The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (104 page)

Typically, governments have sought to deny their legal status as occupying powers on foreign territory, the Israeli occupation of the West Bank and Gaza being a case in point.
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But in the case of Iraq, the Security Council declared occupation status and the two major occupying powers embraced it, while other countries deploying troops or other personnel to Iraq were left with the ambiguous status of being non-occupying states arguably subject to occupation law.

The position of these non-occupying states’ merits consideration. Other contributing governments must have pondered about what responsibilities and risks under traditional occupation law pertained to their troop commitments in Iraq due to the Security Council’s requirement of full compliance with international law obligations.
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Each coalition partner would be bound under Common Article 1 of the Geneva Conventions to ‘respect and ensure respect for’ the Conventions. Certainly, each government would accept they were bound by those principles of traditional occupation law that are
jus cogens.
But no such government would read Common Article 1 as requiring strict observance of all occupation-related provisions of the 1949 Geneva Convention IV in Iraq where the transformational objectives of the Authority, the Security Council, and even the Governing Council established by the Authority reached far beyond the constraints of such law

The UK probably would have implemented an occupation of Iraq utilizing far greater UN management and tasking of the process if there had been the political will in Washington.
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Largely lost in the divisive debate among Council members about the legitimacy of Operation Iraqi Freedom were the legal and political advantages that could be gained with a Security Council mandate authorizing the transformational tasks of a military deployment and civilian administration of a liberated society in Iraq. If the Security Council had thus acted, it would have unburdened the US and the UK at the outset from many of the constraints of an occupation law ill-suited to the situation in Iraq and it would have mandated a more realistic treatment of Iraqi society by the foreign powers operating on Iraqi soil. But the political opposition among some Council members to Operation Iraqi Freedom, and American insistence on control of post-war Iraq dictated the outcome reflected in Resolution 1483.

If the Security Council had acted under its enforcement authority in a timely manner to replace the occupying powers with an alternative force structure mandated by the Council to perform designated responsibilities, or to task the occupying powers with explicit transformational responsibilities under UN command and control (even if American or British commanders were the designated individuals), then the implementation of occupation law and the liabilities that arise under it could have been reasonably adjusted. Indeed, the Council’s objective could have been to enhance the humanitarian, political, and economic well-being of the people in the occupied nation of Iraq through a fresh mandate that would have removed the unrealistic constraints of occupation law while advancing the more relevant principles and nation-building practices that other fields of international law now compel. But any such mandate would have required a very different scenario for the intervention into Iraq (in other words, one of unquestioned legality and legitimacy) and a very different level of support for the UN by the occupying powers in 2003 and 2004.

On 28 June 2004, the formal Anglo-American occupation of Iraq came to an end, achieving what had been established as an objective on 15 November 2003 in an agreement between the Authority and the Iraqi Governing Council. That agreement had set 30 June 2004 as the date when the Governing Council and the Authority would be dissolved and stipulated that, ‘[t]his will end the responsibilities of the Coalition as an occupying power as specified in the United Nations resolutions.’
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On 8 June 2004, the Security Council passed Resolution 1546, providing the legal authority for the continued presence of the multinational force (MNF) in Iraq once the formal occupation had ended. Under
Chapter VII
authority, the Council acknowledged that ‘by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and … Iraq will reassert its full sovereignty.’
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It welcomed the continued presence of the MNF and, acting under
Chapter VII
authority, made the following determinations:

Both resolution 1546 and the letters annexed to it, in which the US Secretary of State, Colin L. Powell, confirmed the status and mandate of the MNF and its relationship to the Government of Iraq, provided a more coherent and legally sound basis for the presence of the MNF in Iraq than did occupation law and the Security Council’s endorsement of the occupying powers in Resolution 1483. Powell nonetheless hinted in his letter of 5 June 2004 about precisely how the MNF would function under the law, and left the impression that vestiges of the legal framework under which the original occupying powers operated would persist:

The Security Council renewed the mandate of the MNF on 11 November 2005 until 31 December 2006, and left open the possibility of yet more renewals.
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Although the legal status of the MNF in Iraq had been adjusted by the Security Council, the question remained as to whether in its new guise the MNF continued to act as a de facto occupying force and hence whether any occupation law lingered to govern its continued presence in Iraq.
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Iraq was a clear example of a country in which the Anglo-American intervention of 2003 set up a major transformation over a number of years, but in a manner largely inconsistent with occupation law. Regardless of the issue of whether the intervention complied with international law, Iraq would have been an appropriate subject of a Security Council mandate setting out clear responsibilities for deployed forces
and a UN-supervised civilian administrative structure that would help govern Iraq until such time as a permanent government could be established and begin functioning as such. Under a Security Council mandate, strict adherence to the technical requirements of many codified occupation law provisions would be unnecessary. Of course, some of the responsibilities under occupation law (particularly those of a
jus cogens
character) could be explicitly or implicitly adopted by the Security Council within the structure of its mandate, and in such a way as to trigger liability for non-performance.

