Wednesday, September 20, 2006

Regulating the New Face of War

George Bush's war on decency has demonstrated that the Geneva Conventions are fairly toothless and that they need to be updated to deal with his assault on international law. Hopefully the next president of the United States will have a modicum of respect for the rule of law and will take up the challenging task of reforming these landmark international agreements on the law of war.

Grant Harris points out that the law of occupation also needs to be updated based upon the the recent practices of putting together international multilateral occupations ostensibly focused on nation-building.
Conventional wisdom holds that international occupation is a temporary byproduct of war. The international law of occupation is grounded in this assumption and consists of a substantive norm of interim administration with limited discretion on the part of the occupant and a procedural norm of unilateralism. Yet many observers of the occupations of Iraq and Afghanistan intuitively sense that modern occupations are somehow “different” and that new or changed rules apply. That intuition is correct. This Article describes the emergence of a new regime of occupation and an emerging “de facto modern law of occupation” that break dramatically from past practice and the de jure law of occupation. The substantive norm of this new model is nation-building and the procedural norm is multilateralism. The assumptions and parameters of the de jure law of occupation are outdated and incapable of providing a meaningful legal framework for modern occupations. What are the consequences of this new model of occupation and the resultant lacuna of applicable international law? The occupation of Iraq illustrates a paradigm shift in the practice of occupation and proves that the resource and legitimacy needs of modern occupations create an “invisible hand” that pushes occupying powers toward international cooperation and compliance with international norms of behavior. At the same time, however, the era of multilateral occupation contains defects because its de facto rules lack the advantages of positive law and the legal status of territory occupied by the United Nations is ambiguous. |SSRN|

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