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Transformative Military Occupation: Applying the Laws of War and Human Rights

  • Adam Roberts (a1)

Extract

Within the existing framework of international law, is it legitimate for an occupying power, in the name of creating the conditions for a more democratic and peaceful state, to introduce fundamental changes in the constitutional, social, economic, and legal order within an occupied territory? This is the central question addressed here. To put it in other ways, is the body of treaty-based international law relating to occupations, some of which is more than a century old, appropriate to conditions sometimes faced today? Is it still relevant to cases of transformative occupation—i.e., those whose stated purpose (whether or not actually achieved) is to change states that have failed, or have been under tyrannical rule? Is the newer body of human rights law applicable to occupations, and can it provide a basis for transformative acts by the occupant? Can the United Nations Security Council modify the application of the law in particular cases? Finally, has the body of treaty-based law been modified by custom?

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1 On the distinction between the external trappings of democracy and political systems in which freedom is deeply entrenched, see especially Fareed, Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (2003).

2 Yoram Dinstein has been characteristically consistent, clear, and unequivocal in denying the existence of such a right. Yoram, Dinstein, War, Aggression and Self–Defence 70–73, 9091, 315 (4th ed. 2005).

3 For elaboration of such a view, see Adam, Roberts, The So–Called “Right” of Humanitarian Intervention, 2000 Y.B. Int’l Humanitarian L. 3 .

4 Adam, Roberts, What Is a Military Occupation? 1984 Brit. Y.B. Int’l L. 249, 267 .

5 Daniel, Thiirer & Malcolm, MacLaren, “Ius post bellum” in Iraq: A Challenge to the Applicability and Relevance of International Humanitarian Law? in Weltinnenrecht: Liber Amicorum Jost Delbruck 753 (Klaus, Dicke et al. eds., 2005).

6 Ultimatum from Italy to Turkey Regarding Tripoli (Sept. 26, 1911), 6 AJIL Supp. 11, 11 (1912).

7 Thomas, Barclay, The Turco–Italian War and Its Problems 45 (1912). On the strong international Muslim feeling about this conquest, see the additional chapter by the Rt. Hon. Ameer Ali at 101–08. See id. at 109 for the text of Italy’s ultimatum of September 26,1911 (also supra note 6), and id. at 113 for its Decree of Annexation of November 1911.

8 The prohibition on annexations is part of customary law and finds expression in Article 2(4) of the UN Charter and in the Declaration on Principles of International Law Concerning Friendly Relations and Co–operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), annex (Oct. 24, 1970). See also Georg, Schwarzenberger, The Law of Belligerent Occupation: Basic Issues, 30 Nordisk Tidsskrift for Int’l Ret 10, 1218 (1960).

9 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 47, 6 UST 3516, 75 UNTS 287 [hereinafter Geneva Convention IV].

10 SC Res. 660 (Aug. 2, 1990), 29 ILM 1325 (1990); SC Res. 661, pmbl. (Aug. 6, 1990), 29 ILM 1325 (emphasis omitted). The texts of these and all other Security Council and General Assembly resolutions and certain other UN documents mentioned in this survey are available at <http://www.un.org/documents>.

11 SC Res. 662, para. 1 (Aug. 9, 1990), 29 ILM 1327 (1990).

12 SC Res. 670, para. 13 (Sept. 25, 1990), 29 ILM 1334 (1990); SC Res. 674, pmbl. (Oct. 29, 1990), 29 ILM 1561.

13 Dinstein, supra note 2, at 171.

14 Sharon, Korman, The Right of Conquest: The Acquisition of Territory By Force In International Law and Practice 122 (1996). For a historical perspective on transformative occupations, see also Nehal, Bhuta, The Antinomies of Transformative Occupation, 16 Eur. J. Int’l L. 721 (2005).

15 Regulations Respecting the Laws and Customs of War on Land, Arts. 42,43,48,49, 51, 52, 53, 55, annexed to Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [hereinafter Hague Regulations].

16 In Geneva Convention IV, supra note 9, the term “Occupying Power” appears in Articles 4–6, 30, 47–61, 63–68,70–75,78, and 143. A continuing role for the authorities of the occupied territories is implicitly envisaged in Articles 6 and 47.

17 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, Arts. 14, 15, 63, 64, 69, 85, 1125 UNT S3 [hereinafter Protocol I]. The same term is used in the UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, Art. 5, 249 UNTS 240.

