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Table of contents

Among the codified obligations were those pertaining to the occupiers of territory: the Brussels Declaration, followed by the and Hague Regulations, introduced the idea that occupation was a temporary administration of a hostile territory, and limited the right of the occupier to extract resources and funds from the occupied state. Although not limited by class, religion, or geography, compliance with the negotiated norms still depended on the reciprocal acceptance of and compliance with these same norms by the adversary.

The jus in bello thus applied only between or among parties that had expressed their willingness, de jure and de facto , to be bound by similar norms. While the UN Charter tended to the jus ad bellum , the four Geneva Conventions concluded in were the jus in bello response to World War II, in which most of the pre-existing rules and customs of warfare were ignored at least on some fronts.

The Conventions codified, reiterated, and developed a broad array of norms pertaining to the immediate victims of war, notably hors de combat and civilians in the hands of an enemy power. As the constraints on how to win wars or defend against them expanded over the following decades, so did the limitations on what victors could do to the vanquished — or what one could win by winning. The Fourth Geneva Convention of addressed, inter alia, the matter of occupation and added further limitations and obligations to those stipulated under the Hague Regulations.


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The Geneva conception of occupation seemed, however, more tolerant toward lengthy, even transformative occupations than the more restrictive Hague Convention regime, 43 probably due to the political environment in which the Geneva Conventions were drafted. In a movie classic, The Mouse that Roared, Peter Sellers leads a small, impoverished European country in an invasion of New York City, hoping to lose the war and win reconstruction by America.

British advantages and victory

This satire was not intended, of course, to be taken as a good case for war or for occupation; but it did reflect the notion that Western occupation could be beneficial to the occupied. What occupation could bring with it — democracy and reconstruction versus the oppressive occupation by the Soviet Union — became the symbol of difference between the Free World and Communism.

They also made foreign occupation a legitimate cause for war by those fighting for national liberation. The ban on reprisals reflected more than anything else the infusion of the laws of war with human rights norms. Alongside humanitarian obligations, and beginning in , a host of human rights instruments was dedicated to a wide array of civil, political, economic, and social rights which governments owed to individuals in their territory.

The project of human rights laws, commensurate with liberal ideals, was to place individuals at the centre of international concern, at the expense of the previously sacrosanct concept of state sovereignty. These human rights obligations are, under the laws on state responsibility, erga omnes — owed to the entire international community and not just to national citizens.

Although the project of human rights was originally conceived as a separate and distinct regime from IHL, to be applied predominantly between a state and its own citizens, the Protocols incorporated human rights ideals as to the treatment of enemy nationals. The ban on reprisals was but one manifestation of such ideals, namely the notion that the right not to be harmed belonged to the protected individual and not to her state to bargain over or trade in.

In the decades that followed, and despite some objections by the United States and several other democracies, a broad consensus developed round the notion that even human rights that were not incorporated into IHL instruments, but remained anchored in separate dedicated human rights treaties, also extended to the treatment of enemy nationals during wartime, complementing and elaborating on IHL.

This universal benevolence manifests itself in weaker tolerance for civilian casualties, a greater concern over the abuse of human rights everywhere, and a demand from national governments to take a stance and fight against deliberate harm to individuals anywhere around the globe. Somewhat paradoxically, by making human rights violations within any single country a matter of international interest — and by deeming gross human rights violations a grave offence that implicate a duty to intervene on the part of the international community — human rights came to operate as both a limitation on war and a cause for war.

The revival and expansion of the project of international criminal law ICL further contributed to the limitations on warfare. Notwithstanding earlier origins of the idea of punishing individuals for violating the international law of war, the post-World War II Nuremberg Trials were widely considered to be the first manifestation of the modern ICL project.


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  • These treaties, alongside other conventions such as the Genocide Convention and the Convention Against Torture codified the concept of universal jurisdiction — the right, even obligation, of every state to punish the enemies of mankind, including those committing grave human rights and humanitarian violations. Largely dormant in the decades that followed, the ICL project was revived in the mids with the establishment by the UNSC of two dedicated international criminal tribunals, one for the Former Yugoslavia and the other for Rwanda. By , the International Criminal Court was designed by the Rome Statute, with the aspiration of governing all conflicts around the globe.

    The Rome Statute expanded the list of war crimes beyond what was stipulated in existing instruments and also largely equated crimes committed in non-international armed conflicts with crimes in international armed conflicts. All these developments, taken together, resulted in the dramatic transformation of what is allowed in war, as a matter of both law and politics, at least for liberal democracies: mass civilian casualties, torture, famine, collective punishments, and reprisals — all endemic to previous wars — are now, even if not eliminated in practice, considered war crimes and are the site of heated international and domestic debates.

    And the latter now governed not only what was permitted in war, but also what was expected after the war, or as the result of the war.

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    If the earlier restrictions on belligerent occupation were meant to limit what the occupier could obtain from the occupied, organized around the idea of doing no harm, the modern expectation is that the occupier will reconstruct the country and improve the lives of its inhabitants. Ultimately, the only uniform restraint upon present-day occupations seems to be the ban on annexation; transformative occupation that brings about reconstruction, democracy, the rule of law, and protection of human rights is now the evolving norm, at least when it comes to war fought by the US.

