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Jus Post BellumMapping the Normative Foundations$

Carsten Stahn, Jennifer S. Easterday, and Jens Iverson

Print publication date: 2014

Print ISBN-13: 9780199685899

Published to Oxford Scholarship Online: April 2014

DOI: 10.1093/acprof:oso/9780199685899.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use.date: 17 May 2022

Navigating the Unilateral/Multilateral Divide

Navigating the Unilateral/Multilateral Divide

Chapter:
(p.229) 12 Navigating the Unilateral/Multilateral Divide
Source:
Jus Post Bellum
Author(s):

Gregory H. Fox

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199685899.003.0013

Abstract and Keywords

This chapter warns of the dilemma facing the nascent jus post bellum should it seek to regulate all actors in a post-conflict environment: the unilateral/multilateral divide. This manifests itself in three ways post-conflict. First, applicable law regulates states but not international organizations. Second, the UN Security Council has authority to substitute its policy preferences for existing state-centric law on post-conflict states. Third, the Council has multilateralized almost every post-conflict state in recent history. This chapter explores the possibility of a variegated jus post bellum that imposes on international organizations only those obligations they can fulfill, while continuing to subject states to the full spectrum of post-conflict norms. Second, it reviews the actors and law applicable to four prominent efforts at post-conflict reconstruction: East Timor, Afghanistan, Iraq, and Libya. It analyzes how a uniform jus post bellum would fare in these cases if international law continued to adhere to unilateral/multilateral distinction.

Keywords:   unilateral, multilateral, United Nations, Security Council, Article 103 of the UN Charter, jus post bellum

I. Introduction

The idea of a jus post bellum is fraught with conceptual difficulties. The first is a problem of categories. Jus post bellum began its intellectual life as an aspect of just war theory, and Michael Walzer and others continue to employ the concept in discussions of political ethics.1 Others suggest jus post bellum functions as an analytical category for policy-makers focused on the reconstruction of post-conflict states.2 Still others view jus post bellum as interpretive tool that measures the reconstruction of state institutions against fundamental principles of justice and popular sovereignty.3 Of course the very term jus post bellum suggests a species of law that imposes binding obligations on actors in post-conflict states. That international lawyers dominate the list of contributors to this volume suggest the legal perspective has gained a certain ascendance.

Yet viewing jus post bellum as law brings additional questions. How should the idea be integrated into the existing corpus of international law? Does it cover all post-conflict issues now regulated by international norms? If so, would it displace or subsume existing legal regimes? Or would it leave those regimes unaltered and function only interstitially? Further, should a jus post bellum regulate all actors working in post-conflict states, including international organizations and non-governmental organizations, or would it retain the existing regimes’ state-centric focus? Finally, would recognition of a legally distinct post bellum period resolve or at least clarify the long-standing uncertainty about when armed conflict actually ends?4

However one answers these difficult questions, they illustrate the need to clarify the relationship between a new jus post bellum and the wide range of existing legal doctrines it would presumably supplement, enhance or even replace. These include the law of armed conflict, the rights of individuals against assertions of state power, state control over foreign territory, and the limits, if any, on the coercive authority of the United (p.230) Nations Security Council. If a jus post bellum is essentially normative it must come to terms with certain essential attributes of the international legal system it seeks to join. This does not mean it must accept existing doctrine. Rather, to be taken seriously—i.e. viewed as essentially legitimate—the new normative proposals must demonstrate a connection to secondary norms in international law, a quality Thomas Franck usefully described as “adherence.”5 Secondary rules—those “for determining what counts as a rule of the system”6 —are the gatekeepers both of the process by which law is made in a decentralized system and of new norms’ legitimate claim on state compliance. These are eminently practical requirements. “A rule is more likely to obligate,” Franck observed, “if it is made within the framework of an organized normative hierarchy.”7 Otherwise a new proposed primary rule will be viewed as a mere ad hoc arrangement between a limited number of willing parties, rather than the result of accepted rule-making.8It will not benefit from the deep historical pedigree and assumption of “right process” that accompany rules promulgated in harmony with prevailing secondary rules.

This chapter will focus on one particular secondary rule, or fundamental assumption, that will confront a jus post bellum understood as a legal concept. In summary it is the following. One central precept of the post-Second World War international legal order is the distinction between unilateral and multilateral actions. The former are increasingly disfavored as both unnecessary and undesirable. Multilateral alternatives have proliferated while unregulated resorts to self-help are seen as illegitimate efforts to circumvent norms and institutions. The unilateral/multilateral distinction reaches across a wide range of legal regimes, from peace and security, to state responsibility, to international trade, to the immunity of state officials in national courts. Contemporary international law makes sharp distinctions between the creation and implementation of norms depending on whether the relevant actors are states or international organizations. The United Nations Security Council arguably occupies the highest rung on this ladder of by virtue of its unique powers under Chapter VII of the Charter, as well as the trumping authority of Article 103. This elaborate set of secondary rules favoring multilateralism permeates assumptions about virtually every body of primary rules.

A jus post bellum must confront the unilateral/multilateral distinction, which cannot be ignored in the hope it will have no bearing on proposed solutions to shortcomings in existing primary rules for post-conflict states. Adherence of new post-conflict norms to the unilateral/multilateral distinction will play a critical role in their capacity to affect real change in international law. In particular, proponents of reform must address how the distinction will function for the three bodies of primary law most likely to be affected by a jus post bellum: jus ad bellum, the law of occupation (a sub-species of jus in bello), and the law of human rights.

This chapter will discuss the prevalence of the unilateral/multilateral distinction in these areas of law. Given the Security Council’s increasingly important role in rebuilding state institutions in the aftermath of conflict—the presumed domain of a jus (p.231) post bellum—I will focus discussion on the particular form of multilateral action that results from an authorization by the Council under Chapter VII. Council-authorized actions in post-conflict states will be contrasted with similar actions undertaken by states acting without a Chapter VII mandate. This does not mean acts unaddressed by the Council are not authorized by international law generally or multilateral treaty regimes in particular. By describing an act as unilateral I am not suggesting that it is thereby unlawful. The point is rather that the range of lawful actions open to states in post-conflict settings without a Council mandate is much narrower than that available when the Council has acted under Chapter VII authorizing additional options. This contrast between broad and narrow options will be critical to understanding how an undifferentiated body of jus post bellum—one that treats all post-conflict actors as having the same range of legal options—might function.

The chapter starts with three propositions about that divide to set the stage for understanding the dilemma a jus post bellum will confront in adapting to this critical secondary rule. The dilemma arises from the choice facing a jus post bellum in the actors it seeks to regulate: if it purports to subject states and multilateral actors operating under a Chapter VII mandate to the same set of constraints, it will be unable to regulate the latter. This is because the Security Council operates outside (some might say above) the state-centric norms of these three regimes. But if it seeks only to regulate states, jus post bellum will fail to address the multilateral actors who increasingly dominate post-conflict reconstruction efforts. These two strategies for adapting a jus post bellum to the unilateral/multilateral divide, in other words, seem destined to fail. A possible alternative would be to prescribe different norms or different levels of compliance for different types of actors.

I will then discuss four recent cases of post-conflict reconstruction that serve to demonstrate the difficulties of regulating all international actors under a unified jus post bellum. These cases—East Timor, Afghanistan, Iraq, and Libya—present a spectrum of multilateral involvement, from complete to highly selective. A jus post bellum applied uniformly to all actors and all sectors in these cases would face tremendous problems of coherence and effectiveness.

II. Proposition I: Existing Legal Regimes Applicable to the Post-Conflict Period are Almost Exclusively State-Centric

A multitude of actors now work in post-conflict states.9 The World Bank observes that “more than any other kind of development effort, post-conflict situations have brought together an unusually wide-ranging group of economic, political, and military actors: bilateral and multilateral donors, NGOs, military/security forces, civil society, religious authorities.”10 The actors are remarkably diverse: some are states, including their militaries and overseas development agencies; some are international organizations (p.232) (both regional and global), including their specialized agencies; some are non-government organizations and some are umbrella groups combining a variety of entities. Together they perform tasks designed to bring about reconciliation between formerly warring parties and reform dysfunctional national institutions.

Yet the legal regimes under which they operate are almost exclusively directed at states. To be sure, the state-centrism of these regimes is not as categorical as in previous eras. Much scholarship and self-examination by the actors themselves has led to efforts to expand their application in certain areas to new actors.11 But in their original design these regimes directly regulate only states and assume in a variety of places that only states will be capable of complying with their dictates. Efforts to expand the regimes to multilateral actors fully, as opposed to ad hoc applications, have been limited. The following sections discuss the statist orientation of the three legal regimes most relevant to jus post bellum.

A. Jus Ad Bellum

The first regime applicable to post-conflict states is jus ad bellum. In contemporary international law, jus ad bellum is grounded in Article 2(4) of the United Nations Charter.12 That article prohibits the use of force except as used in self-defense or as authorized by the Security Council and has spawned a broad and detailed jurisprudence.13 While invocation of a jus “post” bellum might imply that hostilities have ended and that regulation of the decision to use armed force has become unnecessary, the situation in post-conflict states is often substantially more complex. Most obviously, hostilities may appear to end and then restart, either at the instigation of the government or rebel forces. Third states may send their militaries into the territory. United Nations forces may come under attack or find they cannot fulfill their mandate without recourse to force. A party to an armed conflict with Security Council authorization may exceed the terms of the authorizing resolution. Or a party may insist it retains the right to use force in self-defense even though the Council has taken “measures necessary to maintain international peace and security,” thereby terminating that right.14 In each of these situations a question arises under jus ad bellum as to whether the use of force is justified by the circumstances.

Article 2(4) applies by its terms only to states. The same is true for Article 51 concerning the right to self-defense.15 Controversially, in its Wall opinion, the ICJ held (p.233) that the right of self-defense does not arise when a non-state actor attacks a state.16 While the Court may have qualified this holding in the Congo/Uganda case, it did not come close to ruling that an armed attack wholly unattributed to a state might trigger a right to self-defense.17 But even if one believes the Court got the law wrong (a widely-held view among scholars18 ), the alternative view does not enlarge the class of right-holders beyond states. The critique of removing attacks by non-state actors as a trigger for the right does not purport also to grant the right to non-state actors. The critique of the Court’s view is that states deserve a broader right of armed response.

International organizations are not addressed by jus ad bellum. The Security Council may authorize or deploy its own armed forces under Chapter VII of the Charter. Chapter VII actions are triggered by political decisions of the Security Council under criteria in Article 39 that allow a much broader scope of action than Article 2(4) permits states acting unilaterally.19 Indeed, many commentators find no legal limits on the permissible scope of Council action under Chapter VII beyond the (rather hypothetical) violation of jus cogensnorms.20 Regional organizations, whose use is encouraged by Chapter VIII of the Charter, may engage in acts that would otherwise violate jus ad bellum only when granted leave to do so by the Council.21 Absent such an authorization—which in recent years has occasionally come after hostilities commenced—“[t]‌he position of a regional group of States is not appreciably different than that of an individual State.”22 That is, the regional group would be fully regulated by the jus ad bellum and could only use force in collective self-defense. (p.234)

B. Occupation law23

The modern law of occupation is set out in the Fourth Geneva Convention of 1949 (GC IV),24 which updates but does not supersede the Hague Regulations Respecting the Laws and Customs of War on Land of 1907 (Hague Regulations). Like all four Geneva Conventions, GC IV governs the conduct of the treaty’s “High Contracting Parties.”25To date, these have been limited to states. Neither the UN nor any other international organization has even attempted to ratify GC IV. The Conventions’ drafters would have considered this state-centrism unremarkable, for the international organizations of 1949 were both limited in number and, even in the case of the United Nations, had not been parties to “declared war or...any other armed conflicts,” the threshold for applying the Convention.26 Whether the United Nations could ratify the Geneva and Hague instruments turns less on its inherent capacity to do so27 and more on its ability to carry out the treaties’ obligations. Some obligations, such as those involving state territory or nationals, are clearly inapplicable to international organizations (IOs), meaning ratification in good faith would need to excise those obligations.28 For an IO to do by asserting a variety of wide-ranging reservations would confront serious questions about compatibility with the Convention’s object and purpose.

