Transformative statebuilding, occupation, and international law: friends or foes?
Introduction In 2003, a ‘Coalition of the Willing’ led by the United States (US) invaded the Republic of Iraq. It quickly became clear that this offensive would not follow the typical legal agenda. The invasion, dubbed ‘Operation Iraqi Freedom’, was driven by a misguided (or, depending on whom one asks, dishonest) belief that Saddam Hussein had significant caches of weapons of mass destruction (WMDs) close at hand, in violation of UN Security Council Resolution 1441, which provided ‘a final opportunity [for Iraq] to comply with its disarmament obligations’ (UNSC 2002). However, the Security Council (UNSC or SC) had refused to provide a legal mandate for the coalition to use force against Iraq under its Chapter VII powers, rendering the military incursion illegal under international law. Indeed, there were indications that the US and its coalition partners had a more ambitious agenda than just the pursuit of WMDs, and would intervene irrespective of the lack of support from the UNSC. Thus, even though no WMDs were uncovered, the Coalition’s efforts continued to gain momentum. The US and its partners swiftly shifted their rhetoric to repurpose the goals of the war, exerting (what would prove to be) long-term territorial authority over the region. This consequently brought its actions within the jurisdiction of the law of occupation, something acknowledged by the American and British governments early on in the mission (McGurk 2004-5: 452). Notably, however, the US and UK were in their rhetoric careful to place their focus on the application of international humanitarian law to the situation, thus avoiding references to themselves as ‘occupying powers’. For instance, they indicated they would ‘strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the people of Iraq’ (UNSC 2003a). However, the Coalition sought a far broader agenda than the mere transitional occupation permitted by international law. The Coalition emphasised in particular the importance of installing and fostering the trappings of Western democratic reform and regime change in the State (Wintour 2007), and this quickly became the fulcrum of its continued efforts for the better part of the next decade. It is hard to tell if the irony of importing such goals undemocratically into the country escaped the Coalition. Nevertheless, even as the Coalition willingly
acceded to the jurisdiction of the law of occupation, it would openly defy its principal premise by pursuing the most ambitious statebuilding exercise in a generation. As both lucid focus and legal basis abandoned the intervention effort, the previously distinct role of international law, particularly international humanitarian law (IHL), had become displaced. As McGurk explains, occupation law ‘explicitly prohibit[s] state-building’ (McGurk 2004-5: 454). Where, then, did the Coalition’s seemingly limitless authority to break down and rebuild Iraq in its westernised image come from? The law of occupation, a branch of IHL relating to post-conflict societies, certainly did not support such actions. Was this then the start of a new era in the laws of war governing occupation? Following on from the changed temperament towards the role of belligerent occupation after Iraq, the purpose of this chapter is to assess the relationship between the law of occupation and the process of statebuilding. There is a clear tension between these two systems. The more conservative directives of the former explicitly prohibit the occurrence of the latter. That is, the law of occupation presupposes that an occupying power will not fundamentally alter the infrastructure of the State but, instead, will act as its trustee, facilitating post-conflict societies to engage in self-determination and reassert governance over their territories on their own terms. In this regard, occupation law permits occupiers the right to make only those changes necessary to prevent further chaos descending upon these communities and to ensure stability. How, then, can one reconcile this traditional reticence with the so-called contemporary practice of occupying powers defying such non-transformational norms – as was the case with postSaddam Hussein Iraq? Has the law of occupation been superseded, are there new paradigms emerging that provide a clearer legal framework for transformative occupation/statebuilding to take place? In other words, is ‘statebuilding’ a justified extension of IHL? In addressing these questions, this chapter will first provide some historical and thematic context by addressing the underlying tension between local ownership and external intervention that characterises the statebuilding debate. It briefly considers the evolution of state sovereignty and territorial integrity. It then examines the normative conflict between the law of occupation and statebuilding, and attempts to pinpoint its legal foundations.