Occupation Law, Sovereignty, and Political Transformation: Should the Hague Regulations and the Fourth Geneva Convention Still be Considered Customary International Law

• Author: Major Nicholas F. Lancaster
• Pages: 05

2006] CUSTOMARY INT'L OCCUPATIONAL LAW 51

OCCUPATION LAW, SOVEREIGNTY, AND POLITICAL TRANSFORMATION: SHOULD THE HAGUE REGULATIONS AND THE FOURTH GENEVA CONVENTION STILL BE CONSIDERED CUSTOMARY INTERNATIONAL LAW?

MAJOR NICHOLAS F. LANCASTER*

I. Introduction

Has customary international occupation law changed as a result of actions taken by the Coalition Provisional Authority (CPA) in Iraq under authority of United Nations (UN) Security Council Resolution 1483?1

The CPA legislated extensively in the areas of government and economics, using its authority under Resolution 1483.2 Although justified by the goals expressed by the UN Security Council in Resolution 1483, much of this legislation is inconsistent with existing customary international occupation law as reflected in the Hague Regulations3 and the Geneva Convention.4 This article argues that

customary international occupation law has changed as a result of state practice, culminating in the Coalition occupation and administration of Iraq. Customary international law no longer requires adherence to the principle that an occupier is a mere trustee, without authority to transform the occupied state's form of government and economy to reflect democratic values, particularly when the transformative goals are authorized by the UN Security Council.

This article discusses the relevant international agreements and treaties considered to make up the conventional international law of occupation. It then discusses the ways international rules become part of customary law, before citing two examples of occupations since 1949, one where customary international law is thought to apply, and another where the rules were dictated by the UN Security Council. There is a brief discussion of what portions of Hague and Geneva might reflect customary as well as conventional international law on occupations. Lastly, this article argues that customary international law has changed as a result of state practice culminating in the UN sanctioned coalition occupation of Iraq.

II. Background

Before the late nineteenth century, when one country defeated another in battle, the contested territory and its people belonged to the victor.5 As the concept of state sovereignty emerged in the 1800s, rules developed to govern the victor's behavior upon occupying another's land. The Hague Convention of 1907 is the baseline document codifying customary occupation law.6 The Fourth Geneva Convention of 1949 supplements the Hague Convention where it pertains to occupation law.7

The Additional Protocols of 1977 add to the protections for civilian populations contained in the Fourth Geneva Convention.8 Although the United Nations Charter does not address occupation law, its terms have

provided the primary justification for most occupations since its creation in 1945.9

1. Hague Regulations of 1907

   In 1899 and 1907, two international conferences were held at The Hague for the purpose of creating agreements to prevent wars in the future.10 The conferences also codified the rules of warfare, in the event that prevention failed.11 The documents that resulted from these conferences are known as the Hague Conventions and include annexed Regulations respecting the Laws and Customs of War on Land.12

   Convention IV and its annexed Regulations, adopted by the 1907 Convention, are virtually identical to Convention II adopted in 1899.13

   The Hague Regulations codified the core of customary international law respecting armed conflict, and include a section devoted to occupation law entitled: Military Authority Over the Territory of the Hostile State.14

   The Hague Convention of 1907 reflects its drafters' purpose to maintain state sovereignty in the wake of battlefield defeat. The convention is a product of its times, where states fought mainly limited wars with minimal impact on civilian populations.15 The idea was that although an army might be defeated in battle, the sovereign still existed and would sue for peace, reaching some negotiated settlement whereby the occupied territory would return to the status quo ante.16

   This idea of state sovereignty is reflected in Article 43 of the Hague Regulations of 1907:

   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, while respecting, unless absolutely prevented, the laws in force in the country.17

   The power of the occupant to legislate is clearly restricted by Article 43 to those areas that affect its security. In fact, not only is the occupant's power to legislate restricted, but he is also required to respect the laws already in force in the occupied area, the laws of the rightful sovereign.18

