Introduction
Lost amid the international politics that
defined the Iraq war, the preceding diplomatic maneuvering in the
United Nations (UN) and the lingering legal debate over jus ad
bellum, is the maturation and globalization of an Anglo-American
doctrine of democratic occupation. A century in construction, the
principle that occupying powers have a duty to introduce democracy
into an occupied non-democratic state was once quite unsettled;
today it has achieved the status of a new global norm. In Part II,
this manuscript briefly traces the law of occupation regarding
activities that may be taken by the occupying power to impose regime
change in non-democratic occupied states. Part III relates some of
the milestones in Anglo-American occupation of foreign territories,
particularly in regard to early American occupation experiences.
These practices coalesced into a doctrine of democratic occupation
that has achieved global acceptance; the emergence of this norm is
discussed in Part IV. The Anglo-American experience transposes the
rather conservative state of the law of occupation with the
emergence of the new expectations of democratic governance. The fact
that state practice has departed from the traditionalist Hague law
has been identified previously.
The contribution of this piece is to suggest that the source of the
new norm of democratic occupation unfolded from British and American
state practice. With the UN’s Chapter VII actions in Somalia and
Haiti in the early-1990s, the doctrine of democratic occupation
reached global recognition and approval.
The Law of Occupation and Regime Change
Occupation may be defined as effective
control of a state or international organization over the territory
to which that power has no sovereign title, and without the volition
of the sovereign of that territory.
The law of occupation, which attained maturation at the end of the
19th century, was codified in the 1907 Hague Convention
No. IV. Article 43 of the text operates as a mini-constitution for
occupation administration;
it says occupying powers are to “take all measures... to restore,
and ensure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the
country.”
In the authentic The French text, “public order and safety,” is
broader, “l’ordre et la vie publics,”
referring to the entire social and
commercial life of the occupied community.
In most modern cases, the political regime resident in the occupied
state is responsible for the underlying cause of regional
instability that lead to occupation in the first place, and radical
change in governance is needed. Writing in 1953, Quincy
Wright presciently observed that absolutism has an undeniable
historic association with international tensions, military
destruction, the impoverishment of peoples, and the persecution of
minorities.
Empirical research over the last decade
strongly supports the phenomenon of the “democratic peace,” the
theory that democracies rarely initiate aggressive war and generally
are more peaceful and cooperative.
By generating humanitarian crises at home and destabilizing regional
security, non-democratic regimes create conditions for war and
subsequent invasion and occupation. Stabilizing these states is only
possible if the architecture of existing law and authority is
transformed.
The experience of
military occupations in the aftermath of World War II ignited an
effort to amend the law of occupation. The post-war leaders of the
major powers, confronted with
restructuring the odious German and Japanese regimes, sought to use
the negotiations at the 1949 Diplomatic Conference in Geneva to
expand the latitude of the occupying power to effect political
change in the occupied state.
The second paragraph of Article 64 of the Fourth Geneva Convention
introduced a new innovation into the law of occupation by
recognizing that the occupying power may impose provisions which are
“essential” to fulfilling the humanitarian obligations of the
Convention, such as maintaining orderly government in the occupied
territory and ensuring the security of the occupied force. The
preceding paragraph in Article 64 focuses on the occupying power’s
ability to repeal or suspend the penal laws in the occupied state
and suggests that the sweeping changes afforded in the second
paragraph are to be read narrowly, to include only penal laws. A
broader interpretation is that the adjective “penal” is absent form
the second paragraph of Article 64, and that Article 64 emerged as a
new grant of expansive authority for the occupying power to change
the laws.
This broader reading of Article 64 is consistent with the rest of
the Convention, which imposes a duty on the occupying power to
fulfill an extensive range of liberal humanitarian obligations.
In light of subsequent state practice over the last fifty years, the
broader interpretation is authoritative, representing a sharp
departure from the axiom contained in the Hague Regulations to
respect the laws in force at the time of occupation.
This change in state practice emerged from the experiences of
British and American occupation, and is discussed in Part III,
below.
Anglo-American Occupation and
Democracy
English Freemen provided fidelity to the
rather ambiguous Greek concept of demokratia when they signed
the Magna Carta in 1215, demanding rights as against the government
and secured to them by laws binding on the king.
In the early United States, the Declaration of Independence
memorialized the principle that government derives its legitimacy
from the consent of the governed. Democracy was a central feature of
American foreign policy in the twentieth-century, providing the
basis for entering World War I—“to make the world safe for
democracy”—and
creating a template for restructuring Germany and Japan in 1945. For
its part, Britain contributed to the democratic project in Germany,
and was remarkably successful in instilling democratic governance in
its colonies prior to granting them independence.
Over the last century, the great powers
occupied other states for a variety of reasons, including conversion
of their neighbor’s land and seizure of selected strategic and
economic territories. The United States has occupied more than 20
countries during this time,
beginning with its occupation of the Philippines in 1898. From the
vantage of this first American occupation, spreading democracy
became a goal—and gradually the central goal—of American warfare.
