Hostname: page-component-78c5997874-v9fdk Total loading time: 0 Render date: 2024-11-07T23:11:26.266Z Has data issue: false hasContentIssue false
  • English
  • Français

Limits and Limitations of Power: The Continued Relevance of Occupation Law

Published online by Cambridge University Press:  06 March 2019

Ebrahim Afsah

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

Lawyers are trained to apply rules to certain situations, and thus determining whether a particular behaviour is norm-conformant or not. It is generally assumed that rules as such exist and are applicable in a given situation. While there might be a debate about identifying the appropriate normative set among competing legal frameworks, it is generally taken as a given that binding rules exist and that they are habitually complied with. With regard to international relations, this basic ontological outlook contrast somewhat with the analytical conceptions taken by other disciplines which rely on other explanatory variables – notably power and interest – to account for the behavioural patterns of states.

Type
Articles
Information
German Law Journal , Volume 7 , Issue 6 , 01 June 2006 , pp. 563 - 590
Copyright
Copyright © 2006 by German Law Journal GbR 

References

1 Koh, Harold Hongju, Why Do Nations Obey International Law?, 106 YALE LAW JOURNAL 2599-659 (1997).Google Scholar

2 Koh, , Why Do Nations Obey International Law?, 106 YALE LAW JOURNAL (1997), 2602.Google Scholar

3 For a general discussion see MALCOLM N. SHAW, INTERNATIONAL LAW (2003), chapter 1; Koh, Why Do Nations Obey International Law?, 106 YALE LAW JOURNAL (1997), 2602, fn. 9; JOST DELBRÜCK (ED.), THE FUTURE OF INTERNATIONAL LAW ENFORCEMENT (1993); Josef L. Kunz, Sanctions in International Law, 54 AMERICAN JOURNAL OF INTERNATIONAL LAW 324-47 (1960); Peter J. Spiro, The New Sovereigntists: American Exceptionalism and Its False Prophets, FOREIGN AFFAIRS, no pagination (2000).Google Scholar

4 Reflected in the often-quoted statement by Henkin that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” LOUIS HENKIN, HOW NATIONS BEHAVE (1979), 47.Google Scholar

5 Discussed in HENKIN, HOW NATIONS BEHAVE (1979), 49.Google Scholar

6 Green, Leslie C., What Is - Why Is There - The Law of War?, ESSAYS ON THE MODERN LAW OF WAR (Leslie C. Green ed., 1999); Leslie C. Green, Cicero and Clausewitz or Quincy Wright? The Interplay of Law and War, ESSAYS ON THE MODERN LAW OF WAR (Leslie C. Green ed., 1999); LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT (2000), chapter 1 and 2.Google Scholar

7 CARL VON CLAUSEWITZ, ON WAR (1976), ch. 2, para. 90, ch. 1, para. 76. quoted in Leslie C. Green, What Is - Why Is There - The Law of War?, ESSAYS ON THE MODERN LAW OF WAR (Leslie C. Green ed., 1999), 1.Google Scholar

8 Clausewitz, Carl von, The Political Purposes of War, BASIC TEXTS IN INTERNATIONAL RELATIONS (Evan Luard ed., 1992), 244.Google Scholar

9 VON CLAUSEWITZ, ON WAR (1976), ch. 2, para. 90, ch. 1, para. 76, emphasis added.Google Scholar

10 Rose, Sir Michael, Invasion a ‘Blunder of Enormous Significance’, THE GUARDIAN; LARRY DIAMOND, SQUANDERED VICTORY: THE AMERICAN OCCUPATION AND THE BUNGLED EFFORT TO BRING DEMOCRACY TO IRAQ (2005); DAVID PHILLIPS, LOOSING IRAQ (2005); Kenneth M. Pollock / Iraq Policy Working Group, A Switch in Time - a New Strategy for America in Iraq, (2006). Pollock is the most optimistic of the group, despite the devastating record he attests the policy so far. The policy prescriptions he advocates, however, remain less than convincing, ranging from the introduction of food stamps (p. xvi) to raising overall troop numbers to 450,000 (p. x).Google Scholar

11 See inter alia Wet, Erika de, The Illegality of the Use of Force Against Iraq Subsequent to the Adoption of Resolution 687 (1991), 3 HUMANITÄRES VÖLKERRECHT 125-32 (2003); Lori Fisler Damrosch / Bernard H. Oxman, Editor's Introduction, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW 556 (2003); Lori Fisler Damrosch / Bernard H. Oxman / et al., Agora: Future Implications of the Iraq Conflict, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW 553-656 (2003); Carsten Stahn, Enforcement of the Collective Will After Iraq, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW 804-23 (2003); John C. Yoo, International Law and the War in Iraq, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW 563 (2003); Alex J. Bellamy, International Law and the War With Iraq, 4 MELBOURNE JOURNAL OF INTERNATIONAL LAW 497-520 (2003).Google Scholar

12 Declared by President Bush in a speech aboard the warship USS Abraham Lincoln. The speech has since proved a source of considerable embarrassment to the president, due to its staged nature and the realisation that given the violence in Iraq its major claims were premature. See inter alia Michael Elliott, So What Went Wrong?, TIME 2003, at 14.Google Scholar

