The invasions of Afghanistan and Iraq have again called into question the concept of occupation. During the 1990s, military interventions under UN mandates generated much debate among lawyers, military planners and humanitarian agencies as to the applicability of the Fourth Geneva Convention, and specifically its provisions on occupation. These debates, and the operational difficulties aid agencies faced in these situations, revealed a significant lack of consensus, and a dearth of satisfactory answers. Do situations of occupation create specific problems and constraints for aid agencies? Are these problems connected to issues of responsibilities, operational modes or perceptions by the actors of the conflict and assisted populations? While the aid community often voices concerns about access to victims and independence, we tend to overlook the fact that the presence of NGOs in theatres of conflict has never been as important as it is today. Is the increasing role NGOs are being asked (or are deciding) to play itself a part of the problems they face?
Occupation in historical perspective
The definition of the rights and duties of occupying powers contained in the Hague Peace Conferences of 1899 and 1907 reflected the view of war prevalent at the end of the nineteenth century namely that it was an affair between states, conducted by professional armies and away from civilian populations. Occupation was seen as a transitional phase preceding the signing of a peace treaty, during which time the occupier was required to provide a basic level of management of the territory under its control, without affecting the institutions or the everyday economic and social life of the population. Once the peace treaty was signed, it was understood that the occupied territory was either returned to the vanquished state or annexed by the victor state, which was then free to exercise sovereign power over it.
The experience of the two world wars, and particularly the scale of the crimes committed against civilian populations by the occupying forces of the Axis powers, demanded a change in the approach to occupation law. This was reflected in the Fourth Geneva Convention of 1949. Occupation law was now seen from the viewpoint of the protection of civilians, which was binding upon the occupier regardless of changes in the status of the territory under its control and of the political regime that existed prior to the occupation. Unlike the Hague regulations, the occupier was now given considerable responsibilities, including the obligation to provide for the essential needs of civilians in the broadest sense. Insofar as these responsibilities were met, the Convention recognised certain rights of the occupying power, both to guarantee its own safety and to requisition certain public goods and structures.
The interpretation of occupation, as defined in the Fourth Geneva Convention, evolved in the 1960s and 1970s, in the wake of decolonisation. Occupation came to be seen as an unacceptable regime of oppression, akin to colonisation or apartheid. This evolution was reflected in several international documents, including the 1977 Additional Protocols to the Geneva Conventions, which explicitly referred to the right of self-determination against alien occupation. All of these documents, however, fell short of declaring occupation per se unlawful, provided it remained temporary. They did not represent a major departure from the existing law of occupation.
MSFs evolving attitude toward occupation
MSF was founded in this international context. Throughout the 1980s, it denounced publicly the rule and abuses of the Soviet Union in Afghanistan and that of Vietnamese forces in Cambodia. While many in MSF shared a widely held moral condemnation of occupations, it was the totalitarian ideology and practices of these specific occupiers that was the main focus of their public criticism. Occupation and communist rule were thus inseparable elements of MSFs conscious decision not to remain neutral in these two conflicts. This did not mean, however, that MSF teams blindly adhered to the cause of the armed resistance. MSF always refused to work in Khmer rouge-controlled areas on the ThaiCambodian border and suspended its medical missions to Afghanistan on several occasions in response to unacceptable conditions set by mudjaheddin groups in Peshawar.
After the end of the Cold War, the international military interventions mandated or authorised by the UN were justified in the name of the very principles MSF had been defending in its denunciations of communist occupations: democracy, human rights and the provision of humanitarian assistance. In Iraqi Kurdistan, MSF recognised the need for a UN involvement in large-scale relief operations, but kept its distance from UN coordination given the organisations political role in the conflict with Baghdad. In Liberia and Somalia, MSFs position towards the UN was confrontational. In both cases, the UN-mandated peacekeeping force took sides in the civil conflict and denied aid to areas controlled by groups designated as the enemy. In both cases, the UN insisted on the subjection of humanitarian aid in the pursuit of the higher goal of peace.
MSF never referred to multinational forces under a UN mandate as occupiers. Nonetheless, these situations were instrumental in the agencys clarification of its role and responsibilities. It abandoned references to democratic ideals and human rights, and instead sought to defend independent humanitarian action as an end in itself, concerned solely with alleviating the effects of conflict, rather than as a means to a political end, however justified that political end might be.
The military occupations of Iraq and Afghanistan undertaken as part of the war on terror have prompted no fundamental change in MSFs position. MSF was one of the few humanitarian organisations to refuse to condemn the US war against Iraq, on the grounds that a humanitarian mandate is not compatible with a political judgement on the legitimacy of a given conflict. It has taken issue, however, with the Bush administrations efforts to portray humanitarian organisations as natural allies in its war of values and to brand humanitarian the assistance provided by its troops to the Afghan and Iraqi populations. With a large and diverse international aid community developing quickly in the wake of the Coalitions interventions, it is unclear, however, how MSFs principled position is seen among local populations and the various armed groups fighting occupation.
