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Existentialism in Iraq: Security Council Resolution 1483 and the law of occupation

Published online by Cambridge University Press:  27 April 2010

Marten Zwanenburg
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International Review of the Red Cross , Volume 86 , Issue 856 , December 2004 , pp. 745 - 769
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Copyright © International Committee of the Red Cross 2004

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References

1 See e.g. Warbrick, Colin, “The use of force against Iraq”, International & Comparative Law Quarterly, Vol. 52, No. 3, 2003, p. 811 (2003)CrossRefGoogle Scholar; “Agora: Future implications of the Iraq conflict”, American Journal of International Law, Vol. 97, No. 3, July 2003, p. 553.Google Scholar

2 On the applicability of the law of occupation in the Israeli-occupied territories, see International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004. Not yet published but available at the website of the ICJ:

http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm (last visited 25 October 2004).

3 SC Res. 1483, 22 May 2003.

4 See e.g. Oosthuizen, Gabriel, “Playing the devil's advocate: The United Nations Security Council is unbound by law”, Leiden Journal of International Law, Vol. 12, No. 3, 1999, p. 549CrossRefGoogle Scholar; Martenczuk, Bernd, “The Security Council, the International Court and judicial review: What lessons from Lockerbie?”, European Journal of International Law, Vol. 10, No. 3, 1999, p. 517CrossRefGoogle Scholar; Gill, Terry, “Legal and some political limitations on the power of the UN Security Council to exercise its enforcement powers under Chapter VII of the Charter”, Netherlands Yearbook of International Law, Vol. 26, 1995, p. 33.CrossRefGoogle Scholar

5 Thus the validity of the Coalition Provisional Authority's legislation which was in breach of occupation law and which is still in force could be disputed insofar as it has not been explicitly ratified by the interim government.

6 Consider for example the possible scenario of the UK government intervening militarily in Sudan, as it has suggested it might, and the Security Council subsequently adopting a resolution in response to the situation. See Matthew Tempest, “Blair: Nothing is ruled out in Sudan”, The Guardian, 22 July 2004.

7 See Scheffer, David, “Beyond occupation law”, American Journal of International Law, Vol. 97, No. 4, October 2003, p. 844CrossRefGoogle Scholar; Hmoud, Mahmoud, “The use of force against Iraq: Occupation and Security Council Resolution 1483”, Cornell International Law Journal, Vol. 36, 2004, p. 449Google Scholar. But see Eyal Benvenisti, “The Security Council and the law on occupation: Resolution 1483 on Iraq in historical perspective”, at http://www.tau.ac.il/law/members/Benvenisti/work.html (last visited 20 October 2004).

8 On regime change see Reisman, Michael, “Why regime change is (almost always) a bad idea”, American Journal of International Law, Vol. 98, No. 3, July 2004, p. 516CrossRefGoogle Scholar.

9 Steven. R. Weisman, “US set to name civilian to oversee Iraq”, New York Times, 2 May 2003.

10 Mike Allen, “Expert on terrorism to direct rebuilding”, The Washington Post, 2 May 2003.

11 Coalition Provisional Authority Regulation Number 1, 16 May 2003, CPA/REG/16 May 2003/01, Section 1 (1).

12 Ibid., Section 1 (2).

13 As discussed below, a territory becomes occupied when it is actually placed under the control of the occupying forces. It is submitted that the precise point in time at which this occurred in the case of Iraq could only be ascertained by commanders on the ground. In any event it can safely be said that on 1 May 2003, when President Bush declared the end of major combat operations, Iraq was occupied.

14 Regulations respecting the Laws and Customs of War on Land, annexed to the Hague Convention (IV) respecting the Laws and Customs of War on Land, 18 October 1907, 2 AJIL Supp. 90 (1908), TS No. 539, 205 Parry's TS 277 (Hague Regulations).

15 Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (Fourth Geneva Convention).

16 United States v. Wilhelm List and others (the Hostages Trial), United States Military Tribunal, Nuremberg, VIII Law Reports of Trials of War Criminals 55 (1949).

17 Ibid., at 56. See also Gerard von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation, University of Minnesota Press, Minneapolis, 1957, p. 28.

18 Pictet, Jean (ed.), The Geneva Conventions of 12 August 1949: Commentary, (IV) Geneva Convention relative to the Protection of Civilian Persons in Time of War, International Committee of the Red Cross, Geneva, 1958, p. 60.Google Scholar

19 Prosecutor v. Mladen Naletilic and Vinko Martinovic, Judgment, Case No. IT-98–34-T, Tr. Ch. I, 31 March 2003, para. 218.

20 Ibid., para. 221.

21 Op. cit. (note 2).

22 See e.g. Gasser, Hans Peter, “Protection of the civilian population”, in Fleck, D. (ed.), The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, Oxford, 1995, p. 242.Google Scholar

23 Hague Regulations, Art. 53.

24 Ibid., Art. 55.

25 Fourth Geneva Convention, Art. 55.

26 This article reads:

“The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.”

