The International Community and the Occupation of Iraq

¹ This is in contradistinction to Kosovo and East Timor, where the international law of belligerent occupation had no application.

² D Scheffer, ‘Beyond Occupation Law’ (2003) 97 American Journal of International Law 842, 851.

³ Letter from the Permanent Representative of the United Kingdom and the United States to the United Nations, Addressed to the President of the Security Council, UN Doc S/2003/538 (8 May 2003).

⁴ ‘[The CPA is] vested with all executive, legislative and judicial authority necessary to achieve its objectives’: CPA/REG/2003/1 (16 May 2003).

⁵ ibid.

⁶ Although Roberts argues that the period of occupation may have in fact been longer on the basis that the occupiers remained physically present in Iraq and may have continued to exercise effective control over Iraqi territory: A Roberts, ‘The End of Occupation: Iraq 2004’ (2005) 54 ICLQ 27.

⁷ ‘An Historic Review of the CPA Accomplishments 2003–2004’, available at: pdf.usaid. gov/pdf_docs/PCAAB654.pdf. In fact, the CPA made these objectives quite clear in its first regulation: ‘The CPA shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability, to create conditions in which the Iraqi people can freely determine their own political future, including by advancing efforts to restore and establish national and local institutions for representative governance and facilitating economic recovery and sustainable reconstruction and development’: ibid at section 1(1).

⁸ CPA/ORD/2003/01 (16 May 2003).

⁹ ibid.

¹⁰ ibid.

¹¹ CPA/ORD/2003/02 (23 May 2003).

¹² The CPA established a ‘new Iraqi army’ in its place complete with a new system of ranks, command structures and civilian relations: CPA/ORD/2003/22 (8 August 2003). This new army was overseen by a new Ministry of Defence, established 21 March 2004: CPA/ ORD/2004/67 (21 March 2004).

¹³ Order Number 1 (2003) stated that the CPA would ‘ensure that the representative government in Iraq is not threatened by Ba’athist elements returning to power and that those in positions of authority in the future are acceptable to the people of Iraq’: s 1(1). In addition, all aspects of the party were removed from public life and all Ba’athist symbols were removed and banned from public display.

¹⁴ CPA/ORD/2004/60 (19 February 2004).

¹⁵ This included, inter alia, freedom of expression (Article 13(B)), freedom of peaceful assembly (Article 13(C)) and the freedom of thought, conscience and religious belief and practice (Article 13(F)).

¹⁶ Article 15. The CPA had already established the new Central Criminal Court (to hear serious criminal cases) and the Iraqi Special Tribunal (to hear alleged crimes against humanity), complete with special procedures to ensure fairness of trial and guarantee adherence to the rule of law; see CPA/ORD/2003/13 (18 June 2003) and CPA/ORD/2003/48 (10 December 2003) respectively.

¹⁷ Article 4 Transitional Administrative Law.

¹⁸ ibid, preamble.

¹⁹ Indeed, Administrator Bremer considered the reform of Iraq’s ‘closed, dead-end [economic] system’ as the ‘most immediate priority’: Administrator Bremer, Address at the World Economic Forum (23 June 2003), transcript available at: reliefweb.int/report/iraq/ chief-us-administrator-iraq-reviews-progress-plans-iraq-reconstruction.

²⁰ C McCarthy, ‘The Paradox of the International Law of Military Occupation: Sovereignty and the Reformation of Iraq’ (2005) 10 Journal of Conflict and Security Law 43, 52.

²¹ Scheffer, ‘Beyond Occupation Law’ (n 2) at 849.

²² CPA/ORD/2003/39 (19 September 2003).

²³ ibid.

²⁴ CPA/ORD/2004/49 (19 February 2004).

²⁵ See generally House of Commons Research Paper, Iraq – The Law of Occupation, 03/51 (2 June 2003), available at: www.parliament.uk/briefing-papers/RP03-51.

²⁶ McCarthy, ‘The Paradox of the International Law of Military Occupation’ (n 20) at 54–55.

²⁷ G Fox, ‘The Occupation of Iraq’ (2005) 36 Georgetown Journal of International Law 195, 208.

²⁸ SC Res 1483 (22 May 2003).

²⁹ E Benvenisti, The International Law of Belligerent Occupation (Princeton NJ/Woodstock, Princeton University Press, 2004) 7.

³⁰ ibid at 9.

³¹ Trial of the Major War Criminals, International Military Tribunal in Nuremburg, published in (1947) 41 American Journal of International Law 172, 248–49.

³² Article 43 therefore applies only to territory over which effective control is exercised. In certain instances this may mean only part of a state. In Iraq, however, the CPA was regarded as exercising effective control over all of the territory of Iraq: see House of Commons Research Paper (n 25).

³³ ‘The text of Article 43 seems to deal with the respect of local legislation by the occupying power only when the latter restores and ensures public order and civil life, but legislative history and current practice show that that article constitutes a general rule about the legislative powers of an occupying power’: M Sassoli, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’ (2005) 16 European Journal of International Law 661, 663.

³⁴ ibid at 663, fn 8.

³⁵ ‘[Article 43] views occupiers as trustees, preserving the status quo ante bellum’: Fox, ‘The Occupation of Iraq’ (n 27) at 234.

³⁶ ‘The Hague Peace Conferences at the end of the 19th Century were the first major multilateral negotiations to include representatives from non-European and non-Western powers on an equal basis . . . As such, they represent an important evolutionary step from what had hitherto been known as the “public law of Europe” toward a more inclusive international law among formally equal sovereign states from every region of the world’: B Brown, ‘Intervention, Self-Determination, Democracy and the Residual Responsibilities of the Occupying Power in Iraq’ (2004) 11 University of California, Davis Journal of International Law and Policy 23, 32.

³⁷ ‘A leading feature of the Hague System was its approach toward universality. Whereas the first conference was attended by only twenty-six states and was predominantly European in composition, the second involved representatives of forty-four states, including the bulk of Latin American republics . . . This was a significant step toward broadening the focus of international diplomacy, toward escaping the increasingly unrealistic European-fixation, and toward defining more accurately the boundaries of the community of nations with whose problems statesmen had to deal’: I Claude Jr, Swords into Ploughshares: The Problems and Process of International Organization (New York, Random House, 1971) 21.

³⁸ Benvenisti, The International Law of Belligerent Occupation (n 29) at 5.

³⁹