Winning the Postwar
After a victory in Iraq, the Bush Administration could gain the trust of the Iraqi people—and of the world—by obeying the international law of occupation.
By Suzanne Nossel
THE CHALLENGE OF REBUILDING IRAQ AFTER SADDAM may offer the United States the chance to recover from the crisis of legitimacy it suffered en route to Baghdad. When a prospective U.S. role in postwar Iraq was first discussed last year, critics pounced from both sides. They ridiculed leaked U.S. plans to install a proconsul in the Douglas MacArthur mold, strutting around with a cob pipe and dictating orders to a humiliated people. The notion of charging such an emissary with securing Iraq as a beachhead for democracy in the Middle East was dismissed as naïve. Yet critics also warned the United States against turning its back on Iraq and leaving the country to succumb to its ethnic divisions.

To shield itself from this dilemma, the Bush Administration should look to an unlikely source of support: international law, specifically the law of occupation. Despite the Administration's pattern of resisting international legal obligations as unbefitting a superpower, a commitment to uphold international law in Iraq will allow the United States to secure its own interests and restore its much-needed legitimacy in the eyes of the world. It will allow America to strike the right balance between overreaching paternalism and hands-off neglect. While the United States would do far better to style itself Iraq's temporary "trustee" or "protector" rather than its "occupier," a public commitment to the law would help to win the confidence of the Iraqis and the international community.

The Administration's goals for Iraq extend well beyond toppling Saddam. They encompass hunting down his lieutenants, keeping the peace, and disabling his weapons of mass destruction. They also include restoring the Iraqi economy, providing health care, rebuilding schools, resettling refugees, and administering humanitarian aid.

The United States also faces a variety of political imperatives. Though internal forces may push for a partition of Iraq into separate Kurdish, Sunni, and Shiite sectors, the United States has committed itself to preserving the country's territorial unity. Responsibility for Iraq's oil fields is another politically fraught matter. The Administration has outlined plans to seize the wells to protect them from destruction and then to use the fuel proceeds to fund Iraq's renewal. Doing so will involve contentious decisions about production levels and other matters. Most dauntingly, there is America's stated ambition to seed democracy in Iraq, setting an example for the region.

In confronting these tasks, the Administration faces key decisions over what roles the U.S. military will play and what tasks to turn over to the United Nations and others. It must determine which Iraqi laws and institutions to keep and which to dismantle. Coming on the heels of a U.S.-led invasion, these choices will influence whether America's role in the region is ultimately judged as compassionate and just, or as an example of imperialism.

One way to bolster the legitimacy of the U.S. role in postwar Iraq is by following the centuries-old international law of occupation. By wrapping itself in the cloak of international law, the United States will surprise and maybe even silence foes who like to inventory U.S. defiance of international norms. By defining its mandate and goals in terms of this doctrine, the United States can address the key dilemmas of Iraqi reconstruction while shielding itself from charges of either exceeding its authority or shirking its obligations.

THE LAW OF OCCUPATION originated in the idea that sovereignty cannot be taken away by force. The capture of territory in war thus does not confer on the occupier sovereign title to annex the land or hold it in perpetuity. Instead, the occupying power is bound by legal restrictions originally set out in Article 43 of the 1907 Hague regulations: "The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."

The Hague drafters had in mind short-term occupations after military conquest and before the signing of a peace treaty, at which point the defeated sovereign government would usually resume power after ceding some territory. As Professor Eyal Benvenisti of Tel Aviv University describes in his comprehensive work The International Law of Occupation, at the turn of the 20th century the law of occupation functioned as a pact between heads of state, providing that if one leader was temporarily ousted, a stand-in would operate as a trustee, handing the territory back to the rightful ruler once hostilities ended.

In performing this trusteeship, the occupying power had a few central obligations. The most important related to the convention's proviso that the occupier "take all the measures in his power," that is, assume responsibility for the land and population under its control. In doing so, the occupier was obligated to uphold the existing laws of the occupied territory wherever possible. During World War I, disputes over the scope of an occupier's authority to change existing laws in occupied territory began to arise, often coming down to a question of the occupier's motives. From 1914 to 1918, Germany occupied most of Belgium, giving rise to major conflicts about German use of the country's coal reserves and German measures to divide Belgium into separate French and Flemish spheres. Both were considered illegitimate under the Hague convention, raising concerns that its vagaries were proving vulnerable to exploitation.

