Iraq – from Belligerent Occupation to Iraqi Exercise of Sovereignty: Foreign Power versus International Community Interference

In: Max Planck Yearbook of United Nations Law Online
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  • 1 I would like to thank M. Benzing, J. Friedrich and Dr. C. Philipp for their comments on an earlier draft, as well as J. Windsor for checking the language. The article was finished at the beginning of August 2005 before the new Constitution for Iraq was published.

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  • 1 On 1 May 2003 President Bush declared the end of "major" military opera- tions in Iraq. Some speculation developed from this wording. It has been argued that the President did not declare the end of the war so as not to be obliged to release the prisoners of war and to be further in the position to arrest people accused of war crimes, see in this respect, M. Hmond, "The Use of Force against Iraq: Occupation and Security Council Resolution 1483", Cornell lnt'l L. J. 36 (2004), 443 et seq. (444). This is not the case as will be shown below. The continuation of the period of belligerent occupa- tion depends upon whether the United States or rather the Coalition Mili- tary Forces exercise control over Iraq whereas the former government does not. In fact, the letter of 8 May 2003 of the Permanent Representatives of the United States and the United Kingdom, to which S/RES/1483 (2003) of 22 May 2003 refers, states: "... recognizing the specific authorities, respon- sibilities and obligations under applicable international law of these states as occupying powers under unified command".

  • 2 The war against Iraq, particularly the question whether it was legal under international law or, at least, legitimate has been extensively covered in lit- erature.

  • 3 See also The Manual of the Law of Armed Conflict, UK Ministry of De- fence, 2004, 274 et seq.; A. Roberts, "What is a Military Occupation?", BYIL 55 (1984), 249 et seq.; C. McCarthy, "The Paradox of the Interna- tional Law of Military Occupation: Sovereignty and the Reformation of Iraq", Journal of Conflict fr Security Law 10 (2005), 43 et seq. (45). 4 Belligerent occupation does not confer sovereignty upon the occupant, see McCarthy, see note 3, 49; on the historical development of this issue see R.R. Baxter, "The Duty of Obedience to a Belligerent Occupant", BYIL 27 (1950), 235 et seq.; M. Greenspan, The Modern Law of Land Warfare, 1959,217. 5 Annex to the Convention Respecting the Laws and Customs of War on Land of 18 October 1907 (authentic text French), reprinted in: D. Schindler/ J. Toman, The Laws of Armed Conflicts, 1988, 63 et seq. The In- ternational Military Tribunal of Nuremberg had stated that the Hague Regulations constituted customary international law, cf. Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, Vol. XXII, 497. 6 Article 154 Fourth Geneva Convention states that it complements the Hague Regulations. This is underlined by Greenspan, see note 4, 213 whereas H.P. Gasser in: D. Fleck (ed.), Handbook of Humanitarian Law in Armed Conflict, 1995, states that the dominant law is the Fourth Geneva Convention (241). For a comparison of the provisions of the Fourth Ge- neva Convention and of the Hague Regulations, see J. Pictet, Commentary IV Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, 1958, 614. 7 Protocol Additional to the Geneva Conventions of 12 August 1949, and re- lating to the Protection of Victims of International Armed Conflicts (Pro- tocol I), 8 June 1977, ILM 16 (1977), 1391 et seq. 8 Under the Fourth Geneva Convention the meaning of the notion of "oc- cupation'' is wider than under the Hague Regulations. According to article