18 International Committee of the Red Cross [ICRC], Commentary on the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War 273 (Jean, Pictet gen. ed., 1958), available at <http://www.icrc.org/ihl>.

19 In regard to Israel’s role in the West Bank, the term “trustee occupation” was proposed by Allan Gerson in 1973. He suggested that since this occupation had certain special features, not all the provisions of the law on occupations need necessarily apply. He himself conceded that Israel had not in the end assumed the role of “trustee occupant.” Allan, Gerson, Israel, the West Bank and International Law 7682 (1978).

20 Hague Regulations, supra note 15, Art. 43; see also id., An. 23(h). For a useful discussion of Article 43 and its flexibility in practice, see Marco, Sassòli, Legislation and Maintenance of Public Order and Civil Life by Occupiers, 16 Eur. J. Int’l L. 661 (2005).

21 U.S. Dep’t of Army, Law of Land Warfare 143 (Field Manual No. 27–10,1956); United Kingdom [UK] War Office, The Law of War on Land, Being Part III of the Manual of Military Law 145 (1958) [hereinafter 1958 UK Manual]. Its successor, the 2004 triservice manual, states that the occupant may suspend or amend existing laws of the occupied territory in certain defined circumstances. UK Ministry of Defence, the Manual of the Law of Armed Conflict 278–79, 284 (2004) [hereinafter 2004 UK Manual].

22 Donnison, F.S.V., Civil Affairs and Military Government: North–West Europe 1944–46, at 381–82,477–78 (1961); Harris, C.R.S., Allied Military Administration of Italy 1943–1945, at 14 (1957); 2 Oppenheim, L., International Law: Atreatise 446–47 (Hersch, Lauterpacht ed., 7th ed. 1952); see also 2004 UK Manual, supra note 21, at 143

23 Geneva Convention IV, supra note 9, Art. 64. In the 1958 UK Manual it was implied that an occupant may also repeal or suspend laws if in the occupied territory there is no “adequate legal system in conformity with generally recognised principles of law.” 1958 UK Manual, supra note 21, at 145. In similar spirit, its 2004 successor states: “The occupying power should make no more changes to the law than are absolutely necessary, particularly where the occupied territory already has an adequate legal system.” 2004 UK Manual, supra note 21, at 284.

24 3 Final Record of the Diplomatic Conference of Geneva of 1949, at 139, amend. 294; see 2A id. at 670. The draft: text of Article 55 that the United States sought to replace is in id. at 858. A useful report on Article 55 appears in id. at 833. These negotiations on the text of the Civilians Convention were conducted in the conference’s Committee III.

25 2A id. at 670.

26 Id. at 671.

27 Id.

28 See the further discussion in id. at 672, and the report back by the Drafting Committee, id. at 771. In the index of contents of the four volumes of the Final Record, there is no entry for “human rights” or “Universal Declaration.”

29 Geneva Convention IV, supra note 9, Art. 6(3).

30 Protocol I, supra note 17, Art. 3(b).

31 Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810, at 71 (1948).

32 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 221 [hereinafter ECHR].

33 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171 [hereinafter ICCPR].

34 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3 [hereinafter ICESCR].

35 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, 1465 UNTS 85 [hereinafter Convention Against Torture].

36 Frank, C. Newman, The International Bill of Human Rights: Does it Exist? in Current Problems of International Law: Essays on Un Law and on The Law of Armed Conflict 107 (Antonio, Cassese ed., 1975).

37 Many works on human rights law make little or no reference to the problems of armed conflict and military occupation. See, e.g., Paul, Sieghart, The Lawful Rights of Mankind: An Introduction to the International Legal Code of Human Rights (1985).

38 William, W. Bishop Jr., International Law: Cases and Materials 470 (3d ed. 1971).

39 Dietrich, Schindler, The International Committee of the Red Cross and Human Rights, Int’l Rev. Red Cross, No. 208, Jan.–Feb. 1979, at 3, 7 .

40 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non–international Armed Conflicts, opened for signature Dec. 12, 1977, Art. 6, 1125 UNTS 609.

41 On the various factors leading to the negotiations, which were ultimately to result in the 1977 Geneva Protocols I and II, see particularly Frits, Kalshoven, Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Conference of Government Experts, 24 May–12 June 1971, 1971 Neth. Y.B. Int’l L. 68 .

