Full text of "The war in Iraq : a legal analysis"

International Law Studies

Volume 86

The War in Iraq: A Legal Analysis

Raul A. "Pete" Pedrozo
Editor

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Naval War College
Newport, Rhode Island
2010

INTERNATIONAL LAW STUDIES SERIES

PRESIDENT, NAVAL WAR COLLEGE
Rear Admiral James P. Wisecup, USN

PROVOST, NAVAL WAR COLLEGE
Ambassador Mary Ann Peters (Ret.)

DEAN, CENTER FOR NAVAL WARFARE

STUDIES
Professor Robert Rubel

CHAIRMAN, INTERNATIONAL LAW

DEPARTMENT
Professor Dennis L. Mandsager

CHARLES H. STOCKTON CHAIR OF

INTERNATIONAL LAW
Professor Derek P. Jinks

INTERNATIONAL LAW DEPARTMENT
Colonel Daria P. Wollschlaeger, JA, USA
Professor Raul (Pete) A. Pedrozo
Commander Sandra K. Selman, USCG
Commander James C. Kraska, JAGC, USN
Lieutenant Colonel Rodney R. LeMay, JA, USA
Major Michael D. Carsten, USMC

COMMANDING OFFICER, NAVAL WAR

COLLEGE, RESERVE UNIT (LAW)
Captain Rymn J. Parsons, JAGC, USN

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ISBN 978-1-884733-75-8

International Law Studies

Volume 86

Library of Congress Cataloging-in-Publication Data

The war in Iraq : a legal analysis / Raul A. "Pete" Pedrozo, editor,
p. cm. — (International law studies series ; v. 86)

Includes index.

ISBN 978-1-884733-75-8 (hard cover)

1. War (International law) — Congresses. 2. Aggression (International law) —
Congresses. 3. Intervention (International law) — Congresses. 4. Iraq War,

2003 Congresses. 5. Humanitarian law — Congresses. 6. Iraq — Politics and

government — 2003 Congresses. I. Pedrozo, Raul A. "Pete".

KZ6355.W39 2010

341.6— dc22

2010020156

Table of Contents

The War in Iraq: A Legal Analysis

Blue Books ix

Foreword xvii

Introduction xix

Preface xxiii

PartI: Opening Address

I Regime Change and the Restoration of the Rule of Law in Iraq

Raid Juki al-Saedi 3

Part II: Overview of the Conflict in Iraq

II Iraq and the "Fog of Law"

John F. Murphy 19

Part III: The Legal Bases for Military Operations

III Legal Bases for Military Operations in Iraq

Raul A. "Pete" Pedrozo 45

IV Was the 2003 Invasion of Iraq Legal?

AndruE. Wall 69

V Legal Bases for Coalition Combat Operations in Iraq,

May 2003-Present
Alexandra Perina 81

VI The International Humanitarian Law Classification of

Armed Conflicts in Iraq since 2003
David Turns 97

Part IV: The Law of Armed Conflict in Iraq

VII Legal Considerations in Relation to Maritime Operations

against Iraq
Neil Brown 127

VIII Come the Revolution: A Legal Perspective on Air Operations in

Iraq since 2003
Charles J. Dunlap, Jr 139

IX The Iraq War: A Commander's Perspective

MichaelL. Oates 155

X The "Fog of Law": The Law of Armed Conflict in Operation

Iraqi Freedom
Marc Warren 167

PART V: THE OCCUPATION OF IRAQ

XI The Occupation of Iraq

Clyde]. Tatell 209

XII Occupation in Iraq: Issues on the Periphery and for the Future:

A Rubik's Cube Problem?
GeorgeK. Walker 219

XIII The Occupation of Iraq: A Reassessment

Eyal Benvenisti and Guy Keinan 263

Part VI: Stability Operations in Iraq

XIV Counterinsurgency and Stability Operations: A New Approach to

Legal Interpretation
DaleStephens 289

XV Rule of Law Capacity Building in Iraq

Richard Pregent 323

Part VII: Human Rights and the Law of War in Iraq

XVI The Dark Sides of Convergence: A Pro-civilian Critique of the

Extraterritorial Application of Human Rights Law in
Armed Conflict
Naz K. Modirzadeh 349

XVII Detention Operations in Iraq: A View from the Ground

BrianJ.Bill 411

XVIII The Role of the International Committee of the Red Cross in

Stability Operations
Laurent Colassis 457

Part VIII: Closing Address

XIX Concluding Observations: The Influence of the Conflict in Iraq on

International Law
Yoram Dinstein 479

Appendix — Contributors 497

Index 507

BLUE BOOKS

International Law

Studies/Documents/Situations/Decisions/Topics/Discussions

VOL 85
The War in Afghanistan: A Legal Analysis (Michael N. Schmitt ed., 2009) (Vol. 85, US Naval
War College International Law Studies).

VOL 84
INTERNATIONAL LAW AND MILITARY OPERATIONS (Michael D. Carsten ed., 2008) (Vol. 84, US
Naval War College International Law Studies).

VOL 83
Global Legal Challenges: Command of the Commons, Strategic Communications
AND NATURAL DISASTERS (Michael D. Carsten ed., 2007) (Vol. 83, US Naval War College Inter-
national Law Studies).

VOL 82
The Law of War in the 2 1 st Century: Weaponry and the Use of Force (Anthony M. Helm
ed., 2006) (Vol. 82, US Naval War College International Law Studies).

VOL 81
International Law Challenges: Homeland Security and Combating Terrorism
(Thomas McK. Sparks & Glenn M. Sulmasy eds., 2006) (Vol. 81, US Naval War College Interna-
tional Law Studies).

VOL 80
ISSUES IN INTERNATIONAL LAW AND MILITARY OPERATIONS (Richard B. Jaques ed., 2006) (Vol.
80, US Naval War College International Law Studies).

VOL 79
INTERNATIONAL LAW AND THE WAR ON TERROR (Fred L. Borch & Paul S. Wilson eds., 2003)
(Vol. 79, US Naval War College International Law Studies).

VOL 78
Legal and Ethical Lessons of NATO's Kosovo Campaign (Andru E. Wall ed., 2002) (Vol.
78, US Naval War College International Law Studies).

VOL 77
LILLICH ON THE FORCIBLE PROTECTION OF NATIONALS ABROAD (Thomas C. Wingfield &
James E. Meyen eds., 2002) (Vol. 77 1 US Naval War College International Law Studies).

VOL 76
Computer Network Attack and International Law (Michael N. Schmitt & Brian T.
O'Donnell eds., 2002) (Vol. 76, US Naval War College International Law Studies).

VOL 75
International Law across the Spectrum of Conflict: Essays in Honour of Professor
L.C. Green on the Occasion of His Eightieth Birthday (Michael N. Schmitt ed., 2000)
(Vol. 75, US Naval War College International Law Studies).

VOL 74
George K. Walker, The Tanker War, 1980-88: Law and Policy (2000) (Vol. 74, US Naval
War College International Law Studies).

Blue Books

VOL 73
Annotated Supplement to The Commander's Handbook on the Law of Naval Opera-
tions (A.R. Thomas & James C. Duncan eds., 1999) (Vol. 73, US Naval War College Interna-
tional Law Studies).

VOL 72
The Law of Military Operations: Liber Amicorum Professor Jack Grunawalt (Mi-
chael N. Schmitt ed., 1998) (Vol. 72, US Naval War College International Law Studies).

VOL 71
The Law of Armed Conflict: Into the Next Millennium (Michael N. Schmitt & Leslie C.
Green eds., 1998) (Vol. 71, US Naval War College International Law Studies).

VOL 70
LEVIE ON THE LAW OF WAR (Michael N. Schmitt 8c Leslie C. Green eds., 1998) (Vol. 70, US Naval
War College International Law Studies).

VOL 69
PROTECTION OF THE ENVIRONMENT DURING ARMED CONFLICT (Richard J. Grunawalt, John E.
King 8c Ronald S. McClain eds., 1996) (Vol. 69, US Naval War College International Law
Studies).

VOL 68
Readings on International Law from the Naval War College Review 1978-1994 (John
Norton Moore 8c Robert F. Turner eds., 1995) (Vol. 68, US Naval War College International Law
Studies).

VOL 67
LEGAL AND MORAL CONSTRAINTS ON LOW-INTENSITY CONFLICT (Alberto R. Coll, James S. Ord
8c Stephen A. Rose eds., 1995) (Vol. 67, US Naval War College International Law Studies).

VOL 66
J. ASHLEY ROACH 8c ROBERT W. SMITH, EXCESSIVE MARITIME CLAIMS (1994) (Vol. 66, US Naval
War College International Law Studies).

VOL 65
Targeting Enemy Merchant Shipping (Richard J. Grunawalt ed., 1993) (Vol. 65, US Naval
War College International Law Studies).

VOL 64
THE LAW OF NAVAL OPERATIONS (Horace B. Robertson ed., 1991 ) (Vol. 64, US Naval War Col-
lege International Law Studies).

VOL 63
ALFRED P. RUBIN, THE LAW OF PIRACY (1988) (Vol. 63, US Naval War College International Law
Studies).

VOL 62
Readings in International Law from the Naval War College Review 1947-1977, II The
Use of Force, Human Rights and General International Legal Issues (Richard B. Lillich 8c John
Norton Moore eds., 1980) (Vol. 62, US Naval War College International Law Studies).

VOL 61

Readings in International Law from the Naval War College Review 1947-1977, 1 Role
of International Law and an Evolving Ocean Law (Richard B. Lillich 8c John Norton Moore eds.,
1980) (Vol. 61, US Naval War College International Law Studies).

Blue Books

VOL 60
DOCUMENTS ON PRISONERS OF WAR (Howard S. Levie ed., 1979) (Vol. 60, US Naval War Col-
lege International Law Studies).

VOL 59
Howard S. Levie, Prisoners of War in International Armed Conflict (1977) (Vol. 59,
US Naval War College International Law Studies).

VOL 58
William T. Mallison Jr., Studies in the Law of Naval Warfare: Submarines in General
AND LIMITED WARS (1966) (Vol. 58, US Naval War College International Law Studies).

VOL 57
(Not Published)

VOL 56
Neill H. Alford Jr., Modern Economic Warfare: Law and the Naval Participant
(1963) (Vol. 56, US Naval War College International Law Studies).

VOL 55
Carl Q. Christol, The International Law of Outer Space (1962) (Vol. 55, US Naval War
College International Law Studies).

VOL 54
NATO AGREEMENTS ON STATUS: TRAVAUX PrEPARATOIRES (Joseph M. Snee ed., 1961) (Vol.
54, US Naval War College International Law Studies).

VOL 53
Carl M. Franklin, The Law of the Sea: Some Recent Developments (With Particular
Reference to the United Nations Conference of 1958) (1959-60) (Vol. 53, US Naval War
College International Law Studies).

VOL 52
ROLAND J. STANGER, CRIMINAL JURISDICTION OVER VISITING ARMED FORCES (1957-58) (Vol.
52, US Naval War College International Law Studies).

VOL 51
Brunson MacChesney, Situation, Documents and Commentary on Recent
Developments in the International Law of the Sea (1956) (Vol. 51, US Naval War Col-
lege International Law Situation and Documents).

VOL 50
Robert W. Tucker, The Law of War and Neutrality at Sea (1955) (Vol. 50, US Naval War
College International Law Studies).

VOL 49
Hans Kelsen, Collective Security under International Law (1954) (Vol. 49, US Naval
War College International Law Studies).

VOL 48
INTERNATIONAL LAW DOCUMENTS 1952-53: Peace Treaties; Defense Agreements; European
Unions (Manley O. Hudson ed., 1954) (Vol. 48, US Naval War College International Law
Documents).

VOL 47
INTERNATIONAL LAW DOCUMENTS 1950-51: The Protection of Victims of War (Parti: Conven-
tions before 1949; Part II: Geneva Conventions of 1949) (Manley O. Hudson ed., 1952) (Vol. 47, US
Naval War College International Law Documents).

Blue Books

VOL 46

INTERNATIONAL LAW DOCUMENTS 1948-49: International Organization; Trials of War Crimi-
nals; Rights Claimed by Littoral States in Adjacent Seas; et al. (Manley O. Hudson ed., 1950) (Vol.
46, US Naval War College International Law Documents).

VOL 45
INTERNATIONAL LAW DOCUMENTS 1946-47: The Treaties of Peace of 1947; Instrument of Japa-
nese Surrender; etal. (Manley O. Hudson ed., 1948) (Vol. 45, US Naval War College International
Law Documents).

VOL 44

INTERNATIONAL Law DOCUMENTS 1944-45: Contraband of War; The Crimea Conference; Act of
Chapultepec; etal. (Payson S. Wild Jr. ed., 1946) (Vol. 44, US Naval War College International
Law Documents).

VOL 43

INTERNATIONAL LAW DOCUMENTS 1943: Visit and Search; Destruction of Prizes; War Zones; De-
fense Zones; etal. (Payson S. Wild Jr. ed., 1945) (Vol. 43, US Naval War College International Law
Documents).

VOL 42
INTERNATIONAL LAW DOCUMENTS 1942: Orders to American Military Forces in India; Crimes
against Civilian Populations in Occupied Countries; et al. (Payson S. Wild Jr. ed., 1943) (Vol. 42,
US Naval War College International Law Documents).

VOL 41

INTERNATIONAL LAW DOCUMENTS 1941: Freezing of Japanese and Chinese Assets in the United
States; The Atlantic Charter; etal. (Payson S. Wild Jr. ed., 1943) (Vol. 41, US Naval War College
International Law Documents).

VOL 40

INTERNATIONAL LAW DOCUMENTS 1940: Proclamations and Regulations Concerning Neutrality
of the United States in the War between Germany and Norway; et al. (Payson S. Wild Jr. ed., 1942)
(Vol. 40, US Naval War College International Law Documents).

VOL 39

INTERNATIONAL Law SITUATIONS 1939: Neutral Duties and State Control of Enterprise; Neutral-
ity Problems; Contiguous Zones; et al. (Payson S. Wild Jr. ed., 1940) (Vol. 39, US Naval War Col-
lege International Law Situations).

VOL 38
INTERNATIONAL LAW SITUATIONS 1938: Belligerent and Neutral Rights in Regard to Aircraft;
Force Short of War; et al. (Payson S. Wild Jr. ed., 1940) (Vol. 38, US Naval War College Interna-
tional Law Situations).

VOL 37
INTERNATIONAL LAW SITUATIONS 1937: Protection by Vessels of War; Naval Protection during
Strained Relations; et al. (George G. Wilson ed., 1939) (Vol. 37, US Naval War College Interna-
tional Law Situations).

VOL 36

INTERNATIONAL LAW SITUATIONS 1936: Insurrection, Belligerency ', Statehood; Visit by and In-
ternment of Aircraft; etal. (George G. Wilson ed., 1937) (Vol. 36, US Naval War College Interna-
tional Law Situations).

Xll

Blue Books

VOL 35
INTERNATIONAL LAW SITUATIONS 1 935: Vessels and Neutral Ports; Action during Civil Strife; et al.
(George G. Wilson ed., 1936) (Vol. 35, US Naval War College International Law Situations).

VOL 34
INTERNATIONAL LAW SITUATIONS 1934: Transfer and Capture; Interference with Ships; et al.
(George G. Wilson ed., 1936) (Vol. 34, US Naval War College International Law Situations).

VOL 33
INTERNATIONAL LAW SITUATIONS 1933: Contraband and Blockade; Independent Philippine Is-
lands; et al (George G. Wilson ed., 1934) (Vol. 33, US Naval War College International Law
Situations).

VOL 32
INTERNATIONAL LAW SITUATIONS 1932: Belligerents in Neutral Waters; Artificial Structures and
Maritime Jurisdiction; etal. (George G. Wilson ed., 1934) (Vol. 32, US Naval War College Inter-
national Law Situations).

VOL 31
INTERNATIONAL LAW SITUATIONS 1931: Neutrality and Aircraft; Neutrality and Territorial Wa-
ters; Belligerency and Maritime Jurisdiction (George G. Wilson ed., 1932) (Vol. 31, US Naval War
College International Law Situations).

VOL 30
INTERNATIONAL LAW SITUATIONS 1930: London Naval Treaty; Absence of Local Authority; Bellig-
erent Aircraft; etal. (George G. Wilson ed., 1931) (Vol. 30, US Naval War College International
Law Situations).

VOL 29

INTERNATIONAL LAW SITUATIONS 1929: Neutrality and Vessels; Status of Islands in Pacific Ocean;
Neutral Obligations (George G. Wilson ed., 1931) (Vol. 29, US Naval War College International
Law Situations).

VOL 28
INTERNATIONAL LAW SITUATIONS 1928: Maritime Jurisdiction; Carriage of Mail in Time of War;
Enemy Persons on Neutral Vessels (George G. Wilson ed., 1929) (Vol. 28, US Naval War College
International Law Situations).

VOL 27
INTERNATIONAL LAW SITUATIONS 1927: Goods on Neutral Merchant Vessels; Visit and Search;
Armed Merchant Vessels (George G. Wilson ed., 1929) (Vol. 27, US Naval War College Interna-
tional Law Situations).

VOL 26
INTERNATIONAL LAW SITUATIONS 1926: Continuous Voyage; Submarines; Angary; Aircraft in
Neutral Ports (George G. Wilson ed., 1928) (Vol. 26, US Naval War College International Law
Situations).

VOL 25
INTERNATIONAL LAW DOCUMENTS 1925: REGULATION OF MARITIME WARFARE (George G.
Wilson ed., 1926) (Vol. 25, US Naval War College International Law Documents).

VOL 24
INTERNATIONAL LAW DOCUMENTS 1924: INTERNATIONAL AGREEMENTS {Five Power Limitation
of Naval Armament; Nicaraguan Canal Route; Danish West Indies; etal.) (George G. Wilson ed.,
1926) (Vol. 24, US Naval War College International Law Documents).

Xlll

Blue Books

VOL 23
INTERNATIONAL LAW DECISIONS 1923: Vessels (TheHaelen, etc.); Armed Vessels (Submarine El 4,
etc.); Search in Port (The Bernisse, etc.); etal. (George G. Wilson ed., 1925) (Vol. 23, US Naval War
College International Law Decisions).

VOL 22
INTERNATIONAL LAW DECISIONS 1922: The Berlin; The Miramichi; The Maria; et al. (George G.
Wilson ed., 1924) (Vol. 22, US Naval War College International Law Decisions).

VOL 21
International Law documents 1921: Conference on the Limitation of armament
(George G. Wilson ed., 1923) (Vol. 21, US Naval War College International Law Documents).

VOL 20
INTERNATIONAL LAW DOCUMENTS 1920: THE TREATIES OF PEACE WITH AUSTRIA AND WITH

Hungary and Protocols and Declarations annexed Thereto (George G. Wilson ed.,
1922) (Vol. 20, US Naval War College International Law Documents).

VOL 19
International Law Documents 1919: The Treaty of Peace with Germany (George G.
Wilson ed., 1920) (Vol. 19, US Naval War College International Law Documents).

VOL 18
International Law Documents 1918: Neutrality, Conduct and Conclusion of
HOSTILITIES (George G. Wilson ed., 1919) (Vol. 18, US Naval War College International Law
Documents).

VOL 17
INTERNATIONAL LAW DOCUMENTS 1917: NEUTRALITY; BREAKING OF DIPLOMATIC RELATIONS;
WAR (George G. Wilson ed., 1918) (Vol. 17, US Naval War College International Law
Documents).

VOL 16
INTERNATIONAL LAW TOPICS 1916: NEUTRALITY PROCLAMATIONS AND REGULATIONS (George
G. Wilson ed., 1917) (Vol. 16, US Naval War College International Law Topics).

VOL 15
International Law Topics 1915: Documents on Neutrality and War (George G. Wilson
ed., 1916) (Vol. 15, US Naval War College International Law Topics).

VOL 14
INTERNATIONAL LAW TOPICS AND DISCUSSIONS 1914: Classification of Public Vessels; Regulations
Relating to Foreign Ships of War in Waters under the Jurisdiction of the United States; et al. (George
G. Wilson ed., 1915) (Vol. 14, US Naval War College International Law Topics and Discussions).

VOL 13
INTERNATIONAL LAW TOPICS AND DISCUSSIONS 1913: Marginal Sea and Other Waters; Com-
mencement of Hostilities; Limitation of Armaments; etal. (George G. Wilson ed., 1914) (Vol. 13,
US Naval War College International Law Topics and Discussions).

VOL 12
INTERNATIONAL LAW SITUATIONS 1912: Merchant Vessels and Insurgents; Air Craft in War; Cuba
Neutral; et al. (George G. Wilson ed., 1912) (Vol. 12, US Naval War College International Law
Situations).

xiv

Blue Books

VOL 11

INTERNATIONAL LAW SITUATIONS 1911: Asylum in Neutral Port; Protection to Neutral Vessels;
Destruction of Neutral Vessels; etal. (George G. Wilson ed., 1911) (Vol. 1 1, US Naval War College
International Law Situations).

VOL 10

INTERNATIONAL LAW SITUATIONS 1910: Coaling within Neutral Jurisdiction; Declaration of War;
Days of Grace; etal. (George G. Wilson ed., 1911) (Vol. 10, US Naval War College International
Law Situations).

VOL 9
INTERNATIONAL LAW TOPICS 1909: THE DECLARATION OF LONDON OF FEBRUARY 26, 1909
(George G. Wilson ed., 1910) (Vol. 9, US Naval War College International Law Topics).

VOL 8
INTERNATIONAL LAW SITUATIONS 1908: Termination of Liability for Breach of Blockade; The
Twenty-Four Hour Rule; Sequestration of Prize; etal. (George G. Wilson ed., 1909) (Vol. 8, US Na-
val War College International Law Situations).

VOL 7
INTERNATIONAL LAW SITUATIONS 1907: Fugitive from Cuban Justice at Guantanamo; Status of
United States Auxiliary Collier in Foreign Harbor; etal. (George G. Wilson ed., 1908) (Vol. 7, US
Naval War College International Law Situations).

VOL 6
INTERNATIONAL LAW TOPICS AND DISCUSSIONS 1906: Use of False Colors; Transfer of Flag of
Merchant Vessels during or in Anticipation of War; etal. (George G. Wilson ed., 1907) (Vol. 6, US
Naval War College International Law Topics and Discussions).

VOL 5
INTERNATIONAL LAW TOPICS AND DISCUSSIONS 1905: Inviolability of Private Property at Sea;
Contraband of War; Restriction of Visit and Search; etal. (George G. Wilson ed., 1906) (Vol. 5, US
Naval War College International Law Topics and Discussions).

VOL 4

INTERNATIONAL LAW SITUATIONS 1904: Merchant Vessels Adapted for Conversion into Auxiliary
Cruisers; Rights of Foreigner under Martial Law; Asylum for Insurgent Troops on War Vessel; et al.
(George G. Wilson ed., 1905) (Vol. 4, US Naval War College International Law Situations).

VOL 3
International Law Discussions 1903: The United States Naval War Code of 1900
(George G. Wilson ed., 1904) (Vol. 3, US Naval War College International Law Discussions).

VOL 2
INTERNATIONAL LAW SITUATIONS 1902: Submarine Telegraphic Cables in Time of War; Asylum
on Ships of War; Waters of Leased Territory; etal. (George G. Wilson ed., 1903) (Vol. 2, US Naval
War College International Law Situations).

VOL1
INTERNATIONAL LAW SITUATIONS 1901: Coast Warfare; Contraband; Transportation of Military
Persons; et al. (John B. Moore ed., 1901) (Vol. 1, US Naval War College International Law
Situations).

Foreword

The International Law Studies ("Blue Book") series was initiated by the Naval
War College in 1901 to publish essays, treaties and articles that contribute to
the broader understanding of international law. This, the eighty- sixth volume of
the "Blue Book" series, is a compilation of scholarly papers and remarks derived
from the proceedings of a conference hosted here at the Naval War College on June
23-25, 2009 and entitled "The War in Iraq: A Legal Analysis."

The June 2009 "War in Iraq" conference served as a second and "companion"
proceeding to the Experts Workshop "The War in Afghanistan: A Legal Analy-
sis," hosted by the Naval War College in June 2008 and the resulting scholarly
works of which appear in Volume 85 of the "Blue Book" series. The purpose of
the conference, similar to the previous year's Afghanistan workshop, was to pro-
vide a comprehensive legal examination of the armed conflict in Iraq during the
second Gulf War that began in 2003. The issues were examined by five panels of
experts, addressing topics that spanned the entire spectrum of the conflict and the
re-establishment of Iraqi sovereignty. Panelists discussed legal issues associated
with the initial decision to use armed force, the manner in which force was em-
ployed, the legal framework and evolution of military activities from invasion to
occupation, detention and counterinsurgency operations, as well as policy and legal
issues associated with the establishment of the rule of law and return of gover-
nance to the people of Iraq.

Renowned international academics and legal advisers, both military and civil-
ian, representing military, diplomatic, non-governmental and academic institu-
tions from the international community contributed to the conference and this
"Blue Book." Readers and researchers will find within this volume a detailed study
of the Iraq conflict, as well as its profound implications on the ongoing develop-
ment of international law, the law of armed conflict and military operations.

The conference and the "Blue Book" were made possible with generous support
from the Naval War College Foundation, the Center for National Security Law,
University of Virginia School of Law and the Israel Yearbook on Human Rights. The
International Law Department of the Center for Naval Warfare Studies, Naval War
College hosted the event.

On behalf of the Secretary of the Navy, the Chief of Naval Operations and the
Commandant of the Marine Corps, I extend our thanks and gratitude to all the

participants, contributing authors and editors for their invaluable contributions to
this project and to the future understanding of the laws of war.

JAMES WISECUP
Rear Admiral, U.S. Navy
President, Naval War College

xvin

Introduction

On March 20, 2003, after a year of very dramatic public discourse concern-
ing the appropriate response to Iraq's continuing violation of its interna-
tional obligations under numerous UN Security Council resolutions, the United
States, together with the United Kingdom and a coalition of "willing" partners, in-
cluding Australia, Denmark and Poland, launched Operation Iraqi Freedom
(OIF). OIF commenced the military operations intended to eliminate Saddam
Hussein's regime and the specter of his use of weapons of mass destruction. From
OIF's inception, and continuing through the next six years of military operations
spanning invasion, occupation and restoration of Iraqi sovereignty, the meaning,
application and viability of the law of armed conflict were repeatedly tested.

Following its tradition of the in-depth study and teaching on the manner in
which the law impacts military operations, the Naval War College hosted a confer-
ence entitled "The War in Iraq: A Legal Analysis." The conference was envisioned
as a companion colloquium to the Experts Workshop hosted by the Naval War
College the previous June entitled "The War in Afghanistan: A Legal Analysis." By
the time of the June 2009 conference, events in Iraq had sufficiently progressed to
begin developing an objective assessment of what had transpired. The conference
brought together distinguished international law scholars and practitioners to ex-
amine international and operational law issues that arose throughout the various
phases of the Iraq conflict.

Judge Raid Juhi al-Saedi, the former chief investigative judge for the Iraqi High
Tribunal, opened the conference by sharing his experiences with the trial of
Saddam Hussein, as well as the current status of the Iraqi judiciary. The speakers
presented their material over the next two and a half days in five thematic panels.
On the first day, attendees were privileged to attend a luncheon address delivered
by Major General Michael Oates, US Army, on the "commander's perspective"
of military operations in Iraq. Professor Yoram Dinstein provided conference-
concluding remarks in which he reflected on the influence the conflict in Iraq
would have on the future development of the international law of armed conflict.
The presenters remained in Newport for an additional day after the general con-
ference to attend an experts' working group to clarify the overall conference
themes and focus in on their respective scholarly contributions.

This edition of the International Law Studies ("Blue Book") series encapsulates
the incredibly thoughtful insights and lessons learned that each presenter brought

Introduction

to the conference, including many gained from personal experience while serving
in the conflict zone. The product of their scholarship and roundtable discussions is
found within this volume.

The conference was organized by Major Michael D. Carsten, US Marine Corps,
of the International Law Department (ILD) with the invaluable assistance of Mrs.
Jayne Van Petten and other ILD faculty and staff. The conference was made possi-
ble through the support of the Naval War College Foundation, the Center for Na-
tional Security Law, University of Virginia School of Law and the Israel Yearbook
on Human Rights. Without the dedicated efforts and support of these individuals
and organizations, the conference would not have been the exceptional success
that it was.

I would like to thank Professor Raul (Pete) A. Pedrozo and Commander Sandra K.
Selman, US Coast Guard, for serving as the editor and managing editor, respec-
tively, for this volume and to thank Professor Ralph Thomas, Captain, US Navy
(Ret.), for his meticulous work during the editing process along with the staff of
the College's Desktop Publishing department, particularly Susan Meyer, Ken
DeRouin, Albert Fassbender and Shannon Cole. I also extend thanks to Captain
Charles "Chuck" Passaglia, IAGC, US Navy, and Captain Rymn Parsons, JAGC,
US Navy, the former and current Commanding Officer of Navy Reserve, Naval
War College (Law), the reserve unit that directly supports the International Law
Department. Their willingness to assist with the project and make personnel avail-
able to facilitate timely publication of the "Blue Book" was essential. I am grateful
to all of the reserve officers who participated in making this volume happen, but
specifically appreciate the exceptional work of Commander Todd Richards,
JAGC, US Navy, for his comprehensive and painstaking work on the index. This
publication is the culmination of the tireless effort of each of the previously named
individuals, as well as numerous others, and is a tribute to their devotion to the
Naval War College and the International Law Series.

Special thanks go to Rear Admiral James P. "Phil" Wisecup, the President of
the Naval War College, and Professor Robert "Barney" Rubel, Dean of the Center
for Naval Warfare Studies, for their leadership and support in the planning and
conduct of the conference, and publication of this 86th volume of the "Blue
Book" series.

The International Law Studies series is published by the Naval War College and
distributed worldwide to US and international military organizations, academic
institutions and libraries. A catalogue of all previous "Blue Books" appears after the
table of contents. Volumes 59-86 of the International Law Studies series are avail-
able electronically at http://www.usnwc.edu/ild. This "Blue Book" continues the
Naval War College's long tradition of compiling the highest quality of scholarly

Introduction

inquiry into the most contemporary and challenging legal issues arising from the
entire hierarchy of military operations.

DENNIS MANDSAGER
Professor of Law & Chairman
International Law Department

xxi

Preface

From June 23 to 25, 2009 the Naval War College hosted over one hundred re-
nowned international scholars and practitioners, military and civilian, and
students representing government and academic institutions at a conference that
examined a number of legal issues pertaining to the war in Iraq. The conference
featured opening, luncheon and closing addresses, as well as five panel discussions
addressing specific legal issues encountered during the conflict. Panelist comments
were summarized by a commentator, followed by questions from attendees. These
discussions resulted in a detailed analysis of the key issues.

The following conference summary was prepared by Commander Eric Hunt,
JAGC, US Navy, a member of NR Naval War College (Law), the reserve unit that
supports the International Law Department. The summary expertly recaps the
highlights of each of the conference speakers' presentations. As editor, I am deeply
indebted to Commander Hunt for his attention to detail and assistance in facilitat-
ing the publication of this "Blue Book." I would also be remiss if I did not thank
Captain Ralph Thomas, JAGC, US Navy (Ret.), Commander Sandra Selman, US
Coast Guard, and Major Michael Carsten, US Marine Corps, for their outstanding
support and dedication in preparing this work.

I also extend my sincere appreciation to Susan Meyer and Ken DeRouin of the
Naval War College's Desktop Publishing office, who were responsible for expertly
preparing the page proofs. Additionally, I would like to thank Albert Fassbender
and Shannon Cole for their excellent work in proofreading the conference papers.
The quality of this volume is a reflection of their professionalism and outstanding
expertise.

Tribute to Professor Howard S. Levie

With the passing of former Charles H. Stockton Professor of International Law
Howard S. Levie on April 19, 2009, this year's conference was dedicated to his
memory. Professor Jack Grunawalt, the current Stockton professor, opened the
conference with a tribute to Professor Levie.

Soldier and scholar, Professor Levie leaves a legacy of scholarly excellence in the
development and study of the law of war. One of the nation's foremost legal experts on
the law of war and the key draftsman of the Korean War Armistice Agreement,

Preface

Professor Levie authored ten books (several of them multi-volume works) and over
eighty articles. He was internationally recognized as an authority on matters ranging
from the treatment of prisoners of war to the legality of conventional and nuclear/
chemical/biological weapons; from war crimes and terrorism to the protection of the
victims of armed conflict. Among the books he authored are Prisoners of War in
International Armed Conflict, The Code of International Armed Conflict, and Terrorism
in War: The Law of War Crimes. He also served as the editor of six volumes of the series
Terrorism: Documents of International and Local Control. The last volume was
published in 1997 when he was 88.

In 1998, the U.S. Naval War College in Newport, Rhode Island published Levie on the
Law of War to honor Professor Levie and to recognize the enormous impact of his
writings on the law applicable during armed conflict. In the book's Foreword, it was
observed:

Once in a great while, someone comes along who makes a significant and
lasting contribution to his or her chosen profession, a contribution that
comes to define the paradigm of that calling. With respect to the
development and articulation of the law of war, Professor Howard Levie is
just such an individual.

A veteran of World War II and the Korean Conflict, Professor Levie served in New
Guinea and the Philippines, in post-war Japan, and in Korea. He provided legal reviews
of Japanese war crime trials for General Douglas MacArthur. He was assigned to the
Staff of the United Nations Command Armistice Delegation when he drafted the
Korean Armistice Agreement. A member of the US Army Judge Advocate General's
Corps, Professor Levie was the first Chief of the Army JAG Corps' International Affairs
Division at the Pentagon. Other assignments included postings in Italy, France, Fort
Leavenworth, Kansas and the Presidio of San Francisco. He retired in 1963 in the rank
of Colonel.

In September of 1963 he joined the faculty of Saint Louis University School of Law.
While there, Professor Levie authored over 20 articles on a broad spectrum of law of
war topics. It was also during this tenure that he spent a sabbatical year at the Naval
War College as the Charles H. Stockton Professor of International Law. He retired
from Saint Louis University in 1977 having attained Professor Emeritus of Law status,
and returned to Rhode Island where he resumed his association with the Naval War
College as a lecturer on the 1949 Geneva Conventions and the laws of war. In October
1994, his enormous contribution to the College was formally recognized with the
establishment of the Howard S. Levie Military Chair of Operational Law.

On the occasion of his 100th birthday, Professor Levie was awarded the prestigious
Morris I. Leibman Award by the American Bar Association's Standing Committee on
National Security Law. The award citation noted that his career as a soldier and a

xxiv

Raul "Pete" Pedrozo

scholar spanned more than six decades and was marked by distinction throughout. It
concluded, "The impact of [his] enormous body of work on the thinking of domestic
and international policy makers, military commanders and scholars cannot be
overstated."

Howard S. Levie was born on December 19, 1907 in Wolverine, Michigan and grew up
in Baltimore and New York City. He earned Bachelor of Arts and Juris Doctor degrees
from Cornell University and a Master of Laws degree from George Washington
University. He also studied at the Sorbonne in Paris and the Academy of International
Law at The Hague.

Professor Levie was married to the late Blanche Krim Levie, an artist and WAC during
WWII. Together in their 90s, they worked on writing an autobiography [,] Memories of
an Ordinary Couple. Professor Levie died on April 19, 2009 at his home in Portsmouth,
Rhode Island. He was 101.

Opening Address

Judge Raid Juhi al-Saedi, formerly the Chief Investigative Judge of the Iraqi High
Tribunal, provided the keynote address on the restoration of the rule of law in Iraq.
Judge Juhi outlined the history of modern Iraq and explored how the rule of law
had eroded into virtual non-existence during the Saddam Hussein era. He stated
that, since 2003, Iraq has been on the road to restoring the rule of law. One step in
this long and difficult process was the fair trial received by Saddam Hussein, where
he enjoyed the right to confront witnesses. Judge Juhi indicated, however, that,
while the restoration of the rule of law in Iraq is progressing, there are still many
challenges ahead that will require the assistance of the international community.

Panel I: Legal Bases for Military Operations in Iraq

Panel I explored the "legal bases for military operations in Iraq." The panel opened
with Andru Wall laying out the legal bases of the United States for using force
against Iraq in 2003. These were, for the most part, grounded in UN Security
Council resolutions dating back to 1991's first Gulf War, including finding Iraq in
grave breach of the ceasefire agreement. With these resolutions in hand, the
United States viewed itself as legally justified in resuming military action against
Iraq. Ms. Alexandra Perina argued that regardless of the bases for invading Iraq,
once in Iraq the United States took on the role of occupier with all of the attendant
responsibilities, responsibilities made more difficult by a rising insurgency. Profes-
sor David Turns sought to address the nature of the conflict in Iraq in terms of

xxv

Preface

whether it should, at any particular time, be classified as an international armed
conflict or non- international armed conflict. He observed that "armed conflict" is
not defined in international law, making it difficult to properly categorize the con-
flict in Iraq. This categorization is vital in determining what laws apply to situations
such as detainee treatment. Finally, the issue of a new category of conflict, "transna-
tional armed conflict," was touched upon as a possible way to describe conflicts with
non-State actors. The attendees posed a number of questions, dealing mainly with
the rationale for the invasion of Iraq and the issue of anticipatory self-defense.

Luncheon Address

Major General Michael Oates, US Army, Commanding General of the 10th Moun-
tain Division, gave the luncheon address, the "Commander's Perspective in Iraq."
His remarks and opinions were based on his personal experiences in Iraq during
various periods of the conflict. General Oates indicated that the major lesson
learned during the initial phase of the war can be summed up by the age-old mili-
tary maxim: "you fight like you train." The US military forces were tremendously
successful during the opening phase of the war because they fought like they
trained. What was not known then is that the forces were not well trained, well
resourced or well prepared for the post-combat phase.

In turning to counterinsurgency (COIN) operations, General Oates observed
that it is important to look at the situation that gave rise to the insurgency in the
first place. He observed that the insurgency was split along religious, cultural and
ethnic lines. In addition to their desire for power and control, most of these groups
shared an intense hatred of the coalition forces, which they saw as occupiers. How
to defeat the insurgency in Iraq was something of a "chicken and egg" dilemma:
do you concentrate on solving the problems of the Iraqi people, most notably
things like "essential services first," or do you focus on killing and capturing the
bad guys, and, once things are secure, concentrate on improving the daily lives of
the Iraqi people?

He indicated that the United States and the other coalition forces traveled along
the "essential services first" school of thought for the first few years, but eventually
it was determined that the successes were not widespread or sustainable. Too often
raw numbers were relied on, instead of an analysis of what those numbers really
meant. What was learned over time was that counterinsurgency is about people,
not about data. As a military force, the United States became much more successful
against the insurgency when, under the leadership of General Petraeus and others
who had taken a hard look at counterinsurgency, it was realized that this fight was
about people. He observed that people and relationships are the center of gravity in

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Raul "Pete" Pedrozo

a COIN fight. Under General Petraeus and General Odierno, the United States
transitioned to the alternate view of improving daily lives and began to secure the
population.

General Oates concluded his remarks with a discussion of stability operations.
He indicated the development of Iraqi security forces was the key to stability. By
letting the Iraqi forces take the lead, the Iraqi people began to see them as a force
that could be trusted.

Rule of law was one of the major lines of effort. Two things combined to jump-
start rule of law efforts during the last year. The first was the improved security sit-
uation. The second was the implementation of the US-Iraq security agreement.
One of the major keys to stability in any country is having a legal system the citizens
can trust and depend on. Without a system for the peaceful resolution of disputes,
order breaks down and people take the law into their own hands. He observed that
the work in the rule of law arena had been a significant force in promoting stability,
especially in central and southern Iraq.

Panel II: The Law of Armed Conflict and the War in Iraq

Panel II focused on the application of the law of armed conflict to the war in Iraq.
Major General Charles Dunlap, US Air Force, opened the panel presentation with a
discussion of the impact of technology and advanced information systems on the
calculus of the war in Iraq. The combination of real-time, detailed intelligence
from the battlefront and the predominant use of precision-guided weapons has re-
sulted in a heightened threshold of error for bombing missions. This heightened
threshold is not necessarily consistent with the standards imposed by the law of
armed conflict. As the enemy puts forth the concept that 100 percent accuracy is
required, it is engaged in a sort of "lawfare" that creates an unrealistic expectation
that little or no collateral damage can result. General Dunlap argued that "lawfare"
must be countered through effective strategic communications.

Mr. Marc Warren then returned to the always-present issue of detainees in Iraq.
While the nature of the conflict might have changed over time and the determina-
tion of which portion of the law was applicable was often unclear, detainees were
always treated as though Common Article 3 of the 1949 Geneva Conventions ap-
plied. This treatment was important, as the detainee pool contained a mixture of
criminals, prisoners of war and insurgents. As the number of detainees grew to
overwhelming size, the detainee policy continued to require compliance with the
Geneva Conventions; any deviations were isolated and non-sanctioned.

Commodore Neil Brown, Royal Navy, addressed the application of the laws of
armed conflict to the sea campaign in the war in Iraq. Spatially, this area was

xxvn

Preface

limited since Iraq's navy had been virtually destroyed during the first Gulf War. Es-
tablishment and enforcement of regulations applying to the various maritime
zones during naval operations in the region involved visit and search, stop and in-
spection, and diversion of ships. Commodore Brown discussed the application of
rules of engagement by coalition naval forces during combat operations, as well as
during post-hostilities maritime zone enforcement activities.

Before opening the panel to questions, Professor Wolff Heintschel von Heinegg
observed that misinterpretations of the requirements imposed by the laws of war
need to be quickly countered and that countering information operations must be
proactive. A failure to confront false perceptions allows the enemy to control the
information war and win the battle for public support. Questioners explored the
issues of the enemy's use of the law to attempt to negate the advantages of technol-
ogy. Professor Heintschel von Heinegg stressed that the canard that 100 percent
weapon accuracy is required ignores that the law of armed conflict recognizes that
there will be civilian casualties.

Panel III: Occupation in Iraq

Panel III began the second day of the conference by shifting focus to the "occupa-
tion of Iraq." Professor Eyal Benvenisti delved into the issue of when an occupation
begins. The Hague Conventions speak in terms of control over territory, while the
Geneva Conventions address control of the population. Whether a State can exer-
cise control, and the nature of its ability to establish control, may establish occupa-
tion as a matter of law regardless of the formal declarations of the parties. Professor
Benvenisti argued that the occupying power has the ability to alter the occupied
State's domestic laws. In fact, it would be almost impossible to maintain the status
quo, since the original regime has been overthrown. But the ability to alter the law
left unanswered the question of what Iraqi laws the occupiers were required to
observe. Another question was whether the occupiers' own national human
rights laws applied to their actions as an occupying power.

Brigadier General Clyde Tate, US Army, spoke from the perspective of the mili-
tary forces as implementers of an occupation. He emphasized that for occupiers it
is imperative that the rule of law be observed in all situations. This meant investi-
gating soldiers for all misconduct involving the occupied population. Brigadier
General Tate stressed that following the return of governance to Iraqi authorities,
the focus of US forces shifted to respecting Iraqi law, but not to the detriment of
safety or operational requirements.

The panel was questioned concerning the Hague and Geneva Conventions and
their application to the occupation of Iraq. The sense was that the Hague

xxvin

Raul "Pete" Pedrozo

Conventions were concerned with preserving the status quo of an occupied terri-
tory, while the Fourth Geneva Convention was focused on the protection of the
occupied population. A question was also raised as to whether the applicable UN
Security Council resolutions concerning Iraq provided more protections for Iraqi
sovereignty than did the traditional law of occupation.

Panel IV: Stability Operations in Iraq

Panel IV turned its attention to the issue of stability operations in Iraq and the dy-
namic nature of these operations given the changing legal status and environment
in Iraq. Although the Iraqi government requested a continued US presence in Iraq
after December 31, 2008, this created its own set of problems. Ms. Shelley Young
observed that in negotiating a security agreement to address the post- 2008 US
presence in Iraq, many issues needed to be resolved. Ms. Young noted the final
agreement established exclusive US jurisdiction over US military personnel and
civilians, provided for the withdrawal of US forces and established a termination
date for the agreement of December 31, 201 1.

Colonel Richard Pregent provided the military view on stability operations. He
stressed the need to appreciate three truths: security drives everything, nothing in
Iraq is simple and the rule of law is Iraqi — not American — justice. The change in
the US status from occupying power to an invited presence created challenges.
Foremost among these was the treatment of detainees. Under Iraqi law there is no
provision for internment; detainees must be charged or released. This and the con-
tinued re-establishment of the rule of law are but two of the challenges going
forward in the conduct of stability operations.

Mr. Laurent Colassis outlined the role of the International Committee of the
Red Cross (ICRC) in stability operations. With the decrease in violence, the
activities of the ICRC have increased. Mr. Colassis noted that Iraq is now the third-
largest mission of the ICRC, behind Darfur and Somalia, with a focus on detainee
operations. Despite the requirement to charge or release, releasing detainees is not
always simple. Where and to whom detainees are released is an issue with legal im-
plications. Ultimately, a balance must be found between security and possible mis-
treatment by the State to whom the detainee is released.

The questions for the panel covered a broad gamut of issues, including whether
the US military is proficient at nation building and whether nation building should
even be a military mission. There was general agreement that military forces are not
particularly adept at nation building, but that they possess capabilities and resources
to complete non-traditional missions. It was observed that many nation-building
tasks should be handled by civilian agencies but these agencies were often not

xxix

Preface

effectively resourced. A question was also raised about the status of individuals cov-
ered as protected persons and who should receive those protections during an insur-
gency, illustrating again that the issue of detainees was of prime concern — and
importance.

Panel V: Issues Spanning the War in Iraq

Panel V looked at "legal issues spanning the war in Iraq." Captain Brian Bill, JAGC,
US Navy, addressed the issue of detainees. At the height of operations in Iraq there
were twenty-six thousand detainees in US custody. Task Force 134 was created to
oversee all detainee operations. Detentions under the authority of UN Security
Council resolutions were driven by a determination as to whether the detainee
posed an imperative threat. Captain Bill pointed out that the determination of this
status involved giving the detainee a certain level of due process. In fact, the due
process afforded detainees was above and beyond that required by Article 78 of the
Fourth Geneva Convention. Task Force 134 directives went so far as to provide
women, children and those who needed assistance in understanding the proceed-
ings with special representatives to aid them in their detention hearings.

Mr. Robert Boorda noted the difficulties that arise when there are multiple
agencies involved in stability and reconstruction efforts. In Iraq there was, and
continues to be, little coordination or communication between civil and military
agencies. This creates a chaotic environment on the ground and hampers recon-
struction efforts. Mr. Boorda explained that Iraqis are often targeted by insurgents
for cooperating with US efforts to rebuild the country, making local involvement
difficult to obtain. These problems, combined with the inability to determine the
needs of Iraqi civil society, make the restoration of Iraq an ongoing challenge.

Ms. Naz Modirzadeh posed the question as to what human rights law applied
during an armed conflict, during an occupation and during the post-occupation
period while coalition forces remained in Iraq. While the United States does not
recognize the extraterritorial application of human rights law, other countries have
been moving in that direction. Ms. Modirzadeh argued that, while on its face it
would appear to benefit civilians by creating new levels of legal protections, extra-
territorial application of human rights law may not bring the positive results that
its proponents seek. As human rights laws are applied extraterritorially, a corollary
question arises as to which rights should be recognized and applied.

Many questions were addressed to the panel, with a focus on the impact of the
application of human rights law to armed conflicts. Comments of both panelists
and conference attendees suggested that while it would not "mean the end of the
world," it would certainly create a new layer of "fog of war" in the legal context.

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Closing Address

The conference ended with Professor Yoram Dinstein assessing the highlights of
the conference. He indicated that the concept of "lawfare" cannot be ignored, that
it must be dealt with proactively and with a focus on educating societies on the true
legal requirements in an armed conflict. He argued that the conflict in Iraq began
as an international armed conflict and, in his opinion, continues to be an interna-
tional armed conflict because hostilities have not concluded. Additionally, interna-
tional armed conflict is a prerequisite to belligerent occupation of the type that
occurred in Iraq. He stated that military forces must adapt to the circumstances in
using high technology to fight an enemy using very low technology. Precision in
striking the wrong target can lead to defeat in the war of information.

Professor Dinstein noted that in deciding who is entitled to protection as a civil-
ian, the concept of direct participation in hostilities comes to the fore. An individ-
ual who is an insurgent during the day cannot come home at night and expect to
have the protections accorded to a civilian. The concept of direct participation has
interesting applications to private military contractors. Their role must be strictly
defined if contractors are to be employed in the conflict. One of the main goals of
belligerent occupation is to ensure security. Occupation begins when control is ex-
ercised, but when does occupation end? Finally, the application of human rights
law in the context of armed conflict may not be a positive development. The law of
armed conflict is a well-understood body of law that is designed to protect civilians
and military members alike. To interject an array of other laws into the arena
would not be beneficial for those in harm's way.

Conclusion

In closing, I trust that you will find the articles from the preeminent scholars and
practitioners that contributed to this volume to be thought provoking and useful
in shaping the debate on the conflict in Iraq for future generations.

RAUL "PETE" PEDROZO
Associate Professor
International Law Department

xxxi

PARTI

OPENING ADDRESS

Regime Change and the Restoration of the

Rule of Law in Iraq

Raid Juhi al-Saedi*

Introduction

After Allied forces overthrew Hitler's regime at the end of World War II, the
US blueprint for running Germany included dismantling the Nazi Party,
dismissing Nazis from government employment, prosecuting Hitler and his offi-
cials as war criminals, dissolving all German courts and forbidding any political ac-
tivity without permission from US military authorities.

Following the overthrow of Saddam Hussein's regime in 2003, the United States
tried to use the same strategy in Iraq, albeit using a new formula. Coalition Provi-
sional Authority (CPA) Order No. I 1 was issued to de-Baathificate 2 Iraqi society.
CPA Order No. 2 3 dissolved the Iraqi intelligence and security agencies, and the
armed forces, as well as dismissed the Baathist employees and members of those or-
ganizations. Subsequently, CPA Order No. 15 was issued with the stated purpose of
reforming the "Iraqi justice system [which] has been subjected to political interfer-
ence and corruption over the years of Iraqi Baath Party rule." 4 This order estab-
lished the Judicial Review Committee, which dismissed a large number of judges
and prosecutors.

* Clarke Middle East Fellow, Cornell University Law School. Former Chief Investigative Judge,
Iraqi High Tribunal. Portions of this article are derived from Raid Juhi al-Saedi, Glance into the
Criminal Procedures under the Iraqi Judiciary, 41 CREIGHTON Law REVIEW 713 (2008).

Regime Change and the Restoration of the Rule of Law in Iraq

On September 13, 2003 the CPA issued Order No. 35, 5 which re-established the
Council of Judges that had existed prior to the Hussein regime, and charged it with
the supervision of Iraq's judicial and prosecutorial systems. Order No. 35 gave the
Council of Judges independence from the Ministry of Justice in terms of its budget
and authority. At the end of 2003, the CPA issued Order No. 48, 6 which gave the
Governing Council 7 the authority to establish an Iraqi Special Tribunal. 8 These
were important steps in the transitional justice process. Even though the strategy
used in Iraq was modeled after the successful US policy in post-World War II Ger-
many, policies in Iraq failed to take into consideration the history of the country
following the assassination of the Iraqi royal family in 1958.

Iraq's modern history is full of stories that illustrate the lack of the rule of law. In
1958 General Abdul Kareem Qassim ended the royal regime, which had been in
power since 1921. He executed the king and his family without trial, as well as
Prime Minister Nori Al-Saed, who is today considered one of the most respected
politicians of that period. Qassim changed Iraq from a monarchy to a republic. The
royal family's executions were illegal and based on a desire for revenge, a trait that
many believe is deeply entrenched in Iraqi culture. History repeated itself five years
later when a group of Baath Party members and military officers headed by General
Abdul Salam Arif overthrew the regime. Qassim and his officials were executed.
Qassim's body was thrown in the Tigris River and never found.

The Baath Party conducted another coup in 1968, when General Ahmed Hassan
Al-Baker took power. Then in July 1979, Saddam Hussein became president when
he overthrew General Al-Baker. Hussein's reign was bloody from the start: on his
first day in office he held a meeting with high-level Baath Party leaders and accused
certain members of attempting a coup. He asked them to leave the room. They
were never seen again; rumors circulated that they had been executed.

During Hussein's presidency, Iraqis suffered tremendously. One of the hard-
ships was the deportation of Iraqis of Iranian origin. Numerous families were sent
back to Iran under difficult and dangerous circumstances. These families were left
on the border during the Iran-Iraq war; that was the first step to dividing Iraqis
based on race. Older Iraqis of Iranian origins were sent back to Iran, while younger
men, aged eighteen to forty, were arrested and executed. 9 The government seized
and sold all their property and belongings.

In 1988 the regime used chemical weapons against Kurdish villages because
they had allegedly supported Iran in its war with Iraq; those allegations were later
proven wrong. The Al-Anfal attack on the Kurds began in February 1988 and
ended in mid-September despite the fact that a ceasefire was announced on Au-
gust 8, 1988. The fact that the attacks continued even after the ceasefire was an-
nounced made it clear that the operation was intended to annihilate the Kurds. 10

Raid Juki al-Saedi

The crudest page in Iraq's history was written on a single day in March 1991,
when Hussein quelled an uprising in the south by killing, it is estimated, over two
thousand men, women and children, and burying them in mass graves. 11 These
killings led to suppressed anger and a desire for revenge in the hearts of the Shiites
and the Kurds.

After the fall of Hussein's regime in 2003, it was important to find a salve for the
wounds the Hussein era had wrought.

The Judicial System in Iraq

Reliable judicial institutions are critical to developing stable nations, and establish-
ing and expanding the rule of law. In Iraq, however, the role of judicial institutions
is sometimes confusing to the public because before 2003 many courts were not
part of the judiciary or because the Ministry of Justice circumvented the judicial
system entirely in applying its own concepts of justice. Outside the judicial system,
courts could be found in the Ministry of Interior, the General Security Agency and
the intelligence agencies. These courts often answered to the president's office alone.
Because the Iraqi legal system is so complex, it is useful to review the judicial sys-
tem as it existed prior to 2003, and then address the changes that have occurred
since Saddam's overthrow.

The Judicial System before 2003

Iraq's temporary constitution of 1970 12 referred to the judicial system in only two
simple, vague articles in chapter 4. Article 60 addressed the types of courts and pro-
cedures for appointing judges and for their retirement, and Article 61 addressed
the General Prosecutor Department.

Civil Procedures and Action Law No. 83 of 1969 13 categorized the types of
courts in Articles 31 through 35 as the Courts of First Instance, including the
Courts of Personal Status (for Muslims) and Courts of Personal Issues (for non-
Muslims); the Courts of Appeal; and the Courts of Cassation, the highest courts
in Iraq.

According to Article 137 ofCriminal Procedures Code Law No. 23 of 1971, 14 the
criminal courts included the Courts of Misdemeanor, Courts of Felony and Courts
of Cassation (the appellate courts). Articles 1 through 136 explained the authority
of investigative judges and the procedures to be followed. Juvenile court proce-
dures were covered in Articles 233 through 242.

It was not until enactment of Judicial Organization Law No. 160 in 1979 15 that
courts were categorized through Article 1 1 into ten civil and criminal courts, in-
cluding Juvenile Courts, Investigative Courts and Labor Courts. At the same time,

Regime Change and the Restoration of the Rule of Law in Iraq

the law clarified that the Courts of Appeal (also called Courts of Cassation) are the
highest courts of Iraq. In addition to these courts, there were "special courts" that
were independent from the Council of Justice 16 and the Ministry of Justice. Most of
these courts were established to serve for a temporary purpose, such as the court es-
tablished in 1970 to prosecute Mohammed Al-Madhlum and other defendants for
allegedly conducting a coup attempt. Other special courts, such as those associated
with the Ministry of Interior and the General Security Agency, were permanent.
Their decisions were usually sent to the president's office, not to the Court of
Cassation.

The procedures for the Council of Justice's courts included investigation, trial
and appeal for criminal cases; and first-degree court session, Supreme, and cassa-
tion for civil cases. The special courts, which were all criminal courts connected to
the Revolutionary Command Council, 17 handled political cases, and their deci-
sions were final. However, a copy of the decision would be sent to the president's
office for approval if the verdict was the death penalty. In all other cases the
decision was sent for review only.

The system continued to function in this manner until the regime was over-
thrown in April 2003.

The Judicial System after 2003

After the fall of the Hussein regime and the establishment of the CPA, US Ambas-
sador Paul Bremer, the CPA Administrator, issued CPA Order No. 35, 18 which
gave the Council of Judges independence from the Ministry of Justice in terms of
budget and authority. The Council expanded the number of courts to one in each
province and two in Baghdad, giving the country a total of sixteen. Kurdistan 19 is
the only region where courts do not fall under the Council of Judges. Following the
first Gulf War, the three provinces in Kurdistan came under the protection of the
international community and were semi-independent from the central govern-
ment in terms of its judicial system. Kurdistan has its own separate Cassation
Court and Courts of Appeal.

The requirements to be a judge in the Iraqi judicial system differ not only from
those of the United States, but from those of most other judicial systems as well.
Some nations elect their judges; others like Jordan, Egypt and Italy appoint them;
while still others, like the United States, use both election and appointment. In or-
der for an individual to be a judge in Iraq, he must fulfill the requirements found in
Article 36( 1 ) of the Iraq Judicial Organization Law. These requirements are to have
graduated from law school with a bachelor of laws degree, have three years' experi-
ence in the legal field, be no younger than twenty-eight or older than forty-five, be
born of Iraqi parents, be married and have no criminal record.

Raid Juki al-Saedi

An individual becomes a judge by applying to the Judicial Institute and being
accepted into its internship program. That program consists of two years of work-
ing for and with judges in the morning and taking classes in the evening. To gradu-
ate the student must demonstrate his mastery of the legal and judicial sciences, and
pass the required exams and tests.

There is an exception in Article 36(3) that allows a lawyer, who must be younger
than forty- five, to be appointed as a judge by presidential order without the Judi-
cial Institute degree with ten years of legal experience.

The Judicial Authority in Iraq

According to Article 89 of the Iraqi Constitution of 2005, "The federal juridical
power is comprised of the Higher Juridical Council, the Federal Supreme Court,
the Federal Court of Cassation, the Public Prosecution Department, the Judiciary
Oversight Commission, and other federal courts that are regulated in accordance
with the law." 20

The Higher Juridical Council

The Higher Juridical Council oversees the affairs of the judicial committees. 21 It is

comprised of the following:

• The Court of Cassation: There are two Courts of Cassation now in Iraq; one
is federal for all of Iraq except the northern region of Iraq, Kurdistan, where there
is another just for that region.

• The Supreme Court: There are sixteen Supreme Courts all over Iraq except
in Kurdistan.

• The Board of the Supreme Judicial Council: The Council is comprised of the
following:

• The President: He is the Chief Justice of the Judicial Authority in Iraq;
therefore he is the Chief Justice of the Court of Cassation, the Federal
Supreme Court and the Supreme Judicial Council.

• The Chief Justice Deputies of the Federal Court of Cassation. There
are five justices.

• The sixteen Chief Judges of the Supreme Courts

• The Director of the Public Prosecution Department

• The Director of the Judiciary Oversight Commission

• The Director of the State Council.

According to Article 91 of the Iraqi Constitution, the Higher Juridical Council
exercises the following authorities:

Regime Change and the Restoration of the Rule of Law in Iraq

First: To manage the affairs of the judiciary and supervise the federal judiciary.

Second: To nominate the Chief Justice and members of the Federal Court of Cassation,
the Chief Public Prosecutor, and the Chief Justice of the Judiciary Oversight Commis-
sion, and to present them to the Council of Representatives [the Parliament of Iraq] to
approve their appointment.

Third: To propose the draft of the annual budget of the federal judiciary authority, and
present it to the Council of Representatives for approval.

Federal Supreme Court

Article 93 provides that the Federal Supreme Court shall have jurisdiction over the

following:

First: Overseeing the constitutionality of laws and regulations in effect.

Second: Interpreting the provisions of the Constitution.

Third: Settling matters that arise from the application of the federal laws, decisions,
regulations, instructions, and procedures issued by the federal authority. The law shall
guarantee the right of direct appeal to the Court to the Council of Ministers, those
concerned individuals, and others.

Fourth: Setding disputes that arise between the federal government and the govern-
ments of the regions and governorates, municipalities, and local administrations.

Fifth: Settling disputes that arise between the governments of the regions and
governments of the governorates.

Sixth: Settling accusations directed against the President, the Prime Minister and the
Ministers, and this shall be regulated by law.

Seventh: Ratifying the final results of the general elections for membership in the
Council of Representatives.

Eight[h]: A. Settling competency disputes between the federal judiciary and the
judicial institutions of the regions and governorates that are not organized
in a region.

B. Settling competency disputes between judicial institutions of the
regions or governorates that are not organized in a region.

Raid Juki al-Saedi

Decisions of the Federal Supreme Court are final and binding for all authorities. 22

Court of Cassation

According to Article 12 of Judicial Organization Law No. 160 of 1979, 23 the Court
of Cassation is considered the highest federal court in Iraq. There was only one
Court of Cassation in Iraq before the establishment of the Court of Cassation in
Kurdistan. The Court of Cassation supervises all the courts of Iraq. There are no
trials at the Court of Cassation; it reviews other courts* judgments.
The Court of Cassation has the following committees:

• The General Committee, which is comprised of the thirty judges of the
Court of Cassation. These consist of the chief justice, five justice deputies and all
justices in the Court of Cassation.

• The High Committee: It has seven justices — a chief and six justices.

• The Civil Committee: It has five justices — a chief and four justices.

• The Criminal Cases Committee: It has five justices — a chief and four
justices.

• The Committee of Personal Status: It has three justices — a chief and two
justices.

Public Prosecution Department

The Public Prosecution Department is regulated by Public Prosecution Law No.

159 of 1979.

The goals of the Public Prosecution Department are as follows:

protect the State's order;

participate in revealing crimes;

supervise the exercise of the law, the regulations and the penalties;

evaluate current regulations;

monitor the criminal phenomena and recommend solutions to reduce them;
and

work on protecting the family, the cell of the society.

The Public Prosecution Department is comprised of a director and two depu-
ties, at least one prosecutor in each felony court, and two prosecutors and their
deputies on the board of the Department.

The tasks of the Public Prosecutor are

• asking for public rights in front of the judiciary;

• supervising the collection of information and the detection of crimes;

Regime Change and the Restoration of the Rule of Law in Iraq

• attending investigation sessions conducted by the investigative judge;

• visiting detention centers and prisons;

• attending trials at the Felony and Misdemeanor Courts, but not at sessions
of the Court of Cassation; and

• appealing the decisions and/or the procedures of the investigative and/or
the trial judges.

Judiciary Oversight Commission

The Commission has a director, a deputy director and judicial supervisors. The Ju-
diciary Oversight Commission supervises the judiciary and the decisions of the
courts. It also follows up on the rank of the judiciary personnel and the judiciary
records.

Other Courts

There are two types of courts under the judiciary authority in Iraq: civil courts and

criminal courts.

Civil Courts. Civil courts are divided into the Courts of First Instance, the Courts
of Appeal or Supreme Courts, the Courts of Personal Status, the Courts of Civil
Matters and the Labor Courts.

The Courts of First Instance have one judge each. The courts handle cases of
debt, real estate, contracts and compensation for illegal work. The decisions of the
courts are usually considered primary and are reviewed by the Courts of Appeal,
which consist of panels of three judges.

The Courts of Personal Status have one judge apiece and handle marriage, di-
vorce, wills and estates for Muslims.

The Courts of Civil Matters each have one judge and handle marriage, divorce,
wills and estates for non-Muslims.

The Labor Courts have one judge each and handle labor cases.

Criminal Courts. There are two different kinds of criminal courts, depending on
the age of the defendant: Criminal Courts for Adults and Juvenile Courts.

Defendants in the Criminal Courts for Adults are adults who are over the age of
eighteen at the time the alleged crime was committed. There are three courts that
handle criminal cases. The Investigation Courts, each consisting of one judge, con-
duct the investigation from the time the crime is committed until the case is re-
ferred to a trial court. There is one Investigation Court or more in each location
that has a Court of First Instance. 24

Raid Juki al-Saedi

The trial courts are the Felony and Misdemeanor Courts. The Felony Courts are
equivalent to the civil Supreme Courts. They are established in the centers of the
provinces. The cases are referred to the Felony Courts by the investigative judges.
The court has the right to either conduct the trial 25 or hear an appeal of the investi-
gative judge's decision. The Felony Courts consist of three-judge panels, and the
courts' decisions are usually based on the majority of opinions. The Misdemeanor
Courts are usually established wherever there is a Court of First Instance. Cases of
misdemeanor violations are referred to the courts by the investigative judges.

The Juvenile Courts handle those cases in which the defendant is younger than
eighteen but older than nine. 26 The Juvenile Courts are divided into the investiga-
tion chamber and the trial court. The chamber in the trial court is comprised of a
chief judge, a right member who is a specialist in sociology and a left member who
should have a law degree with experience as investigator or legal assistant.

The Iraqi High Tribunal

After US and coalition forces entered Iraq and the discussion turned to promoting
the rule of law in Iraq, concerned parties began to wonder how Saddam Hussein
would be prosecuted — whether he would be tried by Iraqi courts or whether he
would be prosecuted by an international court similar to the International Crimi-
nal Tribunal for the former Yugoslavia (ICTY).

Given the political disagreements among the five permanent members of the
Security Council concerning the war in Iraq, obtaining Security Council approval
for the establishment of an ICTY- type international court was not an available op-
tion. Moreover, history shows that such international courts take years to conduct
trials and reach decisions; therefore, it was logical to try Hussein in Iraq.

In December 2003, the CPA issued Order No. 48, 27 which gave Iraq's Governing
Council the authority to establish an Iraqi Special Tribunal "to try Iraqi nationals
or residents of Iraq accused of genocide, crimes against humanity, war crimes or vi-
olations of certain Iraqi laws." 28 This Tribunal was established as an independent
entity of the judicial system by Statute Number 1 of 2003 of the Iraqi Governing
Council. That statute was replaced by Law No. 10 of 2005, 29 which also renamed
the Tribunal as the Iraqi High Tribunal (IHT).

The Iraqi Constitution considers the IHT to be a transitional court in a transi-
tional period with the duty to examine "the crimes of the defunct dictatorial re-
gime and its symbols." 30 The IHT has jurisdiction over Iraqi nationals or residents
of Iraq accused of war crimes, genocides and crimes against humanity committed
between July 17, 1968 and May 1, 2003 in Iraq or elsewhere. 31 The Council of Rep-
resentatives has the right to dissolve the Tribunal after the completion of its work. 32

Regime Change and the Restoration of the Rule of Law in Iraq

The IHT is independent, both financially and administratively, from the Higher
Juridical Council of Iraq.

The IHT contains two entities: the judicial and prosecution committees. The
Judicial Committee consists of the Appeal Chamber, the Trial Chamber, the In-
vestigative Judges and the Prosecution. The Appeal Chamber has a chief judge and
eight judges. It is equivalent to the Court of Cassation. The Trial Chamber has a
chief judge and four judges. It is equivalent to the Felony Courts. The investigative
judges are a chief judge and twenty-four investigative judges. They are each the
equivalent of the Investigative Courts. The prosecution has a chief and sixteen
prosecutors. It is equivalent to the Public Prosecution Department under the
Higher Juridical Council. There is a separate Administrative Department to sup-
port the IHT.

