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Military Occupation and the Rule
of Law: The Legal Obligations of Occupying Forces in Iraq
Ben Clarke
Notre Dame University Australia School of Law
Contents
The invasion and occupation of Iraq has attracted significant
juridical interest. A year after Coalition forces invaded Iraq, debate
over the legality of that use of force shows no sign of abating.[1][2]
By this time, coalition forces faced
intense scrutiny over their obligations as occupying powers. This paper
provides a contemporary analysis of the powers and duties of occupiers
under international law. The nature and scope of these norms of
occupation are assessed by reference to relevant sources of
international law including (i) the classic treaties on occupation,
(ii) customary law, (iii) applicable UN resolutions and (iv) relevant
domestic law. By contrast, the question of the
legality of the occupation is less contentious. While the first few
months of Coalition occupation were not sanctioned by the international
community, the occupation was officially endorsed on 23rd May 2003 when
the Security Council passed Resolution 1483.
In assessing the fundamental obligations of the
occupying forces in Iraq, the following questions require analysis:
- What are the powers and obligations of occupying forces under
contemporary international law?
- Do the occupied
retain sovereignty over their state during a
belligerent occupation? If so, how if at all may they exercise these
rights?
- What mechanisms (if any) exist to ensure
compliance by occupying forces with their obligations?
- Do
the occupying powers have a legal mandate to fulfil a
reformist agenda in Iraq that includes the reshaping of national
institutions?
- Is it realistic to expect coalition
forces to meet all of
their obligations under the law of occupation in a complex and
dangerous environment of competing interests and needs?
- Do
occupying powers have a duty to ensure that sufficient
troops and resources are deployed to protect the civilian population,
prevent looting, guard infrastructure and maintain public order in the
'post conflict' phase?'
Tensions
between the law of occupation, Security Council Resolution 1483, and
Coalition practice in Iraq are also highlighted. In addition, existing
mechanisms for ensuring the accountability of occupying powers for
non-compliance with their obligations under the law of occupation are
assessed. The paper concludes by asking whether the international law
of occupation offers an adequate legal framework for regulation of
belligerent occupations in the 21st century.
The invasion and conquest of sovereign states is illegal under
contemporary international law.[3] Nevertheless, the occupation of
territory without UN approval has been a regular occurrence throughout
the history of the UN. The occupation of Palestine (by Israel),
northern Cyprus (by Turkey), Panama and Afghanistan (by the US) are
prominent examples.[4] Other examples include Cambodia (by
Vietnam), East Pakistan (by India) and the Falkland Islands (by
Argentina). What distinguishes Iraq from other instances of foreign
occupation is that the occupation of Iraq represents the first instance
since the inception of the UN that (1) a belligerent occupying force
has fully acknowledged its status and obligations as an occupying power
following a military invasion, and (2) the Security Council has
endorsed the occupation. Occupying
powers do not acquire legal title to occupied territory. Instead they
assume obligations as administrator of the territory during the period
of occupation. Consequently, sovereignty over occupied territory does
not pass to the occupying power. This fundamental norm of international
law was reaffirmed by the Security Council in the preamble to
Resolution 1483 where specific mention is made of 'the sovereignty and
territorial integrity of Iraq' and 'the right of the Iraqi people
freely to determine their own political future and control their own
natural resources.'[5]
Belligerent occupation is the exercise of authority over territory by
military rule without the consent of the deposed regime. The
Coalition's administration of Iraq is a classic example of belligerent
occupation. By contrast, non-belligerent occupation is the military
administration of foreign territory with the consent of the government
of a state, or the various parties exercising control over its
territory. The international law of occupation is a body of rules
designed to regulate the way in which an occupying power governs
occupied territory.[6] Its ambitious objective is to
provide a legal framework for occupying powers to meet the often
conflicting interests of the occupant, the displaced sovereign, and the
population of the occupied territory.[7] The key provisions of this body of
law are found within Chapter 3 of both the Hague Regulations concerning
the Laws and Customs of War on Land [hereinafter the "Hague
Regulations"], and the 4th Geneva Convention Relative To The Protection
Of Civilian Persons During Times Of War (1949) ["the 4th Geneva
Convention"] and also articles 3&4 of Protocol 1 Additional to
the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (hereinafter the
"1977 Additional Protocol 1"). The international law of occupation is
however not confined to treaty law. Other sources include customary
law, applicable domestic law, and UN resolutions. Each of these sources
is discussed in Part II of this paper. The concept of occupation has
been described as 'juridically inoperative or disputed in practically
all contemporary conflicts including those involving guerrilla warfare.'[8] However as noted above, the US and
UK formally acknowledged their status and obligations as occupying
powers in Iraq.[9] This represents a significant
departure from states practice in virtually all UN era belligerent
military occupations, as well as the practice of the UK and US during
military occupations at the end of World War II. The
law of occupation applies when an occupying force exercises effective
control over foreign territory. Article 42 of the Hague Regulations IV
(1907) provides that 'Territory is considered occupied when it is
actually placed under the authority of the hostile army.' However it
further provides that occupation extends only to 'the territory where
such an authority has been established and can be exercised.'[10] Article 1 of 1977 Additional
Protocol 1 extends the scope of occupation to include all cases of
alien occupation.[11] Whether or not territory is
occupied is a question of fact which in the initial stages at least is
a matter for the occupying army to determine.[12] Occupation of foreign territory
will usually be self evident to all observers, although the precise
extent of the occupation may be difficult to determine, particularly
whether there is 'creeping expansion' into foreign territory. Military
occupation has legal consequences. Responsibilities attach to occupying
forces from the moment they occupy and exercise effective control over
enemy territory.
When territory is occupied by a foreign army, both the occupying forces
and those living under occupation must comply with the law of
occupation. The 'occupied' may include civilians, and the military
forces of the occupied territory, because the 4th Geneva Convention
affords protection to both combatants and non-combatants, both being
'persons protected by the convention.'[13] The opposing military forces in
any conflict are known as belligerents. Belligerents in an
international armed conflict are bound by the laws of armed conflict.
Once territory is occupied, all belligerents must also conduct
themselves in accordance with the law of occupation. Belligerents can
include regular armies, irregulars, militia and voluntary corps,[14] and also those who spontaneously
take up arms to resist invading troops (levee en masse).[15] In the context of the recent
conflict in Iraq, coalition (belligerent) military forces included
Australian, Polish, British and US armed forces. Iraq's belligerent
forces included the Iraqi Army, the Republican Guard, the Special
Republican Guard, Fedayeen Saddam, foreign volunteers invited to fight
on the side of the Ba'ath regime, and any groups of Iraqis who may have
spontaneously armed themselves to defend Iraq from foreign invasion
(levee en masse). The rule of law dictates that no one is above the
law, and that everyone, regardless of rank or allegiance, is subject to
the law.[16] This doctrine remains applicable
during a military occupation, although its application is somewhat
skewed. While occupying forces are technically bound by the laws of the
occupied territory, soldiers are more likely to be held accountable for
breaches of their own military laws (subject to any Status of Forces
Agreement recognising the jurisdiction of courts of the occupied state
to deal with violations of municipal law by citizens of occupying
powers.) As occupying armies are effectively exercising martial law
over occupied territory, it is extremely unlikely that they would ever
permit local courts to prosecute their personnel. The Coalition
Provisional Authority in Iraq ("the CPA") has asserted that occupying
forces have immunity from local legal process under international law.
CPA Administrator Paul Bremer has formally declared that coalition
military personnel as well as foreign liaison and contractor personnel
are not subject to Iraqi laws or the jurisdiction of Iraqi courts.[17] Those most likely to be prosecuted
for violations of the law of occupation are those who engage in armed
resistance to foreign occupation. While such resistance is not
prohibited under international law,[18] the law of occupation permits the
occupiers to put on trial persons who engage in acts of sabotage,
espionage or launch attacks upon occupying forces. The rights of those
detained by occupying forces for engaging in acts of violent resistance
are discussed in Part 4. The principal
sources of the international law of occupation are the treaties
mentioned in the following paragraph. Many articles contained within
these international instruments are directly applicable to military
occupations. However a variety of other sources including customary
law, the domestic law of the occupied and occupying states, and UN
resolutions may also be applicable. The principal international
instruments on the law of occupation are the Hague Regulations (1907),
the 4th Geneva Convention, and 1977 Additional Protocol 1.[19] These instruments collectively
prescribe the rights and duties of belligerent forces (including
occupying forces), as well as the rights of protected persons[20] (including civilians) who are
within an occupied territory. The Hague
Regulations (1907) were the first widely endorsed set of international
rules governing the conduct for occupying forces.[21] Chapter 1 is entitled "The
Qualifications of Belligerents." Article 1 provides that "The laws,
rights, and duties of war apply not only to armies, but also to militia
and volunteer corps..."[22] This article covers military
forces of both the occupiers and the occupied. In order to be afforded
the protections of the laws of war, all belligerents (parties to the
conflict) were required to "...carry arms openly and respect the laws
and customs of war."[23] The regulations also provide a
working definition of "occupation",[24] which is set out above and remains
applicable to this day. They also set out a number of basic rights,
duties and entitlements of both the occupier and the occupied.[25] During the drafting of these
Regulations at The Hague Peace Conferences of 1899 and 1907,
fundamental disagreements arose among participating states. The final
document left gaps in the duties and obligations of belligerent parties.[26] During the First World War and
Second World War, many of the Hague Regulations were ignored, while in
other cases gaps in the laws of war were exploited.[27] Significant revision of the laws
of armed conflict occurred with the promulgation of the 1949 Geneva
Conventions. The Geneva
Conventions of 1949[28] represented a watershed in the
development of international humanitarian law in general, and the law
of occupation in particular. More strident obligations were imposed on
occupiers, and a number of aspects of the law of military occupation
that had not been resolved during the drafting of the Hague Regulations
were addressed.[29]
Each of the Geneva Conventions deals with a
different area of humanitarian law. The most relevant instrument in the
context of the law of occupation is the 4th Geneva Convention. Part III
of this instrument sets out the general obligations of belligerents in
the treatment of protected persons. Section III of Part II prescribes
in detail the obligations that occupying forces owe to protected
persons in occupied territory. The law of treaties [30] provides that only state parties
to agreements are bound by these instruments. While this was initially
the case with respect to the Geneva Conventions, all states are now
bound by these instruments under customary law.[31] Although generally designed to
supplement the Hague Regulations, the Geneva Conventions have
superseded certain articles of the Hague Regulations.[32]
1977 Additional Protocol 1 was drafted by states in an attempt to adapt
the laws of war to the conditions of contemporary international armed
conflict (particularly the incidence of guerrilla warfare and the
proliferation of national liberation movements).[33] The protocol is directly
applicable to occupied territories.[34] A central focus of the protocol is
the protection of civilians and victims of international armed
conflict. In order to promote this objective, the obligations of
occupying forces have been strengthened in a number of ways. Firstly,
minimum human rights guarantees have been imported into the law of
occupation. Article 75 provides that persons in the power of a party to
the conflict (including occupying powers) must be afforded basic
protections set out therein. Secondly, as Roberts has noted, the
protocol extends the law of occupation to 'territories with a
controversial international status.'[35] However the protocol fails to
address all of the outstanding deficiencies in the law of occupation.
For instance, there are still no effective mechanisms for the
independent enforcement of this body of law.[36] Therefore, in the event of a
breach by the occupiers, accountability for such violations is a matter
for the occupying powers. With no independent umpire, justice is
discretionary. Unsurprisingly, some publicists have called for revision
of the law of occupation. [37] New measures that promote
compliance through effective enforcement are desirable, particularly
from the perspective of minimising impunity for violators. However it
is questionable whether such reform will be achieved in the near
future. States that are inclined to engage in foreign occupations are
also likely to oppose any broadening of their international
obligations. The proliferation of 'Article 98' agreements entered into
by the Bush administration to shield their citizens from the
jurisdiction of the International Criminal Court is illustrative of
this point.[38]
Jurisprudence of the European Court of Human Rights confers obligations
upon European member states to ensure that everyone within their
jurisdiction is afforded the rights and freedoms defined in Section 1
of the European Convention on Human Rights. The UK and Spain are bound
by these treaty obligations. Both have troops in Iraq, and are the
effective (or delegated) occupiers of different geographical areas of
Iraq. It is therefore necessary to inquire as to whether their
obligations under the European Convention on Human Rights extend to the
treatment of persons detained by their forces in Iraq.
In Bankovic and Others v. Belgium and 16 Other
Contracting States (Application No. 52207/99 [ECHR]), the Grand Chamber
of the European Court of Human Rights held that extra-territorial acts
would fall within its jurisdiction, when: the respondent State, through
the effective control of the relevant territory and its inhabitants
abroad as a consequence of military occupation or through the consent,
invitation or acquiescence of the Government of that territory,
exercised all or some of the public powers normally to be exercised by
that Government.[39]
Accordingly, EU member states with armed forces
serving in occupied Iraq remain bound by the European Convention on
Human Rights (ECHR) and applicable protocols where their troops are
exercising 'all or some of the public powers normally to be exercised
by that Government'. Although an attractive outcome from the
perspective of human rights protection, this is a controversial
decision. EU member states may be surprised that a European court has
interpreted an EU Convention so broadly. Upon ratification of the
treaty,some may not have anticipated that the ECHR would one day find
that it had jurisdiction over matters arising outside the borders of
the EU. The Bankovic Case is directly applicable to the activities of
UK forces occupying Southern Iraq. Those detained by UK forces must be
afforded the rights and protections of the ECHR. Other European forces
operating in Iraq (e.g. those from Spain, Poland and Italy) are also
subject to the jurisdictional requirements outlined above. They are
responsible for providing security in various towns and regions of Iraq
and are therefore exercising the powers of occupiers, albeit under
authority delegated to them by the Security Council endorsed occupying
forces. The implications for these European forces operating in Iraq
are significant. They must extend ECHR rights to those who they arrest,
capture and detain. These rights include the right to a trial, freedom
from arbitrary and prolonged detention, the right to due process
(including the right to have their status determined in accordance with
the 3rd Geneva Convention). Article 1 of the ECHR requires contracting
parties to the Convention to undertake "to respect and to ensure
respect for the present Convention in all circumstances." If those
circumstances extend to the treatment of Iraqis held in UK custody,
interesting legal questions arise. For instance, the handing over of
detainees by UK forces to US forces in circumstances where those
persons may face the death penalty if convicted of war crimes or crimes
against humanity. Such a transfer may constitute a violation of the
UK's obligations under the ECHR.[40] It would also appear to violate UK
obligations under the 2nd Optional Protocol to the International
Covenant on Civil and Political Rights. (ICCPR Protocol 2)[41] Australian forces operating in
Iraq are in a similar position having also ratified ICCPR Protocol 2. There
are numerous UN instruments and multilateral treaties that are
applicable in various ways to the military occupation of Iraq. An
analysis of all such instruments is beyond the scope of this article.
Two will be noted briefly. The UN Basic Principles on the Use of Force
and Firearms by Law Enforcement Officials[42] (Basic Principles) is instructive
in the context of an occupier's duty to restore and maintain public
order. It provides that law enforcement officials must exercise
restraint and proportionality in the use of force to avoid unnecessary
injury and loss of life.[43] Article 4 provides that "Law
enforcement officials, in carrying out their duty, shall, as far as
possible, apply non-violent means before resorting to the use of force
and firearms. They may use force and firearms only if other means
remain ineffective..."
While it is not suggested that this set of
principles has attained customary law status, they are an important
[albeit non-binding] source of 'law'. They constitute a set of minimal
standards that should be observed by belligerent occupying forces
undertaking policing functions. These UN principles could be
incorporated into Status of Force agreements, or otherwise observed by
states seeking to follow international best practice. The second
instrument is the International Covenant on Civil and Political Rights.[44] (The ICCPR) Article 2 provides
that "No one shall be arbitrarily deprived of his life."[45] This article should be read to
preclude Coalition from shooting suspected looters on site (other than
in self defence.) It should also be read to require restraint in the
use of lethal force against persons who do not pose a physical danger
to either coalition forces or civilians. The ICCPR is binding on
Coalition forces under customary law. The Basic Principles mentioned
above, although non-binding, inform the implementation of the ICCPR.[46] When considered together, these
instruments are suggestive of a prohibition on the indiscriminate use
of lethal force by occupying forces to quell opposition. Accordingly it
can be contended that these instruments - together with the doctrines
of necessity and self defence - inform the legal framework for the use
of force in occupied territory. The direct applicability of
customary law to military occupation was recently confirmed in the
Tadic Case.[47] The Trial Chamber noted that
civilians in occupied territory are entitled to be treated with the
minimal standards of civilisation, so long as they do not run counter
to the necessities of war.[48] While the provisions of the Geneva
Conventions and the Hague Regulations (1907) bind all states under
customary international law, [49] not all of the Hague Regulations
(1907) remain applicable to an occupation. As noted above, some of the
regulations have been superseded by the 4th Geneva Convention.[50] In addition to having entered into
custom, certain norms contained in the Geneva Conventions have attained
jus cogens status. This status is derived from the collective
acceptance by states of the non-derogable nature of these norms. It
renders such norms pre-eminent rules of international law. Such norms
include the prohibitions on the torture of detainees. By contrast, some
provisions of the 1977 Additional Protocol I may not yet have attained
customary law status. The US has not ratified this instrument and
denies that it is bound by the protocol in its entirety.[51] Even so, many of its provisions
are recognised by the US as customary, with only a few articles being
contentious.[52] It is the view of this writer that
non-ratifying states including the US may now be bound by the entire
protocol. This may have occurred as a result of acquiescence (failure
by states to object persistently to protocol provisions) or through a
proliferation of ratifications leading to the crystallisation of all of
the protocol's articles into binding customary norms. At the time of
writing 161 states had ratified the protocol. An exploration of whether
there is now sufficient evidence of State Practice and opinio juris to
draw such a conclusion is a matter that goes beyond the scope of this
paper.[53] Occupying forces may also be
required under their own domestic laws, rules of engagement, and
military doctrine to comply with customary norms of international law.