The lack of ratification has not ended matters. In 1999, the UN Secretary General issued a Bulletin declaring that UN forces would abide by a generalized set of humanitarian norms “when in situations of armed conflict they are actively engaged therein as combatants.”29 The Bulletin contains no guidelines specific to occupation, though the protection of civilians (“protected persons” under GC IV) is emphasized. The International Committee of the Red Cross takes the position that while application of occupation law to multilateral forces “may appear to be a kind of taboo for the international organizations involved as well as for some troops contributing States, occupation (p.235) law must not be discarded outright and the rights, obligations and protections derived from it must be applied when the conditions for their applicability are met.”30

The ICRC’s view and the practical impediments to IO adherence to all Convention obligations suggest a functional argument for applying occupation law to multinational actors. In this conception, the organization’s capacity to carry out relevant obligations will be critical: if an IO in a particular post-conflict setting has the authority, resources, and infrastructure to follow occupation norms then it should do so.31 Because, as Marco Sassoli notes, “some provisions of IHL cannot be applied to the UN since it lacks, eg, a territory, a penal system, or a population,”32 the result would be less than full compliance with the complete set of occupation norms. But this problem of coverage aside, does support for the functional approach suggest an imminent end to occupation law’s state centrism? I would suggest not.

First, the proposition that IO responsibility should turn on functional considerations exists entirely in the realm of de lege ferenda.33 Secondly, and more importantly, a central provision of occupation law would severely limit the Security Council’s ability to carry out the broad-based reforms that have become central to its missions to post-conflict states. Proponents of the functional view seem to have in mind human rights-type obligations protecting civilians in occupied territories. Occupation law certainly contains many such provisions. Extending them to Council-authorized missions would change very little in UN practice, since the mandate for virtually every recent multilateral mission to a post-conflict state has prioritized the protection of human rights.34But occupation law also prohibits broad legislative acts by occupiers in an effort to preserve existing laws and political institutions in the territory.35 This “conservationist principle” seeks to draw a clear line between the temporary, trustee-like powers of an (p.236) occupier and the full authority of a de jure sovereign government.36 Unlike the human rights obligations in occupation law, the conservationist principle does not duplicate IO practice; indeed, it is the very antithesis of what multilateral post-conflict missions seek to accomplish. Their mandates contemplate wide-ranging changes to national laws and political cultures, often involving new democratic institutions and procedures.37 In Kosovo the Council authorized an interim UN administration to oversee “the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants.”38 In East Timor the Council endowed the UNTAET mission with “overall responsibility for the administration of East Timor” and empowered it “to exercise all legislative and executive authority, including the administration of justice.”39 UNTAET’s reforms included a new procedure to select judges, a new judicial system, a central fiscal authority, a public service commission, a new currency, a border service, tax and customs regimes, a new treasury, procedures for public budgeting, and rules covering the representatives of foreign governments in East Timor.40 Creating an inclusive democratic culture in post-conflict states, with the laws and institutions essential to its function, has become central to the UN’s view on how to prevent a recurrence of conflict.41 “Applying” the restrictive conservationist principle to Security Council authorizations of this kind would amount to an effort to limit the Council´s choice of options for post-conflict states. As Part III will discuss below, such an attempt at preemption would run directly afoul of Article 103 of the Charter.42 This (p.237) critical portion of occupation law, in other words, would remain state-centric even if efforts were made to expand its application to Chapter VII missions.

C. Human rights law

Human rights principles famously helped break the state’s near-monopoly on legal capacity to acquire rights under international law. But human rights law has not generally expanded obligations beyond the state, and in particular the obligations of IOs. Robert McCorquodale puts the matter directly:

The international human rights law system is a state-based system, a system in which the law operates in only one area: state action. It ignores actions by nonstate actors, such as the United Nations....Nonstate actors are treated as if their actions could not violate human rights, or it is pretended that states can and do control all their activities.43

This despite the obvious reality that IOs such as the UN “can and do violate human rights.”44

As with occupation law, the human rights treaties most relevant to post-conflict situations permit only states to become parties.45 Although the United Nations is party to a wide variety of other treaties, it has never ratified or acceded to a human rights instrument. The primary reason is the reluctance of state parties to enlarge their reach: despite increasing calls for the United Nations (and other IOs) to be held accountable for their delicts, the state parties serving as gate-keepers to these treaty regimes have not shown a willingness to admit IOs as parties.46 Nor do the internal “rules” of the UN system (the relevant test posed by Article 6 of the Vienna Convention on IO treaties) provide for accession to human rights treaties. When confronted with a similar situation, the European Court of Justice held the European Community constitutionally incapable of ratifying the European Convention on Human Rights.47 (p.238)

Some point out that when member states contribute troops to multinational operations, those forces remain bound by their national human rights treaty obligations, which are now understood to apply outside their national territories. But this fact does not make the treaty regimes any less state-centric; it simply extends the geographic and operational scope of treaty obligations that remain binding only on states. To the extent the wrongful acts of such troops are attributed to the UN and not the troop-contributing states, as has famously occurred,48 rules of attribution would assign responsibility to an entity that is not a treaty party.

The observation that human rights regimes are state-centric is controversial. As many commentators note, the United Nations is the world’s central proponent of human rights norms and to exempt it from scrutiny for its own acts seems the height of hypocrisy.49 It certainly provides little comfort to the many who have decried the impunity of IOs for acts during post-conflict missions. Much has been written exploring how international law can ameliorate this lack of accountability.50 But the ideas and proposals generated by that discussion do not significantly affect the claim made here that the human rights regime to be amended, replaced, or supplemented by a jus post bellum is essentially state-centric.

First, because major human rights treaties apply by their terms only to states, application to IOs would be a matter of customary law. But customary law is only a weak shadow of the treaty regimes that are the clear target of critiques underlying calls for a new jus post bellum. Divorced from statist treaties that are the major source of human rights norms, customary law lacks procedural obligations that would presumably play a critical role in post-conflict missions. For one, the treaties make possible the extra-territorial application of human rights norms to post-conflict missions. They also require state parties to reform their national laws to comply with substantive obligations and provide remedies for victims. They make clear to whom the human rights obligations are owed. Who would be the equivalent of other treaty parties if the UN were to be bound by customary norms? And they provide supervisory and enforcement mechanisms, albeit rather weak outside of Europe. The practical consequence of human rights obligations lacking any of these elements is, at best, uncertain. There is little authority for the idea that these essentially procedural aspects of human rights instruments have crossed into customary law. (p.239)

Secondly, the much-discussed possibility that human rights violations in post-conflict settings may be attributed to international organizations, as opposed to their troop-contributing states, does not resolve the question of whether IOs have in fact committed “violations” of human rights norms. The International Law Commission’s attribution principles are secondary rules; human rights obligations are primary rules and must be shown to apply to IOs in their own right. For an IO to commit an internationally wrongful act, that act must both be attributable to that organization andconstitute a breach of the organization’s primary obligations.51 The two elements are co-equal but independent of each other.52 Indeed, as Jose Alvarez has argued, crafting secondary rules of attribution when primary rules holding IOs responsible for human rights violations are uncertain at best may itself be a mistake.53

Thirdly, ad hoc arrangements in which IOs agree to abide by human rights norms or accept responsibility for particular human rights violations, as well as extrapolations from the UN’s central role in human rights, may, at some future point, create customary obligations for IOs. But scholars are divided on whether that day has yet arrived, and even the most cogent of these claims appears more prescriptive than descriptive.54 (p.240) In part this is because of another manifestation of human rights’ state-centrism: the literal lack of any forum in which an IO can be brought to account for human rights violations. The United Nations is immune before national courts and international tribunals, with very limited exceptions, have no jurisdiction to hear claims against IOs.55Absent courts, tribunals, or other standing review bodies with jurisdiction to hear claims again IOs, no meaningful jurisprudence can arise to explore whether human rights apply to IOs at all and, if so, under what circumstances. But the reason also has to with the enormous variation in regional and global human rights regimes. The highly developed European system is able to produce opinions attributing responsibility to the UN though not discussing its primary-rule liability. But no other human rights system, whether regional or global, has addressed the issue.

III. Proposition II: The Security Council Can Alter These State-Centric Rules in Important Ways

Even assuming one or more of these three bodies of law would apply to both sets of actors in a post-conflict state—states and IOs—portions of the rules may be preempted by the Security Council under Chapter VII of the Charter. Security Council preemption of state treaty obligations is a consequence of Article 103 of the Charter, which prioritizes commitments under the Charter over those imposed by other treaties.56 Even though Council resolutions are obviously a consequence of the Charter rather than the Charter itself, and might not be seen as having preemptive force under Article 103, the necessary relation between the Council’s Chapter VII powers and the resolutions by which it exercises those powers is sufficient to grant them preemptive status.57 Indeed, the Council itself regularly affirms that obligations in Chapter VII resolutions prevail “notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement.”58 (p.241)

The Council’s legislative power vis-à-vis conflicting treaty obligations is now unexceptional.59 The most important implication for the present discussion arises for the conservationist principle. Absent Council action, unilateral state occupiers are prohibited from altering the law in force in a territory they control, though the degree to which the principle constrains new law-making is highly controversial.60 But assuming some limits exist on an occupier’s legislative authority, the Council may transgress those limits by authorizing occupiers to enact wide-ranging reforms that go to the very heart of the state’s constitutional order.61 Many argue, for example, that in Resolution 1483 the Council substantially broadened the United States’ legislative authority in Iraq.62 The Council now has a substantial track-record in designing missions to repair societies whose political institutions have failed to prevent destructive conflict and polarization.63 Almost all have involved legal and political reforms that arguably transgress the conservationist principle. A substantial internal infrastructure and in-house expertise now exists within the UN to study and refine its peace-building capacity.64 To deny this preemptive authority to the Council via Article 103 would substantially limit its flexibility in prescribing appropriate measures to prevent the recurrence of conflict in fragile post-conflict societies.65

Nonetheless, questions do remain about the scope of the Council’s power. May the Council authorize any sorts of reforms in post-conflict states, creating an ad hoc jus post bellum that deviates not only from the conservationist principle but other, more fundamental principles of international law, such as the protection of human rights? The first thing to be said about this difficult question is that it is almost entirely (p.242) hypothetical.66 Those who might be in a position to oppose Chapter VII post-conflict resolutions—UN member states—have raised few objections to the now-substantial number of missions.67 The missions themselves have consistently taken respect for human rights and creation of democratic institutions as core objectives.68 While many have fallen short and even experienced abuses by their own members, there is no example of a post-conflict mission whose initial mandate arguably contravened human rights or other international legal principles designed to protect the inhabitants of a post-conflict state.69

If limits must be identified, they likely reside not in substantive restrictions on Security Council authority but in the process by which mission mandates are approved. This is a complex set of issues that cannot be done justice here.70 Suffice it to say, the two most commonly identified substantive limits on Council authority—the purposes and principles of the Charter and jus cogens—have serious conceptual difficulties. The former are general and hortatory, providing scant basis for drawing clear doctrinal lines beyond a few frequently-offered examples (i.e. the Council cannot pass a resolution encouraging genocide) that are largely irrelevant to actual Council practice. The latter relies on a necessary inferiority of Council resolutions to jus cogens norms that is quite difficult to defend. The Council acts for the entire membership of the United Nations when it invokes Chapter VII.71 Yet to violate a jus cogens norm such a resolution would need to contravene a norm “accepted and recognized by the international community of States as a whole a norm as a whole as a norm from which no derogation is permitted.”72 The two norms share a self-described universality. As I have written elsewhere, “[i]‌f the support accorded both is roughly equivalent the proposition becomes a non-sequitur, for the international community cannot unequivocally condemn an action it has just endorsed through the Council.”73 (p.243)

In sum, the Security Council may authorize member states or its own forces to transgress the conservationist principle, thereby creating an ad hoc jus post bellum that bears no necessary relation to the statist precepts of occupation law.

