The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (168 page)

⁷
SC Res. 1031 of 15 Dec. 1995 endorsed the Bosnian arrangements.

⁸
GA Res. 60/1 of 24 Oct. 2005, para. 177.

⁹
Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium (also known as the Erdut Agreement), was signed on 12 Nov. 1995. SC Res 1037 of 15 Jan. 1996 established UNTAES.

¹⁰
For a discussion of UNTAES see Derek Boothby, ‘The Political Challenges of Administering Eastern Slavonia’,
Global Governance
10, no. 1 (2004), 37–51.

¹¹
SC Res. 1244 of 10 June 1999 established UNMIK.

¹²
SC Res. 1272 of 25 Oct. 1999 established UNTAET.

¹³
As the UN Secretary-General’s High-level Panel on Threats, Challenges and Change observed: ‘The language of
Chapter VII
is inherently broad enough to allow the Security Council to approve any coercive action at all, including military action, against a state when it deems this “necessary to maintain or restore international peace and security”. ‘
A More Secure World: Our Shared Responsibility
, UN doc. A/59/565 of 2 Dec. 2004, para. 193.

¹⁴
Richard Caplan,
International Governance of War-Torn Territories: Rule and Reconstruction
(Oxford: Oxford University Press, 2005), 5–11.

¹⁵
Chesterman,
You, The People
, 50.

¹⁶
See, for instance, Gerald B. Helman and Steven R. Ratner, ‘Saving Failed States’,
Foreign Policy
no. 89 (Winter 1992–3), 3–20; Peter Lyon, ‘The Rise and Fall and Possible Revival of International Trusteeship’,
Journal of Commonwealth & Comparative Politics
31, no. 1 (1993), 96–110; and William Pfaff, ‘A New Colonialism?’,
Foreign Affairs
74, no. 1 (1995), 2–6.

¹⁷
SC Res. 16 of 10 Jan. 1947. See also Steven R. Ratner,
The New UN Peacekeeping: Building Peace in Lands of Conflict After the Cold War
(Basingstoke: Macmillan, 1995), 98; Chesterman,
You, The People, 50–2.

¹⁸
Ratner,
The New UN Peacekeeping
, 98–9.

¹⁹
Chesterman,
You, The People
, 52–4.

²⁰
GA Res. 185 (II) of 26 Apr. 1948.

²¹
For instance, the ‘Taba Agreement’ negotiated between Ehud Barak and Yassir Arafat in January 2001 envisioned ‘some form of internationalization’ of Jerusalem’s ‘Holy Basin’. See text of ‘Tentative Taba Agreement’, available at
www.fmep.org/resources/peace_plans/clinton_parameters.html

²²
GA Res. 2248 (5th Special Sess.) of 19 May 1967.

²³
On the Congo, see Harold Karan Jacobson, ‘ONUC’s Civilian Operations: State-Preserving and State-Building’,
World Politics
17, no. 1 (1964), 75–107; on West New Guinea, see John Saltford,
The United Nations and the Indonesian Takeover of West Papua, 1962–1969: The Anatomy of Betrayal
(London: Routledge Curzon, 2003); on Cambodia, see Janet E. Heininger,
Peacekeeping in Transition: The United Nations in Cambodia
(New York: Twentieth Century Fund Press, 1994).

²⁴
The Security Council has not authorized the establishment of every UN territorial administration. General Assembly Res. 1752 (XVII) of 21 Sep. 1962 authorized the Secretary-General to establish the UN Temporary Executive Authority (UNTEA) in West New Guinea. The constitutional basis of this action arguably lies in Article 14 of the UN Charter, which allows the General Assembly to ‘recommend measures for the peaceful settlement of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations’. This is very different from what has become the standard dependence on authorization by the Security Council of any military deployment by the Secretary-General. See D. W. Bowett,
United Nations Forces: A Legal Study
(New York: Praeger, 1964), 255–6.

²⁵
For a discussion of the role of the UN in the legitimization of state policies and actions, see Inis L. Claude, ‘Collective Legitimation as a Political Function of the United Nations,
International Organization
20, no. 2 (1966), 367–79.

²⁶
SC Res. 1244 of 10 June 1999.