Even U.S. participation with European powers in occupying port areas
in China in the wake of the crumbling of the Manchu Dynasty was
marked by a sincere, if entirely naïve, expectation that China’s
mostly illiterate four hundred million people were on the cusp of
democracy.
The United States is singularly unique in that in every case of
military occupation, U.S. forces attempted to leave behind
functioning democratic institutions.
For Spain, the Philippines were colonial
possessions, and occupation meant a strategic window on the Pacific,
as well as an opportunity to extend ecclesiastical authority to an
unconverted population. The U.S. approach to administration in
Manila was radically different, opening the government to Filipino
popular rule almost immediately.
By 1907, the United States had established a Philippine Assembly.
The progressive style of American administration drew opposition
from European states that thought it undercut their authority to
rule colonial possessions in the Far East,
and from American critics who argued the Filipinos, who only
recently were in armed revolt against the United States, were being
given too free a hand in their own affairs.
Some wondered whether the Filipinos could ever rule themselves,
having no experience in democracy. This reflected the historian
Arnold Toynbee’s assessment of the prospects for Italian democracy
in 1922, when he sniffed, “the vague and abstract Greek word
democracy, by which this peculiar institution of the medieval
kingdom of England … has come to be known, slurred over the fact
that parliamentarianism was a special local growth which could not
be guaranteed to acclimatize itself in alien soil.”
This theme would be repeated by detractors of democratizing
occupations in nearly every quarter of the world, from the Far East
to the Middle East—most recently regarding Iraq.
The Philippines would serve as the model for
other U.S. occupations. Unlike the Europeans, American occupation
was viewed as temporary, and a distraction from developing the vast
reaches of the contiguous United States. American occupations were
imperfect, often imperial affairs, but even the most neglectful had
the goal of producing democratic change and promoted some advance in
political development. In early August of 1915, for example, two
thousand U.S. Marines strode ashore in Haiti, occupying Port
–au-Prince for nearly twenty years. They were sent to fulfill
President Wilson’s mandate to “terminate the appalling condition of
anarchy, savagery, and oppression” which had been prevalent in Haiti
for decades.
When they arrived, 95-97% of the country was illiterate; by the time
they left, the Marines had expanded the right to vote to include
women, and presided over a series of progressively improving free
elections.
Similarly, when the United States landed 20,000 troops in the
Dominican Republic in 1965, one of the primary aims was to prevent a
take-over of the government by revolutionary communists. But
geo-strategic considerations were mixed with another key objective,
which was to salvage the democratic process.
For the Anglo-American condominium, the spread of democracy is in
the national interest, infusing realpolitik with a zealous
righteousness.
In a later Caribbean action, the replacement
of an autocratic regime with a freely elected government was a key
objective of Operation Urgent Fury, the occupation of Grenada by
military forces of the United States and the Organization of Eastern
Caribbean States (OECS). The formal request from the OECS for
American assistance sought to revive the nascent democratic process
on the island,
and President Reagan
and UN Ambassador Kirkpatrick
each declared that a principle goal of the invasion was a
restoration of democracy. Similarly, the United States invaded
Panama in December, 1989 after the corrupt leader Noriega nullified
democratic elections in the country and Panamanian Defense Forces
murdered a U.S. Marine. The goals for the invasion were to protect
U.S. citizens, bring Noriega to justice for narcotics trafficking,
maintain free navigation in the Panama Canal and to restore
democracy. Each of these objectives was achieved.
Well before the end of the Second World War and persisting through
the end of the Cold War, the United States was embarked on a project
of democratic globalization. Military occupation was a primary means
of achieving American grand strategy.
The British had fewer modern military
occupations, but their imperial hubris steeped democratic norms
throughout the commonwealth. Among the imperial powers, by far the
most effective colonial administration was run from London,
benefiting from the peculiarly British approach to governance.
Although the liberal tradition emerged from a fusion of both English
and French political theory in the 19th century,
the two traditions demarcate separate philosophical space. French
revolutionary thinkers were optimistic about human nature, believing
in the power of intellectuals to rearrange society. Paris built its
colonial administrations to reflect that view. The English were more
pessimistic, seeking to design institutions that would control human
nature, and their style of colonial administration adopted checks
and balances. The English view, derived from a group of Scottish
moral philosophers including David Hume, Adam Smith, and Edmund
Burke, is essentially empiricist. The French approach is informed by
Cartesian rationalism and the Enlightenment. Its most notable
progenitor is Rousseau.
English colonial administration found the
essence of freedom in spontaneity, organic growth in society and the
absence of coercion. The soul of the French approach lay in the
pursuit and enforcement of an absolute and collective purpose
defined by doctrinaire deliberateness, which met with disastrous
consequences. By the early 1980s, no former French (or Dutch or
Belgian) colony was rated “free” by Freedom House, yet several
former British colonies were. “[E]very single country in the Third
World that emerged since the Second World War with a population of
at least one million (and almost all the smaller countries as well)
with a continuous democratic experience [was] a former British
colony.”
