Eyal Benvenisti, a noted scholar of the law of occupation, is renowned for his arch observation that ‘the great majority of post-Second World War occupations have honored the law of occupation by its breach’.Footnote ¹The Transformation of Occupied Territory in International Law, by Andrea Carcano, is an excellent illustration of this phenomenon, as specifically embodied by the occupation of Iraq after the fall of Saddam Hussein.

The book will be a worthwhile addition to the library of any researcher seeking to gain an in-depth understanding of the United States’ occupation of Iraq from 2003 onwards, which the author methodically investigates through the prism of international law. It also systematically reviews the legal loopholes crafted by the Security Council in order to retroactively legitimatise the activities of the Coalition Provisional Authority (CPA), providing metaphorical fuel for those who believe the United Nations (UN) is an unaccountable institution run by shadowy elites. Dr Carcano's examination of this controversial period in international relations is bolstered by substantive references to relevant literature and documentation, and succeeds in providing a valuable introduction to the law of occupation for the uninitiated.

Chapter 1 takes readers through the historical highlights along the development of the concept of ‘occupation’, which evolved from the preference of previous cultures for subjugation and annexation. According to the author, during the Middle Ages, war was waged either to punish the wicked or as an instrument of conquest (p 15), although the outcome – winner takes all – was largely the same. The oft-cited grandfather of international law, Hugo Grotius himself, seemed to sympathise with this interpretation, writing in 1625 that ‘what is taken from the enemy, by the law of nations, becomes at once the property of those who take it’ (p 15, n 16). Approximately 150 years later, the liberté, egalité, fraternité crowd of Revolution-era France was feeling more enlightened, and the National Assembly renounced ‘the undertaking of any war with a view to making conquests’, stating that it ‘would never use [its] power against the liberty of any other people’ (p 17, n 20). This noble sentiment was obviously tempered somewhat a few years later, when Napoleon stormed the scene.

However, as the nineteenth century wore on, the author notes that ‘the concept of occupation and conquest was gradually abandoned in favor of a model of occupation based on temporary control and administration of the [contested] territory, the fate of which could be determined only by a peace treaty’ (pp 18–19). Essentially, a legal framework was emerging to reflect incipient ideas about sovereignty – that ‘kings were the sovereigns, and international law should protect their possessions during wartime’Footnote ² – although such ideals did not extend to imperial adventures abroad, where lands were inhabited by what the colonial powers deemed to be ‘uncivilised peoples’ (p 39). Nevertheless, within the boundaries of Europe, the idea that occupation was mere ‘control and administration’ of territory was eventually codified in the Hague Regulations (pp 23–24) and Fourth Geneva Convention (pp 71–72).Footnote ³ In parallel, other concepts regarding the need to protect civilians during armed conflict (what would become international humanitarian law (IHL)) were gaining prominence.

This arc is familiar to many international lawyers, but Dr Carcano recounts it elegantly, preparing the reader for a meticulous analysis of the concept of ‘transformative occupation’, which he defines (p 37) as:

The author posits that the practice of transformative occupation emerged in parallel with the ‘control and administration’ model of occupation, constituting a ‘direct challenge’ to the traditional paradigm, as it was based on a ‘diametrically opposed premise’ (p 73). Indeed, Dr Carcano concludes that, in most instances, transformative occupations should be considered to be in breach of the law of occupation (p 73). Nevertheless, this rather stark inference is tempered by his observation that there may be some permissible exceptions to this general rule, as a bulwark against the ‘perils of formalism’ (p 74). Such exceptions may include the consent of the occupied population, the advancement of human rights, the enablement of the exercise of self-determination, or compliance with Security Council resolutions (p 74).

