Legislative Reform in Post-conflict Zones:
Jus Post Bellum and the Contemporary
Occupants Law-Making Powers
Kristen Boon*
in
assuming
legislative
Iraq, Kosovo, and East Timor
This article distinguishes the traditional concepts
of jus ad bellum and jus in bello (law of war and law in
war) from the new doctrine of jus post bellum (law of
post-war reconstruction). The author examines jus post
bellum in light of the recent non-consensual legal
reforms
to
demonstrate how international bodies and coalitions are
increasingly
functions,
legitimately and otherwise, in the context of their duties
as
large degree of
discretion conferred upon these administrators does not
always ensure adequate
trusteeship,
accountability, and proportionality, which are integral
to the stability of post-conflict zones. The author
contends that a distinct jus post bellum framework that
incorporates these principles of justice would allow for
a more systematic and comprehensive approach to
legal reform in occupied territories, which would in
turn
legitimate self-
government.
interim administrators. The
transition
to
facilitate
the
levels of
fonctions
Cet article distingue les concepts traditionnels de
jus ad bellum et de jus in bello (le droit la guerre et le
droit dans la guerre) de la nouvelle doctrine du just post
bellum (droit de la reconstruction aprs la guerre).
L’auteur se penche sur le jus post bellum suite aux
rformes juridiques non consensuelles en Irak, au
Kosovo et au Timor oriental pour montrer comment les
coalitions et organes internationaux sattribuent de plus
en plus souvent des
lgislatives
lgitimement ou non parmi leurs tches en tant
qu’administrateurs intrimaires. Le degr lev de
discrtion dont bnficient ces administrateurs ne
garantit pas toujours des niveaux adquats de saine
gestion, de responsabilit et de proportionnalit,
essentiels la stabilit de territoires qui ont t le
thtre dun conflit. Lauteur avance quun cadre de jus
post bellum distinct incorporant ces principes de justice
conduirait une approche plus systmatique et
complte la rforme juridique dans les territoires
occups, ce qui son tour faciliterait la transition vers
un gouvernement autonome lgitime.
* J.S.D. candidate, Columbia Law School. Very special thanks to Michael Doyle for his direction
and guidance, and to Simon Chesterman, Lori Damrosch, Robert Ferguson, Chimne Keitner, Hoi
Kong, Sam Issacharoff, Roland Paris, and David Wippman for comments on earlier drafts of this
article. Thanks also to Jose Alvarez, David Dyzenhaus, and Thomas Franck for very helpful
discussions. I would like to acknowledge the generous financial support of the Sheldon M. Chumir
Foundation for Ethics in Leadership, and the excellent research assistance of Hanna Schmitt and
Ephrat Livni.
Kristen Boon 2005
To be cited as: (2005) 50 McGill L.J. 285
Mode de rfrence : (2005) 50 R.D. McGill 285
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Introduction: Ethics and Law Making in Occupied Territories
A. Two Distinctions: Identity of the Actor and Nature of the
Intervention
B. Jus Post Bellum
C. The Rule of Law and Some Principles of a Jus Post Bellum
1. Trusteeship
2. Accountability
3. Proportionality
II. The Context of Law Making in Post-conflict Zones and
Occupied Territories
III. The Authority of International Actors to Alter Domestic
Laws and Legal Systems
A. The Legislative Capacities of Occupying Powers
B. The Ineffectiveness of the Legislative Provisions of the
Laws of Occupation and the Principles of Jus Post Bellum
C. The Contemporary Occupant: The CPA in Iraq
D. The Legislative Capacities of the UN Civil Administrations:
UNMIK and UNTAET
E. The Scope of the Legislative Power of the UN Missions
F. Jus Post Bellum Principles in the UN Missions
IV. Legal Reform and Proportionality
V. Conclusion
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I. Introduction: Ethics and Law Making in Occupied Territories
Legal reform in occupied and administered territories has become a key element
in post-intervention reconstruction plans. In Kosovo, East Timor, and Iraq,
international organizations, occupying powers, and private hired guns are taking on
the business of law making. The legitimacy and success of post-conflict interventions
are closely linked to the ability of the intervening powers to establish functioning
legal systems and to ensure law and order. As the United Nations secretary-general
stated in his 2004 report on the rule of law in post-conflict zones, Justice, peace and
democracy are not mutually exclusive objectives, but rather mutually reinforcing
imperatives.1 Where this exercise has failed, the legitimacy and authority of interim
international administrations have faced serious challenge.2
The expanding role of international players in the reform of domestic legal
systems demonstrates a shift away from what was traditionally an essential attribute
of sovereignty: the exclusive right of a sovereign to make laws within its jurisdiction.3
This article surveys the legal reforms that have taken place in the contemporary
occupations in Kosovo, East Timor, and Iraq in order to demonstrate how
international actors are increasingly operating within this area of state domain.
Because legal reform in post-conflict zones is now central to the reconstruction effort,
I argue that a more coherent legal and ethical frameworka jus post bellum based on
the principles of trusteeship, accountability, and proportionalityis required to
establish the rule of law in the context of interim international administrations.
A. Two Distinctions: Identity of the Actor and Nature of the
Intervention
Two categories related to legal interventionism must be distinguished at the
outset. First, this article examines two different legislative actors: the belligerent
occupant bound by the laws of war, such as the Coalition Provisional Authority
(CPA) in Iraq, and the multilateral interim administration or functional occupant,
1 Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-
Conflict Societies, UN SC, UN Doc. S/2004/616 (2004) 1 [Report of the Secretary-General].
2 The problems arising from the absence of law, order, and security in post-conflict zones are well
documented. See e.g. David Zucchino, After the War / Law and Order Los Angeles Times (22 April
2003) A-12; Peter Slevin, Baghdad Anarchy Spurs Call for Help; Iraqis, U.S. Officials Want More
Troops Washington Post (13 May 2003) A-01; Dionisio Babo-Soares, Law and Order: Judiciary
Development in East Timor (Council for Asia Europe Co-operation, 2001) at 11-12; Andrew Roche,
Law and Order is Kosovos Achilles Heel Reuters (26 December 1999).
3 See Ian Brownlie, Principles of Public International Law, 6th ed. (Oxford: Oxford University
Press, 2003) at 291 (stating that while certain limits on the permissible content of laws exist by virtue
of international law, the basic competence of a state to legislate within its domestic jurisdiction is
inherent in the concept of sovereignty).
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such as the UN Missions in Kosovo and East Timor.4 The differing scopes of
legislative powers accorded to each is analyzed in Section III.
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Second, two types of intervention must be differentiated: consensual and non-
consensual intervention. National sovereignty is not infringed where foreign legislative
intervention is consensual because the consent acts as a source of privilege for the
actions taken by a foreign state.5 In the wake of political transformations in Eastern
Europe and South Africa, for example, armies of lawyers, judges, and legislative experts
were invited to assist in redrafting national laws and constitutions. Similarly, the UN
Chapter VI operations in El Salvador (ONUSAL) and Cambodia (UNTAC), which
reshaped aspects of the legal and judicial systems, took place at the invitation of those
states.6 The success of these missions has in fact been attributed to enhanced state
consent in the process of reconciliation, rehabilitation, and self-determination.7
Non-consensual legal interventionism (where a state does not consent to foreign
law making) does impinge upon national sovereignty.8 This is because the territorial
state is administered by a temporary legal representative that does not assume the
states sovereignty.9 After Saddam Husseins government was ousted in Iraq, for
example, the United States and the United Kingdom created a temporary occupation
government, the CPA, which was accorded certain powers pursuant to the Geneva
Conventions and Security Council Resolutions. The sovereignty of the state of Iraq
was retained (or embodied) by the Governing Interim Council (GIC).10 The UNs
interventions in Kosovo and East Timor were similarly non-consensual. Acting under
Chapter VII of the UN Charter, the Security Council established the United Nations
Mission in Kosovo (UNMIK) and the United Nations Transitional Administration
4 One of the best known modern occupations is Israels occupation of the Palestinian Territories.
This long-term occupation is outside the scope of the present article given my focus on temporary,
contemporary, and internationally sanctioned administrations. For a discussion of the occupation of
the West Bank, see generally Adam Roberts, Prolonged Military Occupation: the Israeli-Occupied
Territories Since 1967 (1990) 84 A.J.I.L. 44, and Emma Playfair, ed., International Law and the
Administration of Occupied Territories (Oxford: Clarendon Press, 1992).
5 See Brownlie, supra note 3 at 106 (on the relationship between consent and sovereignty).
6 See Timothy A. Wilkins, The El Salvador Peace Accords: Using International and Domestic Law
Norms to Build Peace in Michael W. Doyle, Ian Johstone & Robert C. Orr, eds., Keeping the Peace:
Multidimensional UN Operations in Cambodia and El Salvador (New York: Cambridge University
Press, 1997) 255.
7 See Michael Doyle et al., Strategies for Peace: Conclusions and Lessons in Doyle et al., ibid.,
369 at 386.
8 It should be noted that the occupation or administration may be non-consensual but still legal. An
occupation is legitimate if the occupant is a belligerent under the laws of war or if the administration
takes place pursuant to Security Council authorization.
9 See Brownlie, supra note 3 at 107.
10 See SC Res. 1511, UN SC, 4844th Mtg, UN Doc. S/RES/1511 (2003) para. 4.
K. BOON LEGISLATIVE REFORM IN POST-CONFLICT ZONES
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in East Timor (UNTAET) without the consent of the territorial sovereigns, namely
the Former Yugoslavia (today Serbia-Montenegro) and Indonesia respectively.11
289
This article focuses on cases of non-consensual legal reform in order to explore
the outer limits of international intervention in domains normally reserved to the state.
These developments add fodder to the already well-established canon that traditional
notions of the sanctity of state sovereignty are dissolving. More importantly, recent
examples of international legal reform show how international legislators can operate
with nearly untrammeled discretion, above the checks and balances that the rule of
law ordinarily requires. While the focus of this article is on non-consensual legal
reform, its recommendations are applicable to a range of contemporary situations,
including peace treaties concluded under Chapter VI of the UN Charter which often
leave open-ended issues (including legal reform) to the discretionary authority of the
interim administrators.12
B. Jus Post Bellum
To date, the literature on ethics and the rule of law in the context of post-conflict
legal reconstruction has been sparse and the issue remains under-theorized. In Just
and Unjust Wars, Michael Walzer addressed questions of post-conflict reconstruction,
largely in the context of peace settlements.13 He returned to reconstruction after the
invasion of Iraq. In an essay entitled Just and Unjust Occupations, he states that
we need criteria for jus post bellum that are distinct from (though not wholly
independent of) those that we use to judge the war and its conduct.14 Where the
literature exists, it has sometimes proceeded by grafting aspects of the just war rules
of initiating war and the just war law of conduct in war onto the post-war context of
11 In the case of Kosovo, the Former Yugoslavia was the territorial sovereign and its non-consent to
the Security Councils actions was explicit. Although Indonesia claimed to be the territorial sovereign
of East Timor, its status was disputed by Portugal, among others, as the International Court of Justice
case on that issue made clear. See Case Concerning East Timor (Portugal v. Australia), [1995] I.C.J.
Rep. 90. Non-consent to intervention can nonetheless be inferred from the Security Councils
decision to act under Chapter VII of the UN Charter, which is an exception to UN Charter Art. 2(7);
Art. 2(7) provides that the organization is not authorized to intervene in matters which are essentially
within the domestic jurisdiction of any state.
12 The concept of open-endedness in the mandates of the UN Missions in Cambodia and El
Salvador is noteworthy. Doyle, Johnston & Orr recommend that architects of UN operations
incorporate as much scope for independent implementation as possible because of the impossibility of
anticipating the nature of the contingencies that may arise (Michael Doyle, Ian Johnstone & Robert C.
Orr, eds., Keeping the Peace: Multi-Dimensional UN Operations in Cambodia and El Salvador
(Cambridge: Cambridge University Press, 1997).
13 Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977) at c. 7 [Walzer, Wars].
14 Michael Walzer, Just and Unjust Occupations in Arguing About War (New Haven, CT: Yale
University Press, 2004) at 163 [Walzer, Occupations].
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the so-called just peace.15 Jus post bellum, or the justice of post-war settlements and
reconstruction, is assumed to draw on similar principles as jus ad bellum (law of war)
and jus in bello (law in war).16 In my view, the question that requires analysis in the
post-conflict reconstruction phase is whether the exercise of law-making authority by
international administrations is legitimate, just, and ethical. This proposed separation
of doctrines requires explanation.
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First, as a matter of principle, there is no necessary link between the principle of
justice as it applies to the cause of war, conduct in war, or reconstruction after war.
For example, international humanitarian law clearly separates the reasons for war
from the rules of conduct in war. As Adam Roberts explains, international law makes
no distinction between a lawful and an unlawful occupant in dealing with the
respective duties of occupant and population in occupied territory.17 Similarly,
Common Article 2 of the Geneva Conventions states that the Conventions apply to all
cases of declared war or other armed conflict, even if the state of war is not
recognized by one of the signatories, and to all cases of partial or total occupation.18
The 1977 preamble to Protocol 1 to the Geneva Conventions provides that the
provisions apply in all circumstances without distinction based on the nature or
origin of the armed conflict.19 These distinctions between the reasons for war and
conduct in war are based on the powerful premise that no matter what the cause of
war, all wars should be fought humanely.
This rationale for separating jus ad bellum from jus in bello should similarly
apply to jus post bellum. No matter what the cause of war, and no matter how wars
are fought, a jus post bellum requires that international authorities and occupants who
assume governing and legislative duties exercise their powers according to certain
principles of justice. The contention that jus ad bellum or jus in bello cannot be
dissociated from jus post bellum (because a just post-war order is inherently linked to
the reasons for war or the method of waging war and the type of peace that is
wrought) is not categorically true. It is possible to imagine that a war fought
15 See Brian Orend, Justice After War (2002) 16(1) J. Ethics & Intl Affairs 43 at 44, where he
states that those principles … offer a coherent set of plausible values to draw on while developing an
account of just war settlement.