The president deliberately did not declare the end of the war, arguably to avoid legal responsibilities related to prisoners of war and war criminals, see M. Hmond, The Use of Force Against Iraq: Occupation and Security Council Resolution 1483, 36 CORNELL INTERNATIONAL LAW JOURNAL 443 (2004). This line of argument has been criticised by Rüdiger Wolfrum, Iraq: From Belligerent Occupation to Iraqi Exercise of Sovereignty: Foreign Power Versus International Community Interference, 9 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW (2005), 2.Google Scholar

13 Brown, Gary D., Proportionality and Just War, 2 JOURNAL OF MILITARY ETHICS 171 - 185 (2003); CHRISTOPHER ANGLIM, THE IRAQ WAR (2003) - A DOCUMENTARY LEGAL HISTORY (2004); Ronli Sifris, Operation Iraqi Freedom - United States v Iraq - the Legality of the War, 4 MELBOURNE JOURNAL OF INTERNATIONAL LAW 521-60 (2003).Google Scholar

14 Reisman, Michael W., Sovereignty and Human Rights in Contemporary International Law, 84 AMERICAN JOURNAL OF INTERNATIONAL LAW 866 et seq. (1990); GREGORY H. FOX / BRAD R. ROTH (EDS.), DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW (2000); Rudolf Dolzer, Good Governance: Neues Transnationales Leitbild der Staatlichkeit?, 64 ZEITSCHRIFT FÜR AUSLÄNDISCHES ÖFFENTLICHES RECHT UND VÖLKERRECHT 535-46 (2004).Google Scholar

15 Kokott, Juliane, Souveräne Gleichheit und Demokratie im Völkerrecht, 64 ZEITSCHRIFT FÜR AUSLÄNDISCHES ÖFFENTLICHES RECHT UND VÖLKERRECHT 517-33 (2004).Google Scholar

16 Regulations Respecting the Laws and Customs of War on Land, annexed to Convention respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2277, 2 AJIL Supp. 90 (1908).Google Scholar

17 JEAN PICTET (ED.), COMMENTARY ON GENEVA CONVENTION IV OF 1949 (1958), 273.Google Scholar

18 Wolfrum, , Iraq: From Belligerent Occupation to Iraqi Exercise of Sovereignty, 9 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW (2005), 5.Google Scholar

19 Recognised primarily in S/RES/1483 (2003) of 22 May 2003, preamb. para. 13, op. para. 5.Google Scholar

20 Using somewhat guarded language in the Letters 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, UN Doc. S/2003/538.Google Scholar

21 Scheffer, David J., Beyond Occupation Law, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW (2003), 849.Google Scholar

22 Scheffer, , Beyond Occupation Law, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW (2003), 843.Google Scholar

23 Tripp, Charles, The United States and State-Building in Iraq, 30 REVIEW OF INTERNATIONAL STUDIES 545-58 (2004).Google Scholar

24 Quoted by Karl Inderfurth in Lauth, Thomas P. et al., Building the Institutions of the Nation, 33 GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW (2004), 186; Daniel Byman et al., Iraq, Afghanistan and the War on “Terror”, 12 MIDDLE EAST POLICY 1-24 (2005); ANTHONY H. CORDESMAN, THE WAR AFTER THE WAR: STRATEGIC LESSONS OF IRAQ AND AFGHANISTAN (2004); Anthony H. Cordesman, American Strategic, Tactical, and Other Mistakes in Iraq: A Litany of Errors, 2006.Google Scholar

25 Ali, Abbas J. / Nufrio, Philip M., Post War Iraq: Understanding and Shaping the Forces of Positive Changes, 10 PUBLIC ADMINISTRATION AND MANAGEMENT (2005), 31. Ali and Nufrio continue with a stark comparison: “Indeed, the U.S. invasion of Iraq in 2003 is similar in many aspects to the Mongol invasion of Iraq in 1258. While the Mongols were effective in ending the Abbasids regime, they had to forcefully suppress the Iraqis into submission. Years later, the Mongols exited Iraq but left it in ruins.”Google Scholar

26 Rubin of the American Enterprise Institute denounces most critics of having no first-hand experience of Iraq and concludes: “The future of Iraq is anything but bleak.” Michael Rubin, The Future of Iraq: Democracy, Civil War, Or Chaos?, 9 MIDDLE EAST REVIEW OF INTERNATIONAL AFFAIRS, no pagination (2005); Charles Krauthammer, A Sensible Iraqi Constitution, WASHINGTON POST, at A29.Google Scholar

27 Toal, Gerard, A Conversation With Peter Galbraith About Iraq and State Building, GEOPOLITICS (2005), 171; Louis J. Cantori et al., Evaluating the Bush Menu for Change in the Middle East, Roundtable of the Conference Group on the Middle East At the American Political Science Association Annual Meeting, Chicago, September 5, 2004, 12 MIDDLE EAST POLICY 97-121 (2005).Google Scholar