For example, US military law specifically requires its forces to comply
with customary law.[54] The
domestic law of occupying powers constitutes another source of legal
obligations for occupying forces. Where there are a number of powers
exercising control over adjoining geographical regions of occupied
territory, differing domestic laws of the respective occupiers will
create separate and distinct obligations for each occupier. This may
have a significant impact upon the overall administration of the
occupied territory by creating different norms in different zones of
occupation. For example, occupying troops from different states may be
operating under different rules of engagement. Rules of engagement set
out the permissible methods for conducting military operations, and
reflect the obligations of the relevant state under both customary and
treaty law. Whilst not laws in themselves, rules of engagement
enunciate the legal obligations of the respective military forces.[55] One consequence of having
occupation forces operating under different rules of engagement may be
that procedures for dealing with crimes allegedly committed by soldiers
from different states may vary significantly depending upon the
nationality of the soldier under investigation. The domestic laws of
the occupied territory itself constitute another applicable source of
law. Municipal laws remain on foot during a military occupation unless
suspended or repealed by the occupying powers.[56] The occupier's discretion to
repeal or suspend laws of the occupied territory can only be exercised
in a narrow set of circumstances. They include the removal of a local
law that: (1) violates fundamental human rights,[57] (2) is inconsistent with the
effective administration of justice, (3) is inconsistent with the
maintenance of law and order, or (4) is an obstacle to the application
of the 4th Geneva Convention itself.[58] Most domestic laws do not fall
fowl of the above criteria, and therefore escape repeal or suspension
during a military occupation. Finite resources and the desire to
maintain the status quo are factors that influence occupying powers to
maintain most existing laws. Clearly, minimal disruption to civil
society is promoted by non-interference with local laws, and this in
turn furthers the public order and security objectives of the occupying
forces.[59]
Occupying forces (like other persons present in
occupied territory) are technically bound by local laws. None of the
applicable treaties on occupation confer immunity on occupying forces
from the jurisdiction of local courts. However occupying powers
generally consider themselves to have such immunity. This reflects the
reality of military occupation and the exercise of Marshall Law by
occupying forces. Breaches of local laws by occupying troops (if they
are to be dealt with at all) are punishable as breaches of the military
law of the relevant occupying force. In the absence of such military
justice, members of Coalition forces in Iraq who commit crimes such as
rape or theft of money during searches of cars, homes and individuals,
are acting with apparent impunity. This issue is discussed further in
Part 4. Resolutions of the Security
Council can be a source of rights and obligations for both the occupier
and the occupied, [60] and may affirm the applicability
of relevant customary and treaty norms to territory under occupation.
Such resolutions may also either encourage or compel occupying forces
to comply with other international norms that are not specific to the
law of occupation. Resolution 1483 represents the most striking example
of such a resolution. It represents a significant development in the
law of occupation. Benvenisti has highlighted four unique features of
resolution 1483:[61] 1. It expressly refutes the claim
that occupation as such is illegal. 2. It confirms the notion that
sovereignty does not pass to the occupier on the total defeat and
disintegration of the governing regime. 3. It affirms the continued
applicability of international human rights law to the territory in
spite of foreign occupation. 4. It calls on the occupiers to pursue
effective administration, importing a requirement that occupiers fulfil
their duties (such as the protection of the occupied population),
rather than merely being an 'inactive custodian' of occupied territory.
An analysis of resolution 1483 raises some
interesting questions. Firstly, can the obligations of the Coalition
occupying powers under The Hague Regulations and the 4th Geneva
Convention be reconciled with the provisions in 1483 that appear to
sanction the re-structuring of Iraqi society? In the event of a
conflict between a treaty provision and a Security Council resolution,
which prevails? In addressing the first question it needs to be noted
that Resolution1483 provides a broader mandate for the occupying powers
than that envisaged by the treaties on the law of occupation. For
example, it speaks of reform to the Iraqi legal system, whereas the
treaties require minimal interference with the laws and institutions of
an occupied state. The abolition of the Ministry of Information by the
coalition authority appears to exceed the legitimate role of an
occupying power under the treaties, however it can be justified by
reference to paragraph 4 of Resolution 1483.[62] Is the Security Council empowered
to extend the mandate of an occupying power beyond the limits
prescribed by the treaty law of occupation? This raises the issue of
limits on the power of the Security Council acting under Chapter VII.
Clearly a Security Council resolution would be of doubtful validity if
it called upon states to violate jus cogens norms of international law.[63] However if the resolution is
merely inconsistent with a treaty provision, the issue is resolved by
reference to the UN Charter itself. Article 103 of the Charter provides
that Security Council resolutions enjoy primacy over treaty obligations
when the two conflict.[64] In the Lockerbie Bombing Case, [65] the International Court of Justice
acknowledged that pursuant to Article 103 of the UN Charter, Security
Council resolution provisions can take precedence over contrary treaty
obligations.[66] Accordingly, in the event of a
conflict between resolution 1483 and The Hague Regulations and/or
Geneva Conventions, the former will prevail. However until a Security
Council resolution is in place, the treaty provisions apply.
On 19 March 2003, the US and its coalition partners commenced a hostile
conflict against Iraq. By 2 May, US forces claimed to exercise command
and control over Baghdad and many other cities and towns in Iraq, while
United Kingdom forces asserted control over territory in Southern Iraq,
including the cities of Basra and Umm Kasr. Meanwhile, Kurdish and
Coalition forces gained territory in Northern Iraq previously
controlled by the Ba'athist regime. The coalition's devastating bombing
campaign precipitated the abandonment of the formal exercise of power
by the Ba'athists throughout Iraq, with many senior Ba'ath party
officials fleeing their posts. Although the demise of Saddam Hussein's
regime was initially welcomed by many Iraqis, euphoria at liberation
from a brutal dictatorship was short lived. The power vacuum in the
wake of the ousting of the Ba'ath regime was soon filled in many parts
of the country by looting and lawlessness.
For Coalition forces, attempts to comply with
obligations of an occupying power have been both onerous and dangerous.
Formidable security, humanitarian, and rule of law challenges have
persisted throughout Iraq. In many parts of the country, the experience
of occupation has been characterised by the theft of national assets,
lack of security, an absence of accountability for criminal conduct,
the destruction or theft of private and public property, including
cultural treasures, delays in the restoration of war damaged utilities,
the sabotage of basic infrastructure by those opposed to coalition
occupation, revenge killings by Iraqis against Iraqis, the bombing of
(1) humanitarian agencies, (2) military compounds and (3) military and
aid convoys, the taking of foreign hostages, and the summary execution
or assassination of foreign diplomats, foreign aid workers, captured
soldiers and hostages. The
invasion of Iraq in March 2003 was one of the most anticipated and
debated military offensives in recent history.[67] International Aid Agencies,
retired US military commanders, Human Rights groups, miscellaneous
other NGOs, international jurists, experts on the Middle East and
international relations, all clamoured to offer their advice and
perspectives to Coalition forces on issues ranging from the legality of
an invasion and occupation[68] to the short and long term
humanitarian, [69] environmental, [70] social, [71] political, [72] and economic [73] consequences of conducting a war
of aggression to disarm a state that was alleged to be in possession of
weapons of mass destruction.
Journalist James Fallows' analysis of the Bush Administration's
preparations for the invasion and occupation of Iraq is compelling
reading. It reveals that the CIA, State Department, US Agency for
International Development and the Army and Marine Corps all engaged in
extensive planning.[74] His critique entirely discredits
Bush Administration suggestions that the Coalition could not have
envisaged, let alone planned for, the looting, lawlessness and other
problems that have beset the Coalition since the collapse of the Ba'ath
regime: "Almost everything good and bad, that has happened in Iraq
since the fall of Saddam Hussein's regime was the subject of extensive
pre-war discussion and analysis...The problems the United States has
encountered are precisely the ones its own experts warned against."[75]
A detailed analysis of the reasons why the Bush
Administration ignored pre-war warnings (and failed to implement
recommendations that came from numerous governmental and independent
sources), goes beyond the scope of this paper. However two reasons have
emerged and warrant mention: 1. Internal fighting within the Bush
administration and distrust by the Pentagon of reports commissioned by
the State Department and prepared by persons perceived to be anti-war.[76] 2. Fear that comprehensive
planning for the occupation of Iraq would undermine the case for war.
It meant facing costs and problems that were an impediment to war.[77] One may ponder how a government
planning to invade another state can justify having no plan as to how
to meet its obligations as an occupier. Prior to the war, the answer
that was given by US government officials at Agency for International
Development meetings with NGO's was 'The American troops will be
liberators (rather than occupiers) so the obligations did not apply.[78] This approach ultimately magnified
the problems encountered by Coalition troops as they attempted to meet
their post-invasion obligations.
In March 2002 the US State Department publicly announced the Future of
Iraq Project which eventually involved 17 working groups 'designed
systematically to cover what would be needed to rebuild the political
and economic infrastructure of the country.'[79] Separate groups addressed issues
including 'Transitional Justice', 'Water Agriculture and the
Environment', 'Democratic Principles' and 'Procedures Public Finance'
and 'Oil and Energy.' The final report consisted of thirteen volumes of
recommendations on specific topics.
In hindsight, the report's recommendations were
ignored at the Coalition's peril. Four pre-emptive warnings serve as
examples of how poorly Coalition forces addressed concerns that had
been raised well in advance: - The "fundamental
importance of clean water supplies for Iraqis immediately after
transition. This requirement was described as "key to
coalition/community relations."
- The
"...importance of getting electricity grid up and running immediately -
key to water systems, jobs... Could go a long way to determining
Iraqis' attitude to Coalition forces."[80]
- "The removal
of Saddam's regime will provide a power vacuum and create popular
anxieties about the viability of all Iraqi institutions."
- "The
period immediately after regime change might offer those criminals the
opportunity to engage in acts of killing, plunder and looting."
The
Senate Foreign Relations Committee considered the case for war on 31
July 2002. During these hearings, Iraqi exile Rend Rahim France (who
served on the Future of Iraq Project) testified that "the system of
public security will break down because there will be no functioning
police force, civil service, and no justice system... there will be a
vacuum of political authority and administrative authority."[81] Fallows article also points to
statements by senior US Army officers who were concerned that the
Pentagon was ignoring professional advice on the number of troops
required to occupy Iraq effectively. Warnings were issued that with too
few troops the US would be trapped in an untenable position.[82] An official
army report prepared well in advance of the war also urged
comprehensive planning for the occupation of Iraq.[83] The report outlines four phases of
warfare: (1) deploying equipment and personnel into the region (2)
preparation for battle (3) invasion and subsequent military operations,
and (4) the post-conflict phase. It stressed that planning for Phase IV
had to start as early as possible. It pro-offered a check list of 135
tasks to be attended to immediately right after the war, and by whom.[84] Copies were circulated throughout
the US Army by December 2002.[85] The first Coalition troops to
enter and occupy Baghdad were the Third Infantry Division of the US
Army. Their 'After Action Report'[86] reveals that there was no plan for
Phase IV Operation Iraqi Freedom. The final page of the report reads:
'Issue: Plan for Phase IV operations.
Discussion:
Higher headquarters did not provide the 3ID (M) with a plan for Phase
IV. As a result, 3ID (M) transitioned into Phase IV operations in the
absence of guidance. Recommendations: Division planners should have
drafted detailed plans on Phase IV operations that would have allowed
it to operate independently and outside of guidance from higher
headquarters. Critical requirements should have been identified prior
to LD, and a plan to execute a SASO mission for at least 30 days should
have been ready to execute immediately. A liaison officer (LNO) from
ORHA during planning would have greatly assisted this process.'[87]
The dismissal of vital material such as the Future
of Iraq Project, the absence of any plan for Phase IV of Operation
Iraqi Freedom, and the systematic failure of US troops to prevent
looting and lawlessness in their spheres of occupation, demonstrate a
failure by the US government to meet basic obligations under the law of
occupation. The nature and source of these obligations are discussed
below. The overall impact of pre-deployment failures by Coalition
forces is something for others to quantify. However sending US forces
into Iraq without: 1) basic Arabic language skills, 2) cross-cultural
training, 3) awareness training on basic aspects of Islamic beliefs and
practices, 4) adequate numbers of interpreters, and 5) sufficient
troops to restore law and order and guarantee security until Iraqi
security forces were re-established, 6) a plan for the occupation of
Iraq, clearly hampered efforts to stabilise Iraq upon the collapse of
the Ba'ath regime and undermined efforts by US troops to win 'hearts
and minds' in Iraq. These omissions are likely to have created a
climate of misunderstandings and miscommunications between Iraqi
citizens and US troops. This not only undermined respect for US
authority, but on occasion had fatal consequences for innocent Iraqi
citizens. Such tragedies appear to have fuelled militant resistance to
the occupation.[88]
The obligations of an occupying power exist 'whether or not it was
lawful to use the armed force that resulted in the occupation.'[89] These obligations include the
provision of security,[90] basic necessities [including food
& medical supplies[91] electricity and clean water,[92] ] and compliance with numerous
other obligations owed to civilians under Articles 47-64 of the 4th
Geneva Convention. Beyond these obligations, Coalition forces in Iraq
assumed a broader range of responsibilities including the preservation
of evidence of past atrocities,[93] re-establishment of the rule of
law and the justice system,[94] and coordination of the transition
to responsible Iraqi government.[95] These responsibilities had to be
met by the occupiers, who simultaneously, had to respect the
'sovereignty and territorial integrity of Iraq.'[96] It has already been contended by
others that not all of these Security Council based objectives can be
reconciled with each other, or with applicable norms of occupation set
out in the applicable treaties.[97] As resistance to the occupation
spread throughout Iraq, balancing these obligations became a formidable
challenge. Some
3 weeks after President Bush declared major hostilities in Iraq at an
end, the UN Security Council unanimously approved Resolution 1483.[98] The text of the resolution offered
no retrospective validation of the invasion of Iraq, although it does
offer UN recognition of the post-invasion occupation. Even without the
resolution, the occupation was already governed by The Hague
Regulations and the 4th Geneva Convention. Resolution 1483 merely
confirmed the applicability of these treaties. However the resolution
has political significance for the Coalition forces for two reasons.
Firstly it recognises the power of the occupying forces to govern Iraq
pending the emergence of responsible Iraqi government, and secondly it
represents a significant act by the UN's principal political body which
has effectively embossed the UN's imprimatur on the military occupation
of Iraq.[99] In contrast to the initial
invasion, Coalition forces were able to point to resolution 1483 as
providing an unequivocal mandate for the ongoing occupation of Iraq.
Secondly it has provided a platform for coalition forces to remain in
Iraq for an indefinite period, [100] and continue their search for
both weapons of mass destruction and senior members of the former
regime. It also demonstrates international recognition of the fact of
the occupation, and addresses important issues including the need to
safeguard the humanitarian and sovereign interests of the Iraqi people.