   Occupation is seen as a temporary condition, where the occupant functions almost like a trustee of the occupied territory and population until the sovereign can return.19 Article 55 of the Hague Regulations continues the emphasis on fiduciary duties of an occupier, calling the occupier an "administrator and usufructuary" of most public property and requiring the preservation of natural resources.20 The clear import of these provisions is that the occupier may not change the existing laws in the main to reflect his will, let alone change the form of government in the occupied nation.21

   In addition to the two provisions cited above, the Hague Regulations contain rules governing the occupier's use of property22 and protecting the civilian population from abuse.23 The occupier may generally seize state property that can be used for military purposes, but may not seize private property, even of a military character, without paying compensation.24 The occupier may collect the normal taxes due in the occupied territory, but must collect them in the manner provided for by their own law, and use the proceeds for the purpose of governing the area.25 If the occupier levies additional funds or even services from the population, they must be used only for the needs of the occupying force.26 Protections for the civilian population include forbidding oaths of allegiance to the occupier,27 rules for respecting private property and family honor,28 and a prohibition against pillage.29

   The Hague Regulations provided a baseline codification of customary international law pertaining to armed conflict. However, they failed to prevent the wide-spread suffering sustained by civilian populations in the first half of the 20th century.

2. Geneva Conventions of 1949

   The impetus behind the Fourth Geneva Convention of 1949 was the suffering of civilian populations in World War I (WWI) and World War II (WWII), and the desire to prevent such suffering in future conflicts.30

   The Hague Regulations had proven inadequate to regulate the behavior of states in the conduct of total war.31 As discussed previously, the Hague Regulations were drafted at a time when war was still considered a discrete event, fought by soldiers, with minimal effect on the civilian population.32 The advent of the world wars, with widespread use of tactics implicating civilian populations, changed understanding of the concept of war itself, and highlighted the need to protect civilians during

   armed conflict.33 After WWII, the International Committee of the Red Cross called for a conference, held in Geneva from 21 April to 12 August 1949, entitled the Diplomatic Conference for Establishment of International Conventions for the Protection of Victims of War.34 This conference resulted in the four Geneva Conventions of 1949. The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) deals specifically with the protection of civilians in armed conflict. 35

   The Fourth Geneva Convention reflects an emphasis on the civilian population itself, rather than the state.36 There are few rules granting authority to the occupier, and many provisions enumerating the occupier's obligations to the civilian population. This reflects the overarching purpose of the Fourth Geneva Convention to protect the civilian population from harm during periods of armed conflict and occupation.37 It also reflects a shift in the way the concept of sovereignty is understood. Instead of sovereignty vested in the government or state, there seems to be an emphasis on sovereignty vested in the population itself. This concept of popular sovereignty, along with the principle of self-determination, had taken center stage in the United Nations Charter, created four years earlier.38

   One way the Geneva Conventions' drafters tried to protect civilians was to increase the scope of the Conventions to cover more situations and more persons who could be affected by war.39 Under the Hague Regulations, the rules only applied between states who had signed the Regulations, and even then, only to signatories when all parties to the conflict had signed.40 The Hague Regulations also do not contain a provision stating when they will apply.41 The assumption was that the Regulations would apply during wartime, and that wartime would be

   defined by a declaration of some kind by the parties.42 Experience subsequent to the Hague Regulations showed that there were many circumstances where hostilities were not preceded by a declaration, and yet there was still a need for protection of civilian populations.43 This effort to broaden the scope of protections in the law of war is evident in Article 2 common to all four Geneva Conventions of 1949.44 Common Article 2 says that the Geneva Conventions will apply to all cases of armed conflict between states, even if not declared, and also in all cases of occupation, even where the occupation is unopposed.45 Common Article 2 also says that the Convention will apply to all signatories, even if there is a party to the conflict that is not a signatory.46

   The Fourth Geneva Convention contains many provisions concerning food,47 medical care,48...