28 Former ambassador Galbraith and the head of the Council of Foreign Relations Gelb argue for a partition of the country into sustainable entities along ethnic lines; former Secretary of Defence Laird argues for an “Iraqisation” of security forces along the policy attempted in Vietnam allowing for a gradual withdrawal of US forces; RAND scholar Dobbins agrees with the need to place the main burden of security on moderate Iraqis, but believes that through its lack of legitimacy and credibility the US “has already lost the war” forcing Iraqis to look for support elsewhere. He thus argues for a regional initiative with strong Iranian involvement. Stanford political scientist Larry Diamond agrees that the growing legitimacy and credibility gap, resulting primarily from totally inadequate security provisions, i.e. troop numbers, severely hampered reconstruction efforts, stressing the need to build state and security structures because “a country must first have a state before it can become a democracy.” Military expert Krepinevich argues for staying the course but that a change in military tactics is required, based around the principles of counterinsurgency warfare. He argues that a so-called “oil-spot strategy” should focus on providing security in limited areas that would gradually spread rather than hunting down insurgent. His approach has since been adopted by the US Army. Pollock's fairly positive (but by now somewhat dated) assessment likewise questions whether “quick Iraqification” of security provision can be achieved. In a recent co-authored piece he makes a series of recommendations which remain unconvincing. Despite rhetoric to the contrary, the they fall far short of a convincing counter-strategy and one is left with the distinct realisation that the point of no return has basically been reached for US efforts and failure can no longer be avoided.Google Scholar

Dobbins, James, Iraq: Winning the Unwinnable War, FOREIGN AFFAIRS no pagination (2005); Peter Galbraith, How to Get Out of Iraq, 51 THE NEW YORK REVIEW OF BOOKS no pagination (2004); Leslie H. Gelb, The Three State Solution, NEW YORK TIMES, at A27; Melvin R. Laird, Iraq: Learning the Lessons of Vietnam, FOREIGN AFFAIRS no pagination (2005); Larry Diamond, What Went Wrong in Iraq?, FOREIGN AFFAIRS no pagination (2004); Larry Jay Diamond, Lessons From Iraq, 16 JOURNAL OF DEMOCRACY 9-23 (2005); Rubin, The Future of Iraq: Democracy, Civil War, Or Chaos?, 9 MIDDLE EAST REVIEW OF INTERNATIONAL AFFAIRS no pagination (2005); Andrew F. Jr. Krepinevich, How to Win in Iraq, FOREIGN AFFAIRS no pagination (2005); Kenneth M. Pollock, After Saddam: Assessing the Reconstruction of Iraq, (2004); Pollock / Iraq Policy Working Group, A Switch in Time - a New Strategy for America in Iraq, (2006).Google Scholar

29 Dobbins, , Iraq: Winning the Unwinnable War, FOREIGN AFFAIRS no pagination (2005).Google Scholar

30 For military details see ANTHONY H. CORDESMAN, THE IRAQ WAR: STRATEGY, TACTICS AND MILITARY LESSONS (2003).Google Scholar

31 Hirsch, John L. / Oakley, Robert B., Somalia and Operation Restore Hope, (1995), 77.Google Scholar

32 JAMES DOBBINS et al., AMERICA'S ROLE IN NATION-BUILDING: FROM GERMANY TO IRAQ (2003), 198.Google Scholar

33 RMA refers to the combined use and networked effect of high-altitude bombing with precision ammunition, wide-spread use of stealth technology, small, but highly mobile units drawn from different services but acting with very high degrees of coordination using real-time communication and positioning technology. See inter alia John J. Mearsheimer, Hans Morgenthau Und Der Irakkrieg, 59 MERKUR (2005), 838; JOHN P. WHITE / ZALMAY KHALILZAD (EDS.), THE CHANGING ROLE OF INFORMATION IN WARFARE (1999).Google Scholar

34 General Shinseki's retirement was announced a year early, severely compromising his professional standing. Diamond, What Went Wrong in Iraq?, FOREIGN AFFAIRS no pagination (2004).Google Scholar

35 During the 2003 campaign roughly 264,000 Coalition soldiers (214,000 Americans, 45,000 British, 2,000 Australians and 2,400 Polish) participated, while in the 1991 campaign 660,000 Coalition troops were deployed, with no occupation duties envisaged. See Wikipedia, 2003 Invasion of Iraq, 2006, available at: http://en.wikipedia.org/wiki/2003_Invasion_of_Iraq; Wikipedia, Gulf War, 2006, available at: http://en.wikipedia.org/wiki/Desert_Storm. For additional details see CORDESMAN, THE IRAQ WAR: STRATEGY, TACTICS AND MILITARY LESSONS (2003).Google Scholar

The highly optimistic approach taken by the Pentagon is evidenced in the initial plan to draw troop numbers in Iraq until Summer 2003 down to 25,000 troops. See GEORGE PACKER, THE ASSASSINS’ GATE: AMERICA IN IRAQ (2005).Google Scholar

36 Massive looting had already occurred in the aftermath of the 1991 Iraq war.Google Scholar

37 See inter alia Cordesman, Anthony H., Planning for a Self-Inflicted Wound: US Policy to Reshape a Post-Saddam Iraq, 2002. See also the comment by the former British arts minister, Mark Fisher, Tomb Raiders, THE GUARDIAN, 21 January 2006.Google Scholar

38 Joyce, Anne, Editor's Note, 10 MIDDLE EAST POLICY (2003), iv, emphasis added.Google Scholar

39 Higgins, Rosalynne, The New United Nations and Former Yugoslavia,; Lakhdar Brahimi / et al., Report of the Panel on United Nations Peace Operations (“the Brahimi Report”), UN Doc a/55/305-S/2000/809, (2000).Google Scholar

40 Hirsch, / Oakley, , Somalia and Operation Restore Hope, (1995), 77; Adam Roberts, Humanitarian Action in War, Adelphi Paper 305, ADELPHI PAPERS (1996); Barry R. Posen, Military Responses to Refugee Disasters, 21 INTERNATIONAL SECURITY 72-111 (1996); CHARLES DOBBIE, A CONCEPT FOR POST-COLD WAR PEACEKEEPING (1994).Google Scholar