The post-World War II Allied occupations of Japan and Germany were claimed as exceptions to the Hague Convention because they occurred after the unconditional surrender of the defeated powers. Since neither ousted sovereign would ever return to power, the Allies invoked the customary international law doctrine of debellatio, or subjugation, which said that under such circumstances occupiers were free to annex or reshape occupied territory without regard for the prior sovereign. This was the foundation for the expansive powers of MacArthur in Japan, the Allied spheres of control of Germany, and the eventual democratization of both countries.

Despite the debellatio doctrine, these occupations were evaluated by scholars under the emerging litmus test for occupier meddling with occupied society: Were the occupier's acts motivated by self-interest or by concern for the occupied? For the most part, reforms like the eradication of anti-Semitic laws in Germany, though sweeping, were seen as a genuine necessity to rehabilitate the conquered society.

At the 1949 Geneva Convention negotiations, the experiences of the world wars drove efforts to revitalize the law of occupation. By this point, early-20th-century notions of a monarch's sovereignty had given way to concepts of self-determination. The law of occupation was retooled from a contract between ruling elites into a set of state duties toward occupied peoples. The goal of occupation was no longer to restore a prior sovereign but to empower the local population.

The 1949 convention provided that residents of occupied territory could not be deprived of legal rights on the basis of debellatio or other special circumstances. Largely at the behest of smaller countries that feared someday being occupied, the convention established a bill of rights for occupied people, including the right to humane treatment, children's education, food, medicine, and relief. Rather than serving as the trustee of an ousted sovereign, the occupier was recast as the protector of the occupied population.

Not surprisingly, the expanded duties of occupation coincided with a diminished willingness of occupiers to acknowledge themselves as such. In most postwar occupations, the occupiers have treated the Hague and Geneva conventions as inapplicable. In some cases, powers have simply annexed occupied land (as Iraq did in Kuwait and Indonesia in East Timor). Elsewhere the occupier has claimed to enter the occupied area on behalf of a lawful government in order to restore its sovereignty (as the United States did in Panama and the Soviets in Afghanistan). Either way, the occupying powers have not acknowledged their duties as trustees for the occupied populations.

One significant if partial exception is Israel's occupation of the West Bank and Gaza. Though it rejects formal application of the Geneva Convention on the basis of a technical exception that most scholars dispute, the Israeli government has committed itself to the treaty's "humanitarian provisions." Yet bitter conflict over the terms for lasting peace, the proximity of occupier and occupied lands, and the duration of the Israeli presence have raised incessant questions about the legitimacy of the occupation. In this context "occupation" has taken on its present-day connotation: an arrangement harmful to both occupier and occupied.

LONG DISPUTED AND THEN LARGELY DISREGARDED, can the law of occupation really be useful in Iraq? First, consider the alternatives. The Bush Administration has apparently rejected installation of a provisional Iraqi regime, the path it followed in Afghanistan. Though the United States may move quickly to canvass the Iraqi population about its choice of a new leader, it still needs to decide what rules to apply in the meantime.

Control could be turned over to the U.N. or a multilateral coalition. But having often derided the U.N. as impotent and irrelevant, the Administration isn't going to entrust it with critical tasks like locating and disabling weapons of mass destruction or controlling the Iraqi oil fields. With all eyes on the United States to deliver a free and stable Iraq, relying on an array of countries with divergent interests may breed confusion and paralysis. Bosnia is now controlled by a high representative accountable to 55 countries. Seven years after a peace agreement was signed, there is no timetable for transition to Bosnian rule. The international administration in Kosovo is doing better, but that territory is far smaller and less complex, and still self-sustainment appears far off.

While allies and the U.N. have indispensable roles to play on vital issues like relief and refugees, the United States is unlikely to entrust them with overall control. That leaves America as the logical power to control Iraq immediately after the war, and the Bush Administration has seemed poised for the task since the start of the military planning process.

