Dona Nobis Pacem: Occupied Before Jus Post Bellum?!

Home , 2018 in Germany, Avalon (MPV), Balangiga bells, Debellatio, Dennis Howard Green, Four occupations

Dona nobis pacem: Occupied before jus post bellum?!

A dissertation submitted to the

Graduate School

Of the University of Cincinnati

in partial fulfillment of the

requirements for the degree of

Doctor of Philosophy

In the Department of Political Science

Of the College of Arts and Sciences

Albert W. Klein, Jr.

LLM. Georgetown University Law Center

May 1999

M.S. Troy University

August 1989

J.D. University of Akron, School of Law

May 1985

Committee Chair: Rebecca Sanders, Ph.D.

Abstract:

Returning sovereignty to a vanquished county after a state on state war can be accomplished by a belligerent occupation and jus post bellum phases. The concept of belligerent occupation was developed by the French to take the place of conquest after a state on state war. Belligerent occupation seeks to return the sovereignty back to the vanquished rather than retaining control over that defeated people and territory. In the last quarter millennium, the diplomats, the militaries and the courts have established the concept of belligerent occupation but with varying success due to a lack of planning for this end. With the careful and extensive planning for the Allied occupation after the Second World War success was attained albeit with great effort during the belligerent occupation. Comparing the occupations of Germany, Japan, and Iraq several additional planning indicators are advanced for the successful completion of a belligerent occupation. Indicators deal with the occupation plans and planning for implementation, how the victors are viewed, a functioning government in the vanquished country, the homogeneity of the vanquished population, the size of the country and population of the defeated state, the length of the war prior to occupation, and the anticipated length of the occupation. The extant treaty based occupation laws under The Hague and Geneva Conventions provide a sufficient legal basis for a successful belligerent occupation. These planning indicators supported by the treaty law can only be effective once there is sufficient control and security in the vanquished country to begin the state building process. The ideal belligerent occupation requires a military victory, a peace agreement, a commitment to reconstruction, and a promise to return their sovereignty to the vanquished. A final step to prepare the vanquished for a return of sovereignty is a jus post bellum phase addressing retribution, rebuilding, reparations, reconciliation, and proportionality. Impediments to the ideal belligerent occupation are considered along military and legal lines of analysis. A policy relevant proposal using the United States as the example is offered to focus on the planning details and assigning responsibility for the specific tasks. The call for a Post-Conflict Planning Cell with the concomitant coordination in a “whole of government” and “whole of nation” approach is proposed.

Acknowledgements

My first acknowledgement is to my wife, Terry, for her support through my military and academic careers. Moving every two years was trying as she sought new jobs everywhere we moved and was successful in that endeavor. She had many educational triumphs with a Master’s degree in Food and Nutrition (MFN), another Master’s degree in Human Relations (MHR), certifications in Oncology (CSO), parenteral and enteral nutrition (CNSC), Registered Dietitian(RD), and Licensed Dietitian (LD), and earning her Dietetics Degree (BS in Nutrition). All achieved at the top of the class. A big thank you for your love and support!

I want to thank the Dissertation Committee! Professor Rebecca Sanders was the chair ably assisted by Drs. Rina Williams, Richard Harknett and Luis Lobo-Fernandes. I appreciated your time and counsel.

Thanks go to those who have provided encouragement during my studies. Not wanting to miss anyone thanks to all of you!

Table of Contents

Introduction p. 12 Chapter 1. Belligerent Occupation: Development and Concerns p. 33

1.1 Separating belligerent occupation from conquest, colonialism, and annexation

1.2 Scholarly consideration of Belligerent Occupation

1.3 A Brief Developmental History of Belligerent Occupation and Its Law

1.4 Belligerent Occupation Concerns of the United States

1.5 Conclusion Chapter 2. Comparative Belligerent Occupation: The United States in Post-war Germany, Japan, and Iraq p. 82

2.1 American theories prior to the post-Second World War Belligerent Occupations

2.2 US occupation in Germany under the Four Powers Arrangement

2.3 Japan under exclusive US occupation

2.4 The Iraq occupation by the US and the United Kingdom under the United Nations

2.5 Conclusion

Chapter 3. Constructing a model to examine Belligerent Occupation p. 119

3.1 Modeling belligerent occupation generally 3.1.1. Do the occupied recognize the need for the occupation? 3.1.2 Is there a common threat to the occupied territory?

3.1.3 Is there a credible guarantee of withdrawal?

3.2 Additional Indicators

3.2.1 Coordinated plan for the occupation?

3.2 Additional Indicators

3.2.2 Liberated or defeated?

3.2.3 Functioning Government or not?

3.2.4 Homogenous occupied population?

3.2.5 Length of war prior to the belligerent occupation

3.2.6 Size of the occupied State and 3.2.7 Number of occupation forces.

3.2.8 Population of the occupied state

3.2.9 Length of the occupation.

3.3 Occupation strategies

3.4 Conclusion Chapter 4. Attempts to Change the World, Legally p. 181

4.1 Overview of Belligerent Occupation Law

4.2 The vague Hague Conventions?

4.3 Is clear “occupation” law promulgated under the Fourth Geneva Convention?

4.4 Occupation Law Skeptics

4.4.1 Transformative occupation: change for the better?

4.4.2 Jus Post Bellum: Just Peace or just gap filling?

4.4.3 Transitional justice or new victor’s justice?

4.5 Conclusion

Chapter 5. Just War Theory and the evolving concept of jus post bellum p. 235

5.1 Historical development of the just war tradition

5.2 Just War Basics

5.3 The Evolving Concept of jus post bellum in the Just War Theory

5.4 Jus post bellum today

5.5 The battle to establish the elements of the jus post bellum concept

5.6 Seeking the elements of jus post bellum

5.7 Conclusion Chapter 6. Toward the Ideal Belligerent Occupation p. 296

6.1 Four Transitional Factors after the Apocalypse of War

6.1.1 Factor 1: Military victory

6.1.1.1 Physical control and basic internal security

6.1.1.2 Implementing physical control and basic internal security

6.1.1.3 Disarming the defeated after surrender

6.1.1.4 Arrangements for Prisoners of War (POWs)

6.1.2 Factor 2: Peace Agreement

6.1.2.1 Political Order

6.1.2.2 Security

6.1.2.3 Return of power

6.1.2.4 Self-sustainment

6.1.2.5 Belligerent occupation

6.1.3 Factor 3: “Reconstruction”

6.1.3.1 Retribution

6.1.3.2 Rebuilding

6.1.3.3 Reparations

6.1.3.4 Reconciliation

6.1.4 Factor 4 Timeline of Occupation

6.2 Judging the Ideal Occupation

6.3 Conclusion Chapter 7. Impediments to the Ideal Belligerent Occupation p.364

7.1 Impediments in Military Operations: Troops and Mission

7.2 Impediments in Military Operations: Military Governance?

7.3 Legal Impediments

7.3.1 Legal impediments: Are the Laws of War special? Lex specialis in an era of human rights leges generals

7.3.2 Legal Impediments: Is belligerent occupation the Laws of War’s gateway to peace?

7.3.3 Legal impediments: International Law by any other name would be just as confusing?

7.4 Conclusion Chapter 8. A Policy Relevant Proposal p. 411

8.1 The Department of Defense: Internal neglect but external grasp for belligerent occupation primacy?

8.2 A brave new world for belligerent occupation?

8.3 Practicalities from planning through execution

8.4 Conclusion

Chapter 9. Observations and Decisions p. 450

9.1 Observation: The Department of Defense is the primary agency during the belligerent occupation phase. The Department of State is the primary agency in the “reconstruction” phase with military forces available to enforce the peace.

9.1.1 Organize belligerent occupation planning inside the Department of Defense but coordinate a “whole of government” approach and seek input from civilians.

9.2 Observation: Develop a belligerent occupation plan considering many factors!

9.2.1 The tools are available in treaty law, the concept of jus post bellum, and the ideal belligerent occupation despite the impediments to each of these three fields.

9.3 Observation: A policy relevant proposal

9.4 Observation: The language barrier

List of Tables and Figures

Tables

Introduction

Table 0.1 Factors and Elements of Ideal Belligerent Occupation p. 16-17

Chapter 1

Table 1-1 Seventeen Types of Occupations p. 36-7

Chapter 2

Table 2-1 US Belligerent Occupations (temporary post-war control) p. 86-87

Chapter 3

Table 3-1 Author’s Chart of Edelstein’s Factors p. 123

Table 3-2 Additional Indicators p. 139

Table 3-3 Compilation of Edelstein and Klein Indicators p. 180

Chapter 5

Table 5-1 Scholars and elements of the jus post bellum concept p. 278

Chapter 6

Table 6-1 Factors and Elements of the Ideal Belligerent Occupation p. 298

Table 6-2 A peace agreement p. 322

Table 6-3 Commitment to “reconstruct” p. 332

Chapter 7

Table 7-1 Contextual Foundation for the Use of Force by State Actors p.394

Chapter 8

Table 8-1 US Joint Staff Organizational Chart p.434

Figures

Introduction

Figure 0.1 The Cycle to Find Just Peace p. 26

Figure 0.2 Traditional View of the Laws of War and Peace p. 29

Figure 0.3 My View of Occupation and jus post bellum between the Laws of War and Peace p.29

Chapter 6

Figure 6-1 Belligerent Occupation Unites the Laws of Peace and War p. 298

Chapter 7

Figure 7-1. Belligerent Occupation Unites the Laws of Peace and War p. 391

Figure 7-2 Use of Force Continua under the Laws of Peace and War p. 408

Chapter 8

Figure 8-1 US Joint Staff Organizational Chart p. 420

INTRODUCTION

War “…is all hell!”1

There is no such pithy idiomatic expression for a war’s post-conflict phase, that time from the end of major fighting until the vanquished nation regains the ability to govern itself.

Remarkably, war, the ultimate breakdown of human civilization, is to be fought by civilized rules. Such rules of war have been developed over several millennia and continue to evolve in spite of their already long history.

From classical antiquity to the end of the Second World War, the post-conflict phase of war was almost completely ignored by the victors. In this post-conflict phase of a state-on-state war is when peace can and should be established. The ultimate question is how to go about creating that peace between former enemies after a war. I will offer that a carefully planned belligerent occupation can be a successful model based on the lessons learned in the implementation after the Second World War. The failure to effectively conduct a belligerent occupation phase risks winning the war but losing the peace. Succinctly, absent a belligerent occupation in state-on- state wars the post-victory peace could be lost. Yet to return the sovereignty to the vanquished and enable a just peace another phase is necessary, that is, a jus post bellum phase for

“reconstruction.” Together a belligerent occupation and a jus post bellum phase between the

1 W.T. Sherman, speech at Columbus, Ohio, 11 August 1880 in Lewis, Lloyd. Sherman, Fighting Prophet. Harcourt, Brace & Company, 1932, p. 636.

Laws of War and Peace, I argue, would work to return the sovereignty to the vanquished and enable a just peace. See Figure Introduction-3 below.

This work will include military, legal, and the religio-philosophical inputs to capture the totality of the occupation situation since in reviewing the literature regarding occupation the subject is usually treated in one dimension. I propose that such a belligerent occupation is practicable under The Hague and Geneva Conventions. With adequate prior planning, considering multiple indicators, a belligerent occupation can be successful. I will contend that it is possible to work toward that peace by developing an ideal belligerent occupation at least as an aspirational goal coupled with a jus post bellum phase can return sovereignty to a vanquished state in a just peace. I will offer a policy relevant putative solution often missing in publications on the post- conflict stage of war that only identifies the issues.

I feel uniquely qualified to develop the ideal belligerent occupation; the jus post bellum phase, impediments, and the policy relevant proposal due to over a quarter century of military service, nearly thirty five years of legal practice with an emphasis in international law, and some actual

“real world” international relations experience in the aftermath of the Iraq occupation.2

Introduction.1 Background.

Unlike the rules of war, the rules to govern the post-conflict phase of war only began to be thought about and implemented just over two centuries ago ironically during the bloody French

Revolution and the destructive Napoleonic Wars. Prior to the Treaties of Paris signed on 20

2 Author’s Note: I served in the US Air Force from 1985 to 2010 as a Judge Advocate. While deployed from 2004- 2005 in the Combined Air Operation Center (CAOC) in Qatar, I served as the senior Air Force Legal Advisor forward in the region.

November 1815 ending the Napoleonic Wars and based upon the Congress of Vienna, the defeated fared badly during the wars of conquests.

Conquest is defined in international law as “…the acquisition of the sovereignty of a country by force of arms, exercised by an independent power which reduces the vanquished to submission….”3 In conquest there are victors and vanquished or defeated people. The vanquished were killed, enslaved, or placed into involuntary servitude while their conquered state was absorbed into that of the victors or a puppet regime was established to reign over them. In the western tradition this conquest is best illustrated by Julius Caesar’s famous quote about the Pontic triumph “veni, vidi, vici” translated famously as “I came, I saw, I conquered.”4

The eastern world had a great conqueror in Chingis [Genghis] Khan as he “…is numbered among the history’s greatest conquerors and commanders, and it is perhaps only because of the horrifying slaughter and destruction that followed in the wake of his conquests that he does not stand above them all.”5 Across history and cultures the conquest began with descriptions similar to the following describing the fall of Constantinople in 1453 “…the streets were running with blood. Houses were ransacked, women and children raped or impaled…Sultan Mehmet had promised his men the three days of looting to which by Islamic tradition they were entitled….”6 Put another way “[o]nce the city had been taken by force, its inhabitants and their

3 Black, Henry Campbell, and Michael J. Connolly. Black's Law Dictionary, 5th ed. West Publishing Co, U.S., 1981, p. 275. 4 Suetonius and Catharine Edwards. Lives of The Caesars (Oxford World's Classics). Oxford University Press, 2008, Section 37(2), p. 52. 5 Chambers, James. The Devil's Horsemen: The Mongol Invasion Of Europe. Atheneum, 1985, p. 43. 6 Norwich, John Julius. Byzantium: The Decline And Fall. Alfred A. Knopf, 1995, p. 436.

14 wealth were at the mercy of the conquerors.”7 Conquest resulted in such horrifying killing and destruction during the millennia prior to the development of occupation. It was indeed woe to the vanquished during the time in history when conquest prevailed as an end to war.

The concept of occupation changed the outlook for the vanquished from misery and slavery to hope through the return of sovereignty to that defeated state after a period of occupation.

Such a change was indeed an extraordinary difference when compared to conquest.

Occupation developed during the French Revolution by the French when they refused to conquer their neighbors although they would defend their revolution. The practice of not conquering France’s neighbors did not last long as when Napoleon came to power France became Europe’s newest conqueror. But this was different. Napoleon did not want to leave troops behind to hold these conquests so leaving an administrative staff supported by minimal troops the vanquished were permitted to govern themselves while paying monetary tribute to the French. The French military8 and court system9 struggled with the idea of how to govern the gains in new territories while appearing not to be conquerors. After the Napoleonic interlude from 1803 to 1815, the idea of occupation continued with those states allied10 against Napoleon occupying France so as to ensure the return of the French Bourbon king to power. In seeking to restore the monarchy in France and all of the other rulers defeated by the

French throughout Europe, the allies could not accept Napoleon’s conquests as legitimate thus

7 Kennedy, Hugh. The Great Arab Conquests: How The Spread Of Islam Changed The World We Live In. Da Capo Press, 2007, p. 258. 8 Stirk, Peter M. R. A History Of Military Occupation From 1792 To 1914. Edinburgh University Press, 2016, p. 49-84. 9 Id., p. 89-91. 10 Jarrett, Mark. The Congress Of Vienna And Its Legacy. I.B. Tauris, 2012. The major powers aligned against France were Austria, Britain, Prussia, and Russia. Lesser powers included Sweden, Portugal, and Spain. The restored Bourbon France was represented by Talleyrand. For the combatants, see, Hofschröer, Peter. 1815 The Waterloo Campaign: Wellington, His German Allies and the Battles of Ligny and Quatre Bras. Greenhill Books, 1998.

15 the concept of occupation continued to emerge and evolve. A long and difficult road stood in front of the development of a concept called “belligerent occupation” in dealing with the post- conflict phase of war and the governance that is required to return the vanquished state to the people thereof.

To conceptualize this ideal belligerent occupation further I offer four factors, each with supporting essential elements. These essential elements are enumerated to complete the idea contained in the factor. Please refer to Table Introduction-1 below. These four factors and their elements were developed by comparing the success and failures in the case studies examined of the belligerent occupations in Germany and Japan after the Second World War and the

United Nations’ first ever occupation in Iraq from 2003 to 2004. These will be viewed primarily from the perspective of the United States since the United States was involved in all three of these belligerent occupations in different formats. I focus on the United States due to the availability of records, familiarity with the military and civilian structure and culture of the US military, and the probability the United States will be involved in another belligerent occupation. Since the United States military is often imitated by other militaries, if the US can get belligerent occupation correct there could be some imitated by other militaries if the US can get belligerent occupation correct there could be some transference learning.

TABLE Introduction-1. Factors and Essential Elements of Ideal Belligerent Occupation.

1. Military victory then

a. physical control and basic internal security

b. disarming the defeated after surrender

c. arrangements for Prisoners of War (POWs)

2. A peace agreement that addresses

a. belligerent occupation to achieve and preserve the peace

b. security (internal and international)

c. political order

3. Commitment to “reconstruct”

a. retribution

b. rebuilding

c. reparations

d. reconciliation

e. self-sustainment of the vanquished state and polity

4. Occupation will not be indefinite as the vanquished state will be returned to the polity

a. indicia for eventual return of power to the vanquished

______

These four factors do not occur without significant military planning regarding both the conduct of the war and, more poignantly, the follow-on belligerent occupation. So what can the victor or victors in a state-on-state war incorporate into future belligerent occupations to return sovereignty to the vanquished?

We will explore these and other queries in this work in the following order. I note at the beginning the lament of David Edelstein that “…it is surprising there is so little scholarly

[political science] literature on the subject”11 especially in light of its current importance and significance. Briefly our journey begins with a genealogy of occupation followed by; cases

11 Edelstein, David M. Occupational Hazards: Success and Failure in Military Occupation. Cornell University Press, 2008, p. 15.

17 studies of the occupations in Germany, Japan, and Iraq. Next, I will examine the four major treaties dealing with occupation to determine what, if anything is missing. I will proceed to develop the Just War Theory focusing on the putative third leg of jus post bellum. My intention is to use all of this earlier material to create the ideal belligerent occupation parameters; and consider the challenges to implementing this ideal. In closing this effort, I will present an applied political science policy relevant proposal regarding the US approach to occupation prior to the conclusion. I will try to present these military, legal, and life experiences to further the discussion of belligerent occupation leading to jus post bellum phase then the return of sovereignty to the vanquished people.

Introduction.2 Organization.

Chapter 1 will begin with the development of the concept and the actual use of occupation although there is a lacuna due to the dearth of occupation experiences. In fact there have been only 26 occupations12 since the restoration of the French King in 1815. All but three of these occupations ended during the twentieth and early twenty-first centuries. Recommendations regarding the return of sovereignty to the vanquished in a just peace are found throughout this work. Even the United Nations did not want to employ the normal rules of occupation and these occupation rules were not applied to the vanquished states after the Second World

War.13 Note that this lack of application to the post-Second World War occupations does predate the ratification of the Geneva Conventions in 1949. However, the major post–Second

World War Occupying Powers, France, the Soviet Union, the United Kingdom, and the United

12 Id. p. 4-5. 13 Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 107, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 28 November 2017].

States, were some of the leading proponents of these conventions and were certainly aware of the negotiations leading to the development of those Geneva Conventions. In other words, the

Fourth Geneva Convention provides a solid legal foundation for sound occupation practices but its requirements have not been applied on the ground except, arguably, in the tenuous case of

Iraq under United Nations Security Council Resolution 1483 adopted on 22 May 2003. There was considerable confusion even though, in that Resolution, the pertinent preambular clauses provides

Noting the letter of 8 May 2003 from the Permanent

Representatives of the United States of America and

the United Kingdom of Great Britain and Northern

Ireland to the President of the Security Council

(S/2003/538) and recognizing the specific authorities,

responsibilities, and obligations under applicable

international law of these states as occupying powers

under unified command (the “Authority”),

Noting further that other States that are not occupying

powers are working now or in the future may work under

the Authority, Welcoming further the willingness of Member

States to contribute to stability and security in Iraq by

contributing personnel, equipment, and other resources

under the Authority…. [Emphasis added]14

14 United Nations, S/RES/1483 (22 May 2003).

This preambular language “…confirmed the application of occupation law in Iraq….”15 Iraq then is the only case where the United Nations Security Council, in over seventy years, has publically confirmed the application of this set of laws and the Occupying Powers acknowledged the obligations of occupation law. Concluding the history and development of the concept called belligerent occupation we will look to the practice of that type of occupation.

In Chapter 2, I consider the history of the practical implementation of the concept of belligerent occupation. This will entail the distinction between conquest and occupation since

[t]he modern law of belligerent occupation is anchored

in the concept that occupation differs in its nature and

legal consequences from conquest. It is therefore not

surprising that the early definitions of the modern

concept of belligerent occupation are chiefly concerned

with the main aspects of this difference, namely the

temporary nature of belligerent occupation as contrasted

with the permanency of conquest , and the limited, than

full powers which belligerent occupation entails for the

occupant.16

Further distinction from colonialism and annexation will be considered as these are also quite different from but could be confused with belligerent occupation.

15 Scheffer, David J. "Beyond Occupation Law," The American Journal of International Law, vol. 97, no. 4, 2003, p. 842. JSTOR, doi:10.2307/3133684. 16 Graber, Doris A. The Development of The Law Of Belligerent Occupation, 1863-1914, A Historical Perspective. AMS Press, 1949, p. 37.

Starting with the post- Second World War occupations of Germany, Japan, and Iraq in Chapter

2, the inquiry will look to the practical problems surrounding actual occupations. The lessons learned from the post-Second World War and the Iraq occupations will be established and compared. The lessons learned from by the occupations of Germany and Japan may not have been sufficiently reviewed or understood or, alternatively, were overused despite quite different circumstances. Furthermore, the detailed military planning for the occupation in Iraq may not have occurred across the “whole of government”17 or was not as thorough as in the

Second World War.18 If these lessons were not learned and the detailed planning not conducted these two problems may have contributed to the seemingly unsuccessful occupation in Iraq.

Chapter 3 will seek to improve on a model for belligerent occupation with Edelstein’s effort forming the basis for that further development. The apparent lack of planning for belligerent occupation has resulted in difficult belligerent occupation situations for the US. To address that gap nine additional indicators were created to be considered in the planning for a belligerent occupation. See, Table Introduction-2 below. I argue occupation plans need to be started early during the war as these will take time and many assumptions to build. The goal of the

17 Percy, Jason L, and Terry A. Fellows. "A Whole Of Government Approach For National Security" Apps.Dtic.Mil, 2009, p. 3-4. https://apps.dtic.mil/dtic/tr/fulltext/u2/a514230.pdf (Accessed 13 Aug 2019). “The WOG [Whole of Government] approach to national security is a concept that brings a unified effort between inter-governmental agencies to maximize all available resources in a collaborative effort.” See also, Worzala, Mary et al. "Deploying The Whole Of Government | Deloitte US". Deloitte United States, 2017, https://www2.deloitte.com/us/en/pages/public-sector/articles/deploying-the-whole-of-government.html. (Accessed 4 July 2018). “Our approach is called whole of government (WoG)—a comprehensive way to assemble resources and expertise from multiple agencies and groups to address problems with interrelated social, economic and political causes. The approach plays to comparative advantage and maximizes resources.” 18 Gordon, Michael R. "Army's Iraq Lesson: Written, Withheld" The Wall Street Journal, 2018, pp. A1, A8. This article states that the Army “had to spend the first years in Iraq relearning lessons.” The word occupation was not used in this article.

21 belligerent occupation phase is to establish a functioning government in the chaotic post-war situation. I see the belligerent occupation as the first step in a bifurcated process to begin the return of sovereignty to the vanquished. See Figure Introduction-3 below. The second step in that bifurcated process is the jus post bellum phase explored in Chapter 5.

Examining, in Chapter 4, the actual texts of the occupation laws under The Hague and Geneva

Conventions, I will ascertain what they provide and the applicability of those articles. To perform this legal review I must include consideration of the complex military operations during and after the war.

Table Introduction-2. Additional Planning Indicators.

1. A coordinated belligerent 2. Is the occupied liberated or 3. Functioning government at occupation plan? defeated? war’s end? 4. Homogenous vanquished 5. Length of war prior to 6. Size of occupied country. people? belligerent occupation. 7. Number of US occupation 8. Population of the occupied 9. Length of occupation. forces. country.

The Hague Conventions will be probed to ascertain their reported vagueness and doubted continuing applicability. World War Two was so devastating that some treaties were needed to ameliorate the human suffering of the combatants but especially that which befell noncombatants. After the Second World War, the then “world” consisting of representatives of 64 nations, gathered to address and ameliorate the ravages of this truly world-wide war by

22 establishing “The Geneva Conventions of August 12, 1949”19 commonly referred to as “the

Geneva Conventions.” There are four of these conventions dealing, respectively, with

“wounded and sick”, “wounded, sick, and shipwrecked”, “prisoners of war”, and “protection of civilians in time of war.” Our interest is in the fourth of this series of treaties entitled “Geneva

Conventions Relative to the Protection of Civilian Persons in Time of War of August 12, 1949.”20

Reiteration of the protections afforded to civilians was deemed necessary due to the blatant disregard of these protections during the war. “The Second World War remains a conflict distinguished by violence on an unprecedented scale. And not only extreme violence by one combatant against another; much of it was directed against civilians, who had not paid such a heavy price for mankind's warmongering since the Thirty Years’ War.”21 The Geneva

Conventions augment The Hague Conventions; so combined these establish the legal basis for belligerent occupation.

My fifth chapter will address the Just War Theory and the evolving concept of jus post bellum as this may be viewed as the second step following the belligerent occupation that connects the

Laws of War to the Laws of Peace to return sovereignty to the vanquished. See Figure

Introduction-3 below. The concept of “just war” traces its lineage to the classical Greco-Roman

19 International Committee of the Red Cross, Geneva Conventions of August 12, 1949, [online] Available at: Preliminary Remarks tp://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions (accessed 12 November 2017). 20 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, available at: http://www.refworld.org/docid/3ae6b36d2.html (Accessed 11 November 2017). 21 International Committee of the Red Cross, The Geneva Conventions of 1949: origins and current significance, Address by Philip Spoerri, Director of International Law, Ceremony to celebrate the 60th anniversary of the Geneva Conventions. (8 December 2009) Available at: https://www.icrc.org/.../geneva-conventions-statement- 120809.htm (accessed 12 November 2017).

23 and early Christian values primarily those of Aristotle, Cicero, and St. Augustine.22 As currently manifested “just war” consists of two separate foundations. The first of these parts of the concept is entitled jus ad bellum that means “right to wage war.”23 This phrase concerns whether a war is conducted justly or if entering into the war is justifiable. For example, an international agreement limiting the justifiable reasons for a country to declare war against another is concerned with jus ad bellum. The principles central to jus ad bellum are “right authority, right intention, reasonable hope, proportionality, and last resort.”24 I note that this first part, jus ad bellum, is addressed foremost to heads of states or heads of governments

(HOSHOGs).

The second part of the current concept of just war is labeled jus in bello or “law in war.”

According to the International Committee of the Red Cross jus in bello contains “provisions

[that] apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just.”25 Again, I am compelled to noted that this part of the just war concept is addressed to the warfighters, those military commanders, officers, and troops that formulate and execute the war for a state. However, this does not excuse inhumane behavior committed or ordered by the HOSHOGs during the fighting.

The putative concept of jus post bellum (law after war) relates to the conclusion of war and has had a traditional, albeit underdeveloped, place in the just war concept. When the end of combat is coming or has arrived, the military begins to think in terms of occupation and the law

22 See, Johnson, J.T. The Just War Tradition and the Restraint of War. Princeton, NJ: Princeton Press, 1981. 23 Definition found at USALegal.com 24 International Committee of the Red Cross, https://www.icrc.org/eng/resources/documents/misc/5kzjjd.htm 25 Id.

24 of occupation. The third concept of the Just War Theory “…as discussed in international law is aimed at providing the legal means by which… the war-torn society will be taken through the post-conflict state of transition and brought into a state of just and stable peace.”26 Such a broad statement as the above ventures well beyond the actions needed in an occupation by the victorious states under the Fourth Geneva Convention and current international law, yet it may provide some basis for further development of the ideal occupation notion. During and after a belligerent occupation the concept of jus post bellum as first described by Grotius may provide that absent step in the transition to a just and stable peace with the government and sovereignty of that vanquished state returned to the people. In any event there must be a phase after the belligerent occupation to complete the transition to a just peace with the return of the country to the people. Just peace will vary by specific circumstance yet the end result is a durable situation or agreement acceptable for returning the county to the people.

As I visualize the idea, the center is always the just peace with the four phases circling around just peace either involved in maintaining peace during the jus ad bellum phase or seeking that peace during the belligerent occupation or the jus post bellum phases. See Figure Introduction-

1 below.

In this simple figure there are four phases revolving around the central theme of just peace.

This is a continuous circle with each phase leading to the next clockwise phase orbiting around the just peace where sovereignty has been returned to the vanquished. At the top of the circle is jus ad bellum, the law prior to war, where we exist most of the time and it is noted in a shade

26 Osterdahl, Inger. “Just War, Just Peace and the Jus post Bellum” Nordic Journal of International Law 81, 2012, p. 271.

25 of blue. On the right side and in red to show the war is jus in bello; that phase when the war is raging. It is the only phase so colored in red as it is the different stage under this concept where blue represents peace or some effort to find peace. At the bottom of the orbit is the belligerent occupation phase, also in a shade of blue to establish

Figure Introduction-1. The Cycle to Find Just Peace.

the relationship with the other blue shades as belligerent occupation is the transition from war to peace. The purpose of the belligerent occupation phase is to establish control and security to build a functioning government. But it is also possible in the belligerent occupation phase only to retrograde to war returning to the applicability of jus in bello. Discussion of the ideal belligerent occupation is the topic of Chapter 6. Lastly, we encounter the jus post bellum stage

26 also in a shade of blue where the state should be “reconstructed”27 so it can be returned to the rehabilitated people. The range of blue shades signifies the degree of difficulty of accomplishing the tasks appropriate to that stage with the darkest blue representing belligerent occupation. This does not mean to diminish in any way the difficulty of the putative jus post bellum phase which, no doubt, will also be more than difficult. In reality these orbits may not be so even spaced but may tend to be or get closer. Specifically the belligerent occupation phase could be closer to the red ball of war or the blue ball of the jus post bellum phase depending on the current occupation situation on the ground.

In this work the focus is principally in the belligerent occupation phase since that is the phase where the movement is or should be away from war in phase two, jus in bello, and towards peace. This is the phase that sets the juncture either toward peace or toward some further conflict such as renewed state-on-state violence, some internal breakdown of peace, or both.

Belligerent occupation is thus critical to the movement toward peace so that it needs to be studied in depth and the lessons learned implemented in the aftermath of any future war. This is my purpose in this work. To study this phase labelled belligerent occupation means understanding the preceding and succeeding stages so how the war ends and how the movement toward peace begins is important to the considerations of the ideal belligerent occupation. Similarly, the transition toward peace must be viewed with regard to how the jus post bellum stage will be implemented as this is the second emphasis of my work.

27 Author’s Note: I use the term “reconstruction” to mean the re-establishment of the government and the attendant governmental functions. Other tasks attached to reconstructing the government or state building is the attendant elements of retribution for war crimes, physical rebuilding of structures, reparations, and reconciliation. See, Chapter 6.

From an international law perspective, public international law is divided between the Laws of

Peace and War. During the period when the laws of peace prevail the Laws of Human Rights are the primary source of international law. On the other side during state-on-state war, the Laws of War apply. Under the Laws of War it is divided into two parts that of jus ad bellum and jus in bello. The problem is that following the application of jus in bello there is no connection between the Laws of Peace and War in the post-war phase. This is a gap that implies but does not address that somehow peace returns. I argue that this gap between the Laws of Peace and

War can be filled by the belligerent occupation phase and then the application of the putative concept labelled jus post bellum. More specifically, the gap is filled by first establishing control of and security in the vanquished country. Once the requisite level of control and security is attained, and this will not always be an easy task, then the government structures need to be put into place. The jus post bellum phase begins when the control and security are sufficient to allow for “reconstruction.” Jus post bellum is the phase where “reconstruction” actually occurs in the vanquished nation. The end goal of this phase is the return of sovereignty to the vanquished but now rehabilitated country to enable a just peace. See, Figures Introduction-2 and Introduction-3 below.

In the sixth chapter, I will consider that ideal occupation to ascertain what this might entail. To establish an ideal belligerent occupation model there are four factors that I argue need to be present so as to successfully transition a vanquished state back to the people of the state with their sovereignty. See, Table Introduction-1 above. As previously outlined, I offer that an ideal occupation includes the following four factors: first, a military defeat, preferably decisive, in the war; secondly a strong peace

Figure Introduction-2. Traditional View of the Laws of War and Peace.

Figure Introduction-3. Belligerent Occupation and jus post bellum between the Laws of War and Peace.

29 successfully transition a vanquished state back to the people of the state with their sovereignty.

See, Table Introduction-1 above. As previously outlined, I offer that an ideal occupation includes the following four factors: first, a military defeat, preferably decisive, in the war; secondly a strong peace agreement ending the war followed by an occupation of the defeated state; next the commitment of the victor, a Protecting Power, or some other entity to

“reconstruct” the vanquished; and finally a time frame, in terms of years, for that belligerent occupation to transition the defeated state back to the people. An ideal belligerent occupation is aspirational in nature as a model to try to emulate rather than a guarantee of success in following these prescriptions. This is due to multiple, complex dynamics attendant to a belligerent occupation that will need to be discerned and accommodated to assist the responsible Proconsul of the Occupying Power(s) in making decisions. The defeated also have a vote in how the occupation works by cooperation or guerrilla warfare or insurgent actions or some combination thereof. External actors of various types will have a say in the changes to the vanquished State as well. To be clear this is not an anachronistic or nostalgic effort to return to belligerent occupation as practiced in the aftermath of the Second World War but rather a consideration of these earlier efforts to better prepare for future attempts to return a vanquished nation to the people of that country through a belligerent occupation and a jus post bellum phase.

Chapter 7 will address the possible impediments to the application of the ideal or some semblance of the ideal occupation. Those challenges will be ubiquitous and copious, likely to cause serious rifts between the bureaucrats, warfighters, policy makers, politicians, and decision makers within the victorious state not to mention the further compounding problems

30 of a coalition’s multiple partners and the vanquished at all levels of society. These impediments are both military and legal obstructions to the ideal belligerent occupation. The military impediments focus on the troops and mission those troops are given along with the idea of military governance in a belligerent occupation. All of this may be further complicated by the lack of any functioning vanquished government or a functioning but still hostile governing entity. The victorious belligerent will face internal discontent within its own government as well. As to the legal impediment there are three considered. These are the elevation of human rights law, the conflation of the lex specialis maxim, and the name change of the Laws of War to the International Humanitarian Law as all of these change the perspective of the available law.

One important legal impediment to the ideal belligerent occupation seems to be the very idea of a belligerent occupation under the Laws of War. In other words, how the belligerent occupation is approached will cause a different result. There is a call for the applicability of human rights law during all phases of war and occupation when there is a separate lex specialis for the occupation phase of a conflict. Clearly human rights laws generally apply but there is a special law applicable to this particular phase with the gradual easing into full human rights law as the return of sovereignty nears. In the transition from the belligerent occupation phase to the jus post bellum phase, the impediments will be the enormity of the project, the vast expense of this project, and the expectations among all of the participants related to the possibilities and completion of “reconstruction.” Different interpretations of these impediment issues will create contending expectations and may impact state decisionmaking.

In a penultimate chapter, applied political science will be used to frame a policy relevant proposal that will draw upon all of the above in an attempt to address the issues regarding how

31 occupation might be better completed by the United States with the hope of emulation by other militaries. Throughout this work, evidence will be produced that the United States either has not accomplished planning or not accomplished suitable planning and then placed insufficient effort and, perhaps, limited resources into post-conflict belligerent occupation. Lack of adequate planning has resulted in some grim experiences with some notable exceptions after the Second World War. To be policy relevant there will be some specific recommendations and suggestions while focused on the US structure it is transferable to other countries albeit with some alterations. The conclusion follows.

To reiterate, this work will trace the development of two concepts: belligerent occupation and jus post bellum. These two concepts will be joined to fill the gap between the Laws of War and the Laws of Peace. The reason this gap needs to be filled is to connect these laws so the sovereignty of the vanquished can be returned and a just peace enabled. Likely impediments to this gap filling will be explored. This work will provide a putative solution in a policy relevant proposal to implement the gap filling.

Chapter 1 Belligerent Occupation: Development and Concerns.

The term “occupation” is not well understood due to the many treaties, legal opinions of lawyers along with other pundits, and many international organizations’ resolutions regarding this topic. The end result is that the term occupation has many negative connotations. This problem has been exacerbated by the misuse of the word by commentators28, the media29, and politicians.30 The mere mention of the term occupation seems to raise hackles contributing to an adversarial confrontation rather than a discussion. So what is occupation and why does it matter in the today’s world?

In this work I propose that it is possible to develop an ideal belligerent occupation, as at least an aspirational goal, to better serve the cause of peace and the return of sovereignty to a vanquished state after a war. To attain any semblance of this goal, belligerent occupation as only one type of occupation must be understood as I argue it holds the key to peace and a return of sovereignty to a vanquished state. If belligerent occupation is such a key to peace then it should be studied and implemented. This is the task at hand, and it will be studied using

28 For a discussion of the misuse, see, Kontorovich, Eugene. "Unsettled: A Global Study of Settlements in Occupied Territories" Journal of Legal Analysis, vol. 9, no. 2, 2017, pp. 285-350. Oxford University Press (OUP), doi:10.1093/jla/lax004. (Accessed 4 July 2018). This article argues that, outside the context of Israel, Article 49(6) of the Fourth Geneva Convention is not invoked by the international community in reaction to settlement enterprises in other “occupied” territories. ,Why Gaza?" Loralucero.Wordpress.Com, 2018 غزة؟ لماذا | Lucero, Lora L. "Belligerent Occupation 29 https://loralucero.wordpress.com/tag/belligerent-occupation/ (Accessed 1 July 2018). This article chastises the mainstream media regarding the assumed “border” between Israel and Gaza. 30 Li, David K., "Https://Nypost.Com/201Ocasio-Cortez-Ignites-Controversy-With-Comments-On-Israeli- Occupation". The New York Times, 2018, https://nypost.com/2018/07/17/ocasio-cortez-ignites-controversy-with- comments-on-israeli-occupation/. (Accessed 1 Nov 2018).

33 the United States as a context due to the regularity of that nation conducting belligerent occupations albeit not ideal ones, familiarity with the military that will conduct this occupation and the historical American lack of preparation for such an endeavor. While analytic, this work is designed to be policy prescriptive to aid the return of sovereignty to a vanquished people.

1.1 Separating belligerent occupation from conquest, colonialism, and annexation.

Some people have heard of the Israeli occupation31 and the occupation of Iraq by the US and the United Kingdom with many people considering both events unsuccessful and perhaps even counterproductive. Others may recall the occupations of Germany and that of Japan as successful occupations but little more. Some may remember the occupation of the various

European countries by the Nazis as a brutal regime. Such a lacuna of information about this topic followed by the lack of historical comprehension reaches far and conflates the entirety of the issues surrounding the use of the term belligerent occupation. We hear misreports on the

31 The Israeli occupation has been argued about for over seventy years with no end in sight. Israel and its supporters argue along three axes: religious, historical, and legal. Advocates for the proposition that this is historically Israeli land argue that the holy sites of Israel are located in the area of Judea and Samaria areas claimed by the Palestinians. Historical claims are based on the rule of famous Israeli kings such as David and Solomon exercising dominion over these territories. Further, the region of Judea gives rise to the name “Jews” as these people lived in this area. The legal arguments for Israel include the Blum-Shagmar thesis claiming that there was no legal or recognized sovereign in Judea and Samaria to dispossess in the UN Partition of 1947. See, Meron, Theodor, "The West Bank And International Humanitarian Law On The Eve Of The Fiftieth Anniversary Of The Six- Day War" Cambridge University Press, 2017, https://www.cambridge.org/core/journals/american-journal-of- international-law/article/west-bank-and-international-humanitarian-law-on-the-eve-of-the-fiftieth-anniversary-of- the-sixday-war/E1D4F9F5B3C43C943D9C3F31EABF79B3 (Accessed 16 Mar 2019). Those with the opposite view argue that UNGA 2625 (XXV) entitled Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations in Annex Article 1 provides “no territorial acquisition resulting from the threat or use of force shall be recognized as legal.” [This is a summation of the traditional rule against conquest changing the sovereignty of a state]. See, "LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY ADVISORY OPINION OF 9 JULY 2004". Icj-Cij.Org, 2004, https://www.icj-cij.org/files/case- related/131/131-20040709-ADV-01-00-EN.pdf (Accessed 13 Feb 2019). The International Court of Justice stated in paragraph 132 that construction of the wall violated the Fourth Geneva Convention. In paragraph 163 the ICJ answered “[t]he construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law….” This is a brief examination of the Israeli occupation as our focus is on the United States.

34 news regularly32 so the world seems confused by this term. Yet even this humane solution of

“occupation”33 in direct opposition to the solution under conquest has many negative connotations, so the history will be important to delineate as to how this term is being employed and explicate some of the bias against this term. Based upon the foregoing, the term

“occupation” is seen as pejorative although it is legally permissible.34 The word “occupation” has returned to the current vernacular due to the continuing Israeli occupation and the UN sanctioned occupation in Iraq. The current use of the term “occupation” seems quite different from the understanding of this term in the treaty based versions of the last century.

Having used the term “occupation” it is helpful to establish a definition. The definition itself presents some difficulties as the term has stood alone as “occupation” or been embellished with adjectives such as “belligerent” or “military.” These additional words are not dispositive as one author has identified 17 types of occupation35 including belligerent occupation (see Table

1-1 below), and there may be other forms of occupation such as the so called “air force

32 For example there are regular reports of Israeli “occupation” but few reports of Russian “occupation” in Abkhazia, South Ossetia, or Crimea, Armenia’s “occupation” of Nagorno-Karabakh, and Turkey’s “occupation” of northern Cyprus. The purpose here is not to delve into these other occupation concerns but to show the disparate use or non-use of the same word. Notwithstanding this there are various forms of occupation and these do get conflated. See, Table 1-1 and Footnote 6 in this Chapter. 33 Oppenheim, Lassa. International Law: A Treatise, Vol. 2, New York, Longmans, 1906, p. 168. “In former times enemy territory was occupied by a belligerent was in every point considered his property with which and with the inhabitants therein he could do what he liked. He could devastate the country with fire and sword, appropriate all public and private property therein, kill the inhabitants, or take them away into captivity, or make them take an oath of allegiance….” Thus occupation was viewed as humane in comparison to conquest. 34 Tilley, Virginia. "Occupation, Colonialism, Apartheid: A Re-Assessment of Israel’s Practices in the Occupied Palestinian Territories under International Law" Alhaq.Org, 2009, http://www.alhaq.org/attachments/article/232/occupation-colonialism-apartheid-executive.pdf. (Accessed 7 Sept 2018). 35 Roberts, Adam. What is a Military Occupation? https://web.law.columbia.edu/sites/default/files/microsites/gender- sexuality/Roberts%20What%20is%20Military%20Occupation.pdf (1985) Chart p. 261.

35 occupation”36 or more recently what is being called “aerial occupation” by remotely piloted aircraft (RPAs)37 or even “digital occupation”38 that were not previously listed.

Table 1-1. Seventeen Types of Occupations:39

(a) Wartime and post-war:

1. Belligerent occupation

2. Military Occupation

a. Occupation of neutral territory (e.g. Iceland, Chapter 3)

b. Occupation of allied territory (friendly forces passing through)

c. Armistice occupation (short–term occupation under armistice)

d. Post-surrender occupation (by non-belligerent third party(ies))

e. Occupation one year after military operations (by non-belligerent third party(ies))

(b) Peacetime:

3. Forcible peacetime occupation

4. Peacetime occupation by consent

5. Occupation of territory whose status is disputed or uncertain

6. Occupation with an indigenous government in post

7. Subsequent occupation

36 Von Glahn, Gerhard. The Occupation of Enemy Territory… A Commentary on the Law and Practice of Belligerent Occupation, The University of Minnesota Press, Minneapolis, (1957) p. 28-29. Later called “Air Occupation” See, Warden III, John A., Air Theory for the Twenty-first Century, in Schneider B.R. and L.E. Grinter, eds. Air University Press, Alabama, (1997) p. 103. 37 See, Emery, John R., and Daniel R. Brunstetter. "Drones As Aerial Occupation" Peace Review, vol. 27, no. 4, 2015, pp. 424-431, Informa UK Limited, doi:10.1080/10402659.2015.1094319 (Accessed 1 Nov 2018). 38 Alsaafin, Linah. "Digital Occupation: What's Behind Israel's Social Media In Arabic" Aljazeera.Com, 2018, https://www.aljazeera.com/news/2018/04/digital-occupation-israel-social-media-arabic-180403121518782.html. (Accessed 7 Nov 2018). 39 Roberts, Adam. What is a Military Occupation? Chart [adapted by author] "THE LAWS OF WAR: PROBLEMS OF IMPLEMENTATION IN CONTEMPORARY CONFLICTS". Scholarship.Law.Duke.Edu. 1995, p. 261. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=https://www.bing.com/&httpsredir=1&article=135 8&context=djcil. (Accessed 30 Aug 2018).

8. Multilateral occupation

9. Occupation by United Nations or similar forces

10. Occupation of territory for which the United Nations is responsible

11. Occupation by a non-State entity

12. 'Illegal occupation'

13. 'Trustee occupation'

Such an extensive list indicates the multitude of occupation types so that the clear use of the term needs to be consistently employed and the meaning solidified. Occupation was described by Eyal Benvenisti, one of the leading experts on occupation law, as “…the effective control of a power (be it one or more states or an international organization such as the …the United

Nations) over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory.”40 When occupation occurs after a conflict it has been labelled military occupation41 or belligerent occupation but there is a difference between these two terms. For purposes of this work, I will use the term belligerent occupation since a military occupation could occur at a time other than during the post-conflict phase of war. Belligerent occupation “… refers to a situation where the forces of one or more States exercise effective control over a territory of another State without the latter State’s volition.”42 Further and more importantly, “[t]he law of belligerent occupation seeks to account for both military and

40 Benvenisti, Eyal. The International Law of Occupation. Princeton University Press, Princeton, New Jersey (2011) p. 2. 41 Department of Defense Law of War Manual. Office of General Counsel, Department of Defense, (Updated May 2016) p. 729. 42 Benvenisti, Eyal. "Occupation, Belligerent" Oxford Public International Law, 2009, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e359 (Accessed 4 Aug 2018).

37 humanitarian imperatives.”43 This is but one of many descriptions used in the multitude of articles, books, and other media to develop the discussion of the term “occupation” but again the aforementioned definition will be used in this work to explore both the military and humanitarian aspects of the belligerent occupation. To further explicate, “[b]elligerent occupation (occupatia bellica) was a species of the genus of occupation. The occupation was bellica in the sense of being brought about during or as a result of war.”44 This concept of belligerent occupation does not seem difficult or controversial from the foregoing, albeit perhaps not well defined. Yet there is much confusion even about the term belligerent

“occupation.” Clarity requires that I explain emphatically belligerent occupation can occur both while a war is being fought that is occupation of enemy territory in war time prior to the conclusion of an armistice45 and the occupation after the conclusion of a surrender agreement or other war termination options. Accepting this definition it will be employed throughout this effort as we continue to distinguish conquest, colonialism, and annexation from the concept of belligerent occupation in this chapter.

Having previously described the dissimilarity between conquest and belligerent occupation wherein conquest was woe to the vanquished during the bloody reign of that notion, colonialism will be addressed. To avoid any confusion regarding colonialism and belligerent occupation we will consider this difference. A colony is defined as “a dependent political

43 Department of Defense Law of War Manual, Office of General Counsel, Department of Defense, (Updated May 2016) p. 728. 44 Carcano, Andrea. The Transformation of Occupied Territory in International Law. Konicklijke Brill NVLeiden, The Netherlands (2015) p. 14. 45 Graber, Doris A. The Development of the Law of Belligerent Occupation, 1863-1914, A Historical Perspective. AMS Press, 1949. See also, the US Supreme Court case entitled “The Grapeshot” wherein Chief Justice Chase wrote “The duty of the National government, in this respect, was no other than that which devolves upon the government of a regular belligerent occupying, during war, the territory of another belligerent.” The Grapeshot, 76 U.S. 129, 19 L. Ed. 651, 9 Wallace 129, 1869 U.S. LEXIS 950 (1869).

38 community, consisting of a number of citizens of the same country who have emigrated therefrom to people another, and remain subject to the [colonizing] country.”46 From a legal perspective and based on this definition, colonization was historically a matter of the internal laws promulgated in the colonizing state since the colony was not sovereign. On the other hand, belligerent occupation is a matter of international law since the Occupying Power is dealing with a vanquished but nonetheless sovereign state. Thus colonialism is centered on the sovereign extension of the colonizing country while occupation is centered on the sovereignty of the vanquished state. Furthermore, “…an aggressor state cannot acquire territory by conquering another state and forcing it to sign a treaty of cessation…”47 wherever that territory may be located and such an action by the aggressor would not be occupation but rather conquest or annexation depending upon the circumstances.

Annexation is defined as “…the forcible acquisition of territory by one State at the expense of another State. It is one of the principal modes of acquiring territory... Annexation presupposes the effective occupation of the territory in question and the clear intention to appropriate it permanently... Either parts of another State or its entire territory can be annexed.”48 Land gained by annexation is usually done by decree of one nation that it is exercising sovereignty over another nation or parts thereof. In the last century, annexation was used to obtain territory by several nations: Japan over Korea49, Norway over the Svalbard Islands50, and Israel

46 Black, Henry Campbell, and Michael J. Connolly. Black's Law Dictionary, 5th ed., West Publishing Co. U.S., 1981, p. 240. 47 Akehurst, Michael, A Modern Introduction To International Law. George Allen and Unwin, 1983, p. 146. 48 "Annexation" Opil.Ouplaw.Com, 2013, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law- 9780199231690-e1376 (Accessed 7 Feb 2019). 49 "Treaty Of Annexation"(1910) International.Ucla.Edu, 2004, http://international.ucla.edu/institute/article/18447 (Accessed 7 Feb 2019).

39 over the Golan Heights.51 Italy used a declaration of annexation on 9 May 1936 to annex

Ethiopia after an incident and short war.52 Austria was annexed by Germany on 12 March

193853 then Germany did the same annexation with Bohemia and Moravia54 about one year later. Annexation is the taking of the sovereignty of another nation with the express intention to control that territory by incorporation into the seizing country. There is no intention of returning the sovereignty to the annexed country while both the conqueror and those who are annexed will remain in place. A belligerent occupier wants to leave once the desired end state is achieved thus the difference with conquest is clear. Annexation does not or need not always follow belligerent occupation, such as after the Second World War in Germany, Austria, Italy, and Japan when the sovereignty was returned to those vanquished nations. In 2014 Russia annexed the Crimean peninsula and it was met with criticism such as “[w]e condemn Russia’s moves to formally annex the Crimean region of Ukraine. Such action is a threat to international peace and security, and it is against international law. We would not recognize this attempted annexation….”55 Albeit annexation remains a tool of statecraft, however, seldom utilized due to the concomitant opprobrium and condemnation. The differentiation of belligerent occupation from conquest, colonialism, and annexation seems clear yet the state practice has not always followed in step.

50 "The Svalbard Treaty - The Faculty of Law" (1925) Jus.Uio.No, 2005, https://www.jus.uio.no/english/services/library/treaties/01/1-11/svalbard-treaty.xml. 51 "United Nations: Security Council Resolution on Israeli Occupation of the Golan Heights," vol. 21, no. 01, 1982, pp. 214-215. Cambridge University Press (CUP), doi:10.1017/s002078290005508x. (Accessed 9 Mar 2019). 52 Dupuy, R. Ernest, and Trevor N. Dupuy. The Encyclopedia of Military History. Harper & Row, 1986, p. 1040. 53 Id., p. 1036. 54 Id., p. 1035. 55 Carney, Jay. "Press Briefing By Press Secretary Jay Carney, 3/18/2014" Whitehouse.Gov, 2014, http://www.whitehouse.gov/the-press-office/2014/03/18/press-briefing-press-secretary-jay-carney-3182014. (Accessed 20 Feb 2019).

Despite the development of belligerent occupation in the preceding nineteenth century, old habits of conquest, colonialization, and annexation die hard and were present at the Supreme

Council of the Allied Powers after the Great War (1919). France, the United Kingdom, and other

“allies” sought the former German and Turkish colonies but all of their claims were rejected!

Such rejection occurred because “Wilson’s new world order called for some arrangement other than annexation or colonization for those parts of the world not yet ready to govern themselves.”56 Furthermore in rejecting the notions of conquest, colonization, and annexation that had occurred while developing the concept of belligerent occupation in the nineteenth century, the League of Nations’ mandate system was framed as a compromise and used extensively by the Supreme Council after the First World War.

The mandate system was memorialized in Article 22 of the Covenant of the Leagues of Nations as it provided

To those colonies and territories which as a consequence

of the late war have ceased to be under the sovereignty of

the States which formerly governed them and which are

inhabited by peoples not yet able to stand by themselves

under the strenuous conditions of the modern world, there

should be applied the principle that the well-being and

development of such peoples form a sacred trust of

civilisation and that securities for the performance of this

trust should be embodied in this Covenant. The best method

of giving practical effect to this principle is that the tutelage

56 MacMillan, Margaret. Paris 1919: Six Months That Changed the World, Random House. 2003, p. 98.

of such peoples should be entrusted to advanced nations who

by reason of their resources, their experience or their

geographical position can best undertake this responsibility,

and who are willing to accept it, and that this tutelage should

be exercised by them as Mandatories on behalf of the League.

The character of the mandate must differ according to the

stage of the development of the people, the geographical

situation of the territory, its economic conditions and other

similar circumstances … In every case of mandate, the

Mandatory shall render to the Council an annual report in

reference to the territory committed to its charge. The degree

of authority, control, or administration to be exercised by the

Mandatory shall, if not previously agreed upon by the

Members of the League, be explicitly defined in each case by

the Council. A permanent Commission shall be constituted to

receive and examine the annual reports of the Mandatories

and to advise the Council on all matters relating to the

observance of the mandates.57

Thus the longest article in the Covenants of the League of Nations addressed the mandate system as this compromise was a significant change in post-conflict treaty making, in that, conquest, colonization, and annexation were absolutely rejected. President Wilson strongly argued that if annexation were to be permitted in the post-conflict treaty and practice the

57 "Avalon Project - The Covenant of the League Of Nations" Avalon.Law.Yale.Edu, 2018, http://avalon.law.yale.edu/20th_century/leagcov.asp (Accessed 11 Nov 2018).

League of Nations would be discredited from the beginning.58 Jan Smuts, G. L. Beer, and Lloyd

George joined Wilson in opposing uncontrolled colonial exploitation and unrestricted colonial competition.59 Sovereignty was a critical international relations reality that permeated the post-World War One negotiations of what became the Treaty of Versailles and the Leagues of

Nations.

Later the International Court of Justice (ICJ) confirmed this view of annexation in its 1950

Advisory Opinion on the International Status of South-West Africa such that in the establishment of the mandates system "…two principles were considered to be of paramount importance: the principle of non-annexation and the principle that the well-being and development of such peoples form 'a sacred trust of civilization.'"60 Annexation was again condemned in the ICJ Advisory Opinion in 1970 while considering the “Legal Consequences for

States of the Continued Presence of South Africa in Namibia (South West Africa)

Notwithstanding Security Council Resolution 276” case.61 Yet again, the ICJ stated the original creation of the mandate system had as a guiding principle the non-annexation of mandated territories. In the same advisory opinion the ICJ rejected the alternative argument that both original conquest and the long subsequent occupation of what is now known as Namibia did

58 MacMillan, Margaret. Paris 1919: Six Months That Changed the World. Random House. 2003, p. 102. 59 Claude, Jr., Inis L. Swords into Plowshares. McGraw-Hill, 1984, p. 354-355. See also, Heyns, Christof, and Willem Gravett. "To Save Succeeding Generations from the Scourge of War": Jan Smuts and the Ideological Foundations of the United Nations" Human Rights Quarterly. vol. 39, no. 3, 2017, pp. 574-605. Johns Hopkins University Press, doi:10.1353/hrq.2017.0033. 60 Advisory Opinion on the International Status of South West Africa, I.C.J. Reports 1950, p. 131. See also Advisory Opinion on the Legal Consequences for the States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding the Security Council Resolution 276 (1970), ICJ Reports 16 (1971). The latter case cites the same language. 61 Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) ICJ Reports 16 (1971).

43 not act to confer sovereignty to South Africa.62 Thus concluding on this deviation, “[t]he modern law of belligerent occupation is anchored in the concept that occupation differs in its nature and legal consequences from conquest.”63 As is clear, belligerent occupation is a separate concept from conquest, colonization, and annexation as these remove the sovereignty from the people of the vanquished state or its colonial territories.

As belligerent occupation grew out of the Laws of War a good deal of occupation law was originally found in military manuals and state practice. Yet occupation law was viewed as an afterthought following wars and certainly not of prime concern to the victors and their militaries. Beginning in the twentieth century, there has been a change in this concept based upon the attempted application of occupation law itself by the Allies after both World Wars and later by the US and UK in Iraq. Application of belligerent occupation rather than considering occupation as a mere by-product of war took hold as a principle if not a practice. Thus, “[t]he foundation upon which the entire law of occupation is based is the principle of inalienability of sovereignty through the actual or threatened use of force.”64 Simply stated, being victorious is not the same as being a conqueror, that is, the victor does not acquire sovereignty to the land being occupied because at some future point in time the Occupying Power will return their

State to the vanquished and with the sovereignty to govern that State themselves. This return of sovereignty to the vanquished was seen early on in the history of belligerent occupation with

62 See, Severaid, Ronald H., and James C. Tuttle, eds. International Court Of Justice Briefs. American Bar Association, Section Of International Law, 1978, p. A13-2. 63 Graber, Doris A. The Development of the Law of Belligerent Occupation, 1863-1914, A Historical Perspective. AMS Press, 1949, p. 37. 64 See, Severaid, Ronald H., and James C. Tuttle, eds. International Court Of Justice Briefs. American Bar Association, Section Of International Law. 1978, p. A13-2.

44 the reappearance of the Bourbon King in France in 1815 to the present return to sovereignty of

Iraqis (2004) and Afghanis (2005).

Unlike those countries that seek conquest, colonialism, or annexation, the belligerent occupier wants to get out of the business as quickly as practicable once the vanquished no longer pose a threat to that victor and ideally have been turned into a dependable ally.

1.2 Scholarly consideration of belligerent occupation.

Due to several major conflicts in Bosnia-Herzegovina, Kosovo, Afghanistan, and Iraq there has been an explosion of interest in and writing about the general term “occupation.” Scholars view what I have labeled as belligerent occupation in many different ways and I have identified six general genres of literature. In the literature I have found various articles in the following broad categories of nation-building65, historical studies66, international law67, international relations68,

65 Dobbins, J. F. "America's Role in Nation-Building: From Germany to Iraq" Survival, vol. 45, no. 4, 2003, pp. 87- 110. Informa UK Limited, doi:10.1093/survival/45.4.87 (Accessed 2 Sept 2018); Dobbins, James, et al., The UN's Role in Nation-Building. Rand Corporation, 2005; Dobbins, James, et al. The Beginner's Guide to Nation-Building. Rand Corp. Arlington VA, National Security Research Division, 2007; Fukuyama, Francis. State Building: Governance and World Order in the 21St Century. Cornell University Press, 2004. 66 "Allied Occupation of Germany, 1945-52" 2001-2009, State.Gov, 2018, https://2001- 2009.state.gov/r/pa/ho/time/cwr/107189.htm (Accessed 30 Jan 2018); Forged in Fire: Legal Lesson Learned during Military Operations 1994-2006. Center for Law and Military Operations, 2006; Lacey, Michael O. "Military Commissions: A Historical Survey" Loc.Gov, 2002, https://www.loc.gov/rr/frd/Military_Law/pdf/03-2002.pdf (Accessed 21 Apr 2018); "Milestones: 1945–1952 - Office of the Historian". History.State.Gov, https://history.state.gov/milestones/1945-1952/nuremberg (Accessed 7 Apr 2018); "Milestones: 1945–1952 - Office of the Historian" History.State.Gov, 2018, https://history.state.gov/milestones/1945-1952/japan- reconstruction. (Accessed 20 Feb 2018); Ziemke, Earl F. The U.S. Army in the Occupation of Germany, 1944-1946. Center Of Military History, United States Army, 1975; and Zink, Howard. American Military Government in Germany, 1944-1946. Macmillan, 1947. 67 Adams, Robert. "THE LAWS OF WAR: PROBLEMS OF IMPLEMENTATION IN CONTEMPORARY CONFLICTS". Scholarship.Law.Duke.Edu, 1995, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=https://www.bing.com/&httpsredir=1&article=135 8&context=djcil (Accessed 30 Aug 2018); Defense.Gov, 2016,

45 counter-insurgency69, and religio-philosophical70, that is writings from either or both a philosophical and religious perspective. Among these, I will consider the historical studies in this current and the next two chapters, international law in chapter 4, and the religio-philosphical perspective in Chapter 5 as international relations permeates the entirety of this work. Any further consideration of nation-building and counter-insurgency will relate only to how these two genres apply tangentially to belligerent occupation.

Scholars have written some materials on occupation yet I note at the beginning the lament of

Edelstein that “…it is surprising there is so little scholarly [political science] literature on the subject”71 especially in light of its current importance and significance. Eric Carlton looked at occupation by viewing the complex relationship between occupier and the occupied through the lens of ideology defined as “…a set of beliefs in a preferred social order which enables

https://www.defense.gov/Portals/1/Documents/DoD_Law_of_War_Manual-June_2015_Updated_May_2016.pdf. (Accessed 26 June 2018); Beatty, Jeffrey F., et al., Legal Environment, 5th ed., South-Western, 2014; and De Brabandere, Eric, Post-Conflict Administrations In International Law. Martinus Nijhoff Publishers, 2009. 68 Cox, Robert W. "Social Forces, States and World Orders: Beyond International Relations Theory". Millennium: Journal of International Studies. vol. 10, no. 2, 1981, pp. 126-155. SAGE Publications, doi:10.1177/03058298810100020501; Doyle, Michael W, and Nicholas Sambanis. Making War And Building Peace. Princeton University Press, 2010; Edelstein, David M. Occupational Hazards: Success And Failure In Military Occupation. Cornell University Press, 2008; Fazal, Tanisha M. State Death: The Politics and Geography of Conquest, Occupation, and Annexation. Princeton University Press, 2011; Hinsley, F. H. Power and the Pursuit of Peace: Theory and Practice in the History of Relations between States. Cambridge University Press, 1962; and Ikenberry, G. John. After Victory: Institutions, Strategic Restraint, And The Rebuilding Of Order After Major Wars. Princeton University Press, 2000. 69 Petraeus, David, and James Amos, US Army/ US Marine Corps Counterinsurgency Field Manual, Signalman Publishing, 2006 also known as Field Manual 3-24 Counterinsurgency. For other views see, Greene, Samuel R. Pathological Counterinsurgency: How Flawed Thinking about Elections Leads to Counterinsurgency Failure. The Rowman & Littlefield Publishing Company, 2018; Nagl, John A., Learning To Eat Soup With A Knife: Counterinsurgency Lessons From Malaya And Vietnam. Praeger, 2002. 70 See Chapter 4 of this work for jus post bellum materials. McMahan, Jeff. "The Morality of Military Occupation". Loyola L. A. International And Comparative Law Review. vol. 31, no. 7, 2009, (Accessed 26 June 2018); Allan, Pierre, and Alexis Keller. What Is A Just Peace? Oxford University Press, 2008; Carr, Craig L. and David Todd Kinsella. The Morality of War. Lynne Rienner Publishers, 2008; Ohlin, Jens David, Theoretical Boundaries of Armed Conflict and Human Rights. Cambridge University Press, 2014; Orend, Brian, The Morality of War. Broadview Press, 2006, and Thompson, Kenneth W. Fathers of International Thought. Louisiana State University Press, 1994. 71 Edelstein, David M. Occupational Hazards: Success and Failure in Military Occupation. Cornell University Press, 2008, p. 15.

46 adherents to interpret their past, explain their present and develop a vision of the future.”72 He asserts that the exercise of power over the occupied is never applied in a pristine form but is rather adapted. Arguing that certain solutions are then generated by circumstances, he looks at how the conqueror uses these situations to assimilate, re-educate, acculturate, exploit, subjugate, exterminate or employ some other tactics after victories.73 Concluding, Carlton writes “[t]he strength of ideology can probably be most clearly seen in the situation where there is no intention of assimilation or accommodation; where the dominant ideology is so powerful and inflexible that it takes no account of the feelings or wishes of the conquered….”74

He sees a complex relationship between the military authority of the occupier and the occupied civilian population as the leading states of the day seek to hold power in belligerent occupations.

Writing extensively about occupation, David Edelstein argues occupation is difficult due to the

Occupying Power’s usually ambitious goals since these goals need a long expanse of time and copious resources as conversely both the occupied and the occupier want to end the occupation as quickly and cheaply as possible. However, the need for a long time span and many resources causes a split to develop as both sides become increasingly impatient and resources committed to the occupation are a limited commodity. This combination sabotages the effort as the occupier cannot overcome the nationalistic tendencies of the occupied75 while maintaining a focus on the occupation as time drags on and on. Edelstein concludes that in the

72 Carlton, Eric. Occupation: The Policies and Practices of Military Conquerors. Routledge, 1992, p. 1. 73 Id., Contents. 74 Id. 75 Edelstein, David M. "Occupational Hazards: Why Military Occupations Succeed Or Fail" International Security. vol. 29, no. 1, 2004, p. 49-51. MIT Press - Journals, doi:10.1162/0162288041762913.

47 future occupations success will be determined by two factors: the threat environment either internal or external and the choice to end the occupation. He opines that if the threat is an internal one then it is unlikely the occupation will succeed. Alternatively with an external threat seen by the occupied as more dangerous vis-à-vis the occupier then there will be an increased likelihood of a successful occupation especially if the location of the occupation is geopolitically significant. In ending the occupation, Edelstein concludes the Occupying Power “…must return sovereignty to a legitimate, indigenous, and reliable government, and … ensure that the occupied territory will be secure and nonthreatening …”76 in the post-occupation time frame.

Doyle and Sambanis, albeit focusing on civil wars, have developed what they have titled “the peace-building triangle”77 consisting of three considerations. As these considerations were developed in post-conflict environments they can be utilized in the belligerent occupation phase with only minor adjustments. First, Doyle and Sambanis inquire about the degree of hostility as evidenced by the number of casualties, the number of people displaced, the type of war, and the number of belligerents (originally called factions). Secondly, they inquire into what sort of local capacities are available post-conflict are measured by per capita gross domestic product (GDP) or energy consumption or other economic indicators. Thirdly, they consider the amount of international assistance recognized as economic assistance or the type of UN mandate coupled with the number of troops. When just trying to end the violence is the goal there is a need for a “muscular” intervention. Higher order or democratic peacebuilding can be

76 Edelstein, David M. Occupational Hazards: Success and Failure in Military Occupation. Cornell University Press, 2008, p. 155. 77 Doyle, Michael W. and Nicholas Sambanis. "International Peacebuilding: A Theoretical and Quantitative Analysis" American Political Science Review. vol. 94, no. 04, 2000, pp. 779-801. Cambridge University Press (CUP), doi:10.2307/2586208 (Accessed 6 Aug 2018).

48 successful after nonidentity wars or after long but not costly wars in high development level states. These authors conclude that the United Nations (UN) is not good at war “… but it is well suited to mediate, mobilize, and manage legitimate international assistance.”78 They believe the UN could fill this technical role but only after state(s) or regional organizations such as

NATO have taken enforcement action and then provided security.79 The issue is to identify the type of situation that is occurring so as to apply the occupation given the security parameters present, but constantly changing, in the post-conflict environment. A good degree of security is necessary for any attempt to occupy a vanquished state or even ameliorate the suffering of all those located therein.

Having defined and explained the concept of belligerent occupation, this work will include military, legal, and the religio-philosophical philosophical inputs to capture the totality of the occupation situation since in reviewing the literature regarding occupation the subject is usually treated in one dimension. That is, some authors write only about the military aspects of this topic while others write only about the legal conundrums as others opine elegantly about philosophical ideas such as jus post bellum. Clearly, these authors are experts in their singular fields but their writings become less forceful when they write beyond their chosen expertise.

Military writing can be exciting but usually limited by concluding with the surrender of hostile

78 Doyle, Michael W, and Nicholas Sambanis. Making War and Building Peace. Princeton University Press, 2010, p. 5. 79 See also, Keohane, Robert. "A Credible Promise to the United Nations" The Financial Times, 2003, p. 15. Keohane similarly opined that the UN could provide “…civil authority over the country, supported for as long as necessary by forces from the occupying powers.” See also, Fearon, James D., and David D. Laitin. "Neotrusteeship and the Problem of Weak States" International Security, vol. 28, no. 4, 2004, pp. 5-43. MIT Press - Journals, doi:10.1162/0162288041588296. These authors state that “…in anarchical settings the UN is an inappropriate lead agent and that greater efficacy and coordination is likely to result from missions led by a major power with a dominant military force.”

49 forces.80 Legal writing gets bogged down in the over-lawyering of key words or phrases devoid of some understanding of the post-conflict environment.81 Certainly the same objection may be registered against those who create some philosophical tome expounding ideas likely not having any experience with the operational considerations regarding the military or war but nevertheless offering unworkable solutions.82 My point is that due to the complexity of the general occupation situation these areas need to be better interwoven by those who are experts in one of these disciplines but with some experience in the others. Beyond that, exploring the totality of this topic should entail trying to ascertain the relevance provided by each of these fields across the idea of belligerent occupation. Thus the inclusion of these military, legal, and philosophical inputs along with the international relations literature will help to achieve a better overview of belligerent occupation while leading to an ideal belligerent occupation model. With over a quarter of a century serving in the military, with nearly 34 years as a legal practitioner much of it in the field of international law, and advanced degrees in both

International Relations and Law, perhaps I and others similarly situated can contribute by combining these fields to develop an ideal belligerent occupation on the way to the return of sovereignty to the vanquished people establishing peace in the jus post bellum phase.

80 Atkinson, Rick. An Army at Dawn [winner of the Pulitzer Prize for history], 2003; The Day of Battle. 2007; and The Guns at Last Light, 2013 [Liberation Trilogy]. New York, Henry Holt; Kershaw, Ian. The End: The Defiance and Destruction of Hitler’s Germany, 1944-1945. New York, Penguin Press, 2011; and Eisenhower, Dwight. Crusade in Europe. New York, Doubleday, 1948. Of these many books there are only four pages dealing with occupation all of that writing is found in Crusade in Europe. 81 Clapham, Andrew, et al. The 1949 Geneva Convention: A Commentary. Oxford, Oxford University Press, 2015, and Bowden, Brett, et al. The Role of International Law in Rebuilding Societies after Conflict. Cambridge, UK, Cambridge University Press, 2009 82 Evans, Christine. The Right to Reparation in International Law for Victims of Armed Conflict. Cambridge [U.A.], Cambridge Univ. Press, 2012; Bellamy, Alex J. "The Responsibilities of Victory: Jus Post Bellum and the Just War." Review of International Studies. vol. 34, no. 04, 2008, doi:10.1017/s026021050800819x; and Charlesworth, Hilary, "Think Pieces: Law after War" Melbourne Journal of International Law. vol. 8, 2007, pp. 234-247.

1.3 A Brief Developmental History of Belligerent Occupation and Its Law.

So how did we arrive at this misapprehension about belligerent occupation? To explore this query the history of belligerent occupation is examined from a domestic and international legal view as well as a military perspective to illustrate the background of the concerns in the historical and contemporary debates. Addressing those contemporary concerns will follow later in this chapter.

We begin at the earliest times of human warfare and this will be a polemology. Then we take a brief review of the development of the idea called occupation. To do so, we must begin with the predecessor of occupation, the idea of conquest. In classical antiquity it was woe to the vanquished. The defeated were killed or enslaved and their land incorporated into the victorious entity be it empire, kingdom, or state, yet if the vanquished were lucky they would be ruled by a puppet of that victorious state. Thus, most of human history was one of war and conquest.

Interest in the then vague concept of occupation was developing in multiple locales during the

French Revolutionary Wars and Napoleonic Wars (1792-1815). Such interest followed by the

Treaty of Paris based on the Concert of Europe since the balance of European power was deemed crucial to the peace established by the statesmen of the time. These statesmen, including Metternich, Talleyrand and Castlereagh, formed an idea that the return of power to the legitimate but disposed crowned heads of Europe would advance this balance of power.

The question was what to do with Napoleonic France while transitioning her to the former legitimate monarchal rulers. The idea of an occupation by the victorious powers was accepted.

To answer how this outcome was formulated we must look to the historical development of this concept of occupation.

During the French Revolution, the National Assembly on 20 April 1792 declared war on Austria with the following provision: “the French nation, faithful to the principles consecrated by its constitution [1791], ‘not to undertake any war with a view to conquest nor ever to employ its forces against the liberty of any people,’ only takes up arms for the maintenance of its liberty and independence; that the war which it is forced to prosecute is not a war of nation against nation….”83 Under this passage, the French were renouncing wars of conquest against any other nation but this relinquishment of conquest was only minimally in place until the rise of

Napoleon. However, the French were not the only people thinking about this renunciation regarding wars of conquest.

The wars of Revolutionary France and the Napoleonic Wars were to make belligerent occupation a “…recurrent theme of the European experience for over two decades and that overturned the eighteenth-century balance of power….”84 This tumult began with the declaration of war by Revolutionary France against Austria in 1792.85 As Europe was gobbled up first by Revolutionary France in defense of the Revolution then primarily by Napoleonic

France the question of how to manage these new holdings matured rapidly within the French military. As most of the land bordering on France was seized, the generals asked for instructions

83 "Declaration of War with Austria" French Revolution Timeline, 2018, https://frenchrevolutiontimelinesd.wordpress.com/2013/04/05/declaration-of-war-with-austria/ (Accessed 7 Nov 2018). See also, Stirk, Peter M. R. A History of Military Occupation From 1792 to 1914. Edinburgh University Press, 2016, p. 49-54. 84 Stirk, Peter M.R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press (2016) p. 39. 85 Grun, Bernard. The Timetables of History. Third Edition, Simon and Schuster, New York, (1991) p. 368.

52 vis-à-vis these new occupied holdings. Revolutionary France renounced the concept of conquest in their 1791 Constitution86 as they believed “…there was only one true political union in Europe: France…The rest of Europe was composed only of mere agglomerations of men held together by the iron bands of tyranny.”87 The French began to combine the renunciation of conquest with promotion of liberty or for other peoples to recover their liberty88 but this too changed after a short time as Napoleonic France took the usual course relating to the rights of victors in war.89 Yet Napoleon tried a different approach to victor’s rights.

As French military victories increased their “occupied territories” the occupation administration did not keep pace. The French “…left the existing municipal authorities in place, including the [local] national guard, which contributed to the maintenance of order on several occasions, sparing the French the resources that would have been needed to replace it.”90

Occupation was off to a rough start with various scattered attempts by both by the French and the Allies aligned against Napoleon to grasp the development of the occupation concept and to enact laws for such activity.

Presciently, local civic leaders in conquered countries were astute enough to realize they preferred the imposed “‘Napoleonic legal code’ that gave people access to new legal rights and

86 The French Constitution of 1791, Title VI, first paragraph, “[t]he French nation renounces the undertaking of any war with a view of making conquests, and it will never use its forces against the liberty of any people.” Available in English at http://www.duke.edu/web/secmod/primary texts/FrenchConstitution1791. Pdf (Accessed 20 December 2017) 87 Stirk, Peter M.R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press (2016) p. 50. 88 Stewart, John Hall. A Documentary Survey of the French Revolution. Macmillan, 1951, p. 381, The Decree of 19 November 1792. 89 Grun, Bernard. The Timetables of History. Third Edition. Simon and Schuster, New York, (1991) p. 51-55. 90 Stirk, Peter M.R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press (2016) p. 78.

53 courts…[rather than] the threat of direct military occupation…and [to] pay tribute when the collector showed up.”91 Clearly, these wars demonstrated that both the French and the Allies opposing them were “…unprepared for the challenges of occupation, of the difficulty generals experienced in controlling their own soldiers, and of the tension between military and civil authority.”92 Belligerent occupation was evolving on the fly behind the French victories and, subsequently, the later French defeat in 1815. There was not a clean break with the past regarding conquest as occupation began to be understood. Yet the troops acted as conquerors to the frustration of Wellington as even the Iron Duke was unable “…to suppress the excesses of his own troops, still more so the excesses of his Allies’ troops.”93

Thus far not only were the political and military leaders bedeviled by the evolving concept of occupation but likewise the French courts when they had to grapple with belligerent occupation during and after the various Napoleonic Wars. During these wars, the French Court of Cassation94 encountered the problems of occupation, for example, regarding a trial in

Barcelona having as possible defendants an Italian force commander and a Spanish police commissioner accused of murdering a Spanish civilian while a Bonaparte was the ruler of

“occupied” Spain. Complicating this case further was the declaration by Napoleon that this rule

91 Ferejohn, John A, and Frances McCall Rosenbluth. Forged Through Fire: War, Peace, And The Democratic Bargain. Live Right Publishing A Division Of W.W. Norton & Company, 2017, p. 209. 92 Stirk, Peter M.R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press (2016) p. 91. 93 Id., p. 89. 94 Author’s Note. The Court of Cassation (FR: Cour de Cassation) is “the highest court of criminal and civil appeal in France, with the power to quash (casser) the decisions of lower courts. The high court considers decisions only from the point of view of whether the lower court has applied the law correctly; it does not deal with the facts of a case, nor does it retry it. The appeals courts hear cases on matters of fact and retry them. The aim of the Cour de Cassation is rather to ensure a uniformity of the interpretation of the law among all the French courts. It does not, on the other hand, determine whether a particular law itself is constitutional…” found at "Cour De Cassation." The Encyclopaedia Britannica, Inc., 2011, at https://www.britannica.com/topic/Cour-de-Cassation (Accessed 22 December 2017).

54 was not an extension of French sovereignty. The court ruled that the French were indeed in occupation yet “[m]ilitary occupation alone did not…entail the extension of sovereignty.”95 Just the next year, the court ruled that the King of Naples was the ruler of Rome so long as he possessed that city but that his acts were only lawful while he was in occupation.96 The struggle over whether these “occupations” were conducted by either an interim ruler or belligerent occupier was disparately handled yet began to demonstrate the foundation of the principle that an occupier cannot become a sovereign. To the Court of Cassation, occupation, in its infancy, was a question of law but in later development this would become a question of fact.

So with these problems regarding occupation, the question remained why continue with the development of occupation and the attendant law? Pressing forward, the Congress of Vienna under Metternich, Talleyrand, and Castlereagh began to evolve the “principles of maintenance

(or restoration) of sovereignty and the independence of the states occupied during the

Napoleonic Wars despite many territorial alterations.”97 Metternich wanted to maintain the status quo by stabilizing the legitimate European royalty, suppressing national movements, and normalizing European relations as “…determined by consensus among like-minded rulers.”98

Security, as a sovereign right, and independence are the basis for these principles leading to what has been termed the conservationist view99 of occupation law. Prince Metternich sought to restore the old or pre-Napoleon ruling order based on the conservationist view that asserts

95 Stirk, Peter M.R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press (2016) p. 90. 96 See generally, Stirk, Peter M.R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press (2016) p. 89-91. 97 Arai-Takahashi, Yutaka. "Preoccupied With Occupation: Critical Examinations of The Historical Development of the Law of Occupation," International Review Of The Red Cross. vol. 94, no. 885, 2012, pp. 51-80. Cambridge University Press (CUP), doi:10.1017/s1816383112000495. 98 Kissinger, Henry. Diplomacy. Simon & Schuster, 1994, p. 104. 99 Fox, Gregory. "The Occupation of Iraq." The Georgetown Journal Of International Law, vol. 36, no. 1, 2005, Elsevier BV, p. 195 (Accessed 19 December 2017).

55 there are “... limitation[s] on an occupier’s legislative authority most famously embodied [later] in Article 43 of the Hague Regulations.”100

The concept of occupation began to be viewed differently by the statesmen during the

Congress of Vienna so that the “…sovereignty [of the territory] remained with the original holder of the territory…the conqueror of territory (i.e. Napoleon) was illegitimate, and therefore could not acquire de jure sovereignty.”101 A rising awareness by those statesmen was that Napoleon could not be considered as having been the ruler of his conquests, thus they called into question the concept of conquest while seeking to replace Napoleon with the French

King and recovering their own losses suffered under their nemesis, Napoleon. Concluding that the “conquests” of Napoleon were usurpations of sovereign power, the idea of occupation began to appeal to them. Sovereignty “[i]n a system of sovereign states, [is where] each recognizes the other as the final authority in their given territories, and only they can be considered as actors within the system.”102 Thus, “[i]t is precisely on this ground that scholars have identified Westphalia with the origins of sovereignty…”103 and this sovereignty was taken extremely seriously by the Congress of Vienna. Beyond this, British General Wellington, the victor at Waterloo and later the commander of the Allied occupation forces in France, viewed

100 Fox, Gregory. "Eyal Benvenisti: The International Law of Occupation" European Journal of International Law, vol. 24, No. 1, 2013, pp. 453-458, p. 453. Oxford University Press (OUP), doi:10.1093/ejil/cht003 (Accessed 9 Mar 2018). 101 Carcano, Andrea. The Transformation of Occupied Territory in International Law. Konicklijke Brill NVLeiden, The Netherlands (2015) p. 21. 102 Murphy, Alexander B. The Sovereign State System as Political-Territorial Ideal: Historical and Contemporary Considerations in Biersteker, Thomas J., and Cynthia Weber, eds., State Sovereignty As Social Construct. Cambridge University Press, 1996, p. 92. 103 Croxton, Derek. "The Peace of Westphalia of 1648 and the Origins of Sovereignty" The International History Review, vol. 21, no. 3, 1999, p. 570. Informa UK Limited, doi:10.1080/07075332.1999.9640869.

56 occupation as “a clear and preferable alternative to conquest….”104 The other Allied militaries,

Prussia, Austria, and Russia were in agreement with Wellington thus both statesmen and military leaders were accepting the concept of occupation -- an important development. So following the Treaty of Paris signed on 20 November 1815, the nations allied against Napoleon conducted an occupation to transition France back to the ante bellum lawful ruler. These statesmen under Metternich formed the idea that the return of power to the legitimate but disposed crowned heads of Europe would advance their balance of power. The question was what to do with Napoleonic France while transitioning her to the former legitimate monarchal rulers therefore, the idea of an occupation by the victorious powers was accepted. “After a relatively short, multilateral occupation, a stable monarchical government under Louis XVIII was restored….”105 The concept of occupation would need time to evolve since conquest had been so firmly implanted within the European community of nations for at least two millennia. The conceptual development of occupation would experience convulsions and jolts in the formulation and implementation as can be observed during the occupation of post-Napoleon

France that still appeared to be couched in terms of conquest and liberation.

Meanwhile across the Atlantic in an American Supreme Court case, Chief Justice Marshall delivered this line in an opinion “[t]he usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation until its fate shall be determined at the treaty of peace.”106 The law was slowly taking cognizance of and evolving with the change from conquest toward occupation but in the early to mid-19th Century,

104 Stirk, Peter M. R. A History of Military Occupation From 1792 to 1914. Edinburgh University Press, 2016, p. 88. 105 Edelstein, David M. Occupational Hazards: Success and Failure in Military Occupation. Cornell University Press, 2008, Appendix 2, p. 178. 106 American Insurance Company v. Canter, 26 U.S. (1 Peters 511) 511 (1828), p. 541.

57 conquest in war began to be supplanted by the idea of occupation with the end result of turning the vanquished state back to its previous rulers or the people after a period of time.

August Heffter lamented in his 1844 international law book entitled “Das Europaishe

Volkerrecht der Gegenwart” that there was not sufficient distinction between conquest and occupation.107 Albeit not the first to state this concern, Heffter was remembered, in part, because of his international law book that covered this quandary and the impact his book had upon other scholars thinking about the topic.

Next, there ensued the American Civil War with the concomitant change in warfare. “The

Napoleonic concept of the nation in arms was replaced by that of the nation at war…This meant that political and economic considerations inevitably dictated military decisions; no longer could war be reserved to the military.”108 With this change in warfare, the factory worker and farmer contributed to the success of the national war effort as much as the military. This change to a more total war involving the entire nation led to concerns about how land warfare might require some sort of occupation due to the expanding role played by the civilian members of a belligerent society.

The American Civil War, perhaps more importantly, also contributed what “…is sometimes referred to as the first modern codification of the laws of war”109 popularly called the Lieber

107 Heffter, August Wilhelm. Das Europaische Volkerrecht der Gegenwart (translated The Present European International Law) as cited in Stirk, Peter M.R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press (2016) p. 6. 108 Dupuy, R. Ernest and Trevor N. Dupuy. The Encyclopedia of Military History, Second Revised Edition. Harper & Row, New York (1986) p. 916. 109 Lieber Code, Oxford Public International Law Series, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e2126 (Accessed 11 December 2017)

Code. Promulgated110 as “General Orders, No. 100: Instructions for the Government of Armies of the United States in the Field,”111 this Code was intended as a self-explanatory guide for direct use in the field written by Francis Lieber. He was a German immigrant with a professorship in history and political science and also taught courses at the Columbia College

Law School including courses on the proper conduct of war and the conclusion thereof including “occupation” specifically.112 In the first article of the Lieber Code, he wrote that when some entity (place, district or country) is occupied, “[m]artial law is the immediate and direct effect and consequence of occupation or conquest.”113 Albeit the Lieber Code was often ignored during the fighting in the American Civil War, it was in some semblance adopted or adapted later by many of the leading military nations of the time including Prussia, France and

Great Britain.114 This “Code” formed the basis for further development of the idea surrounding occupation and the laws attendant to such activity being the center of discussion throughout this period of history to the Geneva Conventions nearly four score and six years into the future.

Interestingly, the American Occupation Forces in Germany and Japan were bound by Lieber’s specification that: “The United States acknowledges and protects, in hostile countries occupied

110 Author’s Note. This promulgation was carried out without Congressional authorization and in contravention of the U.S. Constitution. In Article 1, Section 8, Clause 14, the Constitution provides: The Congress shall have Power to…make Rules for the Government and Regulation of the land and Naval Forces….” After-the-fact legislation seems to have remedied the concern during the war. This legislation was needed to correct the executive branch promulgation of that order. 111 Instructions for the Government of Armies of the United States in the Field (United States [US]) General Order No 100. War Department, Washington D.C., 24 April 1863, http://avalon.law.yale.edu/19th_century/lieber.asp (Accessed 11 December 2017) 112 Freidel, Frank. Francis Lieber: Nineteenth-Century Liberal. Baton Rouge: Louisiana State University Press, 1947. 113 Instructions for the Government of Armies of the United States in the Field (United States [US]) General Order No 100, War Department, Washington D.C., 24 April 1863, http://avalon.law.yale.edu/19th_century/lieber.asp (Accessed 11 December 2017) 114 Stirk, Peter M.R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press (2016) p. 225- 229.

59 by them, religion and morality; the persons of inhabitants, especially those of women; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished.”115

American jurists in the North, similar to their earlier French judicial colleagues, were forced to be creative with the extant law during the Civil War due to the serious constitutional issues attendant to this internal conflagration. Essentially, the Confederate States argued this was an international war and called it the “War Between the States” thereby granting to them full belligerent rights and a de jure government while the Union argued this secession was a constitutional nullity so the Confederates were engaged in an insurrection. Eventually, “…the

United States could claim against the Confederates both sovereign rights and those rights arising out of the international law of war.”116 The Supreme Court of the United States continued this legal fiction of dual status for the Confederacy by adjudging in the Prize Cases117 that regarding foreigners, the war was a civil war and fought according to the laws of nations so both sides possessed belligerent rights with the concomitant duties. Militarily this was a fight between belligerents but the constitutional theory deemed it an insurrection thus the United

States after suppressing the Confederates was “’free to develop a reconstruction program premised upon the insurrection theory.”118 Confusion as to the Confederacy attaining the status of a nation and the concomitant belligerent rights was apparent, but the post-conflict

115 U. S. War Department. Field Manual 27-10, Rule of Land Warfare. Washington, D.C. 1940. 116 Kelly, Alfred Hinsey, and Winfred A. Harbison. The American Constitution. New York, W.W. Norton, 1976, p. 393. 117Author’s Note. The Prize Cases, 67 U. S. 635 [1863], raised the constitutional question of the legality of the northern blockade of Confederate ports and the seizure of vessels by the President when Congress has the power to declare war. The Supreme Court found that the President had acted constitutionally due to his positon of commander-in-chief with the duty to “…preserve, protect, and defend the Constitution…” thus the President could take military action to resist insurrection. There was no declaration of war since this act was thought to confer the status of “State” upon the Confederacy. 118 Kelly, Alfred Hinsey, and Winfred A. Harbison. The American Constitution. New York, W.W. Norton, 1976, p. 394.

60 reconstruction program in the defeated south indicated this was an insurrection not a war between States.

Returning to the international stage, Heffter’s book coupled with the Lieber Code influenced the call for the Geneva Conventions held in 1864 dealing with the amelioration of suffering for those wounded in war advocated by Henri Dunant119 along with the St. Petersburg Convention in 1868 dealing with exploding munitions.120 Printing of the Lieber Code in Europe led directly to a conference initiated by Czar Alexander of Russia in Brussels from 27 July to 27 August 1874.

The result of this conference was to promulgate a new code, The Brussels Code, of what claimed to be the legally accepted principles regarding the post-conflict aftermath generally, although none of the delegates had the authority to sign this agreement.121 Significantly, this conference developed a definition of occupation122 that provided in Article 1 “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”123 Notwithstanding the good intentions at Brussels,

…since not all the governments were willing to accept it as a

binding convention it was not ratified. The project nevertheless

formed an important step in the movement for the codification of

the laws of war. In the year in which it was adopted, the Institute of

119 Dunant, Jean Henry. A Memory of Solferino. ICRC, 1986. 120 "Treaties, States Parties, And Commentaries - St Petersburg Declaration Relating To Explosive Projectiles, 1868". Ihl-Databases.Icrc.Org, 1988, https://ihl-databases.icrc.org/ihl/INTRO/130?OpenDocument (Accessed 13 Jan 2019). 121 Stirk, Peter M.R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press (2016) p. 227. 122 Zwanenburg, Marten. The Law of Occupation Revisited: The Beginning of an Occupation. Yearbook of International Humanitarian Law, vol. 10 (2007) p. 101. 123 ICRC, Project of an International Declaration concerning the Laws and Customs of War. Brussels, 27 August 1874. https://ihl-databases.icrc.org/ihl/INTRO/135 (Accessed 14 November 2017).

International Law, at its session in Geneva, appointed a committee

to study the Brussels Declaration and to submit to the Institute its

opinion and supplementary proposals on the subject. The efforts of

the Institute led to the adoption of the Manual of the Laws and

Customs of War at Oxford in 1880.124

During what I have labelled the “age of treaty codification” there were many efforts to regulate all of the aspects of war and the aftermath. These conferees at the various conferences believed that “[o]nly treaty based law brought with it the promise, but not the reality, of the coherence and comprehensiveness…”125 that the Europeans relished in their codified domestic law.

The Russians continued the effort to codify the law of war and pressed for a conference on land warfare at The Hague; even providing their second proposal based upon their first effort at the

Brussels Conference. What became known as The First Hague Peace Conference opened in May

1899126 with the Brussels Code as the starting point for the negotiations. The continuing dilemma of defining the term “occupation” resurfaced with the German delegate, Colonel

Gross von Schwartzhoff, arguing that the definition of occupation was specific in the first article of the pertinent section but that later use of the words “…occupied, occupant, and occupation are used in a broader and so to speak military sense, which comprises at once invasion and

124 Treaties, States Parties, And Commentaries - Brussels Declaration, 1874, Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Ihl-Databases.ICRC.Org, 2018, https://ihl- databases.icrc.org/ihl/INTRO/135. (Accessed 6 Mar 2018). 125 Stirk, Peter M.R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press, Edinburgh (2016) p. 224. 126 Dupuy, R. Ernest and Trevor N. Dupuy. The Encyclopedia of Military History, Second Revised Edition. Harper & Row, New York (1986) p. 918.

62 occupation.”127 Based on this occupation could occur during war not just in the aftermath so the concept of belligerent occupation continued to advance. However, due to the multiple confrontations, the conference sputtered along and eventually, when agreement on all issues was impossible, the Martens Clause was inserted into the record. It read

[u]ntil a perfectly complete code of the laws of war is issued,

the Conference thinks it right to declare that in cases not

included in the present arrangement, populations and

belligerents remain under the protection and empire of the

principles of international law, as they result from the usages

established between civilized nations, from the laws of

humanity, and the requirements of the public conscience.128

Unfortunately, the record is not clear as to the level of control that an Occupying Power must exhibit to be considered “in occupation.” In the age of treaty codification, the perfect agreement became the antagonist of the possible pact. Yet, this conference document

“…represented a delicate balance that both provided protection for a civilian population brought under the control of an occupant and safeguarded the interests of the ousted government for the duration of the occupation.”129 Having failed to settle the larger issues, they papered over the disagreements, and the participants began working on the next peace conference to try again to reach an agreement.

127 Scott, James Brown (ed.). The Proceedings of the Hague Peace Conference: The Conference of 1899. Oxford University Press, New York (1920) p. 558. 128 Id., p. 548. 129 Benvenisti, Eyal. The Origins of the Concept of Belligerent Occupation in Heintschel von Heinegg, Wolff, and Michael N. Schmitt, Detention and Occupation In International Humanitarian Law. Farnham, Ashgate, 2012, p. 197.

Another attempt was made at The Second Hague Peace Conference of 1907.130 This peace conference had little to agree on and not wanting to tackle the tough issues of war and the post-conflict aftermath proceeded to its conclusion triumphantly claiming that “…there was now an agreed and enforceable law of occupation. Discussions of the law of occupation had a common reference point for the first time.”131 Thus codified, “[a]rticles 42 through 56 of the

Hague IV Regulations address [belligerent] occupation”132 and are only supplemented by the later Geneva Conventions.133 Concisely stated in Article 42 of the 1907 Hague Regulations is found the definition of the word “occupation” as it provides in the section entitled, “ON

MILITARY AUTHORITY OVER HOSTILE TERRITORY” that “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself.”134 This rather concise definition is followed in the next article by the spelled out responsibilities of the

Occupying Power providing

130 Dupuy, R. Ernest and Trevor N. Dupuy. The Encyclopedia of Military History, Second Revised Edition. Harper & Row, New York (1986) p. 918. 131 Stirk, Peter M.R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press, Edinburgh (2016) p. 244. 132 Department of Defense Law of War Manual, Office of General Counsel, Department of Defense,(Updated May 2016) p. 730. 133 ICRC, Customary IHL Database, https://www.icrc.org/warandlaw (Accessed 12 December 2017) Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. Article 154 provides “In the relations between the Powers who are bound by the Hague Conventions respecting the Laws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and who are parties to the present Convention, this last Convention shall be supplementary to Sections II and III of the Regulations annexed to the above-mentioned Conventions of The Hague.” In the Commentary the following explanation is given “There is no need, therefore, in particular cases, to wonder whether The Hague Regulations and the Fourth Geneva Convention are both applicable. If the Geneva Convention is applicable, the Hague Regulations are also applicable ' a fortiori ' in respect of all matters concerning civilian persons in time of war not contained in the 1949 Convention.” 134 The Organization for the Prohibition of Chemical Weapons, Convention (II) with Respect to the Laws and Customs of War on Land (Hague, II) (29 Jul 1899) Entry into Force: 4 September 1900. https://www.opcw.org/chemical-weapons-convention/related-international-agreements/chemical-warfare-and- chemical-weapons/hague-convention-of-1899/ (Accessed 17 November 2017)

[t]he authority of the legitimate power having in fact passed

into the hands of the occupant, the latter shall take all the

measures in his power to restore and ensure, as far as possible,

public order and [civil life], while respecting, unless absolutely

prevented, the law in force in the country.135

Based on these two provisions there was now a definition and a set of general duties regarding occupation that was internationally agreed upon and was considered the basic law of occupation. Thus the two Hague Peace Conferences in 1899 and 1907 based on the Brussels

Conference of 1874 developed a treaty basis for the concept of belligerent occupation.136

An acceptance of the definition regarding occupation seemed to be understood but with the

Italo-Turkish War (1911-1912) and the two Balkan Wars (1912-1913 and 1913)137 following on the heels of the Second Hague Peace Conference there was a clear indication that the law and practice may be out of synchronization. These three wars were about pure conquest in the form of taking land from the Ottoman Empire as it was declining in the years leading up to the

First World War.

The world was unprepared for the cataclysm of the First World War. Occupation of enemy territory began almost simultaneously with the opening shots being fired as some territory was rapidly seized. While occupation did occur rapidly in the First World War such rapid occupation became immediately obvious in the Second World War. In spite of this rapid territorial seizure,

135 Id. 136 Dinstein, Yoram. The International Law of Belligerent Occupation. Cambridge University Press, Cambridge UK (2009) p. 4. 137 Dupuy, R. Ernest and Trevor N. Dupuy. The Encyclopedia of Military History, Second Revised Edition. Harper & Row, New York (1986) p. 926-928.

65 atrocities began early in the Great War, commencing on 4 August 1914 during the siege at

Liege, Belgium. That assault and siege

…provoked the first manifestations of a month-long German

frenzy about supposed francs-tireurs [free shooters or snipers in

irregular military formations]138 opposing their advance. This

prompted the Kaiser’s army to behave with extraordinary

savagery. On the night of 4 August, troops in the village of

Bernau panicked amid unexplained shooting…the next day ten

villagers were murdered in retaliation…The first mass

execution also took place that day…Major General… von

Kraewl’s brigade shot 117 civilians, whom he claimed had

engaged in ‘mass resistance.’139

The number of civilians deliberately shot was staggering and these continued beyond these early murders with many other atrocities committed. While there were many of these episodes suffice it to say that there were

129 ‘major’ documented atrocities during the first weeks

of the war--101 in Belgium and twenty-eight in France--in

which a total of 3,146 civilians were killed in cold blood.

There were also 383 ‘minor’ incidents involving fewer than

ten deaths, which accounted for a further 1,100 people. A

138 Meet The Francs-Tireurs – The French Resistance Of 1870" Militaryhistorynow.Com, 2013, http://militaryhistorynow.com/2017/02/10/the-francs-tireurs-meet-the-french-resistance-of-1870/ (Accessed 9 Mar 2018). 139 Hastings, Max. Catastrophe 1914: Europe Goes to War. New York, N.Y., Vintage Books, A Division Of Random House, LLC, 2014, p. 162.

grand total of around 6427 civilians were known to have

been deliberately killed by the Germans during their 1914

operation. Some 65 percent of the ‘major’ incidents were

prompted by allegations of civilian francs-tireurs whom had

fired on soldiers. The killings were carried out by men of

every German army. Atrocities declined steeply only when

the front stabilized in October.140

This was the beginning of the occupation as most of Belgium and northern France fell into

German hands. Atrocities likewise occurred on the German’s eastern front but are far less well documented. Despite the lack of records, “[a] German official report declared that 101 civilians perished during the Russian invasion of East Prussia.”141 These early examples are just a selection of the murderous despoliations during the Great War’s occupations142 yet even as horrific as these were, the aforementioned atrocities were overshadowed by the sheer number of military casualties; again the world was not prepared for either of these events that occurred. Atrocities occurred throughout the war with no one and no things exempted as

[i]n France between February and March 1917, Ludendorff

unleashed Operation ‘Alberich,’ as the German army

conducted a controlled withdrawal of the front line; they

‘resettled’ 126,000 French civilians. The level of plunder already

140 Id., p. 192. 141 Id., p. 192-193. 142 For a more extensive review of German atrocities see, Horne, John, and Alan Kramer. German Atrocities, 1914. Yale University Press, 2001; Chickering, Roger, and Stig Forster. Great War, Total War: Combat and Mobilization on the Western Front, 1914-1918. Cambridge University Press, 2000; Liulevicius, Vejas Gabriel. War Land On The Eastern Front. Cambridge Univ. Press, 2005; and Stone, Norman. The Eastern Front. Penguin Books, 1998.

high, increased as nine hundred trainloads of French booty was

transported to Germany.143

Such depredations against the occupied civilians would need to be addressed in the post- conflict phase of the Great War by military courts and additional treaties but this would be delayed by over three decades.

After the armistice that halted the fighting, the Allied Powers and one of their Associate

Powers, the United States, convened a Peace Conference in Paris to establish a Peace Treaty.

The Germans wanted this war to end based on the Fourteen Points so that a just peace would ensue without annexation. Unfortunately, “[t]he rights of conquest and victory were woven deeply into European history and previous wars….”144 Every Allied Power wanted something, usually land in some form, whether that be land adjacent to Allies such as France, Italy, Japan or colonies as desired by Britain.145 This was especially true of the French who insisted upon an armistice occupation so “[a]n Allied military presence in the Rhineland would make it much easier for the peacemakers to establish permanent arrangements there that were satisfactory to France.”146 The Americans reluctantly agreed to an occupation in their naïveté as “[t]hey had no ulterior motive. They had no desire to change things.”147 Multinational occupation did occur in the Rhineland following the First World War to further advance the practical aspects regarding the concept of belligerent occupation. Implementation of that belligerent occupation

143 Blood, Philip W. Hitler's Bandit Hunters: The SS and the Nazi Occupation of Europe. An AUSA Book, Potomac Books, 2006, p. 24. 144 MacMillan, Margaret. Paris 1919: Six Months That Changed the World. Random House, 2003, p. 21. 145 Id., p. 22. 146 Nelson, Keith L. Victors Divided University Of California Press, 1975, p. 8. 147 Id., p. 25.

68 was generally inefficient due to training and organization issues148 in the lower levels in the

American Zone with “[f]riction between the Americans and the French contrasted sharply with improving relations between the [U.S.] Third Army and the civilians of its zone.”149

The American occupation of their sector of the Rhineland lasted from December 1918 until

January 1923 when US Forces were withdrawn. For the later Army, this effort was seen as the noble occupation150 and “…for the first time in the Army’s experience looked on administration of occupied territory as something more than a minor incidental of war…The Army …should not again wait until the responsibility is thrust upon it but should develop competence in civil administration among its officers during the peacetime.”151 This first taste of international belligerent occupation had an impact on the US Army that would continue and caused further development of doctrine about occupation during the interwar years.

The Hunt Report regarding this belligerent occupation in the Rhineland became the progenitor of the interwar year’s studies, discussions, and working committees that would significantly impact the post-Second World War occupations. We will deal more extensively with the development of occupation doctrine and law by the United States during the interwar years in the next chapter.

148 See, Hunt, Irwin J. History.Army.Mil, 1943, https://history.army.mil/html/bookshelves/resmat/interwar_years/american_military_government_of_occupied_ germany_1918-1920.pdf (Accessed 22 Mar 2018). See also, Nelson, Keith L. Victors Divided. University Of California Press, 1975, p. 47-48. 149 Nelson, Keith L. Victors Divided. University Of California Press, 1975, p. 46. 150 See, Hudson, Walter M. Army Diplomacy: American Military Occupation And Foreign Policy After WWII. Univ. Press of Kentucky, 2015, Chapter 1. See also, Ziemke, Earl F. The U.S. Army in the Occupation of Germany, 1944- 1946. Center Of Military History, United States Army, 1975. 151 Ziemke, Earl F. The U.S. Army in the Occupation of Germany, 1944-1946. Center Of Military History, United States Army, 1975, p. 3.

As to Germany “[i]n the midst of a severe economic depression, Germany failed to provide a strong and stable democratic government once independence from occupation had been reached. It had been a serious mistake [for the Allies] to have withdrawn their armies before having made sure that the disarmament clauses of the Versailles Treaty had been met.”152 If the goal of the Rhineland Occupation was to stabilize the central mid-section of Europe,

Edelstein considers this effort at occupation to be a failure since “[b]y the early 1930s, Germany was again asserting itself in threatening ways”153 including the so called reoccupation, actually the reclamation, of the Rhineland by the Germans on 7 March, 1936.154

With this prelude to the Second World War, belligerent occupation would become a topic of significant importance. German military success was rapid with massive territory captured beginning with the invasion of Poland on 1 September 1939;155 bringing to the forefront the ancient question of conquest and with the more recent idea of occupation. Germany actually annexed areas of Poland that had been “lost” due to the Versailles Treaty ending the First

World War and shared the occupation of the remainder of Poland with the Soviet Union who had also invaded the country.156 German occupation occurred in twenty countries or parts of them during the war and these were brutal to those occupied. To provide a scope of these occupation efforts “[i]n 1942, it could take three days to travel from one end of occupied

152 Pawley, Margaret. The Watch on the Rhine. I.B. Tauris, 2007, p. 184. 153 Edelstein, David M. Occupational Hazards: Success and Failure in Military Occupation. Cornell University Press, 2008, p. 181. 154 Dupuy, R. Ernest and Trevor N. Dupuy. The Encyclopedia of Military History, Second Revised Edition. Harper & Row, New York (1986) p. 1035. 155 Id., p. 1050. 156 US Holocaust Memorial Museum "Invasion of Poland, Fall 1939" Ushmm.Org, 2018, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005070 (Accessed 3 Apr 2018).

70 territory to the other, even by airplane.”157 To ascertain a typical manner of carrying out these

German occupations we will examine a major belligerent occupation that occurred in France.

That occupation was summed up by indicating that as

[b]rilliant as the planning and execution of German military

operations had been in May and early June 1940, the same

cannot be said of the Occupation that followed. France had

fallen, but now it needed to be governed. Entering into the

details, one can only be astonished at the lack of foresight

and the extent of resulting administrative confusion.158

Lack of preparation for belligerent occupation was followed by brutality as the Germans executed many hostages “approaching the figure of 500”159 by May 1942 in retaliation for attacks on the German military by partisans. Partisan attacks and German counter–attacks raised the ante making France, especially Paris, a very dangerous place where even stricter rules and regulations continued to be imposed resulting in 2,347 death sentences by German military courts and 1,823 executions in Paris alone during the Nazi Occupation of France.160

Unfortunately, in these Nazi occupied countries this was the rule rather than the exception.

Deportations contributed to the brutal occupation as “[a] total of some 76,000 Jews from

France, most of them from Paris, among them 11,000 children, were deported by train to the

157 Blood, Philip W. Hitler's Bandit Hunters: The SS and the Nazi Occupation of Europe. (An AUSA Book) Potomac Books, 2006, p. 64. 158 Mitchell, Allan. Nazi Paris: The History of an Occupation 1940-1944. Berghahn Books, 2008, p. 3. 159 Id., p. 54. 160 Id., p. 107.

East. Most of the deportees were murdered in Auschwitz.”161 Such crimes during this belligerent occupation were specifically addressed in the Fourth Geneva Convention after the war.162

Nazi occupation was known for a “…great deal of drinking and whoring, despite explicit orders to the contrary”163 and a breakdown of many public services such as garbage collection leading to an infestation of rats in Paris.164 Economic problems began nearly as soon as the Nazi

Occupation with three major concerns including unemployment, inflation, and unsettled labor markets. Without jobs coupled by the unending price fluctuations and a consistently changing

German attitude toward the French economy, the Nazi Occupation was growing ever more invasive and unworkable165 as the Germans were viewed as conquerors. Suffice that with this one example of an occupation in a capital of a major European power with a thriving metropolis the horrors of German occupations in other areas were similar or worse.

Germany’s ally in the Pacific was on a par with it in terms of brutality and atrocities as Japan conquered large tracts of land across the Asian continent and a very large swath of Oceania.

One of the greatest of these atrocities occurred during the Japanese occupation of China as the city of Nanking was placed under occupation. As the conquered capital of China it was subjected to a nearly two month reign of terror consisting primarily of rape, torture, and

161 "The Deportation of the Jews from France - Yad Vashem" Yadvashem.Org, 2019, https://www.yadvashem.org/yv/en/holocaust/france/deportations.asp (Accessed 13 Jan 2019). See also, Semelin, Jaques. Survival of the Jews in France, 1940-44. Oxford University Press, 2019. 162 The Geneva Conventions of 12 August 1949. International Committee Of The Red Cross, 2006, Article 31, Anti- coercion, Article 32, no torture or “any other measure of brutality,” Article 33, no reprisals, Article 34 no hostage taking, and Article 49, no deportations or forcible transfers. 163 Mitchell, Allan. Nazi Paris: The History of an Occupation 1940-1944. Berghahn Books, 2008, p. 14. 164 Id., p. 17-18 165 Id., p. 20-26.

