Can a military occupation-and all the responsibilities of an occupying power as laid down in the laws of war—end at a single moment in time, and without the actual departure of the foreign military forces involved? This is the core question posed by the planned twin events of 28 June 2004 in Iraq: (1) the assumption of full authority by the sovereign Interim Government of Iraq, and(2) the proclaimed end of the US-led occupation of Iraq that had begun during the war of March-April 2003.
1 Oppenheim, L International. Law: A Treatise vol 2 Disputes, War and Neutrality (Lauterpacht (ed)) (7th edn LongmansGreen London 1952) 436.
2 UN General Assembly resolutions can be taken as one (albeit imperfect) measure of international opinion on the question of self-determination for occupied territories. On the five cases cited, see eg GA Res 2403 (XXm) of 16 Dec 1968, and 43/26 of 17 Nov 1988 (both on Namibia); GA Res 2672C (XXV) of 8 Dec 1970 (the first of many calling for self-determination for the Israeli-occupied Palestinian territories); GA Res 36/5 of 21 Oct 1981, and 43/19 of 3 Nov 1988 (both on Cambodia); GA Res 36/50 of 24 Nov 1981 (on East Timor); GA Res 38/40 of 7 Dec 1983, and 43/33 of 22 Nov 1988 (both on Western Sahara).
3 For texts of these two treaties, both of which had been signed on 8 Sept 1951, see United Nations Treaty Series vol 136 at 46 and 216.
4 For details of the agreements on West Germany, see von Oppen, B RuhmDocuments on Germany under Occupation, 1945–1954 (OUPOxford 1955) 600–48. Most of the occupants' powers of intervention in West German domestic affairs had already been abolished in the Convention on Relations between the Three Western Powers and the Federal Republic, signed on 26 May 1952. Text ibid 616–17.
5 ibid 597–8. In 1955 several further steps were taken, including the opening of diplomatic relations between the USSR and GDR on 20 Sept.
6 Berlin was the subject of the four-power agreement of 3 Sept 1971, but this mentions neitherthe word ‘occupation’ nor the word ‘Berlin’. For one earlier assessment of the legal status of Berlin, see the chapter by Bishop, JW in Stanger, RJ (ed) West Berlin: The Legal Context (Ohio State University Press Columbus, Ohio 1966).A later and more comprehensive survey is Hendry, ID and Wood, MCThe Legal Status of Berlin (Grotius Publications Cambridge 1987).
7 Treaty on the Final Settlement with Respect to Germany, signed in Moscow on 12 Sept 1990. International Legal Materials vol 29 at 1186. Art 4 specifies that the withdrawal of Soviet forces from ‘the territory of the present German Democratic Republic and of Berlin … will be completed by the end of 1994 …’. Art 5 provides that, for the duration of the presence of these Soviet forces, French, UK and US forces ‘will, upon German request, remain stationed in Berlin by agreement to this effect…’. Art 7 says that France, USSR, UK, and USA ‘hereby terminate their rights and responsibilities relating to Berlin and to Germany as a whole’.
8 Keesing's Record of World Events, 37761. A four-power declaration signed on 1 Oct 1990 in New York by France, UK, USA, and USSR conferred full sovereignty on the new unified Germany pending formal ratification of the 12 Sept treaty by the legislatures of the parties
9 Ambassador Bremer, L Paul was named US Presidential Envoy to Iraq on 6 May 2003, and in this capacity was the Administrator of the Coalition Provisional Authority. Previously General Jay Garner was the US occupation administrator in Iraq, in his capacity (from 21 Apr-12 May 2003) as Director of the Office for Reconstruction and Humanitarian Assistance, which was in Baghdad.
10 Letter from the Permanent Representatives of the UK and the US (Jeremy Greenstock and John G Negroponte) addressed to the President of the Security Council, UN doc S/2003/538 of 8 May 2003. Available on the Global Policy Forum website at <http://www.globalpolicy.org/security/issues/iraq/document/2003/0608usukletter.htm>
11 CPA Order No 1, De-Ba'athification of Iraqi Society, issued by Bremer, L Paul, Administrator, CPA, Baghdad, 16 May 2003. Available on the CPA website <http://www.cpairaq.org>
12 In this article the terms ‘coalition forces’ and ‘multinational force’ are used more or less interchangeably to refer to armed forces of the USA and various partner States operating in Iraq under US leadership. The terms have slightly different baggage and connotations. The term ‘coalition forces’ can refer to the forces involved in the invasion and occupation from March to April 2003 onwards; while the term ‘multinational force under unified command’ was only introduced in Security Council Res 1511 of 16 Oct 2003, and is used mainly with reference to the various forces that remained or arrived in Iraq from that time onwards..
13 See the four 1949 Geneva Conventions, common Art 2 (on the application of the conventions to international armed conflict and to occupations); and common Art 3 (on the application of the conventions to non-international armed conflict). The 1977 Geneva Additional Protocol n, on non-international armed conflict, contains a clear definition of non-international armed conflict as taking place ‘in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’.
14 For a general discussion see Roberts, A ‘The Laws of War in the War on Terror’ in Wilson, P (ed) International Law and the War on Terrorism US Naval War College International Law Studies vol 79 (Naval War College Newport, Rhode Island forthcoming).
15 Halchin, LE The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities Congressional Research Service, Washington DC, 29 Apr 2004, summary page. As the report indicates elsewhere, the CPA had already been mentioned as an existing entity in the Greenstock and Negroponte letter of 8 May 2003. Therefore the suggestion that it was created pursuant to Security Council Res 1483 of 22 May 2003 does not make sense.
