholar.

96 Y. Dinstein, above note 37, p. 115: ‘[t]he tension between military necessity and humanitarian considerations permeates … the law of belligerent occupation’.

97 See Dennis, Michael J., ‘Application of human rights treaties extraterritorially in times of armed conflict and military occupation’, in American Journal of International Law, Vol. 99, No. 1, 2005, pp. 119–141CrossRefGoogle Scholar.

98 It is arguable that the ICCPR's derogation was designed only ‘to permit the suspension of domestic laws of states parties during periods of public emergency, including periods of armed conflict’ (ibid., pp. 136–137). This view is supported by the fact that, as of 2005, no state party to the Covenant had submitted a notice of derogation in relation to actions outside its national territory (ibid., pp. 125–126).

99 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, p. 226, para. 25. See also ICJ, Wall decision, above note 42, para. 106.

100 As Dinstein observes, ‘[a]s long as there is no head-on collision between the exigencies of the occupation and the political institutions existing in the occupied territory, there is no real necessity for the Occupying Power to tinker with the latter’. Y. Dinstein, above note 37, p. 124.

101 These categories obviously do not neatly capture all cases, and the acts of some occupiers will almost certainly defy this typology.

102 ICJ, Armed Activities on the Territory of the Congo, above note 94, para. 178 (emphasis added).

103 The obligation derives from the injunction in Article 43 of the Hague Regulations that an occupier ‘take all the measures in his power to restore and ensure, as far as possible, public order and safety’.

104 This certainly seemed to be the ICJ's view of Uganda's obligations as an occupier, finding it responsible for ‘any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account’. ICJ, Armed Activities on the Territory of the Congo, above note 94, para. 179.

105 As the Human Rights Committee notes in regard to the ICCPR, ‘Article 2 requires that States Parties adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfil their legal obligations’. General Comment 31, above note 94, para. 7.

106 Anja Seibert-Fohr summarizes the affirmative implementation measures required by the Human Rights Committee of parties to the ICCPR: ‘the Committee has elaborated a whole series of obligations of conduct concerning the status of the Covenant in domestic law, i.e. the obligation to codify the Covenant rights, to accord to it a status superior to domestic legislation, to ensure the conformity of domestic law including the Constitution with it and to incorporate it into the Constitution. Specific measures to prevent and punish violations of the Covenant as elaborated by the Committee in the reporting system (i.e. law enforcement, institutional and procedural safeguards, monitoring and control mechanisms, contextual measures, information and education) are additional examples of obligations of conduct’. Seibert-Fohr, Anja, ‘Domestic implementation of the International Covenant on Civil and Political Rights pursuant to its article 2 para. 2’, in Max Planck Year Book of United Nations Law, Vol. 5, 2001, pp. 467–468Google Scholar.

107 ICJ, Wall decision, above note 42 (construction of a wall by Israel in occupied Palestine); ICJ, Armed Activities on the Territory of the Congo, above note 94 (conduct of Ugandan armed forces in the occupied portion of the DRC); ECtHR, Al-Skeini, above note 94 (acts of British occupying forces in Iraq); ECtHR, Al-Jedda v. The United Kingdom, Judgment, 7 July 2011, App. No. 27021/08 (acts of British occupying forces in Iraq); ECtHR, Loizidou v. Turkey, Judgment, 18 December 1996, App. No. 15318/89 (acts of Turkish occupying forces in Cyprus); ECtHR, Andreou v. Turkey, Decision on Admissibility, 3 June 2008, App. No. 45653/99 (acts of Turkish occupying forces in Cyprus); ECtHR, Al-Saadoon and Mufdhi v. The United Kingdom, Judgment, 2 March 2010, App. No. 61498/08 (acts of British occupying forces in Iraq).

108 HCJ 337/71, Christian Society for the Holy Places v. Minister of Defense, 26(1) Piskei Din 574 (1972).

109 As Professor Roberts states forthrightly, ‘transformative occupation may be considered to have emerged as a more honorable, but still deeply controversial, successor to the discredited notion of annexation’. A. Roberts, above note 16, p. 585.

110 Greenwood, Christopher, ‘The administration of occupied territory in international law’, in Playfair, Emma (ed.), International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation in the West Bank and Gaza Strip, Clarendon Press, Oxford, 1992, p. 247Google Scholar : ‘[a]n occupant may, therefore, suspend or bypass the existing administrative structure where there is a legitimate necessity of the kind discussed … but any attempt at effective permanent reform or change in that structure will be unlawful’.

111 J. S. Pictet, above note 18, Art. 47, p. 275, available at: http://www.icrc.org/ihl.nsf/COM/380-600054?OpenDocument (last visited 16 March 2012).