72 murder reducing the inhabitants from 600,000 to about 300,000.166 Such activities were photographed and a large cache is available with a preview in the Chang book entitled The Rape of Nanking.167 “Numerous concrete examples of horrific rape and massacre in Nanking were recorded in the proceedings of the [Tokyo War Crimes] tribunal.”168 Further Japanese atrocities were practiced throughout the war against Prisoners of War, civilians, the occupied peoples, and children such that there were shipwrecked survivors bayonetted, POWs massacred, civilians including children from conquered countries turned into comfort women, the systematic starvation of all of these categories of persons, death marches, and cannibalism.169

Prisoners of War were badly treated, often murdered, and employed as slave labor, usually in dangerous jobs. “The Japanese displayed particular callousness toward the American and

Filipino soldiers they captured at Bataan, marching them sixty-five miles … Dazed and weak from thirst and starvation … Thousands of them died from disease and exhaustion or from

Japanese brutality….”170 Suffice it to end our examination of this brutality by the Japanese in their occupations throughout the conquered Asia-Pacific region. Japanese occupation was similar in brutality to that of the Germans, however, “[t]here was no Asian equivalent of the extermination campaigns launched by Nazi Germany against Jews, Sinti, Roma, and others….”171

Nevertheless, the seeds of the Geneva Conventions especially the fourth of these entitled

166 See, Chang, Iris. The Rape Of Nanking: The Forgotten Holocaust Of World War II. Basic Books, 2015. 167 Id., See the Photographic pages. Warning these are graphic photographs! 168 Tanaka, Toshiyuki. Hidden Horrors: Japanese War Crimes in World War II. Westview Press, 1996. 169 Id., See also Wilson, Sandra et al. Japanese War Criminals: The Politics of Justice after the Second World War. Columbia University Press, 2017; See also, Totani, Yuma. Justice in Asia and the Pacific Region, 1945-1952: Allied War Crimes Prosecution, Cambridge University Press, 2015; and Akashi, Yōji, and Mako Yoshimura. New Perspectives on the Japanese Occupation in Malaya and Singapore, 1941-1945. Singapore University Press, 2009. 170 Ambrose, Stephen E, and C. L Sulzberger. American Heritage New History of World War II. Viking, 1997, p. 146. 171 Wilson, Sandra et al. Japanese War Criminals: The Politics of Justice after the Second World War. Columbia University Press, 2017, p. 15. See also, Tokudome, Kinue. The Holocaust and Japanese Atrocities in Rosenbaum, Alan S. Is the Holocaust Unique?: Perspectives on Comparative Genocide. Westview Press Incorporated, 2009, p. 201-213.

Geneva Convention Relative to the Protection of Civilians Persons in Time of War172 were being sowed across the world due to these sorts of occupation situations. Although entitled to protection during war there are many articles in the Fourth Geneva Convention, from Article 47 to 78 therein, dedicated to occupation.173 Yet before these Conventions could be negotiated there were many war crimes tribunals that did mete out punishment as these tribunals held persons responsible for violation of occupation principles and laws. Those tribunals are our next topic.

After the Second World War there were many war crimes tribunals established with the focus on the Nuremberg and Tokyo tribunals for the main prosecutions. In Nuremberg, “[b]etween

October 18, 1945, and October 1, 1946, the IMT [International Military Tribunal] tried 22

‘major’ war criminals on charges of crimes against peace, war crimes, and crimes against humanity, and conspiracy to commit such crimes.”174 In Tokyo, the International Military

Tribunals for the Far East (IMTFE) only prosecuted defendants who were the major planners and those who implemented the war.175 These defendants stood in the dock accused of committing crimes against the peace. “Crimes against Peace” were defined in the Charter of the International Military Tribunal (Nuremberg) and borrowed by the IMTFE in Tokyo for use against the nine civilian and 18 military defendants. It was defined as “… namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international

172 The Geneva Conventions of 12 August 1949. International Committee of the Red Cross, 2006, p. 153-221. 173 Id., p. 171-183. 174 "War Crimes Trials," Ushmm.Org, 2018, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005140 (Accessed 4 Apr 2018). 175 See, Wilson, Sandra et al. Japanese War Criminals: The Politics of Justice after the Second World War. Columbia University Press, 2017 and Dower, John W. Embracing Defeat: Japan in the Wake of World War II. W.W. Norton, 2000.

74 treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing….”176 Due to the size and scope of the Asia-Pacific war zone, throughout the vast region there were many other lesser tribunals including those conducted by Australia, China, France, The Netherlands, the Philippines, the United Kingdom and the United States.177

These war crimes trials showed the world the barbarities of occupation during war and provided the resolve to better articulate the conduct expected of the victors during times of belligerent occupation. Such articulation occurred with the Geneva Conventions of 1949; especially the Fourth Geneva Convention entitled “Geneva Convention Relative to the

Protection of Civilian Persons in Times of War of August 12, 1949.” This treaty built upon the earlier Hague Conventions and thus it must be examined. More will be presented later regarding The Hague and Geneva Conventions as these are the topic of the fourth chapter herein.

1.4 Belligerent Occupation Concerns of the United States.

From the first occupation by the U.S. military during the Mexican-American War (April 25, 1846 to 2 February 1848)178 there have been concerns about the manner of conducting and ending these military operations. The contradictions in US foreign policy contributed to these concerns about belligerent occupation. Until 1898 American foreign policymakers had been traditional

176 "Milestones: 1945–1952 - Office of the Historian" History.State.Gov, https://history.state.gov/milestones/1945- 1952/nuremberg (Accessed 7 Apr 2018). 177 See, Wilson, Sandra et al. Japanese War Criminals: The Politics of Justice after the Second World War. Columbia University Press, 2017 and Dower, John W. Embracing Defeat: Japan in the Wake of World War II. W.W. Norton, 2000. 178 Dupuy, R. Ernest, and Trevor N. Dupuy. The Encyclopedia Of Military History. Harper & Row, 1986, p. 806-811.

75 thinkers fortifying independence and expanding the territory179 but in that year they “…did admonish Americans to go forth and do good among the nations.”180 Carrying this mission to the nations was the US military in the belligerent occupations of Cuba, The Philippines, and other former Spanish possessions recently acquired. Belligerent occupation was not well planned such that “American missteps and indecision in the Philippines led to grinding and costly counterinsurgency operations against native rebels, while in Cuba, in spite of initial successes, the United States failed to lay the groundwork for a stable Cuban government over the longer term.”181 Future President and Chief Justice of the Supreme Court William Howard

Taft while Commissioner in the Philippine Islands realized “…that subjugation of the insurrectionists would be far more rapid if, first, the confidence and respect of the masses were obtained.”182 He conferred a good deal of political control to the Filipinos and provided for the education of children during his tenure. In his dealings with the Filipinos he displayed an

“…innate impartiality and judicial mind.”183 As previously stated, as with many occupations the words and deeds did not match as there were atrocities committed by both sides during the occupation of The Philippines.184 Yet the concept of belligerent occupation was developing despite the continuing battle

179 Kissinger, Henry. Diplomacy. Touchstone, 1995, p. 30-31. 180 McDougall, Walter A. Promised Land, Crusader State. Houghton Mifflin, 1997, p. 11. 181 Lord, Carnes. Proconsuls. Cambridge University Press, 2012, p. 50. 182 Pringle, Henry F. The Life and Times of William Howard Taft, 1st ed. Archon Books, 1939, p. 176. 183 Id., p. 177. 184 See, Blount, James Henderson. American Occupation of The Philippines, 1898-1912. The Knickerbocker Press, 1912. See also, "US War Crimes in the Philippines" Worldfuturefund.Org, http://www.worldfuturefund.org/wffmaster/Reading/war.crimes/US/U.S.Philippines.htm (Accessed 26 Nov 2018). Another example came to the fore with the return of the Bells of Balangiga from the US to the Philippines as this recalls the massacre of 48 US soldiers and the retaliation that resulted. "U.S. Government Returns Balangiga Bells to The Philippines | U.S. Embassy in The Philippines" U.S. Embassy in The Philippines, 2018, https://ph.usembassy.gov/us-government-returns-balangiga-bells-to-the-philippines/ (Accessed 12 Dec 2018).

76 with the perpetuation of conquest or annexation. The US intended to annex The Philippines185 but not Cuba as it had been liberated and was to be free.186

These apparently incongruous statements reflect the greater issues within American foreign policy: duality. It appears that as Americans,

[w]e embrace contradictory principles with equal fervor

and cling to them with equal tenacity. Should our foreign

policy be based on power or morality? Realism or

idealism? Pragmatism or principle? Should its goal be the

protection of interests or the promotion of values?

Should we be nationalists or internationalists? Liberals or

conservatives? We blithely answer, ‘All of the above.’”187

Absent some agreed consensus on which of the above referenced a la carte items are to be selected, there is a movement, consciously or otherwise, into expecting more from a generic post-conflict occupation than can be delivered.188 Thus I argue for a belligerent occupation

185 Stirk, Peter M. R. A History of Military Occupation From 1792 to 1914. Edinburgh University Press, 2016, p. 300- 302. 186 Hudson, Walter M. Army Diplomacy: American Military Occupation and Foreign Policy after WWII. Univ. Press of Kentucky, 2015, p. 35. See, Dupuy, R. Ernest, and Trevor N. Dupuy. The Encyclopedia of Military History. Harper & Row, 1986, p. 914. 187 Rostow, Eugene V. A Breakfast for Bonaparte: U.S. National Security Interests from the Heights of Abraham to the Nuclear Age. National Defense University Press, 1993, p. 22. Other scholars have also commented on this duality as when there are cycles of American history alternating “warfare between realism and messianism, between experiment and destiny.” Schlesinger, Jr., Arthur M. The Cycles of American History. Houghton Mifflin, 1986, p. 19. Also Dr. Kissinger wrote of dualities of isolationism versus globalism and idealism and power politics. Kissinger, Henry. Diplomacy. Touchstone, 1995, p. 29-30. 188 “With Saddam gone from power, our central objective became helping the Iraqis develop a democracy that could govern itself, sustain itself, defend itself, and serve as an ally in the war on terror. The objective was ambitious….” Bush, George Walker, Decision Points. Crown Publishing Group, 2010, p. 257.

77 rather than one of the other aforementioned variants of the occupation genre, prior to the effort to rebuild the defeated country and return sovereignty to the vanquished people.

Moreover, there is this almost messianic movement towards “nation building” stating that

Americans should “go forth and do good among nations”189 rather than mere belligerent occupation. This term “nation building” is defined as “the use of armed force in the aftermath of a crisis to promote a transition to democracy”190 and has a pejorative sense attached to this meaning. Nation building is NOT the focus of a belligerent occupation although many scholars and political leaders do not seem to appreciate the differences. Not appreciating the difference between these two actions they seek to place the onus of nation building on a belligerent occupation without the concomitant military planning or security backed up by solid planning for the civilian effort after the belligerent occupation establishes the requisite control and security.191 Interestingly, there is a general consensus among scholars and practitioners that security must be established prior to or at least contemporaneously192 with any attempt at nation-building193 albeit this is often overlooked by military planners, diplomats, and political leaders.

Such a messianic movement to undertake nation building has been labelled “global meliorism” described as “…the socio-economic and politico-cultural expression of an American mission to

189 McDougall, Walter A. Promised Land, Crusader State. Houghton Mifflin, 1997, p. 11. 190 Dobbins, James. "Nation-Building" Rand.Org, 2005, https://www.rand.org/pubs/corporate_pubs/CP22-2005- 04.html (Accessed 10 Mar 2019). 191 See, Rose, Gideon. How Wars End: Why We Always Fight The Last Battle. Simon & Schuster, 2012, p. 285. 192 Diamond, Larry Jay. Squandered Victory. Times Books, 2005, p. 296-297; Rose, Gideon. How Wars End: Why We Always Fight The Last Battle. Simon & Schuster, 2012, p. 285; Franks, Tommy R. American Soldier. Regan Books, 2014; and Warren, Marc, Belligerent Occupation, in Corn, Geoffrey S., et al., U.S. Military Operations. Oxford University Press, 2016, p. 663-672. 193 Fearon, James D., and David D. Laitin. "Neotrusteeship and the Problem of Weak States" International Security, vol. 28, no. 4, 2004, pp. 5-43. MIT Press - Journals, doi:10.1162/0162288041588296.

78 make the world a better place.”194 While concurring with the intended results, the law of belligerent occupation is “…poorly tailored to nation building… and was not designed with either disintegrated states or efforts to reintegrate them in mind.”195 Nation building takes great patience, greater resources, and long–term commitment to achieve success. Nation building is “mission creep” to the primary missions of the U.S. military. I must reiterate that nation building is not a primary U.S. military mission although the can-do attitude of those military forces can make this nation building mission work but only once there is adequate security. It would be better for another agency or entity196 to take over if the nation building effort is demanded as this is not a core mission of the US or any other known military.

Specifically, what I am advocating for is more akin to state building. By state building, I mean the victors try to build better functioning governmental institutions in the vanquished state(s).197 My view is that after a period of belligerent occupation that establishes control and security, functioning central governmental institutions will lead to a transition from war to peace as security permits these better functioning institutions to develop and mature in a jus post bellum phase. Successful state building has been identified as essential for any further

194 McDougall, Walter A. Promised Land, Crusader State. Houghton Mifflin, 1997, p. 173. 195 Patterson, Melissa. "Whose Got The Title? Or the Remnants of Debellatio in Post-Invasion Iraq" Harvard Journal of International Law, vol. 47, no. 2, 2006. Http://Web.A.Ebscohost.Com.Proxy.Libraries.Uc.Edu/Ehost/Detail/Detail?Vid=0&Sid=F10ad4e3-2288-4555-8Dc3- 677073D1cc5b%40Sdc-V-Sessmgr01&Bdata=Jnnpdgu9zwhvc3qtbgl2zq%3D%3D#AN=502512863&Db=Ofm (Accessed 18 Mar 2019). 196 Keohane, Robert "A Credible Promise to the United Nations" The Financial Times, 2003, p. 15. 197 See, Boot, Max. "Reconfiguring USAID For State-Building" Council on Foreign Relations, 2016, https://www.cfr.org/report/reconfiguring-usaid-state-building. (Accessed 5 July 2019). See also, Fukuyama, Francis, "Nation-Building 101" The Atlantic, 2004, https://www.theatlantic.com/magazine/archive/2004/01/nation-building-101/302862/ (Accessed 1 July 2019). “What we are really talking about is state-building—that is, creating or strengthening such government institutions as armies, police forces, judiciaries, central banks, tax-collection agencies, health and education systems, and the like.”

79 national development.198 State building is different from and not to be confused with the aforementioned concept called nation building.

Such an effort to plan for a belligerent occupation leading to some state building effort will encompass changes in operational thinking and acting within the Departments of Defense and

State. Specialized training will be necessary and not of “the just in time” variety currently popular in some military circles, and overcoming bureaucratic inertia with regard to post- conflict operations will be of great value. It can be done but like mating elephants, it will need to be done at a high level, there will be a lot of noise, and it will take years to produce results.

Specifically, this will need to be a top down and driven effort, there will be endless discussion within the Department of Defense and then the Inter-Agency Working Group prior to senior level political machinations and all of this will take years to get started let alone complete. My hope is that a better peace may ensue from all of this effort to develop, plan for, and execute a mission akin to state building as defined above.

1.5 Conclusion.

So where are we at this point? The concept of belligerent occupation has been developed beginning with a rejection of conquest in the Revolutionary French Constitution of 1792 through Napoleonic France’s wars and defeat with the anti-Napoleon forces imposing an occupation to restore the previous royal family. Defining and separating belligerent occupation from other types of occupation while distinguishing it from other war outcomes such as

198 Hippler, Jochen. Nation-Building: A Key Concept for Peaceful Conflict Transformation? Pluto in Association with the Development and Peace Foundation, Bonn, 2005, p. 9. See also, Goldsmith, A., Does Nation-building Work? In Brinkerhoff, Derick W. Governance In Post-Conflict Societies. Routledge, 2008, p. 27-28.

80 colonization, annexation, and outright conquest, the concept’s development through the era of codification and treaties was traced. Statesmen, warfighters, and the courts all had to advance the concept of belligerent occupation albeit at different rates of progress, from different perspectives, and with varying results. It took the horrors of two major world conflagrations in a mere twenty–five year span with the attendant vicious treatment of the civilian populations under occupation to lead to the Fourth Geneva Convention becoming a treaty. U.S. belligerent occupational concerns show that an ideal belligerent occupation as an aspirational goal may be attained with proper planning, sufficient occupation forces, and solid leadership prior to any attempt to conduct state building or some other semblance of peace operations.

Experiences gained from previous US belligerent occupations follow in the next chapters.

Chapter 2 Comparative Belligerent Occupation: The United States in Post-war Germany, Japan, and Iraq.

In this chapter, we will compare belligerent occupations by the United States in three countries specifically Germany and Japan after the Second World War and the more recent Iraq occupation. I will examine the cases of occupation in Germany and Japan after their respective surrenders in the Second World War to glean the lessons learned from these actual occupations. While not expressing the proposition that these two occupations were ideal as both experienced significant difficulties, I will review how these previous experiences provided practical solutions to actual belligerent occupation issues being resolved so as to return these two vanquished countries to their people. Both American occupations occurred at the same time but under different governmental situations, Japan with a government in place and

Germany without any government. Further, these occupations occurred within two distinct cultures. Lessons learned from these two occupations will be compared with the problems encountered in the UN sanctioned occupation of Iraq. The problems encountered in and lesson learned from the occupations in Germany, Japan, and Iraq in this historical analysis together with these most different cases centered upon American belligerent occupation should guide the further development of the ideal belligerent occupation.

This focus on the United States as an occupier across all three cases is due to the prominence of the United States in these and most occupations, the existence of solid records in various US agencies, and the familiarity with the American forces conducting these occupations. Based upon the global military engagement of the United States it remains highly likely there will be

82 future belligerent occupations under US forces or at least with US forces in a coalition. Getting belligerent occupation right should save lives, treasure, and allow rehabilitated nations to be returned to their people.

These three countries, Germany, Japan, and Iraq, were chosen based upon their being in a belligerent occupation conducted by American forces in a coalition, as in Germany, or singularly, as in Japan, or shared, as with the United Kingdom, in Iraq. Exploring these earlier successful occupations in Germany and Japan should help to identify problem areas in military doctrine, international law, or other yet to be discerned issues within the planning and implementing process of belligerent occupations by the United States. This emphasis on looking at military and international law problem areas is due to the demands and complexities of the

Laws of War as written by lawyers and diplomats while practiced by the militaries that must follow those laws.199 With this degree of requirements expected from the Occupying Power and problematic complexities even States that fully endeavor to respect these laws struggle to comply.

We will begin with an overview of American developments regarding what was then called military occupation during the interwar years as the US military, principally the Army, explored how to conduct an occupation based on the lessons learned from the post-First World War

Rhineland occupation. The impact of the interwar years will be studied beginning with the occupation of Germany and Japan to ascertain how this preparation impacted the two post-

Second World War occupations. Although Italy was the first of the Axis Powers to be occupied,

199 Fazal, Tanisha M. Wars of Law: Unintended Consequences in the Regulation of Armed Conflict. Cornell University Press, 2018, p. 23-30.

83 in this study Germany is considered first due to its major role in the European Theater of World

War Two. As the first true encounter with the trials and tribulations of belligerent occupation it provided notable lessons. As will be developed, the occupation force in the Far East was able to benefit and learn from the generalized lessons learned in Germany in the months that Germany was occupied before Japan. Our second review will be with the almost exclusive US occupation of Japan while noting the myriad differences from the European occupation. Next, Iraq being the first belligerent occupation of the twenty-first century follows with more than chronological order as this was the first time the United Nations Security Council had authorized a post- conflict occupation and the Occupying Powers have agreed to the designation. Iraq is also the first occupation that occurs under the Geneva Conventions and the transformation of these

Conventions with the 1977 Protocols Additional. Limiting the analysis to these three occupations makes design sense since “[m]ost theories of war are best tested by the case– study method… [as it] usually lends itself better to deep study of a few cases than to exploration of many cases”200 then this logic also applies to the post-conflict “occupation” period of a crisis with respect to the use of case studies.

Choosing these examples is based on the successful outcomes of returning two of these vanquished states to the international community. From devastated, defeated states and with occupation ending in the mid-1950s, these two former Axis states, Germany and Japan, were re-admitted back into the international community and are among the world’s leading economic powers albeit with limited military capabilities. Certainly this is not to say that these

200 Van Evera, Stephen. Guide to Methods for Students of Political Science. Cornell University Press, Ithaca and London, 1997, p. 30.

84 situations were perfect examples of post-conflict occupation as that was not the case. Yet, even in this less than perfect handling of occupation the results were quite good in both states.

2.1 American theories prior to the post-Second World War Belligerent

Occupations.

In the last century, since 1918, there have been multiple instances of belligerent occupation conducted by American forces, primarily U.S. Army troops although other branches of the military have been involved in providing occupation forces, beginning with the occupation of the Rhineland under the Versailles Treaty following after the First World War. The United

States, albeit a latecomer to the Great War, had stepped onto the world stage and being part of the victorious Allies was given a role in the occupation of the Rhineland in Germany under the

Versailles Treaty.201 Reportedly, America had not planned for this occupation even though the

1917 Inquiry conducted by a panel assembled by “Colonel” Edward M. House was to detail the

American war aims. Generally, “…American experts found it as difficult as the public to foresee an occupation.”202 Despite this newness on the global platform, the United States had been involved in no less than nine occupations since the conclusion of the Spanish-American War in

1898 until the beginning of the Rhineland episode. To view these US occupations, please refer to Table 2-1 below. Not all of these events were belligerent occupations and, with one exception, these occupations had all been in the neighborhood adjacent to the United States.

201 Papers Relating To The Foreign Relations Of The United States, The Paris Peace Conference, 1919. Volume XIII - Office Of The Historian" History.State.Gov, 2018, https://history.state.gov/historicaldocuments/frus1919Parisv13/ch23subch1. (Accessed 7 Mar 2018). The Treaty of Versailles provides at ARTICLE 428 “As a guarantee for the execution of the present Treaty by Germany, the German territory situated to the west of the Rhine, together with the bridgeheads, will be occupied by Allied and Associated troops for a period of fifteen years from the coming into force of the present Treaty.” 202 Nelson, Keith L. Victors Divided. University Of California Press, 1975, p. 5.

Even prior to that time the US was involved in an occupation in Mexico during and after the victory in the Mexican-American War from 1846 to 1848. So despite being a newcomer in the

Table 2-1 US Belligerent Occupations (temporary post-war control) [Author’s Chart].

Location Dates Belligerent Occupation

Mexico203 1846-1848 Yes

Cuba204 1898-1902 Yes

Philippines205 1898-1902 Yes

Cuba206 1906-1909 No

Nicaragua207 1912-1933 No

Haiti208 1915-1934 No

Dominican Republic209 1916-1924 No

Cuba210 1917-1922 No

Russia211 1918-1920 No

Rhineland212 1919-1923 Yes

Italy213 1943-1948 Yes

Germany214 1945-1949 Yes

203 Stirk, Peter M.R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press (2016) p. 149- 160. 204 Id., p. 289-297. 205 Id., p. 300-308. 206 Id., p. 297. 207 Nicaragua - United States Intervention, 1909-33. U.S. Library of Congress Country Studies 2018 http://countrystudies.us/nicaragua/10.htm (Accessed 17 January 2018). 208 Pike, John. "Occupation of Haiti (1915-34)" Globalsecurity.Org, 2018, https://www.globalsecurity.org/military/ops/haiti19.htm (Accessed 20 February 2018). 209 Boot, Max. The Savage Wars of Peace: Small Wars and the Rise of American Power. New York, Basic Books: 2002 p. 141-148 210 Id., p. 140-141 211 Unterberger, Betty Miller. America's Siberian Expedition, 1918-1920. Durham, N.C., Duke University Press, 1956. 212 Barnes, Alexander. In A Strange Land: The American Occupation of Germany 1918-1923. Atglen, PA, Schiffer Pub., 2011. 213 Treaty of Peace Between Italy and the Allied and Associated Powers. Italy, 10 Feb 1947, Department of State 2743, European Series 21, Annex VII, pp. 71-72.

Table 2-1 US Belligerent Occupations (Continued).

Location Dates Belligerent Occupation

Japan215 1945-1952* Yes

Austria216 1945-1955 Yes

South Korea217 1945-1948 Yes

Iraq218 2003-2004 Yes

------

*Iwo Jima219 1945-1968 Yes

*Okinawa220 1945-1972 Yes

* Parts of Japan remained under belligerent occupation as indicated above.

NOTE: The chart reflects the time under direct military control as some belligerent occupations continued under civilian authority.

international power games concluding the First World War, the United States had garnered some experience in the practical tasks of occupation. Nevertheless, this prior experience was with adjacent American neighborhoods, and most were not belligerent occupations.221 In many

214 "Allied Occupation of Germany, 1945-52" 2001-2009.State.Gov, 2018, https://2001- 2009.state.gov/r/pa/ho/time/cwr/107189.htm (Accessed 20 February 2018). 215 "Milestones: 1945–1952 - Office of the Historian" History.State.Gov, 2018, https://history.state.gov/milestones/1945-1952/japan-reconstruction (Accessed 20 February 2018). 216 "Records of U.S. Occupation Headquarters, World War II ...." https://www.archives.gov/research/guide-fed- records/groups/260.html (Accessed 20 February 2018). 217 South Korea - South Korea under United States Occupation, 1945-48." Countrystudies.US, 2018, http://countrystudies.us/south-korea/9.htm (Accessed 20 February 2018). 218 United Nations, S/RES/1483 (22 May 2003), UNSCR 1483 in the preambular language provides: “…Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the “Authority”)….” [emphasis added] 219 Iwo Jima: Return of a Battlefield" TIME.Com, 5 April 1968 http://content.time.com/time/magazine/article/0,9171,900057,00.html (Accessed 20 February 2018). 220 OKINAWA ISLANDS RETURNED BY U.S. TO JAPANESE RULE, http://www.nytimes.com/1972/05/15/archives/okinawa-islands-returned-by-us-to-japanese-rule-agnew-in- tokyo.html (Accessed 20 February 2018). 221 Nelson, Keith L. Victors Divided. University Of California Press, 1975, p. 5.

87 ways the seemingly modest American effort in this post-World War I occupation profoundly shaped the US Army’s conceptions of how military government would be conducted after

World War II.”222 In fact, Harold Zink would posit that “Colonel I. L. Hunt’s report on military government in the Rhineland became a sort of ‘bible,’ and had it been carefully heeded in practice, at least some of the later mistakes in Germany might have been avoided.”223

Specifically, Colonel Hunt found that “[t]he Army had failed to realize that efficient government can be conducted only from a single source. The failure to centralize in one office all matters pertaining to military government, resulted in untold friction, and often also caused divergent policies to be put into force.”224 Thus the Army handicapped its own Civil Affairs Officers by

“…a rapid turnover in personnel and by a lack of coincidence between German and American administrative boundaries, but it also commonly suffered from the absence of the American officers responsible for it.”225 These boundaries between US Army units and the German

“länder” or “counties” were not aligned making the task of governance more difficult as an

Army area may overlap several German “counties” often requiring consultations with all of them. Secondly, Civil Affairs was a collateral or secondary duty for many Army officers and, correspondingly, received less attention than their primary duties. Nonetheless, America’s first occupation of Germany “…while it had its problems, was relatively benign. The occupied territory had effective civil government still functioning. The population did not resist, and it did

222 Hudson, Walter M. Army Diplomacy: American Military Occupation and Foreign Policy after WWII. Univ. Press of Kentucky, 2015, p. 37. 223 Zink, Howard. American Military Government in Germany, 1944-1946. Macmillan, 1947, p. 12. 224 Hunt, Irwin J. American Military Government of Occupied Germany, 1918-1920. 1920 p. 86. Also available at Hunt, Irwin J., History.Army.Mil, 1943. https://history.army.mil/html/bookshelves/resmat/interwar_years/american_military_government_of_occupied_ germany_1918-1920.pdf (Accessed 22 Mar 2018). 225 Nelson, Keith L. Victors Divided. University Of California Press, 1975, p. 47-48.

88 not question the supreme authority of the military governorship established by the

Americans.”226 So this occupation came to an end but the experience was indelible for

America.

During the inter-war years, based in part upon Colonel Hunt’s report, the U.S. Army developed some experience with belligerent occupation in two ways: academically and by practical application in the field during actual occupations. Academically, the US Army conducted exploration of belligerent occupation by having Army War College students work in committees to prepare for an actual belligerent occupation complete with military government.227 These exercises were robust and extended into the War Department and the various military staff offices at various levels across the Army. Beyond this, just having exposure to belligerent occupation at the War College level228 was significant in that students, faculty, and those with whom they coordinated their projects were made aware of and had to comprehend the idea of post-war belligerent occupation with the concomitant planning and execution required.

Such academic problem solving was conducted while the United States was involved in several actual occupations in the Caribbean where military personnel dealt with the military occupation practicalities and issues as these developed. These experiences provided a cadre of military professionals with some notion of occupation albeit generally not belligerent occupation. See

Table 2-1 above to view the number and locations of these actual occupations.

226 Hudson, Walter M. Army Diplomacy: American Military Occupation and Foreign Policy after WWII. Univ. Press of Kentucky, 2015, p. 38. 227 See, Hudson, Walter M. Army Diplomacy: American Military Occupation and Foreign Policy after WWII. Univ. Press of Kentucky, 2015, p. 27-61. 228 Author’s Note: War College is the senior level of professional military education for the top field grade level of the Officer Corps, Colonel or Captain (US Navy). There are four War Colleges’ in the US military these being: The Army War College, The Naval War College, The Air War College, and the National War College. These colleges offer resident and non-resident courses of study to military officers and government civilians.

Once the United States was engaged in the Second World War, the Army established a School of Military Government at the University of Virginia in April 1942, later expanded to other top- tier universities. On 10 April 1943, “the Joint Chiefs of Staff confirmed the Civil Affairs Division as the logical staff to handle civil affairs in nearly all occupied territory."229 The Civil Affairs

Division became responsible for training and deployment of the School of Military Government graduates to the field at strategic and operational levels. Many new alumni were sent to North

Africa for occupation duty and others went to the staff under General Eisenhower at Supreme

Commander Allied Expeditionary Force (SCAEF) Headquarters. Despite this administrative progress, “[r]elatively little planning for postconflict administration was done for the North

Africa campaign, begun in November 1942 with Operation Torch, the invasion of French

Morocco and Algeria.”230 Nevertheless, this planning by the Army for the subsequent occupations of enemy combatant countries entailed a nearly three year process of interagency effort between the State Department and the Departments of War and the Navy before application in several vanquished countries. Our focus will be on the major vanquished belligerents, Germany and Japan.

2.2 Applying the American Theories in Germany.

In the European Theater the work of the Civil Affairs planners proceeded virtually unnoticed until these planners on Eisenhower’s staff published a guide entitled “Handbook for Military

229 Ziemke, Earl F. The U.S. Army in the Occupation of Germany, 1944-1946. Center Of Military History, United States Army, 1975, p. 7 and 17. Also available at "Chapter I: A Difficult Birth" located at History.Army.Mil. 2018, https://history.army.mil/books/wwii/Occ-GY/ch01.htm (Accessed 7 Mar 2018) p. 7 and 17. 230 Hayward, Edwin J. "Co-Ordination Of Military And Civilian Civil Affairs Planning" The ANNALS Of The American Academy Of Political And Social Science, vol. 267, no. 1, 1950, pp. 19-27. SAGE Publications, doi:10.1177/000271625026700104, p. 19.

Government in Germany.”231 According to the handbook, Germans were to be returned to a normal life and Germany was to be reconstructed as fast as practicable. “What the handbook pointed to was restoring Germans to power quickly, in accordance with military government doctrine and organizational practice, with as little interference and oversight from the army as could be allowed.”232 A controversy developed when the handbook was viewed as being too soft on the Axis Powers with the prevailing thought being that Germany needed to suffer.

Appalled by this “too soft” approach as “…it failed to promise punishment and retribution,”233

Secretary of the Treasury Henry Morgenthau drafted what became known as the Morgenthau

Plan to demilitarize Germany, make it into a pastoral society, remove the German industrial base permanently, and render Germany incapable of further militaristic adventures.234 After much debate and consternation, Morgenthau’s plan was not formally adopted but “…it was never completely disentangled from the procedures of the occupation until 1947.”235 Rather the Morgenthau Plan was upstaged by “[t]he document that became the major statement of

American postwar occupation policy, Joint Chiefs of Staff Directive 1067”236 or in the vernacular, JCS 1067. This directive was a twelve page document that spelled out so much guidance on how to manage the occupation that several readings are necessary to discover all of the powers, responsibilities, and strictures contained in the text. This was the document that

231 Handbook for Military Government in Germany Prior To Defeat or Surrender. Supreme Headquarters Allied Expeditionary Force, Office Of The Chief Of Staff, 1945. 232 Hudson, Walter M. Army Diplomacy: American Military Occupation and Foreign Policy after WWII. Univ. Press of Kentucky, 2015, p. 170. 233 Davidson, Eugene. The Death and Life of Germany: An Account of the American Occupation. Alfred A. Knopf, 1959, p. 6. 234 See, Morgenthau, Henry. Germany Is Our Problem. Harper & Brothers, 1945. 235 Davidson, Eugene. The Death and Life of Germany: An Account of the American Occupation. Alfred A. Knopf, 1959, p. 10-11. 236 Hudson, Walter M. Army Diplomacy: American Military Occupation and Foreign Policy after WWII. Univ. Press of Kentucky, 2015, p. 171.

91 was to serve as a guide for the belligerent occupation of Germany and parts of it are reflected in the Fourth Geneva Convention. Overall this document was quite restrictive, punitive, perhaps authoritarian, and couched as a military directive. Yet, the sheer scope of the directive was helpful in establishing the belligerent occupation and the regulatory system to achieve the goals contained therein. General Clay, the fourth military governor of Germany, wrote that

“…like all general directives, JCS 1067, can be interpreted many ways. My own interpretation is that it requires what is manifestly necessary, a realistic and firm attitude toward Germany.”237

Implementation would take longer and be subject to many judgments and interpretations at varying levels in the field and in the Pentagon. The first efforts at implementation were not effective causing General Clay to later write that “[w]e were creating a situation that was hopeless. We were preventing, not helping the recovery of a country we had defeated, but at the same time paying for its deficits to keep it alive.”238 Perhaps this is why the initial plan for the occupation in the American Sector seemed to call for a high ranking civilian administrator but “[i]t was a job for a military man who could handle all the distress and questions of food and supply….”239 It was developed by the Joint Staff240 in Washington and designed to establish

237 Clay, Lucius D, and Jean Edward Smith. The Papers of Lucius D. Clay,, Indiana University Press. 1974, Letter to John McCloy, 16 June 1945, p. 23-24. 238 Clay, Lucius D. Proconsul of a People, by Another People, for Both People, in Wolfe, Robert, Americans as Proconsuls, Southern Illinois University Press, 1984, p. 107. 239 Hudson, Walter M. Army Diplomacy: American Military Occupation and Foreign Policy after WWII. Univ. Press of Kentucky, 2015, p. 175. 240 U.S. Federal Law at 10 USC 155 entitled “Joint Staff” provides “There is a Joint Staff under the Chairman of the Joint Chiefs of Staff. The Joint Staff assists the Chairman and, subject to the authority, direction, and control of the Chairman, the other members of the Joint Chiefs of Staff in carrying out their responsibilities…Selection of officers of an armed force to serve on the Joint Staff shall be made by the Chairman from a list of officers submitted by the Secretary of the military department having jurisdiction over that armed force. Each officer whose name is submitted shall be among those officers considered to be the most outstanding officers of that armed force…The Joint Staff is composed of all members of the armed forces and civilian employees assigned or detailed to permanent duty in the executive part of the Department of Defense to perform the functions and duties prescribed under subsections (a) and (c).” Author’s note: I served on the Joint Staff.

“… policies relating to Germany in the initial post-defeat period.”241 It granted very broad powers to General Eisenhower and later transferred to General Clay stating

[s]ubject to the provisions of paragraph 3 below, you are,

by virtue of your position, clothed with supreme legislative,

executive, and judicial authority in the areas occupied by

forces under your command. This authority will be broadly

construed and includes authority to take all measures deemed

by you necessary, appropriate or desirable in relation to

military exigencies and the objectives of a firm military

government.242

Directives such as this create vast power producing what has been termed viceroy243 or proconsul244 personages. Due to the immediate post-conflict chaos, destruction, suffering, displacements, and other war carryovers, this approach by the Army was deemed to be appropriate. Furthermore, the State Department was not ready to assume responsibility245 as the Army remained in charge of the American Sector until 1949 when John McCloy, the

241 Directive to Commander-in-Chief of United States Forces of Occupation Regarding the Military Government of Germany; April 1945 (JCS 1067) https://usa.usembassy.de/etexts/ga3-450426.pdf paragraph 1, (Accessed 13 March 2018) 242 Id., at paragraph 2.b 243 See, Reveron, Derek S. America's Viceroys. Palgrave Macmillan, 2006. 244 See, Lord, Carnes. Proconsuls. Cambridge University Press, 2012. 245 Gimbel, John. Governing the American Zone of Germany, in Wolfe, Robert, Americans as Proconsuls. Southern Illinois University Press, 1984, p. 96.

Assistant Secretary of War took over as the first High Commissioner, a civilian position, following five military governors.246

Coupled with these sweeping powers, JCS 1067 was punitive in nature with a “…tone [that] was inevitably moralistic, stern, even harsh”247 spelling out that the Germans need to have brought home to them that they by their ruthless warfare and “…Nazi resistance have destroyed the

German economy and made chaos and suffering inevitable and that the Germans cannot escape responsibility for what they have brought upon themselves.”248 Moreover the occupation “…should be just but firm and aloof. You will strongly discourage fraternization with the German officials and population.”249 This was due to Germany being treated as a defeated enemy country but nevertheless the occupation was not to be oppressive. One of the basic objectives of the military government was to demilitarize Germany to prevent threats to the peace and this was to be achieved by

…the elimination of Nazism and militarism in all their forms,

the immediate apprehension of war criminals for punishment,

the industrial disarmament and demilitarization of Germany,

with continuing control over Germany's capacity to make war,

and the preparation for an eventual reconstruction of German

political life on a democratic basis.250

246 The five US military governors were Generals Eisenhower, Patton (acting), McNarney, Clay, and Lieutenant General Huebner (acting). 247 Taylor, Fred. Exorcising Hitler: The Occupation and Denazification of Germany. Bloomsbury Press, 2011, p. 117. 248 Directive to Commander-in-Chief of United States Forces of Occupation Regarding the Military Government of Germany; April 1945 (JCS 1067) https://usa.usembassy.de/etexts/ga3-450426.pdf (Accessed 13 March 2018), paragraph 4a. 249 Id., paragraph 4b. 250 Id., paragraph 4c.

The crucial topics of economic control, denazification, and demilitarization were addressed in the next three paragraphs of JCS 1067. Denazification included all members of that party

“…who have been more than nominal participants in its activities…”251 being removed from public office and even “quasi-public or private enterprises….”252 In addition to disarming the military and para-military and securing or destroying weapons, JCS 1067 required “…proper steps to destroy the German war potential, as set forth elsewhere in this directive.”253

Suspected war criminals were to be arrested with a list provided of those sought and anyone

“…who, if permitted to remain at large would endanger the accomplishment of your objectives will also be arrested and held in custody until trial by an appropriate semi-judicial body to be established by you.”254 In the American Sector, the military governor was the arresting authority and would have to create the semi-judicial courts, interpreted as military courts, for the trial of those arrested for the sake of security and control. German courts were to be closed for denazification then reopened with the caveat “[t]he power to review and veto decisions of

German courts shall be included within the power of supervision and control.”255 Likewise,

German political activities were not permitted unless authorized by the military governor256 and the press was regulated.257 However,

[t]o the extent that military interests are not prejudiced and

subject to the provisions of the three preceding subparagraphs

and of paragraph 10, freedom of speech, press and religious

251 Id., paragraph 6c. 252 Id. 253 Id., paragraph 7d. 254 Id., paragraph 8b. 255 Id., paragraph 11b. 256 Id., paragraph 9a. 257 Id., paragraph 10.

worship will be permitted. Consistent with military necessity,

all religious institutions will be respected.258

Police, except those in the criminal division (Reichskriminalpolizei), were to be abolished with those criminal divisions and ordinary police placed under military control and supervision once denazification had occurred.259

Nazi schools were permanently closed260 and all other schools could reopen again once the

Nazis were removed and all Nazi and militaristic materials eliminated from the textbooks and school resources.261 In the American Sector, the American lawyers in consultation with German colleagues drafted the Law for the Liberation from National Socialism and Militarism262 passed by the German Landerrat (Council of Ländern or State) that established a Minister for

Denazification with “…545 denazification tribunals (Spruchkammern)… [that]…could classify their subjects as major offenders, offenders, lesser offenders, fellow travelers, or as exonerated of all involvement.”263 Under the new law the German population was required to fill out a form called Meldebogen (Report Sheet) that asked many questions about their past as Nazis. All

Meldebogen were reviewed by these tribunals to make a determination about the suitability of the respondents for jobs and possible criminal charges as noted above. The tribunals were operated by over 22,000 supposedly vetted Germans under Military Government oversight and

258 Id., paragraph 9d. 259 Id., paragraph 12. 260 Id., paragraph 14a. 261 Id., paragraph 14c. 262 Implementation of the Law for Liberation from National Socialism and Militarism. [Office of Military Government for Germany (U.S.), Manpower Division, APO 742, Reports and Statistics], 1946. 263 Taylor, Fred. Exorcising Hitler: The Occupation and Denazification of Germany. Bloomsbury Press, 2011, p. 280- 281.

96 adjudicated 583,985 cases in the first five months of operation with less than ten percent (10%) going top public hearings.264 About one third of the ex-Nazis fired from their jobs by the

Americans were eventually re-employed by 1947.265 “The fact was, had this not been the case, the public and private infrastructure of the [American] zone would have been faced with crippling difficulties, and possible total collapse.”266 Simply stated, the previous and now vanquished regime ran things like industry, public services, and most aspects of daily life. If all of these folks were purged, the possibility of suffering and chaos will prevail during the belligerent occupation. Much of this American belligerent occupation experience under JCS

1067 and the handbook appears in the Fourth Geneva Convention attesting to the recognition of the implementation achievement although in an idealized form.

Furthermore, any institution deemed necessary for the occupation could be reopened under the authority of the military governor.267 Further, the requisition of supplies were only be available “…to prevent starvation or widespread disease or such civil unrest as would endanger the occupying forces.”268 The Germans were to provide for themselves out of their work and resources with any excess going to “…the occupying forces and displaced persons and United

Nations prisoners of war, and for reparation.”269 These were harsh remedies for the Germans regarding their political rights and the execution of these strictures was rigorously enforced by the military governor especially during the initial phase of belligerent occupation.

264 Biddiscombe, Alexander Perry. The Denazification of Germany: A History 1945-1950. Tempus, 2007, p. 73. 265 Id., p. 81, See Figures. 266 Taylor, Fred. Exorcising Hitler: The Occupation and Denazification of Germany. Bloomsbury Press, 2011, p. 293. 267 Directive to Commander-in-Chief of United States Forces of Occupation Regarding the Military Government of Germany; April 1945 (JCS 1067) https://usa.usembassy.de/etexts/ga3-450426.pdf (Accessed 13 March 2018), paragraph 14c. 268 Id., paragraph 21. 269 Id.

Equally severe was the economic governance of the vanquished Germans under JCS 1067 the first of these economic remedies being the industrial disarmament. Other than such industrial disarmament, the military governor was to “…take no steps (a) looking toward the economic rehabilitation of Germany, or (b) designed to maintain or strengthen the German economy.”270

Industrial disarmament was to be carried out by Germans subject to US authorities who were given the power to punish them for any noncompliance.271 Not only was the German economy to be disarmed industrially but also decentralized with efforts to “…take the action required to maintain or restore essential public utilities and industrial and agricultural activities is taken as far as possible on a local and regional basis.”272 This decentralizing effort had the effect of turning the sectors into self-sustaining mini-States such that an abundance of a good in one area may exist next door to need in another although this was to be avoided if possible under the Control Council. There was also a list of items that the Control Council of the four powers was to prohibit from manufacture273 as all research was halted except for that regarding public health.274 Research would be able to resume under tight American regulatory control following careful review of that research with the proviso that no research could contribute to a future war potential.275 Further consideration of the industrial disarmament would only reinforce the severity of the orders found in JCS 1067. The Germans were to be punished in defeat by these political, military, and economic restrictions that were coercive to eventually be rehabilitated so that sovereignty could be returned.

270 Id., paragraph 16. 271 Id., paragraph 17. 272 Id., paragraph 18a. 273 Id., paragraphs 30 and 32. 274 Id., paragraph 31a. 275 Id., paragraph 31c.

Agriculture under JCS 1067 as under the Morgenthau plan was to be maximized to include the use of large landed estates and public lands for cultivation.276 Germans would need to produce their own foodstuffs to minimize the importation of food other than to prevent starvation, disease, or unrest. The military governor was instructed, there was to be “…no action that would tend to support basic living standards in Germany on a higher level than that existing in any one of the neighboring United Nations…”277 with any excess being transferred first to other

Allied Sectors then to these other United Nations countries.

The study of the planning for the occupation of Japan is less well developed than that for

Germany278 and this may be due to the “Germany first” mindset dominating Anglo-American war planners during the war.279 The Pacific planners could and did borrow from their colleagues planning for the European theater.280 However, a special research division staffed by area experts was formed in the State Department before the Second World War to consider the relationship with Japan including an effort to “…shape the postwar settlement … [with

276 Id., paragraphs 27 and 28. 277 Id., paragraph 21. 278 Mayo, Marlene J. American Wartime Planning for Occupied Japan: The Role of Experts. footnote 2, p.447 in Wolfe, Robert, Americans as Proconsuls, Southern Illinois University Press, 1984. She opines in that footnote “No complete study of policy making for the occupation of Japan has yet been published.” 279 Morton, Louis, "Germany First", Chapter 1, p. 24. History.Army.Mil, 2012, https://history.army.mil/books/707_01.htm (Accessed 23 Mar 2018). Based on pre-war planning in 1939, the US Joint Board developed a war plan called RAINBOW 5. This war plan “…assumed the United States, Great Britain, and France to be acting in concert; hemisphere defense was to be assured as in RAINBOW 1, with early projection of U.S. forces to the eastern Atlantic, and to either or both the African and European Continents; offensive operations were to be conducted, in concert with British and allied forces, to effect the defeat of Germany and Italy. A strategic defensive was to be maintained in the Pacific until success against the European Axis Powers permitted transfer of major forces to the Pacific for an offensive against Japan.” This entry is based upon Dr. Morton’s 11 volume series. 280 There was some borrowing from the European Theater during the occupation as evidenced by the police function whereby “…a native Japanese police force under American supervision and backed by U.S. tactical unit would take over practically the entire responsibility for security and order in the country.” This preserved US assets and personnel. Ziemke, Earl F. The U.S. Army in the Occupation of Germany, 1944-1946. Center Of Military History, United States Army, 1975, p. 339.

99 occasional meetings] with their counterparts in the War Department in the Civil Affairs

Division… But the planners remained marginal to the policy process.”281 These planners in the

State Department “…commenced basic studies looking forward to the preparation of policy papers on the occupation of Japan.”282 Addressing the Presidential Policy Statement on Japan to the Supreme Commander for the Allied Powers (SCAP), General MacArthur was instructed that

1. The ultimate objectives of the United States in regards to Japan,

to which policies in the initial period must conform, are:

a. [t]o insure that Japan will not again become a menace

to the United States or to the peace and security of the

world… These objectives will be achieved by the following

principal means…

2 b. Japan will be completely disarmed and demilitarized …

Disarmament and demilitarization are the primary tasks of

the military occupation and shall be carried out promptly

and with determination…The existing economic basis of

Japanese military strength must be destroyed and not

permitted to revive.283

The objectives of this document are quite clear, the implementation would need to be established by military order sent to the field then seemingly just await execution of the plan.

281 Schaller, Michael. The American Occupation of Japan. Oxford University Press, 1987, p. 6. See also, Martin, Edwin M. The Allied Occupation of Japan. American Institute of Pacific Relations, 1948, p. 5. 282 Martin, Edwin M. The Allied Occupation of Japan. American Institute of Pacific Relations, 1948, p. 5. 283 White House, STATEMENT OF U. S. POLICY RELATING TO JAPAN, PREPARED JOINTLY BY STATE, WAR AND NAVY DEPARTMENTS September 6, 1945 (Accessed 28 Mar 2018).

100

Nothing in war or occupation is ever easy. This axiom would prove true in Japan as well as the other former Axis Powers, including Italy and Austria that were occupied after the Second

World War

As in Germany, war criminals were to meet “[s]tern justice …including those who visited cruelties upon prisoners of war …”284 by arrest, trial and, if convicted, punishment. High officials were similarly addressed including the “Japanese Imperial General Headquarters and

General Staff, other high military and naval officials of the Japanese Government… will be taken into custody and held for future disposition.”285 The dragnet was wide and encompassing but not reaching to the top, as the Emperor and Japanese Government were placed under the

Supreme Commander who had all powers.286 Due to this, “[t]he Supreme Commander is not committed to support the Emperor or any other Japanese governmental authority.”287

However, the imperial household was “….not exempt from any action necessary to carry out the objectives of the occupation.”288 Paragraph 3 of the policy entitled “[e]ncouragement of

Desire for Individual Liberties and Democratic processes” foreshadows the implementation of the freedom of religion, non-discrimination, democratic political parties, and civil rights.289

While there was to be an economic demilitarization this was to be accompanied by the encouragement of labor unions and agricultural organizations. Occupation forces were to be provided with goods and services by Japan, the only caveat being “without causing starvation,

284 Id., Part III, POLITICAL, paragraph 2, War Criminals. 285 Id., Paragraph 1, Disarmament and Demilitarization. 286 Id., Part II Allied Authority, Paragraph 2 Relationship to Japanese Government. 287 Id. 288 Id., Part IV Economic, Paragraph 9. 289 Id., Paragraph 3, Encouragement of Desire for Individual Liberties and Democratic Processes. See also, Ikenberry, G. John. After Victory: Institutions, Strategic Restraint, And The Rebuilding Of Order After Major Wars. Princeton University Press, 2001, p. 172-173.

101 widespread disease and acute physical distress.”290 Reparations and restitution were similarly addressed along with fiscal policies, international trade and equal opportunity for foreign companies within Japan. Economic issues were spelled out since

[t]he most basic conviction behind American thinking about

postwar order in the West was that the close autarkic regions

that had contributed to world depression and split the world

into competing blocs before the war must be broken up and

replaced by an open and nondiscriminatory world economic system.291

While quite similar to the German occupation policy the idiosyncrasies of Japan were taken into account in this policy document and the near absolute power of the Supreme Commander in

Japan was solidified.

Spending time on the interwar development and immediate pre-implementation phase of occupation clearly shows the myriad problems with the development of a suitable occupation strategy and implementation plan for that strategy. Even with this enormous effort of many talented folks there were countless and varied concerns in the development of this occupation plan. As we have observed an occupation plan is not something that can be generated on the spur of the moment but takes extensive, multiple agency planning over considerable time.

Comprehending the development leading up to the American occupations we now turn to the actual occupations replete with the attendant issues.

290 Id., Part IV ECONOMIC, Paragraph 3 Resumption of Peaceful Economic Activity. 291 Ikenberry, G. John. After Victory: Institutions, Strategic Restraint, And The Rebuilding Of Order After Major Wars. Princeton University Press, 2001, p. 172-173.

102

2.2 US occupation in Germany under the Four Powers Arrangement.292

Germany was one of several defeated belligerent countries occupied by the US and its allies but it was the main global enemy. US forces began occupying parts of Germany when the city of

Aachen fell on 21 October 1944. General Eisenhower wrote “[o]ur first military government experience in Germany was gained at Aachen before crossing the Rhine. This showed us the kind of problems we were apt to meet later on when the occupation had extended deep into

Germany.”293 All of western Germany was occupied from May 1945 until 5 May 1955, although the Federal Republic of Germany was established on 23 May 1949.294 The focus on the American sector of the Allied occupation controls the variable in our comparison with the later American belligerent occupations in Japan and Iraq.

Occupation in Germany was developed under a military model; that is, with a military governor in charge of the sector, although later civilian commissioners were appointed to replace the military governors. The military had planned for this occupation for nearly three years programing a “…military government, with uniformed officials serving as commanders, high commissioners, and governors of occupied areas.”295 The US Army was the both the executive

292 “After Germany's defeat in the Second World War, the four main allies in Europe - the United States, Great Britain, the Soviet Union, and France - took part in a joint occupation of the German state. With the original understanding that the country would eventually be reunified, the Allied Powers agreed to share the responsibility of administering Germany and its capital, Berlin, and each took responsibility for a certain portion of the defeated nation.” "Allied Occupation of Germany, 1945-52". 2001-2009.State.Gov, 2019, https://2001- 2009.state.gov/r/pa/ho/time/cwr/107189.htm (Accessed 18 Mar 2019). 293 Eisenhower, Dwight D. Crusade in Europe. Doubleday & Company, 1948, p. 434. 294 Wetterau, Bruce. Macmillan Concise Dictionary of World History. Collier Books, 1986, p. 306. 295 Hudson, Walter M. Army Diplomacy: American Military Occupation and Foreign Policy after WWII. Univ. Press of Kentucky, 2015, p. 7.

103 agency for the State Department developed policy based on President Truman’s decision of 16

July 1945296 as well as the army of occupation.

What did that mean on the ground where the likely first contact with the vanquished military and civilians was likely to occur? The punitive aspect of this occupation included not talking to the occupied other than to issue orders and a strong non-fraternization policy had been in effect for eight months prior to V-E Day.297 The absurdity of this situation became rapidly apparent so this changed with American troops being able to fraternize and talk to German children beginning in June, 1945298 and adults by July of that year. A more inauspicious start to the occupation would be difficult to imagine in what Edelstein would label a coercive environment defined as “…the use or threatened use of military force to defeat any elements of the population that resist or threaten to resist an occupation.”299

Germany was devastated in that the ruin of buildings was obvious, the people were hungry, and there was no government above the local level. A summation of the situation in Germany at the beginning of the occupation is illustrative of the challenges faced by the Allies “[p]erhaps never before in modern history have victorious invaders been faced with such a problem as confronted the Allies in Germany. War always must be expected to produce confusion and some breakdown, but a complete disintegration in a major nation seems to be something new

296 Although agreed on this date there was no formal record so a formal ratification was obtained on 30 August 1945. Byrnes to Truman, 30 August 1945, Foreign Relations of the United States, 1945, vol. 3, p. 958. 297 Ziemke, Earl F. The U.S. Army in the Occupation of Germany, 1944-1946. Center Of Military History, United States Army, 1975,Chapt XVIII, The Occupation Troops, p. 321-327. 298 Cable, Eisenhower, Personal, to General Marshall, for eyes only, 2 Jun 45, and Cable, Marshall to Eisenhower, eyes only, 4 Jun 45, in SHAEF G-1, 250.1-6, https://history.army.mil/books/wwii/Occ-GY/en/en18.11.htm (Accessed 12 March 2018). 299 Edelstein, David M. Occupational Hazards: Success and Failure in Military Occupation. Cornell University Press, 2008, p. 53.

104 under the sun.”300 Despite three years of preparation the actual belligerent occupation situation was enormous and very complicated as the Allied Control Council, made up of the four occupying powers, had to contend with the four sectors that were to be managed as one, the apprehension of war criminals, the disarmament and disbandment of the German military and paramilitary forces, disarming and controlling the German police, the reparation demands of the Soviets and the French, the returning German refugees, the Displaced Persons (DPs), the control of transportation and communications, the railroad failures, the rubble, and many more essential support issues more common to national and regional governments.301 General Clay appointed a “German Standard of Living Board” dealing with reparations and German re- industrialization while seeking Germans to work in “…finance, transport, communications foreign trade and agriculture…”302 to address some of these critical problems in the American sector. However, “[t]hese great expectations had to take second place to the most difficult problem, that of simply keeping the Germans alive.”303

Interestingly, the former German military police were placed in charge of their comrades in US

Prisoner of War camps, and they did not surrender their arms until 1946. Food was rationed until 1947, but there was general scarcity despite good efforts to improve the supplies. The re- supply of Berlin during the Berlin Airlift from 1948-1949 impressed the German people and likely contributed to a change of heart about the occupation. As bleak as this occupation may

300 Zink, Howard. American Military Government in Germany. Macmillan, 1947, p. 89. 301 For an extensive list of occupation tasks See, Frederiksen, Oliver J. The American Military Occupation of Germany, 1945-1953. Historical Division, Headquarters, United States Army, Europe, 1953, p. 2-4. See also FM 27-5 (1943). 302 Gimbel, John. Governing the American Zone of Germany, p. 93, in Wolfe, Robert, Americans as Proconsuls: United States Military Government in Germany and Japan, 1944-1952. Southern Illinois University Press, 1984. 303 Peterson, Edward N. The American Occupation of Germany: Retreat to Victory. Wayne State University Press, 1978, p. 114

105 appear, perhaps as many as one million people left the Soviet sector for the American sector until that border was closed in 1948.304 The statutes for the American occupation zone were published, but these were gradually lessened until 1950 with West Germany being granted almost complete sovereignty in 1952. In general, the American occupation sector in Germany was operated in accordance with the draft and then the latter ratified Geneva IV. This Fourth

Convention protects civilians who do not participate in the fighting as “…it spells out the obligations of the Occupying Power vis-à-vis the civilian population and contains detailed provisions on humanitarian relief for populations in occupied territory.”305

2.3 Japan under exclusive US occupation.

The attack by Japanese carrier –based aircraft on Pearl Harbor Naval Station and the air fields at

Hickam, Wheeler, and Bellows Air Force Bases and Ewa Marine Corps Air Station in Hawaii launched the Americans into the Pacific theater of the Second World War. It “…ended with the most deadly air raids in history by the Americans”306 referring to Hiroshima and Nagasaki. On 2

September 1945, General Douglas MacArthur …stood before an old mess table aboard the battleship Missouri at anchor in Tokyo Bay …he accepted the formal surrender of the Japanese

304 See, Steil, Benn. The Marshall Plan: Dawn Of The Cold War. Simon & Schuster, 2018, p. 303; Stargardt, Nicholas. The German War: A Nation Under Arms 1939-1945. Basic Books, 2015, p. 549-551. The actual numbers of emigres to West Germany was difficult to ascertain as there were no actual borders. Some authors indicate that Germans left East Germany at a rate of “[o]ver 2,000,000 … from the East (Soviet) zone up to 1954.” Davidson, Eugene. The Death And Life Of Germany: An Account Of The American Occupation. Alfred A. Knoff, 1959, p. 324.The building of the Berlin Wall finally stopped the population hemorrhaging from East Germany to the west. Taylor, Fred. Exorcising Hitler: The Occupation And Denazification Of Germany. Bloomsbury Press, 2011, p. 378. 305 "The Geneva Conventions of August 12 1949" International Committee of the Red Cross, 2015, https://www.icrc.org/ (Accessed 10 Mar 2018). 306 Spector, Ronald H. Eagle against the Sun: The American War with Japan. New York, Vintage Books a Division of Random House, 1985, p. xi.

106 government representatives.”307 The Second World War was concluded and “[t]he American- led military occupation of Japan began within one month of Japan’s unconditional surrender on

August 15, 1945, and ended in 1952.”308 We now consider the relevant issues in that nearly seven year occupation.

This would be a very different belligerent occupation than the one unfolding in Germany. This was “[b]ecause the victors had no linguistic or cultural entrée to the loser’s society, they had little choice but to govern ‘indirectly,’ through existing organs of government.”309 Unlike the war in Europe, the United States did not permit Nisei (Japanese-Americans) troops to fight against the Japanese so these forces were deployed to the European theater.310 For example, this official fact sheet from HEADQUARTERS 92D INFANTRY DIVISION provided

The 442d Combat Team was activated in February 1943. The

enlisted personnel was composed entirely of Americans of

Japanese ancestry. Having been born in the United States, all

of the men are citizens of the United States. Very few of them

have ever been to Japan and most of them cannot speak

Japanese. They are as thoroughly loyal as German Americans,

Italian Americans, or any other American of foreign ancestry.

307 Id., p. 559. 308 Shunzo, Majima, Just Military Occupation? A Case Study of the American Occupation of Japan in Jus post bellum and Transitional Justice, eds. Larry May and Elizabeth Edenberg, New York, NY: Cambridge University Press, 2013, p. 29. 309 Dower, John W. Embracing Defeat: Japan in the Wake of World War II. W.W. Norton, 2000, p. 27. 310 Asian Pacific Americans in the U.S. Army, Army.Mil, 2018, https://www.army.mil/asianpacificamericans/history/ (Accessed 12 Mar 2018). See also, Ellis, John. Cassino: The Hollow Victory. McGraw-Hill, 1984, p. 128. The Allied Translator and Interpreter Section (ATIS) did rely heavily upon Japanese-Americans in the Pacific Theater. See, Mashbir, Sidney F. I was an American Spy. New York Vantage Press 1953, p. 242-244. Brief History of the G-2 Section, GHQ, SWPA http://cgsc.contentdm.oclc.org/cdm/ref/collection/p4013coll8/id/1001, p. 63-65. (Accessed 18 March 2018).

107

A category, of course, into which all of us fall.311

Unsurprisingly, “…Americans with Japanese language competence, whether spoken or written, were in fact only a handful when Pearl Harbor was attacked.”312 Thus without understanding of the language or the culture the American occupation of Japan began. Due to these deficiencies, the Americans under “…General MacArthur’s supergovernment relied on the Japanese bureaucracy to carry out its directive….”313 Such was not the occupation situation in Germany as there were many German speakers, “[t]hese were either German Americans from the Mid-

West or German or Austrian Jews- often recent arrivals in the States-Czechs, Poles, and other educated Slavs…or soldiers who had simply acquired the language.”314

As this occupation began, it too was essentially punitive as it had been in Germany some four months earlier. “Initially, the Americans imposed a root-and-branch agenda of demilitarization and democratization that was in every sense a remarkable display of arrogant idealism – both self-righteous and genuinely visionary.”315 Despite the two international advisory boards for

Japan, “[f]rom start to finish, the United States alone determined basic policy and exercised decisive command over all aspects of the occupation.”316 Any doubt as to this conclusion could be resolved by looking to “…MacArthur’s singular command over the occupation—indeed, his very title of Supreme Commander—epitomized the American monopoly on policy and

311 442Nd Regimental Combat Team Facts, dated 4 April 1945. The442.Org, 2018, http://the442.org/442ndfacts.html. (Accessed 12 Mar 2018). 312 Mayo, Marlene J. American Wartime Planning for Occupied Japan: The Role of Experts, p. 5, in Wolfe, Robert, Americans as Proconsuls. Southern Illinois University Press, 1984. 313 Dower, John W. Embracing Defeat: Japan in the Wake of World War II. W.W. Norton, 2000, p. 27. 314 MacDonogh, Giles. After the Reich: The Brutal History of the Allied Occupation. Basic Books, 2007, p. 230. 315 Dower, John W. Embracing Defeat: Japan in the Wake of World War II. W.W. Norton, 2000, p. 23. 316 Id., p. 174.

108 power.”317 Yet this governance by the US would not be direct as it was in German but rather indirect via the existing Japanese government.318 Other differences with the occupation of

Germany begin to emerge since there was a functioning Japanese government, “…the Japanese interpreted, enacted, and reported on the progress of reforms without intensive scrutiny.”319

American forces were successful by an indirect occupation in Japan. The next major US led occupation occurred in Iraq.

2.4 The Iraq occupation by the US and the United Kingdom under the United

Nations.

Half a decade before the brief war with Iraq, the US position on Iraq was outlined in the 1998

Iraq Liberation Bill that specified in Section 3 entitled “SENSE OF THE CONGRESS REGARDING

UNITED STATES POLICY TOWARD IRAQ. It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.”320

The occupation of Iraq began almost immediately on 20 March 2003 as Coalition Forces entered Iraq in a dashing air-ground advance called a “Thunder Run”321 up the Euphrates River basin. The Operations Plan (OPlan) was called COBRA II and was a complete OPlan from ramp up to redeployment but with bare minimal belligerent occupation planning. The fall of Baghdad

317 Id. 318 Id., p. 212. 319 Schaller, Michael. The American Occupation of Japan: The Origins of the Cold War in Asia. Oxford University Press, 1985, p. 28. 320 112 STAT. 3178 PUBLIC LAW 105–338—OCT. 31, 1998. 321 Author’s Note. A “Thunder Run” is a unit of armor [tanks] and mechanized infantry [Bradley Fighting Vehicles] moving at high speed through a built up area like a city. “The purpose was to either catch the enemy off guard or overwhelm him with force.” Franks, Tommy R. American Soldier. Regan Books, 2014, p. 517.

109 on 10 April was a symbolic victory as Coalition Forces continued on north at a rather fast pace.

Yet, after the fall of Baghdad, “…the requirements were reversed: mass, not speed, was requisite for sealing the victory.”322 The Coalition forces now needed more troops to maintain the peace and provide security across a vast country with porous borders with both internal and external miscreants interested in impacting the internal affairs of the new Iraq.

Major combat operations ended on 1 May 2003 but there were still significant insurgent attacks on a regular and deadly basis hindering the establishment of an occupation. Although Coalition

Forces were welcomed at first as liberators in Baghdad that feeling did not last long as the summer heat and the complete breakdown of public services323 due to looting and guerrilla warfare took a toll on the Iraqi population. This was further complicated by the halt placed on the deployment of additional US Forces,324 the thin line of forces available to protect the civilian population from violence,325 and the incomplete planning for the occupation writ large.326 The entire post-conflict planning was dismal as Secretary of Defense Rumsfeld wrote

[n]o template exists for the kind of postwar planning

that proved necessary in Afghanistan, Iraq, and for

322 Trainor, Bernard E, and Michael R. Gordon. Cobra II: The Inside Story Of the Invasion and Occupation of Iraq. 2nd ed. Vintage Books, 2013, p. 574. 323 Adnan, Ghassan, and Isabel Coles. "Baghdad Blast Walls Come Down" The Wall Street Journal, 11 December 2018, p. A7.This article regards the opening of the Green Zone as violence is down but the population still does not have public services. The article quoted Baghdad resident Ali Khalil saying “Instead of opening the Green Zone, the government should first improve services like electricity, water, and health care.” The Iraqi population is focusing on other concerns especially quality of life issues due to the improved security. 324 Rumsfeld, Donald. Known And Unknown: A Memoir. Sentinel. 2011, p. 664. See also, Franks, Tommy R. American Soldier. Regan Books, 2014, p. 531; Trainor, Bernard E, and Michael R Gordon. Cobra II: The Inside Story Of the Invasion and Occupation of Iraq. 2nd ed. Vintage Books, 2013, p. 527-529. 325 Trainor, Bernard E, and Michael R. Gordon. Cobra II: The Inside Story Of the Invasion and Occupation of Iraq. 2nd ed., Vintage Books, 2013, p. 537-538. 326 Id., p. 161-164; Franks, Tommy R. American Soldier. Regan Books, 2014, p. 419-425 and 523-530; Rumsfeld, Donald. Known And Unknown: A Memoir. Sentinel, 2011, p. 479-492.

110

that matter in Kosovo, Bosnia, and elsewhere. There

was no single office that could take charge of military

civilian elements of postwar reconstruction. That

left the Department of Defense, with its expertise in

war-oriented planning—but not in postwar

reconstruction—as the only practical option.327

Such a paucity of detailed planning showed up almost immediately as looting had broken out and the streets were rife with crime and vengeances. US plans had been for the Iraqi police to remain in place and to revitalize the Iraqi Army328 but both of these forces disappeared as quickly as Saddam Hussein. Reportedly there was no Plan B or contingency backup plan if this first plan disintegrated.329 Yet there was some contact with the former Iraqi Army and several

US Government contracts were made to assemble some nucleus of an Army or at least provide reconstruction labor but these talks failed.330

The garrisoning of US Forces on to large bases left a security gap but this garrisoning was purportedly to place an Iraqi face on the effort to secure their country but Iraqi Army and Police

Forces disappeared. A further predicament created by stationing of US Forces on large bases left a security vacuum filled by the insurgents made up of separately of Sunni and Shi’a fighters.

327 Rumsfeld, Donald. Known And Unknown: A Memoir. Sentinel, 2011, p. 487. 328 Trainor, Bernard E, and Michael R. Gordon. Cobra II: The Inside Story Of the Invasion and Occupation of Iraq. 2nd ed., Vintage Books, 2013, p. 550-551. 329 Gordon, Michael R. "Army's Iraq Lessons: Written, Withheld" Wall Street Journal, 2018, pp. A1 and A8. According to this article, a study conducted, as is now standard operating procedure, and written by the US Army so it would not have to spend the first two years of the next war trying to relearn the lesson of the previous war. It has faced multiple assaults within the Army. The study has been classified, has not been published, and according to Army Public Affairs (4 December 2018) will not be available to scholars any time soon. 330 Trainor, Bernard E, and Michael R. Gordon. Cobra II: The Inside Story Of the Invasion and Occupation of Iraq. 2nd ed., Vintage Books, 2013, p. 557-560.

111

This resulted in a three way battle, especially in and around Baghdad, as the Coalition faced insurgencies from both Sunni and Shi’a fighters as these fighters also battled each other. Crime and vengeance fueled by these three way fights were rampant as the occupation attempted to gain a toehold. The looting of major institutions and government offices abated but there continued a constant lower level looting that undermined the occupation. An example should be illustrative, it was reported that “…as new electrical lines were strung, they were quickly brought down by thieves who stole from them the copper wiring later sold in Turkey.”331 The situation was chaotic and best summed up by the commander of V Corp, Lieutenant General

William Wallace

[t]he military did their job in three weeks. I give no credit

to the politicians for detailed Phase Four planning. But I

don’t think that we, the military, did a very good job of

anticipating [that] either. I don’t think that any of us either

could have or did anticipate the total collapse of this regime

and the psychological impact it had on the entire nation.

When we arrived in Baghdad, everybody had gone home.

The regime officials were gone; the folks that provided

security of the ministry buildings had gone; the folks that

operated the water treatment plants and the electricity grid

and the water purification plants were gone. There were no

bus drivers, no taxi drivers; everybody just went home. I for

one did not anticipate our presence being such a traumatic

331 Hunter-Chester, David. "The Particular Circumstances Of Time And Place Why The Occupation Of Japan Succeeded And The Occupation Of Iraq Failed" Military Review, May-June, 2016, p. 48. Http://Eds.B.Ebscohost.Com.Proxy.Libraries.Uc.Edu/Eds/Pdfviewer/Pdfviewer?Vid=4&Sid=30649A41-31Eb- 49949942-974C309ed1b1%40Sessionmgr120, (Accessed 4 Dec 2018).

112

influence on the entire population. We expected there to be

some degree of infrastructure left in the city, in terms of

intellectual infrastructure, in terms of running the city

infrastructure, in terms of running the government

infrastructure. But what in fact happened, which was

unanticipated at least in [my mind], is that when [we]

decapitated the regime, everything below it fell apart.332

This was a summation of the situation in Iraq when the occupation began. American and British forces, the primary combatants although many other nations participated in the fighting, were focused on completing the military victory and not on the coming occupation. The occupation forces were listed in Phase IV333 but those forces “…would require civilian leadership. In addition to boots on the ground, we would need wingtips on the ground—hundreds, perhaps thousands, of civilians from America and the international community, from government advisors to eager investors.”334 Other intra-governmental teams were developing plans for post-conflict Iraq including the Future of Iraq Project335 undertaken by the State Department

332 Interview with General William Scott Wallace for Frontline: The Invasion of Iraq. As of August 2007: http://www.pbs.org/wgbh/pages/frontline/shows/invasion/interviews/wallace.html 333 See, Cowden, Captain, USN, Anthony. "Forgetting Phase IV All over Again in Iraq" The National Interest, 2016, https://nationalinterest.org/blog/the-skeptics/forgetting-phase-iv-all-over-again-iraq-16225 (Accessed 14 Mar 2019). “U.S. military joint doctrine divides conflict into six phases: (0) Shape, (I) Deter, (II) Seize the Initiative, (III) Dominate, (IV) Stabilize, and (V) Enable Civil Authority. Phases are linear … and have distinct transition points and criteria…Phase IV (Stabilize) ‘is required when there is no fully functional, legitimate civil governing authority present’, and Phase V (Enable Civil Authority) ‘is predominantly characterized by joint force support to legitimate civil governance in theater. The goal is for the joint force to enable the viability of the civil authority and its provision of essential services to the largest number of people in the region.’ It is Phases IV and V that the United States has recently had more difficulty with, both as a military and as a nation.” 334 Franks, Tommy R. American Soldier. Regan Books, 2014, p. 422; See also, Rumsfeld, Donald. Known And Unknown: A Memoir. Sentinel, 2011, p. 486. 335 Department of State. “Future of Iraq Project” Department Of State, Washington, D.C., 2002. See website https://nsarchive2.gwu.edu//NSAEBB/NSAEBB198/FOI%20Economy%20and%20Infrastructure.pdf

113 but these tended to outline broad concepts and “…did not constitute postwar planning in any sense of the word.”336

An effort at post-conflict planning for Phase IV was further thwarted by the replacement of retired General Jay Garner with Paul Bremer. Mr. Garner was selected to be the lead civilian under the Combatant Commander, General Franks, but was Secretary of Defense Rumsfeld’s man in Iraq. Garner was no stranger to Iraq having averted a humanitarian disaster among the

Kurds in northern Iraq after Desert Storm.337 Garner was a hero to many in Iraq especially those in the northern third of that state so his replacement was seen as an “outsider.”

One author indicates that “Bremer was inspired by the US occupations after WWII of Germany and Japan and is reported to have followed the German example in definitely dismantling whatever was left of the Iraqi bureaucracy, military, and police by ordering a purge of all members of Saddam Hussein’s Ba’ath Party.”338 Bremer did order these purges with Coalition

Provisional Authority Order Number 1. Unlike the effort in Germany to denazify and vet the post-conflict officials there was a limited plan to do the same in Iraq. However, there was no

Meldebogen (Nazi Question form) or Spruchkammer (denazification Tribunal)339 equivalent in

Iraq but rather investigations for possible criminal action or those who presented a security after removal from office.340 These were rather broad articles to capture as many of the

336 Rumsfeld, Donald. Known And Unknown: A Memoir. Sentinel, 2011, p. 486. 337 See, Rumsfeld, Donald. Known And Unknown: A Memoir, Sentinel, 2011, p. 488; Franks, Tommy R. American Soldier. Regan Books, 2014, 422-423. 338 Lammers, Cornelis J. "The American Occupation Regime In Comparative Perspective" Armed Forces & Society, vol. 40, no. 1, 2012, p. 60, SAGE Publications, doi:10.1177/0095327x12437691. (Accessed 4 Dec 2018). See also, Diamond, Larry Jay. Squandered Victory. Times Books, 2005. 339 See, Footnote 65. 340 "COALITON PROVISIONAL AUTHORITY ORDER NUMBER 1 DE-BA`ATHIFICATION OF IRAQI SOCIETY" Nsarchive2.Gwu.Edu, 2018,

114

Ba’athists341 as possible. However due to the specifics “[a]ll told, there were some twenty-five thousand people who could lose their jobs.”342 This led to two problematic outcomes: the first was the loss of people who had “run things” in Iraq for over three decades and the second was the embitterment of the minority Sunni population. If truly borrowing from the occupation of

Germany the chief members of the defeated Saddam Hussein regime would have been publically tried as at Nuremburg for war crimes and genocide and “[o]nce the verdicts were handed down and the …sentences carried out, the line had been drawn: those most guilty punished and the Germans and the world could move on. This kind of accounting is what Iraq desperately needed.”343 The broad de-Ba’athification undertaken in Iraq punished all of the party unlike what transpired in Germany and this broad punishment likely contributed to the prolonged insurgencies. Compounding this policy was the choice of Ahmad Chalabi to lead the

Iraqi de-Ba’athification committee and the process “…gained a reputation for score settling”344

https://nsarchive2.gwu.edu/NSAEBB/NSAEBB418/docs/9a%20%20Coalition%20Provisional%20Authority%20Order %20No%201%20-%205-16-03.pdf (Accessed 9 Dec 2018). CAP Order Number 1, sections 2 and 3 provide: Full members of the Baàth Party holding the ranks of ‘Udw Qutriyya (Regional Command Member), ‘Udw Far’ (Branch Member). ‘Udw Shu’bah (Section Member), and ‘Udw Firqah (Group Member) (together, “Senior Party Members”) are hereby removed from their positions and banned from future employment in the public sector. These Senior Party Members shall be evaluated for criminal conduct or threat to the security of the Coalition. Those suspected of criminal conduct shall be investigated and, if deemed a threat to security or a flight risk, detained or placed under house arrest. 3) Individuals holding positions in the top three layers of management in every national government ministry, affiliated corporations and other government institutions (e.g., universities and hospitals) shall be interviewed for possible affiliation with the Baàth Party, and subject to investigation for criminal conduct and risk to security. Any such persons detained to be full members of the Baàth Party shall be removed from their employment. This includes those and risk to security. Any such persons determined to be full members of the Baath Party shall be removed from their employment. This includes those holding the more junior ranks of ‘Udw’ (Member) and ‘Udw ‘Amil (Active Member), as well as those determined to be Senior Party Members. 341 Ba’athist were members of the Ba’ath (renaissance in Arabic) Party who ruled Iraq from 1963 to 2003. Perhaps 10% of the Iraqi population was members supported by the Iraqi Republican Guard and the Fedyeen-Saddam, the diehard militaries. Many of these militaries formed the main adversaries in Operation Cobra II (2003) and the guerilla war and insurgency. See, Trainor, Bernard E, and Michael R. Gordon. Cobra II: The Inside Story Of the Invasion and Occupation of Iraq. 2nd ed., Vintage Books, 2013. 342 Rumsfeld, Donald. Known And Unknown: A Memoir. Sentinel, 2011, p. 515. 343 Gorka, Sebastian. Defeating Jihad: The Winnable War. Regnery Publishing, 2016, p. 45. All Ba’athist were purged under CPA Order #1. See also, Footnote 141. 344 Rumsfeld, Donald. Known And Unknown: A Memoir. Sentinel, 2011, p. 515.

115 from revenge murders, public beatings, to firing school teachers. Ambassador Bremer later wrote this de-Ba’athification should have been turned over to a judicial body rather than a political body.345

The next CPA order disbanded the Iraqi Army346 and the failure to reform and reconstitute an

Army was costly. The failure to develop a new Army for Iraq was complicated by the

Departments of Defense and State not agreeing on how to constitute that army leading to the disagreement between CENTCOM and the CPA. State wanted an army designed to combat external threats while Defense wanted an army that could help fight the insurgency then become concerned with external threats. The new Iraqi Civil Defense Corps was a force that remained in their local communities akin to an American state’s National Guard. The size and brutality of the insurgency almost immediately dwarfed these fledgling units.

This fundamental disagreement between the Departments of State and Defense carried over into police training. “At the outset, the State Department and Justice Department had responsibility for police assistance programs and wanted to create lightly armed community police forces that adhered to Western law-enforcement practices.”347 During an insurgency this was not the right approach as these police officers were almost always outgunned by more heavily armed sectarian fighters leading to avoidance of presence policing or outright

345 Bremer, L. Paul, and Malcolm McConnell. My Year in Iraq. Simon & Schuster, 2006. See also, Feith, Douglas J. War and Decision. HarperCollins Publishers, 2008.p. 431. 346 For a complete copy of CPA Order number 2 see "COALITION PROVISONAL AUTHORITY ORDER NUMBER 2 DISSOULUTION OF ENTITIES" Nsarchive2.Gwu.Edu, 2003, https://nsarchive2.gwu.edu//NSAEBB/NSAEBB418/docs/9b%20%20Coalition%20Provisional%20Authority%20Orde r%20No%202%20-%208-23-03.pdf (Accessed 12 Dec 2018). In Germany and Japan the Armed Forces took until 1955 and 1954 respectively to be reconstituted. 347 Ladwig, III, Walter C. "The Forgotten Force: Police-Building in Iraq and Afghanistan" Worldpoliticsreview.Com, 2013, https://www.worldpoliticsreview.com/articles/12976/the-forgotten-force-police-building-in-iraq- andafghanistan (Accessed 10 Dec 2018).

116 desertion.348 The loss of the functionary level Ba’athists along with the disappearance of the

Army and Police caused the Phase IV plan to sputter badly since these left a vacuum in security and lost the re-construction forces relied upon by the Coalition to rebuild Iraq. All of these contributed to the delays in reconstruction and the serious insurgency that is only now dissipating.

2.5 CONCLUSION.

US belligerent occupations in Germany, Japan, and Iraq have been reviewed from an historical perspective. Each of these belligerent occupations were different in that Germany was governed by four occupiers, Japan was exclusively an American Occupation, while Iraq was the first declared belligerent occupation conducted jointly by the UK and US. Prior to the occupations after the Second World War the US Army conducted years of conceptual development and field exercises for future belligerent occupations then established schools and cadre for the mission of conducting a belligerent occupation. Even with this early planning, the success of the occupations in Germany and Japan needed great effort and leadership during these belligerent occupations to attain the end goals. Cultural and linguistic capabilities were noted as deficiencies in Japan and this carried over to the later occupation in Iraq. Planning for a belligerent occupation was lacking in Iraq despite the amount of effort placed on this prior to the post-Second World War occupations. What planning did occur for post-war Iraq seemed to be done in several agencies without coordination with every organization going in a different

348 Id., See also, Magnier, Mark, and Sonni Efron. "Arrested Development on Iraqi Police Force" Articles.Latimes.Com, 2004, http://articles.latimes.com/2004/mar/31/world/fg-cops31/3 (Accessed 10 Dec 2018). See also, Sly, Liz. "2Nd Iraq Official Slain" Chicagotribune.Com, 2004, https://www.chicagotribune.com/news/ct- xpm-200406-14-0406140141-story.html (Accessed 10 Dec 2018).

117 direction. These and other problems encountered in and lesson learned from the occupation in

Iraq coupled with those learned for the earlier occupations will help to establish a better belligerent occupation. So next those factors are considered in the next chapter.

118

Chapter 3 Constructing a model to examine belligerent occupation

Belligerent occupation is one type of post-war occupation frequently employed. As a reminder, in this paper the term belligerent occupation rather than military occupation is used with that former term meaning “…a temporary measure for administering territory under the control of invading forces, and involves a complicated, trilateral set of legal relations between the

Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of the occupied territory.”349 Differentiating these two terms is relevant as a military occupation can occur during peacetime or wartime in a friendly or neutral or non-aligned country such as the

British, Canadian, and the later American occupation that occurred in Iceland during the Second

World War.350 This effort is limited to belligerent occupations. Notwithstanding the frequency of utilization there is little guidance as to how this type of occupation might be studied or even less on how it might be implemented. I will build a model to show indicators that could assist in building a successful belligerent occupation.

Guidance on how to conduct a belligerent occupation are few but the US had published a Field

Manual in the late 1930s that was revised to be used during and after the Second World War.

349 Department of Defense Law of War Manual, Office of General Counsel, Department of Defense, (Updated May 2016) p. 729. 350 Fairchild, Byron, "UNITED STATES FORCES IN ICELAND", History.Army.Mil, 2018, https://history.army.mil/books/70-7_03.htm Chapter 3, p. 75 (Accessed 26 Mar 2018). “Early in the European conflict both the British and the Germans had recognized what the Vikings had demonstrated ten centuries before, namely, that Iceland was an important steppingstone between Europe and the New World. Hitler several times toyed with the idea of a descent upon the island and laid preliminary plans for it; but to forestall such a move British troops, soon joined by a Canadian force, had landed in Iceland on 10 May 1940. Icelandic annoyance with the British and Canadian garrison, and British losses in the war, which made a withdrawal of the Iceland garrison seem desirable, plus American concern for the Atlantic sea lanes, combined to bring Iceland within the American defense orbit.”

119

This one source of guidance was the Field Manual 27-5/OPNAV 50-E351 entitled Military

Government and Civil Affairs published in 1943 as an update from the War Department Field

Manual 27-5 (FM 27-5) published in 1940. This Field Manual was the governing “what to do and how to do it” model for the belligerent occupations upon which the more specific guidance such as JCS -1067 was based. FM 27-5 was a guidance document containing “…the scope and purpose of civil affairs and military government activities, organization, personnel, operations orders, proclamation, and tribunals.”352 It provided a single resource on how to conduct a belligerent occupation with the legally binding tasks of security, government, administration and medical care as the manual delivered the doctrinal and procedural framework for belligerent occupation. Due to the age of this Field Manual and the subsequent major changes with the establishment of the United Nations and the Geneva Conventions of 1949 this model was not acceptable despite the clear functional and legal information contained in the document that remain usable. FM 27-5 was superseded by FM 41-10353 in 1985 but the successor does not employ the belligerent occupation terminology and does not use the word occupation. This is unfortunate but the term occupation has developed many negative overtones since the successes after the Second World War but FM 41-10 uses the word occupied territory when describing the mission set for civil administration.354

351 "FM 27-5/OPNAV 50E-3 US Army and Navy Manual Military Government and Civil Affairs" Loc.Gov, 1943, https://www.loc.gov/rr/frd/Military_Law/pdf/mil_gov-civil_affairs.pdf (Accessed 17 Mar 2019). United States Army Field Manuals are published by the United States Army's Army Publishing Directorate. As of 27 July 2007, some 542 field manuals were in use. They contain detailed information and “how-to do something” for procedures important to soldiers serving in the field. They are usually available to the public at low cost or free electronically. 352 Burgess, Major Todd, "US Army Doctrine And Belligerent Occupation" School Of Advanced Military Studies United States Army Command And General Staff College Fort Leavenworth, Kansas, 2003. 353 "FM 41-10 Civil Affairs," Library.Enlistment.US, 1985, http://library.enlistment.us/field-manuals/series-3/FM41- 10/CH10.PDF (Accessed 16 Mar 2019). 354 Id., p. 1-2

120

3.1 Modeling belligerent occupation generally

While many international relations theorist concentrate on the decisions leading to war and those made during that conflict, few consider the aftermath of that war, the idea of some sort of post-conflict stabilization, in this case, composed of belligerent occupation is little considered especially the actual workings of such an effort. Of course the victor could just withdraw from the vanquished country or seek some international governmental organization to take over responsibility for the defeated country. Belligerent occupation holds better hope for the eventual return of sovereignty to the vanquished.

Back to this lacuna, David Edelstein has developed a model constructed upon the simple question: why do some military occupations succeed and others fail? We will take up this question and the posited answers. Noting that although Edelstein’s model is an analytical work, nevertheless it will be the basis for a more prescriptive, policy relevant analysis focused towards an ideal belligerent occupation in this work. A dearth of material regarding belligerent occupation requires adopting this model to facilitate a beginning and commonality for research.

Asserting that “…historically military occupations fail more often than they succeed”355

Edelstein argues that three factors: the necessity of the occupation, a commonly perceived threat, and credible guarantees of ending the occupation, make possible a successful military occupation.356 Each of these will be addressed in turn. He reviews twenty-six occupations from

355 Edelstein, David M., Occupational Hazards: Why Military Occupations Succeed or Fail, International Security, Vol. 29, No. 1 (Summer 2004), p. 49. 356 Id., p. 51. See also, Edelstein, David M., Occupational Hazards: Success and Failure in Military Occupation, Cornell University Press, 2008.

121 around the world since 1815357 and rates the outcome as successful, failure, or mixed result then provides an explanation for each rating and an assessment of the threat environment.358

His focus is on various types of occupations conducted by states such as Germany in France

(1941-1944), UN occupation efforts either as caretaker (Britain after World War II in Somalia and Eritrea) or multilateral occupation as in Kosovo or East Timor, and what he terms

“collateral occupations” where a state hold territory of another state until some indemnity is paid as after the Franco-Prussian war (1870-1871).359 Instead, he chose to focus on occupations “…as an instrument of foreign policy available to individual states.”360 This focus on state occupations of another state is compatible with the instant effort regarding belligerent occupations and is utilized throughout this chapter.

Performing the needed task of separating out the notion of “nation building” from what he calls military occupation, Edelstein indicates there is much literature on the topic of nation building which focuses “…on liberal democracy and successful economies as key objectives.”361

Continuing on, he correctly states that nation building is not the main objective of military occupation and may not even be an aim of such military occupations. Clearly stated, “[t]he

Occupying Power’s primary objective in conducting military occupation is to further the purpose of the war in which the occupying forces are engaged and to ensure the maintenance and security of those forces….”362 To stabilize the vanquished country, the purpose of the war must be concluded then return to requirements of belligerent occupation. As has been

357 Id., at Appendix 1. See also, Edelstein’s chart on p. 27 in Occupational Hazards. 358 Id., at Appendix 2. 359 Id., at Appendix 1, p. 171-172. 360 Id., at Appendix 1, p. 172. 361 Id., p. 50. 362 Department of Defense Law of War Manual, Office of General Counsel, Department of Defense, (Updated May 2016) p. 735.

122 demonstrated since the 1990’s, US Forces in an occupation “…can stop the killing, end the chaos, create breathing space, establish the rule of law. What the inhabitants do then is up to them…If the American goal is to re-create Ohio in Kosovo or Haiti, then the occupiers are doomed.”363 After the successful post-World War Two belligerent occupation situations,

“‘…nation building’ is generally too ambitious a task, but ‘statebuilding’ is a more realistic objective. The apparatus of a functioning state can be developed much more quickly than a national consensus.”364 Certainly there exist other obligations to the civilian population. Yet the warfighting aspects leading to occupation and the occupation itself do not include nation building since that idea is a political decision not a military one. So as Edelstein points out

“…conflating [belligerent] occupation success with the establishment of liberal democracy and functioning economies is misguided”365 to say the least when considered from either a military or legal perspective. As the basis to continue toward a model Edelstein’s three factors for a successful occupation are evaluated.

Table 3-1 Author’s Chart of Edelstein’s Factors

Edelstein Factors Germany Japan a. Occupied need help Yes Yes b. Common, External Threat Yes Yes c. Credible guarantee to end High Medium occupation

363 Boot, Max. The Savage Wars of Peace: Small Wars and the Rise of American Power. Basic Books, 2002, p. 346. 364 Id. 365 Edelstein, David M., Occupational Hazards: Why Military Occupations Succeed or Fail, International Security, Vol. 29, No. 1 (Summer 2004), p. 50.

123

3.1.1. Do the occupied recognize the need for the occupation?

Edelstein begins by asking if the vanquished population needs the Occupying Power’s assistance. Thereafter, he argues those populations devastated by war are more likely to need that help to rebuild their country. Indeed, “[o]ccupations are more likely to succeed when they follow a destructive military victory that has eviscerated prewar political, economic, and social institutions.”366 When the need is greatest after such destruction the need for outside assistance is likewise the greatest as the old regime has been extirpated leaving chaos and hopelessness along with the devastation. Edelstein’s second reason for a devastating victory increasing the likelihood of a successful belligerent occupation is “…if an occupied territory has been destroyed by war, the population is more likely to accept the occupation as a necessary evil.”367 Absent that assistance, the occupied country may never be able to rebuild so the population accepts the Occupying Power(s) help to rebuild albeit often begrudgingly or to serve their own ends, or probably both.

Post-Second World War Germany fit this description since it was very badly damaged as the

United States Strategic Bombing Survey dated 30 September 1945 stated

[a] revised estimate prepared by the Survey (which is also a

minimum) places total casualties for the entire period of

the war at 305,000 killed and 780,000 wounded. More

reliable statistics are available on damage to housing.

According to these, 485,000 residential buildings were totally

destroyed by air attack and 415,000 were heavily damaged,

366 Id., p. 59. 367 Id., p. 60.

124

making a total of 20 percent of all dwelling units in Germany.

In some 50 cities that were primary targets of the air attack,

the proportion of destroyed or heavily damaged dwelling

units is about 40 percent. The result of all these attacks was

to render homeless some 7,500,000 German civilians.368

This level of death and destruction created an occupation situation that was incredibly complex as the military mission of the occupation government was to “…primarily aid in the successful prosecution of the war”369 to eventually complete the return of that vanquished country to its people, while there were a myriad of “practical and logistical problems of enormous proportions.”370 Germany was defeated, the Germans knew they were beaten, and the Allies hammered home the fact the Germans were vanquished. Clearly, for the Germans this was not the occupation situation of 1919 and this occupation situation was present for their daily viewing in terms of merely the ubiquitous rubble. Germans clearly needed help to rebuild but also, and more urgently, to feed, clothe, and warm themselves; in other words to survive.

At the beginning of the occupation in Japan the devastation was likewise enormous due to

[a]ll told, at least 2.7 million servicemen and civilians died as

a result of the war roughly 3 to 4 percent of…the population

…millions more were injured, sick, or seriously malnourished.

Approximately 4.5 million servicemen demobilized in 1945

368 The United States Strategic Bombing Survey (Europe), The US Government Printing Office, 1945, p. 15. 369 Hudson, Walter M., Army Diplomacy: American Military Occupation and Foreign Policy after WWII, Univ. Press of Kentucky, 2015, p. 168. 370 Bessel, Richard, Germany 1945, HarperCollins Publishers, 2009, p. 171.

125

were identified as being wounded or ill…Sixty-six major cities,

including Hiroshima and Nagasaki, had been heavily bombed,

destroying 40 percent of these urban areas overall and

rendering around 30 percent of their populations homeless.

In Tokyo, the largest metropolis, 65 percent of all residences

were destroyed. In Osaka and Nagoya, the second and third

largest cities, the figures were 57 and 89 percent.371

Japan was devastated by American aerial bombing attacks further complicated by the American submariners in their stringent blockade as the war was brought to the home islands.372 Based upon the foregoing indications, both the Germans and the Japanese were in need of assistance from the Occupying Power(s) to rebuild from such catastrophic devastation and the sheer numbers of dead with correspondingly higher numbers of injured, sick, and wounded persons.

The vanquished were in dire need of everything: food, housing, medicine, health care, and all the basics of human existence. Devastated Germany and Japan truly needed all of the assistance that the Occupying Power(s) could provide.

This is one great irony of the belligerent occupation. A victor goes from one day trying to kill people and break things in the enemy country to becoming on the next post-conflict day those same people’s life line of food, medicine, and other life maintaining supplies as well as their occupation government. It is indeed difficult for military forces to proceed from the warrior mentality to the care giver role on subsequent days. Experiencing war as a combatant is not like

371 Dower, John W., Embracing Defeat: Japan in the Wake of World War II, W.W. Norton, 2000, p. 45-46. 372 Dupuy, R. Ernest, and Trevor N. Dupuy, The Encyclopedia of Military History, Harper & Row, 1986, p. 1196-1197.

126 a faucet that can be turned on and off. Later in Chapter 6 of this work titled “The Ideal

Belligerent Occupation,” I will discuss the proposed rotation of troops and other measures to help ameliorate this ironic transformation from cold, hard combatant to occupier with radically different obligations. Such obligations are provided in an article in the Fourth Geneva

Convention:

[t]he provisions of Part II [General Protection of Populations

Against Certain Consequences of War] cover the whole of the

population of the countries in conflict, without any adverse

distinction based, in particular, on race, nationality, religion or

political opinion and are intended to alleviate the sufferings

caused by war.”373

The practicalities of these changes from warrior to care provider are the reason for the strict maintenance of good order and discipline in military forces and the rotation of combat forces for replacement by occupying forces discussed in Chapter 6 of this work.

Continuing on, if the first task of an occupation as fighting ends is “to restore and maintain order among the local civilians” then this too should convince the occupied that an occupation is needed. In Germany it was a similar scene in many towns. “After the Americans took the town but before they established full control, mobs composed of women, the elderly, and teenagers too young to have been called up [for service in the German Army] ranged around

373 The Geneva Conventions of 12 August 1949. International Committee of the Red Cross, 2006, Part II, Article 13, p. 159.

127 the central area looting shops and warehouse.”374 Restoring public order including the prevention of looting was just one task of occupation especially in the beginning “[t]here were no police, no firemen, the city officials had fled.”375 In the first task of restoring order, the occupiers were also protecting themselves as they set about to collect “[i]tems which might be used for continued resistance—weapons, ammunition … were removed from the conquered population.”376 Attempts to restore order were inordinately complicated by simultaneous food riots contributing to a potential ‘nutritional disaster’ during an extremely cold winter when the coal ran out.377 All of this was occurring as the ubiquitous rubble was being removed and buildings reconstructed so the toll on the people was very great with many freezing to death and vast numbers admitted to hospitals or being cared for outside of a medical facility as well as was possible under the conditions. By January 1946, food for German children was received and private American aid followed that summer but with a crime spree due in large part to theft of foodstuffs by young teenagers and boys.378

A similar situation developed in Japan even before the occupation began so beginning the punitive occupation only exacerbated an already grim situation. “A majority of Japanese were already malnourished at the time of surrender. Food shortages had already begun to appear in some part of the country even before Pearl Harbor.…”379 The failed crops and harvests

374 Taylor, Fred, Exorcising Hitler: The Occupation and Denazification of Germany, Bloomsbury Press, 2011, p. 84. 375 Davidson, Eugene, The Death and Life of Germany: An Account of the American Occupation, Alfred A. Knopf, 1959, p. 51. 376 Bessel, Richard, Germany 1945, HarperCollins Publishers, 2009, p. 172. 377 MacDonogh, Giles, After The Reich: The Brutal History of the Allied Occupation, Basic Books, 2007, p. 365-366 (food) and p. 368 (coal). 378 Davidson, Eugene, The Death and Life of Germany: An Account of the American Occupation, Alfred A. Knopf, 1959, p. 366 (arrival of private aid) and p. 137 (delinquency). 379 Dower, John W., Embracing Defeat: Japan in the Wake of World War II, W.W. Norton, 2000, p. 90. See also, Hoyt, Edwin P., Japan's War: The Great Pacific Conflict, McGraw-Hill, 1986, p. 413-414.

128 contributed mightily to the expectation of massed starvation in the order of about ten million persons but “[f]ood shipments from the United States helped to avert the anticipated disaster—and in the process, enhance the image of the United States….”380 Essentially, “Japan face one basic challenge after World War II, that of survival.”381 The problem of hunger persisted “[d]espite efforts by occupation authorities as well as the government, the collection and distribution of even the most basic foodstuffs remained chaotic for years.”382 The problems continued until “[i]n 1949…meat and fish became plentiful again, but it was still a struggle to make ends meet as rent and food prices continued to climb.”383 Efforts to develop

“…programs of just distribution of available necessities [had] been instituted to avoid acute economic distress.”384 Life was tenuous as various diseases took a toll on the nutritionally deficient population with tuberculosis being the main culprit “…and it was not until 1951 that total annual [TB] deaths dropped below 100,000.”385 It is imperative to note that there were really two occupations occurring in the Nipponese Kingdom, one in Japan and another in the

Ryukyu Islands that includes Okinawa. To put this in context, “[c]learly, the occupiers of

Okinawa were nowhere near as organized, as well-funded, or as willing to recognize the political autonomy of the occupied populace as were those who administered Japan’s main islands.”386 The occupation of the Ryukyu Islands lasted until 1972.387 Home Islands’

380 Id., p. 93. 381 Vestal, James E., Planning For Change, Oxford University Press, 1993, p. 14. 382 Dower, John W., Embracing Defeat: Japan in the Wake of World War II. W.W. Norton, 2000, p. 94. 383 Id., p. 102-103. 384 Baker, Frayne, Brig. Gen., "Occupation of Japan", www.Army.Mil, 1946, https://www.army.mil/article/4614/occupation_of_japan (Accessed 26 Mar 2018.) 385 Dower, John W., Embracing Defeat: Japan in the Wake of World War II, W.W. Norton, 2000, p. 103. 386 Molasky, Michael S., The American Occupation of Japan and Okinawa, Routledge, 1999, p. 20. 387 OKINAWA ISLANDS RETURNED BY U.S. TO JAPANESE RULE, http://www.nytimes.com/1972/05/15/archives/okinawa-islands-returned-by-us-to-japanese-rule-agnew-in- tokyo.html (Accessed 20 February 2018).

129 occupation of Japan is the focus of our inquiry. Unmistakably both Germany and Japan required the assistance of the Occupying Power(s) to rebuild their vanquished countries; so the first factor for a successful occupation in the Edelstein model is met. See Table 3-1, above.

3.1.2. Is there a common threat to the occupied territory?

Edelstein next posits that when the Occupying Power and the occupied vanquished share “…a common threat to the occupied territory…then the occupying power will want to protect a country that it has already invested resources in and considers geographically significant, and the occupied population will value the protection offered to it.”388 Such a symbiotic relationship is critical as Edelstein continues on that both parties to the occupation want it to end as quickly as practicable. Symbiosis is needed since there must be sufficient stability for this occupation to end. The occupiers want an operating, stable government in place after rehabilitating the vanquished so that the occupier’s return will not be needed prospectively.

The occupied want to exercise their sovereignty without tutelage from or other domination by the Occupying Power. As can be perceived, the vanquished may have to swallow their nationalism to survive under such conditions to ultimately rid themselves of the Occupying

Power. The Occupying Power likewise wants to be done with the occupation as quickly as possible within the constraint of preserving their military victory. A tension remains between the occupier and occupied to get the occupation over with in the least amount of time while providing for a stable follow-on government and country.

388 Edelstein, David M., Occupational Hazards: Why Military Occupations Succeed or Fail, International Security, Vol. 29, No. 1 (Summer 2004), p. 51.

130

A common threat unites the effort of the former adversaries in a mutual manifestation of acceptance regarding the occupation situation. Edelstein opines “[o]f the fifteen cases in which there was no external threat to the occupied territory, ten (67percent) failed and only two fully succeeded.”389 This success rate and the mixed results are in line with his hypotheses as to external threats. Referring to Germany and Japan, Edelstein contends that we cannot

“…undervalue the central role that the Soviet threat played in allowing those occupations to succeed.”390 That threat may have been felt more by the Germans, initially, as even before the war was over “…as many German soldiers as possible surrendered to the Western Alliance rather that to the Red Army or to the French…”391 as they had seen the results of Soviet military advances in East Prussia and Pomerania.392 At Potsdam, “[w]hen Stalin asked for the billion dollars ‘promised’ at Yalta, the Allies refused to pay reparation indirectly by keeping

Germany going with Allied resources”393 and as the Soviets asked for more and varied other concessions, the Allies began to see the future of German occupation through these Soviet realities albeit they continued to fail to recognize the overarching Soviet aims. For Germans the external threat was real, likely existential, so the western Allies were seen as protectors despite the rigors of occupation under these same Allies. As regards Japan, the Soviets had been a competitor in northeast Asia for many years. “Between 1900 and 1903, Japan prepared for a limited war in Korea and Manchuria to crush growing Russian power there, to gain revenge for

389 Edelstein, David M., Occupational Hazards: Success And Failure In Military Occupation. Cornell University Press, 2008, p. 26. 390 Edelstein, David M., Occupational Hazards: Why Military Occupations Succeed or Fail, International Security, Vol. 29, No. 1 (Summer 2004), p. 51. 391 Bessel, Richard, Germany 1945, HarperCollins Publishers, 2009, p. 200. 392 See, MacDonogh, Giles, After The Reich: The Brutal History of the Allied Occupation. Basic Books, 2007, p. 46- 55. 393 Peterson, Edward N., The American Occupation of Germany: Retreat to Victory, Wayne State University Press, 1978, p. 62.

131

Russian interference after the Sino-Japanese War, and to ensure her own hegemony over

Korea.”394 Despite a Japanese victory in the Russo-Japanese War (1904-1905), these forces continued confrontation then fought several forgotten battles and even a brief war in 1939.395

For the Japanese the presence of the Soviet Union on the International Military Tribunal for the

Far East and the “…hundreds of thousands of Japanese prisoners [that] remained in Soviet hands, their circumstance unknown…”396 of whom more would die “…than the number of

American and British Commonwealth prisoners who perished … as prisoners of the Japanese”397 caused a turn against the Soviets. Those Japanese Prisoners of War that were returned were repatriated much later than anticipated causing further resentment. “The excruciatingly prolonged nature of the repatriation process, together with the Soviet unwillingness to provide accurate information about the number and identity of their prisoners greatly exacerbated this animosity.”398 Furthermore, the loss of the Kurile Islands to the Soviets, now Russians, is still a contentious issue to the Japanese and remains so to this day.399 The Japanese had and still have a strong distaste for the Russians so almost any event or rumor could turn them against their rival and these concerns did just that. Edelstein opines “[n]o population enjoys being occupied, but if the occupying power offers valuable protection against another threat, then the population will tolerate the occupation.”400 Grounded on the establishment of a threat by

394 Dupuy, R. Ernest, and Trevor N. Dupuy, The Encyclopedia of Military History, Harper & Row, 1986, p. 920. 395 Id., p. 1043-1044. 396 Dower, John W., Embracing Defeat: Japan in the Wake of World War II, W.W. Norton, 2000, p. 472. See also, Hoyt, Edwin P. Japan's War: The Great Pacific Conflict. McGraw-Hill, 1986, p. 414. 397 Id., p. 473. 398 Id., p. 52. See also, Hoyt, Edwin P. Japan's War: The Great Pacific Conflict. McGraw-Hill, 1986, p. 414 399 Pitt, John Taishu, The Diplomat, "The Third Annual Eastern Economic Forum and the Japan-Russia Summit" 2017, https://thediplomat.com/2017/09/the-third-annual-eastern-economic-forum-and-the-japan-russia-summit/ (Accessed 5 Apr 2018). 400 Edelstein, David M., Occupational Hazards: Success And Failure In Military Occupation, Cornell University Press, 2008, p. 35.

132 the Soviets presented against both Germany and Japan as they lay prostrate, Edelstein’s argument that an external threat unites the occupied and occupier seems borne out. See, Table

3-1, above. Relatedly, Edelstein contends “[i]n contrast to a commonly perceived external threat, an internal threat is more likely to act as a centrifugal force, undermining an occupation.”401 Internal threats in the form of some sort of insurgency or guerilla war complicates the occupation situation so that disparate groups must agree on the utility of the continued occupation. Thus the occupier must ascertain its own security situation vis-à-vis the potential breakup of the occupied state. If the separation seems or is inevitable then the

Occupying Power must have the staying strength for a long occupation or seek to withdraw.

According to Edelstein402 of the ten occupations that suffered from some sort of internal threat, he scored only two of these as having mixed results the United States in The Philippines

(1898-1945) and the United Kingdom in Palestine (1919-1948). The four failures were: the

United States in Cuba, the second time (1906-1909), Vietnam in Cambodia (1979-1989), Israel in Southern Lebanon (1982-2000), and Syria in Lebanon (1976-2005). Four occupations were listed as question marks; those being the NATO efforts in Bosnia-Herzegovina (1995-present),

Kosovo (1999-present), and Afghanistan (2001-present), and the Iraq Occupation by the US, the

UK, and Poland (2003-present). In any event, this is a dismal record of failures when there is an internal threat to an occupation. Such ongoing endeavors with an internal threat may require more time to make a determination according to his criteria of failure, mixed, or success. As can be observed from the foregoing, belligerent occupations seem to be increasing in number and

401 Edelstein, David M., "Occupational Hazards: Why Military Occupations Succeed Or Fail" International Security, vol. 29, no. 1, 2004, p. 54. MIT Press - Journals, doi:10.1162/0162288041762913. 402 Edelstein, David M. Occupational Hazards: Success And Failure In Military Occupation. Cornell University Press, 2008, chart, p. 27.

133 complexity so developing some indicators for planning and implementing such events needs to be established. Whether or not there is an external threat, “…perceptions of threat can be either reinforced or transformed by the strategies the occupying powers pursue once an occupation is underway.”403

3.1.3. Is there a credible guarantee of withdrawal?

An occupation, according to the last factor in Edelstein’s model, will engender “…less opposition when the occupying power makes a credible guarantee that it will withdraw and return control to an indigenous government in a timely manner.”404 Such a credible commitment to withdraw may be overcome by events and difficult to attain. Many issues and obstacles present themselves as the Occupying Power attempt to disengage. Edelstein suggests

“[t]here are four possible ways in which an occupying power might signal these intentions…set a deadline for withdrawal…adopt indirect rule...make withdrawal contingent upon behavior…[and] ‘multilateralize’ the occupation.”405 Setting a time table for withdrawal may be credible but also allows for a wait it out strategy by those opposed to the occupation or the new leadership. Indirect rule reeks of colonialism disqualifying it from the start. Withdrawal contingent upon the behavior of the defeated can be seen in the occupations of Germany and

Japan following the Second World War. Behavior based withdrawal should remain an option.