The New Rule of Law in Iraq

The Iraqi High Tribunal began its mission in 2004. By the end of 2006, it had made
substantial headway in addressing the claims presented to it, and processing the
documents and other evidence that supported those claims. As the number of
complainants increased from different parts of the country, however, it became
important to open additional offices, to reduce the amount of work in the Baghdad
headquarters. Offices were opened in Sulaymaniyah and Erbil to cover the north-
ern region of Iraq, in Najaf to cover the central region and in Basra to cover the
southern region. All four offices were supplied with the necessary personnel, inves-
tigative resources and equipment to facilitate their tasks. These offices and the
headquarters in Baghdad interviewed thousands of witnesses, victims and
complainants.

Additionally, they dealt with a huge number of documents. In addition to the
official Iraqi government records, the IHT received approximately eighteen tons of
documents during the first six months of its existence. It was impossible to read
and authenticate each document manually; therefore it was important to find a
process to organize and categorize them. The documents were moved to a special
building and more than one hundred individuals specialized in analyzing docu-
ments were hired. The documents were categorized, scanned and entered into an
electronic database.

The investigative judges, along with their staff of investigators and paralegals,
went through the documents they needed in the cases to which they were assigned.
At the same time, prosecutors and defense attorneys were provided access to the
documents used in the investigation. The electronic database proved to be an

Raid Juki al-Saedi

effective way to save time and effort. Millions of important documents were
categorized in that database.

A huge issue in Iraq was the mass graves in which the victims of the Hussein re-
gime's atrocities were buried. Two sources were used in locating the burial sites.
The first source was witnesses who helped not just in locating them and establish-
ing the year they were buried, but also in identifying the victims. 33 The second
source was non-governmental human rights organizations, working in coordina-
tion with US military forces, who used modern technology in locating the graves.
More than 250 mass grave sites were found; each contained more than eighty
skeletal remains.

Because the grave sites were often found in isolated locations, the concerned
Iraq government ministries (Ministry of Human Rights, Ministry of Health and
the Archaeology Department) didn't possess the resources to investigate each site.
The IHT, with the support from the Regime Crimes Liaison Office based in the US
embassy in Iraq, was able to hire international experts and purchased a mobile lab-
oratory to assist in the investigation of the grave sites. Taken together, the testi-
mony of the witnesses, the documentary evidence and the mass graves starkly
illustrated the policy of the former regime toward each group of victims.

Conclusion

Many experts have questioned the work of the Iraqi High Tribunal. In doing so,
however, the critics neglected to analyze its work in the context of Iraq's modern
judicial history. The IHT achieved justice and helped keep peace in Iraq in the period
immediately following the fall of the former regime in 2003. It represented the
hopes of Iraqis for the rule of law, and contributed to the process of restoring faith
and confidence in the Iraqi judicial system.

Notes

1. CPA Order No. 1, De-Baathification of Iraqi Society (May 16, 2003). All CPA orders
and regulations are available at http://www.cpa-iraq.org/regulations/ (then hyperlink by name
of order or regulation). The CPA was established as a transitional government following the in-
vasion of Iraq by the United States, United Kingdom and the other members of the coalition of
the willing which was formed to oust the government of Saddam Hussein. The CPA's authority
was set forth in CPA Regulation No. 1 and was based on "relevant U.N. Security Council resolu-
tions, and the laws and usages of war." Id., pmbl.

2. "De-Baathification" is a term the CPA used to describe ridding the country of Baathism
by dismissing high-ranking Baath Party members from government employment.

3. CPA Order No. 2, Dissolution of Entities (May 23, 2003).

Regime Change and the Restoration of the Rule of Law in Iraq

4. CPA Order No. 15, Establishment of the Judicial Review Committee, pmbl. (June 23,
2003).

5. CPA Order No. 35, Re-Establishment of the Council of Judges (Sept. 13, 2003).

6. CPA Order No. 48, Delegation of Authority Regarding Establishment of an Iraqi Special
Tribunal (Dec. 9, 2003).

7. The Governing Council was formed on July 13, 2003. It included twenty- five members
chosen by the US-led coalition: thirteen Shiite Muslims, five Sunni Muslims, five Kurds, one
Christian and one Turk. The Council's priorities were to achieve stability and security, revive the
economy and deliver public services. See Iraq Governing Council, GLOBALSECURITY.ORG, http://
www.globalsecurity.org/military/world/iraq/igc.htm (last visited June 23, 2009).

8. The name of the court was later changed from Iraqi Special Tribunal (1ST) to Iraqi High
Tribunal (IHT) in 2005. See infra p. 1 1 and note 29.

9. It was not known until 2003 that they were executed.

10. For more information about the Al-Anfal genocide, see HUMAN RIGHTS WATCH,
GENOCIDE IN IRAQ (1993), available at http://www.hrw.org/reports/1993/iraqanfal/. According
to the chief prosecutor at the trial of those responsible for the campaign against the Kurds, up to
182,000 civilians were killed.

11. Hussein's regime killed more than half a million Iraqis. This number does not include
the victims of the wars in Iraq between 1980 and 2003. See, e.g., Secondary Wars and Atrocities
of the Twentieth Century, http://users.eroIs.eom/mwhite28/warstat3.htm#sadhus (last visited
June 19, 2009).

12. Interim Constitution of Iraq (1970), available at http://www.gjpi.org/library/primary/
iraqi-constitution/ (then 1970 Interim Constitution hyperlink).

13. Unofficial translation available at http://www.gjpi.org/library/primary/statutes/ (then
Civil Procedure and Actions Law No. 83 of 1969 hyperlink).

14. Criminal Procedures Code (Law No. 23), Feb. 14, 1971. An unofficial version of the code
is available at http://www.gjpi.org/library/primary/statutes/ (then Criminal Procedure Code 23
of 1971 hyperlink) [hereinafter Law No. 23].

15. Judicial Organization Law (Law No. 160), Dec. 10, 1979, available at http://www.gjpi
.org/wp-content/uploads/judicial-organization.pdf [hereinafter Law No. 160].

16. This was the organization that replaced the Council of Judges during the Hussein regime
and was itself replaced by the re-established Council of Judges in 2003. In turn, the Council of
Judges was itself replaced in 2004 by the Higher Juridical Counsel. CPA Order No. 100, Transi-
tion of Laws, Regulations, Orders, and Directives Issued by the Coalition Provisional Authority §
3 (June 28, 2004).

17. For information on the role of the Revolutionary Command Council, see IRAQ: A
COUNTRY STUDY (Helen Chapin Metz ed., 1988), available at http://countrystudies.us/iraq/.

18. Supra note 5.

19. Kurdistan Iraq is the northern region of the country. It contains three provinces: Erbil,
Sulaymaniyah and Duhok. For more information on Kurdistan Iraq, see the Kurdistan Regional
Government website at http://www.krg.org/.

20. Const. (2005) (Iraq). The UN, UK and US agreed-on English translation of the Consti-
tution is available at http://www.gjpi.org/library/primary/iraqi-constitution/ (then 2005 Con-
stitution - English hyperlink).

21. Id., art. 90.

22. Id., art. 94.

23. Law No. 160, supra note 15.

24. Id., art. 35

Raid Juki al-Saedi

25. Law No. 23, supra note 14, art. 265.

26. Article 233, id., established a minimum age of seven to be prosecuted in Juvenile Court.
The Juveniles Welfare Law (Law No. 76) art. 3, July 20, 1983, available at http://www.gjpi.org/
wp-content/uploads/juvenile-welfare-law-76-of- 1983.pdf, increased the minimum age to ten
for prosecution.

27. Supra note 6.

28. M,§l,tl.

29. Law of the Supreme Iraqi Criminal Tribunal (Law No. 10), Oct. 18, 2005, available at
http://www.cpa-iraq.org/human_rights/Statute.htm [hereinafter Law No. 10].

30. Const. (2005) (Iraq), supra note 20, art. 134.

31. Law No. 10, supra note 29, art. 10.

32. Const. (2005) (Iraq), supra note 20, art. 134.

33. Genocide against Kurds stopped in 1988, while that against Arabs continued after 1991.

PART II

OVERVIEW OF THE CONFLICT IN IRAQ

Iraq and the "Fog of Law"

John F. Murphy*

The conference "The War in Iraq: A Legal Analysis," from which this volume
derives, covered a variety of topics and a plethora of legal issues. It was fol-
lowed by a workshop consisting of moderators of the various panels, panelists and
commentators with a view to continuing the dialogue begun at the conference. As a
commentator at the conference, 1 this author was struck not only by the large num-
ber of controversial issues arising out of the conflict in Iraq, but also by the ab-
sence of clear resolution of many of these issues, both at the conference and in the
wider world outside of the conference, hence my choice of the "fog of law" as part
of the title of this article. 2

By the "fog of law," I mean not only the debate over the law as it was interpreted
and applied in Iraq; but also the issue of what law applied — national law, especially
the law of Iraq; the law of armed conflict (or, as preferred by some, "international
humanitarian law"); the law of the United Nations Charter, including Security
Council resolutions adopted under Chapter VII; or no law at all. 3

Although the first panel of the conference was titled "Legal Bases for Military
Operations in Iraq," and Andru Wall presented a defense of the legality of the
March 2003 invasion of Iraq and the removal of the Saddam Hussein regime from
power, 4 this topic was not a primary focus of the conference. Perhaps this was just
as well, since the legality of the war in Iraq under the jus ad helium, the law of resort

* Professor of Law, Villanova University School of Law.

Iraq and the "Fog of Law'

to the use of armed force, has been debated extensively in various other forums.
Moreover, with the passage of time and a rash of developments in Iraq that have
raised a host of other issues, the legality of the 2003 invasion has arguably become a
matter of academic interest only. It may be appropriate, however, to make two
brief observations before leaving the topic. The first is that there was general agree-
ment in the Security Council debates concerning Iraq on a "strict constructionist"
approach to the jus ad bellum. That is, the strict limits on the use of force set forth in
Article 2(4) of the UN Charter 5 are subject to only two exceptions: (1) self-defense in
response to an armed attack and (2) military action taken or authorized by the Secu-
rity Council.

In the Security Council debates prior to and after the invasion, there was no in-
vocation of Article 51 6 as a basis for the invasion. Rather, the debate focused on
whether the particular Security Council resolutions on Iraq, including especially,
but not limited to, Resolution 1441, 7 authorized the March 2003 invasion of Iraq
without the need for a further resolution explicitly authorizing such an action. The
"fog of law" in this case may have been Resolution 1441 itself, which this author has
described elsewhere as "a masterpiece of diplomatic ambiguity that masked real
differences of view between the United States and the United Kingdom, on the one
hand, and France, Germany, and Russia, on the other, in how Iraq's failure to fulfill
its obligations under Resolution 687 should be handled." 8 In a similar vein, Michael
Glennon has suggested that Resolution 1441 "can accurately be said to lend sup-
port to both claims. This is not the hallmark of great legislation." 9

The second observation concerns whether, assuming arguendo that none of the
applicable Security Council resolutions authorized the March 2003 invasion of
Iraq, this was a "failure of the Security Council," as suggested by Glennon, or
whether the Security Council should have accepted the US and UK proposal that it
adopt a resolution explicitly authorizing the use of force if Iraq failed to carry out
its obligation to disarm. There has been considerable debate over whether it was
necessary or desirable as a matter of policy to remove the Saddam regime to main-
tain international peace and security, but a discussion of the arguments for and
against this proposition are beyond the scope of this article. For present purposes,
it suffices to note that there was little or no prospect that the Security Council
would adopt a resolution authorizing such action, however compelling the reasons
for doing so. There is considerable evidence that, far from helping to enforce Reso-
lution 687, France, Russia and China engaged in deals with the Saddam Hussein
government that undermined the resolution's enforcement. 10 In short, the
Saddam regime was one favored by three permanent members of the Security
Council, and it is reasonable to conclude that they had no interest in its removal

John F. Murphy

and would have exercised their veto power to block any Security Council resolu-
tion that sought to authorize such removal. 11

Parenthetically, it may be noted that Michael Reisman has argued that Article
2(4) of the UN Charter should be construed in such a way as to enhance "the ongo-
ing right of peoples to determine their own political destinies" and "to maintain
the political independence of territorial communities so that they can continue to
express their desire for political community in a form appropriate to them." 12
Hence, in his view, some interventions are permissible under Article 2(4) if they
"serve, in terms of aggregate consequences, to increase the probability of the free
choice of peoples about their government and political structure." 13 Since the
Saddam Hussein regime was a brutal dictatorship on a local level and had twice in-
vaded its neighbors to deny them the right of self-determination, it could be argued
that the March 2003 invasion of Iraq was not a violation of Article 2(4) and that
there was therefore no need for a Security Council resolution authorizing it.

To be sure, this kind of argument has been effectively, in my opinion, refuted by
Oscar Schachter. In a direct response to Reisman, 14 Schachter stated:

The difficulty with Reisman's argument is not merely that it lacks support in the text of
the Charter or in the interpretation that states have given Article 2(4) in the past
decades. It would introduce a new normative basis for recourse to war that would give
powerful states an almost unlimited right to overthrow governments alleged to be
unresponsive to the popular will or to the goal of self-determination. 15

Assuming arguendo that, as a policy matter, the Saddam Hussein regime should
have been removed from power, but the lack of Security Council authorization
stood in the way of such removal, what are the implications for appropriate ac-
tion should such a situation arise again in the future? If one agrees with Michael
Glennon's argument that, because they have been so often flouted in the past, Arti-
cle 2(4) and other limitations on resort to force in the UN Charter are no longer in
effect, it necessarily follows that one would agree with Glennon that " [b]y 2003 the
main question facing countries considering whether to use force was not whether it
was lawful. Instead, as in the nineteenth century, they simply questioned whether it
was wise." 16 But for reasons I have set forth elsewhere, Glennon's premise that limi-
tations on the use of force in the UN Charter are no longer in effect is not valid. 17

Shortly after the March 2003 invasion of Iraq, Lee Feinstein, then Acting
Director of the Washington Program of the Council on Foreign Relations, and
Anne-Marie Slaughter, then Dean of the Woodrow Wilson School of Public and
International Affairs at Princeton University and President of the American Society
of International Law, proposed a new doctrine, a "collective 'duty to prevent*

Iraq and the "Fog of Law'

nations run by rulers without internal checks on their power from acquiring or
using WMD [weapons of mass destruction]." 18 With specific reference to Iraq,
the authors suggested:

Consider, for instance, how recognizing a duty to prevent could have changed the
debate over the war in Iraq. Under existing law, the Bush administration could justify
intervention only by arguing that Iraq held WMD in violation of Security Council
resolutions. . . . Now suppose that last March, the United States and the United
Kingdom had accepted a proposal by France, Germany, and Russia to blanket Iraq with
inspectors instead of attacking it. Presumably those inspectors would have found what
U.S. forces seem to be finding today — evidence of Iraq's intention and capacity to build
WMD, but no existing stocks. Would the appropriate response then have been to send
the inspectors home and leave Saddam's regime intact? The better answer would have
been to recognize from the beginning the combined threat posed by the nature of his
regime and his determination to acquire and use WMD. Invoking the duty to prevent,
the Security Council could have identified Iraq as a subject of special concern and, as it
was blanketing the country with inspectors, sought to prosecute Saddam for crimes
against humanity committed back in the 1980s. 19

There are a number of problems with this proposed alternative approach to
Saddam's Iraq. First, it should be noted that Security Council Resolution 687 had
established a Special Commission (UNSCOM) consisting of inspectors who were
to inspect and verify that Iraq had destroyed all capability for weapons of mass
destruction, but Iraq had consistently refused to allow UNSCOM to carry out its
mandate, and in 1998 had forced it to leave Iraq and refused it or a successor team
to resume this function. Only in 1999 was the Security Council able to establish
the United Nations Monitoring, Verification and Inspection Commission
(UNMOVIC) 20 as a successor to UNSCOM. This result is largely attributable to
heavy bombing by the United States and the United Kingdom as part of Operation
Desert Fox, which occurred in response to the withdrawal by Iraq of cooperation
with the UN weapons inspectors. 21 In mid-September 2002, Iraq finally acceded to
the Council's demand that it allow UN inspectors back into its territory, and Reso-
lution 1441 decided that

the Government of Iraq shall provide to UNMOVIC, the IAEA [International Atomic
Energy Agency], and the Council, not later than 30 days from the date of this resolution,
a currently accurate, full, and complete declaration of all aspects of its programmes to
develop chemical, biological, and nuclear weapons, ballistic missiles, and other delivery
systems 22

In Resolution 1441, the Council also decided that

John F, Murphy

false statements or omissions to the declarations submitted by Iraq pursuant to this
resolution and failure by Iraq at any time to comply with, and cooperate fully in the
implementation of, this resolution shall constitute a further material breach of Iraq's
obligations and will be reported to the Council for assessment in accordance with
paragraphs 11 and 12 below. 23

On December 7, 2002, Iraq's declaration of its weapons fell far short of the full dis-
closure demanded by Resolution 1441. Nonetheless, Hans Blix, the chief UN in-
spector for chemical and biological weapons, in a clash with the view of US
Secretary of State Colin Powell, maintained that the inspection process was work-
ing and should be given more time and requested four more months. 24

In light of Saddam's refusal to cooperate with UN inspectors, it is highly un-
likely that he would have accepted "blanketing the country with inspectors," espe-
cially if this was part of an effort to prosecute him for crimes against humanity
committed in the 1980s. Carrying out this policy would have required the use of
armed force. Support of Saddam by the Russian, French, German and Chinese
governments would have precluded any Security Council authorization of such
use of force.

More generally, Feinstein and Slaughter, in support of their proposal for a
doctrine of a duty to prevent weapons of mass destruction falling into the hands
of regimes like North Korea or Iran, recognize that the "contentious issue is who
decides when and how to use force." They further recognize that the Security
Council "remains the preferred enforcer of collective measures." 25 At the same
time they state:

Given the Security Council's propensity for paralysis, alternative means of
enforcement must be considered. The second most legitimate enforcer is the regional
organization that is most likely to be affected by the emerging threat. After that, the
next best option would be another regional organization, such as NATO, with a less
direct connection to the targeted state but with a sufficiently broad membership to
permit serious deliberation over the exercise of a collective duty. It is only after these
options are tried in good faith that unilateral action or coalitions of the willing should
be considered.

In any event, the resort to force is subject to certain "precautionary principles." All
nonmilitary alternatives that could achieve the same ends must be tried before force
may be used, unless they can reasonably be said to be futile. Force must be exerted on
the smallest scale, for the shortest time, and at the lowest intensity necessary to achieve
its objective; the objective itself must be reasonably attainable when measured against
the likelihood of making matters worse. Finally, force should be governed by
fundamental principles of the laws of war: it must be a measure of last resort, used in

Iraq and the "Fog of Law'

proportion to the harm or the threat of the harm it targets, and with due care to
spare civilians. 26

From a strict legal perspective, it must be noted that the Security Council is not
only the "preferred enforcer of collective measures"; it is the only enforcer of col-
lective measures under the UN Charter paradigm qualified to use or to authorize
the use of force as a collective measure. Regional organizations, including NATO,
require Security Council approval to use force unless they are acting in collective
self-defense. But in the case of Security Council paralysis, as suggested by Feinstein
and Slaughter, they may well be the most legitimate alternative to the Security
Council to engage in armed force, subject to certain "precautionary principles"
and "fundamental principles of the laws of war."

At this point it is time to turn to the "fog of law" topics that will be the primary
focus of the rest of this article: the occupation in Iraq and the relationship between
the law of armed conflict and international human rights law.

The Occupation in Iraq

It is generally recognized that the 1907 Hague Regulations on land warfare 27 and
the Fourth Geneva Convention of 1949 28 constitute the primary legal documents
governing the traditional law of belligerent occupation. 29 According to Eyal
Benvenisti, however, in the case of the 2003 occupation of Iraq by the United
States, Great Britain and the "coalition of the willing," the occupants "were initially
reluctant to use the term occupation. 1 ' 30 They also did not "explicitly acknowledge
their status as occupying powers nor did they invoke the Hague Regulations of
1907 or the Fourth Geneva Convention as applicable to their actions in Iraq." 31

Approximately seven months after the coalition invaded Iraq on March 20,
2003, David J. Scheffer published an article that demonstrates why the United
States and Great Britain were reluctant to use the term occupation. 32 For example,
as stated by Scheffer, "[t]he occupation clauses of the Fourth Geneva Convention
are far more relevant to a belligerent occupation than to an occupation designed to
liberate a society from its repressive governance and transform it as a nation guided
by international norms and the self-determination of its liberated populace." 33
Elaborating on this thesis, Scheffer states:

In recent years, multilateral or humanitarian occupation, particularly that aimed at
enforcing international human rights law and atrocity law, has become the more
relevant factor in occupation practice. Occupation law was never designed for such
transforming exercises. While the humanitarian condition of the occupied society is a
paramount concern of the Hague Regulations of 1907, [under] the Fourth Geneva

John F. Murphy

Convention, and Geneva Protocol I, a society in political, judicial, and economic
collapse or a society that has overthrown a repressive leader and seeks radical
transformation requires far more latitude for transformational development than
would be anticipated under these instruments. The society may require revolutionary
changes in its economy (including a leap into robust capitalism), rigorous
implementation of international human rights standards, a new constitution and
judiciary, and a new political structure (most likely consistent with principles of
democracy) never contemplated by occupation law or the domestic law of the
occupied territory. As just one example, the penal law requirements set forth in Article
64 of the Fourth Geneva Convention serve little, if any, purpose in areas such as Kosovo
or Iraq or, had it been in force at the time, in Germany after World War II where the
Nazi-era national penal system failed to protect individual and collective rights. 34

Despite the reluctance of the United States and the United Kingdom to use the
term "occupation," and despite their clear intention to transform Iraqi society,
they acknowledged their respective obligations to act in accordance with the Hague
Regulations of 1907 and the Fourth Geneva Convention. 35 This was followed by
the Security Council issuing Resolution 1483, 36 which "[c]alls upon all concerned
to comply fully with their obligations under international law including in particu-
lar the Geneva Conventions of 1949 and the Hague Regulations of 1907." 37

Scheffer criticizes Resolution 1483 and suggests that

[t]he methodology that should have been invoked . . . was a UN Security Council
mandate establishing the transformational tasks of a military deployment and civilian
administration of a liberated society that explicitly or implicitly implemented only the
provisions of occupation law relevant to the particular situation. That methodology
was rejected by the United States immediately following the intervention. 38

Instead of supporting a Security Council resolution along the lines suggested by
Scheffer, the United States and the United Kingdom established the "Coalition
Provisional Authority" (CPA), which "replaced the domestic system of governance
with a temporary command structure that ruled the country based on the author-
ity of the Relevant U.N. Security resolutions, and the laws and usages of war."' 39
The Security Council formally recognized the CPA in Resolution 1511 of October
16, 2003. 40

These developments created a major "fog of law" in Iraq because, as noted by
Yoram Dinstein, "[wjithin a brief stretch of time, the Coalition Provisional Au-
thority carried a whole string of legislative and other measures designed to bring
about large-scale reforms." 41 As Scheffer notes, however, by enacting Resolution
1483, the Council "specified additional obligations not required by occupation
law, but in doing so invited the Authority to act beyond some of the barriers that

Iraq and the "Fog of Law'

occupation law otherwise would impose on occupying powers." 42 He suggests
further that

[i]n each of these areas of responsibility, a strict reading of occupation law likely would
prohibit such bold and transformational control of Iraqi society and economy, unless
one views the Security Council decisions as legitimately overriding conflicting norms
of occupation law.[ 43 ] If such is the case, then the Council's insistence elsewhere in
Resolution 1483 on compliance with occupation law breeds confusion. 44

Interestingly, Scheffer sets forth a lengthy list of acts or omissions of the occupying
powers in Iraq that " [i] f proven true . . . may invite varying degrees of civil liability or
criminal culpability under occupation law " 45 Later, Scheffer admits that

this rather anemic body of international law remains difficult to enforce against either
governments or individuals. This is not surprising given the paucity of enforceable
penalties under international treaties and national criminal codes and the reluctance of
national courts to second guess the public policy decisions that dominate occupation
practice. For example, a private right of action against the U.S. government for its
conduct during an occupation of foreign territory would be problematic. 46

Gregory Fox has extensively examined the issue of the extent to which the CPA's
actions were compatible with the traditional law of occupation. 47 As an "alternative
source" of legitimacy of CPA reforms, he also evaluates the argument that, by
adopting Resolution 1483, the Security Council "ratified the [CPA] reforms by ef-
fectively legislating a set of goals for the occupation that superseded the limitations
of Hague and Geneva law." 48 He concludes, correctly in this author's view, that
many of the CPA's reforms were incompatible with the traditional law of occupa-
tion and that the Security Council had not ratified these reforms. 49

Eyal Benvenisti has a somewhat different view from Fox's concerning the effect
of Resolution 1483 on the law of occupation applicable to the CPA:

Resolution 1483 can be seen as the latest and most authoritative restatement of several
basic principles of the contemporary law of occupation. It endorses several theses
developed in this book. First, it revives the neutral connotation of the doctrine.
Occupation is a temporary measure for reestablishing order and civil life after the end
of active hostilities, benefiting also, if not primarily, the civilian population. As such,
occupation does not amount to unlawful alien domination that entities the local
population to struggle against it. Second, sovereignty inheres in the people, and
consequently regime collapse does not extinguish sovereignty. Thus, the Resolution
implicitly confirms the demise of the doctrine of debellatio, which would have passed
sovereign title to the occupant in case of total defeat and disintegration of the
governing regime. Instead, and notwithstanding the requirement of Article 43 of the

John F. Murphy

Hague Regulations to "respect . . . , unless absolutely prevented, the laws in force in the
country," Resolution 1483 grants a mandate to the occupants to transform the
previous legal system to enable the Iraqi people "freely to determine their own political
future and control their own natural resources ... to form a representative government
based on the rule of law that affords equal rights and justice to all Iraqi citizens without
regard to ethnicity, religion, or gender." Hence, the law of occupation, according to
Resolution 1483, connotes respect to popular sovereignty, not to the demised regime.
Third, the Resolution recognizes in principle the continued applicability of
international human rights law in occupied territories in tandem with the law of
occupation. Human rights law may thus complement the law of occupation on specific
matters. Fourth, Resolution 1483 envisions the role of the modern occupant as the role
of the heavily involved regulator, when it calls upon the occupants to pursue an
"effective administration" of Iraq. This call stands in contrast to the initial orientation
of the Hague Regulations, which envisioned a disinterested occupant who does not
intervene in the lives of the occupied population. In the years since, such an "inactive
custodian" approach has been rejected as unacceptable. The call to administer the
occupied area "effectively" acknowledges the several duties that the occupants must
perform to protect the occupied population. It precludes the occupant from hiding
behind the limits imposed on its powers as a pretext for inaction. 50

Elsewhere, Benvenisti acknowledges that Resolution 1483 "did not address a
number of key questions concerning the further adaptation of the law of occupation
to contemporary governance." 51 Nonetheless, it is clear that he considers the con-
temporary law of occupation more adequate for governing an occupation like that
in Iraq, where the goal is regime change and radical changes in law and policy of the
occupied territory, than do Scheffer and Fox. In such situations, the latter two
commentators appear to favor "the establishment of a United Nations legal frame-
work to govern the foreign military deployment and civilian administration." 52

This author tends to favor the Scheffer/Fox approach because a United Nations
legal framework would have the potential to bring greater clarity to a murky area
and thus lift, at least in part, the "fog of law." It is unclear, however, the extent to
which future occupations will have goals similar to those of the occupation in Iraq.
If UN member States were to take seriously the so-called "responsibility to pro-
tect," there would be a considerable likelihood of occupations along the Iraq
model. At this writing, however, the "responsibility to protect" is under attack in
the United Nations and its future is uncertain. 53

The Law of International Armed Conflict and International Human Rights

By way of transition from the previous section, it should be noted, as Yoram
Dinstein has helpfully pointed out, that, despite the reluctance of the occupying
powers in Iraq to apply the ordinary norms of belligerent occupation because of

Iraq and the "Fog of Law"

their being ill-suited to the transformative objectives they had in mind, "[i]n the
event, the status of belligerent occupation in Iraq remained legally valid for just a

little over a year " 54 By adopting Resolution 1546, 55 the Security Council set in

train the process whereby the belligerent occupation came to an end. Specifically,
the Council declared that "by 30 June 2004, the occupation will end and the Coali-
tion Provisional Authority will cease to exist, and . . . Iraq will reassert its full sover-
eignty." 56 Two days earlier than the deadline CPA Administrator Paul Bremer
formally transferred political authority to the Iraqi interim government and left the
country. 57

The practical effect of Resolution 1546, however, is unclear. Yoram Dinstein has
suggested:

In theory, since the end of June 2004, the continued presence of coalition forces in Iraq
is by invitation of the new Iraqi government. In practice, there was little change on the
ground following the decreed termination of the occupation. As long as coalition
forces are engaged in combat in order to extinguish pockets of resistance of the ancien
regime (or its putative supporters) — exercising at least some administrative authority
in certain areas of Iraq — the occupation has come to a close only "notionally." 58

As we shall see later in this article, the situation has changed radically recently with
the adoption of two international agreements between the United States and the
Iraq government.

As to the applicability of human rights law to the period of belligerent occupa-
tion of Iraq, this has been a question of some controversy. The United States, for
example, takes the position that the International Covenant on Civil and Political
Rights (ICCPR) 59 does not apply outside of the United States or its special mari-
time and territorial jurisdiction and that it does not apply to operations of the mili-
tary during an international armed conflict. 60 The US position that the ICCPR does
not apply outside of the territory of the United States has been rejected by the
United Nations Human Rights Committee 61 and the International Court of Justice
(ICJ) in an advisory opinion. 62 It is worth noting, however, that neither the views of
the Human Rights Committee nor the ICJ's advisory opinion has any binding ef-
fect, and the United States and other countries have maintained their position.

The United States has also maintained that the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment applies only
within US territory, although the territorial scope clause that appears in several
articles of this convention contains the phrase "in any territory under its jurisdic-
tion." 63 Leading authorities on the drafting history of the Convention have con-
cluded that this phrase extends the treaty to "territories under military occupation,
to colonial territories and to any other territories over which a State has factual

John F. Murphy

control." 64 For its part, the UN Committee against Torture, which is the Conven-
tion's counterpart to the UN Human Rights Committee, has endorsed an "effec-
tive control" standard and concluded that "this includes all areas under the de facto
effective control of the State party, by whichever military or civil authorities such
control is exercised. The Committee considers [the US] view that those provisions
are geographically limited to its own de jure territory to be regrettable." 65 Again,
the United States is not bound by the views of the Committee against Torture and
has maintained its position to the contrary. As is so often his practice, however,
Dinstein adds another consideration to the mix:

As treaty laws, the Covenant and the European Convention (whatever the correct in-
terpretations of their texts) are, of course, limited in application to Contracting Par-
ties. But it is necessary to pay heed to the customary law of human rights, which is
frequently reflected in the substantive clauses of these instruments. Customary human
rights are conferred on human beings wherever they are. Irrefutably, the inhabitants of
occupied territories are in principle entitled to benefit from the customary corpus of
human rights that coexists with the law of belligerent occupation. The International
Court of Justice observed, in the Armed Activities case, that "both branches of interna-
tional law, namely, international human rights law and international humanitarian
law, would have to be taken into consideration" in occupied territories. 66

The US view that the ICCPR does not apply to operations of the military during
international armed conflict is contrary to the view expressed in two advisory opin-
ions of the International Court of Justice: Legality of the Threat or Use of Nuclear
Weapons 67 and Legal Consequences of the Construction of a Wall in the Occupied Pal-
estinian Territory. 68 In its Nuclear Weapons opinion, the Court stated that "the pro-
tection of the International Covenant of Civil and Political Rights does not cease in
times of war, except by operation of Article 4 of the Covenant whereby certain pro-
visions may be derogated from in a time of emergency." 69 Similarly, the Court
opined in Wall that "the Court considers that the protection offered by human
rights conventions does not cease in case of armed conflict, save through the effect
of provisions for derogation of the kind found in Article 4 of the International Cov-
enant on Civil and Political Rights." 70

Dinstein has provided a concise rationale to support the ICJ view: "The very fact
derogation is required to suspend the operation of given stipulations of the
Covenant in wartime attests that — when no permissible derogation is in effect —
human rights continue to be in force." 71

To be sure, as Dinstein notes, Article 4(1) of the ICCPR 72 does not contain any
explicit reference to war or even armed conflict. 73 Dinstein, however, quotes
Thomas Buergenthal, now a judge on the International Court of Justice and an

Iraq and the "Fog of Law"

eminent authority on human rights, to deny any legal significance to this omission:
"the omission of specific reference to war was surely not intended to deny the right
of derogation in wartime; war is the most dramatic example of a public emergency
which might 'threaten the life of the nation/" 74 It is noteworthy that neither the
United States nor the United Kingdom has invoked Article 4 of the Covenant with
respect to Iraq.

Elsewhere in his treatise The International Law of Belligerent Occupation^
Dinstein discusses in detail Article 4(1), as well as the general subject of
derogations from obligations to respect human rights. 75 In a section on non-
derogable human rights, 76 Dinstein compares the non-derogable provisions of the
ICCPR, the European Convention on Human Rights and Fundamental Freedoms,
and the American Convention on Human Rights. 77 He concludes that "[t]he lists
of non-derogable human rights appearing in the three instruments coincide in part
but they are not conterminous" 78 and illustrates this fact in some detail. 79 Perhaps
the most interesting observation Dinstein makes in this exercise is set forth below:

It is surprising that the human right to judicial guarantees of fair trial — enshrined in all
the instruments — is not included in the list of non-derogable rights. Only the
American Convention enumerates as non-derogable those judicial guarantees that are
essential to the protection of other non-derogable rights. This loose end was deftly used
by the Inter- American Court of Human Rights — in two Advisory Opinions delivered
on the subject in 1987 — to extrapolate that judicial remedies like the writs of habeas
corpus and amparo can never be derogated, and they can therefore be used to exercise
control also over the suspension of derogable rights. [ 80 ] More radically, the Human
Rights Committee expressed the non-binding view — in General Comment No. 29 of
2001 — that the list of non-derogable rights (as it appears in Article 4(2) of the
Covenant) is not exhaustive, and there can be no derogation (in particular) from
judicial guarantees. 81

In subsequent sections of his treatise, Dinstein, in a tour deforce^ explores the
many nuances of the following topics: "Built-in limitations of human rights,"
including "Explicit limitations" and "Implicit limitations"; 82 "Balance between
competing human rights"; 83 and "The Interaction between the law of belligerent
occupation and the law of human rights," including "Convergence and diver-
gence," "The advantages of the law of belligerent occupation," "The advantages of
human rights law" and "The lex specialis rule." 84 Time and space limitations pre-
clude exploring Dinstein's treatment of these important topics in any depth. It is
fair to say, however, that it helps to lift the "fog of law" covering some very impor-
tant issues. In particular, it effectively refutes the thesis that the law of interna-
tional armed conflict and international human rights are mutually exclusive;

John F. Murphy

illustrates how, "[f]or the most part, in occupied territories, there is enough room
for a symbiotic relationship between the two [branches of international law] "; 85
suggests that

[w]hen both alternative paths of human rights law and the law of belligerent
occupation are open to a protected person whose rights have been infringed in an
occupied territory, there maybe a practical advantage in exploring the former, since an
international mechanism may be readily available, enabling the injured party to seek
and obtain effective redress . . . 86

and points out that, in the event of an irreconcilable conflict between the two fields
of law, "the special law of belligerent occupation trumps the general law of human
rights on the ground of lex specialis derogat lex generali." 87

As noted earlier, on June 28, 2004, CPA Administrator Paul Bremer formally
transferred political authority to the Iraqi interim government, 88 two days prior to
the date decreed by the Security Council in Resolution 1546. 89 At that time, pursuant
to Resolution 1546, the occupation came to an end and Iraq asserted its full
sovereignty. 90 To be sure, as reported earlier, Dinstein, quoting and citing Adam
Roberts, has suggested that the occupation came to a close only "notionally" be-
cause there was little change on the ground following the decreed termination of
the occupation. 91

At present, however, the occupation has come to a close more than notionally.
Exercising its sovereign powers, the government of Iraq has entered into two inter-
national agreements with the United States that have radically changed the power
balance in Iraq.

The Strategic Framework Agreement and the Security Agreement

In Resolution 151 1, 92 the Security Council authorized the multinational force in
Iraq. This resolution was followed by Resolution 1546, 93 which, in addition to
bringing the occupation of Iraq to an end, reaffirmed the authorization for the
multinational force. 94 Resolution 1546 was in turn followed by a series of other
resolutions that reaffirmed and extended the authorization for the multinational
force. The last of these was Resolution 1790, 95 which provided that the authoriza-
tion of the multinational force would expire on January 1, 2009. Prior to the expi-
ration of the authorization of the multinational force, on November 17, 2008 the
United States and Iraq entered into two bilateral agreements that took the autho-
rization's place.

Iraq and the "Fog of Law'

The two agreements are ( 1 ) the Strategic Framework Agreement for a Relation-
ship of Friendship and Cooperation between the United States of America and the
Republic of Iraq (SFA) 96 and (2) the Agreement Between the United States of
America and the Republic of Iraq on the Withdrawal of United States Forces from
Iraq and the Organization of Their Activities during Their Temporary Presence in
Iraq (SA). 97 Interestingly, the executive branch initially intended that the SFA
would be a non-binding political commitment in order that it would be free from
the US constitutional constraints that apply to international legal agreements; 98
however, the United States and Iraq decided to recast the SFA as a legally binding
treaty commitment, like the SA. 99

It is noteworthy that neither agreement uses the term "status of forces agreement"
or SOFA. 100 Commander Trevor A. Rush has explained the reason for the absence
of the term SOFA:

First, in a technical sense, it is not accurate to use the term SOFA for either of the two
agreements. The SFA is an agreement that defines the long-term strategic relationship
between the U.S. Government and the [government of Iraq]. It contains none of the
typical provisions one might expect to find in a SOFA and, with regard to "Defense and
Security Cooperation," the SFA contains no actual substance. Instead, it specifically
refers to the U.S.-Iraq SA, for the nature of that cooperation. On the other hand, the SA
goes far beyond a regular SOFA, to include authorizing combat missions and
detentions, discussing the deterrence of "security threats" and the termination of U.N.
Security Council measures, as well as U.S. efforts to safeguard Iraqi economic assets
and obtain Iraq debt forgiveness.! 101 ]

Second, and more importandy, the reason not to use the term SOFA for these two
agreements is related to the significant political sensitivities surrounding the presence
of foreign forces in the Middle East. The coalition campaigns in Iraq and Afghanistan
have added new twenty-first century images to those deep-seated regional concerns.
History has witnessed various western powers seek to control Middle Eastern
territories, but these attempts at colonization and foreign domination have ultimately,
always, been rejected. In this context, a "SOFA" can give the impression of a willing
consent to permanent foreign military occupation. Skeptics need only look to such
places as Europe, Korea, and Japan and see more than half a century of U.S. military
presence operating under SOFAs. 102

Rush gives an extensive and excellent overview of both the SFA and the SA. No
attempt will be made in this article to match Rush's efforts. It is significant, how-
ever, that Rush is of the view that "these U.S.-Iraq agreements should be heralded
as a major step forward in Iraq's assumption of responsibility for its own security
and governance." 103 At the same time, Rush recognizes that application of the
agreements can give rise to disputes between the United States and Iraq. He notes

John F. Murphy

that, at the time of writing, the United States had already been accused of violating
the SA through a military raid that left two people dead, 104 and suggests that "the
first true test of public perception could come in 2009 if an Iraqi referendum on the
agreements is held as planned." 105 At this writing, however, it is uncertain whether
such a referendum will take place. Although Sunni lawmakers insisted that a refer-
endum on the SA be held as a condition for their support, and a referendum was
originally scheduled for July of 2009, it was delayed. In August, Iraq's cabinet offi-
cially set a new date of January 16, 2010 for the referendum, a date coinciding with
nationwide parliamentary polls. 106

The SA calls for all American troops to be out of Iraq by the end of 20 ll. 107 If
Iraqi voters reject the SA in a referendum held on January 16, 2010, this would
force an accelerated US withdrawal, resulting in a full American troop withdrawal
almost a year ahead of schedule. Recent reports, however, indicate that worry over
Iraq's ability to take over security from the United States faster — should the refer-
endum force an early American withdrawal — "appears to have cooled some
Sunnis' insistence on the referendum," and some Sunni politicians have reportedly
said that a referendum was no longer necessary because the US military had so far
abided by the SA. 108

Even if no referendum is held on the SA, Article 30, paragraphs 1 and 3, of the
SA allows either party to terminate the agreement one year after written notice is
given to the other party. 109 As noted by Rush in his article, there are a number of
provisions in the SA that may prove to be significant friction points between the
United States and Iraq. 110 As to ways to minimize the chances of a breakdown in
US-Iraqi relations leading to termination of the SA, Rush sets forth the following
poignant suggestions in the concluding paragraph of his article:

There are two clear ways to help ensure the SA is viewed positively by the Iraqis. First,
U.S. leaders must make every effort to adhere to the terms. This article has identified
various gray areas where friction may occur. These areas must be handled delicately
and in cooperation with Iraqi counter-parts [sic]. Although the United States must
protect its interests, it must not do so in a way that sacrifices the greater objective of
maintaining good relations with Iraq. The United States cannot be seen as exploiting its
position or strong-arming Iraq. To do so risks public condemnation and loss of public
support. The second way to help ensure the SA is viewed positively falls on the
shoulders of every Soldier, Sailor, Airman, Marine, Coast Guardsman, and Civilian of
the U.S. Forces serving in Iraq. There is no room for any misconduct toward Iraqi
citizens, nor can individuals afford to act beyond the scope of their missions. A single
failure in this area is potentially catastrophic to the U.S.-Iraq Security Agreement. The
U.S. chain of command must continue to impress upon all members of the U.S. Forces
in Iraq that mission success can only be achieved through their individual good

Iraq and the "Fog of Law'

conduct and their good relations with the Iraqis that they are in Iraq to support and
protect. 111

A Few Concluding Observations

At this writing, the SA appears to be functioning effectively. In accordance with
Article 24 of the SA, 112 all US combat forces have been withdrawn from Iraqi cities,
villages and localities and have been stationed in agreed facilities and areas out-
side these cities, villages and localities. Although this is not entirely clear from
published reports, it appears that the primary function of US troops in their new
locations is to train and advise Iraqi forces, rather than carry a major burden in
combat.

To be sure, areas of instability still remain, especially in the city of Mosul and
northern Iraq, where unresolved Kurdish-Arab tensions over oil and political con-
trol of the area remain. Nonetheless, the top US commander in Iraq, General Ray-
mond Odierno, has reportedly said he is

increasingly confident Iraq's recent security gains are irreversible despite high-profile
attacks like the string of bombings in Baghdad last month [August] that killed roughly
100 people. "We'll have bad days in Iraq," he said. "But the bad days are becoming
fewer. The numbers of deaths are becoming fewer. We're making slow, deliberate
progress. l "

Perhaps the most encouraging development at this juncture is reports of the de-
cline of the religious and sectarian parties that have fractured Iraq since 2003 and of
a movement emphasizing national unity that seeks to reach across ethnic or sectar-
ian lines. 114 If this movement continues, the chances of the national elections
scheduled for January 2010 going well will greatly improve.

Last year the United States and Iraq agreed that American combat forces would
be out of Iraq by August 2010, leaving fifty thousand troops to advise and support
the Iraqis. 115 General Odierno, however, has reportedly stated that he could reduce
American forces to that level even before the summer of 2010 if the expected Janu-
ary elections in Iraq go well. 116 This could ease the current strain on US forces and
free up extra combat troops for duty in the Afghanistan war, especially if the
Obama administration decides to accede to the military's request for more combat
troops in Afghanistan.

There is, of course, no guarantee of success in Iraq. But it is clear that ultimate
success or failure is now largely in the hands of a sovereign Iraq government. If suc-
cess in Iraq is ultimately achieved, the implications for greater stability in the Mid-
dle East will be enormous. Not a bad denouement for a "war of choice."

John R Murphy

Notes

1. The author was the commentator on the panel "Issues Spanning the War in Iraq," which
was the closing panel of the conference.

2. The concept of the "fog of law" is not, of course, original with me, especially as it applies
to armed conflict. See, e.g., Michael J. Glennon, The Fog of Law: Self-Defense, Inherence, and Inco-
herence in Article 51 of the United Nations Charter, 25 HARVARD JOURNAL OF LAW & PUBLIC
POLICY 539 (2002). See also Yoram Dinstein, Concluding Remarks on Terrorism and Afghanistan, 39
Israel Yearbook on Human Rights 315, 330 (2009) ("the fog of the law of war").

3. Michael J. Glennon has famously and controversially contended that "international
'rules'" concerning use of force are no longer considered obligatory by States. See Glennon, supra
note 2, at 540, 541. For a more elaborate development of this thesis, see MICHAEL J. GLENNON,
Limits of Law, Prerogatives of Power: Interventionism after Kosovo (2001).

4. See Andru E. Wall, Was the 2003 Invasion of Iraq Legal?, which is Chapter IV in this vol-
ume, at 69.

5. Article 2(4) provides: "All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the Purposes of the United Nations."

6. Article 51 of the UN Charter provides:

Nothing in the present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and
security. Measures taken by Members in the exercise of this right of self-defence shall be
immediately reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present Charter to take at
any time such action as it deems necessary in order to maintain or restore international
peace and security.

7. S.C. Res. 1441, U.N. Doc. S/RES/ 1441 (Nov. 8, 2002).

8. John F. Murphy, The United States and the Rule of Law in International
Affairs 169 (2004).

9. Michael J. Glennon, Why the Security Council Failed, FOREIGN AFFAIRS, May-June 2003,
at 16, 27.

10. Id. at 16.

11. For a detailed discussion of the extent of the dealings between the Saddam government
and France, Russia and China, see JOHN F. MURPHY, THE EVOLVING DIMENSIONS OF
International Law: Hard Choices for the World Community 127-32 (2010).

12. Michael Reisman, Coercion and Self-Determination: Construing Charter Article 2(4), 78
American Journal of International Law 642, 643 (1984).

13. Id.

14. Oscar Schachter, The Legality of Pro-Democratic Invasion, 78 AMERICAN JOURNAL OF
International Law 645 (1984).

15. Id. at 649.

16. Glennon, supra note 9, at 16.

17. See MURPHY, supra note 8, at 177-81.

18. Lee Feinstein & Anne-Marie Slaughter, A Duty to Prevent, FOREIGN AFFAIRS, Jan.-Feb.
2004, at 136, 137.

19. Mat 138-39.

Iraq and the "Fog of Law"

20. See S.C. Res. 1284, U.N. Doc. S/RES/1284 (Dec. 17, 1999).

21. For discussion, see MURPHY, supra note 8, at 152-54.

22. See operative para. 3, S.C. Res. 1441, supra note 7.

23. /<£, operative para. 4. In operative paragraph 11, the Council "[d]irects the Executive
Chairman of UNMOVIC and the Director General of IAEA to report immediately to the Council
any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its
disarmament obligations, including its obligations regarding inspections under this resolution."
In operative paragraph 12, the Council "[d]ecides to convene immediately upon receipt of a re-
port in accordance with paragraphs 4 or 1 1 above, in order to consider the situation and the need
for full compliance with the relevant Council resolutions in order to secure international peace
and security." Lastly, operative paragraph 13 "[r]ecalls, in that context, that the Council has re-
peatedly warned Iraq that it will face serious consequences as a result of its continued violations
of its obligations."

24. See MURPHY, supra note 8, at 170.

25. Feinstein & Slaughter, supra note 18, at 148.

26. Mat 148-149.

27. Convention No. IV Respecting the Laws and Customs of War on Land, Regulations Re-
specting the Laws and Customs of War on Land, Annex, Oct. 18, 1907, 36 Stat. 2227, reprinted in
DOCUMENTS ON THE LAWS OF WAR 69 (Adam Roberts & Richard Guelff eds., 3d ed. 2000).

28. Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949,
6 U.S.T. 3516, 75 U.N.T.S. 287, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 27,
at 301.

29. See, e.g., Gregory H. Fox, The Occupation of Iraq, 36 GEORGETOWN JOURNAL OF
INTERNATIONAL LAW 195, 229-32 (2005).

30. See Preface to the Paperback Edition, in EYAL BENVENISTI, THE INTERNATIONAL LAW OF
Occupation ix (2004).

31. Id.

32. David J. Scheffer, Beyond Occupation Law, 97 AMERICAN JOURNAL OF INTERNATIONAL
LAW 842 (2003).

33. Id. at 849.

34. Id.

35. Id. at 850, citing, inter alia, the Letter of 8 May 2003 from the Permanent Representatives
of the United States of America and the United Kingdom of Great Britain and Northern Ireland
to the President of the Security Council, U.N. Doc. S/2003/538 (2003).

36. S.C. Res. 1483, U.N. Doc. S/RES/1483 (May 22, 2003).

37. Id., operative para. 5.

38. See Scheffer, supra note 32, at 850, citing Roger Hardy, Struggle for Power in Iraq, BBC
NEWS, Apr. 13, 2003, http://news.bbc.co.Uk/2/hi/middle_east/2944915.stm; Jane Perlez, U.S.
Team Arrives in Iraq to Establish Postwar Base, NEW YORK TIMES, Apr. 9, 2003, at B10; Richard
W. Stevenson, Bush Sees Aid Role of UN. as Limited in Rebuilding Iraq, NEW YORK TIMES, Apr. 9,
2003, at Al.

39. See Benvenisti, supra note 30, at ix, citing the preamble to the Coalition Provisional Order
No. 1 (De-Baathification of Iraqi Society), May 16, 2003, available at http:// www.iraqcoalition
.org/regulations/20030603_CPAMEMO_l_Implementation_of_De-Ba _athification.pdf.

40. S.C. Res. 1511, U.N. Doc. S/RES/1511 (Oct. 16, 2003).

41. YORAM DINSTEIN, THE INTERNATIONAL LAW OF BELLIGERENT OCCUPATION 12 (2009).

42. Scheffer, supra note 32, at 846 n. 18 (citing as examples "the Security Council's decisions
regarding the Development Fund for Iraq, the management of petroleum, petroleum products,

John F. Murphy

and natural gas, and the formation of an Iraqi interim administration as a transitional adminis-
tration run by Iraqis").

43. Article 103 of the UN Charter provides that "[i]n the event of a conflict between the
obligations of the Members of the United Nations under the present Charter and their obliga-
tions under any other international agreement, their obligations under the present Charter shall
prevail."

44. Scheffer, supra note 32, at 846 n.18.

45. Mat 855-56.

46. Mat 857.

47. Fox, supra note 29, at 229-97.

48. Id. at 246, 255-62.

49. Id. at 295-97.

50. BENVENISTI, supra note 30, at xi.

51. Id. at xii. As one example, Benvenisti mentions "the question of whether an occupant can
undertake international obligations as part of its temporary administration of the occupied
territory." Id.

52. Scheffer, supra note 32, at 843.

53. See, e.g., Neil MacFarquhar, When to Step In to Stop War Crimes Causes Fissures, NEW
YORK TIMES, July 23, 2009, at A10; An idea whose time has come-and gone?, ECONOMIST, July 25,
2009, at 58.

54. See DlNSTEIN, supra note 41, at 12.

55. S.C. Res. 1546, U.N. Doc. S/RES/1546 (June 8, 2004).

56. Id., operative para. 2.

57. See Fox, supra note 29, at 227.

58. See DlNSTEIN, supra note 41, at 273. In using the term "notionally," Dinstein cites and
quotes Adam Roberts, Transformative Military Occupation: Applying the Laws of War and Human
Rights, in INTERNATIONAL LAW AND ARMED CONFLICT: EXPLORING THE FAULTLINES, ESSAYS IN
HONOUR OF YORAM DlNSTEIN 448 (Michael Schmitt & Jelena Pelic eds., 2007).

59. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc.
A/6316 (Dec. 16, 1966) [hereinafter ICCPR].

60. See, e.g., Ralph Wilde, The Applicability of International Human Rights Law to the Coali-
tion Provisional Authority (CPA) and Foreign Military Presence in Iraq, 1 1 ILSA JOURNAL OF
International & Comparative Law 485, 487 (2005), citing US Department of Defense,
Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment
of Legal, Historical, Policy, and Operational Considerations (Apr. 4, 2003), available at http://
www.defenselink.mil/news/Jun2004/d20040622doc8.pdf; U.N. Human Rights Committee,
Third Periodic Report of the United States of America, U.N. Doc. CCPR/C/USA/Q/3/Annex (Oct.
21, 2005); United States Responses to Selected Recommendations of the Human Rights Committee,
U.N. Doc. CCPR/C/USA/CO/3/Rev. 1/Add. 1 (2007).

6 1 . See U.N. Human Rights Committee, Concluding Observations of the Human Rights Com-
mittee: United States of America, U.N. Doc. CCPR/C/USA/CO/3/Rev. 1 (Dec. 18, 2006).

62. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 I.C.J. 136, paras. 108-9, 111 (July 9) [hereinafter Legal Consequences of
the Construction of a Wall].

63. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishmentarts.3(l),5(l),6(l),7(l),ll(l),12, 13, 16(1), 20, Dec. 10, 1984, 1465 U.N.T.S. 85.

64. J. Herman Burgers 8c Hans Danelius, The United Nations Convention

AGAINST TORTURE: A HANDBOOK ON THE CONVENTION AGAINST TORTURE AND OTHER

Iraq and the "Fog of Law"

Cruel, Inhuman or Degrading Treatment or Punishment 131 (1988), cited and quoted in
Louis Henkin et al., Human Rights 22 (2d ed. 2009).

65. U.N. Committee against Torture, Conclusions and Recommendations on the United
States' Second Periodic Report, para. 15, CAT/C/USA/CO/2 (July 25, 2006), cited and quoted in
LOUIS HENKIN ET AL., supra note 64, at 22-23.

66. DlNSTEIN, supra note 41, citing Case Concerning Armed Activities on the Territory of
the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 1 (Dec. 19).

67. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226
(July 8) [hereinafter Nuclear Weapons].

68. Legal Consequences of the Construction of a Wall, supra note 62, at 136.

69. Nuclear Weapons, supra note 67, at 240.

70. Legal Consequences of the Construction of a Wall, supra note 62, at 1038.

7 1 . DlNSTEIN, supra note 4 1 , at 70.

72. Article 4( 1 ) of the Covenant provides:

In time of public emergency which threatens the life of the nation and the existence of
which is officially proclaimed, the States Parties to the present Covenant may take
measures derogating from their obligations under the present Covenant to the extent
strictly required by the exigencies of the situation, provided that such measures are not
inconsistent with their other obligations under international law and do not involve
discrimination solely on the ground of race, colour, sex, language, religion or social
origin.

73. DlNSTEIN, supra note 41, at 72.

74. Thomas Buergenthal, To Respect and to Ensure State Obligations and Permissible Deroga-
tions, in The International Bill of Rights: The Covenant on Civil and Political
RIGHTS 72, 79 n.375 (Louis Henkin ed., 1981). Cited in DlNSTEIN, supra note 41, at 72.

75. DlNSTEIN, supra note 41, at 71-74.

76. Id. at 74-77.

77. ICCPR, supra note 59, art. 4(1); European Convention for the Protection of Human
Rights and Fundamental Freedoms art. 25(2), Nov. 4, 1950, Europ. T.S. No. 5, 213 U.N.T.S. 222;
American Convention on Human Rights art. 27(2), Nov. 22, 1969, O.A.S.T.S. No. 36, 1144
U.N.T.S. 123.

78. DlNSTEIN, supra note 41, at 75.

79. Id. at 75-77.

80. The two advisory opinions referred to are Habeas Corpus in Emergency Situations (Arts.
27(2) and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87,
Inter-Am. Ct. H.R. (ser. A) No. 8 (Jan. 30, 1987) and Judicial Guarantees in States of Emergency
(Arts. 27(2), 25 and 8 American Convention on Human Rights), Advisory Opinion OC-9/87,
1987 Inter-Am. Ct. H.R. (ser. A) No. 9 (Oct. 8, 1987).

8 1 . DlNSTEIN, supra note 4 1 , at 76-77, citing U.N. Human Rights Committee, General Com-
ment 29: States of Emergency (Article 4), paras. 13-15, U.N. Doc. CCPR/C/21/Rev.l/Add.ll
(Aug. 31,2001).

82. DlNSTEIN, supra note 41, at 77-79.

83. Id. at 80-81.

84. Id. at 81-88.

85. Id. at 81.

86. Id. at 85.

John F. Murphy

87. Id. To illustrate an application of the lex specialis rule, Dinstein quotes from the Interna-
tional Court of Justice's Nuclear Weapons advisory opinion. The issue facing the Court in these
proceedings was the relationship between the law of international armed conflict and Article
6(1) of the ICCPR, which provides that "[n]o one shall be arbitrarily deprived of his life." The
Court stated:

In principle, the right not arbitrarily to be deprived of one's life applies also in
hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be
determined by the applicable lex specialis, namely, the law applicable in armed conflict
which is designed to regulate the conduct of hostilities. Thus whether a particular loss of
life, through the use of a certain weapon in warfare, is to be considered an arbitrary
deprivation of life contrary to Article 6 of the Covenant, can only be decided by
reference to the law applicable in armed conflict and not deduced from the terms of the
Covenant itself.

Nuclear Weapons, supra note 67, at 240.

88. See supra text accompanying note 57.

89. See S.C. Res. 1546, supra note 55.

90. See id., operative para. 2, quoted supra in text accompanying note 56.

91. See Dinstein analysis, supra note 58, and accompanying text.

92. S.C. Res. 1511, supra note 40.

93. See S.C. Res. 1546, supra note 55.

94. Id., operative para. 9.

95. S.C. Res. 1790, U.N. Doc. S/RES/1790 (Dec. 18, 2007).

96. Strategic Framework Agreement for a Relationship of Friendship and Cooperation
between the United States of America and the Republic of Iraq, U.S.-Iraq, Nov. 17, 2008, avail-
able at http://www.mnf-iraq.com/images/CGs_Messages/strategic_framework_agreement.pdf.

97. Agreement Between the United States of America and the Republic of Iraq on the With-
drawal of United States Forces from Iraq and the Organization of Their Activities during Their
Temporary Presence in Iraq, U.S.-Iraq, Nov. 17, 2008, available at http://www.mnf-iraq.com/
images/CGs_Messages/security_agreement.pdf [hereinafter SA].

98. See Duncan B. Hollis & Joshua J. Newcomber, "Political" Commitments and the Consti-
tution, 49 VIRGINIA JOURNAL OF INTERNATIONAL LAW 507, 510 (2009).

99. Mat 510.

100. See Trevor A. Rush, Don't Call It a SOFA! An Overview of the U.S. Security Agreement,
Army Lawyer, May 2009, at 34.

101. Rush cites the following provisions of the SA: Article 4 (missions), Article 22 (detention),
Article 25 (measures to terminate the application of Chapter VII to Iraq), Article 26 (Iraqi assets)
and Article 27 (deterrence of security threats).

102. Rush, supra note 100, at 34-35.

103. Id. at 35.

104. Id.

105. Id.

106. Gina Chon, Iraq Vote on Pullout Put on Back Burner, WSJ.COM, Oct. 5, 2009, http://online
.wsj.com/article/SB 1 254703 1 1 7 1 3563 1 9 1 .html.

107. See SA, supra note 97, art. 30, para. 1.

108. Chon, supra note 106.

109. Article 30, paragraph 1, of the SA provides: "This Agreement shall be effective for a
period of three years, unless terminated sooner by either Party pursuant to paragraph 3 of

Iraq and the "Fog of Law 1

this Article." Paragraph 3 provides: "This Agreement shall terminate one year after a Party pro-
vides written notification to the other Party to that effect."

110. For example, Rush highlights Article 4 of the SA, which covers "missions" or military op-
erations. As to Article 4, Rush states:

Article 4 of the SA covers "missions" or military operations and is one of the articles
which make the agreement fundamentally different from all other U.S. SOFAs. Article 4
begins with a request from the GOI [government of Iraq] for "the temporary assistance
of the United States Forces for the purposes of supporting Iraq in its efforts to maintain
security and stability in Iraq, including cooperation in the conduct of operations
against al-Qaeda and other terrorist groups, outlaw groups, and remnants of the former
regime." Standard SOFAs do not discuss engaging in combat operations, whereas this
SA provision invites U.S. Forces to participate in Iraq's internal armed conflict. It also
provides internationally accepted legal authority for U.S. Forces to conduct combat
operations in Iraq. This was necessary to fill the legal vacuum created by the expiration
of [UN Security Council Resolution] 1790.

The SA's grant of authority for military operations is based upon Iraq's sovereignty,
which includes the right to consent to the presence of the U.S. military and to allow the
United States to conduct military operations that comply with international and
domestic Iraqi law. This differs from the U.N. Security Council's Chapter VII
authorization to the multinational force to "take all necessary measures to contribute to
the maintenance of security and stability in Iraq." Now, instead of U.S. Forces operating
unilaterally, subject only to multinational force regulations and rules, their operations
must be . . . "conducted with the agreement of the Government of Iraq" and, in fact,
must "be fully coordinated with Iraqi authorities." This coordination "shall be overseen
by a Joint Military Operations Coordination Committee [hereinafter JMOCC] to be
established pursuant to" the SA. Lastly, military operations "shall not infringe upon the
sovereignty of Iraq and its national interests, as defined by the Government of Iraq."

The practical reality of these limitations is that U.S. commanders must work "by, with,
and through" the Iraqis and develop processes for obtaining the appropriate Iraqi
operating authorities. Preferably this cooperation and coordination is occurring at the
lowest levels through U.S. commanders' relationships with the GOI and Iraqi Security
Forces (ISF) leadership. However, the exact level of mission coordination required by
Article 4 may prove to be a significant friction point between the United States and Iraq.
For instance, in April 2009, U.S. Forces conducted a raid in Wasit province that left two
Iraqis dead and resulted in the detention of six men. The raid "set off public protests
and drew a pointed complaint from Prime Minister Nuri Kamal al-Maliki that the
operation violated [the SA]." U.S. Forces issued a statement that "the raid had been
'fully coordinated and approved' by the Iraqi government." At the same time, "the Iraqi
Defense Ministry announced it had detained two top Iraqi military officials in Wasit
province for authorizing the American raid without obtaining approval from their
commanders." This incident illustrates the difficulties of coordination, but despite the
inherent challenges in such processes, the transition of security responsibilities to the
ISF is a necessary part of creating a stable Iraq in which the ISF assumes the major role
for defending the nation.

Rush, supra note 100, at 38-40.

111. Mat 60.

112. Article 24 of the SA, supra note 97, reads as follows:

John K Murphy

Article 24
Withdrawal of the United States Forces from Iraq

Recognizing the performance and increasing capacity of the Iraqi Security Forces, the
assumption of full security responsibility by those Forces, and based upon the strong
relationship between the Parties, an agreement on the following has been reached:

1. All the United States Forces shall withdraw from all Iraqi territory no later than
December 31, 201 1.

2. All United States combat forces shall withdraw from Iraqi cities, villages, and
localities no later than the time at which Iraqi Security Forces assume full responsibility
for security in an Iraqi province, provided that such withdrawal is completed no later
than June 30, 2009.

3. United States combat forces withdrawn pursuant to paragraph 2 above shall be
stationed in the agreed facilities and areas outside cities, villages, and localities to be
designated by the JMOCC [Joint Military Operations Coordination Committee] before
the date established in paragraph 2 above.

4. The United States recognizes the sovereign right of the Government of Iraq to
request the departure of the United States Forces from Iraq at any time. The
Government of Iraq recognizes the sovereign right of the United States to withdraw the
United States Forces from Iraq at any time.

5. The Parties agree to establish mechanisms and arrangements to reduce the number
of the United States Forces during the periods of time that have been determined, and
they shall agree on the locations where the United States Forces will be present.

113. See Youchi J. Dreazen, U.S. General Says Iraq Exit Is on Track, WSJ.COM, Sept. 30, 2009,
http://online.wsj.com/article/SB125426788854050939.html.

1 14. See Steven Lee Myers, National Unity is Rallying Cry in Iraq Elections, NEW YORK TIMES,
Oct. 1,2009, at Al.

115. See Thorn Shanker, U.S. General Says Iraq Troop Reductions May Quicken if Elections Go
Well, NEW YORK TIMES, Sept. 30, 2009, at A5.

116. Id.

PART III

THE LEGAL BASES FOR MILITARY
OPERATIONS

Ill

Legal Bases for Military Operations in Iraq

Raul A. "Pete" Pedrozo*

Introduction

On March 23, 2003 coalition forces invaded Iraq after it was found to be in
material breach of its obligations under numerous UN Security Council
resolutions. Less than two months later, on May 1, 2003, President Bush made his
historic "mission accomplished" speech from the flight deck of the USS Abraham
Lincoln, declaring that "major combat operations in Iraq have ended [and that] in
the battle of Iraq, the United States and our allies have prevailed." 1 Six years later,
US combat troops remain in Iraq fighting a violent insurgency. Although the situa-
tion has improved over the past year, President Obama has vowed to end US com-
bat operations no later than August 3 1 , 20 1 0. 2 Even if the President does not live up
to his campaign promise, all US forces must withdraw from Iraq no later than
December 31, 2011, unless otherwise authorized by the Iraqi government. 3 This
article will briefly discuss the legal bases for the invasion of Iraq in March 2003, the
legal bases for follow-on operations after May 1, 2003 and the characterization of
the conflict across the spectrum of operations.

Legal Bases for Launch of Operations

Justifications for Going to War

On March 23, 2003 US, British and other coalition forces invaded Iraq. The mili-
tary intervention was justified primarily along two lines: repeated Iraqi violations

* Associate Professor, International Law Department, US Naval War College.

Legal Bases for Military Operations in Iraq

of a number of United Nations Security Council resolutions and the right of self-
defense, and, to a lesser extent, humanitarian intervention. 4 While I tend to agree
with the UK Attorney General that the right of self-defense and the principle of hu-
manitarian intervention did not provide a sound legal basis for the invasion, 5 1 do
believe there was sufficient justification to attack Iraq based on its continuous and
flagrant disregard of its disarmament and other obligations under numerous Secu-
rity Council resolutions. It is true that weapons inspectors failed to find large quan-
tities of chemical and biological weapons following the invasion and that evidence
relied on by the United States and the United Kingdom to justify the invasion —
e.g., Iraqi ties to al-Qaeda, Iraq's pursuit of biological, chemical and nuclear weap-
ons programs, etc. — was subsequently shown to be based on fraudulent docu-
ments or unsubstantiated assertions of Iraqi defectors. 6 However, the fact remains
that, at the time of the invasion, Iraq was in breach of all fourteen of its weapons of
mass destruction (WMD) obligations set out in numerous Security Council reso-
lutions, as well as its obligations under Resolution 687 ( 1991 ) 7 to renounce terror-
ism; under Resolution 688 (1991) 8 to cease internal oppression of its civilian
population; under Resolutions 686 (1991), 9 687 and 1284 (1999) 10 to account for
Kuwaiti and third-country nationals wrongfully detained by Iraq; and Resolutions
686 and 687 to return all Kuwaiti property it had seized. 11

Iraq's Violations of Its Obligations under UN Security Council Resolutions

No one disagrees with the fact that Iraq flagrantly and repeatedly violated countless
Security Council resolutions, 12 as well as its obligations under various interna-
tional instruments, 13 and that it failed to cooperate with United Nations and Inter-
national Atomic Energy Agency (IAEA) weapons inspectors for more than two
decades. Four months after agreeing to the ceasefire terms in Resolution 687 that
ended the first Gulf War, Iraq commenced its pattern of noncompliance with the
ceasefire agreement and failure to fully cooperate with UN and IAEA weapons in-
spectors. 14 This pattern continued throughout the remainder of the decade, 15 cul-
minating in US and UK airstrikes against military targets in Iraq in December 1998
after the UN Special Commission (UNSCOM) submitted a report to the Security
Council indicating that Iraq had failed to cooperate fully with its inspectors. 16 Iraqi
officials did not allow weapons inspectors to return to Iraq until 2002. 17

Adoption of UN Security Council Resolution 1441 (2002)

In September 2002, Iraqi officials met with UN Monitoring, Verification and In-
spection Commission (UNMOVIC) 18 and IAEA officials to discuss the resump-
tion of weapons inspections in Iraq. During that meeting, Iraqi officials agreed to
accept "all the rights of inspection provided for in all of the relevant Security Council

Raul A. "Pete" Pedrozo

resolutions . . . [and that this] acceptance was stated to be without any conditions
attached." 19 Specifically, Iraq agreed that UNMOVIC and the IAEA would be
"granted immediate, unconditional and unrestricted access to sites" in Iraq. 20 On
October 8, 2002, UNMOVIC and the IAEA sent a letter to the government of Iraq
requesting that it confirm the terms of the inspection arrangements agreed to in
September. Concerned by the continued failure by Iraq to provide the requested
confirmation, the Security Council adopted Resolution 1441 on November 2, 2002
in order to afford Iraq "a final opportunity to comply with its disarmament obliga-
tions under relevant resolutions of the Council." 21 Two months later, in its Twelfth
Quarterly Report to the Security Council, UNMOVIC reported that Iraq had yet to
comply as required with its disarmament obligations. 22

The Need for Further Security Council Action?

