4.2.6 Occupation achieved through unlawful use of force may be resisted to win self determination
4.3 Normative Conflict 3: Sovereign rights of the ousted government (to repel foreign occupation) verses sovereign rights of the people (to pursue democratic reform)
4.4 Normative Conflict 4: The right of national self defence verses the right of an occupier to put down resistance
4.5 Normative Conflict 5: Powers of the Security Council to recognize Coalition occupation verses jus cogens rights of self defence and self determination.
5. The powers of the Security Council acting under Chapter VII
The US-led invasion and occupation of Iraq has inspired an avalanche of legal scholarship. This is testimony to the plethora of legal issues raised by the war. It also reflects the level of concern about these matters among international lawyers. Much has been written on the legality of the war,3 the rights and obligations of the Coalition as occupying powers (and their failure to meet them),4 the juridical impact of Security Council resolutions passed during the occupation,5 the applicability of human rights and humanitarian law during the occupation6, the legality of institutional reform carried out by the Coalition Provisional Authority (CPA),7 the legality of the tribunal established to prosecute Saddam Hussein and other senior Ba’ath officials,8 liability for violations of the law of occupation,9 the prisoner abuse scandal,10 the escalation of terrorist violence in Iraq,11 and the juridical implications of the transfer of power from the CPA to an Iraqi government.12 Other issues have received less attention from jurists. They include: jus ad bellum foundations for Iraqi use of force against Coalition troops (including Iraq’s sovereign right of self defence and the right to struggle for self determination against alien occupation), the belligerent status of Iraqi partisan forces that emerged during the occupation,13 whether any such groups qualified as ‘organised resistance movements’ under Geneva Convention III, the juridical character of terrorist organisations that operated with the apparent endorsement of Ba’ath resistance forces, the juridical significance of Saddam Hussein’s refusal to surrender to Coalition forces, the relative influence of the Islamic law of war and the international law of armed conflict on the conduct of resistance groups, and normative conflicts that arose during an occupation achieved through the unlawful use of force.14
This article focuses on the final issue. It explores a number of antimonies that arose during the occupation of Iraq. The genesis of these antimonies was three fold: the absence of a legal foundation for the use of force against Iraq15, the unwillingness of pro-Ba’ath elements to surrender to Coalition forces even after the collapse of their government, and the hostility of Iraqis from across the religious and ideological spectrum to foreign occupation.16 In such an environment, conflict - both physical and normative – was inevitable. A number of antimonies are explored in this paper. They include: (1) Competing visions of self determination and how it is to be realized by an occupied people, (2) Conflicting approaches to the exercise of various sovereign rights (use of force in self defence verses cooperation with occupation forces in the exercise of self determination), (3) Normative conflict between the sovereign rights of the ousted government and sovereign rights of the people, (4) Normative conflict between the powers of the Security Council and peremptory norms of international law (such as self defence), and (5) Normative conflict generated by overlapping systems of law, (e.g. the right of an occupier to put down resistance pursuant to the law of occupation verses the right of occupied to use force expel the occupier (e.g. the sovereign right of self defence and the right to win self determination.)
Before addressing these antimonies, the nature of normative conflict in international law is assessed. This is followed by an assessment of normative conflict during military occupation. In assessing the various antimonies that arose in Iraq, approaches to their resolution are discussed. This is undertaken through inter alia, an analysis of the role and authority of the Security Council. The juridical character of Iraqi resistance to Coalition occupation is then assessed by reference to jus ad bellum (i.e. lawful grounds for waging war), jus cogens (non derogable norms of international law), and decisions of the Security Council. Two factors which played a decisive role in bringing normative conflict in Iraq to an end are then assessed: the transfer of power to an Iraqi government, and the exercise of the jus cogens right to self determination.
1.1 To Dream the Impossible Dream – Conceptual and Practical challenges to ‘Transformative Occupation’ For those who supported an ongoing role for Coalition forces after the ouster of the Ba’ath regime and the end of ‘major hostilities’17, occupation was a necessary stage in the transition from brutal dictatorship to ‘representative government’18. From the Coalition perspective, those who had done the heavy lifting in ousting the Ba’ath regime had earned the role of principle architects of the ‘post war’ makeover of Iraqi society. Parallels between de-nazification and de-ba’athification emphasized the US role as ‘liberator’ and ‘nation builder.’ A superficial reading of post-invasion resolutions indicates a measure of UN support for the occupier’s vision. However a close reading of speeches by members of the Council reveals that the Coalition had secured no mandate for radical transformation of Iraqi laws and institutions. Arguments that Security Council recognition of the fact of occupation thereby legitimized it, and provided a mandate for ‘transformative occupation’, are unpersuasive.19 A number of Security Council members made clear that their votes in favour of resolutions on Iraq did not legitimize Coalition use of force or the occupation itself, but were instead motivated by the need to protect the sovereign rights of the Iraqi people.20 After all, military occupation without the consent of the host State has long been recognized is an act of aggression.21 Nonetheless, the Council did recognize the fact of occupation without demanding the withdrawal of Coalition forces from Iraq. For a time this gave a measure of credence to the occupier’s vision. As liberator of the oppressed, the Coalition promised to restore law and order, repair damaged infrastructure, provide basic necessities and help rebuild Iraqi society whilst respecting Iraqi sovereign rights. Realization of this dream proved a formidable task. A lack of planning for occupation exposed the naivety of the occupier’s vision.22 Social, political, legal and cultural obstacles proved formidable. The failure of the occupiers to fulfill their promises together with the regular rebuff of Iraqi calls for elections heightened hostility towards the occupation. Whereas liberation from Ba’ath rule had been met with jubilation, the admission by Coalition leaders that they intended to stay on for an undefined period as occupying powers, generated open hostility. Attempts by the occupiers to impose their political and economic vision for Iraq by ‘occupation fiat’ were resisted. Resistance came in a number of forms: mass protests, attacks on Coalition convoys, and an increasing unwillingness of Iraqi leaders to cooperate with the Coalition Provisional Authority.
‘Transformative occupation’23 was by its very nature an unlikely strategy for Iraq. For many Iraqis, any form of foreign occupation of their nation was unacceptable on religious and nationalistic grounds. The ‘success’ of a ‘transformative occupation’ is dependent upon cooperation between the occupier and the occupied - not only cooperation, but a common vision. Occupation was achieved through the unlawful use of armed force. Iraq was subject to the occupier’s law. Orders and regulations issued by an occupation authority whose interests and priorities were not necessarily those of the Iraqi people. With power centralized in one body - the CPA - the checks and balances needed to bestow a semblance of legitimacy were absent. By failing to meet basic obligations in under the law of occupation, ruling Iraq by occupation fiat, and rejecting calls for elections, the Coalition built a ‘powder keg.’ The powder keg exploded in mid 2003 as a sustained campaign of armed resistance that spread across Iraq. The Coalition’s dream of the economic and political transformation of Iraq - in a manner of its choosing – was irreparably damaged. A long established truism of military occupation had been verified:
‘Occupiers may long to be loved, but it is not, after all, a reasonable expectation.’24 As the US and UK failed to meet basic obligations as occupying powers, Iraqi support for constantly shifting Coalition policy objectives floundered. Inevitably, both physical and normative conflict intensified.