16 See ibid.; Walzer, Wars, supra note 13 at 123. See also Walzer, Occupations, supra note 14,
where he writes that we need criteria for jus post bellum that are distinct from (though not wholly
independent of) those that we use to judge the war and its conduct; and Robert Keohane, Political
Authority after Intervention: Gradations in Sovereignty in J.L. Holzgrefe & Robert O. Keohane,
eds., Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge, U.K.:
Cambridge University Press, 2003) at 275-98.
17 Adam Roberts, What is Military Occupation (1984) 55 Brit. Y.B. Intl L. 249 at 294.
18 See e.g. Convention relative to the Protection of Civilian Persons in Time of War, 12 August
1949, 75 U.N.T.S. 287, art. 2, 6 U.S.T. 3516 (entered into force 21 October 1950) [Fourth Geneva
Convention].
19 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of International Armed Conflicts (Protocol I) (with Annexes), 6 August 1977, 1125
U.N.T.S. 3, Can. T.S. 1991 No. 2.1 (entered into force 12 July 1978).
K. BOON LEGISLATIVE REFORM IN POST-CONFLICT ZONES
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inhumanely can still be terminated in accordance with justice, or that a peace
agreement, although imposed, is just and equitable.20
291
The more compelling objection to the proposed separation of doctrines is that it
would be unjust to allow aggressors the range of powers accorded to legitimate
belligerents. While occupants are given great powersabnormal powers according
to Gerhard von Glahnwhich are permissive and prohibitive in equal parts, an
aggressor should perhaps not be permitted to take advantage of the permissive rights
of occupation.21 Although attractive on its surface, this argument is problematic in two
ways. First, it is not easy to concur on who is an aggressor. What may be a just war
for some is thinly disguised neo-colonialism for others. It is not surprising that the
interventions in Kosovo, East Timor, Afghanistan, and Iraq remain extremely
controversial.22 Second, even aggressors should be held to certain bedrock principles
of governance. A clear baseline of legal and ethical jus post bellum principles should
be demarcated for international actors and authorities involved in legal reform
regardless of the provenance of their presence or their motivations for intervening.
Under certain circumstances their responsibilities may be augmented,23 but this
heightened standard does not detract from the common limits which should inform
the exercise of the legislative powers they assume.
The suggested separation of the doctrines of jus ad bellum, jus in bello, and jus post
bellum is also logical in light of the different foundational principles of each. Jus ad
bellum refers to the right to resort to force under contemporary international law.24 It
grew out of the teachings of Saints Augustine and Thomas Aquinas, who sought to
delineate the circumstances under which war was permissible.25 Because the right to
wage aggressive war was abolished by the Kellogg-Briand Pact of 1928 and the UN
Charter of 1949, jus ad bellum fell into disuse until recent discussions about
humanitarian intervention revived interest in the doctrine.26 The purpose of jus ad
bellum, to delineate the right to wage war, has little bearing on the central tasks of post-
conflict reconstruction: the establishment of law and order, preparation for free elections,
20 See Walzer, Occupations, supra note 14 at 163. Compare Orend, supra note 15.
21 Gerhard von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and
Practice of Belligerent Occupation (Minneapolis: University of Minnesota Press, 1957) at 6. See also
Walzer, ibid.; and Roberts, supra note 17 at 294.
22 See e.g. John Tirman, The New Humanitarianism Boston Review 28 (December 2003/January
2004) 24, online: Boston Review
23 See International Commission on Intervention and State Sovereignty, The Responsibility to
Protect: Report of the Commission on Intervention and State Sovereignty (Ottawa: International
Development Research Centre, 2001) [The Responsibility to Protect] at para. 5.1, which links the
responsibility to intervene with a concomitant responsibility to rebuild.
24 See Ingrid Detter, The Law of War, 2nd ed. (Cambridge: Cambridge University Press, 2000) at 157.
25 See Thomas M. Franck, Fairness in International Law and Institutions (New York: Oxford
University Press, 1995) at 246-47.
26 See Detter, supra note 24 at 157; Franck, ibid. at 247.
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establishment of the groundwork for independent institutions and the recognition of
fundamental rights and liberties with the aim of eventual self-governance.
[Vol. 50
Jus in bello is similarly distinct. Jus in bello seeks to reduce the consequences of
war to non-combatants, particularly to groups requiring extra protection such as the
wounded, women, and children. The fundamental principles of jus in bello are
necessity (the degree of force used and the selection of military targets),
proportionality (which restricts the right to cause injury to civilians in excess of
concrete military gains), and humanity (which places limits on the methods and
means of warfare that are considered humane).27 These principles are both narrower
and different from the requirements of post-conflict reconstruction set out above.
The separation of jus post bellum from jus ad bellum and jus in bello does not
suggest that the principles underlying these three legal concepts are wholly
independent of one another, or deny that the perceived legitimacy of international
interventions will influence popular support for the scope of the reconstruction
mandate. The underlying purpose of international humanitarian law is irrefutably
connected to other branches of law that bear on post-conflict reconstruction, namely
international human rights and refugee law. All are concerned with the protection of
life, health, and dignity, and with punishing torture and establishing a framework to
ensure that fundamental guarantees are respected.28 In addition, the Hague
Regulations29 and the Fourth Geneva Convention,30 which codify jus in bello, contain
certain binding parameters that limit the legislative powers of belligerent occupants. It
would be wrong, however, to emphasize the similarities in these legal doctrines so as
to mask their very different foundations. Jus post bellum has distinct end goals: to
establish security, create the political and economic basis for independence, and
promote a democratic process. A jus post bellum is derived in part from the
international communitys interest in establishing and maintaining peace and order
under Chapter VII of the UN Charter, but more substantially from the general human
rights norms and the right to self-determination that have emerged since WWII.
27 See Detter, ibid. at 164-65 and 241.
28 See Jakob Kellenberger, International Humanitarian Law and Other Legal Regimes: Interplay in
Situations of Violence (2003) 85 Intl Rev. Red Cross 645 at 646.
29 Regulations respecting the Laws and Customs of War on Land, annexed to Convention respecting
the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2277 [Hague Regulations].
30 Supra note 18.
2005]
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C. The Rule of Law and Some Principles of a Jus Post Bellum
Recent peacekeeping and peace-enforcement
experiences have indicated … that the most
fundamental requirement, and a primary objective,
of a lasting peace is the reestablishment of the rule
of law.31
In its broadest terms, the rule of law requires that political authority be subject to
predetermined principles, and that the exercise of discretion take place within certain
limits.32 The rule of law and majority rule are generally considered to be the two core
concepts of democracy. In post-conflict zones, the rule of law plays a special role: it
enables wary former adversaries all to play a vital role in keeping the new order
honest and trustworthy by establishing rules that constrain the power of all parties,
protect the rights of all individuals, and provide for the settlement of disputes.33 The
process of legal reform is of critical import because it determines who is involved in
the discussion and what fundamental values are incorporated into the new legal
order.34
31 Mark Plunkett, Reestablishing Law and Order in Peace-Maintenance (1998) 4 Global
Governance 61 at 63. See also Hansjorg Strohmeyer, Collapse and Reconstruction of a Judicial
System: The United Nations Missions in Kosovo and East Timor (2001) 95 A.J.I.L. 46 at 47. Paddy
Ashtown makes a similar observation with regard to Bosnia: In Bosnia, we thought that democracy
was the highest priority and we measured it by the number of elections we could organize. In
hindsight, we should have put the rule of law first, for everything depends on it: a functioning
economy, a free and fair political system, the development of civil society, and public confidence in
police and courts. We should do well to reflect on this as we formulate our plans (Paddy Ashtown,
What I Learned in Bosnia, online:
32 The current discussion can only set out a basic definition of this controversial concept. For a rich
account of its various forms, see David Dyzenhaus, ed., Recrafting the Rule of Law: The Limits of
Legal Order (Oxford: Hart Publishing, 1999). It is interesting to note that the secretary-general has
promulgated an international definition of the rule of law in his 2004 report; it is a principle of
governance in which all persons, institutions and entities, public and private including the state itself,
are accountable to laws that are publicly promulgated, equally enforced and independently
adjudicated, and which are consistent with international human rights norms and standards (Report
of the Secretary-General, supra note 1 at para. 6). In so doing, the secretary-general supposes that the
rule of law has a substantive requirement: conformity with international human rights norms and
standards, which is in contrast to the dominant conception that the content of the law is separate from
the procedural requirements of validly enacted laws, such as generality, clarity, stability, prospective
application, etc.
33 Neil J. Kritz, The Rule of Law in the Postconflict Phase: Building a Stable Peace in Chester A.
Crocker & Fen Osler Hampson, eds., Turbulent Peace: The Challenge of Managing International
Conflict (Washington, D.C.: United States Institute of Peace Press, 2001) at 802.
34 The role of constitutions in transitional societies has been addressed by Ruti Teitel, Human
Rights in Transition: Transitional Justice Genealogy (2003) 16 Harv. Hum. Rts. J. 69 at 70-71 and
90, and Samuel Issacharoff, Constitutional Courts in the Field of Power Politics: Constitutionalizing
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Jus post bellum requires that international authorities exercise their temporary
legislative powers in accordance with certain principles of justice. I propose three
such principles that are already apparent (whether implicitly or explicitly) in the
occupation context: trusteeship, accountability, and proportionality. These principles
assist in establishing the rule of law and are consistent with general principles of
human rights and self-determination. The core content of these principles are outlined
here, and will be applied in greater detail in subsequent sections.
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1. Trusteeship
It has been said that trusteeship is implicit in any occupation.35 Conceptually,
trusteeship exists in domestic and international contexts where persons or entities are
incapable of functioning on their own.36 In the occupation context, this trust
relationship exists because the economic, social, and proprietary control and
discretion held by the occupant leaves local populations vulnerable to the risk of
misconduct.37 Historically, trusteeship is manifest in the UNs trusteeship system,
under which member states and the UN together undertook to promote the political,
economic, social, cultural, and educational well-being of the territorys inhabitants.
Trusteeship is also implied by the obligations placed on occupying powers under the
Geneva Conventions. Trusteeship creates concurrent legal and ethical obligations for
an occupant to act in the best interests of the population and to exercise a reasonable
standard of care in undertaking its duties. It also prohibits the occupant from self-
dealing, or from benefiting from the trust.38
2. Accountability
Accountability requires answerability of the government to the citizens of the
occupied territory and to the international community.39 At its core is the notion of
responsibility, manifest through both procedural and substantive limits on action, and
Democracy in Fractured Societies (2004) Tex. L. Rev. 1861. On the process of legal reform, see
generally Daniel Berkowitz et. al., The Transplant Effect (2003) 51 Am. J. Comp. L. 163.
35 See Roberts, supra note 17 at 295; and von Glahn, supra note 21 at 668, n. 18.
36 See Gerald B. Helman & Steven R. Ratner, Saving Failed States Foreign Policy 89 (Winter
1992-93) at 12 (discussing how domestic notions of guardianship and bankruptcy are analogous to an
international conservatorship).
37 For a Canadian account of the elements of a fiduciary duty, see e.g. Wewaykum Indian Band v.
Canada, [2002] 4 S.C.R. 245 at para. 80, 220 D.L.R. (4th) 1, 2002 SCC 79, Binnie J. [cited to
S.C.R.].
38 For a discussion of the basic requirements of a fiduciary in international law, see Christopher
Weeramantry, Nauru: Environmental Damage Under International Trusteeship (Melbourne: Oxford
University Press, 1992) at 153, 227-30.
39 In the post-conflict context, the concept of accountability often arises in reference to prosecutions
for past crimes, truth and reconciliation commissions, and other transitional justice mechanisms. For
the purposes of the present analysis, however, accountability is used to refer to public authority rather
than individual criminal responsibility.
K. BOON LEGISLATIVE REFORM IN POST-CONFLICT ZONES
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the imposition of sanctions if those responsibilities are not met.40 Accountability
mechanisms are inherent to the democratic model in that they regulate the exercise of
public authority. For example, accountability might require monitoring, a certain
transparency of process, limits on the scope of immunities applicable to international
organizations and actors, and even liability for certain wrongful acts.41
295
3. Proportionality
Proportionality is the lynchpin between the duties of a trustee and the
responsibilities of accountability. Like accountability, the function of proportionality
is to curb the discretion of public authorities. Proportionality differs, however, in that
it acts as the measure by which aims and means are assessed and interests are
balanced. It is concerned with the interests of states and individuals, or of equal
entities, and it operates in particular where there is a public authority.42
Proportionality, therefore, responds to the need to create a measure and process
regulating the extent and nature of legal interventionism by international actors.
The potential scope of a jus post bellum is broad. This analysis will focus on how
the three elements of trusteeship, accountability, and proportionality are inherent in
the duties of international administrators and occupants, and how these principles help
to fill the gaps in the legal frameworks that exist. I will explore this general aim by
asking the following questions: What is the context of international legal
intervention? What authority do belligerent occupants or multilateral interim
administrations (functional occupants) have to create new laws in post-conflict
zones? What are the limits on this authority? And finally, how does the concept of
proportionality enable us to distinguish between the different legal and ethical
responsibilities that result from a UN-sponsored administration, or a belligerent
occupation?
II. The Context of Law Making in Post-conflict Zones and
Occupied Territories
Colonial practices provide the starting point to understanding the rights and duties
of contemporary occupants as legislators. One of the most important legacies of
European colonial practices was the export and implementation of the colonizers
40 Compare Ruth W. Grant & Bob Keohane, Accountability and Abuses of Power in World
Politics (2005) 99:1 Am. Pol. Sci. Rev. 29: Accountability … implies that some actors have the right
to hold other actors to a set of standards, to judge whether they have fulfilled their responsibilities in
light of those standards, and to impose sanctions if they determine that those responsibilities have not
been met (ibid. at 29).
41 See e.g. Committee on the Accountability of International Organisations, Final Report (2004) at
18, online: International Law Association
42 See Riccardo Pisillo Mazzeschi, Book Review of Il principio della proporzionalit
nellordinamento internazionale by Enzo Cannizzaro (2002) 13 E.J.I.L. 1031.