In Resolution 1441 the Security Council decided, inter alia,

• That Iraq was in "material breach of its obligations under relevant
resolutions," including Resolution 687 (operative paragraph 1);

• To afford Iraq a "final opportunity to comply with its disarmament
obligations" under previous resolutions and establish an enhanced inspection
regime (operative paragraph 2);

• That "false statements or omissions in the declarations submitted by Iraq
pursuant to this resolution and failure by Iraq at any time to comply with and
cooperate fully in the implementation of this resolution shall constitute a further
material breach of Iraq's obligations and will be reported to the Council for
assessment in accordance with paragraphs 1 1 and 12" (operative paragraph 4);

• That "UNMOVIC and . . . IAEA . . . report immediately to the Council any
interference by Iraq with inspection activities, as well as any failure by Iraq to
comply with its disarmament obligations, including its obligations regarding
inspections under this resolution" (operative paragraph 11);

• To "convene immediately upon receipt of a report in accordance with
paragraph 4 or 1 1 . . ., in order to consider the situation and the need for full
compliance with all of the relevant Council resolutions in order to secure
international peace and security" (operative paragraph 12).

It is clear from the foregoing that even though Iraq was found to be in "material
breach" of its obligations under Resolution 687 and other relevant resolutions,
the Security Council did not intend that the use of force authorization in Resolu-
tion 678 should revive immediately, since Resolution 1441 afforded Iraq a "final
opportunity to comply with its disarmament obligations." 23 What is less clear is

Legal Bases for Military Operations in Iraq

whether paragraph 12 of 1441 required the Council to adopt a second resolution
before States could use force against Iraq. The US 24 and UK 25 ambassadors clearly
believed that a second resolution was not necessary. France, Russia, China, Ireland,
Mexico, Bulgaria, Colombia, Cameroon and Syria indicated that the use of force
had to be authorized by the Security Council. 26 A close analysis of the language in
the resolution, as well as that of previous resolutions, supports the US and British
position.

Resolution 687 "suspended, but did not terminate," the authority to use force in
Resolution 678. 27 Moreover, the ceasefire was conditioned on Iraqi compliance
with the obligations imposed by 687 and subsequent relevant resolutions. 28 In this
regard, the Security Council decided in Resolution 1441 that Iraq "has been and re-
mains in material breach of its obligations under relevant resolutions," including
687, and indicated that Iraq had "been warned repeatedly that 'serious conse-
quences'" would result from continued violations of its obligations. 29 Resolution
1441 also makes clear that compliance with its terms was Iraq's last chance before
the ceasefire resolution would be enforced should Iraq fail to comply with the en-
hanced inspection regime established by paragraphs 3 and 4. 30

Pursuant to paragraph 1 1 of 1441, UNMOVIC reported to the Security Council
in its Twelfth Quarterly Report in January 2003 that Iraq was not in compliance
with the disarmament obligations established in paragraphs 3 and 4 and other rele-
vant resolutions. 31 The Council then convened "in order to consider the situation
and the need for full compliance with all of the relevant Council resolutions in or-
der to secure international peace and security." 32 But does paragraph 12 require a
further Security Council resolution authorizing the use of force? I would suggest
that the answer to that question is "no."

Resolution 1441 does not indicate that the Security Council must "decide" what
action to take based on a report from UNMOVIC that Iraq is not in compliance
with its disarmament obligations. It simply requires that the Council "consider the
situation." There is a clear distinction between the meaning of "consider" and
"decide" in resolutions. 33 Note, for example, the language used in paragraph 33 of
Resolution 1874 (2009), condemning North Korea's nuclear test of May 25, 2009,
in which the Council specifically states "that further decisions will be required,
should additional measures be necessary." 34 Moreover, during the drafting of 1441
France and Russia proposed language that would have required the Security Coun-
cil to "decide" that subsequent Iraqi conduct amounted to a "material breach";
however, the proposal was rejected by the US and UK representatives precisely to
avoid the need for a second resolution. 35 The US delegation clearly indicated
throughout the debate "that they would not accept a text which subjected the use of
force to a further Council decision," arguing that the determination of "material

Raul A. "Pete" Pedrozo

breach" in paragraphs 1 and 4 of 1441 remained valid regardless of further Security
Council action. 36 Therefore, the French and other members of the Council knew
what they were voting for when they chose to use the word "consider" rather than
"decide" in paragraph 12. Additionally, the Security Council determination in Res-
olution 1137 (1997) that the situation in Iraq "continues to constitute a threat to
international peace and security" remained in effect. 37 Under these circumstances,
Iraq's failure to comply with the enhanced inspection regime established in 1441,
as reported by UNMOVIC, revived the use of force authorization contained in
Resolution 678. 38

Operation Desert Fox (1998)

It is also important to note that the United States and United Kingdom had taken a
similar position in 1998, when US and British forces conducted a series of airstrikes
against Iraqi military targets after an UNSCOM report clearly indicated that Iraq
had failed to keep its promises to cooperate fully with UNSCOM. 39 They justified
their action on Iraq's failure to cooperate fully with UNSCOM, arguing that Reso-
lution 687 (or any subsequent resolution) did not terminate the authority to use
force in Resolution 678, but, rather, only suspended that authority. 40 It was further
argued that a serious violation of Iraq's obligations under 687 that undermined the
basis of the ceasefire would revive the use offeree authorization in 678. 41 Portugal 42
and Japan 43 supported the US and UK position. Russia, China, France, Brazil,
Costa Rica, Kenya and Sweden disagreed, however, indicating that Security Council
action was necessary before military strikes could be conducted to enforce Resolu-
tion 687. 44 Slovenia, Gambia and Gabon voiced neither opposition to nor support
for the operation. 45 Under these circumstances, it should have come as no surprise
that the United States and United Kingdom would take military action independ-
ent of further Security Council action if Iraq did not comply with the terms of Res-
olution 1441.

Effect of Ceasefire Violations?

One additional point regarding whether a second resolution was required to au-
thorize the use of force against Iraq to implement Resolution 1441 also merits dis-
cussion. The ceasefire agreement established in Resolution 687 was between the
coalition forces and Iraq, not the United Nations and Iraq. In accordance with the
agreement and long-standing principles of international law reflected in the 1907
Hague Regulations, 46 the coalition agreed to suspend offensive military operations
against Iraq in exchange for Iraq's full compliance with the terms of the ceasefire
and its disarmament obligations under previous Security Council resolutions.
Once Iraq was found to be in material breach of the conditions of the ceasefire,

Legal Bases for Military Operations in Iraq

beginning with Resolution 707 in 1991 and culminating with Resolution 1441 in
2002, the coalition partners were free to nullify the ceasefire and rely on the use of
force authorization in Resolution 678 to resume hostilities against Iraq to enforce
Resolution 687 and restore international peace and security to the area. 47

Legal Bases for Follow-On Operations

Occupation and the Coalition Provisional Authority

President Bush declared an end to major combat operations on May 1, 2003. 48 One
week later, while avoiding the use of the term "occupying power," the member
States of the coalition created the Coalition Provisional Authority (CPA) on May 8,
2003 "to exercise powers of government temporarily, and, as necessary, ... to pro-
vide security, to allow the delivery of humanitarian aid, and to eliminate weapons
of mass destruction." 49 Specifically, the coalition partners, working through the
CPA, were to provide for security in Iraq, eliminate Iraq's WMD program, facili-
tate the return of refugees and displaced persons, maintain civil law and order,
eliminate all terrorist infrastructure and resources within Iraq and work to ensure
terrorists were denied safe haven, coordinate demining operations, promote ac-
countability for crimes and atrocities committed by the previous regime and as-
sume control of the institutions responsible for military and security matters. 50
The statuses of CPA, Multi-National Forces (MNF), foreign liaison missions, dip-
lomatic and consular missions and contractor personnel were governed by CPA
Order No. 17 (Revised). 51 Specifically, section 2 of the Order provided that the
MNF, CPA and foreign liaison mission personnel, as well as international consul-
tants, were "immune from Iraqi legal process" and were "subject to the exclusive
jurisdiction of their Sending State." Similarly, section 3 granted contractors immu-
nity, albeit more limited, for acts performed pursuant to the terms and conditions
of their contracts. Additionally, section 14 authorized the MNF and private secu-
rity company personnel to "possess and carry arms while on official duty in accor-
dance with their orders or under the terms and conditions of their contracts."
Similarly, diplomatic and consular personnel could carry arms while on official
duty if authorized by the ambassador or charge d'affaires of a sending State.

Consistent with the 1907 Hague Regulations, 52 1949 Geneva Convention Rela-
tive to the Protection of Civilian Persons 53 and 1977 Geneva Protocol I, 54 CPA Reg-
ulation No. 1 provided that the CPA would "exercise powers of government
temporarily in order to provide for the effective administration of Iraq . . ., to re-
store conditions of security and stability, [and] to create conditions in which the

Iraqi people can freely determine their own political future " Regulation 1 also

vested the CPA "with all executive, legislative and judicial authority necessary to

Raul A. "Pete" Pedrozo

achieve its objectives" and provided that Commander, US Central Command, as
the commander of coalition forces, would "directly support the CPA by deterring
hostilities; maintaining Iraq's territorial integrity and security; . . . destroying
weapons of mass destruction; and assisting in carrying out Coalition policy " 55

Security Council Resolution 1483 recognized the "special authorities, responsi-
bilities, and obligations under applicable international law of these states [the
United States and United Kingdom] as occupying powers" and called on the CPA
"to promote the welfare of the Iraqi people through the effective administration of
the territory, including in particular working towards the restoration of conditions
of security and stability and the creation of conditions in which the Iraqi people
can freely determine their own political future." 56 Resolution 1483 also supported
"the formation ... of an Iraqi interim administration as a transitional administra-
tion run by Iraqis, until an internationally recognized, representative government
is established by the people of Iraq and assumes the responsibilities of the
Authority."

On July 13, 2003, consistent with Resolution 1483, the CPA "recognized the
formation of the Governing Council as the principal body of the Iraqi interim ad-
ministration, pending the establishment of an internationally recognized, repre-
sentative government by the people of Iraq." 57 Section 2 of CPA Regulation No. 6
provided that "the Governing Council and the CPA shall consult and coordinate
on all matters involving the temporary governance of Iraq . . . ." The Security
Council welcomed the establishment of the Governing Council on August 14,
2003. 58 On June 1, 2004, the Governing Council was dissolved following the estab-
lishment of a sovereign Interim Government of Iraq. 59 The CPA officially ceased to
exist, and the occupation phase ended on June 30, 2004 when the Interim Govern-
ment of Iraq assumed full responsibility and authority for governing Iraq until an
elected transitional government of Iraq could assume office. 60

United Nations Mandate

In view of the increasingly unstable security conditions in Iraq, the Security Coun-
cil authorized a multinational force "to take all necessary measures to contribute to
the maintenance of security and stability in Iraq" and urged "Member States to

contribute . . . military forces to the multinational force " 61 This mandate was

reaffirmed by the Security Council on June 8, 2004 at the request of the Interim
Government of Iraq. 62 However, the Iraqi request did impose some conditions on
the MNF, to include

• The MNF and Iraqi security forces (ISF) would coordinate "on all security
policy and operations issues in order to achieve unity of command of military
operations" in which the ISF were engaged with the MNF.

Legal Bases for Military Operations in Iraq

• The MNF and Iraqi government leaders would "keep each other informed
of their activities, consult regularly to ensure effective allocation and use of
personnel, resources and facilities, [would] share intelligence, and [would] refer
issues up the respective chains of command where necessary."

• The ISF would progressively assume greater responsibility.

• The MNF would work with the Ministerial Committee for National Security
to "reach agreement on the full range of fundamental security and policy issues,
including policy on sensitive offensive operations, and . . . ensure full partnership
between MNF and Iraqi forces, through close coordination and consultation." 63

Operative paragraph 1 3 of Resolution 1 546 also established a new mission for
the MNF, the establishment of a separate organization under unified command of
the MNF with a dedicated mission to provide security for the United Nations As-
sistance Mission for Iraq, and paragraph 14 recognized that the MNF would also
assist in building the capacity of the ISF and institutions through a program of "re-
cruitment, training, equipping, mentoring and monitoring."

The Transitional National Assembly was elected on January 30, 2005 and the
draft constitution was approved by the Iraqi people on October 15, 2005. 64 Not-
withstanding these positive political developments, the Iraqi government recog-
nized that the ISF was not prepared to assume full responsibility for the security of
Iraq and requested that the UN extend the MNF mandate for another year in ac-
cordance with the tasks and arrangements outlined in Resolution 1546 (2004). 65
Accordingly, on November 8, 2005, the Security Council extended the mandate
(including participation in the provision of humanitarian and reconstruction as-
sistance) of the MNF until December 31, 2006. 66

The following month elections for a new Iraqi National Assembly were held
under the 2005 constitution and a new national unity government was formed in
May 2006. 67 Again, despite progress on the political front and the turnover of secu-
rity responsibilities to the ISF in Muthanna and Dhi Qar provinces, the Iraqi gov-
ernment renewed its request for military assistance on June 9, 2006 68 and
November 1 1, 2006, 69 and the Security Council extended the MNF's mandate for
another year. 70

UNMOVIC and IAEA mandates were terminated in June 2007 following a Se-
curity Council determination that Iraq was in compliance with its disarmament
obligations under relevant resolutions. 71 Five months later, on November 26, 2007,
the United States and Iraq issued a Declaration of Principles for a Long-Term Rela-
tionship of Cooperation and Friendship Between the Republic of Iraq and the
United States of America. 72 The United States agreed to provide "security assur-
ances and commitments to . . . Iraq to deter foreign aggression against Iraq" and

Raul A. "Pete" Pedrozo

support Iraq "in its efforts to combat all terrorist groups." 73 Iraq agreed to request
an extension of the MNF mandate "for a final time" 74 and on December 7, 2007
submitted a letter to the Security Council requesting an extension of the mandate
"one last time," subject to the following conditions:

• "The functions of recruiting, training, arming and equipping of the Iraqi
Army and . . . [ISF] are the responsibility of the Government of Iraq."

• "The Government of Iraq will assume responsibility for command and
control of all Iraqi forces, and MNF, in coordination with the Government of Iraq,
will provide support and backing to those forces."

• "The Government of Iraq will be responsible for arrest, detention and
imprisonment tasks. When those tasks are carried out by MNF-I, there will be
maximum levels of coordination, cooperation and understanding with the
Government of Iraq."

• "The Government of Iraq considers this to be its final request" for the
extension of the MNF mandate. 75

Following the signing of the Agreement Between the United States of America
and the Republic of Iraq on the Withdrawal of United States Forces from Iraq
(hereinafter US-Iraq security agreement), 76 the Prime Minister of Iraq informed
the Security Council on December 7, 2008 that the MNF mandate would terminate
on December 31, 2008. 77

US-Iraq Security Agreement

The US military presence and activities in Iraq are currently authorized by the US-
Iraq security agreement, which entered into force on January 1, 2009. Pursuant to
Article 24, all US forces shall be withdrawn from Iraq no later than December 31,
201 1. Article 24 also provides that all US combat forces were to be withdrawn from
Iraqi cities and villages when the ISF assumed full responsibility for security in an
Iraqi province or by June 30, 2009, whichever occurred first, and would be sta-
tioned in agreed facilities and areas designated by the Joint Military Operations
Coordination Committee (JMOCC). In addition, the government of Iraq will as-
sume full responsibility for the Green Zone, although it may request "limited and
temporary support" from the US forces to secure the zone. 78

While US forces may continue to engage in offensive military operations within
Iraq, their freedom to do so is limited by the security agreement. Article 4 autho-
rizes US forces to support Iraq "in its efforts to maintain security and stability in
Iraq, including cooperation in the conduct of operations against al-Qaeda and
other terrorist groups, outlaw groups, and remnants of the former regime." Arti-
cle 4 further specifies that all "military operations that are carried out pursuant to

Legal Bases for Military Operations in Iraq

this Agreement shall be conducted with the agreement of the Government of Iraq"
and "shall be fully coordinated with Iraqi authorities." Any disagreement regard-
ing a proposed military operation that cannot be resolved by the JMOCC shall be
forwarded to the Joint Ministerial Committee for resolution. 79 US forces are also
prohibited from conducting a detention or arrest unless authorized or requested
by Iraqi officials, provided that any person detained or arrested by US forces must
be handed over to competent Iraqi authorities within twenty- four hours of the ar-
rest or detention. 80 Additionally, Article 22 prohibits US forces from searching a
house or other property "except by order of an Iraqi judicial warrant and in full co-
ordination with the Government of Iraq," except in the case of combat operations
authorized by Article 4 of the security agreement.

Notwithstanding these provisions, US forces retain the right of self-defense 81
and are authorized to carry weapons owned by the United States "according to the
authority granted to them under orders and according to their requirements and
duties." 82 The United States retains the primary right to exercise criminal jurisdic-
tion over US forces, including the civilian component, for "matters arising inside
agreed facilities and areas; during duty status outside agreed facilities and areas."
Iraq has primary jurisdiction over "grave premeditated felonies . . . when such
crimes are committed outside agreed facilities and areas outside duty status." 83
With that exception, the United States has primary jurisdiction over members of
the force even for crimes committed outside agreed facilities and areas and even if
the member is not in a duty status. Iraq does have the primary right to exercise ju-
risdiction over US contractors and their employees. 84

In addition to authorizing US military operations in Iraq, the US-Iraq security
agreement provides for more traditional security assistance activities. In this re-
gard, Article 4 provides that US forces shall continue to "cooperate to strengthen
Iraq's security capabilities including, as may be mutually agreed, on training, equip-
ping, supporting, supplying, and establishing and upgrading logistical systems, in-
cluding transportation, housing and supplies" for the ISF. Similarly, Article 27
provides that the parties "agree to continue close cooperation in strengthening and
maintaining military and security institutions ... in Iraq, including, as may be mu-
tually agreed, cooperation in training, equipping, and arming . . ." the ISF upon the
request by the Iraqi government. Article 27 also provides that, in the event of an ex-
ternal or internal threat or aggression against Iraq and upon the request of the Iraqi
government, the "Parties shall immediately initiate strategic deliberations and, as
may be mutually agreed, the United States shall take appropriate measures, includ-
ing diplomatic, economic, or military measures, or any other measure, to deter
such a threat."

Raul A. "Pete" Pedrozo

It has been argued by some that the US-Iraq security agreement is invalid be-
cause the domestic legal authority to engage in military operations in Iraq expired
on December 31, 2008. 85 Section 3 of Congress's 2002 Joint Resolution to Autho-
rize the Use of Military Force Against Iraq 86 authorizes the President to use the US
armed forces to (1) defend US national security against the continuing threat
posed by Iraq and (2) enforce all relevant Security Council resolutions regarding
Iraq. However, in November 2008 the United States agreed that Iraq's designation
as a threat to international peace and security would end on December 31, 2008, 87
contemporaneously with the expiration of the MNF mandate. Consequently, the
authority to use force under the 2002 Joint Resolution has expired. Of course, this
argument has merit only if you subscribe to the position that the President does not
have the constitutional authority to deploy US forces abroad without the concur-
rence of Congress.

It should also be noted that a bill was introduced in the US House of Representa-
tives on January 8, 2009 that would invalidate the US-Iraq security agreement. 88
H.R. 335, which is currently in committee, provides in section 3 that any agree-
ment that sets out broad parameters for the overall bilateral relationship between
the United States and Iraq should "involve a joint decision by the executive and
legislative branches." Section 6 goes on to prohibit the entry into force of any
agreement between the United States and Iraq that contains a security commit-
ment or security arrangement, as well as the obligation or expenditure of funds to
implement such an agreement, unless the agreement has been authorized by a sub-
sequent law or has the advice and consent of the Senate. The proposed legislation is
based on a faulty premise that the President cannot enter into a bilateral agreement
without the advice and consent of the Senate. Clearly, executive agreements have
the same legal effect under US law as a treaty that has received Senate advice and
consent. 89 However, should such a law be enacted in conjunction with legislation
that restricts the expenditure of Department of Defense appropriations to fund
military activities under the security agreement, the status of US personnel in Iraq
would be in question.

Characterization of the Conflict

Without question, the invasion of Iraq by coalition forces in March 2003 was an in-
ternational armed conflict, which quickly transitioned into a period of belligerent
occupation in May 2003. 90 With the disestablishment of the CPA in June 2004, the
occupation period ended; however, a violent insurgency quickly evolved. As a result,
coalition forces remained in Iraq at the request of the Iraqi government to help
suppress the insurgency and restore international peace and security. 91 During this

Legal Bases for Military Operations in Iraq

period was the coalition engaged in a non-international armed conflict or an inter-
national armed conflict? There was significant international involvement in the in-
surgency, but coalition forces were not fighting against the government of Iraq.
From a US perspective, does it really matter? US policy applies the laws of war to all
armed conflicts, regardless of how they are characterized, and to all other military
operations. 92 From a practicable point of view, the real question is: does human
rights law applicable during a non- international armed conflict provide greater
protection to combatants and noncombatants than is afforded to these individuals
under international humanitarian law applicable during an international armed
conflict? I would suggest that the answer to that question is "no." The protections
afforded to combatants and noncombatants under both bodies of law are qualita-
tively and quantitatively alike.

Conclusion

The invasion of Iraq on March 20, 2003 clearly constituted a short-lived interna-
tional armed conflict between the States of the Multi-National Forces and Iraq.
Whether the United States can justify the military intervention on the grounds of
self-defense and/or humanitarian intervention is questionable; however, there is
no doubt that Iraq failed to fully cooperate with the United Nations and Interna-
tional Atomic Energy Agency, and was in material breach of its obligations under
at least twenty-five Security Council resolutions covering two decades. Although
Resolution 1441 could have been clearer, it did not specifically indicate that a fur-
ther decision would be required should additional measures be necessary if Iraq
failed to comply with its terms. In fact, efforts by France and Russia to include such
a requirement failed in the Security Council. Additionally, traditional armistice
law would support the resumption of hostilities by coalition forces. Under these
circumstances, Iraq's violation of its obligations under Resolution 1441 and the
Resolution 687 ceasefire agreement revived the use of force authorization con-
tained in Resolution 678 and provided a sufficient legal basis for coalition forces to
conduct offensive military operations against Iraq.

The international armed conflict quickly transformed into a period of belligerent
occupation that began on May 8, 2003 with the establishment of the CPA. Although
the occupation phase ended on June 30, 2004 when the CPA was disestablished and
the Interim Government of Iraq assumed full authority for governing Iraq, coali-
tion forces and the ISF remained engaged in an armed conflict with the insurgents.
Whether that conflict should be characterized as non- international or interna-
tional is a matter of academic debate, but has little practical effect on the way US
forces conduct themselves on the battlefield.

Raul A. "Pete" Pedrozo

The continued presence of the MNF during this phase of the conflict was at the
request of the government of Iraq and was authorized by Security Council Resolu-
tions 1511, 1546, 1637, 1723 and 1790. Each of these resolutions incrementally re-
duced the authority of the MNF to engage in offensive military operations without
coordination with the government of Iraq. With the expiration of the UN mandate
on December 31, 2008 and the entry into force of the US-Iraq security agreement
on January 1, 2009, US military activities have been further limited. It will be inter-
esting to see if the security agreement stands the test of time and survives US con-
gressional scrutiny, and whether the President vetoes any legislation that would
purport to invalidate it.

Notes

1 . David Sanger, Bush calls military phase over; He says defeat of Saddam has removed "ally of
Al Qaeda," INTERNATIONAL HERALD TRIBUNE, May 3, 2003, at 3.

2. Christina Bellantoni, Obama outlines withdrawal from Iraq: Most troops will be out by Au-
gust 2010, WASHINGTON TIMES, Feb. 28, 2009, at AOl, available arhttp://www.washingtontimes
.com/news/2009/feb/28/obama-outlines-withdrawal-from-iraq/.

3. Agreement Between the United States of America and the Republic of Iraq on the With-
drawal of United States Forces from Iraq and the Organization of Their Activities during Their
Temporary Presence in Iraq art. 24(1), Nov. 17, 2008, available at http://graphics8.nytimes.com/
packages/pdf/world/20081 1 19_SOFA_FINAL_AGREED_TEXT.pdf [hereinafter US-Iraq Secu-
rity Agreement].

4. The legal justification for the invasion is discussed in recently released documents from
the US Department of Justice, including two opinions from the Office of Legal Counsel. See Jay S.
Bybee, Memorandum Opinion for the Counsel to the President, Authority of the President Un-
der Domestic and International Law to Use Military Force Against Iraq (Oct. 23, 2002), http://
www.usdoj.gov/olc/2002/iraq-opinion-final.pdf [hereinafter Authority of the President]; John
C. Yoo, Memorandum Opinion for the Counsel to the President, Effect of a Recent United Nations
Security Council Resolution on the Authority of the President Under International Law to Use
Military Force Against Iraq (Nov. 8, 2002), http://www.usdoj.gov/olc/2002/iraq-unscr-final.pdf.
See also Letter dated March 20, 2003 from the Permanent Representative of the United States of
America to the President of the United Nations Security Council, U.N. SCOR, 58th Sess., U.N.
Doc. S/2003/35 1(2003).

Reasons enumerated by Congress in the legislation that authorized the use of force against
Iraq can be found in Authorization for Use of Military Force Against Iraq Resolution of 2002,
Pub. L. No. 107-243, 116 Stat. 1498 (2002), reprinted in 41 INTERNATIONAL LEGAL MATERIALS
1440 (2002) [hereinafter Authorization for Use of Military Force], and include

• Iraq posed a continuing threat to the national security of the United States and
international peace and security in the Persian Gulf region.

• Iraq remained in material breach and unacceptable breach of its international
obligations by continuing to possess and develop a WMD capability, actively
seeking a nuclear weapons capability, and supporting and harboring terrorist
organizations.

Legal Bases for Military Operations in Iraq

• Iraq persisted in violating Security Council resolutions by continuing to
engage in brutal repression of its civilian population; by refusing to release,
repatriate or account for non-Iraqi citizens wrongfully detained by Iraq; and by
failing to return property wrongfully seized by Iraq from Kuwait.

• The Iraqi regime had demonstrated its capability and willingness to use WMD
against other nations and its own people.

• The Iraqi regime had demonstrated its continuing hostility toward, and
willingness to attack, the United States, including by attempting in 1993 to
assassinate former President Bush and by firing on thousands of occasions on US
and coalition forces engaged in enforcing Security Council resolutions.

• Members of al-Qaeda were known to be in Iraq.

• Iraq continued to aid and harbor other international terrorist organizations,
including organizations that threaten the lives and safety of US citizens.

• The September 1 1 , 200 1 attacks on the United States underscored the gravity of
the threat posed by the acquisition of WMD by international terrorist
organizations.

• Iraq had demonstrated the capability and willingness to use WMD and there
was a risk Iraq would either employ those weapons against the United States or its
armed forces, or provide them to international terrorists who would do so.

• Security Council Resolution 678 authorized the use of all necessary means to
enforce Resolution 660 and subsequent relevant resolutions and to compel Iraq
to cease certain activities that threatened international peace and security,
including the development of WMD, refusal or obstruction of UN weapons
inspections in violation of Resolution 687, repression of its civilian population in
violation of Resolution 688, and threatening its neighbors or UN operations in
Iraq in violation of Resolution 949.

Reasons articulated by the UK government can be found at Foreign and Commonwealth
Office, Iraq, http://collections.europarchive.org/tna/20080205132101/www.fco.gov.uk/servlet/
Front%3Fpagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid= 10687 1680 1627 (last visited
Aug. 3, 2009) [hereinafter Iraq Military Action]. These include

• During the four months following the adoption of Resolution 1441, Iraq
"failed to answer a single outstanding question about its WMD programmes, or
resolve any outstanding issues as requested by the UN."

• Iraq failed to account for thousands of tons of chemical and biological weapons
materials left unaccounted for when UN weapons inspectors were forced to leave
in 1998.

• Iraq's refusal to cooperate with the UN left the United Kingdom no option but
"to take military action to enforce Iraq's disarmament obligations" pursuant to
the relevant Security Council resolutions.

• "Authority to use force against Iraq derived from the combined effect of
Resolutions 678, 687 and 1441 without the need for another resolution.

5. Attorney General Note to the Prime Minister (Mar. 7, 2003), http://collections
.europarchive.org/tna/20080205132101/number-10.gov.uk/output/Page7445.asp.

6. See, e.g., Select Committee on Intelligence, Postwar Findings about Iraq's WMD Pro-
grams and Links to Terrorism and How They Compare with Prewar Assessments, S. Rep. No.
109-331 (2006); INSTITUTE FOR DEFENSE ANALYSES, IRAQI PERSPECTIVES PROJECT, SADDAM
AND TERRORISM: EMERGING INSIGHTS FROM CAPTURED IRAQI DOCUMENTS (2007), available at
http://www.fas.org/irp/eprint/iraqi/index.html; CHARLES DUELFER, COMPREHENSIVE REPORT

Raul A. "Pete" Pedrozo

of the Special Advisor to the Director of Central Intelligence on Iraq's WMD
(2004), available at https://www.cia.gov/library/reports/general-reports-l/iraq_wmd_2004/
index.html.

7. S.C Res. 687, U.N. Doc. S/RES/687 (Apr. 3, 1991).

8. S.C. Res. 688, U.N. Doc. S/RES/688 (Apr. 5, 1991).

9. S.C. Res. 686, U.N. Doc. S/RES/686 (Mar. 2, 1991).

10. S.C. Res. 1284, U.N. Doc. S/RES/1284 (Dec. 17, 1999).

11. See, e.g., Iraq Military Action, supra note 4; S.C. Res. 1284, supra note 10, paras. 7 & 8;
S.C. Res. 1441, para. 8, U.N. Doc. S/RES/1441 (Nov. 8, 2002).

12. Iraqi violations included:

• Security Council Resolution 660 (Aug. 2, 1990) demands Iraq's withdrawal
from Kuwait.

• Security Council Resolution 661 (Aug. 6, 1990) imposes economic sanctions
on Iraq for its failure to comply with Resolution 660.

• Security Council Resolution 662 (Aug. 9, 1990) demands once again that Iraq
withdraw from Kuwait.

• Security Council Resolution 664 (Aug. 18, 1990) demands Iraq take no action
to harm third-State nationals in Kuwait.

• Security Council Resolution 665 (Aug. 25, 1990) imposes a maritime blockade
of Iraq for its failure to comply with Resolutions 660, 661, 662 and 664.

• Security Council Resolution 666 (Sept. 13, 1990) reaffirms Iraq's obligations
under Resolution 664 with regard to third- State nationals.

• Security Council Resolution 667 (Sept. 16, 1990) condemns aggressive acts
perpetrated by Iraq against diplomatic premises and personnel in Kuwait,
including the abduction of foreign nationals, and demands their immediate
release.

• Security Council Resolution 670 (Sept. 25, 1990) condemns Iraq for its
continued violation of Resolutions 660, 662, 664 and 667 and the treatment of
Kuwaiti nationals by Iraqi forces, and enhances economic sanctions imposed by
Resolution 661.

• Security Council Resolution 674 (Oct. 29, 1990) demands Iraq cease and desist
from taking third-State nationals hostage, and mistreating and oppressing
Kuwaiti and third-State nationals, and comply with its obligations under various
international agreements regarding third-State nationals and diplomatic and
consular missions.

• Security Council Resolution 677 (Nov. 28, 1 990) condemns attempts by Iraq to
alter the demographic composition of Kuwait and to destroy civil records
maintained by the government.

• Security Council Resolution 678 (Nov. 29, 1990) affords Iraq one last
opportunity to comply fully with Security Council Resolution 660 and all
subsequent relevant resolutions, and authorizes member States to use all
necessary means to uphold and implement Resolution 660 and all subsequent
relevant resolutions and to restore international peace and security in the area.

• Security Council Resolution 687 (Apr. 3, 1991) suspends Resolution 678 by
declaring a formal ceasefire between Iraq and Kuwait and the member States
cooperating with Kuwait; decides that Iraq shall unconditionally accept the
destruction, removal or rendering harmless, under international supervision, of
all chemical and biological weapons and all stocks of agents and related

Legal Bases for Military Operations in Iraq

subsystems and components and all research, development, support and
manufacturing facilities, and all ballistic missiles with a range greater than 150
kilometers and related major parts and repair and production facilities; decides
that Iraq shall unconditionally agree not to acquire or develop nuclear weapons
or nuclear-weapons-usable material or any subsystems or components of any
research, development, support or manufacturing facilities; and requires Iraq to
inform the Security Council that it will not commit or support any act of
international terrorism or allow any terrorist organization to operate within its
territory.

• Security Council Resolution 688 (Apr. 5, 1991) condemns, and demands that
Iraq end, the repression of the Iraqi civilian population, including the Kurds.

• Security Council Resolution 707 (Aug. 15, 1991) affirms Iraq is in material
breach of Resolution 687; condemns Iraq for failing to comply with the terms of
the ceasefire agreement and cooperate with the UN Special Commission and
IAEA inspectors; and requires Iraq to comply fully and without delay with all its
obligations, including Resolution 687.

• Security Council Resolution 715 (Oct. 11, 1991) demands that Iraq meet
unconditionally all its obligations under the plans approved in the resolution and
cooperate fully with the UN Special Commission and the IAEA.

• Security Council Resolution 949 (Oct. 15, 1994) condemns Iraq's military
deployment in the direction of the border with Kuwait, and demands the
immediate withdrawal of all forces and that Iraq not take any other action to
enhance its military capacity in southern Iraq.

• Security Council Resolution 1060 (June 12, 1996) deplores the refusal by Iraq
to allow access to sites designated by the UN Special Commission and in violation
of Resolutions 687, 707 and 715, and demands Iraq cooperate fully with the UN
Special Commission and allow inspection teams immediate, unconditional and
unrestricted access to anything they wish to inspect.

• Security Council Resolution 1115 (June 21, 1997) condemns the repeated
refusal of Iraq to allow access to sites designated by the UN Special Commission,
in violation of Resolutions 687, 707, 715 and 1060, and demands that Iraq
cooperate fully with the UN Special Commission and allow inspection teams
immediate, unconditional and unrestricted access to anything they wish to
inspect.

• Security Council Resolution 1134 (Oct. 23, 1997) condemns the repeated
refusal of Iraq to allow access to sites designated by the UN Special Commission,
actions by Iraq endangering the safety, and interfering with the freedom of
movement, of UN Special Commission personnel and the removal and
destruction of documents of interest to the UN Special Commission; decides Iraq
is in flagrant violation of Resolutions 687, 707, 715 and 1060; and demands that
Iraq fully cooperate with the UN Special Commission and allow the inspection
teams immediate, unconditional and unrestricted access to anything they wish to
inspect and personnel they wish to interview.

• Statement by the President of the Security Council (Oct. 29, 1997) condemns
the October 29 decision of Iraq to try to dictate the terms of its compliance with
its obligations to cooperate with the UN Special Commission, demands that Iraq
cooperate fully without conditions or restrictions with the UN Special

Raul A. "Pete" Pedrozo

Commission, and reminds Iraq of its responsibility for the safety and security of
the personnel of the UN Special Commission.

• Security Council Resolution 1137 (Nov. 12, 1997) determines that the
situation continues to constitute a threat to international peace and stability;
condemns the continued violations by Iraq of its obligations to cooperate fully
and unconditionally with the UN Special Commission, including Iraq's October
29 decision to seek to impose conditions on cooperation with the UN Special
Commission, its refusal on October 30 and November 2 to allow entry to two
officials of the UN Special Commission, its denial of entry to inspectors on
November 3-7 to sites designated by the UN Special Commission for inspection,
its implicit threat to the safety of surveillance aircraft operating on behalf of the
UN Special Commission, its removal of significant pieces of dual-use equipment
from their previous sites, and its tampering with monitoring cameras of the UN
Special Commission; demands that Iraq rescind immediately its October 29
decision; demands that Iraq cooperate fully and immediately and without
condition or restrictions with the UN Special Commission; imposes travel
restrictions on Iraqi officials responsible for these violations; and reaffirms Iraq's
responsibility to ensure the safety and security of the personnel and equipment of
the UN Special Commission.

• Statement of the President of the Security Council (Nov. 13, 1997) condemns
the unacceptable decision of Iraq to expel personnel of the UN Special
Commission, demands the immediate and unequivocal revocation of this action
and demands that Iraq comply immediately and fully with its obligations under
the relevant resolutions.

• Statement of the President of the Security Council (Jan. 14, 1998) deplores
Iraq's statement of January 12 and its subsequent failure to fulfill its obligations to
provide the UN Special Commission full, unconditional and immediate access to
all sites, which is a clear violation of relevant resolutions, and reiterates the
demand that Iraq cooperate fully and immediately and without conditions or
restrictions with the UN Special Commission.

• Security Council Resolution 1154 (Mar. 2, 1998) endorses the February 23,
1998 memorandum of understanding between the Deputy Prime Minister of Iraq
and the Secretary-General and looks forward to its early and full implementation.

• Security Council Resolution 1194 (Sept. 9, 1998) condemns the decision of
Iraq of August 5, 1998 to suspend cooperation with the UN Special Commission
and the IAEA, which constitutes a totally unacceptable contravention of its
obligations under Resolutions 687, 707, 715, 1060, 1115 and 1154 and the
Memorandum of Understanding signed by the Deputy Prime Minister of Iraq
and the Secretary-General on February 23, 1998.

• Security Council Resolution 1205 (Nov. 5, 1998) condemns the decision by
Iraq of October 31, 1998 to cease cooperation with the UN Special Commission
as a flagrant violation of Resolution 687 and other relevant resolutions; demands
that Iraq rescind immediately and unconditionally the decision of October 3 1, as
well as the decision of August 5, 1998, to suspend cooperation with the UN
Special Commission and to maintain restrictions on the work of the IAEA; and
demands that Iraq provide immediate, complete and unconditional cooperation
with the UN Special Commission and the IAEA.

Legal Bases for Military Operations in Iraq

• Security Council Resolution 1284 (Dec. 17, 1999) recalls that Iraq has not yet
complied with its obligations under Resolutions 686 and 687 to return all Kuwaiti
and third-country nationals present in Iraq and to return all Kuwaiti property it
had seized, and established the United Nations Monitoring, Verification and
Inspection Commission (UNMOVIC) to replace the UN Special Commission.

• Security Council Resolution 1441 (Nov. 8, 2002) deplores that Iraq failed to
cooperate fully with UNSCOM and the IAEA; deplores that Iraq failed to comply
with its commitments in Resolution 687 with regard to terrorism, Resolution 688
to end repression of its civilian population, and Resolutions 686, 687 and 1284 to
account for Kuwaiti and third-country nationals; decides that Iraq remains in
material breach of its obligations under relevant resolutions through its failure to
cooperate with UNSCOM and IAEA inspectors and to complete actions required
by Resolution 687; decides to afford Iraq, by this resolution, a final opportunity to
comply with its disarmament obligations under relevant resolutions; decides that
Iraq shall provide UNMOVIC, the IAEA and the Security Council within thirty
days a currently accurate, full and complete declaration of all aspects of its WMD
and ballistic missile programs; decides that false statements or omissions in the
declarations submitted by Iraq and failure by Iraq at any time to comply with and
cooperate fully in the implementation of this resolution shall constitute a further
material breach of Iraq's obligations; decides that Iraq will provide UNMOVIC
and the IAEA immediate, unimpeded, unconditional and unrestricted access to
anything they wish to inspect or any persons they wish to interview; directs
UNMOVIC and the IAEA to report immediately to the Council any interference
with inspection activities or Iraq's failure to comply with its disarmament
obligations; and decides to convene immediately upon receipt of a report of
noncompliance in order to consider the situation.

13. E.g., U.N. Charter; Convention Relative to the Protection of Civilian Persons in Time of
War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, reprinted in DOCUMENTS ON THE LAWS OF
WAR 301 (Adam Roberts & Richard Guelff eds., 3d ed. 2000) (treatment of Kuwaiti nationals by
Iraqi forces during its occupation in 1990) [hereinafter Geneva Convention IV]; Vienna Con-
vention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 (Iraqi acts
against diplomatic premises and personnel in Kuwait); Vienna Convention on Consular Rela-
tions, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (Iraqi acts against diplomatic and consular
missions in Kuwait); Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous
or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, T.I.A.S.
8061, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra, at 158 (Iraq made statements
threatening to use chemical and biological weapons and used chemical weapons on prior occa-
sions); Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 U.S.T. 483, 729
U.N.T.S. 161 (Iraq made attempts to acquire materials for a nuclear weapons program).

14. S.C. Res. 707, U.N. Doc. S/RES/707 (Aug. 15, 1991).

15. Joint Resolution, Iraq Compliance with International Obligations, Pub. L. No. 105-235,
112 Stat. 1538 (1998); Iraq Liberation Act of 1998, Pub. L. No. 105-338, 112 Stat. 3178 (1998);
Authorization for Use of Military Force, supra note 4. Examples of Iraq's continuing material
breach of its obligations under relevant Security Council resolutions include:

• August 1991 — Iraq failed to comply with the terms of the ceasefire agreement
and cooperate fully with UN and IAEA inspectors.

• January/February 1992 — Iraq rejected plans to install long-term monitoring
equipment and cameras called for in Security Council resolutions.

Raul A. "Pete" Pedrozo

• February 1992 — Iraq continued to obstruct the installation of monitoring
equipment and failed to comply with UNSCOM orders to allow destruction of
missiles and other proscribed weapons.

• July 1992 — Iraq denied UNSCOM inspectors access to the Iraqi Ministry of
Agriculture.

• December 1992 — Iraq violated the southern no-fly zone, raided a weapons
depot in Kuwait and denied landing rights to a plane carrying UN weapons
inspectors.

• April 1993 — Iraq orchestrated a failed plot to assassinate former President
George Bush during his visit to Kuwait.

• June 1993 — Iraq prevented UNSCOM's installation of cameras and
monitoring equipment.

• October 1 994 — Iraq threatened to end cooperation with weapons inspectors if
sanctions were not ended and massed ten thousand troops along the border with
Kuwait.

• April 1995 — UNSCOM reported that Iraq had concealed its biological
weapons program and had failed to account for seventeen tons of biological
weapons material.

• April 1995 — Iraq continued repression of its civilian population, including the
Kurds.

• July 1995 — Iraq threatened to end cooperation with UNSCOM.

• March 1996 — Iraq barred UNSCOM inspectors from sites containing
documents and weapons on four separate days.

• June 1996 — Iraq repeatedly barred UNSCOM inspectors from military sites.

• August 1996 — Iraqi troops overran Irbil in Iraqi Kurdistan.

• December 1996 — Iraq prevented UNSCOM from removing 130 Scud missile
engines from Iraq for analysis.

• April 1997 — Iraq violated the southern no-fly zone.

• June 1997 — Iraqi officials on board UNSCOM aircraft interfered with the
controls and inspections, endangering inspectors and obstructing the UNSCOM
mission.

• September 1997 — an Iraqi official attacked UNSCOM officials engaged in
photographing illegal Iraqi activities.

• October 1997 — Iraq announced that it would no longer allow US inspectors
working with UNSCOM to conduct inspections in Iraq, blocked UNSCOM
teams containing US inspectors from conducting inspections and threatened to
shoot down US U-2 surveillance flights in support of UNSCOM.

• November 1997 — Iraq expelled US inspectors from Iraq, leading to
UNSCOM's decision to pull out its remaining inspectors.

• January 1998 — an UNSCOM team led by an American was barred from
conducting inspections.

• June 1998 — the UNSCOM director presented information to the Security
Council indicating clearly that Iraq, in direct contradiction to information
provided to UNSCOM, had a weaponized nerve agent.

• August 1998 — Iraq ceased all cooperation with UNSCOM and threatened to
end long-term monitoring activities by the IAEA and UNSCOM.

• October 1998 — UN weapons inspectors were withdrawn from Iraq.

Legal Bases for Military Operations in Iraq

• December 1998 — Iraq ceased all cooperation with UNSCOM and IAEA
inspectors, and did not agree to allow inspectors to return until 2002.

• November 2002 — Iraq failed to provide complete disclosure of its WMD
programs and to cooperate fully with weapons inspectors.

16. S.C. Res. 1441, supra note 11.

17. Id.

18. UNMOVIC was the successor organization to UNSCOM and was established pursuant
to Security Council Resolution 1284 (1999).

19. S.C. Res. 1441, supra note 1 1, Annex.

20. Id.

21. Id.y operative para. 2.

22. Letter and enclosure from the Secretary of State for Foreign and Commonwealth Af-
fairs to Donald Anderson MP, Chair, Foreign Affairs Committee: Iraq: Legal Position Con-
cerning the Use of Force (Mar. 17, 2003), available at http://collections.europarchive.org/tna/
20080205132101/fco.gov.uk/Files/kfile/Iraq%20-%20use%20of%20force.pdf [hereinafter Sec-
retary of State letter],

23. S.C. Res. 1441, supra note 11, operative paras. 1 & 2.

24. The US ambassador to the United Nations indicated that

if there is a further Iraqi breach, reported to the council by UNMOVIC, the IAEA, or a

Member State, the matter will return to the council for discussion But if the Security

Council fails to act decisively in the event of further Iraqi violations, this resolution does
not constrain any member state from acting to defend itself against the threat posed by
Iraq or to enforce the relevant United Nations resolutions and protect world peace and
security.

WorldPress.org, The United Nations, International Law, and the War in Iraq, http://www

.worldpress.org/specials/iraq/ (last visited Aug. 3, 2009).

25. The UK government was of the opinion that, although a second resolution would have
been desirable, it was not a legal prerequisite ("all that was required was reporting to and discus-
sion by the Security Council of Iraq's failures, but not an express further decision to authorize
force"). Iraq Military Action, supra note 4.

26. The French ambassador indicated that "a two-stage approach would ensure that the Se-
curity Council would maintain control of the process at each stage." The Russian representative
"made clear that the resolution just adopted contains no provisions for the automatic use of
force " The Chinese delegate agreed with the French, indicating that "China supports the two-
stage approach." The Irish delegate stated that "it is for the Council to decide on any ensuring ac-
tion." The Mexican ambassador agreed, saying "that the use of force is valid only . . . with prior
explicit authorization required from the Security Council." The Bulgarian delegate said that the
"resolution is not a pretext for automatic recourse to the use of force." The Colombian represen-
tative agreed, indicating that the "resolution is not ... a resolution to authorize the use of force."
The Cameroonian ambassador stated that the "resolution does not contain traps or
automaticity." The Syrian ambassador said that "the resolution should not be interpreted ... as
authorizing any State to use force . . . [and that] it reaffirms the central role of the Security Coun-
cil." The United Nations, International Law, and the War in Iraq, supra note 24.

27. Attorney General Note to the Prime Minister, supra note 5, para. 7.

28. S.C. Res. 1441, supra note 1 1, para. 12.

29. According to the Attorney General:

The previous practice of the Council and statements made by Council members
during the negotiation of resolution 1441 demonstrate that the phrase "material

Raul A. "Pete" Pedrozo

breach" signifies a finding by the Council of a sufficiently serious breach of the cease-
fire conditions to revive the authorisation in resolution 678 and that "serious
consequences" is accepted as indicating the use of force.

Attorney General Note to the Prime Minister, supra note 5, para. 10.

30. Id., para. 12.

31. Secretary of State letter, supra note 22, para. 12.

32. Attorney General Note to the Prime Minister, supra note 5, para. 13.

33. Id., para. 15.

34. S.C. Res. 1874, U.N. Doc. S/RES/1874 (June 12, 2009).

35. Attorney General Note to the Prime Minister, supra note 5, para. 20.

36. Id., para. 22.

37. S.C. Res. 1137, para. 11, U.N. Doc. S/RES/1137 (Nov. 12, 1997).

38. If the United States and Great Britain made any diplomatic mistakes in the months lead-
ing up to the invasion, it was in introducing a draft resolution with Spain in February 2003 that
proposed realizable "tests and a timetable for completion of those tests." The draft also "sought
an understanding that, if Iraq failed those tests, it would not have taken the final opportunity"
that had been afforded to it under Resolution 1441. The Security Council was unable, however,
to reach consensus on the draft resolution, so it was tabled on February 24, 2003, with the United
States, the United Kingdom and Spain reserving "the right to take their own steps to secure the
disarmament of Iraq." Iraq Military Action, supra note 4.

In my opinion, these efforts weakened the US and UK position and bolstered the opposition's
argument that a second resolution was necessary to authorize the use offeree against Iraq for its
failure to comply with Resolution 1441. The US and UK efforts beg the question: if they really felt
that they had sufficient legal authority to conduct military operations against Iraq under 1441,
why did they seek a second resolution?

39. Press Release SC/66 1 1 , UN Security Council, Security Council Meets to Discuss Military
Strikes Against Iraq; Some Members Challenge Use of Force without Council Consent (Dec. 16,
1998), available at http://www.un.org/News/Press/docs/1998/19981216.sc661 l.html.

40. The US representative stated that US and British forces "were acting under the authority
provided by Council resolutions" and that the airstrikes were "undertaken only when it was evi-
dent that diplomacy had been exhausted." He further indicated that Iraq was aware of the Coun-
cil's conditions requiring "full, final and complete disclosure of all aspects of Iraq's programmes
to develop weapons of mass destruction," but that Iraq was repeatedly in flagrant material breach
of Council resolutions. Specifically, "by refusing to make available documents and information
requested by UNSCOM . . ., by imposing new restrictions on the weapons inspectors and by re-
peatedly denying access to facilities which UNSCOM wished to inspect, Iraq had acted in flagrant
material breach of resolution 687 (1991)." Id.

The UK representative indicated that Resolution 687 "had made it a condition of ceasefire
both that Iraq destroy its weapons of mass destruction and agree to the monitoring of its
obligation to destroy such weapons." He further reiterated that Iraq had never cooperated with
UNSCOM and had "concealed evidence, blocked inspections and failed to produce documents
relevant to its programmes of mass destruction weapons which were known to exist." Id.

41. Attorney General Note to the Prime Minister, supra note 5.

42. The Portuguese representative supported the US and the UK position, arguing that the
United States and the United Kingdom had made it clear in November that "in the absence of full
cooperation by Iraq, they would act without returning to the Council." He also emphasized that
the "main cause of the current crisis was the obstinate policy of Iraq's rulers in refusing to comply

Legal Bases for Military Operations in Iraq

with Council resolutions," highlighting that the latest UNSCOM report stated that Iraq had "not
lived up to its commitments." Press Release SC/661 1, supra note 39.

43. The Japanese representative also supported the use of force by the United States and the
United Kingdom, emphasizing that "Iraq had failed to provide its full cooperation to
UNSCOM" and that had led to the airstrikes. He also strongly urged Iraq "to comply immedi-
ately and unconditionally with all its obligations under Council resolutions." Id.

44. The Russian representative, on the other hand, argued that the airstrikes "violated the
principles of international law and the principle of the Charter," arguing that "no one could act

independently on behalf of the United Nations " The Chinese representative agreed, indicating

that the airstrikes were "completely groundless," and the French representative "deplored the situ-
ation that had led to the airstrike." Costa Rica supported the Russian Federation's position indicat-
ing that the use offeree "was the sole and exclusive faculty of the Council . . . [and that] only the
United Nations could authorize such actions." The Brazilian representative agreed, emphasizing
that "the Council remained the sole body with legal authority to mandate actions aimed at rein-
forcing compliance with its own resolutions." Kenya also supported the Russian position, indi-
cating that "Kenya had repeatedly said any decision to take further action against Iraq remained
the sole responsibility of the Security Council." The Swedish representative, while recognizing
that "Iraq had again and again refused to abide by the clear obligations decided by a unanimous
Security Council, and it was clear Iraq had not fulfilled the promise given to the Secretary-General
only a month ago that it would cooperate fully and without conditions with United Nations
weapons inspectors," indicated that he regretted that the attacks had occurred before the Coun-
cil had "a chance to conclude its evaluation of the latest developments . . . ." Id.

45. Id.

46. Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,
1907, 36 Stat. 2227, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 13, at 69 [here-
inafter Hague IV].

47. Authority of the President, supra note 4; YORAM DlNSTEIN, WAR, AGGRESSION AND
SELF-DEFENCE 57-59, 298-299 (4th ed. 2005). See also Hague IV, supra note 46, arts. 36 8c 40.

48. Sanger, supra note 1.

49. Letter from the Permanent Representatives of the United States of America and the United
Kingdom of Great Britain and Northern Ireland to the President of the UN Security Council, U.N.
Doc. S/2003/538 (May 8, 2003) [hereinafter United States/United Kingdom letter].

50. Id.

51. CPA Order No. 17 (Revised) (June 27, 2004), available at http://www.cpa-iraq.org/
regulations/20040627_CPAORD_17_Status_of_Coalition_Rev_with_Annex_A.pdf.

52. See Hague IV, supra note 46, arts. 42-56.

53. Geneva Convention IV, supra note 13, arts. 47-78.

54. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3, reprinted
in DOCUMENTS ON THE LAWS OF WAR, supra note 13, at 422.

55. CPA Regulation No. 1, sec. 1 (May 16, 2003), available at http://www.cpa-iraq.org/
regulations/200305 16_CPAREG_l_The_Coalition_Provisional_Authority_.pdf.

56. S.C. Res. 1483, para. 13 & operative para. 4, U.N. Doc. S/RES/1483 (May 22, 2003).

57. CPA Regulation No. 6, sec. 1 (July 13, 2003), available at http://www.cpa-iraq.org/
regulations/200307 1 3_CPAREG_6_Governing_Council_of_Iraq_.pdf.

58. S.C. Res. 1500, U.N. Doc. S/RES/1500 (Aug. 14, 2003).

59. S.C. Res. 1546, para. 7 & operative para. 1, U.N. Doc. S/RES/1546 (June 8, 2004).

60. Id., operative paras. 1 & 2.

Raul A. "Pete" Pedrozo

61. S.C. Res. 1511, operative paras. 13 & 14, U.N. Doc. S/RES/1511 (Oct. 16, 2003).

62. S.C. Res. 1546, supra note 59, operative paras. 9-11 & 14-15.

63. Id., Annex.

64. S.C. Res. 1637, U.N. Doc. S/RES/1637 (Nov. 8, 2005).

65. Id., Annex I.

66. Id., para. 12 & operative para. 1.

67. S.C. Res. 1723, Annex, U.N. Doc. S/RES/1723 (Nov. 28, 2006).

68. Letter from the Minister of Foreign Affairs of the Republic of Iraq to the United Nations,
U.N. Doc. S/2006/377 (June 9, 2006).

69. S.C. Res. 1723, supra note 67, Annex I.

70. Id., paras. 1-2 & operative para. 1.

71. S.C. Res. 1762, para. 6 & operative para. 1, U.N. Doc. S/RES/1762 (June 29, 2007).

72. Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship
Between the Republic of Iraq and the United States of America, Nov. 26, 2007, available athttp://
georgewbush-whitehouse.archives.gov/news/releases/2007/ 1 1/20071 126-1 1. html.

73. Id., Security Sphere, para. 1.

74. Id., Security Sphere, para. 2.

75. S.C. Res. 1790, paras. 13, 14 & 16, operative para. 1 & Annex I (Dec. 18, 2007).

76. US-Iraq Security Agreement, supra note 3.

77. S.C. Res. 1859, Annex, U.N. Doc. S/RES/1859 (Dec. 22, 2008).

78. US-Iraq Security Agreement, supra note 3, art. 28.

79. Id., art. 4.

80. Id., art. 22.

81. Id., art. 4.

82. Id., art. 13.

83. Id., art. 12.

84. Id.

85. Renewing the United Nations Mandate for Iraq: Plans and Prospects: Hearing Before
Subcomm. on International Organizations, Human Rights, and Oversight of the H Comm. on Foreign
Affairs, 1 10th Cong. 16 (2008) (statement of Professor Oona A. Hathaway, University of Califor-
nia, Berkeley, School of Law, available at http://foreignaffairs.house.gOv/l 10/hatl 1 1908 .pdf).

86. Authorization for Use of Military Force, supra note 4.

87. Strategic Framework Agreement for a Relationship of Friendship and Cooperation
between the United States of America and the Republic of Iraq, Nov. 17, 2008, available athttp://
www.globalsecurity.org/miHtaiy/Ubraiy/poUcy^

88. Iraq Security Agreement Act of 2009, H.R. 335, 1 1 1th Cong. (2009).

89. See, e.g., American Insurance Association v. Garamendi, 539 U.S. 396 (2003). In that case
the Court stated, "[0]ur cases have recognized that the President has authority to make 'execu-
tive agreements' with other countries, requiring no ratification by the Senate or approval by
Congress, this power having been exercised since the early years of the Republic." Id. at 415.

90. United States/United Kingdom letter, supra note 49; CPA Regulation No. 1, supra note
55; S.C. Res. 1483, supra note 56.

91. S.C. Res. 1511, supra note 61; S.C. Res. 1546, supra note 59; S.C. Res. 1637, supra note 64;
S.C. Res. 1723, supra note 67; S.C. Res. 1790, supra note 75.

92. Department of Defense, DoD Directive 2311.01E, DoD Law of War Program (2006),
available at http://www.dtic.mil/whs/directives/corres/pdf/231 10 lp.pdf.

Was the 2003 Invasion of Iraq Legal?

Andru E. Wall*
I. Introduction

Discussion of the jus ad bellum and the Iraq war is anything but simple and
uncontroversial. There is certainly no shortage of opinions on the subject.
One of the author's favorite quotes is from General Wesley Clark, who said the
2003 invasion was legal, but illegitimate. 1 You will appreciate the irony if you re-
member that the Independent International Commission on Kosovo established
by the United Nations called General Clark's 1999 Kosovo campaign illegal, but
legitimate. 2

When several leading international law professors were asked by a British news-
paper, "Was the 2003 Iraq war legal?" their responses were illustrative. 3 Professor
Malcom Shaw replied: " [0]n the basis of the intelligence we had at the time and the
publicly available knowledge, there was a credible and reasonable argument in favor
of the legality of the war." Professor Christine Chinkin answered "no" because she
believed UN Security Council Resolution 1441 preserved for the Security Council
the decision on enforcement action. Professor Sir Adam Roberts replied: "There
was in principle a possible case for the lawfulness of resort to war by the US and its
small coalition." Professor James Crawford answered simply: "It comes down to a
political judgment."

Unfortunately this author thinks Professor Crawford's statement is quite accu-
rate, as it reflects the truism that law and policy are mutually affecting; nowhere is

*Lieutenant Commander, JAGC, US Navy. This article is derived in part from Andru E. Wall,
The Legal Case for Invading Iraq, 32 ISRAEL YEARBOOK OF HUMAN RIGHTS 165 (2002).

Was the 2003 Invasion of Iraq Legal?

the interrelationship between law and policy more evident than in the jus ad
helium. Nevertheless, let us briefly examine the legality of the recourse to force in
2003. First, the legal argument articulated by the coalition will be summarized;
then three criticisms of the coalition's legal basis will be examined.

II. The Legal lustification for the 2003 Invasion

On March 20, 2003 as the invasion of Iraq began, the United States, United King-
dom and Australia delivered letters to the President of the Security Council provid-
ing notice that coalition forces had commenced military operations in Iraq. The
letters stated the use of force was necessary in response to Iraq's material breach of
the ceasefire agreement reached at the end of hostilities in 1991 and the disarma-
ment obligations contained in Security Council Resolution 687. The US letter suc-
cinctly stated: "In view of Iraq's material breaches, the basis for the ceasefire has
been removed and use of force is authorized under resolution 678 (1990)." 4

The legal justifications are explained more fully in a memorandum from the
British Attorney General, Lord Goldsmith, to Prime Minister Tony Blair on
March 7, 2003 and three US Department of Justice, Office of Legal Counsel opin-
ions written in October, November and December of 2002. 5 As there are no signif-
icant differences among the US, UK and Australian legal justifications, they will be
considered as the singular coalition case.

For the coalition, the war with Iraq began on August 2, 1990 when Iraq invaded
Kuwait — not with the recommencement of hostilities in March 2003. Iraq justified
its invasion of Kuwait on the basis of long-standing claims of sovereignty over
Kuwait, and claims that Kuwait engaged in various forms of economic warfare
against Iraq. 6 However, there was little question that Iraq's actions violated the
requirement contained in Article 2(3) of the UN Charter that States resolve their
disputes by pacific means and Article 2(4)'s prohibition on the use of force against
the territorial integrity and political independence of another State. As a result,
within a few hours of the Iraqi invasion of Kuwait the Security Council declared the
Iraqi action a breach of the peace in Resolution 660. Four days later the Security
Council explicitly recognized the right of Kuwait and its coalition partners to use
force in collective self-defense in Resolution 661. Throughout the fall of 1990 the
Security Council passed eleven resolutions that collectively denounced Iraq's
invasion, declared it a breach of the peace, demanded Iraq's immediate, uncondi-
tional withdrawal from Kuwait, recognized the right of individual or collective self-
defense, imposed an arms embargo and economic sanctions, and recognized Iraq's
obligation to pay reparations. 7

Andru E. Wall

Even as a US -led coalition commenced maritime interdiction operations and
began massing military forces, US diplomats aggressively pursued a Security
Council resolution explicitly authorizing the use of military force against Iraq.
Finally, on November 27, 1990, the Security Council passed Resolution 678, which
authorized "all necessary means" to eject Iraq from Kuwait and "to uphold and im-
plement ... all subsequent relevant resolutions and to restore international peace
and security to the area." 8 The resolution provided Iraq with "one final opportu-
nity" to comply with the Security Council's previous Chapter VII resolutions by
January 15, 1991.

Iraq failed to avail itself of this final opportunity, and so on the evening of Janu-
ary 16, 1991 a twenty-eight-nation, US-led coalition commenced Operation
Desert Storm. It is worth noting here that the Security Council did not make a fur-
ther determination regarding whether Iraq had complied with its January 15 dead-
line. Member States made that determination themselves and relied upon the
Security Council's November 1990 decision as authority to use force.

After six weeks of bombing and an astonishingly successful 100-hour ground
campaign Kuwait was liberated and the Iraqi army was in full retreat. As the Iraqi
army fled north, coalition aircraft continued to bomb Iraqi military targets. The
four-lane highway from Kuwait to Basra began to clog with the charred hulks of
hundreds of military vehicles and reporters began referring to it as the "Highway of
Death." While the laws of war permitted the continued destruction of the Iraqi
army, at least until surrender, the coalition did not want to be seen as engaging in
"slaughter for the sake of slaughter." 9 And so, at 5 a.m. on February 28, 1991, Oper-
ation Desert Storm was unilaterally halted. Three days later General H. Norman
Schwarzkopf, the commander of coalition forces, and his Iraqi counterpart negoti-
ated a ceasefire agreement that established a demarcation line and contained provi-
sions for the repatriation of Kuwaitis and prisoners of war held in Iraq. 10

The ceasefire agreement was put into writing by the United States, vetted by the
Security Council and codified in Resolution 687 on April 3, 1991. 11 It was the
longest resolution and most detailed ceasefire agreement in modern time and
included extensive disarmament provisions. The Resolution stated its provisions
established the "conditions essential to the restoration of peace and security." The
Security Council predicated activation of the ceasefire upon Iraq's unconditional
acceptance, which reluctantly came in a letter delivered to the Security Council on
April 6, 1991. 12

Even before accepting the ceasefire, Iraq began violentiy suppressing uprisings
by the Shia in the south and the Kurds in the north. The Security Council re-
sponded by passing Resolution 688, which called on Iraq to cease such repression
"as a contribution to removing the threat to international peace and security in the

Was the 2003 Invasion of Iraq Legal?

region." 13 The Security Council believed Iraq's suppression of its citizens, which
was causing a destabilizing flow of refugees into neighboring countries, was a
threat to international peace and security. The United States and United Kingdom
used Resolution 688's linkage between Iraq's internal unrest and international
peace and security as the basis for invoking Resolution 678's authorization of the
use of force as the enforcement authority. 14 In other words, from the outset of the
ceasefire, the coalition believed Resolution 678's authorization to use force to re-
store international peace and security in the region survived the ceasefire of
Resolution 687.

On several occasions between 1991 and 2003, the coalition used force in response
to what it deemed to be Iraq's material breaches of the disarmament provisions of
Resolution 687 and justified its actions under the authority of Resolution 678. 15
The Security Council never condemned these actions, nor questioned the reliance
on the continuing validity of 678. In fact, in Resolution 949 on October 4, 1994,
the Security Council explicitly reaffirmed Resolution 678.

In the fall and winter of 2002 as Saddam Hussein again impeded the work of UN
weapons inspectors, the Security Council adopted Resolution 1441, which after re-
counting and deploring Iraq's various violations of Resolution 687 at some length,
found Iraq to be in material breach of the ceasefire and afforded Iraq a "final
opportunity" to comply.

In accordance with the customary international law governing armistices, the
United States properly provided notice on March 17, 2003 that it considered the
ceasefire agreement to be denounced by Iraq: just as a right of self-defense may be
exercised unilaterally without resort to the Security Council, so too may any party
to a ceasefire agreement, even one endorsed by the Security Council, determine
that the ceasefire has been materially breached and announce that it is resuming
hostilities with the breaching party. As a final opportunity to avoid the resump-
tion of offensive hostilities, the United States gave Saddam Hussein and his sons
48 hours to leave Iraq. They failed to seize this final reprieve and the invasion of
Iraq commenced, leading ultimately to Hussein's capture and the fall of his
government.

III. Criticism of the Legal Basis for the 2003 Invasion

The legal basis put forth by the coalition to justify the 2003 invasion of Iraq was
hardly without criticism. The Security Council does not conduct straw polls, but
France made no effort to hide the fact it would veto the so-called second or eigh-
teenth resolution — a resolution finding Iraq in violation of Resolution 1441 and
explicitly authorizing the use of force to compel compliance. 16 Any attempt to

Andru E. Wall

prognosticate the level of support in the Security Council, or in the international
community writ large, was complicated by the fact that France was quite public in
its insistence that the Security Council would not explicitly authorize force, and the
United States was equally public in its insistence that such authorization was not
legally required.

Over the intervening six years, many international law scholars have critiqued
the jus ad bellum basis for the 2003 invasion. 17 Their criticism of the coalition's le-
gal case generally revolves around three concerns: 1) Resolution 678 only autho-
rized the use of force to expel Iraq from Kuwait, 2) Resolution 687 does not permit
unilateral enforcement and 3) Resolution 1441 required further authorization or
findings by the Security Council before force could be used.