2. Normative Conflict in international law Normative conflict has long exercised the minds of international jurists.25 One mode of resolving such antimony is by reference to the hierarchy of norms of international law. Article 38 of the Statute of the International Court of Justice (1945) (hereinafter ‘ICJ Statute) lists the following sources of international law: treaty, custom, general principle of international law,26 judicial decisions and the writings of eminent jurists. Judicial decisions and the writings of eminent juristsare regarded as ‘subsidiary means for determination of rules of international law.’27 Treaty and customary law are the preeminent sources among those listed in Article 38. Since the formation of the ICJ, jus cogens have been recognized as having ‘super norm’ status.28 In 1969 the International Law Commission drafted the Vienna Convention on the Law of Treaties (hereinafter ‘VCLT’). This treaty recognizes that certain norms are peremptory or non-derogable in character. Such norms are known as jus cogens (or ‘compelling law’). Jus cogens include the prohibition on the use of force, the right of self defence, the right of self determination, the prohibition on torture. These norms now sit on the top of the hierarchy of norms of international law. The emergence of jus cogens raises questions about whether peremptory norms trump conflicting norms arising from the operation of Charter. The UN Charter provides machinery for resolution of normative conflict. Article 103 states that in the event of a conflict between the Charter and treaty law the former prevails. In doing so it makes clear that the general rules of conflicts between treaties do not apply to decision of the Security Council.29 In otherwords binding resolutions of the Security Council trump conflicting treaty as well as customary norms.30 However normative conflicts between Charter principles and jus cogens are not addressed. The authoritative view is that Article 103 must be read subject to the doctrine of jus cogens.31Ad hoc Judge Lauterpacht adopted this view in his separate opinion in the Genocide Case.32 This approach reflects the non-derogable character of jus cogens, something that the ICJ affirmed when it acknowledged that some humanitarian rules are ‘intransgressible.’33 If such rules cannot be departed from in any circumstances, then by implication, the Security Council is precluded from endorsing ongoing violations of jus cogens.34 It could not for example endorse military occupation of a State achieved through aggression. If it did so, such a decision would be invalid for infringing jus cogens sovereign rights of the Victim State. Such rights include self defence, the right to re-claim territory and the right of self determination.35 A number of scholars support the contention that decisions of the Council which are inconsistent with jus cogens are ultra vires the powers of the Council and therefore invalid.36 This raises the possibility that a number of Council resolutions on Iraq passed after the Coalition invasion were invalid. Resolution 1483 deserved particular attention. While recognizing the fact of Coalition occupation, it was silent on the legality of the invasion. It also ignored the fact that the Coalition use of force and subsequent military occupation constituted acts of aggression.37 In side stepping Coalition violations of custom, treaty law and jus cogens, the Council may be criticized for offered implicit support for Coalition policy in Iraq.38 Moreover, the Council’s failure to take measures to end aggression against Iraq and its decision to support the aggressor arguably invalidated resolution 1483.
However the most appropriate judicial body to determine this issue has been reluctant to review decisions of the Council. The ICJ prefers to leave review of Council decisions to the Council itself.39 As the occupying powers in Iraq wield the power of veto in the Security Council, meaningful review of resolution 1483 was not a viable option.
Normative conflict between the powers of the Council and the jus cogens rights of a Victim State is but one of many antimonies thrown up by the war in Iraq. A number of these antimonies are examined in detail below. Before doing so, the nature of normative conflict in the occupation context will be examined.
3. Normative Conflict during Military Occupation Military occupation can be achieved in a number of ways. For the purpose of this paper, discussion will focus on two forms of occupation: (1) occupation achieved through the unlawful use of force, and (2) occupation that is the product of the lawful use of force.
Examples of occupation achieved through the unlawful use of force include Indonesian occupation of East Timor in 1979, Soviet occupation of Afghanistan in 1979 following its domination of the Afghan government, and Iraq’s occupation of Kuwait in 1991. All three occupations were condemned by the Security Council which called for the immediate and unconditional withdrawal of foreign troops. The first involved the invasion and occupation of a de-colonized territory that was yet to achieve Statehood. The second involved foreign domination followed by a full scale military occupation. The third involve the invasion and occupation of a sovereign State in a bid to realize a historical claim to its territory.
Examples of occupation achieved through the lawful use of force include: the occupation of Somalia by a UN authorized force in 1991, the occupation of Kuwait in 1991 by an US-led Coalition acting under a UN mandate to use of ‘all necessary means’ to expel Iraqi from Kuwait, and UN occupation and administration of East Timor from 1999 until East Timorese statehood and self governance in May 2002. In each case, a period of foreign occupation was necessary and had been either implicitly or explicitly authorized by the Security Council.
The recent invasion and occupation of Iraq - at least in the initial stages - constituted unlawful use of force, having occurred outside the Charter framework. It was neither authorized by the Security Council nor justified under the right of self defence.40 In the absence of jus ad bellum grounds for the attack on Iraq, Coalition military occupation was a continuation of the initial aggression. Coalition use of force against Iraq triggered jus ad bellum grounds for armed resistance to both the invasion and occupation. Security Council recognition of the occupation some 2 months after the commencement of the Coalition’s armed attack on Iraq raised more questions than it answered. On the one hand, the Council was silent on the issue of jus ad bellum. On the other, the UN pledged to work with the occupying army in the achievement of common objectives. Consequently, the Council’s response to the Coalition’s war of aggression generated normative conflict. Which norm prevailed? The jus cogens right of self defence against ongoing foreign aggression? Or a Council resolution that offered tacit support for an aggressor? Did 1483 implicitly override the right of self defence? In order to answer this question, the powers of the Council must be weighed against the nature and scope of norms of jus cogens. On the one hand the Security Council acting under Chapter VII has the power to authorize forcible measures to maintain or restore international peace and security.41 On the other hand, a number of eminent scholars assert that resolutions that are ultra vires the powers of the Security Council are invalid.42 Moreover the doctrine of jus cogens suggests that no State or international organization (including the UN) may derogate from peremptory norms of international law. The sovereign right of self defence is such a norm. This begs the question: If the Council recognizes military occupation achieved through the unlawful force, where does the leave the sovereign right of self defence? This situation arose in Iraq when the Council recognized Coalition occupation and called on States not to offer safe haven to the leadership of the Ba’ath regime. Whether 1483 can be reconciled with Iraq’s right of self defence under Article 51 of the Charter is explored below. Another normative conflict that may arise during military occupation achieved through the unlawful use of force involves competing visions among the occupied population as to how their right of self determination should be exercised. Should an armed struggle be waged to expel the occupiers? Or should occupation be permitted until such time as democratic elections have been held and a sovereign government is elected and installed? If the latter approach is embraced by the majority, how can this be reconciled with the right of the ousted regime to use force in self defence to expel the occupier and eliminate the source of aggression? These normative conflicts are also explored below.
4. Antimony in Occupied Iraq
As has been noted above, unlawful use of force against a sovereign State triggers jus ad bellum grounds for resistance. Such norms include self determination and self defence. Both are jus cogens. Normative conflict arises where those loyal to an ousted regime resist the occupation (self defence), while the balance of the population backs an occupier sponsored democratic transition (self determination). Which jus cogens norm prevails? The emergence of ‘democratic entitlement’ as a norm of international law may hold the answer. Growing support for a right to democratic governance reflects the increasing importance of international human rights law. From a self determination perspective, the local response to a transformational occupation that is most strongly reflects to the views of the majority of the occupied population should prevail.43 However such a conflict need not arise, even where there is both armed resistance and mass demonstrations for democratic transition. If opinion polls suggested that most inhabitants support forcible expulsion of occupation forces and democracy44 then in theory, both objectives could be pursued in the push for self determination. Indeed elections, and by implication self determination, may only be secured after occupying powers bowed to demands from inter alia armed resistance groups for elections. This may have been the chain of events in Iraq. After months of mass demonstrations by Iraqis calling for elections, and growing armed resistance to the occupation, the occupiers conceded to demands for elections in the hope that this may stem the resistance.