The Anglo-American experience of democratic
occupation was imperfect, and it was not the sole basis for any
occupation, including Afghanistan and Iraq. Democracy, however, was
a central and undeniable goal, and this made Anglo-American
occupations unique. The moral and diplomatic force of this approach,
and the example set by Washington and London, would earn acceptance
as a global norm. The elevation of the principle of democratic
occupation was first displayed in the UN-sanctioned occupations of
Somalia and Haiti after the Cold War, which are discussed in Part
IV.
Democratic Occupation as a Global Norm
While native and tribal forms of community
dialogue and decision-making have local importance, such as the
jirga in Afghanistan, the panchayat in India, or the
shoora in Islamic societies,
the transcendence of democracy into a normative principle of the law
of occupation is a product of Anglo-American state practice. The
rise of democratic occupation as a global norm was accomplished
through a relentless campaign of Anglo-American public diplomacy and
foreign policy. By 1991, the National Security Strategy of the
United States had shifted from its Cold War foundation to clearly
articulate the nurturing of democracy as a one of the key American
security goals abroad.
Only a few years later, President Clinton’s National Security
Strategy in 1996 placed democracy at the center of national
security—mentioning the word “democracy” more than 70 times.
Throughout the early-1990s, the UN remained
rather ambivalent about democracy, and only in the last few years
has it gravitated away from agnosticism, or even outright hostility.
The word “democracy” does not appear in the Charter of the United
Nations. Neither is it mentioned in International Covenant on Civil
and Political Rights
nor in the Universal Declaration of Human Rights,
although the latter document refers to human freedom, including
freedom of religion and assembly. Like the charter of the
International Monetary Fund, the Articles of Agreement for each of
the five organizations comprising the World Bank do not mention of
democracy. It was only in December, 1988, that the UN General
Assembly finally declared that political legitimacy requires
democracy; authority to govern is based on the will of the people,
expressed in periodic and genuine free elections.
After the fall of the Berlin Wall, democracy
began to acquire the status of a global norm of political
governance.
Prior to the end of the Cold War, UN administrative and peacekeeping
missions often included perfunctory language encouraging
representative government, but the efforts were still captive to the
struggle for national liberation. In addition to the East-West
division of the Cold War, effective UN action was impeded by the
prevailing de-colonization paradigm that had dominated the world
body since the early-1960s.
The archetype of the new democratic occupation was Somalia. The
humanitarian intervention saved perhaps a million lives that would
have been lost to famine, but because it failed in all of its
state-building objectives, it might easily be overlooked. The
initial UN efforts proved incapable of providing adequate security
for humanitarian activities, and the Security Council subsequently
authorized a U.S.-led Unified Task Force (UNITAF).
At the urging of the United States,
the UN mission was expanded in UNOSOM II to include an expression of
readiness to assist the people of Somalia in taking, “steps leading
to the establishment of representative democratic institutions… .” This was a dramatic development, marking the
first time the United Nations began to suggest democracy was a goal
of a UN operation under Chapter VII; it would serve as a legal
template for future operations, and the language would become even
stronger and more insistent.
The next UN peacekeeping operation got
underway even before the last troops were out of Somalia. In Haiti,
several factors coalesced to strengthen and promote the democracy
doctrine. First, the intervention was precipitated by the ousting of
President Jean-Bertrand Aristide in a military coup, generating the
imprimatur of saving a nascent democracy from the outset. Second,
President Clinton made the restoration of democracy the principle
American objective.
Third, Haiti was a relatively permissive environment, so there were
likely to be few casualties among the Americans, who made up the
largest contingent of the international force. Because the country
is in close proximity to the United States, the logistical operation
was guaranteed to be fairly easy, and inaction raised the potential
for large numbers of refugees flooding the Bahamas or the U.S. naval
station in Cuba. Immediate action was essential. On July 31st,
1994, the Security Council called on Haiti to restore “free and fair
legislative elections”
The democracy-forcing aspect of the Haiti intervention solidified
and expanded the progress made in the Security Council’s work on
Somalia.
V. Conclusion
The British Liberal conscience that
convinced London to interrupt the slave trade in the 19th
century migrated to the administration of her colonies. This
liberalism ignited the Wilsonian strand of American foreign policy,
which actually pre-dated its presidential namesake—emerging as a
powerful influence on American foreign policy at the dawn of the 20th
century.
Anglo-American occupations tended to be democratizing; the force of
their morality and authority shaped globally accepted norms of
occupation, including the construction of Geneva Convention IV. By
the time of the UN actions in Somalia and Haiti in the early 1990s,
the doctrine of democratic occupation had quietly but firmly become
ensconced as a global normative value.
LCDR James Kraska is a foreign area
officer and international law attorney currently assigned to
Strategic Plans and Policy, The Joint Staff.