Chapter 2 proceeds to outline the arguments in favour of each of these exceptions, after a preliminary discussion about the post-Second World War evolution of IHL and international human rights law, and the influence each has had on our modern understanding of the law of occupation. These concepts are briefly introduced through the summary of some seminal International Court of Justice (ICJ) cases and applicable UN Security Council resolutions, providing useful rhetorical scaffolding on which to hang the legal minutiae. The author rightfully acknowledges that it remains controversial to try to insert human rights law into situations where IHL is the more obvious applicable legal framework, but notes that ‘international and regional bodies have been consistent in upholding the applicability of human rights treaties during occupation’ (p 85). The ICJ's Wall Advisory Opinion Footnote ⁴ is the example that immediately springs to mind for most legal scholars, but the book also recalls the jurisprudence of the European Court of Human Rights, specifically in the Loizidou, Banković, and Al-Skeini decisions.Footnote ⁵

The examination of the potential applicability of human rights law in situations of occupation offers a convenient transition to consideration of the exceptions which may make transformative occupation permissible under public international law. With regard to the first exception – consent – little space is dedicated to exposition of this concept in the book and, as a result, will not be the subject of much discussion in this review. The author notes (p 74) that:

While seemingly straightforward, this succinct explanation fails to elucidate any concrete suggestions as to how an occupying army could gain the consent of the citizens of the country it has invaded. An occupant certainly could – and most likely would – seek to influence the economic and political developments of the occupied territory, but just because the occupiers found pliant counterparts within the remnants, a vanquished regime or a newly elevated rebel force does not automatically translate into comprehensive acquiescence by an occupied population. Moreover, philosophically permitting occupiers to adopt ‘humanitarian’ qualifications to their hostile invasion does not invalidate the law of occupation, and should not, in this reviewer's opinion, be considered a permissible ‘exception’ to its application.Footnote ⁶ Accordingly, the first exception that is substantively considered is ‘advancing human rights’.

No less an authority than the International Committee of the Red Cross (ICRC) agrees that there may be a ‘“certain amount of flexibility” to implement human rights law in occupied territory’ (p 97),Footnote ⁷ although the ICRC is quick to note that ‘human rights laws should not be invoked in order to justify transformative occupations’.Footnote ⁸ This is essentially the Robert Baden-PowellFootnote ⁹ approach to transformative occupation: you don't get credit for finding an excuse to invade, but while you're there, you might as well leave the place a little better off than when you found it.

Even following the interventions in Afghanistan, Iraq and Libya, the idea of invading a troubled region in order to benevolently bestow human rights ideals may still be appealing, especially when viewed through the current carnage that is Syria. Undoubtedly, policymakers are currently plotting away in defence ministries throughout the western world, preparing dossiers which unequivocally show that the Syrian people would be better off without their genocidal maniac of a leader, and would instead benefit from a shiny new constitution inspired by western democratic ideals. A little human-rights-advancing occupation might even solve the pressing problem of unwanted strangers turning up on Europe's doorstep, making it a win-win enterprise. Alas, pragmatic considerations aside, the book theorises that such an approach might actually undermine human rights in the long run, by imposing legislation that is unwanted by either the occupied people or their new government, thereby ensuring it will be completely disregarded after the occupation ends (pp 97–98). Moreover, it may ultimately weaken respect for human rights law if it is seen as the domain of a ‘few foreign officials, operating with … secrecy in the cubicles of an occupation administration, rather than … [a] transparent legislative process participated in by the citizens of the territory concerned’ (p 100).

‘Advancing human rights’ is thus apparently not a viable reason to engage in transformative occupation; ‘enabling self-determination’ is next on the list of possible justifications. Here, too, it is tempting to co-opt the Syrian example as an organic expression of suppressed self-determination just waiting for some friendly outside power to help it finally fly free. Ignoring, as before, the realities of the situation – whose self-determination, exactly, should an idealistic coalition seek to enable? – there appears to be a more practical problem of an insurmountable tension between the needs of the occupiers and the desires of the occupied. If the right to self-determination is applicable during periods of occupationFootnote ¹⁰ and the occupation infringes this right, then the occupying power should withdraw (p 104). If it is disinclined to do so, the author notes that occupants are still obliged to ‘respect’ this right throughout occupation – a theoretical conclusion which may please international lawyers sitting around conference rooms in Geneva, but is largely unworkable in practice. This is primarily because occupying powers may be rightfully entitled to engage in coercive measures such as ‘restraining freedom of movement, assembly or speech’ in order to maintain security in the occupied territory and, if this is the case, the right to self-determination is necessarily sublimated (p 105).