Self Defence as ‘Higher Normative Law’
Self defence has been accepted by jurists as a ‘higher norm’ of international law.45 It is one of a ‘core bundle of human values’ which enjoy jus cogens character.46 The special status of self defence has long been recognized. Grotius asserted that self defence is so tied up to the instinct of self preservation that it must transcend simple customary international law.47 19th century commentators reiterated this position. Wheaton characterizing self defence as ‘an absolute right, laying the foundations for all of the other rights of states.’48 Over a century later Kelsen noted that ‘the right of self defense is conferred upon the states by a rule of general international law which has the character of Jus Cogens.’49 The prohibition on aggression has the same status.50 These norms are ‘so fundamental to the very functioning of the state system that their very existence is presupposed and cannot be overridden by positive law.’51
In 1945 the US asserted that the inherent right of self defense continued until the Council took adequate, necessary or effective action.52 Halberstam posits that ‘it is for the State that has been attacked to decide whether the Council has taken measures “necessary” to maintain international peace and security.’ 53 Writing shortly after the UN Charter was drafted, Kelsen noted that:
there is, the Charter says, an ‘inherent right of self defense’ and certainly nobody intended by joining in the United Nations Charter to abandon that inherent right of self defense and put himself in a position where he had to be exposed to complete destruction.54 In 1945 the US recognized that in view of the power of veto the Security Council could not always be relied upon to provide effective protection.55 These concerns were realized in 2003 when the Council: (a) recognized a military occupation achieved through aggression, and (b) failed to offer effective protection to the Victim State.
The special character of the right of self defence is of particular importance during enemy occupation. Like all sovereign rights, self defence ultimately vests in the people of the State. Where a State is occupied by a foreign aggressor, the government has been ousted and the national army defeated, the sovereign right of self defence may be invoked by the occupied population through resistance movements. The Council need not have declared the invasion to be an act of aggression before the Victim State is entitled to response in self defence.56 Indeed the Council has never explicitly declared a State to be the initial aggressor in a conflict57 - not even in 1991 when Iraq launched a flagrant war of aggression against Kuwait.58 Such inaction may be the product of lack of political will, the exercise of a power of veto, or grid lock among the permanent members of the Council. Nonetheless, the Victim State may be identified by reference to principles contained in Article 2 of the Definition of Aggression. It states that ‘the first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression.’59 Article 51 of the Charter guarantees the right of the Victim State to exercise its inherent right of self defence in response to armed aggression. As the UN Charter and customary law currently stand, this right is exercisable irrespective of the political situation within the Victim State.60 A war of aggression arises where a State invades and occupies another in violation of the prohibition on the use of force. Such a war constitutes a crime against peace.61 The inclusion of ‘military occupation’ within the Definition of Aggression reinforces the notion that such conduct is a continuation of the crime of aggression begun when the initial armed attack was launched in violation of Article 2(4) of the Charter. Article 3 of the Definition of Aggression lists invasion62 and/or military occupation as acts of aggression.63 Dinstein describes these forms of conduct as ‘flagrant instances of aggression.’64 Acts of aggression of this magnitude clearly satisfy the threshold of an ‘armed attack’ for the purposes of Article 51 of the Charter.65 Where such an attack is launched and the definition of aggression is fulfilled, ‘all of the traditional jus ad bellum criteria have been met, or … cease to be relevant.’66 The Victim State is therefore entitled to use force in self defence, and armed resistance to both the invasion and occupation is justified.
It follows that the use of force by an occupier to maintain or restore security in occupied territory does not override the right of organized resistance movements to resist occupation achieved through aggression. Where the occupier is the initial aggressor, armed resistance is permissible under jus ad bellum. Where a resistance struggle iswaged by isolated partisan units and guerilla cells that fail to comply with the norms of lawful belligerency, their conduct, although punishable under jus in bello, is not prohibited under international law.
Nonetheless, armed resistance to such an occupation triggers normative conflict. On one hand, the occupier is entitled (and indeed duty bound) under the law of occupation to maintain law and order in occupied territory. Fulfillment of this duty may entail the use of force to crush armed resistance to the occupation. On the other hand, the jus ad bellum rights of the victim of aggression - including jus ad bellum rights justifying resistance to occupation - cannot be ignored. This antimony is explored further below.67 The right of self defence may be exercised to repel all armed interventions waged in violation of the UN Charter. No exception is made for military interventions undertaken outside the Charter framework for humanitarian purposes. Therefore illegal but perhaps legitimate humanitarian interventions may be repelled by the occupied State. This reflects the current status of international law. Neither custom nor treaty law recognizes a right of humanitarian intervention.68 The jus cogens right of self defence therefore prevails over moral and ethical contentions that a humanitarian intervention should not be resisted. The situation is to be contrasted to circumstances where the Council prospectively authorizes a humanitarian intervention in the exercise of its powers under Chapter VII. Armed resistance to such a deployment will constitute unlawful use of force.
Unpopular regimes, Sovereignty & Self Defence Recent events in Iraq raise awkward questions about the legitimacy of resistance to ‘transformative occupation.’69 Is resistance by forces loyal to an ousted dictator legitimate where the majority of the occupied population despised the regime? In addressing this question, what weight, if any may be given to the following factors: the brutality of the former regime, the benevolence of the occupier, and the failure of the Security Council to condemn the occupation? If the occupation is recognized by the Security Council and a path towards democratic transformation established, is resistance still permissible?70 If the majority of the population prefers democratic governance and rejects a reversion to dictatorship, is the right of self defence against foreign aggressor negated? Under current international law all governments – whether democratic or tyrannical – may exercise the inherent right of self defence in the face of an unlawful armed attack. However the rights and interests of the occupied population also require consideration, particularly where they differ from those of an oppressive regime. Over the past few decades the human rights movement has made significant advances in a number of fields, including collective rights. It is now generally recognized that sovereign rights vest in the people71 of a State. Rights exercisable by peoples include the collective right of self determination, and, in this writer’s view, the sovereign right of self defence.72 If the people of an occupied State support armed resistance to enemy occupation, then where the occupier was the initial aggressor, such resistance is clearly justified under the right of self defence. This is because the sovereign right of self defence vests in the people of the occupied State. Consequently, where the national government has been toppled by a foreign aggression, a ‘bottom up’ exercise of sovereign rights may occur, this is, State rights (including the right of self defence) may be exercised directly by the people. This may produce one of two outcomes depending on the wishes of the people: support for the occupation or resistance to it. Consider the following scenario:
The national government has been toppled but some areas of the State remain unoccupied. In the unoccupied regions, the local population rises up en masse upon the approach of the enemy forces. As the government has already been ousted, the sovereign right of self defence is being exercised in unoccupied areas by the people.73 Where by contrast the majority of the occupied population favour cooperation with the occupier and fulfillment of its agenda, the right of self defence has been negated by popular will.
