Military Occupation and the Rule of Law: The Legal Obligations of Occupying Forces in Iraq

Murdoch University Electronic Journal of Law, Vol. 8, 2005

48 Pages Posted: 30 Nov 2010 Last revised: 21 Jan 2011

See all articles by Ben Clarke

Ben Clarke

University of Notre Dame Australia

Date Written: May 10, 2005

Abstract

The invasion and occupation of Iraq has attracted significant legal interest. A year after Coalition forces invaded Iraq, debate over the legality of that use of force shows no sign of abating.

Coalition forces also face intense scrutiny over their obligations as occupying powers. This paper explores the powers and duties of occupiers under international law. The nature and scope of these norms is assessed by reference to a variety of sources of international law including (i) the classic treaties on occupation, (ii) customary law, (iii) applicable UN resolutions and (iv) relevant domestic law. In assessing the fundamental obligations of the occupying forces in Iraq, the following questions are addressed:

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?'

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 occupation in the 21st century.

Keywords: Security Council resolution 1483, the law of belligerent occupation, the occupation of Iraq, the duty to maintain public order and security, resistance to occupation

Suggested Citation

Clarke, Ben, Military Occupation and the Rule of Law: The Legal Obligations of Occupying Forces in Iraq (May 10, 2005). Murdoch University Electronic Journal of Law, Vol. 8, 2005 , Available at SSRN: https://ssrn.com/abstract=1716629

Ben Clarke (Contact Author)

University of Notre Dame Australia ( email )

29 Shepherd St. Level 1
Sydney, New South Wales 2008
Australia
+61 8 94330607 (Phone)

HOME PAGE: http://www.nd.edu.au/fremantle/schools/law/staff/bClarke.shtml

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