The Iraqi High Criminal Court: Controversy and contributions

International Review of the Red Cross

Volumn 88, Issue , 2006, Pages 399-425

  Newton, Michael A ^a  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

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EID: 84929928207     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383106000592     Document Type: Article

References (154)

1. Opening Statement to the International Military Tribunal at Nuremberg, Trial of the Major War Criminals before the International Military Tribunal, Vol. II, 1947, p. 98.
2. B. Crocker, ‘Iraq: Going it alone, gone wrong’, in R. C. Orr (ed.), Winning the Peace: An American Strategy for Post-Conflict Reconstruction, Center for Strategic and International Studies, 2004, p. 281.
3. For a description of the broader mood of the Iraqi people see A. Barnard and M. Kranish, ‘Baghdad falls: Euphoric Iraqis topple symbols; US warns that war not over’, Boston Globe, 10 April 2003, art. 1.
4. Non-governmental organizations and the US Department of State have catalogued a panoply of human rights abuses under Saddam's rule in Iraq, inter alia the deaths of 50,000 to 100,000 Kurds, the destruction of 2,000 Kurdish villages, the internal displacement of 900,000 Iraqi civilians, summary executions of over 10,000 political opponents, beheadings, rapes, enforced prostitution and the intentional deprivation of food to the civilian population. ‘Past repression and atrocities by Saddam Hussein's regime’, White House Fact Sheet, Washington D.C. 4 April 2003, available at .
5. Report to the President by Mr. Justice Jackson (7 Oct. 1946) in American Journal of International Law, No. 49, 1955, pp. 44, 49
6. reprinted in Report of RH Jackson United States Representative to the International Conference on Military Tribunals, Department of State Publication 3080, 1949, pp. 432, 438. (Justice Jackson also wrote that ‘We have documented from German sources the Nazi aggressions, persecutions, and atrocities with such authenticity and in such detail that there can be no responsible denial of these crimes in the future and no tradition of martyrdom of the Nazi leaders can arise among informed people.’)
7. M. P. Scharf and P. R. Williams, ‘The functions of justice and anti-justice in the peacebuilding process’, Case Western Reserve Journal of International Law, No. 35 (2003), pp. 161, 175.
8. See M. A. Newton, ‘Harmony or hegemony? The American military role in the pursuit of justice’, Connecticut Journal of International Law, No. 19 (2004), p. 231.
9. Interview with David Hodgkinson, Office of Human Rights and Transitional Justice, Coalition Provisional Authority, Baghdad, 11 Dec. 2003.
10. IHT Statute, above note 2. The Statute was officially published in the Official Gazette, No. 4006, Ramadan 14, 1426 Hijri, 47th year.
11. M.C. Bassiouni, Introduction to International Criminal Law, Transnational Publishers, New York, 2003, p. 703.
12. International Covenant on Civil and Political Rights 1966, Article 14 (1), entered into force 23 March 1976.
13. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)
14. ICCPR, Article 14 (1)
15. European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) (1953), Art 6 (1)
16. the American Convention on Human Rights (ACHR) (22 Nov 2 1969), Article 8 (1).
17. Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949 (Fourth Geneva Convention), Article 147
18. Geneva Convention relative to the Treatment of Prisoners of War 1949 (Third Geneva Convention), Article 130.
19. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts 1977 (Protocol I), Art 75 (4).
20. M. A. Newton, ‘Comparative complementarity: Domestic jurisdiction consistent with the Rome Statute of the International Criminal Court’, Military Law Review, No. 167 (March 2001), p. 20.
21. A. Cassese, International Criminal Law, Oxford University Press, 2003, p. 18.
22. See generally P. R. Williams and M. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia, Rowman & Littlefield, Lanham, 2002.
23. The Elements of Crimes were adopted by consensus and included compromise language in the introduction to Article 7 specifying that the crimes against humanity provisions relate to ‘international criminal law’ and as such ‘should be strictly construed’, UN Doc. PCNICC/2000/INF/3/Add.2 (2000).
24. A-G of Israel v. Eichmann-Supreme Court Opinion, reprinted in 36 ILR 18, 26 (Isr Dist Ct Jerusalem 1961)
25. aff'd 36 ILR 277 (Isr Sup Ct 1962) (international law is ‘in the absence of an International Court, in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and to bring the criminals to trial’).
