My previous post introduced the conservationist doctrine—the idea that a hostile occupying force is a mere custodian of occupied lands, without the sovereign authority to change existing laws and institutions. This blog continues that discussion and explores the consistent erosion of this doctrine through a century of occupation for the sake of nation building.
Throughout the 20th century, Western powers frequently occupied foreign lands. These occupations often had the legitimacy of international support even though their stated purposes were non-conservationist—for instance, establishing liberal institutions in place of totalitarian regimes. In fact, the drafting of the 1949 Geneva Conventions, where the conservationist principles was reiterated, occurred as Western Allies carried out rebuilding efforts in occupied Japan and Germany. How does persistent international practice contrary to established customary law impact the legal status of the conservationist doctrine?
First, it is important to understand the political discourse behind the establishment of the conservationist doctrine, and how we have since outgrown it. The doctrine was first outlined by the Hague Regulations of 1907 to replace the common law principle iterated in the Foltina case, a 1814 British decision holding that “a conquered country forms immediately part of the King’s Dominion.” This hints at the underlying thinking of the time, that sovereignty belonged with monarchs.
But sovereignty lays with monarchs no more. Over a century has passed since the original Hague Regulations, and world leaders overwhelmingly praise the virtues of democracy. The legitimacy of a government is increasingly determined by the people, and so its sovereignty too vests with the people’s collective voice. The 1977 Additional Protocols to the Geneva Conventions bolstered this idea by outlining a new right of self-determination. Created to encourage de-colonization, self-determination is the idea that people have the right to secure their own future by ridding themselves of foreign oppressors.
With this shift in thinking, occupation for the sake of state building has gained international approval despite its contradiction of the conservationist principle. If sovereignty should rest with the people, an attempt to overthrow a dictatorial government is merely an exercise in restoring sovereignty to its true owners.
The rise of international institutions such as the United Nations also expedited the antiquation of the doctrine. The UN’s tacit approval of certain nation building occupations blunts potential legal criticisms. The ousting of Haiti’s military dictatorship in 1993 is one such example. This was made possible through a UN Security Council resolution empowering a U.S. led effort to remove the Haitian military regime by force. After the departure of the ousted leaders, a smaller multi-national contingent assumed a peacekeeping role on the island.
The Haitian peacekeeping force raises another issue—that the UN’s own role as a non-State occupier is something the doctrine never considered. This is especially true for UN peace enforcement missions under Chapter VII of the UN Charter. More heavily armed and with a larger mandate than peace keeping forces, peace enforcement deals with breaches of peace and acts of aggression. The British field manual, Wider Peacekeeping, defined peace enforcement as: “operations carried out to restore peace between belligerent parties who do not all consent to interventions and who may be engaged in combat activities.” In other words, peace enforcement can result in the non-consensual occupation of territory during armed conflict, precisely the type of situation governed by the conservationist doctrine.
This was the case in Kosovo, officially part of Yugoslavia in 1999. The UN responded to reports of violence against ethnic Albanians by the Yugoslavian government via a Chapter VII Security Council Resolution to deploy 40,000 troops to the area. This deployment did not have the consent of the Yugoslavian government, which had been largely forced from the area by a protracted NATO air campaign. In the wake of the violence, the UN engaged in nation building efforts, which contributed to Kosovo’s present day status as a semi-autonomous region or self-declared independent country.
Although the conservationist doctrine remains customary law, such international practice may eventually crystallize into new laws on occupation. Yet this emerging norm—occupation for nation building—is not without its issues. Regimes may abuse the notion that sovereignty rests with the people, and stage mock elections in occupied territories to legitimize illegal annexations. Regional powers could also leverage self-determination to support foreign uprisings, leading to protracted political uncertainty, the likes of Cyprus and Transnistria. There is also criticism of UN-led occupations as self-interested efforts by permanent members of the Security Council to indirectly influence, even topple less powerful regimes.
Whatever the real motivation of interventions, the evolution of the law is actually encouraging. Nation building occupation is arguably a more appropriate embodiment of the spirit of international humanitarian law—creating stability, in post-war Germany, in Kosovo, and modern Afghanistan, where conflict once ravaged civilian life.