The prospect of having other nations or international organizations take over the occupation may have merit depending upon the occupation situation so it should remain as an option.

403403 Id., p. 24. 404 Edelstein, David M., "Occupational Hazards: Why Military Occupations Succeed Or Fail," International Security, Vol 29, no. 1, 2004, p. 51. MIT Press - Journals, doi:10.1162/0162288041762913. 405 Id., p. 66-75.

134

3.2 Additional Indicators

Edelstein’s model is a great start for the consideration of what indicators would assist the success of a belligerent occupation. Other than FM 27-5, Edelstein’s occupation material is the most recent as it provides some critical bases for evaluating the success of a belligerent occupation. Yet Edelstein’s model is not adequate to the task of planning for an occupation then implementing that plan leading to a successful belligerent occupation returning the sovereignty to the vanquished.

That stated, my first objection is the use of the term military occupation. As indicated earlier, a military occupation can occur on friendly, hostile, or neutral territory while belligerent occupation is only on enemy territory. Military occupation may be a choice, belligerent occupation usually is not. A more clear distinction must be drawn since his material is actually about belligerent occupation and he lists no military occupations in friendly or neutral countries in either the article or book.

Overcoming the definitional distraction, my problem is that Edelstein begins in the middle of an occupation. He posits the occupation has already occurred as his issues regard the needs of the occupied, the external and internal threat environments, and credible guarantees of ending the occupation. With the war partly or just wholly completed, how the belligerent occupation is established and implemented is absolutely crucial and this requires pre-planning. While

Edelstein’s success issues are important and incorporated herein, these issues come after the establishment and implementation of the belligerent occupation.

135

To have a chance to be a successful belligerent occupation advanced consideration leading to solid but flexible planning is an absolute must. The needs of the occupied are but one of a myriad of competing, time-sensitive demands during and after the gaining of security and control over the territory by the Occupying Power. Thus part of the rationale for including so much of the precursors to and the aftermath of the belligerent occupations in this work is to permit these critical periods of time to be analyzed. Belligerent occupation is a complex situation not merely another singular, benign event without context. A great many issues must be planned and preparations made to implement those plans with consideration of exigencies that are probable.406

406 For example FM 27-5 (1943) provides “[s]uch information will include, in addition to such parts of the military plan as may be necessary to civil affairs planning, the following’ concerning the area to be occupied: a. The recent history of the country. b. The theory and actual operations of its government including the titles, functions, backgrounds and names of officials in a position to help or hinder the mission of the occupying force. c. All facts which may affect the mission, such as political parties, factions and cleavages, unofficial persons wielding political or other power both in the central government and in political subdivisions. d. Geography, including location, area, topography, climate, and natural resources. e. Characteristics of the inhabitants of the country such as numbers and proportions by race, religion, and political or other affiliations, and factors indicating probable attitudes toward the presence of the occupying force. f, Local customs and traditions, sensitive points, taboos, and national or religious observances such as holidays and sacred or forbidden places, g, Standards of living including health and dietary habits & dietary habits that might affect the occupying forces. h. Administration of justice, including tribal customs and traditions. i. Forms of social courtesy towards different ranks among the inhabitants. j. Character of the p0pulation as to orderliness and obedience to law. k, Character of the police force and fire departments l. Regulations and conditions as to salts of liquor and narcotics. m. Existence of subversive or enemy groups, potential saboteurs and spies. n. Organization and reliability of the civil courts in which offenses by civilians might be tried. o. The degree of development of agriculture and forests, industry, ruining, labor conditions, particularly as they will affect material, labor, and other supplies for the task force. p. Financial situation, including banks, condition of banks of issue and commercial banks, rates of exchange, amount and soundness of currency in use. q. Current economic, amounts of good available for purchase, and the probable effect of presence of a well-paid occupying force. r. Food supplies, including their sufficiency for the population and for the occupying force. s. The availability and adequacy of institutions, facilities, materials, services, equipment and Iabor, likely to affect the mission of the force or to be required by it, such as the capacity and condition of public works and utilities including railroads, canals, harbors and docks, highways, bridges, rolling stock, motor vehicles, gas, electricity, writer works, and sewage, t. Extent, location, and condition of the postal telegraph, telephone, and radio services. u. public health, including sanitary condition prevalence and control of disease, protection of food, milk and water supplies. v. Civilian defense. See paragraph 12d.”

136

My next issue with the Edelstein model is the view that all problems relate to internal and external threats. In the beginning of each chapter, he relates how the threat environment causes the vanquished to accept the occupation, accept the occupation strategies of the

Occupying Powers, and accept the follow-on indigenous government. Internal and external threats are important factors but the belligerent occupation cannot be built and maintained based only on the threat environment and reactions to that environment. Assuming arguendo that this is the only factor then pre-planning would be rather simple; identify the internal and external threats then deal with these or alternatively view the occupation via the prism of these threats. There is more to accomplish when establishing then maintaining a belligerent occupation. Consider one area of concern when establishing a belligerent occupation, the health of the vanquished. To protect the occupying force and the vanquished population many tasks must be done, some immediately. The dead must be buried, sanitary disposal of various types of waste must be made, water supplies protected, food inspection established, insect and vermin control begun, other actions to prevent the spread of disease, and the sick and wounded cared for as practicable.407 Hunger or starvation and disease further complicate all of these efforts. These tasks regarding health seem removed from considerations of internal or external threats although these have been known to occur such as booby-trapped corpses. The point is how the belligerent occupation is strategically approached is important but not one single issue can be identified for the success of this situation. An external threat does not

407 See generally, "FM 27-5/OPNAV 50E-3 US Army And Navy Manual: Military Government And Civil Affairs". Loc.Gov, 1943, https://www.loc.gov/rr/frd/Military_Law/pdf/mil_gov-civil_affairs.pdf (Accessed 17 Mar 2019).

137 always occur during a belligerent occupation or may not be understood or perceived as in Iraq with the interference of Iran408 and others.

Edelstein’s model looks back as an analytical study with some policy prescriptions yet he does not carry those prescriptions to the beginning that is the planning for the belligerent occupation. While helpful in his limited prescriptions, the model does not set the stage for the belligerent occupation. He writes that local knowledge can’t be overstated but this is not dispositive of an entire belligerent occupation situation. He argues that not enough planning was done for the occupation in Iraq and, while true, he does not indicate the type of indicators that should be considered in that planning. Better and coordinated planning for belligerent occupations with carefully chosen indicators for consideration should assist the planners. He recommends an unsatisfactory solution that belligerent occupation should be “… an option of last resort for political leaders”409 without elaborating as to whom or what entity should look after the vanquished country and the people. You cannot always walk away and hope for a return of sovereignty to the country.

Despite Edelstein’s admonition about the failure rate of occupations, I will offer that additional indicators may help to guide the occupiers to more success. I submit nine additional indicators that should improve the prospects of a successful belligerent occupation. The proposed nine additional factors to be considered before the implementation of a belligerent occupation include: was there a coordinated belligerent occupation plan; was the occupied liberated or defeated; was there a functioning vanquished government at wars end; was the occupied

408 Diamond, Larry Jay, Squandered Victory, Times Books, 2005, p. 291-222. 409 Edelstein, David M., Occupational Hazards: Success and Failure In Military Occupation, Cornell University Press, 2008, p. 169.

138 population homogenous; what was the length of war prior to occupation (months); what is the size of occupied country (square miles); how many occupation troops (US) are present; what is the population of occupied country; and how many months did the occupation last. Personal experience in the post-occupation phase of Iraq and other locales along with the research into other belligerent occupations, many listed in this work, are the influence for these additional indicators. In considering the belligerent occupations of the past, several ideas became apparent with some lessons developed in the intra-war years, some during the planning for the occupations, but mostly with those developed under the pressure of the actual implementation of the occupations. Each indicator will be examined in turn.

Table 3-2 Additional Indicators

3.2.1 Coordinated plan for the occupation?

There must be pre-planning for any belligerent occupation. In Chapter 2, an extensive history of the Rhineland occupation, the Army War College examination of occupation, and the intense planning for occupation before those occurred in the post-Second World War period was provided to establish the argument for pre-occupation planning. The absence of or inadequate planning is sure to lead to failure. It is not just planning but coordinated planning; that is, a plan developed among the cabinet level organizations having a significant role in any belligerent

139 occupation. In this effort the military will have a great deal of planning involving the war, possibly partial occupation during the continuation of the war, and the post-war belligerent occupation. Other organizations in a whole-of-government approach will need to be heavily engaged in the total plan since there are many issues outside the expertise of the military planners. Whatever organizations are involved, a coordinated plan must be hammered out with the plan having the strength to get the mission completed yet with the flexibility to take up complicating or unanticipated factors. Considering that the planning for all but the post-Second

World War belligerent occupations was either lacking completely or done just prior to or during the occupation, it is imperative that planning occur and be as thorough as practicable at the time with frequent updates due to changed circumstances even during the belligerent occupation.

The bottom line is that extensive planning for the post-war phase must be undertaken to prepare as well as possible for the belligerent occupation. With all of the inter-war years of effort to produce and test these occupation situations during field exercises in the 1920s and

1930s as well as the nearly three years of planning for the belligerent occupations after the

Second World War began there were still major problems and mistakes.410 Yet due to the amount of planning there were solutions found for these impediments to those belligerent occupations. Plan, plan, and plan some more must be the watch word for the development of any belligerent occupation. Then keep planning during the pendency of the belligerent occupation as circumstance change and situations occur. If there is inadequate planning then it

410 See, Hudson, Walter M., Army Diplomacy: American Military Occupation And Foreign Policy After WWII, Univ. Press Of Kentucky, 2015.

140 is difficult, if not impossible, to catch up during the belligerent occupation especially one with a guerrilla war or insurgency whether active or percolating.

3.2.2 Liberated or defeated?

Based upon the historical analysis contained in Chapter 1, the next additional factor is to ascertain how the occupied view their occupier after a war since this could set the stage for the possibility of a successful occupation. More specifically, the defeated may see their occupiers as liberators or as conquerors thus setting the stages for cooperation or confrontation. In

Germany, the Allies came as conquerors as evidenced by General Eisenhower’s Proclamation

Number 1 that was posted prominently around Germany stating “[w]e come as conquerors but not as oppressors”411 and the Germans knew that they had been vanquished and were initially treated as such. General Clay “came as a conqueror…to some Germans Clay behaved as der

Sieger [the victor or winner]….”412 Liberators are seen differently than conquerors as demonstrated throughout the histories of the occupations presented. For example, in the preparation for the Iraq War of 2003 included was a Department of State paper entitled

“Liberation Strategy for Iraq” that was based on the idea of US forces being greeted as liberators413 with a US-led administration to follow the war.414 The very name of Liberation

Strategy paper indicates the significance placed upon the distinction of liberator and victor. This

411 "A Sign In Front Of A U.S. Military Installation In Berlin Features A Quotation By General Dwight Eisenhower That Reads: "We Come As Conquerors...Not As Oppressors." - Collections Search - United States Holocaust Memorial Museum". Collections.Ushmm.Org, 1945, https://collections.ushmm.org/search/catalog/pa1086512 (Accessed 6 Apr 2018). 412 Peterson, Edward N., The American Occupation of Germany: Retreat to Victory, Wayne State University Press, 1978, p. 58. (Translation by author). 413 'We Will, In Fact, Be Greeted as Liberators' - Cheney" Informationclearinghouse.Info, 2003, http://www.informationclearinghouse.info/article5145.htm (Accessed 17 Dec 2018). This is drawn from a 16 March 2003 interview of Vice president Dick Cheney by Tim Russert on “Meet the Press.” 414 See, Feith, Douglas J., War And Decision, HarperCollins Publishers, 2008, p. 283-285.

141 paper is reported to have stated that “[a]s we [US] take these steps, there is a risk that Iraqi,

Arabs, Moslems, and even some others might perceive U.S. actions as a new colonial occupation…”415 revealing the concern at not being considered liberators by the vanquished populations. Being seen as a conqueror may induce a guerilla war or an insurgency thereby complicating the belligerent occupation. Likewise being viewed as a conqueror may be seen as a threat by the neighboring countries with the concomitant reaction to undermine or attack the victors.

3.2.3 Functioning Government or not?

Another indicator is the level of government in place at the time of capitulation; rephrased as a question, is there a functioning government in the occupied country? This answer may provide some clues as to the success of the subsequent belligerent occupation. A government has some authority over events even as it surrenders or otherwise capitulates, thus the government has concomitant responsibilities. When there is a breakdown or lack of government then chaos ensues. In Germany there was a breakdown in the government that was hard to believe.416

After Hitler’s suicide, the Donitz government referred to as “[t]his faintly ridiculous entity hung on for more than two weeks…”417 allowing about three million military personnel to make it to the western Allies lines to surrender. The Donitz government did surrender albeit “…the Allies did not recognize him as head of state… [as] his authority was doubtful.”418 Meanwhile “[m]any

Germans…exploited the temporary vacuum, after the collapse of their own government

415 Id. 416 Bessel, Richard, Germany 1945, HarperCollins Publishers, 2009, p. 169. 417 Taylor, Fred, Exorcising Hitler: The Occupation And Denazification Of Germany, Bloomsbury Press, 2011 p. 94. 418 Ziemke, Earl F., The U.S. Army In The Occupation Of Germany, 1944-1946, Center Of Military History, United States Army, 1975, p. 258.

142 institutions …to steal, loot, settle old scores, or make arrangements to secure their futures.”419

Without a functioning government the Occupying Power must become the government to avoid chaos and the potential for bloodshed, guerrilla war, or an insurgency. Certainly the

Occupying Power may impose their new government and possibly reforms as “[t]his procedure has the advantages of speed and precision. But the changes are clearly imposed by the military strength of foreign occupation forces and thus peculiarly open to post-occupation attack.”420

My indicator, if a functioning government exists or not, is distinct from the Edelstein factor in his model. He considers how the occupied view the occupier in terms of an external threat; that is, the vanquished accept the occupation as protection against a common external threat.

In Japan the government was functioning even to the point that the U.S. Initial Post-Surrender

Policy document indicated “…the Supreme Commander will exercise his authority through the

Japanese governmental machinery and agencies….”421 With a functioning government the

Occupying Power, the United States, could and did rely upon the existing Japanese government to carry out the work of ruling albeit under U.S. guidance. The additional factor that the US did not possess the linguistic or technocratic abilities to govern likewise contributed to the use of the existing Japanese governmental infrastructure.422 Furthermore, the retention of the

Emperor Hirohito was deemed imperative by SCAP as this retention “would be indispensable

419 Taylor, Fred, Exorcising Hitler: The Occupation And Denazification Of Germany, Bloomsbury Press, 2011 p. 96- 97. 420 Martin, Edwin M., The Allied Occupation Of Japan, American Institute Of Pacific Relations, 1948, p. 11. 421 Dower, John W., Embracing Defeat: Japan in the Wake of World War II, W.W. Norton, 2000, p. 212. For the official version, see, U.S. State Department Records Decimal File 1945-1949 (PW) "740.00119 P.W./9-645" at Part II, paragraph 2, Sentence 2, and "United States Initial Post-Surrender Policy For Japan (SWNCC150/4) (Text) | Birth Of The Constitution Of Japan," Ndl.Go.Jp, 2004, http://www.ndl.go.jp/constitution/e/shiryo/01/022/022tx.html (Accessed 8 Apr 2018). 422 Mayo, Marlene J., American Wartime Planning for Occupied Japan: The Role of Experts, footnote 2, p. 447 in Wolfe, Robert, Americans as Proconsuls. Southern Illinois University Press, 1984; see also, Dower, John W., Embracing Defeat: Japan in the Wake of World War II, W.W. Norton, 2000, p. 212.

143 not only for effecting a surrender but also as the spiritual core of a peacefully inclined postwar government….423 Hirohito would remain as Emperor, subject to the Supreme Allied

Commander, to be utilized in the post-conflict government, and assist in the transition of sovereignty back to Japan.

Even with a functioning government the cultural, social, religious, economic and political circumstances of the occupied state must be carefully evaluated so these identified idiosyncrasies can be incorporated into the belligerent occupation planning and implementation. As to an additional indicator, having a functioning government in place as the occupation begins seems to be a positive factor for a successful occupation even if there are little to no linguistic or other abilities contained within the government or forces of the

Occupying Power. In contrast, it should be noted that the absence of a functioning government does not render a belligerent occupation unworkable or even unsuccessful. The Occupying

Power must know that the absence of a functioning government can be overcome with a great deal of effort, time, patience, and persistence. The Allies demonstrated a belligerent occupation could be successful in the absence of a functioning government in the case of post-conflict

Germany. While the problems were almost insurmountable, success was achieved but with some extremely important economic assistance from the Marshall Plan,424 a successful airlift of supplies to Berlin,425 and eventually the formation of the Washington Treaty bringing NATO426 into existence. Situationally dependent circumstance such as financial assistance or security commitments or both may be needed to ensure a successful belligerent occupation but effort,

423 Dower, John W., Embracing Defeat: Japan in the Wake of World War II, W.W. Norton, 2000, p. 280-289. 424 See, Steil, Benn, The Marshall Plan: Dawn of The Cold War, Simon & Schuster, 2018. 425 Dupuy, R. Ernest, and Trevor N Dupuy, The Encyclopedia Of Military History, Harper & Row, 1986, p. 1263. 426 NATO Handbook, NATO Office Of Information And Press, 2001, p. 29-32.

144 time, patience, and persistence will always be required to create the environment for a successful belligerent occupation. A nation or coalition must be prepared for these as early on as possible in conjunction with their military planning. These preparations are known as branches and sequels in military planning. “Good campaign plans provide such options for both the operation underway (branches), and the period after the coming battle (sequels).”427 With pre-planning such as this a successful belligerent occupation has a better chance to deal with the absence of a functioning government.

Dealing with a functioning government has problems of its own. First, their fellow citizens may not want to cooperate with a government that was warring against the victors.428 Allies might be similarly disposed against using the vanquished government.429 The vanquished government may try to accomplish changes via promulgation by rules, regulations, and other governance in varying degrees of opposition to the occupation. Warnings contained in earlier

Field Manuals set this out

[t]he theory and actual operation of its government including the

titles, functions, backgrounds and names of officials in a position

to help or hinder the mission of the occupying force…All facts which

may affect the mission, such as political parties, factions and cleavages,

unofficial persons wielding political or other power both in the central

government and in political subdivisions.430

427 Read, Steven N., "Planning For The Unplannable: Branches, Sequels And Reserves, School Of Advanced Military Studies Monographs" Cgsc.Contentdm.Oclc.Org, 1990, p. 6. http://cgsc.contentdm.oclc.org/cdm/ref/collection/p4013coll3/id/1851 (Accessed 20 Mar 2019). 428 Manchester, William, American Caesar, Douglas Macarthur, 1880-1964, Little, Brown, 2008, p. 492-493. 429 Id., p. 493-496 430 "FM 27-5/OPNAV 50E-3 US Army And Navy Manual Military Government And Civil Affairs" Loc.Gov, 1943, https://www.loc.gov/rr/frd/Military_Law/pdf/mil_gov-civil_affairs.pdf (Accessed 17 Mar 2019).

145

With careful consideration and solid planning, the Occupying Power may finds advantages in working with a functioning vanquished government. In either case with solid yet flexible planning a belligerent occupation leading to a return of sovereignty to the vanquished is possible.

3.2.4 Homogenous occupied population?

The homogeneity of the population may hold some keys for a successful occupation. In the planning phase the homogeneity of the population must be considered to determine the strategy to be employed by the occupiers. Homogenous groups are less likely to have internal threats431 rising to the level of concern or challenge for the Occupying Power due to similar language, culture, morality, and history. Disparate groups, whether ethnically, culturally, linguistically, or religiously different, have the built in centrifugal force to split the occupied country. Germany was a homogenous country with about 1% of the population being described as Jewish in 1933.432 Home Islands Japan is another homogenous society and although less so today it is still 98.5% ethnic Japanese.433 Such homogeneity also provided for better self- governing in which “[t]he occupation worked when and where it allowed the Germans to govern themselves.”434 Basically, Germans were better at governing Germans than any alien force and as the Americans soon realized upon commencement of occupation that it was the

431 See, Mannix, Elizabeth, and Margaret A. Neale, "What Differences Make A Difference?" Psychological Science In The Public Interest, Vol 6, no. 2, 2005, pp. 31-55. SAGE Publications, doi:10.1111/j.1529-1006.2005.00022.x. (Accessed 15 Mar 2019). There is a whole body of literature in psychology, business, and anthropology regarding homogenous and heterogeneous groups, work forces, and societies. 432 German Jewish Refugees, 1933–1939. https://www.ushmm.org/wlc/en/article.php?ModuleId=10005468 (Accessed 2 April 2018). 433 The World Factbook — Central Intelligence Agency. https://www.cia.gov/library/publications/the-world- factbook/geos/ja.html (Assessed 2 April 2018). 434 Peterson, Edward N., The American Occupation of Germany: Retreat to Victory, Wayne State University Press, 1978, p. 10.

146

German people that would have to choose their future albeit with some initial tutelage.435

Even as to the reunification of the four sectors of occupation436 there was a distinctly German push. General “Clay clearly saw the need for German reunification, which was the fervent desire of most of the Germans he was trying to govern.”437 Thereafter the Americans at all levels of the occupation pushed for complete reunification on economic issues through a committee (Wirtschaftrat), but failing this due to French and Russian resistance, established bi- zonal administration with the British as the first step toward complete German reunification that was finally completed in 1989, over 44 years later. Due to the homogeneity of the German population that later reunification has proceed smoothly. Likewise, the homogeneity of Japan assisted in having the same ethnicity, culture, language, and religion. Not to belabor the point but similarity appears to be a unifying element especially after a disorienting event such as losing a war.

Iraq was and is totally different from both Germany and Japan in that it has three distinct major ethnic groups with some very bitter internecine Iraqi history. Iraq was created in 1919 by the

Treaty of Versailles but “…there was no Iraqi people; history, religion, geography pulled the people apart, not together. Basra looked south, toward India and the Gulf; Baghdad had strong

435 Ziemke, Earl F., The U.S. Army In The Occupation Of Germany, 1944-1946. Center Of Military History, United States Army, 1975, p. 447. 436 See, "Allied Occupation Of Germany, 1945-52" 2001-2009.State.Gov, 2019, https://2001- 2009.state.gov/r/pa/ho/time/cwr/107189.htm (Accessed 18 Mar 2019). “After Germany's defeat in the Second World War, the four main allies in Europe - the United States, Great Britain, the Soviet Union, and France - took part in a joint occupation of the German state. With the original understanding that the country would eventually be reunified, the Allied Powers agreed to share the responsibility of administering Germany and its capital, Berlin, and each took responsibility for a certain portion of the defeated nation. This arrangement ultimately evolved into the division of Germany into a Western and an Eastern sector, thereby contributing to the Cold War division of Europe.” 437 Peterson, Edward N., The American Occupation of Germany: Retreat to Victory, Wayne State University Press, 1978, p. 183.

147 links with Persia; and Mosul has closer ties with Turkey and Syria.”438 Furthermore, the British had ideas of acquiring valuable lands but did not apparently realize the differences in the new

Iraq. Those differences directly did not establish a homogenous population but rather one that contained “…about half Shia Muslim and a quarter Sunni, with other minorities from Jews to

Christians, but another division ran across the religious one: while half were Arabs, the rest were Kurds (mainly in Mosul), Persians or Assyrians.”439 With such a diverse population thrown together the result should have been foreseen. First the Arabs seeking independence rose against the British from July to December 1920. This insurrection “shook the British government badly…The practical and cheap solution…was to find a pliable Arab ruler.”440 This insurrection was suppressed with King Faisal announced as the King of Iraq on 23 August 1921 in “…an attempt to set up institutions of self-government under British control”441 to assuage Arab demands. This gave rise to the Kurdish Insurrection of June 1922 to July 1924 that sought to rid their lands of both the British and the Arabs. Again the British suppressed the insurrection while granting “…considerable autonomy to the Kurds.”442 This resulted in many leaders being assassinated, continual Kurdish uprisings, and minority Sunni rule, leading to a pattern of every group fighting every other group in a reflection of the Hobbesian world. Such hate and discontent fueled the cleavages in the country to the point during the joint US/UK occupation that a Shia representative, Izzadin Salim said when the Sunnis were boycotting the Interim

Council “[i]t’s important in establishing the interim government to reduce the opposition that the Governing Council faces in many regions. We need to include all elements of Iraqi

438 MacMillan, Margaret, Paris 1919: Six Months That Changed The World. Random House, 2003, p. 397. 439 Id., p. 398. 440 Id., p. 408. 441 Hourani, Albert, A History Of The Arab Peoples, The Belknap Press Of Harvard University Press, 1991, p. 319. 442 Dupuy, R. Ernest, and Trevor N. Dupuy, The Encyclopedia Of Military History, Harper & Row, 1986, p. 1006.

148 society.”443 The seeds of harmful disquietude had been established with the creation of a state with many diverse peoples making it easy to blame every problem on everybody else every time. A state divided along many different axes is more likely to be a poor candidate for belligerent occupation with the introduction of yet another force. Yet even this problem can be carefully considered and planned for to boost the chances to assist the belligerent occupation and return sovereignty to the vanquished.

3.2.5 Length of war prior to the belligerent occupation

Another indicator is the length of the pre-occupation war in terms of the number of months of combat that transpired before the occupation began. The longer the war the more likely the population may be ready for peace even under occupation. Quite frankly the population may be tired of war in a short war but more so in a longer one. War weariness caused “[t]he

Germans [to be] remarkably docile, relieved that the war was ending, apprehensive about the future, but far from being the incorrigible Herrenvolk [master race] the Americans had expected.”444 Others reported that “[f]or their part, the Germans civilians generally reacted passively to the arrival of the occupation forces…one became more and more conscious that the war with its dreadful air attacks was over….”445 For many Germans they were “…now free from the Nazi, there was no Gestapo now to summons, disturb, arrest, torture or persecute us.”446 With all of the death, destruction, and other loss, there was a “strong…sense of relief

443 Bremer, L. Paul, and Malcolm McConnell, My Year In Iraq. Simon & Schuster, 2006, p. 356. 444 Ziemke, Earl F., Improvising Stability and Change in Postwar Germany, p. 57 in Wolfe, Robert, Americans as Proconsuls, Southern Illinois University Press, 1984. 445 Bessel, Richard, Germany 1945, HarperCollins Publishers, 2009, p. 171 446 MacDonogh, Giles, After The Reich: The Brutal History Of The Allied Occupation, Basic Books, 2007, p. 64.

149 that the fighting was over….”447 The German civilians were war weary and wanted the fighting especially the air bombardment to end. In Japan, the humiliation from the defeat and surrender had rendered the people according to John Gunther “…dazed, tottering, and numb with shock.”448 General MacArthur saw that the Japanese world had been crushed “[i]t was not merely the overthrow of their military might – it was the collapse of a faith, it was a disintegration of everything they believed in and lived by and fought for. It left a complete vacuum morally, mentally, and physically.”449 Even the Tokyo Trials [IMTFE] were accepted by the Japanese people with “…passive acceptance or apathy.”450 Reluctance by the Japanese to discuss the war and occupation lingers as it is not spoken of in public.451 The war in Iraq was over in about six weeks from 19 March to 1 May 2003.452 High technology coupled with heroism permitted this rapid conclusion then a period of sporadic fighting before the wheels started to fall off with a guerilla war and insurgency after the belligerent occupation. With the

Battle of Fallujah II453 in November and early December 2004 concluded there was a feeling that victory was at hand. With the January 2005 elections this feeling of hope continued. Yet a short war influenced short memories and the guerrilla war and insurgency picked up in the late

447 Bessel, Richard, Germany 1945, HarperCollins Publishers, 2009, p. 79. 448 Manchester, William, American Caesar, Douglas Macarthur, 1880-1964. Little, Brown, 2008, p. 465. 449 Id., p. 466. 450 Futamura, Madoka, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg Legacy, Routledge, 2008, p. 17. 451 Id., Chapters 4 and 5. Author’s note: The only mention of the Okinawan Occupation during my two years assigned there was with a Japanese Prosecutor when I asked for the release of a US Serviceman in a telephone call. He told me that Americans during the occupation were honorable and, as such, my word could be trusted so that no formal, written request was needed. This occurred perhaps due to my many previous meetings with this Prosecutor and other such requests for jurisdiction over US Service Members to try them for alleged crimes. No other Japanese official, Military Officer, or civilian ever mentioned the occupation despite many opportunities to do so and some prompting. Occasionally, protestors would still invoke the occupation as a reason for some action, usually to obtain the movement of Futenma Air Station. 452 See, Trainor, Bernard E, and Michael R Gordon, Cobra II: The Inside Story Of The Invasion And Occupation Of Iraq 2nd ed., Vintage Books, 2013. 453 Id.

150 summer of 2005. There was no war weariness in Iraq as there was in Germany and Japan.

Currently that war weariness may be one of the impetuses for the fairly peaceful transformation occurring in Iraq.454 The length of the war preceding the belligerent occupation is another indicator of the possibilities of success. When considered separately perhaps any ongoing fighting such as guerilla warfare and insurgency may render the vanquished population subject to war weariness. Nevertheless, war weariness should be considered in developing a solid yet flexible plan for any belligerent occupation.

3.2.6 Size of the occupied State and 3.2.7 Number of occupation forces.

It is important to consider these two indicators together. The sixth indicator, the size of the occupied State, and the seventh indicator, the number of occupation forces available to cover that occupied State are inextricably related when planning for the belligerent occupation.

That sixth indicator is the size of the country in terms of area measured in square miles. Large countries require large forces in occupation yet so could smaller countries or parts of larger countries. Viewing the size of the American Zone in Germany at 41,000 square miles out of the total occupation of 137,846 square miles, this is roughly the size of Kentucky but with five times the population, US troops in that zone numbered about 400,000.455 Japan was listed as an occupied area of 377,298 square miles with 450,000 Americans in the occupation force. When compared with the size of Iraq at 437,072 square miles of territory to be covered by about

454 Adnan, Ghassan, and Isabel Coles, "Baghdad Blast Walls Come Down". The Wall Street Journal, 2018, p. A7. 455 Ziemke, Earl F., The U.S. Army In The Occupation Of Germany, 1944-1946. Center Of Military History, United States Army, 1975, p. 396 and footnote 1. The 41,000 square miles included the Bremerhaven enclave and the American Berlin Sector.

151

150,000 US troops and 46,000 British troops, reduced in 2004 to 4,100,456 the force size was too small to promote a successful belligerent occupation. In all three cases of US belligerent occupation there was a large territory to be occupied and governed by US and allied forces. The ratio of occupation troops to territory can be reduced to a simple equation for quick comparison. In Germany there were 9.75 troops per square mile while in Japan there were nearly 12 US troops for each square mile. In Iraq, at the height of US and UK military power there were only about 196,000 troops covering the largest of the three countries in this comparison. The ratio during the war and during early occupation was a little over 2 troops to the square mile. If the troop strength in Iraq was measured after the British drawdown in 2004 the ratio is about one trooper for each three square miles.457 Clearly this level of force strength is out of line with the earlier occupations in both Germany and Japan. Based upon these numbers it would appear that General Skinseki was more than likely correct when he testified that the number of troops needed to occupy Iraq would be several hundred thousand.458 Even if welcomed as liberators the number of troops in Iraq was too small even to provide physical

456 Iraq War In Figures" BBC News, 2011, http://www.bbc.com/news/world-middle-east-11107739 (Accessed 10 Apr 2018). 457 See, Dupuy, Trevor N. Numbers, Predictions, And War. Hero Books, 1985. “This remarkable book is the result of a series of studies undertaken for the U.S. Department of Defense and for the British Defence Operational Analysis Establishment to determine the extent to which historical experience could provide a basis for predicting battle outcomes. Colonel Dupuy used historical data as the basis for a set of theoretical formulas which he named the Quantified Judgment Model, or QJM. He then applied these formulas to re-fight a number of major battles including the Napoleonic battles at Austerlitz and Waterloo, Gettysburg and Antietam in our Civil War, the German Somme Offensive in 1918. The application of the QJM gave results that conformed between 92 and 95 percent with historical outcomes.” The Dupuy Institute. QJM is Power (P) is equal to the Force Strength(S) x the environmental and operational factors (Vf) x Combat Effectiveness Value stated as P = S x Vf x CEV. See also, Dupuy, Trevor N., Understanding War, Paragon House Publishers, 1987, Chapters 8-20. Colonel Dupuy was Professor of Military Science at Harvard University. See also, Wells, Matthew, "Casualties, Regime Type and the Outcomes of Wars of Occupation" Conflict Management and Peace Science, vol. 33, No. 5, 2016, pp. 469-490. SAGE Publications, doi:10.1177/0738894215570434. (Accessed 13 Apr 2018). 458 Hearing of the Senate Armed Services Committee, The Fiscal Year 2004 defense Budget, testimony of General Eric Shinseki, 25 February 2003. See, USA TODAY, "Army Chief: Force To Occupy Iraq Massive WASHINGTON (AP)" 2003 (Accessed 16 Apr 2018).

152 control of the civilian population and provide for basic internal security. Iraq with vast borders and complex urban areas that spread out for miles needed many more troops than those available for the occupation. Sadr City in Baghdad maybe the world’s largest slum consisting of an area approximately five mile by five mile area459 with between 2.5 and 3.5 million people.

There was an uprising in this area from August to October 2004. In an effort to quell the violence and regain control to provide security, the US responded but “…understanding that they lacked the manpower to control such a large population, and lacking resources and enablers not yet available in 2004, Task Force Lancer focused on the most destitute and violent areas in Sadr City’s northern reaches….”460 After a wall was installed to segregate this “city” from the other neighborhoods, city officials and religious leaders themselves began removing mines and IEDs. Large urban areas likewise require large troop concentrations to provide basic control and security as evidenced by the Sadr City example. Planning for the force size of any putative occupying power should be based on the size of the area or country to be under belligerent occupation. Establishing control and security then providing other required services necessitates size considerations for both the area to be occupied and the force to perform that task.

3.2.8 Population of the occupied state

The aforementioned occupation situation in Sadr City helps us to focus on another indicator for successful occupation planning. We must also consider the size of the population to be

459 Spencer, John, "Stealing The Enemy's Urban Advantage: The Battle Of Sadr City - Modern War Institute" Modern War Institute, 2019, https://mwi.usma.edu/stealing-enemys-urban-advantage-battle-sadr-city/ (Accessed 1 July 2019). 460 Bowers, Christopher O., "Future Megacity Operations--Lessons from Sadr City" Military Review, May-June 2015, 2015, https://usacac.army.mil/CAC2/MilitaryReview/Archives/English/MilitaryReview_20150630_art006.pdf. (Accessed 17 Apr 2018).

153 occupied after the conflict has subsided or ended. Germany had a population nearing 70 million persons after the war. Japan’s populace was almost 72 million despite the losses during the war. Inhabitants of Iraq, post-war, were over 25.5 million. Simplistically, the ratios of population to occupying force should be considered. Post-Second World War, considering the American

Zone, with a populace of 15.5 million persons there was one US troop for 39 Germans. In Japan, the population was about 72,000,000 with an occupation force of 450,000 for one US troop for each 160 Japanese citizen. Iraq had about 25,500,000 residents with 196,000 original occupying forces for a ratio of 130 Iraqis to the single occupier but soon after the British drawdown that ratio was closer to one troop for each 166 Iraqis. This ratio is closer to that in Japan but with a short war compounded by the lack of a military defeat, no expectation of an occupation, and no indigenous police force. As these numbers indicate there is a paucity of occupation forces for security and control let alone the other requirements that the Occupying Power must perform.

There are no shortcuts to belligerent occupation such that the occupation force must be sizeable to the situation with sufficient strength to provide for control and security first then to perform the requisite tasks of that effort. Planning for the size of the vanquished population is imperative.

3.2.9 Length of the occupation.

In the last eight decades, the length of time the occupied state is in fact occupied is another indicator of the successful occupation. Long occupations have transpired prior to those of

Germany and Japan but when the length of time is considered with this small number the longer occupations seem to be successful. Looking at the number of months that the vanquished are occupied is telling. Germany was occupied from October of 1944 until 5 May

154

1955 that is 128 months of occupation. Germany was the longest belligerent occupation by the

US. Such a length of time would permit transference knowledge to occur meeting the goals set forth for this occupation. Japan’s Home Islands were occupied for 81 months. During the occupation, “[t]hese innovations [land, labor, electoral, constitutional, educational, and gender reforms] did not merely create an arena in which democracy might flourish but also involved the Japanese themselves in constructing such an arena.”461 A great deal changed in Japan, the

Emperor was reduced from god to human in Article 1 of the new Constitution that provides the

Emperor is the “…symbol of the State and of the unity of the People, deriving his position from the will of the people with whom resides sovereign power.”462 War crimes trials under the punitive authority of the IMTFE463 were completed with trials for major war criminals called

“class A suspects” and minor war criminals called “Class B” usually military officers accused of having formal responsibilities for atrocities and “Class C” suspects usually soldier accused of having carried out these atrocities.464 Under the Charter of the IMTFE, Article 5, jurisdiction was based upon three types of crimes that could be prosecuted; those being crimes against the peace, conventional war crimes, and crimes against humanity.465 The Emperor was not tried by the IMTFE this despite “[t]he military doctrine of unquestioning obedience to superior officers was heightened by the fact that such orders were explicitly given ‘in the name of the

461 Dower, John W., Embracing Defeat: Japan in the Wake of World War II, W.W. Norton, 2000, p. 245. 462 THE CONSTITUTION OF JAPAN" Japan.Kantei.Go.Jp, 2018, http://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html Article 1. (Accessed 20 Apr 2018). 463 As to the legality of the Tribunal, “[o]n several petitions for review, the [US] Supreme Court has upheld the legitimacy of such tribunals. Only in Milligan did the Court limit the jurisdiction of such tribunals—ruling that U.S. citizens could not be subject to such commissions as long as the local courts were open.” Lacey, Michael O. "Military Commissions: A Historical Survey" Loc.Gov, 2002, https://www.loc.gov/rr/frd/Military_Law/pdf/032002.pdf (Accessed 21 Apr 2018). 464 See, Wilson, Sandra et al., Japanese War Criminals: The Politics Of Justice After The Second World War, Columbia University Press, 2017, p. 7. 465 Trial of Japanese War Criminals, Government Printing Office, 1946, p. 40.

155 emperor.’”466 Japan had greatly changed under the occupation and had a constitution albeit with American assistance. Japan was transformed.

A lengthy belligerent occupation may increase the chances for a successful outcome if we rely upon the occupations of Germany and Japan as the baseline as both of these were long occupations. In the twentieth century, long belligerent occupations, those over three or more years, had more success especially after the Second World War. Centering on the belligerent occupations, there are two outcomes graded as failures by Edelstein; the Cuban occupation after the Spanish-American War and the Rhineland efforts post-World War One. Regarding

Cuba, Edelstein provides “[t]he inability to foster stability in Cuba renders the first occupation of Cuba a failure.”467 Occupation in the Rhineland is a failure due to the inability to solidify peace in central Europe468 after the “war to end all wars.” Two belligerent occupations, that of

The Philippines lasting from 1898 until 1902 and the other in southern Korea, are graded as mixed outcomes. Since The Philippines did have a democratic form of government albeit quite weak yet there was “…as an indirect cost, the U.S. presence in East Asia contributed to animosity between the United States and Japan in the years before World War II”469 that left the country off balance leading to the mixed classification. Occupation of southern Korean

(1945-1948) was labeled as mixed after the U.S. installed an anti-communist leader (Syngman

Rhee) while the South Koreans had “…independently chosen a more socialist government”470 yet the Rhee government was a demanding and difficult ally leading to a great deal of coercion

466 Tanaka, Toshiyuki, Hidden Horrors: Japanese War Crimes In World War II, Westview Press, 1996, p. 201. 467 Edelstein, David M. Occupational Hazards: Success And Failure In Military Occupation, Cornell University Press, 2008, p. 178 468 Id., p. 181. 469 Id., p. 178. 470 Id., p. 187.

156 by the South Korean government471 likely with the U.S. overlooking this intimidation due to the menace by the Soviets, Chinese Communists, and their allies in northern Korea.

Success was obtained in the longer belligerent occupations of Italy, Germany, Austria, Japan, and the Ryukyus Islands (Okinawa) with the shortest of these being the five years of occupation in Italy and the longest in the Ryukyus Islands lasting nearly twenty seven years. Accepting this is a small number of cases it initially seems to support the proposition that long belligerent occupations produce more success.

Clearly the successful belligerent occupations all transpired at the end of the Second World War but this was not universal as Edelstein rates the occupation of southern Korea as a mixed result.

Mixed results can be summarized as

[t]he three-year occupation by the United States of the area approximating present-day South Korea, following the liberation of Korea from Japan, was characterized by uncertainty and confusion. This difficult situation stemmed largely from the absence of a clearly formulated United States policy for Korea… United States officials were slow to draw up long-range alternative plans for South Korea.472

At the Cairo Conference between China, Britain, and the US Korea was discussed and in a

December 1943 communique reported that the three powers “…mindful of the enslavement of the people of Korea, are determined that in due course Korea shall become free and

471 See, Hwang, Su-kyoung, Korea's Grievous War, University of Pennsylvania Press, Inc., 2016. See also, Suh, JaeJung, Truth and Reconciliation In South Korea: Between The Present And Future Of The Korean Wars, Taylor and Francis, 2013. 472 Matles Savada, Andrea, and William Shaw, Eds., "South Korea - South Korea Under United States Occupation, 1945-48" Countrystudies.Us, 1990, http://countrystudies.us/south-korea/9.htm (Accessed 2 Apr 2019).

157 independent.”473 The planning for the Korean peninsula was of a general nature lacking specificity and clarity other than for US Forces to occupy south of the 38th parallel while Soviet

Forces occupied north of that line. These two areas were to be reunited but southern “…Korea was a hotbed of unrest during the occupation. Soviet agents had penetrated Korea during the time of Japanese rule and formed cadres of saboteurs and political agitators. The Korean people, fed up with the Japanese, were receptive to any form of opposition.474 A lack of overall planning acerbated by a nationalistic motivation of the occupied contributed to the mixed results rating of this occupation by American troops.

In the post-Second World War era, the United States knew how to organize and execute a successful belligerent occupation. The difference appears to be the whole-of-government organizational thought and planning prior to the military execution of the preferred occupational strategy. Recall the constant academic thought and papers during the 1930s, the field maneuver testing of these ideas, and the cadre educated in military government coupled with a well-planned and coordinated post-war occupation strategy contributed to these successes. In the intervening years from the end of the post-Second World War occupations to the occupation in Iraq much of this hard earned knowledge about occupation planning and execution was lost or forgotten. General Eisenhower wrote “…plans are useless, but planning is

473 "The Avalon Project: CAIRO CONFERENCE 1943" Avalon.Law.Yale.Edu, 2008, http://avalon.law.yale.edu/wwii/cairo.asp (Accessed 19 Mar 2019). 474 "Unit History Of The 31St Infantry Regiment" 31Stinfantry.Org, 2014, http://www.31stinfantry.org/wp- content/uploads/2014/01/Chapter-8.pdf (Accessed 19 Mar 2019). See also, Blair, Clay, The Forgotten War: America In Korea, 1950-1953, Naval Institute Press, 2003.

158 indispensable”475 and I agree as I re-emphasize this statement regarding belligerent occupation planning.

3.3 Occupation strategies

Edelstein indicates there are three general types of occupation strategies available to the

Occupying Power: accommodation, inducement and coercion.476 Accommodation as an occupation strategy “…attempts to satisfy the nationalist demands of an occupied population by incorporating elements of that population into the governance of the occupied territory.”477

Arguing for accommodation, Edelstein opines that the Occupying Power must identify and obtain the cooperation of local elites. Secondly, these elites must be able to control the local population. Absent these two elements the occupation will likely not be successful. Local competition for the favors of the Occupying Power may ignite nationalistic forces in the occupied State promoting resistance, insurrection, or guerilla warfare. Even choosing the right elites according to Edelstein may cause them to lose credibility with their own occupied countrymen so the chosen elite must be mindful of their compatriots. He concludes that there may be a tangential impact of the accommodation strategy of having “…the added benefit of amplifying the sense of external threat that an occupied population perceives”478 so that the

Occupying Power is viewed as less of a threat vis-à-vis the external threat.

475 Eisenhower, Dwight David, and Louis Galambos, The Papers Of Dwight David Eisenhower, Johns Hopkins Press, 1989. This was in a letter from Eisenhower to Hamilton Fish Armstrong dated December 31, 1950, p. 1516. 476 Edelstein, David M., Occupational Hazards: Success And Failure In Military Occupation, Cornell University Press, 2008, p. 49. 477 Id. 478 Id., p. 50.

159

Inducement is the next occupation strategy Edelstein proposes wherein Occupying Power provides resources to the occupied “…in an effort to buy its acquiescence.”479 Again, the greater the devastation in the occupied State the more likely the strategy of inducement might succeed but it has the potential to be extremely costly for the Occupying Power. However, coupled with an external threat, a strategy of inducement could establish the benevolence of the occupier. Realizing this proposition, the United States developed the Marshall Plan to utilize

“…American ‘economic leadership’ to rebuild Europe in response to the Communist threat….”480 The US provided the United Kingdom, France, Italy, and Austria with aid totaling

$4.47 billion in 1946 and 1947 or about $51.65 billion in today’s money.481 Even today this is an expensive effort but after the Second World War this was a very expensive endeavor.

Conceding that “[i]nducement alone cannot solve the political problem of nationalism that is at the heart of the difficulty of occupying another society”482 he question how much of these resources are enough to conclude a successful occupation. Acknowledging that inducement is a necessary constituent of a successful occupation, Edelstein ends this section with the idea that inducement cannot be singularly sufficient to produce success.

Coercion is the last strategy in Edelstein’s trilogy of possible occupation stratagems. Use or the threat of use of military force is the coercion that can quell the population. Using force is actual coercion while the threatened use of military force is latent coercion in this model. Edelstein contends that “[u]nless actual violence eliminates those who would resist the occupation,

479 Id., p. 51. 480 Steil, Benn, The Marshall Plan: Dawn Of The Cold War. Simon & Schuster, 2018, p. 87. 481 Id., p. 190. Britain $3.75 billion loan that Steil calculates as $46 billion in today’s money and on p. 221 France, Italy and Austria received $522 million expressed as $5.65 billion in today’s money. 482 Edelstein, David M., Occupational Hazards: Success And Failure In Military Occupation, Cornell University Press, 2008, p. 51.

160 coercion may a have the adverse effect of generating more recruits to the opposition.”483 He indicates that the use of force by military police will only cause greater hostility between the occupied and the occupier. Any threatened use of force in law enforcement by the Occupying

Power must be both credible and clearly communicated to “…convince the population that it is willing to pay the costs that may inhere in the use of actual violence to control an occupied population.”484

In Germany, as has been developed, the initial occupation strategy was to be coercive. The number of US and Allied forces alone may have been enough to be at least latently coercive.

Photographs of the era show US Forces armed when outside of the garrisons or headquarters485 so there existed a very real threat of force being employed. Several era photographs show the use of trucks with machine guns and tanks deployed as latent coercion to keep Displaced

Persons (DPs) and Prisoners of War peaceable and under control.486 The recognition of Soviet intransigence changed the approach of the United States with the Truman Doctrine to support free peoples everywhere challenged by outside pressures and the Marshall Plan487 to finance the economic recovery, there was a concomitant change in the occupation policy from coercive to accommodating and inducing.

483 Id., p. 53. 484 Id., p. 54. 485 Frederiksen, Oliver J., The American Military Occupation Of Germany, 1945-1953, Historical Division, Headquarters, United States Army, Europe, 1953, Photographs p. 67 and 87. See also, Ziemke, Earl F., The U.S. Army In The Occupation Of Germany, 1944-1946. Center Of Military History, United States Army, 1975, Photographs p. 271, 319, and 340. 486 Ziemke, Earl F., The U.S. Army In The Occupation Of Germany, 1944-1946, Center Of Military History, United States Army, 1975, Photographs p. 356 (DPs) and p. 292 (POWs). 487 See, Steil, Benn, The Marshall Plan: Dawn Of The Cold War. Simon & Schuster, 2018, Chapter 3 Rupture.

161

In Japan the situation was similar in that the original intention was for the occupation to be coercive. What was different was the lack of publically displayed weapons. Even General

MacArthur refused to have body guards despite his regularly scheduled movements that were the same every day rendering him an easy target.488 The only weapons displayed were the military police to keep order among the occupation forces and the Honor Guard at MacArthur’s

Headquarters. Several influences may have combined to achieve this occupation situation.

General MacArthur said through a spokesman “[w]e must restore security, dignity and self- respect to…a warrior nation which has suffered an annihilating defeat.”489 A Japanese historian summed up the distaff side of the combination: “…to the Japanese there was… a large measure of self-gratification and comfort in the conformity to an exacting set of new rules.”490 Another

Japanese scholar asserted “[i]nterestingly, the Japanese seem to have welcomed the United

States as an occupying power; at least, they did not offer any resistance or insurgency from the beginning to the end of the occupation.”491 These pronouncements were consistent with some of the language contained in the Potsdam Declaration. Specifically, “[w]e do not intend that the Japanese shall be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners.”492 Both of these pronouncements were carried out: the Japanese were not enslaved but rebuilt and as to stern justice 5,706 men and 1 woman tried for war crimes of

488 Manchester, William, American Caesar, Douglas Macarthur, 1880-1964, Little, Brown, 2008, p. 478-479. 489 Id., p. 479. 490 Id. 491 Shunzo, Majima, Just Military Occupation? A Case Study of the American Occupation of Japan, May, Larry, and Elizabeth Edenberg, "Just Post Bellum" And Transitional Justice, Cambridge University Press, 2013, p. 28. 492 The Potsdam Declaration" Birth of The Constitution of Japan, 2003, http://www.ndl.go.jp/constitution/e/etc/c06.html. (Accessed 24 Apr 2018) The Potsdam Declaration, Article 10.

162 those 4,524 were found guilty with a death penalty imposed on 1,041 and 920 executed.493 The rule of law, demonstrating the “…capacity of civilized nations to take effective steps to prevent the destruction of all civilization,”494 prevailed. However, these prosecutions were overcome by external world events and discontinued.

With all of the foregoing, “Douglas MacArthur was the most popular man in Japan”495 so the

Japanese were obedient to their new ruler. The new ruler was mindful of the conditions imposed by the Potsdam Declaration but modified that document as he needed. While reparations were called for in the declaration as well as actively sought by the Soviets, the

British, and the Australians, MacArthur realized that if that transpired Japanese industry would be devastated. By 1947, he announced that there would be neither reparations nor further breakup of the Japanese business system. Indeed, “SCAP stimulated certain areas of entrepreneurship in both deliberate and unplanned ways.”496 The original intention of the

Allies in the Pacific was to be coercive against their former enemy but this later changed to an occupation strategy of accommodation and inducement based on the Truman Doctrine.

In Iraq the reported effort was liberation as “[t]here was no controversy among the Deputies and Principals that the U.S. aim was to liberate not occupy, Iraq.”497 Furthermore, “[p]apers from all agencies—State, Defense, CIA, and NSC staff -- endorses the principle of liberation, warning that, if the Americans were seen as occupiers, we would be inviting guerilla warfare,

493 Wilson, Sandra, et al., Japanese War Criminals: The Politics Of Justice After The Second World War, Columbia University Press, 2017, p. 270. 494 Trial Of Japanese War Criminals, Government Printing Office, 1946, Opening Statement of Joseph B. Keenan Chief of Counsel for the Prosecution at the IMTFE, p. 6. 495 Manchester, William, American Caesar, Douglas MacArthur, 1880-1964, Little, Brown, 2008, p. 476. 496 Dower, John W., Embracing Defeat: Japan In The Wake Of World War II, W.W. Norton, 2000, p. 534. 497 Feith, Douglas J., War And Decision, HarperCollins Publishers, 2008, p. 368.

163 terrorism and political instability.”498 Additionally, the State Department and CIA believed that upon winning the war, there would need to be a long occupation. Ambassador Bremer wrote of the U.S. Forces “[y]ou liberated Iraq from Saddam’s tyranny and then helped the Iraqi people reclaim their country….”499 The influence of these thoughts regarding the occupation could be clearly seen in Ambassador Bremer’s lament “…there is no quick, easy path to renewing a society like Iraq’s, recovering from decades of brutality. We must honor your sacrifices by showing the patience and determination to finish the job.”500 He departed Iraq in June 2004.

Heavily armed Coalition Forces were commonplace and ubiquitous, often even inside the garrisons, dining facilities, and headquarters places normally “secure” and referred to as “inside the wire.”501 Inside the wire, the weapons were usually side arms and rifles but this latent coercion was clear to anyone entering these compounds. Outside the wire, heavy weapons and small arms were prevalent. Security was the main problem.502 At the same time the U.S. wanted to draw down the military503 so weapons were constantly displayed. The use of force occurred in the second assault on Fallujah in November 2004 referred to as Fallujah II involving over 10,000 US Forces and over 2,000 Iraqi Forces.504 That success combined with winning the many other lesser known battles in the second half of 2004 and early 2005 allowed for the drawdown but the displays of weapons persisted and the use of more armed convoys was widespread. Despite the elections and the new government the insurgency began to expand

498 Id. 499 Bremer, L. Paul, and Malcolm McConnell, My Year In Iraq, Simon & Schuster, 2006, p. 397-398. 500 Id., p. 398. 501 See, Saccone, Richard, The Unseen War In Iraq, Hollym International Corp., 2008. 502 Id., p. 188. 503 Rumsfeld, Donald, Known And Unknown: A Memoir, Sentinel, 2011, p. 661-669. 504 Wright, Donald P., and Timothy R Reese, On Point II, Combat Studies Institute Press, 2008, p. 351; See, Sattler, John, and Daniel H. Wilson, "Operation AL FAJR | Marine Corps Association" Mca-Marines.Org, 2005, https://www.mcamarines.org/gazette/operation-al-fajr (Accessed 27 Apr 2018).

164 with multiple groups taking up arms. “Attacks on infrastructure like oil pipelines and electrical pipelines thwarted the restarting of the Iraqi economy. Even though the insurgents were responsible, this often worked exactly as they planned since it stoked anger and resentment toward the Coalition.”505 Insurgents gained strength in late 2005 and “the surge” in 2007 quashed but did not destroy that insurgency. Elements of the insurgency continue today albeit at a reduced incidence. In Iraq, the Coalition led by the U.S. saw themselves as liberators and some parts of the population saw them in that manner but that soon changed so there was an attempt to change to coercive in an effort to destroy the various insurgencies and then later changed again to counterinsurgency methods under General Petraeus.

The next query is how to leave the occupation and this was described in Edelstein’s chapter of the same name. His subtitle may be more meaningful as he answers what he terms the occupation dilemma. That occupation dilemma occurs when “[a]n unfavorable threat environment not only lessen the likelihood of success, it also makes it more difficult for the occupying power to consider withdrawal.”506 Asserting that the occupation dilemma occurs in three stages, Edelstein indicates these three stages are an underestimation of the challenges of the occupation, the increase in those challenges, and lastly, a failing occupation.507 Politicians and journalists underestimate the length of time a war will take to successfully prosecute and complete, an Occupying Power(s) underestimates the difficulties inherent in an occupation or

505 Metz, Steven, and Raymond Millen, "Insurgency In Iraq And Afghanistan: Change And Continuity" Air University, http://www.au.af.mil/au/awc/awcgate/cia/nic2020/insurgency.pdf. (Accessed 27 Apr 2018). 506 Edelstein, David M., Occupational Hazards: Success And Failure In Military Occupation, Cornell University Press, 2008, p. 88. 507 Id. p. 88-89.

165 overestimates their own abilities to persuade the occupied that they need the occupation.508 In spite of the over three years of planning by the United States for the occupations after the

Second World War this massive effort did not foresee many things that were found in the belligerent States. Such underestimation resulted in the long occupations in Germany and

Japan where great effort was needed to make these successful in spite of the unusual and unrealized occupation situations. The underestimation of the Iraq Occupation provides a current example. There was significant effort placed on the war planning over many months

“[w]e knew … [o]ur military was well organized, trained, and equipped to win wars. Winning the peace after an enemy regime has been removed is quite another.”509 Unfortunately, the

Pentagon, Central Command (Joint Task Force 4), the Department of State, USAID, and the

National Security Council510 were all working on post war plans without the levels of coordination and necessary discussion as had been accomplished by the same departments in the Second World War.

Edelstein’s second stage is the “make or break” phase for the belligerent occupation as the

Occupying Power has a “growing commitment”511 to the occupied State yet the difficulties proliferate. Despite the great optimism of the Occupying Power the occupied become increasingly dependent on them with the concomitant economic and political investment only growing larger for the occupier. “While the nationalist impulses of the occupied citizen push for

508 Id. 509 Rumsfeld, Donald, Known And Unknown: A Memoir, Sentinel, 2011, p. 479. 510 Id., p. 485. 511 Edelstein, David M., Occupational Hazards: Success And Failure In Military Occupation, Cornell University Press, 2008, p. 89.

166 withdrawal, pragmatic needs require the occupying power to stay.”512 In the aftermath of the

Second World War, the Germans and Japanese became dependent upon the Allies, especially the United States respectively for just about everything to sustain their lives with food, shelter, and other basic necessities among the top priorities. Being vanquished these two countries were in really terrible straits along with much of formerly Nazi occupied Europe and the recently ended occupation by the Japanese were also in desperate need. Absolute devastation reduced the nationalistic tendencies of the defeated but the overwhelming needs just for survival were tantamount to total capitulation of nationalism. Iraq was different in that there was little devastation, hunger, or disease threatening the basic needs of the people when compared to the late world war. Absent the levels of the aforementioned items, the nationalist tendencies were ascendant resulting in the insurgencies beginning and developing. Certainly

[i]n January 2005 Iraqi intelligence service director General

Mohamed Abdullah Shahwani said that Iraq's insurgency

consisted of at least 40,000 hardcore fighters, out of a total

of more than 200,000 part-time fighters and volunteers who

provide intelligence, logistics and shelter. Shahwani said the

resistance enjoyed wide backing in the Sunni provinces of

Baghdad, Babel, Salahuddin, Diyala, Nineveh and Tamim.513

Accepting these numbers, the insurgents were a relatively small group supported by local co- religionists in and around the capitol compared to the population. As Americans began to

512 Id. 513 Pike, John, "Iraqi Insurgency" Globalsecurity.Org, 2003, https://www.globalsecurity.org/military/ops/iraq_insurgency.htm. (Accessed 30 Apr 2018).

167 provide more electrical power, oil production, and otherwise returning the vanquished to a sense, if not a state, of normal life, the insurgents pushed for more political power although not a true nationalism only a Sunni version. Attributing this to the sharply divided nature of Iraq into essentially three different communities, Sunni, Shi’a, and Kurdish, the challenges only increased for the Occupying Powers in an already complex occupation situation.

In the Edelstein model, the final stage occurs when the Occupying Power “…faces the dilemma of a failing occupation.”514 U.S. commitment to the continued stay after the return of sovereignty to Iraq began to whither as predicted by the Edelstein model. The U.S. withdrew and has subsequently become re-engaged in Iraq notwithstanding the significantly smaller numbers and types of forces involved. This aspect of returning to “occupy” a country previously withdrawn from is cognizable by the Edelstein model and this was seen in his examples in Cuba of US occupation during three specific time periods.

Having considered the occupation strategies, let’s assess the success indicators for ending an occupation. “First, the occupying country must identify an independent, indigenous, and reliable government to which it can return power.”515 Asserting further that this new government should be amenable and supportive of the former occupying State but if this new government cannot be found there will be instability and the possibility of re-intervention.

Careful consideration must be made of this indicator regarding the post-Second World War occupations in Germany and Japan. On 23 May 1949 the Federal Republic of Germany was

514 Edelstein, David M., Occupational Hazards: Success And Failure In Military Occupation, Cornell University Press, 2008, p. 89. 515 Id., p. 87.

168 created in the western zones with Konrad Adenauer as Chancellor.516 He had lost his positions under the Nazis and appointed mayor of Cologne by the Americans was again removed by the

British. He had survived imprisonment and a concentration camp to return to prominence in the post –war years eventually being elected Chancellor by one vote.517 Based upon the

Edelstein indicators for ending an occupation, the German government met all of these indigenous, independent, and reliable. Indigenous Germans were elected and despite the continuing occupation yet were independent of that situation. Indications of a reliable government were the efforts to establish the European Coal and Steel Community (ECSC)518 while joining NATO.519 The ECSC was formed “… to unite European countries economically and politically in order to secure lasting peace.”520 While “NATO promotes democratic values and enables members to consult and cooperate on defence and security-related issues to solve problems, build trust and, in the long run, prevent conflict.”521

Looking to Japan, MacArthur in his “Old soldiers never die” speech summed up the occupation

[t]he Japanese people since the war have undergone the

greatest reformation recorded in modern history, with a

commendable will, eagerness to learn, and marked capacity

to understand, they have from the ashes left in war’s wake

erected in Japan an edifice dedicated to the supremacy

516 See, Wetterau, Bruce, Macmillan Concise Dictionary Of World History, Collier Books, 1986, p. 306. 517 See, Williams, Charles, Konrad Adenauer, Lübbe, 2001. 518 "The History Of The European Union - European Union - European Commission" European Union, 2018, https://europa.eu/european-union/about-eu/history_en (Accessed 1 May 2018). 519 Member Countries, Nato.Int, 2018, https://www.nato.int/nato-welcome/index.html. (Accessed 1 May 2018). 520 “The History Of The European Union - European Union - European Commission" European Union, 2018, https://europa.eu/european-union/about-eu/history_en (Accessed 1 May 2018). 521 "NATO: A Political And Military Alliance" Nato.Int, 2018, https://www.nato.int/natowelcome/index.html#basic. (Accessed 1 May 2018).

169

of individual liberty and personal dignity and in the

ensuing process there has been created a truly

representative government committed to the advance

of political morality, freedom of economic enterprise,

and social justice.522

It is alleged that General MacArthur was embellishing the success achieved by the occupation under his command yet even his critics admit “…he sincerely believed these claims.”523 Japan had established a great democracy evidenced by the elections where “Governors of the country’s forty-six prefectures, who by tradition had been appointed by Tokyo, were being chosen locally.”524 The economy began to revive in 1947 aided by US military personnel and government spending, the Korean War, along with some rehabilitated industries so that by

1952 “[u]nemployment plummeted, too, and Japan began its steady ascent out of economic depression.”525 Edelstein independently concludes that when the US withdrew from the occupation there “…was a secure and reliable Japanese government in place….”526

Iraq was a confusing tangle of political issues both domestically with the Governing Council and the security situation was always tenuous. Concern about the post-occupation government was regularly discussed with that group but there were unrelenting obstructionists. Specifically,

“…the Kurdish groups and the Shia, SCIRI and Dawa—which had demonstrated their ability to

522 MacArthur, Douglas, "Farewell Address To Congress, April 19, 1951" General Douglas MacArthur Milwaukee Memorial, 2018, http://www.macarthurmilwaukeeforum.com/resources/macarthurs-address-to-congress/ (Accessed 1 May 2018). 523 Dower, John W., Embracing Defeat: Japan in the Wake Of World War II, W.W. Norton, 2000, p. 556. 524 Manchester, William, American Caesar, Douglas Macarthur, 1880-1964, Little, Brown, 2008, p. 501. 525 Yamamoto Misuru, The Cold War and US-Japanese Cooperation in Nagai, Yonosuke, and Akira Iriye, The Origins Of The Cold War In Asia, Columbia University Press, 1977, p. 412-413. 526 Edelstein, David M., Occupational Hazards: Success And Failure In Military Occupation, Cornell University Press, 2008, p. 185

170 greatly complicate the political process at a number of key junctures.”527 Every effort to enhance the political and economic occupation situation required extensive coordination but the de-Baathification policy “… inflamed the minority Sunnis, who saw it as an act of vengeance… they were not all complicit in Saddam’s crimes… some Sunnis… [became] embittered against the American presence in Iraq.”528 As in earlier occupations, services were improved like the generation of electricity where the increase in 2005 was above the pre- occupation level by over 1000 kilowatt hours. “After April 2003, there new projects added to the power grid but when we reached production capacity in 2005 of about 4,500 MW, the estimated power production required also jumped higher.”529 Yet this production did not include the Kurdish region that was quasi-autonomous again demonstrating the internal divisions within the country. So there were still “rolling blackout” throughout much of the country as there had been in the pre-war days but back then Baghdad had the priority for power and had it for between 16 and 24 hours per day. Further alienation against the occupation festered in the urban areas. Success was not for the lack of effort as can be seen by the electrical production increase but still below demand. An increasing demand for electricity is a gauge on the economy, modernization, and well-being of a country. A lack of homogeneity in the population of Iraq may have caused some of the hate and discontent exhibited by the

Governing Council and other prominent Iraqis towards efforts to establish a reliable, indigenous

Iraqi government that could stand its own two feet. Thus Edelstein’s indicator for an indigenous government was met but the independence and reliability of that government was and remains

527 Bremer, L. Paul, and Malcolm McConnell, My Year in Iraq, Simon & Schuster, 2006, p. 349. 528 Rumsfeld, Donald, Known and Unknown: A Memoir. Sentinel, 2011, p. 515. 529 Interview with the spokesman for the Iraqi Ministry of Electricity, Mussab al-Mudaris, "Iraq Electricity" Webapps.Aljazeera.Net, 2013, https://webapps.aljazeera.net/aje/custom/electricityiraq/index.html. (Accessed 2 May 2018).

171 in question. The rating for the Iraqi government must be currently labelled as questionable although improving. Any definitive conclusion regarding Iraq will, perforce, need to wait perhaps for a generation.

Indicator two in Edelstein’s model for occupation success is when “…returning sovereignty, the occupying power must take steps to guarantee that the occupied territory will be…secure.”530

His requirement is that the security of the occupied country must persist beyond the ending of the occupation. Security can be maintained in a number of ways, Edelstein provides by military alliance or direct military aid. Going one step further, I would add “or both” to this indicator.

Usually, the post-occupied State needs a military alliance for its own protection to provide for that gap between the occupier withdrawing and it having some basic defense capabilities.

Alliances may be bilateral or multilateral as in NATO. Either manner of alliance may contain reciprocal guarantees of military assistance or provision only to the previously occupied State.

Any alliance helps the post-occupied State recover under the protective umbrella of the alliance but to provide for their defense they may also require articles, services, and training.531

Direct military aid could help to provide those elements of national defense. Provision of direct military aid could come in many forms depending upon the countries needing the aid and the providers of that aid. If the post-occupied country is capable of providing for their defense in terms of money, manpower or both, their options are good. Should the post-occupied country not have money to purchase defense items, there are several programs available to allow for

530 Edelstein, David M., Occupational Hazards: Success And Failure In Military Occupation, Cornell University Press, 2008, p. 88. 531 "Defense Institute Of Security Cooperation Studies" Discs.Dsca.Mil, 2017, http://www.discs.dsca.mil/_pages/resources/default.aspx?section=publications&type=greenbook Chapter 2, (Accessed 9 May 2018).

172 the lease, delayed re-payment, or gifting of excess defense items in the US military sales regime.532 Providers of the military aid will consider multiple options for military aid to include military sales under government auspices or direct commercial sales with some sort of governmental involvement. Either way of purchasing of material, services, and training for defense allows the country access to most US items.533 In the US Government, the statutory provisions for military sales are controlled under the Arms Export Control Act and contain many limitations and requirements.534 Direct military aid could be contained in some “basing agreement” whereby the aid providing State has an active base or some sort of pre-positioning of equipment and goods arrangement with the post-occupied State. Security for the post- occupied State can come in myriad formats as above, thus the circumstances of the withdrawal may determine which of the menu of items is chosen and agreed to by the States involved.

The post-Second World War cases can be examined to ascertain how these fared by the

Edelstein indicator for securing the post-occupied State. Germany entered into a basing agreement with the United States and there are about 38 bases remaining today. Likewise,

Germany, then West Germany, joined NATO in 1955.535 Germany used both options albeit at different times but the security of Germany was nonetheless safeguarded. Japan was relegated to a small military called the Japanese Self Defense Force536 after the war with strictures placed

532 Id. 533 Id. 534 Arms Export Control Act (AECA), as amended [22 U.S.C. 2751, et. seq.] "U.S.C. Title 22 - FOREIGN RELATIONS AND INTERCOURSE" Gpo.Gov, 2016, https://www.gpo.gov/fdsys/pkg/USCODE-2010-title22/html/USCODE- 2010title22-chap39.htm (Accessed 9 May 2018). 535 Member Countries" NATO, 2018, https://www.nato.int/cps/en/natohq/topics_52044.htm (Accessed 9 May 2018). 536 "Japan Ministry Of Defense" Mod.Go.Jp, 2018, http://www.mod.go.jp/e/index.html. (Accessed 10 May 2018).

173 on its use by Article 9537 of the new constitution. Japan entered into a Treaty of Mutual

Cooperation and Security538 with the United States to provide for the defense of Japan. Of the seven mutual defense treaties entered into by the United States, Germany under the auspices of NATO and Japan with the aforementioned Treaty of Mutual Cooperation and Security have availed themselves respectively of security cooperation as well as direct military aid. Such aid is based on the preferred status of both NATO and Japan as a so-called Major Non-NATO Ally, allows both countries to have access to US items.539 Both countries have a strategic working relationship with the United States Armed Forces with cross servicing agreements. Acquisition and Cross Servicing Agreements (ACSA) allow US forces to exchange most common types of support, including food, POL (Petroleum, Oil, and Lubricants), equipment, ammunition, and transportation.540 More clearly stated both Germany and Japan have utilized Edelstein’s second indicator of their territory being secured by employing both methods of military alliance and direct military aid.

Iraq is not a member of any security organization while also not part of a formal defense treaty with any known State although it has a Strategic Framework Agreement with the US in the battle against the Islamic State.541 Turning then to security cooperation, Iraq is partnered with

537 "THE CONSTITUTION OF JAPAN" Article 9, Japan.Kantei.Go.Jp, 2018, http://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html. (Accessed 10 May 2018). 538 "MOFA: Japan-U.S. Security Treaty" Mofa.Go.Jp, 2017, http://www.mofa.go.jp/region/namerica/us/q&a/ref/1.html. (Accessed 10 May 2018). 539 "[USC 10] 22 USC 2321K: Designation Of Major Non-NATO Allies" Uscode.House.Gov, 2018, http://uscode.house.gov/view.xhtml?req=%28title:22%20section:2321k%20edition:prelim%29 (Accessed 10 May 2018). 540 Id., [USC 10] 22 USC 2342, Cross servicing agreements (Accessed 10 May 2018). 541 Bruno, Greg, "U.S. Security Agreements And Iraq" Council On Foreign Relations, 2008, https://www.cfr.org/backgrounder/us-security-agreements-and-iraq. (Accessed 11 May 2018). The testimony regarding this agreement is that it does not legally obligate the US to come to the defense of Iraq if Iraq is attacked.

174 the US and many western nations as it also accepts military aid from Iran, Syria, Lebanese

Hezbollah, and Russia.542 On the direct military aid side of the equation, “[t]he U.S. has committed a corps-level headquarters to assist Iraq in managing operations and a brigade combat team of over a thousand troops to oversee the training alongside large contingents of

Australian, New Zealander, Italian, Spanish, and Portuguese troops.543 As can be expected from the various types of military aid of differing origins provided by its multiple benefactors, “Iraq will face a difficult challenge in integrating the different streams of security cooperation coming from the U.S.-led Coalition on one hand and the Russian-Iranian axis on the other.”544

Currently, Iraq is not part of collective security organization but has extensive direct military aid benefactors with the concomitant supply chain and parts conundrums.

Lastly, Edelstein indicates that the post-occupied country should not be provided with “…too much military capacity…as those capabilities may be viewed as threatening by other neighboring states.”545 While providing for the security of the post-occupied state, a delicate balance must be struck in order to allow for a defense but not be viewed as a threat to the neighborhood countries. Certainly, a Thucydidean trap should not be permitted to develop in the post-occupation stage around the former occupied state as that may contribute to future conflict. Regarding the post-World War Two occupied States; there was little chance of the re- armament of either as both countries were prostrate and debilitated. Germany had no military

542 Military Analysis: Iraqi Armed Forces" Southfront.Org, 2018, https://southfront.org/military-analysis- iraqiarmed-forces/ (Accessed 11 May 2018). 543 See, CJTF update on the training program at http://www.fayobserver.com/military/soldiers-from-fort-bragg- srd-brigade-combat-team-prepare/article_275e0960-eeef-5d8d-ae556217a34dabf3.html#.VJp3gkA2t0B.twitter (Accessed 10 May 2018) 544 Knights, Michael, "The Future Of Iraq’s Armed Forces" Washingtoninstitute.Org, 2016, https://www.washingtoninstitute.org/uploads/The-future.pdf (Accessed 11 May 2018). 545 Edelstein, David M., Occupational Hazards: Success And Failure In Military Occupation, Cornell University Press, 2008, p. 88.

175 until 1955 and even arming the Federal Border Protection Force546 in 1951 consisting of 10,000 lightly armed personnel raised questions among its neighbors. When the question of German re-armament was addressed in the cold war context of having the Federal Republic of Germany join NATO and the WEU, the answer was to limit the new Bundeswehr to twelve divisions created under NATO auspices and command.547 Germany would not be able to challenge its neighbors having no command or control of its own military in those early years. According to this one of Edelstein’s indicators of a successful end of an occupation, Germany was successful since from their defeat in 1945 to the present they have not threatened their neighbors.

Around the globe in the east, Japan’s Constitution banned the military in Article 9 as it provides

[a]spiring sincerely to an international peace based on justice

and order, the Japanese people forever renounce war as a

sovereign right of the nation and the threat or use of force

(2) In order to accomplish the aim of the preceding paragraph,

land, sea, and air forces, as well as other war potential, will

never be maintained. The right of belligerency of the state

will not be recognized.548

That constitutional provision was observed until General MacArthur established the “National

Police Reserve (NPR). The NPR was renamed a Security Force in 1952 and once again changed

546 "Federal Police Agencies In Germany" German Culture, 2016, http://germanculture.com.ua/germanyfacts/federal-police-agencies/ (Accessed 10 May 2018). 547 "Member Countries" NATO, 2018, https://www.nato.int/cps/en/natohq/topics_52044.htm. (Accessed 10 May 2018). Regarding French fears of Germany’s re-armament, see, Barnet, Richard, The Alliance - America, Europe, Japan, Simon & Schuster, 1983, p. 123-125 548 THE CONSTITUTION OF JAPAN" Article 9, Japan.Kantei.Go.Jp, 2018, http://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html (Accessed 10 May 2018).

176 in 1954 to the Japanese Self-Defense Force. This final naming was authorized under the auspices of the 1954 Self-Defense Forces Law….549 The Japanese Self Defense Force has continued to exist since that time and grown to approximately 310,457 military personnel with

247,157 in active service; a small force given the size of Japan’s population and the economic resources of Japan.550 Compared to their neighbors, China has about 2,700,000 total military troops of whom 2,183,000 are active forces, the Republic of Korea (South Korea) has just over

5.8 million total military personnel with 625,000 in active service, and the Democratic People’s

Republic of Korea has about 945,000 troops backed by 5.5 million reserve force members,

Japan’s self- defense services are indeed small.551 Comparing the JSDF to its neighbors in overall terms of military power utilizing the ranking determined by Global Firepower indicates that Russia is #2, the People’s Republic of China as the #3, and the Republic of Korea as #7 with the Japanese military rated as #8.552 The Japanese Self Defense Force does not deploy its forces abroad but does perform humanitarian and other United Nations missions.553 Japan has not threatened its neighbors despite being significantly outnumbered and outgunned and lacks true

549 Pettibon, Jonathan E., "CAPABILITIES OF THE JAPANESE SELF-DEFENSE FORCE AND ITS IMPACT ON UNITED STATES-JAPAN RELATIONS" Dtic.Mil, 2011, p. 22, http://www.dtic.mil/dtic/tr/fulltext/u2/a542965.pdf (Accessed 10 May 2018). 550 "2018 Japan Military Strength". Globalfirepower.Com, 2018, https://www.globalfirepower.com/countrymilitary-strength-detail.asp?country_id=japan. Accessed 10 May 2018. 551 Id. 552 "Global Firepower - Ranking The World Military Strengths". Globalfirepower.Com, 2018, https://www.globalfirepower.com/ (Accessed 11 May 2018). Global Firepower provides the following information about itself on the website “[s]ince 2006 GlobalFirepower has provided its unique analytical display of data concerning over 135 modern military powers. Our ranking is based on each nation's potential war-making capability across land, sea and air fought with conventional weapons. The results incorporate values related to resources, finances, and geography with over 55 different factors ultimately making up the final rankings. The results provide an interesting glimpse into an increasingly volatile global landscape where war seems all but an inevitability.” Based upon military criteria and modeled as such this rating system provides a common format for the comparison of military forces according to the factors considered by Global Firepower. 553 Pettibon, Jonathan E., "CAPABILITIES OF THE JAPANESE SELF-DEFENSE FORCE AND ITS IMPACT ON UNITED STATES-JAPAN RELATIONS" Dtic.Mil, 2011, p. 27-29, http://www.dtic.mil/dtic/tr/fulltext/u2/a542965.pdf. (Accessed 10 May 2018).

177 offensive capabilities. According to this Edelstein’s indicator of a successful end of an occupation, Japan was successful since from their defeat in 1945 to the present they have not threatened their neighbors. Incidentally, Germany was rated #10 and Japan #8 in the world in

2018 by Global Firepower.554

Iraq remains in the state of flux politically but has a military capability of 168,000 active duty personnel and another 150,000 reservists. In a tough neighborhood this is not a lot of troops and is a small number compared to its own population as well as the size of the country. The quality of training had been an issue555 but this concern may have been laid to rest during the recent successful retaking of territory from the Islamic State.556 Comparing the adjacent states,

Iran possess a military with 534,000 active troops backed up by 400,000 reservists; Turkey maintain 350,000 active military members with 360,000 reserve forces; Syria while in the midst of a civil war with so many factions has over 154,000 troops supported by a like number of reservist, Saudi Arabia’s military consists of 256,000 troops with all but 25,000 in the active forces, and Kuwait has 15,500 uniformed service members with twice that number in reserve.557 Iraq is in the middle of this regional stack with respect to military capability and is not currently capable of threatening its neighbors. As with Japan, Iraq is greatly outnumbered

554 "Global Firepower - Ranking The World Military Strengths". Globalfirepower.Com, 2018, https://www.globalfirepower.com/ (Accessed 11 May 2018). 555 Rumsfeld, Donald, Known And Unknown: A Memoir. Sentinel, 2011, p. 672-674. See also, Bremer, L. Paul, and Malcolm McConnell, My Year In Iraq. Simon & Schuster, 2006; Feith, Douglas J., War And Decision, HarperCollins Publishers, 2008. 556 Adnan, Ghassan, and Isabel Coles, "Baghdad Blast Walls Come Down" The Wall Street Journal, 11 December 2018, p. A7. See also, "One Year On, Baghdad Falls Silent To Mark Defeat Of ISIS" Www.Theepochtimes.Com, 2018, https://www.theepochtimes.com/one-year-on-baghdad-falls-silent-to-mark-defeat-of-isis_2735324.html. (Accessed 11 Dec 2018). 557 "Global Firepower - Ranking The World Military Strengths" Globalfirepower.Com, 2018, https://www.globalfirepower.com/ (Accessed 11 May 2018).

178 and outgunned but building a military force capable of defending itself without becoming a danger to its neighbors. Incidentally, Iraq is rated #47 of the rate 136 countries in the Global

Firepower rankings.558

3.4 Conclusion

Having considered all of the indicators developed by Edelstein in his ground breaking work on general occupation, the need for further development was clear. Edelstein starts with the d and end stages of what I call belligerent occupation and in my view some of his views are the beginning of the jus post bellum phase in my model. He is end focused on and does not deal with the policy and planning that must by necessity occur before his model can begin to exist.

Specifically, there must be control and security prior to consideration of his model. Being aware of this gap, I began developing several other indicators for consideration, this final chart place all of these indicators into a single chart to show the results of this inquiry. See, Table 3-3 below. This Table uses my indicators first as this is the policy and planning sequence that would occur preferably before any actual belligerent occupation of any enemy territory begins. I have argued for these indicators and reiterate that the policy and planning must be tested in field exercise and war games to discover issues and problems prior to implementation in the post – conflict phase. These field tested indicators combined with those articulated by Edelstein should provide for a better belligerent occupation and jus post bellum periods to get to the goal of the return of sovereignty to the rehabilitated vanquished. Just and lasting peace might have a better chance of being achieved.

558 Id.

179

Table 3-3 Compilation of Edelstein and Klein Indicators

Germany Japan Iraq 1. Occupation Yes Yes Minimal planning* 2. Liberated or Defeated Defeated Liberated defeated 3. Functioning No Yes No government at war’s end 4. Homogeneity of Homogenous Homogenous NO (Sharply divided) occupied population 5. Length of war 69 46 1.5 prior to occupation (months) 6. Size of occupied 137,846 377,298 437,072 country (sq. miles) 7. Population of 69,677,000 71,998,000 25,584,000 occupied country 8. Number of 400,000 450,000 150,000 occupation troops (US) 9. Months of 128 81 12 occupation 10. Occupied need Yes Yes Yes help 11. External threat Yes Yes Not overt 12. Credible guarantee High Medium Low of ending occupation 13. Occupation Coercive to inducement Coercive to inducement Inducement and strategy and accommodation and accommodation accommodation to coercive 14. Independent, Yes Yes Questionable reliable government 15. Occupied security Yes Yes No but stabilizing 16. Occupied not a Yes Yes Yes threat to others Germany Japan Iraq *Klein indicators are in bold type

180

Chapter 4 Attempts to Change the World, Legally.

Since the laws of war started to be codified in the mid-nineteen century to the present time,

“…states devote enormous resources to creating and upholding international law in general, and international humanitarian law in particular.”559 There must be some rationale for this amount of legal effort in creating treaties to bind countries under international law. Accepting arguendo that international law may only be “…an expression of states’ will”560 then treaties are significant in an attempt to change the world by legal means. The concept of occupation was such an attempt but subsequent codification has ebbed and flowed since that mid- nineteenth century era. Tracing that development from concept to codification to the present should help in the development of the legal basis for a more ideal belligerent occupation. The planning for a belligerent occupation, discussed in the previous Chapter, has some solid treaty language based on The Hague and Geneva Conventions to establish and conduct that occupation on the path to returning the sovereignty back to the vanquished. That treaty based language is the focus of this chapter.

Despite the originality of the idea leading to the concept of occupation in the post-Napoleonic world of the early nineteenth century, “…both British and French superior courts showed sufficient confidence to identify a distinct status of military occupation, though, in different

559 Fazal, Tanisha M. Wars of Law: Unintended Consequences in the Regulation of Armed Conflict. Cornell University Press, 2018, p. 6. 560 Petallides, Constantine J. "International Law Reconsidered: Is International Law Actually Law?” Inquiries Journal, 2012, http://www.inquiriesjournal.com/articles/715/2/international-law-reconsidered-is-international-law- actually-law (Accessed 1 Apr 2019).

181 ways, both could find limited legal guidance.”561 Conquest had been so ensconced in warfare for millennia that it provided no legal foundation for the new concept of occupation. This dearth of legal principles on which to establish the new concept of occupation, resulted in the

British and French courts dealing with each trial as a case of first impression562 as they forged the new idea of occupation law in the aftermath of both the wars of Revolutionary France and

Napoleon. Thus belligerent occupation became distinct from conquest as occupation developed into “…an established part of the international repertoire”563 despite lacking that solid legal grounding. Scholars, diplomats, and military leaders564 gradually began to comprehend the advantages of this new concept called occupation, despite the initial growing pains as described more completely earlier in Chapter 1.

As the nineteenth century progressed the era of codification regarding the Laws of War was launched with international conferences and the treaties these produced seen as the way to peace: thus the rule of law started to take hold. Yet “…it is difficult to trace a consistent trend of development of the law of belligerent occupation from 1863 to 1914 because of the diversity

561 Stirk, Peter M. R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press, 2016, p. 135. 562 “A case is said to be ‘of the first impression’ when it presents an entirely novel question of law for the decision of the court, and cannot be governed by any existing precedent.” See, Black, Henry Campbell, and Michael J. Connolly, Black's Law Dictionary, 5th ed., West Publishing Co, U.S., 1981, p. 572. 563 Stirk, Peter M. R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press, 2016, p. 135. 564 Scholars supporting occupation law included August Heffter and the better-known Francis Lieber. See, Stirk, Peter M.R. A History of Military Occupation from 1792 to 1914. Edinburgh University Press (2016) p. 6 and Freidel, Frank. Francis Lieber: Nineteenth-Century Liberal, Baton Rouge: Louisiana State University Press, 1947. Diplomats finding advantages in occupation included Metternich, Talleyrand, and Castlereagh. See, Kissinger, Henry. Diplomacy. Simon & Schuster, 1994, Chapter Four, The Concert of Europe: Great Britain, Austria, and Russia. As to military leaders comprehending the usefulness of occupation include General Arthur Wellesley known as Wellington and General U.S. Grant both were adherents of the need for an occupation after war. See, Stirk, Peter M. R. A History of Military Occupation From 1792 to 1914. Edinburgh University Press, 2016, p. 88 and Smith, Jean Edward. Grant. Simon & Schuster, 2002.

182 of views expressed in each of the landmark periods….”565 That tenuous hold was further solidified with the great conferences of 1898 and 1907 at The Hague during which the law of occupation began to be codified. Despite these powerful efforts many questions remained unanswered, some to this day, in spite of the later attempts to clarify and rectify these issues with the Geneva Conventions and their progeny. Treaties to be considered here are the aforementioned Hague Conventions (1899 and 1907) supported by the Geneva Conventions and the Additional Protocols of 1977 to the Geneva Conventions. These four form the treaty based obligations for the victors as they enter into belligerent occupation on the way to returning the sovereignty of the vanquished state back to the people. Since these innovative, if underutilized, international treaties provide the legal guidance on occupation and the return of sovereignty we must consider their specific prescriptions.

4.1 Overview of belligerent occupation law.

Exploration of the “belligerent occupation law” that applies after a war may answer some of the queries regarding the success or failure of an occupation, but this guidance has been found wanting by many scholars, various policymakers, and some military professionals. That need for guidance is due to belligerent occupation law being an attempt to find the balance between

“…the needs of the belligerent occupant to maintain military efficiency and its own security while restricting the means of fulfilling those needs to tests of proportionality that benefit the civilian population of the territory.”566 Issues remain regarding the fulfillment of the treaty-

565 Graber, Doris A. The Development of the Law of Belligerent Occupation, 1863-1914, A Historical Perspective. AMS Press, 1949, p. 291. 566 Reisman, W. Michael, and Chris T. Antoniou. Laws Of War: A Comprehensive Collection Of Primary Documents On International Laws Governing Armed Conflict. Vintage, 1994, p. 231.

183 based requirements of the victors found in the Fourth Geneva Convention in Article 47 -78 and both of the earlier Hague Conventions to return a state to the vanquished population via occupation. What can an occupier to do under the available treaties? We will try to ascertain these answers by starting with the idea regarding the applicability of belligerent occupation.

The actual texts will be used as much as practicable to demonstrate that there is extant law for the formulation of that belligerent occupation and beyond. Employing the actual text of the treaties allows meaning to be seen and, this, augmented by the use of the commentary to the treaties, will show that these treaties are clear in developing the legal basis for a belligerent occupation with a degree of specificity.

Belligerent occupation becomes an issue as soon as an enemy state’s territory is initially invaded and lasts until after it is defeated in a war, enters into occupation, and is re-integrated back into the international community. A commander must secure the lines of communication

(LOCs) once territory is taken to continue on the offensive and obtain reinforcements, supplies, and ammunition. Further the commander must secure the rear areas away from the fighting to prevent sabotage and other miscreant actions. Security is one of the nine principles of war contained in Field Manual 3-0567 and must be attained rapidly in occupied areas. A commander does not have an option as regards this security especially in occupied territory while trying to sustain troops in the offensive. Likewise, belligerent occupation is not an option but a necessity in a former enemy area based on military efficiency and the concomitant responsibility for protecting the civilian population of that area.

567 "STAND-TO! The Official Focus Of The U.S. Army, FM 3-0, Operations" Www.Army.Mil, 2017, https://www.army.mil/standto/2017-10-10 (Accessed 14 Aug 2019).

184

Due to the current indeterminate outcomes of the Coalition’s efforts in Iraq and Afghanistan, an effort to decide how occupation must be conceptually organized to return a state to the vanquished population with all deliberate speed needs to be undertaken. The result of this conceptualization is that the return to the people should include occupation rules, policies, and norms that have been adopted by international agreement. I will argue these must be tailored to the specifics of the vanquished state to account for differences in culture, legal systems, religion, and any other items that may be specific to that country. Such an effort should reduce the costs in blood and treasure of future occupations or some occupation derivative with a solid, sovereign state being returned to the vanquished populations as it is re-integrated into the international community.

Scholars and practitioners view “occupation law” in essentially two divergent ways, as either supporters of the treaty based occupation law or as “occupation law” skeptics. Supporters of the treaty based occupation law view belligerent occupations as a legal mechanism by which

“…international law prescribes the conditions under which [belligerent] occupation should occur and regulates the way in which such occupation should be carried out.”568

Those supporters of the extant treaty based occupation law believe that “[t]he law of occupation maintained its viability because its basic principles proved flexible enough to adapt to the changing circumstances and the evolving norms of general international law.”569 Some international lawyers view “occupation law” as “…an integral part of the law of armed conflict

568 Rivkin, David B., and Darin R. Bartram. "Military Occupation: Legally Ensuring a Lasting Peace" The Washington Quarterly, vol. 26, no. 3, 2003, pp. 87-103. Informa UK Limited, doi:10.1162/01636600376560959 (Accessed 16 Jun 2018). 569 Benvenisti, Eyal. Occupation, Belligerent in Max Planck Encyclopedia of Public International Law (IMPEPIL) (online edition) Para. 32.

185

[that] is based on several multilateral conventions as well as centuries–old customary international law norms.”570 Arguing this view, Rivkin and Bartram state that occupation law strives to create a responsible attitude toward going to war such that “[o]ften-invoked arguments that modern international law bars military occupation are either misinformed about historical precedent and doctrine or, more likely, are being employed to oppose war for other reasons.”571 Marten Zwanenburg, the senior Legal Advisor to the Ministry of Defence in

The Netherlands shares the view that occupation law is integral to the law of armed conflict and reiterated that “…what is exceptional is that states accept that they are an Occupying

Power…occupation does not entail obligations only for the Occupying Power.”572 The many contributing authors to the Department of Defense Law of War Manual573 collaboratively believe that belligerent occupation has two masters, one military and the other humanitarian, to account to in the post-conflict arena; they stated

[t]he Occupying Power’s primary objective in conducting

military occupation is to further the purpose of the war in

which [they] are engaged and to ensure the maintenance

and security of those forces, but the Occupying Power is

570 Rivkin, David B., and Darin R. Bartram. "Military Occupation: Legally Ensuring a Lasting Peace" The Washington Quarterly, vol. 26, no. 3, 2003, p. 87. Informa UK Limited, doi:10.1162/016366003765609598. 571 Id., p. 88. 572 Zwanenburg, Marten. "THE LAW OF OCCUPATION REVISITED: THE BEGINNING OF AN OCCUPATION." Yearbook of International Humanitarian Law, vol. 10, 2007, p. 130. Cambridge University Press (CUP), doi:10.1017/s1389135907000992. 573 Department of Defense, DoD Announces Update to The DoD Law of War Manual, 2016, https://www.defense.gov/News/News-Releases/News-Release-View/Article/852738/dod-announces-update-to- the-dod-law-of-war-manual/#.V5HxWwNlJJM.twitter (Accessed 11 June 2018) “The manual is a guide for DoD personnel responsible for implementing the law of war and executing military operations. The current manual was released in June 2015 after a multi-year effort by military and civilian lawyers from across the Defense Department to develop a department-wide resource for military commanders, legal practitioners, and other military and civilian personnel on the international law principles governing armed conflict.” The author was involved in this project.

186

also bound to provide for the interests and welfare of the

civilian population of the occupied territories.574

These “Manual” authors are supportive of occupation law as the basis for returning a vanquished state to the international community spending one of the longest chapters in the

Department of Defense Law of War Manual on occupation law.

Not all international lawyers are supporters of the laws of occupation as written; these and scholars from various other academic disciplines such as theology, sociology, and political science are the “occupation skeptics.” Essentially they do not believe the extant occupation laws are adequate to the task of re-integrating a sovereign but previously vanquished state to the international community for various reasons. Skeptics are of three general variations: those who argue for “transformative occupation,” supporters of extending the Just War Theory to a final phase entitled jus post bellum, or those seeking transitional justice. The skeptics will be briefly introduced now with a more detailed survey of these skeptics later in this chapter.

The first type of these skeptics is represented by international lawyer, David Scheffer, the first

United States Ambassador-at-Large for War Crimes Issues. He argues that a transformational occupation “…requires strained interpretations of occupation law to suit modern requirements.

Such unique circumstances are far better addressed by a tailored nation-building mandate of the Security Council.”575

574 Department of Defense Law of War Manual, Office of General Counsel, Department of Defense, (Updated May 2016) p. 729-730. 575 Scheffer, David J. "Beyond Occupation Law" The American Journal of International Law, vol. 97, no. 4, 2003, p. 843. JSTOR, doi:10.2307/3133684.

187

As with any legal issue there are at least two sides but this debate regards different ideas about occupation. The dichotomy of positions is based upon the different ideas of occupation law.

Scheffer advocates for transformative occupation when he indicates that “[o]ne possible reason for the reluctance of many states to accept the full de jure application of occupation law to situations in which they are involved may be a belief, whether or not justified, that the situation differs from the typical case of occupation.”576 An attempt will be made to compare the dichotomous ideas to their respective genre but already the confusion seems to be prevalent.

Some scholars are skeptical that the issues in the aftermath of war can be addressed by international law577 while others are claiming “[t]here is no clearly established international framework that has been created specifically for the aftermath of war….”578 Others believe that they can “…foresee the possibility of new, useful law provided enough thought is put into its development.”579 Of these, Robert Adams calls for a “transformative occupation” that fortifies the laws of war [the currently preferred moniker is international humanitarian law] by permeating it with human rights norms.580

576 Id. 577 Bell, Christine. “Peace Settlements and International Law: From Lex Pacificatoria to Jus Post Bellum” University of Edinburgh School of Law Research Paper Series No. 2012/16 (2008) p. 52-56. 578 Saul, Mathew. Popular Governance of Post-conflict Reconstruction: The Role of International Law. Cambridge University Press, Cambridge (2014) p. 234. 579 Österdahl, Inger and van Zadel, Esther. “What Will Jus Post Bellum Mean? Of New Wine and Old Bottles” Journal of Conflict & Security Law, vol. 14, Issue 2, (2009) pp. 175-207. Available at SSRN: https://ssrn.com/abstract=1514264 or http://dx.doi.org/krp018 580 Roberts, Adam. Transformative Military Occupations: Applying the Laws of War and Human Rights, 100 American Journal of International Law 580, 2006, p. 604.

188

A second group of scholars, predominantly academics, led by Carsten Stahn, seeks to complete the Just War Theory by developing the concept of jus post bellum581 such that “[t]he purpose of a jus post bellum category [of the Just War Theory] is to increase the likelihood of a just and lasting peace.”582 Furthering that point, Inger Österdahl indicated that the current world situation “…shows that the tools being used in order to go from conflict to just and stable peace are in need of development.”583 Elaborating on this lack of development, Robert Williams and

Dan Caldwell lament “… there has always been inadequate attention paid to considerations of jus post bellum in the just war tradition.”584 Pushing for the advancement and further development, Banta argues “[j]us post bellum thus has the promise of anchoring just war as a more context sensitive theory….”585 In defending the concept of jus post bellum, Mark Evans contends that “…the case for jus post bellum retains much prima facie strength, and I do not see that its addition to the just war theory should be reversed altogether.”586 These jus post bellum proponents believe this concept is the last leg of the just war theory and as such will complete that theory thereby contributing to a just post-bellum peace. Jus post bellum

581 Stahn, Carsten. “‘Jus ad bellum’, ‘jus in bello’ . . . ‘Jus post bellum’? -Rethinking the Conception of the Law of Armed Force” European Journal of International Law 17, no. 5 (November 1, 2006): 921–43. P. 938-941, doi:10.1093/ejil/chl037. 582 McCready, Doug. "Ending The War Right: Jus Post Bellum and The Just War Tradition" Journal Of Military Ethics, vol. 8, no. 1, 2009, p. 68. Informa UK Limited, doi:10.1080/15027570902781995 (Accessed 22 May 2018). 583 Österdahl, Inger. "Just War, Just Peace and the Jus Post Bellum". Nordic Journal of International Law, vol. 81, no. 3, 2012, p. 272. Brill Academic Publishers, doi:10.1163/15718107-08103003 (Accessed 9 Dec 2017). See also, Orend, Brian, "Jus Post Bellum: The Perspective Of A Just-War Theorist" Leiden Journal Of International Law, vol. 20, no. 03, 2007, p. 570, 573-574. Cambridge University Press (CUP), doi:10.1017/s0922156507004268 (Accessed 24 Apr 2018). 584 Williams, Robert E., and Dan Caldwell. "Jus Post Bellum: Just War Theory and the Principles of Just Peace" International Studies Perspectives, vol. 7, no. 4, 2006, p. 310. Oxford University Press (OUP), doi:10.1111/j.1528- 3585.2006.00256.x (Accessed 5 May 2018). 585 Banta, Benjamin R. "‘Virtuous War’ and the Emergence of Jus Post Bellum" Review Of International Studies, vol. 37, no. 01, 2010. Cambridge University Press (CUP), doi:10.1017/s0260210510000434 (Accessed 8 May 2018). 586 Evans, Mark. "Moral Responsibilities and the Conflicting Demands Of Jus Post Bellum" Ethics & International Affairs, vol. 23, no. 2, 2009, p. 163. Cambridge University Press (CUP), doi:10.1111/j.1747-7093.2009.00204.x (Accessed 17 Jan 2018).

189 advocates seek to attain a just post-bellum peace while belligerent occupation law seeks to establish the requisite control and security to allow for that peace including the eventual return of the former vanquished country to the people. The jus post bellum advocates are dependent upon the belligerent occupation as it establishes the requisite security and stability to implement the jus post bellum concept.

Turning to transitional justice enthusiasts, they believe in some sort of justice in the post bellum period for violations of human rights. Originally, transitional justice was “…a specific practice of establishing systematic justice after mass human rights violations by a previous regime”587 but has expanded into the post bellum situation as well. Cindy Holder views transitional justice as the way to proceed in the post conflict phase since

[a]t a minimum, a sustainable peace requires preventing a

new outbreak of conflict and foreclosing the occurrence or

recurrence of humanitarian violation or human rights

abuses…In some context, then, duties to establish

sustainable peace include duties to investigate gross

violations of human rights, disseminate the findings

of investigation, and ensure that victims have access

to remedies and repairs.588

587 Iverson, Jens. "Transitional Justice, Jus Post Bellum and International Criminal Law: Differentiating the Usages, History and Dynamics" International Journal of Transitional Justice, vol. 7, no. 3, 2013, p. 413. Oxford University Press (OUP), doi:10.1093/ijtj/ijt019 (Accessed 10 May 2018). 588 Holder, Cindy. Jus Post Bellum and Transitional Justice. United Kingdom: Cambridge University Press, 2013, p. 244-245.

190

Transitional justice differs from justice under occupation law in that the former seeks justice for abuses of human rights and other crimes prior to or during the late war while occupation law as specified in Article 64 to 78 found in the Fourth Geneva Convention applies during the occupation phase of war. There could be some jurisdictional overlap as regards violations during the establishment of the occupation. Transitional justice is not only criminal justice but other forms of justice such as truth seeking, reparations, and reform tending toward a more holistic approach under the prevailing political situation.589 For transitional justice to be able to be undertaken, the requisite control and security found under belligerent occupation is needed.

The advocates for transitional justice accept this for their single issue of pre-war and jus in bello war crimes justice. Occupation law is quite broad and based on trials more of the criminal variety along with other types of restraints.

As evidenced above, there are a multitude of competing ideas and concept regarding the manner in which a vanquished state can be occupied and how that belligerent occupation might be successful in returning a state to the international community or failing. After all of this disputation, what do the treaties actually say regarding this query? Consulting the treaty language will establish that a sufficient template is available for use in establishing a belligerent occupation. Beyond that template, these treaties viewed from the end result of returning a vanquished country’s sovereignty may help to establish the manner of creating a more ideal belligerent occupation in an attempt to change the post-war world legally.

589 "What Is Transitional Justice? | ICTJ" International Center for Transitional Justice, 2019, https://www.ictj.org/about/transitional-justice (Accessed 1 Apr 2019).

191

4.2 The vague Hague Conventions?

We begin with oldest of the treaties from the age of codification, the Hague Conventions. The lead up to these Conventions has been outlined in Chapter 1 so dispensing with further review we will now look to the articles of relevance to belligerent occupation law. Familiarizing us with

The Hague Conventions will clearly demonstrate that there was a balance created between the needs of the occupation force coupled with the occupation administration and the needs of the occupied. Security and subsistence for the occupation force is balanced with the duty to protect the occupied population and respect their laws.

First, to address belligerent occupation law, a hermeneutics interpretation of the language in the text found in The Hague Regulations annexed to The Hague Conventions of 1899 and 1907 as well as the important Geneva Conventions and its progeny must be conducted. Interpretive analysis is reflexively political, so to conduct such reflexive political analysis, Ido Oren posits that the investigation must be redirected “…toward the disciplinary history… [then] select a set of ... texts to analyze.”590 This work delimits the focus of the discourse analysis on the aforementioned two sets of treaties. Thirdly, in reflexive historical investigation, “…a close, careful reading of the past texts”591 is required. Since treaties usually need interpretation, international legal scholars recommend “…looking at the historical context in which the treaty was negotiated and at the records of the negotiations themselves.”592

590 Oren, Ido. Political Science as History: A Reflexive Approach, in Yanow, Dvora, and Peregrine Schwartz-Shea, Interpretation and Method: Empirical Research Methods and the Interpretive Turn, 2nd ed., Routledge, 2015, p. 316. 591 Id., p. 317. 592 Akehurst, Michael. A Modern Introduction to International Law, Fourth Edition. George Allen and Unwin, 1982, p. 165

192

Before we proceed too far into the consideration of these treaties, it should be clarified that in the field of international law there are two schools of thought regarding the interpretation of treaties. One school attempts to comprehend the “plain meaning” of the treaty from the text of that document alone while the other calls for both the treaty and the diplomatic history to be considered.593 The similarity of the latter legal school and the reflexive historical investigation is noted. Not wanting to resolve that great international law debate vis-à-vis these competing schools of legal thought, I will adopt the latter so we will consider the treaty and the diplomatic history including later commentaries as these apply to our instant matter. Clearly articulated, I will use both the travaux preparatoires594 and the post-treaty commentaries in this analysis. Adopting this approach will keep the legal interpretation aligned with the close reading of the document suggested in the reflexive analysis approach. Such use in analysis is consistent with Articles 31 and 32 of the Vienna Convention on the Law of Treaties regarding the interpretation of treaties.595 Intertextuality between these treaties is certain so that the continued use of key words and phrases draws “…the other text’s meaning into the understanding of the focal one….”596 Simply stated, one treaty builds on the other. The last step in Oren’s reflexive-historical analysis is to “develop an argument embedding the history of

593 Blond, Neil C, and Brett I. Harris, Blond's International Law, Sulzburger & Graham Pub., 1995, p. 110. 594 US Legal Inc. "Travaux Preparatoires” Law and Legal Definition | USLegal, Inc. Definitions, USLegal.Com, 2018, https://definitions.uslegal.com/t/travaux-preparatoires/ (Accessed 14 June 2018). “The literal meaning of this French term is preparatory works. It constitutes the materials used in preparing the ultimate form of an agreement or statute, especially of an international treaty. The materials constitute a legislative history. Travaux preparatoires contain the various documents including reports of discussions, hearings and floor debates that were produced during the drafting of a Convention, treaty or an agreement. Travaux preparatoires of a statute or treaty are usually recorded so that it can be used later in order to interpret that particular statute or treaty. This is a secondary form of interpretation and is used to clarify the intent of the makers of the statute or treaty.” 595 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331, available at: http://www.refworld.org/docid/3ae6b3a10.html (accessed 10 April 2017). 596 Yanow, Dvora, Thinking Interpretively, in Yanow, Dvora, and Peregrine Schwartz-Shea, Interpretation and Method: Empirical Research Methods and the Interpretive Turn, 2nd ed. Routledge, 2015, p. 16.

193 the analytic concepts...in the politics they commonly serve to analyze.”597 That argumentation will occur in Chapters 6, 7, and 8 of this paper.

With that context, we proceed to the analysis of the articles contained in The Hague

Convention of 1899 focusing on Articles 42 - 56. These articles are found in Section III of the

Hague Convention entitled “On Military Authority over Hostile Territory.” Article 42 is significant in the development of occupation law since it defines when occupation occurs as it provides “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself.”598 Article 42 is clear in that “…occupation implies the existence of a definite control over the area involved.”599 A belligerent occupation then must have three cumulative conditions to be applicable: “…(i) physical presence of hostile troops in a foreign territory; (ii) the troops have the potential of exercising effective governmental authority; and (iii) the previous government is incapable of exercising its authority effectively.”600 Some authors claim Article 42 is vague601 by arguing the language is not clear

597 Oren, Ido. Political Science as History: A Reflexive Approach, in Yanow, Dvora, and Peregrine Schwartz-Shea, Interpretation And Method: Empirical Research Methods And The Interpretive Turn, 2nd ed. Routledge, 2015, p. 318. 598 "Hague Convention Of 1899" Opcw.Org, 2018, https://www.opcw.org/chemical-weapons-convention/related- international-agreements/chemical-warfare-and-chemical-weapons/hague-convention-of-1899/ (Accessed 21 June 2018). 599 Von Glahn, Gerhard. The Occupation of Enemy Territory. Lund Press Minnesota Archive Editions, 1957, p. 28. 600 Ben-Naftali, Orna. Belligerent Occupation: A Plea for the establishment of an International Supervisory Mechanism in Cassese, Antonio, Realizing Utopia: The Future of International Law. Oxford University Press, 2012, p. 541. See, "Hostage Case, United States V List (Wilhelm) And Others, Trial Judgment, Case No 7, (1948) 11 TWC 757, (1950) 11 TWC 1230, (1948) 8 LRTWC 34, ICL 491 (US 1948), (1948) 15 ILR 632, 19Th February 1948, International Military Tribunal [IMT]; Nuremberg Military Tribunal [NMT]" Opil.Ouplaw.Com, 1949, http://opil.ouplaw.com/view/10.1093/law:icl/491us48.case.1/law-icl-491us48 (Accessed 24 June 2018), p. 55-56. See also, "Field Manual 27-10: The Law of Land Warfare" Aschq.Army.Mil, 1976, http://www.aschq.army.mil/gc/files/FM27-10.pdf (Accessed 24 June 2018). 601 Spoerri, Philip. The Law of Occupation, in Clapham, Andrew et al. The Oxford Handbook of International Law in Armed Conflict. Oxford University Press, 2014, p. 188.

194 and belligerent occupation is a question of law602 not a question of fact; I argue both are incorrect. As seen above the language of the treaty seems clear enough in interpreting the treaty. With respect to belligerent occupation, it is a question of fact and once that fact is established it forms “…the basis for the Occupying Power to exercise authority over the occupied territory.”603 In other words, one is either under the rule of your sovereign exercising control over the land or the putative occupier has established control of the land but somebody has control over the territory; a question of fact in a court of law. Establishing an actual belligerent occupation has legal consequences both in terms of rights and duties thus it is viewed as both permissive and restrictive. To be clear, this language was adopted due to the early concern of the Hague delegates regarding fictitious occupations so they too were concerned about the answer to this question of fact. In the fog of battle and the aftermath it may be difficult to ascertain the factual existence of an occupation as described in Article 42 but eventually that fact will be established.

