Reflections on the Law of Occupation: Afghanistan and Iraq
A recent New York Times article discussed, in part, the occupations of Iraq and Afghanistan, raising important, yet underexplored, questions about occupations under the law of armed conflict (LOAC). The article focuses primarily on the U.S. armed forces’ transition from a combat mission in Iraq to one meant to “advise, assist and enable” Iraqi forces fighting the remnants of ISIS.
However, the article’s characterization of the occupations in Iraq and Afghanistan stood out. Specifically, the article stated, “Thursday’s announcement comes just months after the withdrawal from Afghanistan following a 20-year occupation that Mr. Biden said the United States could no longer justify.” Concerning Iraq, the article quoted a representative from an Iranian-backed militia group in Iraq stating, “[i]f U.S. forces do not withdraw at the end of the year, it can be defined only as an occupation.”
As the conflicts in Afghanistan and Iraq are either ending or transforming, it is important and timely to reflect upon the application of the LOAC in those conflicts. The article mentioned above raises issues about “occupations” in Afghanistan and Iraq. This post provides a brief orientation to occupations under the LOAC and then discusses the contexts of Afghanistan and Iraq while addressing specific comments in the New York Times article.
The Law of Occupation: A Brief Orientation
The law of belligerent occupation is a discrete subset of the LOAC. It is embodied in select provisions of the 1899 and 1907 Hague Regulations and the 1949 Fourth Geneva Convention. It is also reflected in customary international law. Other treaties address aspects of the law of occupation including the 1977 Additional Protocol I and the 1954 Hague Cultural Property Convention as well as others. For the United States, as well as other States, occupation law is fleshed out further in military regulations and policy. Finally, international human rights law is applicable and relevant to occupations; however, it will not be addressed in this post in any meaningful way.
The portions of the Hague Regulations and the Fourth Geneva Convention addressing occupations emphasize different underlying purposes. Formulated before two world wars, the Hague Regulations focus on property rights and interests of States. As noted by Professor Yoram Dinstein, “[a]lthough the life and liberty of inhabitants are also safeguarded in the Hague Regulations, this is done in a more abstract manner.” (at 10) The Fourth Geneva Convention supplements the Hague Regulations. Not surprisingly, the Fourth Geneva Convention, adopted in the aftermath of the atrocities committed in occupied territories in World War II, rewrote, expanded, and transformed the law of occupation emphasizing humanitarian aims.
Articles 42 and 43 of the Hague Regulations provide the organizing principles of the law of occupation. Article 42 provides the trigger and scope of occupation law. Specifically, it provides that territory is occupied when “it is actually placed under the authority of the hostile army.” Longstanding U.S. military doctrine restated that standard, observing that occupation “is invasion plus taking firm possession of enemy territory for the purpose of holding it.” (para. 352)
The existence of an occupation is a matter of fact. Characterizations by the occupying or occupied powers are not controlling. The scope of an occupation is limited to the territory where authority has been established and can be exercised. Article 43 provides as follows: “[t]he 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.” Put differently, the law of occupation rests on the fundamental premise that an occupation is a temporary arrangement and any alteration of the existing order should be minimal.
The Fourth Geneva Convention was the first multilateral treaty devoted to the protection of the civilian population. If the law of occupation is conceived as a trusteeship (which some respected commentators reject because it is not a relationship built on trust), the Fourth Geneva Convention makes civilians and the civilian population the primary beneficiaries of the trust. Article 27 of the Fourth Geneva Convention specifies some of the safeguards for protected persons in occupied territories. They are, in part, as follows: “[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.”
Given the above, what is the best way to characterize the occupations in Afghanistan and Iraq?