42 See, for example, the two–volume survey prepared by the UN Secretariat, Respect for Human Rights in Armed Conflicts: Existing Rules of International Law Concerning the Prohibition or Restriction of Use of Specific Weapons, UN Doc. A/9215 (1973).

43 Ernst, Fraenkel, Military Occupation and the Rule of Law 205 (1944).

44 However, see Gerhard von, Glahn, The Protection of Human Rights in Time of Armed Conflicts, 1971 ISR. Y.B. Hum. Rts. 208, 213–14, where he accepts the applicability, in time of armed conflicts, of fundamental human rights.

45 1958 UK Manual, supra note 21, at 143. Its 2004 successor includes reference to the applicability of human rights law. 2004 UK Manual, supra note 21, at 282.

46 Morris, Greenspan, The Modern Law of Land Warfare 161 n.34; 247 n. 123; 250 n. 133; 504 n.393 (1959); see also Morris, Greenspan, The Protection of Human Rights in Time of Warfare, 1971 Isr. Y.B. Hum. Rts. 228, 229 (stating that human rights instruments “apply in war as well as in peace”).

47 Martin, & Joan, Kyre, Military Occupation And National Security 97 (1968).

48 Draper, G.I.A.D., The Status of Combatants and the Question of Guerilla [sic] Warfare, 1971 Brit. Y.B. Int’l L. 173, 218 .

49 Draper, G.I.A.D., The Relationship Between the Human Rights Regime and the Law of Armed Conflicts, 1971 Isr. Y.B. Hum. Rts. 191, 206 .

50 Yoram, Dinstein, The International Law of Belligerent Occupation and Human Rights, 1978 Isr. Y.B. Hum. Rts. 104, 116 ; see also Yoram, Dinstein, Human Rights in Armed Conflict: International Humanitarian Law, in Human Rights and International Law: Legal and Policy Issues 345 (Theodor, Meron ed., 1984).

51 Aristidis, S. Calogeropoulos–Stratis, Droit Humanitaire Et Droits De L’homme: La Protection De La Personne En Période De Conflit Armé (1980).

52 Eyal, Benvenisti, The International Law of Occupation 189 (1993).

53 Kenneth, Watkin (deputy judge advocate general/operations, Canadian Forces), Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 AJIL 1, 12, 2628 (2004).

54 ICCPR, supra note 33, Art. 9(2).

55 Geneva Convention IV, supra note 9, Art. 78(1).

56 Michael, J. Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 AJIL 119, 141 (2005). This article is part of Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory, id. at 1 [hereinafter Agora].

57 ICCPR, supra note 33, Art. 2(1).

58 See also the further discussion of Dennis’s article as it relates to the Israeli–occupied territories and Iraq, in text at notes 74 and 76 infra.

59 See, e.g., Respect for Human Rights in Armed Conflicts, GA Res. 2444 (XXIII) (Dec. 19, 1968) (adopted unanimously).

60 UN General Assembly resolutions specifically urging the application of human rights in the Israeli–occupied territories include GA Res. 2443 (XXIII) (Dec. 19, 1968); GA Res. 2546 (XXIV) (Dec. 11, 1969); GA Res. 2727 (Dec. 15, 1970); and the subsequent annual resolutions entitled “Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories.”

61 On the foundational regulations of the Kosovo and East Timor administrations, see infra notes 130 and 131.

62 See text at notes 75, 136, 152 infra.

63 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16, para. 122 (June 21). Note also the references to human rights law in id., paras. 92, 131.

64 Vladimir V Kusin, From Dubček To Charter 77: A Study of ‘Normalisation’ in Czechoslovakia 1968–1978, at 304 (1978). On the role of human rights accords in the Charter 77 movement, see also Václav, Havel Et Al., The Power of The Powerless 6978 (1985). The text of the original Charter 77 declaration, published at the beginning of January 1977 and referring extensively to international human rights agreements, is reprinted in id. at 217.

65 Conference on Security and Co–operation in Europe: Final Act, Aug. 1, 1975, 73 Dep’t St. Bul l. 323 (1975), reprinted in 14 ILM 1292 (1975).