26. The Moscow Declaration, signed during the Moscow Conference in 1943 by the United States, the United Kingdom and the USSR, specifically stated that German criminals were to be ‘sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free governments which will be erected therein’. The international forum was limited only to those offences where a single country had no greater grounds for claiming jurisdiction than another country. IX Department of State Bulletin, No. 228, p. 310
27. reprinted in Report of RH Jackson United States Representative to the International Conference on Military Tribunals, Department of State Publication, 1945, p. 11.
28. The Moscow Declaration was actually issued to the press on 1 November 1943. For an account of the political and legal manoeuvring behind the effort to put this stated war aim into practice, see P. Maguire, Law and War: An American Story, Columbia University Press, New York, 2000, pp. 85–110.
29. Justice Jackson accepted the fact that the International Military Tribunal was merely a necessary alternative to domestic courts for prosecuting the ‘symbols of fierce nationalism and of militarism’, and declared that any defendants who succeeded in ‘escaping the condemnation of this Tribunal … will be delivered up to our continental Allies’. Opening Statement to the International Military Tribunal at Nuremberg, above note 1, pp. 99–100.
30. See Regulations Governing the Trial of War Criminals, General Headquarters, United States Army Pacific, AG 000.5 (24 Sept. 1945) [5 (b)] (‘Persons whose offenses have a particular geographical location outside Japan may be returned to the scene of their crimes for trial by competent military or civil tribunals of the local jurisdiction’) (copy on file with author).
31. Report of the Secretary-General, ‘The rule of law and transitional justice in conflict and post-conflict societies’, 23 Aug 2004, UN Doc. S/2004/616 [17], available at .
32. The necessity for states to use domestic criminal fora and penal authority to enforce norms developed in binding international agreements is perhaps one of the most consistent features of the body of international criminal law. See e.g. Convention on the Prevention and Punishment of the Crime of Genocide, US Naval War College, Newport, Rhode Island, 1951 (Article V obligates High Contracting Parties to enact the necessary domestic legislation to give effect to the criminal provisions of the Convention). Of particular note in the post-9/11 world, the imposition of criminal accountability for acts of terrorism is exclusively reserved to the courts of sovereign states through the welter of treaties created by sovereign states.
33. M. A. Newton, ‘International criminal law aspects of the war against terrorism’, in F. Borch and P. Wilson (eds.), International Law and the War On Terror, US Naval War College International Law Studies No. 79, 2003, p. 323
34. M. C. Bassiouni, International Terrorism: Multilateral Conventions (1937–2001), Transnational Publishers, New York, 2001.
35. M. P. Scharf, ‘Is it international enough? A critique of the Iraqi Special Tribunal in light of the goals of international Justice’, Journal of International Criminal Justice, No. 2, 2004, pp. 330, 331
36. H. Weinstein, ‘Law experts divided over legitimacy of tribunal’, Los Angeles Times, 10 October 2005.
37. 2207 Report on Iraq Relief and Reconstruction: Quarterly Update to Congress, Bureau of Resource Management, January 2006, pp. 32–4, available at . These funds support, inter alia, the work of the Regime Crimes Liaison Office, whose staff have played a leading role in supporting Tribunal investigations and operations, the provision of security to both court personnel and defence attorneys, exhumation of mass graves, upgraded facilities for storing and handling evidence, the building of courtrooms, the conduct of investigations, including interrogations, and the training of IST staff.
38. ECHR, Findlay v. UK (1997) ECHR Series A No. 115–116
39. ECHR, Benthem Case (1985) ECHR Series A No. 97, 615
40. ECHR, Piersack Case (1981) ECHR Series No. 53, 616.
41. G. Robertson, The Tyrannicide Brief, Chatto & Windus, London, 2005, p. 6.
42. J. E. Persico, Infamy on Trial, Penguin, Harmondsworth, 1994, p. 83.
43. Statement of Slobodan Milošević on the Illegitimacy of the Hague Tribunal, 30 Aug. 2001, available at .
44. R. McCarthy, ‘I am Saddam Hussein, the President of Iraq’, Guardian, 2 July 2004.
45. R. Cornwell, ‘Saddam in the dock: Listen to his victims, not Saddam, says White House’, Independent, 2 July 2004 (reporting that Hussein stated, ‘This is all theatre,’ at his first pre-trial hearing). Available at .
46. ‘Defiant Saddam rejects court, charges’, CNN.com, 1 July 2004, available at (last visited on 3 March 2006). Lawyers hired by Saddam Hussein's wife rapidly played the legitimacy card by claiming that the IST could not impose any punishments lawfully because it lacked legitimacy, or lawful creation, and accordingly its operation violated core human rights norms.