The notion that the sovereign right of self defence vests in the citizenry of an occupied State has merit for other reasons. Consider oppressive occupations: where the human rights of the local population are being systematically violated, collective armed resistance in self defence may be a matter of necessity. In such circumstances the occupied population may wage a struggle against the aggressor in the exercise of its right of self defence, as a matter of self preservation.74 The exercise of jus ad bellum rights by minorities that oppose ‘Transformative Occupation’
The situation is more complicated where a well armed minority favour resistance to occupation, while the majority supports the occupier’s agenda for transformation of the domestic order.75 At first sight this appears to give rise to antimony of jus cogens norms. On the one hand force may be used by former regime loyalists in the exercise of the sovereign right of self defence (to expel the occupying army). On the other hand, the majority may exercise their collective right of self determination by supporting the occupier’s agenda for democratic transition. However, in this writer’s view, the conflict is resolvable by reference to the public opinion. If a majority of the occupied population decides en masse to cooperate with the occupier and peacefully engage in the occupier’s process of democratic transformative, ongoing armed resistance will be de-legitimized. The people will have chosen, by majority, to exercise their right of self determination through democratic means rather than armed resistance. As the right of self determination is exercisable by the people of a State as a collective unit, and not by minority groups pursuing a marginal agenda, the wishes of the majority will prevail. Similar logic could be applied to the right of self defence. The desire of the majority for an end to conflict would negate assertions by an armed minority that they are entitled to use force in the exercise of the sovereign right of self defence. Majority sentiment could be established by independent opinion polling.
On the other hand, where the majority of the local population rejects an occupier imposed process of political transformation, armed resistance is justified to end foreign domination. Such a struggle is justified under jus ad bellum as one waged in the exercise of both the sovereign rights of self defence and self determination. The fact that the occupied population may have welcomed the removal of their former government and expressed no desire for its return does not diminish their right to resist occupation by a foreign aggressor. This is the case even where the occupying forces and the resistance are seeking the same thing – a democratic form of government. This reflects the sovereign right of all States to shape their own governments free from foreign interference.76 The General Assembly has repeatedly reaffirmed the principle that the political affairs of a state are to be determined by its people, not colonial rulers or occupying power.77 Furthermore, the mere fact that the new government turns out to be democratic in no way legitimizes an occupier’s war of aggression, because use of force is not rendered lawful on ‘the promise of the order to come.’78 The ‘concrete legitimacy of the future order ex factis jur oritur’ does not cure the present illegality.79 In view of the above, it is clear that ‘transformative occupation’ will only be legitimate where the occupied population embraces the occupier’s agenda. Retroactive Security Council endorsement of the occupier’s war does not cure the illegality of an occupation won through aggression. Consequently, where a ‘benevolent occupier’ has ousted a tyrannical regime through a war of aggression, armed resistance remains justified until such time as a majority of the population embraces the occupier’s agenda. If it does not, resistance may continue until the occupier is expelled.
Normative Conflict 2:Competing visions of self determination Self determination is among the most politically charged norms of international law. Its nature and scope has been extensively debated by jurists.80 Early debate focused on whether self determination was merely a principle or a right. The latter view prevailed.81 The status of self determination as a legal right has now been recognized in more than a dozen international instruments including the Charter.82 It is enshrined in Article 1 of three treaties that have entered into custom: the UN Charter,83 the ICCPR84 and the ICSER.85 The first two, and possibly all three, of these treaties have application in occupied States and territories under custom.86 The right has been recognized and reaffirmed in numerous resolutions of the Assembly,87 and long been recognized as a binding norm of customary international law.88 The ICJ has declared self determination a legal right with ‘erga omnes character.’89 This right has been identified as a norm of jus cogens since 1966.90 Self determination has been invoked in at least five different contexts:91 de-colonisation,92 cessation,93 struggles against alien occupation,94 racist regimes,95 and the emergence of new states following the disintegration of a former State.96 Doehring asserts that self determination is granted to all peoples, not only those living under colonial domination.’97 While the precise scope of this right vis a vis the use of force remains uncertain, governments must not stand in the way of a struggle for self determination.
Self determination, by its very nature, presupposes that the people of a sovereign State are free to determine for themselves, inter alia, whether to cooperate with foreign occupation or resist it. Where a people are subject to ‘alien occupation’, they are entitled to choose the path of armed struggle. Their right to do so is enshrined in Article 1(4) of Additional Protocol I. Another path to self determination is democratic transformation. This path may be denied to an occupied people by the occupier. This was the case during most of the first year of Coalition occupation of Iraq.During this period, the CPA ignored repeated mass demonstrations and public appeals for early elections.Where both paths to self determination are open, and different sections of the occupied population choose different paths, a normative conflict ensues. Under current international law this conflict could be resolved by reference to independent opinion polls, with the majority view prevailing. Less clear is how to self such a conflict where half of the population chooses armed struggle while the other half prefers a democratic process of transformation? There is no easy solution to this question. However in view improbability of such an outcome it will not be explored further. Instead attention will focus on the normative importance of self determination in the context of occupier sponsored elections.
A conflict of norms arises where the occupied population rejects a Council backed process of democratic transition in occupied territory. This situation is most likely to arise where the occupier sponsors, oversees or controls the electoral process. Such arrangements are not unknown in the UN era. In 1962 the US brokered an agreement between Indonesia and the Netherlands for the transfer of authority over the former Dutch territory of Western New Guinea from the Netherlands to Indonesia. Under the ‘New York Agreement’98, Indonesia agreed to hold an ‘act of free choice’ in Western New Guinea. After occupying the territory Indonesia backed away from its pledge. Eventually a ‘referendum’ of sorts was held 1969. Only 1022 West Papuans out of a population of one million were allowed to vote. All were hand picked by Indonesian officials. The vote was by a show of hands. The outcome was unanimous support for integration with Indonesia. The people of West Papua have challenged the process ever since and continue to call for independence.99 The flawed nature of this ‘act of free choice’ was captured on film and forms the basis of a recent documentary on West Papua.100 Now that Indonesia has a vibrant democratic polity, it is hoped that its government will allow the people of West Papua to participate in a ‘one person one vote’ secret ballot referendum on the question of independence. It is also hoped that the UN will never again endorse such a flawed self determination process.
This case study illustrates the potential for flawed elections during military occupation. This is particularly so where the occupation is the product of a war of aggression and the occupier wields the power of veto in the Council. Conditions akin to this arose in post-occupation Iraq. However the establishment of an independent electoral commission and the presence of international observers gave credibility to the process.
We now return to the normative conflict posed on the previous page. Whether an electoral process forced upon an unwilling population can be valid is dependent upon the nature and normative character of the right of self determination. Attention now turns to a consideration of these matters.
Self determination as jus cogens
As has been noted, self determination is a peremptory norm of international law. Its non-derogable character is now well established.101 Cassese has noted that ‘the principle that self determination of peoples cannot be derogated from by treaty has been repeatedly asserted in international practice.’102 Numerous States as well as international organizations have at various times adopted the view that self determination is jus cogens.103 UN Rapporteur Gros Espiell has stated that ‘[n]o one can challenge the fact that, in light of contemporary realities, the principle of self-determination necessarily possesses the character of jus cogens.’104 Nonetheless, debate continues as to the normative character of peremptory norms. Shelton questions the degree of acceptance of the concept of jus cogens, and by implication the peremptory character of self determination: the concept of jus cogens ‘was controversial from the start’ and divided the Vienna Conference on the Law of Treaties.105 That writer notes that in practice:
the concept has been invoked…most frequently in the domestic courts of the United States. At the International Court of Justice the term appears only in separate or dissenting opinions; States rarely raise the issue and where they do the Court seems to take pains to avoid any pronouncement on it.106 However Shelton acknowledges that the ICTY107 and numerous jurists support the existence of jus cogens norms.108 Lacey notes that the ICJ109 has now embraced the concept.110 Brownlie highlights a pertinent situation. In a discussion of ‘illegal occupation and the influence of jus cogens’ Brownlie observes that ‘one aspect of jus cogens, the principle of self determination, may justify the granting of higher status to certain types of belligerent entities and exile governments than would otherwise be the case.’111 This suggests that the jus cogens character of self determination provides both legitimacy and a juridical foundation for armed resistance to foreign occupation. Koufa reinforces this view.112 These views underscore the fact that self determination has a special status under customary law. Whether force may be used to: (a) achieve a form of self determination acceptable to an occupied people, and (b) reject an occupier imposed framework for the achievement of this right, is now explored.
