Foreign occupation and international territorial administration: The challenges of convergence

European Journal of International Law

Volumn 16, Issue 4, 2005, Pages 695-719

  Ratner, Steven R ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

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EID: 27844473729     PISSN: 09385428     EISSN: None     Source Type: Journal    
DOI: 10.1093/ejil/chi138     Document Type: Article

References (141)

1. Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (hereinafter Friendly Relations Declaration), principle 1, para. 10, GA Res. 2625 (XXV), 24 Oct. 1970.
2. Paris, 'International Peacebuilding and the "Mission Civilisatrice"', 28 Rev Int'l Stud (2002) 637, at 651.
3. Compare Helman and Ratner, 'Saving Failed States', 89 Foreign Policy (1992-1993) 3
4. and Fearon and Laitin, 'Neotrusteeship and the Problem of Weak States', 28 Int'l Security (2004) 5
5. with Gordon, 'Saving Failed States: Sometimes a Neocolonialist Notion', 12 Am U J Int'l L & Policy (1997) 903.
6. Paris, supra note 2, at 652-653.
7. Roberts, 'What is a Military Occupation?', 55 BYBIL (1984) 249, at 300 (emphasis added).
8. To his credit, Roberts did include occupation by international organizations in his typology of occupations: Ibid., at 289-292.
9. Others have proposed a broad functional meaning that emphasizes the lack of consent of the sovereign. See, e.g., E. Benvenisti, The International Law of Occupation (1993), at 4
10. Vité, 'L'applicabilité du droit international de l'occupation militaire aux activités des organisations internationales', 853 Int'l Rev Red Cross (2004) 9, at 14. My definition is broad enough to cover situations where consent from the territorial sovereign was given (e.g., the Federal Republic of Yugoslavia for the missions in Kosovo), as well as where the state giving consent was not clearly the lawful sovereign (e.g., Indonesia for the missions in East Timor).
11. For a differentiation among 15 types of occupation, 13 of them by states, see Roberts, supra note 5, at 260-293.
12. Chief responsibility for civilian administration rests with the High Representative, whose mandate was established in the 1995 Bosnia peace agreement and has since been elaborated by the 55-state Peace Implementation Council. Other international organizations such as the OSCE and EU are also involved. See generally www.ohr.int.
13. Bull. EU, 1994/6, at 84.
14. See, e.g., Bothe and Marauhn, 'UN Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council-Mandated Trusteeship Administration', in C. Tomuschat (ed.), Kosovo and the International Community: A Legal Assessment (2002), at 217, 230-235.
15. See S. Chesterman, You, the People: The United Nations, Territorial Administration, and State-Building (2004), at 152, 239.
16. See, e.g., SC Res. 1244 (1999), preambular para. 9 ('welcoming ... the acceptance by the Federal Republic of Yugoslavia' of the Kosovo interim administration plan)
17. SC Res. 1264 (1999), preambular para. 10 ('[w]elcoming the statement by the President of Indonesia ... in which he expressed the readiness of Indonesia to accept' UNTAET). The EU's mission that governed Mostar was set up under a 1994 agreement between the members of the EU and WEU, on the one hand, and the government of Bosnia and various related entities, on the other, more than a year before the General Framework Agreement terminating the war in Bosnia: Memorandum of Understanding on European Union Administration of Mostar, 5 July 1994 (on file with the author).
18. See generally Wilde, 'From Danzig to East Timor and Beyond: The Role of International Territorial Administration', 95 AJIL (2001) 583
19. R. Caplan, A New Trusteeship? The International Administration of War-torn Territories, Adelphi Paper No. 341 (2002).
20. Case Concerning the Territorial Dispute (Libya/Chad)[1994] ICJ Rep 6.
21. See Press Statement by Security Council President on Handover of Sovereignty to Iraq, 28 June 2004, Press Release No. SC 8136 (Council members 'welcome the handover of full responsibility and authority for governing Iraq to the fully sovereign and independent Interim Government of Iraq, thus ending the occupation....').