  • 42 of the Hague Regulations it is essential that an occupied territory is "... actually placed under the authority of the hostile army", whereas under ar- ticle 2 (2) of the Fourth Geneva Convention the rules of belligerent occu- pation also apply in cases where the occupation meets no armed resistance. The broadened ambit of belligerent occupation means that there exists no intermediate period between what might be referred to as invasion phase and the inauguration of a stable military occupation. Also cases are covered where the occupation is not in fact the outcome of a military confrontation. 9 C. Greenwood, "The Administration of Occupied Territories in Interna- tional Law", in: E. Playfair (ed.), International Law and the Administration of Occupied Territories, 1992, 241 et seq. (243). 10 As to the application of general international human rights standards see J.A. Frowein, "The Relationship between Human Rights Regimes and Re- gimes of Belligerent Occupation", Isr. Y. B. Hum. Rts 28 (1998), 1 et seq. (9 et. seq.). He points out that international humanitarian law is to be consid- ered as lex specialis. A detailed analysis is contained in Y Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2004, 20 et seq. He emphasizes, though, that the norms of international humanitarian law protecting human rights address states as beneficiaries rather than individuals. One has to take into account though that the U.S. Government seems to advocate the non-applicability of human rights trea- ties to U.S. forces abroad, see the Report of the U.S. Defense Department, Working Group on Detainee Interrogations in the Global War on Terror- ism : Assessment of Legal, Historical, Policy and Operational Considera- tions, of 6 March 2003. The U.S. Government advances two main argu- ments to endorse its position, namely that international human rights trea- ties do not apply outside the United States and that, as far as the Conven- tion Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment is concerned for the United States, according to its under-

  • standing issued upon ratification, torture is meant to embrace only any act inflicting severe physical or mental pain that is specifically intended to cause such pain or suffering. As far as the first argument is concerned it has to be noted that the Human Rights Committee has consistently held that pursuant to article 2 para. 1 of the Covenant on Civil and Political Rights the rights enshrined must be respected in any place, where the respective government effectively exercises its jurisdiction. As for the second argu- ment one cannot but state that such understanding runs counter to object and purpose of the International Covenant on Civil and Political Rights, as for details see A. Cassese, "Are International Human Rights Treaties and Customary Rules on Torture Binding upon U.S. Troops in Iraq?", Journal of International Criminal Justice 2 (2004), 872 et seq. Finally, the U.S. Gov- ernment should take into account that the International Criminal Tribunal for the Former Yugoslavia held in the Furundzija case that the prohibition of torture contained in international humanitarian law constitutes jus co- gens, ICTY, Trial Chamber, Prosecutor v. Furundzija, Judgment (1998), Case IT-95-17/1, ILR 121, 213 et seq. (254-257, 260 (1)). 11 1 See article 42 Hague Regulations; this provision is supplemented by article 27 of the Fourth Geneva Convention. The Proclamation of occupation by the United States is only relevant to the extent that the population of the areas under the effective authority of the United States became aware of the existence of occupation. Such proclamation can neither bring occupation into existence nor postpone the applicability of the international humani- tarian law rules on belligerent occupation. A. Roberts, "The End of Occu- pation : Iraq 2004", ICLQ 54 (2005), 27 et seq. (30/31), indicates that in the political statements made by the U.S. and the U.K. governments the word "occupation" was avoided, whereas it was used in S/RES/1483 (2003) of 22 May 2003.

  • 12 Pictet, see note 6, 43.

  • 13 Pictet, see note 6, 273, who states that unwarranted interferences in the domestic affairs of an occupied territory "... are incompatible with the tra- ditional concept of occupation ... according to which the occupying power was to be considered as merely being a de facto administrator. The provi- sion of the Hague Regulations in not applicable only to the inhabitants of the occupied territory; it also protects the separate existence of the state, its institutions and its laws''. 14 See on this issue the second contribution of R. Wolfrum, in this Volume. 15 Article 43 Hague Regulations: "The authority of the legitimate power hav- ing in fact passed to the hands of the occupant, the latter shall take all measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." This provision is supplemented by article 27 Fourth Ge- neva Convention which, in its last sentence, states that the occupying power may take such measures of control and security as may be necessary as a result of the war. No further specification is provided for, leaving it to the discretion of the occupying power which measures to choose. How-