66 Cyprus v. Turkey, App. Nos. 6780/74, 6950/75, 2 Eur. Comm’n H.R. Dec. & Rep. 125 (1975); Cyprus v. Turkey, App. No. 8007/77, 13 Eur. Comm’n H.R. Dec. & Rep. 85 (1978) [hereinafter Cyprus v. Turkey II]; Cyprus v. Turkey, App. No. 25781/94, 86–A Eur. Comm’n H.R. Dec. & Rep. 104 (1996).

67 ECHR, supra note 32, Art. 1.

68 Cyprus v. Turkey II, supra note 66, at 149.

69 Cyprus v. Turkey, 2001–IV Eur. Ct. H.R. at 22–26. On Loizidou v. Turkey, see 310 Eur. Ct. H.R. (ser. A) at 23 (1995) (Preliminary Objections); 1996–VI Eur. Ct. H.R. 2216, 2234–35 (Merits).

70 Cyprus v. Turkey, App. Nos. 6780/74, 6950/75, 4 Eur. H.R. Rep. 482, 533 (1982) (Commission report).

71 See Isr. Y.B. Hum. Rts. (almost all issues); Esther, Cohen, Human Rights In The Israeli–Occupied Territories 19671982 (1985); Adam, Roberts, Prolonged Military Occupation: The Israeli–Occupied Territories Since 1967, 84 AJIL 44, 7074 (1990).

72 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136, para. 111 (July 9). The Court focused particularly on the ICCPR, supra note 33, Art. 12, guaranteeing freedom of movement.

73 For a range of views on the ICJ advisory opinion on die security barrier, see the nine contributions in Agora, supra note 56.

74 Dennis, supra note 56, at 122–37

75 SC Res. 1483 (May22, 2003), 42 ILM 1016 (2003); SC Res.1546 (June 8, 2004), 43 ILM 1459 (2004); see text at notes 136, 152, respectively.

76 Dennis, supra note 56, at 120 & n.13.

77 Regina, ex parte Al–Skeini v. Sec’y of State for Def., [2005] EWCA Civ 1609, para. 5, available at <http://www.bailii.org>.

78 Id., para. 124.

79 Id., para. 125 (citation omitted).

80 Id., para. 142.

81 Id., paras. 142, 143, 147.

82 Id., paras. 147 (Brooke), 206 (Sedley), 210 (Richards).

83 These differences of view, which are not new, resurfaced over post–2003 Iraq. The strongest critique of the proposition that human rights law is applicable in times of occupation is that by Dennis, supra note 56, at 119–41.

84 Figures of states parties to the Geneva Conventions and Additional Protocols from the ICRC as of July 21, 2006, are available at its Web site, <http://www.icrc.org>.

85 These figures are current as of June 30,2006. Figures of states parties to the ICCPR, supra note 33, the ICESCR, supra note 34, the Convention Against Torture, supra note 35, and other human rights treaties are available from the United Nations at <http://www.ohchr.org/english/>.

86 Schindler, supra note 39, at 7.

87 Nonderogable provisions include the ECHR, supra note 32, Arts. 2, 3, 4(1), 7; and the ICCPR, supra note 33, Arts. 6, 7, 8(1) & (2), 11, 15, 16, 18.

88 For example, the United Kingdom did not make a derogation in respect of the European Convention on Human Rights in connection with the occupation of Iraq from 2003 onward. In general, it might be hard to argue that there was a “threat to the life of the nation” arising from the occupation of a distant country.

89 ICCPR, supra note 33, Art. 1; ICESCR, supra note 34, Art. 1.

90 Opinion of the Lord Chancellor and the Law Officers of the Crown (Mar. 1945), typescript copy of FO 371/50759 (U 1949), Public Record Office (now National Archives). On the British discussion about the legal status of Germany, see Donnison, F. S. V., Civil Affairs and Military Government: Central Organization and Planning 125–36 (1966).

91 The position before May 7, 1945, is widely viewed as one of normal belligerent occupation. However, as some anti–Nazi measures taken early in the belligerent phase show, there was not a completely sharp distinction between the two stages of the occupation of Germany.

92 Jennings, R. Y., Government in Commission, 1946 Brit. Y.B. Int’l L. 112, 136 .

93 Friedmann, W., The Allied Military Government of Germany 65, 67 (1947).

94 In the UN World Summit Outcome document of September 16, 2005, the United Nations member states declared that “we resolve to delete references to ‘enemy States’ in Articles 53, 77 and 107 of the Charter.” GA Res. 60/1, para. 177, at 38 (Oct. 24, 2005).