    It applies even when there is a good claim for a war in self-defence. In fact, according to some observers, there is an emerging norm of post-conflict nation-building that now seems to assume a legal status beyond self-interest or expediency.

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    And even if it is not a clearly legal obligation, Western public expectation is that this duty will be fulfilled. All in all, from a communitarian, nationalist project, the regulation of wartime conduct has turned into an individualized-cosmopolitan effort, removing the monopoly of the state as the unit whose interests must be fulfilled. This means that victory can no longer be articulated solely in terms of national interests, but must include a component of individual human security, of people both at home and in targeted territories.

    It was those total wars, and the advent of a new superpower rivalry between the US and the Soviet Union, that the Charter intended to avoid. Geopolitical trends since the conclusion of the Charter, however, made some states weaker and some non-state actors stronger. The incidence of interstate wars declined, as intrastate wars and wars with non-state actors of various forms terrorists, insurgents, guerillas, or criminal networks grew.

    Technology made weapons cheaper, more readily available — including for non-state actors — and more destructive.

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    Globalization and interdependence made targets all over the world more accessible and vulnerable to threats from anywhere and by anyone. Overall, individuals and groups have taken their position alongside states as capable of inflicting armed attacks in a magnitude previously reserved to states alone. While traditional conflicts against states were centred mostly on positive, ascertainable objectives, such as the surrender of German and Japanese forces, the repulsion of Communist forces from South Korea, or the liberation of Kuwait, the fight against non-state actors has often been articulated in negative and relative terms, such as frustrating terrorist attacks or reducing support for insurgency.

    It will not end until every terrorist group of global reach has been found, stopped and defeated. Moreover, the lack of an accountable and controlling leadership, which is frequently the case with non-state actors who represents all of Al Qaida today? Repelling threats from non-state actors often involved military strikes against states harbouring them, such as the American strikes in Libya or the strikes on Sudan and Afghanistan.

    Even if armed force continued, however, it did assume a different nature and a different goal from the traditional battlefield. Whatever harm could conceivably be accepted, even reluctantly, in a state-to-state traditional war became harder to sustain when fighting non-state actors amidst a civilian population, especially one that had mixed allegiances and preferences with regard to the insurgent forces.

    The American Counterinsurgency Doctrine COIN now holds, not as a matter of law but as self-interested policy, that greater constraints than those stipulated by the laws of war must be assumed by the fighting forces to minimize civilian casualties. Technological capabilities of Western states, in both intelligence gathering and targeting, carry with them the expectation, sometimes exaggerated, that such careful tailoring can always be executed effectively.

    Whether or not such strategy would ultimately prove effective is almost irrelevant, as there seems at present to be no viable alternative. Victory thus requires less violence, more reconstruction, and a longer-term differentiated engagement with governments and citizens, combatants and civilians, supporters and oppositionists.

    The inherent difficulty in defining victory in contemporary conflicts and the changing nature of the goals, rules, and targets of war are most apparent when one follows the attempts to define success in Iraq and Afghanistan. By opinion polls among the local population? By installing a sympathetic local government? Or is it by suppression of any element of threat? As counterinsurgency action often seeks long-term structural changes, political and economic developments are necessary components of victory, not merely optional post-war missions. Capacity-building of civilian governmental agencies, as well as bolstering civilian confidence in the national government, is now a central part of defining what constitutes success in these wars.

    The difficulty of defining victory in Iraq or Afghanistan became increasingly apparent as decision-makers and interested observers grappled with offering metrics of success in both theatres. The Obama Administration set out to define success in both Afghanistan and Pakistan, relying on a mixture of quantitative benchmarks e. The National Security Strategy NSS offered less ambitious goals than a prior NSS, 66 dropping economic development and limiting the strategy objectives to more narrowly-tailored security components:.

    For many outside observers, civilian aspects remain part and parcel of what the objectives of the ongoing campaigns must be. It is a struggle to find security in dealing with neighbors like Iran, Syria, and Turkey, and to create a strategic partnership between Iraq and the United States that serves both countries without compromising Iraqi sovereignty.

    Yet when President Obama announced the removal of all troops from Iraq by the end of , he noted that there was still much to be done:. After all, there will be some difficult days ahead for Iraq, and the United States will continue to have an interest in an Iraq that is stable, secure, and self-reliant. All of this shows the difficulties of measuring success.

    But it also shows the difficulties of achieving success. It is obvious that to achieve a wide array of military, political, economic, and civilian goals a military campaign is insufficient, and for some purposes, unnecessary, even counterproductive. What is necessary is a modern and carefully-tailored Marshall Plan. But while the Marshall Plan was introduced after the end of military hostilities and faced little armed resistance, the process of change in Iraq and Afghanistan requires an overall mix of military and non-military strategies, not easily distinguishable from one another on substantive, temporal, or spatial dimensions.

    This mixed strategy thus defines what victory is, what is necessary to achieve it, and what is or might be won by it. It is hardly surprising that the concept of victory, even if by other names, has played a crucial part in Christian Just War theory. Whatever was considered to be a legitimate justification for resorting to war, once at war, the point was to win.

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    In fact, under the classical Just War doctrine, a war could be legitimately waged only where there was a reasonable prospect of success.