ASIL Insights

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When L. Paul Bremer III, the lead U.S. administrator for the transition in Iraq, told a Washington Post reporter late last month "Occupation is an ugly word, not one Americans feel comfortable with, but it's a fact," [1] he stated the obvious: forces of the United States and its coalition allies stand in effective control of post-Saddam Iraq (or much of it). However, Mr. Bremer's statement raises a legal question without an obvious answer: how can restrictive language in the Fourth Geneva Convention and its implicit assumption that any occupation should be purely temporary and not for imposing a particular form of government be reconciled with obligations to rebuild and reform Iraq?

The 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War provides that an Occupying Power (capitals provided in the Convention) may not "alter the status of public officials or judges in the occupied territories . . . should they abstain from fulfilling their functions for reasons of conscience" (art. 54). It also requires the Occupying Power to leave the penal laws of the occupied country unchanged, subject to narrow exceptions (art. 64). The earlier Hague Regulations concerning the Law and Customs of War on Land also restrict the occupant from changing local law. Both treaties are expressly invoked in paragraph 5 of Security Council resolution 1483 of May 22, 2003.

But the resolution plainly conceives the coalition effecting on Iraqi politics, law, and institutions an overhaul, the scope of which will be nothing short of radical. In conjunction with the UN and an Iraqi interim administration, the coalition is called on to create "conditions in which the Iraqi people can freely determine their own political future" (resolution para. 4); "establish national and local institutions for representative governance;" and "encourag[e] international efforts to promote legal and judicial reform" (para. 8). Scarcely any of the political, legal, or institutional infrastructure for this existed under the Ba'ath dictatorship, so it is not immediately clear how the coalition will both fulfill the task of reform identified in Res. 1483 and abide by the 'no change' rule implied in the treaties.

One argument that might be made to avoid conflict is that the coalition powers do not constitute 'occupying powers' for purposes of the Convention. This, however, would have to account for language in the preamble to Res. 1483. The preamble-though the preamble only-refers to the coalition powers in Iraq as 'occupying powers,' 'recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers.' The British and American Permanent Representatives, in a letter delivered to the President of the Security Council on May 8, do not use the term 'occupying power' at all. [2] It is far from clear that absence of the term is meant to characterize the coalition presence one way or the other. Substantive paragraphs 4 and 5 of Res. 1483 refer to obligations under international law-including, expressly, the Geneva Conventions and Hague Regulations which contain important provisions relevant to occupation-but any conclusion to be drawn from paragraphs 4 and 5 as to the status of the coalition Authority has to be drawn by inference; the paragraphs do not contain the term 'occupying power.' Inclusion of the term 'occupying power' in the substantive paragraphs of Res. 1483 would have clarified the situation. One may speculate whether its absence reflects a compromise at the drafting stage.

It may be wondered, too, whether the status 'occupying power' is relevant, where no alternative locus of authority exists. The Hague Regulations and the Fourth Geneva Convention, in references to the 'legitimate' authority and its on-going rights, might be seen to address situations where one military force continues in opposition against another-that is, situations where a force has lost effective control over territory but remains, to some degree, a viable entity, either continuing organized resistance from the unoccupied parts of its territory or establishing an exile presence with which to continue prosecuting, if only legally, a claim, broadly recognized, that its state holds de jure the rights of governance. The treaty obligations attach to the other force, which stands in occupation and must exercise certain incidents of local administration. The coalition in Iraq presents a case distinct from certain past cases of occupation, in the sense that, though the Iraqi state continues to hold all rights to its territory, there remains now no governmental organ that can exercise those rights-apart from the coalition itself. Yet the case of occupied Germany, much in the minds of the drafters of the Geneva Conventions in 1949, very much resembled that of Iraq, in the sense that, there too, no viable alternative locus of authority existed. The view will gain adherents that the coalition does constitute an Occupying Power and thus faces the restrictions inherent in that status. It is already the view prevalent amongst publicists, [3] and amongst governments and international organizations may become so as well. [4]

The 'Coalition Provisional Authority' (as the May 8 letter titles it) or the 'Authority' (as Res. 1483 titles it) therefore will be challenged to fulfill obligations incumbent upon and respect limits inhering in the status of an occupying power.

A number of approaches present themselves. For one, the Authority may note that the restrictive language of the Fourth Geneva Convention is tempered by reservations permitting certain changes pursuant to good governance during occupation. For example, judges-whom the Convention permits to resign for reasons of conscience-may be replaced by the Occupying Power in the interests of maintaining the functions of the judiciary. The Occupying Power may take other legal and administrative measures to protect its own personnel, the Convention making allowance for such measures in light of the dangers an occupant well may face.

Yet the reservations to the restrictive language were tailored narrowly, and they were not intended in the nature of a license. Pictet noted in particular that the Occupying Power may not change the laws of the occupied territory 'simply to bring them into accord with its own juridical conceptions.' [5] This approaches the heart of the matter: Occupation was conceived as a temporary status, and effects it might have on a territory transitory. The specific provisions of the Fourth Convention restrict change by an Occupying Power, while leaving some margin for measures necessitated by circumstance. A purpose implied at root beneath the Fourth Convention, however, seems to have been to prevent an occupant from imposing its will through permanent constitutional change. In this, the reform mission expressed in Res. 1483 remains in tension with the treaty obligations of the Occupying Powers, even as they avail themselves of the reservations to the restrictive language of the Convention.

An alternative approach may be to bring Iraqi political organs rapidly into play as supervening instances over the Authority. Changes in governance in Iraq then might be characterized as the decisions of the interim administration-an organ defined in Res. 1483 as constituted by Iraqis and thus, perhaps, not under the limits facing an occupying power. But the Authority is itself bid in the reform process to act, suggesting that the responsibilities of the process are not meant to be discharged by the interim administration acting alone. Moreover, the interim administration itself seems to be conceived in the resolution as a creature of the Authority.

The better view may be that Res. 1483 has created a 'carve out' from the Hague Regulations and Fourth Geneva Convention, leaving other provisions of the treaties in force, but suspending with respect to the Authority those provisions that otherwise would curb its license to change the laws, institutions, and personnel of the occupied state. This would reconcile the conflict noted above, without draining paragraph 5 of Res. 1483 of content.

It does not seem too remarkable a proposition, that a resolution of the Security Council could carve out such provisions. The Security Council has sweeping dispositive authority, as evidenced by its resolutions establishing a legal basis for such ambitious programs as the independence of East Timor or administration of Kosovo, not to mention power to create upon the member states obligations, which, owing to Article 103 of the Charter, enjoy primacy over treaty obligations, where the two conflict. If it has used the authority wisely, the Council will be seen to have carved from the treaties an exemption just broad enough to permit an Occupying Power to execute in Iraq the mission the Council itself has defined. 

About the Author: 
Thomas D. Grant is a public international lawyer and fellow of Wolfson College and the Lauterpacht Research Centre for International Law, Cambridge University.

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