End of the occupation in 2004? The status of the multinational force in Iraq after the transfer of sovereignty to the Interim Iraqi Government

Journal of Conflict and Security Law

Volumn 11, Issue 1, 2006, Pages 41-66

  Carcano, Andrea ^a  

^a UNIVERSITY OF MILAN   (Italy)

Author keywords

[No Author keywords available]

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EID: 33645377266     PISSN: 14677954     EISSN: 14677962     Source Type: Journal    
DOI: 10.1093/jcsl/kri023     Document Type: Review

References (123)

1. This article does not address the period before the adoption of Resolution 1546 characterised by the CPAs occupation of Iraq. On this period, the literature is, however, abundant: On Resolution 1483 and, in particular, the activity of the CPA see, among others, Gregory H. Fox, 'The Occupation of Iraq', (2005) 36 Georgetown Journal of International Law 195-297.
2. On Resolution 1483 and the law of occupation see, among others, Alexander Orakhelashvili, 'The Post-War Settlement in Iraq: The UN Security Council Resolution 1483 (2003) and General International Law', (2003) 8(2) JCSL 307-314
3. Massimo Starita, 'L' occupation de l'Iraq: Le Conseil de Sécurité, le droit de la guerra et le droit des peoples à disposer d'eux měmes', (2004) 108 Revue générale de droit international public 883-916
4. and J. Scheffer, 'Beyond Occupation Law', (2003) 97 AJIL 842-860.
5. On the legal issues arising under the CPAs occupation and in particular the problem of reconciling respect for Iraq's sovereignty and the quest for reconstruction and transformation, which albeit in the context of Resolution 1546, is also touched upon in this article, see Conor McCarthy, 'The Paradox of the International Law of Military Occupation: Sovereignty and the Reformation of Iraq', (2005) 10(1) JCSL 43-74
6. and Kaiyan Hom Kaikobad, 'Problems of Belligerent Occupation: The scope of powers exercised by the Coalition Provisional Authority in Iraq, April/May 2003-June 2004', (2005) 54(1) International and Comparative Law Quarterly 253-264.
7. Last but not least, on the applicable international humanitarian law before and after Resolution 1546, see Knut Dorman & Laurent Colassis, 'International Humanitarian Law in the Iraqi Conflict', (2004) 47 German Yearbook of International Law 292-342.
8. SC Res. 1546, 8 June 2004.
9. UN doc. S/PV 4987, 8 June 2004, p. 4.
10. According to an estimate, the size of Zarqawi's movement was less than a thousand. See Anthony H. Cordesman, 'The Developing Iraqi Insurgency: Status at the End-2004'. Available at .
11. In July 2004, the core of the 'insurgents' amounted to at least 12000-16000, and they were mainly Iraqi and Iraqi Sunni Arab. See Cordesman, loc. cit., fn. 12, p. 4.
12. UN doc. S/2003/538, 8 May 2003. Available at .
13. Bremer and the CPA replaced the largely ineffective US Department of Defense's Office of Reconstruction and Humanitarian Assistance which had been led by a retired US general, Jay M. Garner.
14. SC Res. 1483,22 May 2003, p. 2.
15. Ibid., p. 4.
16. Ibid., p. 8.
17. Ibid., p. 9.
18. See Section 1(2) of CPA Regulation 1, 13 July 2003. Available at .
19. See CPA Website at .
20. The Iraqi Governing Council included thirteen Shiites, five Sunnis, five Kurds, one Christian and one Turkoman. Available at .
21. According to Regulation 6, the CPA recognised the Governing Council, and the CPA and ICG were to consult each other. Regulation 6 is available at the CPAs Website.
22. Diamond Larry, 'What went wrong in Iraq', (2004) 83 Foreign Affairs 34.
23. SC Res. 1500, 14 August 2003. The mandate of UNAMI was subsequently extended until August 2005 by SC Res. 1557, 12 August 2004.
24. SC Res. 1511, 16 October 2003, p. 4.
25. Ibid., p. 6.
26. Ibid., p. 7.
27. Ibid., p. 13.
28. Agreement on Political Process, 15 November 2003. Available at .
29. 'The Political Transition in Iraq: Report of the Fact-Finding Mission', UN doc. S/2004/140, 23 February 2004, p. 50.
30. Ibid., p. 45.
31. Ibid.,
32. Annex 1. Notably, in a letter addressed to Brahimi, the office of Grand Ayatollah Ali Sistani threatened to withhold co-operation with the United Nations if the TAL were to be endorsed by the Security Council and said that flaws in the constitution 'will lead to a dead end and bring the country into an unstable situation and perhaps lead to its partition and division'. See Anthony Shadid and Colum Lynch, 'Shiite Cleric Threatens to Shun UN Envoys in Iraq', Washington Post, 23 March 2004. Available at .
33. UN doc. S/PV/4982, 3 June 2004, p. 3.
34. Ibid.
35. Ibid., p. 6.