22. Friendly Relations Declaration, supra note 1, principle 1, para. 10
23. see also Gasser, 'Protection of the Civilian Population', in D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts (1995), at 209, 242.
24. See, e.g., Geneva Convention IV, Arts. 49, 53, 54, 64, 67; Hague Convention IV Regulations, Arts. 42-56; see also Roberts, 'Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967', 84 AJIL (1990) 44.
25. See Benvenisti, supra note 6, at 91-98
26. Roberts, supra note 5, at 267-271.
27. See General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 10, Art. 1. In practice, the Security Council has endorsed the PIC's choice of High Representative. See, e.g., SC Res. 1396 (2002), para. 1.
28. See S.R. Ratner, The New UN Peacekeeping: Building Peace in Lands of Conflict After the Cold War (1995), at 41-50.
29. See, e.g., Netherlands Institute for War Documentation, Srebrenica: A 'safe' area, available at www.srebrenica.nl/en/a_index.htm.
30. Ratner, supra note 20, at 56-71.
31. Aeschlimann, 'Overview of Protection Issues in Contexts of Multinational Peace Operations', in A. Faite and J.L. Grenier (eds.), Expert Meeting on Multinational Peace Operations (2004), at 23, also available at www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/5UPD5E/$File/ Report_Multinat_Peace_Ops_TOGO.pdf.
32. See, e.g., Scheffer, 'Beyond Occupation Law', 97 AJIL (2003) 842, at 851, 859 ('occupation law should be returned to the box from which it came')
33. Fox, 'The Occupation of Iraq', 36 Geo J Int'l L (2005) 195 at 262-269.
34. See, e.g., G. Fay, AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade, at 11-15, available at www4.army.mil/ocpa/reports/ar15-6/AR15-6.pdf.
35. SC Res. 1546 (2004), Annex.
36. SC Res. 1483 (2003), para. 5.
37. The Council did direct the Special Representative to assist in promotion of human rights, ibid., para. 8(g).
38. Though governments have tended to emphasize the applicability of international humanitarian law alone, UN bodies have proved highly inconsistent in their practice, Dennis, 'Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation', 99 AJIL (2005) 119, at 120-121.
39. See Beit Sourik Village Council v Government of Israel, HCJ 2056/04, 43 ILM (2004) 1099. As David Kretzmer has pointed out to me, the key UN human rights covenants did not enter into force until nearly 9 years into the Israeli occupation, which could account for the reliance on IHL as well.
40. UNMIK Regulation 1991/1, 25 July 1999, available at www.unmikonline.org.
41. UNTAET Regulation No. 1999/1, 27 Nov. 1999, para. 2, available at www.un.org/peace/etimor/UntaetN.htm.
42. See, e.g., Agreement on a Comprehensive Settlement of the Cambodia Conflict, Annex 1, Section E, 1663 UNTS 56, 75.
43. Scheffer, supra note 24, at 852 and note 48.
44. Szasz, 'UN Forces and International Humanitarian Law', in M. Schmitt (ed.), International Law Across the Spectrum of Conflict: Essays in Honour of Professor L.C. Green on the Occasion of his Eightieth Birthday (2000), at 507
45. see also Tittemore, 'Belligerents in Blue Helmets: Applying International Humanitarian Law to United Nations Peace Operations', 33 Stanford J Int'l L (1997) 61, at 83-92.
46. See, e.g., Fact Sheet, Status of Detainees at Guantanamo Bay, available at www.whitehouse.gov/news/releases/2002/02/20020207-13.html.
47. Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 66, at para. 2 5.
48. See also Kretzmer, 'Targeted Killings of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?', 16 EJIL (2005) 171.
49. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep., at paras. 105-113, 127-134.
50. Dennis, supra note 27.
51. See, e.g., Amnesty International, Iraq: Human Rights Protection and Promotion Vital in the Transitional Period, 28 June 2004, AI Doc. No. MDE 14/030/2004.