47. R. McCarthy and J. Steele, ‘Saddam on trial: Legitimacy and neutrality of court will be challenged’, Guardian, 2 July 2004, available at .
48. ‘Milošević challenges the legality of the UN tribunal’, Online NewsHour, 13 Feb. 2002, available at .
49. A Watts, ‘The legal position in international law of heads of state, heads of government and foreign ministers’, Recueil des Cours de l'Academie de droit international de La Haye, No. 3, 1994, p. 82.
50. Prosecutorv. Milošević, Case No. IT-99–37-PT, Decision on Preliminary Motion, para. 28 (8 Nov. 2001).
51. 1970 Interim Constitution of Iraq, Article 40, reprinted in Iraqi Laws Referenced in the Statute of the Iraqi Special Tribunal, US Institute of Peace, 2004.
52. Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Statute), 17 July 1998
53. UN Doc. A/Conf.183/9 Article 27, repr. in 37 ILM 999 (1998).
54. IHT Statute, above note 2, Article 15 (Third).
55. IHT Statute, Art 33.
56. Prosecutor v. Furundzija, Case No. IT-95–17/1-T, Trial Judgment, para. 140 (10 Dec. 1998).
57. A. Tusa and J. Tusa, The Nuremberg Trial, Atheneum Press, New York, 1983, p. 69.
58. For a summary of state practice implementing the comparable criminal provisions in the Rome Statute, see M. C. Bassiouni, The Legislative History of the International Criminal Court: Introduction, Analysis, and Integrated Text, Transnational Publishers, Ardsley, New York 2005, Vol. I, pp. 188–191.
59. Building the Iraqi Special Tribunal: Lessons from Experiences in International Criminal Justice, US Institute of Peace Special Report 122, p. 9, available at .
60. UNSC Res. 808 (22 Feb 1993).
61. The SCSL was established by a treaty between the government of Sierra Leone and the United Nations to prosecute those with the ‘greatest responsibility’ for violations of international humanitarian law: Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (UN Sierra Leone 16 Jan. 2002), available at .
62. The Appeals Chamber articulated the SCSL's legal basis in Prosecutor v. Charles Taylor (Decision on Immunity from Jurisdiction), SCSL-2003–01-I, 31 May 2004, available at .
63. The Appeals Chamber stated, ‘It was clear that the power of the Security Counsel to enter into an agreement for the establishment of the court was derived from the Charter of the United Nations both in regard to the general purposes of the United Nations as expressed in Article 1 of the Charter and the specific powers of the Security Council in Articles 39 and 41. These powers are wide enough to empower the Security Council to initiate, as it did by Resolution 1315, the establishment of the Special Court by Agreement with Sierra Leone,’ Decision on Immunity from Jurisdiction, p. 18.
64. Rome Statute, above note 38, Article 69 (3), repr. in 37 ILM 999 (1998).
65. Law on Criminal Proceedings with Amendments, Number 23 of 1971, Decree No. 230. Issued by the Revolutionary Command Council (hereinafter Iraqi Law No. 23 on Criminal Proceedings), 14 Feb. 1971, para. 203
66. reprinted in Iraqi Laws Referenced in the Statute of the Iraqi Special Tribunal, US Institute of Peace, 2004 [203].
67. For a summary of state practice and its implementation in treaty norms and military manuals around the world, see J.-M. Henkaerts and L. Doswald-Beck, Customary International Humanitarian Law (hereinafter ICRC Study), ICRC/Cambridge University Press, 2005, Vol. I, pp. 352–375.
68. Fourth Geneva Convention, Article 3.
69. ICRC Study, above note 52, p. 355.
70. IHT Statute, above note 2, Article 16.
71. IHT Statute, Article17 (First).
72. IHT Statute, Article17 (Second).
73. I. Müller, Hitler's Justice: The Courts of the Third Reich, Harvard University Press, 1991, pp. 153–173.
74. R. Chandrasekaran, ‘Tribunal planners hope to start trials by spring’, Washington Post, 16 Dec. 2003, Art 1.
75. IST Statute, above note 9, Article 1 (a).
76. ICCPR, above note 12, Article 14 (1).
77. General Comment on Article 14, HR Comm 43rd Sess. Supp. No. 40 [4], UN Doc. A/43/40
78. Cariboni v. Uruguay HR Comm 159/83 39th Sess. Supp. No. 40 (1988) UN Doc. A/39/40. The Inter-American Commission has taken a similar approach.
