Guest Post: The Law of Occupation in the New DOD Law of War Manual

[Gregory H. Fox is Professor of Law and Director of the Program for International Legal Studies, Wayne State University Law School.]

In the aftermath of the Iraq occupation, a vigorous debate began over the legitimacy of the Coalition Provisional Authority’s (CPA) vast reform of Iraqi legal, political and economic institutions (see Gregory H. Fox, The Occupation of Iraq, 36 Geo. J. Int’l L. 195 (2005)). Adam Roberts coined the term “transformative occupation” to describe occupations whose very purpose was to alter local institutions. In Roberts’ (and others’) telling, transformative occupations differed from the rapacious and brutal occupations of the WWII era, creating not repressive puppet states but liberal democracies that aligned the occupied state with a host of new international norms. Yet transformative occupations seemed directly at odds with the “conservationist principle,” a term I coined (Fox, Occupation of Iraq, at 199) to describe the traditionally limited nature of an occupier’s legislative authority. Grounded in the Hague Regulations and Fourth Geneva Convention, the conservationist principle held that an occupier did not acquire the central attribute of the ousted regime’s sovereign prerogatives, namely the unlimited ability to alter local laws and institutions.

Proponents of transformative occupations argued that the Iraq model made important progress in bringing occupation law into the 21^st century. It took account of the emergence of human rights, democratic politics, anti-corruption and even market-based economics as legitimate concerns of international law. Occupiers giving effect to liberal democratic rights, it was argued, should not be seen as violators of the sovereignty of the occupied state, “but, to the contrary, as facilitator of the exercise of rights recognized by international law.” (Eyal Benvenisti, The International Law of Occupation, 2d ed. 2013, at 349-50).

Opponents (including me) argued that apart from Iraq being the only recent case of a “liberally” transformative occupation, granting occupiers broad legislative powers would represent an unfortunate turn toward unilateralism in the reconstruction of post-conflict states. The UN Security Council has authorized multiple post-conflict reform missions under Chapter VII of the Charter.   Occupiers would have little incentive to seek Council approval for their actions if they could accomplish the same objectives unilaterally. Relatedly, the many fiascos attending the Iraq occupation demonstrated the wisdom of a collective approach to legal and political reform in post-conflict states.

The publication of the new DOD Law of War Manual on June 12 is an important milestone in the debate over transformative occupation. The last iteration of the Manual (FM 27-10, “The Law of Land Warfare”) dated to 1956, so an update was long overdue. Would the Pentagon claim that occupation law now permits Iraq-type reforms? A path to such a claim had already been laid by the United Kingdom, which updated its 1958 manual in 2004. The UK manual provided that an occupier may “repeal or amend laws that are contrary to international law and is also entitled to make changes mandated or encouraged by the UN Security Council.” (§11.11). Specifically, laws may be repealed if they “violate human rights treaties.” (Id. n.15). Would the United States do the same? And if so, would it claim that the traditional view of an occupier’s legislative powers should give way to a liberal democratic imperative that holds, in the words of a CPA legal advisor, that “tyrannical and repressive laws can no longer survive merely for the sake of continuity” and that international law “cannot stand opposed to consensual self-government and the rule of law”? (Brett H. McGurk, Revisiting the Law of Nation-Building: Iraq in Transition, 45 Va. J. Int’l L. 451, 464 (2004-2005)).

Remarkably, the US Manual does not take this path. Its view of occupiers’ legislative authority is quite limited. The powers afforded an occupier derive not from a general reformist imperative or even specific areas of policy such as human rights or democratic governance, but rather “from its war powers and from its duty to ensure public order and safety in occupied territory.” (§11.7).   Repeating almost verbatim language from Article 43 of the Hague Regulations, Section 11.5.2 sets out the traditionally restrictive view of the conservationist principle:

The duty of the Occupying Power to respect, unless absolutely prevented, the laws in force in the country prohibits it from arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied territory.

The permissible reasons for changing local law (set out in Section 11.9.2) are also virtually identical to the 1956 version (§369):

The Occupying Power may subject the population of the occupied territory to provisions:

(1) that are essential to enable the Occupying Power to fulfill its obligations under the GC; (2) to maintain the orderly government of the territory; and (3) to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.