What are the basic rules regarding the Occupying Powers governmental authority? Article 43 provided “[t]he authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in

602 A question of law is “[a]n issue which involves the application or interpretation of a law” while a question of fact is “[a]n issue involving the resolution of a factual dispute….” Black, Henry Campbell, and Michael J. Connolly, Black's Law Dictionary, 5th ed., West Publishing Co, U.S., 1981, p. 1122. Questions of fact were addressed in the Nuremberg Military Trials such that “[i]t is this fact of complete disintegration of the government of Germany, followed by unconditional surrender and by the occupation of the territory, which explains and justifies the assumption of supreme governmental power by the Allies.” Found in United States Of America v. Josef Altstoetter, et al. (Case Hi) February 17, 1947 December 4 1947,” Archives.Gov, 1975, https://www.archives.gov/files/research/captured-german-records/microfilm/m889.pdf (Accessed 25 Aug 2019). 603 Department of Defense, DoD Announces Update To The DoD Law Of War Manual. 2016, p. 737. https://www.defense.gov/News/News-Releases/News-Release-View/Article/852738/dod-announces-update-to- the-dod-law-of-war-manual/#.V5HxWwNlJJM.twitte (Accessed 11 June 2018).

195 force in the country.”604 The Occupying Power has two duties, both directed towards the population: first, to protect them, and next, to respect the laws that these people would be familiar with unless absolutely prevented. The first category reflects humanitarian concerns605 while the second preserves the sovereignty of the vanquished state.606 As to the first category, the obligation is to establish public order and safety of the vanquished peoples yet this does not mean that the security of the occupier’s forces is not considered. Restating this “…in the exercise of its powers, the Occupying Power must always take into account two fundamental parameters: the fulfillment of its military needs and the respect for the interests of the occupied population.”607 Clearly the occupied population is or may be vulnerable so their safety is absolutely important and can be assisted by the establishment of public order. The enumeration of the practicalities of the occupation follows in the next few articles as Article 43 has been viewed “…as a sort of miniconstitution for the occupation administration.”608

Articles 44 to 47 spell out those practicalities as the occupied population cannot be forced to disclose information about “the other belligerent”609 presumed to be their own troops as they cannot be forced “…to swear allegiance to the hostile [Occupying] Power”610 with respect

604 "Hague Convention Of 1899" Article 43, Opcw.Org, 2018, https://www.opcw.org/chemical-weapons- convention/related-international-agreements/chemical-warfare-and-chemical-weapons/hague-convention-of- 1899/ (Accessed 21 June 2018). 605 See, Ukhuegbe, Solomon, and Alero Fenemigho. "Article 43 of The Hague Regulations of 1907 Revisited: The Past and the Future of Belligerent Occupation in International Law" SSRN Electronic Journal, 2016. Elsevier BV, doi:10.2139/ssrn.2802162 (Accessed 4 July 2018). 606 Spoerri, Philip. The Law of Occupation, in Clapham, Andrew et al. The Oxford Handbook of International Law in Armed Conflict. Oxford University Press, 2014, p. 183-184. 607 Id., p. 185. 608 Benvenisti, Eyal. The International Law of Occupation, 2nd ed. The Princeton University Press, 2004, p. 9 and 26- 29. 609 "LAWS AND CUSTOMS OF WAR ON LAND (HAGUE, IV)" Loc.Gov, 2013, Article 44 https://www.loc.gov/law/help/us-treaties/bevans/m-ust000001-0631.pdf (Accessed 1 July 2018). 610 Id., Article 45.

196 extended to their family rights, their lives, and their private property, none of which be taken or confiscated611 with pillage being forbidden.612 The balance between the occupier and occupied is beginning to be established so this occupation looks nothing like conquest. Although this balance does not provide for the complete list of the occupied’s human rights as these are articulated today.

Next are the articles regarding the Occupying Power with their privileges in taxes, contribution, and requisition. Taxes may be collected based upon the prior government assessment and may be used to pay for the occupation administration to the same extent as the previous government613 while in addition the Occupying Power may collect contributions for the needs of the occupying army or the occupation administration.614 Contributions are not to be group punishment for the acts of individuals615 and those contributions must be based upon the occupying commander-in-chief’s responsibility based upon prior assessment techniques with the vanquished locals given a receipt for payment.616 Requisitions whether in kind or for services are to be collected only for the occupying army based “…in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country.”617 Tactical commanders may make these requisitions but must pay in cash or provide a receipt for a later but prompt payment. Such a practice provides for the needs of the occupation army while maintaining due regard for the

611 Id., Article 46. 612 Id., Article 47. 613 Id., Article 48 614 Id., Article 49. 615 Id., Article 50. 616 Id., Article 51. 617 Id., Article 52.

197 needs of the local population. Occupation forces may only seize the military stores and supplies of the vanquished forces but not private property; so that such seized State property may be used in the occupier’s war effort.618 Devises for news transmission, means of travel, and ammunition even if privately owned, may be confiscated with the caveat these “…must be restored and compensation fixed when peace is made.”619 Submarine cables are not to be seized unless absolutely necessary so as not to cut off the occupied country from communication with the outside world but with the above caveat.620 Regarded only as administrator and usufructuary621 of all State property in the occupied zone, the Occupying

Power may use these goods as if they were the property of the former government but only as that government could use these items.622 Lastly, “[t]he property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.”623 Further seizure, destruction, or willful damage is forbidden with a juridical remedy provided for any violation.624 I belabor the points above to clearly demonstrate the level and variety of detail in The Hague Conventions. These are not vague articles and these articles cover many of the daily human needs from food to communication.

618 Id., Article 53. 619 Id. 620 Id., Article 54. 621 Usufructuary is defined as “[t]he temporary right of using a thing without having the ultimate property or full dominion of the substance.” Black, Henry Campbell, and Michael J. Connor, Black's Law Dictionary, 5th ed. West Publishing Co, U.S., 1981, p. 1385. 622 "LAWS AND CUSTOMS OF WAR ON LAND (HAGUE, IV)" Loc.Gov, 2013, Article 55 https://www.loc.gov/law/help/us-treaties/bevans/m-ust000001-0631.pdf (Accessed 1 July 2018). 623 Id., Article 56. 624 Id.

198

Again, The Hague Conventions demonstrates there was a balance created between the needs of the occupation force coupled with the occupation administration and the needs of the occupied. Such balance was the hallmark of these treaties; still there is doubt today about that balance as the tipping point has moved towards the human rights of the occupied, with that sliding continuing on unabated by the relevance of these treaties to belligerent occupation.

Clearly stated, today there is a notable shift in this Hague-developed balance towards human rights of the occupied as they are seen now as weaker vis-à-vis the armed occupiers and in need of greater protection. Losing this balance between the occupiers and the occupied undermines both The Hague and Geneva Conventions without an alternative.

Based upon this review, the establishment of an occupation and the general powers placed on the Occupying Power seems clearly drafted and hence understandable. Respect for the lives, rights, and property of the occupied people appears to be clearly drafted and hence understandable. Tax, contribution, and requisition powers of the Occupying Power seem clearly drafted and hence understandable. The Hague treaties regarding belligerent occupation are clear and understandable. However, being clearly written and understood did not mean these treaty based rules were followed as we saw in Chapter 1 with the various atrocities perpetrated against the civilian populations in both the First and Second World Wars.

As treaties are drafted to apply to general situations so that “…general principles evolved, few specific rules developed because of a lack of factual situations requiring application of specific rules often enough to permit their growth into law.”625 However these two Hague treaties

625 Graber, Doris A. The Development of the Law of Belligerent Occupation, 1863-1914, A Historical Perspective. AMS Press, 1949, p. 291.

199 appear to be rather specific about some of the details. As detailed as these articles are drafted, especially Articles 42-56, this should be enough to have them be applicable to belligerent occupation in the absence of any counter indication. In fact, the drafters of the Geneva

Conventions believed The Hague Convention memorialization of belligerent occupation was so well done that they deferred to them when they drafted Article 154 of the Fourth Geneva

Convention stating

[i]n the relations between the Powers who are bound by The

Hague Conventions respecting the Laws and Customs of War

on Land, whether that of July 29, 1899, or that of October 18,

1907, and who are parties to the present Convention, this last

Convention shall be supplementary to Sections II and III of the

Regulations annexed to the above mentioned Conventions of

The Hague.626

Clearly the drafters of the Geneva Conventions believed these Hague rules were clear and applicable. Based upon this review of The Hague Conventions, the argument regarding the vagueness of these Conventions seems unwarranted.

4.3 Is clear “occupation” law promulgated under the Fourth Geneva Convention?

Much of the foregoing paints a picture of complex operations in the belligerent occupation phase of war; this is however not a pick-up game without rules. Occupation, especially when the war is not quite over but in a state of belligerency or in a state of guerilla warfare or

626 "The Geneva Conventions of August 12 1949" Geneva IV, Article 154, International Committee of the Red Cross, 2015, https://www.icrc.org/ (Accessed 10 Mar 2018).

200 insurgency, presents unique problems for the occupying force complicated by attempts to govern the defeated belligerent and now occupied territory.

After the Second World War, the then “world” consisting of about 54 nations, gathered to address and ameliorate the ravages of this truly world-wide war by establishing “The Geneva

Conventions of August 12, 1949”627 commonly referred to as “the Geneva Conventions.” There are four of these conventions dealing, respectively, with “wounded and sick”, the maritime

“wounded, sick, and shipwrecked”, “prisoners of war”, and “civilian persons.”628 Our interest is in the fourth of this series of treaties entitled “Geneva Conventions Relative to the Protection of Civilian Persons in Time of War of August 12, 1949”629 hereinafter Geneva IV.

Turning to a review of Geneva IV, remember all of these treaties came out of the abuses mainly against non-combatants during the Second World War particularly those related to Axis Powers in their occupations around the world. Geneva IV furthered and specifically extended protection to civilians including non-combatants in occupied territory and enjoys nearly universal applicability.630 In other words, the Geneva Conventions are more focused on the rights of the occupied without a change in the role of the occupier. The Fourth Geneva

Convention is the last pronouncement on occupation and is considered universally applicable law. I strongly advocate for conformity in any belligerent occupation with that treaty’s provisions as written and in the spirit of the Geneva Conventions.

627"The Geneva Conventions of August 12 1949" International Committee of the Red Cross, 2015, https://www.icrc.org/ (Accessed 10 Mar 2018). 628 Id. 629 Id., Geneva Conventions Relative to the Protection of Civilian Persons in Time of War of August 12 1949. 630 Spoerri, Philip. Speech on 9 December 2009, "The Geneva Conventions Of 1949: Origins and Current Significance - ICRC" Icrc.Org, 2009, https://www.icrc.org/en/doc/resources/documents/statement/geneva- conventions-statement-120809.htm (Accessed 22 Mar 2019).

201

In the fog of war or transitional terminal phase, relying upon the tried and true “older” law should provide a constant that is needed in such chaos, violence, and destruction. This is why the drafters of the Geneva Conventions established the civilians’ treaty in Geneva IV, to assist the international community by having a pre-established pattern to follow called “occupation.”

Thus, we find that belligerent occupation is governed by treaty, so all we have to do is to follow the prescribed law of occupation developed out of hard experiences and great loss of life. It should be relatively simple to employ this Convention, just as the drafters intended it to be but the devil is in the detail. I will argue Geneva IV provides a useable template for belligerent occupation in the intricate articles found there but not utilized. By not employing this treaty, its very applicability is now called into question. Relevance, applicability, and the interface with human rights are those basic queries.

With the purpose of showing the extent of this relevance and applicability to the post-bellum belligerent occupation situation and of the treaty’s widespread rules for an occupation of a defeated belligerent’s territory, a review of the regulations for an “occupied territory” is required. In those articles there is great deference shown to the occupying force allowing it, during times of security necessity, the ability to temporarily restrict the rights of the occupied.

The Commentary throughout Section III is replete with the Occupying Powers obligations for the protection of civilians when military operations are or will occur near them. Clearly, this language did not prohibit or restrain military efforts but sought the saving of the civilian population as a military factor and within the principle of humanity.

202

International law may be difficult to understand absent the context and history of the particular document, so we will consider such diplomatic history and background to aid our understanding of the actual text of the Fourth Geneva Convention. We should begin by addressing what the term “occupation” does and, more importantly, what it does not mean in international law, specifically the law of war, and the responsibilities this law imposes on those belligerent forces who become “occupiers.”

We begin the tedium of our examination regarding “occupation” within the text of Geneva IV since it appears that not many policy elites were or are familiar with or choose to disregard the requirements of the Geneva Conventions.631 This will not be a complete examination of

“occupation” law as found in the text of Geneva IV but a sufficient and illustrative overview to enhance the argument that these “old” treaties should have been employed more thoroughly in the post bellum phase of war and should be the cornerstone of future belligerent occupations as was originally anticipated by the Geneva Conventions’ drafters.

We begin our investigation of the text in Geneva IV. Specifically, the drafters provided in Article

2 that,

[i]n addition to the provisions which shall be implemented in

peacetime, the present Convention shall apply to all of

declared war or of any other armed conflict which may arise

between two or more of the High Contracting Parties, even

631 For further discussion of the failure to abide by these Conventions, see "The Geneva Conventions Of 1949 And Their Additional Protocols - ICRC" Icrc.Org, 2018, https://www.icrc.org/eng/war-and-law/treaties-customary- law/geneva-conventions/overview-geneva-conventions.htm (Accessed 19 Aug 2018). For non-international wars see, Mack, Michelle, and Jelena Pejic. "Increasing Respect for International Humanitarian Law in Non-International Armed Conflicts" International Committee Of The Red Cross, 2008, https://www.icrc.org/en/publication/0923- increasing-respect-international-humanitarian-law-non-international-armed-conflicts.

203

if the state of war is not recognized by one of them. The

Convention shall also apply to all cases of partial or total

occupation of the territory of a High Contracting Party,

even the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to

present Convention, the Powers who are parties thereto

shall remain bound by it in their mutual relations. They shall

furthermore be bound by the Convention in relation to the

said Power, if the latter accepts and applies the provisions

thereof.632 [emphasis added]

The second paragraph is significant and often misunderstood, so we will review it carefully. In this paragraph, the term “occupation” refers to a territory or any part of the territory of a sovereign state that is physically occupied determined as a question of fact. Often this

“occupation” takes place without any hostilities occurring such as the occupation of the

Czechoslovakian Sudetenland by Germany in 1938.633 Albeit this takeover of Czech territory was a nonconsensual act, it does not qualify as a belligerent occupation as defined in Chapter 1 of this work due to being more than a “temporary measure for administering territory under the control of invading forces….”634 Such relinquishment of sovereignty occurred since the later occupied state comprehended that their resistance was futile and their allies abandoned them.635 Realizing, based upon the experiences of the Second World War, that “protected

632 Id., Article 2. 633 See, Dupuy, R. Ernest, and Trevor N. Dupuy. The Encyclopedia of Military History. Harper & Row, 1986, p. 1038. 634 See, Chapter 1, page 5 and Footnote 15. 635 Nonconsensual takeovers of territory continue to occur as with the Russian activities in Crimea and eastern Ukraine (Donbas region) but these are not viewed as belligerent occupations. The UN General Assembly noted this

204 persons” of an “occupied” state deserved equal protection compared to the same persons whose state fought and were subsequently defeated, gave rise to this paragraph.636 Terms of this Convention, Geneva IV, are applicable to all occupation whether these are a declared war or any other armed conflict or occupation even “with no armed resistance.”

In dealing with an enemy belligerent country, “[t]erritory is considered occupied when it is actually placed under the authority of the hostile armed forces;”637 so this is the standard applicable to any Occupying Power. Understand that occupation is not conquest since it is merely “provisional in nature.”638 This means that the “[o]ccupied territory is administered by military government, due to the inability of the legitimate government to exercise it functions, or the undesirability of allowing it to do so.”639 We see that the Occupying Power must establish safety and public order as a legal duty while enforcing the laws of the occupied state with the only exception to that enforcement being absolute necessity. We will explore those specific duties in the later parts of this paper.

in GA Resolution 68/262 stating the General Assembly “1. [a]ffirms its commitment to the sovereignty, political independence, unity and territorial integrity of Ukraine within its internationally recognized borders; 2. Calls upon all States to desist and refrain from actions aimed at the partial or total disruption of the national unity and territorial integrity of Ukraine, including any attempts to modify Ukraine’s borders through the threat or use of force or other unlawful means … 5. Underscores that the referendum held in the Autonomous Republic of Crimea and the city of Sevastopol on 16 March 2014, having no validity, cannot form the basis for any alteration of the status of the Autonomous Republic of Crimea or of the city of Sevastopol.” See, "Territorial Integrity of Ukraine" Un.Org, 2014, https://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/262 (Accessed 3 Apr 2019). 636 Pictet, Jean. "Commentary on the Geneva Conventions of August 12 1949, Volume I, 1952". International Committee of the Red Cross, 2018, https://www.icrc.org/en/publication/0203-commentary-geneva-conventions- 12-august-1949-volume-i (Accessed 20 Apr 2018). 637 Meyer, Jeanne M., and Brian J. Bill. Operational Law Handbook, 2002. International and Operational Law Dept., The Judge Advocate General's School, 2002, p. 24. In full and fair disclosure, I was a Contributing Author to this Handbook and wrote primarily about the North Atlantic Treaty Organization (NATO) as I was assigned to the US Military Delegation to NATO from August 1999 to June 2002. Later, I was credentialed to the US Mission to NATO from August 2010 until August 2013 as an attaché working for the Air Force General Counsel. 638 Id. 639 Id.

205

With a clearer understanding of the term “occupation,” we can proceed to establishing the

“civilian persons” to whom these protections apply. This is not easy as the only place that the term “civilian persons” is defined is in Article 3 of Geneva IV, yet that title applies to “conflicts not of an international character.” Again, resorting to the Commentaries, we find it is illustrative of the meaning hammered out by two separate and special committees during the

Convention. The Commentaries responded to this apparent discrepancy by stating,

[s]peaking generally, it must be recognized that the

conflicts referred to in Article 3 are armed conflicts,

with armed forces on either side engaged in hostilities

-- conflicts, in short, which are in many respects similar

to an international war, but take place within the

confines of a single country. In many cases, each of the

Parties is in possession of a portion of the national

territory, and there is often some sort of front.640

Further no exception needed to be created for any occupation resulting from a country being defeated in an international war as this was understood. Again, returning to the Commentaries, we are informed

[r]epresenting, as it does, the minimum which must be

applied in the least determinate of conflicts, its terms

must a fortiori be respected in the case of international

conflicts proper, when all the provisions of the

640 Pictet, Jean. "Commentary on the Geneva Conventions of August 12 1949, Volume I, 1952" International Committee of The Red Cross, Article 3 Commentary, https://www.icrc.org/en/publication/0203-commentary- geneva-conventions-12-august-1949-volume-i (Accessed 20 Apr 2018).

206

Convention are applicable. For "the greater obligation

includes the lesser", as one might say.641

Having established that these obligations were seen as extending to international conflict as well, we turn to consider “civilian persons.” The specificity of the provisions of the Fourth

Geneva Convention argues for the position that “good law” exists therein and can form the basis for a belligerent occupation.

The term “civilian persons” is defined in common Article 3 as “[p]ersons taking no active part in the hostilities,….”642 Article 3 is called “common” as it appears in all four of the Geneva

Conventions of August 12, 1949 with the exact language repeated. More importantly for our consideration is the question regarding how these “civilian persons” are to be treated by the occupying force? Article 3 of the fourth Geneva Convention offers that these “civilian persons”

shall in all circumstances be treated humanely, without

any adverse distinction founded on race, colour, religion

or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain

prohibited at any time and in any place whatsoever with

respect to the above-mentioned persons:

(a) violence to life and person, in particular murder

of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

641 Id. 642 "The Geneva Conventions of August 12 1949" International Committee of the Red Cross, 2015, https://www.icrc.org/ (Accessed 10 Mar 2018).

207

humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of

executions without previous judgment pronounced by

a regularly constituted court, affording all the judicial

guarantees which are recognized as indispensable by

civilized peoples.643

We have gathered that these persons are to be treated humanely, but this is not easily understood in ordinary parlance. The Commentaries assist us as they points out

[t]he right of respect for the person must be

understood in its widest sense: it covers all

the rights of the individual, that is, the rights

and qualities which are inseparable from the

human being by the very fact of his existence

and his mental and physical powers; it includes,

in particular, the right to physical, moral and

intellectual integrity -- an essential attribute of

the human person.644

No distinction can be made for the enumerated factors such as race, color, and so forth. The inclusion of the phrase “or any other similar criteria” was prescient so that this list would not be or become dispositive in later conflicts thereby “permitting” by absence from this section other

643 Id. 644 Pictet, Jean. "Commentary on the Geneva Conventions of August 12 1949, Volume I, 1952" International Committee of the Red Cross, Commentary on Article 3. https://www.icrc.org/en/publication/0203-commentary- geneva-conventions-12-august-1949-volume-i (Accessed 20 Apr 2018).

208 distinctions. Based upon actual occupation experiences during World War Two, the delegates listed specific acts as being “absolute prohibitions” always and everywhere. The Commentators relate the following regarding these prohibitions:

[t]hat is the method followed in the Convention when it

proclaims four absolute prohibitions. The wording adopted

could not be more definite: "To this end, the following acts

'are' and 'shall’ remain prohibited at any time and in any

place whatsoever' ..." No possible loophole is left; there can

be no excuse, no attenuating circumstances. Items (a) and (c)

concern acts which world public opinion finds particularly

revolting -- acts which were committed frequently during the

Second World War.645

The first of these prohibitions listed in subparagraphs (a) and (c) are rather clear and were quite clear at the time of the Conventions being formulated. Similarly, the absolute prohibitions found in subparagraphs (b) and (d) are straightforward and seemingly clear as

[i]tems (b) (taking of hostages) and (d) (sentences and

executions without proper trial) prohibit practices which

are fairly general in wartime. But although they were

common practice until quite recently, they are nevertheless

shocking to the civilized mind. The taking of hostages, like

reprisals, to which it is often the prelude, is contrary to the

modern idea of justice in that it is based on the principle of

645 Id.

209

collective responsibility for crime.646

Ensconced in Article 4 is the first use of the term “protected persons,” those civilian persons to whom protection attaches by virtue of their being in the zone of conflict. These people are more specifically defined vis-à-vis the more general term “civilian person” and consist of two classes of civilians: those enemy civilians living in the belligerent nation and other nation’s civilians living in the areas under occupation.647 Specifically, the classes to be covered are defined as

[p]ersons protected by the Convention are those who, at a

given moment and in any manner whatsoever, find

themselves, in case of a conflict or occupation, in the hands

of a Party to the conflict or Occupying Power of which they

are not nationals.648

We now have an idea of the concept of occupation and those persons protected by Geneva IV, so we will begin to explore the types of protections that these “protected persons” are entitled to under Part II of the Fourth Convention. The specificity of these provisions indicates that the drafters anticipated their direct use in belligerent occupations and lesser occupations. The drafters wanted a workable “off the shelf” occupation to be available during that chaos following the end of hostilities at the local, regional, or national level. These articles coupled with the aforementioned Commentary indicate that these “old laws” were designed to be the

646 Id. 647 Id., Commentary on Article 4. 648 Id.

210 manual for a post-war occupation. I contend they provide a general list for issues that are important in a belligerent occupation that should be used by the Occupying Power(s).

Part II contains Articles 13 through 26, and while this may seem to be a great deal of protection it is really rudimentary obligations. These articles apply to the entire population of the belligerent countries649 by calling for the establishment of “hospital and safety zones and localities so organized so as to protect from the effects of war, wounded, sick and aged persons, children under fifteen, expectant mothers and mothers of children under seven.”650

We see the refinement of protection for some special cases, again, specifically prescribed and clearly made to be available when needed in any occupied areas. Yet, while each of these special cases is distinct, the entirety of those distinctions is not relevant to our consideration in the instant matter. Suffice it to say that only the distinction regarding permanent and temporary establishment for these special cases needs to be noted.651 In Article 15, we find that the concept of “neutralized zones,” akin to the current discussion of “safe zones,” are specifically called for to shelter “…without distinction: (a) Wounded and sick combatants and noncombatants; (b) Civilian persons who take no part in hostilities and who, while they reside in the zones, perform no work of a military nature…”652 Agreements are to be made between the Parties, if the war continues, to provide for geographic location, administration, food supply, and supervision of the neutralized zone. With Article 16 comes the “particular protection” of “[t]he wounded and sick, as well as the infirm, and expectant mothers.”653

649 Id., Commentary on Article 13. 650 Id., Commentary on Article 14. 651 Id. 652 Id., Commentary on Article 15. 653 Id., Commentary on Article 16.

211

Articles 18 through 23 specify the protections to civilian hospitals and their staffs, medical convoys either vehicular or via trains, and medical evacuation aircraft, and various medical supplies, food, and clothing. Noting in Article 19 the manner in which there may be a discontinuance of protection to any medical facility if these are used to commit “acts harmful to the enemy.”654 Article 24 provides special considerations be given to children under fifteen years of age regarding their maintenance, religious practices, and education.655 Articles 25 and

26 address the concern of family news for those separated by the conflict or belligerent occupation.656 Note must be taken that “…there is no specific legal requirement for the

Occupying Power to issue a proclamation of [belligerent] occupation.”657 It is good practice to make known to the occupied population that a state of occupation is in effect and to what territory that occupation extends. Likewise such a proclamation could facilitate announcements of any rules to be followed by the occupied and any changes to the laws especially the penal laws. However, an announcement does not meet the requirement of publication prior to these new rules entering into effect as required by Article 65 of Geneva IV.658 Any proclamation would also serve to inform other States about the existence of the belligerent occupation.

In Geneva IV, Section III entitled Occupied Territories, the treaty drafters elaborate in great detail how the belligerent occupation is to be organized and executed. Of these articles, a good

654 Id., Commentary on Article 19. 655 "The Geneva Conventions of August 12 1949" International Committee of the Red Cross, Article 24, https://www.icrc.org/ (Accessed 10 Mar 2018). 656 Id., Articles 25 and 26. 657 Department of Defense, DoD Announces Update to the DOD Law of War Manual, 2016, https://www.defense.gov/News/News-Releases/News-Release-View/Article/852738/dod-announces-update-to- the-dod-law-of-war-manual/#.V5HxWwNlJJM.twitter (Accessed 11 June 2018). See also, FM-27-10 (Change 1, 1976) paragraph 357. 658 "The Geneva Conventions of August 12 1949" International Committee of the Red Cross, Article 65, https://www.icrc.org/ (Accessed 10 Mar 2018).

212 many focus on responsibilities of the Occupying Power (Articles 47-63) and on the Penal

Legislation (Article 64 through Article 78) for the occupied territory. Striking in these articles is the language employed to protect the civilian population and imperative military actions as both have a central role but with the military necessity as the primary focus. A quick but pellucid review will show that these articles do indeed provide adequate information to deal with occupied territories as they protect the occupation force and administration along with the civilian population.

Article 47 indicates that protected persons remain protected in that their rights are inviolable despite the occupation or any other changes659 while Article 48 allows for protected person not a national of the occupied state to leave that occupied area under special provisions contained in Article 35 of this same treaty.660 Deportations, transfers, and evacuations are not permitted unless “…the security of the population or imperative military reasons so demand”661 with this term being used twice in this article once for evacuations and the other for detaining protected persons in areas exposed to the dangers of war. The care, education, feeding, and identification of children662 are all specified in the next article in Geneva IV. Prohibited enlistments in the military force of the Occupying Power and permitted labor practices including requisitions663 , protection of workers664 , and prohibited destruction665 are described in the next few articles.

Issues regarding judges and public officials of the vanquished continuing to function in their

659 Id., Article 47. 660 Id., Article 48. 661 Id., Article 49. 662 Id., Article 50. 663 Id., Article 51. 664 Id., Article 52. 665 Id., Article 53.

213 respective capacities are addressed in Article 54.666 Occupying Powers are to provide food and medical supplies if these are not adequate in the occupied territory but can requisition food stuffs for the occupation forces and administration.667 Public health, hygiene, and hospitals are addresses in the 57th Article.668 Circumstances for the temporary requisitioning of hospitals from the civilian population of the occupied area are expressed in the subsequent article.669

Spiritual assistance is reflected in this Convention670 before the spelling out of the duties regarding the provision of collective relief in the occupied areas “…by States or by impartial humanitarian organizations such as the International Committee of the Red Cross.”671

Language used here could include impartial non-governmental organizations supplying “…food stuffs, medical supplies, and clothing”672 under the responsibilities of the Occupying Power673 for distribution674 and individual relief675 by national Red Cross and other relief societies.676

The Geneva IV drafters next turned to the penal process during occupation in Articles 64 to 78 exhibiting great effort to ensure the rule of law prevails during this phase of war. Interestingly in Article 64, while the laws of the vanquished are to remain in place, the caveats provide

666 Id., Article 54. 667 Id., Article 55. 668 Id., Article 56. 669 Id., Article 57. 670 Id., Article 58. 671 Id., Article 59. 672 Id. 673 Id., Article 60. 674 Id., Article 61 675 Id., Article 62. 676 Id., Article 63.

214 insight since these laws can be set aside when “…they constitute a threat to its [Occupying

Power] security or an obstacle to the application of the present Convention”677 and can make

“…provisions which are essential to enable the Occupying

Power to fulfil 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.678

Again, the security of the Occupying Power is specifically placed in the treaty language indicating a great regard for these forces. With the expansion of these security concern exemptions for the occupying administration, the forces, their establishments, typically some garrison facility for billeting, feeding, and supplying the occupation force, and their lines of communication, the Occupying Force has many and vast powers. The commentaries for this

Article indicate “[i]t will be seen that the powers which the Occupying Power is recognized to have are very extensive and complex, but these varied measures must not under any circumstances serve as a means of oppressing the population.”679 Varied as the Occupying

Power’s authority is made here the only caveat is not oppressing the occupied population, thus the occupier has the responsibility and authority to make changes showing the preference for security for both occupying forces and the occupied however, even at the expense of the latter.

677 Id., Article 64. 678 Id. 679 Pictet, Jean. "Commentary on the Geneva Conventions of August 12 1949, Volume I, 1952" International Committee of the Red Cross, 2018, https://www.icrc.org/en/publication/0203-commentary-geneva-conventions- 12-august-1949-volume-i (Accessed 20 Apr 2018).

215

Occupation administrations can make its own penal provisions to protect itself and the

Occupying Forces with this protection long recognized in international law.680 Violators of these promulgated penal provisions can be tried by “…non-political military courts, on condition that the said courts sit in the occupied country”681 recognizing that vastness of power residing in the Occupying Power since these courts are comprised of its occupation force members. Article

67 does not permit ex post facto laws being used for criminal prosecutions with any punishments being made equal to the crime while the court must recognize if the offender is not its own citizen.682 The next item deals with punishments from simple internment to the death penalty with the necessary strictures regarding those crimes warranting this extreme penalty and age of eighteen for any punishment683 with time served as a credit.684 Offenses committed prior to the occupation685 and procedural due process issues generally,686 along the rights to a defense687 and appeal688 are separately covered. The next few articles deal with assistance by the Protecting Power,689 death sentence procedures,690 treatment of detainees,691 handing over of detainees post occupation,692 and matters of internment and the

680 The Geneva Conventions Of August 12 1949" International Committee Of The Red Cross, Article 66, https://www.icrc.org/ (Accessed 10 Mar 2018) 681 Final Record of the Diplomatic Conference of Geneva of 1949 ', Vol. II-A, p. 672, 833, found in Pictet, Jean. "Commentary on the Geneva Conventions of August 12 1949, Volume I, 1952" International Committee of The Red Cross, 2018, https://www.icrc.org/en/publication/0203-commentary-geneva-conventions-12-august-1949- volume-i (Accessed 20 Apr 2018). 682 Id., Article 67. 683 Id., Article 68. 684 Id., Article 69. 685 Id., Article 70. 686 Id., Article 71. 687 Id., Article 72 688 Id., Article 73. 689 Id., Article 74. 690 Id., Article 75. 691 Id., Article 76. 692 Id., Article 77.

216 appeal of that punishment are delivered.693 Again, I belabor the point and carefully examine these articles including the Commentary to demonstrate that there are adequate provisions in the Geneva Conventions as there were in the Hague Conventions to conduct a belligerent occupation.

As stated previously, the Geneva Conventions were based upon the experiences of the Second

World War with many lessons learned during that conflagration so that the drafters knew well, some by personal experience, of what they placed into the wording of Geneva IV. Their specificity in drafting addressed the past but with the intention of these regulations governing an occupied area to be applied prospectively. We live in that future the drafters foresaw and prepared us for with the implementation of all the Geneva Conventions, especially this particular Convention, Geneva IV for the belligerent occupation phase under the Laws of War.

These rules appear clear and understandable despite being “old law.”

Belligerent occupation is further addressed in the Protocol I of the Protocols Additional694 to the Geneva Conventions of 12 August 1949 regarding internal conflicts and providing for “Relief in Favour of the Civilian Population” in Section II.695 Citing Geneva IV, Article 55, the new Article

69 in Protocol I requires the Occupying Power to “…ensure the provision of clothing, bedding, means of shelter, other supplies essential to the survival of civilian population of the occupied

693 Id., Article 78. 694 On 9 May 1985 in a Memorandum to John H. McNeill, Assistant General Counsel in the Office of the Secretary of Defense regarding the customary International Law provisions of the 1977 Protocols Addition to the Geneva Conventions, there was a list compiled setting forth those articles regarded as customary international law. I am in possession of a copy of this unclassified document from my work on these Protocols for the American Bar Association Committee on the Law of the Armed Forces. Although not a signatory to these Protocols some articles are recognized as customary International Law by the Department of Defense. 695 Protocols Additional To the Geneva Conventions of 12 August 1949. International Committee of the Red Cross, 1977.

217 territory and objects necessary for religious worship.”696 Article 70 addresses the same concerns but for “…any territory…other than occupied territory….”697 While the next article concerns personnel participating in relief efforts with their participation “…subject to approval of the Party in whose territory they will carry out their duties.”698 Again, there is the deference to “imperative military necessity” clause and these relief workers are to “take account of the security requirements of the Party in whose territory they are carrying out their duties.”699 The penalty for a violation is termination of the relief mission. The deference to the security of the military indicates that even this Protocol is subject to that military authority. These three articles directly speak to belligerent occupation during a civil war or other non-international conflict.

4.4 Occupation Law Skeptics.

Earlier the skeptics were noted as those who believe the current regime of occupation law is lacking and, likely, even fatally flawed. The skeptics believe there is more than occupation law that can overcome the legal injuries of the war. Their answers to these missing authorities under extant occupation law are of three general categories although these are not exclusive groups as there is some overlap between them. Specifically there is a call for transformative occupation, jus post bellum, or transitional justice. All three will be briefly appraised.

696 Id., Article 69, p. 51. 697 Id., Article 70, p. 52-53. 698 Id., Article 71, p. 53. 699 Id.

218

4.4.1 Transformative occupation: change for the better?

All belligerent occupations could be considered transformative in that the status quo ante has changed. Yet there has been a movement towards this type of occupation since 1945.

Transformative occupation has been defined as “…those [occupations] whose stated purpose

(whether or not actually achieved) is to change states that have failed, or have been under tyrannical rule.”700 Ambassador Scheffer argues that The Hague Conventions and Geneva IV supported by the Protocols Additional were never intended for “… a society in political, judicial, and economic collapse or a society that has overthrown a repressive leader and seeks radical transformation [since that society] requires far more latitude for transformative development than would be anticipated under these instruments.”701 More succinctly stated, “[o]ccupation law was never designed for transforming exercises.”702 Indeed, The Hague and Geneva

Conventions hold that the occupier is a mere trustee for the vanquished “who do not assume the legislative competence of ousted de jure sovereigns.”703 The “transformative principle” approach would provide authority to the Occupying Power to transform occupied territory into liberal democracies.704 Under this approach, the Occupying Power would be given expansive authority to reform both the law and institutions in the occupied areas.705 Ambassador

700 Roberts, Adam. "“Transformative Military Occupations: Applying the Laws of War and Human Rights" The American Journal Of International Law, Vol. 100, No. 3, 2006, p. 580, (Accessed 12 July 2018). 701 Scheffer, David J. "Beyond Occupation Law" The American Journal Of International Law, vol. 97, no. 4, 2003, p. 849. JSTOR, doi:10.2307/3133684 (Accessed 16 Nov 2017). 702 Benvenisti, Eyal. The International Law of Occupation, 2nd ed. The Princeton University Press, 2004, p. 166-167. 703 See, Regulations Respecting the Laws and Customs of War on Land, annex to Convention [IV] Respecting the Laws and Customs of War on Land, 18 October 1907, Art. 43; See also, Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, Art. 64. 704 Roberts, Adam. “Transformative Military Occupations: Applying the Laws of War and Human Rights," The American Journal Of International Law, vol. 100, no. 3, 2006, p. 580 (Accessed 21 July 2018). 705 Harris, Grant T. "The Era of Multilateral Occupation" Berkley Journal Of International Law, vol. 24, 2006, p. 57 (Accessed 13 July 2018).

219

Scheffer argues that current occupation law should be expanded if the vanquished requires

“…revolutionary changes in its economy (including a leap into robust capitalism), rigorous implantation of international human rights standards, a new constitution and judiciary, and a new political structure (most likely consistent with principles of democracy)…”706 since this manner of change was never contemplated by either international law, occupation law, or the domestic law of the occupied territory.

Accepting arguendo that transformative occupation is without legal guidance from these treaties, then the transformative advocates much as their earlier legal colleagues in the post

Napoleonic period discovered that the search for solid legal footing continues unabated. State practice may provide some clues in the evolution of belligerent occupation.

In application, the idea of transformative occupation presents some difficulties. For example, the Coalition occupation in Iraq

…suffered from a double bind in that [t]he US was thus

confronted with obstacles established by formal legal rules

on two fronts: on the one hand, transformative occupation

was prohibited under the classical rules of occupation bellica;

on the other, it was permitted under the modern international

law but only according to the norms and procedures specified

in the UN Charter.707

706 Scheffer, David J. "Beyond Occupation Law" The American Journal Of International Law, vol. 97, no. 4, 2003, p. 849. JSTOR, doi:10.2307/3133684 (Accessed 16 Nov 2017). 707 Danchin, Peter G. International Law, Human Rights, and the Transformative Occupation of Iraq in Bowden, Brett et al. The Role of International Law in Rebuilding Societies after Conflict, Cambridge, UK, Cambridge University Press, 2009, p. 75.

220

Under this view the UN Charter would provide for the political, social, and economic rights of the occupied peoples and diminish the specifics contained in Geneva IV.

Thus the occupation of Iraq “…is seen as the most paradigmatic example of transformative occupation to date”708 perhaps since it is the first time the Security Council has actually utilized it since the inception of the United Nations. Interest in this as the first UN case of occupation has resulted in questions about the extent that the Security Council can go in implementing a transformative occupation. Ambassador Scheffer argues that occupation law would not be sustained “…under the circumstances of a liberation sanctioned by the UN Security Council and the subsequent challenge of transforming a society deeply scarred by the repressive regime….”709 Scheffer concludes that “in recent years the UN Security Council has established a new dynamic for so-called ‘Occupations’ that far exceed anything that was contemplated in the original drafting of the relevant conventions.”710 Yet this concedes that occupation law remains viable law for belligerent occupations.711

How does this work in the real world? In Iraq, governing via the Coalition Provisional Authority, hereinafter the CPA, as the Occupying Powers issued extensive reforms without local participation.712 The list of changes is so extensive it impacted every aspect of Iraqi life yet security concerns dominated the entirety of the country with some of the critical battles,

708 Fox, Gregory H. "Transformative Occupation And The Unilateralist Impulse" International Review Of The Red Cross, vol. 94, no. 885, 2012, p. 237, Cambridge University Press (CUP), doi:10.1017/s1816383112000598 (Accessed 3 June 2018). 709 Scheffer, David J. "Beyond Occupation Law" The American Journal Of International Law, vol. 97, no. 4, 2003, p. 851, JSTOR, doi:10.2307/3133684 (Accessed 16 Nov 2017). 710 Id., p. 859. 711 Id. 712 See, Gurmendi Dunkelberg, Alonso. "Your Country, My Rules: Can Military Occupations Create Successful Transitions?" Georgetown Journal of International Law, vol. 46, 2015, p. 993. Elsevier BV, doi:10.2139/ssrn.2563212 (Accessed 6 June 2018).

221

Fallujah II and Mosul, occurring in late 2004 after the occupation formally ended.713 A lack of local participation exacerbated by the nearly fatal lack of security was the initial problem during and after the occupation of Iraq as this effort qualified as a transformative occupation.

Occupying Powers, granted such vast authority may become paternalistic or seek their own advantage while they are given “…license to become agents of constitutional revolutions.”714

Transformative occupation is not without critics and those tend to favor the concept of jus post bellum.715

4.4.2 Jus Post Bellum: Just Peace or just gap filling?

With the following chapter716 devoted to this concept, I will provide a brief overview in the context of this chapter. From a lawyer’s perspective the concept of jus post bellum has

“…remained at the periphery of legal scholarship”717 yet legal scholars have contributed to the development of the concept. Just War Theory currently consists of jus ad bellum and jus in bello but there is no part of this theory addressing the post-conflict phase of war so there has been a renewed interest in developing this third leg of the theory usually referred to as jus post bellum.

War has been viewed by lawyers as a dichotomy of the world existing either in a state of war or peace; essentially the Laws of War and the Laws of Peace. These two bodies of law were seen

713 Id., p. 996. The Multi National Force (MNF) remained in Iraq under United Nations Security Council Resolution 1546 at paragraph 9 stating that the Security Council “[n]otes that the presence of the multinational force in Iraq is at the request of the incoming Interim Government of Iraq and therefore reaffirms the authorization for the multinational force under unified command established under resolution 1511 (2003)….” 714 See, Fox, Gregory H. "Transformative Occupation And The Unilateralist Impulse" International Review Of The Red Cross, vol. 94, no. 885, 2012, p. 241, Cambridge University Press (CUP), doi:10.1017/s1816383112000598 (Accessed 3 June 2018). 715 Boon, Kristen E. "Obligations of the New Occupiers: The Contours of Jus Post Bellum" Loyola (L.A.) International & Comparative Law Review, vol. 31, 2009, p. 57. 716 Author’s Note: Please see Chapter 5 of this work. 717 Stahn, Carsten. "Jus Post Bellum: Mapping the Discipline(S)" American University International Law Review, 2008, p. 312.

222 as the on /off switch so that when one was on, the other was in an off position. There were only two positions in this toggle switch so there was no room for the transition from war back to peace so the law had no cognizance of any period for transition.718 “Jus post bellum is increasingly viewed by legal scholars as a framework to deal with the challenges of state- building and transformation after intervention.”719 Thus the concept of jus post bellum according to Stahn might help order “…the possible conflict between applicable norms and principles of international law—human rights law as opposed to international humanitarian law”720 and how these should be resolved.

Just as occupation may begin once territory is taken and secured, so too jus post bellum might begin during the jus in bello phase of war. The choice and use of weapons and tactics during the actual fighting could have a significant impact on the manner of later applying the concept of jus post bellum. Wars fought with this jus post bellum phase in mind should result in the chance of a solid peace treaty between the belligerents and, by implication if not documentation, a solid belligerent occupation to return the occupied territory back to the vanquished. Jus post bellum is currently a large moniker for a great number of ideas with each author defining the phrase differently, advocating for inclusions of elements, and leading to more chaos rather than clarifying the concept. In the following chapter, I will search for the elements of the concept labeled jus post bellum from the many and varied ideas for inclusion.

718 Neff, Stephen C. War and the Law Of Nations: A General History, Cambridge University Press, 2005, p. 178. 719 Stahn, Carsten. "Jus Post Bellum: Mapping the Discipline(S)" American University International Law Review, 2008, p. 321. See also, Cohen, Jean L., "The Role Of International Law In Post-Conflict Constitution-Making: Towards a Jus Post Bellum for "Interim Occupations"" New York Law School Legal Review, vol. 51, 2007, p. 501. 720 Stahn, Carsten. "'Jus Ad Bellum', 'Jus in Bello' . . . 'Jus Post Bellum'? Rethinking the Conception of the Law of Armed Force" European Journal of International Law, vol. 17, no. 5, 2006, p. 941-942. Oxford University Press (OUP), doi:10.1093/ejil/chl037.

223

Furthermore, I will provide examples of how wars can be fought with the jus post bellum military objective in mind. Among these ideas for the elements of jus post bellum is that of retribution or some sort of post-conflict justice for war criminals.

4.4.3 Transitional justice or new victor’s justice?

The International Center for Transitional Justice states that “[t]ransitional justice refers to the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response.”721 These periods of conflict or repression or both may be followed by some sort of occupation but I continue to limit this effort to belligerent occupation.

Transitional justice “…is rooted in the political transformations of Latin America, South Africa, and Eastern Europe of the late 1980s and early 1990s…”722 with the concomitant change of government to or towards democracy. For the United Nations, transitional justice is “…the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice, and achieve reconciliation.”723 Teitel focused on the legal responses by defining transitional justice as “…the conception of justice associated with periods of political change, characterized by legal

721 What Is Transitional Justice? ICTJ" International Center for Transitional Justice, 2018, https://www.ictj.org/about/transitional-justice (Accessed 13 July 2018). 722 Iverson, Jens. "Transitional Justice, Jus Post Bellum And International Criminal Law: Differentiating The Usages, History And Dynamics" International Journal Of Transitional Justice, vol. 7, no. 3, 2013, p. 415 Oxford University Press (OUP), doi:10.1093/ijtj/ijt019 (Accessed 10 May 2018). 723 UN Secretary General. The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. UN, New York, 2011, UN Doc. S/2004/616, para. 8.

224 responses to confront the wrongdoings of repressive predecessor regimes.”724 With the more prosecutorial sounding term “confront,” Teitel’s definition has been criticized by Iverson as being too narrow due to the focus on just the legal aspects.725 In any event, “[t]he substantive emphasis of TJ [transitional justice] should be on justice for human rights violations.”726 Justice can take many forms under the auspices of transitional justice such as trials, truth and reconciliation efforts, reparation programs, and reforms of the offending institutions.

Transitional justice can be administered via the traditional trial in a court of law and there are several of these available in four formats; the International Criminal Court (ICC), a specialized area court for a given war such as the International Criminal Tribunal for the former Yugoslavia

(ICTY) or the International Criminal Court for Rwanda (ICTR), a domestic court in the country, or some combination of domestic and international courts. A complete description of each of these courts is beyond the current scope but each of these judicial activities is reasonably well known. These are trial courts and as such are adversarial with a defendant in the dock for various crimes usually “…the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.”727 International courts have elements for the crimes, rules for evidence and procedures governing the trial, codes of conduct for all court personnel, and some sort of practice manual for the professional

724 Teitel, Ruti G. "Transitional Justice Genealogy" Harvard Human Rights Journal, vol. 16, 2003, p. 71. 725 Iverson, Jens. "Transitional Justice, Jus Post Bellum and International Criminal Law: Differentiating the Usages, History and Dynamics" International Journal of Transitional Justice, vol. 7, no. 3, 2013, p. 418. Oxford University Press (OUP), doi:10.1093/ijtj/ijt019 (Accessed 10 May 2018). 726 Id., p. 419. 727 "About The ICC" Icc-Cpi.Int 2018, https://www.icc-cpi.int/about (Accessed 23 July 2018).

225 legal participants.728 All of this is quite standard for the courts of general jurisdiction that might be called upon to administer transitional justice in the legal setting. Domestic courts and the hybrid of a mixed domestic and international court design may need to adopt some of these materials from the international courts.

Transitional Justice can be broader than formal trials or other legal inquiries and can reach into other ideas such as truth and reconciliation commissions or some other middle combination between these two ends. This middle ground offers the possibility of an ameliorating effect by the use of amnesty instead of prosecution as Clark has argued that court proceedings are not conducive to reconciliation.729 Amnesty or something akin to it may permit the vanquished or recently liberated the chance to resolve the really difficult cases where justice and reconciliation crash together thus making peace impossible.730 One historical example of this, although not termed amnesty, is the deliberate non-prosecution against the Emperor of Japan during the Tokyo War Crimes Trials under that belligerent occupation.731

A successful commission has been undertaken in South Africa that sought to ascertain the truth and then reconcile the population to each other in the post-apartheid period.732 The European

Union Rule of Law Mission in Kosovo known as EULEX is another recent example of this middle ground effort to restore peace based on the objective that the “EULEX Mission supports

728 Author’s Note: This information is based upon the author’s visit to and negotiations with ICTY for various sharing projects. 729 See, Clark, Janine Natalya. International Trials and Reconciliation. Routledge Taylor & Francis Group, 2015. 730 Pensky, Max. "”Jus Post Bellum" And Amnesties” Cambridge University Press, 2013, p. 155. 731 See, Majima, Shunzo. “Just Military Occupation? A Case Study of the American Occupation of Japan” 2013, p. 36. 732 See, Gade, Christian B.N. "Restorative Justice and the South African Truth and Reconciliation Process" South African Journal of Philosophy, vol. 32, no. 1, 2013, pp. 10-35. Informa UK Limited, doi:10.1080/02580136.2013.810412 (Accessed 16 July 2018).

226 relevant rule of law institutions in Kosovo on their path towards increased effectiveness, sustainability, multi-ethnicity and accountability, free from political interference and in full compliance with EU best practices.”733 While a middle ground effort, EULEX has not escaped claims of bias, overzealous prosecutions, and other types of prosecutorial selectivity by all relevant parties in Kosovo. Despite such accusations, the charter of EULEX has been extended until 2020 and this European Union organization appears to be working well to promote peace and reconciliation in a region that knows too little of both. These few examples show that it is possible to utilize the middle ground position to seek peace in addition to or instead of traditional legal trials that could be seen as victor’s justice.

However, there is much pushback on these middle ground remedies for a number of reasons.

South Africa is in the midst of such pushback evidenced by comments made by Julius Malema from the Economic Freedom Fighters Party reportedly stating “...that Mandela was too conciliatory, that he forgave whites before they apologized, let alone atoned, and that black economic liberation is still a distant dream.”734 Given that Mandela completed his term of office as President in 1999, this recent criticism appears to be centered on the current political situation in South Africa around the centennial of Mandela’s birth. Yet there is this seeming rejection of the former President’s principle of reconciliation and this calls into question the stability of this sort of post-conflict mechanism. If the results of the Truth and Reconciliation

Commission are rejected, what will become of South Africa?

733 What Is EULEX? - EULEX - European Union Rule of Law Mission in Kosovo" Eulex-Kosovo.Eu, 2018, http://www.eulex-kosovo.eu/?page=2,16 (Accessed 17 July 2018). Prosecutions have been turned over to the Kosovars with EULEX maintaining a monitoring role until 2020. Author’s Note: I was responsible for US NATO reporting on this group from August 2010 to August 2013 and attended several meetings with the organization in Brussels. 734 Godwin, Peter. "Mandela's Troubled Legacy" The Wall Street Journal, 14-15 July 2018, p. C4.

227

Similarly there has been criticism of the EULEX mission in Kosovo focused on the apparent failure of that entity to prosecute high-level criminals and hold corrupt officials accountable.

Politics has been blamed for the lack of prosecutions even in obvious cases of crime and corruption so this was viewed as preferring stability rather than enforcing the rule of law.735

Proving that the problem is not with the concept of the middle ground, these examples demonstrate the problem is in the execution of this specific idea that is found wanting due to the search for stability. Such an accusation was leveled against the belligerent occupiers in

Japan for not seeking to prosecute the Emperor.736

In reality, the problem might be that the drafters’ intent in writing the Charter of the United

Nations was to secure international peace and security prior to seeking justice. In Article 2(3) of the Charter of the United Nations the order of the wording favors international peace and security over justice. The mere listing of peace and security before justice could be significant as the drafters placed more importance on establishing peace and security before they would deal with justice once the other two were satisfied. “And justice” was a phrase added “…into the

Dumbarton Oaks Proposal at the initiative of a number of smaller countries”737 as these small counties feared being sold out again by the Great Powers as occurred in the Munich Agreement of 1938.738 There seems to be a quite predominant use of the language “international peace

735 See, Capussela, Andrea Lorenzo. STATE-BUILDING IN KOSOVO: Democracy, Corruption and the EU in the Balkans. I. B. TAURIS, 2015. 736 See, Majima, Shunzo. Just Military Occupation? A Case Study of the American Occupation of Japan, 2013, 737 Simma, Bruno, and Hermann Mosler. The Charter of the United Nations: A Commentary, Oxford University Press, 1994 p. 105. 738 Id. The Munich Pact (30 September 1938) was an agreement between the large states of Britain, France, Germany, and Italy. These states formulated and agreed to a complex plan for a phased occupation of the Sudetenland in western Czechoslovakia by Germany. Czechoslovakia was not part of the negotiations thus felt sold out by the large states. After the Second World War, many small states felt vulnerable to such efforts by the larger

228 and security” in the UN Charter beginning in the Preamble and being the first stated purpose of the United Nations in Article 1(1). The phrase “international peace and security” is used extensively throughout the Charter of the United Nations from Article 2 to Article 106739 and the significance of this cannot be overstated as these articles cover the majority of the Charter

Chapters. Justice is mentioned in three places in the Charter, specifically the Preamble, Articles

1 (1), and 2 (3). Such a shear numerical disproportion is aided by the overarching intent of the

Charter “[t]o maintain international peace and security….”740

The significance of this discussion for occupation is simply this: some semblance of peace and security is needed prior to any attempts at justice. Justice requires some public order so that a proper trial with a proper judiciary in a proper building with a proper prosecution and defense with proper rules of evidence and procedure can seek justice. Otherwise any effort at justice would be akin to mob justice, victor’s justice, or worse with none of these possibilities being acceptable to the international community and possibly not even to the local population. In no way is this intended to dilute the importance of justice as the belligerent occupation continues but the stability of the vanquished country may be more important than actual justice as was the case in both Germany and Japan in the post-Second World War timeframe. The successful prosecutions after the Second World War discussed in Chapter 2 indicate that justice can be served but that relative peace and security must come prior to any judicial action.

states to detach parts or all of the smaller states to avoid war or appease aggressor states. See, Wetterau, Bruce. Macmillan Concise Dictionary Of World History. Collier Books, 1986, p. 531. 739 The Articles include the Preamble, Articles 1 (1), 2 (3)(6), 11 (1)(2) & (3), 12 (2), 18(2), 23,24 (1), 26, 33(1), 34, 37(2), 39, 42, 43(1), 47, 48(1), 51, 52(1), 73 (c), 76a, 84, 99,and 106. 740 "Charter of the United Nations" Article 2 (3), UN.Org, 2018, http://www.un.org/en/charter-united-nations/ (Accessed 26 July 2018).

229

4.5 Conclusion.

Diplomats and lawyers have tried to change the world by legal means internationally through treaties based upon The Hague and Geneva Conventions dealing with the scourge of war and the subsequent tumult of occupation. Not surprisingly, these treaties have “…been created by states with their general interests and the particular interests of their armed forces in mind.”741

Advocacy for human rights has also changed the world legally via treaties that seek to protect the governed from their governments at all times. Both are genuine efforts to improve the world especially for the downtrodden and vulnerable. When these two efforts at legal improvement collide during war time and occupation, the best efforts of both works at cross purposes to one another. How can this be resolved?

I have argued that the Laws of War consisting of both the Laws of Armed Conflict and belligerent occupation were specifically designed over the past 120 years to resolve this query.

Such resultant rules for occupation are geared towards a specific event after the devastation of war to return the vanquished State to full membership in the international community. This is not to overlook the contributions of human rights law to legally changing the world but rather to recognize that States have gone to considerable effort to formulate the Laws of War to apply during those disastrous happenings and ameliorate them. War is violent “…and is precisely characterized by the breakdown of certain legal norms and constraints”742 so occupation law is the interim between the breakdown of war and the return to peace time. Occupation is that intervening curative time allowing the body politic to recover from the violence recently

741 Guelff, Richard, and Adams, Roberts. Documents on the Laws of War, 2nd ed. Clarendon Press, 1994, p. 14. 742 Id.

230 experienced yet true peace has not been completely re-established. The law needs to be applied with this in mind and must first be firm then over time made empathetic in application.

Since these aforementioned treaties promulgate occupation law and “…these are well known it should be possible to apply the principles of occupation law by analogy even if there is dispute as to whether the facts fit the occupation law criteria.”743 Further, these treaties establish a ready-made guide for these occupations by their intricate articles in Geneva IV if these would be utilized. Having expounded on those articles, the application and implementation are where there is a lack of persistence. Geneva IV has many solid provisions regarding belligerent occupation built upon the drafters’ often personal knowledge and experiences in the Second

World War. States party to this treaty may seem baffled by the applicability of these provisos in the twenty-first century but these rules were developed to be a model for occupation writ large that could be rapidly employed when the need for occupation arises. Undoubtedly there will be quibbles about how a given provision applies in a given situation or the like, yet this is not a reason to toss the proverbial baby out with the bath water. Geneva IV is a solid treaty with far- reaching consequences yet well-known and understood if not well applied. While changes to the Laws of War maybe warranted this should not be done by rejecting the efforts of the world’s States in establishing The Hague and Geneva Conventions, especially under the rubric of adopting the universality of another set of treaties. Human rights law applies generally but the time and effort invested by States to date to carve out the special applicability of the Laws of War argues for their precedence when they most need to be functional. The derogations

743 Wills, Siobhan. "Occupation Law and Multi-National Operations: Problems and Perspectives - Ulster Institutional Repository" Uir.Ulster.Ac.Uk, 2007, http://uir.ulster.ac.uk/30760/ (Accessed 18 July 2018).

231 found in most human rights treaties indicates that the drafters were cognizant of the inapplicability of these general laws when the specialized Laws of War were called for during combat and in the belligerent occupation that occurs both during and after the war. These times of chaos often without security where life and death decisions are made in seconds present different situations than the calm of peacetime.

I am reminded of the warning provided to combat and occupation legal advisors that due to the

“...magnified and random spotlight of accountability for real and perceived failures in an occupation, and because an occupation is so legally intensive, the legal advisor is unlikely to escape the light [of examination and prosecution].”744 Ultimately, the legal advisor will not

“…be judged in the context of the danger, ambiguity, exigency, and imperfect information that defines occupation.”745 Rather the legal advisor will be judged “…in a quiet, dignified, well-lit room [and their actions] viewed with the perfect, and brutally unfair, vision of hindsight….”746

True as this is for the legal advisor, imagine the impact on the front line forces during an occupation. Consider the fear of a young soldier at a checkpoint during an occupation and the fear of making a mistake punishable not by the standards of combat or occupation but rather by the standards of a police force in peacetime when you are the target of insurgents wanting to kill you in an unsecure area where actual hostilities could erupt at any unknown moment as you are trying to provide security.

744 Warren, Mark. Belligerent Occupation, found in Corn, Geoffrey S., et al. U.S. Military Operations. Oxford University Press, 2016, p. 683. 745 Id. 746 Comey, James B. Intelligence Under the Law, 10 Green Bag 439, p. 443, cited in Goldsmith, Jack, "Reflections On Government Lawyering" Military Law Review, vol. 205, 2010, p.201 https://jagcnet.army.mil/DOCLIBS/MILITARYLAWREVIEW (Accessed 22 July 2018).

232

I highlight this area to demonstrate that occupation is a chaotic time of upheaval often compounded by the dimness of a guerilla war or an insurgency. Situations like these need to quickly implement stability in every aspect of life and the Geneva IV drafters provided us with such a model to plug into to begin to resolve the return to peace time for the vanquished.

As will be discussed in extended detail in Chapter 7 of this work, the Laws of War are lex specialis and must apply as the primary source of law during combat and any application of belligerent occupation. There is both legal and historical evidence that this is the intention of the treaties on the conduct of war and occupation especially as envisaged in Geneva IV. General rules of law cannot be forced to fit into unsecure areas where the niceties of civilization are certainly not present and chaos rules. Occupation law brings the early stages of security and order to begin the long process of returning sovereignty to the vanquished and ending the occupation with its concomitant costs in blood and treasure. Without a return to peace via occupation, a Hobbesian world awaits where there will be no laws other than that of the jungle with war a constant. The belligerent occupation law is located in The Hague Conventions and

Geneva IV and while admittedly not perfect, the perfect cannot become the enemy of the workable. Every attempt must be made to use the available occupation law until such time as there is a new conference to develop a more robust treaty regarding occupation.

Unfortunately, if history is a guide, then only another war, possibly extending over much of the earth, will make States ready to negotiate a better end to wars via a new occupation treaty.

While not an advocate for another treaty perhaps some preliminary work on occupation writ large could begin. The working group could attempt to fill in any of the perceived gaps in the extant laws

233

Would a completely different approach to the return of sovereignty to the vanquished help comport occupation law to that goal and establish a just peace? We will consider one possible approach in the next chapter when the concept of jus post bellum is examined.

234

Chapter 5 Just War Theory and the evolving concept of jus747 post bellum

As I have pointed out there is a gap between the applicability of the Laws of Peace and War such that the return to peace just somehow occurred. I argued that a phase of belligerent occupation was needed to establish control and security essential for state building. Yet this phase to develop a functioning state does not totally complete the process of returning the sovereignty to a vanquished country. . The bedeviling question is what should be the next step in returning the sovereignty to the citizens of the vanquished state and establishing a just peace. What should transpire in a general sense between the conclusion of the belligerent occupation and the return of sovereignty? In other words, what should transpire to facilitate this return? I will argue that to achieve this goal of returning sovereignty to the vanquished there should be a phase of jus post bellum to complete that transition from control and security to a just peace. Due to the effort to resuscitate the Just War Theory into a modern, secular system748 by the eminent scholar Michael Walzer, the Just War Theory must be considered.

Such an effort emanates from Aristotle to Kant to the current theorists working on completing the idea of Just War by including the concept of jus post bellum. The current discussions regarding the development of the jus post bellum concept will be located. “Students of international relations are usually – and rightly—concerned with current events. Putting these

747 Due to their origins, the terms regarding Just War Theory are almost always in Latin, and we will adopt the more generally accepted “jus” as opposed to the traditional Latin “ius” although many scholars prefer the latter. 748 Walzer, Michael. Just and Unjust Wars: A Moral Argument with Historical Illustrations. London: Allen Lane (1978). See also, Rawls, John. The Law of Peoples. Harvard University Press, 1999, p. 6-7. Rawls employs the word “just” to describe both social policies and basic institutions as the main motivating ideas for his law of peoples in attaining a just and peaceful future.

235 events in historical context is critical to understanding patterns of behavior in world politics.”749

This chapter will attempt to place the concept of jus post bellum into that historical context.

Why? If the goal is a just peace with the return the sovereignty to the vanquished people after a period of rehabilitation then that period must be examined. The oldest non-conquest ideas about this transitional period have been in the just war tradition. The just war tradition provides some guidelines so the past is examined for knowledge transferable to the future in seeking a just peace after a war and belligerent occupation. To reach the goal of a just peace with a return of sovereignty to the vanquished that end point must be articulated, studied, and understood.

5.1 Historical development of the just war tradition

Previous works on the just war tradition focus on a generalized historical context as they advocate for the inclusion of this final concept into the Just War Theory. A more thorough review of the historical context surrounding this concept focusing on the major contributors should assist us in understanding the entirety of this concept rather than short vignettes directed at one or two historical figures or situations. Ignoring the broader historical context of the jus post bellum concept is typical of political theoretical works and may miss the developmental evolution that has brought humankind to our present location poised to fill the gap between the Laws of War and Peace. The current lack of historical context seems to permit then an a la carte inclusion of ideas hindering the development of jus post bellum as the third leg of the Just War Theory. In this work special emphasis is placed on Grotius who transitioned

749 Fazal, Tanisha M. State Death: The Politics and Geography of Conquest, Occupation, and Annexation. Princeton University Press, 2011, p. 13.

236 the then contemporary jus post bellum concept to a more humanitarian view. Knowing the end result of a just peace may provide for better signage along the way as the aspirational ideal belligerent occupation and jus post bellum phase is developed. With a clear comprehension of the historical evolution of jus post bellum and its current evolutionary location then the ideal belligerent occupation and jus post bellum phase may become more practical and attainable.

5.2 Just War Basics

The concept of “just war”750 traces its lineage to the Greco-Roman and early Christian values primarily those of Aristotle, Cicero, and St. Augustine.751 Beyond these, many noteworthy scholars contributed to the development of the Just War Theory, including St. Thomas Aquinas,

Francisco Vitoria, Francisco Suarez, Hugo Grotius, Samuel von Pufendorf, and Immanuel Kant.

Just War Theory deals with the justification of why wars are fought and how wars are fought as humankind “...attempted to limit its destructive effects.”752 There is now a movement753 across

750 The term “just war” will be used in this work yet the term should perhaps be translated as “justified war” according to Paul Ramsey, a prominent Protestant theologian in Schutz, John A., and Paul Ramsey. "War And The Christian Conscience: How Shall Modern War Be Conducted Justly?" The Western Political Quarterly, vol. 14, no. 4, 1961, p. 991. JSTOR, doi:10.2307/445121. 751 Johnson, James Turner. The Just War Tradition and the Restraint of War. Princeton, NJ: Princeton Press, 1981. 752 Elshtain, Jean Bethke. Just War Theory. New York, New York University Press, 1992, p. 1. 753 See, May, Larry, and Elizabeth Edenberg. Jus Post Bellum And Transitional Justice. Cambridge University Press, 2013; Stahn, Carsten, and Jann K. Kleffner, Eds. Jus Post Bellum: Towards A Law Of Transition From Conflict To Peace, T.M.C. Asser, 2008; Banta, Benjamin R. "‘Virtuous War’ And The Emergence Of Jus Post Bellum" Review Of International Studies, vol. 37, no. 01, 2010. Cambridge University Press (CUP), doi:10.1017/s0260210510000434 (Accessed 8 May 2018); Österdahl, Inger. "Just War, Just Peace and the Jus Post Bellum" Nordic Journal of International Law, vol. 81, no. 3, 2012, Brill Academic Publishers, doi:10.1163/15718107-08103003 (Accessed 9 Dec 2017); Iasiello, Louis V., "Jus Post Bellum: The Moral Responsibilities Of Victors In War" Naval War College Review, 2004, (Accessed 19 May 2018); Rozpedowski, Joanna K. “Just Peace At War’s End: The Jus Post Bellum Principles As National And Human Security Imperatives – Lessons Of Iraq And Kosovo” Global Jurist, vol. 15, no. 3, 2015, Walter De Gruyter Gmbh, doi:10.1515/gj-2014-0025; and Benson, Christina C. "Jus Post Bellum In Iraq: The Development Of Emerging Norms For Economic Reform In Post Conflict Countries" Richmond Journal Of Global Law And Business, vol. 11, no. 4, 2012.

237 of broad spectrum of theorists, international lawyers, and practitioners towards a just peace after a just or unjust war through the concept of jus post bellum.

International organizations, theorists, international lawyers, and practitioners have accepted there are two parts754 of the Just War Theory called jus ad bellum and jus in bello. The first of these two parts means the “right to wage war.”755 This phrase asks if a war is to be fought for a just cause and if entering into war is justified. For example, an international agreement756 limiting the justifiable reasons for a country to declare war against another is concerned with the concept of jus ad bellum. The principles central to jus ad bellum are “right authority, right intention, reasonable hope, proportionality, and last resort.”757 In book entitled The City of

God, St Augustine wrote “[t]he purpose of even war is peace. For where victory is not followed by resistance there is a peace that was impossible as long as rivals were competing, hungrily and unhappily….”758 We should note that this first part of the Just War Theory is addressed primarily to heads of states or heads of governments (HOSHOGs) and other high level officials making the momentous decision to conduct a war especially an unjust war of aggression.

754 See, "What Are Jus Ad Bellum And Jus In Bello?" International Committee of the Red Cross, 2015, https://www.icrc.org/en/document/what-are-jus-ad-bellum-and-jus-bello-0 (Accessed 4 Aug 2019); White, Nigel D. and Christian Henderson. Research Handbook On International Conflict And Security Law: Jus Ad Bellum, Jus In Bello And Jus Post Bellum. Edward Elgar Publishing, 2013; Okimoto, Keiichiro. The Distinction and Relationship Between Jus Ad Bellum And Jus In Bello. Hart, 2011. 755 Definition found at USALegal.com 756 For example, the Kellogg-Briand Pact officially General Treaty for Renunciation of War as an Instrument of National Policy, League of Nations Treaty Series, vol. 94 p. 57 (no. 2137) 1928. 757 International Committee of the Red Cross, https://wwwicrc.org/eng/resources/documents/ misc/5kzjjd.htm (Accessed 14 Aug. 2018) 758 Augustine of Hippo. The City of God; An Abridged Version from the Translation by Gerald G. Walsh [and Others], Edited, with an Intro. by Vernon J. Bourke, New York, NY. The Doubleday Religious Publishing Group, 1958, Bk. XV, Ch. 4, p. 314.

238

The second part of the current theory of just war is labeled jus in bello or law in waging war.759

According to the International Committee of the Red Cross jus in bello contains “provisions

[that] apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just.”760 Again, it is noted that this part of the just war concept is addressed to the warfighters; that is, those military commanders, officers, and troops that formulate and execute the just war for a state and tangentially to the HOSHOGs to fight a “clean” fight.

The nascent concept of jus post bellum, or law after war,761 relates to the conclusion of war and has had a traditional, albeit underdeveloped, place in the Just War Theory. Despite this uncertainty, the post-conflict dilemma has not gone unaddressed. St. Augustine wrote in The

City of God that “[w]hat, then, men want in war is that it should end in peace. Even while waging a war every man wants peace, whereas no one wants war while he is making peace.”762

The Spanish friars and theologians of the late middle ages, Francisco Vitoria and Francisco

Suarez, concluded that a just cause in a just war must lead to a just post-war settlement.763

Grotius articulated a precursor of jus post bellum by writing that “…the end and aim of war [is] the preservation of life and limb….”764 The concept continues to be developed to this day.

759 Definition found at USALegal.com. 760 International Committee of the Red Cross, https://wwwicrc.org/eng/resources/documents/ misc/5kzjjd.htm (Accessed 14 Aug. 2018) 761 Stahn, Carsten, Jus Post Bellum: Mapping the Disciplines(s), Am. U. Int’l L. Rev., 2008, p. 312. 762 Augustine of Hippo, The City of God, p. 445, Bk. XIX, Ch. 12. 763 Luiz Sergio Solimeo, Just War According to Catholic Teaching, The American Society for the Defense of Tradition, Family , and Property, 9 April 2003, www.tfp.org/tfp-home/…/just war according to catholic teaching.html (Accessed 2 June 2018) 764 Grotius, Hugo, and Stephen C. Neff, Hugo Grotius On The Law Of War And Peace. New York, Cambridge University Press, 2012, p. 81-84, Bk. II, Ch. 1, Section 3 “War for the defence of life” and Section 6 “Whether defence of limb is justified.” See also See Hugo Grotius, DE JURE BELLI AC PACIS LIBRI TRES [ON THE LAW OF WAR

239

What does this third part of the Just War Theory mean today? The concept of jus post bellum

“presupposes a concluded or concluding armed conflict with international actors….”765 When the end of combat is coming or has arrived; the military begins to think in terms of occupation with the corresponding law of occupation. The third concept of just war “…as discussed in international law is aimed at providing the legal means by which… the war-torn society will be taken through the post-conflict state of transition and brought into a state of just and stable peace.”766 If jus post bellum becomes widely accepted, the significance could have deep ramifications not only for the conduct of war, but especially for post-war occupation, reconstruction, and reparations on the road to a just peace. I view this post-conflict state of transition as a two part effort consisting of occupation and then building a just peace, so that by

“[s]etting clear guidelines for post-conflict occupation [this] will help to reinforce credibility and legitimacy in establishing a rule of law and achieving the key jus post bellum goal of building a lasting peace.”767

5.3 The Evolving Concept of jus post bellum in the Just War Theory

Jus post bellum has a long, if relatively unnoticed, history. It will be traced from those ancient origins to assist in understanding the importance of that development and the potential relevance for the future. Due to the relatively unnoticed antecedents, that historical context

AND PEACE: THREE BOOKS] (1625), translated in 3 THE CLASSICS OF INTERNATIONAL LAW 9, p. 52 (James B. Scott ed., Francis W. Kelsey trans. Carnegie Institution of Washington 1925) (1913) (claiming that the first principles of nature favor war, as the "end and aim of war" is "the preservation of life and limb, and the keeping or acquiring of things useful to life"). 765 Pensky, Max, Jus Post Bellum and Amnesties, Cambridge University Press, 2013, p. 155 in Jus Post Bellum and Transitional Justice, ed. Larry May and Elizabeth Edenberg, New York, NY, Cambridge University Press, 2013. 766 Österdahl, Inger, "Just War, Just Peace and the Jus Post Bellum" Nordic Journal of International Law, vol. 81, no. 3, 2012, p. 271. Brill Academic Publishers, doi:10.1163/15718107-08103003 (Accessed 1 May 2018). 767 Benson, Christina C., "Jus Post Bellum In Iraq: The Development Of Emerging Norms For Economic Reform In Post Conflict Countries" Richmond Journal Of Global Law And Business, vol. 11, no. 4, 2012, p. 351.

240 will be examined to comprehend the pattern of behavior that led us to today with a view towards using it in the future to bridge the gap between the Laws of War and Peace.

In Politics, Aristotle wrote that conflict was inevitable in social life and politics. He believed that conquering and ruling others was a deprivation of their human freedom and status; thus, he opined that these peoples should not be killed. Aristotle believed in slavery both natural and under the law as punishment.768 Natural slavery, or as he called it “conventional slavery,” was

“…slavery originating in conquest in war”769 however, he grounds the concept of slavery on the

“superiority of the master’s virtue rather than on mere force.”770

Marcus Tullius Cicero took up the just war idea as he defined justice as “a civic virtue that requires a person both to live in such a manner that he seeks the good of others and to compel others to live the same way, sometimes through the use of just war.”771 Cicero was a political practitioner holding some of the highest offices in the Roman Republic and dealt with the day- to-day politics of the period; thus, his writings reflect that practicality. For Cicero, “[b]oth reason and justice must somehow be diluted to meet the needs of the…political life.”772

Therefore he could appear to contradict himself by arguing that the only excuse for war is that we may live in peace unharmed while staunchly supporting the idea contained in the popular

768 Aristotle, Politics, Book V, T.A. Sinclair (Translator), Trevor J. Saunders (Revised by) Penguin Classics, London, 1992. 769 Strauss, Leo, and Joseph Cropsey, History of Political Philosophy, Chicago, The University of Chicago Press, 2006, p. 137. 770 Id., p. 138. 771 Van Neste, Berit, Cicero and St. Augustine's Just War Theory: Classical Influences on a Christian Idea, p. 60, 4-12- 2006 Graduate Theses and Dissertations. http://scholarcommons.usf.edu/etd/3782 772 Strauss, Leo, and Joseph Cropsey, History of Political Philosophy, Chicago, The University of Chicago Press, 2006, p. 174.

241 translation of the aphorism that “laws are silent in times of war.”773 Wanting peace, Cicero as a political practitioner, could permit the awfulness of unrestricted warfare to attain that end.

Borrowing heavily from Cicero, Saint Augustine developed the basis for just war. Saint

Augustine is often mentioned as the progenitor of the jus post bellum concept as he holds combatants responsible for the ways in which a war is concluded and the conduct of the peace that follows.774 In The City of God, the outcome of a just war was to

seek to obtain or restore peace, and in this sense, it is an

instrument of peace. By peace he understands the tranquility

of order, the right disposition of things according to their

proper end. Saint Augustine also defines just war as a means to

re-establish and vindicate violated justice, and thus obtain peace.

Therefore, one can wage war to punish a nation for the violation

of just order.775

He applied this to everyone arguing that “[a]t any rate, even when wicked men go to war they want peace for their own society…Of course the only means such a conqueror knows is to have all men so fear or love him that they will accept the peace he imposes on them.”776 St.

Augustine recognized the imposition of peace upon the vanquished by force, if necessary, or

773 Cicero, Latin Texts & Translations Pro Milone, Perseus, UChicago.Edu, 2016, http://perseus.uchicago.edu/cgi- bin/philologic/search3torth?dbname=LatinAugust2012&author=^c (Accessed 1 May 2018). 774 Augustine, The City of God, translated by Henry Betterson, London, Penguin books, 1972, p. 866. See also, Stahn, Carsten. "Jus Post Bellum: Mapping The Discipline(S)". American University International Law Review, 2008, pp. 311-347. 775 Solimeo, Luiz Sérgio, Just War According to Catholic Teaching, The American Society for the Defense of Tradition, Family and Property (TFP) 09 April 2003, www.tfp.org/tfp-home/.../just-war-according-to-catholic- teaching.html 776 Id., p. 447.

242 benevolence as he penned “[t]he fact is that the power to reach domination in war is not the same as the power to remain in perpetual control.”777 This passage indicates a clash between being the victor in a war and ruling during the peace that follows the conclusion of the war. In the next chapter the ideal occupation will deal with this difference. His goal was always peace.

Theologians and philosophers were not alone in considering the issues related to just war. At nearly the same time Flavius Vegetius, a Roman military author, wrote “[i]f you want peace prepare for war [yet] …he took for granted that ‘peace’ was the rough equivalent of

‘victory.’”778 What this indicates is that the idea of conquest was prevalent with the vanquished made part of the victor either by inclusion of the territory or as slaves to that conqueror, or perhaps both. Philosopher-Saint and warrior agree on the end, if not on the approach, as this period generated writings on the intertwined concept of peace after war.

Today, due to these original authors of the Just War Theory, civilians and prisoners of war

(POWs) are protected from outright murder, the basis for occupation law was planted, and the re-establishment of peace as a precursor of jus post bellum was established.

“From Augustine’s time until the twelfth century there were few developments in the doctrine of the just war.”779 Gratian was an important contributor but mostly as an updated compendium of his own and others writings on the topic wherein “…he quoted the traditional answers, mostly from Augustine, and usually added brief conclusions of his own.”780 His combinations of Roman Law with Canon Law created a more vibrant and comprehensive view

777 Id., p. 314. 778 Temes, Peter S., The Just War, Chicago, Ivan R. Dee, 2003, p. 9. 779 Tooke, Joan D., The Just War in Aquinas and Grotius, SPCK, 1965, p. 12. 780 Id., p. 13.

243 of law along with how that law functioned in society. Just war for Gratian was to redress some actual injury and be authorized by a legitimate public authority.781

So nearly a millennium passed until the next development of the Just War Theory occurred in the writings of Saint Thomas Aquinas, who posited the three tests to determine if a war is just.

In Summa Theologica, he stated “[i]n order for a war to be just, three things are necessary.

First, the authority of the sovereign…Secondly, a just cause…Thirdly, a rightful intention.”782 St.

Thomas Aquinas did not explain how this third thing might be tested but suffice it that “…a ‘just war’ in the 14th century was virtually a legal necessity as the basis for requisitioning feudal aids in men and money.”783 Despite such writings, the right of spoil, more properly pillage, was preserved especially in a just war. “It rested on the theory that the enemy, being unjust, had no right to property, and the booty was the due for risk of life in a just cause.”784 Just war was often used to begin a conflict but the post-conflict phase retained the ancient practice of the right of conquest. Furthermore, St. Thomas Aquinas “…defends not only the necessity but the justice of that practice [post-conflict slavery], which he presents as beneficial to both conqueror and conquered, since it spares the life of the latter and secures for the former the services of a subject population.”785 Clearly, Just War Theory is evolving slowly with the development of the test for the beginnings of a just war. As with many developmental concepts the remnants of the historical context, in this case, conquest still prevails after the war. Yet we begin to see the idea

781 See, Gratian et al., The Treatise On Laws, Catholic University Of America Press, 1993. See also, Loughton, Gavin, Calvin's Case and the Origins of the Rule Governing Conquest in English Law, 8 Austl. J. Legal Hist. 143 (2004). 782 The Summa Theologica of St. Thomas Aquinas, The second part of the second part, Second and Revised Edition, 1920, Literally translated by Fathers of the English Dominican Province, Online Edition Copyright © 2008 by Kevin Knight. 783 Tuchman, Barbara W., A Distant Mirror: The Calamitous 14th Century, New York, Knopf, 2002, p. 73. 784 Id. 785 Strauss, Leo, and Joseph Cropsey, History of Political Philosophy, Chicago, The University of Chicago Press, 2006, p. 268.

244 that the vanquished are to be spared, a principle that remains to this day in the Third and

Fourth Geneva Conventions, even if those saved were subject to work for the victor.

Theologians after Saint Thomas Aquinas, particularly Francisco de Vitoria (1485-1546) and

Francisco Suarez (1548-1617), completed the scholastic theory of just war with the principle of proportionality and that all peaceful means must be exhausted before having recourse to war.

Vitoria “…allowed that a militarily necessary storming of a city could be undertaken even though this would inevitably result in violations of the rights of noncombatants in the city such historical evidence suggests a moral acceptance of the possibility of preserving a value by wrong means.”786 However, such a thought, while permissible, is tempered by the limitations placed on this type of attack by the general laws of war, what today we would call proportionality; explained as “… that foreseen but unintended harms must be proportionate to the military advantage achieved.”787 These theologians point out that the need for justification applies only to offensive not defensive war, since the principle of legitimate defense in the face

786 Johnson, James Turner, Threats, Values and Defense in Just War Theory, in Elshtain, Jean Bethke, and Robert L. Holmes, Just War Theory, New York, New York University Press, 1991, p. 70-71. 787 Lazar, Seth, "War (Stanford Encyclopedia Of Philosophy)" Plato.Stanford.Edu, 2016, https://plato.stanford.edu/entries/war/ (Accessed 5 Aug 2019). See also, "The Law Of Armed Conflict (LOAC)". Peterson.Af.Mil, 2016, https://www.peterson.af.mil/Portals/15/documents/Units/JudgeAdvocate/AFD-160210- 019.pdf (Accessed 5 Aug 2019). “Proportionality means we use no greater force than needed to obtain our military objective. A military target or a place occupied by a combatant force can be attacked. However, the attack or shelling by any means whatsoever of undefended towns, villages, dwellings, or buildings is prohibited. This means that military targets can be attacked wherever they are located, but a town with no military targets must be spared. Further, the amount of suffering or destruction resulting from the attack of a military target must be proportional to the amount of force required to accomplish the mission. Any excessive destruction or suffering not required to accomplish the objective is illegal as a violation of the LOAC. If legitimate military targets occupy positions near protected places such as churches or hospitals, but are not placed in or on them, you can still attack the legitimate target even if the attack causes unavoidable incidental damage to the otherwise protected facilities. You should attempt to cause no greater destruction or damage to enemy property than necessary to accomplish the military mission. This does not mean we are required to use the minimum amount of force necessary to destroy a target. What is does mean, is that your use of force should not be so excessive that collateral damage is disproportionate to the amount of force necessary to achieve your legitimate military objective. Proportionality is the key word here.” Original pamphlet by the author in 2004 while serving as the Staff Judge Advocate for the 21st Space Wing.

245 of an attack is evident.788 Vitoria goes farther in taking a critical view of the arguments for

Spanish colonization of the western hemisphere by establishing the Amerindians were to be respected as well as recognition of their property rights and political institutions as these could not be revoked without just cause nor deprived due to their not being Christians or being sinners.789 In the end, “Vitoria understood war as a quasi-judicial activity properly resorted to only in cases where there was no judiciary to adjudicate disputes.”790 Friar Suarez was a student of both St. Thomas Aquinas and Vitoria in furthering their ideas and occasionally departing from these concepts, he was “…perhaps the first author to specifically talk about the three phases [of Just War Theory] widely recognized today, jus ad bellum, jus in bello, and jus post bellum.”791 More exactly, he wrote “[t]hirdly the method of [war’s] conduct must be proper, and due proportion must be observed at its beginning, during the prosecution, and after victory.”792 Despite their advances, the Friars were caught in the thinking of medieval times as the world was changing due to the expanding empires being amassed during the

European explorations. Regardless of the remaining medieval problems such as the right of spoil, today, we can see these medieval scholars’ influence in the Laws of War regarding state action in exhausting other remedies before going to war, the basis for war being a proper cause sometimes via modern institutions such as the United Nations Security Council, the idea of proportionality, and the inherent right of self-defense.

788 Solimeo, Luiz Sérgio, Just War According to Catholic Teaching, The American Society for the Defense of Tradition, Family and Property (TFP) 09 April 2003, www.tfp.org/tfp-home/.../just-war-according-to-catholic- teaching.html 789 Vitoria, Francisco de, et al, Political Writings, Cambridge University Press, 1991 p. 240-256. 790 Bellamy, Alex J., Francisco De Vitoria, in Brunstetter, Daniel R., and Cian O'Driscoll, Just War Thinkers, Routledge, 2018, p. 82. 791 Brunstetter, Daniel R, and Cian O'Driscoll, Just War Thinkers, Routledge, 2018, p. 105-106. 792 Suárez, Francisco, et al., Selections from Three Works, Liberty Fund, 2015, p. 916.

246

Writing on the combination of these explorations and, especially, the incessant wars, Hugo

Grotius793, a seventeenth century Dutch legal scholar, would have a major influence on the Just

War Theory as he also did on international law. Grotius wrote “God wills that we should protect ourselves, retain our hold on the necessities of life, obtain that which is our due, punish transgressors, and at the same time defend the state ...Therefore, some wars are just.”794 He was born during the Eighty Years War in Holland and, later, the Thirty Years’ War was raging when this book was completed. His life was imbedded in war. As an observer of this most destructive of European wars there is little doubt these constant wars influenced his writings. In his book entitled, On the Law of War and Peace, he argued that Just War Theory was binding via natural law on all people and nations. Hugo Grotius advanced the theory of just war by emphasizing moderation in treatment of the vanquished.795 The Grotian view of just war may be summed up as “Grotius sought to stem the tide of people’s lack of restraint in going to war and prosecuting it with more cruelty and brutality than barbarous forces and invaders.”796

During the tumult of these wars, the peaceful resolution of those conflicts and what that peace might entail was surely discussed among Grotius’ circle of leaders, other lawyers, fellow diplomats, and friends.797

Viewing Grotius as the bridge between the medieval and the modern world, we will examine arguably Grotius’ greatest work, On the Law of War and Peace. These three books were a

793 This is the Latinized version of the Flemish name, Hugh de Groot. See, Knight, W.S.M. The Life and Works of Hugo Grotius, Sweet & Maxwell, 1925. See also, Grotius, Hugo, and Stephen C Neff, Hugo Grotius on the Law of War and Peace, Cambridge University Press, 2012, p. xiii. 794 Grotius, Hugo, “De Iure Praedae Commentarius”, Clarendon Press, Oxford, 1950. Available at: http://plato.stanford.edu/entries/grotius/. 795 Nussbaum, Arthur, A Concise History of the Law Of Nations, New York, Macmillan, 1961, p. 110. 796 Thompson, Kenneth W., Fathers Of International Thought, Louisiana State University Press, 1994, p. 71. 797 Id. at p. 69-70.

247 treatise that is not as widely read today as in the past despite a twentieth-century revival of interest in his writings.798 The following analysis studies the language contained in Grotius’ book On the Law of War and Peace in terms of vocabulary, word choice, and word usage. While there are a plethora of materials about Grotius, there is a dearth of scholarship on his ideas regarding a legal post-conflict administration.

My work is apparently a maiden traversing of this territory and thus we will proceed cautiously.

Part of this caution is due to previous scholarly works wanting to “…make Grotius appear to be the precursor of all those international law ideas which have arisen since the end of the First

World War.”799 Another criticism leveled by the British political scientist, Hedley Bull, is that

Grotius “…while he expounds all the laws that bear upon a particular subject, fails to tell us what is the law.”800 Thus we must consider that a myth has developed regarding the Grotian tradition in international law not in conformance with the actual writings of Grotius.801 Mindful of these admonitions, we will use the text as written by Grotius to ascertain any evidence of his being a progenitor of any concepts of the modern just peace transition.

Grotius identified what is permissible post-war, including a short chapter on ruling the conquered, providing for the loss of the conquered states’ sovereignty, and that the state may cease to exist.802 Writing about sovereignty, Grotius contended it “…may be acquired for the victor… and in that case, the victor succeeds to the rights of the ruler only, and nothing

798 Nussbaum, Arthur, A Concise History of the Law Of Nations, New York, Macmillan, 1961, p. 114. 799 Grewe, Wilhelm, and Michael Byers, The Epochs of International Law, Walter De Grutyer Gmbh & Co, 2000, p. 192. 800 Bull, Hedley et al., Hugo Grotius and International Relations, Clarendon Press, 1992, p. 79. 801 Grewe, Wilhelm, and Michael Byers, The Epochs of International Law, Walter De Grutyer Gmbh & Co, 2000, p. 192. 802 Grotius, Hugo, and Stephen C. Neff, Hugo Grotius On The Law Of War And Peace, Cambridge University Press, 2012, p. 374, Bk. III, Ch. 8, Section 2. [Hereinafter cited as Neff].

248 beyond….”803 Further, “[e]ven a more fundamental change may be accomplished, so that for instance what was a state ceases to be a state.”804 Such a proposition leaves to the conqueror the total ability to choose what he wants from the vanquished, although Grotius allowed for the voluntary surrender of what would be taken by force. Continuing on, he asserts that a vanquished entity “…may become an accession of another state….”805 Taken together these sections indicate a continuation of the conquest version of post-conflict administration. In a later chapter, Grotius explained his view of conquered land “[a]s other things may be acquired in a lawful war…”806 so too could land be taken, although later Grotius urges moderation in such seizures. His conclusion saw the state as all important, but not eternal, as the contentiousness of international life may end the existence of that entity.

Regarding people caught up in war, Grotius considers the old Roman concept of postliminy, or in Latin, postliminium, that requires explanation. Black’s Law Dictionary defines this word as a

fiction of law by which the restoration of a person to any status or

right formerly possessed by him was considered as relating back

to the time of his original loss or deprivation; particularly in the

case of one who, having been taken prisoner in war, and having

escaped and … by aid of the fiction, as never having been abroad,

and was thereby reinstated in all his rights.807

803 Id., p. 374, Bk. III, Ch. 8, Section 1. 804 Id., p. 374, Bk. III, Ch. 8, Section 2. 805 Id. 806 Id, p. 406, Bk. III, Ch. 15, Section 1. 807Black, Henry Campbell, and Michael J. Connor, Black's Law Dictionary, 5th ed., West Publishing Co, U.S., 1981, p. 1050.

249

This ancient concept may be important since “[t]he term is also applied, in international law, to the recapture of property taken by an enemy, and its consequent restoration to its original owner.”808 Exploring the legal concept of postliminy, Grotius believed that the concept applied in and after war.809 Therefore, repatriation of persons should occur when the war is concluded; simply stated, this legal fiction restored civilians to their previous status.810 A similar proposition holds for property to the extent it can be returned if not used or otherwise consumed. The significant idea presented here is that this concept of postliminy applies during jus in bello and in the post –conflict phase. Grotius also makes a distinction between combatants and noncombatants. Noncombatants enjoy the automatic restoration of rights

“[f]or other captives, however, there is no postliminy in time of peace unless this was provided for in the terms of peace.”811 Thus, a treaty provision in the peace accord was required for the restoration of combatants. Until otherwise arranged, a recognized exception to the postliminy concept permitted combatants to remain as “slaves” of their captors. This treatment of combatants as slaves was well established, thus in classical antiquity we find references to

“…prisoner exchanges during truces and after treaties of peace were quite common.”812 Again, the emphasis is on some cessation of hostilities via truce or peace agreement that typically consists of a written agreement. A peace document was viewed as forward looking in providing for prisoner exchanges in the post-conflict phase.

808 Id. 809 Neff, On the Laws of War and Peace, 377, Bk III, Ch. 9, Section 4. 810 Id., p. 377-378, Bk. III, Ch. 9, Sections 4-6. 811 Id., p. 377, Bk. III, Ch. 9, section 4. 812 Bederman, David J., International Law in Antiquity, Cambridge University Press, 2001, p. 257. See also, Aristotle, and H. Rackham, The Nicomachean Ethics, Harvard University Press, 1926, p. 313 (H. Rackham, transl. 1926, Loeb Classical Library reprint 1990, passage v. 10 (1134b)) discussing a prisoner exchange between Athens and Sparta in 408 B.C.

250

Grotius argues that in an unjust war, the elites who directly caused the war, a ruler or the advisors, must make restitution.813 Restitution applies “… to all those things, of course, which ordinarily follow in the train of war; and even the unusual things….”814 The restitution is to be made by those “…who have brought about the war, either by the exercise of their power, or through their advice.”815 To clarify, the ruler or the advisors who provided orders or advice were to be held accountable for restitution. While command responsibility is the standard for restitution being required of general officers, even the ordinary soldiers were held accountable.

He provides, “[t]hus also generals are responsible for things which have been done while they were in command; and all the soldiers that have participated in some common act, as the burning of a city, are responsible for the total damages.”816 This sort of responsibility is to restore or pay for those items that cannot be returned such as a consumable item like food or gunpowder.

Beyond restitution, Grotius invoked the idea of punishment after trial. He defines punishment as “…an evil of suffering which is inflicted because of an evil of action.”817 About the rulers and their advisors, he specifically argued “[t]heir accountability concerns all those things … if they have ordered or advised any such thing, or have failed to prevent it when they might have done so.”818 What is developing here is the distinction between the civil remedy of recovery under a tort theory of law called “restitution” and the concomitant criminal responsibility of having committed some crime in the perpetration of the war. To be clear, there may be a crime

813 Neff, On the Laws of War and Peace, 384, Bk. III, Ch. 10, Section, Section 4. 814 Id. 815 Id. 816 Id., p. 385, Bk. III, Ch. 10, Section 4. 817 Id., p. 269, Bk. II, Ch. 20, Section 1. 818 Id., p. 384, Bk. III, Ch. 10, section 4.

251 committed that requires both a state sanctioned punishment, perhaps jail, and restitution of the victims to their former status, such as the return of stolen goods. Thus Grotius is making the case for holding the ruler and any advisors liable in modern terms both criminally and civilly.

Further, Grotius seeks to hold those who carry out the orders of the leadership accountable.

Holding of individual soldiers responsible for their actions was novel since the combatants during the Thirty Years’ War “…sought the destruction and annihilation of their enemies.”819

An important chapter in his book, was entitled “[m]oderation with respect to the right of killing in a lawful war.”820 Despite the title about killing in war, this is not always the content as he writes more about moderation in war and in the aftermath The author contends “[e]ven where justice does not demand the remission of punishment, this is nevertheless often in conformity with goodness, moderation, with highmindedness….”821 Moderation was a virtue extolled by

Grotius probably due to all of the death and destruction taking place in European wars of his era. Next, he continues “[a]n enemy therefore who wishes to observe…what his duty requires, what is right from the point of view of religion and morals will spare the blood of his foes. He will condemn none to death….”822 Beyond moderation these sentences indicate a clemency again against killing due to the soldierly code of duty as well as the religious and moral grounds for relaxing of those killings. Grotius then provided a listing of those to be spared both during and after war. Of note is the responsibility to remit the death punishment for acts done in self- defense, preventing the death of innocent persons while sparing children, women if they have

819 Asbach, Olaf, and P. Schröder, War, The State and International Law in Seventeenth-Century Europe, Ashgate, 2010, p. 298. 820 Neff, On the Laws of War and Peace, p. 387, Bk. III, Ch. 11. 821 Id., p. 389, Bk. III, Ch. 11, Section 7. 822 Id., p. 389-390.

252 committed no crime or taken the place of men in the war, the aged, religious persons, writers, farmers, merchants, and, finally, prisoners of war.823 This list of those to be spared is quite long and addressing this post war proscription regarding “killing,” he wrote “[i]f however, they consider that those who take the life of anyone on the justification of an agreement alone are exempt from wrong-doing, I am afraid that they are both deceived themselves and by their dangerous authority deceive others.”824 He is arguing against the strict reliance on a writ issued by competent authority to execute someone. Grotius indicated that some thought has to be given to the order and good judgment exercised. In other words, because you can kill someone based upon some order promulgated by a proper authority does not mean you must kill that person; clemency can prevail based on thoughtful concern. Lastly, he argues “…that all engagements, which are of no use for obtaining a right or putting an end to a war… are incompatible both with the duty of a Christian and with humanity itself.”825 Grotius does not countenance fighting to the bitter end as this extends the war and the death toll as it poisons the post-war administration. The preservation of all lives is the point of the caution against fighting when there is no opportunity to achieve any further good. Encapsulated here is the military necessity principle that useless fighting should be avoided based upon a responsibility to mankind, as Grotius holds rulers, specifically, and advisors, indirectly, responsible for any violations of this principle. Certainly these admonitions apply during a conflict and we see the extension of those restrictions in the post-war period. The concept of moderation, for which

Grotius is famous, is extolled as it was not always practiced in these times or more recently.

823 Id., p. 390-391, Bk. III, Ch. 11, Sections 8-15. 824 Id., p. 393, Bk. III, Ch. 11, Section 18. 825 Id., Bk. III, Ch. 11, Section 19.

253

This is a new path laid out by Grotius for his and successive generations.826 The theme of moderation was an attempt to ameliorate the impact of war and the post-conflict phase in an effort to establish a lasting peace. Grotius does not want vengeance to result in the deaths of more people causing further anger to make another war more probable. Such moderation will carry over into the ideal occupation as a decisive military defeat is called for yet this does not mean destroying a society and this was not done in any of the successful belligerent occupations after the Second World War. This “…strategically decisive [military] victory should be one that decides who wins the war militarily…Politically understood, a decisive victory should be one that enables achievement of a favorable postwar settlement.”827

Grotius wrote several cautions regarding moderation in devastating enemy lands, albeit he does argue that some lying of waste may be lawful.828 Since the book of Deuteronomy, international law requires refraining from devastation during war.829 Yet Grotius insists that this restraint is “[s]till more binding … after a complete victory.”830 Grotius foresaw the

“occupation” after the war and did not want any devastation to provide an opportunity for a future war based on these grievances. He calls for moderation in dealing with sacred things,

“…reverence for divine things urges that such buildings and their furnishings be preserved,…”831

Grotius goes on “…such moderation gives the appearance of great assurance of victory and that

826 Nussbaum, A Concise History of the Laws of Nations, p. 114. 827 Gray, Colin S., "DEFINING AND ACHIEVING DECISIVE VICTORY" Strategicstudiesinstitute.Army.Mil, 2002, http://strategicstudiesinstitute.army.mil/pdffiles/PUB272.pdf (Accessed 2 Jan 2019). 828 Neff, On the Laws of War and Peace, p. 394-395, Bk. III, Ch. 12, Sections 1-4. 829 See, Deuteronomy, 20: 19-20. 830 Neff, On the Laws of War and Peace, Bk. III, Ch. 12, Section 2. See also, Deuteronomy, 20:19-20. 831 Id., p. 395, Bk. III, Ch. 12, Section 3.

254 clemency is of itself suited to weaken and conciliate the spirit.”832 His overarching desire is to lessen the impacts of war both during the war and in the post–conflict phase by counselling for moderation. According to Grotius, while, there should be restraint during the war according to jus in bello that restraint applies in a more binding manner once there is a victory.

On sovereignty, Grotius suggested many ways to establish peace. He posited “[a]nother form of moderation in victory is to leave to the conquered kings or people the sovereignty power which they had held.”833 He coupled this moderation with a provision for the future security of the occupying force.834 Grotius suggests that such moderation in warfare is not only an act of humanity but often an act of prudence.835 In another recommendation, he advised the victors

“…to leave them [the vanquished] their own laws, customs, and officials.”836 Expanding on his advisements, he asserts that the conqueror as “[a] part of this indulgence is not to deprive the conquered of the exercise of their inherited religion [and allow for] …taking steps to prevent the oppression of the true faith.”837 He ends this short but important chapter with his final caution that “…the conquered should be treated with clemency, and in such a way that their advantage should be combined with that of the conqueror.”838 In the post-conflict phase,

Grotius continues to advocate for moderation to assist in the restoration of an enduring peace.

Specifically, he indicated that the ruler and other functionaries be left in place to allow for a return to what is normal as this was not always the case in his days. Similarly, maintaining the

832 Id., p. 396, Bk. III, Ch. 12, Section 6. 833 Id., p. 406, Bk. III, Ch. 15, Section 2. 834 Id., p. 406, Bk. III, Ch. 15, Section 5. 835 Id., p. 407, Bk. III, Ch. 15, Section 7. 836 Id., p. 407, Bk. III, Ch. 15, Section 10. 837 Id., p. 407, Bk. III, Ch. 15, Section 11. 838 Id., p. 407, Bk. III, Ch. 15, Section 12.

255 laws and customs would contribute to that sought after peace by retaining some sense of the normal. Such magnanimity in maintaining familiar people along with the familiar laws and customs is another contribution to the peace process. These principles have been acknowledged as these are contained in The Hague and Geneva Conventions.

In the Twentieth Chapter with the lengthy title, “On the good faith of states, by which war is ended; also on the working of peace treaties… on arbitration, surrender, hostages, and pledges,”839 Grotius advises on how to end war and essentially rebuild the vanquished society.

Grotius’ concern for the post-conflict phase is evident in the above title as it informs us of the good faith required between the warring factions to end a war as well as how to interpret peace treaties. In the “General rules for the interpretation of peace covenants” section, he showcases this generosity and moderation in interpretation. Advocating that “…the more favourable a condition is, the more broadly it is to be construed, while the further a condition is removed from a favourable point of view, the more narrow is the construction to be placed on it.”840 Here he is seeking some equality between the parties. Simply stated, Grotius wants treaty interpreters to construe the peace agreement’s favorable clauses with as much latitude as is possible, but the restrictive sections as narrow as practicable given the circumstance.

Further along in that same section, he reasons “[s]ince, however, it is not customary for the parties to arrive at peace by a confession of wrongs, in treaties that interpretation should be assumed which puts the parties as far as possible on an equality with regard to the justice of the war.”841 These words are trying to establish a lasting peace via the treaty signed by the

839 Id., p. 426, Ch. 20. 840 Id., p. 430, Bk. III, Ch. 20, Section 11. 841 Id.

256 parties so that the interpretation in the post-conflict phase should flow toward that peace.

Equality in justice between the former belligerents will lessen the cry of victor’s justice thus reducing revengeful thoughts and actions thereby reducing the likelihood of the resumption of war or the instigation a new one based upon the injustice of the past conflagration or its peace.

Finally, Grotius provided his “[c]onclusion with admonitions on behalf of good faith and peace”842 to guide his readers:

[y]et before I dismiss the reader I shall add a few admonitions

which may be of value in war, and after war, for the

preservation of good faith and of peace…And good faith should

be preserved, not only for other reasons but also in order that

the hope of peace may not be done away with. For not only is

every state sustained by good faith...but also that greater society

of states…Justice, it is true, in its other aspects often contains

elements of obscurity; but the bond of good faith is in itself plain

to see….843

He establishes that, to maintain the peace after war, there must a modicum of good faith on both sides. This is a two tiered analysis in that each state individually and the international society collectively are served by this good faith. The post-conflict administration of a vanquished foe presents many problems that absent some degree of cooperation based upon good faith, the peace will not last and the entities could return to open or guerilla war or insurgency. Thus, he warned that this “humanity" should begin during hostilities by fighting

842 Id., p. 474, Bk. III, Ch. 25. 843 Id., p. 474, Bk. III, Ch. 25, Section 1.

257

“cleanly,” not excessively, and when there is no reason for continued fighting then combat should cease. Grotius admonished the fighters that during the prosecution of war, peace should always be kept in view.844 Continuing on, he noted that safety in the post conflict peace is kept by “…condonation of offenses, damages, and expenses.”845 Further, he counseled the conqueror to exercise moderation since “…peace is bounteous and credible to those who grant it while their affairs are prosperous,”846 then he reminded both sides that war is ever present.

In his final effort to establish the hold of lasting peace, he addressed directly the effort of good faith that each of the former combatants will need to put forward

[m]oreover peace, whatever the terms on which it was made,

ought to be preserved absolutely, on account of the sacredness

of good faith…and not only should treachery be anxiously

avoided, but everything else that may arouse anger…Not only

should all friendships be safeguarded with the greatest of devotion

and good faith, but especially those which have been restored to

goodwill after enmity.847

Former enemies will have to work to preserve the peace arranged in the treaty so the delicate peace will grow rather than lead to another war. Recent scholarship indicates that the drafters

844 Id., p. 475, Bk. III, Ch. 25, Section 2. 845 Id., p. 475, Bk. III, Ch. 25, Section 3. 846 Id., p. 475, Bk. III, Ch. 25, Section 5. 847 Id., p. 476, Bk. III, Ch. 25, Section 7.

258 of the Westphalian Treaties had not read the Grotius book entitled “On the Law of War and

Peace.”848

After the Thirty Years War and because of it, the Just War Theory continued to be developed.

Samuel Von Pufendorf was a scholar in several areas of study but earned a living as a tutor and professor as well as the royal historiographer to the Swedish Court between University teaching positions.849 To be a part of the Swedish elites especially during the Thirty Years War, the likelihood of some concern and discussion about the immediate past war and the post-war treaties, especially the two in Westphalia, seems certain for this court historiographer.

Von Pufendorf established his political theory as the modern state system began to evolve after the Peace of Westphalia.850 He sought to demonstrate the need for the entity called the state while raising law and politics to the scientific level.851 Indeed he opines in Book II, Chapter I that man cannot live without law, generally. He wrote sparingly about the specifics regarding the law of nations but writing for sovereigns about war, he saw international law as prescribing

“…the rules arising from the supersession by the sovereign of the individual’s rights to alter his condition either from peace to war or war to peace.”852 He saw as an extension of the duties individuals had toward one another as he viewed states on the international level as equivalent of a moral person.853 Specifically, von Pufendorf wrote in Chapter VI of Book VIII entitled “[o]n

848 Croxton, Derek, Westphalia: The Last Christian Peace, New York: Palgrave-MacMillan, 2013, p. 367. 849 Pufendorf, Samuel, et al., The Political Writings of Samuel Pufendorf, Oxford University Press, 1994, p. 4. 850 Id., p. 6. 851 Id., p. 7. 852 Krieger, Leonard, The Politics of Discretion: Pufendorf and the Acceptance of Natural Law, Chicago, University Of Chicago Press, 1965, p. 166. 853 The Baron Samuel Pufendorf, De Jure Naturae Et Gentium [Of the law of nature and nations, [Eight books. Written in Latin by the Baron Pufendorf the Second edition carefully corrected, and compared with Mr.

259 the laws of war” that as “…nature permits war in such a way that one who wages it should set peace as the end for himself.”854 Advocating for peace and differentiating it from war he acknowledges “… that retribution should be proportional, has a place only in tribunals, where punishments are inflicted by superiors.”855 By writing about tribunals, he notes the role of courts in both the process of war and in ending the war albeit indirectly in this quotation. He seems to argue that there is a legal and moral component to war as he narrows the moral aspect regarding the victors.856 In a later book, he clearly differentiated between ethics and law.857 He stated “…the law of humanity wishes us to consider not only what an enemy can suffer without injury, but also what is fitting for a humane –add generous—victor to do.”858

Employing the term “victor” implies that the war is over; especially when coupled with the next sentence in which he used the phrase “our future security” vis-à-vis the conquered.859

Continuing, he provides that victor in the post conflict phase of war should act like a civil court in assessing crimes and other disputes.860 Ideally moderation in the post conflict phase should result in some reconciliation as he indicates similarly retribution should be moderate. Further he noted that for a conqueror to obtain ownership via seizure during war “…there must be additional peace making and a negotiated settlement between them.”861 While he writes in

Barbeyrac’s French translation; with the addition of his notes, and two tables.] Farmington Hills, MI: Gale Ecco, Print Editions, 2010, Book I, Definition 24. 854 Id., Book VIII, Chap. VI. 855 Pufendorf, Samuel, et al., The Political Writings of Samuel Pufendorf, Oxford University Press, 1994, p. 259. 856 Nussbaum, Arthur, A Concise History of the Law Of Nations, Macmillan, 1961, p. 149. 857 Hinsley, Francis H., Power and the Pursuit of Peace: Theory and Practice in the History of Relations Between States, Cambridge University Press, 1962, p. 165. 858 Pufendorf, Samuel, et al., The Political Writings of Samuel Pufendorf, Oxford University Press, 1994, p. 259. 859 Id. 860 Id. 861 Id., p. 261.

260 contractual language, proper reparation requires this added peace making and some agreement regarding the legal term “title” to real property and the rights appertaining thereto.

Likewise he counsels that retribution ought to be proportional862 yet later he opines that states may perish after losing a war.863 In this same section, von Pufendorf relates that a “people” enjoys the same rights even if a state ceases to exist.864 Separately in Book VIII, von Pufendorf argues that violence should be guarded against so as to live secure.865

Continuing he asserts that in either war or peace the people need to pay taxes “…to support the common Charges.”866 This may be meant to include only citizens of the victor state however it is not clear to whom the passage is addressed. Such language may be used as well with the conquered since at that time the conquered could be held responsible to pay the victor. The

Roman legal concepts of satisfactio and assercuratio permitted victor states to require the defeated to pay for the war.867 Earlier in Book V, chapter IX, he wrote about treaties establishing the relationship between the parties in a war. After any war leaves a clear victor and conquered, von Pufendorf concluded that victors possess the right to provide the

862 Id., p. 259. 863 Id., p. 261. 864 Id., p. 263. 865The Baron Samuel Pufendorf, De Jure Naturae Et Gentium [Of the law of nature and nations. [Eight books. Written in Latin by the Baron Pufendorf the Second edition carefully corrected, and compared with Mr. Barbeyrac’s French translation; with the addition of his notes, and two tables.] Farmington Hills, MI: Gale Ecco, Print Editions, 2010, p. 533. 866 Id., p. 534. 867 Holsti, K. J., Peace and War: Armed Conflicts and International Order, 1648-1989, Cambridge University Press, 1991, p. 36.

