The jus post bellum and occupation

Post-intervention reconstruction efforts are by definition aimed at reforming the constitution of the ‘host’ state. But the nature, scope and legality of post-intervention reforms depends in turn on the nature of the intervening actors.  A distinction between unilateral and multilateral interventions must be made at the outset.

Multilateral occupations usually take place with the authorisation of a UN Security Council resolution outlining a broad mandate for reform of the political, legal and economic cultures of the host state.  For example, the Security Council in Kosovo authorised the interim UN administration to oversee ‘the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants’. In East Timor the Council authorised the UNTAET mission with ‘overall responsibility for the administration of East Timor’.  It was also authorised to ‘exercise all legislative and executive authority, including the administration of justice’.

Unilateral interventions, meanwhile, must accept the immediate applicability of the law of occupation.  The law of occupation, is an aspect of international humanitarian law, set out in the Fourth Geneva Convention of 1949 (GC IV) which governs the conduct of the ‘High Contracting Parties.’  In this sense, it is not applicable to international organisations such as the United Nations which has not ratified GC IV.  The law of occupation presents occupiers with the ‘conservationist principle’ designed to prevent large-scale reform of legal, political and economic institutions in favour of the status quo ante bellum.  A look back at the behaviour of the intervening coalition in the Iraq War 2003 helps to explore the differences between occupation law and UN-law as frameworks for post-intervention legal reform.

The US-led coalition proceeded to initiate hostilities (without a Security Council mandate) in March 2003.  By April, Baghdad had fallen under the control of the coalition forces.  In May, the newly constituted Coalition Provisional Authority (CPA) proclaimed its authority to govern Iraq yet the United States went to the Security Council to obtain a broad mandate for reform.  If the United States, and by extension the CPA, had not obtained a Security Council mandate authorising the necessary post-intervention reforms, then the ‘conservationist principle’ of the law of occupation might have presented a more restrictive framework for reform.  The mandate UN SC Resolution 1483, in fact represents a compromise, a legal hybrid in which the applicability of the law of occupation upon the US and UK forces was explicitly recognised, while at the same time, the CPA was authorised to ‘promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future’. It is in these hybrid solutions to the problems of reconstruction that a possible jus post bellum could be found.  However, it is not clear that re-branding is necessary.

The Iraq War highlighted that post-intervention reconstruction must recognise and address the principles of the law of occupation.  Rooted in the principle of state sovereignty the law of occupation is designed to restrict the possibility of legislative reform in post-intervention states.  However, international practice, (both unilateral and multilateral) demonstrates a need to circumvent the law of occupation in certain situations.  This is done most easily when the post-intervention reconstruction is conducted under the auspices of the United Nations or some other international organisation.

However, the Security Council is essentially a political body, and whether it is desirable that a political body can circumvent the international law of armed conflict remains a difficult question.  Still, it’s better than some jus post bellum suggestions which would give the right to circumvent the law of occupation to the occupier, solely by virtue of them being in the occupied territory.