The Manual then lists examples of laws that may be suspended or repealed, and only one arguably serves the purposes of an Iraq-style transformation: provisions “relating to the administration of the law, such as repealing laws establishing racial discrimination or promulgating laws requiring the impartial application of the law by local officials.” (§11.9.2.2). That’s it. No endorsement of the top-to-bottom changes that the CPA made to Iraqi security and military institutions, human rights protections, criminal law and procedure, banking law, tax law, regulation of foreign trade, regulation of private economic transactions, securities law and the status of state-owned enterprises (see Kaiyan Homi Kaikobad, Problems of Belligerent Occupation: The Scope of Powers Exercised by the Coalition Provisional Authority in Iraq, 54 Int’l & Comp. L.Q. 253 (2005); Fox, The Occupation of Iraq, at 208-225). The CPA declared (.pdf) in 2004 that its goal was to create a “stable, democratic Iraq that is underpinned by new and protected freedoms and a growing market economic.” The Manual does not endorse anything close to those goals. To the contrary, it seems to disclaim wholesale transformation as a legitimate goal of occupation law, specifically noting “limitations on the ability of the Occupying Power to alter institutions of government permanently or change the constitution of a country.” (Section 11.4.2).

The Manual is not entirely free from ambiguity on the scope of an occupier’s legislative power. As quoted above, section 11.9.2. prohibits an occupier from “arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied territory.” (emphasis added). This language would seem to allow for non-arbitrary suspensions. As authority for this test, the Manual cites commentary to Article 64 of the Fourth Geneva Convention, which builds on Article 43 of the Hague Regulations by providing that penal laws of the occupied state will continue in force unless they threaten the security of the occupier. But neither Geneva Article 64 nor Hague Article 43 refers to “arbitrary” changes in law; nor is the term used in Pictet’s commentary on Article 64, quoted extensively in the Manual’s footnote to this provision. So the idea of permitting non-arbitrary changes is an invention of the DOD. What scope of action does this test permit? Presumably changes would become “arbitrary” if they did not serve one of the three purposes listed in Section 11.9.2. or amounted to the kind of sweeping constitutional change precluded by Section 11.4.2.

Why did the DOD hew so closely to the traditional approach of 1956? The new Manual suggests one reason by making clear that while occupiers acting unilaterally will have limited legislative powers, those powers can be substantially enhanced by the Security Council:

Acting under the Charter of the United Nations, the U.N. Security Council may also establish authorities or limitations that might interact with those otherwise applicable under occupation law. For example, a U.N. Security Council authorization may provide additional authority for an Occupying Power to govern occupied territory. (§11.1.2.5).

The sole example cited of such authorization is Resolution 1483 on Iraq. Many scholars (though not me) argue that the Council gave the CPA a broad legislative mandate in Resolution 1483.   The debate over 1483 arose because the resolution was a muddled set of mixed signals, resulting, no doubt, from Council members’ lingering anger at the Bush Administration for invading Iraq in the first place. But DOD might well have reasoned that if future occupations do follow a Council authorization for intervention, the occupier would have little trouble having the same Council membership approve a transformative occupation. In many situations, therefore, the Council may simply legislatively override the conservationist principle.

Unfortunately, the Manual makes this point with less than model clarity. Many provisions legitimating acts under occupation law (e.g. §11.10.1.2, §11,8.1 and §§11.11.1 – 11.11.1.4) are footnoted to CPA decrees. If the CPA was acting under Chapter VII then its actions provide no clear support for propositions of occupation law, since, as the Manual itself states, the Council may authorizes legislative authority that would otherwise be prohibited by that law (i.e. the conservationist principle).

Another possible reason for the restrictive approach lies in one of the most common arguments for transformative occupation: that occupiers must give effect to their own human rights treaty obligations in occupied territory. This is the most obvious explanation for DOD’s unwillingness to follow the UK’s more expansive view of an occupier’s legislative powers. The UK is bound by the extra-territoriality jurisprudence of the European Court of Human Rights, which in the Al-Skeini case specifically involved acts of British occupiers in Iraq. DOD was almost certainly eager to distance the US from this position and the Manual reiterates the much-criticized US claim that its human rights treaty obligations do not extend outside US territory (§11.1.2.6).

In my view the Manual does exactly the right thing in holding to a hard line against the transformative occupation. The Security Council has authorized numerous reforms in post-conflict states, and the argument for circumventing Council approval to accomplish the same goals through unilateral action should face a heavy burden of persuasion. I find most of the arguments unpersuasive. If Iraq is to be the test case for this new theory then it stands for exactly the opposite proposition: the Council correctly withheld its approval for the invasion and exerted too little control in Resolution 1483, allowing the CPA to chart a course that most agree was ineffective at best and a disaster at worst. There is thus a deep irony in proponents of transformative occupation arguing that it is necessary to bring occupation law into accord with contemporary international law, for it would incentivize occupiers to avoid multilateral control over post-conflict reconstruction, arguably one of the most remarkable legal innovations of the post-Cold War era.