GENERAL OBJECTIONS TO DE JURE APPLICATION OF THE LO

Despite the possibility that a UN force might meet the three criteria defining an occupying power, arguments can be made that the LO cannot apply to these situations. One idea is that the legal authority for the force – a resolution of a UN political organ (typically the Security Council)9 _{– negates the possibility of de jure application of the LO. A second idea is the} incongruity between the LO and the purpose (not merely the vehicle) of UN administration, namely the transformation of the political status of such territory. These seem to be the pos- itions of the UN’s legal staff.10 _{A third claim is that the composition of the force makes the} LO dejure inapplicable. These factors may have played a role in the absence of the LO from the Secretary-General’s 1999 directive on the observance of IHL by UN forces.

1. The purpose of the mission

The purpose of a UN operation clearly differs from that of the typical occupa- tion (although perhaps not of the atypical ones, such as Iraq). However, it seems difficult to conclude that the difference between the purposes of the LO and of UN administration makes the former dejure inapplicable. Rather, under IHL, application depends on the objective relationship between the foreign power and the territorial sovereign vis-à-vis the pertinent territory. One should no more expect the LO to be inapplicable because the UN’s purpose is to transform a territory than to expect the law to be inapplicable because a State’s purpose is to transform the territory it occupies. Assuming the separability of IHL from jus ad bellum, such arguments hold little water. And the Iraq case shows that occu- piers have not denied their duties under the LO simply because their motives might differ from that of more classic occupiers.11

2. The legal authority for UN administration

A more sweeping proposition is that the LO cannot apply because the authority for UN administration emanates from the Security Council. This position has two steps: (a) that the Council legally can displace IHL, including the LO; and (b) that the Council in fact has displaced the LO in UN administrations. The first step seems evident, although some scholars have insisted that the Council cannot override certain IHL norms, and others state that any such derogation must be very explicit.12 _{The only exception to this proposition is the very small} number of rules that may constitute jus cogens (such as the ban on torture), which, frankly, the Council will not seek to displace. Assuming the Council

8 _{At its maximum strength, UNTAES had 5,000 troops and 450 police officers; recently, KFOR has had approximately 15,000}

NATO troops, whereas UNMIK has had approximately 800 international civilian staff; and at its peak UNTAET had approximately 6,400 troops and 2,000 foreign civilians (1,200 of whom were police officers).

9 _{The West Irian operation was authorized by the General Assembly.}

10 _{Daphna Shraga, “Military occupation and UN transitional administrations: The analogy and its limitations,” in M. Kohen}

(ed.), Promoting Justice, Human Rights and Conflict Resolution Through International Law (2007), pp. 479, 495.

11 _{See S. Vité , “L’applicabilité du droit international de l’occupation militaire aux activités des organisations internationales,”}

International Review of the Red Cross, Vol. 86, No. 853, March 2004, pp. 9-20.

12 _{Compare Steven Ratner, “Foreign occupation and international territorial administration: The challenges of convergence,” 16}

EJIL 695 (2005); Robert Kolb, “Occupation in Iraq since 2003 and the powers of the UN Security Council,” International Review of the Red Cross, Vol. 90, No. 869, March 2008, pp. 29-50; Marco Sassoli, “Legislation and maintenance of public order and civil

has this capacity, the question of whether it has in fact displaced the LO in the context of UN administration requires a close look at each resolution. Certainly, the Council has never displaced IHL or the LO explicitly, although neither has it stated that the UN mission must comply with the LO or any other part of IHL. (Rather, it has spoken of respect for human rights law.) In the absence of evidence either way, it is reasonable to assume that the Council has not sought to completely displace the LO where it might legally apply.13