41 Diamond, , What Went Wrong in Iraq?, FOREIGN AFFAIRS no pagination (2004).Google Scholar

42 Based on the levels deployed in Kosovo approximately 526,000 foreign troops and 53,000 international civilian police would have been required in Iraq. See James Dobbins, America's Role in Nation-Building: From Germany to Iraq, 2003, Heinrich Böll Stiftung, available at: www.boell.de/downloads/demokratiefoerderung/dobbins_americas_role.pdf, 16-17.Google Scholar

43 Pollock is quoting 440,000 as “the baseline figure for what will be required ultimately to stabilize Iraq.” Pollock / Iraq Policy Working Group, A Switch in Time - a New Strategy for America in Iraq, (2006), 25.Google Scholar

44 International Crisis Group, The Next Iraqi War? Sectarianism and Civil Conflict, MIDDLE EAST BRIEFING NO. 52 (2006); Anthony H. Cordesman, The Iraqi Insurgency and the Risk of Civil War: Who Are the Players?, 2006; Anthony H. Cordesman / Eric M. Brewer / Sara Bjerg Moller, Iraq's Evolving Insurgency and the Risk of Civil War, 2006.Google Scholar

45 From December 2005 until March 2006 US troop numbers had been reduced from 160,000 to 132,000., Rumsfeld Will US Soldaten Aus Bürgerkrieg Im Irak Heraushalten, DER SPIEGEL - ONLINE EDITION, 10 March 2006.Google Scholar

46 An interesting change of position in this regard is detectable in Pollock, who reversed his earlier 1999 assessment that an invasion would be “a terrible mistake” based either on wishful thinking or cynical politics, by arguing the case of invasion in 2002. He has since regretted that latter stance, and come out strongly against the further use of violence to achieve political change in the region, with regard to Iraq he argues for staying the course against a premature withdrawal of troops. See Daniel Byman / Kenneth M. Pollock / Gideon Rose, The Rollback Fantasy, FOREIGN AFFAIRS (1999); KENNETH M. POLLOCK, THREATENING STORM: THE CASE FOR INVADING IRAQ (2002); KENNETH M. POLLOCK, THE PERSIAN PUZZLE: THE CONFLICT BETWEEN IRAN AND AMERICA (2004); Deborah Solomon, Questions for Kenneth Pollock, THE NEW YORK TIMES MAGAZINE; Pollock / Iraq Policy Working Group, A Switch in Time - a New Strategy for America in Iraq, (2006).Google Scholar

47 Anonymous, , The Challenge in Iraq, THE ECONOMIST 9 (2004).Google Scholar

48 An element often under-emphasised in the once fashionable comparisons between Germany/Japan to Afghanistan/Iraq, see Stanley N. Katz, Gun Barrel Democracy? Democratic Constitutionalism Following Military Occupation: Reflections on the U.S. Experience in Japan, Germany, Afghanistan and Iraq, Princeton Law and Public Affairs Working Paper No. 04-010, PRINCETON LAW AND PUBLIC AFFAIRS WORKING PAPER SERIES SPRING SEMESTER (2004), 1; DOBBINS et al., AMERICA'S ROLE IN NATION-BUILDING: FROM GERMANY TO IRAQ (2003).Google Scholar

49 Katz, , Gun Barrel Democracy? Democratic Constitutionalism Following Military Occupation, PRINCETON LAW AND PUBLIC AFFAIRS WORKING PAPER SERIES SPRING SEMESTER (2004), 1-2, emphasis in the original.Google Scholar

50 Marr, Phebe, Occupational Hazards, FOREIGN AFFAIRS no pagination (2005).Google Scholar

51 SCHMITT, CARL, GLOSSARIUM: AUFZEICHNUNGEN DER JAHRE 1947-1951 (1991), 269.; Stirk correctly terms this a “dubious analogy that nevertheless says a great deal about his perception of the experience.” Peter Stirk, Carl Schmitt, the Law of Occupation, and the Iraq War, 11 CONSTELLATIONS (2004), 527.Google Scholar

52 The Belgian Court of Appeal held likewise in the case of Mathot v. Longué relating to the First World War, 19 February 1921, quoted in Conor McCarthy, The Paradox of the International Law of Military Occupation: Sovereignty and the Reformation of Iraq, 10 JOURNAL OF CONFLICT AND SECURITY LAW (2005), 47, emphasis added.Google Scholar

53 When the CPA assumed its work, there were about 6 billion US$ left over from the UN Oil for Food Programme plus sequestered and frozen accounts, as well as at least 10 billion US$ from resumed Iraqi oil exports. S/RES/1483 of 22 May 2003, para. 12 “takes note” of the establishment of the Development Fund for Iraq (DFI) and mandates in para. 16 (d) that earlier accounts established pursuant to Resolution 986 (1995), paras. 8 (a) and 8 (b) are to be consolidated in it.Google Scholar

While para. 13 “notes” the fact that this Fund will be disbursed under the direction of the CPA, Resolution 1483, para. 14 stresses that the Fund “shall be used in a transparent manner” for the benefit of the Iraqi people and “in consultation with the Iraqi interim administration” (para. 13). For this purpose the CPA set up the ‘Program Review Board’ to award respective contracts and to administer the DFI on behalf of the Iraqi people, as well as the Iraq Relief and Reconstruction Fund provided by Congress (an additional 18.4 billion US$) on behalf of the American people.Google Scholar