Resolution
1483 cements the obligations and duties of the occupying powers under
international law. Its preamble acknowledges the status of the
coalition forces as occupying powers in Iraq by '...recognizing the
specific authorities, responsibilities, and obligations under
applicable international law of these States [101] as occupying powers under
unified command (the "Authority")'.[102] Whether this preamble is binding
on the occupying powers in Iraq is a matter for conjecture. Any
preliminary statements that are not contained in the operative part of
the resolution are arguably no more than guiding principles.[103] An alternative approach is to
view the preamble as prescribing and defining the legal framework for
the occupation. This view is reinforced by two portions of the
resolution. Paragraph 5 provides that the Security Council "Acting
under Chapter VII of the Charter of the United Nations...Calls upon
all concerned to comply fully with their obligations under
international law including in particular the Geneva Conventions of
1949 and the Hague Regulations of 1907."[104] The second is a paragraph in the
preamble which refers to a letter addressed to President of the
Security Council and signed by the occupying powers. In the letter, the
US and UK governments undertake to 'strictly abide by their obligations
under international law.'[105] Although Resolution 1483
requires the occupying forces to comply with their obligations under
international law, it has been criticised for not expressly stating
that the occupiers are to pay for war damage and re-construction costs
in Iraq.[106] The applicable treaty law of
occupation and the law of armed conflict do not state that occupying
powers must pay for war damage or compensate victims of war. However
the occupiers in Iraq could be held liable to make such reparations
under principles of state responsibility if a competent tribunal was to
determine that the initial invasion was illegal and unjustifiable at
international law.[107] Resolution 1483 has also been
criticised for failing to require the occupying powers to: 1. Safely
dispose of munitions containing depleted uranium 2. Detonate or remove
cluster bombs and other un-detonated munitions, 3. Gather evidence of
war crimes or crimes against humanity committed by the belligerent
parties, 4. Establish an interim Iraqi administration within a fixed
period. 1. 5. Immediately leave Iraq upon the establishment of
responsible government.[108] However, by voting in favour of
Resolution 1483, US and Britain (and possibly Australia and Poland)[109] have agreed to: i.) Comply with
the international rule of law with respect to their role as occupying
powers, ii.) A UN role in post-war Iraq,
iii.) Fulfil their
obligations under the Geneva Conventions and Hague Regulations, iv.)
Respect the sovereignty of the people of Iraq including their rights to
determine their own political future and exercise control over their
natural resources. Benvenisti[110] has highlighted a number of
important aspects of resolution 1483 that impact on the powers and
duties of the occupiers. The resolution calls for the occupants to
pursue an 'effective occupation.' This requirement can be seen to
strengthen both the duties and powers of occupying forces. Firstly it
holds the coalition to their duty to maintain law and order (without
which effective administration of Iraq is impossible.) At the same
time, it acknowledges that without the power to implement a programme
of de-Ba'athification of Iraqi society, (which includes restructuring
or dissolving of Iraqi ministries) it would be impossible to administer
Iraq effectively or fulfil other obligations of occupiers under the 4th
Geneva Convention. Resolution
1483 provides for a limited UN role in occupied Iraq. This includes
involvement in coordinating humanitarian assistance and reconstruction
activities and [in coordination with the Coalition Provisional
Authority] assisting the people of Iraq to:[111] "...restore and establish
national and local institutions for representative governance...encouraging
international efforts to contribute to basic civilian administration functions...promoting
the protection of human rights...encouraging
international efforts to rebuild the capacity of the Iraqi civilian
police force ...(and)... encouraging international efforts to promote
legal and judicial reform"[112] The Authority is required to
work within the framework of the UN Charter "...and other relevant
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 creation of conditions in which the Iraqi people can freely
determine their own political future."[113] All member states of the UN are
encouraged to assist in the implementation of the resolution through
the Security Council's direct appeal to member states to "deny safe
haven to those members of the previous Iraqi regime who are alleged to
be responsible for crimes and atrocities and to support actions to
bring them to justice."[114] A significant innovation in
Resolution 1483 is the creation of the office of UN Special
Representative for Iraq. The Special Representative has an important
role in overseeing compliance with the law of occupation, and as a
representative of the international community, is independent of the
occupying powers. The text of the resolution and the characterisation
of the role of the UN and its Special Representative has however been
criticised. Benvenisti suggests that it '...is a rather convoluted and
unsatisfactory way to inject the issue of human rights into the fray of
occupation policies.'[115] He does however commend the
Security Council for creating the office of UN Special Representative
to Iraq, noting that it is the first time the UN has had an independent
supervisory role during a belligerent occupation.[116] Tragically, just months after
his appointment to the position, Special Representative Sergio Vieira
de Mello was killed on 19th August 2003 when the UN Headquarters in
Baghdad was destroyed in a suicide bomb attack. Several resistance
groups opposed to the occupation claimed responsibility for the attack.[117] De Mello was not replaced, and
UN staff in Iraq were withdrawn to UN offices in Cyprus and Jordon,
where they remain. The absence of a UN Special Representative has
significantly diminished the capacity of the UN to fulfil its Security
Council mandated role in Iraq. In the lead up to
the invasion of Iraq there was considerable speculation over the
Coalition's intentions with regard to Iraq's oil and associated
revenue. Resolution 1483 provides that oil revenue is to be paid into a
Development Bank for Iraq and disbursed at the direction of the
Authority in consultation with an Iraq interim administration.[118] This revenue is to be used for
the purposes of "the economic reconstruction and repair of Iraq's
infrastructure." This will include repairs to plant and equipment in
Iraqi oil fields. Funds are also to be used 'in a transparent manner to
meet the humanitarian needs of the Iraqi people', 'for the continued
disarmament of Iraq', and to meet 'the costs of civil administration.'[119] Surplus funds are to be held in
trust for the people of Iraq pending the installation of a
representative government.[120] The legality of oil contracts
entered into by the Coalition Provisional Authority goes beyond the
scope of this paper, but has been considered by others.[121]
When
legitimate power passes to the occupier, the latter must "take all
measures in his power to restore and ensure as far as possible public
order and safety while respecting the laws in force in the country."[122] This obligation is contained in
both treaty[123] and customary law,[124] however it does not arise until
an occupying power has achieved 'effective control.'[125] The question of when effective
control has actually been achieved is therefore of vital importance in
determining at what point occupying forces are obliged to maintain and
restore law and order. According to Human Rights Watch, "Under
customary international law, this duty begins once a stable regime of
occupation has been established, but under the Geneva Conventions, the
duty attaches as soon as the occupying force has any relation with the
civilians of that territory, that is, at the soonest possible moment, a
principle that finds reflection in U.S. military policy."[126] The International Committee of
the Red Cross asserts that "There is no intermediate period between
what might be termed the invasion phase and the inauguration of a
stable regime of occupation. Even a patrol which penetrates into enemy
territory without any intention of staying there must respect the
Conventions in its dealings with the civilians it meets."[127]
The importance of preparation for the assumption
of the obligation to maintain order was also highlighted by human
rights NGOs in the lead up to the invasion of Iraq. Human Rights Watch
contended that international law requires that: "...the United States
and its allies...use
their own personnel to secure public order as they advance through the
country..' and further that the Coalition '...be prepared to mobilize
and adequately train local military, and eventually police, personnel
for such responsibilities. These forces must follow directly on those
that displace existing authorities, to leave no intermediate period for
reprisal and revenge."[128] Legal scholars have long
asserted that where belligerent forces intend to occupy an enemy's
territory, they must be in a position to make their authority felt and
their protection effective within that newly occupied territory.[129] The scale of looting and
lawlessness in the immediate aftermath of the invasion is indicative of
the Coalition's failure to meet these preconditions, particularly in
Baghdad and other parts of the 'Sunni Triangle'. This constituted an
egregious error by the occupying powers and one that can not be lightly
brushed aside.[130] It also raises questions about
whether there is effective occupation of some Iraqi towns (such as
Fullujah) when occupation forces are unwilling to enter and maintain
order in these centres of resistance to the occupation. The apparent
complicity of some Iraqi police and security personnel in attacks upon
civilians, and the refusal of Iraqi military units to fight resistance
forces in Fullujah adds to doubts that these towns are 'effectively
occupied.'[131] Where force commanders exercise
effective control over an area of territory and have the capacity to
act to restore or maintain order, and fail to do so, this would
constitute a violation of the obligation of the occupier.[132] It should be emphasised that
where an occupying area has been unable to exercise effective control
over an area, the obligation to restore and maintain order does not
arise. In Fullujah and other towns in the 'Sunni Triangle', the
intensity of resistance attacks upon Coalition forces has at various
times prevented US troops from exercising effective control over those
towns. Accordingly it can be argued that the obligations under the law
of occupation do not apply during these periods. The frequency and
sustained nature of resistance attacks upon Coalition military targets,
humanitarian agencies and Iraqi 'collaborators' clearly poses questions
about the ability of occupying powers to fulfil their duty to maintain
law and order in parts of Iraq. A detailed analysis of the resistance
movements in Iraq and their causes goes beyond the scope of this paper.
However a number of issues may be flagged for present purposes.
Firstly, there is little doubt that armed resistance in the Sunni
triangle is attributable not only to former members of the Iraqi secret
service and foreign mudjahadin, but also to members of the disbanded
Iraqi Army.[133] One consequence of the CPA's
decision to disband the Iraqi Army was that hundreds of thousands of
armed and trained Iraqi men were left unemployed and without an income.
This undoubtedly fuelled armed resistance to the occupiers.[134] Many Iraqi soldiers,
particularly those from Sunnis towns including Tikrit and Fullujah -
were intensely loyal to the Ba'ath regime. With their social and
economic status threatened by foreign occupation, it was inevitable
that some former soldiers would hide weaponry and execute armed attacks
upon the occupiers.
Secondly, the arrest and detention of dozens of
foreign nationals implicated in resistance attacks and suicide bombing
activities that have cost the lives of hundreds of Iraqi civilians
suggests inadequate efforts were made by coalition forces to secure
Iraqi borders during the invasion and early stages of the occupation of
Iraq. While some of these foreign groups may have been allowed into
Iraq by the Ba'ath regime before the war, others have been able to
enter during the occupation. Failure to prevent the infiltration of
foreign fighters is indicative of general failures by the Coalition to
provide adequate security to the Iraqi population. One may ask 'How can
occupiers be expected to maintain security in an environment where some
resisters are well armed and prepared to engage in suicide bombing and
self-annihilation tactics?' Occupiers are expected to fulfil their
obligations under the law of occupation. If they are unable to do so,
they have a number of options: (1) end their occupation and withdraw
from the territory, (2) declare certain portions of the occupied
territory to be under the effective control of other belligerents, (3)
Negotiate the transfer of control over the territory to local
inhabitants, preferably under UN auspices, or (4) hand over control of
the territory to a UN peacekeeping force. To their credit, the
occupying powers in Iraq appear to have accepted that prolonged foreign
occupation is untenable. In November 2003, during a period of sustained
and devastating resistance attacks upon Coalition forces, humanitarian
workers and Iraqi civilians, the coalition accelerated its plans for a
transition from foreign occupation to Iraqi self government, agreeing
to a transfer of sovereignty on 30 June 2004.
Restoration of security is a primary objective of any occupying force,
for without it, other obligations such as the provision of clean water,
electricity and other basic necessities cannot be fulfilled. In the
year since the collapse of the Ba'ath regime, security has not yet been
restored in many parts of Iraq. In Baghdad, US forces still retreat
behind the walls of presidential palaces and military compounds before
dark in order to avoid attack by groups resisting the occupation.
Attacks upon coalition forces are frequent, and have on occasion been
met by the use of lethal force by US troops. US soldiers have on
occasion fired into crowds of protestors,[135] raising concerns in some areas
about whether US forces are providing public security or undermining
it. The International Committee of the Red Cross has noted that:
"Achieving security must be in conformity with international human
rights law standards. These standards apply to all those acting under
US authority including members of the US and coalition armed forces
Iraqi Police and international law enforcement officers."[136] Similar concerns were raised
during the early stages of British occupation of Southern Iraq,
although these concerns appear to have eased over time.[137] In May 2003 Alex Renton, a
spokesman for Oxfam speaking from the Iraqi town of Nasiriyah observed:
'The question of security is fundamental...as
is the problem of looting. We did actually manage to repair the water
system in Nasiriyah, only to see it looted a couple of days later.'[138]
Occupying powers (Belligerent Occupying Forces) must respect both the
lives and private property rights of occupied peoples. Private property
cannot be confiscated,[139] and pillage is formally
forbidden.[140] Occupying forces have an
obligation to prosecute those who steal private property, whether the
offenders are soldiers of an occupying power, or members of the local
population.[141] However they also have
considerable latitude under international law in the use of public
buildings and other property of an occupied territory, including cash
funds that are the property of the state.[142] Depots of arms, means of
transport, stores and supplies, vessels, and weapons belonging to
private individuals may all be seized and used during a military
occupation.[143] There is however an obligation
to restore property and fix compensation "...when peace is made."[144] In the context of occupied Iraq,
these rights and obligations (and all others attaching to occupying
forces under treaty and customary law) must however be read subject to
the provisions of Security Council resolution 1483. This resolution is
silent on the question of the liability of occupying forces to pay
compensation for damage or loss of property, yet paragraph 5 does call
upon 'all concerned to comply fully with their obligations under
international law including in particular the Geneva Conventions of
1949 and the Hague Regulations of 1907.' Accordingly, Coalition forces
remain liable under principles of state responsibility to meet the
costs of repair or replacement of property seized during the
occupation. These costs may not be recovered from the proceeds of sale
of Iraqi oil or other assets belonging to the people of Iraq, but must
be met by the occupying powers themselves. Television footage
of the looting of the National Museum in Baghdad in April 2003 raised
international concern about the protection of cultural property in
Iraq. A series of Hague Conventions[145] provide a regime for the
protection of cultural heritage. Under article 56 of the 1907 Hague
Regulations: 'the property of municipalities, institutions dedicated to
religion, charity and education, the arts and sciences, even when State
property, shall be treated as private property. All seizure of,
destruction or wilful damage done to institutions of this character,
historic monuments, works of art and science, is forbidden, and should
be made the subject of legal proceedings.'[146]
The Hague Regulations of 1907 and the Hague
Convention for the Protection of Cultural Property in the Event of
Armed Conflict [1954] form part of customary law, however subsequent
protocols do not yet enjoy such status. The US is yet to ratify any of
the international instruments pertaining to the Protection of Cultural
Heritage, although it has signed the Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflict [1954].
It has neither signed nor ratified any of the other UN era instruments
pertaining to the protection of cultural heritage. Australia ratified
the 1954 Hague Convention in 1984, but is yet to ratify either
Protocol. The United Kingdom has not ratified any of these three
instruments. However, Iraq, Australia and the United Kingdom have all
ratified the Paris Convention On The Means Of Prohibiting And
Preventing the Convention On The Means Of Prohibiting And Preventing
the Illicit Import, Export And Transfer Of Ownership Of Cultural
Property [1970], which entered into force in 1972. Accordingly, all
belligerent powers except the US have treaty obligations to prevent the
illegal export of cultural heritage. However their obligations with
respect to the comprehensive protection of cultural heritage during
conflict are more limited. Some of these gaps in the protection of
cultural property have been filled by Resolution 1483. The occupying
powers and forces serving under them[147] are bound under Resolution 1483
by significant obligations with respect to cultural property. The
preamble to Resolution 1483 stresses 'the need for respect for the
archaeological, historical, cultural, and religious heritage of Iraq,
and for the continued protection of archaeological, historical,
cultural, and religious sites, museums, libraries, and monuments'.
Paragraph 7 of the operative part of the resolution imposes direct
obligations on the occupying powers. It requires that 'all Member
States take appropriate steps to facilitate the safe return to Iraqi
institutions of Iraqi cultural property and other items of
archaeological, historical, cultural, rare scientific, and religious
importance illegally removed from the Iraq National Museum, the
National Library, and other locations in Iraq since the adoption of
resolution 661 (1990) of 6 August 1990, including by establishing a
prohibition on trade in or transfer of such items and items with
respect to which reasonable suspicion exists that they have been
illegally removed...' The occupying powers in Iraq have obviously been
in the prime position to facilitate the recovery of cultural property,
and have done so through the interception of goods at international
border posts, and the collection of stolen artefacts during searches of
vehicles and homes.
Occupying powers have obligations regarding the protection and
administration of public assets. As trustees rather than owners of
public property, occupying powers must 'safeguard the capital of these
properties.'[148] Accordingly, the failure to
prevent the wanton destruction of public property by saboteurs in areas
under occupation, may amount to a breach of these obligations.
Occupiers also have an obligation to administer public property in
accordance with the rules of usufruct. This means that while they may
enjoy the profits and advantages of public property during occupation,
coalition forces (and others using public property upon the direction
of the Authority) must not damage or alter such property in any way.[149]
Treaty law on occupation expressly includes a number of human rights
guarantees. Occupying forces have a duty to treat all people humanely -
including civilians, combatants and persons in detention. Detainees are
entitled to this right whether or not they are afforded POW status.[150] Furthermore, detainees are not
to be subjected to physical or moral coercion to obtain information.[151] Torture, mutilation and corporal
punishment are also specifically prohibited.[152] Other prohibited conduct
includes the extermination of protected persons and the imposition of
physical suffering.[153] Accordingly, the use of torture
or physical and moral coercion in an attempt to obtain information
relating to the location of weapons of mass destruction (WMDs), members
of Hussein's ruling elite or resistance fighters and munitions would be
illegal. The delivery of detainees to third states that are amenable to
the use of torture as a means of obtaining information is also illegal.
