RESPONSE

The U.S. Perspective of

Lieutenant Colonel Michael Kelly makes a strong argument for the application of the law of occupation to situations like those faced by the Unified Task Force Somalia (UNITAF) in 1992. Each mission is different, and the legal basis for the operation must be carefully developed in advance, but peace support operations typically involve some level of host-nation sovereignty for the duration of the deployment. Government institutions such as the police and the courts may need rehabilitation, but they are not displaced by the peacekeeping force. In Bosnia, the NATO force operates in a sovereign state under the terms of the Dayton Peace Agreement negotiated by host nations leaders as well as other states. The law of occupation should be used with caution, because it may narrow the options of the force commander. Moreover, the United States and most other governments are very reluctant to invoke and apply the Fourth Geneva Convention and the law of occupation, as was done with Germany and Japan after WWII. The political, economic and legal ramifications of taking over the functions of sovereignty and administration of another state are enormous. The local conditions may be present for applying the Fourth Geneva Convention, but governments will still avoid doing so. This was the case with Somalia.

In December 1992, CENTCOM took the lead in establishing UNITAF, as the military element of Operation Restore Hope. The I Marine Expeditionary Force (I MEF) from Camp Pendleton assumed the responsibilities as the command element, and the Staff Judge Advocate of I MEF was in daily contact with the CENTCOM Legal Advisor in the early stages of the operation.¹ In the early days of the operation it was important to establish the legal basis for the expedition and for UNITAF commanders to understand their responsibilities and obligations under the law.

Restore Hope presented a situation that had not been encountered before by U.S. personnel in the field. After 2 years of civil war, all Somali civil and political institutions had collapsed, and anarchy had replaced the rule of law throughout the country. The U.N. Security Council had just passed Resolution 794, which authorized “all necessary means” to provide security for the delivery of relief supplies. This was a narrow mission that did not include rebuilding civil institutions or remaking Somali society. The UNITAF commander made it clear that the force was in Somalia only temporarily and that he was not seeking new missions that were outside the scope of the original mandate.

Before the operation began, UNITAF and CENTCOM lawyers discussed the application of the Fourth Geneva Convention and the law of occupation to the operation in Somalia. At the outset they determined that the law of occupation would not apply. Resolution 794 provided solid authority for Restore Hope under Chapter VII of the U.N. Charter. This gave the commander of UNITAF the flexibility to use force when necessary to perform the mission, without creating any legal requirements to provide for the civilian population. In their view, the Fourth Geneva Convention was designed to cover those situations where the host-nation government is displaced by an invading army.

If the law of occupation applied, this could mean that all the other provisions of the Geneva Convention might apply, such as the responsibility to provide schools, sanitation, and a new civil government, and the Bush administration did not want to accept such a degree of responsibility for Somalia. CENTCOM made a conscious decision not to deploy major U.S. Civil Affairs assets because the United States considered Restore Hope as a security mission and not a nation-building one. After the United States gave up command to the United Nations in May 1993, the mission changed, and the results are history. The U.N. Security Council mandates in Resolutions 814 and 837 for UNOSOM II came close to the Fourth Geneva Convention in the authority given U.N. forces. The issue was not the adequacy of authority for the international intervention, but how it was used by the United Nations, the United States, and other troop contributors. Here, history speaks for itself.

During Restore Hope, the Australian and U.S. contingents both were successful in accomplishing the mission assigned. The difficulties encountered later by the United Nations should not detract from the initial success. The U.S. and Australian contingents may have had different legal interpretation on the application of the law of occupation, but this made no practical difference in terms of performance in the field. UNITAF Commander Lieutenant General Robert Johnston allowed a considerable degree of autonomy for the commanders in charge of different Humanitarian Relief Sectors, so long as each respected the basic mission requirements. This was certainly the case with the Australian contingent. The Canadian, Belgian, and Italian armies were shaken by allegations of abuse and violations of rights of the local population. The U.S. and Australian contingents were better trained, disciplined, and made better use of their noncommissioned officers in the field. Success in these difficult operations requires the right force, a clear mandate, and achievable objectives. If one looks at broad mandates such as Haiti, Cambodia, and Bosnia, the difficulty of achieving long-term success is evident.

Chapter 11 | Chapter 13 | Return to Contents