Resolution 1483, para. 12 required the establishment of an International Advisory and Monitoring Board (IAMB) to be composed of senior members of international developing finance institutions to oversee how the DFI was spent. In consultation with the CPA it appointed the Bahrain office of the international accounting firm KPMG to audit these expenses. The reports of both KPMG and the IAMB lamented the “resistance encountered from CPA staff” and stated “financial irregularities.” Furthermore, despite its repeated requests and assurances by the CPA to the IAMB that meters would be installed/repaired, this was never done during the tenure of the CPA, suggesting significant under-reporting of oil exports; the unaccounted revenue is estimated to be between 2-4 billion US$. 8.8 billion US$ passing through Iraq ministries during the CPA's tenure remain unaccounted for. 3 billion US$ in new contracts were handed out in the last weeks of the CPA, to be managed by the US embassy. See International Advisory and Monitoring Board, Development Fund for Iraq Audit, 2004, IAMB, available at: www.iamb.info/dfiaudit.htm; International Advisory and Monitoring Board, Appendix to the audit of the Development Fund for Iraq - Matters noted involving internal controls and other operations issues during the audit of the Fund for the period up to 31 December 2003, 2004, IAMB; International Advisory and Monitoring Board, KPMG's Audit Notes, 2004, IAMB, available at: www.iamb.info/auditrep/r052203a.pdf.Google Scholar

Further evidence has been provided by the CPA's own Inspector General's Office (CPAIG), now renamed Special Inspector General for Iraq Reconstruction (Sigir), particularly concerning the above mentioned new contracts. (“we identified deficiencies in the control of cash … of such magnitude as to require prompt attention. Those deficiencies were so significant the we were precluded from accomplishing our stated objectives.”). Quoted in Ed Harriman, So, Mr Bremer, Where Did All the Money Go?, THE GUARDIAN/LONDON REVIEW OF BOOKS, 9 July 2006.Google Scholar

Part of this wastage has been defended one the one hand by the need to kick-start the economy (“pour in billions of dollars. That is the only way to do it. It does not matter where it goes; we just need to get the economy moving. We could drop it from helicopters and it would probably do about as much good as most USAID programs”, Howard Wiarda in Lauth et al., Building the Institutions of the Nation, 33 GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW (2004), 193.) The other justification has been to purchase security by paying off informants and warlords, a strategy used to good effect already in Afghanistan, see inter alia Jonathan Goodhand, From War Economy to Peace Economy? Reconstruction and State Building in Afghanistan, 58 JOURNAL OF INTERNATIONAL AFFAIRS 155 (2004).Google Scholar

These are Iraqi funds that are being wasted and embezzled, not American ones. It has been criticised that during its operation, the CPA spent up to 20 billion US$ of Iraqi money through the DFI, while only about 400 million (!) US$ out of 18.4 billion US$ provided by Congress. This has been partly explained by the desire to reduce the burden on the American treasury, partly by avoiding oversight by the Congressional Accounting Office. See –, –, Rules and Cash Flew Out of the Window, LA TIMES; Ariana Eunjung Cha, In Iraq, the Job Opportunity of a Lifetime: Managing a $13 Billion Budget With No Experience, WASHINGTON POST, at A01; Wikipedia, Coalition Provisional Authority, 2006, available at: http://en.wikipedia.org/wiki/Coalition_Provisional_Authority.Google Scholar

Whether these practices are in line with the usufructuary requirements of the law of occupation can be doubted. For a detailed discussion see Ed Harriman, So, Mr Bremer, Where Did All the Money Go?, THE GUARDIAN/LONDON REVIEW OF BOOKS.; see also Eyal Benvenisti, Water Conflicts During the Occupation of Iraq, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW (2003), 869; Antonio Cassese, Powers and Duties of an Occupant in Relation to Land and Natural Resources, INTERNATIONAL LAW AND THE ADMINISTRATION OF OCCUPIED TERRITORIES: TWO DECADES OF ISRAELI OCCUPATION OF THE WEST BANK AND GAZA STRIP (Emma Playfair ed., 1992); U.S. Department of State, Memorandum of Law on Israel's Right to Develop New Oil Fields in Sinai and the Gulf of Suez, 16 ILM (1977), 743.; (“property can be taken only for the purposes of the occupation itself”); especially pertinent: ERNST H. FEILCHENFELD, THE INTERNATIONAL ECONOMIC LAW OF BELLIGERENT OCCUPATION (1942), 55.; (“While the belligerent occupant may lease or utilize public lands or buildings, sell the crops, cut and sell timber, and work the mines, a lease or contract should not extent beyond the conclusion of the war.” Emphasis added.)Google Scholar

54 Watch, Human Rights, Leadership Failure: Firsthand Accounts of Torture Or Iraqi Detainees By the U.S. Army's 82Nd Airborne Division, VOLUME 17, NO. 3(G) (2005); Amnesty International, Beyond Abu Ghraib: Dentention and Torture in Iraq, Mde 14/001/2006, (2006).Google Scholar

55 For a fairly sympathetic discussion stressing the “dedication and professionalism of those involved at the CPA and other entities that worked so hard during the transition from dictatorial rule to a new government based on democratic principles” see J. Stephen Shi, The Legal Status of Foreign Military and Civilian Personnel Following the Transfer of Power to the Iraqi Interim Government, 33 GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 245-60 (2004).Google Scholar