261 vanquished with “Law”868 a further indication that the winner could impose occupation laws on the defeated.

While von Pufendorf did not write much about war and its aftermath, he did pen a chapter called “Of Compacts that relate to War.” He distinguishes between those compacts that end war and in modern parlance those that created a truce. Significantly, he agrees with Grotius that all compacts, another term still interchangeable with treaty, “ought to be observed.”869

This statement is an international law principle called pacta sunt servanda that means once a

“peace treaty” is established; all parties must comply with the document.870 He continues that only sovereigns may end wars but generals in the field may make shorter truces.871 Earlier he wrote that these shorter truces are encouraged as these may lead to a more permanent peace.872 Again his stress is on the respect for these interruptions of the hostilities. Other portions of the readings of interest regard safe conduct albeit he defers to Grotius on the redemption of captives.

Book VIII, Chapter VIII is entitled “Of Compacts that restore Peace.” Interestingly the Just War

Theory basis is clear in that von Pufendorf writes “[a]nd it is beyond Dispute, that an Unjust

868 Tuck, Richard, Grotius, Hobbes, And Pufendorf On Humanitarian Intervention, Cambridge University Press, 2013, p. 161. 869 The Baron Samuel Pufendorf, De Jure Naturae Et Gentium [Of the law of nature and nations. Eight books. Written in Latin by the Baron Pufendorf the Second edition carefully corrected, and compared with Mr. Barbeyrac’s French translation; with the addition of his notes, and two tables.] Farmington Hills, MI: Gale Ecco, Print Editions, 2010, p. 698. 870 Black, Henry Campbell, and Michael J. Connor, Black's Law Dictionary. 5th ed., United States, West Publishing Co, U.S., 1981, p. 999. 871 The Baron Samuel Pufendorf, De Jure Naturae Et Gentium [Of the law of nature and nations. Eight books. Written in Latin by the Baron Pufendorf the Second edition carefully corrected, and compared with Mr. Barbeyrac’s French translation; with the addition of his notes, and two tables.] Farmington Hills, MI: Gale Ecco, Print Editions, 2010, p. 701. 872 Id., p. 700.

262

Conqueror is obliged to make Restitution….”873 This bold statement establishes the evidence that at a minimum, restitution is an element of peace in an unjust war. Such boldness indicates that this statement was considered jus cogens, a super norm of international law, since he includes that any law that would put this principle aside would be void so “…no notice is taken of it.”874 In this same chapter he addressed the idea of reparations for losses but these reparations are to the victors.875 Von Pufendorf remains a man of his time with respect to ideas such as conquest yet he had some modern ideas yet these were mostly evolutionary rather than revolutionary.

He briefly wrote on the law of war in which he sees the end state of war as peace albeit in this instance he was writing about the jus ad bellum justification for war. Moreover, he adds that victors must not push an enemy too far while doing what is humane and generous towards that adversary.876 Likewise he counsels that retribution ought to be proportional877 yet later he again cautions that states may perish after losing a war.878

Articulation of the Just War Theory becomes clearer in the work of Immanuel Kant in his distinguishing a tripdichon879 of the right to war, right in war, and the right after war. At least one scholar asserts that Kant “…essentially invents new just war category, jus post bellum, to consider in detail the justice of the move from war back to peace.”880 Kant argues that the

873 Id., p. 702. 874 Id. 875 Id., p. 703. 876 Pufendorf, Samuel et al., The Political Writings of Samuel Pufendorf, Oxford University Press, 1994, p. 59. 877 Id. 878 Id., p. 266. 879 Tripdichon is the German word used by Kant to describe a set of three panels or compartments of an object much like the three panels of a painting called a triptych. 880 Orend, Brian, War and International Justice, Waterloo (Canada), Wilfrid Laurier University Press, 2000, p. 57-58

263 victors cannot punish the vanquished nor can they seek compensation from the defeated but the victors must respect the sovereignty of those now beaten in war. His view of the aggressor but now defeated people is they “…can be made to accept a new constitution of a nature that is unlikely to encourage their warlike inclinations.”881 It is unmistaken; Kant was concerned about the “fairness of peace settlements, respect for the sovereignty of the vanquished state, and limits on the punishment of people (i.e. reparations).”882 He did mention peace treaties in

Perpetual Peace as a preliminary article, which are those actions to be taken immediately to establish peace, emphasizing that such agreements must not contain any secret clauses likely to result in a future war.883 Kant’s contributions to the development of jus post bellum were considerable but largely unrealized until the 1990s.

During the conceptualization and memorialization of the Laws of War in the 19th and 20th centuries, “[s]urprisingly, this ‘third leg’ in the theory of warfare disappeared….”884 As the development of the Laws of War were being hammered out, the jus ad bellum and jus in bello parts of the just war concept absorbed all of the attention with the Hague Conventions and later Geneva Conventions taking enormous efforts. Evidence of this can be seen in the development of the General Pact for the Renunciation of War, known in the United States as the Kellogg-Briand Pact where war was outlawed as an instrument of national policy.885 This was a short treaty with only three articles, one renouncing war, one calling for pacific

881 Kant, Immanuel, and W. Hastie, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, Legal Classics Library, 2003, p. 348-349. 882 Id., p. 218-222. 883 Kant, Immanuel et al., Kant's Political Writings, Cambridge University Press, 1995, p. 343-360. 884 Stahn, Carsten, Jus Post Bellum: Mapping the Disciplines(s), Am. U. Int’l L. Rev., 2008, p. 314. 885 See, Hathaway, Oona Anne, and Scott Shapiro, The Internationalists: How A Radical Plan To Outlaw War Remade The World, Simon and Schuster, 2017.

264 settlement of disputes, and one regarding ratification and certification, was revolutionary. For our purposes the Treaty is relevant for the concept of jus ad bellum’s “… right of self –defense as given and therefore resisted efforts to reserve that right in the treaty.”886 In outlawing war, this treaty did not contest the concept of self-defense in a defensive war but accepted it as self- evident. The concept of self-defense received another enhancement when Secretary of State

Kellogg told the Foreign Relations Committee in testimony regarding this treaty in anticipation of the Senate’s advice and consent,

It seemed to me incomprehensible that anybody could say that

any nation would sign a treaty which could be construed as taking

away the right of self-defense if a country was attacked. That is an

inherent right of every sovereign, as it is of any individual and it is

implicit in every treaty.887

The Senate passed the treaty with only one vote against it and President Hoover ratified the

Treaty on 17 January 1929. It became the law of the land and language similar to that noted above would be used to obtain the advice and consent of the Senate.

With the establishment of the United Nations another entity assumed primacy in war regulation. Some authors have argued that the Charter of the United Nations outlaws war in

886 Id., p. 126. 887 Testimony of Secretary of State Frank Kellogg, Hearing before the Committee on The General Pact for the Renunciation of War, Signed at Paris August 27, 1928 (December 7 and 11, 1928) Avalon Law Project, Yale Law School. Lilian Goldman Law Library, https:\\avalon.law.yale.edu/20th_century/kbhear.asp (Accessed 28 March 2018).

265

Article 2(4) thus purportedly ending the need for jus post bellum.888 Inclusion of Chapter VII and, specifically, Article 51 memorializing the concept relating to the inherent right of self- defense seem to indicate the UN founders knew war would still exist.

Chapter VII has two major relevant articles, those being Articles 39 and 51, which impact the

Just War concept.889 Article 39 provides that “[t]he Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and

42, to maintain or restore international peace and security.”890 Interpreting Article 39, we find that it provides “wide leeway for Security Council action.”891 Article 51 permits self-defense with a reporting requirement to the Security Council. The reporting requirement specifically indicates that

“[m]easures taken by Members in the exercise of this right of

self-defence shall be immediately reported to the Security Council

and shall not in any way affect the authority and responsibility of

the Security Council under the present Charter to take at any time

such action as it deems necessary in order to maintain or restore

international peace and security.892

888 See, De Brabandere, Eric, "The Responsibility for Post-Conflict Reforms: A Critical Assessment of Jus Post Bellum as A Legal Concept" Vanderbilt Journal of Transitional Law, vol. 43, 2010. See also, Chayes, Antonia, "Chapter VII1/2: Is Jus Post Bellum Possible?” European Journal of International Law, vol. 24, no. 1, 2013, p. 292, Oxford University Press (OUP), doi:10.1093/ejil/chs089 (Accessed 2 May 2018). 889 Chayes, Antonia, "Chapter VII1/2: Is Jus Post Bellum Possible?” European Journal of International Law, vol. 24, no. 1, 2013, p. 292, Oxford University Press (OUP), doi:10.1093/ejil/chs089 (Accessed 2 May 2018). 890 Charter of the United Nations, Article 39, 1945. 891 Chayes, Antonia, Chapter VII1/2: Is Jus Post Bellum Possible? The European Journal of International Law, vol.24, no. 1, 2013, p. 293, Oxford University Press (OUP), doi:10.1093/ejil/chs089 (Accessed 2 May 2018). 892 Charter of the United Nations, Article 51, 1945.

266

Thus the Security Council’s primacy is maintained as the ultimate arbiter of all things related to peace and war including reconstruction of the vanquished. International law has evolved the theory that what is not prohibited is permitted893 such that “…post–conflict reconstruction is implied as a way to finish the task that was authorized in the first place.”894 Clearly this is not obligatory but rather legal permission. If the phrase jus post bellum is inserted for the word reconstruction, there does appear to be an independent legal basis for jus post bellum.895

Continuing to develop this concept we might ask if no legal basis exists, why take the effort to develop this third part of the Just War concept? Perhaps “[t]he global wars of the twentieth century illustrate the criticality of war-termination policy and operational planning for the post bellum stage of war.”896 With what some scholars indicate is little international law to guide us the current inclination is to look to the moral concept of just war today.

5.4 Jus post bellum today

The concept of jus post bellum remains under the process of development. My own experience in confronting the issues of post-war devastation resulting from the capacity of modern war led me to explore the concept of jus post bellum, a developing area of the Just War Theory. Those scholars exploring the Just War Theory indicate although it “…has long included jus post bellum concerns, Michael Schuck (1994) was the first to propose specifically adding jus post bellum

893 SS Lotus, (France v. Turkey), [1927] PCIJ (ser A) No. 10. 894 Chayes, Antonia, Chapter VII1/2: Is Jus Post Bellum Possible? The European Journal of International Law Vol.24, no. 1, 2013, 293, Oxford University Press (OUP), doi:10.1093/ejil/chs089 (Accessed 2 May 2018). 895 De Brabandere, Eric, "The Responsibility For Post-Conflict Reforms: A Critical Assessment of Jus Post Bellum as A Legal Concept" Vanderbilt Journal of Transitional Law, vol. 43, 2010, p. 119. 896 Iasiello, Louis V., "Jus Post Bellum: The Moral Responsibilities of Victors in War" Naval War College Review, 2004, p. 37 (Accessed 19 May 2018).

267 framework to Just War Theory.”897 However, jus post bellum in “[t]he contemporary period is characterized by intense scholarly, legal, and socio-political debates about the conceptual framework….”898 So this intensity has also spawned a lack of clarity, even to the point of what to label the concept. Specifically is it jus post bellum, jus ex bellum, or jus ante bellum?899 The definitional breakdown proceeds further as it appears every scholar proposes their own specificity on the concept I will call jus post bellum in this work.

Our focus regards this boom in interest and scholarly writing together with the accompanying disarray. Elements relating to the concept of just post bellum must be ascertained to determine the direction of the conceptual development. Using a set of selected and recognized elements of the concept; we will determine where the scholars of this phenomenon agree in order to further facilitate a coherent starting point for continuing discussion. Identification of the elements of the jus post bellum concept that scholars agree on will permit some guidelines for the international community as it seeks a just peace after the war and belligerent occupation.

In 2013, the American Society of International Law (ASIL) brought a multitude of scholars together under the editorial direction of Larry May and Elizabeth Edenberg to look at jus post bellum and transitional justice.900 The former seeks to secure the peace while the latter seeks

897 Clifford, George M. III, Jus post bellum: Foundational Principles and a Proposed Model, Journal of Military Ethics, vol. 11, No. 1, March 2012, p. 42. 898 Rozpedowski, Joanna K., Just Peace at War’s End: The jus post bellum Principles as National and Human Security Imperatives—Lesson of Iraq and Kosovo, Politikon: IAPSS Political Science Journal, vol. 26, 2015, p. 96. 899 Allman, Mark J., and Tobias L. Winright, "Growing Edges of Just War Theory: Jus Ante Bellum, Jus Post Bellum, and Imperfect Justice" Journal Of The Society Of Christian Ethics, vol. 32, no. 2, 2012, p. 178-179. Johns Hopkins University Press, doi:10.1353/sce.2012.0039, (Accessed 1 May 2018). 900 Larry May and Elizabeth Edenberg, eds., Jus Post Bellum and Transitional Justice, New York, NY: Cambridge University Press, 2013.

268 democratization.901 The editors of this volume identified six elements of the jus post bellum concept. I will accept the concept of jus post bellum advanced by these editors as made up of six elements: retribution, reconciliation, rebuilding, restitution, reparations, and proportionality.902 We will use these elements in the search for the jus post bellum concept in the writings of these selected scholars to ascertain if there is any agreement on the elements perhaps just differently labelled. Using this set of selected and recognized elements of the concept; I will determine where the scholars of this phenomenon agree in order to further facilitate a coherent starting point for continuing discussion.

Before beginning the search for any putative commonality, a clarification of the six elements is in order so that we are working from a common beginning to possibly clarify the jus post bellum concept. As used in the ASIL project, our first element is retribution defined as “…bringing those to account who committed wrongs either by initiating an unjust war or by waging war unjustly.”903 The possibility of war crimes trials or domestic criminal trials could include trials of popular leadership in the vanquished state. War crimes trials were conducted after the Second

World War in Nuremberg and Tokyo although there were many other trial locations in the

Pacific theater of war904 as well as the recent conflicts in the Balkans and Rwanda so international legal precedent does exist for conducting these post-conflict tribunals. Grotius wanted to hold people responsible writing “[t]heir accountability [for] all those things … which

901 Id. at Introduction. 902 Id., p. 3. 903 Id. 904 See, Wilson, Sandra, et al. Japanese War Criminals: The Politics Of Justice After The Second World War. Columbia University Press, 2017.

269 ordinarily follow in the train [course] of war….”905 Retribution has existed for many thousands of years but this jus post bellum concept is a trial based accountability.

Certainly such prosecutions may have an impact on the next element, reconciliation—the coming together of the former adversaries to establish as Grotius suggested “…a lasting peace where mutual respect for rights is the hallmark.”906 St. Augustine noted such reconciliation when writing “[t]herefore, even engaging in war, cherish the spirit of a peacemaker, that, by conquering those whom you attack, you may lead them back to the advantages of peace….”907

Expanding on this theme, Augustine continued “[a]s violence is used towards him who rebels and resists, so mercy is due to the vanquished or the captive, especially in the case in which future troubling of the peace is not to be feared.”908 Such a peace was also written about by

Grotius concluding “…the conquered should be treated with clemency, and in such a way that their advantage should be combined with that of the conqueror.”909 As to this specific element,

“…Grotius opened a new path by setting forth what he called the temperamenta of warfare…going into extensive detail, he urged moderation for reasons of humanity, religion, and farsighted policy….”910 The idea of reconciliation by moderation permeates this book and is prominent in many chapter titles as Grotius sought to establish that farsighted policy in the post-conflict phase.

905 Neff, p. 384, Bk. III, Ch. 10, Section, Section 4. 906 May and Edenberg, eds., Jus Post Bellum and Transitional Justice, New York, NY: Cambridge University Press, 2013, p. 4. 907 http://www.newadvent.org/fathers/1102189.htm Letter 189 St. Augustine to Boniface, Translated by J.G. Cunningham. From Nicene and Post-Nicene Fathers, First Series, Vol. 1. Edited by Philip Schaff. (Buffalo, NY: Christian Literature Publishing Co., 1887.) Revised and edited for New Advent by Kevin Knight. (Accessed 6 June 2018) 908 Id. 909 Nussbaum, p. 110. 910 May and Edenberg, eds., p. 4

270

The destruction and devastation of war necessitate our next element: rebuilding. This element is described as calling on “…all those who participated in the devastation during the war to rebuild as a means to achieve a just peace.”911 Again, Grotius posited “…and all the soldiers that have participated in some common act, as the burning of a city, are responsible for the total damages.”912 Simply stated, this element requires some rebuilding perhaps by those that created the damage being held responsible for the reconstruction but certainly allowing for reconstruction by the greater international community as a contribution to that just peace.

Next, we consider the restitution element of the jus post bellum concept. This means “… returning goods or their equivalent that have been taken.”913 Historically, this element was written so that in an unjust war, the elites who directly caused the war such as a ruler or the advisors must make restitution.914 Under this view, restitution applies to all of the consequences of war if the ruler or the advisors provided orders or advice.915 Grotius informed us “…those persons are bound to make restitution who have brought about the war, either by the exercise of their power, or through their advice.”916 Not content to seek physical restitution, Grotius noted “[a]nother form of moderation in victory is to leave to the conquered kings or people the sovereignty power which they had held.”917 Returning other intangibles included the idea that “…the conquered should be treated with clemency, and in such a way

911 Id. 912 Neff, p. 385, Bk. III, Ch. 10, Section 4. 913 May and Edenberg, eds., p. 5. 914 Neff, p. 385, Bk. III, Ch. 10, Section 4. 915 Id. 916 Id. 917 Id. p. 406, Bk. III, Ch. 15, Section 2.

271 that their advantage should be combined with that of the conqueror.”918 Thus, restitution as an element is broader than the mere returning of goods but also a restitution of the entire previous existence to those impacted by war or perhaps a return to normalcy in light of the experience of war.

Our penultimate element is reparations explained as “…repair or remedy for goods that have been damaged or for injuries received.”919 Again, we see the influence of Grotius in providing first for the sparing of many things including sacred buildings920 and their furnishings but more significantly “[t]here are certain duties that must be performed toward those from whom you have received an injury.”921 Clearly, this has been viewed as a prohibition of cruelty but likewise a duty to make whole on both sides of the war so the just may need to provided reparations to the vanquished. “Reparations are often crucial for reestablishing trust among the parties at war’s end.”922 Such trust between the former belligerents is essential for the development of a just peace.

Lastly, we consider the element of proportionality. “One way to understand post bellum proportionality is to see it as applying to each of the other five [elements]”923 so that there must be an established a balance in the post-conflict agreement and its interpretation as well as the implementation of the peace. Again, Grotius provided some guidance “[s]ince, however, it is not customary for the parties to arrive at peace by a confession of wrongs, in treaties that

918 Id., Section 12. 919 May and Edenberg, eds., Jus Post Bellum and Transitional Justice, New York, NY: Cambridge University Press, 2013, p. 5. 920 Neff, p. 396, Bk. III, Ch. 12, Section 6. 921 Id., Ch. 11, Section 1. 922May and Edenberg, eds., Jus Post Bellum and Transitional Justice, New York, NY: Cambridge University Press, 2013, p. 6. 923 Id.

272 interpretation should be assumed which puts the parties as far as possible on an equality with regard to the justice of the war.”924 We may conclude from this passage, there is an equality between “…the belligerents themselves [as they] are now placed on the same footing.”925

Among the many Grotian advisories regarding proportionality is “…[n]ot only should all friendships be safeguarded with the greatest of devotion and good faith, but especially those which have been restored to goodwill after enmity.”926 Here we have a clear indication that

Grotius saw this as a post-conflict advisement as he refers to the idea of good will after the late unpleasantness of war. We have examined the elements with some historical reference to the earlier writers to place the concept of jus post bellum into a framework for further exploration.

5.5 The battle to establish the elements of the jus post bellum concept

After explaining the ASIL elements consideration of the scholars writing on this topic will be examined. Acknowledging there was not an agreed definition of jus post bellum, “[w]e need to develop jus post bellum criteria similar to those generally accepted for the other two categories

[jus ad bellum and jus in bello].”927 Using the aforementioned six elements and keeping the end state of a just peace in mind as Grotius recommended, I will attempt to establish the actual elements of the concept of jus post bellum. Methodologically, I have selected a wide diversity of scholars’ writings to help ascertain if there is some common ground in terms of those six elements.

924 Neff, p. 430, Bk. III, Ch. 20, Section 11. 925 Nussbaum, Arthur, A Concise History of the Law Of Nations, Macmillan, 1961, p. 110. 926 Neff, p. 476, Bk. III, Ch. 25, Section 7. 927 Doug McCready, “Ending the War Right: Jus Post Bellum and the Just War Tradition” Journal of Military Ethics 8, no. 1, March 2009, p. 68 doi:10.1080/15027570902781995.

273

Undertaking a brief introduction before performing a cross scholar comparison of these elements should show this is a diverse group of jus post bellum advocates. Gary Bass opined

“[i]t is important to better theorize post war justice—jus post bellum for the sake of a more complete theory of just war.”928 Bass argues for the completed Just War Theory that includes the concept of jus post bellum. Alex Bellamy differentiated minimalist and maximalist moral positions whereby “[m]inimalists envisage jus post bellum as a series of restraints on what it is permissible for the victors to do once the war is over…maximalists argue that victor acquire certain additional responsibilities that must be fulfilled for the war as a whole to be considered just.”929 Bellamy considered the moral aspects in the third leg of the Just War Theory.

Antonia Chayes posited that it is hard to situate a post-conflict obligation in international legal requirements although there are rules that govern occupation that date back to the 19th

Century.930 Chayes, a lawyer, from the so called “New Haven School of International Law” takes a treaty based approach to our topic. Cindy Holder has argued that to realize a just peace

[a]t a minimum … requires preventing a new outbreak of conflict

and foreclosing the occurrence or recurrence of humanitarian

violation or human rights abuses…In some context, then, duties to

establish sustainable peace include duties to investigate gross

violations of human rights, disseminate the findings of investigation,

928 Bass, Gary J., "Jus Post Bellum" Philosophy and Public Affairs, vol. 32, no. 4, 2004, p. 384. (Accessed 1 May 2018). 929 Bellamy, Alex J. "The Responsibilities of Victory: Jus Post Bellum and the Just War" Review of International Studies, vol. 34, no. 04, 2008, p. 602. Cambridge University Press (CUP), doi: 10.1017/s026021050800819x. (Accessed 2 May 2018). 930 Chayes, Antonia. "Chapter VII1/2: Is Jus Post Bellum Possible?” European Journal of International Law, vol. 24, no. 1, 2013, p. 292, Oxford University Press (OUP), doi:10.1093/ejil/chs089 (Accessed 2 May 2018).

274

and ensure that victims have access to remedies and repairs.931

Holder’s view reflects the transitional justice perspective that will be discussed in a few pages.

The next two scholars look at the military ethics of the jus post bellum concept. Chaplain and

Rear Admiral, Louis V. Iasiello, the twenty–third Chief of [US] Navy Chaplains, concluded that the post bellum phase is such a challenge to the victor due “…in part, [to] a failure to update and revise the just war theory, a theory that has survived for millennia because it is ‘an historically conditioned theory,’ one in a state of perpetual transition.”932 Dr. Davida Kellogg, a

Professor of Military Science, has postulated

[t]he international law of war has barely begun to deal with the

questions of where to try cases in which the aggressor is a

diffuse political or religious entity rather than a nation…whatever

is decided to be properly convened, constituted, and conducted

court for such cases, the high moral purpose of jus post bellum—

to do justice in the wake of war—must be well and truly served by

them, and must be seen to be so.933

Shunzo Majima, a professor at the Center for Applied Ethics and Philosophy at Hokkaido

University, reviewed the US occupation of Japan after World War II asking “what elements might constitute jus post bellum—does it include restoration, reparation, retribution,

931 Holder, Cindy, Truthfulness in Transition: The Value of Insisting on Experiential Adequacy, pp. 244-245 in May, Larry, and Elizabeth Edenberg, Jus Post Bellum And Transitional Justice, Cambridge University Press, 2013. 932 Iasiello, Louis V., Jus Post Bellum, Naval War College Review, vol. LVVII, no. 3/4, 2004, (Accessed 19 May 2018). 933 Kellogg, Davida, “Jus Post Bellum: The Importance of War Crimes Trials,” Parameters 32.2, 2002, p. 10. http://serch.com/docview/198020075/fulltext/A48E25CBD0A14316PQ/1 (Accessed 2 Nov 2016).

275 repatriation, reconstruction, rehabilitation, recognition, and/or reconciliation, for example?”934

Similar to this work, Majima is trying to determine the right blend of elements in the jus post bellum concept to achieve the goals of a just peace. His list reflects those proposed by the ASIL study. Inger Osterdahl from Uppsala University in Sweden offers

[i]t is presumed, moreover, that although there undeniably exists

law that is currently being applied by all working with the different

aspects of post—conflict management, both the law and the

societies (re)constructed would gain more from systematic thinking

about jus post bellum.935

Osterdahl believes the concept of jus post bellum can contribute a great deal to the formulation of a just peace. Max Pensky, a philosophy Professor at Binghamton University (New York) writes

[c]urrent efforts to develop a robust and practical conception of jus

post bellum have rightly focused on the requirement for a

determinate set of principles specifying just what a satisfactory

account of jus post bellum should consist of… jus post bellum

principles must be complete, consistent, and implementable.936

Pensky indicates the concept must also be able to be utilized in the chaos following a war.

934 Majima, Shonzu, Just Military Occupation? A Case Study of the American Occupation of Japan in Larry May and Elizabeth Edenberg, Jus post bellum and Transitional Justice, ed., New York, NY, Cambridge University Press, 2013, p. 26. 935 Österdahl, Inger, “Just War, Just Peace and the Jus Post Bellum,” Nordic Journal of International Law 81, no. 3 January 1, 2012, p. 273, doi:10.1163/15718107-08103003. 936 Max Pensky, Jus Post Bellum and Amnesties in Jus Post Bellum and Transitional Justice, ed. Larry May and Elizabeth Edenberg (New York, NY: Cambridge University Press, 2013) p. 152.

276

Carsten Stahn, an Associate Legal Advisor at the International Court of Justice, relies on history to argue “…that some of the dilemmas of contemporary interventions may be attenuated by a fresh look at the past, namely a (re)turn to a tripartite conception of armed force based upon three categories: jus ad bellum, jus in bello, and jus post bellum.”937

After this brief review, there is great variety in the concept of jus post bellum as well as many elements that make up these varying views. From the foregoing we can glean that jus post bellum is currently all things to all people rendering its definition subject to each individual author and subject to challenge in each scholar’s writings. This approach will not permit much forward progress as these scholars target each other’s proposals instead of trying to define the concept in generally acceptable terms.

5.6 Seeking the elements of jus post bellum

Elements of jus post bellum were suggested in the 2013 ASIL study but are these accepted by scholars? To answer this query, I will review each scholar’s writings regarding the agreed upon six elements of jus post bellum; specifically: retribution, reconciliation, rebuilding, restitution, reparations, and proportionality determining if there exists any concurrence. Please see Table

5-1 below.

937 Stahn, C. "'Jus Ad Bellum', 'Jus in Bello' . . . 'Jus Post Bellum'? -Rethinking the Conception of the Law of Armed Force" European Journal of International Law, vol. 17, no. 5, 2006, pp. 922-923. Oxford University Press (OUP), doi:10.1093/ejil/chl037.

277

TABLE 5-1. Scholars and elements of the jus post bellum concept

Elements Retribution Reconciliation Rebuilding Restitution Reparations Proportionality Scholars Bass X X X X X Bellamy X X Chayes X Holder X X Iasiello X X X Kellogg X Lazar X Majima X X X X X Orend X X X X Osterdahl X X X X Pensky X X Stahn X X X Walzer X X X

A quick look at this table shows the element of retribution has a nearly universal subscription by these scholars. However, a fundamental disagreement over the element of retribution and transitional justice exists. Further, there is a nascent but strong effort to develop a “right to the truth” that includes a “right to a judicial remedy.”938 This topic is noted but well beyond our current effort. Returning to these two schools of thought one favoring leniency and the other more stern measures is summarized as “… [v]ictors should be magnanimous to extinguish any desire for revenge by the vanquished… [or] Victors should be harsh to ensure that the enemy’s defeat is irreversible.”939 At what point do these competing ideas of retribution coalesce, if at

938 Klinkner, Melanie, and Ellie Smith, The Right to Truth, Appropriate Forum and the International Criminal Court, in Szablewska, Natalia, and Sascha-Dominik Bachmann, Current Issues in Transitional Justice: Towards a More Holistic Approach. Springer International Publishing, 2014, p. 7. 939 Raymond, Gregory A., The Greco-Roman Roots of the Western Just War Tradition, Ashgate, 2010, p. 18. See also, Hensel, Howard M., ed., The Prism of Just War, Ashgate Publishing, 2010.

278 all? Can the so called “peace versus justice”940 debate be resolved? The consensus regarding retribution does not really help us due to the differences even when the scholars are in agreement. Although some form of justice does seem acceptable to these scholars, it may be required, to ensure a just peace on a case specific basis.

Previously, the definition of retribution was provided as bringing those to justice who stand accused of initiating or conducting an unjust war. Historically, Grotius advocated for an equality of justice between the former enemies as he recommended moderation. Michael Walzer argued “[t]rials like those that took place at Nuremberg after World War II seem to me to be both defensible and necessary; the law must provide some recourse when our deepest moral values are savagely attacked.”941 Walzer calls for retribution but stops short of tangentially specifying how that might be done. Cautioning, Walzer states that such trial may also harden the animosity between the former enemies rather than treating the defeated “…morally and strategically, as future partners in some sort of international order.”942 On the other side,

Kellogg strongly advocates for war crimes trials for the purpose of holding those guilty of war aggression and other crimes accountable.943 We are again reminded “[s]uch trials, however, are the means to an end, not an end in themselves.”944 So we seem left with the examples from the post-World War II era as the models albeit those tribunals were not perfect and would be prospectively in need of some updating prior to being utilized to establish a just peace.

940 Teitel, Ruti, "Rethinking Jus Post Bellum In An Age Of Global Transitional Justice: Engaging With Michael Walzer And Larry May" European Journal Of International Law, vol. 24, no. 1, 2013, p. 340, Oxford University Press (OUP), doi:10.1093/ejil/cht014 (Accessed 1 May 2018). 941 Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations, Allen Lane, 1978, p. 288. 942 Id., p. 116. 943 See, Kellogg, Davida, “Jus Post Bellum: The Importance of War Crimes Trials,” Parameters 32.2, 2002, http://serch.com/docview/198020075/fulltext/A48E25CBD0A14316PQ/1 (accessed November 2, 2016). 944 Doug McCready, “Ending the War Right: Jus Post Bellum and the Just War Tradition,” Journal of Military Ethics 8, no. 1, March 2009, p. 73 doi:10.1080/15027570902781995.

279

There exists another dichotomy in the retribution element of the jus post bellum concept that being between law and morality. Grotius recognized this as was later related “…the laws of war

… might as a matter of fact allow many things that in the last analysis cannot be justified morally.”945 Simply stated “…peace often means accepting a host of injustice.”946 Other scholars contend this is not a dichotomy but much more as found in the “…intense scholarly, legal, and socio-political debates…”947 adding yet more levels of analysis and further obfuscating the development of the overall jus post bellum concept. Even within the legal side of the equation, “…a central component of the transitional justice principle of the rule of law is the fair application of laws. People are not all in the same position (some may be wrongdoers and some not) and so the mechanical application of the laws may cause injustice if those special circumstances are not taken into account.”948 These writings posit a multi-disciplinary approach to the continuing development of the jus post bellum concept.

If indeed, “…the most consequential reordering moments in international relations have occurred after major wars…”949 then there must be found a way to deal with post-conflict justice. In the Majima article dealing with the American occupation of Japan after World War II,

945 Holmes, Robert L., Can War Be Morally Justified? The Just War Theory, in Elshtain, Jean Bethke, and Robert L. Holmes, Just War Theory, New York University Press, 1991, p. 223. 946 Burke, Edmund, and L. G Mitchell, Reflections on the Revolution in France, Oxford University Press, 2009, p. 141. 947 Rozpedowski, Joanna K., "Just Peace at War’s End: The Jus Post Bellum Principles as National and Human Security Imperatives – Lessons of Iraq and Kosovo" Global Jurist, vol. 15, no. 3, 2015, Walter De Gruyter Gmbh, doi:10.1515/gj-2014-0025 948 May, Larry, and Elizabeth Edenberg, Jus Post Bellum And Transitional Justice, Cambridge University Press, 2013, p. 8-9. 949 Ikenberry, G. John, After Victory: Institutions, Strategic Restraint, And The Rebuilding Of Order After Major Wars, Princeton University Press, 2000, p. 8.

280 he found “…that the victors did not exploit or excessively punish the vanquished….”950 Majima addressed the issue of the non-prosecution of the Japanese Emperor that was called for in the perfectionist model of jus post bellum. The perfectionist model “…requires that all principles [of a just belligerent occupation prior to application of jus post bellum elements] be satisfied and would consider the occupation to be unjust if any one or more of the principles was not met in a strict manner.”951 However, he considered the holistic model that “…does not necessarily require that all principles be met exactly but focuses more on the positive extent of overall achievement.”952 Majima concluded “…the principle of retribution is considered to be met to some extent, despite the fact that the emperor escaped indictment, because justice was served by punishing other perpetrators.”953 This case study of Japan may hold some ideas for the development of the jus post bellum concept in the more traditional venue of state on state wars. This success in Japan may be due to the learning that took place in the German occupation where the Allies began with lustration. The term “lustration” means “… the purification of state institutions from within or without.”954 What this means in practice is that some “…screening of candidates for public office; second, the barring of candidates from public office; and third, the removal of holders of public office”955 usually to sort out those former regime members that cannot be rehabilitated. Suffice it to say that the lustration did not work well in Germany or more recently in Iraq as these party members knew how to run various

950 Shunzo Majima, Just Military Occupation? A Case Study of the American Occupation of Japan in Larry May and Elizabeth Edenberg, Jus post bellum and Transitional Justice, ed., New York, NY, Cambridge University Press, 2013, p. 36. 951 Id., p. 29. 952 Id. 953 Id., p. 41. 954 Clifford, George M., "Jus Post Bellum: Foundational Principles and A Proposed Model," Journal Of Military Ethics, vol. 11, no. 1, 2012, p. 49, doi:10.1080/15027570.2012.674242. 955 Id.

281 utilities, perform services, and conduct other governmental functions. Yet, “Allied policy at the end of World War Two reminds us that regime change can be justified in the aftermath of a just war.”956 In Japan, the functioning government at the time of surrender remained essentially in place except at the very top and continued to work as the government under occupation. In

Iraq the screening of potential candidates for public office whether for inclusion or exclusion or removal from office did not work well due in large part to the vetting process conducted under

Ahmed Chalabi957 but the change in the former regime was undertaken to separate them from the new Iraqi Government. In these matters of vetting candidates in Iraq “[t]here was a balance between purging the older order and depriving the new Iraqis of the human capital they needed to run the country.”958 Brian Orend, a Just War theorist, believes that war crimes trials are one of two parts of the post-war punitive settlements that does work.959 While he does not spend much ink on the topic, he concludes that war crimes trials are necessary as he argues that there must be a “[p]urge [of] much of the old regime, and [to] prosecute its war criminals.”960 As to who should be prosecuted, he offers “…clearly, anyone materially connected to aggression, tyranny, or atrocity cannot be permitted a substantial role in the new order.”961 A just peace seems to require some form of justice.

956 Walzer, Michael, Just and Unjust Wars, 4th ed., Basic Books, 2006, p. xviii [Introduction]. 957 Rumsfeld, Donald, Known and Unknown: A Memoir, Sentinel, 2011, p. 536; Feith, Douglas J., War and Decision, HarperCollins Publishers, 2008, p. 431; Trainor, Bernard E, and Michael R Gordon, Cobra II: The Inside Story Of the Invasion and Occupation of Iraq, 2nd ed., Vintage Books, 2013, p. 546. 958 Trainor, Bernard E, and Michael R Gordon, Cobra II: The Inside Story Of the Invasion and Occupation of Iraq, 2nd ed., Vintage Books, 2013, p. 546. 959 Orend, Brian, "Jus Post Bellum: The Perspective of a Just-War Theorist" Leiden Journal Of International Law, vol. 20, no. 03, 2007, p. 585, Cambridge University Press (CUP), doi:10.1017/s0922156507004268 (Accessed 24 Apr 2018). 960 Id., p. 584. 961 Id.

282

Another issue that warrants mention is the application of retribution to what have been called diplomatically, non-state actors or, more colloquially, terrorist. This issue is one of the delays in the current negotiations to end the Columbia-FARC war; specifically, should FARC rebels who committed atrocities go to jail.962 Dealing with non-state actors after a war may be more involved than bringing justice to a vanquished state or quasi-state and would require another study beyond the present effort.

Our next element of the jus post bellum concept is reconciliation. From our chart, we see the element of reconciliation is not as highly regarded for post-conflict peace as might otherwise be thought. St. Augustine saw the need for peace after war “…it is an established fact that peace is the desired end of war. For every man is in quest of peace, even in waging war, whereas no one is in quest of war when making peace.”963 Chaplain Iasiello, not surprisingly, is a proponent of reconciliation under what he termed “a healing mind-set”964 that formed one of his seven criteria for jus post bellum. By this phrase, he means that the trauma of war across many levels of existence needs to be addressed after the conclusion of any war. Simply stated, everyone including the victors needs to heal, eventually. Continuing Iasiello recommends

[i]t would be constructive if both the victors and the defeated

entered this post-conflict phase in a spirit of regret, conciliation,

humility, and possibly contrition. Such a mind-set may further

the healing of a nation’s trauma and thus enhance the efforts to

962 Wall Street Journal, Columbia Pact’s Foes Seek Jail for Rebels, 5 October, 2016, A7. 963 Augustine and Henry Bettenson, Concerning The City Of God against the Pagans, Penguin Books, 1972, p. 866, Bk 19, Ch. 12. 964 Iasiello, Louis V., "Jus Post Bellum” Naval War College Review, vol. 57, no. 3, 2004, p. 5.

283

seal a just peace.965

Evident here is the concern for this reconciliation to establish the peace and try to return to some sort of normal life even if the complete ante bellum life cannot be attained.

Walzer, in his seminal book, Just and Unjust Wars, compared reconciliation after an international war to an inter-family feud. In his example he explained that there may be the occasional killing of men folk from time to time but if a woman or child were to be killed even by accident or mistake, all hell would break out. Such an occurrence could end in a family being wiped out or driven away. Yet, he states “[s]o long as nothing more happens [than the occasional male depopulation] the possibility of reconciliation remains open.”966 This hoped for reconciliation would be instrumental in re-establishing relations between the vanquished state and its people as well as between the defeated state and the victors.

Pensky looks at reconciliation from the angle of transitional justice. This view of reconciliation takes up the “peace versus justice” debate and how instead of either peace or justice there might be an ameliorating effect by the use of amnesty instead of prosecution. He argues such an approach may help to resolve the hard issues “…in cases where reconciliation and criminal justice have come into conflict….”967 Stahn encapsulates the element of reconciliation when he offers sketches of post-conflict law including

...a trend towards accommodating post-conflict responsibility with

the needs of peace in the area of criminal responsibility…Today, it is

965 Id., p. 6. 966 Walzer, Michael, Just and Unjust Wars, 4th ed., Basic Books, 2006, p. 132. 967 Pensky, Max, "Jus Post Bellum" And Amnesties, Cambridge University Press, 2013, p. 155.

284

at the heart of contemporary efforts of peace-making. Modern

international practice, particularly in the context of United Nations

peace-building appear to move towards a model of targeted

accountability in peace processes, which allow amnesties for less

serious crimes and combines criminal justice with the establishment of

truth and reconciliation mechanisms.968

Reconciliation for many of these scholars is wrapped into the criminal justice aspects of the post-conflict phase of war. Other scholars take a wide aperture approach viewing the element of reconciliation broadly as to the entirety of society. Yet again, we observe the difference that one term has for the scholarly community writing on jus post bellum. Despite all of these well- intentioned efforts to seek the element of reconciliation, only five of our selected authors mentioned the element either directly or indirectly. However, this element ranks third of six among our scholars for inclusion as an element of jus post bellum.

Changing directions, we now consider rebuilding as the next element. Recall that the definition of rebuilding was quite broad and this is reflected in the writings about this element. Bass wrote about rebuilding in both political and cultural terms. In the political sense, the victors

“…have no right to reconstruct a conquered polity simply out of self-interest...or reconstruct a polity for the victor’s economic, military, or political gain.”969 Later Bass makes an exception to the preceding statement when he encounters the genocidal state. Regarding the political reconstruction of the genocidal state, Bass argues “…jus post bellum must permit foreigners to

968 Stahn, C. "'Jus Ad Bellum', 'Jus In Bello' . . . 'Jus Post Bellum'? -Rethinking the Conception of the Law of Armed Force" European Journal Of International Law, vol. 17, no. 5, 2006, pp. 940-941., doi:10.1093/ejil/chl037. 969 Bass, Gary J., "Jus Post Bellum" Philosophy And Public Affairs, vol. 32, no. 4, 2004, p. 390, doi:10.1111/j.1088- 4963.2004.00019.x.

285 interfere in the defeated country’s affairs in ways that can reasonably be expected to prevent a new outbreak of an unjust war.”970 Walzer likewise joined in the conclusion that for a temporary period, the victor could provide political education for the followers of a nightmare regime.971 Bass insists that “…the victors have no rights of cultural reconstruction.”972 Bellamy reports “[o]ne of the few elements of the UN’s 2005 reform negotiations to win almost universal consensus was the idea of creating a peacebuilding commission to oversee and coordinate the UN’s role in post-war reconstruction.”973 Bellamy continues that the creation of this Peacebuilding Commission promotes the idea that the international community has “… a collective responsibility for rebuilding states and societies after war.”974 This new development answers some of the questions about the role of the international community as well as who pays for the rebuilding. Chayes states that post –conflict lessons can be learned such that the international community must

…invest more in the training and mentoring civil servants of the host

country, and to work with them for as long as it takes to help build a

government that performs for the people. Such investments are cheaper

maintaining an occupation for years beyond local tolerance. Donor

priority must give way to local needs.975

970 Id., p. 396. 971 Walzer, Michael, Just and Unjust Wars, Basic Books, 2015, p. 115-116. 972 Bass, Gary J., "Jus Post Bellum" Philosophy And Public Affairs, vol. 32, no. 4, 2004, p. 390, doi:10.1111/j.1088- 4963.2004.00019.x. 973 Bellamy, Alex J., "The Responsibilities of Victory: Jus Post Bellum and the Just War" Review of International Studies, vol. 34, no. 04, 2008, p. 616, doi:10.1017/s026021050800819x. 974 Id. 975 Chayes, Antonia, "Chapter VII1/2: Is Jus Post Bellum Possible?" European Journal Of International Law, vol. 24, no. 1, 2013, p. 305, doi:10.1093/ejil/chs089.

286

Thus Chayes sees rebuilding as a local organized but internationally funded cooperative venture that would hold the locals accountable for the resources provided by the international community and progress should be reciprocally reported to the donor community as well.

Holder, a supporter of post-conflict war trials, begins her article with the conclusory statement that “[i]t has come to be widely accepted that jus post bellum includes responsibilities to rebuild.”976 With this sensational and, perhaps, overbroad statement, she insists the peace must prevent any new outbreaks of war or other humanitarian issues under retribution or truth commissions. Iasiello issued a call for just restoration and separately respect for the environment with a rebuilding component. Just restoration is the transformation to “…a functioning, stable state…”977 as he places the additional calls on the victors to repair or rebuild infrastructure.978 In his criteria of respect for the environment, he writes “[a]ll sides in a conflict should assume responsibility for the protection of the environment in war…and the subsequent restoration of the environment after the fighting has ended.”979 Iasiello has expanded the element of rebuilding to include the environmental impacts of war.980 No other scholars have gone so far as to include an environmental component into the element of rebuilding.

Lazar is a jus post bellum sceptic who announced that “…just interveners, who have already taken on such a heavy burden, are entitled to expect the international community to contribute to reconstruction after they have made the first and vital steps.”981 Lazar adopts a principal and

976 Holder, Cindy, Jus Post Bellum and Transitional Justice, Cambridge University Press, 2013, p. 244. 977 Iasiello, Louis V., "Jus Post Bellum", Naval War College Review, vol. 57, no. 3, 2004, p. 42. 978 Id. 979 Id. 980 Id., p. 45. 981 Lazar, Seth, Skepticism About Jus Post Bellum in May, Larry, and Andrew Forcehimes, Morality, Jus Post Bellum, and International Law, Cambridge University Press, 2012, p. 1, Chapter 9.

287 agent approach, that is, the interveners are the agent of the international community, the principal, and as such “[a]ny duties they acquire through their justified intervention fall on the principal, not the agent.”982 Proceeding on, Lazar argues “…but even if the principal/ agent logic is rejected, the duty to help the stricken society should still be universal.”983 Concluding

“…if one state undergoes the struggle and risk involved in just intervention, they can demand that other states that avoided the costs contribute to reconstruction.”984 Majima employs the term “reconstruction” as one of his putative elements by that he means rebuilding and actually uses the term “rebuilding” later in his article. He casts rebuilding to include the traditional brick and mortar but expands into both the political and the economic arenas. Majima states that in the political arena the American occupation provided “…encouragement of desire for individual liberties and democratic processes including freedom of religious worship….”985 On the economic side the occupation documents included “…a wide distribution of income and the ownership of the means of production and trade….”986 With Osterdahl listing economic reconstruction as one of his principles of jus post bellum, he makes a push for “…incorporating international and national laws relating to the financial and economic sector since economic reconstruction is a very important part of the post-conflict phase.”987 Similar to Majima, the clear implication of including economic reconstruction is that such an effort should produce a more lasting peace although empirical evidence is currently lacking other than the cases of

982 Id., p. 20, Chapter 9. 983 Id. 984 Id., p. 21, chapter 9. 985 Shunzo Majima, Just Military Occupation? A Case Study of the American Occupation of Japan in Larry May and Elizabeth Edenberg, Jus post bellum and Transitional Justice, ed., New York, NY, Cambridge University Press, 2013, p. 32-33. 986 Id., p. 33 987 Österdahl, Inger, "Just War, Just Peace And The Jus Post Bellum", Nordic Journal Of International Law, vol. 81, no. 3, 2012, p. 282, Brill Academic Publishers, doi:10.1163/15718107-08103003. (Accessed 15 Jan 2018).

288 post-World War II Germany and Japan. Osterdahl opines that the “responsibility to protect” trend “…contains elements strongly resembling what has been discussed under the heading of jus post bellum. The responsibility to rebuild….”988 When discussing “state rebuilding” as opposed to the brick and mortar type rebuilding, Osterdahl concludes “…the operationalization of the jus post bellum in precise legal terms is lacking for the time being.”989 As we have observed , the element of rebuilding is the second most often mentioned of the six jus post bellum elements; so the scholars indicate clearly and convincingly the importance of rebuilding as an element.

Restitution for damages or injuries was listed by only two scholars, Lazar and Majima. Lazar advocates “…that compensation should be subordinate to reconstruction….”990 Judging that any of the money to be paid to individuals as restitution is not going to pay to fix the damage, rebuild the physical structures, or assist those in most want or need. Majima cites the US Initial

Post-Surrender Policy for Japan regarding restitution as “…it must be full and prompt…”991 to be effective. Both authors look to the lasting peace in their words about restitution. Yet, having seen the need for rebuilding, it is understandable that restitution is at the bottom of our selective elements list. This may be due to the other elements being wider in scope vis-à-vis the population whereas restitution is personal. Based on these readings, there seems to be many idiosyncratic definitions such that restitution might be lumped in with reparation element. If

988 Id. 989 Id. 990 Lazar, Seth, Skepticism About Jus Post Bellum in May, Larry, and Andrew Forcehimes, Morality, Jus Post Bellum, and International Law, Cambridge University Press, 2012, p. 1, Chapter 9. 991 Shunzo Majima, Just Military Occupation? A Case Study of the American Occupation of Japan in Larry May and Elizabeth Edenberg, Jus post bellum and Transitional Justice, ed., New York, NY, Cambridge University Press, 2013, p. 33.

289 this is true, we may have more support for the jus post bellum element of restitution than we observe from the chart. Having seen that the scholars possibly combined the element of restitution and reparation let us turn to the latter.

In the element of reparation, the repair or other remedy for goods damaged or injuries suffered, we have an attempt to make the victim whole again; a concept borrowed from tort law.992 Bass supports the element of reparation quite beyond the idea of state responsibility.

Bass holds “…reparations offer another way of punishing those who, while perhaps not criminally guilty, bear some responsibility….”993 Despite this view, he cautions against harsh or exploitive reparations writing “[r]eparations should be compensatory, not vindictive.”994 So

“[i]n the same spirit, reparations are a way of showing to would–be aggressors that war literally does not pay.”995 Bass ends by stating that there is a return to the idea of reparations

“…economic reparations are an increasingly accepted means for making amends to the victimized groups.”996 For Majima, the lens of the Potsdam Declaration provides the background for his view of reparations. In that Declaration, the economic portion stated unequivocally reparations were to be made “…through the transfer of Japanese property located outside the territories to be retained by Japan”997 and from “such goods or existing capital equipment and facilities as are not necessary for a peaceful Japanese economy or the

992 See, Beatty, Jeffrey F. et al., Legal Environment. 5th ed., South-Western, 2014, p. 139. Compensatory damages in tort law is “…an amount of money to restore a plaintiff to the position that person was in before the injury.” 993 Bass, Gary J., "Jus Post Bellum", Philosophy And Public Affairs, vol. 32, no. 4, 2004, p. 409, doi:10.1111/j.1088- 4963.2004.00019.x. 994 Id. 995 Id., p. 410. 996 Id. 997 Shunzo Majima, Just Military Occupation? A Case Study of the American Occupation of Japan in Larry May and Elizabeth Edenberg, Jus post bellum and Transitional Justice, ed., New York, NY, Cambridge University Press, 2013, p. 33.

290 supply of the occupying forces.”998 He agreed these reparations formed part “…of the successful reconstruction….”999 Presenting a mainstream position, Orend argues against compensation whether that be in the form of restitution or reparation, although based in the context he appears to mean reparations. Instead, he strongly favors “…investing in and rebuilding the economy”1000 rather than “…extracting resources from the target country….”1001

Continuing on “[t]his need for funds is a strong argument for including international partners in reconstruction.”1002 Clearly, Orend wants several types of rebuilding to be considered as constituents of this jus post bellum element including economic rebuilding, reconstruction, and constitution rebuilding as he rejects reparations. Osterdahl lists several “elements” for his development of the jus post bellum concept; one of these is “…extracting post-conflict reparations….”1003 This fits into his view of the post-conflict rehabilitation since jus post bellum in general is “… much more comprehensive since it aims at the entire society….”1004 Transitions to peace, for him, must be a societal responsibility of both the vanquished and the victors.

Stahn, while supporting the general idea of an element called reparation, is quick to cite a trend that in “[c]ontemporary developments in international law point to the emergence of a rule that prohibits the indiscriminate punishment of a people through the excessive reparations

998 Id. 999 Id. 1000 Orend, Brian, "Jus Post Bellum: The Perspective Of A Just-War Theorist" Leiden Journal Of International Law, vol. 20, no. 03, 2007, p. 585, Cambridge University Press (CUP), doi:10.1017/s0922156507004268 (Accessed 24 Apr 2018). 1001 Id., p. 586. 1002 Id. 1003 Österdahl, Inger, "Just War, Just Peace and the Jus Post Bellum" Nordic Journal of International Law, vol. 81, no. 3, 2012, p. 271. Brill Academic Publishers, doi:10.1163/15718107-08103003 (Accessed 1 May 2018). 1004 Id.

291 claims….”1005 Accordingly, victor should not be tyrannical but rather “…that reparation and compensation claims must be assessed in light of the economic potential of the wrongdoing state and its implications for the population of the targeted state.”1006 “Reparations are surely due the victims of aggressive war”1007 according to Walzer. These are to be collected via the tax system from “…among all citizens, often over a period of time extending to generations that had nothing to do with the war at all.”1008 To him this is a price of citizenship. Acceptance of paying reparations “…says nothing about their individual responsibility.”1009 Simply stated,

Walzer supports reparation but not the idea of a guilt being attached to the ordinary citizen.

Again, we see there is a consensus on the element of reparations with the second highest subscription rate of all of the jus post bellum elements. Yet, the definitional and practical implementation divergence exposed above shows the difficulty of operationalizing the elements of the concept. The good news is a high degree of “buy-in” from our selected scholars but the devil will remain in an agreement on the definition and extent of these reparations as these become operationalized. We have been cautioned against making reparation demands overly burdensome or even punitive while understanding that wars have reparation consequences.

Proportionality is our final element under examination. On one level of analysis, this element is a part of every author’s writings in that it is necessary for that lasting, just peace all agree upon.

1005 Stahn, C., "'Jus Ad Bellum', 'Jus In Bello' . . . 'Jus Post Bellum'? -Rethinking The Conception Of The Law Of Armed Force", European Journal Of International Law, vol. 17, no. 5, 2006, p. 939, doi:10.1093/ejil/chl037. 1006 Id., p. 940. 1007 Walzer, Michael, Just and Unjust Wars, Basic Books, 2015, p. 296-297. 1008 Id. 1009 Id.

292

Applying our methodology requires more than this visceral humanitarian sentiment; so we seek textual confirmation. “Proportionality in the fighting might be seen as applying to jus post bellum”1010 posited Bass. The seeds of the post-conflict element of proportionality may indeed be sown during the waging of the war. He places proportionality into a positon to advocate against total war indicating “[t]he duty of peace must outweigh the duty of justice….”1011

Majima clarifies this element “[u]nder this principle, any ill effect caused must be proportionate to the resulting good effects and vice versa…”1012 and applies it to the non-prosecution case of the Emperor after World War II. Majima concludes that “…using the principle of proportionality to evaluate the emperor’s exemption from indictment, the principle of retribution could be considered to be satisfied, at least in part.”1013 The element of proportionality permeates every other jus post bellum element rendering it critical to the development and refinement of the concept. Proportionality in the jus post bellum phase is as meaningful and universal as it is in the jus in bello phase establishing this concept as indispensable for the Just War Theory.

5.7 Conclusion

In the end, a few general statements can be made about the consensus regarding the elements of jus post bellum. The nearly universal subscription to retribution is a clear finding and should become an element of jus post bellum. Similarly the rebuilding element garnered significant support but not as nearly universal as retribution. Reconciliation for many of these scholars is

1010 Bass, Gary J., "Jus Post Bellum", Philosophy And Public Affairs, vol. 32, no. 4, 2004, p. 405, doi:10.1111/j.1088- 4963.2004.00019.x (Accessed 1 May 2018). 1011 Id., p. 405. 1012 Shunzo Majima, Just Military Occupation? A Case Study of the American Occupation of Japan in Larry May and Elizabeth Edenberg, Jus post bellum and Transitional Justice, ed., New York, NY, Cambridge University Press, 2013, p. 42. 1013 Id.

293 wrapped into the criminal justice aspects of the post-conflict phase of war. Other scholars take a wide aperture approach viewing the element of reconciliation broadly as regards the entirety of society. Yet again, we observe the difference that one term has for the community writing about jus post bellum. Despite all of these well-intentioned efforts to seek the element of reconciliation, only five of our scholars mentioned the element either directly or indirectly.

However, this element ranks third of six among our scholars for inclusion as an element of jus post bellum. The other elements had some range of support but not clear or convincing evidence of support. The combination of restitution and reparations maybe a solid development but only begs the question of whether or not five elements is a good basis to proceed to develop a concept. This seems adequate but the hard work of defining the extent of these elements could call for additional elements being considered for a more complete concept development. Exploring the concept of jus post bellum, although not yet an accepted part of the Just War Theory, indicates that knowing the next step after a belligerent occupation should help to organize it towards that end of returning sovereignty to the vanquished.

Growing interest in and development of the jus post bellum concept necessitates the inclusion of this concept in any work on belligerent occupation. Jus post bellum is not an end in itself but part of the just peace process outlined in the Introduction. See Figure Introduction-1, The Cycle to Find Just Peace.

Grotius provided solid advice about how to handle a post-belligerent occupation situation noting especially the idea of moderation. Yet to get to moderation in the jus post bellum stage there must be some change in the vanquished from their former ways, for example from militarism, to allow for that to occur. I label this the belligerent occupation. In the next chapter

294 the ideal belligerent occupation will be developed as a significant step in the cycle to find a just peace after war. Knowing the end result of any endeavor should assist the planning to get to that point. So knowing the history of the concept of belligerent occupation, having compared previous belligerent occupations, modeling those occupations, and exploring the end result, the aspirational ideal belligerent occupation needs to be explicated for further development and implementation.

295

Chapter 6. Toward the Ideal Belligerent Occupation.

In this chapter I discuss and offer some suggestions for movement toward the ideal belligerent occupation. My ideal model is based upon what is known of the historical record and in spite of its various limitations and qualifications1014 serves as an ideal putative solution “…with which empirical phenomena can be contrasted.”1015 I will seek to develop that ideal concept of belligerent occupational doctrine and the law to support it to serve as that putative solution.

Specifically, an ideal model based on some previous experience can form the source for new policies and practices when applied in a new or different situation.1016 As to the development of that ideal belligerent occupation leading to a just peace, Nelson Mandela’s words shape my effort as he said “[i]t is an ideal which I hope to live for, and to see realized….”1017

We must begin with war, or more precisely, its end. “War is the realm of chance. No other human activity gives it greater scope: no other has such incessant and varied dealings with this intruder. Chance makes everything more uncertain and interferes with the whole course of events.”1018 When a war is coming to its conclusion by mutual exhaustion or a victorious method, there are immediate needs to be addressed across the entire spectrum of human activity. In the aftermath of war there is death and destruction so into this chaotic, vicious

1014 See, Bendix, Reinhard. Max Weber: An Intellectual Portrait. Doubleday, 1960. 1015 Carlton, Eric. Occupation: The Policies and Practices of Military Conquerors. Routledge, 1992, p. 176. 1016 See, Lasswell, Harold. The Garrison State in Bramson, Leon, and George W Goethals, (eds.), War: Studies From Psychology, Sociology, Anthropology, New York, Basic Books, 1968. 1017 Mandela, Nelson. "Nelson Mandela: An Ideal for Which I Am Prepared to Die" The Guardian, 2018, https://www.theguardian.com/world/2007/apr/23/nelsonmandela (Accessed 17 June 2018). Mandela made this statement from the dock at the opening of his trial on charges of sabotage, Supreme Court of South Africa, Pretoria, April 20 1964. 1018 von Clausewitz, Carl, et al. On War. Princeton, N.J., Princeton University Press, 1976, p. 99.

296 arena the ideal belligerent occupation would be placed. Any post–conflict process will be undertaken in an ambiguous, complex, and dangerous environment but occupation is also politically, economically, and militarily challenging due to the suffering of all sides in the war.

Exacerbated by the physical destruction of body, mind, and facilities, the hate and discontent of victor and vanquished alike, and the fear of the unknown future, the occupiers face a daunting challenge. More of the same can be stated about the ideal doctrine of belligerent occupation.

6.1 Four Transitional Factors after the Apocalypse of War.

Having formulated nine indicators to consider during the planning for a belligerent occupation and combining them with Edelstein’s indicators a solid plan for such an occupation has been developed. Armed with that plan to establish and conduct an ideal belligerent occupation, I have developed four factors to successfully transition a vanquished state back to the people of that state. I maintain an ideal belligerent occupation includes the following four factors: a military defeat, preferably decisive, in the war; a strong peace agreement ending the war and followed by an occupation of the defeated state; the commitment of the victor, a protecting entity, or some other entity to “reconstruct” the vanquished; and a time period, in terms of years, for that occupation to transition the defeated state back to the people. Essential elements of these factors are enumerated to complete the idea. These essential elements are part of the specific factor that needs to be completed or addressed to fulfill the factor. There is no order in the arrangement of these essential elements but rather these can be completed or addressed in series, in parallel, or all at once. By way of example, in the pursuit of a military victory the enemy may be disarmed on the way to a POW camp in order to gain control and provide security. More specifically, disarming the now defeated military always seems prudent

297 and was accomplished after the Second World War as part of those military victories. Likewise after the victory the enemy combatants were treated as Prisoners of War and placed into POW camps for vetting and possible indictment if found to have committed an articulated war crime or crimes. To visually conceptualize my idea, please refer to Table 6-1 below. In Table 6-1 the main factors are numbered and the essential elements are lettered under the factors these elements support. Examples of how each of the four factors is supported by these essential elements follow.

Table 6-1. Factors and Elements of the Ideal Belligerent Occupation.

1. Military victory then

a. physical control and basic internal security

b. disarming the defeated after surrender

c. arrangements for Prisoners of War (POWs)

2. Peace agreement that addresses

a. Political Order

b. Security (internal and international)

c. Eventual return of power to the vanquished

d. Self-sustainment of the vanquished state and polity

e. Military occupation to achieve the foregoing

3. Commitment to “reconstruct”

a. Retribution

b. Rebuilding

c. Reparations

d. Reconciliation

4. Occupation will not be indefinite as the vanquished state will be returned to the polity

298

Peace treaties clearly demonstrate that the war is over as it enters into a new phase of post- conflict leading to an eventual return of sovereignty to the vanquished state. Ideally this peace agreement should spell out the manner of belligerent occupation with the concomitant development of security and basic governmental functioning akin to state building. While the vanquished peoples may need considerable assistance to survive an eventual plan for self- sustainment should be addressed. A commitment to “reconstruction” of the vanquished should be considered including the vanquished engaging in self-help by providing labor and supplies since there is some degree of an economy even after a military defeat. The broader

“reconstruction” needs to include the jus post bellum concepts of retribution for war crimes, a general rebuilding as explored in the previous chapter, and reparations as described by Grotius in Chapter 2 with emphasis on overall reconstruction. Ultimately some reconciliation between the victors and vanquished as well as the vanquished and the larger international community should be expected. Finally, no true belligerent occupation should last longer than is needed to return the sovereignty to the vanquished on the road to a just peace.

6.2 Factor 1: Military victory.

The first factor to consider in establishing this “ideal belligerent occupation” is the need for a military victory of one belligerent state or groups of states over their adversaries. A military victory, in Clauswitzian terms, is rendering the enemy powerless so that we may impose our will on him.1019 To be clear, I agree with Colin Gray’s position that “… a strategically decisive

[military] victory should be one that decides who wins the war militarily…Politically understood, a decisive victory should be one that enables achievement of a favorable postwar

1019 Id., Brodie, Bernard. A Commentary, p. 642.

299 settlement.”1020 Such a victory is more conducive to a successful belligerent occupation if it is

“…a destructive military victory that has eviscerated prewar political, economic, and social institutions”1021 so as to leave no doubt as to the victor. O’Donovan has argued that “[a] belligerent has a duty to bring warfare to a decisive conclusion.”1022 Even Francis Lieber, drafter of the Lieber Code with its advances regarding humanity in war, “…called for rivers of blood because only thus could the war come to a crushing uncompromising conclusion.”1023

However, in my view, it must be understood that “[t]he idea of decisive victory, therefore, should not be equated necessarily with the military obliteration of the enemy. All that it requires is a sufficiency of military success to enable achievement of whatever it is that policy identifies as the war’s political object.”1024 Any military victory is going to be bloody and destructive in military terms so that there may be great tangential impacts on non-combatants but a military defeat regards combatants. Luttwak argued “[w]ar can become the origin of peace by total victory of one side…”1025 such that total victory “…may lead to a peace that can be stable and lasting.”1026 Similarly, Richard Holbrook, one of the authors of the Dayton

Accords ending the war in Bosnia wrote “[f]ailure to squash the separatist Serb movement

1020 Gray, Colin S. "DEFINING AND ACHIEVING DECISIVE VICTORY" Strategicstudiesinstitute.Army.Mil, 2002, p. 10, http://strategicstudiesinstitute.army.mil/pdffiles/PUB272.pdf (Accessed 2 Jan 2019). 1021 Edelstein, David M. “Occupational Hazards: How Military Occupations Succeed or Fail” International Security, vol. 29, No. 1 (Summer 2004) p. 59. 1022 O'Donovan, Oliver. Just War Revisited (Current Issues in Theology; V. 2). Cambridge University Press, 2003, p. 107. 1023 Freidel, Frank. Francis Lieber, Nineteenth-Century Liberal. Baton Rouge: Louisiana State University Press, 1947, p. 319. 1024 Gray, Colin S. "DEFINING AND ACHIEVING DECISIVE VICTORY" Strategicstudiesinstitute.Army.Mil, 2002, p. 12- 13, http://strategicstudiesinstitute.army.mil/pdffiles/PUB272.pdf (Accessed 2 Jan 2019). 1025 Luttwak, Edward N. The Curse of Inconclusive Intervention p. 266 found in Crocker, Chester A. et al. Turbulent Peace. United States Institute Of Peace Press, 2006. 1026 Id., p. 267.

300 immediately after Dayton, when it lay in disarray…”1027 indicates a more sanguinary response rather than a diplomatic posture but nonetheless shows that victory is one key to the successful belligerent occupation. The point is recognition of a military defeat has significance for those whom are vanquished.1028 Additionally there must be a victor to avoid the myth propagation such as the German “stabbed in the back” myth holding that the German army had not lost on the battlefield in World War One but was beaten by the mutinies in the Navy and the Berlin

Revolution of 1918.1029 Propagation of this legend led to the making of past losses into future needs for revenge. Furthermore, if there is a decisive military victory it is less likely that an insurgency or other guerilla warfare will take place and less likely that there will be a perpetual fear of war when there is less than a military victory such as the situation on the Korean peninsula.1030

There are essentially four ways that a war ends, these being a peace treaty, a declaration of the war ending by one party with the other party obligingly discontinuing the war, complete subjugation, and the fighting simply stops.1031 No matter how the war ends there needs to be a

1027 Holbrooke, Richard C. To End a War. The Modern Library, 1999, p. 371. 1028 See, Fortna, Virginia Page. Peace Time. Princeton Univ. Press, 2004, p. 35-37 and 77-79 wherein Fortna argues that decisiveness of victory is one of the baseline prospects for peace. While her book is focused on cease-fire agreements and the durability of peace, I extended this prospect to the belligerent occupation phase of war. 1029 Pike, John. "Stab In the Back (Dolchstoss Legende)" Globalsecurity.Org, 2019, https://www.globalsecurity.org/military/world/europe/de-back-stab.htm (Accessed 2 Jan 2019). This came from the testimony of Field Marshal Paul von Hindenburg to a committee of the German National Assembly investigating the defeat of Germany that an English general had said that "The German army was stabbed from behind." See also, Beschloss, Michael R. The Conquerors: Roosevelt, Truman and the Destruction of Hitler’s Germany, 1941-1945. Simon & Schuster, 2014. Roosevelt believed the Germans should have been occupied after WWI to “train the Germans to give up their old ambitions of dictatorship, a strong military, and a world empire.” p. 12. 1030 See, Gray, Colin S. "DEFINING AND ACHIEVING DECISIVE VICTORY" Strategicstudiesinstitute.Army.Mil, 2002, http://strategicstudiesinstitute.army.mil/pdffiles/PUB272.pdf (Accessed 2 Jan 2019). 1031 See "Field Manual 27-10: The Law of Land Warfare" Aschq.Army.Mil, 1976, paragraph 10, http://www.aschq.army.mil/gc/files/FM27-10.pdf. (Accessed 24 June 2018). See also, Wallach, Evan J. Law of War In The 21St Century. Carolina Academic Press, 2017.

301 recognized victor and a vanquished to set the stage for a belligerent occupation on the road to a just peace. Interestingly there is no official US military definition of victory1032 found in the five joint publications I examined, demonstrating victory is a question of “…favorable military achievement which forwards achievement of the war’s “political object.”1033 As such “[w]e must therefore conclude that war termination is a necessary but not sufficient condition for peace, since the discontinuation of hostilities does not perforce include positive progress towards peace.”1034 With no definition of victory and since the lack of hostilities doesn’t automatically lead to peace, I have proposed an ideal type of belligerent occupation and follow that occupation with a jus post bellum phase to complete the return of sovereignty to the vanquished.

In my own experience, I had argued in January, 2009 during a “Strategy” meeting at 13th Air

Force that the US should allow the civil war in Sri Lanka to end when the Tamils were surrounded on land and cut off from escape by sea in the northeast corner of that state. We were told that this war had been going on for 25 years and that there were essentially 4,000 people killed each of these years. Having read Luttwak’s 1999 article in Foreign Affairs entitled

“Give War a Chance,” I argued for allowing that war to conclude. The usual “blood bath” scenario was graphically predicted by the other side, followed by the “we must do something”

1032 Author’s Note: The publications were: Joint Publication 1-02, Department of Defense Dictionary of Military and Associated Terms; Joint Publication 5-0, Doctrine for Planning Joint Operations; Joint Publication 5-00.1, Joint Doctrine for Campaign Planning; Army Field Manual 1-02, Operational Terms; and Army Field Manual 3-0, Operations. A Joint Publication is “[a] publication containing joint doctrine that is prepared under the direction and authority of the Chairman of the Joint Chiefs of Staff and applies to all US military forces.” See, Dictionary of Military and Associated Terms, US Department of Defense 2005, Joint Publication (JP) 1-02, p 161. 1033 Gray, Colin S. "DEFINING AND ACHIEVING DECISIVE VICTORY" Strategicstudiesinstitute.Army.Mil, 2002, p.11. http://strategicstudiesinstitute.army.mil/pdffiles/PUB272.pdf (Accessed 2 Jan 2019). 1034 Handel, Michael I. War Termination, A Critical Survey. Hebrew University of Jerusalem, Leonard Davis Institute for International Relations, 1978, p. 10.

302 appeal, and then the “think of the children” pleading. I countered that if the war terminates this year, in the worst case, assuming arguendo, that the blood bath took place, that this would be the end of the war. Further, 4,000 people would not die in 2010 or 2011 or thereafter in this war. Further, if we [the US military] had to do something we could send a hospital ship and supplies to this area of Sri Lanka, and those children could go to school soon. The civil war in Sri

Lanka concluded in May 2009. Although there were casualties in ending this war as the Tamils were completely surrounded, there was no “blood bath.” There were not 4,000 people killed in

2010 or any year thereafter and, although not perfect, there have been elections and other indicia of peace in the formerly war torn State. In specific cases, there is the need for a war to end by total victory or nearly so, and not be allowed to drag on in perpetuity. Imposition of some solution short of victory will likely extend the war, the casualties, and the flashpoint combustibility longer than it need be, so ending a war with a victory may be more humanitarian in the long run. Although this was a “civil war” and not an international conflict that is the subject of this effort, even in a most brutal “civil war” there can be a closure of conflict by a military victory. As in every civil war there were atrocities committed on both sides as graphically described in the Office of the High Commissioner for Human Rights Investigation report on Sri Lanka.1035 I do not condone the use of illegal war tactics and the commission of war crimes employed by both sides in that conflict. Both sides violated The Hague and Geneva

Conventions as to proper war fighting techniques and ideally every allegation of war criminality

1035 See, "OHCHR Investigation On Sri Lanka" Ohchr.Org, 2015, https://www.ohchr.org/EN/HRBodies/HRC/Pages/OISL.aspx (Accessed 9 Dec 2018). See also, Candela, Miguel, and Zigor Aldama, "The Scars of Sri Lanka's Civil War" Aljazeera.Com, 2016, https://www.aljazeera.com/indepth/inpictures/2015/12/scars-sri-lanka-civil-war-151221062101569.html. (Accessed 5 Jan 2019) and "World Report 2016: Rights Trends In Sri Lanka" Human Rights Watch, 2014, https://www.hrw.org/world-report/2016/country-chapters/sri-lanka (Accessed 5 Jan 2019).

303 must be investigated and prosecuted when warranted. Yet, any warfare is vicious, bloody, and chaotic so any attempt to end that situation will need to be forceful necessitating a military victory to put an end to the carnage and destruction. Such a military victory enables the turn to belligerent occupation after an international armed conflict.

As to this ideal belligerent occupation, the following three essential elements: physical control and basic internal security, disarming the defeated after surrender, and arrangements for

Prisoners of War (POWs) under the military victory factor could be occurring simultaneously.

That is, troops may capitulate as the victors establish internal control and security leading to a final surrender, disarmament, and encampment of enemy forces as POWs. These overlapping events further contribute to the chaos at or near the ending of wars making the complete defeat and surrender important actions in dangerous times as internal order and security is being sought.

Considering Germany in the post Second World War era, this idea of complete defeat was accepted. “Germany in defeat in 1946 is not Germany in defeat in 1919. Unlike 1919, there has been an overwhelming military defeat, and an ‘unconditional surrender.’ Unlike 1919, the war has been brought home physically to the people as no war has come home to roost since

Carthage.”1036 While this quote may overstate the conclusion, the point remains that a decisive military defeat victory by one’s adversaries gets the attention of defeated state’s population. As

Julian Bach explains, the differences between the 1919 and 1945 defeats are that “…cities are in ruins…Unlike 1919, there is no central German government, no capital… Unlike 1919, all

1036 Bach, Julian, Jr. America’s Germany: An Account of the Occupation. Random House, New York (1946) p. 290.

304

Germany is occupied.”1037 Margaret MacMillan characterized the Allies armistice mistake in

World War I “…and it did not become clear until much later, as a result of the armistice terms, the great majority of Germans never experienced their country’s defeat first hand. Except in the

Rhineland, they did not see occupying troops.”1038 Thus a military victory is required.

While unconditional surrender is an ideal closure to a war and merely means that there are no conditions as to the surrender except that humanitarian law will be observed, such surrender has not occurred in the last three quarters of a century. The Second World War provides a workable concept of unconditional surrender. I wholly concur with Winston Churchill, who described unconditional surrender in this way to the British House of Commons

The term ‘unconditional surrender’ does not mean that the German people will be enslaved or destroyed. It means however that the Allies will not be bound to them at the moment of surrender by any pact or obligation… No such arguments will be admitted by us as were used by Germany after the last war, saying that they surrendered in consequence to President Wilson’s ‘Fourteen Points.’ Unconditional surrender means that the victors have a free hand. It does not mean that they are entitled to behave in a barbarous manner, nor that they wish to blot out Germany from among the nations of Europe.1039

When the German enemy was militarily defeated, there was this clarification that the Allies would not act in a ruthless way towards the German population whether military or civilian and

Churchill asserted there would not be any annihilation of Germany. President Roosevelt stated on 24 December 1943 that the US and UK “...intend to rid them [the Germans] once and for all of Nazism and Prussian militarism and the fantastic and disastrous notion that they constitute

1037 Id., p. 290-291. 1038 MacMillan, Margaret. Paris 1919: Six Months That Changed the World. Random House, 2003, p. 158. 1039 Churchill, Winston S. The Hinges of Fate. Houghton Mifflin, 1950 p. 690-691. Excerpt from a speech by Churchill in the House of Commons on 22 February 1944.

305 the ‘master race.’”1040 The President spoke about the political victory of capturing the enemy’s mind while the military victory is about the capture of territory and enemy forces. Both victories are needed but a military victory in my view can lead to a political victory. By taking away the enemy’s will to war in accordance with the Laws of War and invoking the definition of unconditional surrender as described by Churchill, there may be a collateral benefit of reducing the likelihood of guerilla warfare or an insurgency, especially if the means of war are also eliminated. This is the free hand to establish a belligerent occupation and jus post bellum phase on the road to the return of sovereignty to the vanquished. In my model of ideal belligerent occupation the military victory must eliminate not only the enemy’s means of war such as manpower and weaponry but more importantly their will to war.

In the three wars of my service there was not an unconditional surrender and guerilla warfare or insurgency was undertaken by the otherwise militarily vanquished. Unconditional surrender is not a prerequisite for a successful occupation to occur however it can be helpful to those seeking to establish security in the vanquished state. In either event, a signed agreement to end the conflict is required so as to begin to establish the relationship between the victors and vanquished. What is needed is some acknowledgement that the vanquished are in fact defeated and no further war making is to occur. In other words the vanquished have lost the will to resist or continue the struggle. After the Second World War, Germany, as a state, knew it was defeated and the people of Germany knew that they were defeated. Similarly, the

Japanese knew they were defeated as “[t]he American-led military occupation of Japan began

1040 See, FDR's 1943 Christmas Address: "Peace On Earth, Goodwill Toward Men" Newsweek, 1943, https://www.newsweek.com/peace-earth-and-goodwill-toward-men-will-be-realized-535672 (Accessed 4 Aug 2019). President Franklin D. Roosevelt's Christmas broadcast address on December 24, 1943, was delivered from his home in Hyde Park, New York.

306 within one month of Japan’s unconditional surrender on August 15, 1945….”1041 The terms of unconditional surrender were similar for both former Axis Powers despite the differing situation vis-à-vis the functioning of the respective vanquished governments, cultures, and geography.

A military victory needs to be accompanied by a formal surrender from an appropriate authority of the vanquished state. An appropriate authority should be someone in a leadership positon in the vanquished administration that is preferably known both domestically and regionally, perhaps internationally. Further, this surrender should be broadcast to the widest possible audience both internally and globally. To be distinct, this is not an armistice since an armistice is

[a] suspending or cessation of hostilities between belligerent nations or forces for a considerable time. An armistice differs from a mere ‘suspension of arms’ in that the latter is concluded for very brief periods and for local military purposes only, whereas an armistice not only covers a longer period, but is agreed for political reasons. It is said to be general if it relates to the whole area of war….1042

To surrender is to “stop fighting and admit defeat”1043 so this common definition is crucial to ending the war. In the past, military surrenders were accompanied by the “stacking of arms” and the relinquishment of the officer’s sword or other weapon personal to that officer. Such a display serves many purposes especially a showing that the war is over, there is a victor, and

1041 Majima, Shunzo. Just Military Occupation? A Case Study of the American Occupation of Japan in Larry May and Elizabeth Edenberg, eds. Jus post bellum and transitional justice. New York, NY: Cambridge University Press, 2013, p. 29. 1042 Black, Henry Campbell, and Michael J. Connor, Black's Law Dictionary. 5th ed., United States, West Publishing Co., U.S., 1981, p. 99. 1043 "SURRENDER | Meaning In the Cambridge English Dictionary" Dictionary.Cambridge.Org, 2019, https://dictionary.cambridge.org/dictionary/english/surrender. (Accessed 23 May 2019).

307 control has passed from the vanquished to that victor. Furthermore, guerilla war and insurgent efforts as well as acts of sabotage or other military related miscreant actions may be minimized by such a ceremony. Any surrender ceremony correspondingly provides an opportune time to begin the disarming of the vanquished military forces as well as the beginning of the POW arrangements as the defeated forces need to be identified and determinations made about their situations vis-à-vis war crimes or other particular circumstances of the late conflict. Such a surrender ceremony needs to be part of the military victory factor.

6.2.1. Physical control and basic internal security.

Turning to the elements of the military victory factor, even prior to any surrender, the victors must establish control of and security in the areas of enemy territory they possess. Such control must be established immediately and as thoroughly as the circumstances permit but it certainly needs to be militarily sufficient to have the force necessary to enable control and jurisdiction by the victors. Internal security is another element of the military victory that an occupier must establish early on so that violence is manageable. “The international law of belligerent occupation thus makes it plain that it is incumbent on the occupying power(s) to ensure as far as possible security to the population…if in real estate the three predominant considerations are location, location, location –in belligerent occupation the three preponderant considerations are security, security, security.”1044 The occupying forces have a duty to protect the civilians in those areas under their control. Crime will continue to occur but it should be essentially non-military in that the crimes committed are of a civilian nature rather than

1044 Dinstein, Yoram. The Influence of the Conflict in Iraq on International Law in Pedrozo, Raul, The War in Iraq. Newport, R.I, Naval War College, 2010, p. 486.

308 military or quasi-military in nature. To be clear, murder is a civilian crime whereas post-conflict targeting and assassination is not, so careful distinctions must be made based on a thorough, factual investigation1045 requiring adequate security and internal control under The Hague and

Geneva Conventions as incorporated into the Rules of Engagement (ROE). This means that the area to be under occupation must be as secure as possible under the circumstances and that security is situational, that is changing by day and location. During the early days of entry into

Baghdad by Coalition Forces in 2003 this security situation was described as

…there was a manpower shortage in Baghdad. The Iraqi police had collapsed when the regime fell… The Iraqi army had melted away. The damage done in those early days created problems that would linger for years. The Iraqis were looking for someone to protect them. By failing to secure Baghdad, we missed our first chance to show that we could.1046

This failure to provide security was profound and roundly criticized. “The kind of security that would be required in key sectors of Iraqi society should have been anticipated in planning such an ambitious intervention as Operation Iraqi Freedom.”1047 This need for security should have been clear from earlier interventions such as Somalia. Colonel Thomas X. Hammes writes decisively about the security situation in the earlier Somalia mission. Drawing upon his experiences, we can obtain an idea of what this sort of security might look like and what it may portend for belligerent occupation operations post-bellum. Hammes stated,

1045 Factual investigations can be difficult among coalition partners especially “…check point shootings, and engagement of apparently unarmed civilians, where all issues that coalition partners each had distinctly different approaches to identification, investigation, and release of information.” E-mail from LTC Jonathon Kent, Chief, Administrative and Civil Law, V Corps [US Army] to SQDLDR Catherine M. Wallis, Royal Australian Air Force, Director, Coalition Legal Operations, Center for Law and Military Operations (6 April 2004) Found in Forged In the Fire: Lessons Learned During Military Operations 1994-2006. Center for Law and Military Operations. The Judge Advocate General’s Legal Center and School, US Army, Charlottesville, VA. September 2006, p. 348-349. 1046 Bush, George W. Decision Points. United States: Random House Audio Publishing Group 2010, p. 258. 1047 Scheffer, David J. "Beyond Occupation Law" The American Journal of International Law, vol. 97, no. 4, 2003, p. 853. JSTOR, doi: 10.2307/3133684.

309

[o]n the security side, the extensive use of human intelligence sources and aggressive, round-the-clock saturation patrolling allowed us to gain control of Mogadishu. These tactics made use of the strengths of our Marines. They did well as “beat cops” getting to know the neighborhoods they patrolled. They learned who should and should not be there. Their constant presence allowed a semblance of normalcy to return to the streets of Mogadishu and the outlying cities. Unfortunately, exactly as most had predicted would happen, when the U.N. took over, aggressive patrolling and constant contact with the people that had been the key to U.S. success ceased to be the norm. U.N. forces withdrew into cantonments and counted on their superior conventional power to protect them from the tribal insurgents. They ceded the ground outside the U. N. camps to the Somalis. The outcome was inevitable--defeat and withdrawal.1048

Much of Colonel Hammes’ work was later incorporated into the US Army and US Marine Corps

Counterinsurgency Field Manual. That Field Manual is replete with references to security.

Specifically, addressing Iraq, the Field Manual provides that

…a government that cannot protect its people forfeits the right to rule. Legitimacy is accorded to the element that can provide security, as citizens seek to ally with groups that can guarantee their safety. In some areas of Iraq…for instance, militias established themselves as extra- governmental arbiters of the populace’s physical security-in some cases, after first undermining that security.1049

This approach was successful because “[d]uring any period of instability, people’s primary concern is physical security for themselves and their families.”1050 Completing this view of the counterinsurgency, the Field Manual indicates “[h]owever, COIN [counterinsurgency] is manpower intensive [for the occupier] because counterinsurgency must maintain widespread order and security.”1051 Security is essential in the wake of war and in the establishment of the occupation phase thus it cannot be politically overstated or militarily undervalued. A cautionary

1048 Hammes, Thomas X. The Sling and the Stone: On War in the 21St Century. Zenith Press, 2004, p. x-xi. 1049 Petraeus, David, and James Amos. US Army/ US Marine Corps Counterinsurgency Field Manual. Signalman Publishing, 2006, p. 1-43 at 1-9. 1050 Id., p. 3-67 at 3-11. 1051 Id., p. 1-68 at 1-13.

310 note is required in that security is essential but absolute security is unlikely even in the best of circumstances and definitely not needed for the ideal belligerent occupation. Ultimately, security concerns should have been better planned for and executed in Iraq as the importance cannot be overstated.

6.2.2 Implementing physical control and basic internal security.

Having definitively established that security is needed in the immediate post-conflict phase and throughout the belligerent occupation, the question of how this basic internal security might be accomplished must be raised. First and foremost, the troops that defeated the vanquished forces will be needed to establish that initial control to institute some security. “Responsibility for the administration of the civil population in the occupied areas was initially in the hands of the tactical unit occupying each area.”1052 This is axiomatic for US Forces and such victorious troops will be able to enforce the peace more than likely by sheer fear rather than being perceived as liberators. Early on in any belligerent occupation it is better to be feared than to be loved as there will be time to become loved. Human Rights Watch conducted a survey about

Iraq in 2003 and, not surprisingly, found that combat troops need extra training to perform occupation duties such as law enforcement and these forces may not be the best occupation forces.1053 Combat troops can perform occupation duties for a limited time until relieved by other better trained and equipped troops for the ideal belligerent occupation.

1052 Frederiksen, Oliver J. The American Military Occupation of Germany, 1945-1953. Historical Division, Headquarters, United States Army, Europe, 1953, p. 6. 1053 Hearts And Minds Post-War Civilian Casualties in Baghdad by U.S. Forces" Human Rights Watch, 2003, p. 7-9 https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces. (Accessed 28 June 2018). There may be some confusion regarding what is policing and what are interdiction operations at checkpoints but I will leave that discussion to the ground warfare experts.

311

To begin an ideal belligerent occupation, these victorious combat troops should be expected to preserve the peace as opposed to furthering combat operations until reinforced by gendarmes.

In this regard, the French National Gendarmerie (Gendarmerie nationale) provides the best illustration of the ideal force for civil law enforcement in the post-conflict vanquished territory albeit not the only example. The French National Gendarmerie is a branch of the military assigned to the Ministry of the Interior in 2002 (Decree of 15 May). In Article 3 of that decree it was “…stipulated that regarding homeland security missions, the Ministry of Interior is responsible for the use of Gendarmerie nationale units. For this purpose this Ministry, in conjunction with the Ministry of Defence, defines the missions of the units other than the ones related to criminal investigations (which are under the Ministry of Justices responsibility).”1054

In this role, they believe that contact with the citizenry assisted by complementarily using the territorial gendarmes, provides for the general civil security. Based upon the last statement these gendarmes may be best suited for the civil security operations in the occupied zones due to their civilian role supplemented by their military training, arguably the best of both of these worlds. This choice of “…gendarmerie, carabinieri, and garda civil from Latin countries such as

France, Italy and Spain not those from Anglo Saxon countries where the military and armed forces are traditionally separated…”1055 from policing is illustrative of the contact with the vanquished inhabitants by the gendarmerie that is needed to win the hearts and minds after

1054 International Association of Gendarmeries and Police Forces with Military Statues regarding French National Gendarmerie website http://www.fiep.org/member-forces/french-national-gendarmerie/ (Accessed 13 Jan 2018). 1055 Sassoli, Marco. Legislation and Maintenance in Public Order and Civil Life by Occupying Powers in Heintschel von Heinegg, Wolff, and Michael N Schmitt, Detention and Occupation in International Humanitarian Law. Farnham, Ashgate, 2012, p. 376.

312 the vanquished have had their posteriors kicked.1056 In attempting to keep the peace a gendarmerie force that seeks to maintain civil security makes sense and this model has been employed with good success in Afghanistan.

For an ideal belligerent occupation, these gendarmes would be held in reserve pending enough internal control and security to bring them into the newly occupied zones. If at all possible, these gendarmes should not be used as combat forces to take territory or engage in combat, especially in the locale where they are to be assigned. Employing them with the “occupying forces” for a period of up to a month would allow time for the gendarmes to “learn the ropes” of the landscape and the vanquished civilian populations to ensure a smooth transition of forces and allow for the rotation of the combat forces completely out of the area of occupation.

During that putative one month period there is the additional value of perhaps doubling but at a minimum increasing, the occupation forces in that occupied zone. Assuming this overlap then more combat forces are freed of the occupation mission for which warriors are not usually well suited. Specifically, it may be quite difficult for combat forces having seen death and intense fighting to quickly change into a force resembling a police department with the massive rule changes. By employing gendarmes whose mission is compatible with civil security, the

Occupying Power(s) should be able to further reduce the chances of additional civilian casualties. The combat forces would then be relieved to refit or re-enter the fray allowing the gendarmes to be solely responsible for maintaining the civil security in the occupied zones.

1056 Author’s Note: Position Paper written by the author in 2008 for 13th Air Force advocating for a decisive victory before attempting to win their hearts and minds. Provocatively entitled “If you kick their ass, their hearts and minds will follow,” this position paper explored how the decisive military defeat set the stage for successful occupation after surrender. See also, Pronay, Nicholas, and Keith M. Wilson. The Political Re-Education of Germany & Her Allies after World War II. Barnes & Noble Books, 1985 and Diefendorf, Jeffry M. In The Wake Of War: The Reconstruction Of German Cities After World War II. Oxford University Press, 1993.

313

Such rotations would need to be at the discretion of the local military commanders with tactical control in the newly occupied zones. Thus, the commander closest to the situation on the ground would be responsible for the decision regarding deployment of the gendarmes in their security role.

6.2.3 Disarming the defeated after surrender.

To reduce the likelihood of spontaneous or calculated re-combustion of the conflagration or its progeny either guerilla or insurgent activity, the defeated armed forces must be disarmed and arrangements made for their captivity with Prisoner of War status. Each of these two categories will be addressed in turn.

The confiscation of all weapons issued to or used by the vanquished belligerents is necessary for protecting the victors since “…the primary objective of military occupation is to secure the interests of the occupying power and prevent the occupied territory from becoming a source of instability.”1057 Confiscation of weapons also helps to protect the civilian population from further threat of or actual violence or crime during the occupation phase as it simultaneously reduces the chances for some aspects of guerilla or insurgent activity. The confiscated arms and any discovered weapons caches must be placed in a secure facility under guard by the victors and either destroyed or recycled to a yet-to-be created local constabulary force perhaps modeled on the aforementioned territorial gendarmes. Since these weapons were provided by the vanquished State, these should be reused if possible but after serial numbers are taken and

1057 Edelstein, David M. “Occupational Hazards: How Military Occupations Succeed or Fail” International Security, vol. 29, No. 1, Summer 2004, p. 53. Edelstein calls this type of occupation a security occupation. Later he expounds on what he labels comprehensive occupations that encompasses the mission of the security occupations but adds an “aim to create a certain political system and productive economy.” p. 54.

314 placed in log books for accountability. Due to the military versions of these small arms weapons allowing for large ammunition magazines, destruction is also a possible solution depending upon the post-conflict situation as determined by the Occupying Power(s) military commanders. Any destruction should be followed by some sort of recycling by melting them down or other techniques so that these weapons never fall into guerilla, insurgent, or criminal hands. Clearly, guerillas and insurgents can obtain other weapons but collecting or destroying those captured weapons will put a crimp in any immediate enemy operations.

6.2.4 Arrangements for Prisoners of War (POWs).

Regarding defeated belligerents, they should not be permitted to “melt away” but rather be pursued for classification and treatment as Prisoners of War or POWs. All of the Third Geneva

Convention1058 must be made applicable to all persons engaged in the conflict as regular or irregular forces once captured or upon surrender. It is relevant to note that this Third Geneva

Convention applies “…to all cases of partial or total occupation of the territory of the High

Contracting Parties…”1059 so with all of the world’s States party to these four Conventions, this

Third Convention is universally applicable. Unequivocally this standard must be communicated to and enforced by the occupation forces. Failure of those forces to abide by this Third

Convention is or can be a punishable offense under the occupying force’s military law.1060

1058 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 287, [online] Available at: http://www.icrc.org/en/war- and-law/treaties-customary-law/geneva-conventions (Accessed 12 November 2017). 1059 Id., Article 2. 1060 In the US military this could be enforced under Article 92 entitled “Failure to obey an order or regulation” found at 10 USC 892. Depending upon the specific factual situation there may be other possible violations of the Uniform Code of Military Justice.

315

As to any irregulars captured during the war or after the surrender or captured during any post- conflict fighting, I would propose that they be categorized by type and treated accordingly.

Should the irregulars be part of an army but detached from the main body to participate in guerilla tactics then these are partisans and they would be treated according to the Laws of

Armed Conflict (LOAC) so long as these partisans did not transgress any of the laws of war.

Troops raised by competent authority prior to the conclusion of hostilities but not part of the regular forces would be treated as prisoners of war again with the proviso that they followed such laws themselves. Any levee en masse that is, armed citizens who take up arms against an invading army and openly opposed the invasion, would be accorded LOAC treatment. There is an important caveat here in that these citizens must not have been raised in their land that is now “occupied.” This leads to the final category of “bushwhackers.” If these irregulars or even an individual conducts combat operation openly and fairly then they must be afforded POW status upon capture or surrender. However, if these bushwhackers are in occupied areas and commit their war making in that locale then they should be treated as criminals subject to trials by military courts in that occupied zone. This is another case of a military type crime distinguished from a purely civilian crime as discussed earlier.

POW treatment would comport with the strictures of the Third Geneva Convention

[s]hould any doubt arise as to whether person, having committed a belligerent act and having fallen into the hands of the enemy, belong to any categories enumerated in Article 4, such person shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.1061

1061 Id., Article 5.

316

Such treatment is expected in the DOD Manual on the Law of War that spells out in great detail those qualifying for Prisoner of War status and lists specifically those individuals not eligible for

POW status.1062 Two categories of persons are found not eligible for POW status, those who are “spies, saboteurs, and other persons engaging in similar acts behind enemy lines [occupied territory]” and, secondly, “persons who are nationals of the Detaining Power or its co- belligerents, such as a defector who subsequently is captured by the force from which he or she defected.”1063 In sum, when in doubt regarding the POW status, the default position is to grant the POW status with the victors able to convene a competent tribunal to establish the specifics of an individual’s case. By employing this approach, even the “new right” under the 1977

Protocols Additional to the Geneva Conventions to assert POW status for person not considered POWs would be fulfilled.1064

No matter the type of warfare occurs in the twenty-first century the need for POW status determinations could become common. Given that the 1977 Protocols Additional establishes the default position to granting POW status these administrative hearings need to be examined for some guidance prior to the next conflagration. At the international level, establishing a manual to confront this situation would be advisable. Such a manual could answer, for example, if the Canadian model (one JAG Officer) or the US model (Three Officer Panel) or both will be used. A manual could provide for the procedural protections of the defendants and developing a standard format for these hearing. Once a manual is available then training on the

1062 Department of Defense Law of War Manual. Office of General Counsel, Department of Defense, (Updated May 2016) p. 513-514. 1063 Id., p. 515. 1064 Protocols to the Geneva Conventions of 12 August 1949. Washington, Headquarters, Dept. Of The Army, 1979, Protocol I, Article 45, p. 32-33.

317 substance of this should begin immediately as there is so much other training, this new manual training will consume some training time. Determination of POW status by administrative hearing will be a necessity in any future belligerent occupation.

As to a competent tribunal to determine the status as a POW, this term is not defined nor any format or procedure delineated. A POW status determination hearing is important in that the competent tribunal in granting POW status “… consequently [provides] combatant immunity to someone who has taken part in hostilities….”1065 If the person is determined to be a civilian then that civilian is protected by Geneva IV but that civilian is “…liable for any acts of hostility and … could be sentenced to death.”1066 Again the importance of the aforementioned civilian- military crime distinction comes to the fore. Assuming there is some doubt as to the POW status, a competent tribunal hearing should be conducted upon arrival at the POW encampment as far from the front lines as possible and preferably in the rear area of the

Detaining Power. Waiting until arrival at the encampment fulfills the obligation contained in

Article 19 of Geneva III that requires “[p]risoners of war shall evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger.”1067 The location of the POW encampment while important is not the only focus as it is ostensible this encampment could be in a rear area that is in another country yet close to the war zone. In any event, the hearing should be in a relatively secure location such as this POW encampment. Within the POW encampment an administrative hearing by a field

1065 Clapham, Andrew, et al. The 1949 Geneva Convention: A Commentary. Oxford, Oxford University Press, 2015, p. 947. 1066 Id., p. 947. 1067 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 287, [online] Available at: http://www.icrc.org/en/war- and-law/treaties-customary-law/geneva-conventions (Accessed 12 November 2017).

318 grade Judge Advocate1068 or a panel of three Officers1069 can hear the evidence regarding the claimed status of POW when this claim of status is in doubt. An administrative hearing with more relaxed rules and process than a judicial processing meets the needs of this type of determination better than a more formal hearing. To avoid confusion, a format should be developed but the proceeding itself should not be a formal judicial hearing. By moving this hearing to a POW encampment, the independence of that tribunal is more assured and the fundamental due process rights better attained rather than conducting these proceedings near to the front lines as envisioned in the Third Convention and additional Protocol I.1070 Lastly, all decisions of these determination proceeding should have some sort of appeal to another higher authority and every case must be review by the senior Judge Advocate in the AOR of the service conducting the hearing. For this type of determination hearing, flexibility is the key as it regards location and format but not substantive rights.

As to the administrative hearing’s procedural law, the Detaining Power would have the burden of proof as to the determination of the putative POW’s status as well as the burden of providing dispositive evidence within its control or its ability to control since the status seeker is limited by confinement. Simply stated, if the Detaining Power has evidence that the status seeker should be considered as a POW it is duty-bound to disclose that information. Minimum

1068 Canada, Prisoner of War Status Determination Regulation, 25 January 1991, SOR /91-134, Article 4. Canada does not require a field grade officer to preside at the hearing only an appointment by The Judge Advocate General. Field grade officers in the Judge Advocate Generals’ Corps of the US military and most NATO Forces typically have at least ten years of military experience and are eligible to be selected to be Military Judges in their respective services. Field grade Officers are in the grade of 0-4 (Major or Lieutenant Commander), O-5 (Lieutenant Colonel or Commander), and O-6 (Colonel or Captain). 1069 US, Enemy Prisoner-of-War, Civilian Internees and other Detainees, US Army Regulation 190-8, October 1997 (US AR 190-8) 1070 Clapham, Andrew, et al. The 1949 Geneva Convention: A Commentary. Oxford, Oxford University Press, 2015, p. 948, section 48.

319 standards of due process would be applicable to this hearing including the right to be present and to present a defense with evidence after being provided with information offered against the POW status claim, witnesses may be called when applicable, and the services of a qualified translator provided, if needed. An announcement of the decision to the prisoner and their representative is to be made. Such minimum due process should follow the guidelines found in the fourth paragraph of Article 96 of Geneva III1071 as outlined above and be flexible given the default position of granting POW status. Records of any POW status hearings are to be maintained by the camp commander and be available to the Protecting Power. If there is the possibility of a criminal judicial trial against the POW status seeker, then that person is entitled to the assistance of qualified counsel.1072 All judicial proceedings for POWs are governed by the rights as outlined in Article 1051073 of Geneva III and sketched out above.

Once the status is ascertained then the POW is entered into the encampment. All POWs are to be treated humanely1074, be provided with food that is sufficient in quality, quantity, and variety to keep them healthy1075, provided with shelter1076, and all of the provisos found in

Geneva III.1077 POWs may be compelled to perform “work”1078 in one or more of the many

1071 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 287, Section III, Article 96 [online] Available at: http://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions (Accessed 12 November 2017). 1072 See, US v Noriega, US District Court for the Southern District of Florida, 8 December 1992, 808 F. Supp. 791 (1992) 1073 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 287, Section II, Article 105 [online] Available at: http://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions (Accessed 12 November 2017). 1074 Id., Article 13. 1075 Id., Article 26. 1076 Id., Article 25. 1077 Id., See, Part II “General Protections of Prisoners of War” and Part III “Captivity.” 1078 Id., Articles 49-57. This Section is entitled “Labour of Prisoners of War” but the word “work” is prominently used throughout the Articles and is adopted for clarity herein.

320 areas specifically enumerated in Geneva III including agricultural, industrial, logistics, commercial business, domestic service, and public utility service. The only caveat is that this work may not be of a military nature. I strongly suggest that POWs be immediately put to work rebuilding their country. Such an effort to have POWs repair and reconstruct their country is worthwhile in many respects as these POWs usually have the skills to perform this work, it will assist the efforts addressed in the third factor listed above to commit to “reconstruction,” and they will be gainfully employed under the rules contained in Geneva III permitting such work activity. POWs should have an interest in rebuilding their own country as well as the opportunity to “…be paid a fair working rate of pay by the detaining authorities direct”1079 as that rate of pay is established by the Detaining Power. POWs might need the money as their military stipend likely will have ceased upon capture. Both victor and vanquished should benefit from this sort of work effort to rebuild the vanquished State. Efforts such as this at self-help in the rebuilding of the country in parallel with efforts to become less dependent on international aid should be one of the indicia of becoming ready to leave the tutelage of belligerent occupation and the jus post bellum phase.

A caveat regarding this effort, in the event of guerilla warfare or an insurgency, curtailing reconstruction should not occur. When either of these two issues arises, prudence must be exercised by the Occupying Power as this work may provide opportunity for miscreant behavior between those irregulars or their agents in the local population and the POWs. Again, the

Occupying Power’s situational awareness and operational intelligence moves to the fore so that the rebuilding process can be slowed or temporarily halted as the internal security conditions

1079 Id., Article 62.

321 warrant. All of this effort must be suited to the needs of the people to whom this vanquished

State will be returned. However, security is paramount to begin the ideal belligerent occupation. Edelstein saw that security was so important in occupations that he called one of his four different occupation types, security occupation. He defined this type of occupation as one initiated “…to prevent the occupied country from becoming a threat to the occupying power or other states and to ensure that the occupied territory does not become a destabilizing influence in its region.”1080 Likewise, this should be the approach in the ideal belligerent occupation.

6.3 Factor 2: Peace Agreement.

------

Table 6-2. A peace agreement addressing a. Political Order b. Security (internal and international)) c. Eventual return of power to the vanquished d. Self-sustainment of the vanquished state and polity e. Military occupation to achieve the foregoing political order

The second factor required for a successful occupation is a strong peace agreement skillfully applied by the occupying power or powers supported by the occupying military forces. This

1080 Edelstein, David M. "Occupational Hazards: Why Military Occupations Succeed Or Fail" International Security, vol. 29, no. 1, 2004, p. 53. MIT Press - Journals, doi:10.1162/0162288041762913.

322 factor requires a peace agreement, imposed if necessary,1081 on the defeated state but nevertheless a strong and rather specific1082 document to end the war and begin the preparation for that defeated state to be returned to the people of that vanquished State. The terms of any peace accord must be stringent and by that I mean that there must be some blending of military sternness with the basics of humanitarianism found in the Laws of Armed

Conflict to be applied during the belligerent occupation. Therefore, some writing, be it even a cease fire agreement, will affect the durability of peace.1083 Certainly, “[a] treaty of peace becomes obligatory on the contracting parties from the moment of its conclusion, - the moment it has passed through all of the necessary forms; and they are bound to have it carried into execution without delay”1084 unless otherwise stipulated in the peace treaty. Hence a peace treaty or some similar document is a necessity especially where there may be a postponement for the implementation of this peace. Ending World War I was such a deferred implementation wherein the treaty was agreed prior so that the end of the war would occur on

1081 See, Lee, Henry, The Life of Napoleon Bonaparte: Down to the Treaty of Tolentino and To the Close of His First Campaign in Italy. Thomas and William Boone, 1837. Prior to concluding the Treaty of Tolentino (Italy), Napoleon stated that he preferred “…an accommodation to marching on Rome” and would “grant peace to the Pope on these conditions” (p. 484, et seq.) including surrendering several parcels of the Papal States, monetary indemnity, and cessation of war against France by cancelation of all contrary alliances. Since Napoleon had several armies pointed at Rome and already occupied some Papal territory, the Pope capitulated after nearly nine months of negotiation. Napoleon imposed peace on the Papal States with a threat of marching further into the Papal States. Militaries can imitate this early example still today. This also indicates that negotiations by the vanquished are possible even with a gun to one’s head. 1082 Fortna, Virginia Page. Peace Time. Princeton Univ. Press, 2004, p. 198. Fortna concludes that “[t]hat the more specific and detailed the agreement [here cease fire agreements], the lower the hazard of another round of fighting, all else being equal.” Specifics in detailed agreements “…have been followed by lasting peace.” 1083 Id., p. 10-38. Fortna discusses the theory of agreements and the durability of peace in this chapter relating to cooperation between the former adversaries. 1084 Vattel, Emer de, et al. The Law of Nations. Liberty Fund, 2008, p. 665. “Any treaty must be formally completed to assure the peace without doubt as to its execution and efficacy.”

323 the eleventh hour of the eleventh day of the eleventh month.1085 Specificity of this type assists in two ways, one military and the other diplomatic. Militarily, it takes time to communicate the end of a war especially when one side is militarily devastated or nearly so. Thus, the notice of the document can be transmitted by the appropriate means to commanders that may be cut off or out of communication with their higher headquarters or in other such predicaments. A signed document can even be given to those commanders by their enemies under a flag of truce to help end the war but necessitating verification by these opposing forces.

Diplomatically, a signed peace treaty allows for as many issues to be agreed as possible so that there is a more complete peace and not some reigniting of the conflagration. I argue that we must secure the peace and then later seek human rights and justice or the peace will mean little at all.

6.3.1. Political Order.

Among the considerations in this peace treaty is that some level of control be gained to govern the defeated. This was identified in the history of the US occupation in Germany, specifically that government was important to establish early on in the occupation process as it would take considerable time to develop. For this instant purpose, governing will be called “political order.”

Basically, there must be some form of political order that will allow a vanquished state to be returned to its people.1086 This is no easy task as recent history clearly demonstrates. James

Madison wrote in The Federalist “[i]n framing a government which is to be administered by

1085 Eisenhower, John S. D., and Joanne Thompson Eisenhower. Yanks. Simon & Schuster, 2002, p. 282-283. Negotiations had begun on or about 14 October 1918 but were concluded by signature at 02:05 on the morning of 11 November 1918 with implementation of the armistice as described above. 1086 Franks, Tommy. American Soldier. Regan Books (2004) p. 419.

324 men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."1087 Once basic internal security is attained, the task for the victorious is to develop, in conjunction with the vanquished, an appropriate government usually distinguishable from the ante bellum government.

6.3.2 Security.

Once the vanquished have surrendered and to protect the civilian population, careful consideration must be given to the policing of the occupied zones by an indigenous police force. The Occupying Power must be very careful with the authority provided to the indigenous police so that personal or sectarian vendettas are not the prime reason for that effort as was done in Iraq with the de-Baathification effort under Ahmad Chalabi.1088 The joint patrols with

Coalition Forces and Iraqis eventually calmed most of this revenge seeking action. Nevertheless, an occupation is a time of great chaos as the Occupying Power seeks to establish control with a view towards reconstruction writ large. When there are multiple factions in an occupied State care must be taken to prevent reigniting the conflagration or releasing old grudges. As to external security, the occupying power must determine what sort of military the vanquished

State should exit occupation possessing as they enter into their rehabilitated life. Addressing this in the peace agreement may be premature but the limits placed on the defeated military needs addressed in the peace agreement. Remnants of the defeated military usually army units may be reformed and reconstituted so the defeated regular army minus any miscreant units

1087 Wright, Donald P., and Timothy R. Reese. On Point II. Combat Studies Institute Press, 2008, p. 356. 1088 See, Rumsfeld, Donald. Known and Unknown: A Memoir. Sentinel, 2011, p. 515; Bremer, L. Paul, and Malcolm McConnell. My Year in Iraq. Simon & Schuster, 2006, p. 515; See also, Feith, Douglas J., War and Decision, HarperCollins Publishers, 2008, p. 344. Chalabi used the de-Baathification process as score-settling and vengeance.

325 such as the Republican Guard in Iraq can be used by the Occupying Power. Such actions could be the basis for a new army providing external defense. Many issues attend to this effort, for example, the constituent demographics of the old army, its command structure as well as the commanders, a query regarding the type of the old army as Praetorian Guard or national army, and others that can be readily contemplated given the peculiarities of the defeated States.

Local intelligence supported by experts and the whole of intelligence community approach will have to recommend tough decisions to the Proconsul or military commander regarding the advisability of such a reconstituted army. Assuming this project is accepted then retraining must begin in earnest and with regular review of the progress. Delays with the new army will contribute to the delay in the return of sovereignty to the vanquished State. During the transition to the new army, these units could also contribute to the rebuilding effort. Local intelligence would be needed since these troops may not want to contribute to the new State, its new army, or to what it perceives as the Occupying Power. Irrespective, the army must be reformed and retrained with the possibility of the former army providing the basis for the new army. In Iraq all of the “military organizations” were “dissolved” by the Coalition Provisional

Authority Order Number Two.1089 This was based upon the previously mentioned de-

Nazification order emanating from the occupation of Germany after the Second World War.