112 ICJ, Wall decision, above note 42, para. 121.

113 While some suggest that international organizations may be bound in some respects by the law of occupation, that possibility remains hypothetical, since neither the United Nations nor any other international organization has ever acknowledged itself to be an occupier for humanitarian law purposes. See G. H. Fox, above note 5, pp. 222–225. Further, as explained below, even if the United Nations were so bound, the Security Council could exempt the organization from the conservationist principle via Chapter VII.

114 For a discussion of various forms of potential Security Council involvement in setting mandates for occupiers, see G. T. Harris, above note 89, pp. 168–171.

115 See A. Roberts, above note 16, p. 622; S. R. Ratner, above note 15, p. 710; B. S. Brown, above note 15, p. 60; Scheffer, David J., ‘Beyond occupation law’, in American Journal of International Law, Vol. 97, No. 4, 2003, p. 851CrossRefGoogle Scholar. The Security Council's authority to supersede existing treaty norms is grounded in Article 103 of the UN Charter, whose pre-emptive authority was affirmed by the ICJ in its provisional measures opinion in the Lockerbie case. ICJ, Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), 14 April 1992, ICJ Reports 1992, p. 3, para. 39; ICJ, Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), 14 April 1992, ICJ Reports 1992, p. 114, para. 42. See generally, Talmon, Stefan, ‘The Security Council as world legislature’, in American Journal of International Law, Vol. 99, No. 1, 2005, pp. 175–193CrossRefGoogle Scholar.

116 In Thomas Franck's words, the central purpose of the UN collective security system ‘is to replace the outmoded, dangerous national self-reliance on unilateral force with a workable global police system, capable of protecting the weak against the strong and of responding, quickly, with levels of force appropriate to a specific circumstance of lawlessness’. Franck, Thomas M. and Patel, Faiza, ‘UN police action in lieu of war: “The old order changeth”’, in American Journal of International Law, Vol. 85, No. 1, 1991, p. 73CrossRefGoogle Scholar.

117 The Correlates of War Project, available at: http://www.correlatesofwar.org (last visited 16 March 2012) and the Uppsala Conflict Data Program/Peace Research Institute Oslo, available at: http://www.prio.no/CSCW/Datasets/Armed-Conflict/UCDP-PRIO/ (last visited 16 March 2012).

118 The major armed conflicts were the Gulf War (1991), the Bosnian War of Independence (1992), the Azerbaijan–Armenia War (1993–1994), the Eritrea–Ethiopia War (1998), the Kosovo Conflict (1999), the US invasion of Afghanistan (2001), the US invasion of Iraq (2003), and the Eritrea–Djibouti conflict (2008). India and Pakistan had several conflicts during this period and they are treated differently by the two datasets.

119 The Security Council did not take any action on the Kashmir conflict between India and Pakistan, which flared into armed conflict ten times during this period, or on the Ecuador–Peru Cenepa Valley War of 1995. The Cenepa conflict was resolved by a regional treaty group, the Protocol of Rio de Janeiro, and guaranteed by a monitoring mission dispatched by the Protocol member states: see Weidner, Glenn R., ‘Operation Safe Border: the Ecuador–Peru crisis’, in Joint Forces Quarterly, Spring 1996, pp. 52–58Google Scholar.

120 See the varied discussions in Lowe, Vaughan, Roberts, Adam, Welsh, Jennifer, and Zaum, Dominik (eds), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945, Oxford University Press, Oxford, 2008Google Scholar.

121 See generally, Thakur, Ramesh, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect, Cambridge University Press, Cambridge, 2006CrossRefGoogle Scholar.

122 Piiparinen, Touko, The Transformation of UN Conflict Management: Producing Images of Genocide from Rwanda to Darfur and Beyond, Routledge, London and New York, 2010Google Scholar.

123 Benner, Thorsten, Mergenthaler, Stephan, and Rotmann, Philipp, The New World of UN Peace Operations: Learning to Build Peace?, Oxford University Press, Oxford, 2011CrossRefGoogle Scholar; Doyle, Michael W. and Sambanis, Nicholas, Making War and Building Peace: United Nations Peace Operations, Princeton University Press, Princeton, 2006Google Scholar.

124 UNSC Resolution 1645, 20 December 2005, para. 2.

125 M. Doyle and N. Sambanis, above note 123, pp. 349–350: ‘The defining characteristic of all the successful operations is that they each achieved a comprehensive peace agreement – one involving the UN in the entire peace process, from the signing of the first cease-fire to the restoration of the last structures of government’.

126 See Snyder, Jack, From Voting to Violence: Democratization and Nationalist Conflict, W.W. Norton & Company, New York, 2000Google Scholar.

127 An occupier might not seek Security Council approval either because it might believe it to be futile or because it believed it was acting in self-defence, for which no Security Council approval is needed. Article 51 of the UN Charter does require states acting in self-defence to report their actions immediately to the Security Council.