56 On this aspect in general see Peter Warren Singer, War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law, 42 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 521 et seq. (2004); Clifford J. Rosky, Force, Inc.: The Privatization of Punishment, Policing, and Military Force in Liberal States, 36 CONNECTICUT LAW REVIEW 879 et seq. (2004).Google Scholar

57 CPA/ORD/17 June 2004/17 (Status of the Coalition Provisional Authority, MNF-Iraq, Certain Missions and Personnel in Iraq) (revising and extending the earlier Order No. 17)Google Scholar

58 CPA/ORD/17 June 2004/17, though issued by the CPA in the last days of its operation was aimed at regulating the situation under the authority of the Iraqi Interim Government, i.e. after the handover of sovereignty.Google Scholar

59 CPA/ORD/17 June 2004/17 §1; this includes all official military and diplomatic personnel and also anyone working under any type of “contract” as defined in §1(13).Google Scholar

60 International, Amnesty, Iraq: Memorandum on Concerns Relating to the Rule of Law, Mde 14/157/2003, (2003); Amnesty International, Iraq: Memorandum on Concerns Related to Legislation Introduced By the Coalition Provisional Authority, Mde/14/176/2003, (2003).Google Scholar

61 Shi, , The Legal Status of Foreign Military and Civilian Personnel, 33 GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW (2004), 260.Google Scholar

62 The conclusion of a treaty granting immunity to American military personnel in Iran in 1963 led to Ruhollah Khomeini breaking ranks with the quietist ulema to openly challenge the government. This led to his incarceration, in the course of which he was promoted to the rank of Ayatollah, presumably to save him from execution, and his subsequent banishment to Iraq, where he remained until 1977 and from where he organised the successful revolution. See ERVAND ABRAHAMIAN, KHOMEINISM: ESSAYS ON THE ISLAMIC REPUBLIC (1993); BAQER MOIN, KHOMEINI: THE LIFE OF THE AYATOLLAH (2000); CHIBLI MALLAT, THE RENEWAL OF ISLAMIC LAW : MUHAMMAD BAQER AS-SADR, NAJAF, AND THE SHI'I INTERNATIONAL (1993).Google Scholar

63 McCarthy, , The Paradox of the International Law of Military Occupation, 10 JOURNAL OF CONFLICT AND SECURITY LAW (2005), 45.Google Scholar

64 Regulations Respecting the Laws and Customs of War on Land, annexed to Convention respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2277, 2 AJIL Supp. 90 (1908), Article 42, the emphasis on factual control rather than legal definition is further evidenced in the remainder of Article 42: “The occupation extends only to territory where such authority has been established and can be exercised.”Google Scholar

65 Wolfrum, , Iraq: From Belligerent Occupation to Iraqi Exercise of Sovereignty, 9 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW (2005), 4-5, especially fn. 8., notes the wider scope of Article 2 (2) of the Fourth Geneva Convention which also applies to an occupation meeting no armed resistance; Christopher Greenwood, The Administration of Occupied Territories in International Law, INTERNATIONAL LAW AND THE ADMINISTRATION OF OCCUPIED TERRITORIES: TWO DECADES OF ISRAELI OCCUPATION OF THE WEST BANK AND GAZA STRIP (Emma Playfair ed., 1992), 243.Google Scholar

66 Wolfrum, , Iraq: From Belligerent Occupation to Iraqi Exercise of Sovereignty, 9 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW (2005), 8.Google Scholar

67 Article 43 of the Hague Regulations leaves little to the imagination in this respect; “The authority of the legitimate power having in fact passed to the hands of the occupant, the latter shall take all measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Emphasis addedGoogle Scholar

68 Gerson, A., Trustee-Occupant: The Legal Status of Israel's Presence in the West Bank, 14 HARVARD INTERNATIONAL LAW JOURNAL 1-49 (1978); A. GERSON, ISRAEL, THE WEST BANK AND INTERNATIONAL LAW (1978), 78-82. For a critical discussion of this approach see A. Roberts, What is a Military Occupation?, 55 BRITISH YEARBOOK OF INTERNATIONAL LAW (1984), 292; H.H. Perritt, Jr., Structures and Standards for Political Trusteeship, 8 UCLA JOURNAL OF INTERNATIONAL LAW AND FOREIGN AFFAIRS 385 et seq. (2003); Rüdiger Wolfrum, International Administration in Post-Conflict Situations By the United Nations and Other International Actors, 9 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW (2005), 672-73.Google Scholar

69 Perritt, H.H. Jr., Iraq and the Future of the United States Foreign Policy: Failures of Legitimacy, 31 SYRACUSE JOURNAL OF INTERNATIONAL LAW AND COMMERCE 149 et seq. (2004).Google Scholar

70 McCarthy, , The Paradox of the International Law of Military Occupation, 10 JOURNAL OF CONFLICT AND SECURITY LAW (2005), 46, emphasis added; Christopher Greenwood, The Administration of Occupied Territories in International Law, INTERNATIONAL LAW AND THE ADMINISTRATION OF OCCUPIED TERRITORIES: TWO DECADES OF ISRAELI OCCUPATION OF THE WEST BANK AND GAZA STRIP (Emma Playfair ed., 1992), 251.Google Scholar

71 Berlin, Isaja, Two Concepts of Liberty, FOUR ESSAYS ON LIBERTY (Isaja Berlin ed., 1969), 129.Google Scholar

72 Negative rights are categorical and absolute rights which “must be respected here and now,” D. RAPHAEL, POLITICAL THEORY AND THE RIGHTS OF MAN (1967), 51, 53.Google Scholar