Denazification included all members of that party “…who have been more than nominal participants in its activities…” being removed from public office and even “quasi-public or

1089 Bremmer, Paul. "COALITION PROVISONAL AUTHORITY ORDER NUMBER 2" Nsarchive2.Gwu.Edu, 2003, https://nsarchive2.gwu.edu//NSAEBB/NSAEBB418/docs/9b%20- %20Coalition%20Provisional%20Authority%20Order%20No%202%20-%208-23-03.pdf (Accessed 30 June 2018).

326 private enterprises….”1090 Regrettably this Iraqi directive did not enjoy the success of the earlier de-Nazification directive and may have contributed to the unemployment of circa

400,000 soldiers and the subsequent insurgency.

Another military concern for political control, security, and self-sustainment is the query of whether to establish or re-establish other military branches such as an air force. If an air force is to re-established it must be made early on as it takes time measured in years to train pilots and ground crews and this training is further complicated if there is an introduction of new aircraft or aircraft suppliers, especially if moving to western manufactured aircraft from other suppliers.

Initially, that decision may be influenced by the type of army to be established in the defeated

State. If that new army is to contribute to the rebuilding of the vanquished State then the air force may need to be geared towards transport missions.1091 Transport aircraft have a tertiary advantage as a beginning point for a new air force in that they are unarmed and pose little danger to the vanquished State’s neighbors and the Occupying Power while contributing to the movement of goods and troops to rebuild the vanquished country. If a more robust air force is needed for external defense then older aircraft must be the first consideration not modern fifth generation fighters.1092 A more robust air force may be seen as a threat to the neighboring

1090 Directive to Commander-in-Chief of United States Forces of Occupation Regarding the Military Government of Germany; April 1945 (JCS 1067) https://usa.usembassy.de/etexts/ga3-450426.pdf (Accessed 13 March 2018), paragraph 6c. 1091 Author’s Note: The author was the Legal Advisor for the initial establishment of the “new” Iraqi Air Force in November and December of 2004. Many of these concerns were generated during the discussion with the Director of Mobility Forces (DIRMOBFOR) in the Combined Air Operations Center (CAOC) and with outside military entities with equities in the “new” Iraqi Air Force. Eventually, three older C-130E aircraft were taken out of excess property, refurbished, flown to Iraq, and “stood up” forming the first air force after the Saddam Hussein era. C- 130s are propeller driven transport aircraft without any weapons and used to carry troops, equipment, and supplies. 1092 Author’s Note: In early 2005, the question of the Iraqi’s providing “pipeline security flights” along the many miles of pipeline in that country was broached. Due to conditions in the AOR, frontline fighters were not

327 countries and not welcomed regionally. Other concerns are the procurement of these aircraft as they are expensive, require regular maintenance, entail extensive training for both air and ground crews, and take money from more immediate needs of the State in its reconstruction.

The peace agreement needs to acknowledge the immediate situation. One reason for this signed agreement is to end the war and prevent as much as possible the resort, real or imagined, to some sort of guerilla warfare or insurgency by some disgruntled vanquished whom

I have previously labelled irregulars of whatever ilk.

6.3.3 Return of power.

Included under the terms of the peace agreement must be the third element the eventual return of sovereignty to the vanquished. The eventual return should not be a specific date but rather a set of conditions to be met prior to the ultimate return of sovereignty. Americans have long sought to return the sovereignty to the occupied. William Howard Taft indicated during the occupation of the Philippines “[w]e hold the Philippines for the benefit of the Filipinos and we are not entitled to pass a single act or to approve a single measure that has not that as its chief purpose.”1093 The future President wanted to return the sovereignty to the Filipinos and the Jones Act of 19161094 promised that independence eventually granted on 4 July 1946 by the

considered but the idea of using WWII era P-51s was briefly considered due to their range (could travel the pipelines from Basra to Tal Afar) and firepower (six 50 caliber machine guns). It was not until 13 July 2015, the Iraqi Air Force received its first batch of F-16 fighters although the Iraqi Air Force had bought some older Russian fighters prior to this purchase. 1093 Pringle, Henry F. William Howard Taft, 4th ed., American Political Biography Press, 1998, p. 171. 1094 United States, Congress, United States, Philippine Autonomy Act of 1916, [Jones Act] 39 Stat. 545, c. 416, Government Printing Office, 1916.

328

Treaty of Manila.1095 The spirit and intent, if not the actual actions, are the crucial aspect of this return of sovereignty. This example coupled with those of Germany and Japan can serve as starting points for a return of sovereignty although all of these were long occupations. In my ideal belligerent occupation, every effort should be directed toward an isopolity of equal rights for the citizens of different communities within the country especially in areas of multiple ethnicities in conflict.

6.3.4 Self-sustainment.

The fourth of the element under the peace agreement should address the ability of the vanquished to become self-sustaining beyond receipt of international aid. At first, this sustainment will likely be the basics of life such as food, shelter, and clothing. So depending upon the circumstances applicable at the time of the peace agreement this may entail massive logistics on the part of the Occupying Power(s)1096 so this should be addressed in that document. Self-sustainment may take years to institute especially as regards agriculture and industry so a long term plan must be developed, executed, and achieved. Any such plan needs to specify the expected timeframe since international aid is not going to last forever.

Subsequently time is of the essence to wean the vanquished from outside aid and become self- sufficient. Self-sustainment in agriculture, industry, trade, and so forth must be adequate for

1095 Treaty Of General Relations And Protocol, Signed At Manila, On 4 July 1946, And Exchange Of Notes Constituting An Interim Agreement, Manila, 10 And 12 July 1946" Treaties.UN.Org, 1946, https://treaties.un.org/doc/Publication/UNTS/Volume%207/v7.pdf (Accessed 7 Dec 2018). 1096 Geneva Convention Relative to the Protection of Civilians in the Time of War of August 12, 1949, Articles 55, 59, 60, and 61,The Geneva Conventions of August 12, 1949, International Committee of the Red Cross, ICRC Publications, Geneva.

329 once the necessities are attained then greater political, economic, social, and military issues must be addressed.

One such part of this element is that of consent by ballot. It is critical that the vanquished, at some point during the occupation, be able to begin governing themselves and voting for the new government, albeit still under tutelage. Any defeated state must be capable of self– sustainment prior to becoming “re-integrated” back into the international community. Self- sustainment must be complete in the spheres of political, economic, and military affairs; that is, they must be able to take care of themselves. Voting requires a modicum of security both internal and external.

6.3.5 Belligerent occupation.

Lastly, the issue of the belligerent occupation must be addressed. While political order, security, and self-sustainment are some elements that the peace treaty should specify to “reintegrate” a vanquished state more is needed. It is absolutely imperative to have a military occupation complete with military troops “…ready to enforce the policies of Military

Government in case of disturbance or disorder.”1097 Essentially, the occupation forces are there to help the military government keep the war won. Both the length of time and the mechanics the vanquished state undergoes during military occupation are important. If the period of time is too short there is a good possibility that war and chaos will return to the vanquished state. If this period of time exceeds a reasonable period there is a strong possibility of that vanquished

1097 Ziemke, Earl F. The U.S. Army In The Occupation Of Germany, 1944-1946. Center Of Military History, United States Army, 1975. See also, Bach, Julian Sebastian. America's Germany, An Account of the Occupation, Random House, 1946.

330 state becoming something akin to an indentured servant to the victorious state or incorporated outright and fomenting insurgency. The mechanics of the return maybe more case specific and will be different in each occupation. The victors must be prepared for a lengthy occupation as was evidenced in Chapter 2 by the long and successful belligerent occupations in Germany and

Japan lasting over ten and nearly seven years respectively, involving nearly 900,000 US troops and over one million additional Allied troops1098 with the US providing nearly $10 billion

($10,000,000,000.00) in aid to the Allies and the vanquished or well over $100 billion in today’s valuation. Thus Edelstein’s conclusion that “[t]he historical record indicates that military occupation is almost always a costly endeavor, lasting several years and requiring thousands of troops.”1099

What indicia need to be considered by the victorious state to end this occupation successfully?

This is a significant question with limited modern examples to draw upon and such a conclusion will be different in each case based upon the set of conditions in the peace agreement. In every occupation, I propose a Proconsul be appointed to oversee the functioning and fulfillment of the peace agreement. Proconsul leadership is an ancient model dating back to the Roman

Republic when the Senate would name “private citizens to lead armies in times of extreme threat.”1100 Scipio Africanus, Pompey and Julius Caesar were among the most well-known of these Proconsuls. Each had previously served a one year term as Consul and none of them were

1098 See, Table 2-6 Compilation of Edelstein and Klein Indicators, supra. 1099 Edelstein, David M. “Occupational Hazards: How Military Occupations Succeed or Fail” International Security, vol. 29, No. 1, Summer 2004, p. 57. 1100 Ferejohn, John A, and Frances McCall Rosenbluth. Forged Through Fire: War, Peace, And The Democratic Bargain. Live Right Publishing A Division Of W.W. Norton & Company, 2017, p. 62.

331 constitutionally eligible for appointment as Consul.1101 By modern example, in the United

States there is constitutionally what is termed “civilian” control of the military.1102 Yet there has been “…cases of exemplary proconsular leadership where that can be little question that proconsular officials were in significant measure personally responsible for ensuring a better outcome to American decision-making relating to their area of responsibility than would have occurred …in their absence.”1103 Continuing this American example, a Proconsul would remain subject to the President as are all military officers thereby reducing any fear of some sort of military overreach or other actions.1104 Any fears of overreach by the Proconsul is further

“…constrained by the growth of a large civilian defense establishment as well as competing civilian organizations dealing with diplomacy, intelligence, and other matters….”1105 Since the instant focus is on control over the proposed Proconsul, I will develop the idea of the Proconsul in Chapter 8.

6.4 Factor 3: “Reconstruction.”

Table 6-3. Commitment to “reconstruct” a. Retribution b. Rebuilding c. Reparations d. Reconciliation

1101 See, Broughton, T. Robert S, and Marcia L. Patterson. The Magistrates of the Roman Republic, American Philological Association, 1951, p. 141. 1102 US Constitution, Article II, Section 2, Clause 1. 1103 Lord, Carnes. Proconsuls. Cambridge University Press, 2012, p. 230. 1104 See, Adams, Gordon, and Shoon Kathleen Murray (eds.). Mission Creep: The Militarization Of US Foreign Policy? Georgetown University, 2014. 1105 Lord, Carnes. Proconsuls. Cambridge University Press, 2012, p. 229.

332

The third factor is the commitment of the victor or another entity such as a Protecting

Power1106 or the United Nations to “reconstruct” the vanquished to prepare them for a return to the people. I use the term “reconstruction” to mean the re-establishment of the government and the attendant governmental functions. Other tasks attached to reconstructing the government or state building is the attendant elements of retribution for war crimes, rebuilding of structures, reparations, and reconciliation. Each of these elements should be considered with emphasis on “occupation law” of the belligerent type. Many ideas from the jus post bellum concept overlap into this factor but belligerent occupation must proceed to establishment and is distinct from that concept. After the requisite control and security is achieved during the belligerent occupation, jus post bellum is the next phase to achieve the return of sovereignty to the vanquished. To be clear, belligerent occupation and jus post bellum are separate phases conjoined within the link between the Laws of War and the Laws of Peace. See, Figure

Introduction-3. For example, security may be needed in the jus post bellum phase just as some facets of the jus post bellum phase could begin during the belligerent occupation.

Each of these tasks must be considered against the condition of the defeated government at the time of defeat, either debellatio or functioning government since that condition will likely influence the tasks in reconstruction. Debellatio “…refers to a situation in which a party to a conflict has been totally defeated in war, its national institutions have disintegrated, and none

1106 A “’Protecting Power’ means a neutral or other State not a Party to the conflict which has been designated by a Party to the conflict and accepted by the adverse Party and has agreed to carry out the functions assigned to a Protecting Power under the Conventions and this Protocol” Geneva Convention Relative to the Protection of Civilians in the Time of War of August 12, 1949, Article 9,The Geneva Conventions of August 12, 1949, International Committee of the Red Cross, ICRC Publications, Geneva; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

333 of its allies continue militarily to challenge the enemy on its behalf.”1107 If there are no national institutions and the vanquished are prostrate or nearly so then the victors have a quite different task regarding the reconstruction of this defeated State. Should a somewhat functioning government be in place then the task is not quite as complicated since those institutions can form the base for the administration of the occupation and to begin the process of establishing a stable government to return to the people.

6.4.1 Retribution.

The occupying force or another entity, perhaps a “Protecting Power” must determine if the prosecution of war crimes alleged to have been perpetrated by the now defeated state or its agents needs attention. The War Crimes Tribunals in both theaters following the Second World

War, or the more current iteration of the International Criminal Tribunal for Yugoslavia (ICTY) or

Rwanda (ICTR), might form the basis for such prosecutions. These tribunals should be specific to the defeated nations rather than utilizing the International Criminal Court (ICC) since the ICC only has jurisdiction after its creation. While this proposal to bypass the ICC may seem counterintuitive the bases for this are many and complex. Foremost among the bases is the idea that trials need to be held locally for the benefit of the accused, the evidence is and witnesses are likely local, and the vanquished have the opportunity to experience the trials.

Another crucial opportunity is missed by having the ICC become the trial court of first resort.

Specifically, the local judiciary and bar must be part of any trials to establish “…capacity building

1107 Benvenisti, Eyal. The International Law of Occupation. Princeton University Press, Princeton, New Jersey (2011) p. 92.

334 within the national legal system.”1108 Although all international tribunals seek “justice,” the local judicial system cannot be ignored or only permitted limited participation as this curtails the development of that national judicial system to the detriment of the entire legal system.

During the Rhineland Occupation after the First World War, it was reported that “[t]he

Germans took a great interest in the proceedings of the summary court and would attend all of the sittings in large numbers in the section of the court reserved for the public.”1109 Similarly, in

Japan some trials of the International Military Tribunal for the Far East (IMTFE) witnessed

“…off-duty U.S. military personnel, competing for spectator seats with Japanese civilians, who also packed the courtroom….”1110 Further the ICTR, albeit held close by in physical location, was seen as distant and this undermined “…its legitimacy in the eyes of the Rwandan population.”1111 In fact, when queried, one ICTR Judge stated “I have never been to Rwanda and I have no desire to visit. Going there and seeing the effect we are having would only make my work more difficult…This task is already complicated enough.”1112 I would query whether not being located locally causes some judicial bias by distance from the scenes and people as domestic courts know the local situation, conditions, customs, and the people perhaps both victims and alleged perpetrators. Such domestic courts function almost universally without any sort of criticism reserved for the ICC or even the country specific international tribunals, or the local courts seated in another country. Consider the European Union Rule of Law Mission in

1108 Chiam, Madeleine. Different Models of Tribunals, p. 209 in Blumenthal, David A, and Timothy L. H McCormack. The Legacy of Nuremberg: Civilizing Influence or Institutional Vengeance? Martinus Nijhoff Publishers, 2008. 1109 Pawley, Margaret. The Watch on the Rhine London, I.B. Tauris, 2007, p 130. 1110 Maga, Timothy P. Judgment at Tokyo: The Japanese War Crimes Trials. University Press of Kentucky, 2001, p. 8. 1111 Clark, Phil. Grappling in the Great Lakes: The Challenges of International Justice in Rwanda, The Democratic Republic of Congo, and Uganda in Bowden, Brett, et al. The Role of International Law in Rebuilding Societies after Conflict. Cambridge, UK, Cambridge University Press, 2009, p. 258. 1112 Id. at p. 257.

335

Kosovo, herein EULEX, with a mission described as assisting Kosovar judicial authorities and law enforcement agencies “…in their progress towards sustainability and accountability and in further developing and strengthening an independent multi-ethnic justice system and multi- ethnic police and custom service, ensuring that these institutions are free from political interference and adhering to internationally recognized standards and European best practices.”1113

I submit that this approach is the better one since the local judicial capacity and police services are developed under the mentorship of experienced judicial personnel. Local involvement is the key to the sustainability of this effort as it moves forward to become an all Kosovar entity.

Involving the locals places them inside the effort rather than when the ICC, ICTY or ICTR is located far from the scene of any prosecutable crimes. Location of the Tribunal in the disputed area whether the Rhineland, Japan, or Kosovo should be the first option. Post–conflict retribution was seen in the former Yugoslavia and Rwanda not only for prosecution but “…it was a means to achieve broader aims…the Tribunal would contribute to ‘the restoration and maintenance of peace.’”1114 Unlike the Nuremberg Trials, ICTY was created during the bloody

Yugoslavian war “…to bring individuals responsible for atrocities to justice in an effort to establish peace.”1115 ICTY and ICTR were part of a broader strategic goal to restore and

1113 European Union Rule of Law Mission in Kosovo - Home - EULEX. http://www.eulex-kosovo.eu/ (Accessed 8 May 2018). 1114 For the former Yugoslavia see, UN Doc. S/RES/827 (1993) para 6; for Rwanda see, UN Doc. S/RES/955 (1994), 8 November 1994. 1115 Teitel, Ruti. Bringing the Messiah through the Law, p. 177, in Post, Robert, and Carla Hesse, Human Rights in Political Transitions: Gettysburg to Bosnia, Zone Books, 1999.

336 maintain the peace.1116 As was famously stated, “[i]f peace has been broken, it cannot be maintained, but only restored.”1117 As part of the broader strategic goal both ICTY and ICTR were given primacy even as to the domestic courts1118 Thus ICTY had the advantage of intervening unambiguously from outside the region…beyond the political circumstances that trap participants within the Balkans.”1119 Accepting arguendo that outsiders need to create and staff the court to avoid regional politics would allow the ICC or an ICTY- like courts to be the

Tribunal; however this takes time and money while the trying of cases locally has many advantages as previously stated.

With the legitimacy of the ICC being questioned as “Africa’s Court” with the subsequent withdrawals and notices of withdrawal coupled with the requisite travel including collateral expenses to seek justice, the local option for a specific court for a specific situation but created by an outside entity like the United Nations or a regional organization seems the superior option. One existential problem, the veto in the Security Council, is a real conundrum for a specific court for a specific issue but yet there have been multiple international courts already created. Historically, “Nuremberg [IMT] was seen to have demonstrated that war crimes prosecutions can achieve the broader ends of promoting the transformation of a society: from

Nazi-led to denazified Germany.”1120 Futamura considers Tokyo IMTFE as “…even more

1116 Kerr, Rachel. "International Judicial Intervention: The International Criminal Tribunal for the Former Yugoslavia". International Relations, vol. 15, no. 2, 2000, p. 17, SAGE Publications, doi:10.1177/0047117800015002003. (Accessed 7 Mar 2018). 1117 Kelsen, Hans. The Law of the United Nations: A Critical Analysis of Its Fundamental Problems --With Supplement, F.A. Praeger, 1950, p. 13. 1118 For the former Yugoslavia see, ICTY Statute Article 9 (2); for Rwanda see, ICTR Statute Article 8 (2). 1119 Teitel, Ruti. Bringing the Messiah through the Law, p. 189, in Post, Robert, and Carla Hesse, Human Rights in Political Transitions: Gettysburg to Bosnia, Zone Books, 1999. 1120 Futamura, Madoka. War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg Legacy. Routledge, 2008, p. 9.

337 important if we are concerned about the impact of international war crimes tribunals on non-

Western societies, given the fact that international or internationalized courts are currently operating for societies such as Rwanda, Sierra Leone, East Timor, or Cambodia.”1121 Local courts, aided when necessary by “outside counsel,” is the opportune way to develop the judiciary and respect for the rule of law along the way to establishing a lasting peace in the vanquished country.

This effort would not be complete without consideration of the trial of Saddam Hussein that began on 19 October 2005 in the Iraqi Special Tribunal (IST).1122 Saddam Hussein, the deposed

President of Iraq, was captured by US Forces on 13 December 2003 near Tikrit. Although UNSCR

1483 did not make detailed provision for the adjudication of war crimes or other crimes against humanity, in the preambular language it provides for some sort of judicial remedy by asserting there was “… the need for accountability for crimes and atrocities committed by the previous

Iraqi regime.”1123 In Paragraph 3 the resolution “[a]ppeals to Member States to deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice.”1124 Thus trials or some form of justice was anticipated in the Security Council Resolution grant to the Occupying

Powers but both Occupying Powers deferred to the Iraqis who established the IST on 9

1121 Id., p. 12. 1122 The court was formerly known as Iraqi Special Tribunal, it has subsequently been renamed the Iraqi High Criminal Court but due to the many references as the IST that moniker is adopted herein. 1123 "Resolution 1483" Unscr.Com, 2003, Preamble, http://unscr.com/en/resolutions/doc/1483. (Accessed 8 Jan 2019). 1124 Id., paragraph 3.

338

December 20031125 just prior to the capture of Saddam. The IST is empowered in Article 1 paragraph 2 of the Statute to try “…any Iraqi national or resident of Iraq’ accused of certain crimes ‘committed since July 17, 1968 and up until and including May 1, 2003, in the territory of the Republic of Iraq or elsewhere.”1126 So on “17 July 2005, the Court’s chief investigative judge announced at a press conference that formal charges had been laid against Saddam….”1127

Saddam Hussein faced seven preliminary charges: the 1990 invasion of Kuwait, the suppression of Kurdish and Shiite uprisings in 1991, the ethnic cleansing campaign against Kurds from 1987 to 1988, the gassing of Kurdish villagers in Halabjah in 1988, the killing of political activists over a 30-year period, the killing of religious figures in 1974, [and] the killing of thousands of the

Kurdish Barzani clan in 1983.1128 Saddam’s crimes were detailed and separated into two distinct trials one began on 19 October 2005 focused on the bloody aftermath of the al Dujail assassination attempt on Saddam in 1982 while the other trial commenced on 21 April 2006 focusing on Anfal military operations against the Kurds in northern Iraq where as many as

130,000 people were executed.1129 This comment is limited to the trial court and proceedings not the execution of sentence resulting from that trial.

1125 Sachs, Susan. "Iraqi Governing Council Sets Up Its Own Court For War Crimes" The New York Times, 2003, (Accessed 8 Jan 2019). 1126 "Law of the Supreme Iraqi Criminal Tribunal" International Center for Transitional Justice, 2005, https://www.ictj.org/publication/law-supreme-iraqi-criminal-tribunal (Accessed 8 Jan 2019). 1127 Sceats, Sonya. "THE TRIAL OF SADDAM HUSSEIN" Chathamhouse.Org, 2005, https://www.chathamhouse.org/sites/default/files/public/Research/International%20Law/bptrialhussein.pdf (Accessed 8 Jan 2019). 1128 "Saddam Hussein - TRIAL International" TRIAL International, 2016, https://trialinternational.org/latest- post/saddam-hussein/ (Accessed 8 Jan 2019). 1129 Id., See also Eckart, Christian. "Saddam Hussein's Trial in Iraq: Fairness, Legitimacy & Alternatives, A Legal Analysis" Scholarship.Law.Cornell.Edu, 2006, http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1029&context=lps_papers (Accessed 8 Jan 2019).

339

With this background we can ask were these two trials “fair” or really just “victor’s justice” imposed by the “new” Iraqi Government. Many international human rights groups opposed the

IST1130 especially the death penalty as a possible sentence.1131 Before the trial began there were great worries and calls for an international tribunal juxtaposed against the criticism of the

Coalition plan for trials before “Iraqi-only courts.” This criticism is leavened by acknowledgement that such “Iraqi only courts” are warranted since “the worst crimes of

Saddam’s regime were against the Iraqi people, and so concludes that they themselves should be the ones to judge their tormentors. Iraqi-controlled trials will also help establish the rule of law in Iraq, claims the administration, providing the cornerstone of a new, sorely-needed legal system.”1132

What type of court should adjudicate these crimes? There are four general types of courts: those under the Fourth Geneva Convention, the International Criminal Court (ICC), an ad hoc court, and national courts of the State. Since the Saddam Hussein trial began after conclusion of the belligerent occupation the Fourth Geneva Convention courts outlined in articles 64-77 are not applicable. With the transfer of sovereignty to the Iraqis there were only three possible tribunals for the trials of Saddam and his senior leadership. Iraq could seek to try him at the ICC in The Hague, secondly Iraq could have asked the UN Security Council for the creation of an ad hoc tribunal such as those established for Yugoslavia, Rwanda or the ad hoc military courts at

1130 See, "Human Rights Watch Memorandum to the Iraqi Governing Council on ‘The Statute of the Iraqi Special Tribunal,’ December 2003" Hrw.Org, 2003, https://www.hrw.org/legacy/backgrounder/mena/iraq121703.htm. (Accessed 9 Jan 2019). See also, “Iraq – Iraqi Special Tribunal – Fair trials not guaranteed”, Amnesty International, at: http://www.amnestyusa.org/countries/iraq/document.do?id=82AFEE4B414DC6D180256FE90052E0E1 1131 Bhuta, Nehal. "Judging Dujail: The First Trial before the Iraqi High Tribunal" Human Rights Watch, 2006, https://www.hrw.org/reports/2006/iraq1106/ (Accessed 9 Jan 2019). 1132 "The Rule Of Law In Iraq: Who Should Try The Saddamites?" 2003, https://www.economist.com/node/21519483 (Accessed 9 Jan 2019).

340

Nuremberg and Tokyo or the third option was trial by national courts. Due to the limitations of the Rome Statutes of the ICC that court could only adjudicated alleged crimes if these occurred after 1 July 2002 when the ICC was established.1133 Many of the charges in the case against

Saddam predated the existence of the ICC nullifying this option. Iraq could have requested that the Security Council establish an ad hoc civilian court or otherwise to establish a military tribunal as was done after the Second World War by treaty. With the experience gained from these four earlier ad hoc tribunals this was a viable option but the Iraqis wanted to overcome their critics that argue Iraq has no experience with trial lasting more than a few days1134 and to demonstrate they were sophisticated enough to run a trial of this nature.1135 So a national court was chosen although there was a hybrid court model available such as that used in Sierra

Leone. This hybrid court was composed of judges and prosecutors from the international community and Sierra Leone with jurisdiction over international crimes as well as crimes under domestic law in Sierra Leone.1136

As to the IST, this is a local Iraqi court with some unique features including a provision for

International Advisors1137 and the appointment of International Judges.1138 Regarding the

1133 How The Court Works" Icc-Cpi.Int, 2019, https://www.icc-cpi.int/about/how-the-court- works/Pages/default.aspx#legalProcess (Accessed 9 Jan 2019). 1134 Human Rights Watch Memorandum to the Iraqi Governing Council on ‘The Statute of the Iraqi Special Tribunal,’ December 2003" Hrw.Org, 2003, https://www.hrw.org/legacy/backgrounder/mena/iraq121703.htm. (Accessed 9 Jan 2019). 1135 Otterman, Sharon. "IRAQ: Saddam Hussein On Trial" Council on Foreign Relations, 2005, https://www.cfr.org/backgrounder/iraq-saddam-hussein-trial. (Accessed 9 Jan 2019). Reportedly, President Bush wanted the Iraqis to prosecute Saddam. See, Feith, Douglas J. War And Decision. HarperCollins Publishers, 2008, p. 478. 1136 Special Court for Sierra Leone. “The Hague Justice Portal" Haguejusticeportal.Net, 2019, http://www.haguejusticeportal.net/index.php?id=8143 (Accessed 9 Jan 2019). Author’s Note: I have tried cases with the Chief Prosecutor then Colonel Brenda Hollis, USAF. 1137 "Statue of the Iraqi Special Tribunal" Hrcr.Org, 2018, Section 2, Part 1, Article 8 (j) http://www.hrcr.org/hottopics/statute/section2.html#1 (Accessed 9 Jan 2019). 1138 Id., Section 1, Part 4, Article 4 (d).

341 crimes tried these are mostly based upon agreed and accepted international definitions1139 with the Judges having had the opportunity to rely upon international case law.1140 As constituted during the trial of Saddam Hussein, the IST “… included only Iraqi judges and prosecutors and followed the Iraqi criminal procedure. However, behind the scenes a large amount of international advice and support was provided to the process.”1141 There existed the opportunity for the Iraqis to utilize these provisions of their law to proceed with the trial of

Saddam Hussein with much international assistance offered.1142 While there were various questions about the establishment of the Court, the judges, the trial procedures and so forth,

“[n]evertheless, the court has been approved by the Iraqi people through a direct vote in adopting the constitution as well as through the Transitional Assembly, a body elected by the

Iraqi people, when it amended the Court’s statutes.”1143 In any event, “[t]he trial of Saddam

Hussein may be a particularly good opportunity for Iraq to work through some of its past, but it will probably not be the only one.”1144 Was the trial of Saddam Hussein perfect? The unequivocal answer is “no” yet there was every effort to try him according to the law and the rule of law was utilized to pursue that end in an unsecure physical environment. The Germans and the Japanese thought that the trials after the Second World War continued too long. Yet both countries agreed as to fairness of these trails with 79 percent of the Germans in the

1139 Id., Section 3, Parts1-5, Articles 11-14. 1140 Id., Section 6, Article 17 (b). 1141 The International Bar Association, "IBA - Iraqi High Tribunal (IHT)" Ibanet.Org, 2016. https://www.ibanet.org/Committees/WCC_IHT.aspx (Accessed 9 Jan 2019). 1142 See, Scharf, Michael P. and Ahran Kang. "Errors And Missteps: Key Lessons the Iraqi Special Tribunal Can Learn from the ICTY, ICTR and SCSL" SSRN Electronic Journal, 38 Cornell Int’l L.J 911, 2005, Elsevier BV, doi:10.2139/ssrn.804607. (Accessed 4 Jan 2019) 1143 Eckart, Christian. "Saddam Hussein's Trial in Iraq: Fairness, Legitimacy & Alternatives, A Legal Analysis" Scholarship.Law.Cornell.Edu, 2006, p. 16, http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1029&context=lps_papers (Accessed 8 Jan 2019). 1144 Peterson, Jeremy. "Unpacking Show Trials: Situating the Trial of Saddam Hussein" Harvardilj.Org, 2007, p. 291. http://www.harvardilj.org/wp-content/uploads/2010/09/HILJ_48-1_Peterson.pdf. (Accessed 8 Jan 2019).

342

American Sector believing the trials were procedurally fair1145 and the Japanese cases were

“…considered by many to be one of the most successful cases of occupation in the modern history of war and peace.”1146 While those trial had many detractors including Chief Justice of the US Supreme Court, Harlan Stone calling it a “…high grade lynching party”1147 the trials proceeded according to the rule of law known at the time. With the passage of time and further historical, legal, and political science investigation the trial of Saddam Hussein will be accepted as proceeding according to the Iraqi law at the time. “At best, the trial of Saddam Hussein could be like an Iraqi Nuremberg—a trial much criticized while ongoing but later remembered, accurately or not, as a model of international justice. For the sake of the Iraqis, we can hope history will be so kind to the IST.”1148 The real verdict as to fairness will be made sometime in the future as now it is viewed through the prism of Saddam’s botched execution.

6.4.2 Rebuilding.

Rebuilding means physically building public structures such as courthouses, legislatures, and other necessary governmental objects as well as respect for the rule of law directly related to governing the vanquished through to complete “re-integration” of the vanquished nation into the community of nations. This rebuilding fits with the previously mentioned idea of state building. Secondarily, efforts towards the rebuilding of hospitals may be conducted as part of this element as anticipated in Article 56 of the Fourth Geneva Convention. There is a caveat

1145 See, Taylor, Fred. Exorcising Hitler: The Occupation and Denazification of Germany. Bloomsbury Press, 2011, p. 235. 1146 Majima, Shunzo. Just Military Occupation? A Case Study of the American Occupation of Japan. 2013, p. 27. 1147 Tusa, Ann, and John Tusa. The Nuremberg Trial. Legal Classics Library, 1995, p. 69. 1148 Peterson, Jeremy. "Unpacking Show Trials: Situating the Trial of Saddam Hussein" Harvardilj.Org, 2007, http://www.harvardilj.org/wp-content/uploads/2010/09/HILJ_48-1_Peterson.pdf (Accessed 8 Jan 2019).

343 here in that either the victor, the Protecting Power, or an “…impartial humanitarian organization such as the International Committee of the Red Cross…”1149 could rebuild these hospitals and similar medical facilities. Simply put, rebuilding of hospitals is a secondary albeit important responsibility of the victors or the Protecting Power.

Although these are major infrastructure efforts and rather costly, there are many inexpensive ways to rebuild not only the infrastructure but also the respect for the rule of law. Repairs to streets and painting or repainting those traffic lanes or other street markings are small projects that take little time or money and doing this on a daily basis is a regular daily reminder as this shows the vanquished population that rules matter. Similarly, cleaning up debris and clearing buildings are tasks that can be performed to rebuild the locale and the morale of the population. Simple efforts at cleaning of litter and refuse both those caused by the conflict or merely neglect is another potential cost–effective way to enforce the rule of law and make it acceptable to the vanquished. Paying citizens and POWs to perform this work might be a possibility depending upon the security situation. “Sweat equity” by their labors in their country serves to enforce the rule of law, keep the population employed, and, perhaps, even too tired to participate in any guerilla war or insurgency. Efforts at reconstruction should pay dividends nearly immediately but certainly over time. The responsibility to rebuild was asserted in The

Responsibility to Protect Report of the International Commission on Intervention and State

Security (ICISS)1150 and “… is an international, remedial responsibility that falls on the

1149 Geneva Convention Relative to the Protection of Civilians in the Time of War of August 12, 1949, Article 59,The Geneva Conventions of August 12, 1949, International Committee of the Red Cross, ICRC Publications, Geneva. 1150 Evans, Garth, and Mohamed Sahnoun. "The Responsibility to Protect" Responsibilitytoprotect.Org, 2001, http://responsibilitytoprotect.org/ICISS%20Report.pdf (Accessed 10 Jan 2019).

344 international community in general.”1151 Rebuilding is a development challenge requiring good governance and institutional development1152 yet this must not be too rapidly implemented since the domestic institutions must also be developed to arrest any destabilizing impact either politically or economically.1153 Asserting a responsibility to rebuild does not answer the query as to whom this obligation should be assigned. Bellamy argues that the creation of the Peace

Building Commission1154 by the United Nations “… goes some way towards formalizing the idea that international society bears a collective responsibility for rebuilding states and societies after war.”1155 The United Nations is perceived as legitimate while more flexible and sensitive both culturally and historically.1156 Indeed, “[r]egional organizations, and especially intervening states and coalitions, are likely to have high stakes in reconstruction efforts and may be viewed by at least some of the parties in war-torn territories as biased, and potentially even as neocolonialists.”1157 The discussion will continue but the advance has been to realize there are many entities beyond the victors, Occupying Powers, and Protecting Powers that have “skin in the game” during the belligerent occupation and the return of sovereignty to the vanquished.

1151 Pattison, James. "Jus Post Bellum and the Responsibility to Rebuild" British Journal Of Political Science, vol. 45, no. 03, 2015, pp. 635, Cambridge University Press (CUP), doi:10.1017/s0007123413000331 (Accessed 6 Jan 2018). 1152 See, Barakat, Sultan. Reconstructing War-Torn Societies: Afghanistan. Palgrave Macmillan, 2004. 1153 See, Paris, Roland. At War's End: Building Peace After Civil Conflict. Cambridge University Press, 2004. 1154 See, "Mandate | UNITED NATIONS PEACEBUILDING" Un.Org, 2019, https://www.un.org/peacebuilding/commission/mandate (Accessed 11 Dec 2018). See also, Resolutions A/RES/60/180 and S/RES/1645 (2005). 1155 Bellamy, Alex J. "The Responsibility To Protect And The Problem Of Military Intervention" International Affairs, vol. 84, no. 4, 2008, p. 616, doi:10.1111/j.1468-2346.2008.00729.x (Accessed 2 May 2018). 1156 Jubilut, Liliana L. "Towards A New Jus Post Bellum: The United Nations Peacebuilding Commission and the Improvements of the Post-Conflicts Efforts and Accountability" Minnesota Journal of International Law, vol. 20, no. (1), 2011, p. 38-39. (Accessed 11 Dec 2018). 1157 Gheciu, Alexandra, and Jennifer Welsh. "The Imperative To Rebuild: Assessing The Normative Case For Postconflict Reconstruction" Ethics & International Affairs, vol. 23, no. 2, 2009, p. 136, Cambridge University Press (CUP), doi:10.1111/j.1747-7093.2009.00203.x (Accessed 26 Dec 2018).

345

6.4.3 Reparations.

Reparations after a war have been part of peace agreements at the State level at least since the

Treaties of Munster and Osnabruck [Treaties of Westphalia] in 1648 ending the Thirty Years

War wherein reparations played a significant role in the return to peace. Reparations are defined as “…repair or remedy for goods that have been damaged or for injuries received”1158 that are paid “…by one country to another for damages during war.”1159

Even before there was a peace treaty with Germany after the Second World War, the then

Soviet Union began taking reparations from vanquished nations especially Germany. Based upon the aftermath of both World Wars in the Twentieth Century, the term “reparation” has obtained a misplaced bad name. Clearly, this bad name has been viewed as a prohibition of cruelty by excessive reparations from the vanquished but likewise there exists a duty to make whole on both sides of the war so the victors may need to provide reparations to the vanquished not just the other way around. Grotius wrote “…“[t]here are certain duties that must be performed toward those from whom you have received an injury.”1160

When do reparations come into play in the ideal belligerent occupation? The key point is that reparations may apply to both belligerents involved in the conflict and not just the vanquished.

“Reparations are often crucial for reestablishing trust among the parties at war’s end.”1161

1158 May, Larry, and Elizabeth Edenberg, eds. Jus Post Bellum And Transitional Justice. Cambridge University Press, 2013, p. 5. 1159 Black, Henry Campbell, and Michael J. Connolly, Black's Law Dictionary, 5th ed., United States, West Publishing Co., U.S., 1981, p. 1167 1160 Grotius, Hugo, and Stephen C. Neff. Hugo Grotius on the Law of War and Peace. Cambridge University Press, 2012, p. 396, Bk. III, Ch. 12, Section 6. 1161 May, Larry, and Elizabeth Edenberg, eds. Jus Post Bellum And Transitional Justice. Cambridge University Press, 2013, p. 6.

346

Such trust is essential for the development of lasting peace that is so important for “re- integrating” the defeated states into the international community after the return of a rehabilitated State to the vanquished people.

During and after combat there may be injuries to people or property that may allow for cash or cash equivalent payment or replacement in kind, more specifically “…when not the identical article, but one corresponding and equivalent to it, is given to the…”1162 injured. In some areas of the world these payments are called solatium defined as a recompense for an injury to the feelings.1163 This emotional harm may be compensated in any manner described above and is only authorized in a given area by the tactical commander or higher headquarters. Another type of payment is ex gratia payments, a term best explained as “anything accorded as a favor; distinguished from that which may be demanded ex dedito as a matter of right [such that these] payments made by one who recognizes no legal obligation to pay but who makes payment”1164 out of grace. Such payments may physically be made by the servicing JAG in a given region and in the US Forces may be made in cash or other commodity. These payments often reduce the

“hard feelings” against the victors for some real or perceived injury. Local officials may seek these payments for the aggrieved usually as an ameliorative measure and possibly to enhance their own pockets or reputation.1165 Reparations should be in kind, if possible, and offered as soon as practicable to reduce the putative ill consequences and bring victor and vanquished

1162 Black, Henry Campbell, and Michael J. Connolly, Black's Law Dictionary, 5th ed., West Publishing Co, U.S., 1981, p. 707. 1163 Id., p. 1248. 1164 Id., p. 514. 1165 Author’s Note: I have been authorized to make some of these types of payments and have observed others fulfilling this duty. For such payments in Afghanistan and Iraq, see, http://www.gao.gov/new.items/d07699.pdf

347 face-to-face. Cash or cash equivalents are not always possible or may be culturally inappropriate thus these should be the later options.

These two types of reparations differ from claims against the Occupying Power and the occupation forces for actual injuries such as regards an auto collision between a military and civilian vehicle. Usually, Judge Advocates investigate and administratively settle tort claims against their service in such diverse areas of law as “…aviation, medical, international and general tort areas….”1166 Other nations have similar procedures for paying reparations and claims.

The form of reparations does not need to be payments of money but could be replacement in kind or the provision of services. By in kind, I mean the provision of items that could replace damaged or destroyed equipment, vehicles, and so forth. Equipment possibly heavy equipment to facilitate the total reconstruction of the vanquished country is one example. Services can be the replacement or introduction of utilities, provision of medical and dental services, enabling basic governmental services, and so much more. Reparation should only be for individuals not areas or countries as this increases dependence among the vanquished and encourages false claims to obtain the payments or commodities. An exception may be made for the reparations owed by an obvious aggressor such as took place during Iraq’s invasion of Kuwait prior to the

Gulf War in 1991. Based on the element of reconciliation, I would suggest that any national reparation for aggression be limited. Specifically, I would suggest these national reparations be limited to the seizure of military stores and other authorized military seizures. Ill-gotten gains

1166 "U.S. Air Force - Practice Areas" AirForce.Com, 2018, https://www.airforce.com/careers/specialty- careers/jag/careers/practice-areas (Accessed 28 July 2018).

348 that were removed as a result of aggression should be similarly treated and returned to their rightful owners or countries. Time, place, and situation should be the determining factors used by the Occupying Force under the Proconsul for the exacting of reparations from an obvious aggressor. Otherwise, it is prudent to treat the vanquished equitably based upon the military situation and the needs of both the victors and vanquished.

The goal of these first three elements is to support the reconciliation of the former enemies as they seek to sort out a difficult phase of war during belligerent occupation. The Japanese belligerent occupation model seems to present a better alternative than the German belligerent occupation. Recall the Japanese government was functioning and due to a myriad of factors like language, culture, and other communication conundrums that government continued to operate during the belligerent occupation. As Grotius wrote it is better to leave the king and the laws in place.1167 Any resolution should be welcomed by all sides as they proceed with the next and final element of the ideal belligerent occupation that being reconciliation.

6.4.4 Reconciliation.

The last element of the reconstruction factor is reconciliation—the coming together of the former adversaries to establish “…a lasting peace where mutual respect for rights is the hallmark.”1168 Such a peace was written about by Hugo Grotius who offered that “…the conquered should be treated with clemency, and in such a way that their advantage should be

1167 See Chapter 4 supra. 1168 May, Larry, and Elizabeth Edenberg, eds. Jus Post Bellum And Transitional Justice. Cambridge University Press, 2013, p. 6.

349 combined with that of the conqueror.”1169 As to this specific element, “…Grotius opened a new path by setting forth what he called the temperamenta of warfare…going into extensive detail, he urged moderation for reasons of humanity, religion, and farsighted policy….”1170

More recently, Chaplain Iasiello developed the phrase “a healing mind-set” to describe how the parties to the belligerent occupation should deal with each other. Iasiello opined that “[i]t would be constructive if both the victors and the defeated entered this post-conflict phase in a spirit of regret, conciliation, humility, and possibly contrition. Such a mind-set may further the healing of a nation’s trauma and thus enhance efforts to seal a just peace.”1171 The rationale for this healing mind-set is that in the post-conflict phase there exists much public celebration by the victors and such actions like erection of statutes criticized by Plato1172 over two thousand years ago contribute to hard feelings thereby impeding any healing. An attitude of healing prevails in Grotius’ writings as well when he expounded that moderation and

“…condonation of offenses, damages, and expenses”1173 would aid in the post-conflict process on the road to what is now called a just peace. Grotius advocated for construing the peace agreement’s favorable clauses with as much latitude as is possible, but the restrictive sections as narrow as practicable given the circumstance.1174 Such generosity with moderation administered in good faith between the former belligerents should ameliorate the “hard feelings” Plato, Grotius and Iasiello warn against. Taken together these efforts can be useful in

1169 Grotius, Hugo, and Stephen C. Neff. Hugo Grotius On The Law Of War And Peace. Cambridge University Press, 2012, p. 407, Bk. III, Ch.15, Section 12. 1170 Nussbaum, Arthur, A Concise History of the Law Of Nations. Macmillan, 1961, p. 110. 1171 Iasiello, Louis V. "Jus Post Bellum: The Moral Responsibilities Of Victors In War" Naval War College Review, 2004, p. 39 (Accessed 19 May 2018). 1172 See, Hutchins, Robert Maynard, ed. Great Books Of The Western World: The Republic, Vol. 7, Plato. Encyclopaedia Britannica, 1952. 1173 Grotius, Hugo, and Stephen C. Neff. On the Laws of War and Peace. p. 475, Bk. III, Ch. 25, Section 3. 1174 Id., p. 430, Bk. III, Ch. 20, Section 11.

350 fomenting a just peace. Many warriors have stated this sort of healing mind-set is not possible!

Yet, many warriors could recall providing candy and other treats even meals mainly to children in Kosovo, Afghanistan, Iraq, the horn of Africa, or The Philippines showing that some healing mind-set is conceivable and achievable. Further, when surrendering German Officers were allowed to maintain possession of their side arms1175 after World War Two, this too was a sign of some beginning of a healing mind-set.

Cautious optimism indicates that when fighting is over, even with the threat of guerilla warfare or an insurgency, that the two former combatants can come to some healing mind-set perhaps beginning with the military customs and courtesies expected between victor and vanquished in the surrender document and the actual physical “stacking of arms.” Military courtesies are more than salutes with one’s word being the officer’s bond. Clearly such military courtesies run in both directions providing the basis for some modus vivendi at a minimum or a modus operandi towards this healing mind-set. Absent these military courtesies the Third Geneva

Convention Relative to the Treatment of Prisoners of War will not work. This is important due to Section Three regarding Labours of Prisoners of War that has been previously broached. All prisoners may either be utilized in or ask for work as found in Article 49. Article 50 provides a vast class of authorized work including agriculture, industries with no military character, transport and handing of store again with no military application, commercial business, arts, or crafts, and public utilities not having a military purpose. A fair working payment is established in

Article 62 and this also pertain to private employers as outlined in Article 57. Having “sweat

1175 See, Alexander, Larry, Biggest Brother, NAL Caliber, 2006, p. 196. The situation was the surrender of a German Colonel of his command to an American Major in Zell am See. The American Major indicated that officers and German Military Police could keep their side arms. This gesture shocked the Germans so they conducted themselves as military officers.

351 equity” in their vanquished country and earning some remuneration should contribute to this healing mind-set. Work incentives such as those under the Third Geneva Convention were designed to provide work for the POWs allowing them to contribute to their own and their country’s rehabilitation. Utilizing this incentive for both public and private work should bring the victor and vanquished into a closer work relationship fostering the potential for closer relationships on other levels. Taken together, the work incentive and closer daily work interaction should contribute to the healing mind-set as well as the reconstruction of their vanquished country. With this requisite healing mind-set, the belligerent occupation could produce solid results thereby expediting the return of sovereignty to the defeated State in a just peace. Yet the military is but one of the many ways that this healing mind-set might be fostered.

Any Occupying Power must be aware that the healing mind-set could be based upon professions such as medicine noting the special place the medical profession has in the Geneva

Conventions especially the Third and Fourth Geneva Conventions. With the Proconsul required to look to the needs of the vanquished civilian and military populations enlisting the assistance of the indigenous medical community would seem appropriate and necessary. Again the daily interface among these health care providers should engender some mind-set focused upon healing writ large. Similarly the special position, albeit not as prolifically mentioned in the

Geneva Conventions, of the judicial profession.1176 Assigning judges to work as judges within the proscriptions of Article 51’s second paragraph, these judges could be functioning with respect to laws they know or those imposed by the Occupying Power. Reviews and appeals

1176 The Geneva Conventions of 12 August 1949. International Committee of the Red Cross, 2006, Article 54, p. 174.

352 could be to the Occupying Power’s Judge Advocates or other judicial representatives of the victors again bringing these two groups together in a healing mind-set doing their normal jobs relating to the implementation of justice. Not to belabor the point but there is much that can be done to solidify some semblance of a healing mind-set to reconcile the two former combatants.

This is the last element of this factor because it should be the last implemented yet it should be considered by the victors in all of their dealings with the vanquished from the start of any belligerent occupation. This is not a “go soft” policy but instead one that should be exercised throughout the belligerent occupation and be more liberally applied as the time of returning the vanquished State to the people occurs. The prescription is to start tough and then relax the discipline as the turnover of sovereignty to the people nears. Certainly there will be missteps and major concerns but working towards the return of sovereignty should help to bring a changed mind-set to both sides. Tough but fair regulations on the vanquished effectuated by both parties should be helpful to bring a just peace to the vanquished.

6.5 Factor 4. Timeline of Occupation.

The final factor of an ideal occupation is that a belligerent occupation must not be indefinite.

Nonetheless it must be flexible so as to return to the vanquished people some form of government that the defeated help to create. To attain this end of belligerent occupation, victors should remain in place as occupiers long enough, probably in terms of years, to ensure the peace for both the vanquished people and the international community but not longer as that could breed resentment and possibly guerilla warfare or insurgency or both.

353

If a Protecting Power or Powers are appointed then they are obliged to utilize the language of the Fourth Geneva Convention that provides “[t]he representatives or delegates of the

Protecting Power shall not in any case exceed their mission under the present Convention. They shall, in particular, take account of the imperative necessities of security of the State wherein they carry out their duties.”1177 This admonition regarding the length of occupation applies to both the victors and Protecting Power although more specifically to any Protecting Power. That warning has been specifically incorporated into the 1977 Protocols Addition to the Geneva

Conventions of 12 August 1949 in Article 3(b) of the First Protocol, thus the continuing recognition as an imperative post-conflict rule.1178

Some indicia of when that time limit for a belligerent occupation is approaching would serve the Proconsul well. Starting with the essential indicia including the provision of some utilities such as the provision of electricity, water distribution, availability of food stuffs, and operation of an indigenous police force, the Proconsul should be reviewing these regularly especially after some time under belligerent occupation has transpired. Such reviews perhaps starting at the beginning but no later than the six month from the occupation’s beginning should be conducted to ascertain when the time for the termination of belligerent occupation is approaching. Each sample indicator is considered in turn. In many places around the world, the electricity is only provided for a set time usually in a number of hours per day; therefore, any stability in the provision of this utility along with any increase in the number of hours per day is a good indicator that constancy has returned. Anecdotally, after moving and installing a huge

1177 Geneva Convention Relative to the Protection of Civilians in the Time of War of August 12, 1949, Article 9. The Geneva Conventions of August 12, 1949, International Committee of the Red Cross, ICRC Publications, Geneva. 1178 Guelff, Richard, and Adam Roberts. Documents on the Laws of War, 2nd ed., Clarendon Press, 1994, p. 391.

354 electrical generator to provide service to Baghdad, the number of attacks against Coalition

Forces declined precipitously in the winter of 2005.1179 With the addition of electrical power, water distribution may be made easier but in some locations the order must be reversed with the Proconsul making these determinations. Markets for food and the regularity of these markets over time provide evidence of stability. Providing local food stuffs should have a positive impact upon farmers, processors, transporters, and citizens as well as being an indication of the need for the victors to be heading home.

Outside the basic human needs enumerated above are the more political indicia specifically the ability to collect taxes and hold elections. Tax collection is often the clearest indicator of the stability of a vanquished State in several ways. First, is the perceived legitimacy of the

Occupying Power(s) or government to whom the taxes are being paid and any tax collected may not be a tax being paid to support guerillas or insurgents. Tax support to the governing body can be used to complete the projects previously mentioned or to pay the workers on said projects or both. The CPA began the regulation of taxes in Iraq with CPA Orders 37 and 38 both dated 21 September 2003 that despite corruption has been working to date.1180 Order 37

1179 Author’s Note. This was a remembrance from the author’s service in the Combined Air Operations Center Battle Cab from July 2004 to June 2005. 1180 Iraq’s Tax Revenue | Iraqi Dinar Revaluation | All Iraq News". Iraqidinar123.Wordpress.Com, 2015, https://iraqidinar123.wordpress.com/tag/iraqs-tax-revenue/ As with any taxation there are rate, collection, and other issues. There was a rate increase in 2017 that met with much public dissatisfaction as well as an ongoing issue with US Contractors taxation on goods for US and Coalition Forces. When there are some complaints about taxes the tax system must be working! As to Iraqi public dissatisfaction see, Zidane, Salam. "Iraq Increases Taxes amid Public Discontent". Al-Monitor, 2018, https://www.al-monitor.com/pulse/originals/2018/03/iraq-tax-budget-oil-corruption.html This tax system has encountered problems such as when the CPA halted tax collection in 2003 due to some infrastructure problems but the Iraqi Government re-established the tax structure soon after regaining sovereignty. See, "COALITION PROVISIONAL AUTHORITY ORDER NUMBER 84 AMENDMENTS TO COALITION PROVISIONAL AUTHORITY ORDER NUMBER 37 (CPA/ORD/19 September 2003/37) And COALITION PROVISIONAL AUTHORITY ORDER NUMBER 49 (CPA/ORD/19 February 2004/49)". Govinfo.Library.Unt.Edu, 2003,

355 established “income” tax rates for Iraqi citizens while Order 38 levied a 5% import tax designated for reconstruction and assistance in Iraq.

Other political order indicia include work on the constitution and form of government being developed especially at the local level. Holding elections is not dispositive of stability but can provide for the beginning stage of national hope for the future particularly with adequate security and disarmament as described earlier in this document. One other anecdotal piece of evidence occurred after the elections in both Afghanistan1181 and Iraq1182 when it was reported that there was a difference in attitude as these two peoples proudly showing their index finger covered in purple ink indicating they had voted despite threats of serious retaliation by the Taliban1183 and al-Qaeda.1184 There was likewise a sense of relief among the

Coalition troops after those elections and the number of attacks on those troops dwindled.

While there was no sense of “victory” there was an elation that was noticeable. Post-conflict elections especially where there has not been any ever or in over one half century did prove helpful in the change of mind-set.

As to self-sustainment, economic issues need a passing comment. Indicia of economic progress include return of capital or stock markets or both, and repatriation of hard currency in the macro-economic realm. On the micro-economic side the number of business startups, the

http://govinfo.library.unt.edu/cpaIraq/regulations/20040430_CPAORD_84_Amendments_of_CPA_Order_37_and_ 49.pdf 1181 “Elections in Afghanistan" 2001-2009.State.Gov, 2005, https://2001- 2009.state.gov/p/sca/rls/fs/2005/53381.htm (Accessed 13 Jan 2019). 1182 "IRAQI ELECTIONS: January 30, 2005" 2001-2009.State.Gov, 2005, https://2001- 2009.state.gov/r/pa/scp/2005/41206.htm (Accessed 13 Jan 2019). 1183 "CNN.Com - Bid To Disrupt Afghan Vote 'Fails' - Sep 18, 2005". Edition.Cnn.Com, 2005, http://edition.cnn.com/2005/WORLD/asiapcf/09/18/afghan.poll/index.html (Accessed 13 Jan 2019). 1184 "CNN.Com - Milestone Elections Begin in Iraq - Jan 30, 2005". Cnn.Com, 2005, http://www.cnn.com/2005/WORLD/meast/01/29/iraq.main/index.html (Accessed 14 Jan 2019).

356 reopening of businesses previously shuttered, local markets for food stuffs and other necessities, and any indications of new enthusiasm for spending are some indicia of the return to normal daily activity and an end to the ideal belligerent occupation. In Iraq, economic progress was reported as having “… rebounded since 2003 with nominal GDP doubling from roughly $15 billion in 2003 to $31.7 million in 2004 and is expected to reach an estimated $32.2 billion in 2005.”1185 In the immediate aftermath of war and, a then declining but still active, insurgency the Iraqi economy showed signs of improvement. This would indicate that these aforementioned economic indicia should be useful to help determine the end of an ideal belligerent occupation as the vanquished become self-sufficient.

6.6 Judging the Ideal Occupation.

If the goal of an ideal occupation is to return the vanquished State to its people then we must consider what this would look like. How might we assess the success of an ideal occupation given the aforementioned difficulties? Three dynamics should serve that purpose, first and absolutely foremost is a secure environment as this is the basis for the latter two dynamics consisting of effective governance and economic development.

Security concerns have already been thoroughly addressed earlier in this chapter and need no further comment. The dynamic of a secure environment is essentially security that is a prerequisite for the existence of the State and any development in and of that entity. Perfect security does not exist and a careful determination must be made to ascertain if disruptive activities are of a criminal nature, or bear the signs of a guerilla war or insurgency. Some

1185 Salih, Barham A., "NATIONAL DEVELOPMENT STRATEGY 2005-2007". Siteresources.Worldbank.Org, 2005, http://siteresources.worldbank.org/IRFFI/Resources/Iraq-NDS-July14-FINALFINAL[1].pdf (Accessed 18 Dec 2018).

357 criminal activity will exist within the vanquished State but the latter war like actions cannot be accepted by the Occupying Power and must be ameliorated to the best of their effort.

Pre-conflict occupation planning should provide a starting point for the ending of the post- conflict phase even if some of the assumptions are not correct or lack detail. What is important is the thought given to country specific issues in the political, economic, religious, and cultural arenas. By example, any post-conflict plan must include a time period to develop the political system, especially in a debellatio situation, as this “…will take many years” conceivably

“generations” merely “…to train government officials.”1186 From an American viewpoint, other political considerations will need to be worked out between the Departments of Defense and

State then in the Inter-Agency Working Groups to aid in dealing with the political issues attendant to ending a belligerent occupation. These political issues should be country specific and require local and even regional expertise to resolve.

Likewise, economic issues are sure to occur in ending a post-conflict occupation and should be part of the planning process, again, with significant input from other Cabinet –level entities and worked through the Inter-Agency process. The Departments of Treasury, Commerce, Justice,

Agriculture, and Homeland Security must be involved due to their respective expertise and likely contributions to the belligerent occupation. The Departments of Treasury and Commerce have great international economic and financial powers and responsibilities that can aid in the post-conflict belligerent occupation. The Department of Agriculture assists domestic farmers in selling their products internationally and has vast overseas aid programs providing surplus farm

1186 Abrams, Elliott. Realism and Democracy. New York, NY, Cambridge University Press, 2017.

358 commodities to developing countries.1187 The Departments of Justice and Homeland Security have many international responsibilities from working with INTERPOL to national security to specific law enforcement entities in drug and weapons enforcement.1188 Other departments and agencies will no doubt also be able to contribute to the development and execution of any occupation. Contributions from a wide variety of sources would form the “whole of government” approach that should effectively aid the success of any belligerent occupation since none of us is as smart as all of us. Careful coordination must occur to help ensure the return or even development of an economy for the occupied State about to be left on their own especially given the complexities of the globalized supply chain and logistic issues related even to the basics of life.

Such an effort to support the ideal occupation will not be easy for the American military since

US Forces tend to win by acting like a fire battalion fighting a fire; there is a rush to get there, the place gets flooded, the fire is out so the fire battalion returns to the firehouse.1189

Approaching the ideal or any occupation in this manner will not work and perhaps might even re-stoke the conflagration rather than establish peace.

One last consideration, dealing with the media has become a full time job and must be dealt with daily. Journalists often do not have experience in war or occupation coverage let alone the end of an occupation. Often they do not understand what they have just witnessed.

1187 See, United States, Congress, United States, Agricultural Act Of 1949, Section 416 (b), Government Printing Office, 1949 and United States, Congress, United States, Agricultural Trade Development And Assistance Act Of 1954, Government Printing Office, 1954. This legislation contains the Food for Peace sections but this office is now located within USAID. 1188 See, "U.S. Department of Justice" Justice.Gov, 2018, https://www.justice.gov/ (Accessed 29 July 2018) and "Mission" Department Of Homeland Security, 2018, https://www.dhs.gov/mission (Accessed 29 July 2018). 1189 The idea of the fire battalion is borrowed but transformed from Joffe, Josef. "Secure The Peace, Then Talk Rights" The Wall Street Journal, 20 December 2017, p. A19.

359

Commissioner then President Taft often protested to the Secretary of War that the dispatches from The Philippine Islands “…that the engagements, magnified into battles by bored correspondents, actually were insignificant and invariably resulted in the capture of insurgents and a new flood of natives eager to swear allegiance to the United States.”1190 Instant communication by journalists has rendered the battlefield and occupation easily available and often lacks context. Context must be supplied by Occupying Power(s) yet based upon careful investigation on a timely basis. This instant availability of news reporting can be utilized to protect all participants but everyone recalls the headlines not the retraction or correction. The alleged shooting of a suspected and wounded enemy fighter in Fallujah in November of 2004 was video recorded by an accompanying photo-journalist. The claim was an American soldier shot a wounded combatant and several investigations were completed all finding that this did not occur as reported.1191 On 28 August 2008 after a criminal trial in US Federal District Court for Central California that alleged shooter was acquitted and this was not widely reported especially compared with the coverage of the shooting in November of 2004.1192 That trial brought out the fact that the enemy combatant was “playing possum” that is feigning death although wounded in order to attack the US Forces and was shot legitimately in that combat situation. Anecdotally, I recall from my duty at the US Military Delegation to NATO regarding an

1190 Pringle, Henry F. The Life and Times of William Howard Taft, 1st ed., Archon Books, 1939, p. 195. 1191 Hancock, David. "No Charges in Fallujah Shooting" Cbsnews.Com, 2005, https://www.cbsnews.com/news/no- charges-in-fallujah-shooting/ (Accessed 21 Dec 2018). 1192 Dufrene, Sean. "Federal Jury Acquits Ex-Marine In Iraqis' Deaths". Msnbc.Com, 2008, http://www.nbcnews.com/id/26443458/ns/world_news-mideast_n_africa/t/federal-jury-acquits-ex-marine-iraqis- deaths/#.XE3LE0xFxPY (Accessed 2 Jan 2019) Since Sgt. Nazario was no longer subject to military court-martial since he left the Marines, he was “… the first former military service member brought to trial under the Military Extraterritorial Jurisdiction Act, which was written in 2000 and amended in 2004 primarily to allow prosecution of civilian contractors who commit crimes while working for the U.S. overseas. It also allows the prosecution of military dependents and former military service members accused of committing crimes outside the United States.”

360 incident where there were reports of four coalition troops being killed and several wounded in an attack. Further investigation confirmed no deaths and some minor wounds from jumping out of a vehicle that was attacked in Kosovo. The troops were not even from the reported country and were in a different location than reported. This report was deleted overnight and the correction was reportedly somewhere in the last third of the next day’s newspaper. The point is that in combat the situation is chaotic at best and it takes time to ascertain what happened, where it happened, and so forth. Facts and details are important.

The expectations regarding what belligerent occupation can accomplish need to be understood along with the art of the doable as time, effort, blood, and treasure are not endless. My hope is that this interpretative review of the historical and legal framework surrounding belligerent occupation, the law of occupation, and the concept of jus post bellum might serve some policy prescriptive purpose. By policy prescriptive, I mean that I will “…evaluate…future public polic[y]”1193 regarding the development of belligerent occupation law as currently promulgated by treaty and practice. Clearly, the importance of developing this idea of returning a vanquished state to the people has real applicability.

6.7 Conclusion.

While an ideal belligerent occupation is aspirational in nature it can serve as a goal to be sought after and attained. I have consistently stressed the need for planning and preparations for a belligerent occupation. The ideas explored here can be utilized to develop that plan for a

1193 Van Evera, Stephen. Guide to Methods for Students of Political Science. Cornell University Press, 1997, p. 91.

361 belligerent occupation. In that plan should be consideration of attaining the military victory and some guiding specifics regarding the next steps toward a belligerent occupation. This aspirational goal of an ideal belligerent occupation serves as an ideal putative solution for further refinement but is nonetheless a starting point for future discussion and action. Security is the lynchpin. Treaty law under The Hague and Geneva Conventions as well as solid military strategy requires that security and control of the now vanquished country be obtained as quickly as practicable. Security and control must include disarming the vanquished military both physically and mentally. More specifically, their means of making war such as arms must be surrendered and the vanquished military must know they are defeated. This is done by

“stacking arms” of some sort either actual or symbolically then entering into a period of confinement as a Prisoner of War. Disarmed and being a POW should aid in clearly demonstrating that the war is over and the relative post-war positions established. Based upon the security situation, these POWs can begin the work of reconstructing their country. This can be done simultaneously while the peace agreement is drafted and the rules for the belligerent occupation promulgated to the vanquished. A peace agreement addressing political order, security arrangements, return of sovereignty, self-sustainment, and a belligerent occupation should be concluded. Then the hard part comes in the form of “reconstruction” that includes retribution, rebuilding, reparations, and reconciliation. As addressed, these actions will take time, effort, and considerable money but the results from the successful occupations argue for this endeavor. Lastly the belligerent occupation must come to an end usually after many years of rehabilitation of the vanquished before any return of sovereignty. If peace is to be seriously

362 pursued in the post–war phase, such an effort must be undertaken with the requisite planning and execution as described above or as further refined.

363

Chapter 7 Impediments to the Ideal Belligerent Occupation.

In the previous chapter the ideal belligerent occupation was advanced. Now I am obligated to consider the impediments to the ideal belligerent occupation. To reiterate, in my view the Laws of War consists of both the Laws of Armed Conflict and those laws regarding belligerent occupation. As such the impediments will be considered primarily with a view to belligerent occupation law whether during the conflict, after a formal surrender, or other method of war termination.

These impediments are in general military and legal obstructions to the ideal belligerent occupation. Throughout this dissertation, the point has been made that militaries do not plan for the post-conflict phase of their operations focusing instead on the warfighting strategy thus mostly ignoring one part of the Laws of War. One impediment is found in military reluctance, especially in the US, to plan for after-victory and the follow-on belligerent occupation phase of an operation. Emphasis has been on shock and awe not on the outcome of victory and the effort to establish a belligerent occupation to start the movement toward a return of sovereignty. Another area of concern is planning for the actual occupation forces, ideally being a gendarmerie, but the occupation force could be made up of peacekeeping type forces with a range of experience and expertise or just regular troops. The reluctance by civilian leaders to permit military governance is another impediment to the ideal belligerent occupation. The collateral impact of this is the lack of training and expertise in the US Army and most other armies to perform anything near the ideal belligerent occupation. As these impediments are

364 evaluated, the focus will be on the US military due to the likelihood of the US being involved in future wars and belligerent occupations along with the author’s general familiarity with the US military and the general availability of US military records and publications.

On the legal side of the investigation there is a general conceptual morass of what is to be the guiding paradigm that operates during a belligerent occupation. I maintain that the Laws of War apply to the belligerent occupation phase. This assertion is based on several factors beginning with the travaux préparatoires preceding the Geneva Conventions. The Conference of

Government Experts conducted by the ICRC in 1947 expressly indicated that these conventions would apply “in cases of occupation of territories in the absence of any state of war.”1194

Contained in Article 2 of the Fourth Geneva Convention is the sentence indicating that “[t]he

Convention shall also apply to all cases of partial or total occupation of the territory of a High

Contracting Party….”1195 This is common Article 2 language found in each of the four Geneva

Conventions. Specifically covering all occupation, partial or total, this sentence is a clear indication of the vast reach especially under the Fourth Geneva Convention for all belligerent occupations. Common Article 2 was drafted by persons who had experienced occupation, either directly or vicariously, under the Axis Powers. Additionally, there were several ongoing occupations under the Allied Powers during the work up to and the conclusion of the Geneva

Conventions. The drafters, fully cognizant of the idea labelled occupation, intended no limitation or restriction on the applicability by employing the phrase “partial or total” occupation. Furthermore, the time frame contemplated in the Fourth Geneva Convention

1194 Summary Report Of The Work Of The Conference Of Government Experts For The Study Of The Conventions For The Protection Of War Victims. International Committee Of The Red Cross, 1947, p. 8. 1195 The Geneva Conventions Of 12 August 1949, The Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva IV). International Committee Of The Red Cross, 2006, p. 153.

365 accepts this possible long term occupation. In the Occupied Territories section1196, the drafters provided that there shall be trials and appeals with no death penalty to be carried out prior to a six months wait for notice to the Protecting Power. This may be a long period of time from charges being made against a person, followed by a full trial and appeal then a six month wait for imposition of death penalty in a case, a period of perhaps years. Based on the foregoing, the

Laws of War expressed in the four Geneva Conventions were intended to apply to all periods of partial or total occupation.

However, current argumentation is centered on the applicability of the Laws of War during belligerent occupation due to the elevation of Human Rights Law being considered universally applicable, attempting to establish the rank order of two compatible yet different bodies of law, and changing the name of a concept to further complicate an already confused area of the law. Both types of impediments will be reviewed and evaluated as these must be addressed to return the vanquished to peace after war, belligerent occupation and a jus post bellum phase.

To achieve that goal, the largest possible audience must be addressed and these impediments resolved. Acknowledging that the audience is very diverse and different, I will present the arguments as broadly as possible.

7.1 Impediments in Military Operations: Troops and Mission.

In previous chapters, the lack of planning for the post-conflict phase of war and belligerent occupation has been addressed. But how is a military plan prepared? Military planning is done via some method of Operation Plans abbreviated OPlan. In the United States military “[a]n

1196 Id., Articles 64-78, p. 177-183.

366

Operation Plan is any plan, except the SIOP[Single Integrated Operational Plan for Nuclear

War], for the conduct of military operations in a hostile environment prepared by the commander of a unified or specified command in response to a requirement established by the joint chiefs of staff.”1197 The significance of such plans is that the plan contains force deployment schedules that include answers to the questions of who, what, when, where, and how for the operation. Contained within this plan should be any follow-on occupation forces containing the answer to the query of whom to send as well as being able to name the unit or units that will potentially be sent. Absent this crucial planning information this could be a collateral impediment. Assuming arguendo that an Operation Plan is developed that includes some occupation forces then what country or countries are willing to or should provide these troops? US Forces are not trained to be occupation forces and have not often performed in that role since the post-Second World War era. Training to be part of an occupation force is quite different from training as combat forces and requires additional, specialized training.1198 If a

United Nations or regional organization occupation force or coalition of the willing is contemplated then there is even less likelihood of US military participation after the relief in place and transfer of authority (RIP/TOA). While the French Gendarmerie type of organization is the ideal, further problems arise with their deployment if these respective forces operate under rules of engagement that are not adequate to the mission1199 or there are training, equipment,

1197 "Operation Plan [OPLAN]" Global Security, 2017, https://www.globalsecurity.org/military/ops/oplan.htm. (Accessed 31 May 2019). 1198 "Hearts and Minds Post-War Civilian Casualties in Baghdad by U.S. Forces," Human Rights Watch, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian-casualties-baghdad-us-forces (Accessed 28 June 2018). 1199 Baker, Gerard. "D-Day Nostalgia and the West's New Reality" The Wall Street Journal, 8-9 June 2019, p. C2. As an example of restrictive Rules of Engagement this article provides: “…Under the strict rules the German government had negotiated for its troops in Afghanistan, the Luftwaffe wouldn’t fly at night. The government in

367 or logistical problems or all of these types of issues combined. Gendarmes are by mission to be

“outside the wire” or cantonment and patrolling their assigned neighborhoods but what if these forces are not made available? So, if not a gendarmerie–type force as explained under the ideal belligerent occupation then what type of troops shall be sent? How will any RIP/TOA occur between the combat forces and the occupation forces if those forces are not named, planned for and planned with, not available or not in the right configuration or location to perform their assigned mission? A great deal of planning goes into the coordination of the

RIP/TOA to eliminate fratricide, reduce the overlap in military functions, provide a chance to observe the mission, and numerous other concerns during any transfer of authority in an area of recent combat operations. Not being able to identify the actual troops that will be relieving a combat force as well as garnering the requisite international and state support for such an occupation force could lead to another set of serious impediments. Such impediments are made more severe if the war progresses more quickly than anticipated thereby reducing the time available before the occupation forces are required to be in place and performing their function.

Early identification of the occupation force while needed may pose a separate impediment in that a troop contributing country may not want to commit its forces prior to victory followed by an occupation or the country is reluctant to commit troops where the danger of a guerilla war or insurgency is possible, probable, or occurring. Assuming that regular military forces are provided, the Rules of Engagement become critical. As Colonel Hammes explained after the

Berlin was so alarmed about the potential domestic political consequences of Germans being killed or injured in the conflict that they went to extraordinary lengths to keep them out of harm’s way….” Author’s Note: From July 2004 to June 2005, I coordinated the air Rules of Engagement for all Coalition Air Forces as the senior Legal Advisor to the Combined Air Operations Center as these rules varied widely among the Coalition Air Forces.

368

RIP/TOA in Somalia to UN Peacekeepers, if these provided forces are essentially restricted to their cantonments and rely upon superior fire power then this will lead to a collapse of the mission.1200

Impediments to the ideal belligerent occupation could revolve around the question of what to call the belligerent occupation mission. Is the mission labelled peacekeeping or belligerent occupation? While this may sound trite many troop contributing nations believe

“[p]eacekeeping is a specialised skill unique to small nations, without imperial baggage, a fact overlooked and often not understood by the Super Powers!”1201 Their troops are trained as peacekeepers so the use of the word “occupation” may prove bedeviling to many nations based on colonialism, neocolonialism, or the negative connotation of the word “occupation.” Familiar with peacekeepers in UN and other operations, I would argue that some countries peacekeepers are better trained than most thus allowing for their deployment into any belligerent occupation even those where a guerilla war or insurgency are ongoing or materializing. Most peacekeeping forces are appropriate for presence patrols and police type operations thus limiting or negating their use in belligerent occupations where a guerilla war or insurgency is present. Being mindful of these issues, UN Secretary General, Antonio Guterres, announced his Action for Peacekeeping (A4P) Initiative1202 on 28 March 2018 leading to the

1200 Hammes, Thomas X. The Sling and The Stone: On War In the 21St Century. Zenith Press, 2004, p. xi. 1201 Minihan, John. "Casting a Shadow over Irish Peacekeepers" Echo Live, 2017, https://www.echolive.ie/opinion/Casting-a-shadow-over-Irish-Peacekeepers-addae4c8-6c47-4c59-9be4- d1cc565117ed-ds (Accessed 23 May 2019). Author’s Note: Having worked with Irish Peacekeepers, I found them professional and capable in that role despite criticism especially from the former US Ambassador to the UN. 1202 See, "Action for Peacekeeping (A4P)" United Nations Peacekeeping, 2019, https://peacekeeping.un.org/en/action-for-peacekeeping-a4p (Accessed 24 May 2019).

369

Declaration of Shared Commitments1203 to address these types of questions. Part of this

Declaration deals with the actual troops calling for these to be “…well-structured, well- equipped, and well-trained forces.”1204 Would those same troop-contributing countries view belligerent occupation as similar enough to peacekeeping to participate or as too specialized for their forces? The question has seemingly not been approached or sufficiently answered thus rendering this dilemma a true impediment to the ideal belligerent occupation.

7.2 Impediments in Military Operations: Military Governance?

When the United States entered the Second World War, it began planning for the occupation of the vanquished. The US Army had been working on the issues related to military governance since the publication of the Hunt Report after the occupation of the Rhineland following the

First World War and the military began to study and prepare for a generic occupation. In 1942 that planning mission was given to the military because the military was the only governmental agency capable of this vast task.1205 Little has changed regarding this capability in the ensuing years to the present. Under the post-Second World War plan the military occupation was to ideally be of short duration perhaps two years or less since this time was necessary to establish security. From Chapter 3 of this work it is documented that those occupations all lasted more

1203 "Declaration of Shared Commitments on UN Peacekeeping Operations," Peacekeeping.Un.Org, 2018, https://peacekeeping.un.org/sites/default/files/dpko-dfs-declaration-shared-commitments-unpeacekeeping- 1812605e.pdf (Accessed 7 May 2019). Paragraph 14 of the Declaration of Shared commitments provides “[a]s Member States, we commit to provide well trained and well-equipped uniformed personnel and to support the effective development and delivery of peacekeeping training. We further commit to support pre-deployment preparations of personnel and capabilities required for effective performance, and the existing human rights screening policy. We collectively support a light coordination mechanism related to training and capacity building and emphasize the need for increased funding to better support training. The Secretary-General commits to provide Member States with training materials and standards which match operational requirements.” 1204 Swelam, Ashraf, "Reforming UN Peacekeeping" The Cairo Review of Global Affairs, 2019, https://www.thecairoreview.com/global-forum/reforming-un-peacekeeping/ (Accessed 25 May 2019). 1205 See, Thomas, Charles M., et al. "Civil Affairs: Soldiers Become Governors" The Journal of American History, vol. 51, no. 3, 1964, p. 533. Oxford University Press (OUP), doi:10.2307/1894933. (Accessed 30 May 2019).

370 than two years and the Department of State only took over in Germany after nearly six years.

General Clay, the US Occupation Commander in Germany, worked diligently to structure that military occupation so it could to be smoothly transferred “…to a civilian branch of government.”1206 There are two intertwined impediments here in that the military is not the ideal entity to administer a vanquished nation once there is sufficient control and security.

Secondly, adequate training for any number of soldiers to become a member of an occupation force could divert upwards of 35% from combat training and this is unlikely to occur in the US

Army as presently configured. This is an impediment for the US and causes a need for other countries to send gendarmes or other troops for the belligerent occupation with the concomitant impediments addressed above.

Americans believe that civilians should be the controlling force over the military since

“…liberalism does not understand and is hostile to military institutions and the military function.”1207 So although it is antithetical to the American political culture that the military should be placed into the role of governance, “American officials often acknowledge that the military was best equipped to undertake such tasks [being in charge of governance –related tasks] in conflict zones, but at the same time they expressed hesitancy about placing the army squarely in charge.”1208 The possibilities to overcome this impediment include having the victor’s civilian agencies step up and take over, place the military squarely in charge under a military administrator for the belligerent occupation then turn this over to the civilian agencies including the UN, regional organizations, or a civilian lead agency from a volunteer nation or

1206 Clay, Lucius D. Decision in Germany. Greenwood, 1970, p. 53. See also, Clay, Lucius D, and Jean Edward Smith, The Papers of Lucius D. Clay. Indiana University Press, 1974. 1207 Huntington, Samuel P. The Soldier and The State. Harvard University Press, 1957, p. 167. 1208 Schadlow, Nadia. War and the Art of Governance. Georgetown University Press, 2017, p. 276.

371 some permutations of any or all of these choices. There may be a few civilian agencies in some government able to be support the appointed administrator for a belligerent occupation but this is doubtful. Even within the Department of State this capability was absent despite heroic efforts to staff the CPA in Iraq.1209 For the foreseeable future, the military, and more precisely the US military, is the only entity that is capable of the command and control, huge numbers of personnel, and logistical support necessary to operate an ideal belligerent occupation. For the

United States, the ingrained political culture of civilian control of the military may need to be set aside during the completion of a belligerent occupation. This is not new concept as this political culture was set aside during the belligerent occupations after the Second World War.

Of note this was accomplished without any military coups or other diversions of power followed by a return of authority to a civilian branch of government. There exists a strong ethos in the US military to that civilian control of the forces even to the extent of punishing criticism of certain elected and appointed officials.1210 Although the law on this issue is present in the

Uniform Code of Military Justice it is one of the least used provisions in military law. The point remains that there is a strong visceral effect to permitting the military to provide governance despite the past success in the post-Second World War occupations. Using any military force to

1209 Author’s Note: During the timeframe of July 2004 to June 2005 more than half of the US civilian staff positions in Baghdad were staffed by the US military. See, Shanker, Thom, and David Cloud, "Military Wants More Civilians to Help in Iraq" Nytimes.Com, 2007, https://www.nytimes.com/2007/02/07/washington/07military.html. (Accessed 26 May 2019). 1210 "[USC10] 10 USC 888: Art. 88. Contempt Toward Officials" Uscode.House.Gov, 2019, http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section888&num=0&edition=prelim. (Accessed 25 May 2019). 10 U.S.C. 888 provides “[a]ny commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.”

372 implement a belligerent occupation has some inherent impediments due to the possibility of some coup or other type of takeover.

Impediments that are identifiable can be addressed, adapted to and overcome but these must be identified early on in the planning process due to military, diplomatic, and political concerns.

Military concerns are the training, equipage, transportation, and logistics of that occupation force. Diplomatic concerns are that the occupation forces must be agreeable to the victors and not have historical baggage like colonialism or have some compatibility with the local population in the vanquished country that could impact the occupation. One example occurred during the Bosnia-Herzegovina peacemaking operation there was a request for more Muslim troops to work with the Bosnian Muslims.1211 Political concerns about the tasks assigned to each countries troop contribution, causalities among the forces, and so forth could easily terminate a countries participation in the mission due to domestic, international, or both types of political fallout. These concerns could easily and rapidly become impediments to the ideal or any belligerent occupation.

7.3 Legal Impediments.

The legal impediments to the ideal belligerent occupation are centered on recent conceptions either directly or indirectly impacting the Laws of War. Specifically we will consider the elevation of human rights law, admirable as it is, it was not designed for belligerent occupation or jus post bellum phase. Advocates of human rights law argue it purports to trump all other

1211 Wilkinson, Tracy, and Richard A. Serrano. "1St U.S. Marines Land in Bosnia for NATO Duty," Latimes.Com, 1995, https://www.latimes.com/archives/la-xpm-1995-12-11-mn-12975-story.html (Accessed 28 May 2019). This was a regular request during the Author’s time at the US Military Delegation to NATO (August 1999-June 2002).

373 law at all times even during war and occupation embodying a direct revision of the legal term lex specialis, attempting to establish the rank order of two compatible yet different bodies of law, and changing the name of the concepts to further complicate an already confused area of the law. There are other impediments but I will deal with these three as illustrative examples of changes in the international landscape causing the ideal belligerent occupation to be potentially thwarted. These impediments will be dealt with in turn.

7.3.1 Legal impediments: Are the Laws of War special? Lex specialis in an era of human rights leges generals.

While belligerent occupation was being further developed, applied, and finally coming into its own in the mid-twentieth century based on the conduct and conclusion of the Second World

War and the resultant belligerent occupations another concept began to take hold that being human rights. The United Nations Charter, drafted in 1944 and 1945, speaks to this new concept in the preambular language as the people of the world “…reaffirm faith in the fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women….”1212 One of the purposes of that organization is the promotion and encouragement regarding “…human rights and for the fundamental freedoms for all without distinction as to race, sex, language, or religion….”1213 One of the principle organs of the United

Nations is the Economic and Social Council with a function to “…make recommendations for the purpose of promoting respect for, and observance of human rights and fundamental freedoms

1212 "Charter of the United Nations" UN.Org, 1945, http://www.un.org/en/charter-united-nations/ Preamble (Accessed 29 May 2018). 1213 Id., Article 1, Section 3.

374 for all.”1214 Essentially these are the references to human rights in the Charter of the United

Nations that are undeniably of critical importance to the peace and stability of the world.

Human rights law accelerated in development during the quarter century from circa 1966 to

1990 with a number of treaties being ratified and the attendant proliferation of interest in those documents and development of the body of law.1215 Then the norm cascade came with such a rush as to make all international issues about human rights and to permeate every issue with an appeal to the consideration of human rights, especially the Laws of War.

This writing is not to denigrate or devalue human rights laws but rather to differentiate the general application of Human Rights Laws that always exists from the specific application of a set of humanitarian rights during conflict, in the belligerent occupation, and in the jus post bellum phase that follows under the Laws of War. While encouraging the observance of Human

Rights Law, some scholars and practitioners have developed a radical view advancing the idea that Human Rights Law is always applicable even during war and occupation. As such this view indicates the Laws of War are old fashioned or outdated and need to be supplanted by Human

Rights Law.1216 In the extreme, this view does not accept other legal concepts such as the Laws of War as being necessary or even legitimate.

1214 Id., Article 62, Section 2. 1215 Joseph, Sarah, and Adam McBeth. Research Handbook on International Human Rights Law. Edward Elgar Publishing, Inc., 2010, p. 3-4. 1216See, Doswald-Beck, Louise. Human Rights in Times of Conflict and Terrorism. Oxford University Press, 2011; See also, Amnesty International, “[a]s Salil Shetty, Amnesty International’s secretary-general put it, without reforms to the current rules of war, parties to the world’s conflicts will become increasingly emboldened, and “there will be no stopping the downward spiral.” Quoted in an article by Masi, Alessandria, "Outdated Rules of War Need Major Overhaul: Experts" Refugees, 2016, https://www.newsdeeply.com/refugees/articles/2016/05/26/outdated-rules- of-war-need-major-overhaul-experts-2 (Accessed 6 May 2018).

375

I argue the Laws of War apply only during war, belligerent occupation, and the jus post bellum phase but Human Rights Law apply at all other times. Further, “…human rights law-unlike [the

Laws of War] applies in peacetime, and many of its provisions may be suspended during an armed conflict.”1217 The Laws of War clearly apply during war, are recognized as part of

International Law, and are based upon humanitarian principles of protection of noncombatants and places restriction on the means of warfare such as weapons and methods of war making.1218 So why has this notion by those advocating for the universal application of

Human Rights Law during war time and superseding the Laws of War gained an audience?

In my view, the Laws of War are part of the humanitarian efforts during a war and belligerent occupation. I will argue that beyond a reasonable doubt,1219 there is a place for the observance of human rights in armed conflict; however, the Law of War has historically had a special place among all law during war and during the post-conflict belligerent occupation, after all that is why it was created. I will likewise argue that similarly and beyond a reasonable doubt, the Laws of War are indeed humanitarian in nature as these laws attempt to introduce and enforce rules to regulate the breakdown of societies. This special and particular law consisting of the Law of

Armed Conflict (LOAC) has developed over several millennia and been augmented more recently by the concept of belligerent occupation law; thus it cannot be wished away or confounded into irrelevance. Based upon the above, the Laws of War are the oldest human rights laws in continuing existence as these sought to ameliorate the suffering of human beings

1217 "What Is International Humanitarian Law?". Icrc.Org, 2004, https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf. Accessed 13 Jan 2019. 1218 Id. 1219 In common law, the phrase “beyond a reasonable doubt” is a standard in evidence that means “fully satisfied, entirely convinced, satisfied to a moral certainty….” See, Black, Henry Campbell, and Michael J. Connolly. Black's Law Dictionary, 5th ed., West Publishing Co, U.S., 1981, p. 147.

376 for nearly three millennia.1220 I submit that this has established that the Laws of War are part of the overarching Human Rights Laws although distinct from them during war, belligerent occupation and the jus post bellum phase.

While it is clear there is a place for the application of Human Rights Law in the law of armed conflict and belligerent occupation law; that position is not first place for several reasons. First, in the last twelve decades a great deal of State effort has been placed in negotiating and promulgating “…a separate body of rules to regulate armed conflict and the protection of victims of conflict.”1221 More specifically, “…the law of war traditionally took the form of a legal regime that sought to encompass the whole range of situations conceivable during armed conflict, including some that could be regulated through human rights standards.”1222 Applying the Laws of War during armed conflict and the belligerent occupation has implications for and could infringe upon some Human Rights Law because war is a very different circumstances calling for specialized rules. “The application of human rights norms in time of armed conflict

1220 “In the sixth century [B.C.], Sun Tzu counseled limitations on armed conflict as well. ‘[I]n chariot battles when chariots are captured, then ten-chariot unit commanders will reward the first to capture them and will switch battle standards and flags, their chariots are mixed with ours and driven, their soldiers are treated kindly when given care.’ Sun Tzu did not suggest that this humanitarian admonition constituted laws, or even rules of war. They were simply an effective means of waging war.” J.H. Huang trans. Sun Tzu: The New Translation (New York: Quill, 1933), p. 46. See also, Deuteronomy 20:19 “When you lay siege to a city for an extended time while fighting against it to capture it, you must not destroy its trees by putting an ax to them, because you can eat their fruit. You must not cut them down.” Biblical scholars consider Deuteronomy was written between the years 1468 and 571 B.C. As to India “[w]hereas among other nations it is usual, in the contests of war, to ravage the soil and thus to reduce it to an uncultivated waste, among the Indians, on the contrary, by whom husbandmen are regarded as a class that is sacred and inviolable, the tillers of the soil, even when battle is raging in their neighborhood, are undisturbed by any sense of danger, for the combatants on either side in waging the conflict make carnage of each other, but allow those engaged in husbandry to remain quite unmolested. Besides, they never ravage an enemy's land with fire, nor cut down its trees." Danielou, Alain. A Brief History of India. Inner Traditions, 2003, p. 106. 1221 Schindler, Dietrich. "The International Committee of the Red Cross and Human Rights" International Review of the Red Cross, vol. 19, no. 208, 1979, p. 14. Cambridge University Press (CUP), doi:10.1017/s0020860400066353 (Accessed 4 June 2018). 1222 Campanelli, Danio. "The Law Of Military Occupation Put To The Test Of Human Rights Law" International Review of the Red Cross, vol. 90, no. 871, 2008, p. 653. Cambridge University Press (CUP), doi:10.1017/s1560775508000138. (Accessed 12 Mar 2018).

377 and belligerent occupation is subject to the conflict-of-norms principle of lex specialis derogat legi generali, which provides for derogations and limitations.”1223 Allowance for derogation and limitation indicates the presumed secondary status of Human Rights Law to the Laws of War during belligerent occupation. More precisely stated the Laws of War apply during both the war, the belligerent occupation, and the jus post bellum phase as evidenced by the Fourth

Geneva Convention.1224

While it may be an anathema to those advocating for universal application of Human Rights

Law that these Human Rights Laws could be derogable to the Laws of War, it is true that Human

Rights Laws do apply within the Laws of War under very specific conditions. These are

…first, their application must be possible ratione personae1225

and if treaty-based rules are involved, ratione loci1226 ; second, they

must not conflict with a special rule of the law of armed

conflicts; and third, they must not be derogated in case of war,

public emergency or a similar scenario that would limit or

preclude their applicability during armed conflict.1227

1223 Tristan Ferraro. Occupation and Other Forms of Administration of Foreign Territory. ICRC, 2012, 54, 63. See also, Marco Sassòli, and Laura Olson. “The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts” International Review of the Red Cross, vol. 90, No. 871 (2008) 599-627. 1224 The Geneva Conventions Of 12 August 1949. International Committee Of The Red Cross, 2006. Geneva Convention Relative to the Protection of Civilian Person in Time of War, Section III “Occupied Territories” Article 47 -78, p.171-183. 1225 Ratione personae is a Latin term. It literally means “by reason of his person or by reason of the person concerned.” Defined at USLegal. 1226 Ratione loci is defined as “by reason of the place or because of the relevant place or territory.” Note that the ratione loci are usually secondary to the ratione personae application in law or jurisdiction. Defined in Fellmeth, Aaron Xavier, and Maurice Horwitz. Guide to Latin in International Law. Oxford University Press, 2011. 1227 Campanili, Danio. "The Law of Military Occupation Put To the Test of Human Rights Law" International Review of the Red Cross, vol. 90, no. 871, 2008, p. 656. Cambridge University Press (CUP), doi:10.1017/s1560775508000138 (Accessed 2 July 2018).

378

Human rights is a comparatively new but burgeoning field of law and despite the enthusiasm for the universality of its applicability it is still developing whereas the Laws of War have been bloodily written over several millennia. Many differences exist between the two sets of laws and these will be examined.

The difference begins in the purpose of each set of laws. Thus, “[h]uman rights law protects physical integrity and human dignity in all circumstances. They apply to relationships between unequal parties, protecting the governed from their government.”1228 Agreement on this should not be contested and is considered settled. However, and in direct divergence from the

Human Rights Law,

[t]he law of armed conflict regulates aspects of a struggle

for life and death between contestants who operate on the

basis of formal equality. Derived as it is from the medieval

tradition of chivalry, it guarantees a modicum of fair play…

As long as the rules of the game are observed, it is permissible

to cause suffering, deprivation of freedom, and death.1229

As is clear from the foregoing, there is a difference between these two fields of law with the

Laws of War viewed as “…a narrow, technical vision of legality”1230 or a lex specialis. This term

1228 Meron, Theodor. "The Humanization of Humanitarian Law" The American Journal of International Law, vol. 94, no. 2, 2000, p. 239. JSTOR, doi:10.2307/2555292. (Accessed 6 June 2018). Since his election to the Tribunal by the U.N. General Assembly in March 2001, Judge Meron, a citizen of the United States, has served on the Appeals Chamber, which hears appeals from both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Between March 2003 and November 2005 he served as President of the Tribunal. 1229 Id.

379 is defined as “‘law governing a specific subject matter.’ It comes from the legal maxim ‘lex specialis derogat legi generali.’ This doctrine relates to the interpretation of laws. The doctrine states that a law governing a specific subject matter overrides a law that only governs general matters.”1231

This stated, I agree and contend that “[t]he law of belligerent occupation is lex specialis, a defined body of law with specific application to the particular circumstances of occupation…”1232 and belligerent occupation is a component of the Laws of War1233 along with the Laws of Armed Conflict. The laws of armed conflict are specifically applied during war and afterwards the laws of belligerent occupation apply whereas Human Rights Law is the law governing general situations other than war but that are reflected in the Laws of War. Based upon the aforementioned legal maxim, the Laws of War must apply to the more specific event since Human Rights Laws “…were never intended to replace the lex specialis of international humanitarian law [Laws of War].”1234

This maxim seems to be circumvented so as to magnify the burgeoning universal human rights movement. In addressing this issue, Louise Doswald-Beck indicated that it is an important question of whether the law of armed conflict is lex specialis “…and as such takes precedence

1230 Corn, Geoffrey. "Mixing Apples And Hand Grenades: The Logical Limit Of Applying Human Rights Norms To Armed Conflict" Journal Of International Humanitarian Legal Studies, vol. 1, no. 1, 2010, p. 93, Brill Academic Publishers, doi:10.1163/187815210x12766020139802 (Accessed 17 June 2018). 1231 US Legal. Inc., "Lex Specialis Law and Legal Definition found in Definitions.Uslegal.Com, 2018, https://definitions.uslegal.com/l/lex-specialis/ (Accessed 27 June 2018). 1232 Warren, Mark. Belligerent Occupation in Corn, Geoffrey S. et al., U.S. Military Operations, Oxford University Press, 2016, p. 660. 1233 For a visual conceptualization of the relationship between belligerent occupation law and the Laws of War, see, Figure 6-1, supra. 1234 Dennis, Michael J. "Application Of Human Rights Treaties Extraterritorially In Times Of Armed Conflict And Military Occupation" The American Journal Of International Law, vol. 99, no. 1, 2005, p. 141. JSTOR, doi:10.2307/3246094 (Accessed 17 June 2018).

380 over human rights law, is one that has been addressed, albeit partially, by various judicial and quasi-judicial bodies.”1235 The foregoing follows after the assertion that “international human rights law applies at all times, including during armed conflict and military occupations.”1236

The key here is the parenthetical phrase “albeit partially” that admits this is not a settled matter of law as asserted but a contentious issue demanding additional exploration and so we will examine this further.

In considering the International Court of Justice (ICJ) opinions regarding this topic called lex specialis, it must be pointed out that this court takes judicial notice of international law1237 and can render Advisory Opinions.1238 Yet, caution must be exhibited since “…international law is often controversial, because on important matters there will simply be insufficient agreement for a clear rule to emerge.”1239 Employing the lawyerly method of distinguishing court cases that deal with the same topic, an examination of the relevant cases is undertaken.

In the law to distinguish a court case is “[t]o point out an essential difference [or] to prove a case cited as applicable; inapplicable”1240 or vice versa. The International Court of Justice in the first pronouncement on the applicability of lex specialis provided the advisory opinion regarding nuclear weapons. In that opinion, the Court stated that International Human Rights Law applies

1235 Doswald-Beck, Louise. Human Rights in Times of Conflict and Terrorism. Oxford University Press, 2011, p. 106. 1236 Id. 1237 The International Court of Justice. Fisheries Jurisdiction Case (United Kingdom V. Ireland). ICJ 3, 1974, p. 9, (Merits) reaffirmed in the Military and Paramilitary Activities Case, ICJ Rep. (1986) p. 24-25. See also the companion case, Fisheries Jurisdiction case (Germany v. Iceland). ICJ 175. (1974) (Merits) 1238 "Charter Of The United Nations" Un.Org, 1945, Article 96 (1) http://www.un.org/en/charter-united-nations/ (Accessed 29 May 2018), and "Statute Of The Court | International Court Of Justice" Articles 65-68, Icj-Cij.Org, 1945, https://www.icj-cij.org/en/statute (Accessed 19 Aug 2018). 1239 Krishan, Devashish. "Judicial Precedent In The International Court Of Justice". Biicl.Org, 2005, https://www.biicl.org/files/918_devashish_krishan,_vinson_&_elkins_-_precedent.pdf (Accessed 6 July 2019). 1240 Black, Henry Campbell, and Michael J. Connolly. Black's Law Dictionary. 5th ed., West Publishing Co, U.S., 1981, p. 425.

381 in armed conflict especially regarding the arbitrary deprivation of life. However, the opinion continues “[t]he test of what is an arbitrary deprivation of life … falls to be determined by the applications of lex specialis, namely the law applicable in armed conflict which is designed to regulate the conduct of hostilities.”1241 So even the applicability of Human Rights Law in the arbitrary deprivation of life is specifically delimited by the Laws of War so that lex specialis is preserved, highlighted, and its applicability specified quite clearly in this ICJ Advisory Opinion.

Advocates for the universal applicability of Human Rights Law with the Laws of War being subservient, argue that in the next ICJ case on this topic, the issue was clarified. That case was the Advisory Opinion regarding the Legal Consequences of the Construction of a Wall in

Occupied Palestinian Territory. Accordingly, it is argued by the Doswald-Beck that “[t]his opinion made it clear that IHL [Laws of War] does not displace human rights law and it also made it clear that human rights law is not to be always interpreted taking IHL into account.”1242

Despite this claim, the actual language of the Court provides “[i]n order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and as lex specialis, international humanitarian law [Laws of

War].”1243 These actual words employed by the ICJ disproves the earlier, bold assertion above as this opinion clearly employs the term lex specialis and directly uses it with regard to the primary applicability of the Laws of War. Further in that opinion, the Court specifies, although it

1241 "REPORTS OF JUDGMENTS, ADVISORY OPINIONS AND ORDERS LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS ADVISORY OPINION OF 8 JULY 1996" Icj-Cij.Org, 1996, Section 25. http://www.icj-cij.org/files/case- related/95/095-19960708-ADV-01-00-EN.pdf (Accessed 16 July 2018). Also cited in the Advisory Opinion “LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY” at Section 105. 1242 Doswald-Beck, Louise. Human Rights in Times of Conflict and Terrorism. Oxford University Press, 2011, p. 107. 1243 International Court of Justice. Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, 2004, Section 106.

382 considers both branches of international law, the legal maxim of lex specialis is not challenged or disputed. Old law and old maxims of law are still good law.1244 In fact, lex specialis dates back to the Code of Justinian1245 developed between the years 527-565 A.D.1246 Such longevity is mentioned to be indicative of a persistent normative value as well as general acceptance of the applicability of these particular forms of international convention during specific times.

Besides, the Laws of War apply only during conflict and the aftermath of that conflict in the belligerent occupation1247 as lex specialis and at no other time.

If the ICJ is trying to articulate a new legal standard of Human Rights Law or relegating the Laws of War to some secondary level of applicability during war and belligerent occupation then certainly they could write it more clearly. If this is a new articulation of the law it should be specific rather than leaving it to practitioners and scholars to perform the mental gymnastics of having to interpret the lack of specific language as presenting this new, significant rule regarding the universal applicability of Human Rights Law. This contention that Human Rights

Law has supplanted the Laws of War during the conflict and in the belligerent occupation phase must be considered as a wishful thinking that leads to dangerous legal misinterpretation. I continue to contend that the Laws of War are lex specialis and therefore, are the primary source of law during war, in the belligerent occupation, and the jus post bellum phase.

1244 See, Dinstein, Yoram. The International Law of Belligerent Occupation, The Lex Specialis Rule, Cambridge University Press, 2009, p. 85. 1245 Milanovic, Marko. The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law, p. 5 in Ohlin, Jens David. Theoretical Boundaries of Armed Conflict and Human Rights. Cambridge University Press, 2014. 1246 Boardman, John. The Oxford History of the Classical World. Oxford University Press, 1986, p. 860. 1247 See, Footnote 1 of this Chapter.

383

Advocates for the universal application of human rights in armed conflict and belligerent occupation further contend that the absence of the words, lex specialis in the next case on point settles the matter. In the ICJ opinion in the Case Concerning Armed Activities on the

Territory of the Congo1248, the Court again used the identical language quoted above but indeed without the lex specialis context for the laws of armed conflict, while further indicating that both branches must be taken into consideration. Finding violations of both branches of international law and absent the use of lex specialis language is not indicative of the loss of status for the maxim since this opinion came within seventeen months of earlier cited case with no major changes in the treaty law or legal practice during that short time period.

The result is so confusing that contained within another of the Court’s decision, it indicated

…there can be no doubt that, as a general rule, a particular

act may be perfectly lawful under one body of legal rules

and unlawful under another. Thus it cannot be excluded in

principle that an act carried out during an armed conflict

and lawful under international humanitarian law can at the

same time constitute a violation by the State in question of

some other international obligation incumbent upon it.1249

Truly this possibility, that a single act may be both legal and illegal at the same time, creates a dilemma for the warriors, lawyers, diplomats, social scientists, and the world community in that

1248 International Court of Justice. Case Concerning Armed Activities on the Territory of The Congo. 2005, section 260. 1249 International Court of Justice. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia V. Serbia), 2015, p. 22. The author notes that the ICJ Judges were split 11 to 6 and 15 to 2 regarding these two findings.

384 every action may violate some international treaty. Lex specialis was developed to account for specific situations and to relieve these concerns. War is one of those specific circumstances abhorrent to the general laws of human rights requiring a different set of laws to be applicable.

In a specific situation of war, a person involved in the conflict governed by the Laws of War cannot be both innocent and guilty in the same act. By example, murder is a crime under most legal systems but for centuries killing an enemy in war has been seen as justified and not a criminal action absent some specific Law of War rule violation such as killing an unarmed person attempting to surrender. A soldier is not be liable for killing an enemy combatant during war under the Laws of War but that same soldier could later be charged with murder under

IHRL! There must be some better guidance or the Laws of War could become a nullity that the developing body of Human Rights Law cannot fill.

One must query the Court that if in the calm of the courtroom, the most learned international law experts cannot agree on the applicable law then have we reached the point where under those two sets of laws you cannot know if you are violating some general International Human

Rights Law or the Laws of War? Stated differently, if violations are all a post hoc analysis then no one can be sure of the applicable law beforehand. Furthermore, under this continuum it would appear that the Laws of War do not apply at all or that these laws only fill in any gaps in

Human Rights Law? Clearly the ICRC does not consider The Hague and Geneva Conventions as irrelevant or overcome by human rights law. In the education section of the ICRC website we find that “[T]he ICRC supports the teaching of humanitarian law and principles, promoting respect for the life and dignity of people affected by conflict and violence. We emphasize IHL

[Laws of War] teaching at leading universities, to reach tomorrow's decision-makers and

385 opinion-leaders.”1250 The legal principle of lex specialis was developed to account for specific situations and war followed by a belligerent occupation is definitely one of those circumstances abhorrent to the general laws of human rights requiring a different set of law to be applicable. I maintain that the ICJ has the correct view in that the Laws of War are lex specialis during the entirety of war and the belligerent occupation.

Since the law abhors a vacuum and with these interpretations at cross purposes, have we created a vacuum regarding the Laws of War, generally, and belligerent occupation, more specifically? I think not since the ICRC indicates that it promotes the teaching of humanitarian law and principles [Laws of War] that indeed encourage respect for and the dignity of “…people affected by conflict and violence.”1251 Such precise separation of those “affected by conflict and violence” from the general population at peace captures the essence of legal term lex specialis. Indeed the Geneva Conventions are particular treaties applicable during conflict and belligerent occupation separate and distinct from those general laws applicable when enjoying peace.

Among human rights advocates there is a general dismissiveness for the old law, that is, any law apparently prior to the establishment of the Universal Declaration of Human Rights. Prime among that attitude is the following statement regarding lex specialis claiming it is only “…a descriptive principle that has little independent normative force…”1252 that can only be applied

1250 Learning And Teaching IHL" International Committee of the Red Cross, 2018, https://www.icrc.org/en/what- we-do/building-respect-ihl/education-outreach (Accessed 18 Aug 2018). 1251 Id. 1252 Lindroos, Anja. "Addressing Norm Conflicts In A Fragmented Legal System: The Doctrine Of Lex Specialis" Nordic Journal Of International Law, vol. 74, no. 1, 2005, pp. 27-66, Brill, doi:10.1163/1571810054301022. (Accessed 11 July 2018).

386 once highly political and value-related issues are resolved. Another tack taken reports “[t]he appeal of lex specialis lies in the veneer of antiquity of its Latin formula, in its apparent formality, simplicity and objectivity. But all it really does is disguising a series of policy judgments about what outcomes are the most sensible, realistic and practicable in any given situation.”1253 Those engaged in dismissing this maxim of the law are usually not lawyers by trade so the levels of legal complexity may not be apparent. There is a dichotomy between scholars in different areas of specialty, practitioners, and a geographic divide as well. Painting with a broad brush academics and civilian attorneys seem to be passionate person wanting to apply Human Rights Law universally in all situations while military and other governmental attorneys are more likely to be unconvinced of the applicability of human rights laws during a time when the Laws of War need to be utilized. Likewise, Europeans of all ilks are generally more engaged in human rights applicability than their American counterparts however there is an active human rights advocacy movement in the United States. Painting a portrait with a broad brush is unlikely to develop a complete picture just as focusing on one aspect is unlikely to produce a convincing argument. I continue to argue that the Laws of War are the primarily law during a belligerent occupation and the jus post bellum phase.

It seems clear from the above discussion that the Laws of War especially as codified in the

Geneva Conventions are a particular form of international treaty that brings to bear the maxim of lex specialis during the time of conflict and in the aftermath of that conflict. Even in the age of leges generals regarding Human Rights Law there is a recognized carve out for the Laws of

1253 Milanovic, Marko. The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law. 2014, p. 35, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2463957&download=yes

387

War such that these laws apply during conflict, belligerent occupation, and the jus post bellum phase. Absent continuing recognition of the long standing exception of lex specialis to the leges generals rule the ideal belligerent occupation will most likely be impeded. Such an impediment deals with the approach to the topic much akin to the differences in world view of conservatives and liberals called cultural cognition. This cognition “refers to the tendency of individuals to conform their beliefs about disputed matters of fact to values that define their cultural identities.”1254 Opinions and beliefs are unlikely to change based upon the cultural cognition. So the argumentation must be persuasive.

Yet again, if the belligerent occupation is seen as leges generals then all applicable human rights become applicable immediately. Such immediate applicability precludes gaining the control and security needed for any occupation as was recognized and permitted under The

Hague and Geneva Conventions as explained in Chapters 2 and 3. Further, universal application of human rights negates the need for any consideration of state functions such as jus ad bellum or jus in bello as these would not really be applicable. Being dismissive of well-established concepts of law regarding state action prior to and during war has its own dangers. Perhaps this is the point that state action does not really matter under the universal application of human rights view as the protections are for individuals with limited regard for state action. No matter the outcome of this discussion of applicable law, this is an impediment to the establishment of the ideal belligerent occupation.

1254 "Cultural Cognition Project - Home" Culturalcognition.Net, 2019, http://www.culturalcognition.net/ (Accessed 4 May 2019.) The Cultural Cognition Project at Yale Law School is a group of scholars interested in studying how cultural values shape public risk perceptions and related policy beliefs. The Project also has an explicit normative objective: to identify processes of democratic decisionmaking by which society can resolve culturally grounded differences in belief in a manner that is both congenial to persons of diverse cultural outlooks and consistent with sound public policymaking.

388

7.3.2 Legal Impediments: Is belligerent occupation the Laws of War’s gateway to peace?

Belligerent occupation is a branch of the Laws of War but it simultaneously resembles the law of peace; such that, “…the law of military occupation reflects the dual nature of occupation, consisting as it does of rules drawn from both the rules of war and the rules of peace.”1255 In the belligerent occupation situation, the armed conflict between occupied and occupier has not ended but transformed to this in-between phase of war and peace, belligerent occupation. But make no mistake this is another phase of war with the hope of it leading to peace rather than back to another phase of war. If a guerilla war or insurgency exists while under a belligerent occupation then this continuing phase of war model may be more apparent as this situation of belligerent occupation more closely resembles war than peace.

Assuming arguendo that the whole of International Human Rights Law (IHRL) is the generally applicable law (leges generals) then the Laws of War must be subservient to this law during conflict and the belligerent occupation. According to this view of IHRL, Human Rights Law applies as much during armed conflict and belligerent occupation without exception as it does during the applicability of the Laws of Peace. Without lex specialis and applying leges generals, this position recognizes the subservient Laws of War. Under this view, the Laws of War would be employed essentially to fill gaps in human rights law during war and belligerent occupation where situations arise that Human Rights Laws were not designed for or compatible with the violence of war or the security measures of a belligerent occupation.

1255 The International Court of Justice. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia V. Serbia), 2015, p. 660.