The more realistic question is whether the Council might choose to displace

some of the rules of the LO in the event of a bona fide occupation meeting the three criteria. While the detailed rules of the LO are discussed in Part IV below, it is important at this stage to consider the relationship between the operation’s mandate from the Council and the LO. As an initial matter, just as the Council has the authority to displace all of the LO that is not jus cogens, it has the authority to displace some of the rules. At the same time, it is doubtful that the Council will specifically state that a rule of the LO does not apply. In this event, the task for the UN administration is to determine, based on a close reading of both its mandate and the LO, whether the two sources of law require incon- sistent actions by the UN administration. If they do not, then the administra- tion must comply with both (again, assuming the threshold of LO applicability is met). But if they clearly require inconsistent action – even if the Council does not say “notwithstanding the law of occupation” or something similar – then the UN administration must comply solely with its mandate under Article 103 of the Charter.14 _{To give the most obvious example, if the Council’s mandate} requires a fundamental restructuring of the territory’s economy or election system, conduct which seems barred by the Hague and Geneva rules for occu- piers, then those rules must give way. A different approach might be needed if the Council created a UN administration through a recommendation and not a decision, or if the UN administration were established by the General Assembly.

3. The nature of the force and administration

The Security Council could create an international administration by deploying UN personnel who report to the Secretary-General, by authorizing foreign per- sonnel who remain under each State’s authority, or, as was done with Kosovo, both. One sweeping argument against the applicability of the LO de jure is that it cannot apply to actions by UN forces, as opposed to States under UN man- date. This is part of a larger argument about the applicability of IHL to UN forces, about which countless commentary has appeared. The debate has become largely academic because the Secretary-General ordered all UN forces to comply with certain rules of IHL – although, as noted, not specifically the LO – and because troop contributors do not appear to be arguing that their forces are not bound by IHL simply because they are part of a UN force. This might sug- gest that they would similarly not reject the possibility of de jure application of the LO when their troops contribute to a UN administration of territory. On the other hand, States’ views on whether their troops have duties under the LO when they participate as blue helmets in the UN administration of territory do not appear to be explicitly stated.15

13 _{For an opposing view, see Vité, supra, p. 25.}

14 _{I thus think the tests demanded by Kolb and Sassoli, supra, for displacement of IHL are too strict.}

15 _{With respect to UN-mandated forces, which are not within the scope of the 1999 memorandum, the argument that the LO}

could not apply to them simply because of the UN mandate seems weak. Although Australia did reject the applicability de jure

of the LO to INTERFET in East Timor, the rejection was due to the consent of Indonesia, not the authorizing resolution of the Security Council. Michael J. Kelly, Timothy L.H. McCormack, Paul Muggleton, and Bruce M. Oswald, “Legal aspects of Australia’s involvement in the International Force for East Timor,” International Review of the Red Cross, Vol. 83, No. 841, March 2001, pp. 101-139.

III. DE FACTO APPLICATION OF THE LO TO UN ADMINISTRATION

OF TERRITORIES

Given the linchpin of lack of consent to occupation and the likelihood that the UN will continue to deploy such missions only with the consent of the State affected, the far more likely scenario is use of the LO where it is not required legally, in two senses: (a) the application as a matter of policy by the UN of all or some of the conventional or customary rules of the LO, without a legal obligation to do so; and (b) the use of the LO as inspiration for policy without actual adherence to its rules.

De facto application of the LO to UN administration has both advantages and disadvantages. On the positive side, (1) the LO offers clear minimal protections for the civilian population that will not typically be mentioned specifically in the UN mandate; (2) the LO offers ideas for UN administra- tors on important areas of the administration; (3) the LO may address matters that human rights law does not address, e.g. use of public and private property. On the negative side, (1) the protec- tions offered to the civilian population by the LO are typically lower than those provided by human rights law; (2) the LO may prescribe policies that conflict with the mandate provided by the UN; (3) the LO assumes a position of mistrust and confrontation between the occupier and the population, suggesting an ill fit for an operation deployed under very different circumstances and for very dif- ferent reasons; and (4) a pick-and-choose approach to the LO may undermine its coherence and suggest that certain aspects are more important than others.