IV. Proposition III: The International Community has Effectively Multilateralized the Post-Conflict Period74

If the web of treaty rules particularly important to post-conflict states—jus ad bellum, occupation law and human rights—was designed to regulate states acting unilaterally, the modern era has taken a decidedly different approach. Starting in the early 1990s, the Security Council began engaging with all aspects of armed conflict.75 In part this fulfilled a critical aspect of the Charter’s original design: to make conflict resolution a multilateral rather than unilateral concern, thereby leveraging the superior resources of the international community to resolve local disputes.76 But the Council’s activism in the post-Cold War period also went well beyond the original Charter design by engaging fully with the aftermath of internal armed conflicts. This was a transition born of necessity, as most armed conflicts in this period have been internal and the Council would have rapidly become a marginal presence if it had not addressed civil wars.

The goal of multilateralizing all aspects of warfare has largely succeeded. According to two major datasets of armed conflict, there were ten inter-state armed conflicts between 1990 and 2010.77 All but two of these were addressed in one form or another by the UN Security Council, which took actions ranging from authorizing intervention to supporting regional peace processes.78 The Council’s involvement has not been episodic but holistic, as it regularly addresses all aspects of armed conflict from inception to termination. It mediates disputes that appear likely to escalate into armed conflict; authorizes responses to cross-border incursions; condemns violations of humanitarian law in the course of armed conflicts, including referring matters to the International Criminal Court; assists in negotiating ceasefires and eventual peace agreements; and, as has been noted, dispatches reconstruction missions to post-conflict states.79 To take (p.244) one brief snapshot of UN activities, the Secretary General reported in September 2012 that “[s]‌ince September 2011, the Organization has engaged in more than 20 peace processes, supported democratic transitions in various Arab countries, assisted in preparing and conducting elections in more than 50 Member States, and worked to build peace after conflict through 16 peacekeeping operations, 18 political field missions and United Nations country teams.”80 This multifaceted approach embodies an important learning curve. The UN (via Council action) has moved well beyond simple post hoc responses to aggression to deploying sophisticated strategies of prevention, mediation, reconciliation, reconstruction, and exit from conflict zones.81

This move to multilateralism has been particularly evident at the post-conflict stage. The UN has become the indispensable actor in such transitional operations.82Its involvement has ranged from full international governance to advising transitional regimes. To ensure the organization continues to learn from both its successes and failures, the Security Council created the Peacebuilding Commission in 2005 with a mandate to “bring together all relevant actors to marshal resources and to advise on and propose integrated strategies for post-conflict peacebuilding and recovery” as well as to “focus attention on the reconstruction and institution-building efforts necessary for recovery from conflict.”83 Reviewing the UN post-conflict record in 2006, Doyle and Sambanis concluded that the organization is most successful when it is involved an all aspects of a transition from conflict to stable peacetime governance.84 A greater role for the United Nations thus enhances the effectiveness of post-conflict reconstruction.

V. Which Direction for a Jus Post Bellum?

The norms applicable to post conflict states are thus highly bifurcated. On the one hand, the existing treaty regimes are state centric in their design and also largely in their application. On the other hand, the Security Council has multilateralized the post-conflict period for almost all armed conflicts over the past decade (to a greater or lesser extent to be sure). If we can assume the Council will not retreat from these reconstruction initiatives in the near future, the consequence is that existing post-conflict norms barely regulate the most important actor in the field. Architects of a nascent jus (p.245) post bellum thus face a dilemma. The new regime can mirror the state-centrism of existing law, in which case it will be of questionable relevance to the IOs and IO-sanctioned operations dominating today’s post-conflict missions. Ad hoc IO adherence could certainly continue, as could ethical or political arguments urging their adherence. But this route would effectively abandon a uniform jus post bellum applicable to all post-conflict actors.

Alternatively, the new regime can expand its application to include multilateral actors. But in that case it must provide a convincing justification for subordinating Council authorizations under Chapter VII to a set of treaty-based or customary rules. Article 103 makes that an impossible task.

VI. An Alternative Path?

This lack of fit makes either of these alternatives quite unappealing. Either state centric norms attempt to regulate IOs not subject to their terms or they exclude IOs and fail to account for the most important players in contemporary post-conflict environments. A third alternative would seek to modify the norms themselves. It would draw on the different capacities of states and international organizations not as a basis for denying the application of jus post bellum but crafting differential obligations. This approach would effectively disaggregate jus post bellum norms from unified treaty regimes into (at least) two sets of component parts: those that IOs are capable of following and those they are not. Identifying additional sets of obligations may be necessary since, as will be discussed below, the “capacity” of an IO in any given case may vary greatly depending on the nature of the mission and the mandate it has assumed.

A differentiated set of obligations for IOs would avoid help avoid the uncomfortable outcome of exempting the United Nations from a jus post bellum. Given that many derive jus post bellum principles from the ethical tradition of just war theory, limiting its application to unilateral actors hardly seems tenable on ethical grounds. A moral imperative to apply minimum standards of human rights and political accountability to post-conflict states could hardly exempt multilateral actors. Indeed, as is often argued, the UN is the world’s primary exponent of human rights and the rule of law and can hardly be held to lower standards of conduct than national actors. The widely-discussed Brahimi Report on United Nations Peace Operations, for example, took as one of its foundational premises the “essential importance of the United Nations system adhering to and promoting international human rights instruments and standards and international humanitarian law in all aspects of its peace and security activities.”85 A differentiated set of rules for different post-conflict actors would be difficult to reconcile with these imperatives.

The primary model for distinguishing state from IO obligations would be the principle of Common but Differentiated Obligations (CDO) in international (p.246) environmental law.86 Most international norms are uniform both in the standards they apply and the timing and nature of compliance they demand.87 But beginning with the 1972 Stockholm Declaration, environmental regimes began to differentiate between developed and developing countries, holding the latter either to no immediate obligations or to lower standards or to obligations phased in over time.88 The principle was reaffirmed in the 1992 Rio Declaration and is now enshrined in a variety of environmental instruments, most notably the United Nations Framework Agreement on Climate Change, and also in trade law and the law of the sea.89

The primary rationale for CDO in environmental law is corrective justice, grounded in developed countries’ historical responsibility for much of the environmental degradation that has made global treaty regimes necessary.90 If developing countries contributed little, if anything, to the depletion of the ozone layer or emission of greenhouse gases, why should they assume the costs of remediation? This claim has little application to jus post bellum; the history of the actors involved has little bearing on how they should conduct themselves in post-conflict states. A secondary rationale, based on the capabilities of different actors, better fits actors distinguished by the breadth of their international legal personalities.91 The goal in both cases is utilitarian: the good involved (environment/welfare of inhabitants of post-conflict states) will be furthered if the disadvantaged actor (poor state/IO) participated in the regime.92In order to gain their participation, however, concessions must be made to their diminished capacities relative to the stronger actors.

Few attempts have been made to understand how CDO would operate if applied to humanitarian law and even fewer when obligations are differentiated not between (p.247) more and less powerful states, or even states and non-state actors in civil wars (ie, rebel movements), but states and international organizations.93 While a full analysis is beyond the scope of this chapter, one can imagine CDO for jus post bellum operating as follows. Missions authorized by the Security Council under Chapter VII—increasingly the norm—exist wholly outside the jus ad bellum and could not be subject to its limitations.94 No concession to the UN’s different legal capacity could make the jus ad bellum applicable to Council-authorized missions. Any normative realignment would involve only the portion of jus post bellum derivative of occupation law and human rights law. In those areas, IOs are primarily deficient in their ability to carry out affirmative obligations: in occupation law obligations to ensure the subsistence of the local population and in human rights law obligations to provide institutions that oversee the implementation of rights, investigation of violations, and provide remedies to victims. Generalizations in these areas are difficult, since Council-authorized missions have varied widely in the breadth of tasks assigned and institutional capabilities to affect change in their territories. There is a world of difference, for example, between territorial administrations in which the UN mission effectively becomes the government of a state or a portion thereof and missions tasked only with advising local actors on reform efforts. A single standard for IOs would miss this broad variation. Any codification of IO obligations would therefore need to be quite flexible, perhaps saying no more than that an organization assumes responsibility under jus post bellum commensurate with its mandate to act in a particular circumstance.95 In addition, the conservationist principle that limits an occupier’s legislative authority is wholly inapplicable to UN missions tasked precisely to bring out political and legal reform. Each of these areas could be carved out of the jus post bellum obligations of IOs; unlike environmental regimes, where CDOs differently calibrate compliance with the same set of obligations, CDO here would differentiate between the obligations that are owed.

By most accounts the CDO principle has not entered customary international law, even in the environmental realm where it permeates global treaty regimes.96 This means if CDOs are to be included in jus post bellum they must become part of new IOs or revisions to existing instruments—the same path followed by environmental CDOs. This is no small task. The United Nations has been a major player in post-conflict states since the end of the Cold War and debate surrounding its adherence to humanitarian and human rights law had been ongoing for decades before.97 Yet no humanitarian law instruments have been created or amended to account for its different legal capacity. (p.248)

VII. Consequences of a Unified Jus Post Bellum

A detailed exploration of a jus post bellum with CDOs or limited to regulating states’ paths is beyond the scope of this chapter. Instead, discussion will be limited to the broadest conception of a jus post bellum that subjects all post-conflict scenarios—purely unilateral, partially regulated by Security Council mandate, or fully regulated by a Council mandate—to a unified body of rules. Much recent writing appears to assume that a jus post bellum would apply uniformly to all post-conflict actors.98 One can well understand the reasons for this universalist conception, since the reality of contemporary post-conflict states is that an enormous variety of entities works on reconstruction initiatives.99 Even leaving aside NGOs, which are often integral to reform in certain sectors, the mix of unilateral and multilateral actors varies greatly from case to case. For international territorial administrations the Security Council has subsumed all actors under a Chapter VII mandate that grants plenary power to its own administrators. In other cases, actors with a Chapter VII mandate work side-by-side with national actors. And in still others certain aspects of reform or maintenance of security are covered by a Council mandate but others are not.

How would a uniform jus post bellum function in such circumstances? An examination of four post-conflict episodes provides useful illustrations. Each case presents a different variation on the possible plurality of unilateral or multilateral actors.

A. East Timor 1999

After the United Nations supervised an independence referendum in East Timor in August 1999, militias supported by the Indonesian government ran rampant, causing widespread death and destruction.100 After a vanguard Australian force entered East Timor, the Security Council effectively internationalized the territory in Resolution 1272 in order to repair the damage and pave the way for the independence supported by (p.249) Timorese voters.101 The territory was to be governed by the UN Transitional Authority in East Timor (UNTAET).

