In pursuit of reconstructing Iraq: does self-determination matter?

• Jurisdiction: United States
• Date: 22 June 2005
• Author: Jung, Youngjin
• Published date: 22 June 2005
• Author: Jung, Youngjin

1. INTRODUCTION

   Since the U.S.-led "coalition of willing" (1) invaded Iraq and toppled the Saddam Hussein regime, Iraq has effectively been under the control of the Coalition forces. (2) One can argue that the Iraqi territory is under belligerent occupation pursuant to international law. (3) As an occupying power, the United States and its allies are vigorously attempting to reconstruct Iraq and eradicate the sources of threat to international peace and security. (4) Among politicians and academics around the world, the legality of the war in Iraq was perhaps the single most controversial issue in the year 2003. (5) States opposing the attack on Iraq invoked the principles of the U.N. Charter, (6) while those supporting the cause of the war based their arguments on numerous U.N. Security Council (7) resolutions and the allegedly imminent threat of the Hussein government that justified the use of force in self-defense. (8) It is even suggested that international law should accept a new paradigm of "collective duty" to prevent unruly regimes from threatening global security with weapons of mass destruction (WMD). (9)

   However, there is another important question that one needs to address: how to end the war. There seems to be a long way to go before peace and stability replace the current turmoil in Iraq, and the intermittent violence directed against the occupying powers ceases. (10) Nevertheless, the challenge of restoring public order and safety has come to the forefront, which appropriately leads to question, "How does the Coalition end the war?"

   The main motivation for the United States and its allies was to remove the "alleged threat" to international peace and security posed by the former Iraqi leader, Saddam Hussein, in the form of his ostensible WMD programs. (11) No one would deny that the future reconstruction of Iraq should be aimed at enabling the Iraqi people to freely pursue freedom and economic recovery. Moreover, the new Iraq needs to address the issue of the long-standing divisions among diverse internal sectarian groups, the Shi'ites, the Sunnis, and the Kurds, in order to build a stable social and political structure serving the peoples' needs. (12) Therefore, the dual tasks of (1) completely eliminating all sources of threat and (2) reconstructing Iraq to serve the interest of its people are fundamental issues to address. The answer to the question "how to end the war?" may be found by undertaking a thorough analysis of the legal implications of belligerent occupation. This is appropriate since the current occupation is at a critical phase during which a new foundation for the political and social systems will soon be established in the devastated country.

   The law of belligerent occupation provides a basic framework to determine how, and to what extent, the rights of the Iraqi people should be protected as the war nears its end. As the occupying power builds a new political and social structure for Iraq, close attention must be directed to the Iraqi people's choices and preferences. This U.N. Security Council adopted Resolution 1511 on October 16, 2003. (13) The Resolution reaffirms the "right of the Iraqi people freely to determine their own political future and control their own natural resources." (14) Although the Resolution does not explicitly mention the term 'self-determination,' it strongly implies that self-determination is at issue. (15) In other words, one is faced with the question of how to accommodate the right to self-determination within the context of belligerent occupation.

   The concept of self-determination was not salient at the time of conclusion of the Hague (16) and the Geneva Conventions (17) concerning the laws and customs of war, which sought to regulate the status of the occupying powers. (18) In fact, the self-determination theory was once denounced as political rhetoric. (19) Throughout the twentieth century, however, the international community has gradually accepted this theory as one of the most robust principles of international law. (20) It is even believed to constitute a part of jus cogens. (21) Therefore, one needs to raise and answer the question of self-determination in every belligerent occupation context.

   This article examines the rules of belligerent occupation and the status of the right to self-determination in the contemporary era, focuses on their mutual relationship at a normative level, and proposes that the right to self-determination should be regarded as an important factor when applying the laws of belligerent occupation. The article also argues that the right of the people to self-determination will limit the options of the occupying powers in managing the political process in the occupied territory.