79. See e.g. Inter-American Court of Human Rights Annual Report (1972), OEA/Ser. P, AG/doc. 305/73 rev. 1 (14 March 1973) 1
80. Inter-American Court of Human Rights Annual Report (1973), OEA/Ser. P, AG/doc 409-174 (5 March 1974), 2–4.
81. M. P. Scharf, Balkan Justice: The Story behind the First International War Crimes Trial since Nuremberg, Carolina Academic Press, 1997, pp. 104–6.
82. Prosecutor v. Duško Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), 2 Oct. 1995, 45 (Dule case), available at .
83. IHT Statute, above note 2, Article 21 (Second).
84. IHT Statute, Article 21 (Third).
85. IHT Statute, Article 23 (Second).
86. Law of Judicial Organization, Number 160 of 1979, Resolution No. 1724 issued by the Revolutionary Command Council (12 Oct. 1979), Article 7
87. published by the Ministry of Justice, Official Gazette of the Republic of Iraq, Vol. 23 No. 27, 2 (2 July 1980)
88. reprinted in Iraqi Laws Referenced in the Statute of the Iraqi Special Tribunal, US Institute of Peace, 2004.
89. The Iraqi lawyers selected this term rather than ‘perpetrator’ that was used in the International Criminal Court Elements of Crimes. There was extensive debate during the drafting of the Elements of Crimes for the International Criminal Court over the relative merits of the terms ‘perpetrator’ or ‘accused’. Though some delegations were concerned that the term ‘perpetrator’ would undermine the presumption of innocence, the delegates to the Preparatory Commission (PrepCom) ultimately agreed to use the former in the Elements after including a comment in the introductory chapeau that ‘the term ‘perpetrator’ is neutral as to guilt or innocence’. See UN Doc. PCNICC/2000/INF/3/Add.2 (2000), in K. Dormann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2002, p. 14.
90. Coalition Provisional Authority Order No. 48: Delegation of Authority regarding an Iraqi Special Tribunal, available at .
91. Revised IST Rules, above note 49), Rule 27. This rule should be understood in light of the requirement that the investigative judge may not question the witness or suspect ‘in a declaratory or insinuating manner’ or direct any sign or gesture ‘that would tend to intimidate, confuse or distress him’. Iraqi Law No. 23 on Criminal Proceedings, above note 50), para. 64 A.
92. Iraqi Law No. 23 on Criminal Proceedings, above note 50). For example, Saddam was questioned by the investigative judge in the presence of defence counsel Khalil Abd Salih Al-Dulaimi on 12 June 2005 regarding the Dujail massacre. Available at .
93. Iraqi Law No. 23 on Criminal Proceedings, para. 128.
94. See e.g. Rule 63 of the ICTY Rules of Evidence and Procedure, available at , which reads as follows: Questioning of Accused (Adopted 11 Feb. 1994, amended 3 Dec. 1996) (A) Questioning by the Prosecutor of an accused, including after the initial appearance, shall not proceed without the presence of counsel unless the accused has voluntarily and expressly agreed to proceed without counsel present. If the accused subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the accused's counsel is present. (B) The questioning, including any waiver of the right to counsel, shall be audio-recorded or video-recorded in accordance with the procedure provided for in Rule 43. The Prosecutor shall at the beginning of the questioning caution the accused in accordance with Rule 42(A)(iii).
95. 1970 Interim Constitution of Iraq, above note 37, Article 20. The Iraqi Law on Criminal Proceedings makes clear that the judge must release an accused if ‘there is insufficient evidence for conviction’. Iraqi Law No. 23 on Criminal Proceedings, above note 50, para. 203.
96. Iraqi Law No. 23 on Criminal Proceedings. (emphasis added).
97. Iraqi Law No. 23 on Criminal Proceedings, Rule 48 (C).
98. For example, repeated abuses by counsel were responsible for the ICTY shift from paying hourly defence fees to a flat fee system. Bassiouni, above note 44, p. 6.
99. Iraqi Law No. 23 on Criminal Proceedings, above note 50, para. 154.
100. IHT Statute, above note 2, Article 21(b).
101. See in general Regulations annexed to Hague Convention IV of 1907 respecting the Laws and Customs of War on Land (hereinafter 1907 Hague Regulations), entered into force 26 Jan. 1910
102. repr. in A. Roberts and R. Guelff (eds.), Documentation on the Laws of War, 3rd edn, Oxford University Press, Oxford, 2000, p. 73
103. Fourth Geneva Convention, Articles 47–78.
104. 1907 Hague Regulations, Fourth Geneva Convention, Article 42.