UNTAET’s mandate comprised all tasks regularly involved in nation-building: creation of a regulatory infrastructure, rule of law initiatives, building democratic institutions, and training local personnel.102 The mission was “endowed with overall responsibility for the administration of East Timor and...empowered to exercise all legislative and executive authority, including the administration of justice.”103 The Transitional Administrator had the power to “appoint any person to perform functions in the civil administration in East Timor, including the judiciary, or remove such person.”104 The Administrator announced that in fulfilling its mandate UNTAET would be constrained by seven widely subscribed human rights instruments. Indonesian law would continue to apply to the extent it was consistent with these instruments, the Security Council mandate, and directives issued by UNTAET. Early on, the Administrator rescinded a series of Indonesian security regulations deemed to be inconsistent with human rights standards.105

UNTAET’s organizational structure came to resemble a government, divided into eight ministerial-like portfolios of authority.106 It set to work filling the void left by Indonesia’s departure and the rampaging militias, issuing regulations, establishing numerous governmental entities and functions, and staffing these new institutions. UNTAET’s reforms included a new procedure to select judges, a judicial system, a central fiscal authority, a public service commission, a currency (the US dollar), a border service, tax and customs regimes, a treasury, procedures for public budgeting, and rules covering the representatives of foreign governments in East Timor.107

UNTAET´s governing authority in East Timor was plenary. It set policy, oversaw implementation, and designed the new institutions and norms deemed necessary to affect a transition to independent statehood. Reconstruction in the territory was fully multilateralized, to the point where a credible argument can be made that during UNTAET’s reign East Timor became the first example of “UN statehood.”108

In order to have any meaningful impact in East Timor, a uniform jus post bellumwould have needed to assert regulatory authority over the Council’s Chapter VII mandate and UNTAET’s legislative authority that followed. Regulation of individual states participating in UNTAET would have had no impact on the Mission itself. (p.250)

B. Afghanistan 2001

Following the US intervention in Afghanistan on 7 October 2001 and the ouster of the Taliban regime, control over various sectors of Afghan society changed steadily.109 US and Afghan resistance forces took the capital Kabul on 12 November. On 14 November, the Security Council expressed support for Afghans creating an interim government but did not invoke Chapter VII or authorize a UN presence in the country.110 An interim administration was created at an international conference in Bonn on 5 December.111The Council endorsed the agreement the next day but again refrained from invoking Chapter VII.112 The Bonn Agreement called on the United Nations to establish an international security force in Afghanistan and on 20 December the Security Council did so in Resolution 1386.113 Invoking Chapter VII for the first time, it created an International Security Assistance Force (ISAF) “to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas.”114 The Council “called on” ISAF to “to work in close consultation with the Afghan Interim Authority” but also authorized member states contributing forces to ISAF to “take all necessary measures to fulfill its mandate.”115 In October 2003, with the security situation in Afghanistan deteriorating, the Council extended ISAF’s mandate to cover areas outside Kabul.116 The Council subsequently approved a multi-staged expansion of ISAF’s territorial authority until it covered the entire country in 2007.117 Up until that point, security in the areas not under ISAF’s jurisdiction had been the province of the US-led coalition.

The Council’s involvement in the Afghan civilian administration similarly varied over time. The Bonn Agreement established an Interim Authority, headed by Hamid Karzai, to govern Afghanistan until an Emergency Loya Jurga could be convened within six months.118 That body would govern “until such time as a fully representative government can be elected” which was to occur within two years.119 The Bonn Agreement called for a significant UN role in the transition, and the Council fulfilled that request on 28 March 2002 by creating the United Nations Assistance Mission to Afghanistan (UNAMA).120 But the Council did not invoke Chapter VII and UNAMA’s mandate did not include coercive authority to impose reforms; instead, the mission functioned to coordinate the many UN activities called for under the Bonn Agreement and to respond to assistance needs identified by the interim Afghan government and the international donor community.121 Indeed, much development assistance for (p.251) Afghanistan, including responsibility for entire sectors, remained under the control of individual donor states. One source shows 17 states as development partners in the country.122 Whether development assistance was bilateral, regional, or global in origin varied widely by the sector involved.123

Post-war Afghanistan thus presents a complex and overlapping set of external actors. The security sector was multilateralized but in geographical increments, with only portions of the country being subject to ISAF’s Chapter VII mandate from 2002 to 2006. Authority over civilian affairs never passed to the UN but remained with the Afghan government working in cooperation with various UN agencies and other multilateral and bilateral donors. A uniform jus post bellum would have needed to take account these sectoral, geographical, and temporal variations among the international actors operating in the country.

C. Iraq 2003

The 2003 occupation of Iraq presents the most complex interaction between unilateral and multilateral actors in a recent post-conflict state.124 The United States initiated hostilities against Iraq in March 2003 and gained control of Baghdad in early April. On 8 May the newly-constituted occupation authority, the Coalition Provisional Authority (CPA), issued a proclamation announcing its plenary authority to govern Iraq.125 At the same time, the United States, having defied an evident majority on the Security Council opposed to the intervention, returned to the Council to obtain a mandate giving it broad discretion for reform.126 The outcome of that effort was critical in determining the identity and legal status of the actors in occupied Iraq. If the Council approved broad reforms via Chapter VII, the CPA would have operated under the aegis of that authorization, subject not to the more limiting principles of occupation law but only the four corners of the Council resolution. But if the Council did not authorize reform, and perhaps even affirmed the applicability of occupation law, the CPA would have operated within the confining limits of the conservationist principle. The nature of the actors, in other words, determined the law applicable to their actions. (p.252)

The polarized and awkward politics of the immediate post-war period led to Resolution 1483, a study in political compromise and legal ambiguity.127 On the one hand, the resolution affirmed that the US and UK were occupying powers subject to all the strictures of occupation law, in particular the Hague Regulations and the Fourth Geneva Convention.128 It also called for a quick return to local governing authority, a request the Council reiterated in subsequent resolutions.129 Neither assertion seems compatible with a multilateralization of the occupation with a broad reform mandate.130

On the other hand, Resolution 1483 called on the CPA, “consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future.” Some have read this and other passages as effectively abrogating the conservationist principle by granting the CPA broad legislative authority.131 Others oppose this view, arguing that such ambiguous language should not be read to support a radical departure from a core tenant of occupation law, and that when the Council has authorized domestic reforms in the past it has done so in clear and unmistakable terms.132 Perhaps Marten Zwanenburg is correct that claims the Council authorized a transformative occupation in Resolution 1483 “are neither clearly corroborated nor clearly dismissed by an analysis of the resolution and the circumstances surrounding its adoption.”133

The existence (or not) of a reform mandate was not the only Council action contributing to a heterogeneity of actors in post-war Iraq. A series of actions across several resolutions resulted in a crazy-quilt of unilateral and multilateral mandates and entities:

  • Resolution 1483 seemed to describe other states working with the US and UK as not qualifying as occupying powers.134 If this is a correct reading, it implies (p.253) there may have been at least three bodies of law applicable to actors in Iraq: the Council’s authorization for CPA-led reform, the law of occupation applicable to the US and UK (which 1483 and other resolutions specifically affirmed), and other regimes (perhaps human rights law, as the European Court of Human Rights later affirmed) applicable states cooperating with the CPA.

  • In Resolution 1483 the Council urged the creation of an interim Iraqi administration during the occupation. On 13 July 2003 the CPA did so, announcing the creation of the Iraqi Governing Council (IGC). The IGC appeared to have the status of a partner: “the Governing Council and the CPA shall consult and coordinate on all matters involving the temporary governance of Iraq, including the authorities of the Governing Council.”135 Two months later, in Resolution 1511, the Council declared that the IGC “embodies the sovereignty of the State of Iraq during the transitional period.”136 The Council’s determination of the IGC’s status was an act of legal fiat, since none of the other criteria typically employed by international law to determine the legitimacy of a governing regime seemed to apply. Indeed, the most venerable test for regime legitimacy—effective control—would have come to the opposite conclusion, since the IGC had virtually no independent authority of its own.137 A central purpose of the conservationist principle is to preserve the prerogatives of the occupied state’s de jure government. Presumably Resolution 1511 elevated the IGC to that status. But can a body that owes its status solely to the Chapter VII authority of the Security Council be subject to regulation (and protection) by occupation law? The IGC seemed to occupy an intermediate level between a national and international actor.

  • In Resolution 1483 the Security Council requested the Secretary General to appoint a Special Representative (SRSG) to coordinate the work in Iraq of UN bodies, other international agencies and the CPA in a variety of areas.138 The SRSG had no direct governing responsibilities; those remained with the CPA.139 But as a representative of the United Nations, the SRSG was clearly not subordinate to the (p.254) occupying powers or assimilated into their governing structure. He remained a multilateral actor, despite his limited influence on CPA policy.

  • In August 2003 Security Council created the United Nations Assistance Mission for Iraq (UNAMI), to be headed by the SRSG.140 Its role was to advise and assist Iraqi bodies on electoral reform and other areas. Like the SRSG, UNAMI was a multilateral actor but without a mandate to supervene the acts of either the CPA or local Iraqi institutions. Presumably for this reason the Council did not invoke Chapter VII when creating the mission.

  • In Resolution 1511 the Security Council created a “multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq.”141 While the Council urged member states to contribute to the force, the United States and Britain supplied over 90 percent of the foreign troops in Iraq.142 The Council did not assert operational control over the force and did not grant it a Chapter VII mandate. US military commanders reported directly to the US Secretary of Defense and through him to the President of the United States.143

  • The existence vel non of an occupation is normally a question of fact, focusing on a state’s control over foreign territory.144 Such factual determinations trigger the application of the entire corpus of occupation law. But in Resolution 1546 the Security Council declared that “by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty.”145 As with the status of the IGC, the end of the Iraqi occupation involved the Council using its Chapter VII powers to interpret and apply law normally operating independently of Council action.

To recap, whether or not the Security Council authorized the CPA to engage in broad reforms in Iraq is an unresolved and perhaps unresolvable question. As a result, it remains unclear whether the CPA operated under occupation law or the terms of Resolution 1483. The Council removed the questions of whether the United States and United Kingdom were occupying powers and the question of when the occupation ended from the purview of occupation law by providing its own answers under Chapter VII. Further, it created three entities—the SRSG, UNAMI, and the multinational force—which were clearly not organs of the occupying states but which also had none of the independent coercive authority that Chapter VII might have provided. Finally, the CPA created the IGC and the Security Council declared it to be the repository of Iraqi sovereignty during a transitional period. The IGC thus appeared to be an Iraqi body, neither (p.255) an appendage of the CPA nor an organ of the Security Council, but with virtually no independent authority to change Iraqi law.

