The paradox of the international law of military occupation: Sovereignty and the reformation of Iraq

Journal of Conflict and Security Law

Volumn 10, Issue 1, 2005, Pages 43-74

  McCarthy, Conor ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 27744534672     PISSN: 14677954     EISSN: None     Source Type: Journal    
DOI: 10.1093/jcsl/kri004     Document Type: Review

References (127)

1. No attempt will be made to exhaustively define the concept of sovereignty in this article, partly because the pursuit of such a definition would not be particularly fruitful and more importantly because the key question is not an objective definition of sovereignty but rather what is the Security Council's attitude towards sovereignty and Iraq in the relevant resolutions. The latter question will be explored in some detail.
2. It is arguable that, at least in some respects, the occupation has continued beyond 28 June 2004. SC Res. 1548 is of considerable significance in this regard. However, this question is not examined in detail in this discussion.
3. See Roberts & Guelff, Documents on the Laws of War (3rd edn., 2000).
4. See Benvenisti, The International Law of Occupation (1992) 3.
5. Roberts, 'What is a Military Occupation?', (1984) Vol. 55 BYIL 249. Adam Roberts points to many other provisions in Geneva Convention IV that suggest that occupation is conceived of more broadly there than in the Hague Regulations. Article 6, which deals with occupations after the end of military operations, is one of the examples he gives.
6. The German occupation of Bohemia and Moravia in March 1939 is an example of this. See Prague Credit Bank v Jansen, 1943-45 AD Case no. 11 at 47.
7. The Armistice Agreement that established Allied control over the Rhineland, Germany, in 1918 is an example of this.
8. The Israeli occupation of the Gaza Strip did not change its status despite the 1979 Peace Treaty with Egypt. See generally Benvenisti, op. cit., ch. 5.
9. There is an argument that the application of the law of military occupation in relation to Iraq has been limited by UN Security Council resolutions. This issue is addressed later. The position of the United States as an occupying power has been accepted by the US Administration for some time. In June 2003 Ambassador Paul Bremer, CPA Administrator, said that: 'Occupation is an ugly word, not one that Americans feel comfortable with, but it's a fact.' Washington Post, 1 June 2003. It is notable that these assertions contradict the distinction sometimes made between a belligerent occupation and a post-surrender occupation. This distinction was, in part, used to justify Allied actions in relation to inter alia occupied Germany at the end of the Second World War. See Gerson, 'War, Conquered Territory and Military Occupation in the Contemporary International Legal System', (1977) 18 Harv. Int'l L. J. 525.
10. On the question of the status of coalition forces after 28 June 2004, see SC Res. 1546, and generally Christopher Le Mon, 'Legality of a Request by the Interim Iraqi Government for the Continued Presence of United States Military Forces', (June 2004) ASIL Insights.
11. See SC Res. 1472, 1483, 1490, 1511. The UN Secretary-General in a speech delivered to the UN Human Rights Commission in April 2003 also stated categorically that the coalition in Iraq is an occupying power and must respect international law of occupation. The Times, 24 April 2003.
12. For example, the obligations of usufruct and administration of public assets in article 55 of the Hague Regulations are in practical terms similar to the way in which legal and beneficial ownership is split in a trust, with trustees exercising legal discretion as to the disposition of the trust's assets, whereas the beneficiaries receive the benefits flowing from the trust.
13. See Roberts, loc. cit., 293
14. Wilson, 'The Laws of War in Occupied Territory', (1933) 18 Transactions of the Grotius Society at 38
15. Von Glahn, Law Among Nations (4th Edn) (1981) at 673.
16. Gerson, 'Trustee-Occupant: The Legal Status of Israel's Presence in the West Bank', (1978) 14 Harv. Int'l Law J., at 1-49
17. also Gerson, Israel, The West Bank and International Law (1978) at 78-82. Gerson limits this type of occupation to situations where the territory was not of full sovereignty prior to the occupation, the occupation was lawful and the occupant seeks to develop the territory economically or socially.