389

In juxtaposition, the Laws of War are seen by its advocates as comprised of two separate branches consisting of the laws of armed conflict and the laws of belligerent occupation. I adopt these two branches of the Laws of War. The Laws of War are seen as a separate yet equal form of treaty law with those treaties establishing IHRL under the Laws of Peace. In my view, the

Laws of Peace and those of War are separated from each other vertically yet joined horizontally by belligerent occupation law that begins the shift from war back towards peace. See, Figure

Introduction-3.

Despite this movement towards peace, belligerent occupation law remains governed by the

Laws of War. Therein lays the beginning of the confusion that should not exist and will now be explained. The aforementioned preparatory work for the Geneva Conventions regarding the extent of the applicability of these conventions when there is no war but the territory is occupied should have concluded the dispute.

Perhaps looking at the confusion from a different perspective may further clarify and resolve this issue. If the sphere of human experience is divided into the dimensions between the Laws of Peace and the Laws of War, the phase where Belligerent Occupation Law is located bisects these two dimensions. Belligerent Occupation Law is found mainly under the Laws of War and governed thereby with some limited exposure to the Laws of Peace. Any such transition between the Laws of War back to the Laws of Peace is likely to cause uncertainty and be misinterpreted or misidentified. Advocates of the “universal” human rights approach do not see or accept the vertical separation or the horizontal overlap. A visual presentation can clarify the idea presented; see Figure 7-1 below.

390

Figure 7-1. Belligerent Occupation Unites the Laws of Peace and War.

Laws of Peace l Laws of War

______l______

International Human Rights Law l Law of Armed Conflict (LOAC)

(leges generals) l (lex specialis)

I------

l Belligerent Occupation Law (lex specialis)

______l______

In this figure, the body of Belligerent Occupation Law is mainly under the Laws of War since this is basis for any occupation. However, there is a protrusion of Belligerent Occupation Law into the Laws of Peace sphere and here some of the International Human Rights Laws are applicable to the belligerent occupation phase of war. Some of the Laws of Peace (purple shaded area) would be compatible with the rest of belligerent occupation (red shaded area) but not all of them. The size of the purple area is smaller due to the relatively few Laws of Peace

391 formulations that actually apply or could apply under the Laws of War and thus under any belligerent occupation. The Laws of Peace should become more applicable as the belligerent occupation develops towards a return of sovereignty to the vanquished and becomes ready for termination by the Occupying Power(s). The visualization of these two differing views illustrates the variance between them from starting point through to the application of these laws. I argue there is a need to de-conflict these two fields of law and the divergent views of the structures of these laws referenced above as these bodies of law are different in basis, applicability, and outcomes. As agreed earlier, “[a]t perhaps the most fundamental level, human rights and LOAC, share common themes and goals: protection of persons and of basic human dignity.”1256

Despite this confluence of interests the differences remain and may be seen graphically in Table

7-1 below.

The stark contrast between the two sets of co-equal laws is apparent from the very beginning.

Human Rights Law seeks to protect the citizen from the State while LOAC regulates conduct between States with the citizenry being collateral beneficiaries of that guiding humanitarian effort. Presumptions underlying these laws are similarly dissimilar with human rights laws focused on the individual with the individual acting according to their own volition while under

LOAC, the presumption looks to the group level wherein the group acts according to the leader’s volition. Another presumption is that individuals are complaint with the State’s authority and are not offensive but hostile groups intend to inflict some harm and are judged

As regards the deprivation of life or liberty, Human Rights Law makes States adjudge, at trial, individual acts but LOAC allows the deprivation of life and liberty based on the presumption of

1256 Blank, Laurie R, and Gregory P. Noone. International Law and Armed Conflict. Wolters Kluwer, 2016, p. 21.

392 offensiveness. To illustrate, a trial is an individual judgment under Human Rights Law to adjudicate life or liberty deprivations but a soldier wearing an enemy uniform is not granted a trial but rather is presumed offensive absent some indication of surrender and is permitted to be shot at on sight since the soldier is hostile vis-à-vis the shooter. Having introduced deadly force, consider that under Human Rights Law the last resort is the use of deadly force whereas under LOAC the first resort is to deadly force as indicated in the example above. Human Rights

Law protects the object of State violence from excessive force while under LOAC civilians are protected from excessive effects of lawful attack. Belligerent occupation then is the starting point of allowing some parts of the Human Rights Laws to be made applicable in limited ways to the Laws of War during the belligerent occupation but only as the implementation of that occupation proceeds toward the Laws of Peace.

The use of force to establish a peaceful transition under a belligerent occupation may seem counterintuitive. By placing the aforementioned force size of gendarmes (see Sections 3.2.6 and

6.1.1.1) in the correct ratios of these forces to the population and size of the vanquished country (see Sections 3.2.6, 3.2.7, and 3.2.8) there can be a transition from belligerent occupation towards peace. In that transition to the Laws of Peace, the use of deadly force as a first option could be eased or changed to the last option as control and security are established in the occupied areas. Gendarmes can then transition to their peacetime mission of being police officers as the occupation situation becomes more peaceful. This transition would be a decision for the Proconsul or the military commander as the peace is returning to the vanquished nation. Further delegation could be made to local military or police commanders as

393

Table 7-1. Contextual Foundation for the Use of Force by State Actors.1257

Human Rights: Law of Peace LOAC: Law of War

Developed to Prohibit Arbitrary Treatment of Developed to Regulate the Conduct of

Citizens by State Hostilities Between States

Presumption that Individuals Act on Their Own Presumption that Hostile Groups Act Pursuant

Volition to Leaders Will

Presumes Individuals Normally Comply with Presumes Members of Hostile Groups Intend

State Authority and Are Therefore Inoffensive to Inflict Harm on their Opponent and are

Therefore Presumed Offensive

Requires State Actor to Make Individualized Authorizes Deprivations of Life and Liberty

Judgment to Support Deprivations of Life or Based on Presumption of Offensiveness

Liberty

Allows Only That Force Necessary to Restore Allows for Application of Overwhelming Force: the Status Quo: Deadly Force is a Measure of Deadly Force as a Measure of First Resort

Last Resort

Protects the object of state violence from Protects collateral victims from excessive excessive application of force effects of lawful attack

1257 Extracted with changes from Corn, Geoffrey, "Mixing Apples And Hand Grenades: The Logical Limit Of Applying Human Rights Norms To Armed Conflict" Journal Of International Humanitarian Legal Studies, vol. 1, no. 1, 2010, p. 93, Brill Academic Publishers, doi:10.1163/187815210x12766020139802 (Accessed 17 June 2018). Author’s Note: I was a student in then Major Corn’s Laws of War Workshop (Spring 1995) at the US Army Judge Advocate General’s School when this chart was being developed.

394 the end of belligerent occupation is coming so as to begin that transition from the Laws of War to the Laws of Peace. All of this depends on the control and security established in the vanquished country and the use of combat or gendarme forces as described. Control and security must be planned for contemporaneously with the combat portion of the war plan as previous indicated with careful consideration of the nine factors identified and explained in

Chapter 3 and listed in Table 3-2.

I belabor this point to show that if international law scholars and practitioners of international law disagree and are of several related school of thought as has been illustrated herein then consider the practicalities of the situation. Let me illustrate with an example. Each State has a duty to train its forces on the laws of armed conflict1258 but if every available human rights treaty applies during the totality of armed conflict including belligerent occupation then what does the State instruct its military to do other than teach and direct compliance with The Hague and Geneva Conventions? That is the requirement expressed in the Geneva Conventions as these Conventions indicate such training is to be provided especially to the military and only as regards the Geneva Conventions. There is no concomitant requirement to provide education in the human rights treaties although for gendarmes and police there is United Nations publication entitled “Human Rights and Law Enforcement: A Manual on Human Rights Training

1258 The Geneva Conventions of 12 August 1949. International Committee Of The Red Cross, 2006 In Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, Article 47 provides “The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains.” Similar language is found in the other three Geneva Conventions. The Second Geneva Convention regarding the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea contains Article 48. The Third Geneva Convention Relative to the Treatment of Prisoners of War contains Article 127. The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War contains Article 144. All of these articles are entitled “Dissemination of the Convention.”

395 for the Police.”1259 Any “occupation troops” to include the gendarmes could receive this type of additional training. Most of these human rights treaties were negotiated and signed after the

Geneva Conventions so if the intention was to have something similar to the mandatory training article listed above then that language was available but not utilized. Further had these human rights treaties been intended to be superior to the Laws of War this could have been articulated in the body of these human rights treaties rather than be subjected to speculation and rumination. Again, this difference is another impediment to the ideal belligerent occupation.

If generally “…the use of force in armed conflict is increasingly assessed through human rights law as well as international humanitarian law [however] …the use of force within occupied territory … is not always amenable to a human rights framework.”1260 As visually demonstrated above in Table 7-1, the line of treaties and purposes of those treaties begin differently, overlap in some areas, then the Laws of War and Peace diverge once again. An example may be illustrative, imagine “…an RPG [Rocket Propelled Grenade] attack upon a convoy in the midst of

Baghdad may … be considered to be covered by the law on the conduct of hostilities; while their firing upon a car failing to stop at a checkpoint is covered by human rights law applicable to police operations.”1261 Clearly killing an attacker is lawful in war but an arrest is to be

1259 "Human Rights And Law Enforcement: A Manual On Human Rights Training For The Police - United Nations And The Rule Of Law" United Nations And The Rule Of Law, 1997, https://www.un.org/ruleoflaw/blog/document/human-rights-and-law-enforcement-a-manual-on-human-rights- training-for-the-police/ (Accessed 9 July 2019). 1260 Watkin, Kenneth. "Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict" The American Journal of International Law, vol. 98, no. 1, 2004. JSTOR, doi:10.2307/3139252 (Accessed 28 June 2018). Author’s note: Brigadier General Watkin was, in 2004, the Deputy Judge Advocate General of Canadian Force later becoming the Judge Advocate General from 2006 to 2010. 1261 Sassòli, Marco. Legislation And Maintenance Of Public Order And Civil Life By Occupying Powers in Heintschel von Heinegg, Wolff, and Michael N. Schmitt, Detention And Occupation In International Humanitarian Law.

396 conducted absent weapons and with minimal damage to or injuring of the arrestee. In those split seconds, the difference may not be so obvious. Such was the reality of belligerent occupation in Iraq as it was not unusual to have a convoy attacked as described above on the way to manning a checkpoint where combatants and non-combatants frequently attempted to run through the checkpoint in their cars. Specifically, militarily firefighting your way into a location to set up a check point where you are to be a police man and act accordingly is a tall order in the best of circumstances and least likely to have the distinction made when being shot at or after being fired upon. Again, the difference of which law applies is significant. Under

Human Rights Law the use of deadly force is the last consideration which is just the opposite under the Laws of War. The use of deadly force or the easing thereof depends on the control and security established in the occupied areas.

The Laws of War need to be the primary source of law in a belligerent occupation where there is a guerilla war or insurgency because if the sure hand of belligerent occupation is not applied there will be no peace in which to develop Human Rights Law. The application of every possible rule results in the application of nothing leading to the descent into the Hobbesian-esqe conflict during the chaos of armed conflict including that in belligerent occupation.

It must be remembered that most human rights are subject to derogation by the very treaties that created them. From a legal perspective derogation is “[t]he partial repeal or abolishing of a

Ashgate, 2012, p. 666. See also, "Hearts and Minds: Post-War Civilian Casualties in Baghdad by U.S. Forces". Human Rights Watch, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian- casualties-baghdad-us-forces (Accessed 28 June 2018).

397 law, as by a subsequent act which limits its scope or impairs it utility and force.”1262 Looking at the legal definition and applying this to these derogation clauses, derogation is a partial repeal caused by a later act that weakens the applicability of the law or treaty. Common treaty language for such a derogation is “[i]n time of war or other public emergency threatening the life of the nation….”1263 If human rights are subject to this derogation then there must be some superior law to it during that period of derogation. The superior law in times of war would be the law governing that particular act; that is, the Laws of War prevails during the period of armed conflict and belligerent occupation. An interesting example was developed by JAG

Captain Brian Bill, U.S. Navy, regarding internment as he points out that such an act is permitted during belligerent occupation via Article 78 of the Fourth Geneva Convention. This article provides “[i]f the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may at the most, subject them to assigned residence or internment.”1264 This is quite explicit under the Laws of War yet such an act under IHRL was found inconsistent with basic human rights treaties.1265 More clearly, “…a policy of preventive internment, that is the arrest and detention of those who are considered dangerous without any intention of bringing them to trial…”1266 varies from internment found in the human rights treaties. Based upon the European Court of Human

1262 Black, Henry Campbell, and Michael J. Connolly, Black's Law Dictionary, 5th ed. West Publishing Co, U.S., 1981, p. 399. 1263 "European Convention on Human Rights" Echr.Coe.Int, 2018, Article 15(1), https://www.echr.coe.int/Documents/Convention_ENG.pdf (Accessed 10 July 2018). See "The American Convention on Human Rights" Cartercenter.Org, 2018, Article 27 (1) https://www.cartercenter.org/resources/pdfs/peace/democracy/des/amer_conv_human_rights.pdf (Accessed 10 July 2018). See also, "OHCHR | International Covenant on Civil and Political Rights" Ohchr.Org, 2018, Article 4 (1), https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx (Accessed 10 July 2018). 1264 The Geneva Conventions Relative to the Protection of Civilian Persons in Time of War of 12 August 1949. International Committee of the Red Cross, 2006, Article 78, p. 182-183. 1265 Robertson, A.H., and J. G. Merrills. Human Rights in Europe, 3rd ed., Manchester University, 1993, p. 66. 1266 Id.

398

Rights that delivered this opinion in its first case, Lawless v. Ireland, that Court also found this norm was subject to derogation in time of war.1267 “It ensures that in wartime, as far as internment goes, LOAC has a humanitarian edge over HRL.”1268 The Laws of War unlike

International Human Rights Law have limited derogation “in extreme instances” and these limits are “…to specific persons or situations and no others.”1269 Certainly there are non- derogable rights under these Human Rights Laws but the point is the Laws of War, unlike

Human Rights Laws, are consistent and applicable only during the period of armed conflict and belligerent occupation, both specific events under the Laws of War. Stated differently, IHRL is either engaged or subject to derogation so these are either fully applicable or not applicable while the Laws of War are always applicable but at a lower aspirational level when compared to

IHRL in peacetime.1270 LOAC establishes rights that coincide with most non-derogable human rights.1271 So LOAC is consistent with IHRL which has a different status for their conventions in times of war. Such recognition points clearly to the prospect that war and its environs are so very different from peace time as to be culled out for an exception from the applicability of the

“universality” of the general human rights treaties and focus on the specific humanitarian rules in The Hague and Geneva Conventions.

1267 Lawless v. Ireland, The European Court of Human Rights, 3 Judgments and Decisions of the European Court of Human Rights 27, 1961, pp. 54-62. 1268 Dinstein, Yoram. The Influence of the Conflict in Iraq on International Law, p. 489 found in Pedrozo, Raul, The War In Iraq: A Legal Analysis. Naval War College, 2010. 1269 Id. 1270 Professor Dinstein developed the “whole loaf versus half a loaf analogy.” He posits that IHRL in peacetime is 100% but it can drop to zero during wartime but LOAC is always at about 50% while lower than peacetime IHRL it is much higher in wartime. “I find the half loaf most reassuring in the face of a possibility of no loaf at all.” See Dinstein, Yoram. The Influence of the Conflict in Iraq on International Law, p. 489-490 found in Pedrozo, Raul, The War in Iraq: A Legal Analysis. Naval War College, 2010. 1271 Id.

399

So what? Why the effort at distinguishing these two fields of law? To be blunt where you begin the analysis determines the approach you take with the issue. The glass as half full denotes a different approach than one that is half empty within any determinative analysis. Specifically, if you begin with the view that an enemy combatant must be arrested and tried that is a lot different procedure than being shot on sight as during a war. Alleged war crimes are also implicated by the universal application of human rights to war and belligerent occupation.

Several of the trials occurring recently or ongoing in the United States seem to be about this dichotomy. Asking the question, is an enemy combatant pretending to be dead subject to being fired upon? Using this ruse1272 resulted in the shooting and killing of the enemy combatant with the alleged perpetrator being charged with murder. This was not seen by the prosecution as a reaction to a lawful ruse of war but as a deliberate murder of a combatant. This theory based on Human Rights Law was not upheld by the courts.1273 For the defendants the difference in legal outlook between these two fields of law had the potential for serious punishment as it mattered greatly about the legal applicability of divergent laws. Simply put, if a prosecutor begins with the belief that IHRL applies during war time then it is understandable to see that the defendants violated those laws. Without the legal maxim regarding lex specialis applying to the Laws of War within the context of combat and belligerent occupation there will be more of these sorts of trial jeopardy for combat troops and their commanders.

1272 For the definition of ruse, see, Article 37(2) of the 1977 Additional Protocol I as it provides: Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no Rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law. 1273 Hancock, David, "No Charges in Fallujah Shooting" Cbsnews.Com, 2005, https://www.cbsnews.com/news/no- charges-in-fallujah-shooting/ (Accessed 21 Dec 2018); See also, Dufrene, Sean, "Federal Jury Acquits Ex-Marine In Iraqis' Deaths" Msnbc.Com, 2008, http://www.nbcnews.com/id/26443458/ns/world_news- mideast_n_africa/t/federal-jury-acquits-ex-marine-iraqis-deaths/#.XE3LE0xFxPY (Accessed 2 Jan 2019).

400

7.3.3 Legal impediments: Are the Laws of War better served by another name, International

Humanitarian Law?

With all of the applicable and usually conflicting international law on the topic of belligerent occupation, it is not surprising so much ink has been spilled in ascertaining what the law is and this is often based upon the political stance of the presenter. Despite the effort to resolve this, there remains

…two possible readings of the law of occupation. A benevolent reading

sees it as a body of law guaranteeing that occupation…will not be akin to

conquest, colonialism, or apartheid but will rather be a temporary rule

that will benefit the local population until the territory is freed... A less

benign reading… views the law of occupation as profiting from the cloak

of temporality and the stamp of international legality since –unlike conquest,

colonialism, or apartheid-it is considered an accepted legal phenomenon.

Seeing occupation as “neutral” may actually legitimize new forms of what

should be considered illegal including new forms of conquest, colonialism and

apartheid by dressing them up in the new clothes of the legal and temporary

institution of occupation.1274

I have adopted the benign view of the temporary rule to benefit the vanquished then return their sovereignty. The law of armed conflict was gentrified and renamed International Humanitarian Law as

International Human Rights Law became the mantra beginning in the early 1960s.1275 Exactly what is

International Humanitarian Law and how does it differ from the Laws of War? According to the ICRC

[i]nternational humanitarian law is a set of rules which seek, for

1274 Gross, Aeyal M. The Writing on the Wall. University Press Cambridge, 2017, p. 21. 1275 Policastri, Joan, and Sergio D. Stone. "Electronic Research Guide to International Humanitarian Law" Asil.Org, 2015, https://www.asil.org/sites/default/files/ERG_HUMANIT_LAW.pdf (Accessed 29 Aug 2018).

401

humanitarian reasons, to limit the effects of armed conflict. It protects

persons who are not or are no longer participating in the hostilities and

restricts the means and methods of warfare. International

humanitarian law is also known as the law of war or the law of armed

conflict.1276

As previously described, for many people, “… the term "laws of war" is old-fashioned. However, its continued use has merits. It accurately reflects the well-established Latin phrase for the subject of this inquiry, jus in bello, and it is brief and easily understood.”1277 The term

International Humanitarian Law1278 is often accompanied by the phrase “applicable in armed conflict.” When this clarifying statement is required to be added it belies the true meaning of the term; that is, International Human Rights Law is always applicable even in war and the belligerent occupation. Yet consideration must be given to the proposition that “[p]reference for the term ‘laws of war’ does not imply a downplaying of the significance of human rights provisions, whose merging with the laws of war is one of the most significant developments in this field in recent decades.”1279

1276 "ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW" Icrc.Org, 2004, https://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf (Accessed 29 Aug 2018). 1277 Adams, Robert. "THE LAWS OF WAR: PROBLEMS OF IMPLEMENTATION IN CONTEMPORARY CONFLICTS" Scholarship.Law.Duke.Edu, 1995, p. 14. 1278 The ICRC specifies that this set of rules consists of the four Geneva Conventions of August 12, 1949, the Additional Protocols of 1977 relating to the protection of victims of armed conflicts, the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, plus its two protocols; the 1972 Biological Weapons Convention; the 1980 Conventional Weapons Convention and its five protocols; the 1993 Chemical Weapons Convention; the 1997 Ottawa Convention on anti-personnel mines; and the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. See, ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW" Icrc.Org, 2004, https://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf (Accessed 29 Aug 2018). 1279 Adams, Robert. "THE LAWS OF WAR: PROBLEMS OF IMPLEMENTATION IN CONTEMPORARY CONFLICTS". Scholarship.Law.Duke.Edu, 1995, p. 15.

402

Again, in the perspective of Human Rights Law there is an expectation of some sort of police control of the streets and judicial functioning in a relatively peaceful and secure environment for functioning; just the opposite of what war is about. More specifically, “[i]nternational humanitarian law is an alternative term for the law of war that may be understood to have the same substantive meaning as the law of war.”1280 Yet, the Laws of War are broader than

International Humanitarian Law (IHL) as for example the latter does not include the concept of neutrality since it is not for a humanitarian purpose.1281 Neutrality has meaning under the Laws of War yet under IHL this is different since

[t]hird states may recognize the existence of insurgency without

explicitly declaring an allegiance or adopting a position of neutrality

towards the conflict...the recognition of insurgency serves as a

partial internationalization of the conflict, without bringing the

state of belligerency into being. This permits third states to participate

1280 Department of Defense, DoD Announces Update To The DoD Law Of War Manual. 2016, https://www.defense.gov/News/News-Releases/News-Release-View/Article/852738/dod-announces-update-to- the-dod-law-of-war-manual/#.V5HxWwNlJJM.twitter (Accessed 11 June 2018) See, e.g., Overview of the Amendment to the Convention on the Physical Protection of Nuclear Material, 6, Enclosure to Condoleezza Rice, Letter of Submittal, Jun. 11, 2007, MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING AMENDMENT TO THE CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL (THE “AMENDMENT”). A CONFERENCE OF STATES PARTIES TO THE CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL, ADOPTED ON OCTOBER 28, 1979, ADOPTED THE AMENDMENT ON JULY 8, 2005, AT THE INTERNATIONAL ATOMIC ENERGY AGENCY IN VIENNA, TREATY DOC. 110-6, 6 (2007) (“(2) The United States of America understands that the term ‘international humanitarian law’ in Paragraph 5 of the Amendment (Article 2 of the Convention on the Physical Protection of Nuclear Material, as amended) has the same substantive meaning as the law of war.”); FRITS KALSHOVEN & LIESBETH ZEGVELD, CONSTRAINTS ON THE WAGING OF WAR: AN INTRODUCTION TO INTERNATIONAL HUMANITARIAN LAW 11 (International Committee of the Red Cross, 3rd ed., 2001) (“The law of war nowadays is often referred to by a phrase better suited to express its object and purpose, such as ‘international humanitarian law applicable in armed conflict’ or ‘humanitarian law’ – we shall be using these terms interchangeably, as we do with ‘war’ and ‘armed conflict’.”) 1281 Christopher Greenwood. Historical Development and Legal Basis. in Dieter Fleck, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 9 (¶102) (1999) (“The term ‘international humanitarian law’ is of relatively recent origin and does not appear in the Geneva Conventions of 1949. … International humanitarian law thus includes most of what used to be known as the laws of war, although strictly speaking some parts of those laws, such as the law of neutrality, are not included since their primary purpose is not humanitarian.”).

403

in an internal war without finding themselves ‘at war’, which would be

the consequence of intervention on either side….”1282

Doing away with or curbing neutrality may have undesirable results as neutral states provide opportunities for diplomacy, prisoner exchanges, and other beneficial services to the warring parties. Beyond the aforementioned capacities, neutral states have historically become

“Protecting Powers” and helped to reduce some of the disorder occurring in war. Chaos in war can get complicated and critics opine “[t]he politics behind classification of armed conflicts has often brought about the failure of international humanitarian law in playing its part.”1283 One must ask what is the international community undertaking in limiting the applicability of the

Laws of War to the very situation it was created to address. Is the focus on the human factor in

IHL having an adverse impact on the larger lex specialis of the Laws of War? Was this the intention of those seeking to change the name of the Laws of War to International

Humanitarian Law? The use of the mature term, Laws of War, would answers these concerns and I continue to advocate for the use of this phrase.

In this last section, I have argued that the Laws of War are broader in scope than IHL and are specifically designed to address both the war itself and the belligerent occupation in the post- war phase. There are putative legal impediments on the ideal belligerent occupation from the argument that all human rights apply at all time even during the chaos of war, this is

1282 Cullen, Anthony. “The Concept of Non-International Armed Conflict in International Humanitarian Law" Cambridge Studies in International Law and Comparative Law, vol. 66, 2010, p.11-12. (Accessed 7 Sept 2018). 1283 Chelimo, Gertrude C. "Defining Armed Conflict in International Humanitarian Law" Inquiries Journal, 2011, http://www.inquiriesjournal.com/articles/1697/defining-armed-conflict-in-international-humanitarian-law. (Accessed 7 Sept 2018).

404 compounded by the firmly held belief that the legal maxim of lex specialis does not apply or is subservient to the IHRL, and that the name change from the clear Laws of War to the emphasis on human rights with the new and apropos name of International Humanitarian Law. The law seeks clarity and these impediments move away from that clarity into a focus on one area of the law to the virtual exclusion of other areas without the concomitant increase in the clarity of the law generally and without some additional benefits to those it seeks to protect

7.4 Conclusion.

Having considered these potential impediments that either directly or indirectly impact the

Laws of War, where do we stand on these impediments?

I have argued that the legal maxim of lex specialis applies during times of war and belligerent occupation for the reasons specified above against the assertion that International Human

Rights Law applies universally. Insistence by those advocating for universal human rights law application has been shown to be more wishful thinking and bold but unsubstantiated assertions than factual representations for that applicability. The legal distinctions advanced are not supported by the language of the ICJ opinions. In international law there exists the concept of the persistent objector which is “… in principle a state that indicates its dissent from a practice while the law is still in the process of development is not bound by that rule even after it matures.”1284 In personalizing this concept, this paper has demonstrated that the leges

1284 Restatement Of The Foreign Relations Law Of The US, Third ed., The American Law Institute, 1987, vol. 1, para 102.

405 generals promotion of Human Rights Law above the Laws of War is not established law.

Further, it is clear that the idea of lex specialis is applicable to Laws of War consisting of the two branches: the Laws of Armed Conflict and belligerent occupation. Having experienced war and belligerent occupation, to believe that such chaos does not call for the particularization of the law to deal with this breakdown of societies is to be naïve or overly zealous in advancing a cause that cannot cover enough legal territory to apply in that particular situation. In a particular situation, the particular law must apply as the general law is too broad in detail to apply. I do this with respect for those who seek to make Human Rights Laws applicable but when the situation of war and occupation are experienced up close and personal, the argument dissipates itself as some human rights advocates on the ground have admitted after experiencing that chaotic situation.1285

Next, there must be a clear recognition of the dissimilar basis for and functions of Human Rights

Law and the Laws of War. While both branches of law seek to ameliorate the suffering of those not involved in or no longer a part of the fighting, the similarities begin to diverge rapidly. With these two branches of international law preceding in different directions ab initio these cannot then apply to same situation. By analogy, criminal law applies to a murder yet there may be a tort claim for the injury in that same act but these have different burdens of proof, are typically tried in different court proceedings, and have different juries. So too with human rights, the particular laws relating to war do not apply in peace time and any attempt to apply the laws of peace during war and occupation will not lead to a better result in the return of sovereignty.

1285 Author’s Note: “How the hell can you get to basic human rights if we cannot get them to stop killing each other” and other such words to that effect were regularly heard during the three wars in Kosovo, Afghanistan, and Iraq.

406

The laws of war and peace are based on divergent presumptions. The Laws of Peace assumes people comply with the states authority and are not offensive in acts, however, the Laws of

War presumes that people intend to do harm and are therefore offensive. In the latter set of laws, that presumption has been developed to permit killing that offensive person. The opposite is concluded under the Laws of Peace there must be some individual proceeding in a court to be able to impose a justifiable killing.

Perhaps the greatest divergence of these laws occurs in the application or “use of deadly force.” By deadly force I mean “… that force which could reasonably be expected to cause death or grave bodily harm.”1286 In the more peaceful situations the use of deadly force is the very last step. A police officer in peacetime does not start with the use of deadly force but rather escalates the response according to the situation. During war deadly force is the first resort such that when an enemy soldier is spotted the first action is the use of deadly force. I argue that a dichotomy this large between the “uses of deadly force” first and last, calls for the application of particular rules in the specific situation of war and belligerent occupation. The

Laws of War must prevail during war and belligerent occupation. Figure 7-2 shows graphically these differences.

1286 US Legal, Inc., "Use Of Deadly Force Law and Legal Definition” | USLegal, Inc." Definitions.Uslegal.Com, 2018, https://definitions.uslegal.com/u/use-of-deadly-force/ (Accessed 9 Sept 2018).

407

FIGURE 7-2. Use of Force Continua under the Laws of Peace and War.1287

Police use of force (Laws of Peace) Military use of force (Laws of War)

Presence and verbal commands Deadly force (shot to kill)

Empty hand techniques Capture

Impact (nonlethal) weapons/Chemical agents Empty hand techniques (kill or capture)

Deadly force (shoot to wound)

______

Differences continue when the object of protection is examined. Human Rights Law seeks to protect the subject of state violence from the excessive use of that force. The Laws of War protect those not engaged in (civilians) or no longer engaged (hors de combat) in the fighting from the excessive force of a lawful attack.

Doubt as to the variances with which these laws apply should be resolved now so that the idea of lex specialis being applicable to the Laws of War consisting of LOAC and belligerent occupation has caused the pause necessary for deliberative contemplation and resolution.

Table 7-1 shows visually that the Laws of War apply during the vast majority of time during the belligerent occupation phase but not all of it. That small area (purple shaded) is where the beginning of the return of sovereignty is occurring. This is where the International Human

1287 This chart was developed as part of Law of War Training by the author while on active duty in the US Air Force. As the Staff Judge Advocate at peacetime assignments the training of Security Forces personnel on the law was one of the myriad responsibilities of the position. During the wartime role the Staff Judge Advocate must training warriors on the Laws of War. The author continues to thank the people at OfficerInsider.com for borrowing their concept regarding police use of force.

408

Rights Laws (those Laws of Peace) should also begin to be employed to aid in that restorative effort. The Laws of War should lessen in applicability during that time near to the return of sovereignty and eventually change to the human rights laws as that transfer occurs.

Thirdly, we should return to the use of the mature term Laws of War rather than continue with the renamed International Humanitarian Law. International Humanitarian Law is a confusing term of rather recent vintage and provides no demonstrable improvement in the military, diplomatic, legal, or treaty lexicon. Quite frankly the use of this term is confusing and appears gentrified to allow for discussion in an antiseptic manner about horrifying, bloody topics absent any experience, real or vicarious. The Laws of War consist of two subparts one for combat and the other for belligerent occupation as defined herein. Use of these terms can clarify the chaos attendant to applying both of these branches of law to the world. Such reversion to these older terms may permit the further development absent the intrusion of Human Rights Law into this area of lex specialis.

In the end, I am arguing for the primary application of the Laws of War consisting of LOAC and belligerent occupation to the particular situation these laws were designed for over the past twelve decades. I consider human rights law applicable to other situations during the times of peace and only tangentially applicable during war and belligerent occupation. War is a horrible human endeavor that should not be gentrified to reduce the dreadfulness. Belligerent occupation is also a chaotic time until sufficient control and security have been attained so terms should reflect the particular situation and not be made more palatable by the use of nice sounding names. Belligerent occupation is at best a nearly impossible task unaided by the use

409 of the proliferating term International Humanitarian Law. I strongly urge the use of terms that apply to the particular situation to get the special laws to apply to those particular occurrences.

With the end goal of returning sovereignty to the vanquished and establishing peace, the

International Community could gain a significant long term advantage by reducing if not eliminating these and other yet to be discovered impediments to the ideal belligerent occupation. Having won the war, the second part, belligerent occupation, is the approach to solidify the peace so that the adage the war was won but the peace was lost is not accepted.

Winning the peace can be done by belligerent occupation such as after the Second World War.

Impediments that negate culpability for acts during the late war and reduce security for all should be the first removed by the Occupying Power(s). Impediments stymie the development of control and security as the beginning of the long process leading to the return of sovereignty to the vanquished.

As an advocate for the proposition that belligerent occupation is the way to peace, the impediments to its implementation have been examined and argued in the sense of true advocacy to resolve these. Silence about and denials of impediments to peace generally retard that return of sovereignty with the lasting hope for a stable peace as the ultimate goal. In addressing all of this to the largest possible audience including HOSHOGs, policy makers, politicians, military officers and planners, legal experts, humanitarians, scholars, and fellow humans, I seek to return the vanquished to a situation of peace after a war, belligerent occupation, and a jus post bellum phase. Impediments need resolution to attain that goal of peace.

410

Chapter 8. A Policy Relevant Proposal.

During my military career and in both military and academic schools, I read many books and articles identifying problems in fighting wars, the international law attendant to that fighting, and other issues identification. What I did not find were proposals to deal with these issues especially issues regarding belligerent occupation. What follows is my putative solution, in general detail, to assist one power to develop a cell for belligerent occupation planning and execution then that jus post bellum phase to return the sovereignty to a vanquished country.

The basics of this proposal are that the Department of Defense is responsible for the belligerent occupation phase from planning to execution then turns over management to the Department of State for the jus post bellum phase while providing for security. If the US would not be a participant in the jus post bellum phase the Department of State could be replaced by another entity such as the United Nations, a regional organization, or other entity(ies).

8.1 Setting the stage for a policy relevant proposal.

Having attained a great deal of knowledge about belligerent occupation and jus post bellum, my goal has been to propose a putative solution for the generic post-conflict occupation situation focusing on the United States but with potentially broad benefits for a worldwide audience. Again, using the United States as the model is due to the high likelihood of the US being involved in a future belligerent occupation, the availability of US records, and the general familiarity with the US government and military, especially by the author. Emulation of the US

411 military and the cross pollination of other countries in US training, military schools, and exercises should assist in further spreading these ideas.

I have advocated for a “whole of government” approach but do not want to exclude other sources of contributing people as I now advocate for a “whole of nation” approach. This approach goes beyond military and civilian working directly for the government and would include people from other walks of life. Civilian scholars and other civilian resources outside of the government need to be considered as an important source for the development of any belligerent occupation and follow on jus post bellum phase. Many of the scholars noted in this study could greatly assist in the furthering of the concept of belligerent occupation and the development of the jus post bellum phase. The nation’s universities and think tanks have many talented academics and graduate students that have the background in the academic literature and theory construction to assist practitioners with the development of post-war policy.

Academics, especially those with research and other adaptable experience, could be brought into the government for a period of time, perhaps lengthy, or on contract to provide the political and other social sciences knowledge to the practitioners. Civilian scholar’s effort in this development would be helpful especially as these apply to area studies, cultural concerns, language skills, and the myriad other subjects that need to go into a belligerent occupation plan.

RECOMMENDATION: Organize belligerent occupation planning inside the Department of

Defense but coordinate a “whole of government” approach and seek input from others under a “whole of nation” methodology.

412

This cooperation draws upon ideas generated long ago by the Founding Fathers that this nation needs to draw upon the talents of the best and brightest to be employed in its service. During the arguments for the ratification of the Constitution and union of the States, we are informed by the Federalist Papers entitled “Relations with Foreign Powers” that

[o]ur government can collect and avail itself of the talents and experience of the

ablest [people], in whatever part of the Union they may be found. It can move

on uniform principles of policy. It can harmonize, assimilate, and protect the

several parts and members, and extend the benefits of its foresight and

precautions to each.

It is wise to seek knowledge from many sources to contribute to the end phases of war both belligerent occupation and jus post bellum to build plans based on the credible information obtained.

However, prominent scholars such as Michael Desch indicate that “there is a growing concern that the gap between scholars and policymakers has widened in recent years, particularly in national security affairs.” A 2014 survey of policymakers indicates that there is a perception by

85% of the respondents that theory/policy gap is persisting or growing in size. The authors,

Desch and Paul Avery, report that “there has been a recurrent interest among policymakers since the Second World War in drawing upon academic social science expertise in support of more effective national security policymaking.” Interestingly this survey discovered and reports “that policymakers do regularly follow academic social science research and scholarship on national security affairs hoping to draw upon its substantive expertise.” Concomitantly, “…a

413 majority also recognize that the state-of-the-art approaches of academic social science are precisely those approaches that policy makers find least helpful. A related poll of senior national-security decision-makers confirmed that, for the most part, academic social science is not giving them what they want.” Also noted was that there seems to be some lingering anti- military sentiment within academia. Despite these apparent problems, the contributions, even indirectly, from the academic community and other civilians would provide a great deal of otherwise unattainable knowledge to the development of belligerent occupation, jus post bellum, and the peace these phases seeks to foster. Bridging this academic-practitioner gap would greatly assist in the complete development of belligerent occupation planning and the follow on jus post bellum phase in returning sovereignty to the vanquished. Academics might think of this effort as a “pro-peace effort” to assist the development of a belligerent occupation to lead to the return of sovereignty after a jus post bellum phase.

Planning is an indicator of success in post-war belligerent occupation. Civilian academics and other experts input should also be obtained to ensure the widest possible assistance to plan for the ultimate goal of returning sovereignty to a vanquished country in a just peace.

8.2 Lack of planning for belligerent occupations.

The United States has not planned for or calculated well regarding recent post-conflict belligerent occupations. It appears that each time the US enters into an occupation situation, it must relearn from its own past. Lesson learned in prior wars and occupations are studied for basic understanding of that general situation with some transference learning to a later situation. On that note there is a positive step in the collection of “lessons learned” by the

414

Center for Army Lessons Learned and the Center for Law and Military Operations along with the publication of operational law handbooks as some of these directly address occupation law.

Yet there remains a history of downplaying, ignoring, or partially planning for an occupation so essentially the US military appears to start from scratch in each occupation. A brief review of that history follows.

After several experiences during the post Spanish-American War era, the US seemed only interested in fighting the Great War. Indeed, in the First World War, the United States

“…completely disregarded or overlooked the possibility of postwar occupation in Germany.”

Such an example has been the general position of the US except during the interwar years

(1919-1941) when belligerent occupation drew some consideration primarily from the military services, more specifically, the US Army.

The hard won successes produced in the post-Second World War era in Germany and Japan have been seemingly lost in time. More recently the effort in Iraq to try to put together a “late in the game” occupation was misplaced as this attempt drew upon the civilian administrator model, perhaps inappropriately, before securing the country. Simply put the lessons of the belligerent occupations in the post-World War Two era were unlearned or forgotten or discarded. The differences in the world between then and now were not appreciated in Iraq along with the divergence in cultures and the impact of the human rights revolution that were seemingly discounted.

415

RECOMMENDATION: The Department of Defense should be the primary agency during the belligerent occupation phase. The Department of State should be the primary agency in the jus post bellum or “reconstruction” phase with military forces available to enforce the peace.

Now I put forward a policy relevant concept of how this lack of planning and other preparation for an occupation might be overcome however this will not be a panchreston but rather an actionable policy prescriptive plan. By policy prescriptive, I mean that I will propose and

“…evaluate…future public polic[y]” options regarding the development of belligerent occupation law as that international law is currently promulgated by treaty and practice. This is not a search for some new treaty or treaties but a policy prescription for deliberation and action under current treaties. Implementation of this proposal or something akin to it could happen soon.

Throughout this work, there has been evidence produced that the Unites States, after the successes of the post-Second World War, either has not accomplished planning or not accomplished suitable planning and then placed insufficient effort and, perhaps, resources into post-conflict belligerent occupation. We have seen the lack of planning and the misapplied implementation efforts often with good faith efforts by some of these American viceroys.

Examples include the statements of then Commissioner William Howard Taft in the Philippines regarding holding that territory for the benefit of the Filipinos despite the stated “U.S. policy in the Philippines differed from Cuba in the McKinley administration’s decision to annex the islands.” More recently the retort of Ambassador Bremer to a senior UN official that he was the Iraqi Government for now is indicative of the implementation efforts under tremendous

416 pressure. The repeated mistake regarding the lack of or inadequate belligerent occupation planning compounded by the inability to comprehend the language, culture, and other important local issues has rendered American efforts at belligerent occupation to be mixed overall with some successes but more dismal outcomes of late. Bear in mind that once enemy territory is taken an occupation begins. Absent this legal requirement under The Hague and

Geneva Conventions, solid military doctrine requires a secure rear area. Security and control concerns have further complicated these efforts to establish a belligerent occupation.

Is it possible to overcome these seemingly consistent mistakes? Can the United States develop a post-conflict belligerent occupation plan prior to needing it and then implement this strategy?

I believe the answer is a qualified “yes.” To get to the qualified yes, we must address some of the problems identified over the years of American occupations. Firstly, although America has placed men and women of great talents into the important positions in dealing with occupations the results are less than effective. Two men who would be President have served in these roles and one of them, William Howard Taft, turned down a seat on the Supreme

Court, twice, in order to complete his work in the Philippines. It is not for the lack of talent that there have been serious issues with belligerent occupations by the United States. Others have not been so successful so choosing the leader is crucial and is further addressed below.

This belligerent occupation must be tailored to the situation on the ground and the specifics of the vanquished country that are planned in advance with some field testing in war games or other operational exercises. Planning must be made prior to the implementation of any belligerent occupation. The use of such a planning mechanism before the implementation in

417

Germany, Japan, and other countries after the Second World War proved that prior planning is important and necessary. No belligerent occupation can be planned “on the fly” when victory seems imminent or after that victory is achieved. Planning for an occupation should begin at the latest soon after the commencement of hostilities. I will argue that occupation planning should be part of the military planning from the start. Moreover, I will argue that such prior planning must be based on the vanquished country in terms of specific factors that should help to bring about the belligerent occupation with a goal of the returning sovereignty to the rehabilitated vanquished state. Implementation must be a flexible response based on the situation found on the ground prior to beginning the belligerent occupation.

8.3 The Department of Defense: Internal neglect but external grasp for belligerent occupation primacy?

The Department of Defense (DoD) is primarily a war fighter with most DoD civilians and personnel in uniform believing their job is to fight and win the nation’s wars. Such a view, while correct, is only partial in that it ends with some sort of military victory in those wars. Yet, as we have seen that keeping “a win as a win” involves at the least the immediate post-conflict phase of operations by the military or, more ideally, a solid post-conflict belligerent occupation plan.

The US military must remain engaged in the belligerent occupation as planning for that phase must be anticipated and calculated for prior to and during the active belligerency. The US military, writ large, needs to plan, test, and train for that eventuality and, more importantly, needs to accept and embrace belligerent occupation as part of their mission set.

418

To remedy this internal neglect, I suggest the Department of Defense form a standing Post-

Conflict Cell (PCC) in the Strategic Plans and Policy Directorate known as J5 (herein J5) at the

Joint Staff level. This cell would deal with occupation and other related matters in the post– conflict stages including planning for and execution of all belligerent and other occupation operations. A cell is defined as “a subordinate organization formed around a specific process, capability, or activity within a designated larger organization of a joint force commander’s headquarters.” Cells may be a short term project (typically called a tiger team) or of more permanent length (such as Project Checkmate). This permanent PCC would also be responsible for coordination in the Interagency Working Group with any agency having some input into the security, governance, health, and economic issues that might be anticipated in the post-conflict stages of military operations.

Why locate this PCC in the Strategic Plans and Policy Directorate or J5? As previously stated both the U.S. and UK forces, usually the troop-providing States for major military operations, employ planning staffs and these staff positions are often emulated by other military forces around the globe, so as such these other nations will look to them for guidance especially from the US. In the US military that planning staff is found in the J5 Directorate dealing with planning of all dimensions of operations and is called the Strategic Planning and Policy Directorate of the

Joint Staff. Stated differently, this directorate does the long-range planning and is well suited for this type of post-conflict task. It prepares strategies, plans, and polices as well as reviews campaign, concept, and operation plans, and the associated Commander’s Estimate of the

Situation generated by the combatant commands. As their website states “[t]o remain effective, we must critically examine future trends and provide a broad range of responsive

419 assessments and recommendations to the Chairman of the Joint Chiefs of Staff.” This seems to encapsulate the forward looking efforts required to develop and sustain the putative Post-

Conflict Cell. See Figure 8-1 below for the organizational structure of the Joint Staff.

Figure 8-1. US Joint Staff Organizational Chart.

J5 is the logical directorate to handle this topic based on the mission statement and the experience resident in that part of the Joint Staff. The mission statement of the Joint Staff J5 is to

420 proposes strategies, plans, and policy recommendations to the CJCS [Chairman, Joint Chiefs of

Staff] to support his provision of "best military advice" across the full spectrum of national security concerns to the President and other national leaders and to ensure those recommendations are informed by a larger strategic context coordinated with interagency and alliance partners, account for the view and requirements of the combatant commanders, and assess risk in executing the National Military Strategy.

J5, in fulfilling its mission, is responsible for the larger strategic context and that needs to and must include the end phases of war and belligerent occupation. U.S. strategy must embrace the concept of belligerent occupation as it did during the interwar years (1919-1941) with similar enthusiasm and sharing of talents from the senior service schools as well as field units.

Acceptance of this mission with some enthusiasm should greatly assist the development of belligerent occupation strategy well before it is needed for implementation.

By placing an occupation cell in J5, the planners there will have an awareness of the policy, planning, and proposals of those around them so that belligerent occupation planning should be included in all Operation Plans [OPlans], proposals, and policy guidance. As the planning proceeds, this important matter would receive the consideration due it from other planners and policymakers in the process of developing the national military strategy. Assuming this cooperation then the belligerent occupation planning should be well conceived and tested by war games and exercises prior to implementation. Just this effort should provide a better starting point for any putative use of any of the “to be” established occupation plans.

421

J5 closely coordinates with J3, the Operations Directorate, in war planning to assist them with future plans that should ideally include occupation plans. Clearly other Joint Staff directorates will have to coordinate with the PCC. Undoubtedly, coordination with the Secretariat, the

Services and the stand alone agencies within DoD must be made and any issues resolved.

Intelligence queries, logistics concerns, and a myriad of other problems are sure to appear so a great deal of coordination both planning and on the implementation sides will be needed within the Pentagon.

Yet this PCC must also coordinate outside of the Pentagon but within the militaries. Combatant

Commanders (COCOMs) must provide OPlans that include details of how a belligerent occupation might occur along with theater specific information to aid the review of these occupation plans by this Cell. All questions about these belligerent occupation annexes will need to be coordinated with and between the Combatant Commands. Such regular consultations will be required to obtain the best workable occupation plan. Planners and those who will execute the belligerent occupation plan must be in synchronization to the extent possible.

Staffing at the cell should ideally include both military personnel and civilian employees. The military personnel can provide experiences from the field and be forward looking for the application of the concept called belligerent occupation in their “real world.” Civilian employees will provide the long term stability and expertise in this cell with the military assigned taking the learning back to the field and providing a cadre of potential occupation aware leaders.

However, this cell need not be large but only sufficient to the tasks regarding post-conflict

422 belligerent occupation. It must be fully staffed and funded, and composed of staff members from the Joint Staff and, perhaps, the Defense Secretariat thereby ensuring good consultation within the Pentagon. Collaboration should be also occur across the cabinet level departments either separately or as part of the Interagency Working Group. Intelligence sharing should be extensively undertaken to preclude any surprises and have solid information to begin and complete both the planning and execution of the belligerent occupation and jus post bellum phases.

J5 should have a small standing Post-Conflict Cell consisting of, perhaps, between ten and thirty personnel to work exclusively on the formulation of occupation policy, the occupation aspects of plans generated, and those already placed “on the shelf” by the rest of that Directorate and the Combatant Commands. I would argue for the review of every OPlan with some thought being placed on the end of the combat operations to include belligerent occupation and transference to another entity to formally end the DoD phase of any such occupation plan. How to accomplish this “hand off” to a civilian entity must likewise be considered, planned, and coordinated within and outside the Defense Department and possibly with allies and any putative outside entity such as the UN or a regional organization.

Certainly this is a monumental task but a manageable one especially with assistance from other personnel. Such augmentation would be available from the Reserve Component assigned to J5 and other parts of the Joint Staff. Expansion during a crisis might come from the National

Guard, the Professional Military Schools and the resident students as well as professors and students at the Service Academies, especially during the summer. Some of these entities may

423 provide pre-crises assistance as needed especially early on in the development of the planning process and actual planning. Establishing a Post-Conflict Cell to build belligerent occupation plans and review the COCOM’s plans then coordinate these with the other Cabinet level agencies to obtain the crucial “whole of government” input. Only then can we proceed to the

“whole of nation” effort.

This will not be easy due to organizational inertia and other resistance. Surely the suggestion of forming an occupation planning cell within the Department of Defense will stir many cabinet level departments including some elements within DoD itself to fight off any consideration of such a proposal on this topic. The Departments of State, Commerce, and Treasury will certainly have roles to play in any belligerent occupation but may be unenthusiastic about engaging in a

DoD led post-conflict occupation while other issues consume their attention. Other executive branch departments will be similarly disinclined to accept the DoD lead in this area. DoD itself has been loath to accept the mission regarding belligerent occupation let alone any ideas about the creation of something akin to a Proconsul to lead the effort.

Further complicating the situation is the Department of State has developed something contemplating an “occupation planning cell” called the Bureau of Conflict and Stabilization

Operations, herein CSO. Their mission statement includes the following

Not every conflict warrants U.S. intervention. Yet there are instances

when instability threatens U.S. national security or interests. The gains

of U.S. military and counterterrorism operations can evaporate when

not paired with effective stabilization. Early warning and timely

diplomatic engagement can obviate the need for later kinetic action.

424

When conflict threatens the United States or our allies, imperils

innocent civilians, enables political violence and instability, or

emboldens rival actors, CSO provides the expertise needed to respond.

Although CSO has this stabilization as one of four missions it does not appear to see the applicability of post-conflict planning as they perceive their mission as more preventive rather than rehabilitative. While “early warning and timely diplomatic engagement” is certainly the goal, it is not always possible or attainable. “Effective stabilization” is as close to post-conflict belligerent occupation as the mission statement goes yet is woefully short of the realities of planning and executing such an occupation. Stability is short of the level of control requisite to establish the security that would permit a belligerent occupation. Security, as we deliberated in

Chapter 6, is an imperative for any occupation to begin. CSO’s mission statement while admirable in concept and properly directed at preventive action, has not worked well in the

“real world” to date. Recall that the Department of State could not assume responsibility for the occupation in Germany until nearly six years after the war had ended. Furthermore, the military filled upwards of fifty percent of the civilian positions at the US Embassy in Baghdad.

With either way of viewing this mission; push back, if not vehement attack, within the

Interagency Working Group should be expected and cooperation attained only if forced upon the Department of State from higher up in the chain of command. Internecine verbal “warfare” may decide the role for the Department of Defense in planning and executing any future belligerent occupation.

425

At the macro-level, another possible point of resistance is the nature of democracies being reluctant to allow the military to govern as this is a threat to civilian control of the military and the possibility of some sort of coup as occurred in Roman times when Julius Caesar crossed the Rubicon with his forces or in England when Parliament struggled to control the militias enacting the Militia Ordinance (1642) prior to the English Civil War. Questions regarding the appropriate role of the military in democracy require some answers because “…liberalism does not understand and is hostile to military institutions and the military function.” Throughout

American history “[c]ivilian and military leaders have been unwilling to assign the army a lead role in governance operations owing to such reservations.” This can be seen in the

Constitution in Article 1, Section 8, Clause 12 that grants Congress the power “… [t]o raise and support Armies, but no Appropriation of Money shall be for a longer Term than two Years….”

This compromise balanced the need for an army with the fears of others that “…a standing army was one of the most dangerous threats to liberty.” Despite this and other fears regarding an army, the need for an army was seen early on and as civilians have kept control of the military there have been no coup attempts in the United States. Current Department of

Defense budgets are passed on an annual basis to further limit any such fears of the military.

Despite the foregoing, the US military is trusted by 80% of the US population to act in the best interests of the public so that fear may be dissipating to the point where belligerent occupation is not viewed as negatively by the American population. Possibly a successful belligerent occupation might demonstrate this trust rather emphatically but reluctance to place the “military” into military governance can be expected to continue in America.

426

Assuming arguendo that the Department of Defense accepts this responsibility for belligerent occupation planning and execution, then how should it proceed? Arguably, the first task is for

DoD to actually accept and embrace this mission not just acquiesce to direction from the

Commander-in-Chief or others in the executive branch or the legislative branch or some combination of both branches. Such a change will take strong and determined leadership. The specifics of military planning for conflict and post-conflict are within the purview of DoD following presidential guidance since wars are not over when a surrender or another end to a war occurs. No matter how future wars end, there is a peace to be won so there is the concomitant responsibility for a belligerent occupation such that the end of a shooting war is not the end of DoD’s responsibility for national security. The peace must be ensured as part of the overall national strategy and DoD has a big part to play, albeit it may not be the primary part as it was during the conflict but a large role nonetheless. This may be problematic as has been seen in American history in that the military having won the war now wants to remain in charge of most or all aspects of the peace or alternatively withdraw quickly, often times too quickly. Post-conflict, DoD should be the primary agency for disarming enemy combatants and providing control to establish security and the military mindset is used to getting things done while it is also the only “force” available in case of guerilla war or an insurgency or other lesser outbreaks of violence.

To have DoD accept this role in both the planning of and implementing a belligerent occupation, authority for this mission must be incorporated into Title 10 of the United States

Code specifically to address this neglected topic. Title 10 deals with Armed Forces and all matters related to these forces. Once promulgated as a responsibility, the proper authority

427 must be given so that there is full staffing and funding for some sort of occupation planning cell.

Accordingly, specific tasks and responsibilities must be part of any Title 10 promulgation. A determination of which organization or organizations will be tasked and how they will be held accountable for their responsibilities must be established, again preferably by the Title 10 law.

Cooperation among the interagency groups should likewise be addressed and stressed in the legislation. A final suggestion for this legislation is the level of command and specifically that person to be placed in command should be a senior one or new two star general or flag officer.

Preference should be given to the newly minted two star General or Admiral as they will be involved at the “big” meeting with the four star folks, even if as a backbencher. Hearing the input at that level with possible participation by the cell commander will enable them to be prepared for contingencies and other operations that will likely involve their cell and the work produced there for “the field.” Similarly, their rank will provide the correct amount of

“horsepower” to the cell so that others in the Joint Staff as well as others in DoD and elsewhere in the interagency process will have to consider the formulations coming out of the putative post-conflict cell in the Joint Staff. Title 50 of the US Code dealing with war and national defense must likewise be supplemented to cover the planning and execution of both the belligerent occupation and jus post bellum phases. Producing such a bill for inclusion in Titles

10 and 50 will entail careful consideration during the drafting both in the legislative branch and within the relevant executive departments but primarily the National Security Council, DoD, and the Department of State.

Aside from this incorporation into Title 10, a staff must be available to the leadership and selecting the personnel for this Post-Conflict Cell could be difficult. First, many officers will likely

428 be reluctant to volunteer for such a new entity not knowing how this assignment might impact their promotion opportunities and career development. Planning cells and other staff work are not viewed highly by flying and fighting communities in the military yet their skills will definitely be needed to formulate a more complete belligerent occupation plan. A solid two star leader may cure some of that hesitation as well as that leader being able to assist with the promotion opportunities of the staff. Secondly, many combat experienced personnel do not want to be assigned to the Pentagon but would rather stay doing what they have been trained for, that is remaining in the field further honing their combat skills. Such a dilemma could be addressed by a two year assignment to the cell with a guaranteed return to the field. Such a “short” rotation may actually be sold as a time to refit and recuperate. Third, any adverse impact on career progression must be negated; that is, this type of assignment must be seen as part of the regular career path and this may take some time, perhaps three or four rotations of troops into this planning cell. Career progression might be enhanced if this cell is seen as an assignment that makes the staff promotable. Simply put, if a staff member of this particular cell views their career in their field of expertise as enhanced by participating in this cell, the selection process to serve in the cell will allow for the best to be chosen or they will volunteer for an assignment in the cell. Other staff issues may arise but due to the nature of the work most of these staff concerns can be overcome.

Within the Department of Defense there may be three competing entities wanting to control this putative post-conflict planning cell; the Office of the Secretary of Defense (OSD)

Secretariat, the Joint Staff and the Services. Identifying these, OSD “…is responsible for policy development, planning, resource management and program evaluation. OSD includes the

429 offices of top civilian defense decision-makers with regard to personnel, weapons acquisition, research, intelligence and fiscal policy, as well as offices the Secretary establishes to assist in carrying out assigned responsibilities.” The Joint Staff is the staff under the Chairman of the

Joint Chiefs of Staff as provided for in Title 10, United States Code, Section 155. The Joint Staff assists the Chairman of the Joint Chiefs of Staff and, subject to the authority, direction, and control of the Chairman of the Joint Chiefs of Staff and the other members of the Joint Chiefs of

Staff in carrying out their responsibilities.” The US Military Services are charged by law “… to organize, train, equip, and provide forces … to fulfill specific roles and for administering and supporting these forces.”

Likely the Secretariat will want all or at least some control over this cell even if it is only informational control with regular briefings. Probably, the Secretariat will want to send this project and the actual working of the effort to the Joint Staff. Yet, this is not just a Joint Staff obligation but also a Service responsibility. The Services must socialize this concept as outlined herein as belligerent occupation into the service schools, academies, and military training, writ large. The Joint Staff must be the central coordinator and proponent of the idea that belligerent and other occupations must be recognized, planned for, and executed by military forces. Clearly in the post-conflict belligerent occupation there is room for civilian cabinet level participation but only after security has been established, the enemy disarmed prior to their POW status, and some normalcy returned to the occupied entity.

430

8.4 A brave new world for belligerent occupation?

Sufficient expertise must be developed and coordinated as the world has changed since the last successful American belligerent occupations that ended about seventy years ago. Human rights and significant cultural changes must be incorporated into post-conflict belligerent occupation planning and execution—not a small task. Proper treaty understanding and legal expertise will be just as relevant as the more traditional military skills of combat, logistics and so forth in developing, socializing, and executing this belligerent occupation plan. It is unlikely that DoD will have all of these relevant skills so there must be “buy in” from other executive agencies and, again, this is best directed by the Title 10 law with appropriate reference for the other

Departments in their section of the US Code. General language already exists in Title 10 that allows appointment of “[o]ther Federal officials the [Secretary of Defense or Defense] Council considers appropriate” to assist DoD in a particular mission or project. Simply stated, “other

Federal Officials” can be seconded to the Department of Defense, if needed. However, these items are usually worked out in the Interagency Working Group without the use of this statutory prerogative thus allowing the individual to remain in their normal departmental job and coordinating either directly or through the interagency process.

Shifting to the U.K., under the British Staff System this occupation planning could occur in the

War Plans section. Similar concerns would need to be addressed as well as others more particular to the British Militaries. Coordination between allies will take effort and constant consultation both in in the planning and in the field during execution. Coalition warfare increases the overall effort at both coordination and execution geometrically, further

431 complicating an already chaotic belligerent occupation situation so separate geographic sectors of responsibility may be helpful in alleviating some of this increase as coordination remains key.

Both militaries have planners at all three levels of war, strategic, operational, and tactical, to develop plans for the overall war, the theater level and the local level. Based upon these functions, the strategic planners are best postured to provide the occupation planning as they have the “big picture.” Strategic planning must consider and provide for the occupation phase post-conflict and propose this as part of the total war plan for each circumstance. Directly stated each war plan should have an occupation plan in the annexes as a minimum. Thus such planning ought to be the next logical step despite the inclination and tendencies by governments and their militaries to either gloss over the occupation phase or not plan for any occupation. Such planning may assist in decision made in the formulation of the particular war plan and the actual conduct of the war, if that occurs. Specifically, one example, with a modicum of post-conflict planning available to target selectors, certain targets may be withheld from the targeting list and not attacked to aid in the occupation phase but these targets would be unknown or unknowable by the target selectors without such prior occupation planning as a part of the overall war plan. Even this limited example indicates a change in the manner of how targeting must be completed. Any change like this must be taught at the service and joint schools and inculcated into the standard operating procedures for the various groups involved in targeting beyond the target folder folks. Impacts can be expected along the entire targeting cycle based upon these changes that should prove beneficial in the long run but only after much consternation and gnashing of teeth.

432

8.5 Practicalities from planning through execution.

RECOMMENDATION: Develop a belligerent occupation plan considering many factors!

As regards any planning, pre-conflict occupation development will provide a starting point for the post-conflict phase even if some of the assumptions made to develop the plan are not correct or lack detail. What is important is the thought given to country specific issues in the political, economic, religious, and cultural arenas. By example, any post-conflict plan must include a time period to develop the political system, especially in a debellatio situation, as this

“…will take many years [conceivably] generations [merely] …to train government officials.”

The consideration regarding the specifics of a vanquished nation, the government, the people, and so much more are important to the success of any belligerent occupation.

Historically, the United States had been involved in many belligerent occupations since 1848 most of these were belligerent occupations and most labelled as failures by Edelstein.

Studying the success and failure in belligerent occupations in Chapter 2 has generated some observations regarding these efforts. Coupled with the planning model for belligerent occupation as presented in Chapter 3 the development of a successful undertaking is increased leading to the ideal example described in Chapter 6. Impediments listed in chapter 7 should be reviewed, adapted to, and overcome.

433

Table 8-1. Compilation of Planning Indicators. *

Occupation planning Liberated or defeated Functioning Homogeneity of government at war’s occupied population end Length of war prior Size of occupied Population of Number of to occupation country (sq. miles) occupied country occupation troops (months) (US) Months of Occupied need help External threat(s) Credible guarantee of occupation ending occupation (anticipated) (exit criteria) Occupation strategy Independent, reliable Occupied have Occupied not a threat to be employed government in place security when to others when sovereignty returned sovereignty returned * Klein indicators are in bold type.

First, and certainly, the most significant observation is that having a well-considered post-war plan is indicative of success during the belligerent occupation and jus post bellum phases.

When the United States has not developed some post-war plan the results have been a failure or mixed results on the Edelstein scale. When World War Two was just beginning the planning for the post-war occupation began but in comparison was given short shrift during the lead up to Operation Iraqi Freedom as observed in Chapter 2. In the future any such plan will need to be flexible to take into account the changing circumstances on the ground as not every detail will be foreseen and variations in the planning assumptions will occur. Nevertheless a plan for belligerent occupation and beyond is absolutely required coupled with sufficient brain power while leavened with military experience. Many agencies and people must contribute to any such plan to assist in the construction and implementation.

The observation is plan, plan, plan yet the decision to plan must be made at a high level of government and properly supported with in the Executive branch. Further the additional nine

434 factors developed and outlined in Chapter 3 then presented in Table 3-2 should be considered in the planning of any belligerent occupation along with the Edelstein indicators. See, Table 8-1.

More specifically, there must be a coordinated plan that the planners and their agencies can live up to at the end of a war. Agency pride or power must not stand in the way of actual commitment to the coordinated belligerent occupation plan. Military forces may not be the best answer to governance once control and security have been attained. The nature of any plan must be towards state building as opposed to nation building as discussed in Chapters 3 and 6, at least initially.

The next consideration is how the victors have viewed themselves in the binary of conquerors or liberators, when the victorious saw themselves as conquerors they performed the belligerent occupation in that manner and were successful. This outcome may be due to the aforementioned planning for that occupation rather than the view of themselves. Clearly, the victors in the Second World War saw themselves as conquerors of Nazi Germany and Imperial

Japan but the US Forces in Iraq were told they would be greeted as liberators and that was true for some segments of the Iraqi population but certainly not by all especially the Sunni and Shi’a militias. Indeed, “[a]bout 95 percent of the resistance was made up of the Iraqi Sunnis. Long- standing links to foreign terrorists and Islamic groups were also reenergized.” With the Sunnis being the upper echelon of the Iraqi military, possessing military skillsets, and having or knowing how to obtain weapons this was a situation waiting to explode. Explode it did in 2006 with an insurgency that was countered by “the Surge.” Prior to 2006 and after the defeat at al-

Fallujah, the Sunnis conducted low level attacks with improvised explosive devises, suicide bombings, and a good deal of sniping. Conceivably, the Occupying Power needs not be a

435 presumed a liberator but more akin to a benign conqueror or, at least, act more like one in the beginning of the belligerent occupation.

The planners of the belligerent occupation must analyze the composition of the vanquished population, the observation is that any heterogeneous population may be more difficult to control and secure in the occupation phase and more divisive in the jus post bellum phase.

Bearing in mind that the population of both Germany and Japan were homogeneous sharing similar cultural backgrounds, language, and societies may have enabled the occupation to be successful. Iraq on the other hand was famously diverse with three major population divides those being Sunni, Shi’a, and Kurds although there are other less populace groups like the

Turkoman and Christians. Subjugation of the Shi’a, Kurds, and the others by the minority

Sunnis caused great conflict during the belligerent occupation and later times. As the Iraqi

Army was dominated by the Sunnis these elements led the insurgency that has begun to stall lately but has taken 15 years to reach that point. During the first Iraqi election in January 2005 the death and disfigurement threats against those who chose to vote was heightened but did not scare off over 12,000,000 voters. While developing a constitution in their version of a constitutional convention these differences again came to light and were magnified. These differences required a section of the document eventually developed to protect the rights of these majority Shi’a along with the less populace Kurds and others. This sort of division, absent in both Germany and Japan, can be ascribed to the heterogeneity of Iraqi population. In the tumult of belligerent occupation such divisiveness creates discontentment that colors all other efforts as every event is filtered through that prism. Careful consideration of the vanquished

436 population’s homogenous or heterogeneous character must be made to better prepare for the belligerent occupation.

War weariness or the length of the war holds some observations based simply upon the length of combat. The longer the war the more war weariness sets in especially if both criteria are met, that is, the homeland is under some sort of continual bombardment usually by air and all sorts of supplies needed for the human condition are not available. A short war does not cause war weariness producing something akin to the attitude that having survived the short war any belligerent occupation could likewise be weathered. Germany fought for almost six years while

Japan fought against the Allies for nearly four years causing wide spread deprivations in the

Axis countries compounded by many air raids. Both Germany and Japan knew they were defeated but in Iraq the defeat was not acknowledged. Thus a guerilla war struck up shortly after the end of the war. Sunni Iraqis did not think they were defeated as they had simply

“melted away” into the civilian population.

Some scrutiny must be given to factor that addresses the size of a country undergoing belligerent occupation. Germany was divided into four more manageable sectors with the US sector being about 137,000 square miles. Japan was nearly 380,000 square miles but Iraq was just over 437,000 square miles or about the size of Japan and half of the American sector of

Germany. With such a large country mainly with land borders a large occupation force should have been anticipated but was not acted upon. Sheer size especially with many land borders can impact the belligerent occupation by overwhelming the attempts of the victors to establish control and security.

437

The physical size of the vanquished state leads to the next factor, the number of occupation troops needs to be high in ratio to the number of inhabitants. In Germany that ratio was almost

10 occupation troops per square mile while in Japan it was about 12 troops per square mile but in Iraq that number was only 2 troops per square mile. With formal surrenders from Germany and Japan the requisite control and security was attained in a short time. With heavily urbanized cities in Iraq that were nominally under control and secure there were also vast areas of the country where control was not established and security was nonexistent. Low troop numbers along with vast areas with little to no control or security invited the guerilla war then the insurgency that took place. Sizing the occupation force is a key factor in preparing the vanquished to regain their sovereignty.

Decisions will need to be made about the proper level of troops in a belligerent occupation and the jus post bellum phases in the future. Like presence patrols by law enforcement to cut crime, the presence of troops visible to the vanquished population serves as a deterrent against crime, guerilla war, and insurgency. Using troops to establish control and security then to maintain these once recognized it is important so having enough forces for continuity is an imperative.

Force structure during the belligerent occupation must be decided upon before the actual need to deploy these forces and as suggested the overlap during the RIP/TOA should be minimal probably about one month or less.

Successful belligerent occupations are usually long efforts! Yet length alone does not guarantee success as illustrated by some American occupations in the Caribbean prior to the

Second World War. Although these were not belligerent occupations even that type of occupation was not successful in Cuba. Belligerent occupations after the Second World War

438 were long and ultimately successful. The difference was that a good deal of academic thought and military planning and testing went into those belligerent occupations prior to World War

Two. Thus the belligerent occupations in the post-Second World War were well planned and reasonably well executed. Test cases in North Africa, Sicily, Italy, and other locales provided lessons to be learned for the larger belligerent occupations that followed in Germany and

Japan. These belligerent occupations were not expected to last more than two years but due to the conditions on the ground much more effort was needed to address governmental, human, social, and economic problems encountered. Long efforts at belligerent occupation will tax the

Occupying Power a great deal with respect to treasure, leadership by the proconsul, and time investments. Long belligerent occupations will also tax the occupied as previously elaborated so the balance between the length the Occupying Power needs to return sovereignty and what the occupied can bear must be considered and implemented. The months of occupation in

Germany and Japan respectively 128 and 81 months dwarf those 12 months in occupied Iraq.

Time investment must be part of the overall belligerent occupation plan as the success rate indicates success take a good deal of that commodity. Plans must be made for the long haul as this will likely be the scenario for a successful belligerent occupation. Only then can the victor begin the process to rebuild and return the sovereignty to the vanquished country as described in Chapter 5.

Likewise it is observed that if the occupied are in need of help with the basics of the human condition to having some government then these belligerent occupations are more often successful. As Edelstein points out if there is some external threat from another nation or group of nations those belligerent occupations tend to be successful. The type of occupation strategy

439 planned or pursued by the Occupying Power matters in that those planned in the post-Second

World War era all began as the coercive type that would employ “...the use or threatened use of force to defeat any elements of the population that resist or threaten to resist the occupation.” A coercive approach was taken after World War Two but a strategy of inducement and accommodation was the approach in Iraq. The latter approach might be working some 16 years later but success is not assured. Obtaining control and security in the belligerent occupation is another key factor along with the threat or use of military force against any guerilla war or insurgency. The vanquished need to become self-sufficient including their own defense but they cannot be allowed to present a threat to their neighbors. Insuring the vanquished can provide for their defense is a balance within the occupation plan so as not to be seen as re-militarizing. This must be a stair stepped approach in rebuilding an army, border protection, or both.

Much of this belligerent occupation plan must be directed at the establishment of an independent and reliable government. As indicate previously this must begin early on during the belligerent occupation as this may likely take the longest time to deliver. The vanquished have an opportunity to get this government established while under belligerent occupation and has a benefit in that case. Ending the belligerent occupation must be based on the vanquished meeting goals and not based on a calendar.

By applying the compilation of factors contained in Section 3.2 and listed in Table 3-3 the likelihood of a successful belligerent occupation is increased. This opportunity for a successful belligerent occupation also increases the robustness of the jus post bellum phase. The

440 significance of this means that the Laws of War can gradually be turned over to the Laws of

Peace as depicted in Figure 7.1.

Other political considerations will need to be worked out between the Departments of Defense and State in the Inter-Agency Working Groups to aid these military planners in dealing with the political issues attendant to being an Occupying Power. Likewise, economic issues are sure to occur in a post-conflict belligerent occupation and should be part of the planning process, again, with significant input from other Cabinet–level entities and worked through the Inter-

Agency process. Specifically, if food stuffs are sent to the vanquished and now occupied State these must be culturally and even religiously appropriate. Questions about how to send these food stuffs will present significant dilemmas and require country specific details and multiple options for solutions. These limited examples demonstrates the level of planning and development of those plans that require consideration prior to and during any conflict where occupation may be the end result of victory or something short of that ideal victorious condition where guerillas or insurgents further complicate the occupation situation. Such an effort to support the ideal occupation will not be easy for the American military since US Forces tend to win by acting like a fire battalion fighting a fire; there is a rush to get there, the place gets flooded, the fire is out so the fire battalion returns to the firehouse. Approaching the ideal or any belligerent occupation short of the ideal in this manner will not work and perhaps might even re-stoke the conflagration rather than establish peace.

Certainly some will query why should the Department of Defense be the lead agency for this plan? Simply stated this is where war plans are made including those plans for the aftermath of

441 that conflict. Any occupation requires some unity of command and this is a clear indication the military is the first national entity that understands the nature of war including the aftermath and has sufficient forces to lead the establishment of security, and possesses many of the skill sets needed to manage the immensity of any future belligerent occupation. With a definitive chain of command combined with the leadership skills over vast resources, geographical areas, and people, DoD has the ability to maintain the vigilance that will be required to manage such a vast undertaking as a belligerent occupation. The DoD is large enough to be successful as was demonstrated in both German and Japan when there were two separate departments War and

Navy that were engaged in these occupation efforts. Recall that civilians did not take over either of these occupations until much later in the occupation when there was no chance of guerilla warfare or an insurgency, the economies were returning to the point of self- sustainability, and physical reconstruction was well underway.

Who should lead this effort? I proposed in Chapter 6 the creation of a Proconsul to oversee the implementation of the peace agreement and the functioning of the belligerent occupation. Due to the complexity of any occupation situation, the command of troops in security operations, and the need for unity of command, I strongly suggest this Proconsul be a senior military officer. Having previously addressed the complexity of the belligerent occupation suffice it to say that this situation is complex and potentially reversible to fighting of some sort whether that is war, guerilla war, insurgency, or some combination of these. As to command of troops, few if any, US government officials have commanded or led large organizations like those commanded by senior US military officers in the ranks of General or Admiral (O-10) or

Lieutenant General or Vice Admiral (O-9). These senior officers already have an established

442 chain of command and the requisite leadership needed to operate a belligerent occupation can be found extant in the military at all levels of command. The science and art of leadership have been developed in these officers over a career usually exceeding thirty or more years. Simply put these officers know how to command and lead troops and civilians as well as accomplish any mission given to them. Leadership in combat is helpful but certainly not required as General

Clay came to Germany from the United States with no combat experience in Europe. A deputy commander with combat experience could and would bolster any commander without current combat experience especially if that deputy’s experience was in the area under occupation.

What is required for leadership in a belligerent occupation is the ability to lead a large operation and manage the headquarters of that belligerent occupation entity. A Proconsul as described in Chapter 6 could work well given a military lead in a belligerent occupation.

Should an active duty commander not be chosen then recently retired or former commanders could fill the job as they have commanded large organizations preferably in the area where the belligerent occupation will take place. This position is “…intensely political in nature and involve[s] a complex set of diplomatic relationships that could not be easily managed from

Washington.” Often these former commanders maintain friends and have relationships with leaders in their AOR for many years so they are up to speed on the area and may have significant information to take into their new position. In any event, all of these commanders have skills that will allow them to be politically savvy and diplomatically astute as well as militarily proficient. Once the situation of the occupation has stabilized and there is not a need for such large numbers of troops, a transition to a civilian administrator or proconsul could be made with that civilian placed in charge. Ideally, even after stabilization has occurred there

443 should be a military deputy to the proconsul to keep the “win a win” until the complete return of sovereignty to vanquished nation.

The US military has sufficient troops both active and reserve to establish the conditions of security necessary to establish a belligerent occupation but other forces and gendarmes should be included. Troop numbers are important since “[t]he higher the proportion of stabilizing troops, the lower the number of casualties suffered and inflicted.” As was developed in

Chapter 2, numbers seem to help gain and maintain control of a vanquished state. No other US governmental agency can provide the numbers and general expertise to perform this task.

Despite these numbers as previously detailed there will not be a complete skill set and internal augmentation will certainly be required. Augmentation could come from the reserves, National

Guard or other agencies or allies; however, allies pose separate issues in terms of command, logistics, interoperability, and rules of engagement. The number of US troops in Germany during the occupation was 9.75 per square mile compared with 12 per square mile in Japan but only 2 per square mile in Iraq. Looking at it from the troop to civilian population ratio, we have one US troop to 39 Germans in the US Sector (400,000 to 15,500,000), one to 160 Japanese civilians (450,000 to 71,998,000) and one to 171 in Iraq (150,000 to 25,584,000). Either way of counting troops, an occupation calls for a large number of troops and only the military can provide these numbers. In the future, the numbers of troops needed to establish enough control for security will likely increase.

Within the combined forces available to DoD from the active, reserve, National Guard, and deployable civilians there is a large talent pool from various disciplines to manage the enormity

444 of an occupation. From the reserve and Guard forces there are many specialized functions as well as the talents these personnel bring from their civilian job skills set. Many DoD civilian jobs come with a deployment clause so these folks present another rich source of talents usable in a belligerent occupation. Undoubtedly there will be talents that are needed from other federal entities and the private sector but the majority can be drawn from inside the aforementioned large military talent pool. Certainly there will be some skill set that is desperately needed in numbers that exceed what the military can provide but again the first response will be from those possessing those skills inside the military. When planning for a belligerent occupation, the sheer numbers of personnel needed to properly execute such a plan calls for the military to be the prime resource and leader of this effort. Numbers count as much now as these did in the post-Second World War occupations. The “whole of nation” approach might generate additional personnel but not for any combat or similar operations.

Utilizing the post-Second World War occupations as a starting point, many of the military lessons learned in the past could be applicable to the future belligerent occupations. Such consideration must be tempered by the realization that a cookie cutter approach will not work as the changes in the state of the world such as the human rights revolution and changed circumstance vis-à-vis culture, education, and communication need to be reflected in any use of the earlier successful occupations as models. Great thought, planning, and action must be placed into any future OPlan for a belligerent occupation so that if a nation is quickly vanquished, the plan is ready for implementation. Final peace can be attained by such careful planning and execution of the belligerent occupation phase of war.

445

In the post-Second World War belligerent occupations, all came about after a considerable amount of time at war. Germany was fighting in the Spanish Civil War from 1936-1939 as

Japan began their war with China in 1937 so both powers were involved in a long period of war.

By contrast the 2003 war prior to the UN sanctioned belligerent occupation in Iraq was measured in days not years. There was not a decisive military victory and there was no surrender but rather a near total governmental collapse wherein the Iraqi military and police force “melted away.” Similarly, the periods of respective belligerent occupations were long in terms of years unlike the one year belligerent occupation in Iraq. Short wars followed by a short belligerent occupation seem to lead to less successful outcomes of returning sovereignty back to the vanquished. While not advocating for prolonging any war, the belligerent occupation should last several years in order to return sovereignty.

Why the focus on the United States military? Simply, the US military is the strongest combat force in the world and regularly deploys to situations that may require a belligerent or other type of occupation. As the strongest military there is an emulation factor that along with the regular deployments for training and exercises creates the norm in military standards and practices. Stated differently, success breeds success so if the US military can plan and execute a belligerent or other occupation, the militaries of other nations will copy this effort to at least plan for this occupation as a possible branch and sequel of going to war. “This greater abundance of imitation is perfectly understandable. Each solitary innovator sparks a wave of eager imitators.” Imitation may not only be flattering but also helpful in war planning including the decision to go to war and the planning for a return to peace.

446

Furthermore, the US military has the most experience in terms of years and numbers of both belligerent and other types of occupations in the last 120 years. See Table 2-1 in Chapter 2.

These experiences coupled with being the lead military may serve as an example of how to and how not to conduct such belligerent occupation operations. With such a level of experience, studies can be made of determining how to best plan for and conduct these end phases of war operations. Getting the occupation right should help to ensure the peace or at least ensure the fighting does not resume on its own.

OBSERVATION: The language barrier.

To complete the ideal belligerent occupation, the language barrier must be overcome. Trying to write in my three avocations of military science, the law, and international relations has shown that there is a language barrier among these fields. Interpreters will be needed to translate and transliterate the terms and concepts of these divergent fields of study. Such interpreters must be experienced in one or, preferably, more of these fields to explain the differences and similarities between these separate fields of study and the words utilized in those specialties.

Each field can make significant contributions to the end result of a just peace. However, we will need to overcome the language barrier to complete this task. Advocacy for the solution will and should be adversarial so as to attain the best result throughout the process of planning for and executing the belligerent occupation phase then transitioning to the jus post bellum phase.

There can be little advocacy without some fundamental understanding of the terms used. All of these factors must be evaluated as the attempt is made to follow up on a military victory in war

447 by a belligerent occupation on the path to the application of jus post bellum leading to the return of sovereignty to a now stable vanquished country in peace.

8.6 Conclusion.

All of this effort requires decisions to be made regarding the establishment, funding, staffing, and much more. Multiple decision are required including is this Post-Conflict Cell worth the effort? If so, where should this belligerent occupation planning cell be established and by whom? Do we need a planning cell to consider belligerent occupation in the COCOM’s plans?

Where is the best location for such a planning cell? Should these planning cells be part of the

Inter-Agency Working Groups or some other meeting format? Assuming arguendo that these planning cells are to be established then there remains many decisions to be made with the concomitant time and effort to enable these decisions.

Ending this work does not end the work for a policy relevant proposal to better plan for and execute a belligerent occupation. Having outlined how this concept developed, how it has been employed, how the treaties were crafted, explored the evolving concept of jus post bellum, as well as having considered the ideal and complicating aspects of belligerent occupation, this chapter needed to propose a putative “real world” solution. With experience as a military officer and Judge Advocate combined with service on joint and combined staffs, a putative solution needed to be proposed to begin what will be a long conversation and longer building process to attain some semblance of a planning cell dealing with end stage planning for war and the return to peace. I have tried to combine the military, legal, and political science perspectives to arrive at this proposal. Knowingly this proposal is not the end all and be all nor

448 was it intended to be so, my hope is that it will provide the basis for further development and refinement with some cell for belligerent occupation being established to deal with this end phase of war and the eventual return to peace.

In writing this paper, I wanted to use my military, legal, and political science learning and experience to present a policy relevant proposal. I know, in advance, the military may think this proposal needs more structure, the lawyers more depth, and the political scientists more definitiveness. Acknowledging these concerns, my intention remains to establish a putative solution for further discussion on a crucial topic among these disciplines and others to formulate a better belligerent occupation plan and implementation. Belligerent occupation has much to gain from each and every discipline so that experts and contributors can fill in the gaps they discover in this proposal. I wanted to put forward a policy proposal rather than just identify a problem and post-war planning and execution to return sovereignty to the vanquished is that problem. I seek a broad discussion on the phases consisting of belligerent occupation and the concept of jus post bellum by as many people and disciplines as practicable.

The idea of establishing a planning cell for belligerent occupation is the outcome of this study that started with the idea of creating a type of occupation that established security and control then developing the jus post bellum responsibilities to return sovereignty to the vanquished after some period of rehabilitation. The ultimate result is the return of sovereignty to the vanquished country that is now stable allowing for a just peace.

449

Chapter 9.

Conclusion.

This policy relevant work began with the question of how to obtain peace after a state-on-state war. I have argued for a belligerent occupation in the aftermath of state-on-state war as something different from conquest of the past many millennia. Based on a comparison of belligerent occupations, indicators were developed to assist the planning for that belligerent occupation. A solid legal basis for that occupation was found in The Hague and Geneva

Conventions. This argument was furthered by adding a jus post bellum or “reconstructive” phase after that belligerent occupation to return sovereignty to the vanquished. I developed and advocated for a putative solution of an ideal belligerent occupation. I strongly proposed a policy relevant solution for the lack of planning for belligerent occupation and the putative jus post bellum phases. Evidence presented indicates that a belligerent occupation followed by a jus post bellum phase is likely to return the sovereignty to the vanquished on their road to a just peace. Recommendations regarding the return of sovereignty to the vanquished in a just peace are found throughout this work.

We began in Chapter 1 with the reality of conquest that had perpetuated human history. Under conquest the post-war governance was simple. Post-war governance of conquered territory consisted of the then “ideal” solution either incorporation into the victorious country or rule by some vestige of that victor. Conquest persisted for several millennia but began to give way to a

450 concept called occupation. This new concept, occupation, took root only in the last quarter millennia since about 1792. However, conquest has had a durable grip on human behavior and remains a viable option today as observed recently in South Ossetia (2008), Abkhazia (2008),

Crimea (2014), and the Donbas region of Ukraine (2014). Perhaps we have not advanced that far from our conquering ancestors in the conduct of international relations or concerns about the return of sovereignty to vanquished nations since conquest still remains as an instrument of national policy. Despite these setbacks to the concept of belligerent occupation, I have convincingly offered that it should be embraced to establish the control and security necessary to proceed to the jus post bellum phase in the process of returning the sovereignty to the vanquished people.

As a developmental concept, occupation challenged many of the accepted ideas regarding conquest such as changing the outlook for the vanquished from slavery to the return of their sovereignty after an occupation. In Chapter 1 the idea of belligerent occupation was explained as it started with and was developed by the French when they refused to “conquer” their neighboring countries early in the French Revolution. Belligerent occupation developed further under Napoleon as the French military became responsible for these newly occupied territories and French courts had to adjudicate the cases resulting from occupation as applied by the military. Today the military and the courts remain engaged in the struggle to refine the concept of belligerent occupation.

Post-war occupation planning remains ignored by the military of all nations to a large extent with minimal, if any, planning conducted prior to the actual occupation. The most notable

451 exception of the occupation planning hiatus was conducted during and after the Second World

War by the US military as related in Chapter 2. Regrettably that type of post-war belligerent occupation planning was not continued and was seemingly discarded particularly by the United

States military after their success in post-World War Two. That became apparent in Operation

Iraqi Freedom where the planning was not anywhere near as extensive as that conducted during World War Two and this lack of belligerent occupation preparation resulted in a great loss of blood and treasure. The US military plans to win in war and, assuming that victory, there is a definite need to plan for the belligerent occupation that is to follow. Even if the US military is not joining the belligerent occupation, planning for the RIP/TOA to another entity must occur.

Addressing this issue with the creation of what was supposed to be a stabilization and reconstruction or occupation planning cell in the State Department. While a step forward this was halfhearted and in the wrong department of government where the concern is diplomacy rather than the implementation of a belligerent occupation. Clearly a “whole of government” approach is warranted and required but any such planning must include the dirty work of establishing control and security within the vanquished country. Those twin mission objectives cannot be met via diplomacy or provision of some aid packages. The Department of Defense should be the primary and lead agency on control and security during the belligerent occupation phase then the Department of State should be the lead agency during the jus post bellum phase as described in Chapter 5 and recommended in Chapter 8 with the military providing advice and force, if necessary. Such a separation does not mean that the State

Department does not have a role during the belligerent occupation phase as they must focus on diplomacy and setting the ground work for the jus post bellum phase. Likewise the Department

452 of Defense will need to remain engaged albeit at a reduced level, during the jus post bellum phase to ensure the control and security necessary to rebuild the vanquished country so as to return their sovereignty. Additionally, the Defense Department may need to provide transportation, logistic, and other support as it is equipped to do so especially in austere regions where these wars seem to occur. Substituting the Ministry of Defence and Ministry of

Foreign Affairs or kindred names would expand the scope of this observation to external audiences despite the different emphasis placed on these two Ministries in other countries.

Furthermore, these two Departments will need to obtain input from academics and experts in a number of fields to obtain a broader “whole of nation” approach. As can be understood form this material planning is essential for a belligerent occupation. Additional and extensive planning will be needed for any jus post bellum phase.

By carefully reviewing the results of the comparative belligerent occupations in Germany,

Japan, and Iraq, I created nine indicators as the basis for a planning model to add to those generated by Edelstein. In Chapter 3, these indicators were established to further the discussion for planning a belligerent occupation. Employing solid military doctrine, these indicators specify some important considerations for the planning model of an occupation. The situation in the country to be occupied will need to be carefully considered using each of these indicators so that branches and sequels can be developed to cover all of these 16 indicators.

While 16 indicators may seem to be a large number, if the planning begins soon after the initiation of hostilities then there should be enough time for an occupation plan to be developed. Further these indicators can be separated to allow for many teams to work on them and perform the coordination for both whole of government and whole of nation approaches

453 to obtain the best plans. A better position is the careful prior review of all OPlans so that these plans are “on the shelf” and can be re-evaluated with more current intelligence and situational awareness. This latter suggestion can save time with more attention focused on these latest updates. Planners applying all of these indicators should be able to develop a solid belligerent occupation plan with the expectation that their initial assumptions and circumstance may have changed. Constant attention to and development of the information to support these indicators will be needed. Clear evidence for the use of these indicators was presented.

Belligerent occupation law was clearly identified in The Hague and Geneva Conventions and explicated in Chapter 4. As such, under these treaties, there is sufficient law to establish such an occupation and deliver a vanquished country from its previous self. An abundance of articles contained in these treaties demonstrate that law currently exists for the establishment and execution of a belligerent occupation. Utilizing these treaties to establish a belligerent occupation has not been done with the possible exception of the first and tenuous example of the occupation in Iraq. Applying these Conventions as lex specialis early in the belligerent occupation provides steps to begins the long and daunting process of returning sovereignty to the vanquished , the ultimate goal. As the vanquished near the point of having their sovereignty returned to them, the Occupying Power can gradually permit the more general Laws of Peace to become applicable as explored in Chapter 7 and visually shown in Figure 7.1. Control and security must be achieved during the belligerent occupation to provide any hope of reaching that sovereignty reversion with the laws found in these Conventions.

454

Knowing the end result or goal of any endeavor should assist the planning to get to that point.

“The tradition of reflection on the just war that Walzer revived in his book [Just and Unjust

War] is an honorable one….” The putative Just War Theory third leg of jus post bellum could be one manner of approach to the return of sovereignty based on the idea generated by the advocates of this position. While the elements of this jus post bellum concept remain to be affirmatively established, the reconstructive elements defined in Chapter 5 provide a solid basis to begin the discussion and implementation. Some of the elements proposed by the 2013

American Society of International Law study are part of that solid basis and include retribution, rebuilding, reconciliation, and reparations. These four elements as defined in this dissertation are a great start to reaching the ultimate goal. Yet without a successful belligerent occupation the hope of the jus post bellum phase leading to a sovereignty reversion is dim.

I have argued that an ideal belligerent occupation albeit aspirational in nature includes four factors: a military defeat, preferably decisive, in the war; a strong peace agreement ending the war and followed by an occupation of the defeated state; the commitment of the victor, a protecting entity, or some other entity to “reconstruct” the vanquished; and a time period, in terms of years, for that occupation to transition the sovereignty of that vanquished country back to them. Further elaborated in Chapter 6, these factors and their essential elements are listed as specific guidance for consideration during the planning for and execution of the belligerent occupation and the jus post bellum phases. My putative solution of an ideal belligerent occupation could be further refined by others as more planning for this is completed and field tested during military war games or other operational exercises. While the ideal is

455 always aspirational, armed with these factors and essential elements, general progress towards a return of sovereignty to the vanquished and a just peace is attainable.

Certainly there are impediments to any aspirational ideal. Belligerent occupation is not different in this regard. Addressing the military and legal impediments to make them known could prove them to be solvable and was accomplished in Chapter 7. Change is difficult in the military but rapid improvements such as the concept of Air Operation Centers were dramatically and quickly attained with direct contributions to the warfighting capabilities and the maintenance of peace. Change can be made! The benefit of careful belligerent occupation planning has been stressed throughout this work and this must be accomplished within the military. By not planning for this end result of war, the military then cannot obtain the requisite funding for manpower, the training, and so forth to bring about a belligerent occupation. A self- defeating cycle ensues. Reluctance of civilian leaders to entrust such an occupation to the military is an impediment that was not an impediment to the successful belligerent occupations after the Second World War. These impediments can and have been overcome in the past but remain a challenge for the future.

Legal impediments center on the conceptual morass regarding the applicability of two similar but distinctly disparate types of laws, the Laws of War and those of peace as shown in Table 7-

1. Despite seeking the same end result and protecting those involved in combat, the argument is about the specific and general rule applying during war and belligerent occupation. I have reasoned that the Laws of War apply during war a time of specific human carnage. The Laws of

War, properly named as such, cover that time when humans are acting to harm one another

456 during a very specific event called war and in the aftermath of this slaughter. Agreeing that the

Laws of War are humanitarian in nature and are only applicable during their namesake, I also note that human rights laws apply during times of peace.

War is so different from other human experiences that a belligerent occupation is needed to start the process of a return to some normalcy. I have put forth the conclusion that with adequate planning the chances for a successful belligerent occupation are enhanced. More specifically, in Chapter 8, I have offered the idea of a Post-Conflict Cell (PCC) established in J-5 of the Joint Staff to perform that planning, give guidance to the field, and review the OPlans of the COCOMS regarding belligerent occupation. Such a level of belligerent occupation planning should socialize the idea that war does not end with the cessation of hostilities. Military planning must continue into belligerent occupation despite the current attempts to have the US military act as firefighters that rush to put out the fire and return to the station. Control and security in the post-war phase of operations is absolutely necessary and can only be provided by an armed force. All of this and many more issues must be resolved to plan and execute a belligerent occupation. The end result is to plan, and plan some more, in a Post-Conflict Cell on the Joint Staff in the Department of Defense.

Having provided clear and convincing evidence as to the nature of belligerent occupation from its introduction to the ideal, this form of post-state-on-state war governing should be adopted in an effort to start the process of returning sovereignty to the vanquished. Recognizing this belligerent occupation will not be adequate to that task standing alone, a jus post bellum phase must be joined to that occupation. While still becoming defined as a concept, this jus post

457 bellum phase should set the stage for the return of sovereignty. A policy relevant proposal for the Post Conflict Cell will further the goal of planning for the belligerent occupation with the requisite control and security for the completion of the jus post bellum phase.

458

Bibliography

BOOKS

Abrams, Elliott. Realism And Democracy. Cambridge University Press, 2017.

Adams, Gordon, and Shoon Kathleen Murray. Mission Creep: The Militarization Of US Foreign Policy? Georgetown University, 2014.

Akashi, Yōji, and Mako Yoshimura. New Perspectives On The Japanese Occupation In Malaya And Singapore, 1941-1945. Singapore University Press, 2009.

Akehurst, Michael. A Modern Introduction to International Law. George Allen And Unwin, 1983.

Albert, Stuart, and Edward C. Luck. On The Endings Of War. Kennekat Press, 1980.

Alexander, Larry. Biggest Brother. NAL Caliber, 2006.

Allan, Pierre, and Alexis Keller. What Is A Just Peace? Oxford University Press, 2008.

Ambrose, Stephen E, and C. L. Sulzberger. American Heritage New History of World War II. Viking, 1997.

Ando, Nisuke. Surrender, Occupation, And Private Property In International Law. Clarendon Press, 2001.

Aristotle et al. The Politics. Penguin Classics, 1992.

Aristotle, and H. Rackham. The Nicomachean Ethics. Harvard University Press, 1926.

Asbach, Olaf, and P. Schröder. War, The State And International Law In Seventeenth-Century Europe. Ashgate, 2010.

Augustine. The City Of God. Image Books, 2014.

Augustine, and Henry Bettenson. Concerning The City Of God Against The Pagans. Penguin Books, 1972.

459

Bach, Julian Sebastian. America's Germany, An Account Of The Occupation. Random House, 1946.

Bader, William B. Austria Between East And West 1945-1955. Stanford: Stanford University Press, 1966.

Barakat, Sultan. Reconstructing War-Torn Societies: Afghanistan. Palgrave Macmillan, 2004.

Barnes, Alexander. In A Strange Land. Schiffer Pub., 2011.

Barnet, Richard. The Alliance - America, Europe, Japan. Simon & Schuster, 1983.

Barnhart, Robert K, and Sol Steinmetz. Chambers Dictionary Of Etymology. The H. W. Wilson Company, 2010.

Beatty, Jeffrey F. et al. Legal Environment. 5th ed., South-Western, 2014.

Bederman, David J. International Law In Antiquity. Cambridge University Press, 2001.

Bendix, Reinhard. Max Weber: An Intellectual Portrait. Doubleday, 1960.

Benvenisti, Eyal. The International Law Of Occupation. 2nd ed., The Princeton University Press, 2004.

Beschloss, Michael R. The Conquerors: The Conquerors: Roosevelt, Truman And The Destruction Of Hitler’s Germany, 1941-1945. Simon & Schuster, 2014.

Bessel, Richard. Germany 1945. HarperCollins Publishers, 2009.

Best, Geoffrey. War And Law Since 1945. Best - Hardcover. Clarendon Press, 1994.

Biddiscombe, Alexander Perry. The Denazification Of Germany: A History 1945-1950. Tempus, 2007.

Biersteker, Thomas J., and Cynthia Weber. State Sovereignty As Social Construct. Cambridge University Press, 1996.

Black, Henry Campbell, and Michael J. Connolly. Black's Law Dictionary. 5th ed., West Publishing Co, U.S., 1981.

Blackstone, William, and William Draper Lewis. Commentaries On The Laws Of England. Beacon Press, 1962.

460

Blair, Clay. The Forgotten War: America In Korea 1950-1953. Naval Institute Press, 2003.

Blank, Laurie R, and Gregory P. Noone. International Law And Armed Conflict. Wolters Kluwer, 2016.

Blond, Neil C., and Brett I. Harris. Blond's International Law. Sulzburger & Graham Pub., 1995.

Blood, Philip W. Hitler's Bandit Hunters: The SS And The Nazi Occupation Of Europe (An AUSA Book). Potomac Books, 2006.

Blount, James Henderson. American Occupation of The Philippines, 1898-1912. The Knickerbocker Press, 1912.

Blumenthal, David A, and Timothy L. H McCormack. The Legacy Of Nuremberg: Civilizing Influence Or Institutional Vengeance? Martinus Nijhoff Publishers, 2008.

Boardman, John. The Oxford History Of The Classical World. Oxford University Press, 1986.

Boot, Max. The Savage Wars Of Peace: Small Wars And The Rise Of American Power. Basic Books, 2002.

Bourke, Vernon J. City Of God. 4th ed., Image Books, 1958.

Bovarnick, Jeff A., and Gregory S. Musselman. Law Of War Deskbook. International And Operational Law Dept., The U.S. Army Judge Advocate General's Legal Center And School, 2011.

Bowden, Brett et al. The Role Of International Law In Rebuilding Societies After Conflict. Cambridge University Press, 2009.

Bramson, Leon, and George W. Goethals. War: Studies From Psychology, Sociology, Anthropology. 2nd ed., Basic Books, 1968.

Bremer, L. Paul, and Malcolm McConnell. My Year In Iraq. Simon & Schuster, 2006.

Broughton, T. Robert S, and Marcia L. Patterson. The Magistrates Of The Roman Republic. American Philological Association, 1951.

Brunstetter, Daniel R., and Cian O'Driscoll. Just War Thinkers. Routledge, 2018.

Brunstetter, Daniel R., and Jean-Vincent Holeindre. The Ethics Of War And Peace Revisited: Moral Challenges In An Era Of Contested And Fragmented Sovereignty. Georgetown University Press, 2018.

461

Bull, Hedley et al. Hugo Grotius And International Relations. Clarendon Press, 1992.

Burgess, Major Todd. US Army Doctrine And Belligerent Occupation. School Of Advanced Military Studies, United States Army Command And General Staff College Fort Leavenworth, Kansas, 2003.

Burke, Edmund, and L. G. Mitchell. Reflections On The Revolution In France. Oxford University Press, 2009.

Bush, George Walker. Decision Points. Crown Publishing Group, 2010.

Byers, Michael. War Law: Understanding International Law And Armed Conflict. Grove Press, 2005.

Capussela, Andrea Lorenzo. State-Building in Kosovo: Democracy, Corruption And The EU In The Balkans. I B Tauris, 2015.

Carcano, Andrea. The Transformation of Occupied Territory in International Law. Brill Nijhoff, 2015.

Carlton, Eric. Occupation: The Policies And Practices Of Military Conquerors. Routledge, 1992.

Churchill, Winston S. The Hinges Of Fate. Houghton Mifflin, 1950.

Clapham, Andrew, et al. The Oxford Handbook Of International Law In Armed Conflict. Oxford University Press, 2014.

Clapham, Andrew, et al. The 1949 Geneva Convention: A Commentary. Oxford University Press, 2015.

Clark, Janine Natalya. International Trials And Reconciliation. Routledge Taylor & Francis Group, 2015.

Carr, Craig L., and David Todd Kinsella. The Morality Of War. Lynne Rienner Publishers, 2008.

Cassese, Antonio. Realizing Utopia: The Future of International Law. Oxford University Press, 2012.

Chambers, James. The Devil's Horsemen: The Mongol Invasion of Europe. Atheneum, 1985.

Chang, Iris. The Rape Of Nanking: The Forgotten Holocaust Of World War II. Basic Books, 2015.

462

Chesterman, Simon. You The People: The United Nations, Transitional Administration, And State-Building. Oxford University Press, 2004.

Chesterman, Simon. Just War Or Just Peace? Oxford University Press, 2001.

Chickering, Roger, and Stig Forster. Great War, Total War: Combat And Mobilization On The Western Front, 1914-1918. Cambridge University Press, 2000.

Claude, Jr., Inis L. Swords Into Plowshares. McGraw-Hill, 1984.

Clausewitz, Carl von, et al. On War. Princeton University Press, 1976.

Clay, Lucius D. Decision In Germany. Greenwood, 1970.

Clay, Lucius D., and Jean Edward Smith. The Papers Of Lucius D. Clay. Indiana University Press, 1974.

Coates, A. J. The Ethics Of War. Barron's Educational Series, 1997.

Corn, Geoffrey S., et al. U.S. Military Operations. Oxford University Press, 2016.

Crocker, Chester A., et al. Turbulent Peace. United States Institute Of Peace Press, 2006.

Crozier, Brian. Political Victory. Transaction Publishers, 2005.

Daly, M. W. The Last Of The Great Proconsuls: The Biography Of Sir William Luce. 2nd ed., Nathan Berg, 2014.

Daniélou, Alain. A Brief History Of India. Inner Traditions, 2003.

Davidson, Eugene. The Death And Life Of Germany: An Account Of The American Occupation. Alfred A. Knopf, 1959.

De Brabandere, Eric. Post-Conflict Administrations in International Law. Martinus Nijhoff Publishers, 2009.

Diamond, Jared M. Upheaval: Turning Points for Nations In Crisis. Little, Brown And Company, 2019.

Diamond, Larry Jay. Squandered Victory. Times Books, 2005.

Diefendorf, Jeffry M. In The Wake Of War: The Reconstruction Of German Cities After World War II. Oxford University Press, 1993.

463

Dinstein, Yoram. The International Law of Belligerent Occupation. Cambridge University Press, 2009.

Dinšṭein, Yôrām. The Conduct Of Hostilities Under The Law Of International Armed Conflict. 3rd ed., Cambridge University Press, 2016.

Direk, Omer Faruk. Security Detention In International Administrations: Kosovo, East Timor, And Iraq. Brill / Martinus Nijhoff, 2015.

Dobbins, James, et al. The UN's Role In Nation-Building. RAND Corporation, 2005.

Dobbins, James, et al. The Beginner's Guide To Nation-Building. RAND Corp, National Security Research Division, 2007.

Doswald-Beck, Louise. Human Rights In Times Of Conflict And Terrorism. Oxford University Press, 2011.

Dower, John W. Embracing Defeat: Japan In The Wake Of World War II. W.W. Norton, 2000.

Doyle, Michael W., and Nicholas Sambanis. Making War And Building Peace. Princeton University Press, 2010.

Dunant, Jean Henry. A Memory of Solferino. ICRC, 1986.

Dupuy, R. Ernest, and Trevor N. Dupuy. The Encyclopedia Of Military History. Harper & Row, 1986.

Dupuy, Trevor N. Numbers, Predictions, And War. Hero Books, 1985.

Dupuy, Trevor Nevitt. Understanding War. Paragon House Publishers, 1987.

Edelstein, David M. Occupational Hazards: Success and Failure in Military Occupation. Cornell University Press, 2008.

Eisenhower, Dwight D. Crusade in Europe. Doubleday & Company, 1948.

Eisenhower, Dwight David, and Louis Galambos. The Papers Of Dwight David Eisenhower. Johns Hopkins Press, 1989.

Eisenhower, John S. D., and Joanne Thompson Eisenhower. Yanks. Simon & Schuster, 2002.

Ellis, John. Cassino: The Hollow Victory. McGraw-Hill, 1984.

464

Elshtain, Jean Bethke, and Robert L. Holmes. Just War Theory. New York University Press, 1991.

Evans, Christine. The Right To Reparation In International Law For Victims Of Armed Conflict. Cambridge Univ. Press, 2012.

Fabre, Cécile. Cosmopolitan War. Oxford Univ. Pr., 2012.

Fawn, Rick, and Raymond A. Hinnebusch. The Iraq War: Causes And Consequences. Lynne Rienner, 2006.

Fazal, Tanisha M. State Death: The Politics And Geography Of Conquest, Occupation, And Annexation. Princeton University Press, 2011.

Fazal, Tanisha M. Wars Of Law: Unintended Consequences In The Regulation Of Armed Conflict. Cornell University Press, 2018.

Feith, Douglas J. War And Decision. HarperCollins Publishers, 2008.

Fellmeth, Aaron Xavier, and Maurice Horwitz. Guide To Latin In International Law. Oxford University Press, 2011.

Ferejohn, John A, and Frances McCall Rosenbluth. Forged Through Fire: War, Peace, And The Democratic Bargain. Live Right Publishing A Division Of W.W. Norton & Company, 2017.

Fiala, Andrew. The Just War Myth: The Moral Illusions Of War. Rowman & Littlefield Publishers, 2007.

Figgis, John Neville. Political Aspects Of St Augustine's City Of God. Longsman, Green & Company, 1921.

Fox, Gregory H. Humanitarian Occupation. Cambridge University Press, 2008.

Fleck, Dieter, and Michael Bothe. The Handbook of Humanitarian Law In Armed Conflicts. Oxford University Press, 1999.

Forcehimes, Andrew et al. Morality, Jus Post Bellum, and International Law. Cambridge University Press, 2012.

Forte, David F., and Matthew Spalding. The Heritage Guide to The Constitution. Regnery Publishing, Inc., 2005.

Fortna, Virginia Page. Peace Time. Princeton Univ. Press, 2004.

465

Fraenkel, Ernst. Military Occupation And The Rule Of Law: Occupation Government In The Rhineland, 1918-1923. Oxford University Press, 1944.

Franks, Tommy R. American Soldier. Regan Books, 2014.

Frederiksen, Oliver J. The American Military Occupation Of Germany, 1945-1953. Historical Division, Headquarters, United States Army, Europe, 1953.

Fukuyama, Francis. State Building: Governance And World Order In The 21St Century. Cornell University Press, 2004.

Futamura, Madoka. War Crimes Tribunals And Transitional Justice: The Tokyo Trial And The Nuremberg Legacy. Routledge, 2008.

Gaunt, Peter. The English Civil War: A Military History. Blackwell Publishers, 2001.

Girma, Mohammed, (ed). The Healing of Memories. The Rowman & Littlefield Publishing Group, 2018.

Gorka, Sebastian. Defeating Jihad: The Winnable War. Regnery Publishing, 2016.

Graber, Doris A. The Development Of The Law Of Belligerent Occupation, 1863-1914, A Historical Perspective. AMS Press, 1949.

Grant, Michael, and Cicero. Selected Works: Against Verres I; Twenty-Three Letters; The Second Phillipic Against Anthony; On Duties III; On Old Age. Penguin Group (USA), 1974.

Gratian et al. The Treatise On Laws. Catholic University Of America Press, 1993.

Greene, Samuel R. Pathological Counterinsurgency: How Flawed Thinking About Elections Leads To Counterinsurgency Failure. The Rowman And Littlefield Publishing Company, 2018.

Grewe, Wilhelm, and Michael Byers. The Epochs Of International Law. Walter De Grutyer Gmbh & Co, 2000.

Gross, Aeyal M. The Writing On The Wall. University Press Cambridge, 2017.

Grossman, Dave, and Loren W Christensen. On Combat. PPCT Research Publications, 2004.

Grotius, Hugo, and Stephen C Neff. Hugo Grotius On The Law Of War And Peace. Cambridge University Press, 2012.

466

Guelff, Richard, and Adam Roberts. Documents On The Laws Of War. 2nd ed., Clarendon Press, 1994.

Guthrie, Charles, and Michael Quinlan. Just War. 2nd ed., Walker & Co., 2009.

Hamilton, Alexander et al. The Federalist. Barnes & Noble Books, 1993.

Hammes, Thomas X. The Sling and The Stone: On War In The 21St Century. Zenith Press, 2004.

Handel, Michael I. War Termination, A Critical Survey. Hebrew University Of Jerusalem, Leonard Davis Institute For International Relations, 1978.

Hastings, Max. Catastrophe 1914. Vintage Books, A Division Of Random House, LLC, 2014.

Hathaway, Oona Anne, and Scott Shapiro. The Internationalists: How A Radical Plan To Outlaw War Remade The World. Simon And Schuster, 2017.

Hechter, Michael. Containing Nationalism. Oxford University Press, 2000.

Heintschel von Heinegg, Wolff, and Michael N Schmitt. Detention And Occupation In International Humanitarian Law. Ashgate, 2012.