Resolution 678 Only Authorized Expelling Iraq from Kuwait

The coalition's legal basis was grounded on the belief that Resolution 678 autho-
rized not just the expulsion of Iraq from Kuwait, but more broadly the use of force
to restore international peace and security to the region and that Iraq's material
breaches of Resolution 687 constituted a continuing threat to such peace and secu-
rity. The plain language of Resolution 678 authorized "all necessary means to up-
hold and implement resolution 660 (1990) and all subsequent relevant resolutions
and to restore international peace and security in the area" (emphasis added). Res-
olution 687 recalled the thirteen previous resolutions on the Iraq- Kuwait conflict,
reiterated its objective of restoring international peace and security in the area, and
affirmed all thirteen previously referenced resolutions, including 678. Read as
such, Resolution 687 arguably sets the terms for what would be required to restore
international peace and security to the region.

At least two objections can be raised against this position. First, the United
States in 1991 did not believe Resolution 678 authorized anything more than ex-
pelling Iraq from Kuwait. In explaining the decision to implement a ceasefire
rather than pursue Hussein to surrender, several members of the US administration
indicated they believed the coalition's mandate was limited to freeing Kuwait. 18
However, Brent Scowcroft, the National Security Advisor at the time, couched the
rationale in political rather than legal terms in a book he wrote with President
George H.W. Bush: "Going in and occupying Iraq, thus unilaterally exceeding the
United Nations' mandate, would have destroyed the precedent of international re-
sponse to aggression that we hoped to establish Unilaterally going significantly

beyond that mandate, we might have undermined the confidence of the United
Nations to make future grants of authority." 19 Remember the context of 1991: the
fall of the Soviet Union, the Security Council's first authorization of the use of force
since Korea, and the hope that a new world order would be ushered in, a world

Was the 2003 Invasion of Iraq Legal?

order that would see the Security Council finally take its place as the primary guar-
antor of international peace and security. Nevertheless, even if the United States
initially viewed its mandate as limited, that view quickly evaporated with the estab-
lishment of the no-fly zones and the legal rationale put forth to justify the no-fly
zones, a rationale grounded in 678's authority to restore international peace and
security in the region.

A second objection to the relevance of Resolution 678 in 2003 is that Resolution
678 only authorized those member States "co-operating with the Government of
Kuwait" to use force. In 1991, Kuwait communicated to the Security Council that
it requested assistance from the coalition in expelling Iraq from Kuwait. In 2003,
however, Kuwait made this statement to the Security Council: "Kuwait reaffirms
that it has not participated and will not participate in any military operation
against Iraq and that all measures we are undertaking are aimed at protecting our
security, safety and territorial integrity." 20 Admittedly, it is a bit of a stretch to argue
that the 2003 coalition was "cooperating" with the government of Kuwait.

This argument weakens, however, in light of the operational reality of the inter-
vening twelve years. During that period, the coalition repeatedly took action
against Iraq, especially the establishment and enforcement of the no-fly zones that
extended beyond strict protection of and cooperation with Kuwait. Those uses of
force were consistently justified as authorized by Resolution 678 and the Security
Council never formally objected or ruled otherwise. Thus, the argument that 678
had a very limited purpose weakens in light of subsequent State practice and the at-
least-tacit acceptance of such practice by the Security Council.

Resolution 687 Does Not Authorize Unilateral Enforcement

A second general criticism of the coalition's legal basis for the 2003 invasion is that
once the ceasefire was encapsulated in a Security Council resolution it became an
agreement between Iraq and the Security Council and only the Security Council
could redress violations. The belief is that once the Security Council directs the
parties to a conflict to comply with a ceasefire agreement, as it did here in Resolu-
tion 687, the Security Council's ceasefire directive has the force of law under Article
24 of the UN Charter and the parties may not resume hostilities without the ex-
press permission of the Security Council. In essence, a Security Council-approved
ceasefire agreement, such as Resolution 687, extinguishes the right of self-defense
and any prior Security Council authorization to use force and revives the control-
ling norm of Article 2(4).

This argument makes the fundamental error of confusing the suspension of
hostilities with their termination and it confuses a Security Council order to "cease
hostilities" with an order to "cease hostilities so long as the following ceasefire

Andru E. Wall

terms are complied with." A ceasefire, which is synonymous with what was histori-
cally termed an armistice, is a suspension of arms that does not end the hostile rela-
tions between the two sides — the state of war remains both de jure and de facto. 21

The customary international law governing armistices was codified in the
Fourth Hague Convention of 1907. It states an armistice only "suspends" military
operations and the parties may resume hostilities after providing proper notice,
and any "serious violation" of the armistice gives the other party the right to de-
nounce the ceasefire and resume hostilities. 22 A "serious violation" under Hague
IV is consistent with the "material breach" phrase that appears in Article 60(1) of
the 1969 Vienna Convention on the Law of Treaties. 23

As the continuing nature of the Iraq conflict seems to often be forgotten, the
following briefly summarizes the ongoing nature of the conflict between 1991 and
2003. 24

• Between April 1991 and early 2003 over 250,000 sorties were flown by
coalition combat and reconnaissance aircraft over Iraq in enforcement of the
ceasefire agreement and no-fly zones. Those aircraft were fired upon by Iraqi
forces thousands of times and returned fire thousands of times, dropping bombs,
firing missiles and launching hundreds of cruise missiles into Iraq. 25

• Within two days of Iraq's acceptance of the formal ceasefire agreement, the
coalition (led by the United States, United Kingdom and France) established a no-
fly zone in northern Iraq in response to Iraq's repression of its Kurdish
population. The coalition established a second no-fly zone a few months later in
southern Iraq after Shiite dissidents were brutally attacked by Iraqi helicopter
gunships. 26

• On December 27, 1992, US aircraft shot down an Iraqi fighter plane flying in
the no- fly zone.

• In January 1993 the President of the Security Council twice issued
statements declaring Iraq to be in material breach of Resolution 687. US, British
and French aircraft attacked several air defense targets in southern Iraq and forty-
five Tomahawk cruise missiles were launched at a nuclear fabrication facility.

• On June 26, 1993 the United States launched twenty- four Tomahawk cruise
missiles against the Iraqi intelligence headquarters in Baghdad in response to an
Iraqi assassination plot against former President George H.W. Bush.

• On September 3, 1996 the United States launched forty- four cruise missiles
at fifteen air defense sites located in the newly extended portion of the no-fly zone.
Fighter aircraft followed up these attacks the next day by bombing air defense sites
that had survived the cruise-missile attacks.

Was the 2003 Invasion of Iraq Legal?

• After another broken promise by Iraq in November 1998 to permit
resumption of inspections, President Clinton declared Iraq to be in material
breach of the ceasefire and ordered the execution of Operation Desert Fox, which
lasted four days, and involved 29,900 troops, thirty-seven ships and 348 aircraft
from the United States and additional forces from the United Kingdom. Those
forces launched nearly four hundred cruise missiles and over six hundred other
bombs and missiles at Iraqi military and weapons of mass destruction targets. 27

• Between 1999 and 2002 Iraqi forces shot missiles and anti-aircraft fire at
coalition aircraft on over one thousand separate occasions. In the majority of
those incidents the coalition responded by bombing the offending Iraqi site and in
the process damaged or destroyed over four hundred targets. On other occasions
US and British aircraft attacked anti-ship missile sites, command-and-control
sites, military communications sites, and fuel and ammunition dumps. 28

• In February 2001 two dozen coalition aircraft attacked five Iraqi targets
located just outside of the southern no-fly zone.

• Coalition aircraft dropped 606 bombs or missiles on 391 targets in 2002
alone. 29

This may be low-intensity conflict, but only a lawyer could argue it was not an
ongoing armed conflict. This State practice strengthens the argument that the de-
termination of material breach of a ceasefire agreement, even one endorsed by the
Security Council, can be unilaterally made by parties to the agreement. The United
States and other members of the coalition determined on numerous occasions that
Iraq materially breached the 1991 ceasefire agreement and unilaterally responded
to those violations with the use of force. Not only were those unilateral determina-
tions of material breach not condemned by the Security Council, but the Council
itself recognized in 1994 in Resolution 949 the continuing validity of Resolution
678 and at least tacitly accepted the unilateral enforcement.

To argue that the coalition needed Security Council authorization before re-
suming offensive combat operations against Iraq in 2003 is to argue that the right
of self-defense and the use of force authorized by the Security Council in Resolu-
tion 678 were extinguished upon acceptance of the ceasefire agreement. Simply
put, such a contention is without basis in State practice and contrary to an interna-
tional public policy that should encourage utilization of the Security Council — not
punish resort to it. If the right to use force were extinguished and the norm set forth
in Article 2(4) again became controlling upon acceptance of a ceasefire agreement,
the law would create a perverse disincentive to enter into such agreements. The State
prevailing in a conflict would be disinclined to agree to a ceasefire at any time prior to

Andru E. Wall

unconditional surrender. Such a law would leave no room for magnanimous ef-
forts to limit the horrors of war through potentially life-saving reprieves.

Resolution 1441 Required Additional Action by the Security Council

A final criticism of the coalition's legal justification for the 2003 invasion relates to the
failure to secure a second or eighteenth (depending on your perspective) resolu-
tion explicitly authorizing the use of force in response to Iraq's continued material
breach of Resolution 687. Resolution 1441 recounted and deplored Iraq's history
of violating Resolution 687 at some length, then found Iraq to be in material breach
of the ceasefire and afforded Iraq a "final opportunity" to comply. While France
and Russia stated publicly they did not believe the finding of "material breach" auto-
matically authorized the use of force against Iraq, the United States and United
Kingdom argued that "the resolution established that Iraq's violations of its obliga-
tions had crossed the threshold that earlier practice had established for coalition
forces to use force consistently with resolution 678. " 30

No permanent member of the Security Council believed Iraq had complied with
Resolution 1441. While the Security Council held several sessions on this issue, the
United States and United Kingdom believed nothing in Resolution 1441 required
the Security Council to adopt another resolution to establish the continuing exis-
tence of a material breach, nor did they believe the use of force was predicated on
any other "triggering" mechanism.

The US State Department Legal Advisor noted there are important similarities
between Resolution 1441 and Resolution 678: "Using the same terminology that it
later adopted in Resolution 1441, the Council in Resolution 678 decided to allow
Iraq a 'final opportunity' to comply with the obligations that the Council had es-
tablished in previous resolutions." 31 There was no requirement that coalition
members return to the Security Council for a determination that Iraq had failed to
comply, nor did they do so before commencing operations. "The language of Reso-
lution 1441 tracked the language of Resolution 678, and the resolution operated in
the same way to authorize coalition forces to bring Iraq into compliance with its
obligations." 32

Resolution 1441 is a classic example of diplomatic finesse: it provided the coali-
tion with a clear finding of "material breach," while also requiring that Iraqi non-
compliance be reported to the Security Council for "assessment." In other words,
Resolution 1441 can be fairly read as an agreement to disagree — or simply as tacit
acceptance of the operational code that existed for more than twelve years. Specifi-
cally, political differences prevented positive action by the Security Council, which
meant that member States acting of their own volition would step into the void and
take the action they believed was necessary to restore international peace and

Was the 2003 Invasion of Iraq Legal?

security; those actions, based on the belief they were authorized by Resolution 678,
were never condemned by the Security Council.

IV. Conclusion

Today we see a vast disparity between the sophisticated institutions established to
regulate international trade and the relatively primitive system in place to regulate
the international use of force. To the extent its Chapter VII resolutions are legally
binding on all member States, the Security Council exercises very limited quasi-
legislative and -judicial powers, yet has no real enforcement powers. While the
UN Charter envisions a standing UN military force available to enforce the Secu-
rity Council's Chapter VII authorities, member States declined in practice to cede
such enforcement authority to the Security Council, preferring instead to keep
those powers to themselves.

The modalities of enforcement of Security Council resolutions will continue to
be debated, yet the normative foundation of the Charter survives the 2003 invasion
of Iraq. Remember the lengths to which the United States, United Kingdom and
Australia went to couch their legal rationale in terms of the Charter's framework
and the relevant Security Council Chapter VII resolutions. The Charter lives on,
even when the Security Council is unable or unwilling to act, and even when that
inaction forces member States to take enforcement action themselves.

Notes

1. Wesley K. Clark, Address at the UCLA School of Law: Iraq War Legal, Not Legitimate
(Jan. 22, 2007), summary available at http://www.international.ucla.edu/article.asp?parentid
=61882.

2. Independent International Commission on Kosovo, The Kosovo Report:
Conflict, International Response, Lessons Learned 4 (2000), available at http://www
.reliefweb.int/library/documents/thekosovoreport.htm.

3. Owen Bowcot, Was the War Legal? Leading Lawyers Give Their Verdict, GUARDIAN.CO.UK,
Mar. 2004, http://www.guardian.co.uk/politics/2004/rnar/02/uk.internationaleducationnews.

4. Letter Dated 20 March 2003 from the Permanent Representative of the United States of
America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/
2003/351 (2003). See also Letter Dated 20 March 2003 from the Permanent Representative of the
United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the
President of the Security Council, U.N. Doc. S/2003/350 (2003); Letter Dated 20 March 2003
from the Permanent Representative of Australia to the United Nations Addressed to the Presi-
dent of the Security Council, U.N. Doc. S/2003/352 (2003).

5. See Memorandum from Peter H. Goldsmith, Attorney General, to Anthony Blair, Prime
Minister, Iraq: Resolution 1441 (Mar. 7, 2003), available at http://news.bbc.co.Uk/2/shared/bsp/
hi/pdfs/28_04_05_attorney_general.pdf; Memorandum from Jay S. Bybee, Assistant Attorney

Andru E. Wall

General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Authority of
the President Under Domestic and International Law to Use Military Force Against Iraq (Oct.
23, 2002) [hereinafter OLC Memorandum Opinion]; Memorandum from John C. Yoo, Deputy
Assistant Attorney General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the Pres-
ident, Effect of a Recent United Nations Security Council Resolution on the Authority of the
President Under International Law to Use Military Force Against Iraq (Nov. 8, 2002); Memoran-
dum from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, to Alberto
R. Gonzales, Counsel to the President, Whether False Statements or Omissions in Iraq's Weap-
ons of Mass Destruction Declaration Would Constitute a "Further Material Breach" Under U.N.
Security Council Resolution 1441 (Dec. 7, 2002). The US memoranda are available at http://
www.justice.gov/olc/2002opinions.htm.

6. See Andru E. Wall, The Legal Case for Invading Iraq, 32 ISRAEL YEARBOOK OF HUMAN
RIGHTS 165, 174 (2002).

7. S.C. Res. 660, U.N. Doc. S/RES/660 (Aug. 2, 1990), declared the Iraqi invasion of Kuwait
a "breach of the peace," condemned it, and demanded an immediate and unconditional with-
drawal; S.C. Res. 661, U.N. Doc. S/RES/661 (Aug. 6, 1990), affirmed the "inherent right of indi-
vidual or collective self-defence" and imposed arms and economic sanctions; S.C. Res. 662, U.N.
Doc. S/RES/662 (Aug. 9, 1990), declared Iraq's annexation of Kuwait "null and void"; S.C. Res.
664, U.N. Doc. S/RES/664 (Aug. 18, 1990), demanded the protection and release of third-country
nationals; S.C. Res. 665, U.N. Doc. S/RES/665 (Aug. 25, 1990), authorized the use of force in
maritime interdiction operations to enforce the sanctions; S.C. Res. 666, U.N. Doc. S/RES/666
(Sept. 13, 1990), again demanded the immediate release of third-country nationals; S.C. Res.
667, U.N. Doc. S/RES/667 (Sept. 16, 1990), condemned Iraq's "aggressive acts" and violations of
international law; S.C. Res. 669, U.N. Doc. S/RES/669 (Sept. 24, 1990), addressed the issue of as-
sisting countries harmed by the sanctions regime; S.C. Res. 670, U.N. Doc. S/RES/670 (Sept. 25,
1990), condemned Iraq's "flagrant violation . . . of international humanitarian law" and strength-
ened the sanctions regime; S.C. Res. 674, U.N. Doc. S/RES/674 (Oct. 29, 1990), condemned
Iraq's treatment of third-country nations and reminded Iraq of its obligation under interna-
tional law to pay reparations for the "invasion and illegal occupation of Kuwait"; and S.C.
Res. 677, U.N. Doc. S/RES/677 (Nov. 28, 1990), condemned Iraqi treatment of the Kuwaiti
population.

8. See Security Council Resolution 678, which authorized the use of force against Iraq; Res-
olution 687, which affirmed the continuing validity of 678; and Resolution 949, which again af-
firmed the continuing validity of Resolution 678. S.C. Res. 678, U.N. Doc. S/RES/678 (Nov. 29,
1990); S.C. Res. 687, U.N. Doc. S/RES/687 (Apr. 3, 1991); and S.C. Res. 949, U.N. Doc. S/RES/
949 (Oct. 15, 1994).

9. COLIN POWELL, AN AMERICAN JOURNEY 521 ( 1995).

10. See H. NORMAN SCHWARZKOPF, IT DOESN'T TAKE A HERO 485-90 (1992). Schwarz-
kopf s account should dispel the notion that the ceasefire was dictated by the Security Council
and that Schwarzkopf merely conveyed its terms to the Iraqis. Rather, the terms of the ceasefire
were dictated by the coalition to Iraq, which then accepted the terms in the field after gaining the
concession regarding the presence of helicopters in the ceasefire zone established in southern Iraq.

11. S.C. Res. 687, supra note 8.

12. See Identical Letters Dated 6 April 1991 from the Permanent Representative of Iraq to
the United Nations Addressed Respectively to the Secretary-General and the President of the Se-
curity Council, U.N. Doc. S/22456 (Apr. 6, 1991).

13. S.C. Res. 688, U.N. Doc. S/RES/688 (Apr. 5, 1991); S.C. Res. 687, supra note 8.

Was the 2003 Invasion of Iraq Legal?

14. See Michael N. Schmitt, Clipped Wings: Effective and Legal No-Fly Zone Rules of Engage-
ment, 20 LOYOLA OF LOS ANGELES INTERNATIONAL AND COMPARATIVE LAW JOURNAL 727,
732-37 (Dec. 1998).

15. See OLC Memorandum Opinion, supra note 5, at 4-6.

16. See Speech by Mr. Dominique de Villepin, Minister of Foreign Affairs, before the Security
Council (Feb. 14, 2003), http://www.ambafrance-uk.org/Speech-by-M-Dominique-de-Villepin
,4954.html.

17. An excellent summary of the arguments critiquing the legality of the recourse to force
against Iraq in 2003 is contained in Sean D. Murphy, Assessing the Legality of Invading Iraq,
92 GEORGETOWN LAW JOURNAL 173 (2004). For a more balanced presentation of views on
this subject, see Agora: Future Implications of the Iraq Conflict, 97 AMERICAN JOURNAL OF
INTERNATIONAL LAW 553-642 (2003) for articles by Lori Fisler Damrosh & Bernard H. Oxman,
William Howard Taft IV & Todd Buchwald, John Yoo, Ruth Wedgwood, Richard N. Gardner,
Richard M. Falk, Miriam Sapiro, Thomas M. Franck, Tom Farer and Jane Stromseth.

18. POWELL, supra note 9, at 521.

19. George H.W. Bush & Brent Scowcroft, A World Transformed 489 (1998).

20. Letter to the President of the Security Council, U.N. SCOR, 58th Sess., 4726th mtg. at 14,
U.N. Doc. S/PV.4726 (2003).

21. [W]hether the armistice convention is to contain provisions purely and simply for
regulating the suspension of hostilities, or it is to include articles of surrender, or the
vital conditions on which peace proposals will be entertained, are matters also for
the determination of the combatants — or depend, rather, on the will and dictation
of the victorious belligerent.

Coleman Phillipson, Termination of War and Treaties of Peace 64 (1916).

22. Regulations Respecting the Laws and Customs of War on Land, annexed to Convention No.
IV Respecting the Laws and Customs of War on Land art. 40, Oct. 18, 1907, 36 Stat. 2227, reprinted
in DOCUMENTS ON THE LAWS OF WAR 69 (Adam Roberts & Richard Guelffeds., 3d ed. 2000).

23. YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 57 (4th ed. 2005). Dinstein
clarifies, however, that "[t]he lex specialis of Article 36 of the Hague Regulations clearly overrides
the lexgeneralis of Article 56(2) of the Vienna Convention on the Law of Treaties, which requires
a twelve months' minimum notice of intention to denounce a treaty." Id.

24. See White House Background Paper: A Decade of Deception and Defiance (Sept. 12,
2002), available at http://georgewbush-whitehouse.archives.gov/infocus/iraq/decade/book.html.

25. See Randall Richard, Iraq— A Decade of War, PROVIDENCE JOURNAL, Nov. 7, 200 1 , at A 1 .

26. For more on the establishment and enforcement of the no-fly zones, see Michael N.
Schmitt, Clipped Wings: Effective and Legal No-fly Zone Rules of Engagement, 20 LOYOLA OF LOS
Angeles International 8c Comparative Law Journal 727 (1998).

27. Department of Defense News Briefing, Secretary of Defense William S. Cohen & General
Anthony C. Zinni, Operation Desert Fox, DEFENSE.GOV, Dec. 21, 1998, http://www.defense.gov/
transcripts/transcript.aspx?transcriptid= 1 792.

28. DoD News Briefing, Lieutenant Colonel S. Campbell (Aug. 10, 2002).

29. Michael R. Gordon & Bernard E. Trainor, Cobra II: The Inside Story of the
Invasion and Occupation of Iraq 79 (2007).

30. Taft & Buchwald, supra note 17, at 557, 561.

31. Id. at 562.

32. Id. at 563.

Legal Bases for Coalition Combat Operations
in Iraq, May 2003-Present

Alexandra Perina*
L Introduction

US combat operations in Iraq in 2003 began with airstrikes on March 19 and
swiftly overwhelmed the Iraqi armed forces. Within six weeks, US and co-
alition forces were in control of almost all major cities in Iraq, and Saddam
Hussein's army was considered defeated. On May 1, 2003, from the deck of the
USS Abraham Lincoln, President Bush famously declared that major combat oper-
ations in Iraq had ended. 1 His observation that "Americans, following a battle,
want nothing more than to return home [a]nd that is your direction tonight"
proved, however, to be premature. Six-and-a-half years later, 120,000 US troops
remain in Iraq. 2 This article examines the legal underpinnings for US-led military
operations in Iraq following the defeat of regular Iraqi military forces.

International law reflects a number of legal bases on which a State may under-
take military operations in foreign territory. The most common legal grounds in-
clude a State's exercise of self-defense, the authorization of the United Nations
Security Council and the consent of the foreign State. A further ground, though it
may at first glance appear to conflate issues of jus ad helium and jus in hello, is found
in the obligations of an occupying State under the laws of war. Each of these legal

* Attorney Adviser in the Office of the Legal Adviser, US Department of State. The views
presented in this paper are not necessarily representative of those of the State Department or the
US government.

Legal Bases for Coalition Combat Operations in Iraq, May 2003-Present

grounds has formed a basis — often in overlapping and interdependent ways — for
the US military operations in Iraq during the past six- and-a-half years.

For purposes of this paper, the US presence in Iraq will be examined in three
phases: first, during the occupation of Iraq, which formally ended on June 28, 2004;
second, the period following the end of formal occupation until December 31, 2008;
and finally, the current period, which began on January 1, 2009, and continues
today.

II. Belligerent Occupation of Iraq (May 2003 to lune 28, 2004)

Whether a territory is occupied is a question of fact, namely, whether "it is actually
placed under the authority of the hostile army." 3 This requirement includes both a
physical and an administrative component: an occupying power must both have
firm physical possession of enemy territory and substitute its authority for that of
the local government in that area. Occupation "extends only to the territory where
such authority has been established and can be exercised." 4

While it may be difficult to establish from public records specific dates on which
particular areas of Iraq became occupied by US and coalition forces, contempora-
neous documents indicate that the occupation of Iraq more or less in its entirety
was established by mid-May 2003. In a letter to the President of the UN Security
Council on May 8, 2003, the US and UK Permanent Representatives to the United
Nations announced the establishment of the Coalition Provisional Authority
(CPA) "to exercise power of government temporarily." 5 While the word "occupa-
tion" appears nowhere in the letter, it nonetheless made clear that the United States
and the United Kingdom, through the CPA, undertook the role and responsibili-
ties of powers belligerently occupying Iraq under the laws of war. Subsequently, on
May 22, 2003, the UN Security Council, noting the May 8 letter, "recogniz[ed] the
specific authorities, responsibilities, and obligations under applicable interna-
tional law of [the United States and the United Kingdom] as occupying powers un-
der unified command." 6

The insurgency emerged soon afterward, with attacks directed not only against
US and coalition forces, but against Iraqis perceived to be "collaborating" with the
coalition, emerging Iraqi political leaders, and Iraqi police and military forces. In-
surgent targets included the UN headquarters, the Jordanian Embassy, the Al
Rasheed hotel, power stations, foreign companies and oil installations. The insur-
gents themselves were composed of various groups, including Shia militants, for-
eign fighters with anti-coalition motives, Al Qaeda in Iraq and Iraqi nationalists
(most of whom were Baath Party members). With the exception of the Baathists,
none of the insurgent groups represented or was loyal to the government of

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Saddam Hussein. Their tactics included the use of car bombs, improvised explo-
sive devices, suicide bombs, hostage taking and indiscriminate rocket attacks. In-
surgents often intentionally targeted Iraqi and foreign civilians and evidenced little
regard for civilian casualties when targeting military objects. 7

Throughout the time they were present in Iraq, US and coalition forces retained
the right of individual self-defense, that is, the right to use force to defend them-
selves against attacks by hostile forces. US and coalition forces also, however, un-
dertook offensive military operations to combat the insurgency. During the period
of occupation, the basis under international law for these operations derived from
two sources. The first ground stems from the rights and obligations of the oc-
cupying power under laws of war to provide for public order. A second and
supplemental ground was conveyed in the October 16, 2003 UN Security Council
authorization for coalition forces "to take all necessary measures to contribute to
the maintenance of security and stability in Iraq." 8

Law of War

While the lawfulness of the US invasion of Iraq remains a matter of debate, 9 it has
no bearing on the rights and obligations of the occupying US and coalition forces
and the occupied population once that relationship is established. The Hostages
Trial at the International Military Tribunal at Nuremberg 10 affirmed that whether
or not an initial act of invasion was lawful is a jus ad bellum question separate and
legally distinct from the jus in hello rules concerning an occupant's (and occupied
population's) rights and obligations. 11

Upon recognizing the United States and United Kingdom as occupying powers,
the UN Security Council, in Resolution 1483 of May 22, 2003, "call[ed] upon all
concerned to comply fully with their obligations under international law including
in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907."
Of the many rights and responsibilities of an occupying power, one of the most
fundamental is the obligation reflected in Article 43 of the Hague Regulations,
which reads in its common English translation:

The authority of the legitimate power having in fact passed into the hands of the
occupant, the latter shall take all the 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.

It has been noted that the authoritative French text of the Regulations refers
to "Yordre et la vie publics" i.e., public order and life, whereas the accepted Eng-
lish translation inexplicably substitutes "safety" for "life." 12 This peculiarity of

Legal Bases for Coalition Combat Operations in Iraq, May 2003-Present

translation not only creates a redundancy, insofar as it is not clear what "public
safety" encompasses beyond "public order," but, more importantly, omits the so-
cial and commercial aspects related to the broader concept of "public life." Con-
sistent with the authoritative text, this paper focuses on the obligation relating to
"public order."

The duty on the occupying power to "take all the measures in his power to re-
store, and ensure, as far as possible" public order reflects both an authorization for
the occupying power and important limitations on its obligation. The duty is to
take affirmative measures to provide order for the population under its control — it
is not permitted to ignore chaos and unrest affecting the public even if occupying
forces themselves can avoid these risks — and this obligation necessarily implies a
corresponding authority to take such measures. That duty is qualified in two im-
portant regards. First, the obligation on the occupying power stops short of requir-
ing a result; the caveat that measures be taken to ensure order "as far as possible"
reflects the recognition that the occupying power may not be able to achieve public
order, even upon dutifully taking all measures in its power. 13 Second, measures
taken by the occupying power to these ends must respect local law "unless abso-
lutely prevented." The duty to respect local law would include domestic provisions
relating to human rights, unless such provisions are displaced by specific rules of
the law of occupation, as the lex specialis, or the occupying power is "absolutely
prevented" from implementing them. 14

The Fourth Geneva Convention also addresses an occupying power's duty and
authority to take measures to address security in occupied territories. As a general
matter, Article 27 states that parties to a conflict, whether in their own territories or
in occupied territory, "may take such measures of control and security in regard to
protected persons as may be necessary as a result of the war." 15 More specifically,
Article 78 of the Fourth Convention provides that in occupied territory, if an occu-
pying power "considers it necessary, for imperative reasons of security, to take
safety measures concerning protected persons, it may, at the most, subject them to
assigned residence or to internment."

Article 78 acknowledges the potential threat posed by civilians in occupied terri-
tory to the occupying power; the purpose of internment pursuant to Article 78,
much like detention of prisoners of war under the Third Geneva Convention, is
preventative. 16 The Fourth Convention leaves broad discretion to the occupying
power to determine whether internment is "necessary for imperative reasons of
security"; its official commentary notes only that such internment should be "ex-
ceptional" and that internment must be based on individualized threat determina-
tions, not collective measures. 17 In practice, "imperative reasons" in this context
have been understood to be distinct from criminal justice standards that require,

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for example, probable cause of past criminal activity or indictment for criminal
prosecution. Article 78 also requires that internees have a right of appeal of the de-
cision to detain them, and periodic review of that decision at least every six
months. As discussed further below, detention operations, undertaken in reliance
on Article 78, formed a crucial part of coalition forces' counterinsurgency strategy.
In the May 8 letter to the Security Council, the United States and the United
Kingdom affirmed their commitment to provide for public order and security,
noting that they, with coalition partners and through the CPA,

shall inter alia, provide for security in and for the provisional administration of Iraq,
including by: deterring hostilities; maintaining the territorial integrity of Iraq and
securing Iraq's borders; . . . maintaining civil law and order, including through
encouraging international efforts to rebuild the capacity of the Iraqi civilian police
force; eliminating all terrorist infrastructure and resources within Iraq and working to
ensure that terrorists and terrorist groups are denied safe haven 18

The reference in the May 8 letter to "deterring hostilities" — drafted before the
major onslaught of the insurgency — recognizes that hostilities can re-emerge in
occupied territory. Armed opposition to occupation has not been viewed as negat-
ing the ongoing status of occupation so long, at least, as the opposition does not ac-
tually wrest effective control of an occupied area. 19

Renewed combat during an occupation requires the occupying power to apply
concurrently two branches of the law of war: the law on the conduct of hostilities
will apply with regard to combatants and civilians taking direct part in hostilities,
and the law of occupation will continue to apply concerning civilians not taking di-
rect part in hostilities. 20 Combatants who met the criteria for prisoners of war es-
tablished in the Third Geneva Convention continued to receive the protections
and treatment due to prisoners of war under the laws of war. More prevalent in the
Iraqi insurgency, however, were guerillas or saboteurs who did not qualify as pris-
oners of war and were not entitled to combatants' privileges. 21 Such insurgents
could be detained as civilians under Article 78 of the Fourth Convention and pros-
ecuted for their hostile acts pursuant to existing local law or laws promulgated by
the occupying power.

UN Security Council Authorization

By the fall of 2003, insurgent attacks had become frequent and widespread. In
Resolution 151 1 in October 2003, the Security Council expressly noted the terror-
ist bombings of the Jordanian and Turkish Embassies, the United Nations head-
quarters and the Imam Ali Mosque, and the murders of a Spanish diplomat and a
member of the Iraqi Governing Council, Dr. Akila al-Hashimi, all of which had

Legal Bases for Coalition Combat Operations in Iraq, May 2003-Present

occurred in the preceding 10 weeks. 22 Resolution 1511 also acknowledged the
Iraqi Governing Council's intent to convene a conference to prepare a new con-
stitution, and called for the CPA to cooperate with the Governing Council and "to
return governing responsibilities and authority to the people of Iraq as soon as
practicable." 23 Finding that security and stability would be essential to accom-
plishing the political goals outlined in the Resolution, the Security Council, acting
under Chapter VII of the UN Charter, which allows it to take actions necessary to
maintain or restore international peace and security, went on to "[authorize] a
multinational force under unified command to take all necessary measures to
contribute to the maintenance of security and stability in Iraq." 24 Coalition forces,
effectively already under the unified command of the United States, became
known as the Multinational Force-Iraq (MNF-I).

The broad UN mandate for the MNF-I provided a legal basis for counterinsur-
gency and counterterrorism operations independent of the authorities in the law of
war. This authorization from the Security Council was not strictly speaking neces-
sary, as a matter of international law, for coalition forces at the time it was con-
veyed, because the coalition had pre-existing and robust bases upon which to
provide for security. Nevertheless, it established the legal framework that would
become of primary importance at the end of occupation the following year.

III. Authorization for MNF-I under UN Security Council Resolutions 1546 et seq.

(June 28, 2004 to December 31, 2008)

On June 28, 2004, the belligerent occupation of Iraq by the United States and
United Kingdom ended as a matter of international law, with the formal transfer of
administrative authority and responsibility from the CPA to the interim govern-
ment of Iraq. While in popular parlance the transfer of authority was heralded as
the "transfer of sovereignty" back to Iraq, under the law of occupation, Iraqi sover-
eignty always remained vested in Iraq — occupying powers are simply administra-
tors of the State until the period of occupation terminates. 25

The presence and activities of the MNF-I in Iraq remained sizable and signifi-
cant. During this middle period, the legal bases for US military operations were the
continued authorization of the UN Security Council, acting under Chapter VII of
the UN Charter, and the consent of the government of Iraq, upon which the UN
authorization was predicated.

UN Security Council Authorization

In anticipation of the transfer of authority to the interim government of Iraq and
the end of belligerent occupation, the Security Council passed Resolution 1546 on

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June 8, 2004. Acting again under Chapter VII of the UN Charter, the Security
Council reiterated the authorization and mandate of the MNF-I, stating that it

shall have the authority to take all necessary measures to contribute to the maintenance
of security and stability in Iraq in accordance with the letters annexed to this resolution
expressing, inter alia, the Iraqi request for the continued presence of the [MNF-I] and
setting out its tasks, including by preventing and deterring terrorism. 26

One of the annexed letters, from US Secretary of State Colin Powell, explicitly
notes that the agreed tasks of the MNF-I would entail combat operations, includ-
ing detention operations, to address insurgent and other violent forces threatening
Iraq's internal security.

The MNF stands ready to continue to undertake a broad range of tasks .... These
include activities necessary to counter ongoing security threats posed by forces seeking
to influence Iraq's political future through violence. This will include combat
operations against members of these groups, internment when necessary for
imperative reasons of security, and the continued search for and securing of weapons
that threaten Iraq's security. 27

Consent of the Government of Iraq

Unlike the original Security Council authorization for the MNF-I in Resolution
1511, the extension of the authorization in Resolution 1546 was premised upon the
consent of the government of Iraq. Resolution 1546 noted "the Iraqi request for the
continued presence of the multinational force" in the annexed letter from the
Prime Minister of the Iraqi interim government, Ayad Allawi, which stated:

There continue ... to be forces in Iraq, including foreign elements, that are opposed to
our transition to peace, democracy, and security. . . . Until we are able to provide
security for ourselves ... we ask for the support of the Security Council and the
international community in this endeavor. We seek a new resolution on the
Multinational Force (MNF) mandate to contribute to maintaining security in Iraq,
including through the tasks and arrangements set out in the letter from Secretary of
State Colin Powell. 28

Resolution 1546 further established that the mandate for MNF-I would be re-
viewed "at the request of the Government of Iraq" or in twelve months, and de-
clared that the Security Council "will terminate this mandate earlier if requested
by the Government of Iraq." 29 Secretary of State Colin Powell separately affirmed
that US forces would leave Iraq if the interim Iraqi government so requested. 30

Legal Bases for Coalition Combat Operations in Iraq, May 2003-Present

The authorization of the Security Council acting under Chapter VII of the
Charter and the consent of the government of Iraq would each suffice independ-
ently to provide a basis in international law for the US and coalition military pres-
ence and counterinsurgency activities in Iraq. As a political matter, however, the
two grounds were mutually dependent. It is doubtful that the Security Council
would have continued to authorize the MNF-I without the consent of the govern-
ment of Iraq. Conversely, given the nascent state of the interim Iraqi government,
it is questionable whether its consent alone would have been perceived to be fully
independent and legitimate without the imprimatur of the international commu-
nity for the MNF-I and its actions. As it was, the Security Council mandate for the
MNF-I was annually reviewed and renewed, at the request of the government of
Iraq, through December 31, 2008. 31

Consequences of the End of Belligerent Occupation

While in popular and sometimes cynical terminology, the US and coalition pres-
ence in Iraq continued to be referred to as an "occupation" long after June 2004, as
a matter of law the consent of the Iraqi government and the decision of the Security
Council were each independently sufficient to terminate the occupation. First, the
Security Council decision welcoming the end of occupation in Resolution 1546
could itself effect the end of belligerent occupation, given the effect of Security
Council decisions under Chapter VII. Because member States of the United Nations
agree to accept decisions of the Security Council, even where such decisions may
conflict with otherwise applicable international law, 32 the decision of the Security
Council that an occupation will terminate is sufficient to make it so as a matter of
international law. 33

Second, the consent of the Iraqi government also terminated belligerent occu-
pation, and with it, the authorities and responsibilities that accrue to a belligerently
occupying power under the law of war. Yoram Dinstein has noted examples of
"consensual occupation," such as the Allied powers' presence in and administration
of France, Belgium and the Netherlands at the end of World War II with the con-
sent of the sovereign governments in exile. In such "consensual" circumstances,
the established law of occupation, including Article 43 of the Hague Regulations,
was not applied. 34

While there have been circumstances in which the military forces of a formerly
occupying power remained in a country after the occupation terminated, such as
in Germany and Japan in the 1950s, in those cases, the purpose of the continued
foreign military presence was primarily to defend the host nation against external
threats. 35 The end of an occupation typically presupposes that internal military op-
erations have ceased and, under the law of war, prisoners of war and civilian

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internees must be released. In the post-occupation period in Iraq, however, MNF-I
military operations continued in significant force, and security detentions not only
continued but increased dramatically in volume.

Which legal rules, then, applied to the post-occupation military operations in
Iraq? Secretary of State Powell's letter annexed to Resolution 1546 affirmed that
the "forces that make up MNF are and will remain committed at all times to act
consistently with their obligations under the law of armed conflict, including the
Geneva Conventions." 36 This commitment to the continued application of the law
of war failed to clarify, however, which branches of humanitarian law were appro-
priate — namely, whether the situation continued to qualify as an international
armed conflict subject to the full array of provisions under the Third and Fourth
Geneva Conventions, or whether, given the absence of any conflict between the
United States and coalition countries and the government of Iraq, it had become a
non-international armed conflict, to which Common Article 3 alone among the
provisions of the Geneva Conventions and other customary laws of war applied.
On this question there was no consensus. The International Committee of the Red
Cross (ICRC) took the view that the residual conflict between insurgent forces, on
the one hand, and the United States, coalition forces and the government of Iraq,
on the other, constituted a non- international armed conflict. 37 Others, including
Adam Roberts, suggested that given the non-Iraqi character of the MNF-I and for-
eign insurgent fighters, and the language of Resolution 1546, the more robust pro-
visions of the Geneva Conventions should continue to apply. 38

While the United States did not formally revisit its 2003 determination that the
conflict was of an international character, it generally avoided characterizing the
status of the conflict by pointing to the authorization in the Security Council reso-
lution. This response can be fairly criticized for conflating jus ad helium issues — the
basis for the use of force, i.e., the authorization of the Security Council and the con-
sent of the Iraqi government — with jus in hello questions of which rules of the law
of armed conflict applied to the conduct of the MNF-I.

In practice, the MNF-I generally continued to apply the more robust rules
applicable to international armed conflicts to its operations in Iraq. During this
period, however, MNF-I's operations also began to shift from a purely war para-
digm to a law-enforcement paradigm, which fostered cooperation with the gov-
ernment of Iraq and paved the way for Iraqi assumption of security responsibility.
Detention operations, in particular, incorporated law-enforcement elements
within the purview of the Iraqi government alongside the security detentions au-
thorized under Resolution 1546.

The standards and procedures of MNF-I internment operations evolved over
time, and increasingly worked in coordination with Iraqi law and the criminal

Legal Bases for Coalition Combat Operations in Iraq, May 2003-Present

justice system. The day before the occupation ended, the CPA promulgated a revi-
sion to CPA Memorandum Number 3, which outlined the types of detentions
MNF-I would undertake and the procedures applicable to each type. 39 Reflective of
the US reluctance to pin down the applicability of the Geneva Conventions to post-
occupation activities, the revised memorandum was careful to avoid any implica-
tion that the Fourth Convention terms on security internees continued to apply as
a matter of law. Language that appeared in the original memorandum, issued in
June 2003, stating that certain provisions were undertaken "in accordance with"
the Fourth Geneva Convention was omitted. Indeed, the chapeau of the Revised
CPA Memorandum Number 3 stated, "Determining, that the relevant and appro-
priate provisions of the [Fourth Convention] constitute an appropriate framework
consistent with its mandate in continuance of measures previously adopted." 40

CPA Memorandum Number 3 as revised established a review process that
would satisfy the right of appeal provided in Article 78. In addition, juvenile de-
tainees were to be held for no longer than 12 months from the date of internment,
and adult internees held for 18 months were to receive review before a Joint De-
tention Committee, which included Iraqi participation, to authorize further in-
ternment. The revised memorandum also gave MNF-I the right to apprehend
individuals who were not considered security internees but who were suspected
of violating Iraqi law. Criminal detainees were to be "handed over to Iraqi au-
thorities as soon as reasonably practicable," though they could be kept in MNF-I
custody upon Iraqi request, based on security or capacity considerations. The re-
vised memorandum affirmed that the ICRC would continue to have access to both
categories of detainees, and extended similar access to the Iraqi ombudsman for
prisons and detainees. 41

The procedures applicable to both security internees and criminal detainees
continued to develop over the course of MNF-I's operations in Iraq during this
period. For example, the review procedures for security internees were revised to
allow detainees to be present at their review board hearings. 42 Cooperation with
Iraqi authorities also increased, in particular in terms of sharing evidence to facil-
itate criminal prosecutions, and MNF-I and the interim Iraqi government signed
a separate memorandum of understanding concerning arrangements for high-
value detainees held pending prosecution for war crimes or other atrocities.

IV. lanuary 1, 2009 to the Present

In the fall of 2007, Iraq's political leaders announced that they sought to normalize
the status of Iraq in the international community and bilaterally with the United
States. This entailed foremost seeking an end to the Security Council actions under

Alexandra Perina

Chapter VII that relied on a finding that the situation in Iraq constituted a "threat
to international peace and security." In November 2007, President George W.
Bush and Prime Minister Nouri al-Maliki outlined their approach to these ends:
Iraq requested a renewal of the MNF-I mandate from the Security Council for a final
year, during which time Iraq and the United States would negotiate the details of a
bilateral relationship addressing security, economic, diplomatic, political and cul-
tural matters. 43 The results of these negotiations were two international agreements
that entered into force on January 1, 2009: the Agreement Between the United
States of America and the Republic of Iraq on the Withdrawal of United States
Forces from Iraq and the Organization of Their Activities during Their Temporary
Presence in Iraq (the "Security Agreement") 44 and the Strategic Framework Agree-
ment for a Relationship of Friendship and Cooperation between the United States
of America and the Republic of Iraq (the "Strategic Framework Agreement"). 45

The Security Agreement addresses a variety of security and military issues, in-
cluding authorization from the Iraqi government for US combat and detentions
operations, and status provisions for US forces, while the Strategic Framework
Agreement covers political, economic, and cultural cooperation. 46 Since the expi-
ration of the UN mandate for the MNF-I and the entry into force of the Security
Agreement on January 1, 2009, the legal basis for the US military presence and op-
erations in Iraq has been the consent of the Iraqi government.

Iraqi authorization for the US military presence and operations in Iraq need not
have been conveyed in a legally binding document — or even in writing — to be
valid as a matter of law. There were advantages, however, to memorializing Iraqi
authorization in a public, binding instrument. First, reducing the terms of the ar-
rangement into such a document ensured transparency as to the terms under
which US forces remain in Iraq. Second, placing the authorization in a legally bind-
ing international agreement rendered it, under Iraqi domestic law, subject to the
approval of the Iraqi Council of Representatives, which enhanced the legitimacy of
the arrangement within Iraq.

Consent of the Government of Iraq

Acknowledging ongoing insurgent and terrorist acts, Article 4 of the Security
Agreement reflects Iraqi consent for US forces' presence in Iraq and defines the
purpose of their mission: "The Government of Iraq requests the temporary assis-
tance of the United States Forces for the purposes of supporting Iraq in its efforts to
maintain security and stability in Iraq, including cooperation in the conduct of
operations against al-Qaeda and other terrorist groups, outiaw groups, and rem-
nants of the former regime." 47

Legal Bases for Coalition Combat Operations in Iraq, May 2003-Present

This authorization departs significantly in a number of respects from the broad
UN mandate for the MNF-I to take "all necessary measures" to provide for security
and stability in Iraq. The Security Agreement reflects the Iraqi assumption of pri-
mary responsibility for security in Iraq; consequently, the US mission is framed in
terms of "supporting Iraq in its efforts." Consistent with this approach, the agree-
ment requires that all such military operations are subject to the agreement of the
government of Iraq and must be coordinated with Iraqi authorities. 48

Detention operations under the Security Agreement also reflect a significant de-
parture from the law of war detentions the coalition undertook under the Article
78 framework in the earlier phases of its activities. Under a law of war framework,
detentions are conceived of as incident to military combat authorities; under the
Security Agreement, detentions are addressed separately from the authorization to
conduct military operations and are integrated into Iraqi law-enforcement opera-
tions. Article 22 of the Security Agreement addresses two categories of detainees:
the so-called "legacy security detainees," individuals in US custody at the time the
agreement came into force who had been taken into custody by the MNF-I under
UN authorization, and new captures who would come into US forces' custody after
the entry into force of the agreement. 49

Signaling the end of law of war security internment, the agreement outlines the
three general disposition options for legacy security detainees. Under the agreement,
the government of Iraq is to review the cases of all of the approximately 15,800 legacy
security detainees to determine whom it could criminally prosecute. 50 Detainees for
whom Iraqi authorities issued a valid criminal arrest warrant and detention order
are to be transferred to Iraqi authorities for prosecution. Detainees against whom a
criminal case cannot or was not brought must be released by US forces "in a safe
and orderly manner, unless otherwise requested by the Government of Iraq and in
accordance with Article 4 of this Agreement." 51 Such a request by the government
of Iraq for another disposition might include repatriation to a third country. Iraqi
authorities may also request that a detainee remain in US custody pending prose-
cution if Iraqi authorities determine that they do not have the capacity to detain
certain criminal suspects safely and humanely in custody.

Resolving the cases of the thousands of security detainees in US custody has
proved time-consuming and politically delicate. By December 2009, 1,441 legacy
security detainees had been transferred to Iraqi authorities for prosecution, 7,499
legacy security detainees had been released and approximately 4,600 detainees re-
mained in US custody. US forces estimated that disposition of all detainees would
not be complete until August 20 10. 52 The Security Agreement does not specify a
timetable for the completion of this process, and the requirement that releases oc-
cur in "safe and orderly manner" reflects an understanding that releases will be

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implemented with care to facilitate the safety of the individual and the stability of
Iraqi society. To mitigate security risks, US forces release detainees whom Iraqi au-
thorities determined would not be prosecuted in order of least to greatest security
threat. While many welcomed the end of "indefinite" MNF-I detentions, the re-
lease of these detainees was also criticized as contributing to an uptick in violence. 53

Under the Security Agreement, new captures are processed in accordance with
the domestic judicial system. The agreement precludes US forces from arresting or
detaining individuals "except through an Iraqi decision issued in accordance with
Iraqi law and pursuant to Article 4" of the Security Agreement, which authorizes
US military operations and requires US forces to respect Iraqi law. 54 The prefer-
ence is to arrest individuals pursuant to an Iraqi-issued arrest warrant. If a warrant
is not feasible, individuals may be taken into US forces' custody and must be
turned over to a competent Iraqi authority within 24 hours, at which point Iraqi
authorities determine whether continued detention is warranted.

As during the second phase of the conflict, questions remain about how to char-
acterize the nature of US engagement in Iraq. Given the normalized bilateral rela-
tionship between the two countries, there is little basis for the position that the
conflict remains of an international character. The ICRC continues to view the sit-
uation in Iraq as constituting a non-international armed conflict. 55 However, the
government of Iraq has not publicly characterized the state of affairs as an armed
conflict or invoked the state of emergency provisions in its constitution. Moreover,
in its handling of detention operations, it strictly follows a law-enforcement model.
While the United States also has declined to publicly characterize the status of its
activities, US forces remain at all times bound by the rules of Common Article 3 of
the Geneva Conventions and other customary rules of the law of war.

Finally, although the United States has not asserted this ground, the possibility
exists — at least in theory — that during any of these phases the United States could
have asserted a self-defense basis for conducting counterterrorism operations in
Iraq against Al Qaeda and its affiliates, even if the government of Iraq requested
that US forces depart. Such an argument would likely require the United States to
determine that the host nation was itself unable or unwilling to address the threat
posed by Al Qaeda as a prerequisite to asserting that intervention without host-
nation consent would be warranted. While the United States has not relied on this
theory, and any such assertion during the duration of the Security Agreement
would provoke difficult questions about compliance with international legal obli-
gations incurred under the Security Agreement, the self-defense basis remains a
theoretical, if highly speculative, option.

Legal Bases for Coalition Combat Operations in Iraq, May 2003-Present

Notes

1 . Address to the Nation on Iraq from the USS Abraham Lincoln, 1 PUBLIC PAPERS 410 (May
1, 2003), full text available afWASHINGTONPOST.COM, May 1, 2003, http://www.washingtonpost
xom/ac2/wp-dyn/A2627-2003May 1 .

2. See, e.g., DoD News Briefing with Gen. Raymond Odierno from Iraq, DEFENSE.GOV,
Oct. 1, 2009, http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=4490.

3. Regulations Respecting the Laws and Customs of War on Land, annexed to Hague Con-
vention No. IV Respecting the Laws and Customs of War on Land art. 42, Oct. 18, 1907, 36 Stat.
2227, reprinted in DOCUMENTS ON THE LAWS OF WAR 69 (Adam Roberts & Richard Guelffeds.,
3d ed. 2000).

4. Id.

5. Letter of 8 May 2003 from the Permanent Representatives of the United States of America
and the United Kingdom of Great Britain and Northern Ireland to the President of the Security
Council, U.N. Doc. S/2003/538 (2003) [hereinafter US/UK Letter].

6. S.C. Res. 1483, U.N. Doc. S/RES/1483 (May 22, 2003).

7. On the insurgency generally, see, e.g., AHMED S. HASHIM, INSURGENCY AND COUNTER-
INSURGENCY IN IRAQ (2006); Kenneth Katzman, Iraq: U.S. Regime Change Efforts and Post-
Saddam Governance, CRS REPORT FOR CONGRESS 29-31 (Jan. 7, 2004), available at http://
fpc.state.gov/documents/organization/28648.pdf; Lionel Beehner, Iraq: Status of Iraq's Insurgent,
Council on Foreign Relations Backgrounder (Sept. 13, 2005), http://www.cfr.org/publication/
8853/iraq.html.

8. S.C. Res. 1511, U.N. Doc. S/RES/1511 (Oct. 16, 2003).

9. See, e.g., Andru E. Wall, Was the 2003 Invasion of Iraq Legal?, which is Chapter IV in this
volume, at 69.

10. In re List (Hostages Trial, 1948), 8 LAW REPORTS OF TRIALS OF WAR CRIMINALS 34 ( 1949).

11. YORAM DINSTEIN, THE INTERNATIONAL LAW OF BELLIGERENT OCCUPATION 3 (2009).

12. Id. at 89; EYAL BENVENISTI, THE INTERNATIONAL LAW OF OCCUPATION 7 n. 1 (2d ed. 2004).

13. DINSTEIN, supra note 1 1, at 92-93.

14. The relation between international humanitarian law and international human rights
law in circumstances of armed conflict remains much debated and generally unsettled. For dis-
cussion of the interaction between the law of war and human rights law in the context of main-
taining order in occupied territory, see Kenneth Watkins, Maintaining Law and Order During
Occupation: Breaking the Normative Chain, 41 ISRAEL LAW REVIEW 175, 189 (2008).

15. Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6
U.S.T. 35 16, 75 U.N.T.S. 287, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 3, at 301 .

16. COMMENTARY ON THE FOURTH GENEVA CONVENTION OF 12 AUGUST 1949, at 368
(lean S. Pictet ed., 1952) ("Article 78 relates to people who have not been guilty of any infringe-
ment of the penal provisions enacted by the Occupying Power, but that Power may, for reasons
of its own, consider them dangerous to its security and is consequently entitled to restrict their
freedom of action").

17. Id.

18. US/UK Letter, supra note 5.

19. Adam Roberts, The End of Occupation: Iraq 2004, 54 INTERNATIONAL & COMPARATIVE
LAW QUARTERLY 27, 34 (2005) (noting that "in practice the status of occupation has not been
viewed as being negated by the existence of violent opposition, especially when that opposition
has not had full control of a portion of the state's territory").

20. See DINSTEIN, supra note 1 1, at 100.

Alexandra Perina

21. Id. at 94-95. Von Glahn notes the view that insurgents who pledged allegiance to the
government in exile, aimed to drive out the occupying forces and followed the laws of war (ex-
cepting the requirements to openly carry arms and display identifying insignia) should be treated
as lawful combatants. GERHARD VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 52
(1957). The modern view has rejected this position, and in any event, most insurgents in Iraq
would fail to meet even von Glahn's more permissive criteria, as most did not act on behalf of the
Baathists and failed to abide by the law of war.

22. S.C. Res. 1511, supra note 8.

23. Id., paras. 6, 10.

24. Id., para. 13.

25. Roberts, supra note 19, at 41; DlNSTEIN, supra note 11, at 49, citing L. Oppenheim, The
Legal Relations between an Occupying Power and the Inhabitants, 33 LAW QUARTERLY REVIEW
363, 364 (1917) ("[t]here is not an atom of sovereignty in the authority of the Occupying
Power"); VON GLAHN, supra note 21, at 31. Accordingly, Security Council Resolutions S.C. Res.
1483, supra note 6; S.C. Res. 1511, supra note 8; and S.C. Res. 1546, U.N. Doc. S/RES/1546 (June
8, 2004), all relating to Iraq during the period of belligerent occupation, recognized Iraq's con-
tinuing "sovereignty."

26. S.C. Res. 1546, supra note 25, para. 10.

27. Id. at 10 (Annexed letter from United States Secretary of State Colin Powell to Lauro L.
Baja, Jr., President of the Security Council, dated June 5, 2004) [hereinafter Powell Letter].

28. Id. at 8 (Annexed letter from Prime Minister of the Interim Government of Iraq Dr.
Ayad Allawi to Lauro L. Baja, Jr., President of the Security Council, dated June 5, 2004).

29. Id., para. 12.

30. Glenn Kessler, Powell Says Troops Would Leave Iraq if New Leaders Asked, WASHINGTON
POST, May 15, 2004, at A01, available at http://www.washingtonpost.com/wp-dyn/articles/
A27950-2004Mayl4.html.

31. S.C. Res. 1637, U.N. Doc. S/RES/1637 (Nov. 8, 2005); S.C. Res. 1723, U.N. Doc. S/RES/
1723 (Nov. 28, 2006); S.C. Res. 1790, U.N. Doc. S/RES/1790 (Dec. 18, 2007).

32. U.N. Charter arts. 25, 103.

33. See DlNSTEIN, supra note 1 1, at 273. This power of the Security Council is widely recog-
nized, though in tension with the general principle that whether an occupation exists depends on
the facts on the ground rather than the statements or characterizations of the parties.

34. Id. at 37. Dinstein further notes that when status of consent changes, occupation may
take on belligerent character. He cites the case of German forces in Italy in the Second World
War, which initially established a presence with the consent of Mussolini, but acquired the status
of belligerent occupiers after the Mussolini government fell and the royal government declared
war on Germany.

35. Roberts, supra note 19, at 29-30.

36. Powell Letter, supra note 27.

37. See, e.g., Posting of the International Committee of the Red Cross, Iraq post 28 June
2004: protecting persons deprived of freedom remains a priority, http://www.icrc.org/Web/Eng/
siteeng0.nsf/iwpList322/89060107D77D7299C1256EE7005200E8.

38. Roberts, supra note 19, at 47. For further discussion of the characterization of the con-
flict over time, see David Turns, The International Humanitarian Law Classification of Armed
Conflicts in Iraq since 2003, which is Chapter VI in this volume, at 97.

39. CPA Memorandum Number 3 (Revised), Criminal Procedures (Revised) (June 27,
2004), available at http://www.iraqcoalition.Org/regulations/#Orders (then the Criminal Proce-
dures (Revised) hyperlink). Compare CPA Memorandum Number 3, Criminal Procedures

Legal Bases for Coalition Combat Operations in Iraq, May 2003-Present

(June 18, 2003), available at www.gjpi.org/wp-content/uploads/cpa-memo-3-og.pdf. At the end
of occupation, all CPA orders and memoranda became incorporated into Iraqi domestic law un-
til rescinded or amended, under Article 26(c) of the Law of Administration for the State of Iraq
During the Transitional Period, Mar. 8, 2004, available at http://www.cpa-iraq.org/government/
TAL.html.

40. CPA Memorandum Number 3 (Revised), supra note 39; CPA Memorandum Number 3,
supra note 39.

41. CPA Memorandum Number 3 (Revised), supra note 39.

42. See Brian J. Bill, Detention Operations in Iraq: A View from the Ground, which is Chapter
XVII in this volume, at 41 1, for a discussion of the revised review procedures.

43. Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship
Between the Republic of Iraq and the United States of America, Nov. 27, 2007, available at http://
merln.ndu.edu/archivepdf/iraq/WH/2008 1 204-6.pdf.

44. Agreement Between the United States of America and the Republic of Iraq on the With-
drawal of United States Forces from Iraq and the Organization of Their Activities during Their
Temporary Presence in Iraq, U.S.-Iraq, Nov. 17, 2008, available at http://www.mnf-iraq.com/
images/CGs_Messages/security_agreement.pdf [hereinafter Security Agreement].

45. Strategic Framework Agreement for a Relationship of Friendship and Cooperation
between the United States of America and the Republic of Iraq, U.S.-Iraq, Nov. 17, 2008, available
at https://www.mnf-iraq.com/images/CGs_Messages/strategic_framework_agreement.pdf.

46. The security agreement is often referred to as a SOFA, or status of forces agreement.
While it addresses typical status provisions, such as jurisdiction over US forces, taxation, import
and export, and entry and exit of forces, it includes additional provisions, such as authorization
for military operations and a timetable for the withdrawal of forces, unusual in SOFAs because
SOFAs generally govern the status of forces in foreign territory during peacetime. Status provi-
sions for the MNF-I had been addressed in an order promulgated by the CPA prior to the end of
occupation, the effective period of which by its terms was tied to the UN mandate of the MNF-I
and its presence in Iraq. CPA Order Number 17 (Revised), Status of the Coalition Provisional
Authority, MNF-Iraq, Certain Missions and Personnel in Iraq, sec. 20 (June 27, 2004), available
at http://www.iraqcoalition.Org/regulations/#Orders (then the Status of the CPA, MNF-I, Cer-
tain Missions and Personnel in Iraq hyperlink).

47. Security Agreement, supra note 44, art. 4( 1 ).

48. Id., art. 4(2).

49. Id., art. 22.

50. Blackanthem Military News, Inaugural Meeting of Detention Committee - GOI and
MNF-I (Dec. 11, 2008), http://www.blackanthem.com/News/iraqi-freedom/Inaugural-Meeting
-of-Detention-Committee---GoI-and-MNF-I19014.shtml.

51. Security Agreement, supra note 44, art. 22(4).

52. U.S. Timetable for Handing Over Iraq Detainees Slips, REUTERS.COM, Dec. 7, 2009, http://
www.reuters.com/article/idUSTRE5B629P2009 1 207.

53. Interview by Jim Muir, BBC News, with Prime Minister Maliki, in Baghdad, Iraq (Apr.
27, 2009), http://news.bbc.co.Uk/2/hi/middle_east/8020815.stm.

54. Security Agreement, supra note 44, arts. 22(1), 4(1)— (5).

55. See Philip Spoerri, Director of International Law, International Committee of the Red
Cross, Official Statement at the Ceremony to Celebrate the 60th Anniversary of the 1949 Geneva
Conventions: The Geneva Conventions of 1949: Origins and Current Significance (Aug. 12,
2009), http://www.icrc.org/web/eng/siteengO.nsf/htmlall/geneva-conventions-statement- 1 20809
?opendocument.

The International Humanitarian Law
Classification of Armed Conflicts in Iraq

since 2003

David Turns*

Introduction: Review of the Timeline of Events in Iraq

An armed conflict, within the meaning of international humanitarian law
(IHL), began in Iraq when that country was invaded by military forces of
the coalition composed primarily of the United States, the United Kingdom and
Australia in March 2003. It continues to this day, notwithstanding a certain decline
in intensity since the British withdrawal in July 2009 and the reorganization of US
forces under a new security agreement with the Iraqi government in December of
the same year. Over the course of its duration, the Iraq conflict has undergone
three definite mutations in terms of its participants, mutations which have had the
effect of altering its characterization under IHL. The four phases of the conflict
have been as follows:

1. the initial invasion, which saw hostilities between the coalition forces
and those of the Iraqi government of President Saddam Hussein (March
to April 2003);

* Senior Lecturer in International Laws of Armed Conflict, Defence Academy of the United
Kingdom (Cranfield University). All opinions expressed herein are entirely personal to the author
and in no way represent any official view of the British government or Ministry of Defence.

International Humanitarian Law Classification of Armed Conflicts in Iraq

2. the debellatio of Iraq and its belligerent occupation by the victors,
represented by the Coalition Provisional Authority (CPA), confronted
by an increasingly violent insurgency (April 2003 to June 2004);

3. the transformation of the coalition occupying forces, with broader
international participation and a United Nations mandate, but still
opposed by the insurgency, into the Multinational Force-Iraq (MNF-I)
(June 2004 to December 2008); and

4. the continuing presence of US forces (all others having withdrawn) to
help confront the insurgency, without a UN mandate but with a security
agreement negotiated between the United States and the Iraqi govern-
ment (since January 2009).

The question of the nature of the armed conflict in Iraq is not of merely aca-
demic interest, nor can it be dismissed as an exercise in sterile semantics of no prac-
tical importance to the troops on the ground. On the contrary, the determination
of the nature of an armed conflict in the sense of IHL has a very real significance for
the military forces engaged in the conflict, for it impacts directly such practical mil-
itary activities as the status of the participants, their consequent classification and
treatment after capture by an opposing party, the conduct of hostilities and the use
of weaponry. Above all, it determines the international law framework and rules
applicable to the situation.

IHL recognizes two basic types of armed conflict: international (IAC) and non-
international (NIAC). Although, broadly speaking, many of the same principles of
customary international law are now considered applicable in both types of con-
flict, 1 the fact remains that the detailed legal regulation of conduct in armed con-
flicts is still contained primarily in the various treaties that have accumulated over
the last one hundred fifty years — principally the Hague Regulations of 1907, the
Geneva Conventions of 1949 and their Additional Protocols of 1977. The scope of
application of each of these instruments is precisely defined, but they were de-
signed for conflicts that were comparatively clear in nature: one State against an-
other State or a State against insurgents, that is, its own nationals in its own
territory. A salient feature of the hostilities in Iraq from an Anglo-American per-
spective, after the CPA was wound down in June 2004 and the coalition occupying
forces became a multinational force present with a mandate from the UN Security
Council and the consent of the new Iraqi government, has been the fact of State
forces being engaged in foreign territory against foreign non-State actors. This sit-
uation, not having been expressly envisaged in 1907, 1949 or 1977, is not covered as

David Turns

such in the relevant treaties and its legal characterization remains a matter of some
uncertainty. 2 The United States and the United Kingdom, the two principal MNF-I
partners in Iraq, did not agree on the legal characterization of the conflict in that
country: the United Kingdom considered it to be de facto non-international, while
the United States, intellectually hobbled by the Bush administration's insistence on
viewing the use of force through the prism of the so-called Global War on Terror, 3
vacillated between the two paradigms of armed conflict. They cannot both have
been correct, at least not simultaneously. The controversy surrounding the classifi-
cation of the armed conflict in Iraq after the belligerent occupation phase was over,
and the tendency of governments to rely on their own assessments of such classifi-
cation — which are usually determined on the basis of the government's own con-
cerns, e.g., its unwillingness to contemplate questions surrounding the status of
captured "terrorists" under IHL — rather than on the basis of objective legal con-
siderations, is understandable but unfortunate: firstly from the perspective of the
troops in theater, and secondly from the judicial perspective. As to the latter, a Brit-
ish asylum and immigration tribunal has stated (in a case concerning the existence
of an armed conflict in Iraq for the purposes of determining whether an Iraqi
refugee qualified for admission to the United Kingdom as an asylum seeker):

[T]he reasons [the immigration judge at first instance] gave for finding that Iraq was
not in a state of internal armed conflict were misconceived. It was wrong to view it as a
matter settled by the (assumed) fact that the United Kingdom government has not
accepted Iraq is in such a state. It is a matter to be judicially determined by applying legal
criteria to the factual situation in that country '. 4

Therefore, this article considers the characterization of the armed conflict in
Iraq under IHL in each of the four stages enumerated above. While the character-
ization of the conflict as an IAC in its early stages (invasion through occupation)
was clear enough, after the end of occupation it could not have been an IAC on a
plain reading of the scope of application provisions of the Geneva Conventions,
but nor could it have been a NIAC by the same terms or by any application of logic.
The British determination, however reticent in its expression, that it was a NIAC
was a policy decision based on a mixture of expediency and a literalist interpreta-
tion of the Geneva Conventions, but its accuracy as a matter of legal doctrine — to
say nothing of its desirability — is in this author's opinion highly questionable in
light of the aims and objectives of the humanitarian treaties that form the kernel of
the contemporary law of armed conflict (LOAC). Since the law applicable in situa-
tions of NIAC is minimalist, vague and general in nature by comparison with that
applicable in IAC, and the humanitarian aims and objectives of the law indicate

International Humanitarian Law Classification of Armed Conflicts in Iraq

that the greatest possible protection should be afforded to victims in armed con-
flicts, it is suggested that it would have been better to have treated the conflict in
Iraq post-2004 as de facto international in nature; such an approach would also ar-
guably have been better for the MNF-I soldiers on the ground, as it would simulta-
neously have provided them with greater explicit freedom of action and legal
protection under the LOAC. As a preliminary to this discussion, however, it is nec-
essary first to recall the typology of armed conflicts in international humanitarian
law, for it is the law's scope of application — the determination of the existence of
different types of conflict — that determines its substantive content.

Review of the Scope of Application oflHL

Armed Conflicts

The spectrum of conflict in international law is classically said to comprise several
stages of increasing intensity, from the violent (but legally non-conflict) stage of
riots, disturbances and tensions through to full-blown international armed con-
flict, but it would be helpful first to consider as a starting question: what is an
armed conflict, generically, in international law? Strangely enough for such a de-
tailed specialist area of the law, there is no answer to this question in the treaty texts
that dominate the lex lata. Of the principal treaty instruments that comprise the
majority of contemporary IHL, the Hague Regulations do not specify a notion of
armed conflict in the modern sense, referring merely to their applicability to "war"
and "belligerents [who] are parties to the Convention"; 5 the Geneva Conventions
and their Additional Protocols do specify the types of conflicts to which they apply,
but without actually defining those types of conflict generically. The authoritative
International Committee of the Red Cross (ICRC) Commentary to the Geneva
Conventions attempted to cast the net as wide as possible, asserting that " [a] ny dif-
ference arising between two States and leading to the intervention of armed forces
is an armed conflict," 6 but this position is not supported by State practice 7 and, in
any event, in its State-centric approach, is of relatively limited use for contempo-
rary conflicts, the vast majority of which are not between States. The conflict in Iraq
after the defeat of Saddam's regime in April 2003 is a case in point.