36. Op. cit., fn. 2, Annex, p. 8.
37. Ibid., Annex, p. 10.
38. Letter dated 7 June 2004 from the Secretary-General to the President of the Security Council, S/2004/461, 7 June 2004, p. 2.
39. Ibid., pp. 3-7.
40. Op. cit., fn. 2, p. 9.
41. Ibid., pmbl.
42. Article 42 (paragraph 1) of the Hague Regulations reads that 'Territory is considered occupied when it is actually placed under the authority of the hostile army'.
43. Christopher J. Le Mon, 'Legality of a Request by the Interim Government for the Continued Presence of the United States Military Forces', (2004) ASIL Insights. Available at .
44. This information is available on the Website of the Ministry of Foreign Affairs of Iraq at .
45. Notably, the opening statements at the 59th General Assembly by Brazil, Canada, China, France, Germany, India, Israel, Italy, Romania, Russian Federation, Spain, United Arab Emirates, United Kingdom do not make any reference to the new government of Iraq. On the other hand, the statements made by the US and Australia do. The latter, for instance, stated that 'we cannot allow terrorists to disrupt the democratic process in Iraq. Prime Minister Allawi has emphasized his Government's determination to hold elections in January 2005'. The speeches are available at .
46. Loc. cit., fn. 37.
47. On the idea of devolving power to the Interim Iraqi Government, see S. Chesterman, 'Occupation as Liberation: International Humanitarian Law and Regime Change', (2004) 18 Ethics and International Affairs 63-64.
48. Sir Robert Jennings & Sir Arthur Watts, Oppenheim's International Law (1992) 122.
49. In this regard, Professor Benedetto Conforti wrote 'This time, the mandate of the Multinational Force will be reviewed after twelve months from the date of the resolution and will terminate earlier at the request of the Interim Government of Iraq (para.12 of the res.) a Government installed on June 2004 - and whose true independence from the multinational force could be called into question!'. Benedetto Conforti, The Law and Practice of the United Nations (3rd edn., 2005) 215.
50. 'Interim Prime Minister Named in Iraq', 28 May 2004. Available at .
51. In his article in Foreign Affairs, Larry Diamond says that 'During its tenure, it was not uncommon for the majority of the council [IGC] to be out of the country at any given time. Most Iraqis never saw any of the council members. As a group, the GC did not distinguish itself'. Op. cit., fn. 16, p. 46.
52. Op. cit., fn. 23, p. 9.
53. Op. cit., fn. 3, p. 2.
54. Paragraph 13 of Resolution 1511, in relevant part reads, 'Determines that the provision of security and stability is to the successful completion of the political process ... and authorizes a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq'.
55. Op. cit., fn. 2, p. 31.
56. Ibid., p. 12.
57. Ibid., p. 1.
58. Chesterman, loc. cit, fn. 40, p. 158.
59. R. Higgins, The Development of International Law Through the Political Organs of the United Nations (1963).
60. For a differing interpretation of the role of the Security Council and the relationship between the directives of the Security Council and various branches of international law, see S. Ratner, 'Foreign Occupation and International Territorial Administration: The Challenges of Convergence', (2005) 16 EJIL 707-711.
61. On the principle of self-determination, albeit mainly in the context of Resolution 1483, Orakhelashvili, op. cit., fn. 1, pp. 312-313
62. and Starita, op. cit., fn. 1, pp. 903-915.
63. Professor Nigel White has written that '[Resolution 1483] and subsequent resolutions on the subject indicate that the process by which the Iraqi people realize their internal rights of self-determination is by free and fair elections' and noted that 'United Nations' consistent promotion of democracy since the early 1990s in those members states requesting its assistance has been based on the expression of the will of the people in free and fair elections'. Nigel White, 'The Will and Authority of the Security Council after Iraq', (2004) 17 Leiden Journal of International Law 653-654. It is also in the light of the truth of these considerations that this article questions the opportunity and legitimacy of the Interim Iraqi Government.
64. T. Franck, Recourse to Force (2002) 70-71.
65. Higgins, op. lit., fn. 52, p. 159.
66. Ibid., p. 146.
67. Ibid., p. 147.
68. Ibid., p. 146.
69. E. Benvenisti, The International Law of Occupation (1993) 165.
70. Higgins, op. cit., fn. 56, p. 150.
71. Ibid., p. 162.
72. GA Res. 462, 9 January 1980.
73. Higgins, op. cit., fn. 56, p. 93.
