This post asks what implications the 2015 US Department of Defence Law of War Manual has for the jus post bellum scholarship. A recent post by Greg Fox on Opinio Juris can be found here. As a brief clearing of the ground:
(It is 1180 pages long, so no, I haven’t read it all yet).
The DOD manual and the debate over ‘transformative occupations.’
Adam Roberts coined the phrase ‘transformative occupations’ in the aftermath of the Iraq War. According to Roberts, these types of occupations were directed at changing the legal, political and economic structures of the defeated state towards more liberal democratic international norms. They represent a more ‘honourable’ form of regime change than pure annexation, and moreover, they have become a necessary aspect of international peace and security (following the growth of human rights norms since the end of WWII).
The problem of course, is that these types of occupations contravene what Greg Fox has called the ‘conservationist principle’ inherent in the law of occupation (see Gregory H. Fox, The Occupation of Iraq, 36 Geo. J. Int’l L. 195 (2005). Occupiers must respect the laws in force in the country they occupy or be in breach of the Hague Regulations 1907 and the Fourth Geneva Convention (GC IV).
Iraq, of course, underwent huge legal, political and economic reform under the auspices of the Coalition Provisional Authority. The pertinent question for the DOD (and the jus post bellum scholarship) is whether the experience of Iraq provided an updated 21st century interpretation for the law of occupation. The UK government has already made steps towards this interpretation with the updating of its Manual in 2004. The UK said that an occupier may ‘repeal or amend laws that are contrary to international law and is also entitled to make changes mandated or encouraged by the UN Security Council.’ (see §11.11)
But the DOD did not follow this path. It answered ‘No’. The Manual repeats Article 43 of the Hague Regulations almost verbatim. It is also identical to the 1956 version of the Manual (§369).
‘The Occupying Power may subject the population of the occupied territory to provisions:
(1) that are essential to enable the Occupying Power to fulfill its obligations under the GC; (2) to maintain the orderly government of the territory; and (3) to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.’
What does this mean for the jus post bellum? The jus post bellum, according to Brian Orend, would provide intervening forces with a set of post-intervention norms which would permit transformative occupation towards liberal democratic statehood.(see ‘Jus Post Bellum – A Just War Theory Perspective’, in Stahn and Kleffner (eds.), Jus Post Bellum – Towards a Law of Transition from Conflict to Peace (T.M.C. Asser Press: The Hague, 2008), 31.)
Brian Orend interprets Kant in arguing that the jus post bellum permits ‘forcible regime change’ as long as certain conditions of justice are adhered to. First among these, the victorious power has adhered to the jus ad bellum and the jus in bello (i.e. has a just cause in going to war, and has fought the war justly.)
Kant writes, ‘[i]nternational right is thus concerned partly with the right to make war, partly with the right of war itself, and partly with questions of right after war, i.e. with the right of states to compel each other to abandon their war-like condition and to create a constitution which will establish an enduring peace (emphasis added).’ (see Immanuel Kant, ‘The Metaphysics of Morals, Part One: The Doctrine of Right’, in H. Reiss, (ed.) Kant: Political Writings (trans. H. Nisbet, CUP, 1995), 167.)
In short, a new Geneva Convention on the jus post bellum (GC V) would permit unilateral actors to undertake transformative occupations. This could happen without the need of UN Security Council approval for reforms (the UN has authorised several post-intervention reconstruction missions since the end of the Cold War, for a review see ‘Humanitarian Occupations‘ by G. Fox – even in Iraq, see UNSC Res 1483.)
It is important to note, that if Orend’s claims about the jus post bellum were to become law, it would be the U.S. and other powerful military states that would benefit the most. Therefore, it comes as a blow, to Orend and other jus post bellum proponents, that even those most likely to benefit from the proposed reform, reject that interpretation of the law.
The U.S. DOD interpretation of the law of occupation reaffirms the ‘conservationist principle’. The occupying country has limited rights to change the laws in force. The only exception is laws ‘relating to the administration of the law, such as repealing laws establishing racial discrimination or promulgating laws requiring the impartial application of the law by local officials.” (§220.127.116.11).
Contra the jus post bellum proponents, the 2015 DOD Manual implicitly endorses the multilateral approach to post-intervention reconstruction. It reaffirms the idea that if and when a ‘transformative’ purpose is necessary to organise the ‘end-state’ of an occupied territory/defeated state/failed state, the UNSC has the power to dis-apply the law of occupation in these situations.
Leaving aside the imperfections in UNSC Res 1483, and the fact that the UNSC is a political body making legal pronouncements, this seems to me, at least, the best option. Orend’s call for a jus post bellum that victorious powers would interpret pins us to a unilateralism which is (in my view) sets more problematic precedents in matters of international peace and security.
Conclusion: the jus post bellum, as interpreted by Orend, claims that powerful states have a right to undertake transformative occupations in countries they invade as long as they stick to certain principles of justice (when would a victorious power not assert they had acted justly??).
However, even the U.S. (who has most to gain in the recognition of a jus post bellum) in the recent DOD Manual on the Laws of War rejects the concept of ‘transformative occupation’! It adheres to the traditional interpretation of the law of occupation. It is for the UNSC to present ad-hoc, and situation specific solutions to post-intervention reconstruction problems. This is not perfect. However, it is the best solution we have. The DOD’s interpretation of the law is correct and the proposals for a reform of the law of armed conflict provided by Orend and others should be rejected.