It has thus been left to customary international law, through the mechanism of a
judicial decision, to come up with a definition. In the Tadic case before the Interna-
tional Criminal Tribunal for the former Yugoslavia (ICTY), the defendant argued,
inter alia> that there had been no armed conflict in Bosnia and Herzegovina at the
time when he had committed the acts with which he was charged, and that there-
fore they could not have constituted criminal violations of IHL, because, absent an

100

David Turns

armed conflict, that body of law was not applicable to the situation. The ICTY
Appeals Chamber held that

an armed conflict exists whenever there is a resort to armed force between States or
protracted armed violence between governmental authorities and organized armed
groups or between such groups within a State. International humanitarian law applies
from the initiation of such armed conflicts and extends beyond the cessation of
hostilities until a general conclusion of peace is reached; or, in the case of internal
conflicts, a peaceful settlement is achieved. Until that moment, international
humanitarian law continues to apply in the whole territory of the warring States or, in
the case of internal conflicts, the whole territory under the control of a party, whether
or not actual combat takes place there. 8

Despite its generic wording, the formula suggested in Tadic — which has since
been reaffirmed in international 9 and national 10 jurisprudence and has come to be
regarded as expressing customary international law — plainly refers to criteria spe-
cific to international ("between States") and non-international ("between govern-
mental authorities and organized armed groups or between such groups within a
State") armed conflicts. The emphasis of the formula is also on the territorial ex-
tent of the armed conflict; with the exception of the single term "protracted armed
violence," there is no reference to other factors affecting the determination of the
existence of a conflict, such as intensity, escalation, etc. However, the requirement
of a degree of organization on the parts of the actors in a conflict — whether as
States in international armed conflicts or "governmental authorities and organized
armed groups" in non-international conflicts — is made clear, and this has been re-
affirmed in subsequent case law as the "first element" of the Tadic test. 11 The "sec-
ond element" of the test, which has been developed by subsequent jurisprudence, 12
relates to the intensity of the conflict and includes such indicia as the protracted
nature of the fighting and seriousness or increase in armed clashes, 13 spread of
clashes over the territory, 14 increase in the number of governmental forces de-
ployed to deal with the violence 15 and the type of weaponry used by both parties to
the conflict. 16 If a situation does not satisfy these customary law criteria for the exis-
tence of an armed conflict, then, however unpleasant it maybe and notwithstand-
ing the deployment of armed forces to assist in the maintenance of law and order, it
will not qualify as an armed conflict under international law; instead, it will fall into
the looser category of "banditry, criminal activity, riots, or sporadic outbreaks of
violence and acts of terrorism," 17 which are normally dealt with under national
criminal law but to which the LOAC does not apply.

101

International Humanitarian Law Classification of Armed Conflicts in Iraq

International Armed Conflicts

Once it is accepted that an armed conflict within the meaning of IHL is taking place,
it is necessary to determine what type of armed conflict it is, so that the applicable
rules of IHL can be identified. Classically the main type of armed conflict — indeed,
the only type of armed conflict regulated by international law until 1949 — was one
which took place between two or more States: international armed conflict. This
was never comprehensively defined by the LOAC prior to the adoption of the
Geneva Conventions, 18 since (a) it was obvious to one and all when two States were
at war with each other, a condition which usually — though not invariably — re-
sulted from mutual declarations of war; and (b) in the absence of any other type of
war regulated by international law, an international legal definition of interna-
tional conflicts was never thought necessary. Even at the time of the adoption of the
Geneva Conventions in 1949, it was still fondly believed that the main frame of ref-
erence for armed conflicts in the modern world would continue to be international
conflicts; hence the Conventions' strong bias in favor of their detailed regulation.
The traditional certainty surrounding the scope and ambit of international
armed conflicts is reflected in the fact that, to this day, the definition of such con-
flicts is essentially the scope of application provisions of the Geneva Conventions
and their first Additional Protocol. Common Article 2 of the Geneva Conventions
provides that they "shall apply to all cases of declared war or of any other armed
conflict which may arise between two or more of the High Contracting Parties,
even if the state of war is not recognized by one of them." The scope of application
of the Conventions under Common Article 2 expressly includes situations of bel-
ligerent occupation of territory, whether violently opposed or not, which is signifi-
cant for the situation in Iraq during the period of the CPA in 2003-4. Since only
States can be high contracting parties to the Geneva Conventions, 19 the interpreta-
tion of the scope of application is clear enough. Additional Protocol I of 1977, how-
ever, added to the definition of an international armed conflict by extending its
scope to cover "armed conflicts in which people are fighting against colonial domi-
nation and alien occupation and against racist regimes in the exercise of their right
of self-determination." 20 Although this would seem to be a very substantial wid-
ening of the definition of international armed conflicts, it is additionally neces-
sary for an authority representing a "people" engaged in a conflict of the kind
referred to, to make a unilateral declaration undertaking to apply the Protocol and
the Conventions in its struggle. 21 To date, no such unilateral declarations have
been successfully registered, and certain States have entered reservations to the
Protocol asserting their right not to accept any such declaration unless the State is
satisfied that the authority genuinely represents the "people" concerned. 22 In rela-
tion to these provisions of Protocol I, the United Kingdom entered a statement on

102

David Turns

ratification to the effect that "the term 'armed conflict' of itself and in its context
denotes a situation of a kind which is not constituted by the commission of ordi-
nary crimes including acts of terrorism whether concerted or in isolation/' 23 Al-
though made specifically in relation to Articles 1(4) and 96(3) of Protocol I, the
point is of equal relevance to Article 1(2) of Protocol II.

In the event that an international armed conflict is taking place, States partici-
pating as belligerents in such a conflict will be bound by the entire corpus of cus-
tomary international humanitarian law 24 (including the Hague Regulations of
1907) and the four Geneva Conventions of 1949, along with any specifically appli-
cable treaties regulating the use of weaponry. States that are also parties to the 1977
Additional Protocol I will be bound by that instrument also; even certain States
that have not accepted the Protocol as a whole accept that substantial parts of it re-
flect customary international law and apply its terms as such. 25

Non-international Armed Conflicts

The other main type of conflict recognized in international law, at least since 1949,
is that of non-international armed conflict. In that year, Common Article 3 of the
Geneva Conventions introduced, for the first time, legal regulation of the protec-
tion of victims in "armed conflicts] not of an international character occurring in
the territory of one of the High Contracting Parties." Beyond the phrase "armed
conflict not of an international character," the article does not explain its scope of
application. The authoritative ICRC Commentary provides a list of "convenient
criteria" to assist in the differentiation of an "armed conflict not of an international
character" from "any act committed by force of arms [not amounting to armed
conflict] — any form of anarchy, rebellion, or even plain banditry":

(1) That the Party in revolt against the de jure Government possesses an organized
military force, an authority responsible for its acts, acting within a determinate
territory and having the means of respecting and ensuring respect for the
Convention.

(2) That the legal Government is obliged to have recourse to the regular military
forces against insurgents organized as military and in possession of a part of the
national territory.

(3) (a) That the de jure Government has recognized the insurgents as belligerents; or

(b) that it has claimed for itself the rights of a belligerent; or

103

International Humanitarian Law Classification of Armed Conflicts in Iraq

(d) that the dispute has been admitted to the agenda of the Security Council or
the General Assembly of the United Nations as being a threat to international
peace, a breach of the peace, or an act of aggression.

(4) (a) That the insurgents have an organisation purporting to have the
characteristics of a State.

(b) That the insurgent civil authority exercises de facto authority over persons
within a determinate territory.

(c) That the armed forces act under the direction of the organized civil authority
and are prepared to observe the ordinary laws of war.

(d) That the insurgent civil authority agrees to be bound by the provisions of the
Convention. 26

These indicia are both non-exhaustive and non-mandatory, thereby supporting
the ICRC's desire that Common Article 3 should be applied "as widely as possi-
ble." 27 Arguably the logical ne plus ultra of this approach was achieved in 2006,
when a plurality of the US Supreme Court held that the "Global War on Terror"
being prosecuted in various locations around the world by the Bush administra-
tion after the terrorist attacks of September 11, 2001 was an "armed conflict not of
an international character" to which Common Article 3 applied because the con-
flict was not directed against any other State. 28 Minimalist and very general though
its protections are, Common Article 3 has indeed come to be accepted, as the Inter-
national Court of Justice (ICJ) stated in the 1980s, as "a minimum yardstick" of
humanitarian protection in all armed conflicts, whatever their characterization. 29

The very minimalism of Common Article 3 and its perceived ineffectiveness in
protecting the victims of non-international armed conflicts led to the adoption of
a second Additional Protocol in 1977, which is exclusively concerned with the reg-
ulation of such conflicts. At the opposite extreme from Common Article 3's all-
encompassing scope of application, however, Protocol II was given a scope of ap-
plication so restricted as to render it all but unworkable in practice. Article 1 ( 1 ) of
Protocol II states that the Protocol applies to

all armed conflicts which are not covered by [the Geneva Conventions and Additional
Protocol I] and which take place in the territory of a High Contracting Party between
its armed forces and dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over a part of its territory as to
enable them to carry out sustained and concerted military operations and to
implement this Protocol.

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David Turns

Article 1 (2) goes on to specify that the Protocol does not apply to "situations of
internal disturbances and tensions, such as riots, isolated and sporadic acts of vio-
lence and other acts of a similar nature, as not being armed conflicts." In practice,
this is the real fault line when considering the spectrum of conflict for the purposes
of the scope of application of IHL: once a situation in a State escalates beyond
"internal disturbances and tensions," it will be considered (absent the involve-
ment of any other State) to be a non-international armed conflict. Whether it is
such a conflict within the terms of Common Article 3 of the Geneva Conventions
or Article 1(1) of Additional Protocol II will then be a question of degree depend-
ing on the facts on the ground.

If an armed conflict is deemed non-international in nature, the question remains
as to what provisions of the LOAC would have to be applied in such a conflict apart
from the basic rules in Common Article 3 and, if applicable, Additional Protocol II.
In particular, these treaty law provisions applicable in NIAC are considerably less
detailed and developed than those that are applicable in IAC and they focus over-
whelmingly on the protection of victims, while saying nothing at all about the
methods and means of warfare. It is true, however, that some of the other treaties
that comprise the LOAC, including treaties regulating the use of specific weapons,
have been extended to cover situations of NIAC 30 or, indeed, apply in all circum-
stances and therefore in all types of armed conflict. 31 In its seminal decision in
Tadic, the ICTY Appeals Chamber confirmed the generalities of this trend in cus-
tomary international law, stating that

elementary considerations of humanity and common sense make it preposterous that
the use by States of weapons prohibited in armed conflicts between themselves be
allowed when States try to put down rebellion by their own nationals on their own
territory. What is inhumane, and consequently proscribed, in international wars,
cannot but be inhumane and inadmissible in civil strife. 32

Although the ICTY's comments in Tadic in respect to this trend were rather too
general to clarify much of the lex lata with regard to the regulation of methods and
means of warfare in NIAC, 33 the ICRC's study, Customary International Humani-
tarian Law, published in 2005, extends most of its 161 identified rules to NIAC; 34
however, its methodology and the evidence supporting its approach have not been
free from criticism. 35

"Other" Armed Conflicts

Although the essential dichotomy of international versus non-international armed
conflicts remains securely in place as regards the basic typologies of armed conflict

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explicitly recognized in international humanitarian law, it represents what might
be termed a very classical approach to the nature of war. As the history of modern
warfare reveals, the last two decades of the twentieth century and the first decade of
the twenty- first century have seen the increasing prevalence of — if not exactly new
types of conflict — new methodologies of conflict. 36 These may be referred to by a va-
riety of terms indicating their unorthodox nature according to traditional military
thinking: the most widely used such terms are "asymmetrical," "low- intensity,"
"hybrid" and "unconventional" conflicts. These notions, along with the concepts
of counterinsurgency and stability operations, belong to the realms of military and
strategic doctrine, not to that of international law. In the contemporary legal
discourse their counterparts are the potentially confusing and ambiguous terms
"internationalized" and "transnational" conflicts. Like all armed conflicts, these
must be subject to the LOAC, but because the Geneva Conventions and Additional
Protocols do not prima facie take account of them in their scope of application pro-
visions, the question has arisen with increasing urgency: for the purposes of deter-
mining the applicability of IHL, what types of conflict are these under the law, and
which provisions of the LOAC apply to them? 37 What comparatively little legal
authority there is on point derives from either decided case law or scholarly
commentary.

The concept of internationalized armed conflict first arose in the jurisprudence
of the ICTY as a result of the 1992-95 Bosnian war, which was essentially a conflict
internal to Bosnia and Herzegovina, but in which forces of the Federal Republic of
Yugoslavia and the Republic of Croatia intervened. An internationalized conflict
has been held to be one that is prima facie internal, but has been rendered
international in nature if

1 . it exceeds the boundaries of the State within which it was initially taking
place; 38 or

2. another State intervenes directly in the conflict with its own forces,
particularly if in doing so it occupies territory within the meaning of
Article 42 of the Hague Regulations and Geneva Convention IV; 39 or

3. another State intervenes indirectly in the conflict by virtue of some of the
participants in the internal conflict acting on behalf of that other State. 40

The third of these possibilities has been the most problematic in practice, but cur-
rent international jurisprudence confirms that the correct test for determining the
internationalization of an internal conflict by the indirect intervention of a foreign

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State is a test of "overall control" under the doctrine of State responsibility in gen-
eral public international law, whereby

it is by no means necessary that the controlling authorities should plan all the
operations of the units dependent on them, choose their targets, or give specific
instructions concerning the conduct of military operations and any alleged violations
of international humanitarian law. The control required by international law may be
deemed to exist when a State (or, in the context of an armed conflict, the Party to the
conflict) has a role in organizing, coordinating or planning the military actions of the
military group, in addition to financing, training and equipping or providing
operational support to that group. Acts performed by the group or members thereof
may be regarded as acts of de facto State organs regardless of any specific instruction by
the controlling State concerning the commission of each of those acts. 41

Once it has been determined that a particular armed conflict has been interna-
tionalized, the entire range of the LOAC applicable in international armed con-
flicts comes into play because the status of the conflict effectively becomes just that:
an internationalized internal armed conflict becomes neither less nor more than an
international armed conflict. The entire corpus of the customary law of IAC, to-
gether with the Hague Regulations, Geneva Conventions, and any other treaties
that the relevant State has ratified, will then govern the conduct of its armed forces.

The term "transnational conflict," as has been suggested by some commentators,
"represents an evolution of the law, more properly characterized as lexferenda than
lex lata.'" 42 It has been used in the contemporary international security context to
refer principally to the US conflict against Al-Qaeda since September 2001 as a
conflict that technically satisfies the scope of application requirements of neither
IAC nor NIAC but undeniably involves military combat operations and displays
features of both types of conflict — namely, the extraterritorial location of the fight-
ing coupled with the absence of a State-actor adversary. A concept of such conflicts
as a new typology of armed conflict has been "in the air" since the displacement of
the Taliban regime in Afghanistan in December 2001. The end of belligerent occu-
pation in Iraq in June 2004 transformed both those conflicts — which continued
unabated and, indeed, even intensified — from ones that had been clearly interna-
tional in nature into something else.

The premise of the theory is that an armed conflict that is not IAC is governed,
in default, by Common Article 3; but the latter is deficient inasmuch as it only pro-
vides for the general protection of victims, while saying nothing at all about the
methods and means of warfare and the conduct of hostilities. In itself, this is not a
new point: it has been made before, by the present author among others. 43 Corn
and Jensen suggest that

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while the term "transnational" armed conflict . . . may be new, the substantive impact
of this concept is ... a very old paradigm — that armed forces carry norms of conduct
with them during all combat operations. In other words, a State cannot invoke the
authorities of armed conflict and not concurrently accept the obligations. Accordingly,
the use of the term "transnational" is really just semantic; what ... is significant is that
armed conflict must be understood as triggering the normative framework of the
LOAC. And that is a proposition that ... is really as old as organized warfare itself. 44

As such, the suggested concept of transnational armed conflicts is a functional
one that finds no direct support in the letter of the law, but rather in its spirit. It
proposes that once the "trigger" of armed conflict — any armed conflict — has been
generated, in respect to conflicts that are neither clearly IAC nor NIAC, such as the
conflict with Al-Qaeda, 45 then "fundamental principles" of the LOAC apply. Such
principles may be derived from customary international law, as evidenced by State
practice. For example, one oft-cited current military manual lists "military necessity,
humanity, distinction, and proportionality." 46 Corn and Jensen refer to "targeting
principles" as part of their suggested "fundamental principles of the LOAC," 47 a
suggestion which subsumes distinction and proportionality and is certainly sup-
ported by some State practice. 48 By logical extension most of the customary inter-
national humanitarian law rules identified by the ICRC would also be applicable in
transnational armed conflicts since its study explicitly specifies in most cases that
they apply in both international and non-international armed conflicts; 49 the proof
of this, however, would have to be conclusively determined by future State
practice.

Application of the Typology of Armed Conflicts to Iraq since 2003

The Initial Invasion Phase

The conflict in Iraq, in its first or main invasion phase, commenced with an unsuc-
cessful attempt to "decapitate" the Ba'athist regime by killing President Saddam
Hussein on March 19, 2003; waves of airstrikes by British and American aircraft
then went in on March 20, followed by a ground invasion conducted by coalition
forces contributed by the United States, the United Kingdom, Australia and Poland,
subsequently supported also by Spain, Denmark and a number of other countries.
Saddam's regime was effectively removed from power as US forces progressively
penetrated Baghdad during the first week of April, leading to the city's complete
occupation and the end of organized resistance by regular Iraqi government forces
on April 9. Large-scale looting and communal violence then erupted, however, and
fighting with irregular armed elements did not cease. On May 1, 2003, US Presi-
dent George W. Bush formally declared an end to major combat operations. 50

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The period from March 19 to April 30, 2003 "clearly constituted an interna-
tional armed conflict between the coalition States and Iraq." 51 Shortly before the
start of invasion, the ICRC sent a "Memorandum on the Rules of International
Humanitarian Law to Be Respected by the States Involved in Military Hostilities"
to the anticipated belligerents, in which it emphasized the need to respect the de-
tailed provisions of the four Geneva Conventions. 52 Iraq, the United States, the
United Kingdom and Australia were all at the material time party to the Geneva
Conventions; the latter two States were also party to Additional Protocol I and
therefore were equally bound by that instrument's provisions. Although the
United States was not technically so bound, certain provisions of the Protocol
which the United States believes reflect customary international law were applied
by US forces as a matter of policy. 53 Finally, all belligerents were bound by the en-
tire corpus of customary international humanitarian law, including notably the
Hague Regulations of 1907 (to which Iraq, for example, was not a party). 54

The Belligerent Occupation Phase

The technical details of the law of belligerent occupation are considered elsewhere
in this volume, 55 but at the outset of this section the main point to note is that bel-
ligerent occupation of territory is considered to be effectively an extension of inter-
national armed conflict for the purposes of IHL because it is generally the territory
of another State that is being occupied consequent upon an armed conflict with
that other State. Occupation is governed specifically by 1949 Geneva Convention
IV, relative to the protection of civilian persons, and by certain provisions of the
Hague Regulations. Although there is some doctrinal controversy as to the precise
moment during hostilities when an occupation legally begins, 56 the application of
Geneva Convention IV ceases one year after the general close of military opera-
tions 57 (which in the case of Iraq would suggest an end date of April 30, 2004 if
President Bush's announcement of the end of major combat operations 58 is to be
taken at face value). The CPA was in fact established to represent the occupying
powers' administration of Iraq on May 16, 2003, 59 ten days after President Bush
had appointed Ambassador L. Paul Bremer III to head the Authority 60 and more
than two weeks after the announcement of the end of major combat operations. A
transfer of power from the CPA to a transitional Iraqi administration took place on
June 28, 2004, 61 at which point the MNF-I had already been established and the law
of belligerent occupation technically ceased to be formally applicable in Iraq.

After some initial reluctance to use the international law terminology of bellig-
erent occupation, 62 the United States and United Kingdom recognized them-
selves as occupiers when they voted in favor of Security Council Resolution 1483
on May 22, 2003. 63 The Resolution refers to the United States and United Kingdom

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as "occupying powers" in its preamble 64 and also refers expressly, in its substan-
tive paragraph 5, to obligations relating to belligerent occupation arising under
the Hague Regulations and Geneva Convention IV. Even had the United States
and United Kingdom formally declined to recognize themselves as occupying
powers, the Geneva Convention would have been applicable automatically as the
United States, United Kingdom and Iraq are all high contracting parties and the
Convention specifies its scope of application as extending to

all cases of declared war or of any other armed conflict which may arise between two or
more of the High Contracting Parties . . . [and] ... all cases of partial or total occupation
of the territory of a High Contracting Party, even if the said occupation meets with no
armed resistance. 65

The Hague Regulations contain no such statement concerning their scope of
application, but Article 42 states that " [territory is considered occupied when it is
actually placed under the authority of the hostile army." In his briefing to the Secu-
rity Council on May 22, 2003 regarding the provision of humanitarian assistance in
Iraq, Jakob Kellenberger, the President of the International Committee of the Red
Cross, noted:

As far as the legal framework is concerned, we are, in terms of humanitarian law ... in a
situation of occupation. The applicability of the relevant provisions of the Geneva
Conventions, in particular the Fourth Geneva Convention, and of the Hague
Regulation is accepted by the occupying Power [sk].**

However — at least as far as the United Kingdom is concerned — significant devel-
opments in the UK domestic courts following reported abuses of Iraqi civilians by
British troops have resulted in a major expansion of human rights law. These
courts have held that where British troops have physical custody of local civilians in
certain circumstances during an occupation, the latter's rights are protected not
only by the law of armed conflict but also by the UK Human Rights Act 1998 (im-
plementing the 1950 European Convention on Human Rights and Fundamental
Freedoms into domestic law in the United Kingdom). 67

The Post-occupation Phase

The phase of operations in Iraq which followed the termination of the CPA occu-
pation regime in June 2004, and which has persisted, with varying degrees of inten-
sity, to the present time, is usually characterized simply as an "insurgency" in lay
language; but in terms of the scope of application of the LOAC, it is by far the most
difficult to pin down. The insurgent forces have comprised a mixture of renegade

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Ba'athist supporters of the late Saddam regime, Iraqi nationalists, Sunni Islamists,
Shi'a Islamists, diverse foreign fighters and alleged Al-Qaeda operatives, who be-
tween them constitute at least a dozen major organizations and probably several
dozen discrete smaller groups. Many of these groups have fought against the coali-
tion, while others have fought against each other for local control. The hostilities
have been at varying stages of intensity, from set-piece urban operations like the
battles of Fallujah and Najaf in 2004 to isolated individual shootings and bomb at-
tacks on coalition troops. The coalition forces officially became the MNF-I in June
2004 68 when the UN Security Council passed Resolution 1546. 69 Eventually a total
of thirty-seven States (excluding the United States, United Kingdom and Australia,
the original members of the coalition at the time of the invasion) contributed mili-
tary forces to the MNF-I under the Security Council mandate. All of these other
States progressively withdrew their forces from Iraq until July 2009, when the
United Kingdom and Australia also withdrew. The Security Council mandate ex-
pired in December 2008, leaving the remaining foreign forces present in Iraq with
the permission of the Iraqi government but without an international mandate. US
forces have since been re- designated United States Forces-Iraq, effective January
2010, and their presence in Iraq is now governed by the security agreement, under
which their complete withdrawal from Iraqi territory is provisionally required by
December 201 1. 70

It is easy enough to provide a factual description of counterinsurgency opera-
tions — which are evidently what coalition forces were engaged in from 2004 on-
ward — but how do they fit into the typology of armed conflicts under IHL, and
(crucially) what law is applicable in such military operations? In the specific case of
Iraq, the complications arose from the following factors:

• the fact that the occupation was officially no longer in place but coalition
troops remained in Iraq, undertaking military operations under Security Council
authority and with the permission of a government those forces had themselves
installed;

• the fact that coalition States had deployed forces to undertake military
operations in a foreign State and against foreign nationals; and

• the fact that any armed conflict was no longer directed against any other
State.

These salient features gave rise to the fundamental question of how to character-
ize the situation in Iraq, for IHL purposes, after the end of occupation in June 2004.
Was it an international armed conflict, a non-international armed conflict or
something else? The question would not have arisen but for the Iraq situation's

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failure to fit neatly into any of the categories of armed conflict that are recognized
in IHL:

• once the state of occupation officially ended, the detailed technical
provisions of the law of belligerent occupation were no longer applicable;

• the situation did not constitute an international armed conflict on a plain
reading of the Geneva Conventions, since (from the point of view of the MNF-I) it
was not directed against any other State and, indeed, the MNF-I was present on
the territory with host-State consent;

• neither of the 1977 Additional Protocols could have been formally
applicable as neither Iraq nor the United States (as the main contributor to and
leader of the MNF-I) was a party to either instrument — although they could have
been applicable to British and Australian forces; and

• the situation logically could not have been said to be "not of an international
character," since both semantically and logically there is nothing non-international
about the use of troops to fight against foreign nationals abroad.

The consequent difficulty would be the lack of any readily apparent legal frame-
work within which the military operations of the MNF-I could be situated. As one
highly respected commentator neatly put it more than two decades before the con-
flict in Iraq:

A . . . relationship, between the insurgents and a foreign state that has been invited by
the established government to help it overcome the rebellion, gives rise to great
difficulties in determining what law is applicable. The traditional answer, which makes
the situation subject to the rules of non-international armed conflict, clashes with the
undeniably international character of this type of relationship. 71

The "received opinion" concerning the nature of the conflict in Iraq after the
end of the occupation phase has been that the conflict ceased to be international,
and became non-international, in nature. This was the consistent and unambigu-
ous position of the ICRC, 72 as noted by the UN High Commissioner for Refugees. 73
The British government for years after 2004 assiduously resisted making any public
statement as to the classification of the conflict in Iraq; instead, it kept repeating the
mantra that British forces were present in Iraq as part of MNF-I with the consent of
the Iraqi government and under a mandate from the UN Security Council. This
unsatisfactory obfuscation — it purported to answer a jus in hello question with a jus
ad helium rejoinder and placed undue emphasis on strictly political factors, as dis-
cussed below — ceased to be necessary when the British government conceded, in
the course of litigation about an asylum applicant's entitlement to humanitarian

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protection, that "Iraq as a whole is in a state of internal armed conflict for the pur-
poses of IHL and [the government of Iraq] is one of the parties to the conflict." 74

This position is broadly consistent with the approach adopted by a plurality of
the US Supreme Court in Hamdan v. Rumsfeld? 5 in which it was suggested that the
conflict between the United States and Al-Qaeda should be treated as an "armed
conflict not of an international character" within the terms of Common Article 3 of
the Geneva Conventions. It should be noted, however, that this finding was not an
essential part of the decision (i.e., it was an obiter dictum), and was concerned with
the relevance of IHL exclusively for the relatively narrow purpose of ascertaining
the correct standard of treatment for detainees held in Guantanamo Bay and
whether the military commissions created to try them were lawfully established.
The interest of the scope of application question in Iraq, on the other hand, is not
confined to the legality of a particular type of domestic tribunal established for the
trial of criminal offenses. The view that the Iraqi conflict after the end of occupa-
tion became non-international in nature is based, legally, on a literalist reading of
Common Article 2 of the Geneva Conventions and, strictly speaking, is technically
correct on the law as far as the application of the Conventions is concerned. The
main difficulty with the British government's approach, in fact, is that it gives
undue prominence to aspects that are entirely political in nature, namely the fact
of an "invitation" from the new Iraqi government at the end of the occupation
phase and the executive mandate from the Security Council (of which the United
States and the United Kingdom are conveniently permanent members). It also, in
this author's submission, takes an unduly restrictive and minimalist approach to
IHL, which is fundamentally inappropriate in light of the law's humanitarian aims
and objectives.

As regards the former point, the authority of the Security Council is clearly open
to abuse if certain permanent members who are the prime movers behind a deci-
sion then claim that such authority trumps all objections. The legal counterpart of
this approach was given judicial expression in the United Kingdom by the House of
Lords when, in a legal challenge to the detention without charge of a civilian by
British forces in Iraq since October 2004, it was held that the Security Council's
authority for the MNF-I to maintain law, order and security in Iraq by {inter alia)
"internment where this is necessary for imperative reasons of security," 76 trumped
any inconsistent provisions of IHL or human rights law by virtue of Articles 25 and
103 of the UN Charter. 77 At the very least, such a position is politically self-serving,
given that the United Kingdom (along with the United States) was the principal in-
stigator of Resolution 1546. As to the "invitation," no allowance is made either for
the fact that the government doing the inviting was installed by those same States
(which is again a politically self-serving position) or for the linked fact that that

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government may not have been truly empowered to issue such an invitation to for-
eign forces because it lacked either domestic or international legitimacy. For exam-
ple, during the Hungarian, Czechoslovak and Afghan crises of 1956, 1968 and
1979, respectively, the Soviet Union in each case claimed to have been invited to in-
tervene militarily; however, it was far from clear that the "governments" which had
issued those invitations were legitimately installed in power and legally competent
to issue them. Although the position of the interim Iraqi government in 2004 was
different to some extent, in that it was installed with the imprimatur of the Security
Council (albeit without a democratic mandate), does that necessarily make the co-
alition action any more legitimate than that of the USSR in the earlier instances?
Arguably it does not, since the change of regime was effected as a result of a foreign
armed intervention of dubious legality under international law, something as true
in the case of Iraq as in the cases of Hungary, Czechoslovakia and Afghanistan. It
was inevitable that the Iraqi government in 2004 would "consent" to the continu-
ing presence and actions of the MNF-I on its territory, since it was in essence the
MNF-I that put the government in place. In these circumstances, the issue of host-
State consent is arguably meaningless.

The characterization of the situation in Iraq post-2004 as a non-international
armed conflict is not inaccurate on a literalist interpretation of Common Article 2
of the Geneva Conventions, and is arguably supported by the US Supreme Court's
decision in Hamdan. Neither Iraq nor the United States is a party to Additional
Protocol II and the United Kingdom (which is a party to that instrument) has
never conceded that the Iraqi insurgents satisfy its scope of application under Arti-
cle 1 ( 1 ), so the only clearly applicable IHL — if this characterization of the situation
is accepted — would be Common Article 3 and customary international humani-
tarian law. Common Articles 2 and 3 are, of course, concerned exclusively with the
scope of application of the Geneva Conventions — and there is more to IHL than
just those Conventions. There is the large corpus of customary international hu-
manitarian law, much of which is now believed to be of general applicability in all
armed conflicts. 78 Which precise rules of that body of law would be applicable
would depend on the extent to which the coalition States agree with the ICRC
study's conclusions as to what are the rules. 79

It should also be noted that the jurisprudence of the ICTY has extensively dis-
cussed the possibility of a non-international armed conflict becoming internation-
alized through the participation of another State in the (otherwise internal)
hostilities. 80 In such cases, the normal range of IAC law becomes applicable to the
conflict, as in any "normal" international armed conflict. Although prima facie this
might be of direct relevance to the situation in Iraq, actually it is of somewhat lim-
ited utility, since the cases all concerned instances of intervention by foreign States

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(principally the Republic of Croatia and the Federal Republic of Yugoslavia in the
Bosnian conflict) on the side of the insurgents, rather than that of the government.
In that situation, it is clear that the conflict effectively became one between "two or
more of the High Contracting Parties" to the Geneva Conventions, within the
terms of Common Article 2 thereof. In Iraq, on the other hand, the foreign States
were fighting on the side of the government rather than that of the insurgents. Only
if another State — Iran, for example — had openly intervened on the side of any in-
surgent groups in Iraq to the extent that it could be said to have overall control over
them would the conflict vis-a-vis such groups have become internationalized
within the terms of the ICTY jurisprudence.

There is a viable alternative approach to the characterization of the situation in
Iraq post-occupation as non- international armed conflict, and that is to treat it —
at least on a de facto basis — as international in nature. One rationale for this ap-
proach, made elsewhere in this volume, 81 is the argument that the conflict retains
its original characterization throughout its duration, and that a government in-
stalled in Iraq as a result of the invasion cannot "magically" convert the conflict
from an international to a non-international one by purporting to "invite" the co-
alition forces to be present in the territory which they had already invaded and oc-
cupied as a hostile act. It has further been asserted as a matter of doctrine that "a
government established by the occupying power cannot in law give its agreement
to the presence of the occupying troops in its territory and thereby transmute occu-
pation by the armed forces of an outside state into the friendly presence of [the
same] state." 82 Although this author is greatly in sympathy with these views, as far
as the scope of application provisions of the Geneva Conventions are concerned,
they appear to be contradicted by a plain reading of Common Article 2, as dis-
cussed above.

On the other hand, the US Secretary of State in 2004 seemed at least implicitly to
consider that coalition forces in Iraq after the occupation would continue to apply
the law of international armed conflict when he wrote that "the forces that make up
the MNF are and will remain committed at all times to act consistently with their
obligations under the law of armed conflict, including the Geneva Conventions" 83
Why would the last phrase be expressed in the plural if it were not intended that the
obligations of IAC law were to be applied, thereby arguably implying a presump-
tion that the conflict in Iraq continued to be international in nature?

A less dogmatic and semantic approach is to be found in the reasoning of the Su-
preme Court of Israel in Public Committee against Torture in Israel v. Government of
Israel, 84 where the Court held that the conflict between Israel and non-State actors in
the Palestinian Territories should be treated as international in nature, partly be-
cause of their transnational nature as evidenced by the deployment of Israeli forces

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outside the borders of the State of Israel, and partly because of the advanced mili-
tary capabilities of many contemporary non-State armed organizations, which
mean that the scale and intensity of the hostilities effectively rise to the level of an
international armed conflict. The former proposition, in particular, has received
some support in the literature since. 85

Finally, a case — arguably the most powerful case — for the de facto international-
ization of the conflict against Iraqi insurgents could also be made based on a teleo-
logical interpretation of IHL in light of its aims and purposes. In relation to
international armed conflicts, the LOAC is much more detailed and developed, with
a far higher degree of internationally recognized regulation of both the conduct of
hostilities and the protection of victims, than in relation to non- international armed
conflicts. To put it crudely, there is more law in relation to international armed
conflicts; this implies not only more precise protection for "victims," but also a
more regulated approach to the actions of soldiers on the ground, with greater con-
sequent protections for them in the event of any accusations of wrongdoing. Writ-
ing a dozen years ago, one of America's most respected experts on IHL stated that
"[i]n interpreting the law, our goal should be to avoid paralyzing the legal process
as much as possible and, in the case of humanitarian conventions, to enable them
to serve their protective goals." 86 In relation to the Soviet intervention in Afghani-
stan, the interest of the State in having the conflict considered as international in
nature was summarized as follows:

[T]he Soviet Union's interests would impel it to apply the whole of international
humanitarian law to the conflict [in Afghanistan]. The Soviet Union would be
especially concerned with having its troops benefit from the greatest possible measure
of protection. The law on non-international armed conflicts does not provide any
special status for the combatants, even when captured. Only the law that is applicable
to international conflicts, specifically the Third Geneva Convention of 1949, protects
the combatant and guarantees him favored status as a prisoner of war. Thus, the Soviet
Union should seek to have international [armed conflict] law applied if the Soviet
authorities are concerned with the fate of their soldiers who fall into the insurgent's
[sic] hands. Considerations of this kind might tempt an intervening power to opt for
the extensive protection of the rules governing international armed conflicts, even if
this would require that power to abide by the same rules. 87

The fundamental reason for the insistence on characterizing the conflict in Iraq
post-occupation as non-international, of course, is the unwillingness of coalition
States to put themselves in a position where they would have to apply the rules of
Geneva Convention III to captured insurgents by according them the status of
POWs. This is partly because of the long-held view that to accord such status would

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confer on the insurgents a legitimacy to which they should not strictly speaking be
entitled, and partly because of all the other technical provisions concerning POWs
that would then also have to be applied, with certain negative implications for the
coalition States. 88 There is also the undeniable fact that the notion of reciprocity in
observing the law, relied upon by Gasser, simply does not obtain in Iraq: the insur-
gents have consistently shown no regard whatsoever for the observance of IHL
rules in their fight against foreign forces. Indeed, the same author's statement of
the insurgents' interest in having the conflict considered international clearly dem-
onstrates a compelling reason for not considering it as such:

The intervention of an outside state would provide [insurgents] with proof of the
international nature of the struggle. The insurgents would argue that the intervention
of foreign armed forces alongside government troops makes the conflict an
international one. The insurgents would have an interest in capturing members of the
[foreign] armed forces, calling them "prisoners of war," and demanding that the
adversaries adhere to the same rules. 89

The insurgents in Iraq would do no such thing. Moreover, their struggle would
be to some extent "legitimated" in the eyes of the international community — at
least in terms of the application of IHL — and that is precisely the effect the multi-
national forces (and, latterly, the US forces) in Iraq seek to avoid.

Conclusions

The classification of armed conflicts in Iraq during and after the second Gulf War
in 2003 presents certain specific problems. The initial invasion phase, in March
and April 2003, and the belligerent occupation phase, from May 2003 to June 2004,
are uncontroversial in that they clearly constituted an international armed conflict
under the scope of application provisions of the Geneva Conventions. The interna-
tional law applicable in those phases consisted of the corpus of customary interna-
tional humanitarian law, specifically including the Hague Regulations, plus the
Geneva Conventions. As far as the United Kingdom and Australia — but not the
United States and Iraq — were concerned, Additional Protocol I would have been
applicable too. During the occupation phase, only certain specific provisions of the
Hague Regulations, plus Geneva Convention IV, applied as the lex specialis of oc-
cupation. After the end of occupation in June 2004, the position became substan-
tially less clear.

Although the United States refrained from conclusively classifying the conflict
and the United Kingdom considered it to be non-international in nature because of
the absence of a State adversary, decided case law and academic commentary are more

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ambivalent. If the option of creating a "new" typology of armed conflicts, which
might be known variously as "transnational" or "mixed" conflicts, is dismissed, we
are left with the standard two possibilities: international or non-international armed
conflict. While the latter is supported by the practice of certain coalition States —
principally the United Kingdom — it is a policy determination based on expedi-
ency, rather than a legal classification based on a proper analysis of the facts and the
law. As such it is undesirable. This author takes the view that the conflict would
have been better treated as a de facto international armed conflict, notwithstanding
its failure to comply strictiy with the wording of Common Article 2 of the Geneva
Conventions. This would not necessarily have required slavish adherence to every
dot and comma of every article of the Conventions: coalition forces could have
announced that they would treat captured insurgents as POWs, without actually
according them such formal status. In light of the detainee abuse scandals at Abu
Ghraib, Camp Breadbasket and other such places of ill repute, public adherence to
the higher legal standards derived from the law of international armed conflict
would have sent a powerful, and positive, message to the world about the coali-
tion's values and behavior. The I AC law of targeting was applied in any event, so no
change in practice would have been required there. The policy reasons for adopting
this approach were at least as compelling, in this author's view, as the policy rea-
sons against. Nevertheless, it is recognized that governments are often likely to take
the easier option. Applying the law of non-international armed conflict — which in
Iraq basically meant just Common Article 3 of the Geneva Conventions since
neither the United States nor Iraq is a party to Additional Protocol II — means
much less law to worry about, especially in relation to detainees.

However, the emergence of human rights law as a body of regulation applicable
(at least for certain States) in certain post-conflict situations analogous to occupa-
tions means that the advocates of increased humanitarian protection and oversight
of military forces' behavior may yet have the last laugh over those who would prefer
unfettered executive discretion. As Gasser has written:

[I]t would be wishful thinking to postulate the application of the whole body of
international humanitarian law to the relations between the intervening power and the
insurgents. Nevertheless, humanitarian policy demands that some agreement be made
to give better protection for all actual and potential victims of the conflict. Among the
top priorities must be achieving greater respect for the civilian population, treating
captured combatants similarly to prisoners of war, and guaranteeing respect for the
protective emblem. 90

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David Turns

Notes

1. See Prosecutor v. Tadic, Case No. IT-94-1-AR72, Interlocutory Appeal on Jurisdiction,
paras. 96-127 (Oct. 2, 1995); CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (2 volumes:
Vol. I, Rules; Vol. II, Practice (2 Parts)) (Jean-Marie Henckaerts & Louise Doswald-Beck eds.,
2005).

2. This has a fortiori been the case in relation to Afghanistan since the Taliban were ousted
as the de facto government in December 2001. See David Turns, Jus ad Pacem in Bello? Afghani-
stan, Stability Operations and the International Laws Relating to Armed Conflict, in THE WAR IN
AFGHANISTAN: A LEGAL ANALYSIS 387 (Michael N. Schmitt ed., 2009) (Vol. 85, US Naval War
College International Law Studies).

3. See David Turns, The "War on Terror" through British and International Humanitarian
Law Eyes: Comparative Perspectives on Selected Legal Issues, 10 NEW YORK CITY LAW REVIEW 435
(2007).

4. KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023, para. 1 1 (em-
phasis added) [hereinafter KH].

5. Convention No. IV Respecting the Laws and Customs of War on Land art. 2, Oct. 18,
1907, 36 Stat. 2227, reprinted in DOCUMENTS ON THE LAWS OF WAR 69 (Adam Roberts 8c Rich-
ard Guelff eds., 3d ed. 2000) [hereinafter Hague Convention No. IV].

6. COMMENTARY I GENEVA CONVENTION FOR THE AMELIORATION OF THE CONDITION
OF THE WOUNDED AND SlCK IN ARMED FORCES IN THE FIELD 32 (Jean S. Pictet ed., 1960) [here-
inafter ICRC Commentary] .

7. Cf United Kingdom Ministry of Defence, The Manual of the Law of Armed
CONFLICT para. 3.3.1 (2004) [hereinafter UK Manual].

8. Tadic, supra note 1, para. 70.

9. See, e.g., Prosecutor v. Kunarac, Case No. IT-96-23/1-A, Judgment, paras. 56-57 (June
12, 2002); Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, Decision on Motion for
Judgment of Acquittal, paras. 15-17 (June 16, 2004).

10. See, e.g., HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT
00022, para. 257.

11. Milosevic, supra note 9, paras. 23-25.

12. For a useful summary of the case law, see Prosecutor v. Haradinaj, Case No. IT-04-84-T,
Judgment, paras. 39-49 (Apr. 3, 2008).

13. Milosevic, supra note 9, para. 28.

14. Id., para. 29.

15. Id., para. 30.

16. Id., para. 31.

17. UK Manual, supra note 7, para. 3.5.1.

18. See ICRC Commentary, supra note 6, at 28.

19. In 1989 Switzerland, as the depositary of the Geneva Conventions, declined to transmit
to the high contracting parties a "letter of adherence" concerning the Conventions and Addi-
tional Protocols from the "State of Palestine" on the grounds of "uncertainty within the interna-
tional community as to the existence or the non-existence" of such a State. See DOCUMENTS ON
THE LAWS OF WAR, supra note 5, at 362.

20. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts art. 1(4), June 8, 1977, 1 125 U.N.T.S. 3,
reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 5, at 422.

21. Id., art. 96(3).

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International Humanitarian Law Classification of Armed Conflicts in Iraq

22. E.g., the United Kingdom. See DOCUMENTS ON THE LAWS OF WAR, supra note 5, at 5 10.

23. Id.

24. The ICRC has identified 161 rules of customary international humanitarian law, all of
which are applicable in international armed conflicts. See CUSTOMARY INTERNATIONAL
Humanitarian Law, supra note 1, vol. I.

25. E.g., the United States. For detailed commentary on the US position, see Michael J.
Matheson, The United States Position on the Relation of Customary International Law to the 1977
Protocols Additional to the 1949 Geneva Conventions, 2 AMERICAN UNIVERSITY JOURNAL OF
INTERNATIONAL LAW & POLICY 419, 423-29. See also Ronald Reagan, Message to the Senate
Transmitting a Protocol to the 1949 Geneva Conventions, 1 PUBLIC PAPERS 88, 91 (Jan. 29,
1987), reprinted in 26 INTERNATIONAL LEGAL MATERIALS 561 (1987); George H. Aldrich, Pros-
pects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions, 85
American Journal of International Law l, 19 (1991).

26. ICRC Commentary, supra note 6, at 49-50.

27. Id. at 49.

28. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

29. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, para. 218 (June 27).

30. See, e.g., Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects
amended art. 1, Oct. 10, 1980, 1342 U.N.T.S. 137, reprinted in 19 INTERNATIONAL LEGAL
MATERIALS 1523 (1980).

31. See, e.g., Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, 2056 U.N.T.S. 211.

32. Tadic, supra note 1, at 119.

33. See David Turns, At the "Vanishing Point" of International Humanitarian Law: Methods
and Means of Warfare in Non-international Armed Conflicts, 45 GERMAN YEARBOOK OF
INTERNATIONAL LAW 115 (2002).

34. See CUSTOMARY INTERNATIONAL HUMANITARIAN Law, supra note 1, vol. I.

35. See PERSPECTIVES ON THE ICRC STUDY ON CUSTOMARY INTERNATIONAL HUMANITARIAN
LAW (Elizabeth Wilmshurst & Susan Breau eds., 2007).

36. See Martin van Creveld, The Changing Face of War: Lessons of Combat from
the Marne to Iraq (2007).

37. Among the first conflicts to give rise to such legal questions was the Soviet intervention
in Afghanistan (1979-89). See W. Michael Reisman & James Silk, Which Law Applies to the
Afghan Conflict?, 82 AMERICAN JOURNAL OF INTERNATIONAL LAW (1988).

38. This point, which is mentioned but not elaborated upon in the jurisprudence, will prob-
ably depend more on the status of the parties to the conflict, rather than the territory in which the
conflict takes place. Arguably it is of more relevance to the concept of a transnational than an in-
ternationalized armed conflict stricto sensu.

39. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005
I.C.J. 116, paras. 172-80 (Dec. 19).

40. Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Judgment (July 15, 1999), reprinted in
38 International Legal Materials 1518 (1999).

41. Id., para. 137 (original emphasis); confirmed in Prosecutor v. Dyilo, Doc. No. ICC-01/
04-01/06, Decision on Confirmation of Charges, paras. 210-11 (Jan. 29, 2007).

42. Geoffrey Corn 8c Eric Talbot Jensen, Transnational Armed Conflict: A "Principled" Ap-
proach to the Regulation of Counter-Terror Combat Operations, 42 ISRAEL LAW REVIEW 46, 50
(2009).

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David Turns

43. See Turns, supra note 33.

44. Corn & Jensen, supra note 42.

45. While the plurality of the US Supreme Court in Hamdan v. Rumsfeld, supra note 28,
characterized the "War on Terror" as an "armed conflict not of an international character"
within the terms of Common Article 3, the Bush administration tended — where it said anything
at all on point — to describe the struggle more in terms of international armed conflict. See
Turns, supra note 3, at 468.

46. UK Manual, supra note 7, para. 2.1.

47. Corn & Jensen, supra note 42, at 60-67.

48. The United Kingdom applies the specific targeting rules contained in Additional Proto-
col I, which are clearly based on humanity, distinction and proportionality, to all armed con-
flicts, irrespective of their formal characterizations.

49. See CUSTOMARY INTERNATIONAL HUMANITARIAN LAW, SUpra note 1, vol. I.

50. Address to the Nation on Iraq from the USS Abraham Lincoln, 1 PUBLIC PAPERS 410
(May 1, 2003), full text available at WASHINGTONPOST.COM, May 1, 2003, http://
www.washingtonpost.com/ac2/wp-dyn/A2627-2003Mayl [hereinafter Bush Address].

5 1 . Knut Dormann & Laurent Colassis, International Humanitarian Law in the Iraq Conflict,
47 German Yearbook of International Law 293, 295 (2004).

52. International Committee of the Red Cross, Conflict in Iraq: Memorandum to the
Belligerents, 85 INTERNATIONAL REVIEW OF THE RED CROSS 423 (2003), available at http://
www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5PXGBD/$File/irrc_850_memorandum.pdf.

53. On their application in the first Gulf War, see US Department of Defense, Final Report to
Congress on the Conduct of the Persian Gulf War, Appendix O: The Role of the Law of War
(1992), reprinted in 31 INTERNATIONAL LEGAL MATERIALS 615 (1992).

54. See Dormann & Colassis, supra note 51, at 295-96.

55. See Eyal Benvenisti & Guy Keinan, The Occupation of Iraq: A Reassessment, which is
Chapter XIII in this volume, at 263.

56. That is, whether it can begin already during the invasion phase while advancing troops
take physical possession of territory, or whether there is a hiatus until the formal inauguration of
a stable occupation regime after the invasion phase has been completed. See Dormann 8c
Colassis, supra note 51, at 299-301. Although a strict interpretation of the wording of Article 42
of the Hague Regulations, annexed to Hague Convention No. IV, supra note 5 ("Territory is con-
sidered occupied when it is actually placed under the authority of the hostile army. The occupa-
tion extends only to the territory where such authority has been established and can be
exercised."), would suggest that the latter interpretation may be technically correct, the present
author agrees with Dormann and Colassis that it cannot have been intended that there should be
an intermediate period between invasion and occupation, when notionally no IHL at all would
be technically applicable.

57. Convention Relative to the Protection of Civilian Persons in Time of War art. 6, Aug. 12,
1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra
note 5, at 301 [hereinafter Geneva Convention IV].

58. Bush Address, supra note 50.

59. CPA Order Number 1 , De-Ba'athification of Iraqi Society and Government, CPA/ORD/
16 May 2003/01 (May 16, 2003), available at http://www.cpa-iraq.org/regulations/ (then De-
Ba'athification of Iraqi Society and Government hyperlink).

60. Remarks on the Appointment of L. Paul Bremer III as Presidential Envoy to Iraq and
an Exchange with Reporters, 1 PUBLIC PAPERS 440 (May 6, 2003). Note that the terms "CPA,"

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International Humanitarian Law Classification of Armed Conflicts in Iraq

"occupation" and "Administrator" (the latter being Bremer's eventual title in Iraq) are not
mentioned.

61. Provisions for the transfer of power from the CPA to the Iraqi interim government were
made by CPA Order Number 100, Transition of Laws, Orders, Regulations, and Directives
Issued by the Coalition Provisional Authority, CPA/ORD/28 June 2004/100 (June 28, 2004),
available at http://www.cpa-iraq.org/regulations/ (then Transition of Laws, Orders, Regulations,
and Directives Issued by the Coalition Provisional Authority hyperlink). The Order cited the
advertised date of June 30, 2004 for the transfer of power; in fact, the CPA ceased to exist two days
earlier, on the date that the Order itself was promulgated.

62. See Letter of 8 May 2003 from the Permanent Representatives of the United States of
America and the United Kingdom of Great Britain and Northern Ireland to the President of the
Security Council, U.N. Doc. S/2003/538 (2003) [hereinafter US/UK Letter]. This neither men-
tions the term "occupation" or "occupying powers" nor makes any reference to the 1907 Hague
Regulations, supra note 56, or 1949 Geneva Convention IV, supra note 57. Instead, it speaks only
of ill-specified "obligations under international law" for the coalition and refers to the then-
newly created Coalition Provisional Authority as an institution which would "exercise powers of
government temporarily."

63. S.C. Res. 1483, U.N. Doc. S/RES/1483 (May 22, 2003).

64. Although the Security Council in id. noted the US/UK Letter, supra note 62, it recog-
nized in the same paragraph of the preamble "the specific authorities, responsibilities, and obli-
gations under applicable international law of [the United States and the United Kingdom] as
occupying powers under unified command (the 'Authority')." The next paragraph further em-
phasized this identification of the United States and the United Kingdom by distinguishing them
from "other States that are not occupying powers [that] are working now or in the future may
work under the Authority."

65. Geneva Convention IV, supra note 57, art. 2. See also Paul Bowers, Iraq: Law of Occupa-
tion, Research Paper 03/51, House of Commons Library 1 1 (June 2, 2003) ("[a]s they took con-
trol of Iraqi territory the coalition entered the legal condition [sic] of being occupying powers");
Jordan Paust, The U.S. as Occupying Power over Portions of Iraq and Relevant Responsibilities un-
der the Laws of War, ASIL Insights, Apr. 2003, http://www.asil.org/insights/insighl02.htm ("the
duties of an occupying power are coextensive with its de facto control of territory").

66. U.N. SCOR, 58th Sess., 4762d mtg. at 1 1, U.N. Doc. S/PV.4762 (May 22, 2003).

67. R (Al-Skeini and others) v. Secretary of State for Defence [2008] 1 AC 153.

68. The multinational force that was to become known as MNF-I was first authorized by the
Security Council on October 16, 2003. S.C. Res. 1511, U.N. Doc. S/RES/1511 (Oct. 16, 2003).

69. S.C. Res. 1546, U.N. Doc. S/RES/1546 (June 8, 2004).

70. Agreement Between the United States of America and the Republic of Iraq on the With-
drawal of United States Forces from Iraq and the Organization of Their Activities during Their
Temporary Presence in Iraq art. 24(1), U.S. -Iraq, Nov. 1 7, 2008, available af http://www.mnf
-iraq.com/images/CGs_Messages/security_agreement.pdf.

71. Hans-Peter Gasser, International Non-International Armed Conflicts: Case Studies of Af-
ghanistan, Kampuchea, and Lebanon, 31 AMERICAN UNIVERSITY LAW REVIEW 911, 913 (1982)
(emphasis added).

72. International Committee of the Red Cross, Iraq post June 28, 2004: Protecting persons
deprived of freedom remains a priority, http://www.icrc.org/Web/Eng/siteengO.nsf/iwpList322/
89060107D77D7299C1256EE7005200E8.

73. United Nations High Commissioner for Refugees, UNHCR Eligibility Guidelines for
Assessing the International Protection Needs of Iraqi Asylum-Seekers 19 n.23 (2009).

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David Turns

74. KH, supra note 4, para. 75.

75. Hamdan v. Rumsfeld, supra note 28.

76. S.C. Res 1546, supra note 69, at 8 (text of letter from the Prime Minister of the Interim
Government of Iraq Dr. Iyad Allawi to the President of the Council), 10 (text of letter from the
United States Secretary of State Colin L. Powell to the President of the Council).

77. R (Al-Jedda) v. Secretary of State for Defence [2008] 1 AC 332. Article 25 of the Charter
requires all member States of the UN to comply with legally binding resolutions of the Security
Council passed under Chapter VII of the Charter (which Resolution 1546 was); Article 103 pro-
vides that legal obligations deriving from the Charter override all inconsistent legal obligations
deriving from any other rule of public international law.

78. E.g., the United Kingdom applies the targeting rules from IAC (which are contained in
Additional Protocol I), as customary international law, in all armed conflicts in which British
forces are engaged, irrespective of their formal characterizations. So does the United States, de-
spite not being a party to the Protocol. This is also true for both countries with respect to the
"fundamental guarantees" of humane treatment contained in Article 75 of Protocol I.

79. The United Kingdom has not recorded a formal position on the ICRC study, although
the matter will doubtless be addressed in the forthcoming second edition of the Manual of the
Law of Armed Conflict. The provisional US response to the study is contained in Letter from John
Bellinger III, Legal Advisor, U.S. Deptartment of State, and William J. Haynes, General Counsel,
U.S. Department of Defense, to Dr. Jakob Kellenberger, President, International Committee of
the Red Cross, Regarding Customary International Law Study, 46 INTERNATIONAL LEGAL
MATERIALS 514 (2007).

80. For a summary of the relevant case law, see Christine Byron, Armed Conflicts: Interna-
tional or Non-International?, 6 JOURNAL OF CONFLICT & SECURITY LAW 63 (2001).

81. See Yoram Dinstein, Concluding Observations: The Influence of the Conflict in Iraq on In-
ternational Law, which is Chapter XIX in this volume, at 479.

82. Gasser, supra note 71, at 920.

83. S.C. Res. 1546, supra note 69, at 11 (emphasis added).

84. Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02, Judg-
ment (Dec. 13, 2006), 46 INTERNATIONAL LEGAL MATERIALS 373 (2007), available at http://
elyon 1 xourt.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf.

85. See, e.g., Andreas Paulus & Mindia Vashakmadze, Asymmetrical War and the Notion of
Armed Conflict— A Tentative Conceptualization, 91 INTERNATIONAL REVIEW OF THE RED CROSS
95, 1 12 (2009). See also the discussion of the 2006 conflict between Israel and Hezbollah in Leba-
non in Sylvain Vite, Typology of Armed Conflicts in International Humanitarian Law: Legal Con-
cepts and Actual Situations, id. at 69, 90-92.

86. Theodor Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's
Fallout, 92 American Journal of International Law 236, 239 (1998).

87. Gasser, supra note 71, at 914-15.

88. E.g., under Article 12 of Geneva Convention III, the continuing international legal re-
sponsibility of the detaining power for POWs transferred to another authority where the latter
fails to respect the Convention; under Articles 118-19, release and repatriation of POWs "after
the cessation of active hostilities." Convention Relative to the Treatment of Prisoners of War,
Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR,
supra note 5, at 244.

89. Gasser, supra note 7 1 , at 9 1 5.

90. Id. at 917-18.

123

PART IV

THE LAW OF ARMED CONFLICT IN IRAQ

VII

Legal Considerations in Relation to
Maritime Operations against Iraq

Neil Brown*

It is twenty years since I first visited the headquarters of US Naval Forces Cen-
tral Command (USNAVCENT) in Bahrain. I have been there on many occa-
sions since, whether on board visiting ships or on headquarters staffs. On my last
visit, in May 2009, to call on the UK's Maritime Component Commander — who is
also the Deputy Commander of the Combined Maritime Forces (CMF) under the
operational command of the Commander, Naval Forces United States Central
Command — I was struck not only by the enormous physical development of the
US and CMF headquarters footprint in Bahrain, but by the pace and character of
the maritime security operations that stretch from the northern Arabian Gulf to
the Horn of Africa, the developed legal underpinning of those missions, and by the
unprecedented levels of genuine international cooperation, particularly between
the US-led CMF and the task groups of NATO, the European Union and the many
other nations conducting counter-piracy operations. In examining the conduct of
maritime operations by coalition forces in Iraq since 2003, and the reasons for
them, it is first necessary to consider what is a highly complex background.

* Commodore, Royal Navy. The views expressed in this article are those of the author and do not
represent those of the Royal Navy, the United Kingdom Ministry of Defence or Her Majesty's
Government.

Legal Considerations in Relation to Maritime Operations against Iraq

Background

A simple list of the major maritime operations conducted in the USNAVCENT
area of responsibility during the last twenty years — from the protection of mer-
chant shipping during the Iran-Iraq war, the first Gulf War following the Iraqi in-
vasion of Kuwait, the use of maritime interdiction operations to enforce UN
sanctions against Iraq, the use of maritime aviation in policing the southern Iraqi
no- fly zones, and maritime security operations in relation to international terror-
ism and weapons of mass destruction (WMD) proliferation after the 9/11 attacks
on the United States to the mission in Iraq since 2003 — demonstrates how this area
has been at the cutting edge of maritime operations, many of which generated
novel and complex legal issues. It is striking, therefore, to observe at the outset that
notwithstanding their scale and complexity, they have not generated the develop-
ment in the case of the law of armed conflict at sea that has been seen in other areas
of the law of armed conflict (LOAC) over the same period. 1

There are a number of reasons for this. The simplest, of course, is that with only
two exceptions, namely the Gulf wars in 1991 and 2003, maritime operations were
not a part of an international armed conflict at sea. Whether conducted under the
explicit authority of the UN Security Council (e.g., Security Council Resolution
665, 2 authorizing maritime interdiction to enforce the sanctions against Iraq estab-
lished under Resolution 66 1 3 ), or amid the confusion that prevailed after 9/11 con-
cerning international terrorism or in the face of the increasing dangers of the
proliferation of WMD, the laws that regulated the conduct of maritime operations
were generally not found in the LOAC but in other areas of existing international
law and the use of force was generally consistent with domestic law enforcement.

It is also appears that much legal debate during the Cold War and in its immedi-
ate aftermath was complicated by a reticence on the parts of some States to claim
for themselves — or even to recognize in others — certain belligerent rights or use
even the language of the law of armed conflict at sea. 4 When asked in 1990 whether
coalition naval forces had established a blockade, US Secretary of State James Baker
replied accurately, but in a manner that set the tone for a considerable period sub-
sequently: "Let's not call it a blockade. Let's say we now have the legal basis for in-
terdicting those kinds of shipments." 5

Against this background, the focus of debate in 1990 was thus centered on
whether boarding operations were conducted under Article 41 or 42 of the UN
Charter, the relationship between those UN Security Council authorizations and
the right of national self-defense under Article 5 1 of the Charter, and, of course, the
great question that became prevalent again in 2003, that of Iranian neutrality.

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Neil Brown

Iranian Neutrality

While the mechanism in the 1990-91 Security Council resolutions restricting the
legal authorization to conduct operations against Iraq to "those states cooperating
with the Government of Kuwait" provided an effective and helpful legal limitation
on membership of the 1991 coalition, the general duty on other States to cooperate
was not so restricted and so the notion of Iranian or any other neutrality (as op-
posed to support) was the cause of some legal debate. If coalition forces were acting
under Article 5 1 , the thinking went, Iranian territorial seas would be neutral waters
to be respected by all belligerents. If, however, operations were carried out under
the direct authority of Resolution 678 6 and those participating were able to use all
necessary means, how could Iran, requested like all States to provide appropriate
support, claim to be neutral?

Why was this significant in 2003? Three issues stand out; each influenced con-
sideration of maritime operations in 2003. First, one reading of the US position on
thejws ad bellum in 2003 suggested the 1991 Security Council authority had been
resuscitated 7 and the 1991 debate on the impact of UN authority on neutrality
therefore revived, although many commentators have suggested that this would
only have been a real issue had there been a so-called "second resolution" in 2003
authorizing the immediate use of force to disarm Iraq. Second, certain resolutions,
not least Resolution 665, which authorized maritime interdiction operations
against all vessels entering and leaving Iraq in order to enforce the UN sanctions,
were still in place in 2003. And finally, while the coalition operations in 1991 to
remove Iraqi forces from Kuwait were most likely welcomed by Iran and were con-
ducted without encroaching near Iranian territory or disputed maritime zones, the
same could not be said for operations after the invasion in 2003.

Although considerations of the law of neutrality and the question of Iran neu-
trality are important, their practical significance was initially limited. The interna-
tional armed conflicts involving coalition forces in 1991 and 2003 presented, in
relation to Iraq, Iran and Kuwait, particular operational and tactical complexities
that considerably affected both the conduct of maritime operations and the appli-
cation of the law that underpinned them. The foremost was geography: set at the
head of the northern Arabian Gulf, Iraq has a coastiine of only thirty- five miles and
a very small territorial sea. Iraqi territorial seas are significantly bounded by those
of Kuwait and Iran, and the history of all three States during the rule of Saddam
Hussein was not only one of strikingly different positions in relation to the West,
but of sustained animosity toward each other due in no small part to historical dis-
putes over their territories and over the maritime borders that subdivided a small

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Legal Considerations in Relation to Maritime Operations against Iraq

and heavily congested sea area through which were accessed the great waterways of
the Khor Al-Abdullah and, in particular, the Shatt Al-Arab. 8

In 1991, Iran had made its intention to "refrain from engagement in the present
armed conflict" clear in statements to the United Nations, 9 and subsequently
warned belligerents that their aircraft and vessels should not enter Iranian airspace
and territorial seas, and threatened to impound aircraft from either side. In the
politico-legal circumstances that preceded the 2003 invasion of Iraq, Iran did not
make formal statements at the United Nations but there is evidence that in 2003 it
was determined to be cast again as a neutral and was widely reported in the press as
expecting this to be respected. Indeed, it appears that in the early stages of offensive
operations, the Iranian government set up field hospitals near the Kurdish border
to treat victims of the war in Iraq, but then refused admission to injured fighters of
Ansar al-Islam. 10 It could, of course, be speculated that this was an Iranian attempt
to be seen to be neutral in relation to Operation Enduring Freedom, as well as
Operation Iraqi Freedom.

While coalition forces involved in the invasion of Iraq in 2003 took steps to
avoid encroaching upon Iranian territory, the nature of the invasion and occupa-
tion inevitably brought them close to Iran in a way that had not occurred in 1991.
While during offensive operations in 2003 there was no Iranian interference with
coalition forces — quite possibly due in part to the decision of coalition command-
ers not to conduct a full-scale amphibious assault — the disputes in relation to the
maritime border and the status of the Treaty of Algiers created ambiguity that,
along with Iran's questionable "neutrality" from 2004, became problematic dur-
ing the occupation and thereafter while coalition forces remained in Iraq under
the authority of Security Council Resolution 1483 11 and subsequent resolutions.
With the regime changes in Baghdad and Tehran in the intervening period, the
contradictory statements emanating from each capital and the small matter of the
1980-88 war, the status of the Treaty of Algiers 12 is a matter of much debate. As a
minimum, the treaty agreed that the riverine border would follow the thalweg
(which it identified), and established a detailed process for the parties acting to-
gether to track the natural movement of the thalweg and verify the border on a
regular basis. Relations between the countries ensured that after the signing of the
treaty none of these events ever occurred and this, and the shifting river delta, was
later to create a toxic situation, notably for UK forces in command of Multi-
National Division South East based in Basrah, which saw Royal Navy and Royal
Marines personnel in small boats on the Shatt Al-Arab waterway captured and
in due course held for short periods by the Iranian authorities in two separate
incidents in 2004 and 2007. 13 On each occasion, UK personnel were demonstrably
on the Iraqi "side" of the waterway. In both cases, which occurred after the

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conclusion of the international armed conflict with Iraq, Iran was not entitled to
seize the UK personnel and under international law would only have had the au-
thority to request (and if necessary require) them to leave Iranian territorial seas
immediately. An interesting legal issue, although not tested at the time, may have
been whether, either during the belligerent occupation or subsequently when
present in Iraq under explicit UN Security Council authority (and charged with
preserving the sovereignty and territorial integrity of Iraq), the coalition forces
may have been able to represent themselves as agents of the new Iraqi government
and rely on Article 7 of the Treaty of Algiers, which provides warships and State
vessels of Iran and Iraq access to the whole of the Shatt Al-Arab waterway and the
navigable channels to the territorial sea, irrespective of the line delimiting the ter-
ritorial seas of each of the two countries.

Other Aspects of Maritime Operations from 2003

Given the profile of the tortuous process of international diplomacy, including that
at the Security Council, and the added dimension of UN weapons inspections in
Iraq, much press speculation has surrounded the political and legal controversy of
the decision to commence coalition operations against Iraq in 2003. It was clear to
those involved in military contingency planning during that period that any opera-
tion to disarm Iraq would require the removal of the regime of Saddam Hussein
and would precipitate an international armed conflict between sovereign States
that comprised conventional hostilities and belligerent occupation as regulated by
the LOAC. 14

Press speculation as to possible land operations launched from Turkey (from
where the northern no-fly zone had been policed by US and UK aircraft) is well
documented. The subsequent refusal of Turkey to approve the northern option
meant that Operation Iraqi Freedom would require a massive sealift to the north-
ern Arabian Gulf, the presence there of maritime aviation and amphibious capabil-
ity and of maritime-launched missiles, and, of course, the presence of maritime
forces to counter the limited naval-mine and land-launched-missile threat and to
protect the oil terminals crucial to Iraq's future economic viability.