95 Geneva Convention IV, supra note 9, Arts. 2, 6. On the meaning and status of Article 6, see supra text at notes 29–30.

96 A useful study of cases of international administration since 1995 is Richard, Caplan, International Governance of War–Torn Territories: Rule and Reconstruction (2005).

97 Letter Dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/2003/351.

98 Id.

99 H.R.4655, §3, 105th Cong. (1998), passed by the House of Representatives on October 5, 1998, 144 Cong. Rec. H9483 (daily ed. Oct. 5, 1998), and the Senate on October 7, 1998, id. at S11,811 (Oct. 7, 1998), as Pub. L. No. 105–338.

100 H.R. 4655, supra note 99, §2.

101 Conditions for Military Action, Secret Cabinet Office paper, para. 2 (July 22, 2002), partially leaked in Sunday Times (London), May 1, 2005 , and published in full in Sunday Times (London), June 12, 2005 , at 10, available at <http://www.downingstreetmemo.com/cabinetofficetext.html>, and <http://www.informationclearing house.info/article9112.htm>.

102 Id., para. 11.

103 Secret Downing Street memo of the Prime Minister’s meeting, Ref. S 195/02 (July 23, 2002), published in Sunday Times (London), May 1, 2005, at 7 , available at <http://www.downingstreetmemo.com/timelinehome.html>, and <http://www.informationclearinghouse.info/article8709.htm>.

104 Tony, Blair, Statement Opening The Debate on Iraq, Hansard, House of Commons, pt. 365, col. 772, Mar. 18, 2003 , available at <http://www.parliament.uk/hansard/hansard.cfm>.

105 Lord, Goldsmith, Attorney general, Iraq: Resolution 1441, para. 7 (Mar. 7, 2003) (secret memo to prime minister, released on April 28, 2005), at <http://www.number–10.gov.uk/files/pdf/Iraq%20Resolution%20l441.pdf>.

106 Id., para. 36.

107 Yoram, Dinstein, The Gulf War, 1990–2004 (and Still Counting), 2005 Isr. Y.B. Hum. Rts. 1, 5 .

108 Hans, Blix, Disarming Iraq: The Search For Weapons of Mass Destruction (2004).

109 Two assessments of the Iraq occupation in relation to the laws of war that address many issues not tackled here are Michael, N. Schmitt & Charles Garraway, H. B., Occupation Policy in Iraq and International Law, in 9 International Peacekeeping: The Yearbook of International Peace Operations, 2004, at 27 (2005); Thurer & MacLaren, supra note 5.

110 Secret Downing Street memo of the Prime Minister’s meeting, supra note 103.

111 Paul, Wolfowitz, Interview with Melissa Block (National Public Radio, Feb. 19, 2003), available at <http://www.defenselink.mil/transcripts/2003/t02202003_t0219npr.html>. Sixteen months later, this interview was cited critically by Senator Hillary Rodham Clinton when Wolfowitz gave testimony to the U.S. Senate Committee on Armed Services on the transition in Iraq (June 25, 2004), available at <http://www.defenselink.mil/speeches/2004/sp20040625–depsecdef054l.html>.

112 There was no reference at all to the laws of war rules on occupations in an otherwise thoughtful study of Iraq by two U.S. nongovernmental institutions in which international lawyers were strongly represented. See Public International Law & Policy Group, & Century Foundation, Establishing A Stable Democratic Constitutional Structure in Iraq: Some Basic Considerations (May 2003), available at <http://www.pilpg.org>.

113 Yoram, Dinstein, Jus in Bello Issues Arising in the Hostilities in Iraq in 2003, 2004 Isr. Y.B. Hum. Rts. 1, 12 .

114 Lord, Goldsmith, Iraq: Authorisation for an Interim Administration (Mar. 26, 2003), in John, Kampfner, Blair Was Told It Would Be Illegal to Occupy Iraq, New Statesman (London), May 26, 2003 .

115 Id.

116 Id.

117 Tony, Blair, Statement on Iraq, Hansard, House of Commons, pt. 384, col. 616 (Apr. 14, 2003).

118 Id., cols. 616–17.

119 SC Res. 1472 (Mar. 28, 2003), 42 ILM 767 (2003). The preamble stated:

Noting that under the provisions of Article 55 of the Fourth Geneva Convention . . . , to the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.