Use of force to win self determination As has been noted above, the authority of a Council resolution endorsing occupation won through aggression will ultimately depend upon the approach adopted by the majority of the occupied population. Their opinion - rather than pronouncements by the Council - is the acid test of legitimacy of an occupation. This reflects the jus cogens character of self determination. This norm cannot be derogated, but only affirmed, by the Council.
It follows that external attempts to impose a political framework on an occupied people may be resisted – particularly where the occupier (a) is the aggressor and (b) has secured UN approval for its self determination plans without local consent.
This opens the door to armed resistance to win self determination. Such a notion sits uncomfortably, if not in actual conflict, with norms contained in the law of occupation. The difficulty is obvious: armed resistance impedes the capacity of the occupier to satisfy the range of duties cast upon it under the law of occupation. These duties include the maintenance of law and order and the protection of the civilian population. The fulfillment of such duties is challenged by the exercise of a right to launch military operations against occupation forces.113 Maintenance of law and order presupposes both a policing role (e.g. the arrest and prosecution of criminal gangs), and where necessary, a military role (e.g. the repression of uprisings against the occupation). Explicit recognition of a right to struggle for self determination against occupation could derail the operation of the contemporary law of occupation. Benvenisti acknowledges the problem:
the claim of the lawful struggle for self determination …coupled with the notion of illegal ‘foreign occupation’ would seem to import major qualifications, indeed, a revolution, in the law of occupation.114 Benvenisti asserts that in order to bring international instruments and resolutions dealing with the right of self determination of those subject to alien occupation into line with the law of occupation, the right to struggle against alien occupation ‘should be only understood as referring to occupations in which the occupant holds out in bad faith, and refuses to negotiate for its withdrawal in return for peace.’115 This approach treads a middle path between the narrow approach to self determination (which rules out use of force to win self determination)116 and the expansive view (which permits the use of force to win self determination struggles.)117 Interestingly, Benvenisti draw’s no distinction between the occupation of State and non-State territory, implying that struggles for self determination may be lawfully waged in both contexts. Ultimately Benvenisti’s approach fails to acknowledge the normative superiority of self determination over an occupier’s ‘rights’118 under the law of occupation.
The right to struggle for self determination will clearly prevail over the right of an occupier aggressor to purse a political agenda that does not enjoy the confidence of the occupied population.The occupied need not tolerate occupations won through aggression, which by their nature, ‘remain without democratic checks and balances and with a large question mark behind the source of power and the site of sovereignty.’119
Military occupation of a State by a foreign aggressor is an example par excellance of a crime against aggression. It is archetypal conduct justifying a national liberation struggle. Resistance movements engaged in such a struggle do not violate Article 2(4). Theirs is a defensive rather than an aggressive struggle. They are in a different position to liberation movements that initiate violence against a colonial government or racist regime. The right of resistance movements to use force against a foreign aggressor is already guaranteed under jus ad bellum as force used in self defence. The right to use force in self defence and to win self are inter-connected in the occupation context. The sovereign right of self defence reinforces the legitimacy of a struggle waged by resistance movements to win self determination from an aggressive occupier. As Mallison and Mallison have observed in the context of Palestine, where the right of self determination has been denied by armed force, ‘the right to regain it by armed struggle is considered permissible under Article 51 of the Charter concerning self defence.’120 Cassese notes that liberation movements ‘do not breach international law if they engage in armed action against a State that forcibly denies their right of self determination, and cannot therefore be held responsible for an international wrongdoing.’121 Armed struggles waged by an occupied people against a foreign aggressor therefore have solid juridical foundations.
Be that as it may, the growing influence of democratic entitlement raises questions as to the efficiency of unpopular resistance struggles waged against an aggressor. It also challenges aspects of the law of occupation. The normative character of democracy under international law, and its impact on resistance struggles is now considered.
The normative character of Democracy under International Law & its impact on self determination in occupied territory The normative status of democracy under international law has assumed growing importance since the collapse of the Soviet Union. Since 1990 democratic governance has expanded significantly in Eastern Europe, Asia, Africa and the Middle East. At least 130 States now permit some form of ‘open, multiparty, secret ballot elections with a universal franchise.’122 Yet there are now 191 member States of the UN.123 The remaining third retain a non-democratic polity. This suggests that democracy is not yet recognized under custom as the only legitimate mode of governance.124 This undermines claims that regimes that refuse to yield to popular demands for democratic governance violate international law. Whether there is a right under international law to democratic governance is ultimately determined by an appraisal the sources of international law, including customary and treaty law. Binding obligations under international law arise from both sources. Many States are obliged under treaty law to maintain a democratic form of government.125 For those who are not it is necessary to have recourse to custom to determine whether such an obligation is binding on them. For a norm to enter into custom and bind all States under international law the twin requirements of opinio juris and State practice must be satisfied. Opinio juris is the belief by States that a certain practice is legally binding under international law. State practice is the actual behaviour of States. In order for a practice to be binding under custom, conformity with the practice must (a) be virtually uniform among States, and (b) occur because States feel legally obliged to act in their way. Even though international law is beginning to embrace a norm of democratic governance,126 it is too early to say that these two requirements have been fully satisfied. Legal scholars have therefore asserted that elective democracy is not yet a ‘necessary prerequisite to governmental legitimacy.’127 The fact that around 60 States have a non-democratic form of polity underscores the absence of opinio juris that democracy is the only legitimate mode of governance.128 A number of implications can be drawn from this conclusion. Firstly, there is no right under customary international law of States to compel other nations to operate in a democratic fashion. Alternative polity (such as single party autocracy) remains permissible in nations that are not bound by treaties that require democracy. Therefore unilateral intervention to impose democracy in such States cannot be justified under customary law. Nor can it be justified under UN Charter which:
(1) prohibits interference in the internal affairs of sovereign States [Article 2(7)],
(2) is silent on the issue of democracy, and
(3) contains a general prohibition on the use of force [Article 2(4)].
Consequently, military intervention for the purpose of imposing democracy violates the Charter. The circumstances are different where the occupied State has waged a war of aggression. This situation arose in 1945 when the allies occupied Germany and Japan. Both states had waged wars of aggression. The removal of the political apparatus of the aggressors and the substitution of democratic institutions has generally been regarded as having advanced rather than violated Charter norms.
By implication, States that are the victim of aggression may forcibly resist attempts to impose democracy or any other form of polity for that matter. Unilateral intervention - to oust a regime and impose democratic norms - is an unlawful use of force. Unlawful use of force triggers the right of self defence which may be exercised until such time as the Security Council takes effective measures to restore peace and security. Indeed occupation by a foreign aggressor may be resisted even where the occupier is attempting to replace a brutal dictatorship with an elected government. This may be an unpalatable state of affairs for many, however it reflects the fact that international law is still moving towards recognition of a norm of democratic governance129 and has definitely not embraced a right of unilateral intervention to impose democracy. In essence, contemporary international law does not prohibit armed struggle against a benevolent but unlawful intervention.