27 Benvenisti, Eyal, The International Law of Occupation, Princeton University Press, Princeton, 1993, p. 14.Google Scholar

28 See e.g. Gerson, Allan, “War, conquered territory, and military occupation in the contemporary international legal system”, Harvard International Law journal. Vol. 18, No. 3, Summer 1977, p. 535Google Scholar; Debbasch, Odile, L'Occupation Militaire: Pouvoirs Reconnus aux Forces Armees Hors de Leur Territoire National, Pichon et Durand-Auzias, Paris, 1962, p. 172.Google Scholar

29 Feilchenfeld, Ernst. H., The International Economic Law of Belligerent Occupation, Carnegie Endowment for International Peace, Washington, 1942, p. 89Google Scholar.

30 Von Glahn, op. cit. (note 17), p. 97; Gerson, op. cit. (note 28), p. 538.

31 Letter from the Permanent Representatives of the United Kingdom and the United States to the United Nations addressed to the President of the Security Council, of 8 May 2003, UN Doc. S/2003/538.

32 Op. cit. (note 25).

33 Briefing on Geneva Convention, EPWs and War Crimes, 7 April 2003, Department of Defense.

34 Ibid.

35 Department of Defense News Briefing – Secretary Rumsfeld and General Myers, 25 April 2003.

36 Amy Goldstein & Karen DeYoung, “Bush to say major combat has ended”, The Washington Post, 1 May 2003.

37 See e.g. Rajiv Chandrasekaran, “The final word on Iraq's future: Bremer consults and cajoles, but in the end, he's the boss”, The Washington Post, 18 June 2003, p. A01.

38 See e.g. written statement to the House of Commons by the Foreign Secretary Jack Straw on a timetable for a new constitution and elections in Iraq, 20 November 2003.

39 Rajiv Chandrasekaran, “U.S. hands authority to Iraq two days early: Fear of attacks hastens move — interim leaders assume power”, The Washington Post, 29 June 2004, at A.01. The UN, the US and Iraqi political figures were involved in selecting the members of the interim government.

40 SC Res. 1546, 8 June 2004.

41 Lauterpacht, H. (ed.), Oppenheim's International Law: A Treatise, Vol. 2: War, Disputes, and Neutrality, Longman, London, 1952, p. 436.Google Scholar

42 Schwarzenberger, Georg, International Law as Applied by International Courts and Tribunals, Vol. ii: The Law of Armed Conflict, Stevens, London, 1968, p. 317.Google Scholar

43 Marco Sassòli, “Article 43 of the Hague Regulations and peace operations in the twenty-first century”, background paper prepared for informal high-level expert meeting on Current Challenges to International Humanitarian Law, Cambridge, 25–27 June 2004.

44 Press statement by Security Council President of 28 June 2004, UN Doc. SC/8136.

45 Robin Wright, Rajiv Chandrasekaran, “U.S. now taking supporting role in Iraq, officials say”, The Washington Post, 22 September 2004.

46 Glenn Kessler, “Powell says troops would leave if new leaders asked”, The Washington Post, 15 May 2004.

47 Guy Dinmore, James Politi, Mark Odell, “US struggles to top up Allied force in Iraq”, Financial Times, 2 July 2003.

48 Lijnzaad, Liesbeth, “How not to be an occupying power: Some reflections on UN Security Council Resolution 1483 and the contemporary law of occupation”, in Lijnzaad, L., van Sambeek, J. & Tahzib-Lie, B. (eds.), Making the Voice of Humanity Heard, Martinus Nijhoff, Leiden/London, 2003, p. 298Google Scholar. See also Hmoud, op. cit. (note 7), p. 451.

49 “Norway's role in Iraq catches more flak”, Aftenposten, 9 December 2003.

50 “Norwegian soldiers head for Iraq”, Aftenposten, 26 June 2003.

51 Coalition Provisional Order No. 17, Status of the Coalition, Foreign Liaison Missions, their Personnel and Contractors, 26 June 2003, CPA/ORD/26 June 2003/17. The Order was revised on 27 June 2004 and the privileges and immunities accorded to Coalition personnel were greatly extended. See CPA Order No. 17 (revised) of 27 June 2004, CPA/ORD/27June 2004/17.

52 Ibid., Section 1 (1).

53 Op. cit. (note 31).

54 Draft Security Council Resolution of 9 May 2003, copy on file with the author.

55 Statement by the Foreign Secretary, Jack Straw, to the House of Commons, 12 May 2003, Vol. 405, Part 392, column 22.

56 Lijnzaad, op. cit. (note 48), p. 295.

57 SC Res. 1483, preambular paras. 13–14.

58 Kamerstukken TK 2002–03, 23 432, No. 116, at 8; Kamerstukken TK 2002–03, 23 432, No. 117, at 20.

59 Coalition Provisional Authority Order No. 39, Foreign Investment, 19 September 2003, CPA/ORD/19 September 2003/39. This Order was revised in CPA Order 46 of 20 December 2003, CPA/ORD/20 December 2003/46.