52. See, e.g., R. Kolb, Droit humanitaire et opérations de paix internationales (2002)
53. M.J. Kelley, Restoring and Maintaining Order in Complex Peace Operations (1999), at 145-181
54. Greenwood, 'International Humanitarian Law and United Nations Military Operations', 1 YB Int'l Human L (1998) 3.
55. For studies of specific missions see, e.g., Irmscher, 'The Legal Framework for the Activities of the United Nations Interim Administration Mission in Kosovo: The Charter, Human Rights, and the Law of Occupation', 44 German YB Int'l L (2001) 353, at 374-395
56. Cerone, 'Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo', 12 EJIL (2001) 469.
57. For a view that IHL should be applied de facto but not de jure, a distinction I find somewhat baffling, see Vité, supra note 6. Most earlier studies of UN multi-dimensional peacekeeping, including my own, neglected the relevance of international humanitarian law.
58. For more on this issue see Doswald-Beck and Vité, 'International Humanitarian Law and Human Rights Law', 293 Int'l Rev Red Cross (1993) 94.
59. Though human rights critics of the UN operations are certainly prepared to assume the conflict is over and that derogations from the ICCPR are not permitted. See, e.g., infra notes 84-88.
60. 6 Aug. 1999, UN Doc. ST/SGB/1999/13.
61. UN Department of Peacekeeping Operations, Peacekeeping Best Practices Unit, Handbook on UN Multidimensional Peacekeeping Operations (2003), at 58, 101-112
62. Report of the Panel on United Nations Peace Operations (hereinafter Brahimi Report), 21 Aug. 2000, paras. 6(e), 41, 58, 81, UN Doc. A/55/ 305- S/2000/809.
63. For the Australian position that IHL applies to occupation by UN-mandated forces, see Kelly, McCormack, Muggleton, and Oswald, 'Legal Aspects of Australia's Involvement in the International Force for East Timor', 841 Int'l Rev Red Cross (2001) 101.
64. Hague Convention IV Regulations, Art. 43
65. Geneva Convention IV, Art. 64.
66. See Vité, supra note 6, at 14-19.
67. See generally Benvenisti, supra note 6, at 123-144.
68. CPA Order No. 7, 10 June 2003, available at www.cpa-iraq.org.
69. CPA Order No. 19, 10 July 2003, available at www.cpa-iraq.org.
70. See Scheffer, supra note 24, at 854-856
71. Fox, supra note 24, at 240-245.
72. Benvenisti, supra note 6, at 84-86.
73. Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia during the Transitional Period, 10 Sept. 1992, available at www.cdpcambodia.org/untac/asp.
74. See Chesterman, supra note 11, at 85-86.
75. See, e.g., UNMIK Regulations 1999/10, 13 Oct. 1999 (repealing discriminatory housing laws)
76. 1999/24, 12 Dec. 1999 (setting 22 Mar. 1989 as date after which all local laws are presumptively invalid), both available at www.unmikonline.org;
77. Irmscher, supra note 39, at 357-362, 392-394.'
78. UNTAET Regulation No. 2000/30 on Transitional Rules of Criminal Procedure, 25 Sept. 2000, available at www.un.org/peace/etimor/ UntaetN.htm.
79. The Brahimi report devoted one section to this important issue. See Brahimi Report, supra note 43, paras. 79-82.
80. See, e.g., SC Res. 1272 (1999), para. 4 (authorizing UNTAET 'to take all necessary measures to fulfill its mandate').
81. I exclude the domestic law of the occupying state or contributor to the international mission.
82. See, e.g., SC Res. 1483 (2003), para. 4 ('Calls upon the Authority...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;')
83. 1500 (2003), para. I ('Welcomes the establishment of the broadly representative Governing Council of Iraq...as an important step towards the formation by the people of Iraq of an internationally recognized, representative government....')
84. 1546 (2004), para. 1 ('Endorses the formation of a sovereign Interim Government of Iraq...which will assume full responsibility and authority by 30 June 2004 for governing Iraq....').
85. Compare the majority and dissenting opinions in Hartford Fire Insurance Co v California, 509 US 764 (1993), on the notion of a conflict between domestic laws of two states.