If however a State is forcibly occupied, and occupier sponsored democratic reform is embraced by the majority of the occupied population, armed resistance to the occupation - in an attempt to prevent elections and restore a dictatorial regime – will be contra the wishes of those in whom sovereignty vests, the occupied population.130 Such resistance is therefore not a bona fide struggle waged in the exercise of the collective right of self determination. Conversely, where the occupier refuses to heed popular demands for elections, a popular resistance campaign waged in pursuit of democratic elections is a bona fide struggle for self determination. 4.3 Normative Conflict 3: Sovereign rights of the ousted government (to repel foreign occupation) verses sovereign rights of the people (to pursue democratic reform) As soon as a foreign army gains effective control over territory the law of occupation applies. This body of law is codified under Hague and Geneva law. Benvenisti notes that under Hague law the occupier is supposed to protect ‘the sovereign rights of the ousted government’:
In a possible case of conflict between the ousted government and the local population, the occupant is support to prefer the interests of the government…Thus it (the occupier) has the duty to protect local institutions against indigenous forces that might call for structural changes in the internal body politic.131 This raises questions about the relationship between (a) the rights and duties of the occupier and (b) the right of the occupied population to self determination. As has been noted, self determination vests in the people of an occupied State rather than the ousted government. Unlike rights exercisable under the law of occupation, self determination is jus cogens. If this right is to be respected in occupied territory it follows that the interests of the ousted sovereign must give way to the demands of the majority in the event of a conflict between the two. In this writer’s view where the majority support the removal of the ousted regime and its institutions the occupier will be empowered to take such measures even reflect these desires even though they may exceeds its authority under the law of occupation.
The counter argument is that the occupier must not interfere with national institutions but leave radical reform to a sovereign government after occupation. Under Hague law132 any radical overhaul of national institutions would amount to a violation of the law of occupation.133 An occupier can only suspend or repeal local laws where military necessity so demands. It can also be argued that unilateral transformation of the institutional apparatus of the occupied State without democratic approval by the occupied population is a violation of the right of self determination.134 As events in Iraq have shown, radical transformation of institutions of the occupied State without the consent of the occupied may generate resistance, not only by those loyal to the ousted regime, but also other sections of the population who reject institutional change imposed by a foreign power. A struggle waged to preserve the patrie is a natural manifestation of the right of self determination. It would therefore be unsurprising to discover that at certain stages of the occupation a majority of Iraqis favour both the end to Ba’ath oppression (and by implication an end to Ba’ath laws and institutions that were unjust or oppressive) and democratic elections. Such a congruence may well have arisen in the aftermath of revelations of the abuse of detainees at Abu Ghraib prison.
Normative Conflict 4: The right of national self defence verses the right of an occupier to put down resistance Dinstein asserts that for the purposes of jus ad bellum ‘under no circumstances can the actual use of force by both parties to a conflict be lawful simultaneously.’135 This axiom of jus ad bellum is problematic in the context of military occupation by an aggressor. The law of occupation has universal application and therefore applies with equal force to both aggressors and benevolent occupiers. Under the law of occupation occupiers are entitled to put down armed resistance as part of efforts to maintain law and order in occupied territory. Yet if the occupier is the aggressor, can its right to crush resistance be reconciled with the right of the Victim State to wage a resistance war in the exercise of the sovereign right of self defence?136 As Ford notes ‘a war of aggression is a crime and …it is lawful for inhabitants of the invaded country to defend themselves collectively.’137 If Dinstein’s contention is universally applicable, it must apply in States that have been occupied by an aggressor. This means that where fighting in occupied territory is between an occupier that was the initial aggressor and resistance forces comprised of inhabitants of the Victim State, the latter may lawfully use force while the aggressor’s use of force is unlawful. Indeed the use of force by an aggressor to maintain effective control over the occupied State is continuation of its war of aggression. The occupied are entitled to use force in self defence against the aggressor, even in the face of overwhelming odds.138 If this were not so, expansionist powers could wage wars with relative impunity. The law would reward aggression. The Council has on a number of occasions stressed that an aggressor has no right to enjoy the fruits of aggression.139 The normative conflict identified on the previous page is ultimately resolvable by reference to jus cogens, the super norms140 of the international legal order. The sovereign right of self defence trumps an occupier’s right under the law of occupation to put down resistance in occupied territory. This resolution is consistent with the legal principle that force used against an aggressor is lawful, while force used by an aggressor is unlawful.141 It is also consistent with principles for the resolution of normative conflict endorsed by Judge Koroma in the Nuclear Weapons Case.142.In a dissenting judgment Judge Koroma stated that ‘when the Court is faced with two competing principles or rights, it should jurisprudentially assign a priority to one of them and cause it to prevail.’143 In paraphrasing Sir Hersch Lauterpacht, Judge Koroma noted that ‘even though the margin of preference for giving a priority to one principle over another may be small, yet, however tenuous, that margin must be decisive.’144 While admitting that judicial action along this line ‘may in some respects be indistinguishable from judicial legislation’ Judge Koroma accepted Lauterpacht’s contention that a ‘legitimate judicial compromise’ must be reached between competing principles of law. Lauterpacht has asserted that:
there is no decisive reason why the Court should avoid at all cost some such outcome. It is in accordance with the true function of the Court that the dispute submitted to it should be determined by its own decision and not by the contingent operation of an attitude of accommodation on the part of the disputants.145 Of direct relevance to the present antimony is the view of both of the aforementioned judges that the right of self-defence is ‘absolute’ in the sense that no law could disregard it, but ‘relative’ in as much as it is presumably regulated by law.146 In Lauterpacht’s view, self defence ‘…is regulated to the extent that it is the business of the Courts to determine whether, how far, and for how long, there was a necessity to have recourse to it.’147 Judge Koroma then noted the obligation of parties to an armed conflict to:
… comply with the principles and rules of international law applicable in armed conflict and the right of a State to self-defence including when it considers its very survival to be at stake…these principles are not mutually exclusive and are recognized in international law. 148 Self defence is unquestionably jus cogens in character.149 By contrast, to the best of this writer’s knowledge, the rights and duties of an occupying power have never been recognized as jus cogens. While the treaties which codify the law of occupation have entered into custom, only some of the articles within these treaties are recognized as jus cogens.150 In the Nuclear Weapons Case Judge Weeramantry declared that ‘the rules of humanitarian law have clearly acquired the status of ius cogens for they are fundamental rules of a humanitarian character.’151 In so declaring, the judge referred to Roberto Ago’s list of jus cogens norms.152The right of an occupier to quell resistance is not included in this list. Nor are any obligations under the law of occupation that may give rise to such a right. In this writer’s view there are two compelling reasons why the right of an occupier to quell resistanceis not jus cogens. Firstly, it is not a ‘fundamental rule of a humanitarian character’ but instead an expression of the military power of the occupier. Like much of the law of occupation, it reflects and reinforces the power of an occupier to impose martial law in occupied territory. Viewed in this light, the failures of jurists to characterize the powers of an occupier as jus cogens is unsurprising. Secondly, States that have exercised control over foreign territory without local consent have rarely accepted that the law of occupation applied to them. In fact the law of occupation appeared to have passed into abeyance after World War II. In the case of the world’s most politicized occupation, Israel has consistently denied that it was bound de jure by the law of occupation in its prolonged occupation of Palestinian territory.153 It was not until the invasion and occupation of Iraq in 2003 that occupying States accepted their legal obligations under the law of occupation. The US and the UK became the first occupying powers since 1945 to accept that the law of occupation applied to them.154 There was no suggestion by jurists or States in the lead up to the passage of 1483 that any of the rights of an occupying power are jus cogens.