²⁷
‘The most important is the fact that forces would come under the mandate of the United Nations,’ Vuk Draskovic, the parliamentary leader of the Serbian Renewal Movement (SPO), said in support of the G8 peace plan at the time of the vote in Parliament. See the CNN report, ‘Yugoslavia accepts peace deal on Kosovo’, 3 June 1999, available at
www.beqiraj.com/kosova/de/allied_force/cnn/26.asp

²⁸
See the companion studies by RAND analysts James Dobbins
et al., America’s Role in Nation-Building: From Germany to Iraq
and
The UN’s Role in Nation-Building: From the Congo to Iraq
(Washington, DC: RAND, 2003 and 2004).

²⁹
SC Res. 1483 of 22 May 2003.

³⁰
David M. Malone,
The International Struggle over Iraq: Politics in the UN Security Council 1980–2005
(Oxford: Oxford University Press, 2006), 205.

³¹
UN Department of Peacekeeping Operations, Lessons Learned Unit,
The United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (UNTAES), January 1996—January 1998: Lessons Learned
, July 1998, para. 9.

³²
See ‘Report on the Situation in Kosovo’, UN doc. S/2004/932 of 30 Nov. 2004, esp. para. 12.

³³
In the latter case the reporting requirement extends to the High Representative as stipulated by the General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 10, Art. II(f) and SC Res. 1031 of 15 Dec. 1995. The Secretary-General has been required to report only on the activities of the UN Mission in Bosnia and Herzegovina (UNMIBH).

³⁴
There are partial exceptions. In April 2002, for instance, the Security Council discussed the issue of privatization of ‘socially-owned’ assets in Kosovo but took no action (see UN doc. S/PV.4518 of 24 Apr. 2002). Similarly, at a meeting of the Council in November 2005, the High Representative urged the Council to set up a review of the UN’s International Police Task Force (IPTF) certification scheme to deal with ‘unfair dismissals of Bosnian police officers, but again the Council took no action (see UN doc. S/PV.5306 of 15 Nov. 2005).

³⁵
Neta C. Crawford,
Argument and Change in World Politics: Ethics, Decolonization, and Humanitarian Intervention
(Cambridge: Cambridge University Press, 2002), 276–81.

³⁶
See, for instance, Edward Mortimer, ‘International Administration of War-Torn Societies’,
Global Governance
10, no. 1 (2002), 7–14.

³⁷
Art. 78.

³⁸
Report of the Panel on United Nations Peace Operations, UN doc. A/55/305 and S/2000/809 of 21 Aug. 2000, para. 78.

³⁹
Roy Gregory and Philip Giddings, ‘The Ombudsman Institution: Growth and Development’, in Roy Gregory and Philip Giddings (eds.),
Righting Wrongs: The Ombudsman in Six Continents
(Amsterdam: ISO Press, 2000), 8.

⁴⁰
Constitution of Bosnia and Herzegovina, Article VI.

⁴¹
Constitutional Court of Bosnia and Herzegovina, Decision U 9/00, 3 Nov. 2000.

⁴²
The Peacebuilding Commission was established through concurrent resolutions by the Security Council and the General Assembly: SC Res. 1645 of 20 Dec. 2005, and GA Res. 60/180 of 20 Dec. 2005.

⁴³
Crawford,
Argument and Change in World Politics
, 265–73, 312–14.

⁴⁴
See Michael Pugh, ‘Postwar Political Economy in Bosnia and Herzegovina: The Spoils of Peace’,
Global Governance
8, no. 4 (2002), 467–82.

⁴⁵
Milena Pires, ‘East Timor and the Debate on Quotas’, paper presented at a workshop hosted by the International Institute for Democracy and Electoral Assistance (IDEA), Jakarta, 25 Sep. 2002, available at
www.quotaproject.org/CS/CS_East_Timor.pdf

⁴⁶
Tanja Hohe, ‘The Clash of Paradigms: International Administration and Local Political Legitimacy in East Timor’,
Contemporary Southeast Asia
24, no. 3 (2002), 585, 586.

⁴⁷
Kimberly Zisk Marten,
Enforcing the Peace: Learning from the Imperial Past
(New York: Columbia University Press, 2004).

⁴⁸
See, for instance, statement by Lakhdar Brahimi, Special Adviser to the UN Secretary-General, delivered at the conference on ‘Beyond Cold Peace: Strategies for Economic Reconstruction and Post-Conflict Management’, German Federal Foreign Office, Berlin, 27 Oct. 2004, available at
www.auswaertiges-amt.de/www/de/infoservice/download/pdf/publikationen/beyond-cold-peace.pdf

⁴⁹
See Richard Caplan, ‘From Collapsing States to Neo-trusteeship: The Limits to Solving the Problem of “Precarious Statehood” in the 21st Century’,
Third World Quarterly
28, no. 2 (2007), 231–44.