105. See also The Law of Land Warfare, Department of the Army Field Manual 27–10, Washington, 1956, para. 351 [FM 27–10].The entire Chapter 6 of the US Army Field Manual relating to the law of armed conflict is devoted to explaining the text of the law on occupation and US occupation policy.
106. The Manual of the Law of Armed Conflict, UK Ministry of Defence, Oxford University Press, Oxford, 2004, p. 275, para. 11.3.
107. US Army Field Manual 27–10, above note 86, para. 352.
108. Protocol I, above note 15, Article 4. The US policy in this regard is clear that occupation confers only the ‘means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty.’ US Army Field Manual, above note 86, para. 358.
109. 1907 Hague Regulations, above note 85, Article 43 (emphasis added).
110. Hague Regulations. The conceptual limitations of foreign occupation also warranted a temporal limitation built into the 1949 Geneva Conventions that the general application of the law of occupation ‘shall cease one year after the general close of military operations’, Fourth Geneva Convention, Article 6.
111. Based on pure pragmatism, Article 6 of the Fourth Geneva Convention does permit the application of a broader range of specific treaty provisions ‘for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory’, Hague Regulations. The 1977 Protocols eliminated the patchwork approach to treaty protections with the simple declaration that ‘the application of the Conventions and of this Protocol shall cease, in the territory of Parties to the conflict, on the general close of military operations and, in the case of occupied territories, on the termination of the occupation’, Protocol I, above note 15), Article 3(b).
112. UNSC Res. 827 (25 May 1993).
113. ‘This International Tribunal is not a constitutional court set up to scrutinize the actions of organs of the United Nations. It is, on the contrary, a criminal tribunal with clearly defined powers, involving a quite specific and limited criminal jurisdiction. If it is to confine its adjudications to those specific limits, it will have no authority to investigate the legality of its creation by the Security Council.’ Prosecutor v. Tadic (Decision on the Defence Motion on Jurisdiction), IT-94–1, 10 August 1995, available at .
114. Fourth Geneva Convention, Articles 68 and 78 (permitting detention of civilians for ‘imperative reasons of security’).
115. See also Human Rights Watch, A Face and a Name: Civilian Victims of Insurgent Groups in Iraq, Vol. 17, No. 9 (E), October 2005 (finding that the insurgents in Iraq who are indiscriminately targeting civilians and Western contractors are not entitled under the Geneva Conventions to conduct hostilities and are thus committing war crimes).
116. Fourth Geneva Convention, Article 42.
117. Prosecutor v. Delalić, Mucić, Delić, and Land$o (Čelebići) (Judgment), IT-96–21-T, 20 Feb. 2001.
118. Fourth Geneva Convention, Article 47.
119. J. S. Pictet, The Principles of International Humanitarian Law, ICRC, Geneva, 1967, p. 50.
120. US Army Field Manual, above note 86, para. 370.
121. Fourth Geneva Convention, Article 54: ‘The Occupying Power may not alter the status of public officials or judges in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against them, should they abstain from fulfilling their functions for reasons of conscience.’
122. 1907 Hague Regulations, above note 85, Article 43.
123. Y. Dinstein, ‘Legislation under Article 43 of the Hague Regulations: Belligerent occupation and peacebuilding’, No. 1, Fall 2004, Program on Humanitarian Policy and Conflict Research, Harvard University Occasional Paper Series 8.
124. See also E. Schwenk, ‘Legislative powers of the military occupant under Article 43, Hague Regulations’, Yale Law Journal, No. 54 (1945), p. 393.
125. L. C. Green, The Contemporary Law of Armed Conflict, Juris, Huntingdon, NY, 1999, p. 259.
126. The Contemporary Law of Armed Conflict.
127. M. Greenspan, The Modern Law of Land Warfare, University of California Press, Berkeley, 1959, pp. 223–7.
128. For example, the oath of the Nazi party was: ‘I owe inviolable fidelity to Adolf Hitler; I vow absolute obedience to him and to the leaders he designates for me.’ D. A. Sprecher, Inside the Nuremberg Trial: A Prosecutor's Comprehensive Account, University Press of America, Lanham, 1999, pp. 1037–1038.
