B. Th e Laws of Occupation and Post-Confl ict Reconstruction
2. Peace-building Operations and Enforcement Action
There is a growing acceptance of the obligation on UN Forces to respect inter- national humanitarian law when they are in a situation of armed conflict. The Secretary-General confirmed in his 1999 Bulletin that “the fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence”.447 The 1999 Bulletin, however, does not contain an explicit proclamation that UN Forces are bound by the Geneva Conventions or Hague Regulations, just as no provision in the Bulletin deals with the potential applicability of the law of occupation.
As with the already discussed application of human rights, the main hurdle is that the UN itself is not a party to the applicable conventions. The degree of application of the rules contained in the Hague Regulations and the Geneva Conventions is still not agreed upon. Some scholars argue that the entire legal framework of the laws of armed conflict is applicable, while others contend that the UN is bound only by those rules which are declaratory of customary international law.448 In view of our conclusion in respect of the human rights obligations of the UN, one can mutatis mutandis claim that the latter alternative is preferable. It should also be added that in any case forces operating in foreign territory are composed of national contingents, which are required to respect the laws of armed conflict.449 The only question then is whether or not there is an armed conflict or a situation of effective occupation which can trigger the formal application of the relevant international rules.
In our view there is again no well-founded obstacle to the application of the law of occupation in the case of a military occupation by UN Forces having a coercive peace-enforcement mandate. Benvenisti, in defining the occupation of territory, also clearly indicates that occupation can be exercised by “one or
446 Roberts, supra note 427, p. 291.
447 UNSG Bulletin, Observance by United Nations Forces of International Humanitarian Law, ST/SGB/1999/13 (6 August 1999).
448 Roberts, supra note 427.
449 Sassoli, supra note 349, p. 143.
more states or an international organisation, such as the United Nations”.450 It is therefore important to analyse the situation ‘on the ground’ to assess the effec- tiveness of the occupation of the territory concerned. When the UN finds itself in a situation of effective control over a territory or part of a territory without explicit consent by the host State, the UN Forces should be considered as an occupying force.451 Several scholars have nevertheless argued that UN Forces could not be considered as occupiers because the main difference from the tra- ditional belligerent occupation is that international forces are in a relationship of co-operation with the local population instead of a conflict of interest,452 or that international humanitarian law is inadequate to deal with peace operations.453 But, as already mentioned, international forces can be in a situation of effective occupation of territory, which is the basis of the application of the law of occu- pation. The adequacy of the existing legal apparatus is indeed highly relevant, but, as will be made clear later, the laws of armed conflict, including the laws of occupation can be a helpful tool in post-conflict scenarios.
As far as State practice is concerned, attention should be drawn to the status of UNITAF in the case of Somalia. Although the UN did not recognise the de jure application of the Fourth Geneva Convention, the Australian Government accepted that the laws of occupation applied fully to UNITAF, which did not meet with armed resistance from the territorial sovereign.454 The UN for its part only considered that “in an environment of State collapse, the Fourth Geneva Convention could supply adequate guidelines for regulating relations between peacekeeping troops and the local population”.455 As INTERFET in East Timor is concerned, the Australian Government found that the laws of armed conflict were not applicable as there was no international or non-international armed conflict on East Timorese territory at the time of the intervention. The Australian Government thus applied the principles of the laws of armed conflict by way of
‘guidelines’. The Australian Government equally considered that INTERFET was not in a situation of belligerent occupation of territory because Indonesia had
450 Benvenisti, E., The International Law of Occupation (Columbia / Princeton: University Presses of California, 2004), p. 4.
451 Also Ibid. and Sassoli, supra note 433.
452 Shraga, D., ‘The UN as an actor bound by international humanitarian law’, in Les Nations Unies et le droit international humanitaire, Actes du Colloque international à l’occasion du 50ième anniversaire de l’ONU (Paris: Pedone, 1996), p. 326.
453 Megret, F. and Hoffmann, F., ‘The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities’, 25 Human Rights Quarterly 330 (2003).
454 Kelly, McCormack, Muggleton and Oswald, supra note 383.
455 United Nations Department of Peacekeeping Operations, The Comprehensive report on Les- sons Learned from the United Nations Operation in Somalia (UNOSOM), New York (April 1992–March 1995).
consented to its deployment.456 The New Zealand position was, on the contrary, that the laws of armed conflict did apply to INTERFET, disregarding the fact that Indonesia had consented to its deployment, especially considering that no other State, except Australia, had recognised Indonesian title to East Timor.457
The question remains whether the laws of occupation continue to apply in the case of a subsequent agreement with the host state, considering that, in that case, there is no longer opposition between the armed forces of the host state and those of the international force. In that regard, it should be remembered that article 47 of the Fourth Geneva Convention provides that “protected per- sons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory”. It can be argued that this provision concerns not only agreements concluded before the occupation, but also agreements concluded during hostilities.458 Although more specific regulations can be envisaged in the agreement concluded between the international forces and the host state, the laws of occupation can be regarded as a minimum or secondary source of applicable rules. We could therefore con- clude that, even when a subsequent agreement with the host state regulates the occupation, by analogy the rules of the laws of occupation remain applicable, albeit in a subsidiary manner and in conformity with the concluded agreement.459 The laws of occupation likewise remain in force even when an occupying power’s mandate is confirmed or modified by a consequent Security Council resolution, or when the presence of a military force is ‘formalised’ by a Security Council resolution, as was the case for KFOR in Kosovo. Jus ad bellum issues cannot affect the application of the laws of armed conflict, because those laws apply notwithstanding the legality or legitimacy of a conflict or an occupation, How- ever, in line with what we argued on the previous paragraph, the application of the laws of occupation should then be interpreted according to the mandate given to such Forces.460
456 Kelly, McCormack, Muggleton and Oswald, supra note 383.
457 Ibid.
458 Roberts, supra note 427, p. 279.
459 This situation should not be confused with that of an agreement concerning the stationing of foreign military forces in another State, which is fundamentally different from occupation (Roberts, supra note 427, pp. 297–298).
460 Also: Irmscher, supra note 327, p. 376.