^*
This chapter is a substantially revised and updated version of the author’s prior publication, ‘Beyond Occupation Law’,
American Journal of International Law
97, no. 4 (2003). Acknowledgement is hereby given to the American Society of International Law for its permission to draw on that article.

¹
‘Occupation law’ is the international law of military occupation of foreign sovereign territory (often accompanied by civilian administration), governed in large part by relevant portions of 1949 Geneva Conv. IV, 1907 Hague Regulations, 1977 Additional Protocol I, and by customary international law, which has evolved in recent decades. See Eyal Benvenisti,
The International Law of Occupation
(Princeton: Princeton University Press, 1993), 7–31, 98–106, 209–16; Adam Roberts, ‘What is a Military Occupation?’,
British Yearbook of International Law
66 (1984). See also David Scheffer, ‘A Legal Minefield for Iraq’s Occupiers’,
Financial Times
, 24 July 2003, 17.

²
SC Res. 1483 of 22 May 2003. This is discussed further below, text at fnn. 45 to 49 V.

³
See generally Roberts, ‘What is Military Occupation?’; Benvenisti,
International Law of Occupation.

⁴
Jus cogens
describes peremptory norms of general international law, and
erga omnes
obligations are obligations owed to all states.

⁵
It would be a mistake to regard the totality of occupation law as reflecting
jus cogens
or
erga omnes
obligations in the context of Security Council-authorized military interventions and occupations. The significance of hierarchic categories of international law, particularly in relation to Article 103 of the UN Charter, is discussed in Jordan J. Paust, Jon M. Van Dyke, and Linda A. Malone,
International Law and Litigation in the US
, 2nd edn. (St. Paul: Thomson/West, 2005), 57–64. It has never been conclusively established which principles of occupation law have the status of
jus cogens
or
erga omnes
, but one would expect them to include the overarching principle of humane treatment and judicial due process that appear in various codified provisions of occupation law. How those principles are implemented, however, in the context of modern transformational occupation is by no means firmly established in international law.

⁶
1907 Hague Regulations; 1949 Geneva Conv. IV; 1977 Additional Protocol I; Benvenisti,
International Law of Occupation;
Francoise Bouchet-Saulnier,
The Practical Guide to Humanitarian Law
(Oxford: Rowman and Littlefield, 202), 260–63; Ardi Imseis, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’,
Harvard International Law Journal
44 (2003), 86–92; Roberts, ‘What is Military Occupation?’.

⁷
For more details on the content of occupation law, and the relevant articles in the 1907 Hague Regulations and 1949 Geneva Conv. IV, see Scheffer, ‘Beyond Occupation Law’, n. 24.

⁸
1949 Geneva Conv. IV; Jean S. Pictet,
The Geneva Conventions of 12 August 1949: Commentaries
(Geneva: International Committee of the Red Cross, 1958); Maxine Marcus, ‘Humanitarian Intervention without Borders: Belligerent Occupation or Colonization?’
Houston Journal of International Law
25 (2002), 109–15; John Embry Parkerson, Jr, ‘United States Compliance with Humanitarian Law: Respecting Civilians During Operation Just Cause’,
Military Law Review
133 (1991); Roberts, ‘What is a Military Occupation?’, 31.

⁹
Benvenisti,
International Law of Occupation
, 182–3, 209–16; Pictet,
Commentaries to Geneva Conventions;
Marcus, Humanitarian Intervention without Borders’, 115–16; Parkerson, US Compliance with Humanitarian Law’, 36–40.

¹⁰
Benvenisti,
International Law of Occupation
, 27, 107–83; see also 1949 Geneva Conv. IV, Art. 6.

¹¹
Benvenisti,
International Law of Occupation
, 26–31, 211–16.

¹²
As it is generally understood,
“deballatio,”
also called “subjugation,” refers to a situation in which a party to a conflict has been totally defeated in war, its national institutions have disintegrated, and none of its allies continue militarily to challenge the enemy on its behalf”: ibid., 92 (for full discussion, see ibid. 91–6). For an evaluation of the legal character of the US occupation of Japan after the Second World War, see Nisuke Ando,
Surrender, Occupation, and Private Property in International Law: An Evaluation of US Practice in Japan
(Oxford: Oxford University Press, 1991); and Roberts, What is Military Occupation?’, 262.