  • ever, article 27 Fourth Geneva Convention contains certain restrictions im- plementing the general obligation of humane treatment. Further restric- tions are contained in arts 41 to 43, 78 and 79 to 135 (Regulations for the Treatment of Internees) Fourth Geneva Convention. Apart from that one may argue that law enforcement measures - different from fighting pockets of resistance where the laws of armed conflict apply - should be guided by the 1979 UN Code of Conduct for Law Enforcement Officials and the 1990 UN Basic Principles on the Use of Force and Firearms by Law En- forcement Officials. 16 The U.K. Manual of the Law of Armed Conflict, see note 3, does not refer to this very basic principle. 17 S/RES/1472 (2003) of 28 March 2003; 1500 (2003) of 14 August 2003; 1511 (2003) of 16 October 2003. 18 Regulations issued by the occupying power falling under this category in- clude amongst others regulations concerning child welfare, labor, food, hy- giene and public health; cf. Pictet, see note 6, 337. 19 Pictet, see note 6; different obviously E. Benvenisti, "The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Per- spective", Israel Defense Forces Law Review 1 (2003), 19 et seq. (30). He bases his argument predominantly on the fact that the French text of article 43 of the Hague Regulations referring to "L'ordre et la vie publics", is broader than "public order and safety". In no case would the French word-

  • ing cover far-reaching re-organizational measures which determine the fu- ture of the occupied state. 20 See below. zl 1 Emphasized in the U.K. Manual of the Law of Armed Conflict, see note 3, 283-284. 22 U.K. Manual of the Law of Armed Conflict, see note 3, 284. 23 See article 50 of the Hague Regulations of 1907, see note 5, which provides: "No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible".

  • 24 Article 56 Fourth Geneva Convention. 25 Article 55 Fourth Geneva Convention. 26 Article 60 Fourth Geneva Convention. 27 For details see Dinstein, see note 10, 152 et seq.; R. Wolfrum, "Protection of Cultural Property in Armed Conflict", Isr. Y. B. Hum. Rts. 32 (2002), 305 et seq.

  • 28 In particular the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 and the respective Protocol, as well as the two Additional Protocols to the Geneva Conventions are of relevance. 29 Article 5 (1) of the 1954 Hague Convention. 30 Article 5 (2) ibid.; J. Toman, The Protection of Cultural Property in the Event of Armed Conflict, 1996, 85. 31 Article 5 (2) ibid. 32 See on this cases the Protocol for the Protection of Cultural Property in the Event of Armed Conflict of 1954. 33 Section I (3) of the 1954 Protocol. 34 Section I (4) of the 1954 Protocol. 35 Section II (5) of the 1954 Protocol.

  • 36 Article 28 of the 1954 Hague Convention. 3� Reprinted in Schindler/ Toman, see note 5, 745 et seq. 38 S/RES/1483 (2003) of 22 May 2003 operative para. 7. 39 This principle is emphasized in the U.K. Manual of the Law of Armed Conflict, see note 3, 277.

  • 4o Greenspan, see note 6. 41 It should be noted that the U.S. Iraq Liberation Act of 1998 (Public Law 105-338-Oct. 31, 1998) already stated under Section 3: "It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime." 42 J,J, Paust, "The United States as Occupying Power over Portions of Iraq and Special Responsibilities under the Laws of War", Suffolk Transnational Law Revie2v 17 (2003), 1 (16 et seq.); H.H. Perritt, Jr., "Structures and Standards for Political Trusteeship", University of California International Law and Foreign Affairs 8 (2003), 385 et seq. (393 et seq.), who argues that the Allied Occupation of Germany and of Japan had its basis on a political trusteeship equaled with the mandate or the trusteeship system of the League of Nations and the United Nation respectively. However, this is not the place to deal with the military administration of Germany and Ja- pan. 43 CPA Regulation 1 of 16 May 2003.