60 Thomas Catán, “Iraq business deals may be invalid, law experts warn”, Financial Times, 2 November 2003; Daphne Eviatar, “Free-market Iraq? Not so fast”, 10 January 2004, New York Times.

61 “Questions raised about legality of US attempts to transform Iraq”, Pakistan Tribune, 14 January 2004.

62 Hansard, House of Lords, Vol. 653 (145), c. 293WA.

63 HC Deb. 20 November 2000 c. 1304W.

64 Aanhangsel Handelingen II 2003/04, No. 720.

65 CPA/ORD/19 September 2003/37.

66 Ibid., preambular para. 4.

67 Glahn, op. cit. (note 17), p. 150.

68 Sassòli, op. cit. (note 43).

69 CPA/ORD/5 March 2004/64.

70 Scheffer, op. cit. (note 7), p. 846.

71 Brownlie, Ian, Principles of Public International Law, Clarendon Press, London, 1998, p. 697Google Scholar; Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-AR72, A. Ch., 2 October 1995, para. 28.

72 Article 1 (1) reads: “To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”

73 Ruediger Wolfrum, “Article 1”, in B. Simma (ed.), The Charter of the United Nations: A Commentary, Oxford University Press, Oxford, 1994, p. 52.

74 UNCIO III, at 622, Doc. 2 G/29.

75 Summary Report of Third Meeting of Committee l/1, doc. 197, 10 May 1945, UNCIO Documents Vol. 6, pp. 281–282.

76 Summary Report of the Ninth Meeting of Committee l/1, Doc. 742, I/1/23/ 1 June 1945, UNCIO Vol. 6 at 317, at 318; Verbatim Minutes of First Meeting of Commission 1, 14 June 1945, Doc. 1006, UNCIO.

77 Article 103 UNC reads: “In the event of a conflict between the obligations of the 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.”

78 Rudolf Bernhardt, “Article 103”, in Simma, op. cit. (note 73), p. 1120.

79 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom), Provisional Measures, Order, 1992, ICJ Reports 3, at 16, para. 39.

80 Ibid., Declaration by Judge Oda, para. I.

81 Reisman, Michael, “The constitutional crisis in the United Nations”, American journal of International Law, Vol. 87, No. 1, January 1993, p. 93Google Scholar. Interestingly, there is also State practice which appears to support the scope of application of Article 103 to customary law. An example is the statement by the Russian Federation to the Security Council on 24 March 1999 concerning Kosovo: “Article 103, precisely establishing an absolute priority of the Charter obligations before any other international obligations of the members of the Organization.”

82 This limitation is not established by the words “in accordance with the Charter”. See Jost Delbrück, “Article 25”, in Simma, op. cit. (note 73), pp. 459–460.

83 Bernhardt, op. cit. (note 78), p. 1118.

84 Gill, op. cit. (note 4), p. 33.

85 “The concept of jus cogens operates as a concept superior to both customary international law and treaty. The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot – as a matter of simple hierarchy of norms – extend to a conflict between a Security Council resolution and jus cogens.” Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Separate Opinion of Judge Lauterpacht, 1993 ICJ Reports 4, at 440.

86 Scheffer, op. cit. (note 7), p. 852.

87 Prosecutor v. Zoran Kupreškićet al., Judgment, Case No. IT-95–16-T, Tr. Ch. II, 14 January 2000, para. 520.

88 See e.g. Bowett, Derek, “The impact of Security Council decisions on dispute settlement procedures”, European journal of International Law, Vol. 5, 1994, p. 8.CrossRefGoogle Scholar

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95 Wood, op. cit. (note 93), at 93.

96 S/PV.4761 of 22 May 2003, at 10 (Cameroon),

97 Wood, op. cit. (note 93), at 95.

98 Press release, New Zealand Defence Force, 11 August 2003.

99 Debates of Parliament, 30 July 2003, The Hon. Phil Goff.

100 But see Orakhelashvili, Alexander, “The post-war settlement in Iraq: The UN Security Council Resolution 1483 (2003) and general international law” Journal of Conflict & Security Law, Vol. 8, 2003, p. 307.CrossRefGoogle Scholar

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102 Op. cit. (note 96), at 6 (Spain).

103 Ibid., at 11 (Pakistan).

104 Hansard, House of Lords, 8 October 2003, c. 293–294.

105 Scheffer, op. cit. (note 7), p. 850.

106 The analogy is made by Scheffer, Ibid., p. 859.

107 SC Res. 1511, 16 October 2003.

108 Ibid., para. 1.

109 Scheffer, op. cit. (note), p. 859. See also Goodman, D. P., “The need for fundamental change in the law of belligerent occupation”, Stanford Law Review, Vol. 37, 1985, p. 1573.CrossRefGoogle Scholar

110 SC Res. 1483, preambular para. 4.