Such conduct violates both the prohibition on forcible transfers,[154] and the prohibition on the use
of torture, the latter being a non-derogable norm of ius cogens. The
imposition of collective penalties,[155] the taking of hostages, and acts
of reprisal by occupying forces for attacks on their troops are all
prohibited under the laws of armed conflict.[156] Occupying powers must also
comply with their obligations under general human rights instruments
where these have either been ratified by the occupying power or the
occupied state, or have entered into customary law.[157] The forcible
transfer of protected persons (including POWs and 'unlawful
combatants') from occupied territory to the territory of the Occupying
Power, or any other country, is prohibited regardless of motive.[158] However, as with many Geneva
Convention prohibitions, there are significant caveats which weaken
this general prohibition.[159] In the context of forcible
transfers, evacuations are permitted 'if the security of the population
or imperative military reasons do demand.'[160] However, 'such evacuations shall
not involve the displacement of protected persons outside the bounds of
the occupied territory except when for material reasons it is
impossible to avoid such displacement. Persons thus evacuated shall be
transferred back to their homes as soon as hostilities in the area in
question have ceased.'[161] Any transfer by the Coalition of
detainees from Iraq to Guantanemo Bay would violate the laws of
occupation. Ultimately Coalition forces in Iraq did not follow the
Afghanistan precedent of sending detainees to Cuba, choosing instead to
intern them in Iraq. The requirements that prisoners of war may only be
interned within the occupied territory in which they were captured,
extends to former Ba'ath regime officials - including Saddam Hussein. There are specific
duties upon occupying powers to protect women during occupation.[162] Women must be especially
protected against any attack 'to their honour- in particular from rape,
enforced prostitution or any form of indecent assault.'[163] The obligation of coalition
forces to protect women is of particular importance given reports of a
significant increase in rape and other serious human rights abuses
since the fall of the Hussein regime.[164] Women are staying at home due to
their fear of being kidnapped or assaulted by men with guns, and also
because of the absence of any effective system of justice.[165] Evidence of serious sexual
crimes against women in Baghdad has been documented by human rights
groups including Human Rights Watch.[166] Occupying
powers have strenuous obligations to provide for the health of occupied
peoples, including those in detention.[167] These obligations include
requirements to implement preventative measures to: a) combat the
spread of contagious diseases and epidemics, and b) ensure and maintain
the cooperation of national and local medical and hospital
establishments and services, and public health and hygiene in the
occupied territory.[168] Coalition forces were put on
notice regarding these obligations by various NGOs prior to the
invasion of Iraq.[169] Resolution 1483 urges all states
(not just the occupiers) to provide humanitarian aid in Iraq. It calls
upon all Member States to "...help meet the humanitarian and other
needs of the Iraqi people by providing food (and) medical supplies."[170] Paragraph 14 provides that
"...the Development Fund for Iraq shall be used in a transparent manner
to meet the humanitarian needs of the Iraqi people..."
However the principle obligation remains with the
occupiers to meet the basic needs of the occupied population. The 4th
Geneva Convention places the onus on occupying states to [among other
things]: i) ensure the food and medical supplies of the population,[171] ii) agree to relief schemes,[172] and
iii) allow free
passage of consignments of food, medical supplies and clothing.[173]
Occupying powers are prohibited from altering the status of judges or
public officials in occupied territories.[174] However, somewhat incongruously
they are permitted to remove public officials from their posts.[175] Accordingly, US proposals to
purge the Iraqi legal system of judges loyal to Saddam Hussein[176] are permissible under the laws
of occupation. Such action may also be said to be necessary in order to
further the objectives of Security Council Resolution 1483 which calls
for a 'representative government based on the rule of law that affords
equal rights and justice to all Iraqi citizens'[177] as well as ' international
efforts to promote legal and judicial reform'.[178] The removal of judges who have
played a role in the apparatus of cruel and oppressive regimes has
historical precedent. In post-war Germany, the allies agreed to remove
members of the previous regime from public office.[179] The Potsdam Declaration
[Tripartite Agreement by the United States, the United Kingdom and
Soviet Russia concerning Conquered Countries, August 2, 1945] provided
that: "All members of the Nazi party who have been more than nominal
participants in its activities and all other persons hostile to Allied
purposes shall be removed from public and semi public office and from
positions of responsibility in important private undertakings. Such
persons shall be replaced by persons who, by their political and moral
qualities, are deemed capable of assisting in developing genuine
democratic institutions in Germany." In contrast to the position
adopted by the occupying powers in Iraq, the victorious allies of World
War II did not consider themselves constrained by the existing laws of
occupation in post War Germany and Japan. They embarked on a major
overhaul of the institutions of both states, including their
constitutions, which were re-written by the occupiers.[180] As
noted above, the penal laws of an occupied territory remain in force
unless suspended or repealed by the occupying power.[181] The latter course may be adopted
where the penal laws constitute a threat to the security of the
occupying power, or is an obstacle to the application of the 4th Geneva
Convention. Occupying powers can also implement provisions which are
essential to enabling the occupying power to fulfil its convention
obligations to: 1. maintain the orderly government of the territory; 2.
ensure the security of the Occupying Power; 3. ensure the security of
the members and property of the occupying forces or administration; and
4. maintain and secure the establishments and lines of communication
used by the occupying powers.[182] Resolution 1483 calls upon the
Authority "...consistent with the Charter of the United Nations and
other relevant international law, to promote the welfare of the Iraqi
people through the effective administration of the territory."[183] It also emphasises the
importance of accountability for crimes and atrocities committed by the
previous Iraqi regime.[184] The Authority's mandate under
the resolution could be interpreted in a variety of ways. On the one
hand it may be argued that the abolition and replacement of the Iraqi
legal system and other essential organs of the state is precluded under
both the law of occupation, and resolution 1483, which does not
specifically authorise such change. On the other hand, one can point to
resolution references to the need for judicial and legal reform, and
argue that the good governance of the territory may demand that the
legal system be rapidly overhauled. Such reform may be necessary so
that the thousands of detainees may be afforded their rights to be
released and/or brought to trial without undue delay. Paragraph 4 of
the resolution arguably provides a basis for the alteration of the
existing legal system by the Authority, if without such reform, the
Authority is impeded in its efforts to fulfil its obligations under the
resolution.[185] Vetting of the Iraqi judiciary
has been necessary to ensure that judicial officers who may have been
complicit in crimes committed by members of the Ba'ath regime do not
preside over cases involving the very persons they collaborated with,
and to increase public confidence in the judiciary. However the
wholesale replacement of the Iraqi legal system would have been
unnecessary and a violation of the law of occupation.[186] By contrast, the creation of the
Central Criminal Court of Iraq to deal with "those serious crimes that
most directly threaten public order and safety"[187] is permissible, as occupying
forces are required to maintain public order and security.[188] The complete replacement of
Iraq's existing criminal code (The 1969 Iraqi Penal Code 3rd Edition)
could only be justified if the existing legal system represented a real
obstacle to the application of the 4th Geneva Convention.[189] This is not the case. To date,
the CPA has repealed and amended some provisions contained within Iraqi
criminal statutes, however it has not sought to replace the entire
Iraqi Penal Code.[190] Prior to the invasion of Iraq,
the Working Group on Transitional Justice (a group affiliated with the
US State Department's Future of Iraq Project) conducted a comprehensive
12-month review of the Iraqi legal system and considered methods of
reform.[191] Over 40 distinguished Iraqi
ex-patriot jurists, judges, lawyers and professors (now living in
England, the Emirates and the Unites States) contributed to the review
which culminated in a 700 page report.[192] However according to Professor
Cherif Bassiouni,[193] the Department of Justice threw
'all that overboard' and sent a group of 6 distinguished US federal
judges to reform the Iraqi legal system.[194] Bassiouni observed in May 2003,
that "Iraq had a well established legal system... for all practical
purposes as good a legal system as all of those in the Arab world and
many in Europe as well." [195] "... Hussein ... subverted the
judges, subverted the laws by adding amendments...as well
as by special degrees of the Revolutionary Command Council. The legal
system simply became an instrument of tyranny. What needs to be done is
to not rebuild the legal system from scratch but to remove all these
encumbrances ..."[196]
All persons detained by occupying forces are entitled to humane
treatment, regardless of how they are categorised by the occupying
power.[197] The Geneva Conventions place
ultimate responsibility for the treatment of POWs squarely upon the
government of the occupying power. Responsibility does not begin and
end with the officer in charge of the detainees, but rests with the
occupying powers themselves.[198] The requirement that POWs be
treated humanely includes a prohibition upon their confinement "except
when indispensable for safety and only while those circumstances
continue to exist."[199] Occupying Powers must also
respect the basic rights of those accused of violating the laws of
armed conflict.[200] These rights include the
guarantee of a fair trial and counsel of the defendant's choice.[201] Sentence may only be pronounced
after a trial by competent courts of the Occupying Power.[202] There are also significant
restrictions on the use of the death penalty by courts in occupied
territory.[203] The death penalty may only be
invoked upon conviction of adult persons for espionage, serious acts of
sabotage or intentional offences which have caused the death of one or
more persons. However such offences must have been punishable by death
under the law of the occupied territory in force before the occupation
began. This penalty may not be invoked against a person who was under
the age of 18 at the time of the offence. The US is therefore precluded
from executing child soldiers who are arrested during armed conflict or
the subsequent occupation of Iraq.[204]
Persons captured or detained for involvement in planning or carrying
out attacks upon occupying forces (eg acts of sabotage) may be put on
trial by the occupying power. However such persons must be provided
with the safeguards of a proper trial and defence.[205] There is a substantial
jurisprudence pertaining to military tribunals, a discussion of which
goes beyond the scope of this paper. The 4th Geneva Convention permits
the prosecution of persons who violate the laws of occupation and the
laws of armed conflict generally, before military tribunals. The rules
pertaining to the conduct of military trials contained within US
Department of Defence Military Commission Order No. 1 and subsequent
orders, do not appear to afford accused persons their full entitlements
under international law. As a consequence, these orders have met with
significant criticism.[206] The proposed tribunals appear to
have been designed with terror suspects, rather than alleged war
criminals in mind. Accordingly, concerns have been raised that these or
similar such tribunals may be used to deal with 'unlawful combatants'
in Iraq. One category of detainees that may be targeted by a US
military tribunal are those alleged to have been involved in the
planning of suicide bombing missions against coalition troops, or
attacks on oil pipelines. While such tactics are permissible during
armed conflict (and persons involved in such attacks during a military
occupation may be deemed patriots by the ousted government[207] those who engage in such attacks
may nevertheless be punished by the occupying powers.[208] The 4th Geneva Convention
proscribes spying, sabotage, and being 'a person under definite
suspicion of activity hostile to the security'[209] as conduct for which trial and
punishment by the occupier are permissible. However as noted above, all
such persons must also be afforded their rights under the 4th Geneva
Convention, including the right to a fair and regular trial.[210] It is this writer's view that
the Bush administration's rules of procedure for the conduct of
military tribunals do not satisfy the minimum requirements of
international law. Accordingly, the right to a fair and regular trial
cannot be guaranteed under this system of justice. In
addition to prosecuting those who violate the laws of occupation,
occupying powers may put on trial persons who commit grave breaches of
the Geneva Conventions. In fact they are required by law to take
measures to bring to justice those who have committed such breaches.[211] All states party to the Geneva
Conventions are obliged to pass legislation ensuring that effective
penal sanctions are in place to enable the prosecution of grave
breaches of the Conventions.[212] There are also obligations to
search for persons who have committed grave breaches, and to bring them
before the state's courts. However, any such prosecutions must be in
accordance with the minimum requirements for the conduct of trials set
out in the Geneva Conventions. In the event that former members of the
Ba'ath regime are captured in foreign states, it is likely that they
would be handed over for trial in the Iraqi Special Court[213] a court specifically established
to deal with grave crimes committed by the Ba'ath regime. Questions
have been raised about potential violations of International Law by
Coalition forces on account of the failure to prevent looting or
properly secure many sites of cultural, religious, scientific and
economic importance. Of particular concern has been the absence of
measures to protect sites containing dangerous materials, including
nuclear facilities.[215] Does the duty to maintain public
order and safety include a requirement that a large invading force
deploy sufficient personnel and resources to prevent anarchy,
lawlessness and looting within occupied cities and towns? The US and
its coalition allies clearly had the military resources to secure
ministry buildings, the national museum and other key government
facilities upon the fall of Baghdad. Whether sufficient troops could or
should have been sent to guard these buildings is a contentious issue.
US soldiers were obviously ordered to secure and protect the Ministry
of Oil, while other government buildings were looted around it. Failure
to prevent the Ministries of Education, and Trade and Industry in
Baghdad from being looted and burnt out suggest that coalition forces
have violated the laws of occupation. As noted above, Coalition forces
should have anticipated and been prepared for the rapid decent into
lawlessness upon the collapse of the regime. They are therefore
responsible for failing to prevent looting and crime waves in Iraqi
cities. Assertions to the contrary are undermined by the pre-war
warnings of many NGOs, retired military officers and interest groups,
including those mentioned above.[216] The
detention of up to 3,000 Iraqis in uncomfortable conditions (including
hooding, gagging and tying of detainees' hands) at US detention camps
close to Baghdad airport suggest further breaches of international
humanitarian law by coalition forces.[217] Many of the detainees were
civilians. It has been alleged that some were beaten by US soldiers.[218] This treatment violates
convention rights including the right to be treated humanely. Red Cross
officials were denied access to detainees for a long period of time.[219] This raises questions about
non-compliance by US forces in Baghdad with Article 30 of the 4th
Geneva Convention. This article provides for Red Cross visits to
protected persons (including detainees) and requires occupying powers
to facilitate 'as much as possible' visits to protected persons.
As noted above in the context of military tribunals, those detained in
Iraq on suspicion of involvement in terrorism must be brought before a
properly constituted court in accordance with international law.
Indefinite or prolonged detention without charge or trial is not
sanctioned by either resolution 1483 or the treaties on the law of
occupation. Coalition forces have the capacity and the duty to bring so
called 'unlawful combatants' before a competent tribunal to determine
their status. They should do so as soon as is practicable. Those who
are classified by the tribunal as prisoners of war may be detained
until the end of hostilities. Those who are suspected of involvement in
the commission of war crimes, crimes against humanity, or other crimes
against domestic or international law (including terrorism) should be
promptly charged and brought to trial. Detainees who do not fall into
either of the above categories are entitled to immediate release by the
tribunal. While the detention of those who have prepared for, planned
or engaged in acts of violence in occupied Iraq is justified under
Resolution 1483 in order to restore "...conditions of security and
stability..."[220] and also under the treaty law on
occupation, the occupying powers are still obliged to afford detainees
their rights under international law. Those who the Coalition does not
intend to put on trial must be released at the end of the occupation or
handed over to Iraqi authorities for prosecution or release. This issue
is discussed in the next paragraph. Those who are to be put on trial in
military tribunals or Iraqi courts should be afforded the right to
trial as soon as is practicable.
Article 118 of the 3rd Geneva Convention provides that: 'Prisoners of
war shall be released and repatriated without delay after the cessation
of active hostilities.' There has been much speculation that the US's
failure to make a formal declaration ending hostilities was a
calculated strategy and one designed to justify the non-release of
enemy prisoners of war.[221] In a carefully worded statement
on May 1 2003, President Bush declared 'Major combat operations in Iraq
have ended ... the United States and our allies have prevailed. And now
our coalition is engaged in securing and reconstructing that country.'[222] Once hostilities have come to an
end, occupying forces are precluded from detaining both POWs and enemy
civilians, unless they are suspected of committing grave breaches of
the Conventions or other crimes against Iraqi or international law.
Enemy civilians and soldiers, who are not suspected of such behaviour,
should be immediately released and permitted to leave the territory
under occupation.[223]
President Bush has indicated that Coalition members intend to prosecute
those responsible for war crimes committed during the current conflict
and the 1991 Gulf War.[224] Coalition forces have an
obligation to arrest, detain and bring to justice persons in Iraq who
are suspected of committing war crimes and crimes against humanity.
However at least one man suspected of killing thousands of Shiite
Iraqis has been mistakenly released by US forces.[225]
In order to comply fully with their obligations
under the Conventions, Coalition forces must make all reasonable
efforts to ensure that all of those responsible for crimes against
humanity and war crimes in Iraq are prosecuted. This may require the
arrest and prosecution of not only Iraqis but also foreign fighters and
coalition troops themselves. Occupying forces exercise martial law in
occupied territory. They are unlikely to surrender their own soldiers
to local courts. The CPA took matters a step further by conferring upon
coalition forces local immunity from criminal, civil and administrative
legal process. In a Public Notice dated 26 June 2003, the CPA made
clear that Coalition military and civilian personnel are subject to the
exclusive jurisdiction of the state contributing them to the Coalition.