  • 44 For details see the second contribution of R. Wolfrum, in this Volume. 45 See in this respect the contribution by N. Matz, in this Volume. 46 See article 22 Covenant of the League of Nations, reprinted as Annex in the contribution of N. Matz; according to Article 76 lit. (b) UN Charter it is the basic objective of the trusteeship system "... to promote the political economic, social and educational advancement of the inhabitants of the trust territories, and their progressive development towards self- government or independence as may be appropriate to the particular cir- cumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned ..." 47 E. de Wet, "The Direct Administration of Territories by the United Na- tions and its Members in the Post Cold War Era: Legal Bases and Implica- tions for National Law", Max Planck UNYB 8 (2004), 291 et seq.; cf. also R. Caplan, International Governance of War-Torn Territories, 2005.

  • 48 See D.J. Scheffer, "Beyond Occupation Law", AJIL 97 (2003), 842 (843 et seq.). Article 103 UN Charter constitutes a conflict of laws rule rather than a form of hierarchy; see R. Bernhardt, "Art. 103", marginal note 6, in: B. Simma (ed.), The Charter of the United Nations, 2nd edition, 2002. 49 Doc. S/2003/538. 50 Para. 4 of S/RES/1483 (2003) of 22 May 2003 reads: "Calls upon the Au- thority, consistent with the Charter of the United Nations and other rele- vant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the crea- tion of conditions in which the Iraqi people can freely determine their own political future." For a more restrictive interpretation see T. Marauhn,

  • "Konfliktbewaltigung statt Legalisierung", Vereinte Nationen 51 (2003), 113 et seq. (117); T. Bruha, "Irak-Krieg und Vereinte Nationen", AVR 41 (2003), 295 et seq. (311); H.H. Perritt, Jr., "Iraq and the Future of United States Foreign Policy: Failures of Legitimacy", Syracuse Journal of Interna- tional Law and Commerce 31 (2004), 149 (152), speaks of a political trus- teeship. 51 As to the interpretation of Security Council resolutions in general, M.C. Wood, "The Interpretation of Security Council Resolutions", Max Planck UNYB 2 (1998), 73 et seq. 52 See S/RES/1483 (2003) of 22 May 2003, Preamble. 53 See S/RES/1483 operative paras 4 and 6 referring to the "Authority" as compared to para. 5 referring to "all concerned" which means the Author- ity and all other states militarily involved in Iraq.

  • 54 Roberts, see note 11, 33 points out that the wording may have its roots in domestic concerns of states such as Japan which supplied forces with a strictly humanitarian mission. 55 Preamble. 56 S/RES/1483 (2003) of 22 May 2003, see operative paras 4, 8 lit. (c), 9; this concurs with the approach advocated in the presentation by F L. Kirgis, "Security Council Resolution 1483 on the Rebuilding of Iraq", ASIL In- sights (2003), available at <www.asil.org/insights.htm>. 57 S/RES/1483 (2003) of 22 May 2003, operative paras 1 and 4. 58 See below.

  • 59 Highly critical on para. 9, Hmond, see note 1, 449 who interprets this para- graph as giving the Coalition unlimited power for an unlimited period of time. This interpretation has been overtaken by events.

  • 60 Operative para. 2 refers to "Member-States co-operating with the Govern- ment of Kuwait". 61 A thorough assessment of, in particular, the origin of the CPA is provided by L.E. Halchin, The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities, Congressional Research Ser- vice - Library of Congress, April 29, 2004. 62 U.S. Office of Management and Budget, Report to Congress Pursuant to Section 1506 of the Emergency Wartime Supplemental Appropriations Act 2003 (Public Law 108-11, June 2, 2003, 2). 63 See in this respect the letter of the Permanent Representative of the United States and of the United Kingdom to the President of the UN Security Council of 8 May 2003. Its relevant part reads: "In order to meet these ob- jectives and obligations in the post-conflict period in Iraq, the United States, the United Kingdom and Coalition partners, acting under existing

  • command and control arrangements through the Commander of Coalition Forces, have created the Coalition Provisional Authority, which includes the Office of Reconstruction and Humanitarian Assistance, to exercise powers of government temporarily, and, as necessary, especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weap- ons of mass destruction", Doc. S/2003/538 of 8 May 2003. 64 This possibility is discussed by Halchin, see note 61, 6-7. 65 The respective preambular paragraph of the resolution reads: "Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recogniz- ing the specific authorities, responsibilities, and obligations under applica- ble international law of these states as occupying powers under unified command (the "Authority")." 66 See Roberts, see note 11, 35. 67 De Wet, see note 47, 316.