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legal system. Most colonial powers understood that the stability and viability of their
authority rested on some respect for local traditions. As a matter of practice, laws
supporting commerce and trade were the first to be exported, whereas laws regulating
domestic and private affairs were generally left to local customs and authorities. As
social and religious conversion took place and as involvement in a particular region
became more extensive, greater components of the colonizers legal systems were
transplanted.43 Legal reform was thus integral to the colonial project, although
justified as a means of helping the colonies to evolve toward a higher standard of
civilization.44 The balance between recognition of existing legal orders and the
extension of the colonizers laws was delicate, and the primary limits that existed on a
colonial powers ability to change local laws were practical: the colonizer retained
absolute supremacy over the colonies, but colonial laws often stood side by side with
traditional laws.45
The law of belligerent occupation has similarly recognized the right of occupying
powers to alter domestic laws, although in more defined circumstances.46 These
circumstances are narrow because of the defining features of occupations, namely: (1)
although an occupying power has direct control over all or part of a territory, that
control is intended to be temporary; (2) there is no formal transfer of sovereignty to
the occupying power; and (3) by displacing the prior ruler or rulers, the occupant
assumes certain obligations to ensure the welfare of the inhabitants of the occupied
territory. In contrast to conquest, where the invading power intends to take permanent
sovereign control, occupation is (at least in theory) transitional and non-
transformatory.47
43 See A.N. Allott, Native Tribunals in the Gold Coast (1957) 1 J. African L. 163 at 164.
44 See M.B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws
(Oxford: Clarendon Press, 1975) at 198 (discussing French colonial practices).
45 See ibid. at 2.
46 See discussion of Geneva Conventions in Part III, below.
47 See Ardi Imseis, On the Fourth Geneva Convention and the Occupied Palestinian Territory
(2003) 44 Harv. Intl L.J. 65 at 87. Imseis describes the theoretical distinction between occupation and
conquest. Occupation is a legal position falling far short of sovereignty and which comes into
operation as soon as enemy territory is occupied, whereas conquest is a situation arising when a war
comes to a close, and where the victor substitutes itself for the pre-existing sovereign in the conquered
territory. Benvenisti defines occupation as the effective control of a power (be it one or more states
or an international organization, such as the United Nations) over a territory to which that power has
no sovereign title, without the volition of the sovereign of that territory (Eyal Benvenisti, The
International Law of Occupation, rev. ed. (Princeton, NJ: Princeton University Press, 1993) at 4).
With reference to art. 42 of the Hague Regulations, the International Court of Justice has recently
defined de facto occupation as follows: territory is considered occupied when it is actually placed
under the authority of the hostile army, and the occupation extends only to the territory where such
authority has been established and can be exercised (Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep., online:
International Court of Justice
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The presumption of neutrality during occupations has generally been disproved in
practice. Most occupations have resulted in expansive legal and institutional
reforms.48 Legal reform is a high priority because the occupant usually wishes to
export its own institutions,49 or to establish a regime that will be friendly to its security
interests.50 The legal reconstructions in post-WWII Japan and Germany are illustrative
and have been called programmed installation[s] of democracy.51 As Adam Roberts
writes, here as elsewhere, the victors desired to exercise their power freely, and in
particular to make drastic political and other changes in the defeated States.52
297
The advent of UN-sponsored interim administrations has added domestic legal
reform to the international post-intervention strategy, although for somewhat different
reasons. In many post-conflict zones where the UN has intervened, human tragedy,
not ideology, has motivated legal reform. Post-intervention legal reform has often
been necessary because prior laws were discriminatory, violated international norms,
or were clearly inadequate for the needs of the country.53 Recognizing this void, the
2000 Brahimi Report advocated a quick response UN legal team that could fill the
experiential and legislative void in post-conflict situations.54 The United Nations
Development Programme, in conjunction with the Galway Centre for Human Rights
and the United States Institute for Peace, are developing model transitional draft
codes for criminal law and criminal procedure that can be implemented in transitional
post-conflict situations in order to avoid a legal vacuum.55 A report by the
International Commission on Intervention and State Sovereignty similarly states that
such justice packages should be considered an integral part of any post-
48 See generally Benvenisti, ibid., who provides a comprehensive analysis of legal reforms during
and after WWI and WWII.
49 See e.g. John M. Owen IV, The Foreign Imposition of Domestic Institutions (2002) 56 Intl
Organization 375.
50 See e.g. David M. Edelstein, Occupational Hazards: Why Military Occupations Succeed or
Fail (2004) 29 Intl Security 49.
51 John D. Montgomery, Forced to Be Free (Chicago: University of Chicago Press, 1957) at 4.
52 Roberts, supra note 17 at 268.
53 Plunkett, supra note 31 at 65; Gordon Renouf, Some Features of the Legal System in East
Timor (March 2002), online: NACLC East Timor-Australia Legal Assistance Network
the departure of the
Indonesian administration … there was no legal system in East Timor: there were virtually no intact
court buildings, no legal records, no copies of Indonesian or any other laws. Most importantly there
were no personnel equipped to operate a legal system … (ibid. at 1; footnotes omitted).
54 Identical Letters dated 21 August 2000 from the Secretary-General to the President of the
General Assembly and the President of the Security Council, UNGA, 55th Sess., UN Doc. A/55/305
(2000) paras. 76-83, UNSC, UN Doc. S/2000/809 (2000) paras. 76-83 [Brahimi Report]. See also
discussion of justice packages in Plunkett, supra note 31 at 68.
55 See the website of the United States Institute of Peace at
National University of Ireland, Galway, Irish Centre for Human Rights at
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intervention peace building strategy, pending
institutions.56
the re-establishment of
local
This linkage of intervention with internationally promulgated legal reform, and of
the rule of law with reconstruction, is illustrative of three distinct trends. First,
although the involvement of the international community in interim administrations is
not unprecedented, until a decade ago, traditional peacekeeping operations were
generally limited to the provision of security for reasons of capacity, expertise, and
authority.57 The broadening of peacekeeping mandates in Namibia, Somalia, and
Cambodia, and finally Kosovo and East Timor (where complete legislative and
executive authority were granted to the interim administrations) illustrate how the
Westphalian understanding of strict territorial sovereignty has faded away in post-
intervention contexts.58 From the perspective of interim governors, there has been an
expansion of administrative mandates to routinely include consensual, or less
routinely to include non-consensual, domestic legal reform, under Chapters VI and
VII respectively of the UN Charter.
A second trend is that citizens of territories under international or occupying
administrations are supportive of certain interventions into domestic laws.59 This
acquiescence is due in part to the pragmatic desire for law and order: legal and
political vacuums in occupied territories can lead to chaos, as the post-intervention
looting in Iraq demonstrated. But domestic support for international involvement in
legal reform has a symbolic dimension as well. From the perspective of the interim
governees, where oppressive regimes are overthrown, the legitimacy of international
administrations and occupying forces is suspect if the laws of the ousted powers
remain in force. In Kosovo for example, UNMIK originally designated the prior
applicable law in force as the Serbian law which prevailed prior to the NATO
intervention.60 An outcry from Kosovar Albanians ensued because Serbian law was
seen as the law of the oppressor.61 UNMIK therefore amended this regulation and
designated the applicable law as that in force when Kosovo was an autonomous
56 The Responsibility to Protect, supra note 23 at para. 5.14.
57 Compare Ralph Wilde, Representing International Territorial Administrations: A Critique of
Some Approaches (2004) 15 E.J.I.L. 71 at 75 (arguing that contemporary international
administrations do not mark as stark of a departure from prior peacekeeping administrations as is
often claimed).
58 See Keohane, supra note 16 at 275-98; see also Henry Schermers, Different Aspects of
Sovereignty in Gerard Kreijen, ed., State, Sovereignty, and International Governance (Oxford:
Oxford University Press, 2002) at 185-86, 191.
59 I do not claim that there has not been deep dissatisfaction with some legislative reforms in terms
of the substance and process adopted. See Part III.F, below. Nonetheless, where ethnic tensions have
run high, or where prior legal regimes were discriminatory or non-functional, local populations have
supported international legal reform as a means of moving forward.
60 See On the Authority of the Interim Administration in Kosovo, UNMIK Reg. No. 1999/1 (25 July
1999).
61 See David Marshall & Shelley Inglis, The Disempowerment of Human Rights-Based Justice in
the United Nations Mission in Kosovo (2003) 16 Harv. Hum. Rts J. 95 at 101.
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province in 1989.62 As the Brahimi Report noted: the law and legal systems
prevailing prior to the conflicts [in Kosovo and East Timor] were questioned or
rejected by key groups considered to be the victims of the conflicts.63
299
Finally, the international communitys involvement in legislative reform in post-
conflict zones is connected to the transformation of the international legal system
since WWII. Instruments in the fields of human rights law, international criminal law,
international humanitarian law, and international refugee law have created a new
rights framework, of which the international community is the custodian.64 The debate
about the universalism of those rights is beyond the scope of the present analysis,
but it is important to note that the promulgation and enforcement of individual and
group rights through the international system has guaranteed international institutions
both legitimacy and a privileged role in determining the normative content of these
rights.65
International criminal law is particularly relevant to the legitimacy of international
involvement in reconstruction and legal reform. International tribunals or transitional
justice mechanisms such as ad hoc tribunals, truth and reconciliation commissions,
vetting, and the prosecution of perpetrators in domestic or international fora have
become an international priority.66 Ruti Teitel has described this as a shift from
transitional justice within the scheme of international law to justice-making as an
element of nation-building.67 These measures have often been implemented with
international assistance, leading to the development of shared standards and expertise.
The convergence of these three trends has led to something akin to a
predisposition toward international involvement in post-conflict legal reconstruction.68
The secretary-general has recently rejected a piecemeal approach to transitional
justice and the rule of law, calling instead for comprehensive plans that engage all
aspects of the justice sector.69 This upswing of legal interventionism prompts an
inquiry into what limits, if any, apply to international actors legislating in occupied
territories and post-conflict zones.
62 See On the Law Applicable in Kosovo, UNMIK Reg. No. 1999/24 (12 December 1999).
63 Brahimi Report, supra note 54 at para. 79.
64 See Report of the Secretary-General, supra note 1 at para. 9.
65 See ibid. at para. 10.
66 See generally ibid.
67 Teitel, supra note 34. See also Issacharoff, supra note 34.
68 See e.g. Orend, supra note 15: [T]here should be a presumption in favor of permitting
rehabilitative measures in the domestic political structure of a defeated aggressor (ibid. at 51,
emphasis added).
69 See Report of the Secretary-General, supra note 1 at para. 23.
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III. The Authority of International Actors to Alter Domestic Laws
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and Legal Systems
What authority do occupying powers or multilateral institutions have to revise
and enact domestic or municipal laws where a state has failed, does not, or cannot
consent? There are two sources of applicable law. First, where a state is occupied by
foreign powers, as Iraq was by the US and the UK, the Hague Regulations of 190770
and the Fourth Geneva Convention of 194971 apply and set out the limits of the
occupants legislative powers. Second, multilateral actors such as the UN Missions in
Kosovo and East Timor that are not belligerent occupants as defined in international
law derive their authority from the Security Councils powers under Chapter VII of
the UN Charter. The limits to the law-making authority of these international
administrations are those that would apply generally to Chapter VII enforcement
actions by the Security Council. As will be shown, both sources of law are insufficient
to meet the objectives and needs of current interim administrations. I argue that this
insufficiency leaves a void that requires guidance from the doctrine of jus post bellum.
A. The Legislative Capacities of Occupying Powers
Historically, there were few limits on an occupants powers. As von Glahn writes:
The development of the existing rules governing military occupation was
preceded by centuries during which no real distinction was drawn between
military occupation on the one hand and conquest and subjugation on the other.
Conquest of enemy territory was generally regarded as establishing annexation
to the conquerors realm, and it was held that the successful sovereign was
practically immune from any limitations on his right to do as he liked in the
occupied area.72
The Hague Regulations and the Fourth Geneva Convention (which supplements
the Regulations) therefore mark an important turning point: they establish certain
limits with regard to the occupants powers of governance and administration. Most
importantly, both treaties codify the principle that prior laws are to remain in force,
except in enumerated circumstances. This fundamental requirement derives from the
related principles that as a matter of customary law, local laws remain valid even
under military occupation, and that the laws created by a people are presumably those
best suited to them.73
Article 43 of the Hague Regulations sets out the contours of this obligation:
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
70 Supra note 29.
71 Supra note 18.
72 von Glahn, supra note 21 at 7.
73 See ibid. at 95.
2005]
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ensure, as far as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country.74
Despite the logic of respecting the prior laws in force, this restrictive rule did not
hold. The obligation to ensure public order and civil life or safety was used as a
justification by occupants for the exercise of broad discretionary powers.75 For
example, during the WWI occupation of Belgium, article 43 was invoked as
justification for minor, though important, social reforms, but it also served to cover
acts that were aimed at the dissolution of the Belgian nation and the impoverishment
of its resources and industrial infrastructure.76
The four Geneva Conventions were adopted in 1949 in response to the atrocities
of WWII. One of their distinguishing features was that protections for individuals in
times of war were increased substantially.77 Rather than operating as contracts
between states, the Fourth Geneva Convention, in particular, has been described as a
bill of rights for the inhabitants of an occupied territory.78 This characterization has
been endorsed in Prosecutor v. Tadic where the International Criminal Tribunal for
the Former Yugoslavia (ICTY) underscored that article 4 of the Fourth Geneva
Convention is directed at the protection of citizens to the maximum extent possible,
and does not rely on formal bonds and purely legal relations.79
The Fourth Geneva Convention applies to cases of declared war (even if the state
of war is not recognized by one of the countries), and to cases of partial or total
occupation of a territory even if there is no armed resistance. Under the Fourth
Geneva Convention, where only one party is a High Contracting Power, that party is
still bound by the Convention under article 2. Virtually all states, 189 in total, are
party to the Geneva Conventions and the Hague Regulations, and even exceptional
abstainers are most likely bound because many provisions in the treaties are now
considered to constitute customary international law.80
74 Hague Regulations, supra note 29 [emphasis added]. The original vie publique has been
translated as both civil life and as safety, and the appropriateness of each term is the subject of
some debate. See Benvenisti, supra note 47 at 9-10.
75 See Benvenisti, ibid. at 12.
76 Ibid. at 46. See also Edmund M. Schwenk, Legislative Power of the Military Occupant under
Art. 43 of the Hague Regulations (1945) 45 Yale L.J. 393 at 405.