Consequently, if Coalition troops are to be brought to justice for
crimes committed in Iraq, it will be under the military law of the
relevant Coalition force.
The law of occupation forms an integral part of a wider body of law -
international humanitarian law. The philosophical rationale for
international humanitarian law is the pursuit of Henry Dunant's ideal
of the protection to victims during war. The recent conflict in Iraq
has cast the spotlight upon the obligations that states assume when
they embark upon the belligerent military occupation of a foreign
state. Senior officials in the US State Department and Pentagon were
clearly aware of the law of occupation, yet the invasion of Iraq was
authorised without commanders on the ground being provided with a
coherent plan for the occupation phase. This showed reckless
indifference to both the challenges that confronted their own soldiers,
as well as the obligations owed to the people of Iraq. While military
historians are likely to describe the post-conflict phase of Operation
Iraqi Freedom as a debacle, and weighty reports will inevitably be
written on the 'Lessons Learned in Iraq', what do these mistakes tell
us about the current state of the law of occupation? Do recent events
in Iraq point to the need for a review of the law of occupation? If so
which aspects need to be re-examined? Do the obligations of occupiers
need to be refined? Do the issues of compliance with (and enforcement
of) the law of occupation need to be addressed in concrete terms
through further codification of the law?
In discussing these questions, it is important to observe that the
failure of an occupier to comply with certain obligations does not
undermine the authority of the law itself. However lessons learnt
during an occupation may inform debate on possible reform of the law of
occupation. One shortcoming of the law of occupation highlighted during
the belligerent occupation of Iraq is the lack of clarity of certain
treaty provisions in defining the nature and scope of obligations and
duties of occupying forces. The applicable treaties are often silent on
fundamental problems that can and do arise in the administration of
occupied territory. For instance, how far does the obligation to
provide basic necessities for the civilian population extend? Are the
occupiers obliged to provide employment or social security payments to
those whose livelihoods have been destroyed as a result of attacks
launched by the occupiers during the invasion phase (or even the
occupation phase) of military operations? Does any such entitlement
extend to those who have lost their employment due to structural
changes imposed by the occupiers? Must all of the infrastructure
damaged or destroyed during the conflict be repaired or replaced?
Should the occupiers be responsible for the repair of property damaged
by acts of sabotage planned or carried out by the inhabitants of the
territory prior to the occupation? Must the occupiers repair damage
caused by remnants of the former regime or other resistance forces
during the occupation? What about infrastructure that is undamaged but
dilapidated due to pre-war neglect?
The answer to these questions is not found in the
text of the applicable treaties. The answers will depend upon: (i) the
length of the occupation, (ii) how one interprets the applicable treaty
provisions on occupation, and (iii) human rights obligations under
treaty law of the respective occupying power. As a matter of common
sense, protection of the civilian population requires restoration of
basic services. This will often require the repair, maintenance and
even replacement of public infrastructure. Providing security to the
public, and maintaining law and order, may be facilitated by the
payment of pensions for the elderly and the infirm, and social security
payments to those who are unemployed, particularly where unemployment
is a direct consequence of the invasion and/or occupation. Another
option is a large scale job creation programmes including public works
schemes for the unemployed. Unfortunately these suggestions are not
codified in the applicable treaties. Consequently, the extent of the
occupier's responsibilities in these areas is a matter to be determined
in the exercise of the occupier's discretion.[226] Clearly, the treaties on
occupation were not drafted with either (i) modern social security
schemes or (ii) complex and prolonged occupations, in mind.
Notwithstanding the need for flexibility in international instruments
to take into account contrasting situations, there is a need for
partial revision of this body of law to provide greater guidance to
occupiers on their obligations. Nevertheless care must be taken to
ensure sufficient flexibility is retained in the relevant provisions so
that changing circumstances and needs may be taken into account.
The further codification of the law of occupation would likely be a
lengthy and uncertain process. A simpler, faster and more flexible
alternative involves leaving the question of the nature and scope of
the obligations of occupying powers to the Security Council to
determine on a case by case basis. This option would allow the Security
Council to address the specific needs of a particular occupation
through comprehensive and tailor made resolutions. Such resolutions may
address matters not expressly covered by the law of occupation. This is
the approach that was taken by the Security Council in Resolution 1483.
The UN Charter establishes that a resolution of the Security Council
has primacy over treaty provisions in the event of a conflict between
the two. [227] Accordingly, the Security
Council does have the authority to tailor resolutions to meet the needs
of the occupiers and the occupied in specific military occupations. If
however the Security Council does not address a salient issue, one must
have recourse to the relevant treaty law on occupation.
Although attractive from the perspective of
enabling issues not addressed in the law of occupation to be
incorporated in a binding resolution, this approach is not without its
problems. Firstly, permanent members of the Security Council can veto
such resolutions. Accordingly, those states holding the power of veto
may prevent the council from imposing obligations upon occupying powers
beyond those prescribed in the law of occupation. Secondly, a two
tiered approach to the law of occupation could emerge, whereby
permanent members of the Security Council, and their favourites, may
face less onerous obligations as occupiers than states that do not
enjoy such power or favour. This situation could arise when permanent
members of the council exercise their power of veto to defeat
substantive resolutions of the council. The veto is a formidable weapon
which hovers over the deliberations of the Security Council like an
invisible Sword of Damocles. Its mere existence is sufficient to
prevent matters that clearly constituted a threat to international
peace and security from being placed on the agenda of the Security
Council. The Chinese invasion, occupation and annexation of Tibet, and
Russia's invasion and occupation of Chechnya are two salient
illustrations of this problem. Thirdly, even where Security Council
resolutions are not vetoed, permanent members who are themselves
occupiers of foreign states have an unfair advantage in the negotiation
of the terms of resolutions that clarify the nature and scope of the
obligations and duties of occupying powers. Fourthly, as the August
2003 bombing of the UN headquarters in Baghdad so powerfully
demonstrated, close cooperation between the UN and an occupying force
that has invaded a country in violation of international law may expose
UN staff to the danger of being targeted by resistance groups who view
UN personnel as collaborators with the enemy. Fifthly, the credibility
of the UN may be undermined by the passage of resolutions that endorse
the belligerent occupation of sovereign states, particularly in cases
where the occupation was brought about through military intervention
that was not itself expressly authorised by the Security Council.
Notwithstanding these concerns, this writer is of
the view that both approaches set out above need to be adopted. Namely:
1. The law of occupation needs to be further codified to fill in
existing gaps, and 2. Security Council resolutions should be passed to
further prescribe the rights and obligations of the occupiers and the
occupied in the context of specific foreign occupations.
Resolutions 1483 is the first Security Council resolution to provide a
detailed framework for the governance of a belligerent occupation. It
is arguably the most comprehensive and innovative Security Council
mandate on the governance of an occupied territory ever issued by the
UN. It is unique for other reasons as well. Firstly it expressly
provides that the occupying powers are to comply with the treaty law on
occupation. Secondly the belligerent occupying powers in Iraq voted in
favour of the resolution, which is itself a landmark achievement.
Thirdly it makes clear the intention of the Council that the entire
resolution be read and interpreted in accordance with relevant
provisions of The Hague Regulations and the 4th Geneva Conventions.
Although by no means a perfect resolution,[228] the attention paid to matters
such as accountability for crimes of the former regime, humanitarian
aid, effective government, and recognition of the sovereign rights of
the Iraq people, reflects not only the importance the Security Council
placed on these matters, but also the acquired experience of the
Council in the authorisation and supervision of peace operations over
the past 50 years. One matter that was not addressed by the Council in
resolution 1483 is the issue of enforcement. Where a state fails to
comply with its obligations under international law, the questions of
compliance and enforcement arise. The process of enforcement of the
laws of occupation is essentially left to occupying powers.[229] A number of issues arise in this
context: 1. Accountability for violations of the law of occupation by:
a. The inhabitants of the occupied territory, and b. The occupiers
themselves.
2. State responsibility of occupying powers for
failure to meet their obligations under the law of occupation.
At the cessation of hostilities, the occupying
powers are obliged to bring those who have violated the laws of armed
conflict to justice. They are usually willing and able to put
inhabitants of the occupied territory on trial for crimes against the
occupied forces. In the case of violations of the laws of armed
conflict by the military personnel of occupying forces, the
investigation and prosecution of war crimes and other breaches of
international law is usually left to the military authorities of the
occupying power(s). As noted above, it is likely that war crimes and
crimes against humanity committed by Iraqi forces will be dealt with by
either Coalition military tribunals in Iraq or Iraqi domestic courts or
tribunals established by an Iraqi administration. By contrast, crimes
committed by coalition forces will be dealt with under the domestic
military law of the applicable coalition force, unless the occupying
states were willing to hand over those charged with war crimes to the
International Criminal Court. The issue of state responsibility for
violations of the law of occupation is more problematic. Other than the
International Criminal Court, a tribunal with limited jurisdiction,
there are no compulsory treaty mechanisms that enable neutral states to
prosecute occupying powers for violations of the laws of occupation.[230] The International Court of
Justice may only exercise jurisdiction where the states party to the
dispute have granted the court jurisdiction to determine such disputes,
or otherwise give their consent. In light of the adverse findings
against the US in Nicaragua v United States of America, Judgement,
Merits ICJ Reports 1986, the occupying powers in Iraq are unlikely to
consent to the ICJ handling disputes involving potential violations of
international law in Iraq. Consequently, the occupying powers may never
have to account for their conduct in occupied Iraq before a properly
constituted international tribunal or court. A detailed discussion of
the efficacy of the law of occupation is something that falls outside
the scope of this paper. Suffice it to say, Coalition accountability
for non-compliance with their obligations and duties under
international law is a question that is likely to be the subject of
ongoing public and academic discussion.
The belligerent occupation of Iraq has cast the spotlight on a
fundamentally important, yet often overlooked, branch of public
international law. The law of occupation delineates the duties and
responsibilities of both the occupiers and the occupied. In doing so,
it has an important role to play in enhancing the efficacy of
international humanitarian law during the military occupation of
sovereign states. The US and UK are to be commended for acknowledging
the applicability and binding nature of this body of law. In doing so
they have recognised that even those who consider themselves
'liberators' have responsibilities as occupiers. Recognition of the
binding nature of the law of occupation is important for many reasons.
Foremost is that it helps to promote compliance with its norms by
occupying forces.
While the law of occupation provides an
internationally recognised legal framework for the governance of
occupied territory, it is by no means 'all things to all people.' This
is clearly not a body of law that guarantees effective accountability
in the event of human rights violations by occupying forces. By its
nature, it vests military power and hence the levers of justice in the
hands of the occupiers. Different states have differing human rights
obligations and different mechanisms for dealing with breaches of human
rights by their citizens, be they military personnel or civilians. In
some cases this may mean that an occupying power may take little or no
action against one of its citizens for human rights violations in
occupied territory. While reflective of the realties of martial law
(and the need for occupying forces to provide security and restore
order), the absence of an effective and independent enforcement system
within the law of occupation does not sit comfortably with notions of
universal human rights protection. Reform of the law of occupation is
therefore warranted, with the principal aims being: (1.) to strengthen
enforcement mechanisms, (2.) to promote compliance, and (3). afford
greater protection of the rights of civilians during military
occupations. Recent events in Iraq have graphically demonstrated the
difficulties that can beset a belligerent occupying army. In areas
where the presence of foreign troops is unwelcome, the challenges
inherent in fulfilling basic obligations may be formidable. The dangers
involved in seeking to provide security, maintain law and order, and
coordinate reconstitution work have been illustrated by the constant
stream of attacks by resistance fighters on coalition vehicles and
compounds since the fall of the Ba'ath regime. The rising death toll
among occupying forces has done little to strengthen the resolve of the
occupiers to investigate crimes allegedly committed by their own
soldiers. In these circumstances, it is inevitable that a perception
will emerge among some members of the occupied population that
violations of basic human rights are committed by the occupying army
with impunity. For as long as the law of occupation provides a legal
framework that is essentially self-regulatory, such perceptions are
likely to continue. The existing norms reflect reluctance by those
states that negotiated the relevant treaties to relinquish sovereignty
rights to an independent umpire. Subsequent state practise has not
significantly altered this position. However the post World War II
gains of the human rights movement, the burgeoning jurisprudence on
international criminal law, and the momentum for universal justice
fostered by the entry into force of the Rome Statute of the
International Criminal Court, may provide the impetus required for
states to embark upon a review of the current law of occupation. What
is needed is 1). greater clarity of the nature and scope of the rights
and duties of the occupiers and the occupied, and 2) effective
accountability mechanisms. The obstacles that lay in the path to
gaining the requisite consensus among states to implement such reforms
are formidable. Firstly, states that may expect to find themselves in
the role of occupiers may be reluctant to assume increasingly onerous
and expensive obligations. On the other hand, many states may be
unwilling to do anything that may be seen to encourage or condone the
belligerent invasion and occupation of sovereign states. The
difficulties inherent in achieving consensus on the nature and scope of
the rights and duties of occupiers have been magnified by 1). the
refusal of the majority of sovereign states to endorse the war in Iraq
and 2). concerns that some counter-terrorism strategies may involve
belligerent occupation and the violation of state sovereignty.
Ultimately however, the reforms advocated above are in the interests of
both groups. If implemented,[231] they could provide a legal
framework that may facilitate a greater level of compliance by
occupying forces, while also deterring reckless or impulsive acts of
aggression by states.
[1] At the time of writing there are
growing concerns in the UK that legal advice given by Attorney-General
Lord Goldsmith to Prime Minister Tony Blair may have been 'revised' to
satisfy the Chief of Defence Staff. War Chief Reveals Legal Crisis By
Antony Barnett and Martin Bright Observer March 7, 2004http://www.globalpolicy.org/security/issues/iraq/attack/law/2004/0307warchief.htm
<date accessed 9th March 2004> For an analysis of
arguments for and against the legality of the war see: Charlotte Ku,
'When Can Nations Go To War? Politics And Change In The UN Security
System' 24 Mich. J. Int'l L. 1077 It has been suggested that eight out
of ten international lawyers have concluded that the invasion of Iraq
was unlawful: Professor 'The Occupation Of Iraq: What International Law
Requires Now' Mary Ellen O'Connell http://jurist.law.pitt.edu/forum/forumnew107.php
date <accessed 30 June 2003>. See also: 'Howard Must Not
Involve Us in an Illegal War' experts The Age Newspaper 26 February
2003. (This statement was signed by 43 international law experts and
warned that an invasion of Iraq and the initiation of a war would be
illegal.); Clarke, B. 'Can the Gulf War (2) be justified under
International Law?' (2003) http://www.findlaw.com.au/directory/archive.asp?id=321
<accessed on 13 June 2003>; Bill Campbell and Chris
Moraitis; George Williams and Devika Hovell; Grant Niemann 'Advice on
the Use of Force against Iraq' MJIL Vol 4 Issue 1 2003 177; William H
Taft and Todd F. Buchwald 'Pre-emption in Iraq and International Law'
97 AJIL 557 at 557. (Taft and Buchwald assert that Operation Iraqi
Freedom was a permissible use of force on the basis of existing
Security Council resolutions and by reference to the doctrine of
pre-emptive strike.)
[2] Benvenisti asserts that "the
resolution refutes claims that occupation as such is illegal." 'Water
Conflicts during the occupation of Iraq' 97 AJIL (2003) 860 at 860.
[3] Article 2(4) of the Charter of the
United Nations imposes a prohibition on the use of force. The right of
self defence under article 51 can only be exercised by states in the
limited circumstances defined by the Charter or customary law. The
exact parameters of the right are highly contentious. In the author's
view, the invasion and occupation of a state on the pretext that the
state may pose a threat to the state launching the invasion does not
fall within the scope of Article 51.
[4] For a detailed discussion of the
occupations of Cyprus, Panama and Afghanistan see: Benvenisti, Eyal The
International Law of Occupation. Princeton: Princeton University Press,
1993. The occupations of Palestinian territory by Israel and Northern
Cyprus by Turkey both involve the prolonged occupation of territory.
They have continued in spite of repeated Security Council resolutions
calling for the withdrawal of the occupiers.
[5] Security Council Resolution 1483
(2003)
[6] Greenwood, C 'Book Review And Note:
The International Law of Occupation By Eyal Benvenisti' 90 A.J.I.L. 712
at 712
[7] Greenwood, C 'Book Review And Note:
The International Law of Occupation By Eyal Benvenisti' 90 A.J.I.L. 712
at 712
[8] Michel Veuthey Guerilla et droit
humanitaire (2nd edn., 1983), p355 cited in Adam Roberts 'What is
Military Occupation' BYIL Vol LV (1984) 249.
[9] See Preamble to Security Council
Resolution 1483 (Both the US and the UK voted in favour of this
resolution which described them as occupying powers.)