To MSF, occupation is, in principle, a situation of war, requiring the same level of vigilance to ensure impartiality and independence as active conflict. It is thus common for MSF to characterise as war a situation which military commanders might brand pacification or counter-terrorism, as Israeli forces in the Palestinian territories or the Russian army in Chechnya often do.
Nonetheless, over time occupation confronts MSF with operational dilemmas. While an enduring occupation indicates that the roots of the conflict are unchanged, the order imposed by foreign troops may allow daily life to resume, and may permit reconstruction. Involvement in this process may be seen as serving the occupiers interest. For MSF, it raises also questions regarding the nature of needs being met and whether these depart from its limited conception of its role, namely to meet humanitarian needs related to the conflict. In this type of situation, however, to identify and address purely humanitarian needs may be far from easy. Victims of repression by occupying troops are an obvious concern. Yet, unlike the International Committee of the Red Cross (ICRC), with its legally-based mandate to protect civilians and maintain access to prisoners, these victims are often beyond the reach of MSFs medical care. As for general medical activities, local practitioners may not need or wish to be supported by foreign ones.
MSFs withdrawal from Iraqi Kurdistan in 1993 and Afghanistan in 2004, while precipitated for security reasons, also reflected soul-searching as to the nature and relevance of its programmes. Mental health programmes in the Palestinian Territories or efforts to repair roofs in Kosovo have attempted to address neglected needs on the margins of the politically contested areas of public health. They remain subject, however, to recurrent internal debates, with many in MSF voicing unease at these atypical approaches to situations of potentially chronic yet limited emergency. MSFs decision to quit Iraq in the first months of the US occupation in 2003 stemmed in part from similar dilemmas, once activities in public hospitals in Baghdad had been ruled out due to the lack of independent access and the availability of highly skilled Iraqi doctors and medical equipment.
Private occupiers?: New roles and perceptions
These dilemmas of occupation touch on broader issues regarding MSFs role in relation to state responsibilities. In fact, the legal and political concept of occupation has evolved in line with the conception of the responsibilities of the state prevalent at different times. The Hague Conferences reflected the laissez-faire ideas of the nineteenth century, which contemplated minimal state involvement in the daily life and business of citizens. Meanwhile, the preservation of existing institutions and territory by the occupying power gave precedence to the resumption of rule by the defeated sovereign power over demands for political and social change. The Fourth Geneva Convention, by contrast, reflected later welfarist ideas in the new economic and social responsibilities it placed on occupying states.
At a time when the functions of the welfare state are largely being delegated to private actors, it is not surprising that occupying powers tend to rely on NGOs or private firms to meet their responsibilities. The way NGOs see their role in relation to the state and local society and their need for funds will largely determine how they answer that call.
MSF does not see itself as an agent of social or political change. Disagreements over these changes are often the root causes of conflicts, whether by pitting groups against each other or providing the justification for a foreign military intervention to bring about regime change. Therefore, to be a proponent or an implementing partner of such changes would be to take a stake in the ongoing conflict. For MSF, on principle, it does not that the political authority overseeing a process of reconstruction is a national one or an occupying power. It is not for MSF to judge the degree of legitimacy of a political authority, nor whether the services this authority is providing to the population under its rule are an exercise in sovereignty, or represent international legal obligations.
What matters is whether the dynamics of an open or underlying conflict leave parts of the civilian population unattended or exposed to harm, man-made or natural. Independence in answering these needs is necessary, though not always sufficient, to guard against being caught up in the logic of the war. Phases of relative normality or reconstruction taking place under occupation or in a lasting civil war often make it difficult for MSF to define its programmes in accordance with how it sees its role, as emergency, reconstruction and possibly development issues may be intertwined. NGOs that do not shy away from being active in social policies and governance issues certainly will not face similar operational dilemmas. But it should matter to them that their activities take place under the overarching rule of an occupying power, whether they implement its policies or not. Over time, the resentment that often builds up within a population against foreign rule can lead to an equally violent rejection of all changes brought about by outside actors, their claimed neutrality notwithstanding.
References and further reading
Fabrice Weissman (ed.), In the Shadow of Just Wars: Violence, Politics and Humanitarian Action (London: Hurst/MSF, 2004).
Eyal Benvenisti, The International Law of Occupation (Princeton, NJ: Princeton University Press, 2004).
Francoise Bouchet-Saulnier, The Practical Guide To Humanitarian Law, 2nd edition (Oxford: Rowman and Littlefield/MSF, March 2006).
Current Challenges to the Law of Occupation, Speech delivered by Professor Daniel Thürer, Member, International Committee of the Red Cross, 6th Bruges Colloquium, 2021 October 2005 (http:// www.icrc.org).
Anthony F. Lang, Agency and Ethics: The Politics of Military Intervention (New York: State University of New York Press, 2002).
Xavier Crombe is a researcher with the Fondation Médecins Sans Frontières in Paris. His email address is: email@example.com.