77 See Georges Abi-Saab, The Specificities of Humanitarian Law in Christophe Swinarski, ed.,
Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean
Pictet (Geneva: International Committee of the Red Cross, 1984) 265 at 269 (describing the shift as
one from high-state contracting to a reach for the level of the individual, the real beneficiaries of
humanitarian law).
78 See Benvenisti, supra note 47 at 105.
79 (1999), Case No. IT-94-1-A (International Criminal Tribunal for the Former Yugoslavia, Appeals
Chamber) at para. 168, online: ICTY
80 See Theodor Meron, Human Rights in Internal Strife: Their International Protection (Cambridge:
Grotius Publications, 1987) at 348; Franck, supra note 25 at 275.
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Articles 64 and 65 to 70 of the Fourth Geneva Convention set out more lenient
exceptions to the presumptions for maintaining prior applicable law. Article 64
provides:
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The penal laws of the occupied territory shall remain in force, with the
exception that they may be repealed or suspended by the Occupying Power in
cases where they constitute a threat to its security or an obstacle to the
application of the present Convention. Subject to the latter consideration and to
the necessity for ensuring the effective administration of justice, the tribunals of
the occupied territory shall continue to function in respect of all offences
covered by the said laws.
The Occupying Power may, however, subject the population of the
occupied territory to provisions which are essential to enable the Occupying
Power to fulfill its obligations under the present Convention, to maintain the
orderly government of the territory, and to ensure the security of the Occupying
Power, of the members and property of the occupying forces or administration,
and likewise of the establishments and lines of communication used by them.
Several aspects of this provision are noteworthy. First, paragraph 1 of article 64
provides that an occupying power may repeal or suspend penal laws where they
constitute a threat to its security, or when they are an obstacle to the application of the
present Convention.81 This first exception could justify the repeal of laws requiring
conscription for the military, possession of arms, laws requiring individuals to fight
against the enemy, and certain laws restricting public meetings and freedom of
expression.82 The second exception would enable an occupying power to change
domestic laws that, for example, conflict with article 27, which guarantees that
occupants respect religious rights, or rights to family, bodily dignity, and group rights
for minorities.83 Where guaranteed by the Convention, therefore, municipal laws
affecting both group and individual rights may legitimately be amended. Jean Pictet
notes, however, that these exceptions are of a limitative nature: [t]he occupation
authorities cannot abrogate or suspend penal laws for any other reason and not, in
particular, merely to make it accord with their own legal conceptions.84
Second, while article 43 of the Hague Regulations applied to the continuity of
laws in general, paragraph 2 of article 64 of the Fourth Geneva Convention does not
explicitly restrict legislative powers to penal matters. On the basis of this wording,
only penal laws, not civil laws, are subject to the requirements concerning prior
81 During the negotiations of this article, the US proposed language that would have given an
occupant an absolute right to change the laws of the occupied territory. Protests from other delegates
such as the USSR led to the rejection of this provision. See Final Record of the Diplomatic
Conference of Geneva of 1949, vol. 3 (Berne: Federal Political Department, 1949) at 671.
82 See Benvenisti, supra note 47 at 16; von Glahn, supra note 21 at 682-83.
83 See Jean Pictet, The Geneva Conventions of 12 August 1949: Commentary (Geneva:
International Committee of the Red Cross, 1952-1959) at 335.
84 Ibid. at 336.
303
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applicable law under paragraph 1 of article 64.85 Paragraph 2 of article 64 allows the
occupying power to enact new civil provisions in three circumstances. First, the
occupying power may enact legal instruments that are essential to enable it to fulfill
its obligations. The Convention imposes a variety of obligations upon occupying
powers, including the responsibility to provide inhabitants with food and medical
supplies (article 55), and to provide medical assistance and hospitals (article 56). If an
occupying power interpreted these obligations in a fulsome manner, they could
provide the basis for an expansive revision of domestic laws. The rights of individuals
guaranteed by the Convention therefore trump the laws of the former sovereign.
The second and third bases upon which occupying powers can revise domestic
laws relate to the maintenance of order and security by the occupying power. Under
existing international law, these bases were already available to justify certain
restrictions on free speech, to limit elections, and to regulate local currencies.86 These
legislative provisions are subject to the general prohibition in article 47, which
provides that occupying powers cannot legislate around the protections of the
Conventions. The article further states that protected persons in occupied territories
should not be deprived of changes introduced into the institutions or government of a
territory as a result of the occupation of that territory, or as a result of agreements
concluded between the authorities of the occupied territories, or by annexation of the
territory.87 Consequently, an occupying power could not use the exceptions of
security or maintaining order in article 64 to change domestic penal or civil laws
in a manner undermining its obligations under other provisions of the Convention, for
example by compelling occupants to serve in its armed or auxiliary forces;88 by
enacting measures to destroy private or collective property, unless as a matter of
military necessity;89 or by allowing the use of physical or moral coercion to obtain
information.90
In addition to the Geneva Conventions, two external limits are applicable to the
legislative capacities of occupying powers. First, an occupant may not apply its
85 The International Committee of the Red Cross commentaries on the Conventions state that the
reference to penal laws only is an oversight. Jean Pictet contends that the principle of continuity
applies to both the civil and penal laws of the occupied territory, and to the associated rules of
procedure: The reason for the Diplomatic Conference making express reference only to respect for
penal law was that it had not been sufficiently observed during past conflicts; there is no reason to
infer a contrario that the occupation authorities are not also bound to respect the civil law of the
country, or even its constitution (ibid. at 335). Benvenisti disagrees, and rightly, I think, shows that
the intentions of the delegates were to intentionally establish a different norm for civil laws in article
64(2). See Benvenisti, supra note 47 at 101-02. It could, however, be argued that as a matter of
interpretation, the header for article 64 in Pictet, ibid.Penal Lawapplies also to paragraph 2.
86 See Benvenisti, supra note 47 at 16.
87 Fourth Geneva Convention, supra note 18, art. 47.
88 Ibid., art. 51.
89 Ibid., art. 53.
90 Ibid., art. 31.
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domestic law directly to an occupied territory. Rather, an occupant must issue
regulations or laws in the occupied territory through an established process.91 Second,
in its 2004 decision on the Wall in the Occupied Territories, the International Court of
Justice (ICJ) held that occupiers must apply international human rights covenants to
which they are a party where they exercise their jurisdiction on foreign territory.92 In
so doing, the ICJ implies that occupiers cannot legislate in contravention of their
national treaty obligations in any territory.
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In sum, the scope of an occupiers legislative powers is defined by two broad
parameters: (1) the prior laws of a territory remain in force unless changed by an
occupant through the process and under the exceptions provided by international
humanitarian law; and (2) an occupant must respect and apply its international
obligations in the occupied territory, including ensuring that any new legislation
passed is in accordance with these obligations.
B. The Ineffectiveness of the Legislative Provisions of the Laws of
Occupation and the Principles of Jus Post Bellum
The Geneva Conventions were intended to balance indigenous law with the
exigencies of occupation, but this balance has rarely been struck in practice. The
problems are several-fold.
First, and most significantly, the Geneva Conventions require occupying powers
to assume onerous responsibilities for the welfare of the population in the occupied
territory that are suggestive of a trusteeship relationship. The Geneva Conventions
place heightened obligations on occupying powers to protect the vulnerable members
of society (the wounded, sick … and expectant mothers93) and to ensure the
maintenance, education, and religion of children orphaned or separated from their
families by war.94 Occupying powers must also ensure that internees are kept in good
health,95 and they may not requisition foodstuffs except for use by the occupants own
personnel.96 This relationship is also apparent in the Hague Regulations. Article 43
obliges occupants to take all steps in their power to further public order and safety.97
Similarly, in the management of public property, article 55 states that the occupant is
91 See von Glahn, supra note 21 at 94-95, (noting that the German military order of 10 May 1940
was illegal in that it provided that German military or special courts in the then occupied Netherlands
and Belgium could apply German criminal law directly). Compare Schwenk, supra note 76 at 414
(who notes that the rule also holds in the converse situation: no extraterritorial effect is given to the
acts of a military occupant).
92 Case on the Wall, supra note 47.
93 Fourth Geneva Convention, supra note 18, art. 16.
94 Ibid., art. 24.
95 Ibid., art. 89.
96 Ibid., art. 55.
97 See Felice Morgensterns discussion in Validity of the Acts of the Belligerent Occupant (1951)
28 Brit. Y.B. Intl L. 291 at 295.
K. BOON LEGISLATIVE REFORM IN POST-CONFLICT ZONES
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a usufructuary (a prudent administrator).98 While a usufructuary can use any
proceeds from the capital as its own, it must safeguard the trust by acting with a
certain standard of care, and it will be liable for losses resulting from its fraud, default,
or neglect.
305
In practice, the responsibilities associated with a trustee-like relationship rarely
obtain because most occupying powers do not acknowledge that they are subject to
the Geneva Conventions. The application of the Fourth Geneva Convention has been
contested or rejected by Israel in the case of the West Bank, Kuwait by Iraq, East
Timor by Indonesia, Tibet by China, and Afghanistan by the Soviet Union.99 Despite
the applicability of the Geneva Conventions to many recent occupations (as
occupation is a matter of fact),100 those who have recognized their status as occupying
powers have often sidestepped the prohibitions where it was in their interest.101
In addition, breach of the trusteeship relationship is generally without
consequence, because the Geneva Conventions have essentially no accountability
mechanisms under which the occupied territory (or the individuals within it) can
challenge an occupying powers acts. The Geneva Conventions create no reporting
requirements, they provide for no judicial review of the occupying powers acts, and
they contain no requirements for a consultative process.
With regard to the enforcement of the Geneva Conventions more broadly, all
contracting parties are required by article 1 to respect the Conventions, but the only
external enforcement mechanism in the treaty is article 49 of the First Convention,
which requires high contracting parties to enact penal legislation so as to prosecute
grave breaches of the Conventions. Grave breaches are defined in article 50 of the
Convention, and they include willful killing, torture or inhuman treatment, and
biological experiments. Overexpansive reform of domestic laws would not qualify.102
While a protecting power could theoretically be appointed to adjudicate as per
98 As stated in article 539 of the Louisiana Civil Code. This concept is similar across civil law
traditions, with article 601 of the French Code civil stating: He [the usufructuary] gives security that
he will use the things as a prudent administrator would do See also the German Civil Code,
B.G.B. section 1036(2) and the Greek Civil Code article 1148, which impose the obligation of
orderly management. See A.N. Yiannopoulos, Louisiana Civil Law Treatise, vol. 3 (St. Paul, Minn.:
West Group, 2000) at 256-57. For a recent discussion of the occupant as usufruct, see R. Dobie
Langenkamp & Rex. J. Zedalis, What Happens to the Iraqi Oil? Thoughts on Some Significant,
Unexamined International Legal Questions regarding Occupation of Oil Fields (2003) 14 E.J.I.L. 417.
99 See Eyal Benvenisti, The Security Council and the Law on Occupation: Resolution 1483 on
Iraq in Historical Perspective (2004) at 12, where he describes the transition of the occupier as
Watch Guard under the Hague Regulations to full-fledged administrator under the Geneva
Conventions.
100 See supra note 47.
101 See generally Benvenisti, supra note 47 at c. 6.
102 See Morgenstern, supra note 97 at 306-07 (noting that the doctrine adopted by several national
courts is that while occupying powers cannot arbitrarily invalidate the laws in force, their legislative
acts cannot be reviewed as long as the acts fall within the occupiers general sphere of powers).
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article 9 of the Fourth Convention, this provision has never been used and would
likely be ineffective in practice in challenging changes to domestic laws.103 Similarly,
municipal enforcement mechanisms in domestic or bilateral contexts could be
invoked if the Convention is accepted as self-executing, but given the unwillingness
of occupying powers to recognize the applicability of the Geneva Conventions it is
unlikely they would serve as a deterrent.104 As a result, occupying powers have wide
discretion to change domestic laws, and unless held to account under the law of state
responsibility, a good faith adherence is virtually the only effective limit on their
powers.105
The imbalance between the occupants extensive trusteeship duties and the
absence of accountability mechanisms has meant that despite the principle of
preserving the status quo ante inherent to the law of occupation, there are few
effective limits if the intention of occupying powers is to change domestic institutions
and laws. Occupying powers have used the concepts of liberation, self-determination,
and democracy to justify broad political and legal changes in the reconstruction phase.
The formalism of the Geneva Conventions has broken down in practice, and invasive
techniques have been used in their wake. These breaches must be recognized in order
for the international community to effectively address them.
C. The Contemporary Occupant: The CPA in Iraq
This has been about liberation, not about
occupation.106
General Tommy Franks
The CPAs non-consensual occupation of Iraq, which lasted from May 2003 to
June 2004, richly illustrates the limited scope and the open texture of the law of
occupation. The US and UK reluctantly accepted that they were occupying powers
in Iraq under the Hague Regulations and Geneva Conventions, although in UN
documents they limited their obligation to the respect of international humanitarian
103 Contra Robert O. Weiner & Fionnuala Ni Aolain, Beyond the Laws of War: Peacekeeping in
Search of a Legal Framework (1996) 27 Colum. H.R.L. Rev. 293 at 332.
104 See Imseis, supra note 47 at 123-24; Benvenisti, supra note 47 at 192, where he discusses the
refusal of a Belgian court (during the German Occupation of 191418) to allow a private citizen to
challenge occupation measures under article 43 of the Hague Regulations. But see Morgenstern,
supra note 97 at 292, on the self-executing nature of the Hague Regulations.
105 The ICJ Case on the Wall states that all states have an erga omnes obligation to enforce the laws
of occupation (supra note 47 at para. 159). But see the separate opinion of Judge Kooijmans at paras.
40-50). Note also that where a breach of state responsibility has occurred, an occupying power may
be liable to pay compensation. See e.g. Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276
(1970), Order of 26 January 1971, [1971] I.C.J. Rep. 9 at 54.
106 As cited in Katherine Butler & Donald Macintyre, General Franks strides into his Baghdad
palace The Independent (17 April 2003) online: The Independent
K. BOON LEGISLATIVE REFORM IN POST-CONFLICT ZONES
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law in general terms.107 In their 8 May 2003 letter to the President of the Security
Council, for example, the UK and the US stated that they would strictly abide by
their obligations under international law, including those relating to the essential
humanitarian needs of the people of Iraq.108 The restrictive use of the term
essential set the basis for possible derogations from the more general humanitarian
requirements of the Geneva Conventions.