[10] Article 42, The Hague Regulations
IV (1907)
[11] See Hilaire McCoubrey
International Humanitarian Law 2nd Edition Ashgate 1998 p199
[12] See Launterpacht (Ed.) Oppenhiem's
International law Vol II 7th Edition 1952 p434 See also: Kelly, M.J.
Restoring and Maintaining Order in Complex Peace Operations: The Search
for a Legal Framework Kluwer
[13] See Article 4th Geneva Convention
[14] Article 1 Hague Regulations IV
(1907)
[15] Article 2 Hague Regulations IV
(1907)
[16] The doctrine of the rule of law
was popularised by A.V. Dicey in his book 'Introduction to the study of
law of the constitution' (1885).
[17] CPA Public Notice Regarding the
Status of Coalition, Foreign Liaison and Contractor Personnel 26 June
2003 date accessed 16 April 2004 http://www.cpa-iraq.org/regulations/20030626_20030626_CPANOTICE_Foreign_Mission_Cir.html.pdf
[18] The General Assembly has
recognised the right of sovereign states to resist alien occupation in
a number of resolutions. See for example: 'Declaration on the Granting
of Independence to Colonial Countries and Peoples' of the UN General
Assembly. Resolution 1514 [XV] of 14 December 1960. However the nature
and scope of this right has never been precisely defined by either the
General Assembly or the Security Council. It is also important to note
that any right to resist foreign occupation may be abrogated by the
Security Council. The Council must however be acting pursuant to its
powers under Chapter VII of the UN Charter. For example, where a
military occupation has been endorsed by the Security Council, and
resistance forces have been ordered to lay down their arms and/or
desist from further military activity, further attacks upon occupying
forces may be regarded as a violation of international law.
[19] For a useful discussion of the
legal framework for the law of occupation arising from these
Conventions see Roberts, A, 'What is a Military Occupation' BYIL Vol LV
(1984) 249 at p 251-255.
[20] Protected persons are defined in
Article 4 of the 4th Geneva Convention as those who "...find
themselves, in the case of a conflict or occupation, in the hands of a
Party to the conflict or Occupying Power of which they are not
nationals."
[21] The 1907 convention is also
referred to as the 'Hague Rules'.
[22] Article 1 Hague Regulations (1907)
[23] Article 2 Hague Regulations (1907)
[24] See Article 42 Hague Regulations
(1907)
[25] See Section III, Hague Regulations
(1907) (Articles 43-56).
[26] See Lester Nurick and Rodger W.
Barrett 'Legality of Guerrilla Forces under the Laws of War' 1946 AJIL
563 at p567
[27] For an excellent discussion of
these issues see Oppenhiem's International Law, Lauterpacht Volume II
7th Edition, Chapter XII 'Occupation of Enemy Territory'.
[28] Convention (I) for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field. Geneva, 12 August 1949 Convention (II) for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members
of Armed Forces at Sea. Geneva, 12 August 1949. Convention (III)
relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Convention (IV) relative to the Protection of Civilian Persons in Time
of War. Geneva, 12 August 1949.
[29] See Roberts, A 'What is a Military
Occupation' BYIL Vol LV (1984) 249 at p253
[30] See Article 18, Vienna Convention
on the Law of Treaties (Concluded At Vienna 23 May 1969 Entry Into
Force 27 January 1980)
[31] Adam Roberts & Richard
Guelff, Documents on the Laws of War, 3rd Edition Oxford University
Press 2000 at p196.
[32] An example of a provision of the
Hague Regulations that continues to be authoritative is Article 42. It
provides the legal definition of occupation, a concept not defined in
the Geneva Conventions.
[33] Adam Roberts & Richard
Guelff, Documents on the Laws of War, 3rd Edition Oxford University
Press 2000 at 418.
[34] See Article 3 1977 Additional
Protocol 1
[35] Roberts, A 'What is a Military
Occupation?' BYIL Vol LV (1984) 249 at p 254
[36] Article 90 provides for
establishment of Fact Finding Commissions. The commissions are
empowered to do no more than conduct enquiries into alleged grave
breaches of the Geneva Conventions and Additional Protocol 1, and
report findings. There is no provision for impartial tribunals to be
convened to deal with crimes committed by occupying powers. Admittedly
it is extremely unlikely that powerful states would ever assent to such
independent scrutiny of the conduct of occupation forces.
[37] See for example: Goodman D.P. 'The
Need for Fundamental Change in the Law of Belligerent Occupation'
[37] Stan. L. Rev. 1573 at 1608. For an
excellent discussion of the deficiencies of this body of law see also
Robertson, G Crimes against Humanity, Penguin (2002) 2nd Edition pages
193-196
[38] By September 23 2004, the US had
persuaded 63 States to enter into 'Article 98 Agreements' (bilateral
impunity agreements) to ensure that those states do not surrender US
citizens to the International Criminal Court. Press Statement 2003
'Article 98 Agreements' Richard Boucher, Washington, DC September 23, http://www.state.gov/r/pa/prs/ps/2003/24331.htm
date accessed 11 March 2004
[39] 'Bankovic And Others v. Belgium
And 16 Other Contracting States' Declared Inadmissible Press release
issued by the Registrar on 19.12.2001 http://www.echr.coe.int/Eng/Press/2001/Dec/Bankovicadmissibilitydecisionepress.htm
date accessed 18 March 2004. The case arose out of the bombing by the
North Atlantic Treaty Organisation ("NATO") of Radio-Television
Serbia's headquarters in Belgrade as part of NATO's campaign of air
strikes during the Kosovo conflict. Sixteen people were killed in the
missile attack. The case was brought against 17 NATO states. The Court
had to decide whether it had jurisdiction to determine alleged
violations of the European Convention on Human Rights, and whether
relevant acts had occurred outside the territory of the NATO States.
[40] A solution to this problem is for
US forces to provide guarantees that they would not expose detainees
handed over by UK forces to the death penalty or to any other form of
punishment or treatment that may violate the ECHR and associated
protocols.
[41] The 1966 International Covenant on
Civil and Political Rights (ICCPR) is a comprehensive multilateral
treaty for the protection of fundamental human rights. It codifies many
of the rights set out in the Universal Declaration of Human Rights
(1948). There are two Protocols to the ICCPR. The first provides a
complaint mechanism for alleged breaches of the Covenant. The second is
an instrument ratified by states who have given their solemn
undertaking to: 1. not to carry out the death penalty and 2. seek its
universal abolition.
[42] Adopted by the Eighth United
Nations Congress on the Prevention of Crime and the Treatment of
Offenders, Havana, Cuba, 27 August to 7 September 1990. UN Document
Series Symbol: ST/HR/ UN Issuing Body: Secretariat Centre for Human
Rights (c) United Nations http://www.hri.ca/uninfo/treaties/43.shtml
date accessed 26 June 2003
[43] See: Paragraph 5 (a) and (b) UN
Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials http://www.hri.ca/uninfo/treaties/43.shtml
date accessed 26 June 2003
[44] http://www.hri.ca/uninfo/treaties/3.shtml
UN Document Series Symbol: ST/HR/ UN Issuing Body: Secretariat Centre
for Human Rights United Nations Date accessed 26 June 2003 Adopted and
opened for signature, ratification and accession by General Assembly
resolution 2200 A (XXI) of 16 December 1966
[45] Article 2, International Covenant
on Civil and Political Rights
[46] The Principles on the Use of Force
and Firearms by Law Enforcement Officials were adopted by consensus by
the Eighth U.N. Congress Sept. 7, 1990. The International Covenant on
Civil and Political Rights entered into force in 1976. By March 2004,
it had been ratified by 148 states: http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_4.html
<date accessed 11/7/2003>
[47] The Prosecutor Of The Tribunal
Against Dusko Tadic Case No. It-94-1-I Opinion and Judgement of Trial
Chamber II of 17 May 1997
[48] The Prosecutor Of The Tribunal
Against Dusko Tadic Case No. It-94-1-I Opinion and Judgement of Trial
Chamber II of 17 May 1997, page p202
[49] Jurisprudence of the ICTY affirms
that provisions of the Geneva Conventions have customary status: See
Tadic Case, Opinion and Judgement of Trial Chamber II of 17 May 1997,
page 192 & 199. The Trial Chamber noted in Tadic that it was
implicit in the decision of the ICTY Appeals Chamber of 2 October 1995
that the Geneva Conventions are part of customary international law.
[50] By way of example, Article 2 of
The Hague Convention (1907) is now redundant. It reads: ' The
provisions contained in the Regulations referred to in Article 1, as
well as in the present Convention, do not apply except between
Contracting powers, and then only if all the belligerents are parties
to the Convention.' As the Hague Convention and Regulations of 1907 are
now binding upon all states under customary law, Article 2 no longer
has legal effect.
[51] Neither 1977 Additional Protocol l
nor 1977 Additional Protocol II have been ratified by the US. For a
discussion of this issue see: Geoffrey Robertson, Crimes against
Humanity, Penguin (2002) 2nd Edition page 196.
[52] The most contentious provisions
relate to the abolition of the right of reprisal and the granting of
irregular legal status. For an overview of US concerns with 1977
Additional Protocol I see: Abraham D. Sofaer, 'The U.S. Decision Not To
Ratify Protocol I To The Geneva Conventions On The Protection Of War
Victims (Cont'd): The Rationale For The United States Decision' 82
A.J.I.L. 784 at 785.
[53] See: Theodor Meron 'The Time has
come for the United States to Ratify Geneva Protocol I' (1994) 88 AJIL
678. Writing in 1994, Meron asserted that 'Occasional dissents from the
protocol may not be... enough to keep the country out of the customary
law regime being created by the Protocol. (682) As 161 states have now
ratified 1977 Additional Protocol 1, the US may already be bound by the
entire Protocol under customary law.
[54] See for example US Field Manual
27-10 (1956) paragraph 7(c) on the Law of Land Warfare and Field Manual
100-23 Peace Operations (1994) Chapter 3 (I) Legal Considerations http://www.globalsecurity.org/military/library/policy/army/fm/
date accessed 19 July 2003
[55] Rules of engagement documents can
be drawn up for specific military operations (such as the conflict in
Iraq.) These documents are unusually classified. The Rules of
Engagement for US Forces (1994) reflect many of the enduring legal
principles set out in the US Department of Army Field Manual 27-10 on
the Law of Land Warfare (1956). Australian military forces operate in
accordance with rules of engagement drafted in accordance with the
Australian Defence Force Doctrine on Rules of Engagement. See Bulman,
T.P. 'A Dangerous Guessing Game Disguised as Enlightened Policy: United
States Law of War Obligations during Military Operations other than
War' Military Law Review Vol 159 152 at 166.
[56] Article 64, 4th Geneva Convention
[57] Kelly, M.J. Restoring and
Maintaining Order in Complex Peace Operations: The Search for a Legal
Framework Kluwer p188-9
[58] Article 64, 4th Geneva Convention
[59] Kelly, M.J. Restoring and
Maintaining Order in Complex Peace Operations: The Search for a Legal
Framework Kluwer page 190
[60] General Assembly resolutions that
enter into custom through implementation and recognition by states may
also be a source of rights of occupying powers, while Security Council
resolutions made under Chapter VII are binding on states and may
therefore be a source of rights and duties.
[61] Eyal Benvenisti, 'Agora: Future
Implications of the Iraq Conflict: Water Conflicts During the
Occupation of Iraq' 97 AJIL 860 at 861-3
[62] Paragraph 4 of Resolution 1483
calls upon the Authority '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 creation of conditions in which the Iraqi people
may freely determine their own political future.'
[63] This question was addressed by
Judge Launterpacht in his separate opinion in the Bosnian Genocide Case
(ICJ) 1993 [Application of the Convention on the Prevention and
Punishment of the Crime of Genocide, Provisional Measures, Bosnia v.
Yugo., 1993 I.C.J. 3 (Apr. 8).]. Ken Roberts offers a very useful
analysis of the significance of Judge Launterpacht's
observations:'Judge Lauterpacht... asserted that the Court does not
have the right to substitute its discretion for that of the Council in
determining the existence of a threat to the peace, a breach of the
peace or an act of aggression. [FN126]. Judge Lauterpacht also raised
the issue of the Court's ability to review a Council decision which
conflicts with a principle of jus cogens. [FN127] The ad hoc Court
member carefully distinguished the case at hand from that of Lockerbie,
in which the decision of the Council had prevailed over any treaty
obligation by virtue of Article 103. The distinguishing factor in
Bosnia v. Yugoslavia was the fact that the prohibition against genocide
has long been established as a principle of jus cogens. [FN128] Because
the concept of jus cogens is superior to both treaty and customary
international law, the relief offered in Lockerbie by Article 103 did
not apply. Insofar as Resolution 713 unwittingly supported the
perpetration of genocide contrary to an established rule of jus cogens,
Judge Lauterpacht suggested that the decision might become legally null
and void. With regard to the elimination of the arms embargo vis- a-vis
Bosnia-Herzegovina, he went as far as stating that he would be prepared
to indicate the following provisional measure: "[t]hat as between the
Applicant and the Respondent the continuing validity of the embargo in
its bearing on the Applicant has become a matter of doubt requiring
further consideration by the Security Council." [FN129] While going so
far as to indicate a potential power of review for the Court, Judge
Lauterpacht stopped short of any arrogation of power, structuring his
suggested measure in terms which would allow the Council to do the
actual reviewing. While the majority of the Court did not make any
statement regarding judicial competence to review a Council decision
which conflicts with a principle of jus cogens, Judge Lauterpacht's
commentary may well be an indication of one direction in which the
Court may increase its powers in the future.': Ken Roberts,
'Second-Guessing the Security Council: The International Court of
Justice and its Powers of Judicial Review' Pace International Law
Review Spring 1995 http://www.globalpolicy.org/wldcourt/roberts.htm
date accessed 14 April 2003
[64] Thomas D. Grant 'How to Reconcile
Conflicting Obligations of Occupation and Reform' June 2003 < http://www.asil.org/insights/insigh107a1.htm
> [date accessed 17 June 2003]
[65] Questions of Interpretation and
Application of the 1971 Montreal Convention Arising from the Aerial
Incident in Lockerbie, Request for the Indication of Provisional
Matters, ICJ Reports (1992) 3; See also Graefrath, B 'Leave to the
Court What Belongs to the Court: The Libyan Case' EJIL http://www.ejil.org/journal/Vol4/No2/art3.html
date accessed 16 July 2003 last modified: Monday, August 07, 2000
12:47PM
[66] Questions of Interpretation and
Application of the 1971 Montreal Convention Arising from the Aerial
Incident in Lockerbie, Request for the Indication of Provisional
Matters, ICJ Reports (1992) 3
[67] Others include the Korean and
Vietnam Wars. The Iraq Conflict may be distinguished due to the scale
of international discussion on the legality of embarking upon military
conflict.
[68] 'THIS ILLEGAL WAR MUST BE
CONDUCTED LAWFULLY' International Commission of Jurists (last modified
20 March 2003); (date accessed 20 March 2003) <http://www.icj.org/news.php3?id_article=2774&lang=en>;
'ICJ DEPLORES MOVES TOWARD A WAR OF AGGRESSION ON IRAQ' (last modified
18 March 2003); (date accessed 12 June 2003) <http://www.icj.org/news.php3?id_article=2770&lang=en>
[69] 'International Humanitarian Law
Issues In A Potential War In Iraq', Human Rights Watch Briefing Paper,
(Last modified February 20, 2003); (Date accessed 26 May 2003) <http://www.hrw.org/backgrounder/arms/iraq0202003.htm>
[70] Alex Kirby 'Foes urged to spare
Iraq's wildlife' http://news.bbc.co.uk/1/hi/sci/tech/2761571.stm
16 February, 2003, 00:17 GMT <accessed 26 June 2003>
[71] February 5, 2003 'Experts can
discuss impact of possible war' http://news.uns.purdue.edu/UNS/html3month/030205.T.Iraq.html;
See also United Nations Office for the Coordination of Humanitarian
Affairs, "Integrated Humanitarian Contingency Plan for Iraq and
Neighbouring Countries" [Confidential Draft] (January 7, 2003) http://www.casi.org.uk/info/undocs/internal.html
Date accessed 26 June 2003
[72] 'War in Iraq: what it would mean
for Asia' by Lawrence Bartlett http://origin.dailynews.lk/2003/01/22/fea05.html
date accessed 26 June 2003 and Patrick Tyler 'Anti-war protests a
reminder of political consequences of backing US' February 18 2003 http://www.theage.com.au/articles/2003/02/17/1045330538542.html
accessed 26 June 2003
[73] Observer http://www.guardian.co.uk/Iraq/Story/0,2763,887404,00.html
date accessed 26 June 2003; 'The economic consequences of war' Vincent
Cable
[74] 'Blind Into Baghdad: The Inside
story of a historic failure' 2004 The Atlantic January/February 2004 http://www.theatlantic.com/issues/2004/01/fallows.htm
date accessed 18 March 2004. The Fallows article reaffirms shortcoming
expressed by the Center for Strategic and International Studies as
early as July 2003. See: Anthony H. Cordesman, Iraq and Conflict
Termination: The Road to Guerilla War? Center for Strategic and
International Studies (Washington DC) Revised 28 July 2003.
