Occupation Law During and After Iraq: The Expedience of Conservationism Evidenced in the Minutes and Resolutions of the Iraqi Governing Council
43 Pages Posted: 24 Sep 2012 Last revised: 13 Aug 2014
Date Written: 2012
The legality of the 2003 invasion of Iraq has has attracted intense scholarly and public scrutiny. The academic debate surrounding the legal dimensions to the United States' post-invasion actions in Iraq, however, has been far less robust. In particular, scholars have paid comparatively limited attention to the manner in which the U.S. -- the self-acknowledged occupying power in Iraq -- complied with the international law of occupation and, more specifically, the conservationist principle, which together contemplate that occupying states will endeavor to preserve the status quo ante bellum in the occupied state and uphold existing laws, unless "absolutely prevented" from doing so. The academic literature to date on the legal dimensions to the United States' occupation of Iraq can be loosely characterized as taking one of two theoretical approaches. First, some scholars remain focused solely on the relevance of occupation law to contemporary occupations (arguing that it is, in fact, anachronistic and therefore was not fully applicable to the occupation of Iraq), thereby truncating serious investigation to the legal questions attendant to the U.S. occupation of Iraq. Second, scholars that do attribute relevance and legal authority to the traditional law of occupation as applied to contemporary occupations rely exclusively on U.S. sources (as opposed to Iraqi sources) to evaluate America's compliance with the law of occupation in its occupation of Iraq. Both approaches are incomplete.
In an attempt to address the weaknesses in the existing literature on the subject, the Article makes a distincitve contribution: It relies primarily on the minutes kept and resolutions adopted by the Iraqi Governing Council (the "IGC") (the quasi-governmental body established by the Coalition Provisional Authority in June of 2003 and officially recognized in U.N. General Assembly Resolutions 1483 and 1511 prior to its dissolution in June 2004) to examine the relevance of occupation law to contemporary, state-building occupations and, in turn, to determine the degree to which the United States adhered to its legal mandate as the occupying power in Iraq. Until now, Iraqi perspectives on the U.S. occupation of Iraq have been absent from the debate. Given that the the raison d'être of the international law of occupation is to protect and uphold the human rights of the occupied population, it is only natural that scholars examine the legality of the occupation of Iraq from the perspective of the rights-holders themselves -- who are, in this case, the Iraqis, of whom the IGC was the principal representative entity. Relying principally on the insights provided by the hitherto unreferenced resolutions adopted and meeting minutes kept by the IGC, this Article provides compelling justifications for the application of the conservationist principle -- the axiom of occupation law -- to contemporary, state-building occupations, while also casting incriminating shadows upon the United States' adherence to certain of its obligations under occupation law as the occupying power in Iraq.
In addition to examining the relevance of the law of occupation to contemporary occupations and the United States’ adherence to this law in its occupation of Iraq, the Article extends arguments of other scholars by proposing modifications to the traditional law of occupation. Such modifications would enable states to more effectively balance the tension between traditional occupation law and the realities of contemporary, state-building occupations that require drastic transformations to the economic, political, and legal infrastructure of the occupied state. Specifically, the Article contributes to the growing body of literature on the emerging international legal doctrine, jus post bellum, by outlining three fundamental principles that must supplement the existing proposals related to the jus post bellum law of transformative occupations. Foremost among these principles is the necessity of preserving popular sovereignty during transformative occupations in the form of an executive council made up of elected citizen representatives from the occupied state that have veto power over all proposed reforms to the legal, economic, and political infrastructure of the occupied state. These principles, if implemented, will more effectively uphold the rights of the sovereign, occupied population while concomitantly providing for certain political and economic transformations to the occupied state in instances where the rights of the ousted or fallen, de jure government are not worth protecting, as was the case in Iraq.
Keywords: occupation law, conservationist principle, law of occupation, occupation of Iraq
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