307
Security Council Resolutions 1483 and 1511 recognized but did not authorize the
CPAs occupation of Iraq.109 The CPA therefore remained bound by the Geneva
Conventions, except to the extent that those same resolutions could be said to create
exceptions to international humanitarian law or new obligations for the CPA. For
example, the CPA was charged with establishing and administering a Development
Fund for Iraq and a program linking food assistance to the production of oil.110 These
duties went beyond the powers envisioned by the Geneva Conventions. As David
Scheffer notes, In effect, the Council specified additional obligations not required by
occupation law, but in doing so invited the Authority to act beyond some of the
barriers that occupation law otherwise would impose on occupying powers.111
The CPAs status as occupying power in Iraq was also unique due to the tripartite,
multilateral structure comprised of the UN, CPA, and the GIC set out in Resolution
107 Some public statements suggested the UK and US accepted their status as occupying powers.
See e.g. Comments made by UK Permanent Representative Sir Jeremy Greenstock after UK-US
Presentation of Joint Draft of Security Council Resolution on Iraq, online: The UK Mission to the
United Nations
Organization Affairs, Understanding United Nations Resolution 1483 (Presented at the Foreign
Press Center, Washington D.C., 23 May 2003) [unpublished], online: United States Diplomatic
Mission to Italy
Address to the Iraqi People (Prepared for broadcast on 5 September 2003) [unpublished], online
Coalition Provisional Authority
by the CPA in which the application of the Geneva Conventions was acknowledged, official
documents did not set out the obligations so clearly. The preamble to Security Council Resolution
1483 refers to the US and UK as occupying powers (the Authority), but paragraph 5 calls upon all
concerned to comply fully with their obligations under international law, in particular the Geneva
Conventions of 1949 and the Hague Regulations of 1907 (SC Res. 1483, UNSC, 4761 Mtg., UN
Doc. S/RES/1483 (2003) Preamble, para. 5).
108 Letter dated 8 May 2003 from the Permanent Representatives of the United Kingdom of Great
Britain and Northern Ireland and the United States of America to the United Nations addressed to the
President of the Security Council, UNSC, 2003, UN Doc. S/2003/538 at paras. 90-93 [UN
S/2003/538].
109 Upon the end of the occupation of Iraq, Security Council Resolution 1546 similarly welcomed
that by 30 June, 2004, the occupation will end and the Coalition Provisional Authority will cease to
exist, and that Iraq will reassert its full sovereignty (SC Res. 1546, UNSC, 4987 Mtg., UN Doc.
S/RES/1546 (2004) at para. 2).
110 SC Res. 1483, supra note 107 at paras. 9, 13, 16.
111 David Scheffer, Future Implications of the Iraq Conflict: Beyond Occupation Law (2003) 97
Am. J. Intl L. 842 at 845-46. See also Benvenisti, supra note 47, preface.
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1483.112 Security Council Resolution 1483 supported a joint effort to work with the
Iraqi people until an internationally recognized, representative government is
established by the people of Iraq and assumes the responsibilities of the Authority.113
[Vol. 50
Legal reform during the occupation of Iraq was extensive. The CPA passed 12
regulations, issued 100 orders (including several amendments), and published 17
explanatory memoranda.114 Under Order No. 100, all legislation enacted by the CPA
was deemed to remain in force after the CPAs dissolution on 30 June 2004 pursuant
to Security Council Resolution 1546115 unless and until rescinded or amended by the
subsequent transitional government.116
Formally, the legal reform in Iraq took place in the context of the strictures of the
Fourth Geneva Convention and Hague Regulations as discussed above. Most
regulations contained a blanket preamble to the effect that instruments issued by the
CPA were enacted under the laws and usages of war.117 The Security Council
resolutions addressing the occupation lifted key restrictions on the CPAs authority by
requiring the CPA, in coordination with the special representative to the secretary-
general (SRSG), to encourage the promotion of economic reconstruction and the
conditions for sustainable development, the protection of human rights, and
international efforts to promote legal and judicial reform.118 The preamble to
Resolution 1483 also encouraged efforts by the people of Iraq to form a
representative government based on the rule of law that affords equal rights and
justice to all Iraqi citizens without regard to ethnicity, religion, or gender.119
Some of the CPAs regulations did conform to the legislative restrictions of the
Geneva Conventions. Examples of conforming
include CPA
Memorandum No. 3 on Criminal Procedures, which set out standards for interim
detainees consistent with article 78 of the Fourth Geneva Convention.120 Similarly,
section 3 of Order No. 7 prohibits torture and cruel, degrading, or inhuman treatment
instruments
112 See generally Thomas D. Grant, The Security Council and Iraq: An Incremental Practice
(2003) 97 A.J.I.L. 823.
113 SC Res. 1483, supra note 107 at para. 9.
114 See online: Coalition Provisional Authority, CPA Official Documents
115 SC Res. 1483, supra note 107.
116 CPA, Order 100, Transition of Laws, Regulations, Orders, and Directives Issued by the CPA,
CPA/Ord/28 June 2004/100, online: CPA website, supra note 114 [CPA Order 100]. For commentary
on the effect of laws passed by an occupant after sovereignty is regained, see von Glahn, supra note
21 at 258.
117 See e.g. CPA Order 100, ibid. at preambular para. 1.
118 SC Res. 1483, supra note 107 at para. 8.
119 Ibid. at para. 1.
120 CPA Memo No. 3 on criminal procedures states in the preamble that the CPA is acting, in
particular, consistent with the Fourth Geneva Convention of 1949 Relative to the Treatment of
Civilians in Times of War: CPA, Memo No. 3, Criminal Procedures, CPA/Mem/27 June 2004/03,
online: CPA website, supra note 114 [CPA Memo 3].
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or punishment and is similar to that identified in article 32 of the Fourth Geneva
Convention.121 The Memorandum also amended certain provisions of the Iraqi Penal
Code to make them conform to international human rights standards. For example, it
implemented the right of the accused to remain silent during criminal proceedings
without adverse inference being drawn from the exercise of that right; the same
Memorandum removed the presumption that a refusal to answer will be considered
as evidence against the defendant.122
309
Some CPA instruments, however, used the open language of the Security Council
resolutions to take advantage of gaps in the Geneva Conventions. For example, the
Geneva Conventions provide almost no direction with regard to reform of the private
sector and economy. This lacuna exists because occupiers are reticent to agree to hard
and fast rules that restrict their ability to profit from the economic resources and
structures of an occupied territory.123
The US made use of this open texture to enact comprehensive economic reforms.
Order No. 12 triumphantly reconfirmed the provisions of General Franks Freedom
Message to the Iraqi People of April 16, 2003 and suspended all tariffs and trade
restrictions, although certain foodstuffs and other goods were exempted for
humanitarian reasons.124 Order No. 39 laid the basis for the privatization of the Iraqi
economy, and allowed 100% foreign ownership, including 100% profit remittances in
all but a few economic sectors and regions of Iraq.125 The CPA also introduced a flat
tax, which is justified under article 48 of the Hague Regulations, but which appears to
contradict the US own policy of not introducing new taxes in occupied territories.126
These broad legal reforms prompt inquiry into whether the duties of trusteeship
and accountability were respected in the execution of the CPAs mandate. In some
121 CPA, Order 7, Penal Code, CPA/Ord/9 June 2003/07, s. 3, online: CPA website, supra note 114.
122 CPA Memo 3, supra note 120, s. 3(b)(i).
123 von Glahn, supra note 21 at 202.
124 CPA, Order 12, Trade Liberalization Policy, CPA/Ord/26 Feb 2004, online: CPA website, supra
note 114.
125 CPA, Order 39, Foreign Investment, CPA/Ord/20 Dec 2003/39, online: CPA website, supra note
114. For a critical account of this mission, see Naomi Klein, Iraq is not Americas to sell:
International law is unequivocalPaul Bremers economic reforms are illegal The Guardian (7
November 2003) 27.
126 See United States, Department of the Army, The Law of Land Warfare, 18 July 1956,
(Washington, D.C.: U.S. Govt. Print. Off.) at 157, para. 426(b): Unless required to do so by
considerations of public order and safety, the occupant must not create new taxes. For a discussion
of the lack of consensus on whether an occupying power may introduce taxes, see Benvenisti, supra
note 47 at n. 41. But see von Glahn, supra note 21 at 150, who argues that an occupying power has
no authority to impose a new local tax, although existing taxes may be used to cover the costs of
administration. But note that flat taxes have become a favored approach amongst some tax reform
specialists (see The Case For Flat TaxesSimplifying Tax Systems The Economist (16 April 2005)
59). For critical commentaries on the flat tax in Iraq, see Dana Milbank & Walter Pincus, U.S.
Administrator Imposes Flat Tax System on Iraq Washington Post (2 November 2003) A09; Naomi
Klein, Privatization in Disguise The Nation (28 April 2003) 40.
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respects these reforms were within the parameters of the Security Council
authorizations because the CPAs regulations helped to create a free market economy
and a basis for foreign investment.127 In other respects, however, the motivations
appeared to be ideological or based on economic self-interest, suggesting a possible
conflict of interest. For example, bids during the privatization of the Iraqi economy
were infamously restricted to the so-called coalition of the willing.
[Vol. 50
The Security Council deliberately expanded the typical trusteeship duties through
its resolutions on Iraq, and in so doing acknowledged the extent to which inhabitants
are dependent on the occupying power not only for the necessities of life, but also for
the development of fundamental institutions and for the basis for self-government. To
illustrate, Security Council Resolution 1483 requires the Authority to promote the
welfare of the Iraqi people through the effective administration of the territory,
including in particular working toward the restoration of conditions of security and
stability and the creation of conditions in which the Iraqi people can freely determine
their own political future.128 The 8 May 2003 letter from the UK and the US to the
Security Council confirmed this specific obligation with respect to the management of
oil reserves, stating that the CPA would act to ensure that Iraqs oil is protected and
used for the benefit of the Iraqi people.129 The CPAs administrative instruments also
acknowledged this relationship. Order No. 2 stated that all assets of dissolved entities
would be held by the administrator of the CPA on behalf of and for the benefit of the
Iraqi people.130 Order No. 4131 used this same language in providing that all property
and assets of the Iraqi Baath Party that had been transferred or acquired were subject
to seizure by the CPA on behalf, and for the benefit of the people of Iraq. This
obligation was most noticeable with regard to the administration of natural resources
and public property: the preamble to Order No. 9, for example, affirmed the CPAs
obligation to responsibly manage Iraqi public property on behalf of the Iraqi
people.132
Expanded trusteeship duties were, however, undercut by the limited principles of
accountability that were integrated into the CPAs mandate. Accountability flowed to
the international community under paragraph 6 of Security Council Resolution 1511,
127 Report of the Secretary-General pursuant to Paragraph 24 of Security Council Resolution 1483
(2003), UNSC, 2003, UN Doc. S/2003/715 at para. 46 [UN S/2003/715].
128 SC Res. 1483, supra note 107. These responsibilities were underscored by the UN in reports on
Iraq: Under international humanitarian law, the CPA bears the primary responsibility for the welfare
of the Iraqi people, including the provision of public services (see UN S/2003/715, supra note 127 at
para. 60.
129 UN S/2003/538, supra note 108.
130 CPA, Order 2, Dissolution of Entities, CPA/Ord/23 Aug 2003, online: CPA website, supra note 114.
131 CPA, Order 4, Management of Property and Assets of the Iraqi Baath Party, CPA/Ord/28 Jun
2004 at s. 3, online: CPA website, supra note 114.
132 CPA, Order 9, Management and Use of Iraqi Public Property, CPA/Ord/27 Jun 2004, online:
CPA website, supra note 114.
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which requested the CPA to report on progress being made.133 A monitoring process
was also establishedthe International Advisory and Monitoring Boardto track
management of the Development Fund for Iraq.134 Nonetheless, neither the coalition
nor the SRSG had an obligation to report to the people of Iraq directly, nor were any
independent institutions such as an ombudsperson created. The Security Council
resolutions also made no mention of accounting for the Iraqis killed during the
invasion.135 A further void in the accountability framework was brought to world
attention by the abuse of prisoners at the Abu Gharib prison by US soldiers and
private contractors.136 These events underscored the lack of a judicial processin
Iraq, internationally, and abroadto hold occupants to account for wrongs committed
during the occupation.
D. The Legislative Capacities of the UN Civil Administrations:
UNMIK and UNTAET
A critical distinction between belligerent occupations and the second category of
actors, multilateral interim administrations (functional occupants), is the non-
applicability of international humanitarian treaties to the latter. UN missions are not
bound by the limits imposed by international humanitarian law on belligerent
occupants as described above.137 The Hague Regulations and the Geneva Conventions
bind only signatory states. As an international organization, the UN has no status to
sign the Geneva Conventions (although it has concluded related agreements in other
contexts). Nor are the obligations of the Geneva Conventions automatically
transferred by member states to the Security Council.138 Although the UN can consent
to be bound by the Conventions, it has made no explicit assumption of responsibilities
in the context of its interim administrations. Unlike peacekeeping operations where
the UN has agreed to respect the principles of humanitarian law,139 neither UNMIK
133 See Grant, supra note 112 at 840.
134 SC Res. 1483, supra note 107 at para. 12.
135 Jos E. Alvarez, International Organizations as Law-Makers [forthcoming in 2005] at 39.
136 Efforts to extend the immunities of US contractors after the handover on 30 June 2004
underscored this perception of unaccountability while highlighting the legal void within which these
individuals operate: Sue Pleming, US Seeks Some Immunity for Contractors in Iraq (16 June
2004), online: Iraq Net
111 at 857, which discusses potential actions under the Federal Tort Claims Act 28 U.S.C.S. 2671.
137 Some scholars have argued that the Conventions should apply to UN peacekeeping missions.
See e.g. Benvenisti, supra note 47 at xvi. At present, no instruments apply directly.