129. Accordingly, power resided in Hitler, from whom subordinates derived absolute authority in hierarchical order. This absolute and unconditional obedience to the superior in all areas of public and private life led in Justice Jackson's famous words to ‘a National Socialist despotism equaled only by the dynasties of the ancient East’. Opening Statement to the International Military Tribunal at Nuremberg, Trial of the Major War Criminals before the International Military Tribunal, Vol. II, 1947, p. 100.
130. G. Schwarzenberger, The Law of Armed Conflict, Stevens, London, 1968, p. 194.
131. Vienna Convention on the Law of Treaties, Article 31(1), 27 January 1980, 1155 UNTS 331
132. reprinted in 8 ILM (1969).
133. The Manual of the Law of Armed Conflict, UK Ministry of Defence, Oxford University Press, Oxford 2004, p. 275 [11.56].
134. US doctrine states that the ‘occupant may alter, repeal, or suspend laws of the following types: a. Legislation constituting a threat to its security, such as laws relating to recruitment and the bearing of arms. b. Legislation dealing with political process, such as laws regarding the rights of suffrage and of assembly. c. Legislation the enforcement of which would be inconsistent with the duties of the occupant, such as laws establishing racial discrimination’. US Army Field Manual 27–30, above note 86), para. 371.
135. See Letter from the Permanent Representatives of the United Kingdom and the United States to the United Nations, addressed to the President of the Security Council, 8 May 2003, UN Doc. S/2003/538, available at .
136. SC Res. 1483, 22 May 2003, preamble.
137. General Eisenhower's Proclamation said, ‘Supreme legislative, judicial, and executive authority and powers within the occupied territory are vested in me as Supreme Commander of the Allied Forces and as Military Governor, and the Military Government is established to exercise these powers.’ Reprinted in Military Government Gazette, Germany, United States Zone, Office of Military Government for Germany (US 1 June 1946), 1 Issue A (copy on file with author).
138. The Fourth Geneva Convention recognizes the importance of individual rights enjoyed by the civilian population and the correlative duties of the occupier to that population. The structure of the Fourth Convention focused on the duties that an Occupying Power has towards the individual civilians and the overall societal structure rather than on the relations between the victorious sovereign and the defeated government. Under the rejected concept termed ‘debellatio’, the enemy was utterly defeated and accordingly the defeated state forfeited its legal personality and was absorbed into the sovereignty of the occupier. Greenspan, above note 107, pp. 600–1.
139. The successful negotiation of the Geneva Conventions in the aftermath of the Second World War marked the definitive rejection of the concept of debellatio, under which the occupier assumed full sovereignty over the civilians in the occupied territory. E. Benvenisti, The International Law of Occupation, Princeton University Press, Princeton, 1993, p. 92.
140. Debellatio ‘refers to a situation in which a party to a conflict has been totally defeated in war, its national institutions have disintegrated, and none of its allies continue militarily to challenge the enemy on its behalf’. The International Law of Occupation, p. 59.
141. SC Res. 1483, 22 May 2003, para. 5.
142. SC Res., preamble.
143. SC Res., para. 4.
144. Coalition Provisional Authority Order Number 7 (9 June 2003) Doc. No. CPA/MEM/9 (3 Jun 2003) [2] [3], available at (copy on file with author).
145. Coalition Provisional Authority Order Number 7.
146. Coalition Provisional Authority Memorandum Number 3 was revised on 27 June 2004, available at .
147. ICCPR, above note 12, Article 14 (describing analogous provisions derived from international human rights law).
148. See also US Army Field Manual 27–10, above note 86, para. 365.
149. US Army Field Manual.
150. US Army Field Manual 27–10, above note 86, para. 366 (further specifying that ‘Acts induced or compelled by the occupant are nonetheless its acts’).
151. J. Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, Vol. IV, Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, p. 274 (explaining the intended implementation of the provision in Article 47 that any change introduced to domestic institutions by the occupying power must protect the rights of the civilian population).
152. W. M. Hudson, ‘The US military government and the establishment of democratic reform, federalism, and constitutionalism during the occupation of Bavaria 1945–47’, 180 Military Law Review 115 (Summer 2004), p. 123.
153. For a detailed account of the Cold War politics and unravelling of wartime unity that doomed the effort to convene a second International Military Tribunal after the Second World War, see D. Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory, Oxford University Press, Oxford, 2001, pp. 28–37.
154. UN Secretary-General Kofi Annan, A new mindset for the United Nations, UN Doc. SG/SM/10325, available at .