D. Libya 2011

In early 2011 a growing uprising in Libya led to harsh reprisals by government forces that were widely condemned by states and IOs.146 When Libyan President Muammar Gaddafi did not cease actions against rebels and their supporters, the Security Council passed Resolution 1970 on 26 February 2011, demanding an end to human rights violations and imposing various sanctions against regime leaders.147

The situation worsened in early March when Libyan government forces advanced on Benghazi, a rebel stronghold. President Gadaffi threatened brutal retaliation against rebels in the city. On 17 March the Council passed Resolution 1973, with five states abstaining including permanent members Russia and China. Invoking Chapter VII, the resolution imposed a no-fly zone on Libya and, critically, authorized “Member States that have notified the Secretary-General...to take all necessary measures...to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi.”148 The Council specifically precluded a significant foreign troop presence in Libya by “excluding a foreign occupation force of any form on any part of Libyan territory.”149 Almost immediately thereafter a coalition of western states, eventually succeeded by NATO, began a wide-ranging air campaign against Libyan government forces and installations. Bolstered by this close air support, the Libyan rebels gained territory throughout the summer and, shortly after President Gadaffi was captured and killed, the rebels declared victory on 23 October 2011.150

Even before the rebels’ victory their leaders requested UN assistance for a post-conflict transition.151 On 16 September the Council responded by creating the United Nations Support Mission in Libya (UNSMIL).152 The Council invoked Chapter VII but its mandate for UNSMIL emphasized local ownership rather than UN-led reform and embodied the same light-footprint approach it had applied to Afghanistan.153UNSMIL was authorized “to assist and support Libyan national efforts” to achieve a variety of goals, such as restoring security, promoting rule of law, undertake elections, (p.256) and protect human rights.154 Leaders of the Libyan transition acted in accordance with this view of the UN as a supportive partner.155

Even though UNSMIL was charged with coordinating all UN reconstruction efforts in Libya, it did not occupy the field of external actors. Indeed, one of its responsibilities was to “coordinate support that may be requested from other multilateral and bilateral actors as appropriate,”156 which it has done.157 In his most recent report the Secretary General urged greater bilateral assistance to secure the Libyan transition.158 As of this writing, the United States159 and the United Kingdom160 have made significant development commitments in a variety of sectors, while Jordan and Turkey are coordinating police training.161 On 13 February 2013 a group of donor nations and international organizations outlined a joint plan for support in the security, justice, and rule of law sectors.162

Post-conflict Libya has a UN mission operating under Chapter VII but without a security or peacekeeping component. Its mandate is focused on political, legal, and economic reforms but it shares those functions with a number of bilateral actors whose presence alongside UNSMIL the Security Council has encouraged. But the Council has emphasized the importance of Libyans taking the lead in developing new institutions and policy preferences. Presumably for this reason none of the Council-authorized actions carry preemptive authority under Chapter VII.

VIII. Conclusions

Much is to be gained by viewing jus post bellum as law rather than as a moral prescription or policy proposal. But to gain the benefits of normativity, the new regime, a set of primary rules must demonstrate adherence to more fundamental secondary rules. This chapter has argued that adherence to the secondary rule distinguishing unilateral from (p.257) multilateral acts will be critical. The distinction permeates all three sets of primary rules applicable to post-conflict states—jus ad bellum, occupation law, and human rights law. It is difficult to imagine how a jus post bellum might realistically and coherently demonstrate that adherence.

The problem arises from the extraordinary diversity of actors in post-conflict states. Some post-conflict environments are binary, with actors operating either wholly unilaterally or wholly pursuant to a Chapter VII mandate. In others, a UN mission authorized under Chapter VII operates alongside unilateral national actors. But other post-conflict states present a kind of twilight zone. In one variation, some actors receive Chapter VII mandates but have no authority to supervene local actors or bilateral donors. In a second, some have Chapter VII authorizations that are limited topically or geographically. In a third, local actors are created by international actors. The cases of East Timor, Afghanistan, Iraq, and Libya provide examples of each of these configurations. The only binary case of the four was East Timor, where the Security Council granted UNTAET plenary power to legislate for the territory and govern during the transition. The other three cases present the extreme heterogeneity of both unilateral and multilateral actors with uncertain and perhaps even overlapping competencies.

The question in each case is whether an actor is subject to regulation by applicable state-centric legal regimes or whether those regimes have been superseded by the Council under Article 103 of the Charter. The answers in the binary cases are easy, though not promising for the efficacy of a uniform jus post bellum. The purely unilateral cases would be fully susceptible to a jus post bellum that followed the state-centrism of the existing regimes. The purely multilateral cases might be subject to state-centric norms that did not conflict with a Chapter VII prescription but those norms would yield wherever they conflicted with stated Council goals.

Such pure cases, however, are increasingly rare. The internationalization of post- conflict reconstruction has made the UN a constant presence in the aftermath of wars. Fewer and fewer occupations are conducted wholly without Security Council involvement. None of the four cases reviewed here is purely unilateral, even Iraq which is often seen as a solely American initiative. On the other hand, the full internationalization of a post-conflict territory last occurred in East Timor in 1999. The enormous political and logistical burdens inherent in such missions suggest that these too will become few and far between. That leaves the twilight zones.

In those cases, the possibility of a uniform jus post bellum adhering to the unilateral/multilateral distinction seems remote. Because the nature of each actor dictates the applicable law the result will be a patchwork of obligations following no necessary hierarchy. Either the law will retain its uniformity and yield to an inconsistent Chapter VII mandate, thereby leaving the multilateral actors unregulated or, recognizing the futility of this effort, regress to the state-centrism of existing norms. The Iraq occupation provides an example. If one believes the Security Council granted the CPA a Chapter VII reform mandate, its actions would not have been subject to the limits of the conservationist principle (despite the Council’s repeated exhortations that occupation law be obeyed). The Council deemed other states working with the United States and United Kingdom not to be occupying powers, thereby removing them from the ambit of one set of norms for unilateral actors (occupation law) but not altering their (p.258) susceptibility to another (human rights law). The Iraqi Governing Council, though a creation of the CPA, was deemed to embody the sovereignty of Iraqi by the Security Council. Its status may have been the result of a unilateral or multilateral act. UNAMI and the SRSG were multilateral actors with no coercive authority in their mandates, suggesting they could not transcend the limits of occupation law. But neither were they national actors and were likely not susceptible to occupation law in the first place. Finally, the multinational force created by Resolution 1511 had an “all necessary means” mandate, suggesting its authority flowed from the Council. But operationally the force had no ties to the United Nations; force commanders reported to London and Washington. The legal status of the force being ambiguous the applicable law was ambiguous at well.

One intellectually promising alternative is to abandon the idea of uniform obligations under state-centric law and hold international organizations only to those norms that, in any given case, they are capable of respecting. This approach would borrow the idea of Common but Differentiated Obligations from international environmental law. Because the principle has not entered customary international law, its prospects depend upon the unlikely emergence of new humanitarian law instruments or substantial revision of existing ones.

Perhaps jus post bellum’s ascent into law is premature. If the roles of individual states and the Security Council in post-conflict states can be harmonized then perhaps a more uniform body of norms can emerge that does require tailoring to the unique characteristics of each. At that point the division between the two might recede in importance. But for now it remains fundamental and jus post bellum cannot avoid reckoning with its implications.

Notes:

(1) Michael Walzer, Just and Unjust Wars (4th edn, Basic Books 2006) 109–26; see generally, Alex J. Bellamy, “The Responsibilities of Victory: Jus Post Bellum and the Just War” (2008) 34 Review of International Studies 601.

(2) Liliana Lyra Jubilut, “Towards a New Jus Post Bellum: The United Nations Peacebuilding Commission and the Improvement of Post-Conflict Efforts and Accountability” (2011) 20 Minnesota Journal of International Law 26, 30.

(3) See Carsten Stahn, “Jus Post Bellum: Mapping the Discipline(s)” (2007) 23 American University International Law Review 311, 345.

(4) See Derek Jinks, “The Temporal Scope of Application of International Humanitarian Law in Contemporary Conflicts” (Background Paper prepared for the Informal High-Level Expert Meeting on the Reaffirmation and Development of International Humanitarian Law, Cambridge, 27–29 January 2003) <http://www.hpcrresearch.org/sites/default/files/publications/Session3.pdf> (accessed 4 July 2013).

(5) Thomas M. Franck, The Power of Legitimacy Among Nations (Oxford University Press 1990) 184.

(6) John Lawrence Hargrove, “International Law as Law, Law as a System of Rule-Governed Conduct” (2011) 56 Villanova Law Review 509, 512.

(7) Franck, The Power of Legitimacy Among Nations (n. 5) 184.

(8) Franck, The Power of Legitimacy Among Nations (n. 5) 184.

(9) See generally, David Tolbert and Andrew Solomon, “United Nations Reform and Supporting the Rule of Law in Post-Conflict Societies” (2006) 19 Harvard Human Rights Journal 29, 52.

(10) World Bank Operations Evaluation Department, “Aid Coordination and Post-Conflict Reconstruction: the West Bank and Gaza Experience” (Precis, World Bank 1999) 2. As examples, the Bank reports that as of 1999 “[i]‌n the case of the West Bank and Gaza, 50 bilateral and multilateral donors are active, while in Bosnia-Herzegovina, the number has soared to over 60 donors.”

(11) See generally, Robert McCourquodale, International Law Beyond the State: Essays on Sovereignty, Non-State Actors and Human Rights (CMP Publishing 2011), Andreas Bianchi (ed.), Non-State Actors and International Law (Ashgate 2009).

(12) “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” United Nations, Charter of the United Nations (24 October 1945), 1 UNTS XVI (UN Charter) Art. 2(4).

(13) See generally, Yoram Dinstein, War, Aggression and Self-Defense (5th edn, Cambridge University Press 2012).

(14) UN Charter Art. 51.

(15) “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense 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.”

(16) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep. 136, para. 139 (Wall Opinion). For a thorough critique of the Court’s reasoning, see Sean D. Murphy, “Self-Defense and the Israeli Wall Advisory Opinion: an Ipse Dixit from the ICJ?” (2005) 99 American Journal of International Law 62.

(17) The Court found that Uganda had offered “no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC” and were therefore “non-attributable to the DRC.” [2005] ICJ Rep. 2005, para. 146. For this and other reasons the Court concluded that “the legal and factual circumstances for the exercise of a right of self-defense by Uganda against the DRC were not present.” [2005] ICJ Rep. 2005, para. 147. This passage suggested that attribution of an attack to a state is essential. But immediately thereafter the Court added that as a result of its holding it had “no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defense against large-scale attacks by irregular forces.” [2005] ICJ Rep. 2005, para. 147. The Court may only have meant that it had no need to explore the threshold for attribution in circumstances where some state involvement is apparent. But the passage is not qualified in this manner and may signal the court’s receptivity in the future to a claim challenging for attribution at all.

(18) See, for example, Murphy, “Self-Defense and the Israeli Wall Advisory Opinion” (n. 16).

(19) For example, in Libya the Council has authorized states to intervene in civil wars against the wishes of the incumbent government, an act not generally open to states acting unilaterally. See UNSC Res. 1973 (17 March 2011) UN Doc. S/RES/1973 (authorizing all member states “to take all necessary measures...to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya”); Christine Gray, International Law and the Use of Force (3rd edn, Oxford University Press 2008) 80–1.

(20) See Vera Gowlland-Debbas, “The Functions of the United Nations Security Council in the International Legal System” in Michael Byers (ed.), The Role of Law in International Politics (Oxford University Press 2001) 277; Gabriel Oosthuizen, “Playing the Devil’s Advocate: The United Nations Security Council is Unbound by Law” (1999) 12 Leiden Journal of International Law 549, 555; Rosalyn Higgins, “The Place of International Law in the Settlement of Disputes by the Security Council” (1970) 64 American Journal of International Law 1.

(21) UN Charter Art. 53.

(22) Dinstein, War, Aggression and Self-Defense (n. 13) 270.

(23) Much of the discussion in this section is taken from Gregory H. Fox, Humanitarian Occupation (Cambridge University Press 2008).

(24) Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (GC IV).

(25) GC IV Art. 2 provides that the Convention applies “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.”

(26) GC IV Art. 2.

(27) The Vienna Convention on Law of Treaties Between States and International Organizations or Between International Organizations (adopted 21 March 1986) 25 ILM 543, provides in Art. 6 that “[t]‌he capacity of an international organization to conclude treaties is governed by the rules of that organization.” This contingent ability to contract stands is in contrast with a per se rule for states: “[e]very State possesses capacity to conclude treaties.” Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) Art. 6 (emphasis added).