[75] 'Blind Into Baghdad The Inside
story of a historic failure' 2004 The Atlantic January/February 2004 http://www.theatlantic.com/issues/2004/01/fallows.htm
date accessed 18 March 2004
[76] 'Thomas Warrick , the State
Department official who directed the Future of Iraq project , was
considered to be in the anti war camp.': James Fallows, 'Blind Into
Baghdad The Inside story of a historic failure' http://www.theatlantic.com/issues/2004/01/fallows.htm
date accessed 18 March 2004
[77] James Fallows, 'Blind Into Baghdad
The Inside story of a historic failure' The Atlantic January/February
2004 http://www.theatlantic.com/issues/2004/01/fallows.htm
date accessed 18 March 2004
[78] Joel Charny Refugees International
[79] James Fallows, 'Blind Into Baghdad
The Inside story of a historic failure' The Atlantic January/February
2004 http://www.theatlantic.com/issues/2004/01/fallows.htm
date accessed 18 March 2004
[80] James Fallows, 'Blind Into Baghdad
The Inside story of a historic failure' The Atlantic January/February
2004 http://www.theatlantic.com/issues/2004/01/fallows.htm
date accessed 18 March 2004
[81] James Fallows, 'Blind Into Baghdad
The Inside story of a historic failure' The Atlantic January/February
2004 http://www.theatlantic.com/issues/2004/01/fallows.htm
date accessed 18 March 2004
[82] See extracts of interview with
Thomas White retired general James Fallows, 'Blind Into Baghdad The
Inside story of a historic failure' 2004 The Atlantic January/February
2004 p 22-23 http://www.theatlantic.com/issues/2004/01/fallows.htm
DATE ACCESSED 18 March 2004
[83] 'Reconstructing Iraq: Insights
Challenges And Missions For Military Forces In The Post Conflict
Scenario' Army War Colleges Web Site http://www.carlisle.army.mil/ssi/pubs/2003/reconirq/reconirq.htm
date accessed 18 March 2004
[84] James Fallows, 'Blind Into Baghdad
The Inside story of a historic failure' 2004 The Atlantic
January/February 2004 p 28 http://www.theatlantic.com/issues/2004/01/fallows.htm
[85] James Fallows, 'Blind Into Baghdad
The Inside story of a historic failure' 2004 The Atlantic
January/February 2004 p 28
[86] Third Infantry Division
(Mechanized) After Action Report - Operation Iraqi Freedom http://www.globalsecurity.org/military/library/report/2003/3id-aar-jul03.pdf
<date accessed 29 February 2004>
[87] Third Infantry Division
(Mechanized) After Action Report - Operation Iraqi Freedom http://www.globalsecurity.org/military/library/report/2003/3id-aar-jul03.pdf
<date accessed 29 February 2004>
[88] See for example: Human Rights
Watch Report "Sidelined: Human Rights in Postwar Iraq" By Joe Stork and
Fred Abrahams http://www.hrw.org/wr2k4/6.htm
date accessed 14 March 2004. The Report highlights some of the
consequences of the Pentagon's approach to planning for the occupation.
[89] Kirgis, F 'Security Council
Resolution 1483 on the Rebuilding of Iraq' May 2003 AJIL <http://asil.org/insights.htm
> Date accessed 11 March 2004
[90] Article 43, Hague Regulations
(1907)
[91] Article 55 4th Geneva Convention
[92] These obligations arise from the
requirement to ensure health and hygiene [4th Geneva Convention Article
56] and also arise by implication from paragraph 4 of Resolution 1483
(2003)
[93] See also: 'Principles on the
Effective Prevention and Investigation of Extra-legal, Arbitrary and
Summary Executions' (date accessed 16 June 2003);(last modified 2002) http://193.194.138.190/html/menu3/b/54.htm,
Economic and Social Council resolution 1989/65, and United Nations
Press Release HR/4667 IK/358 High Commissioner For Human Rights
Concerned Over Possible Loss Of Evidence Of Past Abuses In Iraq 16 May
2003 http://www.un.org/News/Press/docs/2003/hr4667.doc.htm
[94] Article 64 4th Geneva Convention,
See also Paragraphs 3,4 and 8 of Resolution 1483 (2003)
[95] See: Paragraphs 8 & 16
Security Council Resolution 1483 (2003)
[96] Preamble to Security Council
Resolution 1483 (2003)
[97] See for example: Thomas D. Grant
'How to Reconcile Conflicting Obligations of Occupation and Reform'
June 2003 < http://www.asil.org/insights/insigh107a1.htm
> [date accessed 17 June 2003]
[98] Resolution 1483 was passed on May
22, 2003.
[99] Benvenisti has noted that 1483
marks the first time that the Security Council has 'resorted to the
concept of occupation to describe a situation in which foreign troops
control areas through the use of force.' Eyal Benvenisti, 'Agora:
Future Implications of the Iraq Conflict: Water Conflicts During the
Occupation of Iraq' 97 AJIL 860 at 861
[100] In light of the agreement signed
by the Coalition Provisional Authority and the Iraqi Governing Council
in November 2003, which provides for the return of full sovereignty to
Iraqis in July 2004, the legitimate occupation of Iraq as authorised in
Resolution 1483 may now be said to expire on the agreed date, subject
to any extension agreed by both parties.
[101] It is unclear whether "these
states" include Australia and Poland. The preamble to the resolution
implies that only to those states that signed the letter to the
President of the Security Council dated 8 May 2003 are occupying
powers. (Ie The United Kingdom of Great Britain and Northern Ireland
and the United States of America.) Australian SAS forces were involved
in the ground invasion, and a small number of Australian forces remain
in Iraq. It is therefore arguable that Australia has ongoing
obligations under the law of occupation as an occupying power.
[102] Security Council Resolution 1483
(2003)
[103] See: Thomas D. Grant 'How to
Reconcile Conflicting Obligations of Occupation and Reform' June 2003
< http://www.asil.org/insights/insigh107a1.htm
> [date accessed 17 June 2003]
[104] Paragraph 5 Resolution 1483.
Note however that even in the absence of Resolution 1483, the coalition
forces would still have been bound by their obligations under both
treaty law (the Geneva Conventions of 1949 and The Hague Regulations of
1907) and customary law.
[105] Letter from the Permanent
Representatives of the UK and the US to the UN addressed to the
President of the Security Council S/2003/538 May 8, 2003 date accessed
23 July 2003, http://www.globalpolicy.org/security/issues/iraq/document/2003/0608usukletter.htm
[106] "the US and UK have almost
complete control over the funds of the Development Fund for Iraq. At
the same time, these governments are not required to pay war
reparations nor are they held to their obligation as occupying powers
under the Geneva Conventions to pay for the humanitarian needs caused
by their illegal invasion and occupation" Greens Oppose Un Security
Council Resolution Legitimising US Invasion and Occupation of Iraq'
www.gp.org/press/pr_05_29_03html dated 29 May 2003 accessed 1 July 2003
[107] As Australia participated in the
initial ground invasion, it could ultimately share responsibility for
these costs if liability were established.
[108] While the occupying powers are
not bound under international law to do any of these things,
undertakings to satisfy such moral duties would assist in the promotion
of fundamental norms of civilised society. The promotion of such norms
is a feature of the human rights movement, the proliferation of
humanitarian minded NGOs and the accompanying expansion of principles
of good governance, democracy and humanitarianism.
[109] Australia and Poland have both
contributed military personnel and other resources during the invasion
and occupation of Iraq. Both states lobbied for a UN resolution
expressly authorising the use of force in Iraq. Other states have
contributed forces during the occupation phase. States such as Spain
and Italy that have sent personnel to provide security in various parts
of Iraq would appear to be bound by the law of occupation at least to
the extent of ensuring that their forces comply with this body of law
while they remain in Iraq.
[110] Eyal Benvenisti, 'Agora: Future
Implications of the Iraq Conflict: Water Conflicts During the
Occupation of Iraq' 97 AJIL 860 at 863.
[111] Security Council Resolution 1483
paragraph 8
[112] Paragraph 8, Resolution 1483
[113] Paragraph 4, Resolution 1483.
Accordingly, the UN Charter forms part of the applicable law in Iraq,
as the Coalition Authority is bound by its principles.
[114] Paragraph 3, Resolution 1483
[115] Eyal Benvenisti, 'Agora: Future
Implications of the Iraq Conflict: Water Conflicts During the
Occupation of Iraq' 97 AJIL 860 at 863.
[116] Eyal Benvenisti, 'Agora: Future
Implications of the Iraq Conflict: Water Conflicts During the
Occupation of Iraq' 97 AJIL 860 at 863.
[117] Three resistance groups have
claimed responsibility for the bombing - Hafs el-Masri Brigades, the
Armed Vanguards of the Second Muhammad Army, and Muhammad's Army.
[118] Paragraphs 12 & 13
Resolution 1483
[119] Resolution 1483
[120] Paragraphs 11-14 Resolution 1483
[121] See for example: Pieter H.F.
Bekker 'The Legal Status of Foreign Economic Interests in Occupied
Iraq' http://www.asil.org/insights/insigh114.htm
July 2003. Bekker notes that 'the legal status of contracts concluded
during an occupation and exceeding the length of the occupation is
uncertain, especially if such contracts relate to the occupied state's
natural resources. '
[122] Article 43 The Hague Regulations
IV (1907). See also Hague Regulations (IV) of 1907 art. 43; 4th Geneva
Convention, art. 27.
[123] Article 43 The Hague Regulations
IV (1907)
[124] Both the Hague Regulations IV
(1907) and the 4th Geneva Convention have entered into custom. See also
Bulman, T.P. 'A Dangerous Guessing Game Disguised as Enlightened
Policy: United States Law of War Obligations during Military Operations
other than War' Military Law Review Vol 159 152
[125] Kelly, M.J. Restoring and
Maintaining Order in Complex Peace Operations: The Search for a Legal
Framework Kluwer p185
[126] 'International Humanitarian Law
Issues in a Potential War in Iraq', Human Rights Watch Briefing Paper,
February 20, 2003 http://www.hrw.org/backgrounder/arms/iraq0202003.htm
accessed 26 may 2003 Cf. Hague Regulation [Articles 42, 43]; Fourth
Geneva Convention [Article 6]; ICRC Commentary on the Fourth Geneva
Convention, p. 60 ("There is no intermediate period between what might
be termed the invasion phase and the inauguration of a stable regime of
occupation. Even a patrol which penetrates into enemy territory without
any intention of staying there must respect the Conventions in its
dealings with the civilians it meets."). The U.S. Army Field Manual
also calls for applying the protections that relate to occupation "as
far as possible in areas through which troops are passing and even on
the battlefield." [Field Manual, 27-10, p. 138, para. 352]
[127] Commentary Art. 6 Convention
(IV) relative to the Protection of Civilian Persons in Time of War.
Geneva, 12 August 1949 <http://www.icrc.org/ihl.nsf/0/030537c0a8ee01dfc12563cd0042a6be?OpenDocument>
< date accessed 15 April 2004>
[128] 'International Humanitarian Law
Issues In A Potential War In Iraq', Human Rights Watch Briefing Paper,
February 20, 2003 http://www.hrw.org/backgrounder/arms/iraq0202003.htm
[accessed 26 May 2003] Note: There is little doubt that if the
Coalition had in place sufficient numbers of properly trained and
equipped personnel in Baghdad and other cities and towns when the
regime was displaced, the widespread looting, lawlessness and criminal
activity could have been much less, and public order more effectively
maintained. This issue is explored further later.
[129] Morgan and Baty p 182
[130] James Fallows, 'Blind Into
Baghdad The Inside story of a historic failure' 2004 The Atlantic
January/February 2004 November 2003 http://www.theatlantic.com/issues/2004/01/fallows.htm
date accessed 17 March 2004
[131] '2 American Civilians Killed in
Iraqi Ambush' Rajiv Chandrasekaran Washington Post Foreign Service
March 11, 2004 http://www.washingtonpost.com/wp-dyn/articles/A47999-2004Mar10.html
[132] Kelly, M.J. Restoring and
Maintaining Order in Complex Peace Operations: The Search for a Legal
Framework Kluwer, p185-188
[133] See: Saddam's Revenge, A film by
Antonio Rados
[134] Fallows has noted that the
Future of Iraq Project, the Army War College and other organisations
had warned against disbanding the Iraqi army: 'Blind Into Baghdad The
Inside story of a historic failure' 2004 The Atlantic January/February
2004 November 2003 http://www.theatlantic.com/issues/2004/01/fallows.htm
date accessed 17 March 2004
[135] U.S. Troops Fire on Iraq
Protesters Again http://www.guardian.co.uk/worldlatest/story/0,1280,-2622272,00.html
Wednesday April 30, 2003 date accessed 26 June 2003
[136] 'The War in Iraq and
International Humanitarian Law' Human Rights Watch '<http://www.hrw.org/campaigns/iraq/ihlfaqoccupation.htm>
(Last updated on May 16, 2003); (date accessed 18 June 2003)
[137] During the first 8 weeks of the
military occupation of Southern Iraq by British troops, the people of
Basra remained fearful for their lives and property. 'Basra: British
Troops Fail to Provide Security' Human Rights Watch 3 June 2003 <http://hrw.org/?press/2003/06/iraq060303.htm>
(date accessed 12 June 2003); 'Basra: Crime and Insecurity under
British Occupation' Human Rights Watch Vol. 15 No. 6 (E) June 2003
[138] Ed Vulliamy, 'Gun gangs rule
streets as US loses control' Sunday May 25, 2003 The Observer [date
accessed 18 June 2003] <http://www.observer.co.uk/Print/0,3858,4676629,00.html>
[139] Article 46 The Hague Regulations
IV (1907) See also Art 53 4th GC.
[140] Article 47 The Hague Regulations
IV (1907)
[141] Article 56 Para 2 The Hague
Regulations IV (1907)
[142] Article 53 The Hague Regulations
IV (1907)
[143] Article 53 The Hague Regulations
IV (1907)
[144] Article 53 The Hague Regulations
IV (1907)
[145] The Hague Regulations IV (1907),
Hague Regulations for the Protection of Cultural Property in the Event
of Armed Conflict, 14 May 1954], Regulations for the Execution of the
Convention for the Protection of Cultural Property in the Event of
Armed Conflict (1954), Protocol for the Protection of Cultural Property
in the Event of Armed Conflict, The Hague, (1954) Second Protocol to
the Hague Regulations for the Protection of Cultural Property in the
Event of Armed Conflict The Hague, (26 March 1999) The Second Protocol
which aims to further strengthen the legal regime for the protection of
cultural property in the Event of Armed Conflict is yet to enter into
force and has not been signed by the US the UK , Australia or Iraq: For
ratification details for each of these instruments see UNESCO website: http://www.unesco.org/culture/laws/hague/html_eng/protocol2.shtml
> date accessed 1 July 2003 Last update:21/01/2003
[146] Article 56 The Hague Regulations
IV (1907)
[147] The Preamble to Resolution 1483
expressly recognised the UK and the US as occupying powers in Iraq.
However troops from other states including Australia, Poland, and Spain
arguably are or have been exercising the powers of an occupying army.
Troops from these states have responsibility for providing security in
designated geographical areas of Iraq. Whether they can be described as
"occupying powers or merely states that are fulfilling a role delegated
by the US and the UK is a matter for conjecture.
[148] Article 55 The Hague Regulations
IV (1907) and Article 53 4th Geneva Convention
[149] Article 55 The Hague Regulations
IV (1907)
[150] Common Article 3 Geneva
Conventions I-IV (1949)
[151] Article 31, 4th Geneva
Convention
[152] Article 33 4th Geneva Convention
[153] Article 32, 4th Geneva
Convention
[154] Article 49, and 147 4th Geneva
Convention The prohibition on forcible transfers is discussed below.
[155] Collective penalties include the
punishment of a person or people for the actions of others.
[156] Article 33 4th Geneva Convention
[157] The US has ratified the
International Convention on the Prevention and Punishment of the Crime
of Genocide (1988), the International Covenant on Civil and Political
Rights (1992), the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (1994), and the International
Convention on the Elimination of All Forms of Racial Discrimination
(1994).but is yet to ratify the Statute on the International Criminal
Court, the United Nations Convention on the Elimination of All Forms of
Discrimination Against Women, the Torture Protocol The UK has ratified
all of these instruments.