A model approach by the Security Council to a situation requiring military occupation would be a Council mandate setting forth the responsibilities and mission objectives of military powers operating in the occupied territory, and establishing UN civilian administrative functions. If, as in Iraq, the military occupying powers are establishing a civilian authority (such as the Coalition Provisional Authority), there should be a clear Security Council
delegation
of administrative responsibilities to the civilian authority, so that it acts on behalf of the Security Council and not as an occupying power. The Council could also establish in the text of the authorizing resolution practical parameters setting out the relevant principles of occupation law to be complied with, including provisions from the 1949 Geneva Convention IV and the 1907 Hague Regulations. More generally, the Council could require that interested governments fully comply with applicable international law in the performance of the Council’s mandated mission in the occupied territory. This would leave room for continued compliance with those provisions of occupation law that are
jus cogens
or
erga omnes
or that otherwise remain relevant, but put aside those provisions that are clearly irrelevant or that retard the transformational objectives confirmed by the Security Council.

In a larger sense, occupation law should be returned to the box from which it came. It is an extremely important body of law to regulate belligerent occupation occurring outside Security Council-authorized action, and in situations where wholesale transformation of the occupied territory is not a desirable international objective. But in recent years, the Security Council has established a new dynamic for so-called occupations’ that goes beyond anything that was contemplated during the original drafting of the relevant conventions. If not fully learned, a growing body of lessons from past UN peace operations and civilian administrative missions at least are being recorded for study and reflection.
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The recorded lessons, however, reflect very little evidence of any application of occupation law, until Iraq in 2003.

Finally, there is a critical need in world affairs and international law to develop a more effective and legally acceptable means to respond to civilian populations that are at risk or that desire participation in their country’s political transformation into a more democratic form of government. The end result can become what
might be called a ‘transformational occupation’ by one or more military powers acting under the authority of the Security Council.

International society is becoming increasingly intolerant of atrocity crimes
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committed on a scale that imperils whole societies, and of rulers who deny their own people, typically with repressive measures, the right to fair and representative government. The means by which to address these challenges cannot be found in traditional occupation law. But neither is the solution to reject the UN and the constructive role that the Security Council can play in establishing the basis for a lawful deployment of military forces on foreign territory with the mission to confront an unacceptable criminal threat, advance a collective aspiration for democratic governance, and thus transform a society in dire need of change. The UN General Assembly
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and Security Council
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have endorsed the ‘responsibility to protect’ principle, which in the future may compel greater military engagement by the Security Council in protecting civilian populations at risk of atrocity crimes. Such deployments will raise the issue of occupation law, particularly if rescue, stabilization, and transformational goals compete during the UN-authorized military missions. The UN Peacebuilding Commission,
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which became operative in October 2006, will play a major role in how the UN confronts post-conflict challenges of political, military, humanitarian, rule of law, and economic development character. Much of what the Security Council mandates will become tasks to be undertaken by the Peacebuilding Commission. The personnel deployed by the Peacebuilding Commission and the responsibilities it performs on the ground in post-conflict societies will involve governance issues and may need to take into account (and adapt where appropriate) the principles of the law on military occupations. There thus remains an important need to examine the full scope of occupation law, with the goal of crafting a modern application of these principles with revisions reflecting the realities of the twenty-first century, so that the protection or transformation of societies at risk can be achieved within a realistic and acceptable framework of law.

JANE BOULDEN

A
T
the United Nations Security Council it is sometimes difficult to determine whether agreement on action is a product of a truly collective understanding on the need for action or a reflection of the interests of one or more of the Permanent Members. Terrorism, unlike many, even most, international peace and security issues that surface on the Council’s agenda, has the rare quality of generating an apparent universality in perception of the threat, and a consequently consistently united response. What has this meant in terms of the nature of Security Council action on terrorism? The purpose of this chapter is to address that question.

The chapter proceeds in two sections. The first section provides an outline of the Security Council’s approach to terrorism, tracing the evolution of its response from almost no activity at all during the Cold War to a much more active role thereafter. In addition to the increase in Council activity the paper outlines the shifting nature of the Council role. From a case-specific posture the Council has expanded its approach to include measures that treat terrorism as a general phenomenon. The result has been the development of a framework of action that has brought new levels of innovation and institutionalization in Security Council activity. The second section outlines issues and questions that arise as a consequence of the way in which the Security Council’s response has evolved. This includes a discussion of the implications of the structures established by the Council and the questions left unaddressed in this
process. By definition, the focus on the Security Council means that the chapter does not address the efforts undertaken by a number of other actors in the UN system, most particularly the Secretary-General and the General Assembly. The relationship between the Assembly and the Council is discussed but only to the extent that it pertains to an understanding of the Security Council’s role.