138 For a discussion of the international personality of the United Nations, see Phillipe Sands &
Pierre Klein, eds., Bowetts Law of International Institutions, 5th ed. (London: Sweet & Maxwell,
2003). Note, however, that two decisions by the European Court of Human Rights suggest that
member states may transfer their duties to international organizations. See Waite and Kennedy v.
Germany (1999), I Eur. Ct. H.R. 393 at para. 67 and Matthews v. The United Kingdom (1999), I Eur.
Ct. H.R. 251 at paras. 32 & 33.
139 Since 1999, the UN has stated that forces under UN command must respect the principles of
international humanitarian law. See UN Secretary-Generals Bulletin: Observance by United Nations
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nor UNTAET committed itself to observing international humanitarian laws in their
constitutive instruments.140 Not only are the founding resolutions and the regulations
on applicable law silent with regard to the applicability of international humanitarian
law,141 but both missions were given all legislative and executive authority with
respect to [the territory], including the administration of the judiciary.142 The
founding documents therefore placed no limits on the legislative authority of the
missions. Indeed, in defining UNTAETs mandate, the Security Council authorized it
to take all necessary measures to fulfill its mandate.143
The legal framework applicable to the legislative powers of the UN missions
derives from the nature of their creation. The interim administrations in Kosovo and
East Timor were established under the Security Councils Chapter VII powers,
through Security Council Resolutions 1244 and 1272 respectively. The mandates
expressly included providing security and maintaining law and order throughout the
territory of Kosovo and East Timor.144 They also provided that the Special
Representative, who as Transitional Administrator was responsible for all aspects of
the United Nations work in Kosovo and East Timor, had the power to enact new laws
and regulations and to amend, suspend, or repeal existing ones.145
This novel use of the Chapter VII powers to authorize interim legislative powers
and to vest ultimate legislative authority in an agent of the secretary-general
Forces of International Humanitarian Law, UNST, 1999, UN Doc. ST/SGB/1999/13; Robert C.R.
Siekman, Legal Responsibilities of Military Personnel in Charlotte Ku & Harold K. Jacobson, eds.,
Democratic Accountability for the Use of Force in International Law (Cambridge: Cambridge
University Press, 2003) 104 at 111-12.
140 Some argue that the UN should be bound by the general principles of the Geneva Conventions,
even if it is not bound by the specific provisions. [It] is uncontentious that in an enforcement action
United Nations forces could well find themselves in belligerent occupation of territory, and that most
or all of the customary and conventional laws of war would then apply (Roberts, supra note 17 at
290). This argument has recently been used to suggest the extension of humanitarian and human
rights obligations to KFOR forces in Kosovo. See John Cerone, Minding the Gap: Outlining KFOR
Accountability in Post-Conflict Kosovo (2001) 12 E.J.I.L. 469.
141 Indeed, the Security Council only appears to refer to the Geneva Conventions in Security
Council Resolution 1239 (1999) prior to the creation of UNMIK, where it states in the preamble that
instruments of international humanitarian law (including the Geneva Conventions) should be borne in
mind. See SC Res. 1239, UNSC, 4003 Mtg, UN Doc. S/RES/1239 (1999) (preamble).
142 UNMIK Reg. No. 1999/1, supra note 58: [A]ll legislative and executive authority with respect
to Kosovo, including the administration of the judiciary, is vested in UNMIK and is exercised by the
Special Representative of the Secretary General. UNTAET Reg. No. 1999/1 (27 November 1999):
[A]ll legislative and executive authority with respect to East Timor, including the administration of
the judiciary, is vested in UNTAET and is exercised by the Transitional Administrator.
143 SC Res. 1272, UNSC, 4057th Mtg., UN Doc. S/RES/1272 (1999) at para. 4.
144 SC Res. 1272, ibid., and SC Res. 1244, UNSC, 4011th Mtg., UN Doc. S/RES/1244 (1999) at
para. 11(a).
145 Ibid.; Report of the Secretary-General on the United Nations Interim Administration Mission in
Kosovo, UNSC, 1999, UN Doc. S/1999/779 at para. 39 [UN S/1999/779].
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represents a considerable expansion of the UNs traditional peacekeeping mandate.146
Where a threat to peace and security is found, article 41 of the UN Charter gives the
Council broad power to decide what measures not involving the use of armed force
are to be employed to give effect to its decisions. The specific measures contemplated
in article 41 (complete or partial interruption of economic relations and of rail, sea,
air, postal, telegraphic, radio and other means of communication, and the severance of
diplomatic relations) have been interpreted as nonexclusive.147 Indeed, article 41 has
been used not only as the nominal basis for sanctions and embargoes,148 boundary
demarcation disputes,149 and the limited use of military force,150 but also for some
administrative functions,151 and the creation of the International Criminal Tribunal for
the Former Yugoslavia and the International Criminal Tribunal for Rwanda.152 On the
basis of this authority, Michael J. Matheson has stated that there is no reason in
principle why the Council cannot authorize other measures of governance that it
believes necessary to restore and maintain the peace, including the creation of
administrative and judicial structures, the promulgation of laws and regulations, and
the imposition of taxes and other financial measures.153
The UN administrations in Kosovo and East Timor have done exactly this: they
have promulgated laws in large numbers, some of which touch on fundamental issues
of the legal and political order. Over the course of its four-year mandate, UNTAET
passed 71 regulations on issues involving security as well as judicial and financial
reform.154 It defined the scope of its general powers and established a National
146 Compare UNTACs operation in Cambodia, where similar powers were granted to the SRSG,
but with the consent of Cambodia. The SRSG did, however, retain residual authority in regard to the
Supreme National Council of Cambodia. See Steven R. Ratner, The Cambodia Settlement
Agreements (1993) 87 A.J.I.L. 1; Agreement of Comprehensive Political Settlement of the
Cambodian Conflict (Oct. 23, 1991) (1992) 31 I.L.M. 183 (1992).
147 Prosecutor v. Tadic, (1995), Case No. IT-94-AR72 (International Criminal Tribunal for the
Former Yugoslavia, Appeals Chamber), online: United Nations
148 SC Res. 661, UNSC, 2934 Mtg. UN Doc S/RES/661 (1990). It was used here to impose
sanctions against Iraq.
149 See e.g. SC Res. 687, UNSC, 45th Sess., UN Doc. S/INF/47 (1991) at 11, concerning a
boundary dispute between Iraq and Kuwait.
150 See e.g. Security Council Resolutions concerning the interventions in Haiti and Kuwait: SC Res.
940, UNSC, 49th Sess., UN Doc. S/INF/50 (1994) at 51; SC Res. 678, UN SCOR, 45th Sess., UN
Doc. S/INF/46 (1990) at 27.
151 See e.g. SC Res. 827, UNSC, 3217th Mtg., UN Doc. S/RES/827 (1990) at paras. 16-19,
regarding reparations for victims of Persian Gulf conflict.
152 SC Res. 827, ibid., and SC Res. 955, UNSC, 3453d Mtg., UN Doc. S/RES/955 (1994).
153 Michael Matheson, United Nations Governance of Postconflict Societies (2001) 95 A.J.I.L. 76
[emphasis added].
154 For a discussion of the process of legal reform in East Timor, see Hansjoerg Strohmeyer,
Policing the Peace: Post-Conflict Judicial System Reconstruction in East Timor (2001) 29
U.N.S.W. L.J. 171.
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Consultative Council to consult with the East Timorese.155 It subsequently addressed
banking measures and the applicable currency, and implemented measures relating to
taxation.156 It passed a telecommunications law and a code of military discipline, it
established a legal aid service in East Timor, and it enacted a comprehensive
amendment of the applicable rules of criminal procedure.157 On 20 May 2002, the UN
handed over authority to a democratically elected government in East Timor, and
UNTAETs mission ended.
[Vol. 50
UNMIKs legislative activities have been even more extensive, with 27
regulations passed in 1999, followed by 69 in 2000, 41 in 2001, 23 in 2002, 41 in
2003 and 56 in 2004.158 About half of the regulations were supplemented by
administrative directions. Many of the initial regulations fit into familiar categories,
such as the establishment of basic competencies,159 security,160 the amendment or
repeal of prior discriminatory laws,161 and ensuring the effective operation of the
justice system.162 A second series of regulations addressed economic and financial
reform, and banking and foreign investment.163
155 On the Authority of the Transitional Administration in East Timor, UNTAET Reg. No. 1999/1
(27 November 1999); On the Establishment of a National Consultative Council, UNTAET Reg. No.
1999/2 (2 December 1999).
156 See On Bank Licensing and Supervision, UNTAET Reg. No. 2000/8 (25 February 2000); On the
Use of Currencies, UNTAET Reg. No. 2000/2 (14 January 2000); Taxation System for East Timor,
UNTAET Reg. No. 2000/18 (30 June 2000).
157 See On the Establishment of an Authority for the Regulation of Telecommunications in East
Timor, UNTAET Reg. No. 2001/15 (21 July 2001); On the Establishment of a Code of Military
Discipline for the Defence Force of East Timor, UNTAET Reg. 2001/12 (20 July 2001); On the
Establishment of a Legal Aid Service in East Timor, UNTAET Reg. 2001/24 (5 September 2001); On
Transitional Rules of Criminal Procedure, UNTAET Reg. No. 2000/30 (25 September 2000).
158 See online: UNMIK Regulations & Administrative Directions, Official Gazette
159 See UNMIK Reg. No. 1999/1, supra note 60.
160 See On the Establishment of the Kosovo Corps, UNMIK Reg. No. 1999/8 (20 September 1999).
161 See On the Repeal of Discriminatory Legislation Affecting Housing and Rights in Property,
UNMIK Reg. No. 1999/10 (13 October 1999).
162 See UNMIK Reg No. 1999/24, supra note 62; On the Establishment of an Ad Hoc Court of
Final Appeal and an Ad Hoc Office of the Public Prosecutor, UNMIK Reg. No. 1999/5 (4 September
1999); On Recommendations for the Structure and Registration of the Judiciary and Prosecution
Service, UNMIK Reg. No. 1999/6 (7 September 1999); On Appointment and Removal from Office of
Judges and Prosecutors, UNMIK Reg. No. 1999/7 (7 September 1999).
163 See On Bank Licensing, Supervision and Regulation, UNMIK Reg. No. 2001/24 (1 October
2002); On the Banking and Payments Authority of Kosovo, UNMIK Reg. No. 1999/20 (15 November
1999); On the Licensing of Non-Bank Micro-Finance Institutions in Kosovo, UNMIK Reg. No.
1999/13 (16 October 1999); On the Currency Permitted to be Used in Kosovo, UNMIK Reg. No.
1999/4 (2 September 1999).
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UNMIK also placed great emphasis on developing an effective system of
taxation164 and on establishing the institutions and procedures necessary to assist in
the eventual transition to self-government, such as setting up electoral rules and
municipal administrations.165 It has devoted extensive energy and resources to
improving the criminal law system and the administration of justice.166 In sum,
UNMIKs regulations have gone far beyond the types of exceptions permitted to
occupying powers bound by the Geneva Conventions. They touch instead on many
areas of great local concern such as the definition of fundamental rights and freedoms
and the establishment of building blocks for self-government.
E. The Scope of the Legislative Power of the UN Missions
The breadth of subject matter addressed by UNMIK and UNTAET regulations
raises the issue of whatif anythingis outside the legislative competencies of the
UN missions. Because the power of UN interim administrations to legislate is based
on the delegated powers of the Security Council, the answer relates to the applicable
limits to the Security Councils own enforcement actions.
The Security council was never intended to be a legislator.167 Its legislative
actions in post-conflict zones are therefore subject to explicit and implicit limits under
the UN Charter. The explicit limits arise primarily from the authority and powers of
the Security Council set out in Chapters V, VI, VII, VIII, and XII. Assuming the
creation of the UN missions is intra vires the powers of the Security Council, the
Security Council is limited principally by its obligations to maintain international
peace and security. The Charter would, therefore, prohibit legislative acts authorizing
164 See On Excise Taxes in Kosovo, UNMIK Reg. No. 2000/26 (22 April 2000), amending UNMIK
Reg. No. 2000/2; On the Establishment of a Presumptive Tax, UNMIK Reg. No. 2000/29 (20 May
2000), amended by UNMIK Reg. No. 2001/40;On Tax Administration and Procedures, UNMIK Reg.
No. 2000/20 (12 April 2000); On Personal Income Taxes in Kosovo, UNMIK Reg. No. 2002/4 (20
February 2002).
165 See On the Establishment of the Administrative Department of Trade and Industry, UNMIK
Reg. No. 2000/63 (7 December 2000); On Self-Government of Municipalities in Kosovo, UNMIK
Reg. No. 2000/45 (11 August 2000); On the Registration and Operation of Political Parties in
Kosovo, UNMIK Reg. No 2001/16 (4 July 2001), amending UNMIK Reg No. 2000/16.
166 See On the Establishment of a Detention Review Commission for Extra-Judicial Detentions
Based on Executive Orders, UNMIK Reg. No. 2001/18; On the Use in Criminal Proceedings of
Written Records of Interviews Conducted by Law Enforcement Authorities, UNMIK Reg. No. 2002/7
(28 November 2002); On Measures against Organized Crime, UNMIK Reg. No. 2001/22 (20
September 2001); On the Prohibition of Terrorism and Related Offences, UNMIK Reg. No. 2001/12
(14 June 2001); On the Prohibition of Trials in Absentia for Serious Violations of International
Humanitarian Law, UNMIK Reg. No. 2001/1 (12 January 2001); On the Prohibition of Trafficking in
Persons in Kosovo, UNMIK Reg. No. 2001/4 (12 January 2001); On a Constitutional Framework for
Provisional Self-Government in Kosovo, UNMIK Reg. No. 2001/9 (15 May 2001). See also Gregory
L. Naarden & Jeffrey B. Locke, Peacekeeping and Prosecutorial Policy (2004) 98 A.J.I.L. 4 at 727.
167 See Oscar Schachter, United Nations Law (1994) A.J.I.L. 1.
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acts of aggression, the annexation of neighboring territories, or belligerent changes in
borders.