The word “humanitarian” features fourteen times in this resolution.

120 13–Point Statement on a Democratic Iraq (Apr. 15, 2003), Guardian Unlimited, Apr. 16, 2003, at <http://www.guardian.co.uk/Iraq/Story/0,2763,937856,00.html>.

121 General Tommy, R. Franks, Freedom Message to the Iraqi People (Apr. 16, 2003). There is a question regarding its status. It was referred to as an important foundational document in certain later statements, including CPA Order No. 2 of May 23, 2003, see text at note 144 infra. An Arabic text of the “Freedom Message” was probably delivered by air over Iraq. However, the message does not appear to have been mentioned in the main daily press conferences given by the U.S. military at that time, or in the English–language international press. Its text is hard to locate on the Internet: it was not on the CPA, Pentagon, State Department or related Web sites when searched in March–May 2006. It was not noted at all in a study of the basic CPA framework, Elaine Halchin, L., The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities (Congressional Research Service, updated June 6, 2005), available at <http://www.fas.org/man/crs/RL32370.pdf>. Nor is its existence noted in many later books about the 2003 Iraq war. However, it can be found (in English), Ref. IZ C148, on the Aerial Propaganda Leaflet Database of the Web site of the PsyWar Society, at <http://www.psywar.org/apdsearchform.php>.

122 See supra note 121.

123 Tommy, R. Franks, Instructions to the Citizens of Iraq: Coalition Provisional Authority Directive (Apr. 16, 2003). For an English–language text, see Ref. IZ C149, at PsyWar Society Web site, supra note 121.

124 Statement by the White House Press Secretary (May 6, 2003), available at <http://www.whitehouse.gov/news/releases/2003/05/20030506–5.html>.

125 Paul Bremer, L. (with Malcolm, McConnell), My Year In Iraq: The Struggle To Build A Future of Hope 1213 (2006).

126 For an intelligent and historically informed account of the structure and role of the CPA by one of its constitutional advisers, see Noah, Feldman, What We Owe Iraq: War and the Ethics of Nation–Building (2004).

127 Letter Dated 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council, UN Doc. S/2003/538.

128 Id.

129 CPA Regulation No. 1, §1, ¶1 (May 16, 2003), available at <http://www.iraqcoalition.org/regulations/index.html#Regulations> [hereinafter CPA Regulations & Orders]. CPA regulations, orders, and other materials are also available on the CPA Web site at <http://www.cpa–iraq.org/#>. After the CPA’s role ended on June 28, 2004, it was originally indicated that the Web site would remain open for historical purposes only until June 30, 2006, but it in fact remained open after that date.

130 On the Authority of the Interim Administration in Kosovo, UNMIK/Reg/1999/1, §1,¶1 (July 25, 1999), available at <http://www.unmikonline.org/regulations/index.htm>.

131 On the Authority of the Transitional Administration in East Timor, UNTAET/Reg/1999/1, §1 (Nov. 27, 1999), available at <http://www.un.org/peace/etimor/untaetR/r–1999.htm>.

132 Halchin, supra note 121, at 8–42passim.

133 By the morning of May 9, 2003, the BBC and news agencies already had a draft text of what was to become, thirteen days later and after further amendment, Security Council Resolution 1483 (full draft text on file with author).

134 SC Res. 1483, supra note 75, pmbl. The resolution passed by a vote of 14–0. Syria was absent from the meeting.

135 Id., para. 5.

136 Id., para. 8.

137 See, e.g., SC Res. 1511 (Oct. 16, 2003), 43 ILM 254 (2004).

138 David, J. Scheffer, Beyond Occupation Law, 97 AJIL 842, 845, 849 (2003). His excellent discussion of the relation between transformative and conservationist objectives in Iraq is part of the continuation of Agora: Future Implications of the Iraq Conflict, 97 AJIL 803.

