Clarke, Ben --- "Military Occupation & the Rule of Law: The Legal Obligations of Occupying Forces in Iraq" [2005] MurdochUeJlLaw 8; (2005) 12(1/2) Murdoch University Electronic Journal of Law

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

• I. The International Law of Occupation and Contemporary Iraq
• Introduction
• Invasion, Occupation and the status of Occupied Territory
• What is the Law of Belligerent Occupation?
• When does the law of occupation apply?
• Sources of the Law of Occupation
• II. The occupation of Iraq: From invaders to administrators
• The Military Occupation of Iraq - a truly Belligerent Occupation
• Coalition Preparation for Military Occupation
• The legality of the War and its impact on the obligations of the Occupiers
• Security Council Resolution 1483 and the 'legality' of the Occupation
• Powers and Obligations of the Occupying Forces in Iraq
• Without Security other obligations cannot be fulfilled
• Respect for Public & Private Property
• Accountability for Violations of the Law of Occupation
• Examples of violations of the duties of belligerents
• Legal framework for regulation of belligerent occupations in the 21st century
• Conclusion
• Notes

The International Law of Occupation and Contemporary Iraq

Introduction

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] 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.[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.
1. In assessing the fundamental obligations of the occupying forces in Iraq, the following questions require analysis:
   1. What are the powers and obligations of occupying forces under contemporary international law?
   2. Do the occupied retain sovereignty over their state during a belligerent occupation? If so, how if at all may they exercise these rights?
   3. What mechanisms (if any) exist to ensure compliance by occupying forces with their obligations?
   4. Do the occupying powers have a legal mandate to fulfil a reformist agenda in Iraq that includes the reshaping of national institutions?
   5. 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?
   6. 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?'

2. 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.

   Invasion, Occupation and the status of Occupied Territory

   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.

3. 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]

   What is the Law of Belligerent Occupation?

   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.

   When does the law of occupation apply?

   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.

   Who must comply with the law of occupation?

   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.

   Sources of the Law of Occupation

   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.

   Treaty Law

   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)

   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 (1949)

   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]

4. 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]

   Protocol I Additional to the 1949 Geneva Conventions (1977 Additional Protocol

   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]

   Treaty obligations of European Occupiers

   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.

5. 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]

6. 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.

   Other relevant International Instruments

   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..."

7. 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.

   Customary Law

   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]

   Domestic Law

   The domestic law of the occupying power

   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]

8. 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.

   UN Resolutions

   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.

9. 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.

   The occupation of Iraq: From invaders to administrators

   The Military Occupation of Iraq - a truly Belligerent Occupation

   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.

10. 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.

    Coalition Preparation for Military Occupation

    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.

    Preparations for the Invasion: 'Blind into Baghdad'

    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]

11. 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.

    The Pentagon ignores the State Department's "Future of Iraq Project"

    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.

12. 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:
    1. The "fundamental importance of clean water supplies for Iraqis immediately after transition. This requirement was described as "key to coalition/community relations."
    2. 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]
    3. "The removal of Saddam's regime will provide a power vacuum and create popular anxieties about the viability of all Iraqi institutions."
    4. "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]

    The Unplanned 'Liberation' Phase

    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:

13. '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]

14. 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 legality of the War and its impact on the obligations of the Occupiers

    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.

    Security Council Resolution 1483 and the 'legality' of the Occupation

    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.

    How does Security Council Resolution 1483 affect the duties of the coalition

    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.

    The Role of the UN in Occupied Iraq

    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.

    Control over Iraq's Oil Revenue

    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]

    Powers and Obligations of the Occupying Forces in Iraq

    Duty to Restore and Maintain Law and Order

    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]

15. 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.

16. 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.

    Without Security other obligations cannot be fulfilled

    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]

    Respect for Public & Private Property

    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.

    Religious and Cultural Property

    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]

17. 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.

    Administration of Public Property and Institutions

    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]

    Protection of the Basic human rights of occupied peoples

    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]

    Transfer of Protected Persons

    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.

    Duty to Protect Women

    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]

    Obligations regarding Hospitals, Public Health and Humanitarian Assistance

    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..."

18. 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]

    Replacement of Public Officials and Judicial Officers

    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]

    Modification of the penal laws of occupied territory

    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]

    Duties owed to detainees alleged to have violated the laws of armed conflict

    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]

    Accountability for Violations of the Law of Occupation

    Crimes Committed by the Occupiers: Military Justice during Occupation

    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.

    Grave Breaches of the Geneva Conventions

    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.

    Examples of violations of the duties of belligerents [214]

    Failure to prevent or stop Looting

    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]

    Violations regarding conditions of detention

    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.

    Rights of 'unlawful combatants' (including members of resistance movements)

    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.

    Release of POWs at the end of hostilities

    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]

    Prosecution of grave breaches of the Geneva Conventions

    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]

19. 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.

    Legal framework for regulation of belligerent occupations in the 21st century

    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?

    Is further codification of the law of occupation necessary?

    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?

20. 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 Security Council as reformer of the Law of Occupation

    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.

21. 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.

22. 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.

    An Imperfect yet Historic Beginning: Security Council Resolution 1483

    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.

23. 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.

    Conclusion

    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.

24. 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.

    ---

    Notes

    [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.