86. Compare ICCPR, Arts. 9-10, with Geneva Convention IV, Arts. 5, 41-43, 68, 78, and generally 79-135.
87. See, e. g., Irmscher, supra note 39, at 391-393.
88. Roberts, supra note 17.
89. Scheffer, supra note 24, at 851 ('liberating armies that operate with international authority, advance democracy, and save civilian populations from atrocities should be regulated by a modern occupation regime that can be created under the UN Charter.')
90. ibid. at 859.
91. See also Roberts, 'The End of Occupation: Iraq 2004', 54 ICLQ (2005) 27, at 36.
92. See, e.g., Watkin, 'Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict', 98 AJIL (2004) 1
93. Ben-Naftali and Shany, 'Living in Denial: The Application of Human Rights in the Occupied Territories', 37 Israel L Rev (2003-2004) 17, and in particular their discussion at 103-109
94. Fox, supra note 24, at 270-278
95. Frowein, 'The Relationship Between Human Rights Regimes and Regimes of Belligerent Occupation', [1998] Israel YB Hum Rts 1.
96. I appreciate this insight from David Wippman.
97. The legality of a Council attempt to override jus cogens norms seems not particularly pertinent to this debate.
98. For an eloquent defence of the idea of human rights as the 'normal order of things' see Ben-Naftali and Shany, supra note 65, at 41-42.
99. Friendly Relations Declaration, supra note 1, principle 1, para. 10. I leave aside the possibility that a government can be removed by a state acting in self-defence, by a decision of the Security Council, or even through unauthorized humanitarian intervention in exceptional circumstances.
100. Compare SC Res. 1483 (2003), para. 5 (calling for compliance with IHL) with paras. cited in supra note 59.
101. This is close to the positions of Gasser, supra note 16, at 255,
102. Benvenisti, supra note 6, at 167
103. and Fox, supra note 24, at 270-278.
104. I appreciate thoughts on this idea from David Kretzmer.
105. One obvious example was the opposition of the UN Secretary-General to the US offensive in Falluja in late 2004. See Filkins and Glantz, 'All Sides Prepare for American Attack on Falluja', NY Times, 6 Nov. 2004, A2.
106. See, e.g., Brahimi Report, supra note 43, para. 49 ('United Nations military units must be capable of defending themselves, other mission components and the mission's mandate. Rules of engagement should not limit contingents to stroke-for-stroke responses but should allow ripostes sufficient to silence a source of deadly fire that is directed at United Nations troops or at the people they are charged to protect....')
107. see also Chesterman, supra note 11, at 103-112.
108. See B. Simma (ed.), Charter of the United Nations (2nd edn., 2002), ii, at 1273-1274.
109. First report of the Secretary-General on the plan for an emergency international UN Force requested in resolution 998 (ES-I) adopted by the General Assembly on 4 November 1956, 4 Nov. 1956, UN GAOR, 1st Emergency Special Sess., Annex, Agenda Item 5, at 14, UN Doc. A/3289. More recently, the General Assembly has bristled at the number of gratis personnel donated by member states as upsetting the geographical balance of Organization's personnel. See, e.g., GA Res. 51/243, 15 Sept. 1997.
110. As Paul Szasz crystallized the UN view, 'it was considered somewhat unseemly to suggest that the United Nations might be "a party" to a military conflict'; Szasz, supra note 33, at 511.
111. See Ratner, 'Revising the Geneva Conventions to Regulate Force by and Against Terrorists', 1 Israel Defense Forces L Rev (2003) 7. Dicta in the ICJ's Wall Case about the jus ad bellum legality of the Israeli occupation of the West Bank suggest the spillover between jus ad bellum and jus in bello
112. see Wall Case, supra note 36, paras. 75, 117.
113. Use of force by peacekeeping operations of course dates back to the Congo operation in 1960-1964 and has played a role in other operations as well, though the demand for robust peacekeeping has clearly increased since the Somalia operation of 1993. See generally T. Findlay, The Use of Force in UN Peace Operations (2002).