73 McCarthy, , The Paradox of the International Law of Military Occupation, 10 JOURNAL OF CONFLICT AND SECURITY LAW (2005), 46-7, emphasis in the original.Google Scholar

74 JEAN PICTET (ED.), COMMENTARY ON GENEVA CONVENTION IV OF 1949 (1958), 273.Google Scholar

75 S/RES/1483 (2003) of 22 May 2003, preamb. para. 13, op. para. 5.Google Scholar

76 McCarthy, , The Paradox of the International Law of Military Occupation, 10 JOURNAL OF CONFLICT AND SECURITY LAW (2005), 45; Benvenisti, Water Conflicts During the Occupation of Iraq, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW (2003), 861-63.Google Scholar

77 Commons, House of, Iraq: Law of Occupation, House of Commons Library Research Paper 03/51, (2003), 25.Google Scholar

78 CPA/REG/16 May 2003/01.Google Scholar

79 S/RES/1483 (2003) of 22 May 2003, op. paras. 12-14.Google Scholar

80 See the discussion in fn. 53 above.Google Scholar

81 Scheffer, , Beyond Occupation Law, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW (2003), 843-44.Google Scholar

82 BENVENISTI, EYAL, THE INTERNATIONAL LAW OF OCCUPATION (2004), 166-67; Brian D. Tittemore, Belligerents in Blue Helmets: Applying International Humanitarian Law to United Nations Peace Operations, 33 STANFORD JOURNAL OF INTERNATIONAL LAW 61 et seq. (1997).Google Scholar

83 Roberts, , What is a Military Occupation?, 55 BRITISH YEARBOOK OF INTERNATIONAL LAW (1984), 302-05.Google Scholar

84 Scheffer, , Beyond Occupation Law, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW (2003), 853.Google Scholar

85 This approach of “outsourcing” the provision of internally-mandated peacekeeping to groups of nation states under unified national command rather than multilateral UN control has been explicitly welcomed in academic and official literature. See Brahimi / et al., Report of the Panel on United Nations Peace Operations, (2000).Google Scholar

86 Scheffer, , Beyond Occupation Law, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW (2003), 843-44.Google Scholar

87 Scheffer is, however, quick to assert that “this rather anaemic body of international law remains difficult to enforce against either governments or individuals,” Scheffer, Beyond Occupation Law, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW (2003), 857.Google Scholar

88 Feldman, Noah, Edited Transcript: What We Owe Iraq, 2005, Carnegie Council on Ethics and International Affairs, available at: www.carnegiecouncil.org, emphasis added.Google Scholar

This somewhat nonchalant position is also shared by other legal writers. For instance with respect to the debatable foundation for the establishment of the Iraqi Special Tribunal, one American international lawyer posits two distinct pillars to establish the Tribunal's legitimacy. She alleges that international humanitarian law has evolved since Hague and Geneva and now “recognize[s] the need for an occupying power to be permitted to change the laws of an occupied state in order to render humanitarian aid. This broader interpretation of occupation law under the Geneva Conventions, allowing both occupation and the alteration of an occupied state's laws for humanitarian purposes, would legitimize the IST [Iraqi Special Tribunal] as a judicial institution, despite its formation by an occupying power with or without military necessity.” Linda Malone / Christopher M. Rassi / Laura Dickinson, Issue #3: Is the Iraqi Special Tribunal, which was established on December 10, 2003 by the Occupying Power and the unelected Iraqi Governing Council, a legitimate judicial institution?, 2005, available at: http://law.case.edu/saddamtrial.Google Scholar

89 Wolfrum, , Iraq: From Belligerent Occupation to Iraqi Exercise of Sovereignty, 9 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW (2005), 8.Google Scholar

90 As for instance in Germany or Japan. Gerson, A., War, Conquered Territory and Military Occupation in the Contemporary International Legal System, 18 HARVARD INTERNATIONAL LAW JOURNAL (1977).Google Scholar

91 BENVENISTI, THE INTERNATIONAL LAW OF OCCUPATION (2004), 92-96; McCarthy, The Paradox of the International Law of Military Occupation, 10 JOURNAL OF CONFLICT AND SECURITY LAW (2005), 49; Scheffer, Beyond Occupation Law, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW (2003), 848.Google Scholar

92 “Reaffirming the sovereignty and territorial integrity of Iraq, …expressing resolve that the day when Iraqis govern themselves must come quickly,” S/RES/1483 (2003) of 22 May 2003, preamb. paras. 2 and 4.Google Scholar

“Underscoring that the sovereignty of Iraq resides in the State of Iraq, reaffirming the right of the Iraqi people freely to determine their own political future and control their own natural resources, reiterating its resolve that the day when Iraqis govern themselves must come quickly”, S/RES/1511 (2003) of 16 October 2003, preamb. para. 2.Google Scholar

93 Rivkin, David B. Jr. / Bartram, Darin B., Military Occupation: Legally Ensuring a Lasting Peace, 26 THE WASHINGTON QUARTERLY (2003), 95, 97, emphasis added; Stirk, Carl Schmitt, the Law of Occupation, and the Iraq War, 11 CONSTELLATIONS (2004), 533.Google Scholar

