On November 15, the European Court of Human Rights began hearings in the case of Saramati v. France, Germany and Norway. Between April 2001 and October 2002, Mr. Saramati, a Kosovar of Albanian origin, was detained by orders of UNMIK and KFOR officers who were of French, German or Norwegian nationality. He was convicted of attempted murder but his conviction was later quashed by the Supreme Court of Kosovo and a re-trial was ordered. Mr. Saramati claims that France, Germany and Norway violated several provisions of the European Convention of Human Rights related to life and security on one hand and to fair trial on the other. More information is available here.
The invasion of Iraq by the British and U.S.-led Coalition forces in March 2003 silently effected debellatio, the ancient doctrine by which a military victor takes title to territory in which the defeated government has ceased to function. The Coalition governments’ failure to recognize it as such and to invoke the attendant legal consequences enabled destructive chaos on the ground and created a troubling precedent for the application of international law to any future exercise of one sovereign state’s authority within the geographical boundaries of another sovereign state. The Coalition forces ostensibly acted pursuant to the international law of occupation, but the legal framework ultimately agreed upon and actually utilized in post-invasion Iraq more closely resembles debellatio. Though this doctrine traditionally is associated with conquest and annexation, it need not be; as updated by modern ideas of self-determination and what I call “sovereign identity,” it is in fact the extant doctrine most consistent with the factual and legal situation caused by the invasion.
In what was perhaps an understandable bid to constrain U.S. and British power, the United Nations labeled the Coalition “occupying powers,” thereby invoking the body of international occupation law traditionally applicable only to foreign authorities assuming “temporary managerial powers” over another sovereign’s territory during which “limited period” the foreign force may not “bring about by itself a valid transfer of authority.” The application of this body of law to the Coalition presence in Iraq was a poor choice, however, given the Coalition’s nation-building aspirations and may have stemmed in part from a perceived unavailability of any other plausible body of international law, given scholarly assertions that debellatio, the international legal doctrine that best fits the factual and legal situations existing after the Coalition’s invasion, was defunct. This Note argues that occupation law is fundamentally inconsistent with the Coalition’s post-invasion exercise of power within Iraq and that, as contextualized within the modern regime of human rights law, a modern doctrine of debellatio much better comports with the Coalition’s authority in post-invasion Iraq.
In Part I of this Note, I explain why occupation law is poorly tailored to nation-building and highlight some of the consequences of its application in Iraq for the occupiers, the occupied, and the evolution of occupation doctrine. In Part II, I make a case for the legal viability of a modern doctrine of debellatio consistent with both the right of a people to self-determination and the idea that sovereignty may not be taken by force. In Part III, I argue that the legal framework under which the Coalition Provisional Authority (“CPA”) actually operated through the chaotic post-invasion phase that created further divisions among the Iraqi people is something more than traditional occupation law but something much less than the ancient tradition of annexation via debellatio; it is a legal framework best supported by a modern doctrine of debellatio that allows the occupier to take contingent, temporary title to the territory in which the vanquished government formerly operated. Finally, in Part IV, I outline the advantages of acknowledging a modern doctrine of debellatio.
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What is the significance of prisoner-of-war (POW) status? Drawing on the substance, universal acceptance, broad-based institutionalization, and enforcement machinery of the Geneva Convention for the Protection of Prisoners of War (“POW Convention”), conventional wisdom maintains that denial of POW status to combatants has drastic protective and policy consequences. Contrary to this conventional wisdom, this Article argues that denial of POW status carries few protective or policy consequences, and that the gap in protection for those classified as POWs and those not so classified (e.g., those designated “unlawful combatants”) is closing. The only gaps that persist are: (1) that POWs are “assimilated” into the legal regime governing the armed forces of the detaining state; and (2) that POWs enjoy “combatant immunity.” The scope and significance of these gaps are, however, also diminishing—from both a protection and policy perspective. The Article further argues that this emerging “protective parity” has important implications for humanitarian law and policy: (1) it clarifies and consolidates debates about coverage gaps in the Geneva law; (2) it recasts debates about the proper procedure for determining “status” in humanitarian law (procedurally, POW status might be understood only as an affirmative defense to any prosecution for simple participation in hostilities); and (3) it underscores the escalating inefficiencies of approaches that calibrate treatment based on complex status determinations (and, in doing so, provides an explanation of why some states—including the United States—expressly incorporate elements of “protective parity” into their military policy). Finally, the Article offers a normative defense of “protective parity”—emphasizing whether it can be reconciled with the principle of distinction.
We are living through a defining moment in international law. The pace of globalization makes cooperation through international law and institutions vital. The recent SARS scare, exponentially magnified by the ease of international travel, poignantly illuminates the proactive, standard-setting role that international rules, such as World Health Organization regulations, can and should play. Yet public impatience with international law is mounting. Paradoxically, this unease may be the product of international law’s maturity and success. For the first time since World War II, states have consistently embraced international institutions to assist in the management of prominent international issues. From the International Criminal Tribunal for the former Yugoslavia to the World Trade Organization (“WTO”) to the U.S. engagement of the United Nations Security Council prior to the Iraqi conflict, states have turned to, or at least paused to reflect upon, international law, catapulting it prominently into public view. Admittedly, international law’s record in these cases is mixed at best. But precisely because of widespread reliance on international law in these high-profile roles, its failures have become a focal point for public skepticism and criticism.