114. Fearon and Laitin, supra note 3, at 21, 23.
115. Chesterman, supra note 11, at 117-118.
116. Amnesty International, East Timor: Justice Past, Present and Future (July 2001), at 21-22, AI Index No. ASA 57/001/2001
117. for one harsh academic critique, see Bongiorno, 'A Culture of Impunity: Applying International Human Rights Law to the United Nations in East Timor', 33 Columbia Human Rts L Rev (2002)623.
118. SC Res. 1244 (1999), para. 9(d).
119. OSCE Mission in Kosovo, Kosovo: Review of the Criminal Justice System (March 2002-April 2003) (hereinafter 2003 OSCE Mission Report), 20 May 2003, at 33-34, available at www.osce.org/kosovo.
120. On the Ombudsperson, see Nilsson, 'UNMIK and the Ombudsperson Institution in Kosovo: Human Rights Protection in a United Nations "Surrogate State"', 22 Neth Hum Rts Quarterly (2004) 389.
121. See, e.g., Kosovo: The Human Rights Situation and the Fate of Persons Displaced in their Homes: Report by Mr. Alvaro Gil-Robles, 16 Oct. 2002, CoE Doc. CommDH(2002)11
122. OSCE Mission in Kosovo, Kosovo: A Review of the Criminal Justice System 1 September 2000-28 February 2001, 28 July 2001, available at www.osce.org/kosovo;
123. Ombudsperson Institution in Kosovo, Special Report No. 3, 29 June 2001, available at www.ombudspersonkosovo.org;
124. Situation of Human Rights in Parts of South-Eastern Europe: Report of the Special Representative of the Commission on Human Rights on the Situation of Human Rights in Bosnia and Herzegovina and the Federal Republic of Yugoslavia, Jose Cutileiro, 8 Jan. 2002, paras. 86-94, UN Doc. E.CN.4/2002/41
125. Amnesty International, Federal Republic of Yugoslavia (Kosovo): International Officials Flout International Law, Sept. 2002, AI Index No. EUR 70/008/2002.
126. See also Chesterman, supra note 11, at 148-151.
127. UNMIK Regulation 2001/18 on the Establishment of a Detention Review Commission for Extra-Judicial Detentions Based on Executive Orders, 25 Aug. 2001, s. 6.1.c, available at www.unmikonline.org.
128. See, e.g., OSCE Mission in Kosovo, Kosovo: Review of the Criminal Justice System September 2001-February 2002, 29 Apr. 2002, available at www.osce.org/kosovo;
129. 2003 OSCE Mission Report, supra note 84
130. Nilsson, supra note 85, at 403-407.
131. See, e.g., International Crisis Group, Collapse in Kosovo, 22 Apr. 2004, at 27-30, ICG Europe Report No. 155.
132. See the Ombudsperson's letters and reports available at www.ombudspersonkosovo.org.
133. See Chesterman, supra note 11, at 149-151 (on position of UNMIK officials).
134. Report of the Secretary-General on the United Nations Interim Administration in Kosovo, 2 Oct. 2001, UN Doc. S/2001/926, para. 48 (regulation provides 'additional procedural protection and enhances transparency to ensure that my Special Representative's executive powers are exercised only when justifiable and absolutely necessary').
135. UNMIK Regulation 2000/47, 18 Aug. 2000, available at www.unmikonline.org.
136. See, e.g., Ombudsperson Special Report No. 1, 26 Apr. 2001, available at www.ombudspersonkosovo.org.
137. See Nilsson, supra note 85, at 401-404.
138. See Reid, 'Guard Convicted in the First Trial from Abu Ghraib; Garner Faces 15 Years for Abusing Iraqis', Washington Post, 15 Jan. 2005, A1.
139. See Schmitt and Shanker, 'Posts Considered for Commanders After Abuse Case', NY Times, 20 June 2005, A1.
140. See, e.g.,'Agora: The Gulf Crisis in International and Foreign Relations Law, Continued', 85 AJIL (1991) 506, 516 (contributions by Rostow and Weston).
141. See The Situation in Afghanistan and its Implications for International Peace and Security: Report ofthe Secretary-General, 18 Mar. 2002, para. 98, UN Doc. A/56/875-S/2002/278.