As a threshold matter, the occupation did not last twenty years as asserted in the New York Times article. The United States, with the support of the British, began a bombing campaign against Taliban-controlled Afghanistan on or about October 7, 2001. In the early phase of this international armed conflict, U.S. Special Forces partnered with the Northern Alliance and ethnic Pashtun anti-Taliban forces in their fight against the Taliban. The first wave of conventional forces arrived later in October. The United Nations invited major Afghan actors, not including the Taliban, to a conference in Bonn, Germany. On 5 December 2001, the parties signed the Bonn Agreement establishing an interim government led by Hamid Karzai and endorsed by United Nations Security Council Resolution 1383. On 20 December 2001, the United Nations Security Council authorized an International Security Assistance Force to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas.
For the limited period of November and December, the United States and its coalition partners may have exercised effective control over some portions of Afghanistan triggering occupation law in those areas. However, to the degree this happened at all, it was limited. Very few U.S. and coalition forces featured in the invasion of Afghanistan. And, those involved either fought the Taliban and al Qaeda or supported others like the Northern Alliance that were doing the same. Additionally, once a new Afghan government took control and the armed conflict transformed from an international to a non-international one, any occupation ended.
The bottom line is that the occupation of Afghanistan did not last anywhere near 20 years. For the overwhelming majority of that time, the United States and other States were there only with the consent of the Afghan authorities or an Afghan government. Accordingly, occupation law did not apply for most of that time.
From the perspective of legal policy, the approach taken by the United States and its coalition partners was arguably prudent. That is, they expeditiously turned control of the government over to the Afghans. In doing so, they did not become occupying powers for any lengthy period or in any significant way. Having said that, there has been and will continue to be sharp criticism over what went wrong in Afghanistan for the past twenty years. With the rapid collapse of the Afghan government and military and the chaotic withdrawal of U.S. and fortunate Afghans, there is a lingering bitter taste over this conflict. But, it is important to highlight the myriad of shortcomings in Afghanistan were not related to occupation law. Iraq, on the other hand, was very different.
By way of background, on or about March 19, 2003, coalition forces launched cruise missiles and stealth aircraft sorties to decapitate the leadership of the Iraqi Baathist regime. At approximately the same time, coalition ground forces began to move into Iraq. These forces, supported by a robust air campaign and special operations forces, were able to overwhelm and defeat Iraqi forces and capture major cities in just a few weeks. U.S. President Bush declared the end of major combat operations on May 1, 2003 from the deck of the aircraft carrier USS Abraham Lincoln.
Unlike Afghanistan, there was no question that an occupation was triggered in Iraq. Although there was a time lapse between the invasion and occupation, it did not last long. Ambassador Paul “Jerry” Bremer, administrator for the occupation government—the Coalition Provisional Authority (CPA)—arrived in Baghdad on May 12, 2003 with a broad mandate and plenary authority. The occupation was scheduled to end on June 30, 2004, with the assumption of full responsibility by an interim government of Iraq. The CPA transferred authority to that interim government on June 28, 2004. After that point, the continued presence of coalition forces in Iraq and the scope of their activities was based upon an invitation of the new Iraqi Government. As a practical matter though, little changed in the immediate aftermath of the termination of the occupation in terms of security and violence.
The causes and consequences of the Iraq occupation’s shortcomings are well documented. They include, but are not limited to, poor planning and execution, inadequate occupation forces, and ill-conceived policies and practices. Two early decisions were exceptionally noteworthy and controversial. In May 2003, Coalitional Provisional Authority Order Number 1: De-Ba’athification of Iraqi Society purged some 30,000 senior Ba’ath party members from public employment. That same month, Coalition Provisional Order Number 2: Dissolution of Entities dissolved government entities including the military, intelligence, and national security organizations.
Bremer’s approach to de-Ba’athification excluded Iraqi civil servants who had valuable skills, historical knowledge, and experience. Overnight, the CPA dismissed 120,000 Iraqis from their positions. Arguably, even more detrimental to the success of the Iraq occupation was an edict targeting the military and intelligence services. Bremer gave approximately 400,000 pink slips to military personnel. Beyond antagonizing the targets of the orders, a large pool of well-trained fighters and security personnel were motivated and incentivized to fight against the occupying powers or support those that did. It is important to note that occupying powers have authority to issue orders, regulations, and legislation as part of their mandate to administer the occupied territory. This authority includes expunging certain laws. But, having the authority to make or change laws does not equate to making good decisions.