94 On the validity of that argument see the discussion in Wolfrum, Iraq: From Belligerent Occupation to Iraqi Exercise of Sovereignty, 9 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW (2005), 5; Ebrahim Afsah, Iraq: From “Troubled Law of Occupation” to Constitutional Order? China Shop Rules and International Responsibilities, LEIPZIGER BEITRÄGE ZUR ORIENTFORSCHUNG (2006), 33-36.Google Scholar

95 Feldman, Noah, Edited Transcript: What We Owe Iraq, 2005, Carnegie Council on Ethics and International Affairs, available at: www.carnegiecouncil.org, emphasis added.; these statements should not, however, be taken as necessary representing the official US position.Google Scholar

96 Scheffer, , Beyond Occupation Law, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW (2003), 843.Google Scholar

97 Goodman, Ryan / Jinks, Derek, Toward an Institutional Theory of Sovereignty, 55 STANFORD LAW REVIEW 1749 et seq. (2003).Google Scholar

98 Reisman, , Sovereignty and Human Rights in Contemporary International Law, 84 AMERICAN JOURNAL OF INTERNATIONAL LAW 866 et seq. (1990).Google Scholar

99 Gilpin, Robert, The Richness of the Tradition of Political Realism, NEO-REALISM AND ITS CRITICS (Robert Keohane ed., 1986); KENNETH NEAL WALTZ, THEORY OF INTERNATIONAL POLITICS (1979).Google Scholar

100 Williams, Michael C., Why Ideas Matter in International Relations: Hans Morgenthau, Classical Realism, and the Moral Construction of Power Politic, 58 INTERNATIONAL ORGANIZATION 633-66 (2004); Barry R. Posen / Andrew Ross, Competing Visions for U.S. Grand Strategy, INTERNATIONAL SECURITY (1996); STEPHEN M. WALT, TAMING AMERICAN POWER: THE GLOBAL RESPONSE TO U.S. PRIMACY (2005).Google Scholar

101 Wendt, Alexander E., The Agent-Structure Problem in International Relations Theor, 41 INTERNATIONAL ORGANIZATION 335-70 (1987).Google Scholar

102 SIMPSON, GERRY J, GREAT POWERS AND OUTLAW STATES UNEQUAL SOVEREIGNS IN THE INTERNATIONAL LEGAL ORDER (2004); PETRA MINNEROP, PARIA-STAATEN IM VÖLKERRECHT? (2004).Google Scholar

103 Williams, Michael C., What is the National Interest? The Neoconservative Challenge in Ir Theory, 11 EUROPEAN JOURNAL OF INTERNATIONAL RELATIONS 307-37 (2005); JOSHUA MURAVCHIK, EXPORTING DEMOCRACY: FULFILLING AMERICA'S DESTINY (1991).Google Scholar

104 Kurth, James, Ignoring History: U.S. Democratization in the Muslim World, 49 ORBIS (2005), 310-11.Google Scholar

105 Schmitt, Michael N., Preemtive Strategies in International Law, 24 MICHIGAN JOURNAL OF INTERNATIONAL LAW 513-48 (2003).Google Scholar

106 Bush, George W., Remarks by President Bush at Victory 2004 rally, 1 November 2004, 2004, Whitehouse, available at: www.whitehouse.gov/news/releases/2004/11/20041101-24.html.Google Scholar

107 Snyder, Peter S., The Myth of Preemption: More Than a War Against Iraq, ORBIS (2003).Google Scholar

108 Gerson, , Trustee-Occupant: The Legal Status of Israel's Presence in the West Bank, 14 HARVARD INTERNATIONAL LAW JOURNAL 1-49 (1978); Perritt, Structures and Standards for Political Trusteeship, 8 UCLA JOURNAL OF INTERNATIONAL LAW AND FOREIGN AFFAIRS 385 et seq. (2003).Google Scholar

109 Benvenisti, , Water Conflicts During the Occupation of Iraq, 97 AMERICAN JOURNAL OF INTERNATIONAL LAW (2003), 861-63.Google Scholar

110 McCarthy, , The Paradox of the International Law of Military Occupation, 10 JOURNAL OF CONFLICT AND SECURITY LAW (2005), 48.Google Scholar

111 Wolfrum, , Iraq: From Belligerent Occupation to Iraqi Exercise of Sovereignty, 9 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW (2005), 5.Google Scholar

112 For an unsophisticated accocunt that completely disregards this tension see Rivkin / Bartram, Military Occupation: Legally Ensuring a Lasting Peace, 26 THE WASHINGTON QUARTERLY (2003).Google Scholar

113 BENVENISTI, THE INTERNATIONAL LAW OF OCCUPATION (2004), 79.Google Scholar

114 Fraenkel, Ernst, Military Occupation and the Rule of Law, GESAMMELTE SCHRIFTEN (Ernst Fraenkel ed., 1999), 3: 211.Google Scholar

115 CPA/REG/16 May 2003/01Google Scholar

116 See also Wiliams, Ian, Foreign Policy in Focus, 2003, Global Policy, available at: www.globalpolicy.org/security/iraq/attack/law/2003/0514shape.htm.Google Scholar

117 Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287.Google Scholar

118 Khalil, Mona Ali, Iraq, Afghanistan, and the War on Terrorism: Winning the Battle and Losing the War, 22 GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 261-72 (2004).Google Scholar

119 CHESTERMAN, SIMON, YOU, THE PEOPLE: THE UNITED NATIONS, TRANSITIONAL ADMINISTRATION, AND STATE-BUILDING (2004), 257.Google Scholar