How to circumvent this intractable friction? Like many aspects of public international law the foundational instruments of which have not kept pace with the constantly evolving contemporary world, the answer appears to be let's see how it all shakes out in practice; or, as the author states, the idea that an occupying power can be instrumental in ‘enabling a people's right to freely determine their future’ is an ‘eminently political question’ to be examined on a case-by-case basis (p 107). This is not an obvious favourable endorsement of transformative occupation. Nonetheless, Chapter 2 concludes with the thought that occupying powers may – in ‘exceptional circumstances’ – be justified in ‘setting aside the institutions and laws of a despotic ruler’, but should not seek to determine what replaces them (p 108).

Consent, human rights and self-determination are thus dispensed with; the remaining potential exception to the tenet that transformative occupations are generally forbidden is ‘compliance with Security Council resolutions’. The role of the Security Council in promoting transformative occupations is expansively considered throughout Chapters 3, 4 and 5, which recount, in minute detail, the invasion of Iraq, the administration of the CPA, and what happened after the occupation ended – a date that cannot be pinpointed with certainty (p 409). Although examination of this issue is clearly of great interest to the author and is subsequently considered over hundreds of pages of text, it is regrettable that this comprehensive analysis does not result in a clear determination as to the viability of this exemption. Consequently, at the end of three extensive chapters, there is no succinct answer to the question of ‘whether the Security Council should validate, in whole or part, “processes of democratization via belligerent occupation”’ (p 452). The author notes instead that the issue is ‘complex and multifaceted’, and that the legality of transformative occupations should be considered on a ‘case-by-case basis’ (p 452). Well, yes.

One thing the book does very effectively is to recount just how rapidly events unfolded once all the diplomatic wrangling in the Security Council and elsewhere had failed. The US-led coalition invaded on 20 March 2003, captured Baghdad on 9 April 2003, and Tikrit on 14 April 2003 (p 411). The CPA was established on 16 April 2003, President George W Bush announced ‘the end of major combat operations’ on 1 May 2003, and on 22 May 2003 the Security Council adopted Resolution 1483, the resolution which indirectlyFootnote ¹¹ recognised the status of the United States and United Kingdom as occupying powers in Iraq (pp 412–13). Thus, in the space of two months, Iraq had been invaded, had fallen, and had been occupied by international forces. While history has demonstrated that President Bush's declaration of ‘mission accomplished’ was premature, when viewed through the prism of the law of occupation, this all moved very quickly indeed.

And then … it didn't. While the CPA ‘dissolved’ itself on 28 June 2004, transferring power to an ‘interim government’ (pp 349–50), the author argues that the literal end of the occupation did not come to pass until the ‘modalities of formation and practice of the Maliki Government’ (p 407), an awkward designation for a period that stretched from 2006 to 2014. This is all rather muddled, both in actuality and in the book's narrative retelling, but the author posits that the occupation of Iraq can be divided into two distinct phases: (i) the ruling and administration of the CPA from April 2003 to June 2004, and (ii) a second period of ‘sui generis indirect occupation’, wherein ‘Coalition Forces maintained control over Iraq due to the presence of a non-sovereign indigenous government’ (p 414). In any case, the majority of US troops withdrew from Iraq in September 2010, with the remainder departing at the end of December 2011 (p 409). Accepting this latter date as the observable, circumstantial end of the occupation means that Iraq was under foreign administration for more than eight years, a period even longer than Japan after the Second World War.

The Transformation of Occupied Territory in International Law is a well-researched, well-written tome, but suffers a little in its execution: one cannot help feeling that there may have been a little lost in translation between the book's initial pitch and its final publication.Footnote ¹² Its title notwithstanding, the book is not a general overview of the international legal framework applicable to occupied territory, transformed or otherwise. In this reviewer's opinion, it will appeal primarily to scholars of the Iraq War, rather than to researchers seeking a detailed examination of examples of transformative occupation. Dr Carcano's book comprises a 350-page analysis of the occupation of Iraq following the fall of Saddam Hussein, sandwiched between approximately a hundred pages of introductory material and other historical scene-setting. Ten or so pages are devoted to the occupations of Germany and Japan by the Allied Powers (pp 58–68) after the Second World War, about which a compelling case is made that these should be included on a shortlist of history's more successful transformative occupations (pp 63, 67).Footnote ¹³ The other historical examples provided are not obvious choices: the Prussian occupation of Alsace-Lorraine in 1870 merits several paragraphs (pp 31–34), followed by the Russian occupation of Bulgaria in 1877 (pp 40–44), and concluding with the British occupation of Mesopotamia during the First World War and the subsequent Mandate administration of Iraq (pp 45–50). This last example is undoubtedly meant to serve as foreshadowing for the Coalition's misadventures nearly a century later, yet one of the more interesting revelations in this section was that ‘[t]he American Ambassador [of that era] expressed concern that … the UK was “preparing quietly for exclusive control of the oil resources in the region”’ (p 50).Footnote ¹⁴ Apparently, mistrust of your allies’ intentions regarding strategic energy supplies in the Middle East is the ultimate renewable resource.