[Vol. 50
More relevant to the scope of legislative competencies are the implicit limits
applicable to the Security Council by virtue of paragraph 2 of article 24 of the UN
Charter, which states that [i]n discharging these duties, the Security Council shall act
in accordance with the Purposes and Principles of the United Nations. The purposes
and principles of the United Nations as set out in Articles 1 and 2 require, in part, the
promotion and encouragement of respect for human rights and fundamental freedoms
without distinction as to race, sex, language, or religion, and the equal rights and self-
determination of peoples.168 This provision does not directly address
the
circumstances under which a UN mission can change domestic laws, but it does
suggest that Chapter VII enforcement actions must conform to certain international
human rights and humanitarian norms.169
Which international human rights and humanitarian principles must the Security
Council respect? Some argue that under paragraph 3 of article 1 of the UN Charter,
the Security Council is bound to respect the broad gamut of rights contained in
instruments such as the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights, the Convention on
the Elimination of All Forms of Discrimination, and the United Nations Human
Rights Convention.170 Because customary international law is not as a general matter
binding on the Security Council, because the UN is not a party to these instruments,
and because member obligations are not attributed or transferred to the UN, a
narrower approach is more persuasive: the core limits on Security Council actions are
those norms that have become customary through its own practice and legitimacy.171
The Security Council has developed, as a matter of its own customary practice,
certain limits on its otherwise broad discretion.172
The Security Council has recognized the applicability of general humanitarian
principles in the context of embargoes. For example, sanctions against Rhodesia,
Haiti, and Yugoslavia, as well as Iraq during the Iraq-Kuwait crisis, were designed to
168 It has been argued that article 24(2) provides a foundation for incorporating and requiring
enforcement of all rights guaranteed in the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights (among other international
instruments), but such an expansive reading has not received wide support. See Jose Alvarez, The
Security Councils War on Terrorism: Problems and Policy Options in Erica De Wet & Andr
Nollkaemper, eds., Review of the Security Council by Member States (Antwerp: Intersentia, 2003) 119.
169 By way of analogy, note the International Committee of the Red Cross position on the
application of international humanitarian law to the UN forces in peacekeeping operations. See
Siekman, supra note 139 at 112.
170 See Erika De Wet, The Role of Human Rights in Limiting the Enforcement Power of the
Security Council: A Principled View in De Wet & Nollkaemper, supra note 168, 7 at 13.
171 See Alvarez, supra note 168 at 125.
172 Ibid. at 129.
K. BOON LEGISLATIVE REFORM IN POST-CONFLICT ZONES
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accord with humanitarian requirements.173 Furthermore, Security Council Resolution
666 signaled that the sanctions regime in Iraq required the assessment and monitoring
of humanitarian circumstances.174 While not legally bound to apply these norms, the
Security Council has nonetheless established parameters for its actions that are
connected to its overall legitimacy.175 In other words, while the Security Council need
not justify its actions with regard to customary international law under the Charter, its
practices have nonetheless developed to demonstrate that it does not operate above
the law.176
317
In addition to these customary norms of practice, the Security Council may be
bound by jus cogens norms. Jus cogens refer to those fundamental and inalienable
rights and duties in customary international law that cannot be set aside by treaty or
acquiescence, but only by the formation of a rule of contrary effect.177 The content and
status of jus cogens norms are the subject of some dispute, but examples include
prohibitions on genocide, the slave trade, and the right to self-determination. Another
norm that is particularly applicable in the context of legislative reform is article 4 of
the International Covenant on Civil and Political Rights (ICCPR), which
safeguards the right to life, the prohibition of torture or cruel and degrading treatment,
the probation of slavery and servitude, the impermissibility of retroactive punishment,
the right of recognition before the law, and freedom of thought, religion and
conscience.178 Fair trial standards also constitute non-derogable norms as set out in
ICCPR article 14, and require bodies established pursuant to UN enforcement actions
(such as the UN missions) to ensure equality before courts and tribunals, and fair and
public hearings by competent, independent, and impartial tribunals.179
173 Ibid. at 92. See also Henry G. Schermers & Niels M. Blokker, International Institutional Law:
Unity within Diversity, 4th ed. (Boston: Martinus Nijhoff, 2003) s. 1577.
174 SC Res. 666 (1990), UNSC, UN Doc. S/RES/666 (1990).
175 See Paul Szasz, The Security Council Starts Legislating (2002) 96 A.J.I.L. 901.
176 See T.D. Gill, Legal and Some Political Limitations on the Power of the UN Security Council
to Exercise its Enforcement Powers under Chapter VII of the Charter (1995) 26 Nethl. Y.B. Intl L.
33 at 62.
177 See Brownlie, supra note 3 at 488. Scheffer, supra note 111, notes that it is unlikely that the
Security Council would approve responsibilities contradicting overarching principles of occupation
law regarded as jus cogens or erga omnes norms (ibid. at 852).
178 International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, art.
4, Can. T.S. 1976 No. 47 [ICCPR]. See also Vera Gowlland-Debbas, Security Council Enforcement
Action and Issues of State Responsibility (1994) 43 Intl & Comp. L. Q. 55 at 70-71, where the
author discusses the application of jus cogens norms to the Security Council; Erika De Wet, Human
Rights Limitations to Economic Enforcement Measures Under Article 41 of the United Nations
Charter and the Iraqi Sanctions Regime (2001) 14 Leiden J. Intl L. 277 at 286.
179 Article 14 of the ICCPR, ibid., is supplemented by Common Article 3 of the Geneva
Conventions, which prohibits the passing of sentences and the carrying out of executions without the
judgment pronounced by a regularly constituted court. Additional Protocol I (art. 7) and Additional
Protocol II (art. 6) provide further relevant standards in this regard.
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The final determinant of the powers and limitations of UN missions is of course
the Security Council resolutions that establish them. The resolutions set out the
mandates, purposes, and jurisdiction of the missions, and as such constitute self-
limits on their legislative powers. Both UNMIK and UNTAET passed regulations
decreeing prior applicable laws to be in force to the extent that they did not conflict
with UN regulations, international human rights standards, or the purposes of the
mandate.180 The UN missions have consequently recognized and implemented a
fundamental premise of the Geneva Conventions, namely the ongoing applicability of
prior law.
The UN missions also acknowledged their obligations with regard to certain
human rights principles. UNTAET Regulation 1999/1 set out a list of internationally
recognized standards that all persons undertaking public duties or holding public
office in the mission were required to respect.181 In Kosovo, UNMIK Regulation
1999/24 stated that persons undertaking public duties or holding public office in
Kosovo should observe internationally recognized human rights standards. Unlike the
UNTAET Regulation, no specific instruments were identified. Nonetheless, the
special representative
that
international human rights standards constituted a legal limit on UNMIKs exercise of
authority in his 12 July 1999 report, which stated that in assuming its
responsibilities, UNMIK will be guided by internationally recognized standards of
human rights as the basis for the exercise of its authority in Kosovo.182
the secretary-general for UNMIK recognized
to
F. Jus Post Bellum Principles in the UN Missions
The concept of trusteeship informs the duties of the UN missions, although its
scope is narrower than those imposed on belligerent occupants by the Hague
Regulations and the Geneva Conventions. Historically, the concept of trusteeship was
central to the mandate system of the League of Nations, and subsequently the
Trusteeship Council of the United Nations.183 The obligations of the administering
180 UNTAET Reg. No. 1999/1, supra note 142, s. 3 (identifying the applicable law as that in force
prior to 25 October 1999); UNMIK Reg. No. 1999/1, supra note 60, amended by UNMIK Reg. No.
1999/25. See also discussion in Marshall & Inglis, supra note 61 at 104-05.
181 These obligations were derived from the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the International Covenant on Economic,
Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination,
the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
and the International Convention on the Rights of the Child. See UNTAET Reg. No. 1999/1, supra
note 155.
182 UN S/1999/779, supra note 145 at para. 42.
183 League of Nations Covenant, art. 22. See Sir Arnold Wilson, The Laws of War in Occupied
Territory (1932) 18 Transactions of the Grotius Society: Enemy territories in the occupation of the
armed forces of another country constitute (in the language of Art. 22 of the League of Nations
Covenant) a sacred trust, which must be administered as a whole in the interests both of the
inhabitants and of the legitimate sovereign or the duly constituted successor in title (ibid. at 38).
K. BOON LEGISLATIVE REFORM IN POST-CONFLICT ZONES
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authorities to promote self-government were to be based on the freely expressed
wishes of the peoples concerned as set out in 76(b) of the Charter. In trusteeship
agreements with territories, the obligation to respect the rights and safeguard the
interests was readily acknowledged. Article 8 of the trusteeship agreement for
Tanganyika, for example, stated:
319
In framing laws relating to the holding or transferring of land and natural
resources, the administering authority shall take into consideration the native
laws and customs, and shall respect the rights and safeguard the interests, both
present and future, of the native population. No native land or natural resources
may be transferred, except between natives, save with the previous consent of
competent public authority. No real rights over native land and natural
resources in favour of non-natives may be created except with the same
consent.184
Occupied and UN administered territories do not fall within the UNs trusteeship
system, which is now essentially defunct.185 Nonetheless, the relationships of
dependency are similar, and some have argued that contemporary occupations have a
status akin to an international stewardship.186 The obligations on member states set out
in article 73 of the Charter (which is not exclusive to the trusteeship system) reinforce
this general duty:
Members of the United Nations which have or assume responsibilities for the
administration of territories whose peoples have not yet attained a full measure
of self-government recognize the principle that the interests of the inhabitants
of these territories are paramount, and accept as a sacred trust the obligation to
promote to the utmost, within the system of international peace and security
established by the present Charter, the well-being of the inhabitants of these
territories, and, to this end:
a. to ensure, with due respect for the culture and of the peoples concerned, their
political, economic, social, and educational advancement, their just treatment,
and their protection against abuses;
b. to develop self-government, to take due account of the political aspirations
of the peoples, and to assist them in the progressive development of their free
political institutions, according to the particular circumstances of each territory
and its peoples and their varying stages of advancement;
c. to further international peace and security
… [emphasis added]
184 As cited in C.V. Lakshminarayan, Analysis of the Principles and System of International
Trusteeship in the Charter (N.p., 1951) at 125.
185 The secretary-general has now recommended deletion of the Trusteeship Council from the UN
Charter. See Secretary-general, In Larger Freedom: Towards Development, Security and Human
Rights for All, UNGA, UN Doc. A/59/2005 at para. 218.
186 In this vein, some commentators consider UN administered territories to be modern day
trusteeships. See e.g. Richard Caplan, A New Trusteeship? The International Administration of War-
torn Territories (Oxford: Oxford University Press for the International Institute for Strategic Studies,
2002).
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The legislative powers of the interim administration set out in UNMIK Reg. No.
1999/1 imply trusteeship by the use of the term entrust:
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In the performance of the duties entrusted to the interim administration under
United Nations Security Council resolution 1244 (1999), UNMIK will, as
necessary, issue legislative acts in the form of regulations. Such regulations will
remain in force until repealed by UNMIK or superseded by such rules as are
subsequently issued by the institutions established under a political settlement,
as provided for in United Nations security Council resolution 1244 (1999).187
The mandate and trusteeship system also provides a basis for the principle of
accountability in international administrations. Although the responsibility to local
inhabitants and local ownership over the process was generally a low priority, the
trusteeship system did create opportunities to formulate questionnaires, make reports,
consider petitions from inhabitants, and make periodic visits to the territories. In fact,
Simon Chesterman suggests that these mechanisms probably represented a higher
level of accountability than what was available to the populations of Kosovo, East
Timor, and Bosnia during recent administrations.188
In Kosovo and East Timor, several accountability mechanisms are worthy of note.
First, the SRSGs of both missions were required to report regularly to the Security
Council, although there was no requirement to report to the inhabitants. Second, both
missions created the institution of Ombudsperson.189 Because UN missions are not
subject to judicial review, the Ombudsperson was virtually the only institution that
could check the authority of the international community. In Kosovo, the
Ombudsperson was created under the auspices of the OSCE in 2000, and has
jurisdiction to investigate complaints against the interim administrations and local
institutions concerning human rights abuses and other abuses of authority.190 It has
exercised this function carefully, and has issued a number of reports highlighting
the
irregularities
Ombudspersons jurisdiction, however, are allegations of abuse by the Kosovo Force
(KFOR).
in UNMIKs administration.191 Conspicuously absent from
The perception of accountability by the UN missions has been weakened by
several developments. The 2001 Constitutional Framework, which affirms the direct
application of human rights in Kosovo, does not state whether these apply to UNMIK
187 Supra note 60.
188 Simon Chesterman, You The People: The United Nations, Transitional Administration, and
State-Building (Oxford: Oxford University Press, 2004) at 45.
189 See Simon Chesterman, The United Nations as Government: Accountability Mechanisms for
Territories Under UN Administration (2002), online: International Peace Academy
in East Timor in 2001, but it had no formal mandate and was not established by regulation.
190 On the Establishment of the Ombudsperson Institution in Kosovo, UNMIK Reg. No. 2000/38
(30 June 2000). Conspicuously absent from the ombudspersons jurisdiction, however, is KFOR.
191 See annual reports of Ombudsperson Institution in Kosovo, online:
K. BOON LEGISLATIVE REFORM IN POST-CONFLICT ZONES
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or to KFOR.192 The definition of authority in the Constitution makes no reference to
the role of international organizations, and NATO personnel are granted broad
immunities.193 This ambiguity translates to the appearance that UNMIK and KFOR
are operating outside of the law, undermining the publics confidence that their
interim government is bound by the principles it claims to espouse. This lack of
confidence has been sharpened by several widely reported incidents of executive
detentions, whereby individuals were detained for up to two years without judicial
review.194
321
leaders from Albanian and Serb communities (although
Accountability is also a matter of process, whereby the local populations are
given ownership over institutional and legal changes. Formally, both UNMIK and
UNTAET included consultative mechanisms with local representatives. Composed of
political
the Serb
representatives rarely participated out of protest), the Kosovo Transitional Council
(KTC) was created as one of the foundational organs of the mission. Similarly, in
East Timor, a National Consultative Council was established under Regulation
1999/2.195 In practice, the process was hindered by the paucity of lawyers trained in
the local legal system and the absence of a legislative committee. UN legal counsel
typically drafted laws, sent them to independent experts such as the Council of
Europe for comments, and then forwarded them on to UN headquarters in New York
for approval.196 This exclusive method of drafting resulted in many legal instruments
containing aspirational standards that were not grounded in practice.197 In some
instances, these standards were not present in the national laws of even the most
liberal democracies. In Kosovo, only the most important lawssuch as the draft
constitutionbecame a matter of public debate, despite other laws that had a very
concrete impact on daily life.198
IV. Legal Reform and Proportionality
This survey of legislative reform reveals a number of interesting convergences in
the activities of both categories of occupant. The scope of these contemporary
experiments in legal reconstruction is unabashedly wide: in each case, legal reform is
192 See Kosovo Constitutional Framework Chapters 2 and 3 and discussion in Marshall & Inglis,
supra note 61 at 102-03. See also Cerone, supra note 140.