(28) As Porrett and Vité observe, “some conventional rules are simply inapplicable, given the structure of international organizations. Thus, adhesion could only be partial and an adequate end result would require a reworking of all the instruments involved, including the formulation of reserves concerning certain changes.” Gabriele Porretto and Sylvain Vité, “The Application of International Humanitarian Law and Human Rights Law to International Organisations” (2006) Research Paper Series 1/2006, University Centre for International Humanitarian Law, 27 <http://www.geneva-academy.ch/docs/projets/CTR_application_du_DIH.pdf> (accessed 4 July 2013). See also Ray Murphy, “United Nations Military Operations and International Humanitarian Law: What Rules Apply to Peacekeepers?” (2003) 14 Criminal Law Forum 157 (UN ratification of Geneva Conventions “would entail binding the Organisation to detailed provisions that are aimed at states, and do not fit the role and function of an international organisation”).

(29) UN Secretary General, “Observance by United Nations Forces of International Humanitarian Law” (1999) UN Doc. ST/SGB/1999/13, section 1.1.

(30) International Committee of the Red Cross, “Multinational Forces” (ICRC, 29 October 2010), <http://www.icrc.org/eng/war-and-law/contemporary-challenges-for-ihl/multinational-forces/overview-multinational-forces.htm> (accessed 4 July 2013) (emphasis added).

(31) This proposition assumes one can readily distinguish multinational from national forces in a given operation. See Porrett and Vité, “The Application of International Humanitarian Law and Human Rights Law to International Organisations” (n. 28) 29 (noting that “a single operation can involve two simultaneous operational systems”).

(32) Marco Sassoli, “Article 43 of the Hague Regulations and Peace Operations in the Twenty-First Century” (Background Paper, International Humanitarian Law Research Initiative 2004) 17.

(33) The UN might ratify IHL treaties but it has shown no inclination to do so to date; the Secretary General might add occupation law to the list of IHL obligations the UN will voluntarily follow but has not done so in the 13 years since his bulletin; and the ICRC urges reasons for applying occupation law to multinational operations. I have made a somewhat similar argument in Humanitarian Occupation, urging that occupation law should apply to multinational forces if a function test is fulfilled. See Fox, Humanitarian Occupation (n. 23) 225–30. But that argument does not purport to describe existing law.

(34) Fox, Humanitarian Occupation (n. 23) 55–8. In authorizing the MINUSMA mission to Mali on 25 April 2013, for example, the Council mandated it to “monitor, help investigate and report to the Council on any abuses or violations of human rights or violations of international humanitarian law committed throughout Mali and to contribute to efforts to prevent such violations and abuses.” UNSC Res. 2100 (25 April 2013) UN Doc. S/RES/2100. The Secretary General’s promise to have forces under UN control observe IHL norms similarly focuses on protections of civilians and individuals hors de combat.

(35) The prohibition is grounded in Art. 43 of The Hague Regulations and Art. 64 of GC IV. Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) 187 CTS 227 Art. 43 (Hague Regulations); GC IV (n. 24) Art. 64.

(36) See Adam Roberts, “Transformative Military Occupation: Applying the Laws of War and Human Rights” (2006) 100 American Journal of International Law 580.

(37) Eric De Brabandere, “UN Supervision of Post-Conflict Reconstruction and the Domestic Jurisdiction of States” (2009) 59 Ars Aequi 103, 106 (“[t]‌he UN Security Council, when authorizing the creation of comprehensive peacebuilding missions clearly and explicitly points to the democratization of state institutions as one of the long-term objectives”).

(38) UNSC Res. 1244 (10 June 1999) UN Doc. S/RES/1244, para. 10.

(39) UNSC Res. 1272 (25 October 1999) UN Doc. S/RES/1272, para. 1.

(40) Fox, Humanitarian Occupation (n. 23) 103.

(41) The Secretary General listed institution-building as one of the five core objectives of UN post-conflict peace-building missions. See Report of the Secretary General, “Peacebuilding in the Aftermath of Conflict” (2012) UN Doc. A/67/499–S/2012/746, 10–11. Beyond high profile national institutions such as parliaments and courts, the Secretary General has identified a remarkable range of governmental bodies potentially in need of reform:

Working with partners as early as possible to build or rebuild the functionality of country systems is critical to allowing for a successful transition from conflict and the drawdown of missions. These systems include the core administrative and financial management systems of the public administration, as well as social services, without which national Governments are unable to lead recovery efforts and respond to the needs of the population. They include policy formulation and public financial management, in particular planning, budgets and spending; leadership from the centre of Government, which is critical to driving change and ensuring coherence; civil service management, which entails ensuring that key administrative staff are in place, paid regularly and follow instructions and procedures; local governance, the level at which the State most frequently and directly interacts with its population; and the coordination of aid, which in many post-conflict contexts covers a major part of the budget. Improvement in other Government service systems, including health, education, agriculture and natural resources management, is also Improvement in other Government service systems, including health, education, agriculture and natural resources management, is also critical.

UN Doc. A/67/499–S/2012/746, 14.

(42) See Sylvain Vité, “L’applicabilité du droit international de l’occupation militaire aux activités des organisations internationals” (2004) 86 International Review of the Red Cross 9.

(43) Robert McCorquodale, “Overlegalizing Silences: Human Rights And Nonstate Actors” (2002) 96 American Society of International Law Proceedings 384.

(44) McCorquodale, “Overlegalizing Silences” (n. 43) 384.

(45) Treaties such as the Covenant on Civil and Political Rights or the European Convention on Human Rights contain the broad-based protections of civil liberties that address most of the potential violations by an occupying power. Both are limited to states. One recent global instrument, the Convention on the Rights of Persons with Disabilities, provides that regional organizations may become parties “within the limits of their competence.” Convention on the Rights of Persons with Disabilities, UNGA Res. 61/106 (13 December 2006) UN Doc. A/RES/61/106, Art. 44(2). The Disability Rights Convention, while an important achievement, is not relevant to most of the potential abuses by an occupying regime.

(46) Nicole Quinivet, “Binding the United Nations to Human Rights Norms by Way of the Laws of Treaties” (2010) 42 George Washington International Law Review 587, 592 (due to lack of provisions for IO accession “it is currently impossible for the United Nations, notwithstanding its capacity to enter into treaty relationships, to accede to human rights treaties”).

(47) Opinion 2/94 Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-01759. Critically, the Court distinguished the question of the Community’s competence to accede to the Convention from human rights obligations already internal to the Community legal order. While “[r]‌espect for human rights is...a condition of the lawfulness of Community acts,” accession to the Convention would “entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order” para. 34. The ECJ held that treaty amendments would be necessary to grant the Community competence to enter into the European Convention and fulfill its obligations, paras 23–6. Those amendments were later enacted in Art. 6(2) of the Treaty on European Union and Protocol 14 to the European Convention. See Xavier Groussot, Tobias Lock, and Laurent Pech, “EU Accession to the European Convention on Human Rights: A Legal Assessment of the Draft Accession Agreement of 14th October 2011” (Policy Paper, Foundation Robert Schuman 2011).

(48) See, Behrami and Behrami v. France App. No. 71412/01 and Saramati v. France, Germany, and Norway App. No.78166/01, ECHR 2007 (joint admissibility decision).

(49) Frédéric Mégret and Florian Hoffmann, “The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities” (2003) 25 Human Rights Quarterly 314, 317 (arguing “the United Nations is bound by international human rights standards as a result of being tasked to promote them by its own internal and constitutional legal order, without any added juridical finesse”).

(50) See the excellent discussion by Kjetil Mujezinovic Larsen, Human Rights Treaty Obligations of Peacekeepers (Cambridge University Press 2012).

(51) International Law Commission, “Report of the International Law Commission: Sixty-first session (4 May–5 June and 6 July–7 August 2009), Draft Articles on the Responsibility of International Organizations” UN Doc. A/64/10 (2009) Art. 4 (“[t]‌here is an internationally wrongful act of an international organization when conduct consisting of an action or omission: (a) is attributable to that organization under international law; and (b) constitutes a breach of an international obligation of that organization”). Jean D’Aspremont argues that the elaboration of secondary rules of responsibility has created the false impression that primary rules for IO liability are well established. This is hardly the case. Jean D’Aspremont, “The Articles on the Responsibility of International Organizations: Magnifying the Fissures in the Law of International Responsibility” (2012) 9 International Organizations Law Review 15, 26 (“the rules on the attribution of responsibility prescribed by the ARIO generate an odd feeling of deceitfulness. Indeed, these rules convey the impression that, behind many of them, lurks a primary obligation of States and international organizations”).

(52) Tom Dannenbaum, “Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers” (2010) 51 Harvard International Law Journal 113, 130 (in assessing whether an international person such as the UN has committed an internationally wrongful act, the “first task...is to establish the relevant legal obligations that these persons may breach”); Larsen, Human Rights Treaty Obligations of Peacekeepers (n. 50) 85–164 (extensive but separate discussions of UN’s capacity to violate human rights norms and attribution of such violations to either the UN or troop-contributing states).

(53) Alvarez is worth quoting at length on this point:

If the ILC drafters are assuming that the UN, including its Security Council, needs to abide by “international human rights,” they do not indicate the basis for their assumption. Because the UN is bound by customary international law? Because the UN Charter or the UN’s practice achieves this result? Because the organization should be derivatively liable for members’ obligations? Note that each of these models suggests different implications—including with respect the specific human rights that are to be applied to the organization. Given the notorious disagreements among states with respect to the content of customary human rights, advocates of the human rights accountability of the UN rely on the human rights covenants or other human rights treaties but it is quite a leap to suggest that the UN, a third party to such treaties, can possibly be bound by agreements that not all of its members have ratified and that, even when they have, are subject to diverse (and sometimes quite extensive) reservations.

José Alvarez, “International Organizations: Accountability or Responsibility?” (Address to the Canadian Council of International Law, 35th Annual Conference on Responsibility of Individuals, States, and Organizations, 27 October 2006) <http://www.asil.org/aboutasil/documents/CCILspeech061102.pdf> (accessed 5 July 2013).

(54) Compare McCorquodale, “Overlegalizing Silences” (n. 43) 388 (“[i]‌t is possible to imagine an international human rights legal system where nonstate actors have direct obligations for violations of human rights. This requires a move towards a dynamic and victim-oriented approach where international human rights law becomes an effective limitation on oppressive power, no matter what its source”) with Dannenbaum, “Translating the Standard of Effective Control into a System of Effective Accountability” (n. 52) 134–9 (advancing four arguments for applying customary human rights norms to the UN).

(55) See UN Charter, Art. 105 (“[t]‌he Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes”); Dannenbaum, “Translating the Standard of Effective Control into a System of Effective Accountability” (n. 52) 125 (“[t]he lack of an international judicial forum in which to bring suit against the United Nations reflects the fact that existing international dispute resolution mechanisms were designed to deal with states, not international organizations”).

(56) Article 103 provides, “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

(57) UN, UN Repertory of Practice of United Nations Organs (Vol. VI Supp. No. 8, UN) Art. 103, 3 (“[i]‌n as much as the Charter imposes an obligation on Member States to accept and carry out decisions of the Security Council under the Charter, it also includes obligations which arise as a result of those decisions. As such, the obligation of Member States to accept and carry out decisions of the Security Council under Chapter VII prevails over their obligations under other international agreements in the event that they conflict”).