While the discussion surrounding these three examples is interesting, a reader who has even a cursory familiarity with international law could be forgiven for wondering why such obscure precedents were chosen, when there are so many more well-known examples of occupation dating from the latter half of the twentieth century: Tibet, Northern Cyprus, Western Sahara, and the Palestinian Territories.Footnote ¹⁵ All of these examples can be – and are – contested by the interested parties as to the true extent of their respective ‘occupation’. The Israeli authorities, in particular, deny the de jure application of the Fourth Geneva Convention to the Palestinian Territories,Footnote ¹⁶ although the duration of the occupation and the existence of settlement outposts seem to undercut any possible claims that administration of this land should be considered ‘provisional’ and ‘temporary’ in nature.Footnote ¹⁷ Nonetheless, the nature of the occupation remains disputed, a phenomenon that is nothing new. Benvenisti notes that occupying powers rarely voluntarily invoke the law of occupation in stating:Footnote ¹⁸

By way of stark illustration of this point, both the US and the UK were reluctant to officially designate themselves as ‘occupying powers’ after the 2003 invasion of Iraq, instead jointly writing in a letter to the Security Council that they would merely exercise ‘temporary’ powers of government in the country.Footnote ¹⁹ Although UN Security Council Resolution 1483 of 22 May 2003 confirmed their status as occupants,Footnote ²⁰ many of their putative allies in the ‘Coalition of the Willing’ were averse to being similarly labelled (p 169).Footnote ²¹

All of this is to say that the author and his editors may have had very good reasons for limiting the book's analysis of ‘transformative occupations’ to post-2003 Iraq and a few limited and obscure historical examples, but readers are left in the dark as to their thought process. The Israeli–Palestinian conflict alone has already produced enough critical analyses to populate entire libraries,Footnote ²² and including it in this book may not have provided any useful expository function. However, the absence of this and other major contemporary examples of occupation – even in the preface or introductory sections – is curious.

The bulk of The Transformation of Occupied Territory in International Law is taken up with consideration and analysis of Security Council oversight of the CPA's administration of Iraq, and the relationships between the CPA and its successors with various Iraqi counterparts. For scholars looking for a blow-by-blow account of daily life as an Iraqi bureaucrat or military administrator during this period, this book will be a treasure trove of information. Chapter 4, in particular, is noteworthy for its strikingly detailed footnotes, wherein several pages are largely devoid of primary text, and instead list dozens upon dozens of resolutions of the CPA and the Iraqi Governing Council (pp 281–87). However, for researchers interested in the question of whether the occupation of Iraq can be considered ‘transformative’ or – more importantly – lawful, the book may leave them wanting. The energetic and even intrusive role of the Security Council in the occupation and administration of Iraq is comprehensively examined, but no grand theories are mustered. Rather, towards the end of the final chapter the author surmises merely that ‘the question of feasibility must be adequately factored into any analysis of whether transformative occupation should be endorsed’ (p 454). This is undoubtedly accurate, but not especially helpful: for a body as politicised and self-serving as the Security Council, the question of ‘feasibility’ will be a moving target.

To sum up, The Transformation of Occupied Territory in International Law endeavours to be a bold new addition to the field of research on the law of occupation and, in the opinion of this reviewer, regrettably it falls short. Yet, if viewed instead as a forensic accounting of the occupation of Iraq after the fall of Saddam, it becomes an important resource. The author is to be commended for a comprehensive recounting of the liberties taken by the CPA with the connivance of the Security Council. The temptation to transformatively occupy under-democratised states will only increase in the twenty-first century; this book provides a handy guide to the perils that may lie along that route.