[158] Article 49 4th Geneva
Convention. This article reflects the concern of the drafting states to
prevent a repetition of the forcible transfer of peoples that occurred
in World War II. During World War II, millions of Jews (and others)
were forcibly removed from their homes, stripped of their property,
relocated to concentration camps outside their home countries and
transported to their deaths in Nazi gas chambers as part of Hitler's
Final Solution.
[159] For a discussion of this and
other weaknesses in the protections afforded under the Geneva
Conventions see, Goodman D.P. 'The Need for Fundamental Change in the
Law of Belligerent Occupation' 37 Stan. L. Rev. 1573
[160] Article 49 4th Geneva Convention
[161] Article 49 4th Geneva Convention
[162] Article 46, Hague Regulations
and Article 27, 4th Geneva Convention
[163] Article 46, Hague Regulations
and Article 27 2nd paragraph, 4th Geneva Convention
[164] 'Iraqi women forced to veil' http://news.bbc.co.uk/2/hi/middle_east/2986962.stm
Last Updated: Friday, 13 June, 2003 date accessed 12 July 2003
[165] See Carol Morello 'Women living
in fear' May 20, 2003 http://www.amanjordan.org/english/daily_news/wmview.php?ArtID=1528
date accessed 12 June 2003.
[166] 'Climate Of Fear: Sexual
Violence And Abduction Of Women And Girls In Baghdad' http://hrw.org/reports/2003/iraq0703/
date accessed 17 July 2003 This report is based on research conducted
by Human Rights Watch in Baghdad, Iraq, from May 27, 2003 to June 20,
2003.
[167] Article 56 4th Geneva
Convention. See also 'Letter dated 8 May 2003 from the Permanent
Representatives of the United Kingdom of Great Britain and Northern
Ireland and the United States of America to the United Nations
addressed to the President of the Security Council'. (S/2003/538) This
letter is referred to in resolution 1483. In it, the Coalition partners
in Iraq declared that they would "strictly abide by their obligations
under international law, including those relating to the essential
humanitarian needs of the people of Iraq." Source: <http://wwww.reliefweb.int/w/Rwb.nsf/0/d948088248b5662bc1256d260032d662?OpenDocument>
date accessed 11 July 2003
[168] Article 56 4th Geneva Convention
[169] 'U.S. unprepared for
humanitarian obligations of Iraq occupation' Date: 10 Mar 2003 Refugees
International http://www.reliefweb.int/w/rwb.nsf/0/90e440064d17d39f85256ce50061cb80?OpenDocument
Date accessed 12 June 2003
[170] Paragraph 2
[171] However there is a caveat: The
provisions of then population need only be provided by the occupying
forces" to the fullest extent of the means available to it" Article 55
4th Geneva Convention. See also Commentary
[172] Article 59 4th Geneva Convention
[173] Article 59 4th Geneva Convention
[174] Article 59 4th Geneva Convention
[175] Article 51 4th Geneva Convention
[176] 'Iraq Gets Court Reform; U.S.
Soldier Dies' http://news.findlaw.com/ap_stories/i/1107/6-17-2003/20030617160012_47.html
17 June 2003, date accessed 12 July 2003
[177] Preamble Resolution 1483
[178] Paragraph 8(i) Resolution 1483
[179] However the Allies did not
consider that the Hague Regulations applied to the occupations of
Germany or Japan.
[180] In both cases, international law
was incorporated into the domestic law of the occupied states. See:
Grundgesetz "Basic Law" (German Constitution) (May 23, 1949), Article
25: 'The general rules of public international law form part of the
Federal law. They take precedence over the laws and directly create
rights and duties for the inhabitants of the Federal territory'; and
The Constitution of Japan (November 3, 1946), Article 98: 'This
Constitution shall be the supreme law of the nation and no law,
ordinance, imperial rescript or other act of government, or part
thereof, contrary to the provisions hereof, shall have legal force or
validity. 2) The treaties concluded by Japan and established laws of
nations shall be faithfully observed.'
[181] Article 64 4th Geneva Convention
[182] Article 64 4th Geneva Convention
[183] Paragraph 4 Resolution 1483
[184] Preamble and Paragraph 4
Resolution 1483
[185] Paragraph 4 of Resolution 1483
'Calls upon the Authority, consistent with the Charter of the United
Nations and other relevant 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 creation of conditions in which the
Iraqi people may freely determine their own political future.' The
Preamble and Paragraphs 3, 4 and 8 of Resolution 1483 spell out the
powers and obligations of the occupying forces in Iraq.
[186] Article 54 of the 4th Geneva
Convention precludes the alteration of the status of judges. By
implication the total overhaul of an existing legal system (except
those aspects that offend the norms of civilised society) exceeds the
authority of an occupying power under the Geneva Conventions.
[187] Order 13 The Central Criminal
Court of Iraq (Revised - 3d Ed) 18 June 2003 <http://www.cpa-iraq.org/regulations/CPAORD13_revised.pdf
> date accessed 16 April 2004.
[188] Order 13 The Central Criminal
Court of Iraq (Revised - 3d Ed) 18 June 2003 http://www.cpa-iraq.org/regulations/CPAORD13_revised.pdf
date accessed 16 April 2004
[189] Article 64, 4th Geneva
Convention
[190] See CPA Orders 7 and 13 http://www.cpa-iraq.org/regulations
[191] 'The New Iraq' News Hour May 13,
2003 Date accessed 12 June 2003 <http://www.pbs.org/newshour/bb/middle_east/jan-june03/iraq_5-13.html>
[192] 5 April 2003 By Ralph
Dannheisser Former Iraqi Jurists Propose Plan for Post-Saddam Legal
System http://usinfo.state.gov/regional/nea/iraq/text2003/0405law.htm
The report proposes a 3 tiered approach to justice in Iraq. This
involves the establishment of a Special Iraqi Court (in Iraq) to deal
with major international crimes such as war crimes, genocide and crimes
against humanity, secondly the prosecution of serious violations of
domestic law in ordinary Iraqi courts, and thirdly the establishment of
a truth and reconciliation commission to deal with offences carrying a
maximum penalty of less than 5 years imprisonment. Professor Cherif
Bassiouni [interview] 'The New Iraq' News Hour May 13, 2003 Date
accessed 12 June 2003 <http://www.pbs.org/newshour/bb/middle_east/jan-june03/iraq_5-13.html>
[193] Professor Bassiouni, was a
nominee for the 1999 Nobel Peace Prize for his contribution to the
establishment of the International Criminal Court. He has been a law
professor at DePaul University College of Law for more than three
decades, is president of DePaul's International Human Rights Law
Institute (IHRLI) which serves as an umbrella for several DePaul
initiatives including the Weapons Control Center, the Rule of Law
program, and the Human Rights in the Americas Project. Bassiouni is a
world-renowned scholar who has authored and edited 60 books on United
States criminal law, international and comparative criminal law, and
some 200 articles published in law journals in the U.S. and other
countries. Source: Pace Law School http://www.law.pace.edu/news/sloan00.html
date accessed 27 June 2003
[194] 'The New Iraq' News Hour May 13,
2003 Date accessed May 13 2003 URL: http://www.pbs.org/newshour/bb/middle_east/jan-june03/iraq_5-13.html
See also 'The Transition to Democracy in Iraq", The working document of
the Conference of the Iraqi Opposition November 2002, Chapter 6 'Reform
of the Law and Order System' www.iraqiaffairs.org/pages/res14.htm date
accessed 14 July 2003. Jay Garner supported the Future of Iraq Project
but has stated that it was dismissed by the Pentagon. See: Frontline
documentary "Truth, War and Consequences," http://www.pbs.org/wgbh/pages/frontline/shows/truth/interviews/garner.html
date accessed 14 March 2004
[195] "The Iraq legal system was based
on the Egyptian legal system which was based on the French legal system
The Iraqi civil code was authored by an Egyptian scholar in the late
1940'5 or early 1950's. It has a very good secularised legal system.
The state department spent a whole year with over 40 distinguished
Iraqi ex-patriot jurists - judges, lawyers, professors who lived in
England the Emirates and the Unites States who worked for a whole year
to prepare a review of all the Iraqi law and how to reform them...."
[Cherif Bassiouni] 'The New Iraq' News Hour May 13, 2003 URL: <http://www.pbs.org/newshour/bb/middle_east/jan-june03/iraq_5-13.html>
[Date accessed 13 May 2003]
[196] Cherif Bassiouni The New Iraq'
News Hour [Last updated May 13, 2003] <http://www.pbs.org/newshour/bb/middle_east/jan-june03/iraq_5-13.html>
[Date accessed 13 May 2003]
[197] Common Article 3 Geneva
Conventions (1949)
[198] Article 4 Hague Regulations 1907
[199] Article 5 Hague Regulations 1907
[200] For a comprehensive list of
basic rights under international law see the International Covenant of
Civil and Political Rights (1966) and the fundamental guarantees, set
out in Article 75 (1) of 1977 Additional Protocol 1.
[201] 'International Humanitarian Law
Issues In A Potential War In Iraq', Human Rights Watch Briefing Paper,
February 20, 2003 http://www.hrw.org/backgrounder/arms/iraq0202003.htm
[accessed 26 May 2003]
[202] Article 71 4th Geneva Convention
[203] Article 68 4th Geneva Convention
[204] Article 68 Paragraph 5, 4th
Geneva Convention This prohibition stand regardless of whether the
child soldiers are classified as lawful or unlawful combatants.
[205] See for example: Article 105 4th
Geneva Convention
[206] See for example: Broomes, John
W. 'Maintaining Honor in Troubled Times: Defining the Rights of
Terrorism Suspects Detained in Cuba' (2002) 42 Washburn L.J. 107
[207] Article 5, 4th Geneva Convention
[208] Article 5, 4th Geneva Convention
[209] Article 5 4th Geneva Convention
[210] Article 5 Para 2 & 3,
4th Geneva Convention
[211] Grave breaches include wilful
killing, torture or inhumane treatment, unlawful transfer or unlawful
confinement of protected persons, wilfully depriving a protected person
to the rights of fair and regular trial prescribed in the Convention,
taking hostage, and extensive destruction and appropriation of property
not justified by military necessity: Article 147 4th Geneva Convention.
[212] Article 145, 4th Geneva
Convention
[213] The Iraqi Special Court has its
own statute that has been endorsed by the CPA and the IGC. See: CPA
Order 48 dated 10/12/03 http://www.cpa-iraq.org/regulations
[214] For an analysis of Iraqi
violations of the Law of War see:'Why do States VIOLATE THE Law of War?
A Comparison of Iraqi Violations in Two Gulf Wars Lt Robert A. Bailey
27 Syracuse Journal of International law and Commerce 103.
[215] For example there is concern at
the potential looting of nuclear material from the Tuwaitha nuclear
research facility which was looted in early May 2003 'Concern Over Iraq
Nuke Looting' VIENNA, Austria, May 5, 2003 http://www.cbsnews.com/stories/2003/05/05/iraq/main552369.shtml
date accessed 26 June 2003
[216] See also: Urban Warfare
Considerations; By C. L. Staten, Sr. National Security Analyst
Emergency Response & Research Institute Chicago, IL
Understanding and Combating Irregular and Guerrilla Forces During A
"Conventional War" In Iraq [posted 29 March 2003] [date accessed 12
June 2003] <http://www.emergency.com/2003/urban_warfare_considerations.htm>
See also Red Cross says coalition forces are responsible for law, order
in occupied Baghdad Date Friday, April 11, 2003 http://www.redding.com/news/apafternoonupdate/past/20030411aptop066.shtml
date accessed 27 June 2003
[217] Ed Vulliamy "Red Cross denied
access to PoWs" May 25, 2003 The Observer <http://www.observer.co.uk/Print/0,3858,4676630,00.html>
[date accessed 12 June 2003]
[218] "There is circumstantial
evidence that (Iraqis detained in Baghdad)... are being gagged and
hooded, in the manner of the Afghans and other captives held at
Guantanamo Bay in Cuba - treatment in itself questionable under
international law. Sunday May 25, 2003 The Observer "Red Cross denied
access to PoWs" <http://www.observer.co.uk/Print/0,3858,4676630,00.html>
[date accessed 12 June 2003] 'Red Cross denied access to PoWs' Ed
Vulliamy Sunday May 25, 2003 The Observer <http://www.observer.co.uk/Print/0,3858,4676630,00.html>
[date accessed 12 June 2003]
[219] Ed Vulliamy "Red Cross denied
access to PoWs" May 25, 2003 The Observer <http://www.observer.co.uk/Print/0,3858,4676630,00.html>
[date accessed 12 June 2003]
[220] Paragraph 4 Security Council
Resolution 1483 (2003)
[221] Pentagon Enemy Prisoner of War
Briefing from Kuwait City Thursday, May 8, 2003 http://www.defenselink.mil/transcripts/2003/tr20030508-0160.html
accessed 9 June 2003
[222] 'President Bush Announces Combat
Operations in Iraq Have Ended' Office of the Press Secretary May 1,
2003 <http://www.whitehouse.gov/news/releases/2003/05/iraq/20030501-15.html>
[date accessed 16 June 2003]
[223] For a discussion of the
obligations of belligerent forces to enemy civilians during hostilities
see Dr. Walter L. Williams, Jr. 'THE FREEDOM OF CIVILIANS OF ENEMY
NATIONALITY TO DEPART FROM TERRITORY CONTROLLED BY A HOSTILE
BELLIGERENT' 100 (1983) Mil. L. Rev. 135 at 143-145.
[224] ``Anybody who wants to harm
American troops will be found and brought to justice,'' Bush
www.guardian.co.uk/worldlatest/ story/0,1280,-2861991,00.html
<date accessed July 5 2003>
[225] Mohammed Jawad al-Neifus was
released (in error) from the Bucca Internment facility in Umm Qasr on
May 18 after being captured April 26 in the city of Hilla, not far from
a recently discovered mass grave containing the remains of thousands of
Shiites who were slaughtered after rising up against Saddam Hussein's
regime after the 1991 war: Jim Mannion 'US says suspect in murder of
Iraq Shiites released in error' <http://www.lebanon.com/news/local/2003/5/30.htm>
[Posted 30 May 2003]; [Date accessed 18 June 2003] 'U.S. casualties
prompt Iraq security crackdown' <http://www.cnn.com/2003/WORLD/meast/05/30/sprj.irq.main/>
[Saturday, May 31, 2003]; [Date accessed 18 June 2003] 'Iraq killings
suspect freed 'in error' <http://news.bbc.co.uk/2/hi/middle_east/2950398.stm>
[Posted Friday, 30 May, 2003]; [Date accessed 18 June 2003]
[226] Geneva Convention IV Articles 55
(duty to provide food and medical supplies) and 59 (relief schemes) do
not specify whether pensions and social security benefits must be paid
to the aged, the infirm and unemployed.
[227] Article 103 of the Charter
provides that: "In the event of a conflict between the obligations of
members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligations
under the present charter shall prevail.'
[228] For criticisms of the resolution
see for example Eyal Benvenisti, 'Agora: Future Implications of the
Iraq Conflict: Water Conflicts During the Occupation of Iraq' 97 AJIL
860.
[229] This situation is unsurprising
given the influence at the preparatory conventions to these treaties of
powerful states who were more likely to be occupiers than the occupied.
[230] There are of course other
mechanisms by which individuals and states may be held accountable for
violations of international law in the course of a military occupation.
These include an Ad Hoc tribunal established by the Security Council or
the International Criminal Court. Prosecutions in such cases would only
be necessary if the occupying powers were not willing or able to bring
their own citizens to justice for crimes committed in Iraq. However
given the US's failure to ratify the Rome Statute, and its insistence
on the passage of Security Council Resolution 1422 (passed in July 2002
and renewed as Resolution 1487 in June 2003) which grants immunity to
personnel involved in United Nations missions who are not from State
Parties to the ICC Statute, it is improbable that US soldiers would be
brought to justice in that forum.
[231] These reform objectives could be
implemented by a number of methods. One option is through the further
codification of the law of occupation. Codification could be undertaken
through Security Council endorsement of a modern code on occupation, or
through the entry into force of a new or revised multilateral treaty on
occupation. The later approach allows maximum participation in the
development of the code by all interested states and international
organisations. Preliminary steps to the implementation of such a treaty
could include extensive deliberations between states and NGOs such as
the Red Cross. Whether powerful states would be prepared to endorse a
code that expands upon the rights of occupied peoples and strengthens
the obligations of occupying forces is a matter for conjecture. In
light of current US administration's refusal to ratify the Rome Statute
of the International Criminal Court and its general reluctance to
embrace multilateral treaties, there must be doubt as to whether the US
would endorse a treaty that could render its soldiers, military
commanders and political leaders liable for violations of the laws of
occupation. However as the entry into force of the Rome Statute of the
International Criminal Court has shown, where there is substantial
international support for the progressive development of international
law, resistance by a few states - even powerful states - may not be
sufficient to prevent such advances.
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