The New York Times article comment that, “[i]f U.S. forces do not withdraw at the end of the year, it can be defined only as an occupation” is incorrect. The United States is not an occupying power and has not been an occupying power since 2004 when the CPA returned authority to the Iraqi government. United States forces have been and continue to be in Iraq only with the consent of Iraq. The term and concept “occupation” has specific legal meaning, and consequences. Used colloquially and imprecisely, the term and concept of an “occupation” lose its normative significance under the law of armed conflict leading to confusion.
It is impossible to overstate the importance of planning and, relatedly, appreciating the magnitude of the obligations undertaken as an occupying power. Candidly, to the degree that authority can be returned to the sovereign power as soon as possible or never assumed at all, it is usually better for the occupying power. To undertake the obligations to restore order, governance, economic activity, and basic services quickly and with limited resources is a recipe for failure. This is particularly true when the occupied State is significantly degraded as with Iraq.
Regarding Iraq, the U.S. Department of State undertook exhaustive planning through its “The Future of Iraq Project.” Inspired by a conference at Columbia University in the fall of 2001, the effort was broad, voluntary, and melded the talents, experiences, and expertise of Iraqis in the service of a new Iraq. The Future of Iraq Project was an interagency effort that included seventeen federal agencies. When completed, it had assembled 240 Iraqis representing every ethnic group and major political party to address tough issues relating to education, health care, sanitation, agriculture, infrastructure, energy, security, governance, rule of law, and public finance among others. Regrettably, for a variety of reasons, the findings of The Future of Iraq Project did not contribute in a meaningful way to the occupation and reconstruction efforts.
There are certainly other hard lessons to learn from the occupation of Iraq including: the relationship and lack of coordination between the U.S. military and the civilian leaders of the occupation; financial mismanagement and corruption; Abu Ghraib and its aftermath; security lapses; and failure to provide basic services like electricity, health care, and education among many others. These and other issues need to be adequately planned and resourced if an occupying power is to meet its obligations under LOAC.
There are also underexplored, thought-provoking questions raised by Iraq and other occupations. For example, the question of transformative occupation remains one of the enduring fault lines of the law of occupation. As eloquently framed by Sir Adam Roberts, “[w]ithin the existing framework of international law, is it legitimate for an occupying power, in the name of creating the conditions for a more democratic and peaceful state, to introduce fundamental changes in the constitutional, social, economic, and legal order within an occupied territory?” Put in a slightly different manner, how does one justify fundamentally changing an occupied State considering the clear conservationist principles and rules embodied in the Hague Regulations? Relatedly, what, if any limitations, are there on the United Nations Security Council taking actions that derogate from the law of occupation in a given case or issue? These, among many other, challenging issues were raised in the occupation of Iraq.
The term and concept of “occupation” has a well-defined meaning and understanding under LOAC. Once triggered, usually in the aftermath of an invasion, an array of obligations are required by LOAC. Accordingly, care should be taken to avoid terminological imprecision. Afghanistan, and to a much greater extent Iraq, provided a plethora of lessons to be learned by future occupying powers. Difficult questions about the application of occupation law remain unresolved. But, given a future where more international conflict is likely, it is an area of LOAC that needs more attention and exploration.
Brigadier General (ret.) David A. Wallace previously served as the Professor and Head, Department of Law, United States Military Academy, West Point, New York, and has been designated a Professor Emeritus. The views expressed in this work are those of the author and do not reflect the official policy or position of the United States Naval Academy, United States Military Academy, the Department of the Navy or Army, or the Department of Defense.