193 Appendix B to Kosovo Constitutional Framework: Status of Multi-National Military
Implementation Force, art. 18.
194 See Elizabeth Abraham, The Sins of the Savior: Holding the United Nations Accountable to
International Human Rights Standards for Executive Order Detentions in its Mission in Kosovo
(2003) 52 Am. U. L. Rev. 1291.
195 UNTAET Reg. No. 1999/2, supra note 155.
196 This is based on my personal observations.
197 The drawbacks of this approach are well explained in Katharina Pistor, The Standardization of
Law and Its Effects on Developing Economies 50 Am. J. Comp. L. 97 at 99.
198 Marshall & Inglis write that UNMIKs legislative power has been used without the articulation
of broad policy goals or any consistent, transparent, or inclusive process (supra note 61 at 96).
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liberalism and democracy.199 Furthermore,
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premised upon principles of
the
administrations have recognized, but departed from the fundamental premise of the
law of occupation that the laws of the sovereign remain valid and in force unless
security concerns or competing treaty obligations require their repeal or amendment.
In Kosovo, East Timor and Iraq, the occupants have promulgated wide-reaching legal
reforms with remarkable similarity in subject matters and content, particularly in the
commercial and financial fields. Finally, the goals of the administrations are long
term: to transform the institutions and laws of the occupied state according to the
democratic model and to use legal reform to secure a market economy.200
It is certainly the case that occupants and multilateral interim administrations
require some law-making capabilities. Failure to give authorities the power to pass
and to enforce new laws may create legal and political vacuums in occupied territories
which could lead to chaos and even harm to the inhabitants. The capacity to change
laws is also integral to the democratic system. Nonetheless, the necessity of legal
reform in post-conflict situations stands in an uneasy embrace with the primitive
legislative frameworks applicable to contemporary occupants. The fundamental
precepts of the rule of law risk being violated by the very actors who claim to
establish them. Inadequate or unenforced limits on legislative powers mean that
occupiers risk taking on quasi-imperial roles, blurring the distinction between
occupation and conquest, self-determination and subjugation. The consequence may
be to undermine the right of a people to exercise self-determination.
Post-conflict legal reform produces a fundamental dilemma: on the one hand,
there is a growing consensus that in times of humanitarian crisis, there is a political
imperative to rebuild core state capacities such as functioning legal systems in order
to ensure peace and stability. On the other hand, overexpansive international
involvement in the reconstruction of legal systems risks violating fundamental
premises of international law which maintain that sovereignty cannot be alienated by
the use of force, and that a people has the right to determine its own political path and
legal institutions. As John D. Montgomery stated in 1957 in regard to the artificial
revolutions of Germany and Japan, it is not yet clear that defeat in war may legally
become the means of forcing a people to become free.201
resolve
Trusteeship and accountability provide two conceptual benchmarks that help to
the occupants
this dilemma. These principles provide content
to
199 Literature on transitional justice that addresses the mechanisms for dealing with perpetrators of
massive human rights violations through amnesties, domestic or international criminal processes is
outside the scope of the current study in that it deals with past atrocities, rather than the prospective
creation of domestic legal orders. Nonetheless, there is an important parallel in that transitional justice
mechanisms display a similar commitment to liberal institutions. See e.g. David Dyzenhaus,
Transitional Justice (2003) 1 Intl J. Const. L. 163.
200 For a discussion of market reform in the context of peacemaking, see Roland Paris, At Wars End
(Cambridge: Cambridge University Press, 2004) at 5-6 and 17.
201 Montgomery, supra note 51 at 4-5.
323
K. BOON LEGISLATIVE REFORM IN POST-CONFLICT ZONES
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responsibilities as a legislator based on the explicit and implicit legal mandates of the
occupants. Trusteeship and accountability do not exist in complete harmony, however.
Trusteeship requires that an occupant use its discretion to act in the best interests of
the population; that is, an occupant is required to act on what the inhabitants should
want. The occupant is held to a certain standard of conduct in light of this fiduciary
goal. Accountability, in contrast, requires the occupant to act as an agent for what the
inhabitants actually do want, and to be held to account when decisions are not
transparent or do not conform to developing rules of global administrative law.202
History demonstrates all too clearly how the legitimacy and effectiveness of
international administrations and occupations are undermined if these principles are
not properly balanced.
Proportionality is a useful intermediary between these two concepts in that it
helps to determine what kind of intervention is appropriate by balancing ends and
means according to contingencies. It invites an assessment of the proposed legal
reforms in light of the existing legal system, the goals of the interventions, the
available alternatives. Proportionality is a principle common to both domestic and
international legal systems. In domestic systems, this concept is often employed to
weigh state policies against infringements on individual rights, to assess the
constitutionality of derogations from rights, and to determine the appropriate
measures of punishment for a given crime.203 In the UN system, proportionality
appears in the context of counter-measures and the use of force, and as an equitable
measure in resource allocation.204 It is explicitly found in article 67 of the Fourth
Geneva Convention,205 and might be said to implicitly inform article 64 to the effect
that an occupier must make a proportional determination concerning the applicability
of exemptions to the general rule that prior law remains in force. Proportionality,
202 For a variation of this tension, see Grant & Keohane, supra note 40 at 10-11. See also Benedict
Kingbury et al., The Emergence of Global Administrative Law Law & Contemp. Probs
[forthcoming in 2005].
203 Proportionality is a doctrine of considerable importance in ECHR jurisprudence which has been
adapted from German constitutional law. A three-part test is generally applied: (i) Are the means
chosen suitable? (ii) Does the legislative act go beyond what is necessary? (iii) Is there an absence of
disproportionality? See generally Francis G. Jacobs, Recent Developments in the Principle of
Proportionality in European Community Law in Evelyn Ellis, ed., The Principle of Proportionality
in the Laws of Europe (Oxford: Hart Publishing, 1999) at 1-22.
204 See Enzo Cannizzaro, The Role of Proportionality in The Law of International Counter
Measures (2001) 12 E.J.I.L. 889, and De Wet, supra note 178 at 292.
205 Art. 67 of the Fourth Geneva Convention (supra note 18) provides:
The courts shall apply only those provisions of law which were applicable prior to the
offence, and which are in accordance with general principles of law, in particular the
principle that the penalty shall be proportioned to the offence.
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therefore, acts as a balancing tool to assess the effectiveness of international
enforcement measures.206
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As a primary matter, the identity of the occupant will decide the applicable duties
of trusteeship and accountability. Where legal intervention takes place under UN
auspices, post-conflict reconstruction makes its ultimate goal self-determination,
restoration of stability and peace, the establishment of functioning institutions, a
market economy and respect for human rights. It also sets in motion the democratic
process by preparing for free elections. After a territory has gained independence, the
UN and the international community must respect internal decisions as to the future
direction of the country. Occupants bound by the Geneva Conventions are permitted
far less transformative roles. They act as temporary guardians, and unless tasked with
a broader role by the Security Council, they may not use legal reform as a means to
fundamentally reorient a society.
A proportionality assessment requires an analysis of whether these goals can be
met by an approach that is closer to trusteeship or to accountability on the spectrum of
possibilities. To determine how to apply these duties and fill the gaps in the existing
legal frameworks, the analysis of a variety of circumstances is required. Factors that
weigh in favour of higher trusteeship obligations are the collapse of central
institutions, the absence of a functioning legal system, few trained lawyers, and
outdated and discriminatory laws. Factors that would support more accountability
include a representative civil society, a modern and enforced legal system, some
concurrence on fundamental values such as the division of power between political
constituencies and the role of religion, and a history of democratic elections. The
appropriate package will depend, in each instance, on the identity of the occupant and
the scope of their legal powers, on the goals of the legal reform (to prepare for self-
determination or to maintain the status quo pending the formation of a new
government), and on the conditions in the country itself.
With these factors in mind, were the legal reforms canvassed in this article
proportionate? For Iraq, Eyal Benvenisiti interprets Resolution 1483 as [granting] a
mandate to the occupants to transform the previous legal system to enable the Iraqi
people to meet the goals of self determination.207 But a foundational difference
between the legislative powers of belligerent occupants and interim administrations is
that occupants have no authority to override the legislative acts of prior regimes as a
matter of right. Even where gaps arise in the framework set out by the Geneva
Conventions, the occupant has no inherent power to legislate at will because article 64
confers no such power in the first place. Legal reforms in Iraq that advanced the
duties of the CPA as occupant or addressed the specific goals set out in the UN
206 See e.g. W. Michael Reisman & Douglas L. Stevick, The Applicability of International Law
Standards to United Nations Economic Sanctions Programmes (1998) 9 E.J.I.L. 86 (discussing
proportionality in the context of economic sanctions).
207 Benvenisti, supra note 47, preface.
K. BOON LEGISLATIVE REFORM IN POST-CONFLICT ZONES
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resolutions were justifiable, but reforms that were not reasonably connected to these
goals were not. On this reading, certain reforms in Iraqparticularly the privatization
of the economy are not easily defended as proportionate. This measure has introduced
a radical reorientation of the economy, which cannot meaningfully be changed by
succession governments. In addition, given the democratic goals underlying the CPAs
occupation, the absence of independent accountability mechanisms such as an
ombudspersons office is troublesome, as are efforts to maintain immunities under
international law for private contractors working in Iraq.
325
The breadth of legal reforms in Kosovo and East Timor were problematic for
other reasons. Because the occupants in Kosovo and East Timor were UN missions,
greater accountability in the proportionality analysis is required. Due to the complete
legislative authority granted to the SRSG, and to the UNs broad duty to promote self-
government (a duty which would not apply to an occupant unless the Security
Council provided otherwise), the UN should have ensured the application of human
rights and humanitarian laws to its interim administrations. Some inroads have been
made in the context of the High Representative in Bosnia, as discussed above, but in
future missions clearer standards will be necessary for the long-term legitimacy of the
missions. In more general terms, the legal reforms in Iraq, Kosovo and East Timor
were disproportionate because occupants introduced far too many new regulations
than could realistically take root. The limited ability of local institutions to enforce the
regulations due in large part to poorly functioning and under resourced judicial
systems, and the very different legal cultures existing in these societies, has meant that
the legal reforms surpassed the local absorptive limits. Going forward, more limited
legislative mandates are necessary, which will include a better sequencing of reforms
based not only on short-term crises, but on the longer term ability of a society to
integrate new norms into its existing legal system. In addition extensive consultation
with local members of the legal community, such as judges, is necessary to ensure that
the reforms make sense to the ultimate users of the legal systems, and not just to the
temporary occupants.
V. Conclusion
For foreign legal intervention to be effective, legal reform must be embraced by
the local legal intermediaries (such as courts, judges, and institutions) and by local
populations. Laws function in living systems, and legal reform that takes place by
transplanting foreign laws or by introducing new practices into existing social
contexts will be poorly enforced if the laws are not embedded in the society.208
Consensual and non-consensual experiments
interventionism have
demonstrated the importance of (i) consultation with the users and the administrators
legal
in
208 Daniel Berkowitz et al., The Transplant Effect (2003) 51 Am. J. Comp. L. 163, 179. See also
Katharina Pistor, The Standardization of Law and Its Effects on Developing Economies (2002) 50
Am. J. Comp. L. 97 at 98.
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of the legal systems, (ii) proportionality in determining the nature and extent of those
reforms, and (iii) clear standards of governance (and potential liability where those
standards are infringed) by interim administrations.
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Self-determination rests in an uneasy balance with current peacebuilding
operations. In 1859, John Stuart Mill argued that a state is self-determining even if its
citizens attempt but fail to establish free institutions, but that same state is deprived of
self-determination if the institutions are established by an intrusive neighbour.209 That
is, the members of a political community must seek and establish their own freedom.
The absolutism of Mills statement would be tempered with some caveats today.
Sovereignty is not a shield for egregious violations of human rights, nor are internal
conflicts outside the scope of international humanitarian law. Indeed, some
recommend that peacebuilding missions delay economic reforms and elections until
new institutions are in place.210 Nonetheless, because transitional administrations are
stopgap responses to longer term situations of instability, they must mediate between
immediate needs such as the provision of food and healthcare and reestablishment of
security on the ground with the longer term goals of creating a basis for eventual self-
government.
The foregoing analysis has shown that legal reform has often proceeded without
regard for the applicable limits on the powers of international administrations and
occupants under international law. This approach can be explained in light of the
occupants interest in operating freely and acting quickly in post-conflict zones. It
may also be the result of a general presumption that because legal interventionism is
motivated at least in part by a desire to secure democracy and a market economy,
good judgement and respect for limits are inherent in the mandate. The central
contention of this analysis has been that certain functional limits must be incorporated
into legal reform mandates, and that the principles of trusteeship, accountability, and
proportionality are factors that can be used to articulate substantive standards in the
legal frameworks applicable to occupation. In applying these factors to the
contingencies of post-conflict situations on the ground, the international community
can help to establish a framework that will define the ethical calculus of its
relationship with post-conflict regimes and that will establish a more systematic
approach to legal reform. The sweeping powers granted to the SRSGs in Kosovo and
East Timor may ultimately be exceptional, but the open-ended nature of the law of
occupation demonstrates the considerable latitude that must be curbed if future legal
reform in the context of occupation and interim administrations is to be legitimate.
209 John Stuart Mill, A Few Words on Intervention in Essays on Politics and Culture, ed. by
Gertrude Himmelfarb (New York: Doubleday, 1962) 396 at 411. See discussion in Walzer, Wars,
supra note 13 at 87.
210 Paris, supra note 200 at 6-7.