Given its disregard for international law, the Administration is likely to take over without explicit reference to the Hague and Geneva conventions, relying instead perhaps on U.S. military manuals and command directives. But by binding itself to these conventions, the Administration could assert its intention not to assume even temporary sovereignty over Iraq but to hold the territory on behalf of the Iraqi people to whom it belongs. The related obligation under the conventions—to establish a system of direct administration—is something the United States has to do anyway to achieve its postwar policy goals.

The elasticity of the Hague and Geneva conventions allows the United States to justify actions it wants to take and avoid those it does not. Measures to punish criminals, do away with authoritarian laws, and dismantle the most politicized parts of Saddam's Baathist infrastructure would be warranted under the Hague admonition to "restore and ensure . . . public order and safety." Steps to protect women's rights, build schools, and repatriate refugees match the rights set out in the Geneva accord. Seizing control and dismantling Iraqi weapons of mass destruction is specifically authorized under Article 53 of the Hague regulations, which allows occupiers to seize military property.

The law of occupation could also provide cover for more controversial maneuvers. Taking over the oil fields, rebuilding them, and even upping production could be justified as long as the proceeds were used to accomplish the United States' purported aim: channeling the reserves to meet the people's needs. While Israel was condemned for increasing production in Egyptian oil fields during its Sinai occupation in the early 1970s, the criticism was that the oil was being siphoned to Israel. But as long as the Administration sticks to using the oil to foster reconstruction—and scrupulously avoids favoring American oil interests above those of others—taking control would be justified and even expected.

Bringing democracy to Iraq also fits under the law-of-occupation banner. Since sovereignty resides with the people, an occupier can argue that it is obliged to discern popular will and that this requires basic democratic structures like political parties and elections.

The law of occupation can also help justify U.S. avoidance of certain actions. The Administration could contend that applicable conventions do not confer it with authority to preside over the dissolution of Iraq into Kurd, Sunni, and Shiite segments. Citing the fact that Germany was censured for fostering Belgian partition during World War I, the United States could refuse to do something similar in Iraq. If the United States concluded that establishing broad political freedoms would be premature in a volatile post-conflict Iraq, it could use the law of occupation to uphold the status quo—as it would have a duty to do—until changes were warranted by the goal of restoring public life.

The international community and the Iraqi opposition to Saddam Hussein should make it clear that they will judge U.S. actions in postwar Iraq against the standard set by the Hague and Geneva conventions. While European nations and others might prefer to see Iraqi reconstruction happen under a U.N. umbrella, only if the United States is accountable for the end results can the perennial problems of underfunded U.N. budgets and poorly defined mandates be avoided. For the post-Saddam Iraqi opposition, adherence to the law of occupation is a way to ensure that the U.S. presence in the region does not become the basis for a protracted neocolonialist regime.

This does not mean that the U.S. role in Iraq would be immune from criticism. If in administering the oil fields the United States were found to favor American oil companies over existing concessions belonging to France or Russia, for example, the American action would likely be judged an unwarranted departure from the status quo, invalid under the Hague and Geneva conventions. One serious obstacle to using the law of occupation is the negative connotation of the term occupation, particularly in the Middle East. But this is not a reason to avoid invoking the conventions, even leaving the "o-word" out. Those who fear an American abuse of power should recognize that these legal provisions, especially as amended in 1949, offer important protections for populations laid bare by the collapse of a government. Rather than conferring authority to occupy, the law of occupation constrains the occupier for the population's benefit.

The Administration's main reservation in invoking the law of occupation may be that it will therefore be recognizing it is subject to international law in this area. And by doing that, the United States will strengthen the case that it should hew to international norms on other issues—something it has been loath to do. By referring to the law of occupation, the United States may legitimize itself, but it also risks legitimizing international law. Given the delays, detours, and frustrations it suffered in its effort to start the war without that legitimacy, it is reasonable to hope that the Bush Administration will recognize the advantages of ending the war with it.

Suzanne Nossel is a former senior adviser to Richard C. Holbrooke, U.S. Ambassador to the United Nations.