(58) See e.g. UNSC Res. 757 (30 May 1992) UN Doc. S/RES/757 (former Yugoslavia); UNSC Res. 917 (6 May 1994) UN Doc. S/RES/917 (Haiti); UNSC Res. 1127 (28 August 1997) UN Doc. S/RES/1127 (Angola); UNSC Res. 1267 (15 October 1999) UN Doc. S/RES/1267 (Afghanistan).

(59) See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Provisional Measures, Order of 14 April 1992) ICJ Rep. 1992, para. 39 (“in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement”); Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, and Andreas Paulus, The Charter of the United Nations: A Commentary (3d edn, Oxford University Press 2013) 2110.

(60) See Gregory H. Fox, “Transformative Occupation and the Unilateralist Impulse” (2012) 94 International Review of the Red Cross 237.

(61) Sassoli, “Article 43 of the Hague Regulations and Peace Operations in the Twenty-First Century” (n. 32) 16 (“the UN Security Council may mandate or authorize an occupying power to take certain steps to create conditions in which the population of the occupied territory can freely determine its future, live under the rule of law and enjoy the respect of human rights...such resolutions authorizing legislative changes in an occupied territory prevail over the restrictions of Article 43 of the Hague Regulations and Article 64 of Convention IV”).

(62) See UNSC Res. 1483 (22 May 2003) UN Doc. S/RES/1483; Marten Zwanenburg, “Existentialism in Iraq: Security Council Resolution 1483 and the Law of Occupation” (2004) 86 International Review of the Red Cross 745. I have disagreed strongly with this view. See Gregory H. Fox, “The Occupation of Iraq” (2005) 36 Georgetown Journal International Law 196, 257–62.

(63) See generally, Michael Doyle and Nicholas Sambannis, Making War and Building Peace: United Nations Peace Operations (Princeton University Press 2006); Carsten Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge University Press 2008).

(64) See Wolfgang Seibel, “The Normative Underpinnings of the UN Peacebuilding Commission” in James Mayall and Ricardo Soares De Oliveira (eds), The New Protectorates: International Tutelage and The Making of Liberal States (Columbia University Press 2011).

(65) As Frowein and Krisch note in a related context, limiting the Council’s preemptive authority under Art. 103 would mean that the Charter “would not reach its goal of allowing the SC to take the action it deems the most appropriate to deal with threats to the peace.” J. Frowein and N. Krisch, “Article 42” in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (2nd edn, Oxford University Press 2002).

(66) See Simma et al., The Charter of the United Nations (n. 59) 2119 (“conflicts between primary rules of the Charter and jus cogens are difficult to imagine, and conflicts of secondary law under the Charter will usually be resolved by interpretation”).

(67) Eric De Brabandere, “The Responsibility for Post-Conflict Reforms: A Critical Assessment of Jus Post Bellum as a Legal Concept” (2010) 43 Vanderbilt Journal Transnational Law 119, 128 (“recent comprehensive peace-building mandates have not encountered objections by United Nations member states”).

(68) Fox, Humanitarian Occupation (n. 23) 52–8.

(69) There seems little likelihood, therefore, that a situation would arise from a post-conflict mission similar to that in the Kadi case, where the European Court of Justice measured obligations resulting from a Chapter VII resolution against regional human rights norms. Joined Cases C-402 and 415/05P, Kadi and Al Barakaat International Foundation v. Council and Commission (2008) ECR I-6351. Since the ECJ explicitly denied that it was reviewing the Council resolution as such, it did not set out criteria for limits on Council powers. Even if one were to read (or over-read) Kadi as holding that Chapter VII resolutions cannot supersede regional human rights norms, such a holding would not find the Council to have acted ultra vires but rather in contradiction to another international norm. Such a holding merely begins a complex analysis of how such conflicts are to be resolved, a question that has generated much discussion but little clear resolution. See Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge University Press 2003).

(70) See the discussion in Fox, Humanitarian Occupation (n. 23) chs 6 and 8.

(71) See UN Charter, Art. 24(1) (“In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf”).

(72) VCLT, Art. 53.

(73) Fox, Humanitarian Occupation (n. 23) 213.

(74) Some discussion in this section parallels that in Fox, “Transformative Occupation” (n. 60) 262–5.

(75) See generally, Vaughn Lowe, Adam Roberts, Jennifer Welsh, and Dominik Zaum (eds), The United Nations Security Council and War (Oxford University Press 2008).

(76) See Thomas M. Franck and Faiza Patel, “UN Police Action in Lieu of War: ‘The Old Order Changeth’” (1991) 85 American Journal of International Law 63.

(77) The Correlates of War Project (<http://www.correlatesofwar.org> (accessed 5 July 2013)) and the Uppsala Conflict Data Program/Peace Research Institute Oslo (<www.prio.no/CSCW/Datasets/Armed-Conflict/UCDP-PRIO/> (accessed 5 July 2013)). The major armed conflicts were the Gulf War (1991), the Bosnian War of Independence (1992), the Azeri-Armenian War (1993–94), the Eritrea-Ethiopia War (1998), the Kosovo Conflict (1999), the US invasion of Afghanistan (2001), the US invasion of Iraq (2003), and the Eritrea-Djibouti conflict (2008). India and Pakistan had several conflicts during this period and they are treated differently by the two datasets.

(78) The Council did not take any action on the Kashmir conflict between India and Pakistan, which flared into armed conflict ten times during this period, or on the Ecuador-Peru Cenepa Valley War of 1995. The Cenepa conflict was resolved by a regional treaty group, the Protocol of Rio de Janeiro, and guaranteed by a monitoring mission dispatched by the Protocol member states. See Glenn R. Weidner, “Operation Safe Border: The Ecuador-Peru Crisis” (1996) Joint Forces Quarterly 52.

(79) See generally, Ramesh Thakur, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge University Press 2006).

(80) UN Secretary General, “Report of the Secretary-General on the Work of the Organization” (2012) UN Doc. A/67/1, 7.

(81) Touko Piiparinen, The Transformation of UN Conflict Management (Routledge 2009); Richard Caplan (ed.), Exit Strategies and Peacebuilding (Oxford University Press 2012).

(82) Thorsten Benner, Stephan Mergenthaler, and Philipp Rotmann, The New World of UN Peace Operations (Oxford University Press 2011); Doyle and Sambanis, Making War and Building Peace (n. 63). Call and Cousens wrote in 2007, “[o]‌f the wars ended since 1988, the UN has exercised some peacebuilding role in half, including in Cambodia, Southern Africa, Central America, the Balkans, West Africa, Afghanistan, and Iraq. Of the nineteen UN peace operations currently in the field, at least ten could be considered to be engaged in or contributing to peacebuilding, along with a few dedicated UN ‘Peacebuilding Support Offices.’” Charles T. Call and Elizabeth M. Cousens, Ending Wars and Building Peace (International Peace Academy 2007) 1.

(83) UNSC Res. 1645 (20 December 2005) UN Doc. S/RES/1645.

(84) Doyle and Sambanis, Making War and Building Peace (n. 63) 349–50 (“[t]‌he defining characteristic of all the successful operations is that they each achieved a comprehensive peace agreement—one involving the UN in the entire peace process, from the signing of the first case-fire to the restoration of the last structures of government”).

(85) UNGA, “Report of the United Nations Panel on Peace Operations” (2000) UN Doc. A/55/ 305–S/2000/809, 1.

(86) See Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (3rd edn, Cambridge University Press 2012) 234–6; Christopher Stone, “Common But Differentiated Responsibilities in International Law” (2004) 98 American Journal of International Law 276.

(87) Gabriella Blum, “On a Differential Law of War” (2011) 52 Harvard International Law Journal 163, 168–73. An exception is economic and social rights, which are to be implemented progressively and depending on available resources. See International Covenant on Economic, Social and Cultural Rights (adopted 16 January 1966, entered into force 23 March 1976) 999 UNTS 171, Art. 2(1) (state parties must take steps “to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means”).

(88) United Nations Conference on the Human Environment, Stockholm Declaration (16 June 1972) UN Doc. A/CONF.48/14, principle 12, reprinted in 11 ILM 1416, 1419 (1972) (supporting “taking into account the circumstances and particular requirements of developing countries and any costs which may emanate from their incorporating environmental safeguards into their development planning and the need for making available to them, upon their request, additional international technical and financial assistance for this purpose”); Blum, “On a Differential Law of War” (n. 87) 177, 178 (law of the sea and trade law examples).

(89) Rio Declaration on Environment and Development (12 August 1992) UN Doc. A/CONF.151/26/Review1 (Vol. 1), principle 6 (“the special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority”); Michael Weisslitz, “Rethinking the Equitable Principle of Common but Differentiated Responsibility: Differential Versus Absolute Norms of Compliance and Contribution in the Global Climate Change Context” (2002) 13 Colorado Journal International Environmental Law and Policy 473, 478–86 (citing numerous treaties incorporating CDO).

(90) Blum, “On a Differential Law of War” (n. 87) 182–4.

(91) Stone, “Common But Differentiated Responsibilities in International Law” (n. 88) 292.

(92) Stone, “Common But Differentiated Responsibilities in International Law” (n. 88) 292 (CDO in environmental regimes is “asking no more than a ratable or even lighter contribution by the Rich in welfare measured by utility”); Michael N. Schmitt, “Bellum Americanum: The US View of Twenty-First Century War and its Possible Implications for the Law of Armed Conflict” (1998) 19 Michigan Journal of International Law 1051, 1088 (“[t]‌oday, the law of armed conflict is designed primarily to minimize suffering and prevent unnecessary destruction. This being so, belligerents are held to the standards to which they are capable of reasonably rising. The sole exceptions are absolute prohibitions, such as the direct targeting of civilians or the use of poison”).

(93) Blum, “On a Differential Law of War” (n. 87) is one of the few examples.

(94) See Part II(A) above.

(95) This standard would be consistent with IO responsibility more generally. See Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) (1949) ICJ Rep. 174.

(96) Stone, “On a Differential Law of War” (n. 88) 299.

(97) Two accounts from the early 1960s are still cited frequently today. See Derek W. Bowett, United Nations Forces (Stevens and Sons 1964); Finn Seyersted, “United Nations Forces: Some Legal Problems” (1961) 37 British Yearbook of International Law 362.

(98) See e.g. Liliana Lyra Jubilut, “Towards a New Jus Post Bellum: The United Nations Peacebuilding Commission and the Improvement of Post-Conflict Efforts and Accountability” (2011) 20 Minnesota Journal International Law 26, 58 (proposing that the UN Peacebuilding Commission begin to elaborate principles of a jus post bellum in a broad manner, which “would mean that the UN itself would be acting under principles of rule of law, and would be able to ‘lead by example’”); Inger Österdahl and Esther van Zadel, “What Will Jus Post Bellum Mean? Of New Wine and Old Bottles” (2009) 14 Journal Conflict and Security Law 175, 179 (“[w]‌hat is crucial is that the rules of jus post bellum are to apply to the territory of the state(s) where the parties to the conflict operated, as well as to all parties involved in the post-conflict phase”); Major Richard P. Dimeglio, “The Evolution of the Just War Tradition: Defining Jus Post Bellum” (2005) 186 Military Law Review 119, 146 (suggesting jus post bellum “criteria for a general application within the just war framework”).

(99) See generally, Sabine Kurtenbach, “Post-War and Post-Conflict Challenges for Development Cooperation” (Policy Brief, Institut für Entwicklung und Frieden 2009); Cedric de Coning, “The Coherence Dilemma in Peacebuilding and Post-Conflict Reconstruction Systems” (2008) 8 African Journal Conflict Resolution 85, 94–5 (“[a]‌ peacebuilding or post-conflict reconstruction system consists of a large number of independent agents that collectively carry out a broad range of activities across the dimensions of the system. These agents are independent in that they are each legally constituted in their own right, have their own organisational goals and objectives, have their own access to resources, and are in control of those resources, i.e. they have the power to make decisions about the allocation of those resources”).

