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This article was published in the July 2005 volume of the SWJ Magazine.


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.[1] 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.[2] 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;[3] 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.”[4]  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.[5] 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.[6] 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.[7] 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.[8] 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.[9] 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.[10] 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.[11] 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.[12] 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”[13]—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.[14]

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,[15] 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.[16] 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.[17] 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,[18] 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.[19] 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.”[20] 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.[21] 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.[22] 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.[23] For the Anglo-American condominium, the spread of democracy is in the national interest, infusing realpolitik with a zealous righteousness.[24]

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,[25] and President Reagan[26] and UN Ambassador Kirkpatrick[27] 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.[28] 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,[29] 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.[30]

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.”[31]

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,[32] 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.[33] 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.[34] 

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[35] nor in the Universal Declaration of Human Rights,[36] 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.[37]

After the fall of the Berlin Wall, democracy began to acquire the status of a global norm of political governance.[38] 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.[39] 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).[40] At the urging of the United States,[41] 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… .” [42] 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.[43] 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”[44] 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.[45] 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.



[1] Eyal Benvinisti, The International Law of Occupation 6 (Reprinted 2004) (1993).

[2] Benvinisti at 4.

[3] Benvinisti at 9.

[4] Article 43, Annex to the Convention Regulations Respecting the Laws and Customs of War on Land, Hague Convention No. IV, October 18, 1907, 36 Stat. 2277, 2295, T.S. No. 539, reprinted in Adam Roberts and Richard Guelff, Documents on the Laws of War 80-81 (3rd ed. 2000).

[5] Henry Wheaton, Wheaton's Elements of International Law 783 (Arthur Barriedale Keith ed., 6th Eng. ed. 1929).

[6] Quincy Wright, Economic and Political Conditions of World Stability, 13 J. Econ. Hist. 363, 366 (autumn 1953).

[7] Bruce Russett, the Dean Acheson Professor of International Relations at Yale University, is the founder of modern “democratic peace” theory. See, e.g., Bruce Russett, Grasping the Democratic Peace: Principles for a Post-Cold War World (1993).

[8] Benvinisti at 98.

[9] Benvinisti at 101.

[10] The people in the occupied territory are protected by a “bill of rights” in GC IV, including, inter alia, protection from having their rights stripped through changes in government or sovereignty (Article 47). Roberts and Guelff at 317-322.

[11] This is so, even though Article 154 of GC IV provides that the treaty merely supplements, rather than supplants, the Hague Regulations. This “back door” to the Hague Regulations was promoted by the smaller powers, Belgium and the Netherlands in particular, as presumptive occupied states, in order to preserve the authority of their existing regimes should they be occupied. Benvinisti at 98. None the less, state practice has tended to support a liberal reading of Article 64, diminishing the impact of the Hague Regulations.   

[12] William D. Guthrie, Magna Carta and Other Addresses 6-7 (Columbia University Press, 1916).

[13] Bernadotte E. Schmitt and Harold C. Vedeler, The World in the Crucible: 1914-1919 256 (1984).

[14] Samuel P. Huntington, Will Countries Become More Democratic? 99 Pol. sci. Q. 193, 206 (Summer 1984).

[15] These countries include Afghanistan, Austria, Bosnia-Herzegovina, Cambodia, Cuba, the Dominican Republic, Germany, Grenada, Haiti, Iraq, Japan, the Marshall Islands, Micronesia, Nicaragua, Palau, Panama, the Philippines, Russia, Somalia, South Korea, and South Vietnam.

[16] When Dr. Sun Yat-Sen was elected President of the provisional Republic established at Nanking in 1912, he was welcomed into power by a Joint Resolution of Congress: “Whereas the Chinese Nation has successfully asserted that sovereignty resides in the people…[the United States therefore] congratulates the people of China on their assumption of … self-government.” Barbara W. Tuchman, Stillwell and the American Experience in China, 1911-1945 40-41 (1970). 

[17] James Alexander Robertson, The Philippines Since the Inauguration of the Philippine Assembly, 22 Am. Hist. Rev. 811, 817 (July 1917).

[18] One of the primary concerns about Filipino self-government was whether another European power would step into the vacuum if the United States left too early. One of the American goals was to make the Philippines a permanently neutral state in Asian politics, analogous to Switzerland’s position in Europe. James H. Blount, The American Occupation of the Philippines 647-655 (New York: G.P. Putnam’s Sons 1912).  

[19] Id.

[20] As cited in, Joshua Muravchik, Bringing Democracy to the Arab World, 103 J. Curr. Hist. (January 2004) (2004 WL 67880094).

[21] Max Boot, The Savage Wars of Peace: Small Wars and the Rise of American Power (2002) 160-67.

[22] Hans Schmidt, The United States and the Occupation of Haiti, 1915-1934 191-94 (1971).

[23] A. J. Thomas, Jr. & Ann Van Wyen Thomas, The Dominican Republic Crises 1965 27-31 (John Carey, ed., Oceana Pub. 1967).

[24] Charles Krauthammer, Democratic Realism 16 (AEI Press, 2004). 

[25] Thomas J. Romig, The Legal Basis for United States Military Action in Grenada, Army Lawyer (April 1985) 1, 13.

[26] Invasion of Grenada, N.Y. Times, October 26, 1983, A16 and A18.

[27] Richard Bernstein, Grenada Debate Continues in UN, N.Y. Times, October 27, 1983, A19.

[28] John T. Fishel, The Fog of Peace: Planning and Executing the Restoration of Panama 2 (1992).

[29] F. A. Hayek, Freedom, Reason and Tradition, LXVIII Ethics: An International Journal of Social Political and Legal Philosophy 229, 229-230 (July 1958).

[30] Id.

[31] Myron Weiner, Empirical Democratic Theory, in Myron Weiner and Ergun Ozbudun, eds., Comparative Elections in Developing Countries 26 (1983).

[32] UN Development Program, Human Development Report 1992: Global Dimensions of Human Development 26 (Oxford University Press 1992).

[33] The White House, National Security Strategy of the United States (August 1991).

[34] The White House, A National Security Strategy of Engagement and Enlargement (February 1996).

[35] International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), December 16, 1966, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966).

[36] Universal Declaration of Human Rights. G.A. Res. 217A, December 19, 1948, U.N. GAOR, Part I, Resolutions (Doc A/810) at 72-76 (1948).

[37] Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections, UN G.A. Res. A/RES/43/157, December 8, 1988 (1988).

[38] Thomas Carothers, Aiding Democracy Abroad: The Learning Curve 40 (1999).

[39] For example, the Charter of Economic Rights and Duties of States, UNGA Res. 3281 (XXIX) of December 12, 1974, identified the rights of states to eliminate “colonialism, apartheid, racial discrimination, neo-colonialism, and all forms of foreign aggression, occupation and domination … .” See also, Benvinisti, 184-187.

[40] UN SC Resolution S/RES/794 of December 3, 1992 (1992).

[41] James Dobbins, et al., America’s Role in Nation-Building: From Germany to Iraq 66-67 (2003).

[42] UNSC Resolution 814 S/RES/814, March 26, 1993 (1993).

[43] Dobbins, et al, at 72.

[44] UNSC Resolution 940, S/RES/940, July 31, 1994 (1994).

[45] Walter Russell Mead, Special Providence: American Foreign Policy and How it Changed the World 137 (2001).


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