  • 68 At para. 2. 69 S/RES/1088 (1996) of 12 December 1996, operative para. 18. 70 See in particular McCarthy, see note 3, 52 et seq. m CPA Order No. 39, Section 6 (1). 72 Ibid. Section 7 (2) lit. (d). 73 Ibid. Section 8 (2). 74 Ibid. Section 13.

  • 75 CPA Order 40 of 16 September 2003. 76 CPA Order 37 of 16 September 2003. 77 See, for further details, McCarthy, see note 3, 54. 78 McCarthy, see note 3, 55. 79 See report of the UN Secretary-General of 17 July 2003, Doc. S/2003/715, para. 84.

  • 80 The U.K. Manual of the Law of Armed Conflict, see note 3, 303 does not elaborate upon this issue. 81 S/RES/1483 (2003) of 22 May 2003. 8z S/RES/1483 (2003) of 22 May 2003, operative para. 12. 83 Operative para. 21, ibid. 84 S/RES/1546 (2004) of 8 June 2004 operative para. 24. 85 S/RES/1483 operative para. 22 and S/RES/1546 operative para. 27.

  • 86 S/RES/1483 (2003) of 22 May 2003 operative para. 1. 87 Preamble ibid. 88 Operative para. 4 ibid.

  • 89 The respective part reads: "[The Security Council] ... 9. Supports the for- mation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recog- nized, representative government is established by the people of Iraq and assumes the responsibilities of the Authority; ..." See also the more positive view in S/RES/1511 (2003) of 16 October 2003, operative para. 4. 90 Note has to be taken of the fact, though, that the UN Special Representa- tive was assassinated in August 2003. 91 Critical in this respect Roberts, see note 11, 38. 92 See Doc. S/PV/4808 of 14 August 2003.

  • 93 See also in this respect the terminology used by the Report of the Secre- tary-General pursuant to para. 24 of S/RES/1483, Doc. S/2003/715 of 17 July 2003. 94 In S/RES/1511 (2003) of 16 October 2003 operative para. 4 states: "Deter- mines that the Governing Council and its ministers are the principle bodies of the Iraqi interim administration, which, without prejudice to its further

  • evolution, embodies the sovereignty of the State of Iraq during the transi- tional period... ". 9s Available at <http://www.cpa-iraq.org/human_rights/statute.htm>.

  • 96 See L.A. Dickinson, "The Promise of Hybrid Courts", AJIL 97 (2003), 295 et seq. (296-298). 97 Critical in this respect 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 2 (2004), 330 et seq. 98 Article 28 and article 5 lit. (c) of the Statute, although the Governing Coun- cil, if it deems necessary, may appoint non-Iraqi judges in accordance with article 4 lit. (d) of the Statute. 99 Articles 6 lit. (b) and 7 lit. (n) of the Statute; the role of foreign advisers is quite unclear.

  • loo Article 24 of the Statute generally refers to Iraqi sentencing standards, but instructs consideration of international precedents in relation to offences having no counterpart under Iraqi law. This may be compared with article 24 of the ICTY Statute. The possibility to apply the death penalty departs from the model applied in international or mixed tribunals. 101 Critical in this respect Y Shany, "Does One Size Fit All? Reading the Ju- risdictional Provisions of the New Iraqi Special Tribunal Statute in the Light of the Statutes of International Criminal Tribunals", Journal of In- ternational Criminal Justice 2 (2004), 338 et seq. (341 et seq.). 102 Article 1 lit. (b) of the Statute. 103 S. Katzenstein, "Hybrid Tribunals: Searching for Justice in East Timor", Harvard Human Rights Journal 16 (2003), 245 et seq. (274); critical in re- spect of the jurisdiction ratione temporis of the Iraqi Special Tribunal, Shany, see note 101, 340, 341.