18. See Roberts, loc. cit., 292, where he reviews some of the literature on this question.
19. Greenwood, The Administration of Occupied Territory (1992) in Playfair (ed.), at 251.
20. Baxter, in his analysis of various juridical bases for occupation and, more specifically, a duty of obedience, observes that the occupying power's ability to enforce respect for its legitimate interests is not a creation of the law. It springs instead from superior military power and from factual capacity to compel obedience. International law suffers the occupant to legislate, but it will not lend its authority or its assistance to the enforcement of such legislation. See 'The Duty of Obedience to a Belligerent Occupant' (1950), 27 BYIL at 243.
21. See also Bothe, (1983) Belligerent Occupation, Bernhardt's Public International Law, at 765
22. Von Glahn, The Occupation of Enemy Territory (1957) at 45
23. and Law Among Nations (1965) at 668
24. Greenwood, loc. cit., 251
25. Greenspan, The Modern Law of Land Warfare (1959) at 217.
26. It should be noted that a further interpretation of the juridical basis of an occupation is adopted by some writers, which suggests that there is in fact a duty of obedience owed to the belligerent occupant in international law, as opposed to simply those rules created and enforced by the occupant. Such proponents argue that although the rules according to which a disobedient populace are punished are those of the occupant, the fact that international law does not generally prohibit such legislation by the occupant gives a legal character to the relationship between the occupant and the population. See Morgenstern, 'Validity of Acts of the Belligerent Occupant', (1951) Vol. 36 BYIL 291. However, this argument seems to overlook the way in which international law of occupation does generally prohibit such legislation and allows it only for specific purposes (see, e.g., article 43 of the Hague Regulations, or article 64 of Geneva Convention IV).
27. Belgian Ct. of App., Liège, 19 February 1921, Williams and Lauterpacht (eds.), Ann. Dig., 325 at 463.
28. See, inter alia, article 43 of the Hague Regulations which essentially constrains the power of the occupant to legislate in the occupied territory except for limited purposes set out in those regulations and also to some extent in Geneva Convention IV. This matter is discussed in detail later in this article.
29. 15 Ann. Dig. 632 at 637
30. XI Trials of War Criminals 1230 at 1247.
31. Although not a strict distinction, in general the Hague Regulations are more concerned with the interests of the occupied state, whereas Geneva Convention IV, in line with its humanitarian character, is more concerned with the interests of the occupied population. See Pictet (ed.), Commentary on Geneva Convention IV of 1949 (1958) 614.
32. Pictet (ed.), op. cit., 273, Manual of Military Law, iii: The Law of War on Land, para. 510
33. Field Manual FM The Law of Land Warfare, para. 358.
34. For an interesting appraisal of the historical development of the law of occupation, dealing with questions of sovereignty and allegiance, see Baxter, op. cit.
35. American Insurance Company v Peters, US Supreme Court, 1828, 1 Peters 542.
36. Shanks v Dupont (1830) 3. Peters, 242.
37. Pictet (ed.) op. cit., 273.
38. Note, e.g., articles 4-46 and 50 of the Hague Regulations that regulate the conduct of armies in respect of the occupied population.
39. Again, the distinction is not always sharp, e.g. article 64 of Geneva Convention IV.
40. Pictet (ed.) op. cit., 614.
41. Article 55 of the Hague Regulations (1907).
42. A detailed discussion of the precise implications of this article follows shortly, especially the nature and accuracy of the phrase public order and safety.
43. Further examples include article 48 of the Regulations (concerning the collection of taxes) and article 54 of Geneva Convention IV (concerning removal of public officials form office).
44. SC Res. 1472, 1500, 1511 (all 2003).
45. CPA Reg. 1, 16 May 2003.
46. See article 1, Business Guide for Iraq, US Department of Commerce, 17 November 2003 (revised). Available on the US Department of Commerce website at .
47. 1990 Iraqi Constitution available at .
48. See, generally, Overview of Commercial Law in Iraq, US Department of Commerce.
49. Ibid., s. II(a).
50. For a discussion of the Occupying Power's responsibilities in relation to natural resources and, in particular, petroleum resources, see Langenkamp and Zedalis, 'What Happens to the Iraqi Oil? Thoughts On Some Significant Unexamined International Legal Questions Regarding Occupation of Oil Fields', (2003) 14 EJIL 417
51. Gerson, 'Off Shore Oil Exploration by a Belligerent Occupant: The Gulf of Suez Dispute', (1977) 71 AJIL 725
52. Jessup, (1944) 'A Belligerent Occupant's Power over Property', 38 AJIL 461.
53. The legality of Order 39 has been questioned by at least one UK MP, Menzies Campbell, Liberal Democrat Foreign Affairs Spokesperson, in a letter to Jack Straw, UK Foreign Secretary. Guardian, 15 November 2003.