74. Ibid., p. 107.
75. Christopher Le Mon, 'Unilateral Intervention by Invitation in Civil Wars: The Effective Control Test Tested', (2003) NYUJIL & Pol. 741.
76. See SC Res. 940, 31 July 1994 (Haiti-President Aristide)
77. and SC Res. 1132, 8 October 1997 (Sierra Leone, President Kabbah).
78. SC Res. 82, 25 June 1950.
79. For a broader analysis, see Simon Chesterman, You, the People: The United Nations, Transitional Administration, and State-Building (2004) 88-92.
80. On the topic of whether the occupation of Iraq ended with Resolution 1546, see the analysis of A. Roberts, 'The End of Occupation: Iraq 2004', (2005) 54 ICLQ 27-48
81. and Marco Sassoli, 'Legislation and Maintenance of Public Order and Civil Life by Occupying Powers', (2005) 16 EJIL 661-694.
82. J. S. Pictet (ed.), Commentary to the IV Geneva Convention Relative to the Protections of Civilian Persons in Time of War (1958) 62.
83. For an idea of the extent of the insurgency, see Robert Fisk, 'The Government Rules Only in the Capital', The Independent, 22 July 2004. Available at .
84. See, in this regard, Giorgio Balladore Pallieri, Diritto Bellico (1954) 305.
85. Gerard Von Glahn, The Law of Occupation (1957) 28-29.
86. For a description of the position of Allawi with regard to the Iraqi people and his dependence on the American forces for his security, see John F. Burns, 'Baghdad's Strong Man Struggles to Keep His Grip', New York Times, 19 September 2004, p. 5.
87. On this issue, see Dorman & Colassis, op. cit., fn. 1, pp. 307-311.
88. Op. cit., fn. 2, p. 10.
89. See text of order 17 at .
90. Robin Wright, 'US Immunity in Iraq will go Beyond June 30', Washington Post, 24 June 2004. Available at .
91. 'Who are the Insurgents and How can they be Defeated', The Economist, 10 July 2004, p. 53.
92. 'Trying to Balance the Factions', The Economist, 24 July 2004.
93. 'High Noon in Najaf', The Economist, 14 August 2004, p. 10.
94. Rajiv Chandrasekaran, 'Iraqi Premier Meets Militants, Pushes Amnesty', Washington Post, 29 August 2004.
95. Donald Macintyre, 'Allawi lets US Forces Stay in Najaf Until Iraqis take Control', The Independent, 29 August 2004. Available at .
96. Dexter Filkins, 'Militia Leaders Charging Betrayal by Iraqi premier', New York Times, 2 September 2004. Available at .
97. Richard A. Oppel Jr. & Dexter Filkins, 'Iraqi Officials Plan to Extend Buying of Arms', New York Times, 18 October 2004. Available at .
98. Nadia Abou El-Magd, 'Official: Iraq to Free Al-Sadr Followers', Reuters, 10 October 2004. Available at .
99. Rajiv Chandrasekaran, 'Marines Bide Their Time in Insurgent-Held Fallujah', Washington Post, 21 September 2004. Available at .
100. Pamela Hess, 'U.S. Allawi Delaying Fallujah Offensive', Washington Times, 12 October 2004. Available at .
101. Associated Press, 'Allawi wows to Clear Fallujah of Militants', New York Times, 31 October 2004.
102. Report of the Secretary-General pursuant to paragraph 30 of Resolution 1546 (2004), S/2004/959, 8 December 2004, p. 4.
103. Ibid., p. 5.
104. 'Sunni Party Leaves Iraqi Government Over Falluja Attack', New York Times, 9 November 2004. Available at .
105. Report of the Secretary-General pursuant to paragraph 24 of Resolution 1483 (2003) and paragraph 12 of Resolution 1511 (2003), S/2004/625, 5 August 2004.
106. Ibid., pp. 5-7.
107. Ibid., pp. 10-13.
108. Report of the Secretary-General pursuant to paragraph 30 of Resolution 1546 (2004), S/2004/710, 3 September 2004, p. 25.
109. Report of the Secretary-General pursuant to paragraph 30 of Resolution 1546 (2004), S/2004/959, 8 December 2004, p. 21.
110. Ibid., p. 24.
111. Loc. cit., fn. 97.
112. Op. cit., fn. 98, p. 22.
113. Op. cit., fn. 2, p. 10.
114. See, in particular, Eric Schmitt, 'Effort to Train New Iraqi Army is Facing Delays', New York Times, 20 September 2004.
115. Op. cit., fn. 97, p. 7.
116. Op. cit., fn. 98, p. 57.
117. Iraq Situation Report, UNAMI, 16-28 November 2004.
118. Audrey Gillan, 'More UK Soldiers Linked to Iraq Abuse', The Guardian, 28 January 2005; and report by Human Rights Watch, 'The New Iraq? Torture and III-Treatment of Detainees in Iraqi Custody'.
119. Andrew Buncombe, 'US Soldiers would Kill Civilians, says Marine', The Independent, 9 December 2004
120. Karl Vick, 'Hearing on Killings Shed Light on Troops Conduct', Washington Post, 19 October 2004
121. and Ramadi & Tal Afar, 'When Deadly Force Bumps into Hearts and Minds', The Economist, 2 January 2005.
122. Op. cit., fn. 2, p. 6.
123. Richard Baxter, 'The Duty of Obedience to the Belligerent Occupant', (1950) 27 BYBIL 266.