2. STATUS OF BELLIGERENT OCCUPATION IN INTERNATIONAL LAW

   1. Modern rules relevant for belligerent occupation

      The earliest government codification of the laws of the war was the famous Lieber Code, which was issued by the U.S. government in 1863. (22) Modern international law on belligerent occupation can be found in the 1907 Hague Convention IV, (23) "[r]especting the Laws and Customs of War on Land" together with its Regulations, and the 1949 Geneva Convention (IV), (24) along with the 1977 Geneva Protocol I. (25) The Hague Peace Conferences in 1899 and 1907 resulted in the conclusion of the Hague Conventions, which serve as "a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants." (26) The Hague Regulations annexed to the Convention also contain provisions regulating belligerent occupation. (27)

      World Wars I and II made it clear that a more comprehensive set of international laws was necessary in order to prevent atrocities aimed at civilians from occurring during hostilities. (28) The Fourth Geneva Convention reflected such an awareness of the international community. (29) Today, the Convention is said to apply universally as part of general international law. (30) Although human rights law was not a main theme of international law at the time the Fourth Geneva Convention was concluded, the Convention is generally known as a "bill of rights" for the people in occupied territories because it focuses on the protection of civilians, rather than on the rights of the states engaged in war. (31)

      Article 3 provides for the minimum guarantee for fundamental human rights, (32) and Articles 27 through 34 specifically provide for the rights of individuals. (33) The rules in the Convention that relate to occupied territories also reflect the need to protect civilians in such territories. (34)

      What underlies the law of belligerent occupation is the idea that belligerent occupation is a temporary condition, during which the belligerent occupant acts only as the de facto administrative authority. (35) This thought is in line with the Rousseau-Portales doctrine, which asserts that war is about sovereigns and armies, not about subjects and civilians. (36) Article 43 of the Hague Convention reiterates the provisional nature of belligerent occupation because it obligates the occupant to respect the laws that are in force in the occupied country. (37)

      Belligerent occupation does not bring about any changes in sovereignty. The ousted sovereign still retains de jure sovereignty. (38) The occupant assumes only de facto control over the occupied territory without acquiring any sovereign rights or entitlement. (39) The Hague Convention envisaged short-term occupations before the conclusion of a peace treaty. (40) The occupying power should respect and maintain the existing laws in force in the occupied territory. (41) According to Article 55, the occupying state is to be "regarded only as administrator and usufructuary of public buildings, real estates, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country." (42)

      Since the Fourth Geneva Convention was not intended to replace the Hague Conventions, the Hague roles continue to apply to belligerent occupation. (43) Article 4 of Protocol I to the Geneva Convention reaffirms that the occupation of a territory does not affect the legal status of the territory in question. (44) Modern international law has established rules on the comprehensive prohibition of the use of force, but the law of belligerent occupation is still valid. Furthermore, it is suggested that Hague and Geneva Conventions declare and constitute customary international law. (45) Irrespective of the legality a particular instance of the use of force, the laws of war and belligerent occupation reflected in such Conventions are binding on all parties to armed conflicts. (46)

   2. Belligerent Occupation: An analogy with overthrowing a legitimate government

      In considering the rights of the people under belligerent occupation, two possibilities for comparison come forward. One is the accession of power by a de facto government after dismantling the previous regime. (47) The other is belligerent occupation and accession of power by a de facto government involving the subversion of the existing regime. (48) Another useful comparison treats belligerent occupation similar to colonial rule. This comparison works because colonial rule entails foreign domination, as it was practiced in Asia and Africa during the early twentieth century, in a manner akin to a belligerent occupying force.

      These comparisons lead us to focus on the issue of self-determination as such. A de facto government implies the notion of "internal" self-determination, (49) since the government in question often assumes that there has been a change of political power, although on an unconstitutional basis. Constitutionality is not an absolute or a dominant standard by which the will of people is to be measured, but such a change of political power begs the question: what do the people desire? Colonial rule is related to "external" self-determination, a principle by which a...