Sealift

Notwithstanding prepositioning, the requirement to move naval units and mas-
sive volumes of military equipment from the United States and the United King-
dom in particular to the northern Arabian Gulf saw extensive use of the Strait of
Gibraltar, the Suez Canal, the Strait of Bab al-Mandeb and the Strait of Hormuz.
Although predominantly conducted prior to the invasion, this movement through

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Legal Considerations in Relation to Maritime Operations against Iraq

international straits and the Suez Canal continued during the operation and, not-
withstanding the lack of international support, no real threat was made to the tran-
sits nor were there protests against the nonsuspendable right of straits passage
applicable in peace and war. 15 While it may be stretching the point to say that every
littoral State was consciously discharging its obligations as a neutral under interna-
tional law, it is probably safe to assert that each acted consistently with the obliga-
tions in international law set out in the San Remo Manual. 16 Indeed, the only
documented attempts to interfere with coalition shipping occurred at Marchwood
Military Port in the United Kingdom where anti-war protesters attempted to pre-
vent Royal Fleet Auxiliary and other supply ships from sailing. The protestors were
subsequently tried and convicted of trespass and criminal damage offenses, the de-
fense that their action was permitted under UK domestic law as necessary to avert
the crime of aggression having failed. 17

Maritime Aviation

While significant air assets were based on land in the Gulf region, the presence of
US and UK aircraft carriers, operating both fixed-wing aircraft and helicopters,
was critical to the coalition in providing fighter and strike capability, airborne early
warning and helicopter lift for the invasion force. Although easily taken for
granted, the freedom of maneuver afforded by the 1982 UN Convention on the
Law of the Sea 18 to move maritime forces to the territorial sea limits of any State
and to operate there with direct access to Iraq from the high seas and international
airspace provided a unique operating capability for maritime forces free from the
risk of outright refusal to operate from or over territories, or from restrictions and
conditions in relation to aircraft numbers and missions, by any host State.
Airstrikes by carrier-borne aircraft were integrated into the combined and joint
coalition targeting process and the air tasking order (ATO) cycle, which enabled a
coherent approach to deliberate targeting to be conducted under the direct com-
mand of the coalition targeting coordination board that sat daily (and at which the
senior US and UK legal advisers were Navy lawyers). In contrast to the first Gulf
War, where the air campaign generated much debate about the application of
Additional Protocol I, it is probably fair to say that, although it still did not apply as
a matter of law (because Iraq had not signed and the United States had not rati-
fied), the principles codified in Article 57 in particular were followed in practice.
This was made possible by increased technology, better coalition interoperability
and the fact that, in reality, high-intensity offensive operations were conducted
only for a short period and were successful.

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Naval Fires

While much air targeting was deliberate and subject to the ATO process, even ex-
pedited processes could not keep pace with the pace of the land maneuvers, and in
the same manner close air support and artillery were provided, warships were also
used to provide crucial indirect fires. In these circumstances the role of legal advis-
ers in theater was to ensure that those authorizing the fires (ground commanders,
forward controllers or ship's commanding officers based on the tactical situation)
fully understood their legal obligations in relation to precautions in attack.

Maritime Offensive Operations

With the Iraqi navy largely destroyed in 1991, conventional naval operations
against belligerent naval units were largely restricted to dealing with what was a
very limited naval mining capability. Coalition forces having quickly established
sea control, the remaining threat was essentially an asymmetric one and the poten-
tial threat carried in vessels entering and, in particular, leaving Iraq.

Maritime Interdiction Operations

Although permitted under the law of armed conflict, for geographical and opera-
tional reasons there was no realistic prospect of establishing an effective blockade
of Iraq in accordance with the rules set out in the San Remo Manual. 19 During the
international armed conflict in 2003, while it was determined by coalition partners
that their naval forces could as a matter of law have exercised belligerent rights of
visit and search against enemy and (in certain circumstances) neutral vessels, this
never occurred. Indeed, on this issue there was greater legal divergence in coalition
positions than in any other area, even if in practice the units themselves performed
identical missions. While the law of armed conflict at sea permits belligerent war-
ships to board enemy merchant vessels and those neutral vessels suspected of car-
rying contraband to enemy territory, these powers were narrower than those
available under Resolution 665. Faced with this reality, and mindful of the require-
ment to prevent key personnel, weaponry and WMD or related materials from
leaving Iraq (given that the UK legal basis was Iraqi disarmament), the United
Kingdom decided to rely solely upon the UN Security Council resolutions that per-
mitted the use of all necessary means to stop and search all inward and outward
shipping, and to seize any goods breaking the comprehensive sanctions against
Iraq. US naval forces, on the other hand, sought in addition to establish the neces-
sary mechanisms to be able to exercise the belligerent rights of visit and search. A
contraband list was produced, US courts to conduct prize court hearings and special
commissioners were identified, and a concept of operations developed. Neither the
United Kingdom nor Australia established similar processes, both noting the

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Legal Considerations in Relation to Maritime Operations against Iraq

unique circumstances of the Resolution 665 authority. Neither country issued a
disavowal of the right of visit and search.

Prisoners of War

The Third Geneva Convention states that prisoners of war (PWs) maybe interned
only in premises located on land. 20 While adequate provision was made for both
UK and US prisoner of war camps in Iraq with sufficient capacity for the expected
numbers, it was clear that the invasion, and in particular the helicopter assault of
the Al Faw Peninsula by 3 Commando Brigade Royal Marines, would generate
PWs and casualties in the earliest stages of the operation and before the first PW
camps were in place. In these circumstances, arrangements were made by senior
UK commanders for PWs and casualties to be transported to and temporarily held
in Royal Navy warships until PW facilities were available ashore. While not an ideal
scenario for naval commanders, and not a measure to be taken lightly in view of the
existing law, this was deemed a prudent contingency to provide a realistic and rea-
sonably safe temporary option in view of the relatively low risk to the warships in
the northern Arabian Gulf.

Casualties

Whereas the Royal Navy during the Falklands war had participated in the establish-
ment of a "Red Cross Box" along with Argentina and the International Committee
of the Red Cross, 21 no such provisions had been adopted in 1991 when, among
other factors, there were extensive facilities available ashore. Commentators have
speculated as to why similar shore-based facilities were not available in 2003, nota-
bly in neighboring States. In their absence a similar problem to that encountered
with prisoners of war presented itself to the coalition. The Royal Navy, for its part,
while mindful that it was not protected against attack under the law, used the Royal
Fleet Auxiliary RFA Argus, an aviation training ship with troop accommodation
that had been extensively equipped as a primary casualty reception ship, for the
treatment of both coalition and Iraqi casualties alike, strictly according to their
medical need. 22 Iraqi casualties were transferred to medical facilities or the United
Kingdom's PW camp at Umm Qasr at the earliest opportunity. While Argus is
capable of being used as an "other medical ship" within the definition of Article 23
of Additional Protocol I, any protection afforded to it would have ceased in 2003
(in accordance with Art 23.3) given that its wider operational tasking brought it
within Article 34 of the Second Geneva Convention.

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Protection of Iraq's Oil Terminals

While Iraqi oil was not a coalition war aim, it was well understood that Iraq's future
economic viability and its ability to recover after years of neglect under the regime
of Saddam Hussein would require Iraq to gain early access to oil revenue. While
Iraqi oil facilities and pipelines ashore came under sporadic attack, the key facilities
were the Al Basrah and Khawr Al Amaya oil terminals in Iraqi territorial seas where
almost all Iraqi oil was loaded into oil tankers. Protection of those facilities was
therefore accommodated within wider operational planning (they were seized by
US and Polish forces during the opening hours of the invasion) and on completion
of the high-intensity operations became perhaps the most significant maritime
task. When on April 24, 2004 a suicide attack by a vessel-borne improvised explosive
device killed two US Navy sailors and one Coast Guardsman, the two-nautical-mile
security zone around each terminal was replaced with a three-thousand-meter
warning zone and a two-thousand-meter exclusion zone. The greatest legal signifi-
cance of this step was what the zones did not do. Neither zone, even the exclusion
zone, created a trigger or "line of death." Instead, the zones complemented a sys-
tem of layered defense that permitted combat indicators of threats to be detected
and warnings given, and so inform commanders as to whether and what force was
necessary to protect the terminals and the people on them (both military and oil
workers). This took into account the density of merchant shipping in what is a con-
fined area, the proximity of international waters and both Iranian and Kuwaiti ter-
ritorial seas. It left judgment with commanders who were clear as to their mission,
who could choose not to use lethal force against fishing vessels inadvertently drift-
ing close to the terminal, but who at the same time could be confident that if they
detected an imminent threat at a distance even beyond the outermost warning
zone, they could act decisively. In the aftermath of the April 24 attack, these pro-
posals, made by the USNAVCENT Staff Judge Advocate, were staffed by UK legal
advisers and commanders, and received UK approval in a day.

Conclusion

The establishment in 2009 of Combined Task Force Iraqi Maritime, under alter-
nate US and UK command, with a mission to train the Iraq navy to take responsi-
bility for the policing of Iraqi territorial seas and protection of the oil terminals
brought within sight the end of a mission commenced in 2003, and perhaps en-
gagement in the northern Arabian Gulf — an engagement that can be traced to the
naval patrols that began to protect shipping during the Iran-Iraq war.

While maritime forces conducting operations in the armed conflicts of 1991
and 2003 did operate within the parameters of the law of armed conflict, it is clear

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that, due to a unique combination of geographical, geopolitical, historical and
operational factors at play, elements of the law of armed conflict at sea were not uti-
lized in full or at all. That does not mean that those parts are necessarily less rele-
vant or that they are somehow discredited; maritime powers must be slow to see
them removed from national manuals, doctrine and training. As recent activity in
the USNAVCENT area of responsibility, and not least off the Horn of Africa, con-
tinues to demonstrate, maritime operations have a key role to play in global secu-
rity, particularly where the maritime powers are called upon to deal with threats to
security caused or exacerbated by failed or failing States. Dealing with these within
the existing international law framework, and understanding the implications for
maritime operations of the growing impact of human rights legislation on opera-
tions generally, is an essential element in preserving freedom of maneuver for mar-
itime commanders. Careful consideration of high- intensity maritime operations
and those parts of the law of armed conflict that will regulate them is a critical ele-
ment in future-proofing that process. In operations in the northern Arabian Gulf
since 2003 some important modern lessons have been learned.

Notes

1. Reflected in such studies as CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (2 vol-
umes: Vol. I, Rules; Vol. II, Practice (2 Parts)) (Jean-Marie Henckaerts & Louise Doswald-Beck
eds., 2005) and in the categorization of combatants. See NILS MELZER, INTERPRETIVE GUIDANCE
ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL
HUMANITARIAN LAW (2009), available at http://www.icrc.org/Web/eng/siteengO.nsf/htmlall/
review-872-p991/$File/irrc-872-reports-documents.pdf.

2. S.C. Res. 665, U.N. Doc. S/RES/665 (Aug. 25, 1990).

3. S.C Res. 661, U.N. Doc. S/RES/661 (Aug. 6, 1990).

4. The example often cited involves the UK statements following the torpedoing by HMS
Conqueror of the Argentine cruiser ARA General Belgrano during the 1 982 Falklands conflict, but
a more pertinent example here might be the differing positions taken by the United States and
the United Kingdom on ship boardings by Iranian forces during the Iran-Iraq war of 1980-88.
Whereas the United States characterized the boarding operations as an exercise of belligerent
rights, the United Kingdom, in relation to the boarding of a UK-flagged vessel, referred to the
Iranian right to rely on the UN Charter Article 5 1 right of self-defense, which would appear to
limit the belligerent right to exercise visit and search of neutral shipping. 90 Hansard, House of
Commons, col 426, Jan. 28, 1986.

5. Simon Tisdall, Crisis in the Gulf: West seeks total naval blockade, GUARDIAN (London),
Aug. 13, 1990.

6. S.C. Res. 678, U 3, U.N. Doc. S/RES/678 (Nov. 29, 1990) ("Requests all States to provide
appropriate support for the actions undertaken in pursuance of paragraph 2," which authorized
all necessary means).

7. Letter Dated 20 March 2003 from the Permanent Representative of the United States of
America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/
2003/351 (Mar. 21,2003).

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Neil Brown

8. Although there is no formal agreement between Iraq and Kuwait over their shared border,
the UK commander of Combined Task Force 158 in 2006 brokered an agreement between the
Iraqi and Kuwaiti navies and coast guards to coordinate access to maritime zones.

9. Letter Dated 23 January 1991 from the Permanent Representative of the Islamic Repub-
lic of Iran to the United Nations Addressed to the Secretary-General, U.N. Doc. S/22 141 (Jan. 23,
1991).

10. Ansar al-Islam (Supporters of Islam) is a militant Islamic Kurdish separatist movement
with ties to Iraq that seeks to transform Iraq into an Islamic state. See Background Q&A: Ansar al-
Islam (Iraq, Islamists/Kurdish Separatists), http://www.cfr.org/publication/9237/ (last updated
Nov. 5, 2008).

1 1. S.C. Res. 1483, U.N. Doc. S/RES/1483 (May 22, 2003).

12. Treaty Concerning the State Frontier and Neighbourly Relations between Iran and Iraq,
Iraq-Iran, June 13, 1975, 1017 U.N.T.S. 136.

13. On June 21, 2004 eight Royal Navy/Royal Marines personnel were captured while con-
ducting a riverine patrol in the Shatt Al-Arab and held for three days before being released. On
March 23, 2007 fifteen Royal Navy/Royal Marines personnel were captured in the approaches to
the Shatt Al-Arab in the vicinity of a vessel they were about to conduct a routine boarding of; they
were held for twelve days before being released.

14. Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316,
75 U.N.T.S. 135 [hereinafter GPW] ; Convention Relative to the Protection of Civilian Persons in
Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of International
Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3; all reprinted in DOCUMENTS ON THE LAWS OF
WAR (Adam Roberts & Richard Guelff eds., 3d ed. 2000) at 244, 301 and 422, respectively.

15. United Nations Convention on the Law of the Sea art. 38, Dec. 10, 1982, 1833 U.N.T.S. 3,
reprinted in 21 INTERNATIONAL LEGAL MATERIALS 1261.

16. INTERNATIONAL INSTITUTE OF HUMANITARIAN LAW, SAN REMO MANUAL ON
INTERNATIONAL LAW APPLICABLE TO ARMED CONFLICTS AT SEA 105, para. 29 (1995) [hereinaf-
ter San Remo Manual].

17. R v. Jones and others [2006 UKHL 16]. The House of Lords ruled that customary
international law was, without the need for any domestic statute or judicial decision, part of
the domestic law of England and Wales, but that the appellants had no defense in arguing that
they were trying to prevent what they referred to as a war of aggression.

18. Supra note 15.

19. San Remo Manual, supra note 16, 176-80.

20. GPW, supra note 14, art. 22.

21. See Sylvie-Stoyanka Junod, Protection of the Victims of Armed Conflict
Falkland-Malvinas Islands, 1982: International Humanitarian Law and
Humanitarian Action ch. 3 (1984).

22. GPW, supra note 14, art. 30 ("Prisoners of war . . . whose condition necessitates special
treatment . . . or . . . care . . . must be admitted to any military or civilian medical unit where such
treatment can be given ...").

137

VIII

Come the Revolution: A Legal Perspective on
Air Operations in Iraq since 2003

Charles J. Dunlap, Jr.*

Introduction

Has the early part of the twenty-first century shown the most dramatic revolu-
tion in the role of law in armed conflict in history? 1 Evidence suggests that it
has. Today, for example, allegations about civilian casualties often dominate our dis-
cussions about strategy in irregular war, itself a phenomenon that, according to the
National Defense Strategy, will preoccupy our military services for years to come. 2

Indeed, as will be discussed below in more detail, adherence to law in armed
conflict fact and perception is increasingly a central, if not defining, concern of field
commanders, as well as military and civilian leaders at every level. It is appropriate
then to pause for a moment and discuss our experiences in Iraq since 2003, and to
see what lessons we should — and should not — draw from them. Of course, there
are many aspects of the role of law — and lawyers — but this paper will confine itself
to some of the issues that arose from the use of airpower.

Combat Operations

Perhaps the most dramatic change during the major combat operations (MCO)
phase of Operation Iraqi Freedom (OIF) 3 that impacted adherence to the law of

* Major General, United States Air Force. The views and opinions expressed are those of the
author alone and not necessarily those of the Department of Defense or any of its components.

Come the Revolution: A Legal Perspective on Air Operations in Iraq since 2003

armed conflict (LOAC) was the vast increase in precision-guided munitions
(PGMs) 4 employed by coalition air forces (even though their employment is not, per
se, required by LOAC). 5 During 1991's Operation Desert Storm, just 8 percent of the
air-delivered bombs and missiles were PGMs. 6 By contrast, during the MCO phase
of OIF that percentage rose to nearly 68 percent. 7 Today, virtually all are PGMs.

PGMs provided unique opportunities to minimize the risk to civilians and their
property, a central aim of LOAC. Consider this 2003 report from Time magazine
about the early phases of OIF:

Judging from the look of the [OIF] battlefields today, the bombing was largely surgical.
In the open market in Mahmudiyah, five tanks were hit from the air while they were
parked in alleyways so narrow that their gun turrets could not be turned. The
storefront windows a few feet away were blown out, but otherwise the surrounding
buildings are intact. 8

Besides PGMs, something of a more strategic mindset was at play during OIF. In
short, simply because a particular target might lawfully be struck, that did not mean
that it would be attacked. In fact, "hundreds of bridges, rail lines, power stations
and other facilities" as well as "communication nodes and a few leadership sites"
were spared. 9

The targeting restraint demonstrated not only a better understanding of legal
and moral imperatives, but also the practicalities of twenty- first- century opera-
tions. For example, one aviator observed that "[a] lot of care was put into selecting
only those valid military targets that were absolutely essential to assist in taking
Baghdad and securing the country" because planners knew that "anything destroyed
from the air, like Iraqi roads, bridges, and power-generating stations, would have
to be rebuilt during the post-war period." 10

It appears that this pragmatic mindset, along with the revolutionary new muni-
tions technologies, helped OIF air operations adhere to LOAC. Even Human Rights
Watch (HRW), in its December 2003 report entitled Off Target: The Conduct of the
War and Civilian Casualties in Iraq, gave a largely favorable assessment to the air
campaign. 11 Although highly critical of leadership targeting and the use of cluster
munitions, HRW nevertheless acknowledged that coalition forces "took significant
steps to protect civilians during the air war." 12 In particular, HRW concluded that
"air strikes on preplanned fixed targets apparently caused few civilian casualties,
and ... air forces generally avoided civilian infrastructure." 13

Despite an initially slower pace of kinetic air operations after 2003, 14 the Air
Force continued to develop technologies to enhance the ability to apply force with
great discretion. While the MCO phase did feature a "far greater use of overhead

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Charles J. Dunlap, Jr.

imagery" than in previous conflicts, 15 the truly revolutionary improvement in in-
telligence, surveillance and reconnaissance (ISR) 16 capabilities did not come to
fruition until unmanned aerial vehicles (UAVs) became widely available. 17

The growth in the number of drones — many of which are now armed — has
been mind-boggling. From a mere 167 in the military's inventory in 2001, there are
now over 5,500. 18 These assets have been especially important during the insur-
gency or "irregular war" phase of operations in Iraq because they can provide what
some are calling an "unblinking eye" on enemy activities without risk to friendly
troops. 19 Consider this 2008 report from journalist Mark Benjamin:

The Air Force recently watched one man in Iraq for more than five weeks, carefully

recording his habits — where he lives, works and worships, and whom he meets The

military may decide to have such a man arrested, or to do nothing at all. Or, at any
moment they could decide to blow him to smithereens. 20

The new technologies are transforming the way twenty-first-century conflicts
are fought. According to retired Army General Barry McCaffrey the marriage of
unmanned ISR platforms like the MQ-1 Predator, 21 the MQ-9 Reaper 22 and the
RQ-4 Global Hawk, 23 with PGMs such as the various Joint Direct Attack Munitions 24
constitutes a "100 year war- fighting leap-ahead" that has, McCaffrey insists, "fun-
damentally changed the nature of warfare." 25

The synergistic effect of persistent ISR with precision strike in irregular warfare
was exemplified by the 2006 airstrike in Iraq that killed the notorious Al Qaeda
leader Abu Musab al-Zarqawi. In a recent CBS 60 Minutes* interview, General
Norton Schwartz, the Air Force Chief of Staff, explained:

Here's the way it goes. You had 600 hours of Predator time over a lengthy period . . .
following Zarqawi. And then you had maybe six minutes of F-16 time to finish the
target. It reflects again the power of the unmanned systems to produce the kind of
intelligence that leads you to a guy like Zarqawi, who was very good at maintaining his
anonymity. 26

When ISR capabilities are available, the task of the legal advisor is greatly
facilitated because the deliberateness they allow also permits steps to be taken to
limit civilian casualties, especially with respect to preplanned targets. The senior Air
Force judge advocate currently forward deployed notes the revolutionary impact
of ISR on LOAC compliance relative to previous conflicts:

It's airborne ISR that gives us the ability to actually apply [LOAC] principles (with
almost mathematical precision) that were originally just concepts. In WWII, for

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Come the Revolution: A Legal Perspective on Air Operations in Iraq since 2003

example, we could merely speculate about where a bomb or an artillery round would
land. Frequently, we were guessing about the target at which we were aiming. Now, we
most often have photos of the target and often have FMV [full motion video] of the
target area before, during and after the strike, so we can know with near certainty what
collateral casualties or damage we are likely to cause. 27

Without question, the key to such "near certainty" is, again, the availability of
both accurate ISR and the time to digest the data it produces. The proverbial "fog" 28
of war still applies, and command decisions may have to be made on the basis of
"incomplete" data, as was especially the case early in OIF. 29 Nevertheless, airpower
has rather unexpectedly proved vital to the counterinsurgency success the United
States has enjoyed in Iraq in recent years.

Ironically, even the relatively recently published counterinsurgency doctrine
does not fully reflect the full potential of contemporary airpower. In fact, the
Army and Marine Corps counterinsurgency manual, 30 unveiled in December of
2006, sought to discourage the use of airstrikes, 31 largely because, it appears, the
drafters relied heavily upon case studies from the 1950s, '60s, and '70s, long be-
fore today's ISR and precision-strike capabilities became available. Regardless, it
is extremely noteworthy that, despite the doctrine, real success in suppressing in-
surgent activity in Iraq did not come until 2007, a year that saw airstrikes sky-
rocket by fivefold. 32

New technologies have served to significantly reduce — albeit not eliminate —
the risk to innocent civilians. To the surprise of some observers, airstrikes have not
been a leading cause of civilian casualties in Iraq. 33 Specifically, although critical of
air attacks in civilian areas, a just-published New England Journal of Medicine study
of civilian casualties in Iraq from 2003 to 2008 found that aerial bombs and missiles
accounted for only 5 percent of the civilian casualties (as opposed to, for example,
20 percent attributed to small arms fire). 34

That said, it is a mistake to conceive of the LOAC revolution strictly in terms of
new technologies; it also involves fresh approaches to organizing, training and em-
ploying judge advocates (JAGs).

The Legal Architecture

Although Air Force JAGs had been forward deployed for operations virtually since
the service's inception, 35 they were not typically found 36 in what we would now
call air and space operations centers (AOCs). 37 However, a 1988 Joint Chiefs of
Staff directive required legal review of operations' planning, and that provided a
basis to regularize the JAG presence in AOCs beginning with 1989's Operation
Just Cause in Panama. 38 That presence continued through various operations,

142

Charles J. Dunlap, Jr.

including Operation Desert Storm as well as the enforcement of the no-fly zone
over Iraq during the 1990s. 39

The air-oriented operations in Afghanistan during Operation Enduring Free-
dom in 2001-2 had "heavy" JAG involvement. 40 Thus, prior to the start of MCO in
Iraq in 2003, it was expected that J AGs would serve in the AOC. Preparation for
that service was facilitated by the participation of several Judge Advocate General's
Corps members in Internal Look, an exercise that took place in late November and
early December of 2002. According to one participant, the "rigorous exercise en-
abled JAs to gain experience . . . while [also] learning the computer software appli-
cations that would be utilized during the conflicts." 41

Mastering the computer systems used in AOCs is an essential skill for JAG advi-
sors. Because many of these systems are unique to that environment, all Air Force
JAGs who serve in AOCs must attend the Air Force Air Operations Center Initial
Qualification Training Offensive Course conducted at Hurlburt Field, Florida. 42
This five-week course is standard for all AOC personnel, regardless of career field,
and covers doctrine, AOC organization and processes, air battle plan development,
air tasking order 43 production and execution, operational assessment and more. 44

While the course is much concerned with developing a common understanding
of the concepts applicable to the command and control of the air component, it
also provides "hands on" instruction on the Theater Battle Management Core Sys-
tems and the Automated Deep Operations Coordination System. Those systems,
along with the Information Work Space communications process, as well as the
"mIRC" system (an Internet Relay Chat network), are critical tools for anyone work-
ing in the AOC, to include legal personnel. Beyond mastering these technologies,
JAGs must also learn the applicable collateral damage estimation methodology. 45

Writing in a 2006 article for Foreign Affairs, Dr. Colin Kahl, now Deputy Assis-
tant Secretary of Defense for the Middle East, 46 describes this process as one that
"uses computer software and human analysis to estimate possible civilian casual-
ties for every target studied." 47 In essence, Dr. Kahl says, it requires commanders
and their legal advisors to ask themselves five questions which he phrases this way:

Can they positively identify the person or the site according to the current ROE [rules
of engagement 48 ]? Is there a protected civilian facility or significant environmental
concern within the range of the weapon to be used? Can damage to that concern be
avoided by attacking the target with a different weapon or a different method? If not,
how many people are likely to be injured or killed in the attack? Must a higher
commander be called for permission? 49

Although advanced computer and communications systems help answer such
questions and indeed have revolutionized how JAG personnel do their jobs, there

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Come the Revolution: A Legal Perspective on Air Operations in Iraq since 2003

is no substitute for physical presence in the AOC. At its height, there were twelve
JAG personnel assigned to the AOC during OIF. 50 Some of these focused on Air
Force support issues, but most were used to directly advise commanders and oth-
ers on the conduct of operations. What was particularly revolutionary about JAG
utilization was how they were distributed.

The complexity of preplanned air operations is such that legal advice must be
integrated long before the plan is ready for final approval. Accordingly, JAGs had a
constant presence in the AOC's Strategy Division, as well as its Plans Division. 51
This is a lesson, incidentally, that the Air Force learned prior to OIF. General Ron-
ald E. Keys, who had served as the commander of NATO's AIRSOUTH, Stabiliza-
tion Forces Air Component and Kosovo Forces Air Component, insisted in a 2002
interview that "[t]he important thing is that the legal advisor has got to be inte-
grated into the operational team. He can't be an afterthought. He has to be there
when the plan is being made." 52

This early involvement by JAGs in operational planning is now de rigueur in
AOCs. In fact, in July of 2008 the New York Times noted that "Air Force lawyers vet
all the airstrikes approved by the operational air commanders." 53 In this way they
can provide input at the very early stages of an air tasking order's development so
that today there rarely are legal issues associated with preplanned targets. As a re-
sult, the Air Force has, according to Human Rights Watch's Marc Garlasco, "all but
eliminated civilian casualties in Afghanistan" in strikes that are a product of the de-
liberate planning process. This is true even though more stringent ROE for Af-
ghanistan require "a significantly lower risk of civilian casualties than was
acceptable in Iraq." 54

Of course not all airstrikes are a product of preplanning. Dynamic targeting, 55
such as airstrikes in response to urgent requests for close air support 56 coming from
friendly troops in contact with enemy forces, presents the most difficult challenge.
To the extent such targets can be vetted by JAGs, the responsibility falls to the JAG
assigned to the Combat Operations Division. During the critical, early phases of
OIF this JAG "sat at a console in the elevated platform in the center of the [AOC]
floor" next to the chief of combat operations. 57 Among other things the proximity
to senior leaders allowed "face to face" conversations that significantly enhanced
the assigned JAG's situational awareness. 58

Still, challenges existed then — and persist today — with respect to dynamic tar-
geting. The same New York Times article that noted the contribution of JAGs and
the near absence of civilian casualties in preplanned strikes also observed that
most civilian casualties occur during strikes conducted at the request of ground
commanders. 59 Likewise, a September 2008 report by Human Rights Watch about
operations in Afghanistan concluded that civilian casualties "rarely occur during

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planned airstrikes on suspected Taliban targets" but rather "almost always oc-
curred during the fluid, rapid- response strikes, often carried out in support of
ground troops." 60

Providing timely legal advice in these difficult situations re-emphasizes the im-
portance of physical presence and proximity. In the effort to address the civilian ca-
sualty dilemma journalist Anna Mulrine points out that "the JAG officer [in the
AOC] sits through the shift next to the Afghanistan duty officer, where they can
consult easily." 61 Keeping a JAG close to decisionmakers is but one example of the
several lessons to be learned from air operations in Iraq since 2003.

Lessons Learned

Though this article does not purport to be an exhaustive listing of "lessons
learned," such an endeavor would surely begin with the importance of the
institutionalization of JAGs as essential players in the command and control pro-
cess of combat air operations. 62 Dr. Peter Singer comments in his new book, Wired
for War, that given "advancing technology and thorny legal questions, many advise
that [commanders] had better get used to the growing presence of lawyers inside
military operations." 63 Because of the importance of legal legitimacy of military
operations not just to the US electorate, but also to the publics of America's
warfighting allies, Dr. Rebecca Grant bluntly insists that in "modern coalition war-
fare, attention to the law of war is a strategic necessity." 64

Importantly, Dr. Singer also notes that the "other side knows the [legal] limits,
and will do everything possible to take advantage." 65 We live in an age where adver-
saries increasingly seek to employ the fact or perception of illegalities, to especially
include allegations of excessive civilian casualties, as a means of offsetting not just
US airpower, but America's overall military prowess. Law professor and veteran
William Eckhardt points out that that today "our enemies carefully attack our mili-
tary plans as illegal and immoral and our execution of those plans as contrary to the
'law of war' making law, in essence, a 'center of gravity' in modern conflicts." 66

This phenomenon — which may be called lawfare 67 — is more than simply ex-
ploiting incidents of collateral damage; it extends to actually orchestrating events
designed to put civilians at unnecessary risk. As Anthony Cordesman puts it in his
2007 report about airpower in Iraq and Afghanistan, "both the Taliban and Iraqi
insurgents often located hostile forces in civilian areas and compounds, and
steadily increased their efforts to use them as human shields." 68

This deliberate use of human shields has hardly diminished, especially in Af-
ghanistan. At a June 2009 news conference, Secretary of Defense Robert Gates told
reporters that "we know the Taliban target innocent civilian Afghans, use them as

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shields, mingle with them and lie abut their actions." 69 He recognizes that "a
principal strategic tactic of the Taliban ... is either provoking or exploiting civil-
ian casualties." 70

Addressing such challenges starts with what might be called "legal preparation
of the battlespace" (LPB). 71 There are many facets to LPB. Quite obviously, the im-
mediate access 72 to expert legal advice can help avoid LOAC incidents that an ad-
versary can exploit. However, advising commanders in operations that involve the
complex weaponry and the sophisticated ISR capabilities available today requires
specialized knowledge. JAG advisors must be thoroughly familiar not only with the
applicable law, but also with a myriad of technical specifics related to weapons,
platforms, strategies and other aspects of the military art.

It is an axiom of the practice of law that a lawyer must understand the facts of the
client's business in order to apply the law properly to issues that arise from it. This
is particularly important with respect to the complexities of air warfare. For exam-
ple, seemingly slight adjustments in munitions' delivery can make real differences
in terms of limiting collateral damage.

Specifically, "[d]elaying an explosion by just a few milliseconds can mean that a
bomb gets buried deeper into the ground before exploding." 73 Thus, a JAG must
understand how fusing and other technicalities of weaponeering can affect blast
patterns and, in turn, the lives of innocent civilians. Wherever possible, J AGs must
try to help to offer alternatives that fulfill the commanders' intent, while also limit-
ing collateral damage. To reiterate, competence to do so requires an intimate un-
derstanding of the client's "business," so to speak, of war making.

Several other dimensions of LPB exist. It necessarily includes ensuring that
forces are fully trained in the requirements of LOAC, as well as the additional
limitations imposed by policy and incorporated in the ROE. Beyond the basic
LOAC training all members of the US military receive, the Air Force also has devel-
oped an advanced LOAC presentation which has been integrated into the Joint Force
Air Component Commander Course mandated for all senior officers destined to
command AOCs. 74 This training addresses difficult topics such as targeting dual-
use facilities, human shields, the use of cluster munitions and much more.

Today, for example, commanders must be concerned about the investigation of
complaints about airstrikes. While this is currently being effectively accomplished
via ad hoc teams assembled for specific cases, 75 it maybe better to establish a stand-
ing investigatory capability explicitly designed for such purposes. The teams
should be interdisciplinary, to include JAGs, intelligence officers, operations ex-
perts, public affairs professionals and other specialties that would enable a timely
explanation of incidents that carry the potential for enemy exploitation.

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Charles J. Dunlap, Jr.

Interestingly, the Israelis seem very conscious of the possibility that lawfare
might be waged against them. Accordingly, combat units in the 2008-9 Gaza oper-
ation were accompanied by operational verification teams equipped with cameras,
tape recorders and other equipment to document the facts as operations were con-
ducted. 76 Apparently this was done in anticipation of receiving various allegations
of LOAC violations. 77 Clearly, this approach to preserving evidence is worthy of
further study and possible emulation.

LPB also should involve preparing the media 78 and the public generally with a
proper understanding of LOAC. 79 In this way misunderstandings and unrealistic
expectations can be avoided. For example, LOAC recognizes that the tragedy of ci-
vilian deaths inevitably occurs in war. Thus, LOAC does not prohibit attacks even
when such losses can be anticipated; 80 rather, attacks are forbidden where the civil-
ian casualties would be "excessive in relation to the concrete and direct military ad-
vantage anticipated." 81

Unfortunately, today the enemy is trying to exploit LOAC to deter attacks not
just by intermingling with civilians, but also — as already indicated — by affirma-
tively forcing civilians to remain in targeted buildings. 82 If the wrong perception
about LOAC requirements in such circumstances becomes accepted wisdom, that
is, that the mere presence of any civilians is interpreted as creating a de facto safe
haven for adversaries, 83 it could result in commanders' hands being needlessly tied
with respect to the air weapon. 84 In essence, the enemy would be "rewarded" for a
grotesque LOAC violation of deliberately putting innocent civilians at risk.

Finally, it is worth re-emphasizing that the fundamental responsibility of JAGs
to provide candid advice 85 — even when it may be unwelcome — is especially im-
portant in combat operations. Lieutenant General Michael Short, who com-
manded the air component during the successful Kosovo campaign, counsels
operational lawyers to be thoroughly familiar with the mission, its challenges and
the rules that will govern it. He further observes that if necessary

do not be afraid to tell [the commander] what he really does not want to hear — that he
has put together this exquisite plan, but his targets indeed are not valid ones or his

targets may in fact violate the law of armed conflict It will take enormous courage to

do that in particular circumstances because you're always going to be junior to your
boss But you have got to be able to do that. 86

While military lawyers can get support from their JAG superiors, 87 they still
must demonstrate valor in war. 88 True, JAGs are not often called upon to demon-
strate the physical courage so central to close combat situations; however, they
more often are required to demonstrate moral courage. It is a rather melancholy

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Come the Revolution: A Legal Perspective on Air Operations in Iraq since 2003

observation of some experts that the former type of courage is common in armed
forces while the latter — moral courage — can often be in short supply. 89 Yet if there
is a lesson for the military lawyer that has emerged in the years since 9/1 1, it is the
vital importance of moral courage.

It is clear that the fact or perception of illegalities, whether from the mistreat-
ment of detainees captured in ground operations 90 or from the infliction of exces-
sive civilian casualties in an airstrike, are among the greatest threats to mission
success in twenty-first-century operations. 91 Ensuring adherence to the rule of law
must involve many more actors than JAGs, but JAGs must be ready to provide
leadership.

As this article seeks to demonstrate, preparing to exercise such leadership is a
complex and demanding task that requires real dedication and discipline. But pre-
pare we must; the stakes are just too great. Listen to these words attributed to
Winston Churchill:

To every person, there comes in their lifetime that special moment when they are
tapped on the shoulder and offered that chance to do a very special thing, unique to
them and fitted to their talents. What a tragedy if that moment finds them unprepared
and unqualified for the work that would be their finest hour. 92

Fortunately, it is conferences like the one that brought us together in Newport that
help us — and those who look to us for leadership — to get ready for that inevitable
Churchillian moment in this era of revolutionary change in the roles of law and
lawyers in armed conflict.

Notes

1. The author previously discussed this subject. See generally Charles J. Dunlap, Jr., The
Revolution in Military Legal Affairs: Air Force Legal Professionals in 21st Century Conflicts, 5 1 AIR
Force Law Review 293 (2001).

2. "For the foreseeable future, winning the Long War against violent extremist movements
will be the central objective of the U.S." See Department of Defense, National Defense Strategy 7
(June 2008), available at http://www.defenselink.mil/pubs/2008NationalDefenseStrategy.pdf.

3. For a summary of the purposes of OIF, see Catherine Dale, Congressional Research Ser-
vice, Operation Iraqi Freedom: Strategies, Approaches, Results, and Issues for Congress, No.
RL34387 (Apr. 2, 2009), available at http://fas.org/sgp/crs/natsec/RL34387.pdf. Dr. Dale describes
the mission of OIF as follows:

Operation Iraqi Freedom (OIF), the U.S.-led coalition military operation in Iraq, was
launched on March 20, 2003, with the immediate stated goal of removing Saddam
Hussein's regime and destroying its ability to use weapons of mass destruction or to
make them available to terrorists. Over time, the focus of OIF shifted from regime

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Charles /. Dunlap, Jr.

removal to the more open-ended mission of helping the Government of Iraq (Gol)
improve security, establish a system of governance, and foster economic development.

Id. at Summary.

4. A precision-guided munition is defined as a "weapon that uses a seeker to detect electro-
magnetic energy reflected from a target or reference point and, through processing, provides
guidance commands to a control system that guides the weapon to the target. Also called PGM."
See "precision-guided munitions," Joint Chiefs of Staff, Joint Publication 1-02, Department
of Defense Dictionary of Military and Associated Terms (as amended through Oct. 17,
2008), available at http://www.dtic.mi1/doctrine/jel/doddict/data/p/877.html [hereinafter
DoD Dictionary] .

5. See, e.g., Danielle L. Infeld, Note, Precision-Guided Munitions Demonstrated Their Pinpoint
Accuracy in Desert Storm; But Is a Country Obligated to Use Precision Technology to Minimize Collat-
eral Civilian Injury and Damage?, 26 GEORGE WASHINGTON JOURNAL OF INTERNATIONAL LAW
AND ECONOMICS 109 (1992).

6. Thomas G. Mahnken, Technology and the American Way of War Since 1 945, at
223 (2008).

7. Id.

8. Terry McCarthy, Whatever Happened to the Republican Guard?, TIME, May 4, 2003, at 38,
available at http://www. time.com/time/magazine/article/0,9 17 1,1 10 10305 12-44944 l,00.html.

9. Bradley Graham & Vernon Loeb, An Air War of Might, Coordination and Risks,
WASHINGTON POST, Apr. 27, 2003, at A01, available at http://www.iraqwararchive.org/data/
apr27/US/wpl0.pdf.

10. Gerry J. Gilmore, Air Strategy Preserved Iraqi Infrastructure, Lives, DEFENSELINK, Apr.
10, 2006, http://www.defenselink.mil/news/newsarticle.aspx?id= 15498 (quoting Major Michael
Norton, Air National Guard).

11. Human Rights Watch, Off Target: The Conduct of the War and Civilian
CASUALTIES IN IRAQ (2003), available at http://www.hrw.org/en/reports/2003/12/ll/target.

12. Mat 17.

13. Id. at 6.

14. See, e.g., ANTHONY H. CORDESMAN, US AlRPOWER IN IRAQ AND AFGHANISTAN: 2004-
2007 (2007), available at http://www.csis.org/media/csis/pubs/071213_oif-oef_airpower.pdf.

15. Graham & Loeb, supra note 9.

16. DoD defines ISR as "[a]n activity that synchronizes and integrates the planning and op-
eration of sensors, assets, and processing, exploitation, and dissemination systems in direct sup-
port of current and future operations. This is an integrated intelligence and operations
function." See "intelligence, surveillance, and reconnaissance," DoD Dictionary, supra note 4,
available at http://www.dtic.mi1/doctrine/jel/doddict/data/i/l 1775.html.

17. DoD defines a UAV as a "powered, aerial vehicle that does not carry a human operator,
uses aerodynamic forces to provide vehicle lift, can fly autonomously or be piloted remotely, can
be expendable or recoverable, and can carry a lethal or nonlethal payload. Ballistic or
semiballistic vehicles, cruise missiles, and artillery projectiles are not considered unmanned aerial
vehicles." See "unmanned aerial vehicle," DoD Dictionary, supra note 4, available at http://www
.dtic.mil/doctrine/jel/doddict/data/u/94.html.

18. Christopher Drew, Drones Are Weapons of Choice in Fighting Qaeda, NEW YORK TIMES,
Mar. 17, 2009, at Al, available at http://www.nytimes.com/2009/03/17/business/17uav.html.

19. John Barry & Evan Thomas, Up in the Sky, An Unblinking Eye, NEWSWEEK, June 9, 2008,
at 2, available at http://www.newsweek.com/id/139432.

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Come the Revolution: A Legal Perspective on Air Operations in Iraq since 2003

20. Mark Benjamin, Killing "Bubba" from the Skies, SALON.COM, Feb. 15, 2008, http://
www.salon.com/news/feature/2008/02/ 1 5/air_war/.

21. MQ-1 Predator Unmanned Aircraft System (Factsheet), AF.MIL, Sept. 2008, http://
www.af.mil/information/factsheets/factsheet.asp?id= 1 22.

22. MQ-9 Reaper Unmanned Aircraft System (Factsheet), AF.MIL, Sept. 2008, http://
www.af.mil/information/factsheets/factsheet.asp?fsID=6405.

23. RQ-4 Global Hawk Unmanned Aircraft System (Factsheet), AF.MIL, Oct. 2008, http://
www.af.mil/information/factsheets/factsheet.asp?fsID= 1 3225.

24. Joint Direct Attack Munition GBU 31/32/38 (Factsheet), AF.MIL, Nov. 2007, http://
www.af.mil/information/factsheets/factsheet.asp?id=108.

25. Memorandum from General Barry R. McCaffrey to Colonel Mike Meese, United States
Military Academy, Subject: After Action Report 5 (Oct. 15, 2007), available at http://
www.mccaffreyassociates.com/pages/documents/AirForceAAR-101207.pdf.

26. Lara Logan, Drones — America's New Air Force, CBSNEWS.COM, May 10, 2009, updated
Aug. 14, 2009, http://www.cbsnews.com/stories/2009/05/08/60minutes/main5001439.shtml.

27. E-mail from Gary Brown, CAOC Input - 2009 International Law Conference (Apr. 23,
2009) (on file with author).

28. See CARL VON CLAUSEWITZ, ON WAR 140 (Michael Howard & Peter Paret eds. 8c trans.,
Princeton University Press 1989) (1832) (discussing the uncertainty of all information in war).

29. See William C. Smith, Lawyers at War, ABA JOURNAL, Feb. 2003, at 14-15.

30. Headquarters, Department of the Army & Headquarters, Marine Corps Combat Devel-
opment Command, FM 3-24/MCWP 3-33.5, Counterinsurgency (2006), available via Jim
Garamone, Army, Marines Release New Counterinsurgency Manual, AMERICAN FORCES
INFORMATION SERVICE, Dec. 15, 2006, http://www.fas.org/irp/doddir/army/fm3-24 .pdf [here-
inafter FM 3-24].

31. For example, FM 3-24 admonishes counterinsurgents to

exercise exceptional care when using airpower in the strike role. Bombing, even with
the most precise weapons, can cause unintended civilian casualties. Effective leaders
weigh the benefits of every air strike against its risks. An air strike can cause collateral
damage that turns people against the host-nation (HN) government and provides
insurgents with a major propaganda victory. Even when justified under the law of war,
bombings that result in civilian casualties can bring media coverage that works to the
insurgents' benefit.

Id. at Appendix E, para. E-5.

32. See CORDESMAN, supra note 14.

33. See, e.g., Iraq Study: Executions Are Leading Cause of Death, USATODAY.COM, Apr. 1 5, 2009,
http://www.usatoday.com/news/world/iraq/2009-04- 1 5-iraq-civilian-deaths_N.htm ("Execution-
style killings, not headline-grabbing bombings, have been the leading cause of death among ci-
vilians in the Iraq war").

34. Madelyn Hsiao-Rei Hicks et. al., The Weapons That Kill Civilians - Deaths of Children
and Noncombatants in Iraq 2003-2008, NEW ENGLAND JOURNAL OF MEDICINE, Apr. 16, 2009, at
1585, 1586 available at http://content.nejm.org/cgi/reprint/360/16/1585.pdf.

35. See, e.g., Walter Lewis, In the Korean War, THE REPORTER 1 13 (Special 50th Anniversary
Edition 1999), available at http://www.afjag.af.mil/shared/media/document/AFD-090107-018
.pdf.

36. See, e.g., David C. Morehouse, A Year in Vietnam, id. at 126-27.

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Charles /. Dunlap, Jr.

37. AOCs are generally described in Chapter 7, Department of the Air Force, Air Force Doc-
trine Document 2, Operations and Doctrine 105 (2007), available at http://www.e-publishing
.af.mil/shared/media/epubs/AFDD2.pdf.

38. patricia a. kerns, the first fifty years: u.s. air force judge advocate
General's Department 138 (2001).

39. For a discussion of legal issues associated with no-fly zones, see generally Michael N.
Schmitt, Clipped Wings: Effective and Legal No-Fly Zone Rules of Engagement, 20 LOYOLA OF LOS
ANGELES INTERNATIONAL & COMPARATIVE LAW JOURNAL 727 (1998).

40. See BENJAMIN S. LAMBETH, AlRPOWER AGAINST TERROR: AMERICA'S CONDUCT OF
OPERATION ENDURING FREEDOM 318 (2005). Although the involvement was reported by
Lambeth as "heavy" in terms of influence, the support was largely provided by just three JAGs.

4 1 . E-mail from Edward J. Monahan, JA Support at CAOC - OIF (June 8, 2009) (on file with
author).

42. This is one of a number of AOC-related courses conducted by the 505th Training Squad-
ron. See generally Department of the Air Force, 505th Training Squadron (Fact Sheet), http://
www.505ccw.acc.af.mil/library/factsheets/factsheet.asp?id=5171 (last visited June 14, 2009).

43. DoD defines the air tasking order as a "method used to task and disseminate to compo-
nents, subordinate units, and command and control agencies projected sorties, capabilities and/or
forces to targets and specific missions. Normally provides specific instructions to include call
signs, targets, controlling agencies, etc., as well as general instructions." See "air tasking order,"
DoD Dictionary, supra note 4, available at http://www.dtic.mi1/doctrine/jel/doddict/data/a/
9435.html.

44. E-mail from Major Mathew J. Mulbarger, Comments for Major General Dunlap on
CAOC (June 9, 2009) (on file with author).

45. Monahan, supra note 41.

46. See Colin Kahl, Deputy Assistant Secretary of Defense for the Middle East, U.S. Depart-
ment of Defense, Biography, DEFENSELINK, http://www.defenselink.mil/bios/biographydetail
.aspx?biographyid=204 (last visited Oct. 12, 2009).

47. Colin H. Kahl, How We Fight, FOREIGN AFFAIRS, Nov./Dec. 2006, at 83, available at
http://www.realclearpolitics.com/articles/2006/12/how_we_fight.html.

48. DoD defines rules of engagement as " [d] irectives issued by competent military authority
that delineate the circumstances and limitations under which United States forces will initiate
and/or continue combat engagement with other forces encountered." See "rules of engage-
ment," DoD Dictionary, supra note 4, available at http://www.dtic.mil/doctrine/jel/doddict/
data/r/6783.html.

49. Kahl, supra note 47.

50. Monahan, supra note 41.

51. Id.

52. Randon H. Draper, Interview with a JFACC: A Commander's Perspective on the Legal Ad-
visor's Role, THE JAG WARRIOR, Autumn 2002, at 21-22.

53. Thorn Shanker, Civilian Risks Curb Airstrikes in Afghan War, NYTlMES.COM, July 23,
2008, http://www.nytimes.com/2008/07/23/world/asia/23military.html.

54. Id.

55. DoD defines dynamic targeting as targeting "that prosecutes targets identified too late,
or not selected for action in time to be included in deliberate targeting." See "dynamic targeting,"
DoD Dictionary, supra note 4, available at http://www.dtic.mi1/doctrine/jel/doddict/data/d/
19552.html.

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Come the Revolution: A Legal Perspective on Air Operations in Iraq since 2003

56. DoD defines close air support as "[a]ir action by fixed- and rotary- wing aircraft against
hostile targets that are in close proximity to friendly forces and that require detailed integration
of each air mission with the fire and movement of those forces. Also called CAS." See "close air
support," DoD Dictionary, supra note 4, available at http://www.dtic.mil/doctrine/jel/doddict/
data/c/8823.html.

57. Monahan, supra note 41.

58. Shanker, supra note 53.

59. Id.

60. Human Rights Watch, "Troops in Contact": Airstrikes and Civilian
DEATHS IN AFGHANISTAN 4 (2008), available at http://hrw.org/reports/2008/afghanistan0908/
afghanistan0908web.pdf (italics added).

61. Anna Mulrine, Lawyers Review Airstrike Plans, USNEWS.COM, May 29, 2008, http://
www.usnews.com/articles/news/world/2008/05/29/lawyers-review-airstrike-plans.html.

62. In 2008, twenty-two judge advocates deployed to support air and space operations cen-
ters. See JAG Corps Personnel in the Operational Setting, THE REPORTER: THE YEAR IN REVIEW
1 1 8 (2008), available at http://www.afjag.af.mil/shared/media/document/AFD-0903 1 7-02 1 .pdf.

63. P.W. Singer, Wired for War 391 (2009).

64. Rebecca Grant, In Search of Lawful Targets, AIR FORCE MAGAZINE, Feb. 2003, at 38, 40,
available at http://www.airforce-magazine.com/MagazineArchive/Documents/2003/February
%202003/02targets03.pdf.

65. SINGER, supra note 63, at 39.

66. William George Eckhardt, Lawyering for Uncle Sam When He Draws His Sword, 4
Chicago Journal of International Law 431 (2003).

67. Charles J. Dunlap, Jr., Lawfare: A Decisive Element of 21st-century Conflicts?, 54 JOINT
FORCES QUARTERLY, 3rd Quarter 2009, at 34, available at http://www.ndu.edu/inss/Press/
jfq_pages/editions/i54/ 1 2.pdf.

68. CORDESMAN, supra note 14.

69. Jim Garamone, Gates Stresses Need to Curtail Civilian Casualties, DEFENSELINK, June 1 2,

2008, http://www.defenselink.mil/news/newsarticle.aspx?id=54760.

70. See Press Conference, Secretary of Defense Robert Gates & Chairman, Joint Chiefs of
StafTMichael Mullen, Leadership Changes in Afghanistan (transcript), DEFENSELINK, May 11,

2009, http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=4424.

71. Compare "intelligence preparation of the battlespace," which DoD defines as an

analytical methodology employed to reduce uncertainties concerning the enemy,
environment, and terrain for all types of operations. Intelligence preparation of the
battlespace builds an extensive database for each potential area in which a unit may be
required to operate. The database is then analyzed in detail to determine the impact of
the enemy, environment, and terrain on operations and presents it in graphic form.
Intelligence preparation of the battlespace is a continuing process.

See "intelligence preparation of the battlespace," DoD Dictionary, supra note 4, available at
http://www.dtic.mi1/doctrine/jel/doddict/data/i/8628.html.

72. See, e.g., Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conflicts art. 82, June 8, 1977, 1125
U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR 422 (Adam Roberts & Richard
Guelff eds., 3d ed. 2000), available at http://www.unhchr.ch/html/menu3/b/93.html ("Parties to
the conflict in time of armed conflict, shall ensure that legal advisers are available") [hereinafter
Additional Protocol I].

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Charles /. Dunlap, Jr.

73. Anna Mulrine, Targeting the Enemy: A Look Inside the Air Force's Control Center for Iraq
and Afghanistan, U.S. NEWS & WORLD REPORT, June 9, 2008, at 26, available at http://
www.usnews.com/articles/news/world/2008/05/29/a-look-inside-the-air-forces-control-center
-for-iraq-and-afghanistan.html.

74. See generally "MCADRE 004 Joint Force Air Component Commander Course," Air Uni-
versity Catalogue Academic Year 2008-2009, Oct. 1, 2008, at 168, available at http://www.au
.af.mil/au/cf/au_catalog_2008_09/AU_Catalog_Print_Version_l_Oct_08.pdf.

75. See, e.g., Eric Schmitt & Thorn Shanker, U.S. Report Finds Errors in Afghan Air strikes,
NEW YORK TIMES, June 3, 2009, at Al, available at http://www.nytimes.com/2009/06/03/world/
asia/03militaiy.html.

76. Barbara Opall-Rome, Israelis Document Everything to Justify Strikes, DEFENSE NEWS, Jan. 1 2,
2009, at 8.

77. Thomas Darnstadt & Christopher Schult, Did Israel Commit War Crimes in Gaza?,
SPIEGELONLINE INTERNATIONAL, Jan. 26, 2009, http://www.spiegel.de/international/world/
0,1518,603508,00.html.

78. This can be done in an effective way. See, e.g., Defense Intelligence Agency, Saddam's Use
of Human Shields and Deceptive Sanctuaries: A Special Briefing for the Pentagon Press Corps,
DEFENSELINK, Feb. 2003, http://www.defenselink.mil/dodcmsshare/briefingslide/110/030226
-D-9085M-020.pdf.

79. See, e.g. , Article 83 of Additional Protocol I to the 1 949 Geneva Conventions. It provides:

The High Contracting Parties undertake, in time of peace as in time of armed conflict,
to disseminate the Conventions and this Protocol as widely as possible in their
respective countries and, in particular, to include the study thereof in their programmes
of military instruction and to encourage the study thereof by the civilian population, so
that those instruments may become known to the armed forces and to the civilian
population.

Additional Protocol I, supra note 72.

80. Compare Pamela Constable, NATO Hopes to Undercut Taliban With 'Surge' of Projects,
WASHINGTON POST, Sept. 27, 2008, at A12, available at http://www.washingtonpost.com/wp-dyn/
content/article/2008/09/26/AR2008092603452_pf.html (quoting Brigadier General Richard
Blanchette, chief spokesman for NATO forces: "[i]f there is the likelihood of even one civilian
casualty, we will not strike, not even if we think Osama bin Laden is down there").

81. See, e.g., Additional Protocol I, supra note 72, art. 53.

82. Jim Garamone, Taliban Forced Civilians to Remain in Targeted Buildings, Petraeus Says,
DEFENSELINK, May 10, 2009, http://www.defenselink.mil/news/newsarticle.aspx?id=54272.

83. Compare Constable, supra note 80 ("We need to weigh the effects and the proportional-
ity of every action. If there is the likelihood of even one civilian casualty, we will not strike, not
even if we think Osama bin Laden is down there," quoting Brigadier General Richard Blanchette,
chief spokesman for NATO forces).

84. Consider the recent statement of US National Security Advisor General James Jones,
USA (Ret.), during a recent interview:

Stephanopoulos: You all had a busy week this week. The heads of Afghanistan and
Pakistan came here to the United States to meet with the president — to meet with the
president's entire team. And you seemed to be on the same page, yet after the meetings,
the president of Afghanistan, Hamid Karzai, said that all airstrikes — all American
airstrikes in Afghanistan must end. Will the U.S. comply with that demand?

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Come the Revolution: A Legal Perspective on Air Operations in Iraq since 2003

Jones: Well, I think that we're going to take a look at trying to make sure that we correct
those things we can correct, but certainly to tie the hands of our commanders and say
we're not going to conduct airstrikes, it would be imprudent.

See This Week, Interview with National Security Adviser General James Jones and Senator John
McCain (ABC News television broadcast May 10, 2009) (transcript available at http://
abcnews.go.com/This Week/Story?id=7549797&page= 1 ).

85. Center for Professional Responsibility, American Bar Association, model
Rules of Professional Conduct Rule 2.1 (2007).

86. Michael Short, Operation Allied Force from the Perspective of the NATO Air Commander,
in Legal and Ethical Lessons of NATO's Kosovo Campaign 19, 26 (Andru E. Wall ed.,
2002) (Vol. 78, US Naval War College International Law Studies).

87. JAGs are entitled by law to communicate directly with their JAG superiors, to include the
Judge Advocate General. See 10 U.S.C. § 806 (2000).

88. Valor is one of the guiding principles of the Air Force JAG Corps. See Department of the
Air Force, JAG Corps Values and Vision 2 (2006), available at http://www.afjag.af.mil/shared/
media/document/AFD-080502-052.pdf.

89. Max Hastings, Warriors: Portraits from the Battlefield xvii (2005) ("Physical
bravery is found more often than the spiritual variety. Moral courage is rare . . . .").

90. Tom Brokaw, Gen. Sanchez: Abu Ghraib 'clearly a defeat,' MSNBC.COM, June 30, 2004,
http://www.msnbc.msn.com/id/5333895/.

91. See, e.g., Robert Burns, Analysis: US must limit Afghan civilian deaths, WASHINGTONPOST
.COM, June 13, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/06/13/
AR200906 1 300246.html.

92. Some experts believe this quote is apocryphal. See CHURCHILL BY HIMSELF: THE
Definitive Collection of Quotations 578 (Richard Langworth ed., 2008).

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The Iraq War: A Commander's Perspective

Michael L. Oates*

Introduction

It is a pleasure to be back in Newport and an honor to speak to you this af-
ternoon. I have a lot of great memories from my days as a student here at the Naval
War College; it was undoubtedly one of the most enjoyable experiences of my ca-
reer, both from a personal and a professional standpoint.

When I visit places like this, I am often reminded that as military officers, we
don't get enough opportunities during our careers to pause and think critically
about our profession. To that end, I think it is important for military officers to
spend time in academic environments such as this where they can read, write, lis-
ten to speakers, attend conferences like this one and interact with people who have
different experiences, different points of view.

To you military officers in the audience today who are students here at the Naval
War College, I say enjoy your time here, but make good use of it. Take some of
those ideas that have been bouncing around in your head and share them with the
rest of us. We have an old saying in the Army that a soldier should always improve
his foxhole. I believe, as leaders, we have a similar obligation to our profession.
That means having the courage to speak up and share ideas about how you think
we can do things better. Granted, that is not always easy. People with innovative
ideas often receive their fair share of pushback. But the flip side is you never know
when one of your ideas will be the catalyst for real, meaningful change. As

Major General, United States Army.

The Iraq War: A Commander's Perspective

President John Quincy Adams said, "If your actions inspire others to dream more,
learn more, do more, and become more, you are a leader."

Now that I have talked about the benefits of being in an academic setting, I have
to poke a little fun at the folks who do this for a living. After spending the last thir-
teen months with my soldiers in Iraq — guys who use short sentences filled with
colorful expletives, and for whom the word "hooah" is a noun, a verb and an all-
purpose adjective — I had to chuckle when I saw the topic that the good people at
the Naval War College asked me to address today in ninety minutes or less: "Pro-
vide a commander's perspective on the Iraq war. Discuss the principal military ob-
jectives and problems encountered in the offensive campaign, counterinsurgency
operations, and the occupation and stability phases of the Iraq war."

Since I knew the audience would primarily be attorneys and academics, I asked
my staff judge advocate, Mike Ryan, to explain the topic to me. Unfortunately, he
spent thirteen months with me in Iraq, and I think it affected his ability to deal with
complex subjects because when I asked for his help, he read the topic, shook his
head and said: "Sir, I don't know what it means, but it sounds pretty hooah."

In all seriousness, let me start by saying that contrary to what you might think, I
have no special insight about the war in Iraq. One thing I've learned over the years
is that in Iraq, as in every war, a person's knowledge of things really depends on
three things: when they were there, where they operated and their job. A soldier
who fought in the la Drang Valley of Vietnam in 1965, for example, would have a
much different perspective on the Vietnam War than, say, a Marine who fought in
Northern I-Corps or a Navy pilot who flew bombing missions from an aircraft car-
rier. In much the same way, my experiences as an Assistant Division Commander for
Operations in northern Iraq in 2006 and 2007 differed considerably from my experi-
ences as a Division Commander in central and southern Iraq in 2008 and 2009. And,
of course, neither of those two experiences resembled the time I spent as Chief of
Staff to the Chief Operations Officer, Coalition Provisional Authority in Baghdad.

So what I have to say about Iraq today should probably be qualified to some ex-
tent since, like any other soldier, my remarks and opinions are based primarily on
my own experiences during selected snapshots in time. Unlike a lot of folks who
come to Iraq, receive a briefing in the Green Zone, then leave the country the next
day, I will not claim to be an expert on Iraq.

The Initial Offensive Phase

As we all know, the war in Iraq began in March 2003 and it is still going on as we sit
here today. Given the length of the war, and the infinite number of issues we could
discuss, it should come as no surprise that in the next ninety minutes we will have

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Michael L. Oates

to concentrate on a few key issues and try to hit just the wave tops. Also, I hope this
will be more of a dialogue than a speech, so I will make a few key points on each is-
sue and leave plenty of time for your questions and comments.

In keeping with the topics I was given, I will start by saying a few words about the
initial offensive phase of the war. I think this is a subject worthy of discussion be-
cause it provides us with a number of important lessons learned.

I think the major lesson we learned during the initial phase of the war can be
summed up by the age-old military maxim "y° u fight like you train." On that
point, I would submit to you that prior to the invasion of Iraq no military in the
world trained itself and its leaders for combat better than the US military. How we
got to that level of proficiency is a remarkable story in and of itself and, as we will
discuss later, it is a story that, in my opinion, is still instructive today.

In the post- Vietnam era, the men who commanded platoons and companies in
Vietnam took a hard look at how the Vietnam War was conducted and what it did
to the military. As they began to occupy positions of power they drew on those bit-
ter experiences and said, "Never again." Those men — the ones author James
Kitfield called the "prodigal soldiers" 1 — rolled up their sleeves and rebuilt the US
military, taking an institution crippled by drug use, disciplinary problems, racial
tensions, poor training and inadequate resources, and making it the best trained,
best equipped, most professional fighting force the world has ever seen.

I have some personal experience with that time, having graduated from the US
Military Academy in 1979. These days, when I hear younger officers complain
about the Army, I am quick to remind them that I joined an Army that had just lost
a war. Using words that are much too colorful for this forum, I go on to tell them
that they simply cannot conceive how messed up that Army was then.

But in 2003, that was certainly not the case. As I noted a moment ago, what our
military did best in the years leading up to the invasion of Iraq was train for com-
bat. Our ground forces — the Army in particular — did this at our combat training
centers: the National Training Center for our heavy forces and the Joint Readiness
Training Center for our light fighters.

Because we were so well trained, so well equipped, so well led and so well
resourced, we were able to invade Iraq in March 2003, defeat its military and topple
its government in relatively short order using a force with less combat power than
the one that liberated Kuwait during Operation Desert Storm. Putting aside the
political reasons we invaded Iraq in 2003 and looking at things from a purely mili-
tary standpoint, I think no fair-minded person can deny that our military was tre-
mendously successful during the opening phase of the war. I believe that success
was because we fought like we trained. What we did not know then — and if we are
honest with ourselves, what we must admit now — is that as good as our combat

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training was, we were not well trained, well resourced or well prepared for the post-
combat phase. To paraphrase the now famous quote from Secretary of State Colin
Powell: we did a great job breaking Iraq, but we were not prepared for what hap-
pened once we bought it.

I say that understanding full well that hindsight is 20/20 and it is easy for me to
stand here and critique operations after the fact. That is certainly not my intent.
But part of making our military better is, as I mentioned at the outset, having the
courage to look hard at ourselves in order to identify where we could have done
things better and where we should change things in the future.

I sometimes tell my subordinates, "You're entitled to your own opinions, but
you're not entitled to your own facts." In that vein, if we are fair and realistic, we
have to say the facts with regard to the post-conflict phase speak for themselves,
and what they tell is that the US military was neither trained nor resourced to be an
occupying force in a country as large and complex as Iraq.

Even today, after all of the tremendous work the military has done in Iraq along
the governance, economics, civil capacity and rule of law lines of effort, there are
still those who argue that using the military for missions other than combat opera-
tions is like trying to hammer nails with a screwdriver. I have my own ideas on that
point, some of which I will share with you later in this presentation.

Counterinsurgency Operations

Turning to counterinsurgency (COIN) operations, it is important to look at the
situation that gave rise to the insurgency in the first place. As I noted previously,
our initial invasion of Iraq was quick and successful militarily. However when the
dust settled we looked around and realized that we were in charge of a country
twice the size of Idaho; a country with six international borders and a population of
over twenty-two million people from different religious, ethnic, cultural and tribal
backgrounds. People who, as we soon found out, in many cases didn't like each
other very much.

As if this situation were not challenging enough, the country we were in charge
of had a long history of violence and oppression committed by a corrupt, dictato-
rial central government — a government that had systematically abused, neglected,
stolen from and murdered its own citizens. It was a place where, in the best of cases,
disputes were settled with decisions made by sheiks and tribal elders; in the worst of
cases, they were settled with kidnapping, violence and murder. To make the prob-
lem even more interesting, the country we now controlled had no functioning po-
lice force or court system, and very little in the way of essential services like water,
sewer, sanitation, medical care and electricity.

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Michael L. Oates

As someone with a background in physics, I can tell you that nature really does
abhor a vacuum, and post-invasion Iraq was no exception. Accordingly, in little to
no time, the power vacuums that existed in Iraq after the fall of the former regime
were filled by a number of very dedicated and very aggressive groups, all vying for
power and control.

Like most things in Iraq, the insurgency was split along religious, cultural and
ethnic lines. Insurgents ranged from the Shiite groups likejaish al-Mahdi (JAM) to
the Sunni-led Al Qaeda in Iraq, and everything in between. In addition to their de-
sire for power and control, most of these groups shared an intense hatred of the co-
alition forces, which they saw as occupiers. In the case of some of these groups,
most notably Al Qaeda in Iraq, they were willing to commit horrific acts of violence
and terrorism not only against military forces, but against anyone not aligned with
their agenda, including Iraqi civilians.

So there we were, a relatively small military force being asked to confront a lit-
any of problems — ones that would eventually take years to solve. We had to deal
with everything from defeating a violent insurgency to meeting the basic human
needs of the Iraqi civilian population and myriad problems falling between those
two extremes. The challenges inherent in defeating the insurgency are something
that could be talked about and debated for hours. In keeping with my "wave tops"
approach to this talk, I will simply say that it took us a while to figure out the right
approach.

How to defeat the insurgency in Iraq was something of a "chicken and egg" di-
lemma: do we concentrate on solving the problems of the Iraqi people — most no-
tably things like essential services — first, or do we focus on killing and capturing
the bad guys and, once things are secure, concentrate on making the Iraqis' daily
lives better? Some, including many of our senior military leaders in Iraq during the
first part of the war, advocated the former.

This "essential services first" school of thought argued that if the Iraqi people
had electricity, clean water, trash pickup and schools for their children, they would
be less likely to turn to a violent insurgency to solve their problems. It was a reason-
able approach, one that makes sense on its face. We traveled along that line of drift
for the first few years of the war, but what we eventually found was our successes
were not really widespread or sustainable.

Again, I am not saying there is no merit at all to this approach. I will be the first
one to tell you that you cannot kill your way out of a situation such as we had in
Iraq. Attriting the enemy is undoubtedly important, but what we learned over time
in Iraq was that success in a counterinsurgency campaign depends on more than
just killing the enemy. There is a time and a place to do that for sure, but in coun-
terinsurgency you have to take things a step further. To put it simply, you have to

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kill the right guys at the right places at the right times. Lethal operations have to dis-
rupt networks and take out financiers. It's graduate-level stuff that goes well be-
yond the basic infantryman's ability to enter and clear a room.