A doctrinaire position in favor of or against the de facto application of the LO seems ill-advised. Both positions make good points but the utility of the LO will really depend upon the mandate from the Security Council, the relationship between the UN administrators and the territorial sov- ereign as well as the population, the state of the rule of law in the territory affected, and other factors. Indeed, when we turn to the practice of international territorial administrators, de facto

application has proved an attractive policy.

The first option seems to have been used only by Australia in agreeing to follow the LO in its operations as the lead State in INTERFET (East Timor) and as a participating State in UNITAF (Somalia), both of which were UN-mandated operations.16 _{Of UNTAET, UNMIK and KFOR,} none seems to have agreed to apply the LO as a matter of policy to constrain its operations. The Secretary-General’s 1999 Memorandum does not explicitly require such adherence (although it is not meant to be an exhaustive listing), and the States contributing to these forces have not seen any advantages to voluntary compliance with the LO. The UN and participating States appear to have considered their duties as flowing exclusively from the Security Council and have not voluntarily sought to apply IHL, although it has been noted that IHL provides important rights to the occupier (e.g. concerning use of force) that should be relied upon de facto.17 _{This strategy has the advantage} of enabling the UN to avoid considering potential conflicts between the duties under the LO and the mandate of the Security Council. Such a stance does not mean that the UN force is not, in fact, complying with the LO. It may indeed comply with certain aspects of the LO (e.g. humane treat- ment of detainees), but not because those rules are part of the LO.

The second option, however, has been actively used by UN missions as well as KFOR. The practice of the UN in Kosovo and East Timor, as well as of KFOR in Kosovo, has been to rely on ideas from IHL regarding aspects of their operation but in a way that does not entail a decision to comply with the rules themselves. This appears to be the case, for instance, with KFOR’s detention policies. And the ICRC has made representations to these governing authorities to point out relevant provisions of IHL as useful guideposts for policy without insisting that the rules be followed de jure or even de facto. As Oswald notes, in this sense the law “serves as an appropriate starting point for developing a normative framework,”18 _{although the mandate of the mission from the Security Council is the} most important starting point.

16 _{Shraga, supra,p. 497.}

17 _{See Martin Zwanenburg, “Pieces of the puzzle: Peace operations, occupation and the use of force,” 45 Revue de Droit Militaire et}

de Droit la Guerre, pp. 239-244 (2006).

18 _{Bruce Oswald, “The law on military occupation: Answering the Challenges of Detention during Contemporary Peace}

In these situations, IHL is one of several sources of law, along with not only the Council’s resolu- tion, but international human rights law and domestic law. Indeed, in most situations of inter- national territorial administration, human rights law, rather than international humanitarian law, should be the default rule for the UN to apply (subject to the Council’s resolution). A difficult ques- tion arises when a mission may apply a rule of IHL more restrictive than one in human rights law. I have suggested that this should take place when the mission faces serious security threats,19 _but some might argue that IHL should never displace human rights law until it applies de jure.

IV. THE LO RULES MOST IMPLICATED IN UN ADMINISTRATIONS

Whether the UN complies with the LO de jure or de facto, or simply uses it as a source of in- spiration, it is important to consider what rules are most pertinent to its operations. Some of the rules of the LO seem irrelevant to UN administration, as the UN lacks the ability to violate, or interest in violating, them, e.g. the ban on settlement of population (Article 49 of the Fourth Geneva Convention), the ban on forced conscription (Article 51 of the Fourth Geneva Convention), protection of hospitals and medical personnel (Articles 18-22 of the Fourth Geneva Convention), the requirement to allow humanitarian consignments into the territory (Articles 23 and 59 of the Fourth Geneva Convention), or collective punishment (Hague Regulation 50). But others are as relevant to State occupation as to UN administration – whether or not the UN must comply, chooses to comply, or uses them as an inspiration for policy.