  • 104 Article 5 of the Statute of the ICTY requires such nexus whereas the Secre- tary-General's Report on Aspects Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of Inter- national Humanitarian Law Committed in the Territory of the Former Yugoslavia, ILM 32 (1993), 1159 et seq. (1173), held such a nexus not to be necessary; in favor of the latter G. Dahm/ J. Delbruck/ R. Wolfrum, Lehr- buch des Volkerrechts 113, 2002. 105 The first judgment to do so was the decision on jurisdiction in the Tadic Case by the Appeals Chamber, IT-94-1 AR 72 of 2 October 1995. 106 Shany, see note 101, 344, 345 discusses whether it may be introduced through the reference to Iraqi law.

  • 107 S/RES/1546 (2004) of 8 June 2004, operative para. 1. 108 Ibid., para. 9.

  • 109 The respective operative para. 12 reads: "Decides further that the mandate of the multinational force shall be reviewed at the request of the Govern- ment of Iraq or twelve months from the date of this resolution, and that this mandate shall expire upon the completion of the political process set out in paragraph four above, and declares that it will terminate this man- date earlier if requested by the Government of Iraq.'' 110 Article 4.

  • 111 See the contribution of E. Afsah/ A.H. Guhr, in this Volume. 112 Article 48. 113 S/RES/1546 (2004) of 8 June 2004, operative para. 7 (a) (iii).

  • 114 IZIAA Vol. 2 (1949), 829 et seq. 115 This view is shared by Roberts, see note 11, 41 et seq. 116 See above.

  • 117 Within this "Multinational Force'' shall exist a "distinct entity" to provide security for the UN presence (see operative para. 13 of S/RES/1546). 118 S/RES/1546 (2004) of 8 June 2004, operative para. 9. 119 See the statements made in this respect. 120 Operative para. 12 of S/RES/1546 reads: "Decides further that the mandate of the multinational force shall be reviewed at the request of the Govern- ment of Iraq or twelve months from the date of this resolution, and that this mandate shall expire upon the completion of the political process set out in paragraph four above, and declares that it will terminate this man- date earlier if requested by the Government of Iraq."

  • 121 See the wording of para. 12, above. 122 The Government requests the Security Council to review the mandate of the Multinational Force at the request of the Transitional Government of Iraq, or twelve months from the date on which this resolution was adopted.

  • 123 See S/RES/1511 (2003) of 16 October 2003, second preambular paragraph. 124 See S/RES/1483 (2003) of 22 May 2003; 1500 (2003) of 14 August 2003; 1511 (2003) of 16 October 2003 and 1546 (2004) of 8 June 2004. 125 In S/RES/1546 (2004) of 8 June 2004 the Security Council endorsed the commitment of the Interim Government to work towards a "federal, de- mocratic, pluralist, and unified Iraq''.

  • 126 S/RES/1511 (2003) of 16 October 2003; 1546 (2004) of 8 June 2004, pream- ble. i2� See the Report of the Secretary-General pursuant to operative para. 30 of S/RES/1546 (2004) of 8 June 2004, Doc. S/2005/141 of 7 March 2005. 128 S/RES/1546 (2004) of 8 June 2004. 129 Supplement to Report Doc. A/50/332 and A/51/512; on this see the second contribution of R. Wolfrum, in this Volume.

  • 130 Operative para. 25 of S/RES/1546 (2004) of 8 June 2004. 131 Operative para. 26 ibid.

  • 132 S/RES/1511 (2003) of 16 October 2003, preamble.

  • 133 Section 2, para. 1. 134 Section 2, para. 3. 135 Section 4. 136 Section 5.

  • t3� S/RES/1483 (2003) of 22 May 2003, fifth preambular paragraph. 138 Report of the Secretary-General, see note 93, para. 19.

  • 139 As to the relationship between self-determination and democracy see the second contribution of R. Wolfrum, in this Volume. 140 Ibid.

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