I think another problem we had with defeating the insurgency relates in a way to
the point I made in my initial remarks about fighting like we trained. What do I
mean by that? Let me explain. The US military has always been at its best when it
goes toe-to-toe with a definable, quantifiable enemy. In fact, many of our senior
leaders during the first part of the Iraq war were guys who trained virtually all of
their professional lives to defeat Soviet and Warsaw Pact armored formations
coming through the Fulda Gap. In that kind of fighting, metrics and data are criti-
cally important: How many tanks am I up against? How many gallons of fuel do I
have? How many BMPs, 2 tanks and artillery pieces do I have to kill before the enemy
is combat ineffective? In my opinion, early in the war we often fell back on that mode
of thinking, relying on numbers and metrics as a measure of our effectiveness.

Indeed, if you look back on the first few years of the war, our reports and brief-
ings from that time were filled with statistics: number of patrols conducted, num-
ber of caches found and cleared, number of improvised explosive device (IED) or
indirect fire attacks. With respect to the "essential services first" approach dis-
cussed a few moments ago, this love of numbers fit right into the template for suc-
cess. We tracked the number of schools built, number of hours of electricity
provided, number of Commander's Emergency Response Program projects initi-
ated and number of dollars spent on those projects. With so many impressive sta-
tistics, pie charts and metrics on so many colorful PowerPoint slides, how could we
be losing?

The problem was we were losing. To some extent, I attribute that to something
that absolutely drives me around the bend: we were constantly looking at data
without doing any analysis of what that data really means. To make matters worse,
the data were often interpreted by people farthest from the source of the data — good
people who through no fault of their own had no context whatsoever. When I think
of those days, I am reminded of Secretary of Defense Robert McNamara, who said of
Vietnam: "Every quantitative measurement we have shows we're winning this war." 3

In my judgment, too often we relied on the raw numbers instead of thinking
about what those numbers really meant. What I think we learned over time is that
counterinsurgency is about people, not about data. It's not easy, as I indicated ear-
lier when I addressed killing the enemy during COIN operations; it's graduate-
level stuff. You have to do the hard work and take things a step further. You have to
analyze people, relationships, networks and all kinds of complicated dynamics that
take place between people on the ground and, in the case of Iraq, you have to un-
derstand the culture.

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Michael L. Oates

I think as a military force we became much more successful against the insur-
gency in Iraq when, under the leadership of General Petraeus and others who had
taken a hard look at counterinsurgency, we realized that this fight was about peo-
ple. People and relationships really are the center of gravity in a COIN fight. To get
to know people, we had to get out of our forward operating bases, out of our vehi-
cles and out of our comfort zones, and start talking to the Iraqis, developing rela-
tionships and partnering with the police and the army units we were over there
trying to help.

Once we started talking to people, one of the first things we learned was that our
"essential services first" approach was probably not the way to go. Under General
Petraeus and General Odierno, we transitioned to the alternate view and began to
secure the population. I think in many ways this helped us to tip the balance in our
favor. Of course our success was enabled by a number of other factors, including
the Anbar Awakening 4 and the Sons of Iraq, 5 the JAM ceasefire and, of course, the
US troop surge. But none of those things, in my opinion, would have in and of itself
brought us success without the change in direction and strategy, changes that
forced us to stop looking at numbers and start talking to people.

Stability Operations

I would like to close my formal remarks by addressing our experience with stability
operations in Iraq. In terms of recent experience, this is a subject I am very familiar
with since the Army division I commanded in Iraq for the last year had governance,
economics, civil capacity building and rule of law as its major lines of effort, espe-
cially during the second half of our tour.

When our division arrived in Iraq in May 2008, a number of us on the division
staff had served in Iraq before. One of the first things that struck us all was the im-
provement in the security situation, especially in our area of operations, which en-
compassed most of central and southern Iraq. It was something that took us all a
while to get used to.

In fact, during our first month in country, we were directed by our corps head-
quarters to assist the Iraqi army with retaking the city of Amarah, a large city in
southeastern Iraq that had traditionally been a hotbed of Jaish al-Mahdi activity.
Our staff worked hard on the plan. We spent considerable time looking in great de-
tail at things like supporting fires, close air support, medical evacuation and de-
tainee handling and processing. I even took my staff judge advocate with me to a
joint planning meeting with the Iraqis at a place called Camp Sparrow Hawk near
the city of Amarah because we were sure we would have to discuss rules of engage-
ment, targeting and detainee issues with the Iraqi Army leadership.

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To make a long story short, a few days later, Iraqi security forces (ISF) entered
Amarah and retook the city without firing a single shot. For many of us who had
been to Iraq before, the Amarah operation was something of a wake-up call. It
demonstrated to us that things in Iraq really had changed. Now this is not to say
Iraq is a safe place to be. It is still dangerous. During Task Force Mountain's tenure
in Iraq we had fourteen soldiers killed and another sixty wounded. My point is that
by the time we arrived, Iraqi security forces were well on their way to becoming a
very proficient, capable force, and that, in my opinion, was one of the reasons we
were able to focus our efforts on more non-kinetic missions.

In terms of stability operations, let me say just a few words about our work with
Iraqi security forces. During our tour we partnered extensively with the Iraqi army,
the Iraqi police, and the Iraqi Department of Border Enforcement. In fact, be-
cause I believed so strongly that a capable ISF is one of the major keys to stability
in Iraq, I made ISF professionalization my division's main effort during the first
half of the deployment.

Similar to what I addressed during the discussion on counterinsurgency, one of
the things we found was that the better we got to know our ISF counterparts on a
human level, the better we were able to teach, coach and mentor them, and the
better they became. Our approach was simple — we made the ISF part of our for-
mations. By that, I mean we did things like "shadow tracking" their supply, main-
tenance and personnel statistics so we could help them where they needed help the
most. Not to put too fine a point on it, but I told my commanders and many of my
staff from the start that I would judge their success by the success of their ISF
partners.

I think the development of the ISF was the key to stability and I am proud to say
our ISF partners developed into a tremendously capable force. By the middle part
of our tour, for example, we stopped conducting unilateral operations in our divi-
sion and began performing everything by, with and through the ISF. What we
found was that as the ISF worked with us and became more professional, so did we.
For their part, the ISF know the people, speak the language and can pick up on a lot
of things we can't as Americans. For our part, we bring a wealth of knowledge on
how to man, train and equip an army, along with a number of technologically ad-
vanced intelligence, surveillance and reconnaissance platforms and other enablers
to which the ISF don't have access. By letting the ISF take the lead, we found the
Iraqi people began to see them as a force that could be trusted — and trust is a criti-
cal component of Iraqi culture. As a measure of that trust, I will tell you that by the
end of our tour over 90 percent of the tips we received about things like weapons
caches and IEDs came from local nationals, usually through the ISF. I see that as a
sign of real progress in the stability realm.

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Michael L. Oates

As I mentioned a moment ago, governance, economics, civil capacity building
and rule of law were major lines of effort for us during Task Force Mountain's tour
in Iraq — so much so that during our train up, we reorganized our fires and effects
cell and devoted it almost entirely to governance, economics and reconstruction. I
added a full-time political adviser from the Department of State to my staff and di-
rected my Deputy Commanding General for Support to take the lead for all mat-
ters having to do with governance and civil capacity building. Given the time,
resources and energy we put into those missions, I could talk about any one of
them for hours, but since many of you in the audience are legal professionals, I will
touch on some of our initiatives in the rule of law line of effort that I believe you
will find interesting.

I think two things combined to jump-start our rule of law efforts during the last
year. The first was the improved security situation that allowed us to focus on tasks
and missions outside the security line of operation. The second was the implemen-
tation of the US-Iraq security agreement. 6

For those of you unfamiliar with the security agreement, in January 2009 it re-
placed United Nations Security Council Resolution 1790 7 as the legal authority for
US operations in Iraq. To my knowledge, the US-Iraq security agreement is the
only status-of-forces-type agreement to which the United States is a party that au-
thorizes US forces to conduct combat operations in the host nation. The caveat to
that authorization is that our operations must be approved by and coordinated
with the government of Iraq, and they must be conducted with full respect for Iraqi
law and the Iraqi Constitution.

The requirement for us to conduct operations in accordance with Iraqi law has
had a profound effect on the way we do things. In fact, many of you might be sur-
prised to learn that the vast majority of US military operations in Iraq these days
are conducted pursuant to arrest and search warrants issued by Iraqi judges.

By way of background, the Iraqi legal system is very similar to the US legal sys-
tem with respect to criminal procedure. Before an arrest warrant can be issued, evi-
dence must be presented to an Iraqi investigative judge. If the judge issues a
warrant and the individual is apprehended, Iraqi law mandates that the person be
brought before a judge within twenty-four hours for a detention hearing.

Because the security agreement requires US forces to abide by Iraqi law, we are
bound by the rules I just described. In much the same way as I described how our
efforts to professionalize the ISF were successful when we made them part of our
formations, the security agreement's requirement that we work through the Iraqi
legal system helped us make great strides in the rule of law. As we started moving
actions through the Iraqi courts and dealing with Iraqi judges, we found that there

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The Iraq War: A Commander's Perspective

was a certain amount of dysfunction in the Iraqi legal system, especially at the pro-
vincial level.

The police were often poorly trained, the judges were overworked and under-
resourced, and the detention facilities had their share of issues. Based on the fact
that we had to obtain warrants, our units had to develop better relationships with
the police, the prosecutors and the judges in their local areas. In doing so, we were
able to better identify gaps, seams and shortcomings in their training and in their
systems that we were able to address.

One thing we found initially was that the Iraqi police and judges were not famil-
iar with forensic evidence. Their legal system has always been testimony based. To
help solve this problem we developed a number of innovative programs to train
Iraqi judges and Iraqi prosecutors on forensic evidence. In a companion effort, US
police training teams worked to train Iraqi police on basic crime scene investiga-
tion techniques and the fundamentals of actually securing forensic evidence. Fi-
nally, US explosive ordnance disposal experts have made great strides in teaching
the Iraqi army how to collect basic forensic evidence at the sites of IED blasts and at
the points of origin and points of impact of rocket and mortar attacks.

Since the implementation of the security agreement, US commanders have be-
come well versed in obtaining arrest warrants and detention orders from investiga-
tive judges. To accomplish this task, most US divisions and brigades have formed
law enforcement task forces made up of individuals with the relevant expertise.
The organization of each task force varies slightly; however, most include judge ad-
vocates, military police officers, intelligence analysts, and one or more US contrac-
tors known as law enforcement professionals (LEPs). The LEPs are a relatively new
addition to the fight in Iraq. Most are retired police officers from cities around the
United States who are under contract to assist US forces with law enforcement-
related tasks and training. The expertise and experience the LEPs have provided
have been invaluable during the transition to warrant-based operations.

As you all know, one of the major keys to stability in any country is having a legal
system the citizens can trust and depend on. Without a system for the peaceful res-
olution of disputes, order breaks down and people take the law into their own
hands. I think our efforts in the rule of law arena have been a major driver of stabil-
ity, especially in central and southern Iraq.

Conclusion

I will conclude by saying there is still a lot of hard work ahead of us in Iraq. By all in-
dications, Iraq will turn out to be the longest war our nation has ever experienced
and the effects of the war, especially on our military, remain to be seen.

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Michael L. Oates

For the military officers in the room today, I say be proud of what your profes-
sion has accomplished in Iraq. As I noted at the start, never stop thinking how to
make things better. For our friends from other branches of public service and from
the services of allied nations, I commend you. Very few citizens of any nation an-
swer their country's call these days. Those of you who have should be immensely
proud. For those of you from academia and non-governmental organizations, I
hope you will keep thinking, keep writing and keep challenging us to do our jobs
better. Without debate and constructive criticism, we in the military can get too
comfortable with our own points of view.

It has been my pleasure to get the chance to spend time with you today. Thank
you very much.

Notes

1. James Kitfield, Prodigal Soldiers: How the Generation of Officers Born of
Vietnam Revolutionized the American Style of War (1995).

2. Russian tracked infantry combat vehicles.

3. Neil Sheehan, A Bright Shining Lie 290 (1988).

4. For a discussion of the Anbar Awakening, see, e.g., Melinda Liu, Gathering the Tribes:
U.S. field commanders are finally beginning to tap the traditional networks that helped Saddam to
stay in power, NEWSWEEK, June 4, 2007, at 32; Martin Fletcher, How life returned to the streets in a
showpiece city that drove out al-Qaeda, TIMES (London), Aug. 31, 2007, at 42.

5. For a discussion of the role of the Sons of Iraq in contributing to local security, see Gen-
eral David H. Petraeus, Commander, Multi-National Force-Iraq, Statement Before the Senate
Armed Services Committee (Apr. 8, 2008), available at http://armed-services.senate.gov/
statemnt/2008/April/Petraeus%2004-08-08.pdf.

6. Agreement Between the United States of America and the Republic of Iraq on the With-
drawal of United States Forces from Iraq and the Organization of Their Activities during Their
Temporary Presence in Iraq, U.S.-Iraq, Nov. 17, 2008, available at http://graphics8.nytimes
xom/packages/pdf/world/20081 1 19_SOFA_FINAL_AGREED_TEXT.pdf.

7. S.C. Res. 1790, U.N. Doc. S/RES/1790 (Dec. 18, 2007).

165

The a Fog of Law": The Law of Armed Conflict
in Operation Iraqi Freedom

Marc Warren*

The "fog of war" is a well-known combat experience. It is also an apt
descriptor for how ambiguity in wartime can thwart the best military plans. 1
While the "fog of law" 2 is less documented, its effects may be just as profound. The
"fog of law" is the ambiguity caused in wartime by the failure to clearly identify and
follow established legal principles. It can frustrate deliberate planning, create con-
fusion and lead to bad decisions that imperil mission accomplishment. When cou-
pled with poor and inadequate planning, its effect can be near catastrophic. This
article briefly explores the "fog of law" in Operation Iraqi Freedom (OIF) from be-
fore the war until the dissolution of the Coalition Provisional Authority (CPA) on
June 28, 2004.

In OIF, the "fog of law" was created by positions taken at the strategic level that
put conventional military forces in Iraq at needless disadvantage. Pejorative state-
ments about the 1949 Geneva Conventions caused some soldiers to question their
applicability in Iraq and gave credence to the false notion that the Conventions
were deliberately disregarded by the military as a whole. Enhanced interrogation
techniques used in Afghanistan and Guantanamo, and by some special operations
and non-military forces in Iraq, contributed to a small number of detainee abuse
cases and to the hyperbole that abuse was systematic. Reluctance to embrace the

* Colonel, JA, US Army (Ret.).

The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

law of occupation and dedicate sufficient resources to its effective execution almost
squandered a military victory.

Despite the effect of the "fog of law," conventional military forces in Iraq kept
remarkable faith to the law of armed conflict. In general, this occurred in spite of,
rather than because of, actions at the strategic level. In no small measure, this was
due to the efforts of judge advocates who accompanied the forces into combat. 3
Judge advocates strove to overcome the "fog of law" in at least five areas: the appli-
cation of the law of armed conflict, prisoners and detainees, interrogation policies,
occupation and the rule of law.

The lesson of OIF is that legal ambiguity at the strategic level can imperil mis-
sion success. Conversely, legal clarity and compliance enhance military effective-
ness, which in turn leads to more rapid mission success and reduced adverse
impact on the civilian population in the combat zone. Old law is good law; the
Geneva Conventions and the law of armed conflict in general are grounded in
practicality and have retained remarkable vitality and utility. They should be em-
braced, not dismissed, and followed, not avoided. They must be explained to the
media and to the civilian population generally. Failure to take and hold the legal
high ground makes taking and holding the high ground on the battlefield much
more difficult.

The Application of the Law of Armed Conflict in Iraq

The war in Iraq was an international armed conflict between two high contracting
parties, followed by a state of belligerent occupation. 4 The law of armed conflict,
including the Geneva Conventions, applied as a matter of law. The law of armed
conflict and the Geneva Conventions were referenced in numerous operations
plans, orders, policies and procedures issued by United States Central Command
(USCENTCOM), the Combined Forces Land Component Command (CFLCC), V
Corps and Combined Joint Task Force-7 (CJTF-7). 5 In his September 6, 2003 letter
to the International Committee of the Red Cross (ICRC), the CJTF-7 commander
wrote, "Coalition Forces remain committed to adherence to the spirit and letter of
the Geneva Conventions." 6 Periodically, starting in September 2003, the CJTF-7
commander would issue by order specific policy memoranda reiterating the re-
quirement for law of armed conflict compliance.

By contrast, US forces in Afghanistan were to "treat detainees humanely, and to
the extent appropriate and consistent with military necessity, in a manner consis-
tent with the principles of Geneva," a much less rigorous standard than adherence
to the Conventions. 7 Moreover, some special operations and non-military forces
engaged in the Global War on Terrorism (GWOT) operated under relaxed rules

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for detention, interrogation and prisoner transfer that were incompatible with the
Geneva Conventions. 8 When units that had operated in Afghanistan were trans-
ferred to Iraq, some brought with them the less rigorous standards and relaxed
rules, unfortunately reinforced by field application and standard operating proce-
dures that they perceived had been validated in combat in Afghanistan. Counter-
ing the migration of these less rigorous standards and relaxed rules, once
recognized, required constant vigilance and considerable effort. Unfortunately,
the scope of the problem was not understood until months into OIF. 9

Compounding the problem were muddled pronouncements at the operational
and strategic levels about the characterization of the conflict ("we are liberators,
not occupiers"), 10 a predisposition to view OIF as part of the larger GWOT, a reluc-
tance to embrace the traditional and legitimate role of the military in occupation,
and a tendency to apply policies developed for non-international military opera-
tions to an international armed conflict. 11

Governments were not solely to blame for creating an ambiguous legal environ-
ment. Human rights and special interest groups further contributed to the "fog of
law" during the occupation by declaring the illegality or immorality of the war, ex-
aggerating and distorting breaches of discipline by coalition forces, and asserting
the co-applicability of human rights law and the law of armed conflict. 12 The asser-
tion of co-applicability diluted both and contributed, in part, to the lack of unity of
effort between coalition forces and the CPA. While security deteriorated, the CPA
expended its efforts to mandate changes to the Iraqi legal system, advance women's
issues and influence other modest improvements to vague human rights.

Despite — or perhaps because of — the "fog of law," the principles of the Geneva
Conventions are the bedrock of mandatory training for all soldiers and Marines,
and they are the basis of "The Soldier's Rules" that are taught in basic training. 13 All
of the training emphasizes practical application of the Conventions; it is not realis-
tic to expect soldiers to follow the law of armed conflict simply because they are or-
dered to do so. Law of armed conflict refresher training was required as part of pre-
combat training for Iraq. Several times during OIF, practical law of armed conflict
refresher training was mandated down to the platoon level to address observed
areas of concern, such as overzealous detention of civilians, and more nuanced law
of armed conflict topics were briefed and discussed at commander's conferences
held periodically in Baghdad. 14 In 2004, the ICRC's "Rules for Behavior in Com-
bat" were incorporated into training packages for CJTF-7 soldiers. 15

In exercises conducted before the war, considerable effort was put into training
to apply the law of armed conflict in targeting decisions and in the rules of engage-
ment (ROE). In January 2003, V Corps held a legal conference in Heidelberg to ex-
amine the ROE and to discuss targeting, prisoners of war and occupation. V Corps

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

would be the coalition's main offensive effort in the ground campaign against Iraq.
The V Corps commander spoke to the assembled judge advocates, including the
staff judge advocates (SJAs) of the corps' subordinate wartime divisions, about the
importance of adherence to the ROE and to the law of armed conflict.

Development of ROE extracts and pocket cards, and of ROE training vignettes,
was a major focus of judge advocates assigned to forces staged in Kuwait before the
start of the war. During February and March 2003, the draft ROE changed several
times to add higher-level approval authorities for certain categories of targets and
to require the use of complex collateral damage methodologies (CDM) for pre-
planned targets. The unclassified ROE pocket cards issued to all US coalition per-
sonnel were replete with references to the law of armed conflict (the "law of war").
In fact, the first rule authorizing the attack of enemy military and paramilitary
forces lists five constraints. 16

While the ROE are not "law" per se, they must comply with the law of armed
conflict as the commander's standards for the use of force. 17 Starting with the ROE
development conference in London in November 2002, planners developed means
to try to minimize collateral damage. The control of long-range fires was a large
part of exercises in Poland in October 2002 and in Kuwait in November and De-
cember 2002. Judge advocates were placed in all corps- and division-level (and
many brigade-level) fires centers to assist in the clearance of fires by ensuring com-
pliance with the CDM, ROE and law of armed conflict. Within V Corps, judge ad-
vocates were placed down to the military police battalion level to help resolve
prisoner of war and detainee issues.

Starting before hostilities commenced, V Corps and several of its subordinate
divisions used ROE working groups composed of operators, intelligence officers
and judge advocates to assess the ROE, recommend changes in their application
and produce vignettes to train staffs and soldiers on how to apply the ROE on a dy-
namic battlefield. The ROE working group methodology continued at CJTF-7. Al-
though the ROE remained unchanged until April 2004, 18 enemy tactics and other
factors did change, necessitating more sophisticated discrimination in the applica-
tion of force. For example, recognizing and targeting persons, none of whom wore
uniforms or other identifying insignia, who were emplacing, watching over or det-
onating improvised explosive devices (IEDs) became a key part of ROE training.

Throughout the war, several targeting and ROE issues were recurrent vexing
problems. First was the concept of "positive identification" (PID) of targets. The
term "PID" had come into the ground ROE vernacular from air operations, to
which it was far better suited. In an environment like Iraq, it implied a degree of
precision impossible to attain as a matter of course, at least for conventional
forces. Even though PID was defined to soldiers as a reasonable certainty that the

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Marc Warren

target to be engaged was a legitimate military target, 19 it was often mischaracterized
by commentators as requiring the pristine attack of military objects only, without
mistake or collateral damage. 20

Second, the fixation on discrimination led to the imposition of CDM on pre-
planned fires, including those supporting ground movements and affording sup-
pression of enemy air defenses for rotary-wing operations. CDM was another
concept better suited for air operations and it was added late to the ground ROE.
Not only did it require conclusions not supported by adequate modeling tools
available in ground unit headquarters, it contributed to the illusion that the effect
of fires could be computed with precision. Operating forces made repeated re-
quests to relieve fires supporting ground forces from the CDM or to exclude fires
between the forward line of troops and the fire support coordination line from the
CDM requirement, but the requests were denied by USCENTCOM or higher. The
control measures to limit deliberate and shaping fires continued to masquerade as
ROE, although fires in self-defense or in support of forces in contact were
eventually exempted from the CDM burden.

Taken together, PID and CDM often required intellectual analysis in fires cen-
ters that presupposed that the reality on the ground comported with templates or
with electronic means of surveillance. While there was certainly a good-faith analy-
sis based on the best information available, it should not be confused with absolute
certainty or precision. The analysis and clearance of fires are only as good as the in-
formation supporting the decision. This is particularly true with high-value and
fleeting targets, where time is of the essence. While having judge advocates help re-
view the information and provide advice on the legality of the fire mission adds
rigor to the process, it seldom adds any degree of certainty or precision. Particu-
larly with indirect fire from, and in support of, ground forces, precision is relative
in any event.

The emphasis on discrimination had an insidious effect on interpretations of
proportionality. Increasingly, proportionality was viewed as requiring a near-
mathematical or ratio analysis of each particular target, rather than a balancing of
the damage relative to the military advantage from a larger perspective. This played
out for the most part in preplanned strikes from fixed- wing aircraft. After the march
to Baghdad, an inordinate amount of command and staff activity was expended in
convincing the combined air operations center that a strike was appropriate and that
the ground commander would take responsibility for any unintended damage (i.e.,
"own the bomb"), even in cases where the strike was merely a bomb dropped in the
desert nowhere near civilians as part of a show of force.

A third issue was created by the very nature of the enemy. Insurgents and terror-
ists don't wear uniforms or other distinctive insignia recognizable at a distance.

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

The ROE would allow engagement of persons who were members of certain speci-
fied groups or who were supporting those groups. Determining whether a person
was a member of a specified group — and thus a member of a declared hostile
force — relied on the quality of information and intelligence, particularly if the per-
son was to be targeted at a time other than while directly participating in hostilities.
Targeting a supporter could be even more problematic, as it required a determina-
tion as to the degree and materiality of support provided by the potential target,
again based on information and intelligence.

Conventional forces are particularly likely to have difficulty in the deliberate
targeting of members of specified groups and their supporters who are not wearing
uniforms or otherwise recognizable at a distance. Typically, these difficulties exist
because of missions executed at too low a level of command with insufficient intel-
ligence analysis and inadequate decision-making processes. Put another way, if
conventional forces are expected to conduct a raid against insurgents or terrorists,
or their supporters, they must be supported by a reasoned intelligence-based deci-
sion made at an appropriately senior level of command. This point was not fully
understood until well into the war. For too long, decisions on raids were made lo-
cally and individual engagement decisions were situational, essentially based on
self-defense. This put lower-level commanders at risk of being second-guessed and
soldiers at risk of being shot.

Fourth, coalition ROE in OIF were always a matter of frustration. As most coalition
partners deployed to Iraq, their commanders and staffs would participate in ROE con-
ferences, attended by CJTF-7 judge advocates, where they nearly uniformly ex-
pressed satisfaction with adopting the CJTF-7 ROE. However, once in country
most coalition commanders were prohibited by their national leadership from em-
ploying their forces so as to fully apply the ROE. (British and Australian forces,
committed in Iraq since the beginning of the war, were exceptions and had ROE
that were compatible with the CJTF-7 ROE.) These "national red lines" lay dor-
mant until April 2004, when Muqtada al-Sadr began attacking coalition forces and
his Mahdi Army was designated as a declared hostile force. 21 Some coalition forces
commanders simply refused to participate in offensive operations or even to ma-
neuver their units in a way that might require them to use force in self-defense. 22

Prisoners and Detainees

In 2002 and early 2003, planning for Iraqi prisoners of war occurred mostly at the
USCENTCOM and CFLCC levels. At V Corps, enemy prisoners of war were gener-
ally viewed as a CFLCC responsibility, but there was detailed planning for handling
capitulated forces. Although the assumption that Iraqi forces would capitulate

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Marc Warren

en masse never became a reality, a key point in the planning was that these forces
would enjoy the legal status of prisoners of war. Accordingly, the intricacies of the
Third Geneva Convention were a frequently briefed and well-understood topic in
the headquarters.

There was no meaningful planning at higher headquarters concerning prisoners
other than enemy prisoners of war. In the absence of guidance, V Corps issued or-
ders unilaterally. At the start of the war, one of the first fragmentary orders
(FRAGO) issued by V Corps, Order Number 007, dealt with prisoners and detain-
ees. 23 It cited the Third and Fourth Geneva Conventions and established a review
and release mechanism for detainees that exceeded the requirements of the Fourth
Convention, and adopted best practices from Haiti and Kosovo, including a review
by a judge advocate of all detentions of civilians. 24 Of course, this was the first large-
scale implementation by the United States of the Fourth Geneva Convention, new
in 1949, and the sheer number of detainees would overwhelm the process. Re-
gardless, in frequent interaction with the ICRC, there was never any dispute over
the legal applicability of the Geneva Conventions, only in the ability of US forces to
implement them completely.

Soon after closing on Baghdad in April 2003, one of the first organizational tasks
was to separate common law criminals, prisoners of war and persons who had at-
tacked coalition forces. In the crush of combat, prisoners had been commingled.
Incredibly, coalition forces had not anticipated the impact of Saddam's general
amnesty in November 2002 that had emptied the prisons and jails. 25 Thousands of
criminals had been freed to prey upon the civilian population, and prisons and jails
had been systematically looted. This caused countless problems as coalition troops
not only captured prisoners of war and what were later called insurgents, but also
detained thousands of common criminals. Some were detained in the act of com-
mitting violent crimes, some were turned in after the acts by local civilians, some
were convicted criminals who had been granted amnesty, some were probably in-
nocent of any wrongdoing and unjustly accused by a person holding a grudge; the
result was a huge influx of prisoners, later termed criminal detainees, with precious
few places to hold them, soldiers to guard them or courts to try them. The problem
was compounded by soldiers using prisoner of war capture tags to document the
apprehension of these persons; there were tags with "murderer" or "rapist" written
on them and no more information.

In May 2003, US forces implemented CPA apprehension forms that required
sworn statements from soldiers and witnesses on the circumstances of capture.
This was met with some pushback from commanders and soldiers, but it helped
ameliorate the situation and set conditions for future prosecutions. Using the
model of the Fourth Geneva Convention, prisoners were classified into two

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

categories: security internee and criminal detainee. The former were those who
had engaged in hostilities and who would be held until the conclusion of hostilities
or otherwise earlier released, perhaps through a parole or release guarantor agree-
ment; 26 the latter were criminals who were held for trial or other disposition by the
emerging Iraqi criminal justice system. The ICRC modified its capture cards in
Iraq to recognize the two categories of prisoner.

For those whose status was in doubt, V Corps conducted tribunals under Article
5 of the Third Geneva Convention. 27 Commencing in June 2003, tribunals were
held for all of the high-value detainees (HVDs), people like Deputy Prime Minister
Tariq Aziz. The tribunals consisted of three judge advocates and determined
whether the prisoners were prisoners of war, security internees or innocent civil-
ians. None of the HVDs were deemed innocent civilians, but some were accorded
prisoner of war status.

Despite these efforts, and the release of thousands of prisoners of war, the num-
ber of criminal detainees and security internees rose precipitously. On August 24,
2003, judge advocates from commands all over the country came to Baghdad for
Operation Clean Sweep. Joined by a former Iraqi judge, judge advocates reviewed
every single criminal detainee's file to determine who could be released outright or
turned over to the emerging Iraqi courts for at least an investigative hearing. Nev-
ertheless, the number of criminal detainees continued to grow. Iraqi courts were
slow to open and Iraqi judges were reluctant to release prisoners once detained by
coalition forces. Transporting prisoners from US detention facilities to Iraqi
courthouses was a security, logistics, resource and accountability nightmare. CJTF-7
began holding criminal detainee review and release boards and simply released
hundreds of prisoners, but most were bound over for disposition by the Iraqi crim-
inal justice system.

In August 2003, CJTF-7 issued an order, nicknamed "The Mother of All
FRAGOs" because of its size and sophistication, which established a review and ap-
peal board as required by Article 78 of the Fourth Geneva Convention. 28 The pro-
cess was initiated unilaterally, without orders or guidance from any headquarters
above the level of CJTF-7 in Iraq. The new Article 78 review and appeal board
could not keep pace with the volume of prisoners. It began to meet more frequently
and soon expanded in size, eventually to be composed of permanent members
whose full-time duty was board service.

The board struggled with commanders' opposition to release decisions, particu-
larly from 4th Infantry Division, and with its own uncertainty over the meaning of
the "imperative reasons of security" standard for internment under Article 78. 29
Over the year of OIF, the standard became more refined and the board required
more detailed information concerning the threat posed by the prisoner. Early on, an

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Marc Warren

imperative threat was presumed if the prisoner had been identified in post-capture
screening as possessing intelligence information of value to coalition forces, which
under the CFLCC ROE was a basis for detention. The shortage of skilled interroga-
tors meant that the prisoner could remain under "intelligence hold" for weeks or
months awaiting meaningful interrogation. 30 Later, the "intelligence hold" was
prohibited as a means to establish the "imperative reasons of security" standard.
Nevertheless, pressure from commanders not to release prisoners continued, de-
spite briefings to the contrary at commander's conferences. On the other hand, the
CPA frequently demanded the release of prisoners for political or public relations
reasons, or based on anecdotal (and often inaccurate) humanitarian bases. The en-
tire Article 78 review and appeal process was under constant tension.

Faced with the reality of continued detention of thousands of criminal detainees
and security internees, the CJTF-7 SJA established and chaired the Detention
Working Group in July 2003, which brought together legal, military police, mili-
tary intelligence, medical, engineering and CPA assets in order to try to bring fu-
sion and order to the chaotic situation. The first "Detainee Summit," held in
August 2003 and chaired by the CJTF-7 SJA, identified serious shortfalls in deten-
tion operations expertise and recommended requesting additional subject matter
experts and the establishment of a Detention and Interrogations Task Force, com-
manded by a brigadier general. These requests were transmitted to CFLCC and
USCENTCOM in August 2003, but were not fully addressed until the creation of
Task Force 134 in the spring of 2004. 31 Recognizing that the command was about
to be overwhelmed by detainee operations, CJTF-7 requested additional legal sup-
port for the detention and interrogation mission in the summer of 2003, 32 as well as
changes to the headquarters structure to provide judge advocates to the Joint Inter-
rogation and Debriefing Center at the Abu Ghraib Central Detention Facility. 33
These requirements were not met until the formation of Multinational Forces-
Iraq (MNF-I) and Multinational Corps-Iraq (MNC-I) in May 2004. 34

In the interim, CJTF-7 created an additional legal support cell at Abu Ghraib,
using attorneys and paralegals cobbled together from various sources. This cell
provided general legal support to the detention mission and specific support to the
internment process, including serving internment orders. Instead of sending the
experts requested by CJTF-7, USCENTCOM sent an assessment team headed by
the Provost Marshal General of the Army to study the situation. 35 The team ulti-
mately produced a report in November 2003 that essentially corroborated and re-
stated the issues and shortfalls previously identified by CJTF-7 months earlier. 36
Also in the fall of 2003, a team led by Major General Geoffrey Miller, former com-
mander of the Guantanamo detention facility, came to Iraq to assess interrogation
activities. The team recommended that military police soldiers take a more active

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

role in setting conditions for interrogations and that experienced interrogators
from Guantanamo train the interrogators at Abu Ghraib, many of whom were
inexperienced reservists. 37

In September 2003, judge advocates in Iraq envisioned and championed Opera-
tion Wolverine, which proposed the trial of captured Iraqi insurgents by military
commission. 38 In October 2003, the proposal was modified to recommend a two-
tiered approach, using the newly established Central Criminal Court of Iraq as the
forum for most cases and general courts-martial where the cases involved attacks
against US victims. 39 The proposal was not endorsed by USCENTCOM; the Secre-
tary of Defense nevertheless approved the concept, but directed that all trials would
be held in the Central Criminal Court of Iraq. A CPA order expanded the Court's
jurisdiction and established case referral procedures. 40 Judge advocates and de-
tailed Department of Justice attorneys reviewed case files to identify cases amena-
ble to prosecution. Many files were classified or incomplete. There was real
difficulty in turning classified intelligence information into prosecutable evidence,
and there was often a paucity of significant information in the first place. However,
by November 2003 the process had begun and convictions were eventually ob-
tained for the murder of coalition soldiers and Iraqi civilians. 41

This great demonstration of the law of armed conflict has been misrepresented
by some as operating "beyond the confines" of the Geneva Conventions, because,
they claim, CJTF-7 characterized those prosecuted as "unlawful combatants" in
the manner of the Guantanamo prisoners. 42 Nothing could be more wrong. CJTF-
7 never classified anyone in the manner of the Guantanamo prisoners. It developed
and fielded a means to hold insurgents criminally accountable for their warlike acts
violating Iraqi law or CPA ordinances committed without benefit of combatant
immunity. Those insurgents prosecuted were still "protected persons" under the
Fourth Geneva Convention, but they could be prosecuted because they had com-
mitted criminal offenses and were not lawful or privileged combatants. They did
not meet the criteria of Article 4 of the Third Geneva Convention. 43 This result is
not only clearly contemplated by the law of armed conflict, but a result reached
only by strict adherence to the Third and Fourth Geneva Conventions, and with
the approval of the US Department of Defense and the CPA.

Despite the trials, significant problems with detention continued. Military police
support was limited and military police leadership in Iraq was junior and sporadic.
Until several months into the occupation, the senior military police officer on the
V Corps and CJTF-7 staff was a major. Even when the position of provost marshal
was filled by a reserve colonel, his staff was inadequate.

In the summer and fall of 2003, troops dedicated to the detention and intern-
ment task were simply overwhelmed. The CJTF-7 SJA chaired a weekly meeting of

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Marc Warren

military police, military intelligence, engineer, medical, legal and CPA representa-
tives that attempted to synchronize and improve detention activities. Judge advo-
cates did everything in their power to ensure that all prisoners were treated
humanely and in accordance with the law. In many cases, judge advocates person-
ally intervened to ensure that military authorities provided prisoners with ade-
quate food, water, hygiene and shelter. 44

Accountability of prisoners and transparency of the detention and internment
system were continuing issues, even with assistance from the CPA. In cooperation
with the CPA senior advisor to the Iraqi Ministry of Justice, CJTF-7 provided lists in
Arabic of detainees and internees to civil-military operations centers and, in Bagh-
dad, to courts and police stations. 45 Names of detainees and internees were pro-
vided to the ICRC through capture cards. However, routine delivery of the cards, as
well as frequent interaction with the ICRC, was suspended after the ICRC moved
its operations to Jordan in response to safety concerns stemming from the bomb-
ing of the United Nations headquarters building in Baghdad on August 19, 2003.

Also in the summer of 2003, the 800th Military Police Brigade, an Army reserve
unit trained and validated to perform the detention and internment mission, and
commanded by a brigadier general, deployed into Iraq and slowly established its
headquarters in Baghdad. The unit was placed under the tactical control of CJTF-7,
but remained under the command of CFLCC. 46 Initially viewed as the salvation of
CJTF-7 in the areas of detention and internment, it quickly proved to be a disap-
pointment. With few exceptions, the unit seemed unable to actually perform its
mission, and breaches in accountability, discipline and standards were frequent.

In part, this was due to the status and composition of the unit. When its reserve
component soldiers reached the end of their two-year mobilization commitment,
they left the theater for deactivation and were not replaced. Soon after arriving in
Baghdad, the experienced deputy commander of the brigade went home without a
successor. The brigade command sergeant major, responsible for setting and en-
forcing soldier standards, was relieved and never replaced. This left the brigade
without key senior leaders.

Assigned responsibility to run all larger detention facilities, including Abu
Ghraib, and to provide support to the CPA in reestablishing prisons and jails
throughout the country, the brigade was also assigned the mission to guard and
administer Camp Ashraf, the cantonment area for the Mujahedin-e Khalq organi-
zation (MEK). The MEK was a military force of several thousand Iranians who
had operated against Iran from bases in Iraq. The MEK was the only large-scale
capitulation of the war — and its members weren't even Iraqis! They were, how-
ever, on the US list of designated foreign terrorist organizations 47 and CJTF-7 was
directed not to process them under the Article 78 review and appeal process. After

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

a year of interagency wrangling and debate, it was decided that they were simply
"protected persons" under the Fourth Convention. During this year, the MEK
members were kept under the control of the military police for screening,
accountability and protection, a task that would have tested the capability of the
800th Military Police Brigade (or any other brigade) had that been its only mission.

The brigade struggled to maintain basic accountability of detainees and intern-
ees, to transport criminal detainees to court hearings and to guard prisoners gener-
ally without incident. Brigade soldiers shot several prisoners who had threatened
them in crowded temporary detention facilities. In fact, the major reason Abu
Ghraib was chosen as a detention facility despite its awful history under the
Saddam regime was that it offered the only location in the Baghdad area to safely
house prisoners. Judge advocates had been instrumental in locating and assessing
the Abu Ghraib prison, and advocating its use for humanitarian reasons. 48

The impact of special operations and non-military forces on detention opera-
tions was neither largely known nor understood at the time. In hindsight, some of
the record-keeping and accountability problems experienced by the 800th Military
Police Brigade were probably caused by special operations and non-military forces
requesting that their prisoners held in conventional forces detention facilities be
kept "off the books" and not reported to the ICRC. This problem was discovered
by CJTF-7 during preparations for an ICRC visit to Abu Ghraib in January 2004.

After discovering prisoners who were not recorded, the CTJF-7 SJA went to the
205th Military Intelligence Brigade commander, who immediately directed that
the prisoners be released from his custody, or properly recorded and reported to
the ICRC. This was done the next day. The prisoners remaining in custody were
deemed HVDs in a critical phase of interrogation. Accordingly, through the lim-
ited partial invocation of that portion of Article 143 of the Fourth Geneva Conven-
tion pertaining to imperative military necessity, the ICRC was precluded from
conducting private interviews of the internees, but was given their names and al-
lowed to observe them and the conditions of their captivity. 49 Additionally, the
ICRC was informed that its delegates would be free to hold private meetings with
the internees on any future visit, including a surprise visit. 50 Incredibly, even
though the ICRC acknowledged the right of coalition forces to temporarily limit
private interviews, this approach has been recklessly characterized by some as a
"new plan to restrict" ICRC access to Abu Ghraib. 51

Some special operations forces not under the command and control of CJTF-7
had their own long-term detention facilities. 52 USCENTCOM remained respon-
sible for technical supervision, including legal supervision, of some special opera-
tions activities in Iraq. In almost all areas, CJTF-7 personnel, including judge
advocates, were not even "read on" to their activities.

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In at least two meetings with Central Intelligence Agency (CIA) representatives,
including visiting CIA attorneys, the CJTF-7 SJA informed them of the applicabil-
ity of the Geneva Conventions in Iraq ("this is not Afghanistan") and of the CJTF-7
order establishing the detention and internment process. 53 The representatives
agreed to abide by the rules. The CJTF-7 legal staff strove to meet with all of the
special operations legal advisors who rotated frequently in and out of the country,
in order to brief them on the applicability of the Geneva Conventions and CJTF-7
orders in Iraq.

Removal of prisoners from Iraq to other countries was an occasional, but signif-
icant, point of friction with the CIA. CJTF-7's insistence that Article 49 of the
Fourth Geneva Convention generally prohibited removing prisoners from Iraq
was met with derision and skepticism. 54 On at least two occasions, USCENTCOM
issued orders directing CJTF-7 to turn over non-Iraqi HVDs for transport to loca-
tions outside Iraq; the written orders were insisted upon by the command after
judge advocates identified the issue. Despite its inapplicability in a belligerent oc-
cupation regulated by the Geneva Conventions, USCENTCOM continued to in-
voke the GWOT "global screening criteria" as authority to classify prisoners and to
remove them from Iraq. 55 Direct requests from CIA representatives in Iraq were
repeatedly declined by CJTF-7, but then renewed with the CPA. On May 2, 2004,
the CJTF-7 SJA was summoned to the CIA station in Baghdad and shown a cable
recounting standing interagency concurrence with transfers from Iraq as deroga-
tions under Article 5 of the Fourth Geneva Convention. 56 CJTF-7 nevertheless re-
fused to alter its position that it would have to be ordered by USCENTCOM to turn
over any prisoner for removal from Iraq.

When Saddam Hussein was captured on December 13, 2003, CJTF-7 took the
position that he was a prisoner of war, which meant, among other things, that the
command was obligated to report his capture to the ICRC and allow the ICRC to
visit him. This characterization was met with reluctance, if not resistance, at higher
levels, at least in part because of the mistaken notion that his status as a prisoner of
war might accord him immunity from prosecution for his pre- capture criminal of-
fenses. Ultimately, CJTF-7 prevailed in its position. Saddam's status as a prisoner
of war was publicly acknowledged and the ICRC visited him in accordance with
elaborate security precautions on numerous occasions, as did judge advocates.

Judge advocates helped the command reconcile the juxtaposition of Saddam's
status as a prisoner of war with his status as the war's most high-profile captive. He
was segregated for his own safety and security (as were other HVDs), but informa-
tion about his capture, physical condition and demeanor was released to the pub-
lic. As had been done with the bodies of his sons Uday and Qusay on July 24, 2003,
a small number of Iraqi political leaders were allowed to observe Saddam under

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controlled circumstances in order to corroborate his identity. The public and mili-
tary advantage to be gained from the observation was weighed against the general
admonition of Article 13 of the Third Geneva Convention not to expose prisoners
of war to public curiosity. 57 The balance tipped in favor of the observation; if
Saddam's identity had not been confirmed to the satisfaction of the Iraqi people, he
would have continued to be a shadow rallying point for the insurgency and his cap-
ture would have been dismissed as a hoax. Conversely, the CPA's insistence that
"foreign fighters" should be placed on public display was rebuffed as a violation of
the principles of Article 13. 58

Not all significant prisoner issues were satisfactorily resolved. For example, a pris-
oner code-named "XXX" was held incommunicado on orders from USCENTCOM
and he was neither reported to the ICRC nor subject to its observation. Judge advo-
cates raised the issue of "XXX" early on and CJTF-7 demanded written orders from
USCENTCOM to hold him in the specified manner. Periodically, CJTF-7 would
request reissuance of the USCENTCOM order. The CJTF-7 SJA requested and
received from the Joint Staff and the Department of Defense General Counsel's Office
the authority and rationale for the USCENTCOM order: invocation of the deroga-
tion clause in Article 5 of the Fourth Convention concerning forfeiture of the rights
of communication. 59 Although attorneys could disagree on the propriety of apply-
ing the derogation clause in this case, CJTF-7 had raised the issue and it had been
determined at the highest level.

Interrogation Policies

A great deal of criticism has been leveled at the interrogation policies of conven-
tional forces in Iraq. 60 Some of it is justified; most is not. One of the persistent as-
sertions is that CJTF-7 promulgated many confusing and inconsistent
interrogation policies. 61 Here are the facts: in 2003 there were two. 62 The first was
developed in September 2003 in response to recommendations from Major Gen-
eral Miller's assessment team, as well as to regulate the interrogation approaches
and techniques flowing in from Afghanistan and Guantanamo, and from non-
military forces. 63 Many of these techniques appeared to be of the type used to teach
interrogation resistance in survival, evasion, resistance and escape (SERE)
programs.

The policy was transmitted to the USCENTCOM commander by memorandum
stating that, unless otherwise directed, the CJTF-7 commander's intent was to imple-
ment it immediately. 64 Contrary to published reports, USCENTCOM did not direct
otherwise. 65 Rather, the judge advocates at USCENTCOM and CJTF-7 engaged in
a legal technical channel discourse, during which USCENTCOM (and CJTF-7)

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judge advocates raised concerns about the policy. This resulted in CJTF-7's rescis-
sion of the policy less than a month after it was issued. 66 This coordination was a
great example of legal technical channel coordination concerning an extraordi-
narily difficult issue, accomplished amid the stress of combat by judge advocates
working with inadequate rest under enormous pressure. In less than a month,
judge advocates at USCENTCOM and CJTF-7 had worked through and resolved
issues that continued to plague the military — and the US government — for several
more years, at least until the passage of the Detainee Treatment Act 67 and publica-
tion of the new Army field manual on intelligence interrogations. 68

On October 12, 2003, CJTF-7 implemented a second interrogation policy, 69
which essentially mirrored the interrogation approaches in Army Field Manual 34-
52 70 and added additional safeguards, approvals and oversight mechanisms. The
additions made the CJTF-7 interrogation policy more restrictive than that set forth
in the Field Manual, which left much more to the judgment and discretion of the
interrogator. The October 12 policy actually authorized two fewer techniques than
did the Field Manual, although it did allow segregation in some instances. 71

The facts have not prevented the media from exaggerated reporting and essen-
tially blurring Iraq, Afghanistan and Guantanamo, and merging the actions of mil-
itary and non-military forces. Conventional forces in general, and CJTF-7 in
particular, have become, in the words of the old Iraqi saying, "the coat-hanger on
which all the dirty laundry is hung." For example, a Washington Post editorial
claimed that General Sanchez issued policies authorizing interrogation techniques
"violating the Geneva Conventions, including painful shackling, sleep deprivation,
and nudity." 72 This is false. The CJTF-7 policies authorized none of those tech-
niques and did not violate the Geneva Conventions when used with the safeguards
and oversight required by the policies. 73

That said, the September policy, in effect for less than a month, was overbroad
and made naive assumptions about some techniques based on assurances from the
intelligence community. 74 These deficiencies were corrected in the October policy.
Regardless, none of the CJTF-7 interrogation policies ever authorized, and would
not allow, the use of shackling, sleep deprivation or nudity (or water boarding or
the use of dogs 75 for that matter) as interrogation techniques. In fact, as was con-
cluded by the Army's Chief Trial Judge in her exhaustive analysis of legal support to
CJTF-7, had the CJTF-7 interrogation policies been followed, there would have
been no abuses at Abu Ghraib. 76

As an aside, while the entire Abu Ghraib incident is shameful and reprehensi-
ble, a point not commonly appreciated is that the individuals depicted being
abused in the Abu Ghraib photographs were not security internees; they were
criminal detainees — common criminals — who were not being (and would not be)

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interrogated in any event. Nevertheless, the Abu Ghraib scandal engulfed CJTF-7
in the late spring of 2004, diluting the command's focus and sapping its strength.
This happened at the same time that al-Sadr's Shia militia attacked coalition
forces; the Sunni insurgency exploded; Al Qaeda in Iraq emerged; Iranian adven-
turism increased; and key actions had to be taken to end the occupation, disestab-
lish the CPA and enable the interim Iraqi government.

The scandal was a catastrophe. 77 It fueled propaganda for the enemy and was
used to give credence to the myth of ambiguity about the applicability of the
Geneva Conventions in Iraq. The myth was advanced by soldiers who, facing
courts- martial for detainee abuse, asserted that they were confused over the rules
(or, for that matter, who tried to raise the defense of superior orders or command
policy to justify their actions). 78 Their assertions have been extensively covered and
amplified in the media; they are the stuff of books and movies. 79 That the assertions
have been spectacularly unsuccessful, despite the opportunity of extensive pretrial
discovery to uncover any supporting evidence, has been much less widely reported.

But in fairness there is a point to be made concerning the possibility of confu-
sion at the soldiers' level. There were soldiers who served in Afghanistan, where
rules and principles were relaxed, and then redeployed to Iraq, where the Geneva
Conventions fully applied. 80 There were also soldiers who interacted with special
operations and non-military forces which operated under relaxed rules and princi-
ples, even in Iraq. So, it is possible that some soldiers at the junior level might have
been confused about the applicability of the Geneva Conventions, at least until
they received the refresher training on the law of armed conflict that was mandated
by CJTF-7. But none of those soldiers should have reasonably believed that de-
tainee abuse was ever authorized, and any who had questions should have sought
clarification from a responsible leader.

Unfortunately, incidents of detainee abuse fueled inaccurate perceptions that
US forces were ill disciplined and that the abuse of detainees was systematic or the
norm. 81 The truth is that US forces were disciplined and detainee abuse cases were
few. 82 Abu Ghraib was an awful and aberrant exception. It demonstrated the power
of pictures 83 and the negative impact of the "strategic corporal." 84 Most detainee
abuse cases occurred at point of capture, where tempers run high, frequently after
an IED detonation or a firefight. The thresholds for classifying, reporting and doc-
umenting cases as detainee abuse were for a significant time very low in Iraq. 85 This
led to an exaggeration of numbers.

Detainee abuse in Iraq, including the abuse at Abu Ghraib, occurred despite,
and certainly not because of, military command policies and orders. There were
huge problems caused by the sheer numbers of detainees and the unexpected crush
of common law criminals. But the real root causes of the problem were the lack of

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relevant doctrine and training afforded to military intelligence interrogators; the
absence of sufficient capable military police corps detention and correction exper-
tise during the first year in Iraq; the failure of USCENTCOM to plan for, resource,
and execute detention and interrogation operations in Iraq, even after previous ex-
perience in Afghanistan portended many of the same problems that were later re-
peated in Iraq; 86 and the broad interrogation authorities granted to non-military
forces and to some special operations forces not under the command and control
of CJTF-7, some of which were adopted by conventional forces in spite of orders
and policies to the contrary.

Occupation

Worse than the inadequate planning and mixed messages on detention and inter-
rogation was the utter confusion caused by the "fog of law" in the occupation of
Iraq. The occupation was anticipated at the level of the operating forces. However,
higher-level planning was inadequate or did not occur, strategic policy decisions
were not made in a timely fashion and the requirements for occupation were not
adequately resourced. The problem was not in failing to forecast the occupation as
governed by the Fourth Geneva Convention; it was in failing to set the conditions
for its meaningful execution. The situation was analogous to the dog chasing the
car — the real difficulty comes when he catches it.

In January 2003, US Army, Europe hosted a legal conference in Heidelberg, at
which an Israeli judge advocate who had experience in the administration of occu-
pied territory talked about problems likely to face occupation forces. The confer-
ence augmented research on occupation law, including the study of materials from
the US Army War College and the Center for Military History on US experiences
after World War II. Also in early 2003, V Corps conducted an exercise named Vic-
tory Scrimmage in Grafenwohr, Germany. In the exercise and its follow-on, V
Corps war gamed what were termed "transitional occupation" issues, problems
such as riots, criminal misconduct, looting, humanitarian relief requirements and
civilian population movement that would impede offensive operations as coalition
forces moved through Iraqi territory. These issues so concerned the V Corps com-
mander, General Scott Wallace, that he directed an immediate follow-on exercise
in Grafenwohr to try to develop responses to the problems.

The result was stunning in several respects. First, it was clear that transitional
occupation issues could appreciably slow offensive forces and potentially require
substantial additional forces to deal with them. Unfortunately, it was also clear that
these additional forces did not exist. V Corps had developed a time-phased force
deployment list (TPFDL) over the past year of exercises and mission analyses. The

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TPFDL identified the amount and flow of forces necessary to accomplish the mis-
sion. In Grafenwohr, V Corps learned that the corps TPFDL had been scrapped
and replaced by a much smaller force. The V Corps commander was deeply concerned
about the reduction in combat power. The reduction meant that the V Corps com-
mander had to do a "rolling start" of the ground offensive with forces available and
with the expectation that additional divisions would arrive over time, instead of
being able to mass all of his forces at once. The V Corps commander was also con-
cerned about the cuts in combat support and combat service support forces, par-
ticularly military police units.

Second, Victory Scrimmage and its follow-on demonstrated a potentially huge
planning and capability deficit if the assumptions concerning what was called
Phase IV, the phase of the operation after decisive combat operations, proved to be
invalid. These assumptions were premised on the belief that many Iraqi military
forces would capitulate — that is, surrender en masse without a fight — and would
be available to serve as a constabulary or security force; that Iraqi physical and social
infrastructure would remain intact; and that a capable interim Iraqi government,
probably under Ahmed Chalabi, would quickly emerge. If these assumptions were
invalid (and, of course, every one of them proved to be invalid), and if US forces
encountered problems like those identified in Victory Scrimmage (as they did), it
was clear that there had to be a plan and resources for a sustained occupation. With
regard to assumptions, it seems that the worst was assumed about Iraq's capabili-
ties and intentions in deciding whether to go to war, and the best case was assumed
as to what would happen once coalition forces crossed the Iraqi border.

Accordingly, V Corps dutifully identified numerous issues and requirements
pertaining to occupation, and sent them up to higher headquarters. Some of V Corps'
subordinate divisions, particularly 3d Infantry Division, did the same. In the legal
arena, these included questions on the content of the occupation proclamation
and ordinances, whether some Iraqi judges should be removed from the bench, 87
whether occupation courts with military judges could be convened by command-
ers and whether parts of the Iraqi Penal Code were to be suspended. 88 On a basic
level, V Corps asked for an Iraq country law study and a translated copy of the Iraqi
Penal Code. These questions and requests were received sympathetically by CFLCC
in Kuwait, and the CFLCC SJA vigorously raised similar issues and questions, and
joined in the requests until the war began. Unfortunately, the answer was that there
were dedicated Phase IV planning cells at CFLCC and USCENTCOM, and in
Washington, D.C., and that all of these matters were being addressed at "the na-
tional and coalition level."

The V Corps commander became so concerned about what was — or wasn't —
being done at the Washington level that he sent the V Corps civilian political

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advisor to Washington to sit in on the meetings. Her report was that interagency
planning for Phase IV was under way, but that it would not be called an "occupa-
tion." We would not be occupiers but "liberators," and "the 'O' word" was not to
be used at all. Of course, this was ludicrous, as occupation is a fact, and the Fourth
Geneva Convention and the older Hague Regulations establish the rights and obli-
gations of an occupier as a matter of law. 89 This fact cannot be wished away or
dismissed by using the euphemism of "liberator."

To make matters worse, the Corps' G-5, the civil affairs officer, had a heart
attack in Grafenwohr and could neither continue in the exercise nor deploy to Kuwait
or on to Iraq. He was not replaced by a civil affairs officer. The position of G-5 was
instead filled by the G-l, the personnel officer, who was a very competent officer,
but a personnel specialist unschooled and inexperienced in civil affairs.

As coalition forces staged in Kuwait, planning for the occupation continued, albeit
in a vacuum. In February 2003, the V Corps SJA section gave the corps commander
a lengthy briefing on the rights and responsibilities of an occupier. The briefing
concluded with the identification of numerous issues about which the operating
forces required information and decisions. The V Corps commander directed the
staff to coordinate with the Office of Reconstruction and Humanitarian Assistance
(ORHA), which had recently established an element in Kuwait city. ORHA was the
predecessor to the CPA.

The coordination revealed that ORHA had done little analysis and had devoted
few resources to the effort. Not only did the organization not have any answers for
V Corps, its staff had little awareness of many of the questions. In fairness, ORHA
was designed for consequence management, not for the administration of occu-
pied territory. ORHA assumed that the policy decisions so desperately needed
would be issued from Washington.

At the start of combat operations and in the absence of guidance, but based on
war-gaming and exercise experience, V Corps issued orders during the march to
Baghdad regarding procedures and warnings at checkpoints (after a tragic incident
early on in which an entire family had been killed as their van approached a check-
point without slowing down, despite warning shots); 90 cordon and search opera-
tions; curfews; weapons, explosives and fuel possession controls; and the use of
force against looters. The problem was that these were all issued as necessary at the
tactical level and not as part of any cohesive plan. Efforts to try to address the prob-
lem in a comprehensive way were thwarted by a lack of fundamental policy deci-
sions at a higher level. For example, an occupation proclamation and orders to
civilians had been staffed, drafted, printed and prepositioned, but no order was
ever given to release them. 91

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

In Baghdad, there was inadequate troop strength to effectively control the city.
The 3d Infantry Division had reached its culminating point. It had fought all the
way to Baghdad and was exhausted; it just had little energy left to detain looters or
guard key infrastructure. Orders were issued to protect museums, courthouses,
police stations, power and water plants, and public records holding areas, but there
were simply not enough troops to go around. 92 Even when troops were available,
they frankly did not always follow through with their assigned tasks. 93

For the first few weeks in Baghdad, ORHA was looked to as the occupation au-
thority, although it was clear that only the military had the potential to exercise ef-
fective control. Despite its lack of a clear charter and sufficient resources, ORHA
had two attributes: it did not interfere with the military and it trusted the judg-
ment of military commanders. During the few weeks of ORHA's existence, the
corps and division commanders were afforded freedom of action to engage the
civilian population and restore security. The 101st Airborne Division (Air Assault),
commanded by then-major general David Petraeus, was among the most successful
in its initiatives to reestablish order and a semblance of normalcy in its assigned
area of operations. Significant challenges continued in Baghdad, however.

The military recognized the importance of quickly addressing the issue of Ba'ath
Party membership, which included most government workers, as well as teachers.
V Corps suggested to ORHA that adopting a status-based policy that would dis-
qualify Ba'ath Party members from government (and coalition forces) em-
ployment would cause massive practical problems and be counterproductive to efforts
to quickly get the policeman back on the beat, the teacher back in the classroom and
the municipal worker back on the street. Instead, V Corps advocated a conduct-
based policy that would not prohibit employment of persons solely based on their
membership in the Ba'ath Party, but would bar those persons who were suspected
of crimes or other misconduct.

The policy required Iraqi government workers to sign an agreement renouncing
and denouncing the Ba'ath Party, Saddam Hussein and his regime; promise to
obey Iraqi law and military and CPA orders; and get back to work. Vetting of em-
ployees would take place over time. Judge advocates authored the conduct-based
policy, implemented through an "Agreement to Disavow Party Affiliation." 94 Gen-
eral Wallace discussed it with retired Lieutenant General Jay Garner at ORHA, and
the conduct-based approach with implementing renunciation agreement was ap-
proved. Thousands of agreements were printed and distributed, and the policy was
implemented.

Less than ten days later, the CPA announced its de-Ba'athification policy, which
took exactly the opposite tack. 95 The CPA policy was purely status-based and took
thousands of people out of the work force, leaving them essentially unemployable

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and disaffected. Like the CPA order dissolving the Iraqi military, it was imple-
mented with absolutely no coordination with the commanders on the ground and
no consideration of what was already being done by the military, despite the fact
that this decision would have a huge impact on law and order, security and stabil-
ity, and reconciliation. 96

The obligations of an occupier exist as a matter of law regardless of what the sit-
uation is called or what instrument is used to administer the territory. In this re-
gard, the utility of the CPA is questionable as a matter of fact and suspect as a
matter of law (at least until its authority was ratified by the UN Security Council). 97
Occupation is a military duty and the military has historical competence in occu-
pation. The law of occupation is focused on the activities of the military and mili-
tary government, and on the responsibilities of commanders. This law has
developed for good reason.

When the CPA was established as a civilian entity, military commanders suf-
fered a diminution of their authority to administer and exercise the rights of occu-
pation, with no reduction in their legal responsibilities. As a practical matter,
placing CJTF-7 in direct support of the CPA violated the military maxims of unity
of command and unity of effort. 98 It was not clear who was in charge in Iraq, nor
were the relative roles and responsibilities of the CPA and CJTF-7 clear. 99 What was
obvious was that there was a diffusion of effort and the squandering of several
golden months after a decisive military victory within which time most of the Iraqi
population craved firm direction and before any insurgency could meaningfully
develop.

The CPA concentrated on transformation outside the historical bounds of oc-
cupation: economic reform, developing the Iraqi stock market, reestablishing sym-
phony orchestras and arts programs, judicial reform, building a criminal defense
bar and promoting women's rights. 100 Many of these were nice things to do, but
most did not contribute to stability and security. At best, many of the CPA's activi-
ties, even if successful, were irrelevant; many were setbacks. The CPA's effort to re-
build the Iraqi police force and army was haphazard and handicapped by its earlier
dissolution of the Iraqi military. CJTF-7 had to bolster the CPA effort and establish
parallel training programs and organizations, such as the Iraqi Civil Defense
Corps, in order to field Iraqi security forces. 101

Worse, some of the CPA's directives were a blatant interference with the mili-
tary's warfighting mission. These included orders to release dangerous internees
because of political considerations and extensive involvement in events in Fallujah
in April 2004, including mandating peace talks, which culminated in CPA Admin-
istrator Bremer directing the CJTF-7 commander and the USCENTCOM com-
mander, who was then present in Baghdad, to call off the attack on the city. 102 From

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

the beginning, the CPA took an active role in military matters. On the day Admin-
istrator Bremer arrived in Iraq, he announced that US forces would shoot to kill all
looters. This announcement was made without any coordination with the military
in Iraq and no consideration of the ROE. Of course, the ROE rightly would not
allow this and considerable time and effort had to be expended to issue clarifying
orders and guidance to put this genie back in the bottle. 103

The end of the CPA was as confused as its beginning. Its "transfer of sover-
eignty" to the interim Iraqi government was a complete mischaracterization of the
authority the CPA held during the occupation. Occupation does not affect sover-
eignty and there was no sovereignty, only possession, to transfer back to the Iraqi
government. 104

There were bright spots in the CPA (its legal staff was brilliant). In general, how-
ever, it was a policy- and politics-laden bureaucracy that was a drain and distrac-
tion to the war effort. It contributed to both the "fog of law" and the "fog of war" in
Iraq. In sum, the CPA was more hurtful than helpful.

Rule of Law

Although these were not termed rule of law activities at first, judge advocates began
efforts to restore Iraqi judicial capability almost as soon as coalition forces entered
the country. Judge advocates assigned to civil affairs units assessed courthouses in
Basra and southern Iraq and assessments continued as the war progressed north-
ward. Many court buildings had been looted. In some cases, however, judges and
other court personnel had literally (and physically) protected their courthouses by
remaining in the structures continuously.

In Baghdad, judge advocates unilaterally "deputized" court personnel as armed
court police to guard many buildings and records. Not all buildings could be pro-
tected. In the main public records repository building in Baghdad where property
and other records were stored, fires had been set in the document storage stacks.
Courthouses, public records repositories and police stations were prime targets for
arsonists.

Prior to the arrival of the first CPA senior advisor to the Ministry of Justice,
there was no cohesive plan for interaction with the Iraqi judicial system. Until the
establishment of the CPA, no questions about Iraqi law or the Iraqi legal system
had been answered. One of the CPA's first decisions on the topic was to direct the
application of the 1969 Iraqi Penal Code, with some suspended provisions. 105 The
CPA also set priorities by directing that US forces were not to convene occupation
courts, but would instead concentrate on revitalizing the Iraqi judicial system. On
the topic of the Iraqi Penal Code, V Corps did not obtain an official version until it

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Marc Warren

was in Iraq, and that thanks to the Center for Law and Military Operations at The
Judge Advocate General's Legal Center and School in Charlottesville, Virginia. In
the interim, one of V Corps' judge advocates, who happened to have been an
Arabic linguist, had checked out a copy from the Kuwait city public library and be-
gan the tedious task of translating the code into English.

Without guidance, immediate actions were taken in accordance with the com-
mander's intent using the Fourth Geneva Convention as a guide. The V Corps SJA
went on the radio in Baghdad to order judges and court personnel to return to
work. Maneuver unit judge advocates and civil affairs soldiers went all over the
country to meet with judges, coax them to the bench and reestablish regular court
sessions. This effort, a rudimentary rule of law program, was enthusiastically sup-
ported by commanders who saw the reopening of the courts as an essential aspect
of restoring security, stability and public confidence.

Judge advocates and civilian attorneys working for the CPA routinely went to
Iraqi courts, and even arranged for and executed payroll payments for judges and
other Ministry of Justice personnel; they were under fire on a number of occasions
as they did so. Later, judge advocates at the corps, division and brigade levels cre-
ated and staffed Judicial Reconstruction Assistance Teams (called JRATs) and
Ministry of Justice Offices (called MOJOs), and for almost a year managed the
Baghdad and Mosul court dockets.

Despite these initiatives, rule of law activities in general remained disjointed,
with responsibility shared by the CPA, civil affairs units and judge advocates as-
signed to maneuver units. Locally, rule of law efforts focused on opening Iraqi
courthouses and increasing the pace of cases moving through them. Higher-level
efforts concentrated on combating judicial corruption and improving the criminal
justice system. 106 The CPA and military attorneys expended Herculean efforts and
made progress, but synchronization of their efforts was uneven and clear rule of
law performance measures and objectives were not defined. 107 Directive authority
for overall rule of law activities was not fixed, and SJAs and CPA attorneys engaged
in the activities commanded no assets. In the first year in Iraq, there were four CPA
senior advisors to the Iraqi Ministry of Justice, not counting acting advisors who
filled the gaps. This meant new philosophies, new approaches and redevelopment
of personal bonds among all involved parties, including Iraqi ministers and
judges. 108

The lack of a coherent plan for rule of law activities is demonstrated by the ar-
rival in the summer of 2003 of a distinguished team of judicial mentors from the
United States. The team traveled around Iraq at great personal risk and presented a
security and logistical burden to the military. Frequently unable to meet with Iraqi
judges who were in hiding, or to travel to locations because of security concerns,

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the team returned to the United States having been frustrated in its mentoring mis-
sion. Fundamentally, the team should not have been in Iraq while security condi-
tions were unstable and when Iraqi judges needed to hear one clear message from a
single firm voice: return to the bench and move cases. Mentoring and other
nuanced activities caused a confusion of message, complicated relationships and
did not contribute to the most important task at hand, restoring security.