54. Order 39, s. 3(1).
55. Ibid., s. 6(1).
56. Ibid., s. 7(2) d.
57. Ibid, s. 8(2).
58. Ibid, s. 13.
59. CPA Order 40.
60. CPA Order 37.
61. The difference between theory and practice should be noted here. Often, tax dues were not enforced by the Hussein regime. Washington Post, 2 November 2003.
62. The information is available at .
63. Indeed, it has been reported that the new Iraqi government will keep many of the Orders promulgated by the CPA. See 'Iraq may maintain CPA Orders', The Lebanon Daily Star, 28 June 2004.
64. CPA Order 1. See also Order 4.
65. See Order 62 in this regard.
66. Except where otherwise stated the information above concerning the current state of the Iraqi economy is derived from the United Nations/ World Bank Joint Iraq Needs Assessment (October 2003), available at .
67. Report of Secretary-General, 17 July 2003. S/2003/715.
68. Ibid., para. 84.
69. These paragraphs are taken from Order 39.
70. SC. Res. 1511, 16 October 2003.
71. Para. 1, SC Res. 1500, 14 August 2003.
72. Para. 6.
73. 4844th Meeting, 16 October 2003.
74. Article 4 of the Fourth Geneva Convention defines Protected Persons differently than in any other Geneva Convention by virtue of its civilian character. Such persons are those who... in any manner whatsoever, find themselves, in the case of a conflict or occupation, in the hands of... an Occupying Power of which they are not nationals.
75. The CPA sets out the IGC's powers in Reg. 6, 13 July 2003.
76. Pictet (ed.), op. cit., at 274.
77. See Grant, 'The Security Council and Iraq: An Incremental Practice' (2004) AJIL 823, at 834.
78. Roberts & Guelff, op. cit., at 83.
79. See IMT Nuremberg, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg Vol. XXII 1948, at 497
80. IMT Far East, Judgement of the International Military Tribunal of the Far East, United Nations War Crimes Commission, 15 Law Report of the Trial of the War Criminals (Tokyo 1949);
81. GA Res. 95 (I), 11 December 1946
82. Report of the UN Secretary-General to the Security Council, concerning the establishment of the International Criminal Tribunal for the former Yugoslavia, para. 35 UN doc. S/25704 3 May 1993.
83. See SC Res. 1483 para. 5, 1472 para. 1.
84. Article 43 in its original French text, which is the only authentic text of the Hague Conventions, provides: 'L'autorité du pouvoir légal ayant passé de fait entre les mains de l'occupant, celui-ci prendra toutes les mesures qui dépendent de lui en vue de rétablir et d'assurer, autant qu'il est possible l'ordre et la vie publics en respectant, sauf empêchement absolu, les lois en vigueur dans le pays.' (emphasis supplied).
85. Von Glahn, Taxation under Belligerent Occupation in Playfair (ed.), op. cit.
86. US Field Manual FM 27-10, The Law of Land Warfare 1956 UK Manual of Military Law (iii) (1958) at 145.
87. This rendition is favoured by Schwenk, 'Legislative Power of the Military Occupant Under Article 43, Hague Regulations', (1944-1945), 54 Yale LJ 393.
88. Ministère Des Affaires Etrangères, Actes de la Conférence de Bruxelles de 1874 (Paris, 1874) 23. (Translation by the author.)
89. 14 Ann. Dig. 228 at 232.
90. See also Benvenisti, op. cit., at 9-11.
91. The imperative phrase in the authentic French text is that the occupying power 'prendra toutes les mesures qui dépendent de lui'.