Hensel, Professor Howard M., and Gregory A. Raymond. The Prism Of Just War: Asian And Western Perspectives On The Legitimate Use Of Military Force. Ashgate Publishing, 2010.

Hinsley, F. H. Power And The Pursuit Of Peace: Theory And Practice In The History Of Relations Between States. Cambridge University Press, 1962.

Hobbes, Richard. The Myth Of Victory: What Is Victory In War? Westview Press, 1979.

Hofschröer, Peter. 1815 The Waterloo Campaign: Wellington, His German Allies And The Battles Of Ligny And Quatre Bras. Greenhill Books, 1998.

Holbrooke, Richard C. To End a War. The Modern Library, 1999.

Holder, Cindy. Jus Post Bellum And Transitional Justice. Cambridge University Press, 2013.

Holsti, K. J. Peace and War: Armed Conflicts And International Order, 1648-1989. Cambridge University Press, 1991.

Hopgood, Stephen. The Endtimes of Human Rights. Cornell University Press, 2002.

Hopgood, Stephen et al. Human Rights Futures. Cambridge University Press, 2017.

467

Horne, John, and Alan Kramer. German Atrocities, 1914. Yale University Press, 2001.

Hourani, Albert. A History Of The Arab Peoples. The Belknap Press Of Harvard University Press, 1991.

Hoyt, Edwin P. Japan's War: The Great Pacific Conflict. McGraw-Hill, 1986.

Hudson, Walter M. Army Diplomacy: American Military Occupation And Foreign Policy After WWII. Univ. Press Of Kentucky, 2015.

Hunt, Irwin J. American Military Government of Occupied Germany, 1918-1920. The United States Printing Office, 1920.

Huntington, Samuel P. The Soldier And The State. Harvard University Press, 1957.

Hutchins, Robert Maynard. Great Books Of The Western World: The Republic, Vol. 7, Plato. Encyclopaedia Britannica, 1952.

Hwang, Su-kyoung. Korea's Grievous War. University Of Pennsylvania Press, Inc., 2016.

Ikenberry, G. John. After Victory: Institutions, Strategic Restraint, And The Rebuilding Of Order After Major Wars. Princeton University Press, 2000.

Jarrett, Mark. The Congress of Vienna And Its Legacy. I.B. Tauris, 2012.

Johnson, James Turner. Morality and Contemporary Warfare. Yale University Press, 1999.

Joseph, Sarah, and Adam McBeth. Research Handbook on International Human Rights Law. Edward Elgar Publishing, Inc., 2010.

Kagan, Donald. Thucydides: The Reinvention of History. Penguin Books, 2009.

Kaplan, Robert D. The Return Of Marco Polo's World: War, Strategy, And American Interests In The Twenty-First Century. Random House, 2018.

Kant, Immanuel et al. Kant's Political Writings. Cambridge University Press, 1995.

Kant, Immanuel, and W Hastie. The Philosophy Of Law: An Exposition Of The Fundamental Principles Of Jurisprudence As The Science Of Right. Legal Classics Library, 2003.

Kaufman, Zachary D. United States Law And Policy On Transitional Justice: Principles, Politics, And Pragmatics. Oxford University Press, 2016.

468

Kecskemeti, Paul. Strategic Surrender. The Politics Of Victory And Defeat. Atheneum, 1964.

Kelly, Alfred Hinsey, and Winfred Audif Harbison. The American Constitution. W.W. Norton, 1976.

Kelly-Gangi, Carol. The Essential Wisdom Of The World's Greatest Thinkers. Fall River Press, 2016.

Kelsen, Hans. The Law of The United Nations: A Critical Analysis of Its Fundamental Problems --With Supplement. F.A. Praeger, 1950.

Kennedy, Hugh. The Great Arab Conquests: How The Spread Of Islam Changed The World We Live In. Da Capo Press, 2007.

Kirk-Greene, Anthony. Proconsuls At The Top In Britain’s Imperial Administrators, 1858–1966. St. Antony’s Series. Palgrave Macmillan, 2000.

Kissinger, Henry. Diplomacy. Simon & Schuster, 1994.

Knight, Kevin et al. St. Thomas Aquinas Summa Theologica. Christian Classics, 1981.

Knight, W.S.M. The Life And Works Of Hugo Grotius. Sweet & Maxwell, 1925.

Knowles, David et al. Concerning The City Of God Against The Pagans (Classics). Penguin (Non-Classics), 1972.

Kolb, Robert, and Richard Hyde. An Introduction to The International Law Of Armed Conflicts. Hart Publishing, 2010.

Korman, Sharon. The Right Of Conquest: The Acquisition Of Territory By Force In International Law And Practice. Clarendon Press, 1996.

Koskenniemi, Martti. Gentle Civilizer of Nations: The Rise And Fall Of International Law, 1870- 1960 (Hersch Lauterpacht Memorial Lectures). Cambridge University Press, 2002.

Krebs, Ronald, and Elizabeth Kier. In War's Wake: International Conflict and The Fate of Liberal Democracy. Cambridge University Press, 2010.

Krieger, Leonard. The Politics of Discretion. The University Of Chicago Press, 1965.

Kumar, Krishna, and Jeroen de Zeeuw. Promoting Democracy in Postconflict Societies. 1st ed., Lynne Rienner Publishers, 2006.

469

La Caze, Marguerite. Ethical Restoration After Communal Violence. Lexington Books, 2019.

Lang, Anthony F. et al. Just War: Authority, Tradition, And Practice. Georgetown University Press, 2013.

Lee, Henry. The Life Of Napoleon Bonaparte: Down To The Treaty Of Tolentino And To The Close Of His First Campaign In Italy. Thomas And William Boone, 1837.

Lee, Steven P. Ethics And War. Cambridge University Press, 2013.

Liddell Hart, Basil Henry. Strategy. 2nd ed., Penguin, 1991.

Liulevicius, Vejas Gabriel. War Land on The Eastern Front. Cambridge Univ. Press, 2005.

Lord, Carnes. Proconsuls. Cambridge University Press, 2012.

Luttwak, Edward. On The Meaning of Victory: Essays On Strategy. Simon And Schuster, 1986.

MacMillan, Margaret. Paris 1919: Six Months That Changed The World. Random House, 2003.

MacDonogh, Giles. After The Reich: The Brutal History of The Allied Occupation. Basic Books, 2007.

Maga, Timothy P. Judgment at Tokyo: The Japanese War Crimes Trials. University Press Of Kentucky, 2001.

Martin, Edwin M. The Allied Occupation of Japan. American Institute Of Pacific Relations, 1948.

Mashbir, Sidney F. I Was An American Spy. Vantage Press, 1953.

Magoon, Charles E. The Law of Civil Government in Territory Subject To Military Occupation By The Military Forces of The United States. Government Printing Office, 1902.

Manchester, William. American Caesar, Douglas Macarthur, 1880-1964. Little, Brown, 1978.

Mandel, Robert. The Meaning Of Military Victory. Lynne Rienner, 2006.

May, Larry. War Crimes And Just War. Cambridge University Press, 2007.

May, Larry, and Andrew Forcehimes. Morality, Jus Post Bellum, And International Law. Cambridge University Press, 2012.

470

May, Larry, and Elizabeth Edenberg. Jus Post Bellum And Transitional Justice. Cambridge University Press, 2013.

Mayers, David. George Kennan And The Dilemmas Of US Foreign Policy. Oxford University Press, 1988.

McCoy, Alfred W. Southeast Asia under Japanese Occupation. The Yale University Southeast Asia Studies, 1980.

McDougal, Myres S., and Florentino P Feliciano. The International Law Of War. New Haven Press, 1994.

McDougall, Walter A. Promised Land, Crusader State. Houghton Mifflin, 1997.

Meyer, Jeanne M, and Brian J Bill. Operational Law Handbook, 2002. International And Operational Law Dept., The Judge Advocate General's School, 2002.

Middleton, Drew. Retreat From Victory. Hawthorn Books, 1973.

Milne, David. Worldmaking. Farrar, Straus And Giroux, 2015.

Mitchell, Allan. Nazi Paris: The History of An Occupation 1940-1944. Berghahn Books, 2008.

Molasky, Michael S. The American Occupation of Japan And Okinawa. Routledge, 2006.

Morgenthau, Henry. Germany Is Our Problem. Harper & Brothers, 1945.

Nagai, Yonosuke, and Akira Iriye. The Origins of The Cold War In Asia. Columbia University Press, 1977.

Nagl, John A. Learning to Eat Soup With A Knife: Counterinsurgency Lessons From Malaya And Vietnam. Praeger, 2002.

NATO Handbook. NATO Office Of Information And Press, 2001.

Neff, Stephen C. War And The Law Of Nations: A General History. Cambridge University Press, 2005.

Nelson, Keith L. Victors Divided. University Of California Press, 1975.

Newman, Frank C, and David S Weisbrodt. International Human Rights: Law, Policy And Process. Anderson, 1996.

471

Norwich, John Julius. Byzantium: The Decline And Fall. Alfred A. Knopf, 1995.

Nussbaum, Arthur. A Concise History of The Law Of Nations. Macmillan, 1961.

O'Donnell, James J. Augustine. Twayne Publishers, 1985.

O'Donovan, Oliver. Just War Revisited (Current Issues In Theology ; V. 2). Cambridge University Press, 2003.

Ohlin, Jens David. Theoretical Boundaries of Armed Conflict And Human Rights. Cambridge University Press, 2014.

Orend, Brian. War and International Justice. Wilfrid Laurier University Press, 2000.

Orend, Brian. The Morality of War. Broadview Press, 2006.

Paris, Roland. At War's End: Building Peace After Civil Conflict. Cambridge University Press, 2004.

Pawley, Margaret. The Watch on the Rhine. I.B. Tauris, 2007.

Peceny, Mark. Democracy at the Point of Bayonets. Pennsylvania State University Press, 1999.

Pedrozo, Raul. The War in Iraq: A Legal Analysis. Naval War College, 2010.

Pensky, Max. "Jus Post Bellum" And Amnesties. Cambridge University Press, 2013, p. 155.

Peterson, Edward N. The American Occupation of Germany: Retreat To Victory. Wayne State University Press, 1978.

Posner, Eric A. The Twilight of Human Rights Law. Oxford University Press, 2014.

Post, Robert, and Carla Hesse. Human Rights in Political Transitions: Gettysburg To Bosnia. Zone Books, 1999.

Protocols To The Geneva Conventions Of 12 August 1949. Headquarters, Dept. Of The Army, 1979.

Provost, René. International Human Rights and Humanitarian Law. Cambridge University Press, 2005.

Pufendorf, Samuel et al. The Political Writings of Samuel Pufendorf. Oxford University Press, 1994.

472

Pringle, Henry F. William Howard Taft. 4th ed., American Political Biography Press, 1998.

Pringle, Henry F. The Life And Times Of William Howard Taft. 1st ed., Archon Books, 1939.

Pronay, Nicholas, and Keith M. Wilson. The Political Re-Education of Germany & Her Allies After World War II. Barnes & Noble Books, 1985.

Rawls, John. The Law of Peoples. Harvard University Press, 1999.

Raymond, Gregory A. The Greco-Roman Roots of The Western Just War Tradition. Ashgate, 2010.

Reed, Charles, and David Ryall. The Price of Peace: Just War In The Twenty-First Century. Cambridge University Press, 2007.

Reisman, W. Michael, and Chris T. Antoniou. Laws Of War: A Comprehensive Collection Of Primary Documents On International Laws Governing Armed Conflict. Vintage, 1994.

Reiss, Hans, and H. B. Nisbet (trans). Political Writings of Immanuel Kant. Cambridge University Press, 1995.

Reveron, Derek S. America's Viceroys. Palgrave Macmillan, 2006.

Rhodes, Aaron Anthony. The Debasement of Human Rights. Encounter Books, 2018.

Robertson, A. H., and J. G. Merrills. Human Rights in Europe. 3rd ed., Manchester University, 1993.

Rose, Gideon. How Wars End: Why We Always Fight The Last Battle. Simon & Schuster, 2012.

Rosen, Jeffery. William Howard Taft. Times Books, 2018.

Rosenbaum, Alan S. Is The Holocaust Unique?: Perspectives On Comparative Genocide. Westview Press Incorporated, 2009.

Rosenthal, Joel H, and Christian Barry. Ethics & International Affairs. 3rd ed., Georgetown University Press, 2009.

Rostow, Eugene V. A Breakfast for Bonaparte: U.S. National Security Interests From The Heights Of Abraham To The Nuclear Age. National Defense University Press, 1993.

Rumsfeld, Donald. Known And Unknown: A Memoir. Sentinel, 2011.

473

Ryall, David, and Charles Reed. The Price of Peace: Just War In The Twenty-First Century. Cambridge University Press, 2007.

Saccone, Richard. The Unseen War in Iraq. Hollym International Corp., 2008.

Saunders, Trevor J., and T. A. Sinclair. Politics, Book V. Penguin Group, 1992.

Schadlow, Nadia. War And The Art Of Governance. Georgetown University Press, 2017.

Schaller, Michael. The American Occupation of Japan: The Origins Of The Cold War In Asia. Oxford University Press, 1985.

Schlesinger, Jr., Arthur M. The Cycles of American History. Houghton Mifflin, 1986.

Schmidt, Hans. The United States Occupation of Haiti, 1915-1934. Rutgers University Press, 1995.

Schelling, Thomas C. Arms and Influence. Yale University Press, 1967.

Schwarzkopf, H. Norman, and Peter Petre. It Doesn't Take A Hero. Linda Grey Bantam Books, 1992.

Schweikart, Larry, and Michael Allen. A Patriot's History of The United States. Sentinel, 2004.

Semelin, Jaques. Survival of The Jews In France, 1940-44. Oxford University Press, 2019.

Severaid, Ronald H., and James C. Tuttle. International Court Of Justice Briefs. American Bar Association, Section Of International Law, 1978.

Simma, Bruno, and Hermann Mosler. The Charter Of The United Nations: A Commentary. Oxford University Press, 1994.

Singer, Barnett, and John W Langdon. Cultured Force: Makers And Defenders Of The French Colonial Empire. University Of Wisconsin Press, 2004.

Slye, Ronald C. The Kenyan TJRC: An Outsider's View from the Inside. CAMBRIDGE UNIV Press, 2019.

Smith, Jean Edward. Grant. Simon & Schuster, 2002.

Soule, C.C., et al. International Law For Naval Officers. 3rd ed., Naval Institute, 1928.

474

Spector, Ronald H. Eagle Against The Sun: The American War With Japan. Vintage Books A Division Of Random House, 1985.

Stahn, Carsten, and Jann K. Kleffner, Eds. Jus Post Bellum: Towards a Law Of Transition From Conflict To Peace. T.M.C. Asser, 2008.

Steil, Benn. The Marshall Plan: Dawn of The Cold War. Simon & Schuster, 2018.

Stephens, Bret. America in Retreat. Penguin Books, 2015.

Stewart, John Hall. A Documentary Survey of The French Revolution. Macmillan, 1951.

Stirk, Peter M. R. A History of Military Occupation From 1792 To 1914. Edinburgh University Press, 2016.

Stone, Julius. Legal Controls of International Conflict. Garland, 1954.

Stone, Norman. The Eastern Front. Penguin Books, 1998.

Strauss, Leo, and Joseph Cropsey. History of Political Philosophy. The University Of Chicago Press, 2006.

Suárez, Francisco et al. Selections from Three Works. Liberty Fund, 2015.

Suetonius and Catharine Edwards. Lives of The Caesars (Oxford World's Classics). Oxford University Press, 2008.

Suh, Jae-Jung. Truth and Reconciliation In South Korea: Between The Present And Future Of The Korean Wars. Taylor and Francis, 2013.

Sullivan, Patricia L. Who Wins? Predicting Strategic Success and Failure In Armed Conflict. Oxford University Press, 2012.

Szablewska, Natalia, and Sascha-Dominik Bachmann. Current Issues In Transitional Justice: Towards A More Holistic Approach. Springer International Publishing, 2014.

Tanaka, Toshiyuki. Hidden Horrors: Japanese War Crimes in World War II. Westview Press, 1996.

Taylor, Fred. Exorcising Hitler: The Occupation and Denazification Of Germany. Bloomsbury Press, 2011.

Temes, Peter S. The Just War. I.R. Dee, 2003.

475

Tenet, George J, and Bill Harlow. At The Center of The Storm. Harper Press, 2007.

Thompson, Kenneth W. Fathers of International Thought. Louisiana State University Press, 1994.

Tombs, Robert. The English and Their History. Alfred A. Knopf, 2015.

Tooke, Joan D. The Just War in Aquinas And Grotius. SPCK, 1965.

Totani, Yuma. Justice In Asia And The Pacific Region, 1945-1952: Allied War Crimes Prosecution. Cambridge University Press, 2015.

Trainor, Bernard E, and Michael R Gordon. Cobra II: The Inside Story of the Invasion and Occupation of Iraq. 2nd ed., Vintage Books, 2013.

Trial Of Japanese War Criminals. Government Printing Office, 1946.

Tuchman, Barbara W. A Distant Mirror. Knopf, 2002.

Tuck, Richard. Grotius, Hobbes and Pufendorf on Humanitarian Intervention. Cambridge University Press, 2013, p. 161.

Turner, Catherine. Violence, Law and The Impossibility Of Transitional Justice. Routledge, 2017.

Tusa, Ann, and John Tusa. The Nuremberg Trial. Legal Classics Library, 1995.

Unterberger, Betty Miller. America's Siberian Expedition, 1918-1920, A Study Of National Policy. Unterberger. N.C., 1956.

Van Evera, Stephen. Guide To Methods For Students Of Political Science. Cornell University Press, 1997.

Vattel, Emer de, et al. The Law Of Nations. Liberty Fund, 2008.

Vestal, James E. Planning For Change. Oxford University Press, 1993.

Vitoria, Francisco de et al. Political Writings. Cambridge University Press, 1991.

Von Glahn, Gerhard. The Occupation of Enemy Territory. Lund Press Minnesota Archive Editions, 1957.

Wallach, Evan J. Law of War In The 21St Century. Carolina Academic Press, 2017.

476

Walzer, Michael. Just and Unjust Wars: A Moral Argument With Historical Illustrations. Allen Lane, 1978.

Walzer, Michael. Just and Unjust Wars. 4th ed., Basic Books, 2006.

Walzer, Michael. Just and Unjust Wars. 5th ed., Basic Books, 2015.

Wetterau, Bruce. Macmillan Concise Dictionary of World History. Collier Books, 1986.

Whealey, Robert H. Hitler and Spain: The Nazi Role In The Spanish Civil War. 3rd ed., The University Press Of Kentucky, 2015.

Wolf, Dana. Post Occupation Obligations under the Law of Belligerent Occupation. The American University Washington College Of Law, 2016.

Wolfe, Robert. Americans As Proconsuls: United States Military Government In Germany And Japan, 1944-1952. Southern Illinois University Press, 1984.

Wright, Donald P, and Timothy R Reese. On Point II. Combat Studies Institute Press, 2008.

Yanow, Dvora, and Peregrine Schwartz-Shea. Interpretation And Method: Empirical Research Methods And The Interpretive Turn. 2nd ed., Routledge, 2015.

Williams, Charles. Konrad Adenauer. Lübbe, 2001.

Wilson, Sandra, et al. Japanese War Criminals: The Politics Of Justice After The Second World War. Columbia University Press, 2017.

Ziemke, Earl F. The U.S. Army in the Occupation of Germany, 1944-1946. Center Of Military History, United States Army, 1975.

Zink, Howard. American Military Government in Germany, 1944-1946. Macmillan, 1947.

NEWS REPORTS

Adnan, Ghassan, and Isabel Coles. "Baghdad Blast Walls Come Down". The Wall Street Journal, 2018, p. A7.

Baker, Gerard. "D-Day Nostalgia And The West's New Reality". The Wall Street Journal, 2019, p. C2.

477

"CNN.Com - Bid To Disrupt Afghan Vote 'Fails' - Sep 18, 2005". Edition.Cnn.Com, 2005, http://edition.cnn.com/2005/WORLD/asiapcf/09/18/afghan.poll/index.html. Accessed 13 Jan 2019.

"CNN.Com - Milestone Elections Begin In Iraq - Jan 30, 2005". Cnn.Com, 2005, http://www.cnn.com/2005/WORLD/meast/01/29/iraq.main/index.html. Accessed 14 Jan 2019.

Dufrene, Sean. "Federal Jury Acquits Ex-Marine In Iraqis' Deaths". Msnbc.Com, 2008, http://www.nbcnews.com/id/26443458/ns/world_news-mideast_n_africa/t/federal-jury-acquits- ex-marine-iraqis-deaths/#.XE3LE0xFxPY. Accessed 2 Jan 2019.

Eikenberry, Karl W., and David M. Kennedy. "Opinion | Americans And Their Military, Drifting Apart". Nytimes.Com, 2013, https://www.nytimes.com/2013/05/27/opinion/americans-and-their- military-drifting-apart.html. Accessed 25 Feb 2019.

Godwin, Peter. "Mandela's Troubled Legacy". The Wall Street Journal, 2018, p. C4, Accessed 18 July 2018.

Gordon, Michael. "Debate Lingering On Decision To Dissolve The Iraqi Military". Nytimes.Com, 2004, https://www.nytimes.com/2004/10/21/world/debate-lingering-on-decision- to-dissolve-the-iraqi-military.html. Accessed 25 Feb 2019.

Gordon, Michael R. "Problems Follow U.S. Military Wins". The Wall Street Journal, 2017, p. A- 8, Accessed 18 Dec 2017.

Gordon, Michael R. "Army's Iraq Lesson: Written, Withheld". The Wall Street Journal, 2018, pp. A1, A8.

Gould, Joe, and Tara Copp. "Pentagon Unveils $686 Billion Military Budget For FY19". Defense News, 2018, https://www.defensenews.com/breaking-news/2018/02/12/pentagon- unveils-686-billion-military-budget-for-2019/. Accessed 26 Sept 2018.

478

Hancock, David. "No Charges In Fallujah Shooting". Cbsnews.Com, 2005, https://www.cbsnews.com/news/no-charges-in-fallujah-shooting/. Accessed 21 Dec 2018.

"Iraq Electricity". Webapps.Aljazeera.Net, 2013, https://webapps.aljazeera.net/aje/custom/electricityiraq/index.html. Accessed 2 May 2018.

"Iraq War In Figures". BBC News, 2011, http://www.bbc.com/news/world-middle-east- 11107739. Accessed 10 Apr 2018.

"Iraq’s Tax Revenue | Iraqi Dinar Revaluation | All Iraq News". Iraqidinar123.Wordpress.Com, 2015, https://iraqidinar123.wordpress.com/tag/iraqs-tax-revenue/.

"Iwo Jima: Return of a Battlefield". TIME.Com, 2018, http://content.time.com/time/magazine/article/0,9171,900057,00.html. Accessed 20 Feb 2018.

Keohane, Robert. "A Credible Promise to the United Nations". The Financial Times, 2003, p. 15.

Lamothe, Dan. "Senior ISIS Leader Killed In Northern Afghanistan, Highlighting Shifting Militant Allegiances". Washington Post, 2018, https://www.washingtonpost.com/news/checkpoint/wp/2018/04/09/senior-isis-leader-killed-in- northern-afghanistan-highlighting-shifting-militant-allegiances/?utm_term=.d311dd4d81da. Accessed 9 Apr 2018.

Li, David K. "Https://Nypost.Com/201Ocasio-Cortez-Ignites-Controversy-With-Comments-On- Israeli-Occupation". The New York Times, 2018, https://nypost.com/2018/07/17/ocasio-cortez- ignites-controversy-with-comments-on-israeli-occupation/. Accessed 1 Nov 2018.

Loechner, Jack. "Trust The Military". Mediapost.Com, 2018, https://www.mediapost.com/publications/article/325486/trust-the-military.html. Accessed 26 Sept 2018.

479

Magnier, Mark, and Sonni Efron. "Arrested Development on Iraqi Police Force". Articles.Latimes.Com, 2004, http://articles.latimes.com/2004/mar/31/world/fg-cops31/3. Accessed 10 Dec 2018.

Miller, Marilyn, and Rick Armon. "Http://Www.Ohio.Com/News/Local/University-Of-Akron- Announces-New-Tiger-Team-To-Address-Enrollment-Slide-Finances-Leadership-Issues- 1.688547". Akron Beacon Journal, 2016, Accessed 9 June 2018.

"One Year On, Baghdad Falls Silent to Mark Defeat of ISIS". Www.Theepochtimes.Com, 2018, https://www.theepochtimes.com/one-year-on-baghdad-falls-silent-to-mark-defeat-of- isis_2735324.html. Accessed 11 Dec 2018.

OKINAWA ISLANDS RETURNED BY U.S. TO JAPANESE RULE http://www.nytimes.com/1972/05/15/archives/okinawa-islands-returned-by-us-to-japanese-rule- agnew-in-tokyo.html. Accessed 20 Feb 2018.

Sachs, Susan. "Iraqi Governing Council Sets Up Its Own Court For War Crimes". The New York Times, 2003, Accessed 8 Jan 2019.

Sly, Liz. "2nd Iraq Official Slain". Chicagotribune.Com, 2004, https://www.chicagotribune.com/news/ct-xpm-2004-06-14-0406140141-story.html. Accessed 10 Dec 2018.

"The Rule Of Law In Iraq: Who Should Try The Saddamites?". 2003, https://www.economist.com/node/21519483. Accessed 9 Jan 2019.

"Ukraine Passes Bill To Get Occupied Regions Back From Russia". US News And World Report, 2018, https://www.usnews.com/news/world/articles/2018-01-18/ukrainian-parliament-passes- bill-on-occupied-territories. Accessed 5 June 2018.

USA TODAY. "Army Chief: Force To Occupy Iraq Massive WASHINGTON (AP)". 2003, Accessed 16 Apr 2018.Accessed 4 May 2019.

480

Zidane, Salam. "Iraq Increases Taxes Amid Public Discontent". Al-Monitor, 2018, https://www.al-monitor.com/pulse/originals/2018/03/iraq-tax-budget-oil-corruption.html.

Zinsmeister, Karl. "15 Years Later, Iraq Is A Modest Success". The Wall Street Journal, 2018, Accessed 9 Apr 2018.

TREATIES AND INTERNATIONAL MATERIALS

"About The ICC". Icc-Cpi.Int, 2018, https://www.icc-cpi.int/about. Accessed 23 July 2018.

"Action For Peacekeeping (A4P)". United Nations Peacekeeping, 2019, https://peacekeeping.un.org/en/action-for-peacekeeping-a4p. Accessed 24 May 2019.

"Advisory Service on International Humanitarian Law, Icrc.Org, 2004, https://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf. Accessed 29 Aug 2018.

"Annexation". Opil.Ouplaw.Com, 2013, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1376. Accessed 7 Feb 2019.

"A/RES/41/128. Declaration On The Right To Development". Un.Org, 2019, http://www.un.org/documents/ga/res/41/a41r128.htm. Accessed 25 Dec 2018.

"Avalon Project: Cairo Conference 1943". Avalon.Law.Yale.Edu, 2008, http://avalon.law.yale.edu/wwii/cairo.asp. Accessed 19 Mar 2019.

"Avalon Project: Israel-Egypt Treaty". Avalon.Law.Yale.Edu, 2008, http://avalon.law.yale.edu/20th_century/isregypt.asp. Accessed 19 Jan 2019.

"Avalon Project - The Covenant Of The League Of Nations". Avalon.Law.Yale.Edu, 2018, http://avalon.law.yale.edu/20th_century/leagcov.asp. Accessed 11 Nov 2018.

481

"Charter Of The United Nations". Un.Org, 1945, http://www.un.org/en/charter-united-nations/. Accessed 29 May 2018.

"Customary IHL - Rule 65. Perfidy". Ihl-Databases.Icrc.Org, 2019, https://ihl- databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule65. Accessed 20 Jan 2019.

"Declaration Of Shared Commitments On UN Peacekeeping Operations". Peacekeeping.Un.Org, 2018, https://peacekeeping.un.org/sites/default/files/dpko-dfs-declaration-shared-commitments- unpeacekeeping-1812605e.pdf. Accessed 7 May 2019.

"Declaration Of War With Austria". French Revolution Timeline, 2018, https://frenchrevolutiontimelinesd.wordpress.com/2013/04/05/declaration-of-war-with-austria/. Accessed 7 Nov 2018.

"Elements Of Crimes". Icc-Cpi.Int, 2011, https://www.icc-cpi.int/NR/rdonlyres/336923D8- A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf. Accessed 18 Jan 2019.

"European Convention on Human Rights". Echr.Coe.Int, 2018, https://www.echr.coe.int/Documents/Convention_ENG.pdf. Accessed 10 July 2018.

European Union Rule of Law Mission in Kosovo - Home - EULEX. http://www.eulex- kosovo.eu/. Accessed 8 May 2018.

General Assembly, United Nations. "A/RES/36/55 - Declaration On The Elimination Of All Forms Of Intolerance And Of Discrimination Based On Religion Or Belief - UN Documents: Gathering A Body Of Global Agreements". Un-Documents.Net, 1981, http://www.un- documents.net/a36r55.htm. Accessed 25 Dec 2018.

"How The Court Works". Icc-Cpi.Int, 2019, https://www.icc-cpi.int/about/how-the-court- works/Pages/default.aspx#legalProcess. Accessed 9 Jan 2019.

482

Krishan, Devashish. 2005. "Judicial Precedent In The International Court Of Justice". Biicl.Org. https://www.biicl.org/files/918_devashish_krishan,_vinson_&_elkins_-_precedent.pdf. Accessed 21 May 2019.

"LAWS AND CUSTOMS OF WAR ON LAND (HAGUE, IV)". Loc.Gov, 2013, https://www.loc.gov/law/help/us-treaties/bevans/m-ust000001-0631.pdf. Accessed 1 July 2018.

"Law Of The Supreme Iraqi Criminal Tribunal". International Center For Transitional Justice, 2005, https://www.ictj.org/publication/law-supreme-iraqi-criminal-tribunal. Accessed 8 Jan 2019.

"Learning And Teaching IHL". International Committee Of The Red Cross, 2018, https://www.icrc.org/en/what-we-do/building-respect-ihl/education-outreach. Accessed 18 Aug 2018.

"Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion of 9 July 2004". Icj-Cij.Org, 2004, https://www.icj-cij.org/files/case- related/131/131-20040709-ADV-01-00-EN.pdf. Accessed 13 Feb 2019.

"Mandate | United Nations Peacebuilding”. Un.Org, 2019, https://www.un.org/peacebuilding/commission/mandate. Accessed 11 Dec 2018.

Mack, Michelle, and Jelena Pejic. 2008. "Increasing Respect For International Humanitarian Law In Non-International Armed Conflicts". International Committee Of The Red Cross. https://www.icrc.org/en/publication/0923-increasing-respect-international-humanitarian-law- non-international-armed-conflicts. Accessed 1 August 2019.

"Mandate | UNITED NATIONS PEACEBUILDING". 2019. Un.Org. https://www.un.org/peacebuilding/commission/mandate. Accessed 11 August 2019.

"OHCHR | Complaint Procedure Resolutions". Ohchr.Org, 1970, https://www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/Resolutions.aspx.

483

"OHCHR | International Covenant on Civil And Political Rights". Ohchr.Org, 2018, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx. Accessed 10 July 2018.

"OHCHR | Convention on the Rights of the Child". Ohchr.Org, 2019, https://www.ohchr.org/en/professionalinterest/pages/crc.aspx. Accessed 13 Feb 2019.

"OHCHR | International Covenant On Economic, Social And Cultural Rights". Ohchr.Org, 2019, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx. Accessed 11 Feb 2019.

"OHCHR Investigation on Sri Lanka". Ohchr.Org, 2015, https://www.ohchr.org/EN/HRBodies/HRC/Pages/OISL.aspx. Accessed 9 Dec 2018.

"OHCHR | Second Optional Protocol to the International Covenant on Civil and Political Rights". Ohchr.Org, 1989, https://www.ohchr.org/EN/ProfessionalInterest/Pages/2ndOPCCPR.aspx. Accessed 17 Feb 2019.

"OSCE Holds Discussion on Occupation of Georgian Territories". Osce.Org, 2018, https://www.osce.org/home/73289?download=true. Accessed 5 June 2018.

Pictet, Jean. "Commentary On The Geneva Conventions Of August 12 1949. Volume I, 1952". International Committee Of The Red Cross, 2018, https://www.icrc.org/en/publication/0203- commentary-geneva-conventions-12-august-1949-volume-i. Accessed 20 Apr 2018.

Protocols Additional to the Geneva Conventions of 12 August 1949. International Committee Of The Red Cross, 1977.

Reports of the Judgments, Advisory Opinions and Orders on the Legality of the Threat or Use of Nuclear weapons, Advisory Opinion of 8 July 1996" Icj-Cij.Org, 1996, http://www.icj- cij.org/files/case-related/95/095-19960708-ADV-01-00-EN.pdf. Accessed 16 July 2018.

"Resolution 1483". Unscr.Com, 2003, http://unscr.com/en/resolutions/doc/1483. Accessed 8 Jan 2019.

484

"Special Court for Sierra Leone » The Hague Justice Portal". Haguejusticeportal.Net, 2019, http://www.haguejusticeportal.net/index.php?id=8143. Accessed 9 Jan 2019.

"Statute Of The Court | International Court Of Justice". Icj-Cij.Org, 1945, https://www.icj- cij.org/en/statute. Accessed 19 Aug 2018.

"Statute of the Iraqi Special Tribunal". Hrcr.Org, 2018, http://www.hrcr.org/hottopics/statute/section2.html#1. Accessed 9 Jan 2019.

The European Court of Human Rights. Lawless V. Ireland. 3 Judgments and Decisions of the European Court of Human Rights 27, 1961, pp. 54-62.

The Geneva Conventions Of 12 August 1949. International Committee Of The Red Cross, 2006. (Pamphlet)

"The Geneva Conventions Of August 12 1949". International Committee of the Red Cross, 2015, https://www.icrc.org/. Accessed 10 Mar 2018.

"The Geneva Conventions Of 1949 And Their Additional Protocols - ICRC". Icrc.Org, 2018, https://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/overview- geneva-conventions.htm. Accessed 19 Aug 2018.

"The History of the European Union - European Union - European Commission". European Union, 2018, https://europa.eu/european-union/about-eu/history_en. Accessed 1 May 2018.

The International Court of Justice. Reparations For Injuries Suffered In The Service Of The United Nations (Advisory Opinion). 1949.

The International Court of Justice. Reservations To The Convention On The Prevention And Punishment Of The Crime Of Genocide (Advisory Opinion). 1951.

The International Court of Justice. United Kingdom V. Norway (Fisheries Case). 1951.

485

The International Court of Justice. Legality of the Threat or Use of Nuclear Weapons Advisory Opinion. 1996.

The International Court of Justice. Legal Consequences Of The Construction Of A Wall In Occupied Palestinian Territory. 2004.

The International Court of Justice. Case Concerning Armed Activities On The Territory Of The Congo. 2005.

The International Court of Justice. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia V. Serbia). 2015.

"The Potsdam Declaration". Birth Of The Constitution of Japan, 2003, http://www.ndl.go.jp/constitution/e/etc/c06.html. Accessed 24 Apr 2018.

"The Svalbard Treaty - The Faculty Of Law". Jus.Uio.No, 2005, https://www.jus.uio.no/english/services/library/treaties/01/1-11/svalbard-treaty.xml. Accessed 2 June 2019

"Territorial Integrity Of Ukraine". Un.Org, 2014, https://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/262. Accessed 3 Apr 2019.

"Treaties, States Parties, and Commentaries - Brussels Declaration, 1874". Ihl- Databases.Icrc.Org,

"Treaties, States Parties, And Commentaries - St Petersburg Declaration Relating To Explosive Projectiles, 1868". Ihl-Databases.Icrc.Org, 1988, https://ihl- databases.icrc.org/ihl/INTRO/130?OpenDocument. Accessed 13 Jan 2019.

"Treaty Of Annexation". International.Ucla.Edu, 2004, http://international.ucla.edu/institute/article/18447. Accessed 7 Feb 2019.

486

"Treaty Of General Relations And Protocol, Signed At Manila, On 4 July 1946, And Exchange Of Notes Constituting An Interim Agreement, Manila, 10 And 12 July 1946". Treaties.Un.Org, 1946, https://treaties.un.org/doc/Publication/UNTS/Volume%207/v7.pdf. Accessed 7 Dec 2018.

"United Nations Official Document". Un.Org, 1970, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/2675 (XXV). Accessed 2 Jan 2019.

"United Nations: Key Conference Outcomes On Human Rights". UN.Org, 1993, http://www.un.org/en/development/devagenda/humanrights.shtml/. Accessed 20 Aug 2018.

UN Secretary General. The Rule Of Law And Transitional Justice In Conflict And Post-Conflict Societies. UN, New York, 2011, pp. UN Doc. S/2004/616 para. 8.

"What Is EULEX? - EULEX - European Union Rule Of Law Mission In Kosovo". Eulex- Kosovo.Eu, 2018, http://www.eulex-kosovo.eu/?page=2,16. Accessed 17 July 2018.

"What Is International Humanitarian Law?". Icrc.Org, 2004, https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf. Accessed 13 Jan 2019.

"WHO | Urban Population Growth". Who.Int, 2016, https://www.who.int/gho/urban_health/situation_trends/urban_population_growth_text/en/. Accessed 16 Feb 2019.

"World’s Population Increasingly Urban With More Than Half Living In Urban Areas | UN DESA | United Nations Department Of Economic And Social Affairs". Un.Org, 2014, http://www.un.org/en/development/desa/news/population/world-urbanization-prospects- 2014.html. Accessed 16 Feb 2019.

US Materials: Statutes, Court cases, Legal materials, and miscellaneous items

487

10 United States Code Chapter 47 - UNIFORM CODE OF MILITARY JUSTICE. 801, et sec, Government Printing Office, 2016.

"10 USC 888: Art. 88. Contempt Toward Officials". Uscode.House.Gov, 2019, http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10- section888&num=0&edition=prelim. Accessed 25 May 2019.

"22 USC: Foreign Relations and Intercourse". Gpo.Gov, 2016, https://www.gpo.gov/fdsys/pkg/USCODE-2010-title22/html/USCODE-2010-title22-chap39.htm. Accessed 9 May 2018.

"22 USC 2321K: Designation Of Major Non-NATO Allies". Uscode.House.Gov, 2018, http://uscode.house.gov/view.xhtml?req=%28title:22%20section:2321k%20edition:prelim%29. Accessed 10 May 2018.

"10 CFR § 1047.7 - Use Of Deadly Force.". LII / Legal Information Institute, 2019, https://www.law.cornell.edu/cfr/text/10/1047.7. Accessed 17 Feb 2019.

American Insurance Company v. Canter, 26 U.S. (1 Peters 511) 511 (1828). 1828.

"Hostage Case, United States v. List (Wilhelm) And Others, Trial Judgment, Case No 7, (1948) 11 TWC 757, (1950) 11 TWC 1230, (1948) 8 LRTWC 34, ICL 491 (US 1948), (1948) 15 ILR 632, 19Th February 1948, International Military Tribunal [IMT]; Nuremberg Military Tribunal [NMT]". Opil.Ouplaw.Com, 1949, http://opil.ouplaw.com/view/10.1093/law:icl/491us48.case.1/law-icl-491us48. Accessed 24 June 2018.

"442nd Regimental Combat Team Facts". The442.Org, 2018, http://the442.org/442ndfacts.html. Accessed 12 Mar 2018.

Amstutz, SSgt Whitney. "Air Force Facilitates Army RIP/TOA". U.S. Air Forces Central Command, 2015, https://www.afcent.af.mil/News/Article/587185/air-force-facilitates-army- riptoa/. Accessed 1 Mar 2019.

488

"Asian Pacific Americans in the U.S. Army | The United States Army". Army.Mil, 2018, https://www.army.mil/asianpacificamericans/history/. Accessed 12 Mar 2018.

"A Sign In Front Of A U.S. Military Installation In Berlin Features A Quotation By General Dwight Eisenhower That Reads: "We Come As Conquerors...Not As Oppressors." - Collections Search - United States Holocaust Memorial Museum". Collections.Ushmm.Org, 1945, https://collections.ushmm.org/search/catalog/pa1086512. Accessed 6 Apr 2018.

"Allied Occupation of Germany, 1945-52". 2001-2009.State.Gov, 2009, https://2001- 2009.state.gov/r/pa/ho/time/cwr/107189.htm. Accessed 10 Mar 2019.

"APPENDIX A JOINT CHIEFS OF STAFF STANDING RULES OF ENGAGEMENT". Global Security, 2019, https://www.globalsecurity.org/military/library/report/call/call_96- 6_roeappa2.htm. Accessed 2 Feb 2019.

Basic Law And Occupation Statute. Office Of The High Commissioner For Germany, 1950.

"Bosnia And Herzegovina". U.S. Department Of State, 2018, https://www.state.gov/r/pa/ei/bgn/2868.htm. Accessed 9 Apr 2018.

"Bureau Of Conflict And Stabilization Operations". State.Gov, 2018, https://www.state.gov/j/cso/. Accessed 20 Feb 2019.

Carney, Jay. "Press Briefing By Press Secretary Jay Carney, 3/18/2014". Whitehouse.Gov, 2014, http://www.whitehouse.gov/the-press-office/2014/03/18/press-briefing-press-secretary- jay-carney-3182014. Accessed 20 Feb 2019.

"Center For Army Lessons Learned | US Army Combined Arms Center". 2019. Usacac.Army.Mil. https://usacac.army.mil/organizations/mccoe/call. Accessed 19 August 2019.

"Chapter I: A Difficult Birth". History.Army.Mil, 2018, https://history.army.mil/books/wwii/Occ-GY/ch01.htm. Accessed 7 Mar 2018.

489

"COALITON PROVISIONAL AUTHORITY ORDER NUMBER 1 DE-BA`ATHIFICATION OF IRAQI SOCIETY". Nsarchive2.Gwu.Edu, 2018, https://nsarchive2.gwu.edu/NSAEBB/NSAEBB418/docs/9a%20- %20Coalition%20Provisional%20Authority%20Order%20No%201%20-%205-16-03.pdf. Accessed 9 Dec 2018.

"COALITION PROVISONAL AUTHORITY ORDER NUMBER 2 DISSOULUTION OF ENTITIES". Nsarchive2.Gwu.Edu, 2003, https://nsarchive2.gwu.edu//NSAEBB/NSAEBB418/docs/9b%20- %20Coalition%20Provisional%20Authority%20Order%20No%202%20-%208-23-03.pdf. Accessed 12 Dec 2018.

"Coalition Order Number 7 Penal Code". Permanent.Access.Gpo.Gov, 2003, https://permanent.access.gpo.gov/lps46304/cpaord7.pdf. Accessed 9 Feb 2019.

"COALITION PROVISIONAL AUTHORITY ORDER NUMBER 13 (REVISED) (AMENDED) THE CENTRAL CRIMINAL COURT OF IRAQ". Gjpi.Org, 2003, http://gjpi.org/wp- content/uploads/cpa-order-13-ccci-revised-amended.pdf. Accessed 10 Feb 2019.

"COALITION PROVISIONAL AUTHORITY ORDER NUMBER 84 AMENDMENTS TO COALITION PROVISIONAL AUTHORITY ORDER NUMBER 37 (CPA/ORD/19 September 2003/37) And COALITION PROVISIONAL AUTHORITY ORDER NUMBER 49 (CPA/ORD/19 February 2004/49)". Govinfo.Library.Unt.Edu, 2003, http://govinfo.library.unt.edu/cpairaq/regulations/20040430_CPAORD_84_Amendments_of_CPA_Order_37_and_49.pdf.

Defense.Gov, 2016, Law of War Manual https://www.defense.gov/Portals/1/Documents/DoD_Law_of_War_Manual- June_2015_Updated_May_2016.pdf. Accessed 26 June 2018.

"Defense Institute Of Security Cooperation Studies". Discs.Dsca.Mil, 2017, http://www.discs.dsca.mil/_pages/resources/default.aspx?section=publications&type=greenbook. Accessed 9 May 2018.

490

Delawie, Greg. "Ambassador Delawie’s Statement To Radio Free Europe | U.S. Embassy In Kosovo". U.S. Embassy In Kosovo, 2018, https://xk.usembassy.gov/ambassador-delawies- statement-to-radio-free-europe/. Accessed 9 June 2018.

Department of Defense. DoD Announces Update To The DoD Law Of War Manual. 2016, https://www.defense.gov/News/News-Releases/News-Release-View/Article/852738/dod- announces-update-to-the-dod-law-of-war-manual/#.V5HxWwNlJJM.twitter. Accessed 11 June 2018.

Department Of Defense Law of War Manual. 2nd ed., Department Of Defense, 2016.

Department of State. Future of Iraq Project. Department Of State, Washington, D.C., 2002.

"Directive to Commander-In-Chief of United States Forces of Occupation Regarding the Military Government of Germany; April 1945 (JCS 1067)". US Embassy Germany, 1945, https://usa.usembassy.de/etexts/ga3-450426.pdf. Accessed 13 Mar 2018.

"Doctrine For The Armed Forces Of The United States". Fas.Org, 2017, https://fas.org/irp/doddir/dod/jp1.pdf. Accessed 30 July 2018.

"Elections In Afghanistan". 2001-2009.State.Gov, 2005, https://2001- 2009.state.gov/p/sca/rls/fs/2005/53381.htm. Accessed 13 Jan 2019.

"FM 27-5/OPNAV 50E-3 US Army And Navy Manual Military Government And Civil Affairs". Loc.Gov, 1943, https://www.loc.gov/rr/frd/Military_Law/pdf/mil_gov-civil_affairs.pdf. Accessed 17 Mar 2019.

"FM 27-10 DEPARTMENT OF THE ARMY FIELD MANUAL: THE LAW OF LAND WARFARE". US Army Headquarters, 1976, https://www.aschq.army.mil/gc/files/FM27-10.pdf. Accessed 18 Feb 2019.

"FM 41-10 Civil Affairs". Library.Enlistment.US, 1985, http://library.enlistment.us/field- manuals/series-3/FM41-10/CH10.PDF. Accessed 16 Mar 2019.

491

Forged In Fire: Legal Lesson Learned During Military Operations 1994-2006. Center For Law And Military Operations, 2006.

"Forward Edge Of The Battle Area Definition". Militarydictionary.Org, 2015, https://www.militarydictionary.org/term/forward-edge-of-the-battle-area. Accessed 9 Dec 2016.

Fukuyama, Francis, and Kongdan Oh. "The US-Japan Security Relationship After The Cold War". DTIC, 1993, http://www.dtic.mil/dtic/tr/fulltext/u2/a282640.pdf. Accessed 22 Apr 2018.

Gonzales, Alberto R. Subject: Decision Re Application Of The Geneva Conventions On Prisoners Of War To The Conflict With Al Qaeda And The Taliban. Washington D.C., 2002. "Govinfo". Gov, 2019, https://www.govinfo.gov/app/details/BUDGET-2019-BUD/context. Accessed 1 Feb 2019.

Garamone, James. "Defense.Gov News Article: Why Civilian Control Of The Military?". Archive.Defense.Gov, 2001, http://archive.defense.gov/news/newsarticle.aspx?id=45870. Accessed 13 Jan 2019.

Handbook For Military Government In Germany Prior To Defeat Or Surrender. Supreme Headquarters, Allied Expeditionary Force, Office Of The Chief Of Staff, 1945.

"History Of German-American Relations: 1939-1945 (Original Documents)". US Diplomatic Mission To Germany, 2008, https://usa.usembassy.de/garelations3945.htm. Accessed 26 Feb 2018.

Implementation of the Law for Liberation from National Socialism and Militarism. [Office Of Military Government For Germany (U.S.), Manpower Division, APO 742, Reports And Statistics], 1946.

"IRAQI ELECTIONS: January 30, 2005". 2001-2009.State.Gov, 2005, https://2001- 2009.state.gov/r/pa/scp/2005/41206.htm. Accessed 13 Jan 2019.

492

"Joint Task Force Headquarters". Fas.Org, 2012, https://fas.org/irp/doddir/dod/jp3-33.pdf. Accessed 30 July 2018.

"JP 3-10 Joint Security Operations In Theater". 2019. Jcs.Mil. https://www.jcs.mil/Doctrine/Joint-Doctrine-Pubs/3-0-Operations-Series. Accessed 21 August 2019.

"JP 5-0 Joint Planning". 2017. Jcs.Mil. https://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/jp5_0_20171606.pdf. Accessed 12 August 2019.

J5 | Strategy, Plans and Policy. 2018. "Joint Chiefs Of Staff > Directorates > J5 | Strategy, Plans And Policy". Joint Chiefs Of Staff, J5 Strategy, Plans And Policy. https://www.jcs.mil/Directorates/J5-Strategy-Plans-and-Policy/. Accessed 19 August 2019

"Kosovo". U.S. Department Of State, 2018, https://www.state.gov/r/pa/ei/bgn/100931.htm. Accessed 9 Apr 2018.2018, https://ihl-databases.icrc.org/ihl/INTRO/135. Accessed 6 Mar. 2018.

Kouba, Dustin. 2017. "OPERATIONAL LAW HANDBOOK 17Th Edition". Loc.Gov. https://www.loc.gov/rr/frd/Military_Law/pdf/operational-law-handbook_2017.pdf. Accessed 17 July 2019.

"Lessons Learned: Law And Military Operations In Kosovo, 1999-2001: Military Legal Resources (Federal Research Division: Customized Research And Analytical Services, Library Of Congress)". 2001. Loc.Gov. https://www.loc.gov/rr/frd/Military_Law/CLAMO_Lessons- Learned-Kosovo.html. Accessed 18 July 2019.

"Milestones: 1945–1952 - Office Of The Historian". History.State.Gov, 2018, https://history.state.gov/milestones/1945-1952/japan-reconstruction. Accessed 20 Feb 2018.

"Milestones: 1977–1980 - Office Of The Historian". History.State.Gov, 2019, https://history.state.gov/milestones/1977-1980/camp-david. Accessed 19 Jan. 2019.

493

"Nicaragua - United States Intervention, 1909-33". Countrystudies.US, 2018, http://countrystudies.us/nicaragua/10.htm. Accessed 20 Feb 2018.

"Mission". Department Of Homeland Security, 2018, https://www.dhs.gov/mission. Accessed 29 July 2018.

"Operation Plan [OPLAN]". Global Security, 2017, https://www.globalsecurity.org/military/ops/oplan.htm. Accessed 31 May 2019.

"Our Documents - Transcript of Platt Amendment (1903)". Ourdocuments.Gov, 1903, https://www.ourdocuments.gov/doc.php?flash=false&doc=55&page=transcript. Accessed 17 Jan 2019.

"Papers Relating To The Foreign Relations Of The United States, The Paris Peace Conference, 1919, Volume XIII - Office Of The Historian". History.State.Gov, 2018, https://history.state.gov/historicaldocuments/frus1919Parisv13/ch23subch1. Accessed 7 Mar 2018.

Petraeus, David, and James Amos. US Army/ US Marine Corps Counterinsurgency Field Manual. Signalman Publishing, 2006.

Policy, J5. "Joint Chiefs Of Staff > Directorates > J5 | Strategic Plans And Policy". Jcs.Mil, 2018, http://www.jcs.mil/Directorates/J5-Strategic-Plans-and-Policy/. Accessed 17 Aug 2018.

"Project CHECKMATE - Sourcewatch". Sourcewatch.Org, 2007, https://www.sourcewatch.org/index.php/Project_CHECKMATE. Accessed 23 May 2019.

Records Of U.S. Occupation Headquarters, World War II https://www.archives.gov/research/guide-fed-records/groups/260.html. Accessed 20 Feb 2018.

Restatement Of The Foreign Relations Law Of The US. 3rd ed., The American Law Institute, 1987, p. Volume 1.

494

"South Korea - South Korea Under United States Occupation, 1945-48". Countrystudies.US, 2018, http://countrystudies.us/south-korea/9.htm. Accessed 20 Feb 2018.

"STAND-TO! The Official Focus Of The U.S. Army FM 3-0, Operations". 2017. Www.Army.Mil. https://www.army.mil/standto/2017-10-10. Accessed 1 August 2019.

"TARGET DEVELOPMENT - USAF INTELLIGENCE TARGETING GUIDE". Fas.Org, 1998, https://fas.org/irp/doddir/usaf/afpam14-210/part05.htm#page41. Accessed 17 Sept 2018.

"The American Convention On Human Rights". Cartercenter.Org, 2018, https://www.cartercenter.org/resources/pdfs/peace/democracy/des/amer_conv_human_rights.pdf. Accessed 10 July 2018.

"The Constitution Of The United States: A Transcription". National Archives, 2019, https://www.archives.gov/founding-docs/constitution-transcript. Accessed 4 July 2019.

"The Term "Positive Law"". Uscode.House.Gov, 2018, http://uscode.house.gov/codification/term_positive_law.htm. Accessed 29 Aug 2018.

"The Unified Command Plan And Combatant Commands: Background And Issues For Congress". Everycrsreport.Com, 2013, https://www.everycrsreport.com/reports/R42077.html. Accessed 17 Apr 2018.

The United States Strategic Bombing Survey (Europe). The US Government Printing Office, 1945.

The World Factbook — Central Intelligence Agency. https://www.cia.gov/library/publications/the-world-factbook/geos/ja.html.

"Truth Commission: Serbia And Montenegro". United States Institute Of Peace, 2012, https://www.usip.org/publications/2002/02/truth-commission-serbia-and-montenegro. Accessed 7 June 2018.

495

"United States Initial Post-Surrender Policy For Japan (SWNCC150/4) (Text) | Birth Of The Constitution Of Japan". Ndl.Go.Jp, 2004, http://www.ndl.go.jp/constitution/e/shiryo/01/022/022tx.html. Accessed 8 Apr 2018.

United States, Congress, Agricultural Act Of 1949. 416 (b), Government Printing Office, 1949.

United States, Congress, Agricultural Trade Development And Assistance Act Of 1954. Government Printing Office, 1954.

United States, Congress, Philippine Autonomy Act Of 1916. 39 Stat. 545, c. 416, Government Printing Office, 1916.

United States, Congress, Philippine Independence Act Mar. 24, 1934, Ch. 84, 48 Stat. 456, Ch. 84. The Government Printing Office, 1934.

United States, Congress, Teller Resolution (Cuba) Apr. 20, 1898, No. 24, 30 Stat. 738. 1898.

"United States Pacific Command (USPACOM)". Pacom.Mil, 2018, http://www.pacom.mil. Accessed 5 Jan 2018.

"Unit History Of The 31St Infantry Regiment". 31Stinfantry.Org, 2014, http://www.31stinfantry.org/wp-content/uploads/2014/01/Chapter-8.pdf. Accessed 19 Mar 2019.

"U.S. Air Force - Practice Areas". Airforce.Com, 2018, https://www.airforce.com/careers/specialty-careers/jag/careers/practice-areas. Accessed 28 July 2018.

"U.S. Department Of Justice". Justice.Gov, 2018, https://www.justice.gov/. Accessed 29 July 2018.

"U.S. Government Returns Balangiga Bells To The Philippines | U.S. Embassy In The Philippines". U.S. Embassy In The Philippines, 2018, https://ph.usembassy.gov/us-government- returns-balangiga-bells-to-the-philippines/. Accessed 12 Dec 2018.

496

"'We Will, In Fact, Be Greeted As Liberators' - Cheney". Informationclearinghouse.Info, 2003, http://www.informationclearinghouse.info/article5145.htm. Accessed 17 Dec 2018.

White House. STATEMENT OF U. S. POLICY RELATING TO JAPAN, PREPARED JOINTLY BY STATE, WAR AND NAVY DEPARTMENTS. September 6, 1945. 1945. Accessed 28 Mar 2018.

WEBSITE MATERIALS

"2018 Japan Military Strength". Globalfirepower.Com, 2018, https://www.globalfirepower.com/country-military-strength-detail.asp?country_id=japan. Accessed 10 May 2018.

Adams, Robert. "THE LAWS OF WAR: PROBLEMS OF IMPLEMENTATION IN CONTEMPORARY CONFLICTS". Scholarship.Law.Duke.Edu, 1995, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=https://www.bing.com/&httpsredir =1&article=1358&context=djcil. Accessed 30 Aug 2018.

Allman, Mark J., and Tobias L. Winright. "Growing Edges of Just War Theory: Jus Ante Bellum, Jus Post Bellum, and Imperfect Justice". Journal Of The Society Of Christian Ethics, vol. 32, no. 2, 2012, pp. 178-179. Johns Hopkins University Press, doi:10.1353/sce.2012.0039. Accessed 1 May 2018.

Alsaafin, Linah. "Digital Occupation: What's Behind Israel's Social Media In Arabic". Aljazeera.Com, 2018, https://www.aljazeera.com/news/2018/04/digital-occupation-israel-social- media-arabic-180403121518782.html. Accessed 14 Mar 2019.

Amadeo, Kimberly. "The Ongoing Costs Of The Iraq War". The Balance, 2019, https://www.thebalance.com/cost-of-iraq-war-timeline-economic-impact-3306301. Accessed 25 Feb 2019.

497

Arai-Takahashi, Yutaka. "Preoccupied With Occupation: Critical Examinations Of The Historical Development Of The Law Of Occupation". International Review Of The Red Cross, vol. 94, no. 885, 2012, pp. 51-80. Cambridge University Press (CUP), doi:10.1017/s1816383112000495.

Avey, Paul C., and Michael C. Desch. "What Do Policymakers Want From Us? Results Of A Survey Of Current And Former Senior National Security Decision Makers". International Studies Quarterly, vol. 58, no. 2, 2014, pp. 227-246. Oxford University Press (OUP), doi:10.1111/isqu.12111.

Bak, Simone. "Jus Post Bellum From The Jordanian Perspective: Implications For U.S. Policy Makers | Small Wars Journal". Smallwarsjournal.Com, 2018, http://smallwarsjournal.com/index.php/jrnl/art/jus-post-bellum-jordanian-perspective- implications-us-policy-makers. Accessed 2 Jan 2019.

Baker, Frayne. "Occupation Of Japan". Www.Army.Mil, 1946, https://www.army.mil/article/4614/occupation_of_japan. Accessed 26 Mar 2018.

Banta, Benjamin R. "‘Virtuous War’ And The Emergence Of Jus Post Bellum". Review Of International Studies, vol. 37, no. 01, 2010. Cambridge University Press (CUP), doi:10.1017/s0260210510000434. Accessed 8 May 2018.

Bass, Gary J. "Jus Post Bellum". Philosophy And Public Affairs, vol. 32, no. 4, 2004, p. 384. Accessed 1 May 2018.

Bellamy, Alex J. "The Responsibilities Of Victory: Jus Post Bellum And The Just War". Review Of International Studies, vol. 34, no. 04, 2008, p. 602. Cambridge University Press (CUP), doi:10.1017/s026021050800819x. Accessed 2 May 2018.

Bellamy, Alex J. "The Responsibility To Protect And The Problem Of Military Intervention". International Affairs, vol. 84, no. 4, 2008, pp. 615-639., doi:10.1111/j.1468-2346.2008.00729.x. Accessed 15 May 2018.

498

Ben-Porath, Sigal. "Care Ethics And Dependence-Rethinking Jus Post Bellum". Hypatia, vol. 23, no. 2, 2008, pp. 61-71. Wiley, doi:10.1111/j.1527-2001.2008.tb01186.x. Accessed 10 Oct 2016.

Benson, Christina C. "Jus Post Bellum In Iraq: The Development Of Emerging Norms For Economic Reform In Post Conflict Countries". Richmond Journal Of Global Law And Business, vol. 11, no. 4, 2012.

Berit, Van Neste. "Cicero And St. Augustine's Just War Theory: Classical Influence On A Christian Idea". Graduate Theses and Dissertations, 2006, http.//scholacommons.usf.edu/etd/3782.

Bhuta, Nehal. "Judging Dujail: The First Trial before the Iraqi High Tribunal". Human Rights Watch, 2006, https://www.hrw.org/reports/2006/iraq1106/. Accessed 9 Jan 2019.

Bohman, James. "Jus Post Bellum As A Deliberative Process: Transnationalising Peace- Building". Irish Journal Of Sociology, vol. 20, no. 2, 2012, pp. 10-27. SAGE Publications, doi:10.7227/ijs.20.2.2. Accessed 12 Mar 2018.

Boon, Kristen E. "Obligations Of The New Occupiers: The Contours Of Jus Post Bellum". Loyola (L.A.) International & Comparative Law Review, vol. 31, 2009, Accessed 13 July 2018.

Boot, Max. "Reconfiguring USAID For State-Building". Council On Foreign Relations, 2016, https://www.cfr.org/report/reconfiguring-usaid-state-building. Accessed 5 July 2019.

Bowers, Christopher O. "Future Megacity Operations--Lessons From Sadr City". Military Review, May-June 2015, 2015, https://usacac.army.mil/CAC2/MilitaryReview/Archives/English/MilitaryReview_20150630_art 006.pdf. Accessed 17 Apr 2018.

Brief History Of The G-2 Section, GHQ, SWPA http://cgsc.contentdm.oclc.org/cdm/ref/collection/p4013coll8/id/1001. Accessed 12 Mar 2018.

499

Bruno, Greg. "U.S. Security Agreements And Iraq". Council On Foreign Relations, 2008, https://www.cfr.org/backgrounder/us-security-agreements-and-iraq. Accessed 11 May 2018.

Burke, Jason. "'The Wars Will Never Stop' - Millions Flee Bloodshed As Congo Falls Apart". The Guardian, 2019, https://www.theguardian.com/world/2018/apr/03/millions-flee-bloodshed- as-congos-army-steps-up-fight-with-rebels-in-east. Accessed 20 Jan 2019.

Buxbaum, Richard M. "A Legal History Of International Reparations". Berkeley Journal Of International Law, vol. 6, no. 2, 2006. Walter De Gruyter Gmbh, doi:10.2202/1539-8323.1079. Accessed 8 June 2018.

Caldwell, Dan, and Robert E. Williams. "Jus Post Bellum: Just War Theory And The Principles Of Just Peace". International Studies Perspectives, vol. 7, no. 4, 2006, pp. 309-320., doi:10.1111/j.1528-3585.2006.00256.x.

Campanelli, Danio. "The Law Of Military Occupation Put To The Test Of Human Rights Law". International Review Of The Red Cross, vol. 90, no. 871, 2008, p. 653. Cambridge University Press (CUP), doi:10.1017/s1560775508000138. Accessed 9 Mar 2019.

Candela, Miguel, and Zigor Aldama. "The Scars Of Sri Lanka's Civil War". Aljazeera.Com, 2016, https://www.aljazeera.com/indepth/inpictures/2015/12/scars-sri-lanka-civil-war- 151221062101569.html. Accessed 5 Jan 2019.

Cavanaugh, ML. "Military Victory Is Dead - Modern War Institute". Modern War Institute, 2016, https://mwi.usma.edu/defeat-military-victory/. Accessed 14 Jan 2019.

Charlesworth, Hilary. "Think Pieces: Law After War". Melbourne Journal Of International Law, vol. 8, 2007, pp. 234-247. Accessed 16 Nov 2017.

Chayes, Antonia. "Chapter VII1/2: Is Jus Post Bellum Possible?" European Journal Of International Law, vol. 24, no. 1, 2013, p. 292. Oxford University Press (OUP), doi:10.1093/ejil/chs089. Accessed 2 May 2018.

500

Chelimo, Gertrude C. "Defining Armed Conflict In International Humanitarian Law". Inquiries Journal, 2011, http://www.inquiriesjournal.com/articles/1697/defining-armed-conflict-in- international-humanitarian-law. Accessed 7 Sept 2018.

Christie, Edward Hunter. "Sanctions After Crimea: Have They Worked?" NATO Review, 2016, https://www.nato.int/docu/review/2015/Russia/sanctions-after-crimea-have-they- worked/EN/index.htm. Accessed 5 June 2018.

Churchill, Winston S. "Churchill's Iron Curtain Speech". Westminster College, 2014, https://www.westminster-mo.edu/explore/history-traditions/IronCurtainSpeech.html. Accessed 22 Apr 2018.

Cicero. "Latin Texts & Translations Pro Milone". Perseus.Uchicago.Edu, 2016, http://perseus.uchicago.edu/cgi- bin/philologic/search3torth?dbname=LatinAugust2012&author=^c. Accessed 1 May 2018.

Clifford, George M. "Jus Post Bellum: Foundational Principles and a Proposed Model". Journal of Military Ethics, vol. 11, no. 1, 2012, pp. 42-57., doi:10.1080/15027570.2012.674242. Accessed 24 July 2018.

Cohen, Jean L. "The Role of International Law in Post-Conflict Constitution-Making: Towards a Jus Post Bellum for "Interim Occupations"". New York Law School Legal Review, vol. 51, 2007. Accessed 13 July 2018.

Coles, Isabel, and Ali Nathan. "Iraq's Shiite-Sunni Schism Loses Its Bite". The Wall Street Journal, 2018, Accessed 8 May 2018.

Corn, Geoffrey. "Mixing Apples and Hand Grenades the Logical Limit of Applying Human Rights Norms to Armed Conflict". Journal of International Humanitarian Legal Studies, vol. 1, no. 1, 2010, pp. 52-94. Brill Academic Publishers, doi: 10.1163/187815210x12766020139802. Accessed 17 June 2018.

"Court De Cassation". The Encyclopedia Britannica, Inc., 2011.

501

Cowden, Captain, USN, Anthony. "Forgetting Phase IV All Over Again In Iraq". The National Interest, 2016, https://nationalinterest.org/blog/the-skeptics/forgetting-phase-iv-all-over-again- iraq-16225. Accessed 14 Mar 2019.

Cox, Robert W. "Social Forces, States And World Orders: Beyond International Relations Theory". Millennium: Journal Of International Studies, vol. 10, no. 2, 1981, pp. 126-155. SAGE Publications, doi:10.1177/03058298810100020501.

Crane, Conrad C., and W. Andrew Terrill. "Reconstructing Iraq: Insights, Challenges, And Missions For Military Forces In A Post-Conflict Scenario". Ssi.Armywarcollege.Edu, 2003, http://ssi.armywarcollege.edu/pdffiles/pub182.pdf. Accessed 19 Jan 2019.

Croxton, Derek. "The Peace Of Westphalia Of 1648 And The Origins Of Sovereignty". The International History Review, vol. 21, no. 3, 1999. Informa UK Limited, doi:10.1080/07075332.1999.9640869.

Cullen, Anthony. “The Concept Of Non-International Armed Conflict In International Humanitarian Law". Cambridge Studies In International Law And Comparative Law, vol. 66, 2010, Accessed 7 Sept 2018.

"Cultural Cognition Project - Home". Culturalcognition.Net, 2019, http://www.culturalcognition.net/. Accessed 18 August 2019.

De Brabandere, Eric. "The Responsibility for Post-Conflict Reforms: A Critical Assessment of Jus Post Bellum as a Legal Concept". Vanderbilt Journal Of Transitional Law, vol. 43, 2010.

Delahunty, Robert J., and John Yoo. "From Just War to False Peace". Chicago Journal of International Law, vol. 13, no. 1, 2012, Accessed 26 June 2018.

Dennis, Michael J. "Application Of Human Rights Treaties Extraterritorially In Times Of Armed Conflict And Military Occupation". The American Journal Of International Law, vol. 99, no. 1, 2005, p. 119. JSTOR, doi:10.2307/3246094. Accessed 17 June 2018.

502

Desch, Michael. "Technique Trumps Relevance: The Professionalization Of Political Science And The Marginalization Of Security Studies". Perspectives On Politics, vol. 13, no. 2, 2015, p. 377. Cambridge University Press (CUP), doi:10.1017/s1537592714004022. Accessed 13 Dec 2018.

Desch, Michael C. "How Political Science Became Irrelevant". The Chronicle Of Higher Education, 2019, https://www.chronicle.com/article/How-Political-Science-Became/245777. Accessed 15 May 2019.

Dobbins, J. F. "America's Role In Nation-Building: From Germany To Iraq". Survival, vol. 45, no. 4, 2003, pp. 87-110. Informa UK Limited, doi:10.1093/survival/45.4.87. Accessed 2 Sept 2018.

Dobbins, James. "Nation-Building". Rand.Org, 2005, https://www.rand.org/pubs/corporate_pubs/CP22-2005-04.html. Accessed 10 Mar 2019.

Doyle, Michael W., and Nicholas Sambanis. "International Peacebuilding: A Theoretical And Quantitative Analysis". American Political Science Review, vol. 94, no. 04, 2000, pp. 779-801. Cambridge University Press (CUP), doi:10.2307/2586208. Accessed 6 Aug 2018.

Droege, Cordula. "Elective Affinities? Human Rights and Humanitarian Law". International Review Of The Red Cross, vol. 90, no. 871, 2008, p. 501. Cambridge University Press (CUP), doi:10.1017/s1560775508000084. Accessed 17 Mar 2019.

Dubovyk, Volodymyr. "Ukraine And Russia: Peace, War And The Future | Yaleglobal Online". Yaleglobal.Yale.Edu, 2018, https://yaleglobal.yale.edu/content/ukraine-and-russia-peace-war- and-future. Accessed 15 Oct 2018.

Eckart, Christian. "Saddam Hussein's Trial In Iraq: Fairness, Legitimacy & Alternatives, A Legal Analysis". Scholarship.Law.Cornell.Edu, 2006, http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1029&context=lps_papers. Accessed 8 Jan 2019.

503

Edelstein, David M. "Occupational Hazards: Why Military Occupations Succeed Or Fail". International Security, vol. 29, no. 1, 2004, pp. 49-91. MIT Press - Journals, doi:10.1162/0162288041762913.

Emery, John R., and Daniel R. Brunstetter. "Drones as Aerial Occupation". Peace Review, vol. 27, no. 4, 2015, pp. 424-431. Informa UK Limited, doi:10.1080/10402659.2015.1094319. Accessed 1 Nov 2018.

Esterbrook, John. "Rumsfeld: It Would Be A Short War". Cbsnews.Com, 2002, https://www.cbsnews.com/news/rumsfeld-it-would-be-a-short-war/. Accessed 15 Feb 2019.

Evans, Garth, and Mohamed Sahnoun. "The Responsibility to Protect". Responsibilitytoprotect.Org, 2001, http://responsibilitytoprotect.org/ICISS%20Report.pdf. Accessed 10 Jan 2019.

Evans, Mark. "Balancing Peace, Justice And Sovereignty In Jus Post Bellum: The Case Of `Just Occupation'". Millennium: Journal Of International Studies, vol. 36, no. 3, 2008, pp. 533-554. SAGE Publications, doi:10.1177/03058298080360030801. Accessed 15 Apr 2018.

Evans, Mark. "Moral Responsibilities And The Conflicting Demands Of Jus Post Bellum". Ethics & International Affairs, vol. 23, no. 2, 2009, pp. 147-164. Cambridge University Press (CUP), doi:10.1111/j.1747-7093.2009.00204.x.

Fairchild, Byron. "UNITED STATES FORCES IN ICELAND". History.Army.Mil, 2018, https://history.army.mil/books/70-7_03.htm. Accessed 26 Mar 2018.

Fearon, James D., and David D. Laitin. "Neotrusteeship And The Problem Of Weak States". International Security, vol. 28, no. 4, 2004, pp. 5-43. MIT Press - Journals, doi:10.1162/0162288041588296.

Finnemore, Martha, and Kathryn Sikkink. "International Norm Dynamics And Political Change". International Organization, vol. 52, no. 4, 1998, pp. 887-917. Cambridge University Press (CUP), doi:10.1162/002081898550789. Accessed 15 Apr 2018.

504

Foust, Joshua. "How Short-Term Thinking Makes The U.S. Worse At Fighting Wars". The Atlantic, 2019, https://www.theatlantic.com/international/archive/2012/03/how-short-term- thinking-makes-the-us-worse-at-fighting-wars/255292/. Accessed 18 Feb 2019.

Fox, Gregory. "The Occupation Of Iraq". The Georgetown Journal Of International Law, vol. 36, no. 1, 2005. Elsevier BV. Accessed 4 July 2018.

Fox, Gregory H. "Transformative Occupation And The Unilateralist Impulse". International Review Of The Red Cross”, vol. 94, no. 885, 2012. Cambridge University Press (CUP), doi:10.1017/s1816383112000598. Accessed 3 June 2018.

Fox, Gregory H. "Eyal Benvenisti. The International Law Of Occupation". European Journal Of International Law, vol. 24, no. 1, 2013, pp. 453-458. Oxford University Press (OUP), doi:10.1093/ejil/cht003. Accessed 9 Mar 2018.

Franklin, William M. "Municipal Property Under Belligerent Occupation". The American Journal Of International Law, vol. 38, no. 3, 1944. JSTOR, doi:10.2307/2192379. Accessed 16 Feb 2019.

Fukuyama, Francis. "Nation-Building 101". The Atlantic, 2004, https://www.theatlantic.com/magazine/archive/2004/01/nation-building-101/302862/. Accessed 1 July 2019.

Gade, Christian B.N. "Restorative Justice And The South African Truth And Reconciliation Process". South African Journal Of Philosophy, vol. 32, no. 1, 2013, pp. 10-35. Informa UK Limited, doi:10.1080/02580136.2013.810412. Accessed 16 July 2018.

Gautam, Om Prakash, and Saurabh. "Duration of Belligerent Occupation and Extent of Rights". Irhrl.Com, 2019, http://irhrl.com/media/duration_of_belligerent_occupation_and_extent_of_rights.pdf.

German Jewish Refugees, 1933–1939. https://www.ushmm.org/wlc/en/article.php?ModuleId=10005468.

505

Gerring, John. "What Is A Case Study And What Is It Good For?". American Political Science Review, vol. 98, no. 02, 2004, pp. 341-354. Cambridge University Press (CUP), doi:10.1017/s0003055404001182. Accessed 9 Nov 2017.

Gheciu, Alexandra, and Jennifer Welsh. "The Imperative To Rebuild: Assessing The Normative Case For Postconflict Reconstruction". Ethics & International Affairs, vol. 23, no. 2, 2009, pp. 121-146. Cambridge University Press (CUP), doi:10.1111/j.1747-7093.2009.00203.x. Accessed 26 Dec 2018.

Gilder, Alexander. "Bringing Occupation into the 21St Century: The Effective Implementation of Occupation by Proxy". Utrecht Law Review, vol. 13, no. 1, 2017, p. 60. Uopen Journals, doi:10.18352/ulr.355.

Gillis, Paul L. "Jus Post Bellum--Seeking Peace In Iraq". Journal Of Lutheran Ethics, 2007, Accessed 5 Oct 2016.

"Global Firepower - Ranking The World Military Strengths". Globalfirepower.Com, 2018, https://www.globalfirepower.com/. Accessed 11 May 2018.

Goldsmith, Jack. "Reflections On Government Lawyering". Military Law Review, vol. 205, 2010, https://jagcnet.army.mil/DOCLIBS/MILITARYLAWREVIEW. Accessed 22 July 2018.

Gray, Colin S. "Defining and Achieving Decisive Victory". Strategicstudiesinstitute.Army.Mil, 2002, http://strategicstudiesinstitute.army.mil/pdffiles/PUB272.pdf. Accessed 2 Jan 2019.

Gricius, Gabriella. "Ukraine's Civil War Continues As "Occupied Territories" Bill Is Made Law". Global Security Review, 2018, https://globalsecurityreview.com/ukraines-occupied- territories-bill-continued-unrest-donbas-region/. Accessed 5 June 2018.

Gross, A. M. "Human Proportions: Are Human Rights The Emperor's New Clothes Of The International Law Of Occupation?". European Journal Of International Law, vol. 18, no. 1, 2007, pp. 1-35. Oxford University Press (OUP), doi:10.1093/ejil/chm001. Accessed 7 Feb 2018.

506

Gurmendi Dunkelberg, Alonso. "Your Country, My Rules: Can Military Occupations Create Successful Transitions?". SSRN Electronic Journal, Georgetown Journal of International Law 46, 2015. Elsevier BV, doi:10.2139/ssrn.2563212. Accessed 11 Jan 2018.

Hampson, Françoise J. "The Relationship Between International Humanitarian Law And Human Rights Law From The Perspective Of A Human Rights Treaty Body". International Review Of The Red Cross, vol. 90, no. 871, 2008, p. 549. Cambridge University Press (CUP), doi:10.1017/s1560775508000114. Accessed 10 Mar 2019.

Harris, Grant T. "The Era Of Multilateral Occupation". Berkley Journal Of International Law, vol. 24, 2006, Accessed 13 July 2018.

Hayward, Edwin J. "Co-Ordination Of Military And Civilian Civil Affairs Planning". The Annals of the American Academy Of Political And Social Science, vol. 267, no. 1, 1950, pp. 19- 27. SAGE Publications, doi:10.1177/000271625026700104.

"Hearts And Minds Post-War Civilian Casualties In Baghdad By U.S. Forces". Human Rights Watch, 2003, https://www.hrw.org/report/2003/10/20/hearts-and-minds/post-war-civilian- casualties-baghdad-us-forces. Accessed 28 June 2018.

Heyns, Christof, and Willem Gravett. ""To Save Succeeding Generations From The Scourge Of War": Jan Smuts And The Ideological Foundations Of The United Nations". Human Rights Quarterly, vol. 39, no. 3, 2017, pp. 574-605. Johns Hopkins University Press, doi:10.1353/hrq.2017.0033.

Hilpold, Peter. "Jus Post Bellum And The Responsibility To Rebuild". SSRN Electronic Journal, 2014. Elsevier BV, doi:10.2139/ssrn.2443272. Accessed 9 Dec 2018.

"Human Rights Watch Memorandum To The Iraqi Governing Council On ‘The Statute Of The Iraqi Special Tribunal,’ December 2003". Hrw.Org, 2003, https://www.hrw.org/legacy/backgrounder/mena/iraq121703.htm. Accessed 9 Jan 2019.

507

Hunt, Irwin J. History.Army.Mil, 1943, https://history.army.mil/html/bookshelves/resmat/interwar_years/american_military_government _of_occupied_germany_1918-1920.pdf. Accessed 22 Mar 2018.

Hunter-Chester, David. "The Particular Circumstances Of Time And Place Why The Occupation Of Japan Succeeded And The Occupation Of Iraq Failed". Military Review, no. May-June, 2016. http://Eds.B.Ebscohost.Com.Proxy.Libraries.Uc.Edu/Eds/Pdfviewer/Pdfviewer?Vid=4&Sid=306 49A41-31Eb-4994-9942-974C309ed1b1%40Sessionmgr120, Accessed 4 Dec 2018.

Iasiello, Louis V. "Jus Post Bellum: The Moral Responsibilities Of Victors In War". Naval War College Review, 2004, Accessed 19 May 2018.

"IBA - Iraqi High Tribunal (IHT)". Ibanet.Org, 2016, https://www.ibanet.org/Committees/WCC_IHT.aspx. Accessed 9 Jan 2019.

"IBA - The Death Penalty Under International Law". Ibanet.Org, 2019, https://www.ibanet.org/Human_Rights_Institute/About_the_HRI/HRI_Activities/death_penalty_ resolution.aspx. Accessed 16 Feb 2019.essed 5 June 2018.

"Invasion Of Poland, Fall 1939". Ushmm.Org, 2018, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005070. Accessed 3 Apr 2018.

Iverson, J. "Transitional Justice, Jus Post Bellum And International Criminal Law: Differentiating The Usages, History And Dynamics". International Journal Of Transitional Justice, vol. 7, no. 3, 2013. Oxford University Press (OUP), doi:10.1093/ijtj/ijt019. Accessed 10 May 2018.

"Japan Ministry Of Defense". Mod.Go.Jp, 2018, http://www.mod.go.jp/e/index.html. Accessed 10 May 2018.

Joffe, Josef. "Secure The Peace, Then Talk Rights". The Wall Street Journal, 2017, p. A19, Accessed 5 Jan 2018.

508

John Taishu Pitt, The Diplomat. "The Third Annual Eastern Economic Forum And The Japan- Russia Summit". The Diplomat, 2017, https://thediplomat.com/2017/09/the-third-annual-eastern- economic-forum-and-the-japan-russia-summit/. Accessed 5 Apr 2018.

Jubilut, Liliana L. "Towards A New Jus Post Bellum: The United Nations Peacebuilding Commission And The Improvements Of The Post-Conflicts Efforts And Accountability". Minnesota Journal Of International Law, vol. 20, no. (1), 2011, Accessed 11 Dec 2018.

Kellogg, Davida E. "Jus Post Bellum: The Importance of War Crimes Trials". Parameters, vol. 32, no. 2, 2002, pp. 87-99.

Keranen, Outi. "What Happened To The Responsibility To Rebuild?". Global Governance: A Review Of Multilateralism And International Organizations, vol. 22, no. 3, 2016. Brill, doi:10.1163/19426720-02203003.

Kerr, Rachel. "International Judicial Intervention: The International Criminal Tribunal For The Former Yugoslavia". International Relations, vol. 15, no. 2, 2000, pp. 17-26. SAGE Publications, doi:10.1177/0047117800015002003. Accessed 7 Mar 2018.

Knight, Kevin. "Church Fathers: Letter 189 (St. Augustine)". Newadvent.Org, 2017, http://www.newadvent.org/fathers/1102189.htm. Accessed 8 June 2018.

Knights, Michael. "The Future Of Iraq’s Armed Forces". Washingtoninstitute.Org, 2016, https://www.washingtoninstitute.org/uploads/The-future.pdf. Accessed 11 May 2018.

Kontorovich, Eugene. "Unsettled: A Global Study Of Settlements In Occupied Territories". Journal Of Legal Analysis, vol. 9, no. 2, 2017, pp. 285-350. Oxford University Press (OUP), doi:10.1093/jla/lax004. Accessed 4 July 2018.

Kuo, R. "Occupation And The Just War". International Relations, vol. 22, no. 3, 2008, pp. 299- 321., doi:10.1177/0047117808094174.

509

Lacey, Michael O. "Military Commissions: A Historical Survey". Loc.Gov, 2002, https://www.loc.gov/rr/frd/Military_Law/pdf/03-2002.pdf. Accessed 21 Apr 2018.

Ladwig, III, Walter C. "The Forgotten Force: Police-Building In Iraq And Afghanistan". Worldpoliticsreview.Com, 2013, https://www.worldpoliticsreview.com/articles/12976/the- forgotten-force-police-building-in-iraq-and-afghanistan. Accessed 10 Dec 2018.

Lammers, Cornelis J. "The American Occupation Regime in Comparative Perspective". Armed Forces & Society, vol. 40, no. 1, 2012, pp. 49-70. SAGE Publications, doi:10.1177/0095327x12437691. Accessed 4 Dec 2018.

Lazar, Seth. “Skepticism About Jus Post Bellum”. in May, Larry, and Elizabeth Edenberg. Jus Post Bellum And Transitional Justice. Cambridge University Press, 2013.

Levitt, Theodore. "Innovative Imitation". Harvard Business Review, 1966, https://hbr.org/1966/09/innovative-imitation. Accessed 26 Sept 2018.

Lewandowski, Tomasz. "Law Of Occupation, Jus Post Bellum And The Responsibility To Protect. Separate Or Complimentary Tools For Restoring Human Rights Order After Mass Atrocities". Social Transformation In Contemporary Society, no. 1, 2013, pp. 120-129., ISSN: 2345-0126 (online).

Lindroos, Anja. "Addressing Norm Conflicts In A Fragmented Legal System: The Doctrine Of Lex Specialis". Nordic Journal Of International Law, vol. 74, no. 1, 2005, pp. 27-66. Brill, doi:10.1163/1571810054301022. Accessed 11 July 2018.

"Lines Of Communication". Https://Www.Globalsecurity.Org, 2018, https://www.globalsecurity.org/military/library/policy/army/fm/5-33/ch5.pdf. Accessed 9 July 2018.

Loo, Bernard Fook Weng. "Decisive Battle, Victory and the Revolution in Military Affairs". Journal Of Strategic Studies, vol. 32, no. 2, 2009, pp. 189-211. Informa UK Limited, doi:10.1080/01402390902743118. Accessed 21 Jan 2019.

510

Loughton, Gavin. "Calvin's Case And The Origins Of The Rule Governing Conquest In English Law". Austl. J. Legal Hist., vol. 8, 2004, p. 143. Accessed 3 Jan 2019.

Luban, David. "Human Rights Thinking And The Laws Of War". Scholarship.Law.Georgetown.Edu, 2015, https://scholarship.law.georgetown.edu/facpub/1474/. Accessed 25 Feb 2019.

Lucero, Lora L. "Belligerent Occupation: Why Gaza?". Loralucero.Wordpress.Com, 2018, https://loralucero.wordpress.com/tag/belligerent-occupation/. Accessed 1 July 2018.

MacArthur, Douglas. "Farewell Address To Congress, April 19, 1951". General Douglas MacArthur Milwaukee Memorial, 2018, http://www.macarthurmilwaukeeforum.com/resources/macarthurs-address-to-congress/. Accessed 1 May 2018.

Majima, Shunzo. Just Military Occupation? A Case Study Of The American Occupation Of Japan. 2013 in May, Larry, and Elizabeth Edenberg. Jus Post Bellum And Transitional Justice. Cambridge University Press, 2013. .

Mandela, Nelson. "Nelson Mandela: An Ideal For Which I Am Prepared To Die". The Guardian, 2018, https://www.theguardian.com/world/2007/apr/23/nelsonmandela. Accessed 17 June 2018.

Mannix, Elizabeth, and Margaret A. Neale. "What Differences Make A Difference?". Psychological Science In The Public Interest, vol. 6, no. 2, 2005, pp. 31-55. SAGE Publications, doi:10.1111/j.1529-1006.2005.00022.x. Accessed 15 Mar 2019.

Masi, Alessandria. "Outdated Rules of War Need Major Overhaul: Experts". Refugees, 2016, https://www.newsdeeply.com/refugees/articles/2016/05/26/outdated-rules-of-war-need-major- overhaul-experts-2. Accessed 6 May 2018.

Matles Savada, Andrea, and William Shaw, Eds. "South Korea - South Korea Under United States Occupation, 1945-48". Countrystudies.US, 1990, http://countrystudies.us/south- korea/9.htm. Accessed 2 Apr 2019.

511

McCready, Doug. "Ending The War Right: Jus Post Bellum and The Just War Tradition". Journal Of Military Ethics, vol. 8, no. 1, 2009. Informa UK Limited, doi:10.1080/15027570902781995. Accessed 22 May 2018.

McMahan, Jeff. "The Morality Of Military Occupation". Loyola L. A. International And Comparative Law Review, vol. 31, no. 7, 2009, Accessed 26 June 2018.

"Meet The Francs-Tireurs – The French Resistance Of 1870". Militaryhistorynow.Com, 2013, http://militaryhistorynow.com/2017/02/10/the-francs-tireurs-meet-the-french-resistance-of- 1870/. Accessed 9 Mar 2018.

"Member Countries". NATO, 2018, https://www.nato.int/cps/en/natohq/topics_52044.htm. Accessed 10 May 2018.

Meron, Theodor. "The Humanization Of Humanitarian Law". The American Journal Of International Law, vol. 94, no. 2, 2000, p. 239. JSTOR, doi:10.2307/2555292. Accessed 6 June 2018.

Meron, Theodor. "The West Bank And International Humanitarian Law On The Eve Of The Fiftieth Anniversary Of The Six-Day War". Cambridge University Press, 2017, https://www.cambridge.org/core/journals/american-journal-of-international-law/article/west- bank-and-international-humanitarian-law-on-the-eve-of-the-fiftieth-anniversary-of-the-sixday- war/E1D4F9F5B3C43C943D9C3F31EABF79B3. Accessed 16 Mar 2019.

Metz, Steven, and Raymond Millen. "Insurgency in Iraq and Afghanistan: Change and Continuity". Air University, http://www.au.af.mil/au/awc/awcgate/cia/nic2020/insurgency.pdf. Accessed 27 Apr 2018.

Milanovic, Marko. "A Norm Conflict Perspective on The Relationship Between International Humanitarian Law and Human Rights Law". Journal Of Conflict And Security Law, vol. 14, no. 3, 2009, pp. 459-483. Oxford University Press (OUP), doi:10.1093/jcsl/krp033. Accessed 9 July 2018.

512

Milanovic, Marko. "EJIL: Talk! – The Genesis Of Lex Specialis". Ejiltalk.Org, 2014, https://www.ejiltalk.org/the-genesis-of-lex-specialis/.

Milanovic, Marko. "The Lost Origins Of Lex Specialis: Rethinking The Relationship Between Human Rights And International Humanitarian Law". Papers.Ssrn.Com, 2014, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2463957&download=yes. Accessed 11 July 2018.

"Military Analysis: Iraqi Armed Forces". Southfront.Org, 2018, https://southfront.org/military- analysis-iraqi-armed-forces/. Accessed 11 May 2018.

Minihan, John. "Casting A Shadow Over Irish Peacekeepers". Echo Live, 2017, https://www.echolive.ie/opinion/Casting-a-shadow-over-Irish-Peacekeepers-addae4c8-6c47- 4c59-9be4-d1cc565117ed-ds. Accessed 23 May 2019.

"MOFA: Japan-U.S. Security Treaty". Mofa.Go.Jp, 2017, http://www.mofa.go.jp/region/n- america/us/q&a/ref/1.html. Accessed 10 May 2018.

Mollendorf, Darrel. "Jus Ex Bello". Journal Of Political Philosophy, vol. 16, no. 2, 2008, pp. 123-136. Wiley, doi:10.1111/j.1467-9760.2008.00310.x. Accessed 14 Oct 2018.

Morton, Louis. "Germany First". History.Army.Mil, 2018, https://history.army.mil/books/70- 7_01.htm. Accessed 23 Mar 2018.

"NATO: A Political And Military Alliance". Nato.Int, 2018, https://www.nato.int/natowelcome/index.html#basic. Accessed 1 May 2018.

O'Meara, Richard M. "Jus Post Bellum: Reflections On The Right Way To End A War". Journal Of Terrorism And Security Analysis, vol. 6, 2011, Accessed 5 July 2019.

"On The Legal Regime Of The Temporary Occupied Territory Of Crimea - Embassy Of Ukraine In The United States Of America". Usa.Mfa.Gov.Ua, 2018, https://usa.mfa.gov.ua/en/legal_aspects.

513

Orend, Brian. "Jus Post Bellum: The Perspective of a Just-War Theorist". Leiden Journal Of International Law, vol. 20, no. 03, 2007. Cambridge University Press (CUP), doi:10.1017/s0922156507004268. Accessed 24 Apr 2018.

Österdahl, Inger. "Just War, Just Peace And The Jus Post Bellum". Nordic Journal Of International Law, vol. 81, no. 3, 2012. Brill Academic Publishers, doi:10.1163/15718107- 08103003. Accessed 9 Dec 2017.

Otterman, Sharon. "IRAQ: Saddam Hussein On Trial". Council On Foreign Relations, 2005, https://www.cfr.org/backgrounder/iraq-saddam-hussein-trial. Accessed 9 Jan 2019.

Parks, W. Hayes. "The United States Military And The Law Of War: Inculcating An Ethos". Social Research, vol. 69, 2002, Accessed 8 Feb 2019.

Patterson, Melissa. "Whose Got The Title? Or The Remnants Of Debellatio In Post-Invasion Iraq". Harvard Journal Of International Law, vol. 47, no. 2, 2006. Http://Web.A.Ebscohost.Com.Proxy.Libraries.Uc.Edu/Ehost/Detail/Detail?Vid=0&Sid=F10ad4e 3-2288-4555-8Dc3-677073D1cc5b%40Sdc-V- Sessmgr01&Bdata=Jnnpdgu9zwhvc3qtbgl2zq%3D%3D#AN=502512863&Db=Ofm, Accessed 18 Mar 2019.

Pattison, James. "Jus Post Bellum And The Responsibility To Rebuild". British Journal Of Political Science, vol. 45, no. 03, 2015, pp. 635-661. Cambridge University Press (CUP), doi:10.1017/s0007123413000331. Accessed 6 Jan 2018.

Pellet, Alain. "The Charter Of The United Nations: A Commentary of Bruno Simma's Commentary". Michigan Journal Of International Law, vol. 25, no. 1, 2003, pp. 135-151. Https://Repository.Law.Umich.Edu/Mjil/Vol25/Iss1/4, Accessed 23 Aug 2018.

Peperkamp, Lonneke. "On The Duty To Reconstruct After War: Who Is Responsible For Jus Post Bellum?". Canadian Journal Of Law & Jurisprudence, vol. 29, no. 02, 2016, pp. 403-430. Cambridge University Press (CUP), doi:10.1017/cjlj.2016.18. Accessed 22 Mar 2018.

514

Petallides, Constantine J. "International Law Reconsidered: Is International Law Actually Law?". Inquiries Journal, 2012, http://www.inquiriesjournal.com/articles/715/2/international- law-reconsidered-is-international-law-actually-law. Accessed 1 Apr 2019.

Percy, Jason L, and Terry A. Fellows. 2009. "A Whole Of Government Approach For National Security". Apps.Dtic.Mil. https://apps.dtic.mil/dtic/tr/fulltext/u2/a514230.pdf. Accessed 31 August 2019.

Peterson, Jeremy. "Unpacking Show Trials: Situating The Trial Of Saddam Hussein". Harvardilj.Org, 2007, http://www.harvardilj.org/wp-content/uploads/2010/09/HILJ_48- 1_Peterson.pdf. Accessed 8 Jan 2019.

Pettibon, Jonathan E. "CAPABILITIES OF THE JAPANESE SELF-DEFENSE FORCE AND ITS IMPACT ON UNITED STATES-JAPAN RELATIONS". Dtic.Mil, 2011, http://www.dtic.mil/dtic/tr/fulltext/u2/a542965.pdf. Accessed 10 May 2018.

Pike, John. "Iraqi Insurgency". Globalsecurity.Org, 2003, https://www.globalsecurity.org/military/ops/iraq_insurgency.htm. Accessed 30 Apr 2018.

Pike, John. "Occupation Of Haiti (1915-34)". Globalsecurity.Org, 2018, https://www.globalsecurity.org/military/ops/haiti19.htm. Accessed 20 Feb 2018.

Pike, John. "Stab In The Back (Dolchstoss Legende)". Globalsecurity.Org, 2019, https://www.globalsecurity.org/military/world/europe/de-back-stab.htm. Accessed 2 Jan 2019.

Policastri, Joan, and Sergio D. Stone. "Electronic Research Guide To International Humanitarian Law". Asil.Org, 2015, https://www.asil.org/sites/default/files/ERG_HUMANIT_LAW.pdf. Accessed 29 Aug 2018.

Priest, Dana L. "A Four-Star Foreign Policy?". Washingtonpost.Com, 2000, https://www.washingtonpost.com/archive/politics/2000/09/28/a-four-star-foreign- policy/f9779938-7a88-449f-9f55-84ab020abbd7/?utm_term=.a13e9887b5f3. Accessed 6 Jan 2019.

515

Qamili, Amire. "Kosovo President Establishes Truth And Reconciliation Commission Preparatory Team - Prishtina Insight". Prishtina Insight, 2017, https://prishtinainsight.com/kosovo-president-establishes-truth-reconciliation-commission- preparatory-team/. Accessed 1 June 2018.

Read, Steven N. "Planning For the Unplannable: Branches, Sequels and Reserves. School of Advanced Military Studies Monographs". Cgsc.Contentdm.Oclc.Org, 1990, http://cgsc.contentdm.oclc.org/cdm/ref/collection/p4013coll3/id/1851. Accessed 20 Mar 2019.

"Relations with Georgia". NATO, 2018, https://www.nato.int/cps/en/natolive/topics_38988.htm. Accessed 5 June 2018.

Rifkin, David B., and Darin R. Bartram. "Military Occupation: Legally Ensuring a Lasting Peace". The Washington Quarterly, vol. 26, no. 3, 2003, pp. 87-103. Informa UK Limited, doi:10.1162/016366003765609598. Accessed 16 Nov 2017.

Roberts, Adam. "Transformative Military Occupations: Applying The Laws Of War And Human Rights,". The American Journal Of International Law, vol. 100, no. 3, 2006, Accessed 21 July 2018.

Roberts, Andrew. "Durable Diplomatist | Standpoint". Standpointmag.Co.Uk, 2011, http://standpointmag.co.uk/node/4127/full. Accessed 18 Jan 2019.

Rozpedowski, Joanna K. "“Just Peace at War’s End: The Jus Post Bellum Principles as National and Human Security Imperatives – Lessons of Iraq and Kosovo”". Global Jurist, vol. 15, no. 3, 2015. Walter De Gruyter Gmbh, doi:10.1515/gj-2014-0025.

"Saddam Hussein - TRIAL International". TRIAL International, 2016, https://trialinternational.org/latest-post/saddam-hussein/. Accessed 8 Jan 2019.

Salih, Barham A. "NATIONAL DEVELOPMENT STRATEGY 2005-2007". Siteresources.Worldbank.Org, 2005, http://siteresources.worldbank.org/IRFFI/Resources/Iraq- NDS-July14-FINALFINAL[1].pdf. Accessed 18 Dec 2018.

516

Sassòli, Marco. "Legislation And Maintenance Of Public Order And Civil Life By Occupying Powers". European Journal Of International Law, vol. 16, no. 4, 2005, pp. 661-694. Oxford University Press (OUP), doi:10.1093/ejil/chi136. Accessed 4 July 2019.

Sattler, John, and Daniel H. Wilson. "Operation AL FAJR | Marine Corps Association". Mca- Marines.Org, 2005, https://www.mca-marines.org/gazette/operation-al-fajr. Accessed 27 Apr 2018.

Sceats, Sonya. "THE TRIAL OF SADDAM HUSSEIN". Chathamhouse.Org, 2005, https://www.chathamhouse.org/sites/default/files/public/Research/International%20Law/bptrialh ussein.pdf. Accessed 8 Jan 2019.

Scharf, Michael P., and Ahran Kang. "Errors And Missteps: Key Lessons The Iraqi Special Tribunal Can Learn From The ICTY, ICTR And SCSL". SSRN Electronic Journal, 38 Cornell Int’l L.J 911, 2005. Elsevier BV, doi:10.2139/ssrn.804607.

Scheffer, David J. "Beyond Occupation Law". The American Journal Of International Law, vol. 97, no. 4, 2003, p. 842. JSTOR, doi:10.2307/3133684. Accessed 16 Nov 2017.

Schindler, Dietrich. "The International Committee Of The Red Cross And Human Rights". International Review Of The Red Cross, vol. 19, no. 208, 1979, p. 3. Cambridge University Press (CUP), doi:10.1017/s0020860400066353. Accessed 4 June 2018.

Schindler, Dietrich. "Significance Of The Geneva Conventions For The Contemporary World - ICRC". Icrc.Org, 1999, https://www.icrc.org/en/doc/resources/documents/article/other/57jq6t.htm. Accessed 17 Apr 2019.

Schmitt, Michael. "The Vanishing Law Of War". Hir.Harvard.Edu, 2009, http://hir.harvard.edu/article/?a=1882. Accessed 17 Nov 2018.

Schuck, Michael J. "When The Shooting Stops: Missing Elements In The Just War Theory". The Christian Century, 1994, Accessed 21 June 2019.

517

Schutz, John A., and Paul Ramsey. "War And The Christian Conscience: How Shall Modern War Be Conducted Justly?". The Western Political Quarterly, vol. 14, no. 4, 1961, p. 991. JSTOR, doi:10.2307/445121.

Shanker, Thom, and David Cloud. "Military Wants More Civilians To Help In Iraq". Nytimes.Com, 2007, https://www.nytimes.com/2007/02/07/washington/07military.html. Accessed 26 May 2019.

Solimeo, Luiz Sergio. Just War According To Catholic Teaching. 2003, http://www.tfp.org/tfp- home/just war according to catholic teaching.html. Accessed 1 Apr 2016.

Spencer, John. "Stealing The Enemy's Urban Advantage: The Battle Of Sadr City - Modern War Institute". Modern War Institute, 2019, https://mwi.usma.edu/stealing-enemys-urban-advantage- battle-sadr-city/. Accessed 1 July 2019.

Spoerri, Philip. "The Geneva Conventions Of 1949: Origins And Current Significance - ICRC". Icrc.Org, 2009, https://www.icrc.org/en/doc/resources/documents/statement/geneva- conventions-statement-120809.htm. Accessed 22 Mar 2019.

Stahn, C. "'Jus Ad Bellum', 'Jus In Bello' . . . 'Jus Post Bellum'? -Rethinking The Conception Of The Law Of Armed Force". European Journal Of International Law, vol. 17, no. 5, 2006, pp. 922-923. Oxford University Press (OUP), doi:10.1093/ejil/chl037.

Stahn, Carsten. "Jus Post Bellum: Mapping The Discipline(s)". American University International Law Review, 2008, pp. 311-347.

Stein, Jeff. "U.S. Military Budget Inches Closer To $1 Trillion Mark, As Concerns Over Federal Deficit Grow". Wonkblog, 2018. Accessed 26 Sept 2018.

"SURRENDER” | Meaning In The Cambridge English Dictionary". Dictionary.Cambridge.Org, 2019, https://dictionary.cambridge.org/dictionary/english/surrender. Accessed 23 May 2019.

518

Swelam, Ashraf. "Reforming UN Peacekeeping". The Cairo Review Of Global Affairs, 2019, https://www.thecairoreview.com/global-forum/reforming-un-peacekeeping/. Accessed 25 May 2019.

Talmon, Stefan. Occupation Of Iraq; V. 2: The Official Documents Of The Coalition Provisional Authority And The Iraqi Governing Council. HART Pub, 2013.

Team, ODS. "ODS HOME PAGE". Documents-Dds-Ny.Un.Org, 1993, https://documents-dds- ny.un.org/doc/UNDOC/GEN/G93/142/33/PDF/G9314233.pdf?OpenElement. Accessed 20 Aug 2018.

Teitel, Ruti. "Rethinking Jus Post Bellum In An Age Of Global Transitional Justice: Engaging With Michael Walzer And Larry May". European Journal Of International Law, vol. 24, no. 1, 2013, pp. 335-342. Oxford University Press (OUP), doi:10.1093/ejil/cht014. Accessed 1 May 2018.

Teitel, Ruti G. "Transitional Justice Genealogy". Harvard Human Rights Journal, vol. 16, 2003, Accessed 16 July 2018.

"THE CONSTITUTION OF JAPAN". Japan.Kantei.Go.Jp, 2018, http://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html. Accessed 20 Apr 2018.

"The Deportation Of The Jews From France - Yad Vashem". Yadvashem.Org, 2019, https://www.yadvashem.org/yv/en/holocaust/france/deportations.asp. Accessed 13 Jan 2019.

Thomas, Charles M. et al. "Civil Affairs: Soldiers Become Governors". The Journal Of American History, vol. 51, no. 3, 1964, p. 533. Oxford University Press (OUP), doi:10.2307/1894933. Accessed 30 May 2019.

Tilley, Virginia. "Occupation, Colonialism, Apartheid: A Re-Assessment Of Israel’s Practices In The Occupied Palestinian Territories Under International Law". Alhaq.Org, 2009,

519 http://www.alhaq.org/attachments/article/232/occupation-colonialism-apartheid-executive.pdf. Accessed 7 Sept 2018.

Timothy, Nte. "UN Resolution 1483 Occupational Mandate And Limitations To The Obligations Of US Forces In Iraq". IOSR Journal Of Humanities And Social Science, vol. 13, no. 2, 2013, pp. 44-49. IOSR Journals, doi:10.9790/0837-1324449.

"Truth And Reconciliation Commission". Justice.Gov.Za, 2018, http://www.justice.gov.za/trc/. Accessed 7 June 2018.

Ukhuegbe, Solomon, and Alero Fenemigho. "Article 43 Of The Hague Regulations Of 1907 Revisited: The Past And The Future Of Belligerent Occupation In International Law". SSRN Electronic Journal, 2016. Elsevier BV, doi:10.2139/ssrn.2802162. Accessed 4 July 2018.

UN "World Report 2016: Rights Trends In Sri Lanka". Human Rights Watch, 2014, https://www.hrw.org/world-report/2016/country-chapters/sri-lanka. Accessed 5 Jan 2019.

"United Nations: Security Council Resolution On Israeli Occupation Of The Golan Heights". Vol 21, no. 01, 1982, pp. 214-215. Cambridge University Press (CUP), doi:10.1017/s002078290005508x. Accessed 9 Mar 2019.

US Legal Inc. "Lex Specialis Law And Legal Definition | Uslegal, Inc.". Definitions.Uslegal.Com, 2018, https://definitions.uslegal.com/l/lex-specialis/. Accessed 27 June 2018.

US Legal Inc. "Travaux Preparatoires Law And Legal Definition | Uslegal, Inc.". Definitions.Uslegal.Com, 2018, https://definitions.uslegal.com/t/travaux-preparatoires/. Accessed 14 June 2018.

US Legal, Inc. "Use Of Deadly Force Law And Legal Definition | Uslegal, Inc.". Definitions.Uslegal.Com, 2018, https://definitions.uslegal.com/u/use-of-deadly-force/. Accessed 9 Sept 2018.

520

"US War Crimes In The Phillipines". Worldfuturefund.Org, http://www.worldfuturefund.org/wffmaster/Reading/war.crimes/US/U.S.Philippines.htm. Accessed 26 Nov 2018.

Walt, Stephen M. "Comment On Michael Desch, “Technique Trumps Relevance”". Perspectives On Politics, vol. 13, no. 2, 2015, p. 404. Cambridge University Press (CUP), doi:10.1017/s1537592715000201. Accessed 13 Dec 2018.

"War Crimes Trials". Ushmm.Org, 2018, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005140. Accessed 4 Apr 2018.

Watkin, Kenneth. "Controlling The Use Of Force: A Role For Human Rights Norms In Contemporary Armed Conflict". The American Journal Of International Law, vol. 98, no. 1, 2004. JSTOR, doi:10.2307/3139252. Accessed 28 June 2018.

Watkin, Kenneth. "Use Of Force During Occupation: Law Enforcement And Conduct Of Hostilities". International Review Of The Red Cross, vol. 94, no. 885, 2012, pp. 267-315. Cambridge University Press (CUP), doi:10.1017/s1816383112000513.

Weede, Erich. "Capitalism, Democracy And The War In Iraq". Global Society, vol. 21, no. 2, 2007, pp. 219-227. Informa UK Limited, doi:10.1080/13600820701201848. Accessed 14 Mar 2017.

Wells, Matthew. "Casualties, Regime Type And The Outcomes Of Wars Of Occupation". Conflict Management And Peace Science, vol. 33, no. 5, 2016, pp. 469-490. SAGE Publications, doi:10.1177/0738894215570434. Accessed 13 Apr 2018.

"What Is Transitional Justice? | ICTJ". International Center For Transitional Justice, 2019, https://www.ictj.org/about/transitional-justice. Accessed 1 Apr 2019.

Wilkinson, Tracy, and Richard A. Serrano. "1St U.S. Marines Land In Bosnia For NATO Duty". Latimes.Com, 1995, https://www.latimes.com/archives/la-xpm-1995-12-11-mn-12975- story.html. Accessed 28 May 2019.

521

Williams, Robert E., and Dan Caldwell. "Jus Post Bellum: Just War Theory And The Principles Of Just Peace". International Studies Perspectives, vol. 7, no. 4, 2006. Oxford University Press (OUP), doi:10.1111/j.1528-3585.2006.00256.x. Accessed 5 May 2018.

Williamson, Murray, Ed. "A Nation at War in an Era of Strategic Change". Ssi.Armywarcollege.Edu, 2014, http://ssi.armywarcollege.edu/pubs/display.cfm?pubID=580. Accessed 25 Feb 2018.

Wills, Siobhan. "Occupation Law And Multi-National Operations: Problems And Perspectives - Ulster Institutional Repository". Uir.Ulster.Ac.Uk, 2007, http://uir.ulster.ac.uk/30760/. Accessed 18 July 2018.

Wolf, Dana. "Transitional Post-Occupation Obligations Under The Law Of Belligerent Occupation". Minnjil.Org, 2018, http://minnjil.org/wp-content/uploads/2018/02/Wolf_v27.i1_5- 65.final_.pdf. Accessed 4 Nov 2018.

Worzala, Mary, Craig VanDevelde, and Jessica Kuntz. 2017. "Deploying The Whole Of Government | Deloitte US". Deloitte United States. https://www2.deloitte.com/us/en/pages/public-sector/articles/deploying-the-whole-of- government.html. Accessed 10 August 2019.

Yoo, John. "Iraqi Reconstruction And The Law Of Occupation". University Of California, Davis Journal Of International Law And Policy, vol. 11, no. 7, 2004, Accessed 26 June 2018.

Zwanenburg, Marten. "THE LAW OF OCCUPATION REVISITED: THE BEGINNING OF AN OCCUPATION". Yearbook Of International Humanitarian Law, vol. 10, 2007, pp. 99-130. "Federal Police Agencies In Germany". German Culture, 2016, http://germanculture.com.ua/germany-facts/federal-police-agencies/. Accessed 10 May 2018.

522