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 by 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. 1 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. 2 Copyright sought © 2019 3 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! 4 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? 5 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 6 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 7 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 8 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 9 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 10 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.