Normative Conflict 5: Binding Chapter VII resolutions of the Security Council verses jus cogens Where the Council acting under Chapter VII endorses an occupation brought about through aggression, antimony may arise between the Council mandate and the jus cogens right of self defence against aggression. Prima facie, such a resolution provides the occupier with a legal basis for military operations aimed at suppressing resistance to the occupation. Resistance to the occupation would appear to be at odds with the Council mandate. However, as has been noted above any Council decision that derogates from jus cogens is void. Consequently, where the right of self defence is being exercised by victims of aggression (including organized resistance movements in occupied territory), this right prevails over a decision of the Council that endorses ongoing occupation by the initial aggressor.
The following scenario illustrates the normative conflicts that may be generated when the Security Council endorses an occupation achieved through a war of aggression.
A Chapter VII resolution is passed that recognizes occupation by a power that has waged a war of aggression. The aggressor contends that the military intervention was not a war of aggression but a humanitarian intervention undertaken for the purpose of removing a brutal dictatorship and fostering democracy. Partisan units emerge during the occupation and engage in armed resistance. They assert jus ad bellum grounds for resistance (i.e. self defence and self determination) and contend that no State or international organization (including the Security Council) may override their sovereign rights because they are jus cogens. The resistance movements issue a statement. They declare that:
1. The Security Council decision is an implicit endorsement of the war of aggression waged by the occupier.
2. The resolution undermines jus cogens entitlements of the occupied to struggle against enemy occupation in the exercise of the sovereign rights of self determination and self defence.
3. For the above reasons, the resolution is invalid, and in no way fetter’s their legal entitlement to struggle against the occupation. Is the Security Council resolution binding on the occupied State and its people? (A similar situation arose in Iraq in 2003, although this writer is unaware of a comparable declaration having being issued. Most declarations invoked the Islamic law on war to justify armed resistance to foreign occupation.155)
In determining whether the resolution described above would be binding on the occupied State two matters will be addressed: the relative normativity of decisions taken under Chapter VII, and jus cogens entitlements of the occupied nation. The first issue requires an analysis of the powers of the Security Council. The second requires an examination of the normative power of jus cogens.
The powers of the Security Council acting under Chapter VII
States party to the Charter have bestowed upon the Council extraordinary powers to deal with threats to or actual breaches of international peace and security.156 These powers are available where binding resolutions are passed pursuant to the provisions of Chapter VII of the Charter. States undertake to abide by resolutions of the Council as a condition of membership of the UN.157 They accept that without the ability to impose on the rights of States, the Council would be unable to take effective action in the interests of international peace and security.158 As one writer has noted, ‘[t]he flexibility inherent in such a framework may be said to be necessary to ensure that the Security Council may engage in quick and effective action’159 The wide discretion vested in the Council to address threats to international peace and security allows it to determine for itself the appropriate balance to be drawn between competing principles of the Charter. Where it deems necessary, the Council may override treaty160and customary161 norms. This power has been justified by reference to the Council’s role in maintaining and restoring international peace and security.162 It reflects two important features of the Council: 1) Its primary concern being the maintenance of peace and security rather than to uphold international law, and 2) Its role as a political organ rather than a criminal tribunal.163
The Council’s powers and obligations are derived from the Charter and general international law.164 The Charter is a treaty. As such, ‘the organization and its organs must respect the division of competencies and limitations on powers in that treaty.’165 Being a creature of treaty law, the Security Council must perform its functions in a manner consistent with the international law rules on treaties. The VCLT is the most authoritative source of such rules. It also codified the doctrine of jus cogens. Significantly it was promulgated after the UN Charter came into existence. It could therefore have carved out an exception to the doctrine of jus cogens in the case of Security Council decisions taken under Chapter VII. It did not do so. Consequently the Council, and indeed all Actors in the international law system (be they international organizations, States and other non-State actors), are bound by the rule prohibiting derogation from jus cogens. Any resolution purporting to override a norm of jus cogens is void. This would include resolutions passed under Chapter VII of the Charter.
Consequently, where a State has been occupied through a war of aggression, a resolution that endorses the occupation and fails to call for the withdrawal of occupation forces is invalid. There are a number of reasons for this. Firstly effective measures have not been taken to protect the Victim State. As a consequence, the inherent right of self defence remains on foot. Secondly the capacity of the Victim State to exercise its jus cogens right of self defence is undermined by such a resolution. This means that the Victim State is not obliged to comply and may continue to use force in an effort to expel the occupier from its sovereign territory.
Conclusion The US-led invasion and occupation of Iraq tested both the UN Charter framework in general,166 and the authority of the Security Council in particular. It underscored the inability of the Security Council to reign in hegemonic aggression by two of its permanent members.167 Attempts by the Security Council to protect Iraq’s sovereign rights, while simultaneously cooperating with an occupation achieved through the unlawful use of force, proved a formidable challenge. The rule of law in occupied Iraq became a matter of perspective. For those who rejected the occupation, armed resistance was a legal right irrespective of the Security Council’s recognition of the occupation. For supporters of ‘transformative occupation’, attacks on occupation troops were the work of criminal insurgents bent on depriving ordinary Iraqis of their rights to ‘freedom, democracy, and a market economy.’ It was also an attack on the authority of the Security Council. These contrasting approaches sparked a number of normative conflicts. While not unknown, such antimonies are often overlooked or sidestepped in legal scholarship on military occupation.168 In light of events in Iraq they can no longer be ignored. They must be acknowledged and addressed by the international community. Such antimonies have their origins in political comprises reached at the Dumbarton Oaks Conference (1944) and the Yalta Conference (1945). These compromises impacted on the normative structure of the UN Charter. In their quest for an agreed framework on jus ad bellum, the Allied powers left unresolved underlying tensions within and between a number of categories of international law (including jus ad bellum and the law of occupation). Crucial questions were left unsettled. For example, the Charter did not assign normative superiority to either the inherent sovereign right of self defence or binding Security Council decisions taken under Chapter VII. Nor did it provide an effective safeguard against hegemony and its abuse by a permanent member of the Security Council.169 Subsequent UN practice has failed to resolve these problems.
Having explored five antimonies that arose in Iraq, a number of conclusions are offered regarding the inescapability of normative conflict under contemporary international law in territory occupied outside the Charter paradigm. Firstly occupation won through aggression will inevitably generate normative conflict. Secondly where the occupying power is a permanent member of the Security Council, the capacity of that body to exercise its full powers in response to such aggression is impaired. Thirdly jus cogens represent an important check on the authority of the Security Council, by offering a path to resolution of normative clashes generated by occupation secured through the unlawful use of force. Fourthly in an era where hegemonic powers have the capacity to act outside the Charter framework with relative impunity, their actions may undermine the principles and purposes of the Charter in various ways. Of particular concern are attempts to use the Security Council in a bid to confer legitimacy on actions that cannot be reconciled with fundamental Charter norms. Where great powers enjoy economic political and military hegemony, as well as the power of veto on the Security Council, they are uniquely placed to influence the tabling, drafting, and passage of Chapter VII resolutions.170 This may result in the departure from Charter principles in ways not contemplated by its drafters. Jus cogens provide an important check on such abuses of power by limiting the authority of the Council where its decisions undermine peremptory norms. In doing so, they offer a path out of a number of the normative conflicts highlighted above. Whether this approach to jus cogens will be accepted by the ICJ, respected by the Security Council, and reflected in the opinio juris of States, remains to be seen.