(100) Much of the discussion in this section is taken from Fox, Humanitarian Occupation (n. 23) 98–106.

(101) UNSC Res. 1272 (25 October 1999) UN Doc. S/RES/1272.

(102) UN Secretary General, “Report of the Secretary-General on the United Nations Transitional Administration in East Timor” (2000) UN Doc. S/2000/738, paras 18–50. See generally, Mark Rothert, “UN Intervention in East Timor” (2000) 39 Columbia Journal of Transnational Law 257.

(103) UNSC Res. 1272 (25 October 1999) UN Doc. S/RES/1272, para. 1.

(104) UNTEAT, On the Authority of the Transitional Administrator in East Timor (1999) UNTAET/REG/1991/1 (UNTAET Reg. 1) s. 1.2. All UNTAET regulations are available at <http://www.un.org/peace/etimor/UntaetN.htm> (accessed 5 July 2013).

(105) (1999) UNTAET/REG/1991/1 (UNTAET Reg. 1) s. 3.2.

(106) See UNTAET, “Background” (UN Department of Public Information, May 2002) <http://www.un.org/peace/etimor/untaetB.htm> (accessed 5 July 2013).

(107) See UNTAET/REG/1999/3 (judicial service commission); UNTAET/REG/2000/1 (central fiscal authority); UNTAET/REG/2000/3 (public service commission); UNTAET/REG/2000/7 (currency); UNTAET/REG/2000/9 (border service); UNTAET/REG/2000/12 (tax and customs regimes); UNTAET/REG/2000/20 (treasury); UNTAET/REG/2000/31 (offices of foreign governments).

(108) Jarat Chopra, “Building State Failure in East Timor” (2002) 33 Development and Change 979, 981.

(109) Some of the following description of post-conflict Afghanistan relies on the very useful summary in Grant T. Harris, “The Era of Multilateral Occupation” (2006) 24 Berkeley Journal International Law 1, 48–56.

(110) UNSC Res. 1378 (14 November 2001) UN Doc. S/RES/1378.

(111) “Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions” (5 December 2001) UN Doc. S/2001/1154 (Bonn Agreement).

(112) UNSC Res. 1383 (6 December 2001) UN Doc. S/RES/1383.

(113) UNSC Res. 1386 (25 December 2001) UN Doc. S/RES/1386.

(114) UNSC Res. 1386 (25 December 2001) UN Doc. S/RES/1386 para. 4

(115) UNSC Res. 1386 (25 December 2001) UN Doc. S/RES/1386 para. 5.

(116) UNSC Res 1510 (13 October 2003) UN Doc. S/RES/1510.

(117) UNSC Res 1776 (19 September 2007) UN Doc. S/RES/1776.

(118) Bonn Agreement (n. 111) s. 1.

(119) Bonn Agreement (n. 111) s. 1(4).

(120) UNSC Res. 1401 (28 March 2002) UN Doc. S/RES/1401.

(121) Report of the Secretary General, “The Situation in Afghanistan and its Implications for International Peace and Security” (2002) UN Doc. A/56/875–S/2002/278, 15–16.

(122) Agha Kahn Development Network, “International Development Partners in Afghanistan” <www.akdn.org/afghanistan_partners.asp> (accessed 5 July 2013).

(123) As Grant Harris recounts, “the US, Saudi Arabia, Japan, and the European Union (EU) established an Afghan Reconstruction Steering Group that also included the World Bank and Asian Development Bank. The US, France, and Britain began an extended program to create and train a national army, and Germany (with US assistance) initiated a similar program to establish a police force.” Harris, “The Era of Multilateral Occupation” (n. 109) 52.

(124) Some of the discussion in this section parallels that in Fox, “The Occupation of Iraq” (n. 62).

(125) The CPA shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability, to create conditions in which the Iraqi people can freely determine their own political future, including by advancing efforts to restore and establish national and local institutions for representative governance and facilitating economic recovery and sustainable reconstruction and development.

Coalition Provisional Authority Regulation No. 1 (16 May 2003) CPA/REG/16May2003/01 <http://www.iraqcoalition.org/regulations/20030516_CPAREG_1_The_Coalition_Provisional_Authority_.pdf> (accessed 5 July 2013).

(126) Zwanenburg, “Existentialism in Iraq” (n. 62) 746–7.

(127) UNSC Res. 1483 (22 May 2003). See Thomas D. Grant, “The Security Council and Iraq: An Incremental Practice” (2003) 97 American Journal of International Law 823, 824 (“The resolution bore the hallmarks of compromise throughout. Its salient overarching feature a blend of specificity and purposive vagueness, Resolution 1483 at once defined a mandate for action by the coalition, the United Nations, and other participants in Iraq—and left space for the mandate to evolve. It amounts in this respect as much to an invitation to further dialogue as to a detailed blueprint”).

(128) UNSC Res. 1483 (22 May 2003) para. 5 (calling on “all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907”); see also UNSC Res. 1511 (16 October 2003) UN Doc. S/RES/1511, para. 1 (affirming CPA’s “specific responsibilities, authorities, and obligations under applicable international law recognized and set forth in resolution 1483”).

(129) UNSC Res. 1483 (22 May 2003) UN Doc. S/RES/1483, preamble (“expressing resolve that the day when Iraqis govern themselves must come quickly”); UNSC Res. 1511 (16 October 2003) UN Doc. S/RES/1511, para. 6 (calling upon the CPA “to return governing responsibilities and authorities to the people of Iraq as soon as practicable”).

(130) See Fox, “The Occupation of Iraq” (n. 62) 258–62.

(131) See e.g. Nehal Bhuta, “The Antinomies of Transformative Occupation” (2005) 16 European Journal of International Law 721, 735–6.

(132) See Fox, “The Occupation of Iraq” (n. 62) 259–62.

(133) Zwanenburg, “Existentialism in Iraq” (n. 62) 767.

(134) Preambular paras 13 and 14 of the resolution provided:

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

UNSC Res. 1483 (22 May 2003) UN Doc. S/RES/1483.

(135) Governing Council of Iraq, Coalition Provisional Authority Regulation No. 6 (13 July 2003) CPA/REG/13 July 2003/06, para. 2(1) <http://www.iraqcoalition.org/regulations/20030713_CPAREG_6_Governing_Council_of_Iraq_.pdf> (accessed 5 July 2013).

(136) UNSC Res. 1511 (16 October 2003) UN Doc. S/RES/1511, para. 4.

(137) Fox, “The Occupation of Iraq” (n. 62) 247–54.

(138) The Special Representative’s “independent responsibilities shall involve reporting regularly to the Council on his activities under this resolution, coordinating activities of the United Nations in post-conflict processes in Iraq, coordinating among United Nations and international agencies engaged in humanitarian assistance and reconstruction activities in Iraq, and, in coordination with the Authority, assisting the people of Iraq” in nine separate areas. UNSC Res. 1483 (22 May 2003) UN Doc. S/RES/1483, para. 8.

(139) The SRSG “made clear the independence of his role and that the Coalition Provisional Authority, not the United Nations, was responsible for administering Iraq, for providing for the welfare of the people, and for restoring conditions of security and stability.” UN Secretary General, “Report of the Secretary-General Pursuant to Paragraph 24 of Security Council Resolution 1483” (2003) UN Doc. S/2003/715, 22.

(140) UNSC Res. 1500 (14 August 2003) UN Doc. S/RES/1500.

(141) UNSC Res. 1511 (16 October 2003) UN Doc. S/RES/1511, para. 13.

(142) In July 2004, 133,000 foreign soldiers were stationed in Iraq. US and UK troops constituted most of these, with 112,000 being American. BBC News, “Coalition Troops in Iraq” (20 July 2004) <news.bbc.co.uk/2/hi/middle_east/3873359.stm> (accessed 5 July 2013).

(143) Elaine Halchin, “The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities” (CRS Report to Congress, Library of Congress 2004) 11 <fpc.state.gov/documents/organization/32338.pdf> (accessed 5 July 2013).

(144) Yoram Dinstein, The International Law of Belligerent Occupation (2nd edn, Cambridge University Press 2009) 42.

(145) UNSC Res. 1546 (8 June 2004) UN Doc. S/RES/1546, para. 2.

(146) Portions of this section parallel the discussion in Gregory H. Fox, “Regime Change” in Rüdiger Wolfrum (ed.), Encyclopedia of Public International Law (Max Planck Institute for Comparative Public Law and Public International Law 2013).

(147) UNSC Res. 1970 (26 February 2011) UN Doc. S/RES/1970.

(148) UNSC Res. 1973 (17 March 2011) UN Doc. S/RES/1973, para 4.

(149) UNSC Res. 1973 (17 March 2011) UN Doc. S/RES/1973, para 4.

(150) UN Secretary General, “Report of the Secretary-General on the United Nations Support Mission in Libya” (22 November 2011) UN Doc. S/2011/727 (November 2011 Report on Libya) para. 3.

(151) UN Secretary General, “Letter dated 7 September 2011 from the Secretary-General to the President of the Security Council” (7 September 2011) UN Doc. S/2011/542.

(152) UNSC Res. 2009 (16 September 2011) UN Doc. S/RES/2009.

(153) The preamble to Resolution 2009 emphasized that “national ownership and national responsibility are key to establishing sustainable peace and the primary responsibility of national authorities in identifying their priorities and strategies for post-conflict peace-building,” UNSC Res. 2009 (16 September 2011) UN Doc. S/RES/2009.

(154) UNSC Res. 2009 (16 September 2011) UN Doc. S/RES/2009, para. 12.

(155) See UN Secretary General, November 2011 Report on Libya (n. 150) 3 (“While Libyan officials have made it clear that they see the United Nations as a key partner at this critical time in Libya’s post-conflict transition, they have also stressed the importance of full Libyan ownership of planning processes related to the rebuilding of Libya”).

(156) UNSC Res. 2009 (16 September 2011) UN Doc. S/RES/2009, para. 12(f).

(157) UN Secretary General, “Report of the Secretary-General on the United Nations Support Mission in Libya” (1 March 2012) UN Doc. S/2012/129, para. 88.

(158) UN Secretary General, “Report of the Secretary-General on the United Nations Support Mission in Libya” (30 August 2012) UN Doc. S/2012/675, para. 75 (“the ability to adequately respond to Libya’s priorities will require the active engagement of the Libyan authorities to consolidate and clarify their requests for assistance and a renewed commitment by the international community to coordinate bilateral interventions”).

(159) See Embassy of the United States, Tripoli, Libya, “US Partnerships in Libya” <libya.usembassy.gov/partnerships.html> (accessed 5 July 2013).

(160) See Rt Hon. William Hague, “Reaffirming the UK’s Commitment to Libya” (16 February 2012) <http://www.gov.uk/government/news/reaffirming-the-uks-commitment-to-libya?view=News&id= 731073982> (accessed 5 July 2013).

(161) Frederic Wherey, “The Roots of Benghazi” (The National Interest, 30 November 2012) <http://www.nationalinterest.org/commentary/the-roots-benghazi-7790> (accessed 5 July 2013).

(162) French Ministry of Foreign Affairs, “International Ministerial Conference on Support to Libya in the Areas of Security, Justice and Rule of Law—Communiqué” (12 February 2013) <http://www.diplomatie.gouv.fr/en/country-files/libya/events-7697/2013/article/international-ministerial> (accessed 5 July 2013).