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

Published online by Cambridge University Press:  06 March 2019

Ebrahim Afsah

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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.

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

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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

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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

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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

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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

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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

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

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

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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

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