92. Benvenisti, Resolution 1483 on Iraq in Historical Perspective (2003) 1 IDF LR at 30.
93. The proposition in article 64 that penal laws must be respected subject to certain exceptions cannot be seen as justification for the a contrario argument that other forms of laws may be amended. This would run counter to article 43 of the Hague Regulations and the idea of supplementarity in article 154 of the Fourth Convention. See further O.M. Uhler & H. Coursier (eds.), Commentary, IV Geneva Convention (ICRC, 1958) 335.
94. R.T. Yingling & R.W. Ginnane, 'The Geneva Conventions of 1949', (1952) 46 AJIL 393, 422.
95. Owing to constraints of space, an in-depth excursus on Israeli practice and article 43 is not possible. However, for more on the use and misuse of article 43 in the Occupied Territories and Israeli practice generally, see Benvenisti, The International Law of Occupation (1992) ch. 5
96. Playfair (ed.), op. cit.;
97. Roberts, 'Prolonged Military Occupation', (1990) AJIL 44
98. Gerson, op. cit.;
99. Dinstein, 'The Law of Belligerent Occupation and Human Rights', (1978) 8 Israel YBHR 104
100. Charlton, (1992).
101. See generally Roberts, 'Prolonged Military Occupation', (1990) AJIL 44.
102. See Dinstein, 'The Israeli Supreme Court and the Law of Belligerent Occupation: Article 43 of the Hague Regulations', (1995) 25 IYHR 12-16.
103. See Schwenk, op. cit.
104. Stone emphasises the importance of any changes not being of a permanent character. The most widely approved distinction is that the occupier, in view of his purely provisional position, cannot make permanent changes in regard to fundamental institutions, for instance, change a republic into a monarchy. Stone, Legal Control of International Conflicts (1959) at 695.
105. The question whether the removal of that government on the basis of a combined interpretation of Security Council resolutions is a matter of jus ad bellum and outside the scope of this article. See UK Attorney General's Advice, Lord Hansard's Written Answers, 17 March 2003, and also full advice in New Statesman, 26 May 2003.
106. Available at , accessed 27 December 2003. This document set out the process leading to democratic elections in Iraq.
107. Whether this is in fact permissible is, of course, highly controversial and beyond the scope of this article.
108. Detailed discussion of this idea is not possible here, but see Franck, 'The Emerging Right to Democratic Governance', (1992) 86 AJIL 46
109. Wheatley, 'Democracy in International Law: A European Perspective', (2002) 51 ICLQ 225
110. Chrysovalandou, 'The Right to Democracy in International Law', 29 Thesaurus Acroasium 697.
111. Others take a narrower view of the extent to which article 43 acts to fetter the power of the occupant. Notably, Dinstein argues that the structuring of political institutions is conspicuously a matter that should be undertaken solely by the territorial sovereign. His position is based on the idea that institutional changes will inevitably have enduring consequences. See Dinstein, 'Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peace Building', Harvard Program for Humanitarian Policy and Conflict Research, Occasional Paper Series No. 1, Fall 2004.
112. Note that article 47 of Geneva Convention IV expressly prohibits any institutional change from depriving protected persons from any benefits conferred upon them by that convention.
113. SC Res. 1546 is particularly relevant to the status of the Interim Government of Iraq. It was not passed until the very later stages of the occupation.
114. See Martenczuk, 'The Security Council, the International Court of Justice and Judicial Review: What Lessons from Lockerbie?', (1999) 0 EJIL 517
115. Gray, 'The Use and Abuse of the International Court of Justice: Cases Concerning The Use of Force After Nicaragua', (2003) 14 EJIL 867.
116. SC Resolutions 1472, 1476, 1483, 1490, 1500 and 1511 (all 2003).
117. See SC Resolutions 1472, 1483 and 1511.
118. SC 4761st Meeting, 22 May 2003.
119. Ibid., at 3.
120. Ibid., at 11.
121. Ibid., at 11.
122. Ibid., 4.
123. Report of Secretary-General, July 2003, 17, para. 87.
124. Ibid., 16.
125. United Nations/World Bank Joint Iraq Needs Assessment (October 2003), 76.
126. Ibid., 77.
127. It is notable that SC Res. 1546 also seeks to preserve this balance. It endorses the Interim Iraqi Government as sovereign and fully responsible for the governance of Iraq while refraining from taking any actions affecting Iraq's destiny beyond the limited interim period.