Occupation

G. H. Fox – Transformative occupation and the unilateralist impulsethoroughly eroded. That appears lacking. While occupation law more generally hasoften been honoured in the breach, Iraq literally stands alone as the only example inthe post-Cold War era of a liberal and democratic transformative occupation. Whilesome commentators seek to include multilateral post-conflict missions on the list oftransformative occupations – a move that would make the practice appear quitecommon and widely accepted – conflation of multilateral and unilateral transformativeprojects is highly problematic. The former arose in large part in order todelegitimize the latter. Finally, while the extra-territorial application of humanrights obligations is now increasingly accepted, those instruments provide amandate for legislative change only in a narrow set of circumstances. Thosecircumstances have yet to find their way before an international court or treaty body,none of which has found human rights instruments to provide a mandate for extraterritoriallegislative action.How transformation challenges occupation law: refiningthe problemThe challenge that transformative occupation presents to the conservationistprinciple is quite unlike the problems previously faced by occupation law. Much ofthe commentary on transformative occupation misses this disjunction, describing asteady erosion of occupation norms through the second half of the twentiethcentury, culminating in the wholesale transformation of Iraqi in 2003. Iraq playssuch a prominent role in these analyses precisely because it is linked to this priorhistory.The Fourth Geneva Convention (and its elaboration in AdditionalProtocol I) was the last major innovation in occupation law. Geneva law hasfamously been described as providing a ‘bill of rights’ for the occupied population. 17After two world wars in which occupiers committed widespread brutalities andsought to bend local law to their own interests, the obvious priority for the treaty’sdrafters was to strengthen individual rights protections in the territories. 18 That itdid. Seeking to remedy the inadequacies of Hague law, its numerous restraintsassumed an occupier unconcerned, to say the least, with the welfare of individuals. 1917 E. Benvenisti, above note 12, p. 105.18 Theodor Meron, ‘The humanization of humanitarian law’, inAmerican Journal of International Law,Vol. 94, No. 2, 2000, p. 245 : ‘[t]he Fourth Geneva Convention reflects the felt need to enhance theprotection of individuals and populations, especially in occupied territories’. Introducing commentary onthe new occupation norms, Pictet summarized the recent history that the Convention was designed toaddress: ‘[d]uring the Second World War whole populations were excluded from the application of thelaws governing occupation and were thus denied the safeguards provided by those laws and left at themercy of the Occupying Power’. Jean S. Pictet (ed.), The Geneva Conventions of 12 August 1949:Commentary, (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War,International Committee of the Red Cross (ICRC), Geneva, 1958, Art. 47, p. 273.19 Rights protections are dispersed throughout the Fourth Geneva Convention and include protections fromdiscrimination (Art. 27), impositions on honour and dignity (Art. 27), physical or moral coercion(Art. 31), physical suffering (Art. 32), collective punishments (Art. 33), intimidation, retribution, thetaking of hostages or pillage (Arts. 33 and 34), mass or individual forced transfers (Art. 49), compulsion to242