139 Scheffer, supra note 138, at 859.

140 Gregory, H. Fox, The Occupation of Iraq, 36 Geo. J. Int’l L. 195, 296 (2005).

141 For useful accounts of the Iraq events, drawing attention to the limitations of the plans and activities of ORHA and CPA, see especially Anthony, H. Cordesman, The Iraq War: Strategy, Tactics, And Military Lessons 493516 (2003); Michael, Gordon & Bernard, Trainor, Cobra II: The Inside Story of The Invasion and Occupation of Iraq 152–63 (2006); David, L. Phillips, Losing Iraq: Inside The Postwar Reconstruction Fiasco 121–68 (2005).

142 Ian, Traynor, Nuclear Looting Alarms UN Watchdog, Guardian, May 14, 2003, at 16 .

143 CPA Order No. 1 (May 16, 2003), available at CPA Regulations & Orders, supra note 129.

144 CPA Order No. 2 (May 23, 2003), available at id.

145 Bremer, supra note 125, at 54–59.

146 CPA Order No. 39 (Sept. 19, 2003), available at CPA Regulations & Orders, supra note 129.

147 Bremer, supra note 125, at 126–27.

148 The attack on the UN headquarters in Baghdad occurred five days after the passage of Security Council Resolution 1500 of August 14, 2003, establishing the UN Assistance Mission for Iraq. (The vote was 14 in favor, with Syria abstaining.) After the bombing, UNAMI was unable to function as planned in Iraq. Security Council Resolution 1546 of June 8, 2004, supra note 75, para. 7, cautiously provided for the resumption of its activities “as circumstances permit.”

149 PresidentGeorge, W. Bush, Interview with Brian Williams (NBC television news, Dec. 12, 2005), available in Lexis, News Library, Transcripts File .

150 This is the conclusion of the most thorough assessment of the subject, Richard, C. Eichenberg, Victory Has Many Friends: U.S. Public Opinion and the Use of Military Force, 1981–2005, 30 Int’l Security 140, 176 (2005).

151 For a fuller exposition, completed at the time of the transfer of authority in June 2004, see Adam, Roberts, The End of Occupation: Iraq 2004, 54 Int’l & Comp. L.Q. 27 (2005).

152 SC Res. 1546, supra note 75, pmbl. This resolution, which passed unanimously, was a substantially revised version of earlier drafts; the first had been presented at the United Nations on May 24, 2004. See also the detailed listing of the broad range of tasks of the multinational force (including even internment), and the assurance about the continued fulfillment of obligations under the law of armed conflict, contained in the letter of June 5, 2004, from the U.S. secretary of state to the president of the Security Council, annexed to the resolution.

153 Id, pmbl.

154 Id., para. 11.

155 Id., paras. 9, 12. See also the text of letters (both dated June 5, 2004) from the prime minister of the Interim Government of lraq and the U.S. secretary of state to the president of the Security Council, annexed to the resolution.

156 Id., pmbl. There had been no equivalent clause in the draft of Resolution 1546 presented at the United Nations by the United States and the United Kingdom on May 24, 2004. The revised draft presented on June 1 had included the clause in a shorter version than the final one. Only the final text, which was first circulated on June 7, contained the phrase “including obligations under international humanitarian law.”

157 Id., para. 1.

158 One post–2003 U.S. attempt to look at the matter, which it does from a policy rather than a legal perspective, is David, M. Edelstein, Occupational Hazards: Why Military Occupations Succeed or Fail, 29 Int’l Security 49 (2004).

159 U.S. Dep’t of State, Office of the Coordinator for Reconstruction and Stabilization (established by presidential directive Dec. 7, 2005), at <http://www.state.gov/s/crs/>.

160 The establishment of the Peacebuilding Commission was recommended in the September 2005 World Summit Outcome document, supra note 94, paras. 97–105, and implemented on December 20, 2005, in concurrent Resolutions 60/180 of the General Assembly, and 1645 and 1646 of the Security Council.

161 Steven, R. Ratner, Foreign Occupation and International Territorial Administration: The Challenges of Convergence, 16 Eur. J. Int’l L. 695 (2005).

162 SC Res. 1546, supra note 75, para. 1.

* This article is a product of research conducted under the auspices of the Oxford Leverhulme Programme on the Changing Character of War. Aversion will appear in due course in International Law and Armed Conflict: Exploring the Faultlines (Michael, N. Schmitt & Jelena, Pejic eds., 2006)(essays in honor of Yoram Dinstein).

Transformative Military Occupation: Applying the Laws of War and Human Rights

  • Adam Roberts (a1)

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