16 ibid CRS–8.
17 For a useful discussion of this problem, see Scheffer, D ‘Beyond Occupation Law’ (2003) 97 AJIL 842–60.
18 Coalition Provisional Authority and Iraqi Governing Council ‘The November 15 Agreement: Timeline to a Sovereign, Democratic and Secure Iraq’ text available at the CPA website <http://www.cpa-iraq.org>.
19 On provisions for the Transitional National Assembly, see UN Security Council Res 1546 of 8 June 2004, operative para 4(c), the provisions of which are briefly mentioned below.
20 On Ayad Allawi, see egBrinkley, J ‘Ex-CIA Aides Say Iraq Leader Helped Agency in 90's Attacks’ New York Times 9 June 2004. Available at <http://www.nytimes.com>.
21 Lynch, CM ‘The Security Council and Iraq: The UN Risks Losing its Clout’ Newsday 19 June 2004. Available at <http://www.newsday.com/news/printedition>.
22 Secretary of State Colin Powell, L ‘Remarks to International Political Directors on the Way Forward in Iraq’ Washington DC 20 May 2004. Available at <http://www.state.gov>.
23 UN Security Council Res 1546 of 8 June 2004, passed unanimously. This was a substantially revised version of earlier drafts, the first of which had been presented at the UN on 24 May 2004. The text of the resolution as passed is available at <http://www.un.org/documents>.
24 There was no equivalent clause in the draft of this resolution presented at the UN by the US and UK on 24 May 2004; the revised draft presented on 1 June included the clause in a shorter version than the final one; only the final text, which was first circulated on 7 June, contained the phrase ‘including obligations under international humanitarian law’.
25 Huber, Judge in the Island of Palmas arbitral award, 1928. The text of the award was published in (1928) 22 AJIL 867–912. This quotation is at 875.
26 Fassbender, B in Simma, B (ed) The Charter of the United Nations: A Commentary (OUP Oxford 2002) 70. Dr Fassbender goes on (at 73) to recognize that since 1945, within the context of the United Nations, sovereignty has been modified to take into account ‘the notion of solidarity of all member States of the international community’.
27 Tomuschat, Christian, Lecture at Hague Academy of International Law, 1993.
28 Powell, Colin L ‘Remarks with German Foreign Minister Joschka Fischer after their meeting’ Washington DC 11 May 2004. Available at <http://www.state.gov/secretary/rm/32369.htm>.
29 President George Bush, W ‘'Remarks after Cabinet Meeting’ Washington DC 19 May 2004. Available at <http://www.whitehouse.gov/news/releases/2004/05/20040519-4.html>.
30 Blair, Tony, Press Conference at 10 Downing Street, 25 May 2004. Available at <http://www.pm.gov.uk/output/page5860.asp>.
31 Coalition Political authority website accessed on 24 May 2004, when its banner proclaimed ‘37 days to Iraqi sovereignty’. Was accessed at <http:/www.cpa-iraq.org>.
32 Kennan, George F ‘Report to the State Department on about 1 May 1939’. Text published in Kennan From Prague After Munich (Princeton University Press Princeton, NJ 1968) 135.
33 Agreement Concerning the Legal Status of Soviet Forces Temporarily Stationed in the Territory of the Hungarian People's Republic, signed in Budapest 27 May 1957, Art 1. United Nations Treaty Series vol 407 at 170.
34 ‘Bremer says US will Leave Iraq if new Government Asks: Rulers not Likely to Seek Quick Exit, Administrator Says’ Associated Press Report from Baghdad, 14 May 2004, available at <http://www.msnbc.msn.com/id/4978361>.
35 UN Security Council Res 1546 of 8 June 2004, operative paras 9 and 12. See also the text of letters (both dated 5 June 2004) from the Prime Minister of the Interim Government of Iraq and the US Secretary of State to the President of the Security Council. These letters are annexed to the resolution.
36 For a useful survey of status-of-forces agreements see Fleck, D (ed) The Handbook of the Law of Visiting Forces (OUP Oxford 2001).
37 CPA Order No 17, Status of the Coalition, Foreign Liaison Missions, Their Personnel and Contractors, issued by Bremer, L Paul, Administrator, CPA, Baghdad, 27 June 2003. Section 2 specified that such forces and personnel were immune from Iraqi legal process. Section 4 specified that this agreement would expire at the end of the period of CPA authority. Available on the CPA website <http://www.cpa-iraq.org>.
38 ‘US Overseer to Define Status of Foreigners in Iraq this Week’, Agence France Presse report from Baghdad, 22 June 2004. Published the same day on <http://www.channelnewsasia.com>.
39 Nada Doumani, a spokeswoman for the ICRC, quoted in report from Steele, J in Baghdad ‘US Told: Charge Saddam or Free Him’ Guardian 14 06 2004 at 1.
40 On 16 June 2004, the ICRC issued a clarification stressing that it ‘had never called for all Iraqi prisoners of war to be released’, and indicating that the Geneva Conventions allow for both rearresting and prosecuting POWs as well as civilian internees for crimes they committed. See <http://www.icrc.org>.
41 See 1949 Geneva Convention III, Arts 82–108; and Convention IV, Arts 65–77.
* This article was posted on 28 June 2004 on the website of the Harvard Program on Humanitarian Policy and Conflict Research: <http://www.ihlresearch.org/iraq/>, and was presented on 1 July 2004 at a conference at Oxford University on ‘UK Perspectives on the Law of Armed Conflict’.
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