1 Senior Lecturer in Law, University of Notre Dame Australia, LLB (Tasmania) LLM (Bristol, UK), PhD candidate (Asia Pacific Centre for Military Law, University of Melbourne) This paper explores issues arising from doctoral research on ‘Occupation, Resistance and Jus ad Bellum in Iraq (2003-2004)’.For comments on this article:email@example.com
2 Senior Lecturer in Law, University of Notre Dame Australia, LLB (Tasmania) LLM (Bristol, UK), PhD candidate (Asia Pacific Centre for Military Law, University of Melbourne) This paper explores issues arising from doctoral research on ‘Occupation, Resistance and Jus ad Bellum in Iraq (2003-2004)’.For comments on this article:firstname.lastname@example.org
3 See for example: Terry D. Gill ‘The War in Iraq and the Contemporary Jus ad Bellum’ (2003) 5 International Law FORUM de droit international 241-246, 245; Carsten Stahn ‘Enforcement of the Collective Will after Iraq’ (2003) 97 American Journal of International Law 804, 806 (citations omitted); Nigel D. White ‘Self Defence, Security Council authority and Iraq’ in Richard Burchill, Nigel D. White and Justin Morris (eds.) International Conflict and Security law: Essays in Memory of Hilaire McCoubrey (2005), 235, 262. Klaus Kress ‘The German Chief Prosecutors decision not to investigate the alleged crime of preparing aggression against Iraq’, (2004) 1 Journal of International Criminal Justice 245; Nicholous Shultz, ‘Case Note – Was the war on Iraq Illegal? – The Judgement of the German Federal Administrative Court of 21 June 2005’ (2006) 7 German Law Journal 1; Mohammad Taghi Karoubi, Just or Unjust War? International law and Unilateral Use of Armed Force by States at the turn of the 20th Century (2004), Mahmoud Hmoud ‘The Use of Force against Iraq: Occupation and Security Council Resolution 1483’ (2003-2004) 36 Cornell Int’l L.J. 435; Mirko Bagaric & James McConvill ‘The War in Iraq: The Illusion of International Law? Where to Now?’ (2003) 8 Deakin L.Rev. 147, at 147; John E Noyes ‘American Hegemony, U.S. Political Leaders and General International Law’ (2003-2004) 19 Conn. J. Int’l L.293 at 304; Anne Marie Slaughter ‘The Use of Force in Iraq: Illegal and Illegitimate’ (2004) 98 Am. Sac’s Int’l. L. Proc. 262, 262; Richard Falk, ‘The Iraq War and the Future of International law’ (2004) 98 Am. Soc’y Int’l. L. Proc. 262 at 263; Thomas M. Franck ‘The Role of International law and the UN after Iraq’ 98 Am. Soc’y Int’l. L. Proc. 262 2004 at 267; John Yoo ‘Using Force’ (2004) 71 U.Chi.L.Rev. 729, at 791; Professor Phillippe Sands QC, ‘Lawless World: International law After 9/11 and Iraq’ University College London and Matrix Chambers University of Melbourne Law School Alumni Lecture 2005 15 June 2005 14-16; Ornello Ferrajolo ‘La practique et la regle de droit. Reflexions a propos de la seconde guerre du Golfe’ Actualite et Driot International, May 2004 <http://www.ridi.org/adi> Feisal Amin al-Istrabadi ‘The Report of the U.N. High-Level Panel and the Use of Force in Iraq in 2003’ (2005) 4 Northwestern University Journal of International Human Rightshttp://www.law.northwestern.edu/journals/jihr/v4/n1/12/al-Istrabadi.pdf at 15 June 2006; Yoram Dinstein War Aggression and Self Defence (2005), 297- 300. (citations omitted)
4 Ebrahim Afsah ‘Debunking the Nike Doctrine: The Limits of Power and Continued Relevance of Occupation Law (2006) 7 German Law Journal 563; McCarthy, Conor ‘The Paradox of the International law of Military Occupation: Sovereignty and the Reformation of Iraq’ (2005) 10 Journal of Conflict and Security Law 43; Professor Mary Ellen O'Connell THE OCCUPATION OF IRAQ: WHAT INTERNATIONAL LAW REQUIRES NOW http://jurist.law.pitt.edu/forum/forumnew107.php Accessed 2 November 2005; James Fallows ‘Blind Into Baghdad: The Inside story of a historic failure’ 2004 The Atlantic January/February 2004 http://www.theatlantic.com/issues/2004/01/fallows.htm date accessed 18 March 2004; Anthony H. Cordesman, Iraq and Conflict Termination: The Road to Guerilla War? Center for Strategic and International Studies (Washington DC) Revised 28 July 2003.
5 Marten Zwanenburg, ‘Existentialism in Iraq: Security Council Resolution 1483 and the law of occupation’ (2004) 86 International Review of the Red Cross, 745; Andrea Carcano ‘The End of The Occupation? The Status of the Multinational Force in Iraq after the Transfer of Sovereignty to the Interim Iraqi Government’ (2006) 11 Journal of Conflict and Security Law 41; Aristotle Constantinides ‘An Overview of Legal Restraints on Security Council Chapter VII Action with a Focus on Post-Conflict Iraq’ <http://www.esil-sedi.org/english/pdf/Constantinides.PDF> at 3 March 2006; Thomas M. Franck ‘The Role of International law and the UN after Iraq’ (2004) 98 Am. Soc’y Int’l. L. Proc. 262; Grant, Thomas D, ‘The Security Council and Iraq: An Incremental Practice’ (2003) 823 The American Journal of International Law 823.
6 Jordan J. Paust “The U.S. as Occupying Power Over Portions of Iraq and Relevant Responsibilities Under the Laws of War” [April 2003] http://www.asil.org/insights/insigh102.htm date accessed 13 January 2004; Benvenisti, Eyal The International Law of Occupation (2nd Ed. 2004), ‘International Humanitarian Law Issues In A Potential War In Iraq’, Human Rights Watch Briefing Paper, (Last modified February 20, 2003); (Date accessed 26 May 2003) http://www.hrw.org/backgrounder/arms/iraq0202003.htm United Nations Office for the Coordination of Humanitarian Affairs, "Integrated Humanitarian Contingency Plan for Iraq and Neighbouring Countries" [Confidential Draft] (January 7, 2003) http://www.casi.org.uk/info/undocs/internal.html Date accessed 26 June 2003.
7 Afsah above n 3.
8 Goldstone, South African Justice Richard. The trial of Saddam Hussein: what kind of court should prosecute Saddam Hussein and others for human rights abuses? 27 Fordham Int'l L.J. 1490-1508 (2004); Bassiouni, M. Cherif. (2005) ‘Post-conflict justice in Iraq: an appraisal of the Iraq
Special Tribunal’ 38 Cornell International Law Journal 327-390; Linda Malone, Christopher M. Rassi & Laura Dickinson, ‘Issue #3: Is the Iraqi Special Tribunal, which was established on December 10, 2003 by the Occupying Power and the unelected Iraqi Governing Council, a legitimate judicial institution?’ (2005), available at: http://law.case.edu/saddamtrial accessed 14 June 2006.
9 Beyond Torture: U.S. Violations of Occupation Law in Iraq, Center for Economic and Social Rights, Published on 10 June 2004 http://cesr.org/low/node/view/227 [accessed 14 Jan 2005]
10 Andreas Fischer-Lescano ‘Torture in Abu Ghraib. The Compliant against Donald Rumsfeld under the German Code against Crimes under International Law (Völkerstrafgesetzbuch)’ (2005) 6 German Law Journal 659.