Conclusion

The "fog of law" is a needless and largely avoidable phenomenon. Soldiers deserve
a clear and unambiguous legal framework. While their training and values will in
most cases lead to soldiers doing the right thing at the tactical level of combat, they
can be negatively impacted by the "fog of law" created at the operational and strate-
gic levels. Its effects can undermine public support, provide propaganda to the en-
emy, create distractions, and contribute to false assumptions and bad decisions.
The "fog of law" can be lifted by applying these principles:

1. Follow the law. The law of armed conflict, including the Geneva
Conventions, has developed over time for reasons of humanity and
necessity and is grounded in pragmatism. Old law is still good law; the
Geneva Conventions are neither quaint nor obsolete. 109 At a minimum,
they can serve as guiding principles even when not applicable as a matter
of law. When they do apply as a matter of law, as in Iraq, they have
demonstrated their utility and ability to be meaningfully implemented in
the new millennium.

2. The viability of the law of armed conflict must be demonstrated and
explained to the media and to the civilian population generally. This
necessitates public education programs, as well as timely and informed
public briefings and reports when incidents occur. In this regard, the
military has a practice of thorough investigation while striving to
safeguard classified information, with the result being that the facts, as
well as the military's perspective, are not made available to the public
until long after the incident's notoriety has disappeared from public
attention. In the interim, the enemy and special interest groups have had
unimpeded freedom to manipulate the incident and control the public
debate. The military simply must respond more quickly, definitively and
publicly to suspected violations of the law of armed conflict or ROE, and
to alleged breaches of discipline. There is a stable of pseudo- experts who

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are immediately available to provide commentary — often wrong — on
such matters. Distinguished outside experts should also be available to
explain the law and principles at issue, and the military's perspective, to
the media and public. 110 In appropriate cases, those experts should
participate in investigations of high-profile incidents.

3. Disregard history at your peril. Decision makers would have benefited
from a thorough study of occupation history, particularly the history of
occupation in Germany and the Far East after World War II. It would
have informed them greatly and potentially led them to avoid missteps
about de-Ba'athification, restoration of law and order, and the resources
and decisions necessary to implement an effective occupation. They
would have also benefited from an analysis of past counterinsurgency
and "nation-building" operations, such as the US occupation of the
Philippines after the Spanish-American War, British counterinsurgency
operations in Malaya, US military operations generally in Central
America in the last century and British operations in Northern Ireland.
Study of Israeli warfighting and occupation experience would have been
particularly helpful. Among the things they would have discovered is that
patience and adaptability are essential, and that missteps and mistakes
are inevitable but recoverable.

4. Attempts to conflate the law of armed conflict, particularly the law of
belligerent occupation, with human rights law are misguided, as they
dilute both and erode the clarity of the well-developed law of armed
conflict on which commanders and soldiers are trained. The interjection
of human rights law into the wartime legal mix as a separate body of law
causes confusion. However, it is equally misguided to completely dismiss
the existence of overlaps between human rights law and the law of armed
conflict, especially when including the aspects of Additional Protocol I
that are customary international law. 111 The overlaps include those non-
derogable human rights that are germane to wartime. 112 In those unusual
cases where there are conflicts between overlapping human rights law
and the law of armed conflict, the latter must prevail under the lex
specialis rule. 113 In even rarer and more sophisticated cases, there may be
gaps between human rights law and the law of armed conflict to which
human rights law might apply. However, the application of human rights
law in wartime should be a clear exception and occur only where justice
necessitates that it address a gap such as when, for example, "the norms

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

governing belligerent occupation are silent or incomplete." 114 Otherwise,
applying human rights law in wartime creates friction and confusion,
while adding little except affording a means to obtain pecuniary damages
and publicity. Nations — and legal theorists and politicians — would do
well to concentrate on efforts to advance adherence to the law of armed
conflict, particularly among non-State actors, before advocating the co-
applicability of human rights law in wartime.

5. The principles of war and command, military doctrine, force ratios,
troop-to-task ratios, and the military decision-making and orders
processes all exist for a reason. Put another way, ignoring these things,
whether done by senior military or civilian officials, is asking for trouble.
In the legal arena, the long-developed concept of legal technical channels
is important. Every SJA needs an SJA, and no attorney involved in
military operations should be a solo practitioner.

6. The military must be responsible for occupation and, if necessary,
administer occupied territory through a military government. The three
most important legal, moral and military objectives in occupation are
security, security and security. 115 Conventional wisdom now accepts that
there should have been more interagency involvement in Iraq in the first
year. This is wrong; in fact, there should have been less non-military
presence in Iraq in the first year. There should have been more
interagency planning before the war and a more responsive and cohesive
interagency decision-making process before and during the war. But in
Iraq the situation would have been drastically better had the military
simply established a military government in order to stabilize the
country, restore security, and reestablish infrastructure and institutions,
and allow for the infusion of civilian experts and the re-emergence of an
Iraqi government as conditions permitted. If it existed at all, the CPA
should have been in support of the military, not vice versa, and the
overall coalition occupation authority in Iraq should have been a
military commander, perhaps with a civilian deputy or civilian senior
advisor. Coalition forces would have had to endure the propaganda that
they were occupiers, but how was this avoided by virtue of the CPA?

7. Modest rule of law activities are an essential and immediate instrument
for the military to use to help reestablish security, order and public
confidence. 116 Rule of law is a vague and relative term that requires clear

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definition, assignment of responsibility and resources, and estab-
lishment of objectives and performance measures. There is no simple
template for rule of law activities; the objectives and performance mea-
sures must be relative to the history, culture and reality on the ground. 117
The focus must be on the "Three Ps": police, prisons and prosecutors
(courts). In an occupation, the Fourth Geneva Convention properly
limits the scope of rule of law activities. More transformative and
sophisticated rule of law activities, such as judicial mentoring, building
a public defender system or helping to improve substantive law and
procedure, should be delayed until security, legal and practical condi-
tions permit. 118

8. You play as you practice. For the military, this means that exercises must
not end with the defeat of the enemy's military forces and intelligence
preparation of the battlefield must include an analysis of the capability of
the systems of government and public administration, as well as the
enemy's order of battle. As much intellectual effort must go into
planning for activities after decisive combat operations as is put into
planning for fires and maneuver. This would include updating military
doctrine and expanding the resources and capabilities for civil
administration, military government and civil affairs in general.

9. There is a random spotlight of accountability for mistakes and
misjudgments — whether real, exaggerated or even fabricated. The "fog
of war" in battle is nothing compared to the fog of politics on Capitol
Hill. This is unfair and capricious, particularly to professional soldiers
who are political agnostics. In the legal arena, there has developed an
unforeseen dark underbelly to operational law, and that is the notion
that the SJA in the field is the "Guarantor General," the one person in the
command who is somehow expected to have total awareness and perfect
knowledge, to be read in to all activities, and to have the duty to identify,
resolve and report all problems. 119 In general, conventional forces will
continue to be held to account for the misconduct of special operations
and non-military forces.

10. There cannot be different legal standards for soldiers and non-military
forces, or even for soldiers operating in different operations or
campaigns. It is too easy for the standards to be blurred and, as was the

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case with interrogation policies between Afghanistan and Iraq, to
migrate (perhaps a better term is to metastasize).

11. Some unified command SJAs should be general or flag officers, and
selected judge advocate general and flag officers assigned to posts in
the United States should be reassigned as legal advisors to commands in
Iraq and Afghanistan. Most unified command SJA offices should be
substantially larger and more capable. Despite some simply wrong
assertions to the contrary, 120 judge advocates are a respected and proper
source for legal and policy advice at all levels, and their presence and role
with the operating forces sends a powerful message about a nation's
commitment to the law of armed conflict. 121

12. National leaders set a tone that can reach the individual soldier in the
field. Whether in the executive or legislative branch, leaders should
consider the impact of their words. It is as reckless for a politician to
suggest that the law of armed conflict is no longer relevant as it is to
suggest that torture and detainee abuse were pervasive in Iraq. Those
responsible for setting national legal policies and tone would do well to
hold themselves to the standard set for all coalition forces personnel in
Iraq in 2003: "Respect for others, humane treatment of persons not
taking part in hostilities, and adherence to the law of war and rules of
engagement is a matter of discipline and values. It is what separates us
from our enemies. I expect all leaders to reinforce this message." 122

Notes

1 . "The great uncertainty of all data in war is a particular difficulty, because all action must, to
a certain extent, be planned in a mere twilight, which in addition not infrequently — like the effect
of a fog or moonshine — gives to things exaggerated dimensions and unnatural appearance."
CARL VON CLAUSEWITZ, ON War (Michael Howard & Peter Paret eds. & trans., Princeton Uni-
versity Press 1989) (1832).

2. The "fog of law" has been identified in other contexts, but application of the term to Iraq,
and its corrosive effect in combat, was also noted by Professor Yoram Dinstein at the US Naval
War College's 2009 International Law Conference, from which this "Blue Book" derives.

3. In November 2003, 154 officers (mostly judge advocates) and 180 paralegal non-
commissioned officers (NCOs) and soldiers of the US Army's Judge Advocate General's Corps
alone served in Iraq. Forty-one of the judge advocates and fifteen of the paralegal NCOs and
soldiers were reservists. Briefing to The Judge Advocate General, US Army, CJTF-7 Legal Opera-
tions (Nov. 5, 2003).

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4. S.C. Res. 1483, U.N. Doc. S/RES/1483 (May 22, 2003), reprinted in 42 INTERNATIONAL
LEGAL MATERIALS 1016; see also YORAM DlNSTEIN, THE INTERNATIONAL LAW OF BELLIGERENT
OCCUPATION 12 (2009).

5. The law of armed conflict, including the Geneva Conventions and Hague Regulations,
was cited in the legal annexes or appendices to the base operations plans and orders (Cobra II,
most prominently), as well as in fragmentary orders that instructed soldiers to comply with the
law of armed conflict. Representative of the orders were

(1) Fragmentary Order 946 (S) to CJTF-7 OPORD 03-036, dated 080425 OCT 03, which
distributed the CJTF-7 Policy Memorandum to All Coalition Forces Personnel, Proper
Treatment of the Iraqi People During Combat Operations (Oct. 5, 2003) [hereinafter Proper
Treatment of the Iraqi People]. The order reemphasized adherence to the law of armed conflict
("the law of war"), directed that all coalition forces personnel would treat persons under their
control with dignity and respect, and required dissemination of the memorandum down to the
platoon level.

(2) Fragmentary Order 70 (S) to CJTF-7 OPORD 04-01, dated 160205 JAN 04, which
reissued the October 5 memorandum and directed that all leaders reinforce its message.

(3) Fragmentary Order 388 (S) to CJTF-7 OPORD 04-01, dated 062325 MAR 04, which
issued the "Rules for Proper Conduct During Combat Operations," reemphasized the
responsibility of all coalition forces personnel to treat all persons with dignity and respect,
reiterated the obligation of all coalition forces personnel to follow the law of armed conflict ("the
law of war"), and directed that commanders and leaders use published training vignettes to train
all personnel on these topics.

6. Letter from CJTF-7 Commander to Mr. Jean-Daniel Tauxe, Head of Delegation, ICRC
Baghdad (Sept. 6, 2003) [hereinafter CJTF-7 Letter].

7. Memorandum from President George W. Bush to the Vice President et al., Humane
Treatment of al Qaeda and Taliban Detainees (Feb. 7, 2002), available at http://www.aclu.org/
files/assets/02072002_biishmemo_l.pdf.

8. Report of Senate Committee on Armed Services, Inquiry into the Treatment of Detain-
ees in U.S. Custody, 1 10th Cong., 2d Sess. (Nov. 20, 2008).

9. The first indication was an August 2003 request from Alpha Company, 519th Military
Intelligence Battalion for a review of interrogation techniques that were similar to those used in
US survival, evasion, resistance and escape training. They were subsequently discovered to have
been used by that unit with higher command approval in Afghanistan. The second indication
was reporting from the ICRC which, unfortunately and for a number of reasons, was not given
sufficient credence or attention.

10. See, e.g., General Tommy Franks, Freedom Message to the Iraqi People (Apr. 16, 2003)
("Coalition Forces in Iraq have come as liberators, not as conquerors ...").

11. US Deputy Secretary of Defense Memorandum, Global Screening Criteria for Detainees
(Feb. 20, 2004) [hereinafter Global Screening Criteria].

12. Co-applicability of human rights law and the law of armed conflict is not an assertion
limited to legal activists. It is a conclusion that has been reached by courts, including the Interna-
tional Court of Justice and the European Court of Human Rights. See DlNSTEIN, supra note 4, at
69-71.

13. "The Soldier's Rules" are restated in Headquarters, Department of the Army, AR 350-1,
Army Training and Leader Development para. G-21 (2009):

( 1 ) Soldiers fight only enemy combatants.

(2) Soldiers do not harm enemies who surrender. They disarm them and turn them
over to their superior.

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

(3) Soldiers do not kill or torture any personnel in their custody.

(4) Soldiers collect and care for the wounded, whether friend or foe.

(5) Soldiers do not attack medical personnel, facilities, or equipment.

(6) Soldiers destroy no more than the mission requires.

(7) Soldiers treat civilians humanely.

(8) Soldiers do not steal. Soldiers respect private property and possessions.

(9) Soldiers should do their best to prevent violations of the law of war.
(10) Soldiers report all violations of the law of war to their superior.

14. The law of armed conflict was an express or implied topic at all V Corps and CJTF-7
commander's conferences in Iraq during OIF, starting with the first one at Camp Victory in
Baghdad in May 2004. All division and separate brigade commanders attended the conferences,
along with the V Corps, then CJTF-7, senior staff. The March 27, 2004 conference, for example,
included a presentation and discussion on "proper conduct during combat operations."

15. The training package was informally coordinated with the ICRC in Baghdad and issued
by Fragmentary Order 388 to CJTF-7 OPORD 04-01, dated 062325 Mar 04. The order redistrib-
uted CJTF-7 Policy Memorandum Number 18, Proper Conduct During Combat Operations
(Mar. 4, 2004), and added mandatory vignette-driven training on specific rules, including

( 1 ) Follow the law of war.

(2) Use discipline in the use of force.

(3) Treat all persons with humanity, dignity and respect.

(4) Use judgment and discretion in detaining civilians.

(5) Respect private property.

(6) Treat journalists with dignity and respect.

16. CFLCC ROE Pocket Card, 252030 Nov 03. The pocket card, required to be carried at all
times by US coalition forces personnel, states the following general rules:

(1) Treat all persons with respect and dignity.

(2) Conduct yourself with dignity and honor.

(3) Comply with the law of war. If you see a violation, report it.

17. Marc L. Warren, Operational Law: A Concept Matures, 152 MILITARY LAW REVIEW 33,
52(1996).

18. The change in April 2004 was to make the Mahdi Army a declared hostile force. How-
ever, new CFLCC pocket cards were not issued, since the unclassified cards referred generically
to "enemy military and paramilitary forces." (On April 29, 2003, USCENTCOM issued Supple-
mental ROE Measures that changed the combat ROE to the Phase IV (Civil-Military Operations)
ROE; the order was rescinded the same day.)

19. CFLCC ROE Pocket Card, supra note 16.

20. Consider, e.g., the case of the Palestine Hotel in Baghdad, where two civilian camera-
men were killed in an explosion caused by a round from the main gun of a US Abrams tank on
April 8, 2003. The unit of which the tank was a part had been engaged in significant urban
fighting, including repulsing an enemy counterattack on the day of the incident, and had re-
ceived reports of enemy forward observers in high-rise buildings on the east side of the Tigris
River. As the tank crossed the Al Jumhuriya Bridge, its crew spotted, and fired one round at, what
appeared to be an enemy forward observer, but was in fact a civilian cameraman. The explosion
killed Spanish cameraman Jose Couso and Reuters cameraman Taras Protsyuk, and wounded

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three other journalists. US forces conducted an investigation and determined that the Palestine
Hotel had been fortified by the enemy and was occupied by the enemy. The cameraman had been
misidentified as an enemy forward observer, which was a reasonable mistake under the circum-
stances. The single round that killed the cameraman was thus fired with a reasonable certainty
that the target was a legitimate military target, satisfying the requirements of the ROE, PID, and
law of armed conflict. Nevertheless, the incident garnered criticism (see, e.g.. Committee to
Protect Journalists, Five years after deadly Palestine Hotel and Al-Jazeera strikes, unanswered ques-
tions linger (Apr. 7, 2008), http://cpj.org/2008/04/five-years-after-deadly-palestine-hotel-and
-aljaze.php) and led to criminal action by Spanish authorities seeking to hold the tank crew crim-
inally accountable for the death of the Spanish cameraman.

21. The Mahdi Army was declared a hostile force on April 6, 2004. DONALD P. WRIGHT &
Timothy R. Reese, On Point II: Transition to the New Campaign, The United States
ARMY IN OPERATION IRAQI FREEDOM MAY 2003-JANUARY 2005, at 324 (2008), available at
http://www.globalsecurity.org/military/library/report/2008/onpoint/index.html [hereinafter ON
POINT II].

22. The US Army's history of OIF deals with the issue deftly and diplomatically: "The multi-
national units that had responsibility for the southern Shia cities — the Spanish, Salvadorans, and
Ukrainians — were few and not prepared to act quickly against the uprising." Id.

23. Id. at 249.

24. Initially a five-day standard, review of detentions by a judge advocate magistrate was ac-
celerated to seventy-two hours in the summer of 2003. Neither standard was required bylaw and
both exceeded the standards imposed by Article 78 of the Fourth Geneva Convention, which re-
quires only that decisions regarding internment shall be made according to a regular procedure
that affords a right of appeal, to be decided with the least possible delay and, if denied, to be sub-
ject to periodic review conducted, if possible, every six months by a competent body. Conven-
tion Relative to the Protection of Civilian Persons in Time of War art. 78, Aug. 12, 1949, 6 U.S.T.
3516, 75 U.N.T.S. 287, reprinted in DOCUMENTS ON THE LAWS OF WAR 301 (Adam Roberts &
Richard Guelff eds., 3d ed. 2000) [hereinafter GC]. US forces should have stressed that the re-
views were neither required by law nor intended to be viewed as a right or as customary. The re-
quirements of Article 78 were satisfied by the process specified in the "Mother of All FRAGOs."
ON POINT II, supra note 21, at 249.

25. ON POINT II, supra note 21, at 248.

26. Parole agreements and guarantor agreements were used with mixed success as a means to
release internees who were thought to present a continuing, but manageable, threat. The former
would be signed by the internee at release; the latter would be signed by a person who was willing
to assume responsibility for the released internee, usually a tribal elder. Significantly, while many
prominent Iraqis would advocate for an internee's release, few would be willing to serve as a
guarantor.

27. Article 5 states, in pertinent part:

Should any doubt arise as to whether persons, having committed a belligerent act and
having fallen into the hands of the enemy, belong to any of the categories enumerated in
Article 4, such persons shall enjoy the protection of the present Convention until such
time as their status has been determined by a competent tribunal.

Convention Relative to the Treatment of Prisoners of War art. 5, Aug. 12, 1949, 6 U.S.T. 33 16, 75
U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 24, at 244 [hereinafter
GPW].

28. The FRAGO was issued on August 25, 2003 and replaced an earlier version issued on
June 28, 2003. ON POINT II, supra note 21, at 248, 249.

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

29. The "imperative reasons of security" standard is not elaborated upon or defined in the
article itself or in the official commentary to the Fourth Geneva Convention. COMMENTARY TO
Geneva Convention IV Relative to the Protection of Civilian Persons in Time of
WAR 367 (Jean S. Pictet ed., 1958) [hereinafter ICRC COMMENTARY]. See also DlNSTEIN, supra
note 4, at 172-76.

30. The "intelligence hold" was not a category of detainee, but a descriptive term often used
to satisfy the Article 78 "imperative reasons of security" requirement. Because of the accelerated
pace of detentions and the shortage of interrogators, the number of detainees on intelligence
hold grew from fewer than one hundred in July 2003 to more than twelve hundred in January
2004. ON POINT II, supra note 21, at 208.

31. Id. at 265.

32. In the summer of 2003, USCENTCOM denied requests for additional judge advocates.
Meanwhile, mobilized reservists and CFLCC legal assets flowed out of Iraq, despite a burgeoning
need for legal support. The CJTF-7 headquarters in general was chronically under-resourced. Id.
at 157-61.

33. The fall 2003 proposal to make judge advocates part of the JIDC Joint Manning Docu-
ment was not addressed until the spring of 2004.

34. ON POINT II, supra note 21, at 176.

35. Major General Donald Ryder, Assessment of Corrections and Detention Operations in
Iraq (Nov. 6, 2003).

36. "A report that merely documents the problem will not be helpful." Memorandum from
CJTF-7 Commander to Commander, USCENTCOM, Detention and Corrections Operations,
Request for Assistance (Aug. 11, 2003).

37. ON POINT II, supra note 21, at 209, 210.

38. The genesis was an incident in which two soldiers of the US Army's 4th Infantry Division
had been captured by insurgents at a checkpoint and then executed, their bodies dumped by the
side of the road. The author flew to the scene with Lieutenant General Sanchez and there con-
cluded that the command had to develop a legal process that could hold the perpetrators crimi-
nally accountable.

39. Memorandum from CJTF-7 SJA through Commander, CJTF-7, to Commander,
USCENTCOM, on Prosecuting Iraqis for Security Offenses Against Coalition (Oct. 21, 2003).

40. CPA Order Number 13 (Revised) (Amended), The Central Criminal Court of Iraq,
CPA/ORD/X2004/13 (Apr. 22, 2004), available at http://www.cpa-iraq.org/regulations/ (then
The Central Criminal Court of Iraq (Revised) (Amended) hyperlink). The revised amended order
contains the following language at section 19(1 ): "Prior to 1 July 2004, the Administrator retains

the authority to refer cases to the CCCI [Central Criminal Court of Iraq] Cases referred by

the Administrator will have priority."

41. Court sessions began in the late fall of 2003, but were hampered by a shortage of re-
sources available to review and process cases. The pace quickened with the arrival of attorneys,
paralegals and investigators of the Joint Services Law Enforcement Team in the spring of 2004.
By July 2004, the CCCI had held thirty-seven trials for fifty-five defendants. ON POINT II, supra
note 21, at 265.

42. JAMES R. SCHLESINGER, FINAL REPORT OF THE INDEPENDENT PANEL TO REVIEW DOD
DETENTION OPERATIONS 82, 83 (2004) [hereinafter Schlesinger Report]. The report confused
the term "unlawful combatant" used by CJTF-7 with the term "enemy combatant" used at
Guantanamo. It is simply wrong when it states that "CJTF-7 concluded it had individuals in cus-
tody who met the criteria for unlawful combatants set out by the President and extended it in

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Marc Warren

Iraq to those who were not protected as combatants under the Geneva Conventions, based on
[Office of Legal Counsel] opinions." Id. at 83.

43. Article 4 of the Third Geneva Convention establishes the criteria for prisoner of war sta-
tus. The portion of Article 4A relevant to operations in Iraq after May 2003 states that prisoners
of war include

(2) [m] embers of other militias and members of other volunteer corps, including those
of organized resistance movements, belonging to a Party to the conflict and operating
in or outside their own territory, even if this territory is occupied, provided that such
militias or volunteer corps, including such organized resistance movements, fulfill the
following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(d) that of conducting their operations in accordance with the laws and customs of
war.

GPW, supra note 27, art. 4A(2).

44. ON POINT II, supra note 21, at 244. Judge advocates led the efforts to improve the Camp
Cropper detention facility at the Baghdad International Airport and wrote orders to get tents,
generators and other equipment for detention facilities throughout Iraq.

45. CJTF-7 Letter, supra note 6. By February 2004, the CPA had fielded an English and
Arabic website, available to the public, that listed names and other key information pertaining to
internees and detainees. ON POINT II, supra note 21, at 204.

46. ON POINT II, supra note 21, at 243.

47. The MEK remains on the list six years later. US Department of State, List of Designated
Foreign Terrorist Organizations, July 7, 2009, http://www.state.gOv/s/ct/rls/other/des/123085
.htm.

48. Abu Ghraib was the only sizeable prison in the Baghdad area that remained largely intact,
the rest having been looted to their bare foundations.

49. Article 143 of the Fourth Geneva Convention provides that representatives or delegates
of the protecting powers "shall have access to all premises occupied by protected persons and
shall be able to interview the latter without witnesses, personally or through an interpreter. Such
visits may not be prohibited except for reasons of imperative military necessity, and then only as
an exceptional and temporary measure." GC, supra note 24, art. 143.

50. The ICRC delegates accepted these conditions and made a return surprise visit in March
2004, when they were allowed to conduct private interviews with all of the detainees, except for
one individual to whom access was erroneously denied. After the ICRC rightfully complained to
the CJTF-7 SJA, the CJTF-7 C-2 directed that the ICRC be given unimpeded private access to the
detainee. Department of the Army, Preliminary Screening Inquiry Report, Investigation of Legal
Operations in CJTF-7, at 8 (Jan. 25, 2005) [hereinafter Preliminary Screening Inquiry Report].

51. Attachment A, paragraph (u) to congressional subpoena proposed by Senators Leahy
and Feinstein, "Memorandum for MP and MI Personnel at Abu Ghraib from Colonel Marc
Warren, the top legal advisor to Lt. General Ricardo Sanchez, New Plan to Restrict Access to Abu
Ghraib (Jan. 2, 2004)." (The subpoena was defeated by the Senate Judiciary Committee on June
17, 2004.) There was no such document. In fact, every effort was being made in January 2004 to
support and enable the ICRC's pending visit to Abu Ghraib after the disastrous visit in Novem-
ber 2003 (at which no judge advocates were present).

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

52. In December 2003, Colonel (retired) Stuart Herrington visited Iraq at the request of the
US Department of Defense and gave a report to CJTF-7 that contained firsthand observations of
abuse of detainees in a special operations detention facility. CJTF-7 sent the report to
USCENTCOM, with the reminder that neither the command nor the facility at issue was under
the command and control of CJTF-7. After some delay, USCENTCOM directed that CJTF-7
investigate the matter. This was done over protest. CJTF-7 had no superior command authority
and its investigating officer was neither "read on" to the activities nor given full access to the fa-
cilities. The predictable (and predicted) result was that the investigation was inconclusive. The
facility merited investigation and oversight. See Eric Schmitt & Carolyn Marshall, Task Force 6-
26: Before and After Abu Ghraib, a U.S. Unit Abused Detainees, NEW YORK TIMES, Mar. 19, 2006,
atAl.

53. These meetings took place in August 2003 and on January 21, 2004.

54. The first paragraph of Article 49 states: "Individual or mass forcible transfers, as well as
deportations of protected persons from occupied territory to the territory of the Occupying Power
or to that of any other country, occupied or not, are prohibited, regardless of motive" (emphasis
added). This appears to be a total prohibition. This conclusion is reinforced in the official com-
mentary to the Fourth Geneva Convention: "The prohibition is absolute and allows of no excep-
tions " ICRC COMMENTARY, supra note 29, at 279. However, persons may leave voluntarily

or may be excluded. Exclusions occur most prominently in the case of infiltrators, such as per-
sons who had entered Iraq unlawfully to take part in a jihad against coalition forces. "Infiltrators
are simply not shielded by the Convention as protected persons." DlNSTEIN, supra note 4, at 167.
Exclusion could also be argued for persons such as the Palestinian terrorist Abu Abbas, who hi-
jacked the cruise ship Achille Lauro and murdered US citizen Leon Klinghoffer in 1985. Abbas
had been given sanctuary by Saddam Hussein and was living in Baghdad when captured by US
forces. Had he not died of a heart attack while in custody in Iraq, he should have been amenable
to removal from Iraq to face trial in the United States. A strong argument can be made that Arti-
cle 49 could not have been intended to insulate criminals from the process of law in the manner
of an extradition, especially where the crime occurred outside of the occupied territory and be-
fore the occupation. For a discussion of deportations and exclusions generally and the Israeli
practice specifically, see id. at 160-68.

55. Global Screening Criteria, supra note 1 1 .

56. Reliance in this circumstance on the broad derogation contained in the first paragraph
of Article 5 appears to be misplaced. The first paragraph reads, "Where in the territory of a Party
to the conflict . . . ." The next paragraph begins, "Where in occupied territory . . . ." The first
paragraph thus refers to the territory of the occupying power, the second to occupied territory.
Accordingly, the broad derogation resulting in the forfeiture of rights does not apply in occu-
pied territory. Rather, only the more limited forfeiture of the "rights of communication under the
present Convention" applies in occupied territory, and then only to "spies and saboteurs" and
persons "under definite suspicion of activity hostile to the security of the Occupying Power."
These categories certainly include insurgents captured in Iraq. Even still, the limited forfeiture
was used sparingly by US coalition forces, and is still subject to the admonitions and require-
ments of the third paragraph of Article 5. GC, supra note 24, art. 5. See also DlNSTEIN, supra note
4, at 63. A more accurate position would have been that the removal was the exclusion of a per-
son not protected by the Fourth Geneva Convention, rather than of a protected person subject
to derogation under Article 5. See supra note 54.

57. GPW, supra note 27, art. 13.

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Marc Warren

58. But see DlNSTEIN, supra note 4, at 167: "Infiltrators are simply not shielded by the Con-
vention as protected persons." Moreover, the foreign fighters were not accorded prisoner of war
status.

59. The derogation is in the second paragraph of Article 5, which states:

Where in occupied territory an individual protected person is detained as a spy or
saboteur, or as a person under definite suspicion of activity hostile to the security of the
Occupying Power, such person shall, in those cases where absolute military security so
requires, be regarded as having forfeited rights of communication under the present
Convention.

GC, supra note 24, art. 5.

60. See, e.g., Schlesinger Report, supra note 42, at 61.

61. Major General George Fay & Lieutenant General Anthony R. Jones, Article 15-6 Investi-
gation of the Abu Ghraib Prison and 205th Military Intelligence Brigade (2004), available at
http://www.npr.org/iraq/2004/prison_abuse_report.pdf.

62. There was a third CJTF-7 memorandum on interrogation and counter-resistance policy
issued on May 13, 2004. That memorandum remains classified as of the date of this writing.

63. Memorandum from Commander, CJTF-7, on Interrogation and Counter-Resistance
Policy to Commander, US Central Command (Sept. 14, 2003), available at http://cup.columbia
.edu/media/3738/jaffer-blog.pdf.

64. Id.

65. See, e.g., Schlesinger Report, supra note 42, at 37; Senate Armed Services Committee Re-
port, supra note 8.

66. Preliminary Screening Inquiry Report, supra note 50, at Tab 43 (Statement of Major
Ricci-Smith).

67. Detainee Treatment Act of 2005, Pub. L. No. 109-148, 1 19 Stat. 2739 (2005). The Act is
no panacea, however, as it continues to sanction "a parallel U.S. standard of detainee treatment
and interrogation." David E. Graham, The Dual U.S. Standard for the Treatment and Interroga-
tion of Detainees: Unlawful and Unworkable, 48 WASHBURN LAW JOURNAL 325, 346 (2009).

68. Headquarters, Department of the Army, FM 2-22.3, Human Intelligence Collector Op-
erations (2006), available at http://www.fcnl.org/pdfs/civ_liberties/Field_Manual_Sept06.pdf.

69. Memorandum from Commander, CJTF-7, on CJTF-7 Interrogation and Counter-
Resistance Policy to CJTF-7, C-2 et al. (Oct. 12, 2003), available at http://wwwl.umn.edu/humanrts/
OathBetrayed/Taguba%20Annex%2028-A.pdf.

70. Headquarters, Department of the Army, FM 34-52, Intelligence Interrogation (1992),
available at http://www.fas.org/irp/doddir/army/fm34-52.pdf. Although the 1992 version of the
manual was in effect in 2003, judge advocates in Iraq used the 1987 version that was furnished to
them by the CJTF-7 C-2 (Military Intelligence) section. Headquarters, Department of the Army,
FM 34-52, Intelligence Interrogation (1987), available at http://www.loc.gov/rr/fird/Military
_Law/pdf/intel_interrogation_may- 1987.pdf. It was that version that was posted at the time on
the official US Army publications website. Some investigators have concluded that the difference
between the two versions was significant because the 1987 manual advised interrogators to "ap-
pear to be the one who controls all aspects of an interrogation, to include the lighting, heating
and configuration of the interrogation room, as well as food, shelter, and clothing" given to de-
tainees. Id. at 3-5. This language was omitted from the 1992 version and its inclusion in the
CJTF-7 interrogation policy "clearly led to confusion on what practices were acceptable."
Schlesinger Report, supra note 42, at 38. The conclusion is highly debatable, however, for at least
two reasons. First, to assume that interrogators would study the text of a referenced manual
presupposes an unlikely level of research and scholarship on their part. Second, since the 1987

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

manual applied to prisoner of war interrogations fully regulated by the Geneva Conventions, ei-
ther the language was legally objectionable when promulgated (which is unlikely) or it refers
only to the perception of the person being interrogated ("the interrogator should appear to be
the one who controls all aspects of the interrogation") and it applies only to the control of aspects
of the interrogation above those required to satisfy the Geneva Conventions.

71. Segregation in excess of 30 days required the approval of the CJTF-7 commander, after
concurrence by the C-2 and legal review by the SJA. Legal Advisor to Chairman, Joint Chiefs of
Staff, Interrogation Techniques Comparison Chart, May 2004.

72. Editorial, A General's Dishonor, WASHINGTON POST, Jan. 15, 2006, at B6.

73 . "Neither the 1 4 September nor the 1 2 October C JTF- 7 interrogation policies violated the
Geneva Conventions." Preliminary Screening Inquiry Report, supra note 50, at 5.

74. The September (and subsequent) policies were staffed in the headquarters and with sub-
ordinate commands. In the staffing process, the term "stress positions" was discussed and was
understood to have a different meaning in Iraq than elsewhere because of the application of the
Geneva Conventions. Specifically, the example cited for the term was ordering a detainee to
stand at attention or to remain sitting during an interrogation. During one staff discussion, a
judge advocate asked a senior interrogator what would happen if a detainee refused the order.
The interrogator answered, "Nothing. We can't touch a detainee." In fact, the September policy
limited a "stress position" to one hour in duration and mandated that any technique must be
"always applied in a humane and lawful manner with sufficient oversight by trained investigators
or interrogators."

75. Military working dogs were authorized to provide security only, and had to be muzzled
and under the positive control of a dog handler at all times. The infamous photographs of dogs
snarling at a kneeling detainee at Abu Ghraib depicted military working dogs being used to quell
a prison riot, not being used in an interrogation session.

76. "The CJTF-7 written interrogation policies did not cause or contribute to the abuse of
detainees at Abu Ghraib. Had the policies been followed, the abuse would not have occurred.
Abuse occurred in spite of the policies." Preliminary Screening Inquiry Report, supra note 50, at 6.

77. Charles J. Dunlap Jr., Lawfare: A Decisive Element of 21st-century Conflicts?, 54 JOINT
FORCE QUARTERLY, 3d Quarter 2009, at 34.

78. See, e.g., Eric Schmitt, Iraq Abuse Trial Is Again Limited to Lower Ranks, NEW YORK
TIMES, Mar. 23, 2006, at Al.

79. See, e.g., GHOSTS OF ABU GHRAIB (Roxie Firecracker Film, HBO Documentary Film,
2007); and PHILIP GOUREVITCH & ERROL MORRIS, STANDARD OPERATING PROCEDURE (2008).

80. Ian Fishback, Editorial, A Matter of Honor, WASHINGTON POST, Sept. 28, 2005, at A21.

8 1 . Although there was much exaggeration about detainee abuse, there were confirmed inci-
dents and one case is too many. Perhaps the most disturbing — and extreme — case was the death
of Iraqi Major General Abed Hamed Mowhoush during interrogation in November 2003, for
which a US Army warrant officer was later convicted of negligent homicide. Josh White, U.S.
Army Officer Convicted in Death of Iraqi Detainee, WASHINGTON POST, Jan. 23, 2006, at A2.

82. Through the first year of OIF, there were ninety-four "confirmed or possible" cases of
prisoner abuse out of more than fifty thousand prisoners; 48 percent had occurred at point of
capture. Inspector General, Department of the Army, Detainee Operations Inspection, at iv (July
21, 2004), available at http://www.gwu.edu/-nsarchiv/torturingdemocracy/documents/20040721
.pdf. In all operations throughout the world, for calendar years 2002 through 2005, a total of 223
US Army soldiers had received adverse action (court-martial, non-judicial punishment, repri-
mand, separation or relief) for misconduct related to prisoner abuse. Department of the Army,
Briefing, Detainee Abuse Disposition by Year Abuse Reported (2006).

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Marc Warren

83. In January 2004, after the Abu Ghraib photographs were turned over to the command,
and before they were publicly known, the author informed ICRC delegates in Baghdad of the ex-
istence of the photographs, that the circumstances would be investigated and those responsible
would be prosecuted, and that the command would tell the media about the abuse and about the
existence of the photographs. (CJTF-7 informed the media in Baghdad about the abuse and the
photographs in January 2004, some three months before the media frenzy ignited by the airing of
the photographs on CBS's 60 Minutes II.)

84. The term "strategic corporal" refers to "the devolution of command responsibility to
lower rank levels in an era of instant communications and pervasive media images." Lynda
Liddy, The Strategic Corporal - Some Requirements in Training and Education, AUSTRALIAN ARMY
JOURNAL, Autumn 2005, at 139, 139, available at http://smallwarsjournal.com/documents/
liddy.pdf. Of course, this responsibility may be exercised in a positive or negative fashion, each
with magnified implications.

85. For a time, the reporting included all reported and suspected cases of detainee abuse,
which meant that any complaint by a detainee was entered into the database, without regard to
any legal or law enforcement threshold. During the period when the author participated in the
weekly briefing to the Secretary of the Army concerning the topic of "detainee abuse," this low
standard meant that cases tracked included complaints by detainees that the air conditioning
had broken on a bus transporting them from Camp Bucca in southern Iraq to Baghdad. More-
over, some special interest groups would often jump to the conclusion that all detainee deaths in
US custody were attributable to abuse or that all cases listed as "homicide" on criminal case re-
ports were murders by US forces. (In fact, a "homicide" could be murder by another detainee or
justifiable self-defense by a US soldier.)

86. After two detainees died in US forces custody at the Bagram, Afghanistan detention facil-
ity in December 2002, an investigation was conducted that found, among other problems, that
the relationship between military intelligence interrogators and military police guards was
blurred, that command and control of detention operations was not adequately defined, and
that interrogation and disciplinary rules were not clear. These were exactly the problems re-
peated a year later in Iraq. Although the report of the investigation was known at USCENTCOM,
it was not passed on to CJTF-7 and apparently no steps were taken to guard against recurrence in
Iraq of the problems it documented.

87. Removal of judges is a prickly area, governed by Article 54 of the Fourth Geneva Con-
vention, which affords special protection to public officials and judges by prohibiting the impo-
sition of sanctions or other coercive measures against judges who "abstain from fulfilling their
functions for reasons of conscience." GC, supra note 24, art. 54. However, Article 54 is tempered
by its second paragraph reserving the right of the occupying power to remove public officials
from their posts and by its explicit reference to Article 51, which accords the occupying power
the right to order adult public servants to return to work. That the term "public officials" in Arti-
cle 54 includes judges is clearly stated in the official commentary to the Fourth Geneva Conven-
tion. ICRC COMMENTARY, supra note 29, at 308.

88. Article 43 of the Hague Regulations states, in pertinent part, that the occupying power
shall take measures to restore and ensure public order and safety, "while respecting, unless abso-
lutely prevented, the laws in force in the country." Regulations Respecting the Laws and Customs
of War on Land, Annexed to Convention No. II with Respect to the Laws and Customs of War on
Land, July 29, 1899, 32 Stat. 1803; and Regulations Respecting the Laws and Customs of War on
Land, annex to Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,
1907, 36 Stat. 2227, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 24, at 69. This
rule is repeated in Article 64 of the Fourth Geneva Convention: "The penal laws of the occupied

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

territory shall remain in force, with the exception that they may be repealed or suspended by the
Occupying Power in cases where they constitute a threat to its security or an obstacle to the applica-
tion of the present Convention." GC, supra note 24, art. 64. In June 2003, the CPA suspended cer-
tain provisions of the 1969 Iraqi Penal Code "that the former regime used ... as a tool of repression
in violation of internationally recognized human rights standards" and suspended capital pun-
ishment. CPA Order Number 7, Penal Code, CPA/ORD/9 June 2003/07 (June 10, 2003), avail-
able ar http://www.cpa-iraq.org/regulations/ (then Penal Code hyperlink).

89. Headquarters, Department of the Army, FM 27-10, The Law of Land Warfare para. 355
(1956) ("Occupation is a question of fact").

90. Checkpoint shootings plagued coalition forces. Judge advocates worked hard to find in-
novative ways to compensate civilians who had been inadvertently injured by US troops. The US
Foreign Claims Act would not allow the payment of claims arising from broadly construed com-
bat activities, such as most checkpoint shootings. Judge advocates convinced USCENTCOM to
reverse its position prohibiting solatia or gratuitous payments, and helped draft the enabling lan-
guage for the newly created Commanders' Emergency Response Program so as to allow pay-
ments for unintended combat damage. Judge advocates also established a meaningful foreign
claims program after advocating that the Army, not the Air Force with its limited resources in
country, should have single-service claims responsibility for Iraq.

91. An occupation proclamation is declaratory only and not legally necessary. DlNSTEIN, supra
note 4, at 48. In CPA Regulation 1 the CPA announced that it "shall exercise powers of government

temporarily The CPA is vested with all executive, legislative, and judicial authority necessary to

achieve its objectives." CPA Regulation 1, The Coalition Provisional Authority, CP A/REG/ 16 May
2003/01 (May 16, 2003), available at http://www.cpa-iraq.org/regulations/ (then The Coalition
Provisional Authority hyperlink).

92. The commanding general of the US Army's 3d Infantry Division reported to the CFLCC
deputy commander that he had too few troops to guard the specified facilities that he had been
ordered to protect from looters. ON POINT II, supra note 21, at 148.

93. In April and May 2003, the author would often travel into central Baghdad to key facili-
ties, particularly courthouses and police stations. There would often be no soldiers there, despite
orders having been issued to secure the buildings.

94. ON POINT II, swpra note 21, at 93.

95. CPA Order Number 1 , De-Ba'athification of Iraqi Society and Government, CPA/ORD/
16 May 2003/01 (May 16, 2003), available at http://www.cpa-iraq.org/regulations/ (then De-
Ba'athification of Iraqi Society and Government hyperlink).

96. When combined with the order dissolving the Iraqi military (CPA Order Number 2, Dis-
solution of Entities, CPA/ORD/23 May 2003/02 (May 23, 2003), available at http://www.cpa-iraq
.org/ regulations/ (then Dissolution of Entities hyperlink)), the CPA's de-Ba'athification policy
left hundreds of thousands of Sunni Arabs unemployed, while decapitating Iraq's governmental,
security and education infrastructure.

97. In the case of the CPA, by S.C. Res. 1546, U.N. Doc. S/RES/1546 (June 8, 2004), reprinted
in 43 INTERNATIONAL LEGAL MATERIALS 1459, which followed S.C. Res. 1483, supra note 4,
which had recognized the United States and United Kingdom as occupying powers in Iraq.

98. The CJTF-7 mission statement read, in pertinent part: "Conduct offensive operations . . .
in direct support of the Coalition Provisional Authority." ON POINT II, supra note 21, at 30.

99. An example of the chafing between CJTF-7 and the CPA was the inability to agree that
USCENTCOM General Order Number 1, which among other things banned alcohol use and

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Marc Warren

possession in Iraq, applied to the CPA. This seems like a small issue, but it is a symptom of the
lack of unity of, and confusion over, the chain of command. The CPA took the consistent posi-
tion that the General Order was not applicable to either its civilian employees or its military per-
sonnel because it was effectively an embassy. Of course, it was not. The CPA was established as an
instrument of the US Department of Defense (DoD), although its chain of command did switch
from DoD to the National Security Council in November 2003. Id. at 181.

100. See K.H. Kaikobad, Problems of Belligerent Occupation: The Scope of Powers Exercised by
the Coalition Provisional Authority in Iraq, April/May 2003-June 2004, 54 INTERNATIONAL AND
Comparative Law Quarterly 253 (2005).

101. ON POINT II, supra note 2 1 , ch. 1 1 .

102. Id. at 39.

103. There was much debate about whether US forces should have shot and killed civilian
looters. Aside from the fact that most US troopers simply would not shoot an unarmed civilian
who was not threatening them, the ROE would not allow it. The CFLCC ROE allowed soldiers
and Marines to use deadly force to accomplish the mission against lawful targets (combatants),
to protect themselves and others, and to protect designated property — but not to shoot a civilian
walking down the street carrying a TV set. CFLCC ROE Pocket Card, supra note 16.

104. DINSTEIN, supra note 4, at 49.

105. CPA Order Number 7, supra note 88.

1 06. For an excellent primer on the CPA's rule of law activities, see Daniel L. Rubini, Justice in
Waiting: Developing Rule of Law in Iraq, THE OFFICER, July-Aug. 2009, at 45.

107. Preliminary Screening Inquiry Report, supra note 50, at Tab 60 (End of Mission Report
of Clint Williamson to the Administrator, CPA).

108. Also contributing was the secure video-teleconference, or SVTC. This technology al-
lowed for personal communication between Iraq and Washington. The unfortunate reality was
that it did not contribute much to common situational awareness or informed decision making;
rather, it led to confusion as it sometimes trumped the military orders process and led to deci-
sions that were not analyzed or thought through, and not coordinated with the military units
that would have to implement them. The SVTC enabled policy from within the Beltway to be in-
stantaneously injected into a theater of war — and that is normally not a good thing.

109. Memorandum to the President from Alberto R. Gonzales, Decision Re Application of
the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban (Jan.
25, 2002), available at http://www.slate.com/features/whatistorture/LegalMemos.html. In fair-
ness to Mr. Gonzales, his references to the Geneva Conventions having been rendered quaint
and obsolete were made in the context of the "new paradigm" of the war against terrorism and
applied only to certain aspects of the Conventions, not to the Conventions as a whole.

1 10. This would also be in furtherance of the admonition to educate the civilian population
on the principles of the Geneva Conventions.

The High Contracting Parties undertake, in time of peace and in time of war, to
disseminate the text of the present Convention as widely as possible in their respective
countries, and, in particular, to include the study thereof in their programmes of
military and, if possible, civil instruction, so that the principles thereof may become
known to all their armed forces and to the entire population.
GPW, supra note 27, art. 127.

111. Protocol Additional to the Geneva Conventions of 1949, and Relating to the Protection
of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3, reprinted in
DOCUMENTS ON THE LAWS OF WAR, supra note 24, at 422 [hereinafter Additional Protocol I].
While the United States is not a party to Protocol I, it regards many of its provisions as customary

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The "Fog of Law": The Law of Armed Conflict in Operation Iraqi Freedom

and binding international law. See Michael J. Matheson, The United States Position on the Rela-
tion of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conven-
tions, 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW & POLICY 419, 425 (1987).

1 12. DINSTEIN, supra note 4, at 81, 82.

113. Lex specialis derogate lex generali ("The Lex Specialis Rule"). Id. at 85.

114. Mat 84.

115. The point was made by Professor Yoram Dinstein — "the three most important duties of
the occupier are security, security and security" — in his closing remarks at the Naval War Col-
lege's June 2009 conference.

116. Rebuilding the rule of law is a task too enthusiastically embraced in the US counterin-
surgency field manual. Field Manual 3-24, Counterinsurgency (2006). A more realistic view of
rule of law activities is found in CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE

Advocate General's Legal Center and School, Rule of Law Handbook, a
Practitioner's Guide for Judge Advocates (2009).

117. See Rosa Ehrenreich Brooks, The New Imperialism: Violence, Norms, and the "Rule of
Law," 101 MICHIGAN LAW REVIEW 2275 (2003).

118. See Dan E. Stigall, Comparative Law and State-Building: The "Organic Minimalist" Ap-
proach to Legal Reconstruction, 29 LOYOLA OF LOS ANGELES INTERNATIONAL & COMPARATIVE
LAW REVIEW 1, 30-31 (2007).

119. The term "Guarantor General" to describe the unrealistic expectations for the SJA was
coined by Major General Mike Marchand when he was the Deputy Judge Advocate General, US
Army, from 2001 to 2005.

120. See John Yoo & Glenn Sulmasy, Challenges to Civilian Control of the Military: A Rational
Choice Approach to the War on Terror, 54 UCLA LAW REVIEW 1815 (2007).

121. Article 82, Legal advisers in armed forces, of Additional Protocol I states:

The High Contracting Parties at all times, and the Parties to the conflict in time of
armed conflict, shall ensure that legal advisers are available, when necessary, to advise
military commanders at the appropriate level on the application of the Conventions
and this Protocol and on the appropriate instruction to be given to the armed forces on
this subject.

Additional Protocol I, supra note 111, art. 82.

122. Proper Treatment of the Iraqi People, supra note 5.

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PARTY

THE OCCUPATION OF IRAQ

The Occupation of Iraq

Clyde J. Tate II

This article addresses legal issues arising during occupation, specifically dur-
ing the author's tenure as Staff Judge Advocate (SJA), III Corps and Multi-
National Corps-Iraq (MNC-I). In doing so, personal thoughts will be recalled
from days gone by on the legal issues which were dealt with at the operational —
and at times tactical — level of war during the US occupation of Iraq, as well as dur-
ing the key transitional period after occupation. It is hoped that these thoughts will
inform future discussions by legal advisors facing similar challenges.

At the June 2009 conference from which this "Blue Book" derives, this presen-
tation was billed as a retrospective. Such presentations can either be a travelogue
with pictures of judge advocates (JAs) posed under the infamous Swords of
Qadisiyah, or Hands of Victory, in Baghdad, or a series of "when I was in Iraq"
vignettes. A retrospective is of most value to a legal practitioner, however, if it
identifies key legal issues, shows how our institutions addressed those issues and
explains what was learned from wrestling with them. Finally, this article tries to
answer the most important question: how did lessons learned from our experi-
ences at MNC-I during Operation Iraqi Freedom II (OIF II) aid commanders in
accomplishing their mission? This author attempts to follow that path, then show
how the work that was done led to significant changes that mitigated for future
operations many of the issues confronted at MNC-I. The hope is that what is said

'Brigadier General, JA, U.S. Army.

The Occupation of Iraq

will inform future discussions and encourage study, critical analysis and scholarly
writings, all as enablers of change for the benefit of operational forces.

Putting the observations in context is important when you consider that the
nature of the conflict and the issues confronted varied with each rotation of forces
and, often, at different locales in theater during a single rotation. This author was
the SJA for III Corps and MNC-I, and deployed to Iraq as part of OIF II, from May
2004 to February 2005. This author was preceded both in garrison and in theater by
Army Colonel Karl Goetzke, who, despite very short notice, expertly trained,
equipped and organized the III Corps Office of the Staff Judge Advocate (OS J A)
while at Fort Hood and then deployed, serving as the SJA in theater from January
2004 to May 2004. Colonel Goetzke augmented both his garrison and theater team
with mobilized US Army Reserve (USAR) judge advocates and paralegals; the
mission could not have been accomplished without them. Remaining at Fort
Hood, and serving as the Fort Hood installation SJA, was a mobilized USAR judge
advocate.

The III Armored Corps is headquartered at Fort Hood, Texas, an expansive in-
stallation fondly referred to as "The Great Place." Ill Corps was activated in 1918
and, like so many corps in our Army's history, activated and deactivated many
times over the years. As a corps, it last saw combat in 1945. It largely served as a
training platform for armor units and was often in jest, but hardly to the liking of
those serving near-entire careers at "The Great Place," referred to as America's
most non-deployable corps. 1

All that changed in September 2003 when the corps was notified of its upcoming
deployment to Iraq in January 2004 — only four months away! Its mission was to
assume the tactical fight so that Combined Joint Task Force 7 (CJTF-7) could focus
its efforts on the strategic fight. 2

The initial role of III Corps in Iraq was to replace its V Corps counterparts across
the CJTF-7 staff in anticipation of the activation of Multi-National Force-Iraq
(MNF-I). The III Corps commander saw his role as a resource provider. He oper-
ated with a decentralized style enabling subordinate commanders to fight their
fights in their areas of operations. 3 The corps had seven major subordinate com-
mands, each with organic legal support:

• Multi-National Division (MND)-South (United Kingdom-led with one

JA),

• MND-Central South (Polish-led with one coalition JA and one USAR JA),

• MND-Baghdad (led by the US Army's 1st Cavalry Division with a fully
staffed OSJA),

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Clyde J. Tate II

• MND-North Central (led by the US Army's 1st Infantry Division with a
fully staffed OSJA),

• I Marine Expeditionary Force (I MEF) in the west (with the I MEF OSJA
team),

• MND-Northeast (Korean-led with a fully staffed legal section) and

• Multi-National Brigade-Northwest (led by a US Army Stryker brigade
augmented to form Task Force Olympia with a thinly staffed but talented SJA
section).

There were numerous geographically dispersed separate brigades in III Corps,
each with its own judge advocate and paralegals. Members of the US Army Trial
Defense Service, Region IX, also were present and fully engaged across the theater
providing defense support. The III Corps OSJA deployed with thirty-five officers
and fifteen enlisted soldiers, and formed the nucleus of the MNC-I OSJA. The of-
fice was complemented with one judge advocate from the Australian Defence
Force, one judge advocate from the UK Directorate of Legal Services, one US Air
Force judge advocate and one US Marine Corps judge advocate.

Within that broad context, several of the key events arising during OIF II will be
highlighted. Each of these events adds to the context in which judge advocates pro-
vided legal support and presented unique issues that impacted our delivery of that
support. Many of these key events overlapped major offensive operations, the lat-
ter of which are not the topic of this article but understandably presented separate
legal issues. These include

• February 1, 2004: Transfer of authority from V Corps to III Corps.

• March 2004-May 2005: III Corps and MNC-I conducted the courts-martial
related to the misconduct at Abu Ghraib, a topic discussed later.

• April 2004-June 2004: This period was described in On Point II as a time
when the "caldron boils over." 4 Before this, there was relative calm after Saddam's
2003 capture. Also during this time, there was a significant transition of the units
that would ultimately comprise OIF II.

• May 15, 2004: The activation of MNC-I and MNF-I. The latter command
had a strategic focus, providing much needed interface with the Iraqi government
ministries, the interim Iraqi government, and the Iraqi Governing Council. MNF-
I was separately staffed with an OSJA. Also standing up at about that time was the
Multi-National Security Transition Command and Joint Task Force 134, both
with their own legal teams.

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The Occupation of Iraq

• June 28, 2004: The interim Iraqi government was established and the
Transitional Administrative Law (TAL) 5 issued. A key task for the lawyers was to
assess for the commanders how the TAL would impact ongoing combat operations.

• January 30, 2005: National elections held.

• February 10, 2005: Transfer of authority of MNC-I from III Corps to
XVIIIth Airborne Corps.

The legal issues faced during this period are addressed by aligning those issues
generally under the Army Judge Advocate General's Corps' core competencies.

Administrative and Civil Law

We quickly learned upon leaving garrison at Fort Hood that the deployment to
Iraq did not mean administrative law issues were left behind. The most consuming
of these tasks were investigations conducted under the provisions of Army Regula-
tion 15-6 6 (generally similar to the Navy's JAGMAN (Manual of the Judge Advo-
cate General) investigations). The high number of these investigations was quite
surprising, but anecdotally every rotation from Operation Iraqi Freedom I through
present operations has had the same realization. The investigation of incidents,
though resource intensive, proved valuable to commanders, brought closure to
soldiers involved in incidents, enhanced the safety of non-combat operations and
demonstrated coalition forces' commitment to the rule of law.

Also in this core competency, we dealt with issues of unit historical property, in-
cluding whether captured weapons could be preserved as part of the unit's history;
war souvenirs; logistical support to the Army Air Force Exchange Service; so-called
"friendly fire" incidents; joint and coalition investigations; Freedom of Informa-
tion Act requests; and what were then known as Reports of Survey for lost or dam-
aged US military property.

Military Justice

As with every rotation before and after, several high-profile military justice matters
arose. Most notably, the author served as the legal advisor to the convening author-
ity for courts-martial related to Abu Ghraib. Those courts-martial taught numer-
ous lessons. Fortunately, this article is not about those courts-martial; these
comments are thus aimed at the macro-level lessons. The Abu Ghraib cases dem-
onstrated that the military justice system is fully exportable from garrison to the
theater of operations as Congress intended it to be, even for complex cases. To that
end, military judges, counsel — including trial counsel, and military and civilian

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Clyde J. Tate II

defense counsel — and witnesses were brought into theater. This was a total JA-
team support effort, beginning with the support we received from the OSJA, US
Army Central in Kuwait. Other more fundamental adjustments were made to ac-
commodate these trials, including equipping the renovated courtroom at Camp
Victory on very short notice with the necessary technology to support expert wit-
ness and detainee depositions and testimonies, as well as cobbling together a con-
solidated team of trial personnel with the necessary workspace and support. Two
cases were held at the Baghdad convention center, with its attendant security,
transportation and logistics challenges. This was a massive logistical undertaking,
but the convening authority allocated sufficient resources to ensure mission
accomplishment.

Exportability is not without its limits, admittedly. Some of the cases were sched-
uled or likely scheduled to be tried at times when units were in major transition, or
while key strategic events (such as upcoming January 2005 elections) were occurring.
This meant that logistical support for the trials would have adversely impacted
strategic operations or potential panel members were otherwise operationally
engaged in those key events. Consequently, some cases were returned to the United
States for trial and occurred both while the III Corps OSJA-Main was still deployed
and after its return to Fort Hood. The consolidated trial team and the pending
cases returned to Fort Hood to continue their work. The Abu Ghraib cases also
taught the importance of dedicated trial resources for complex — and for Abu
Ghraib, strategically significant — cases. It is naive to think that such litigation does
not need to be viewed and resourced differently; far too much time was spent ex-
plaining in Army legal technical channels the need for additional personnel to sup-
port these trials.

The OSJA also dealt with, as has every rotation since, Washington's insatiable
thirst for information on high-profile incidents. That desire for information will
not diminish, so SJA offices have to consider how best to organize to satisfy that
thirst without adversely impacting other, equally pressing matters.

Contract and Fiscal Law Issues

Contract and fiscal law was the subject area the OSJA was least equipped to address.
There were simply insufficient numbers of experienced personnel to address the
volume, magnitude and complexity of issues. This capability gap was not lost on
those who followed on future rotations; they were much better trained and
resourced to deal with the issues. One solution that has paid great dividends has
been the Contract and Fiscal Law Reachback Group, nested within the Contract and
Fiscal Law Division of the US Army Legal Services Agency and augmented, as an

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additional duty, by uniformed and civilian subject matter experts. "Reachback"
means the ability to reach back to Washington, DC and consult with experts on dif-
ficult contract and fiscal law issues. This has ensured that both timely and correct
advice was received.

Providing advice on the uses of Commanders' Emergency Response Program
(CERP) funds proved challenging, 7 especially at a time of transition from seized
CERP (with fewer restrictions on its expenditure) to appropriated CERP and its
authorized uses. This transition prompted many efforts to educate commanders
on how to adapt to the new, though more restrictive, uses of CERP.

Numerous issues arose involving contractors, contracted security and personal
security details (PSDs) on the battlefield. One issue with which commanders at all
levels struggled mightily was accountability for those persons, including these im-
portant questions: Who were these contractors? For whom did they work? Who was
training them on rules of engagement (ROE) and rules for the use offeree? A related
question was what legal authority the civilians in these PSDs had to possess weapons:
who, if anyone, had authorized them to have and carry firearms? Despite procedures
to require weapons permits, it was never easy to determine if those procedures were
followed. The procedures were an issue for MNF-I and higher command levels, but
contractors failing to follow procedures and training on the rules became a challenge
for commanders.

An issue dealt with daily was the proper role and use of contractors. We drew a
firm and consistent line on questions regarding the use of contractors to provide
forward operating base security, ensuring that commanders and contracting offi-
cers were "sensitive to the international law issues surrounding hiring a contractor
to perform certain missions during military operations." 8

A frequent challenge was the issue of weapons buyback and awards programs.
There was a single awards program under the auspices of US Central Command
(CENTCOM) but not every turned-in weapon qualified. This was sometimes a
friction point with commanders who were unhappy when a particular weapon did
not qualify for the CENTCOM awards program, since they perceived the effective-
ness of such programs in pulling all weapons off the street. Without commenting
here on the merit of weapons buyback programs, the OSJA legal opinion in these
situations was consistent with the CENTCOM program.

Finally, any uncertainty about the authority to pay solatia payments was clari-
fied in November 2004 when the Department of Defense's Deputy General Coun-
sel issued a "no-objection" opinion to work done by CJTF-7 lawyers that had
concluded that solatia payments could be made. 9 The authority to make such pay-
ments was widely welcomed by commanders who looked to offset injury and prop-
erty damage caused to the local population.

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Clyde J. Tate II

Operational Law

Only a few of the many operational law issues confronted will be addressed. The
ROE were virtually unchanged since the start of combat operations, yet there were
numerous orders and messages related to the ROE that required even the most dili-
gent of judge advocates and operators to look long and hard to ensure they had the
latest guidance. The orders, numbering around thirty, addressed enemy tactics,
techniques and procedures (also known as TTPs); indirect fires; troops in contact;
and close air support. These orders were confusing, potentially contradictory when
read in light of the ROE, and, in any event, simply not user friendly. Consequently,
the 1st Cavalry Division OSJA led an effort to develop a consolidated ROE to en-
sure clarity, ease of use and relevance by bringing together key stakeholders to
scrub the ROE and orders.

After June 28, 2004, the operational law team was fully engaged in drafting guid-
ance for commanders to issue on how the TAL would impact ongoing operations.
A balance was struck between conducting combat operations and demonstrating
respect for the TAL, a balance which started to tip the scales in the direction of the
situation as it currentiy exists under the US-Iraq security agreement. 10

Key to training the ROE, and how the ROE applied to changing enemy TTPs,
was the creation of ROE training vignettes. As TTPs changed, so did our vignettes,
which were crafted to be immediately useful at the squad level, with or without the
presence of a lawyer or paralegal to aid in the training.

Coalition ROE presented other challenges to the operational law team. Those is-
sues and limitations were addressed primarily by understanding coalition partner
ROE and respecting coalition ROE that could impact the roles in which those
forces could be employed in operations.

At the conclusion of the occupation, coalition forces had to address how best
to handle reports of abuse of detainees by Iraqi security forces (ISF). A "hands-
off" approach was clearly unacceptable but the US role had to recognize the
authority of the ISF in dealing with matters under their purview — and the larger is-
sue of Iraqi sovereignty as a matter of international law. The command took a
"stop-report-investigate" posture with regard to allegations of detainee abuse:
stop the abuse, report it up the chain of command and investigate abuse allegations
(if appropriate). That posture served commanders and soldiers well.

Operational law attorneys were engaged in these and all other issues across the
full spectrum of legal support to operations, to include advice on interrogations,
information operations, "friendly fire" incidents, foreign fighters, detainee opera-
tions, rule of law missions, application of the interim Iraqi government emer-
gency measures to complement operations, synchronizing the legal assets of a

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The Occupation of Iraq

multinational coalition and ISF ROE, all topics worthy of their own conference
and separate discussion.

Conclusion

As alluded to at the outset of this survey of issues, the real value comes in assessing
what was learned and what was done, across all our institutions, in response. This
author is proud of how our institutions, aided by academic debate held in confer-
ences and ensuing scholarly publications, responded to the challenges faced.

Since OIF II, Congress broadened the application of the Military Extraterritorial
Jurisdiction Act, and the Department of Defense (DoD) issued policy and proce-
dures related to its implementation. 11 Congress also amended Article 2 of the Uni-
form Code of Military Justice, broadening jurisdiction over DoD contractors and
DoD civilians accompanying the force. 12 Greater guidance was issued regarding
the roles of contractors on the battlefield, support to contractors and the posses-
sion of weapons by contractors. 13

New organizations were established to support commanders, including the
Joint Contracting Command-Iraq and Afghanistan, which is fully staffed by con-
tracting, fiscal law and acquisition experts.

As discussed earlier, solatia provisions were clarified. 14

As a result, at least in part, of the Army's experiences at Abu Ghraib, the Army
rewrote its Interrogation Field Manual, which is now the standard for DoD. 15

Training also has improved to better equip legal professionals. The Army imple-
mented the Pre-deployment Preparation Program; the Brigade Judge Advocate
Mission Primer, a three-day course held at the Pentagon; the Contract and Fiscal
Law Reachback Group, which has proved invaluable; and a much larger contract-
ing personnel "bench" as a result of the Gansler Commission. 16

These changes are the result of our institutions adapting to the evolving require-
ments of the force and have, it is hoped, equipped current and future deployers
with additional tools to address the challenges that will come their way. These
changes also illustrate the value of conferences like the Naval War College's June
2009 conference — with their ensuing debate and scholarly publications — in en-
abling substantial and meaningful change.

Notes

1. The use of this moniker reached its zenith during the first Gulf War (1990-91), when
both V Corps and VII Corps deployed to Saudi Arabia from Germany and XVIII Airborne Corps
deployed to Saudi Arabia from the United States, while III Corps remained in Texas.

216

Clyde J. Tate II

2. Donald P. Wright & Timothy R. Reese, On Point II: Transition to the New
Campaign, The United States Army in Operation IRAQI FREEDOM May 2003-January
2005, at 173 (2008), available at http://www.globalsecurity.org/military/library/report/2008/
onpoint/index.html.

3. See id. at 174.

4. Id. at 38.

5. Law of Administration for the State of Iraq for the Transitional Period (2004) (describ-
ing the nature of the interim government and timetable for elections), available at http://
www.cpa-iraq.org/government/TAL.html.

6. Headquarters, Department of the Army, AR 15-6, Procedures for Investigating Officers
and Boards of Officers (2006), available at http://www.army.mil/USAPA/epubs/pdf/rl5_6.pdf.

7. For a discussion of CERP, see Mark S. Martins, The Commander's Emergency Response
Program, JOINT FORCE QUARTERLY, Apr. 2005, at 46.

8. See generally 2 CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE

General's Legal Center and School, Lessons Learned from Afghanistan and Iraq,
Full Spectrum Operations (l May 2003-30 June 2004) 106 (2005) [hereinafter Lessons
Learned].

9. See Memorandum from Charles A. Allen, Deputy General Counsel (International Af-
fairs), Office of the General Counsel, Department of Defense, to the Staff Judge Advocate, US
Central Command, Subject: Solatia (Nov. 26, 2004).

10. Agreement Between the United States of America and the Republic of Iraq on the With-
drawal of United States Forces from Iraq and the Organization of Their Activities during Their
Temporary Presence in Iraq, U.S.-Iraq, Nov. 17, 2008, available at http://www.mnf-iraq.com/
images/CGs_Messages/security_agreement.pdf.

1 1 . The Military Extraterritorial Jurisdiction Act (MEJA) is codified at 18 U.S.C. §§ 326 1-67
(2005). MEJA was amended in 2004 "to include employees, contractors (and subcontractors at
any tier) and contractor employees [outside the United States] of any Federal agency or provi-
sional authority whose employment relates to supporting the DoD mission." Ronald W. Reagan
National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, § 1088, 1 18 Stat.
1811 (2004). This change was implemented by Department of Defense, Instruction 5525.11,
Criminal Jurisdiction Over Civilians Employed By or Accompanying the Armed Forces Outside
the United States, Certain Service Members, and Former Service Members (2005), available at
http://www.dtic.mil/whs/directives/corres/pdf/5525 1 lp.pdf.

12. Article 2(a)(10), Uniform Code of Military Justice, was amended in 2006 to extend
court-martial jurisdiction "[i]n time of declared war or a contingency operation, [to] persons
serving with or accompanying an armed force in the field." John Warner National Defense Au-
thorization Act for Fiscal Year 2007, Pub. L. No. 109-364, § 552, 120 Stat. 2083, 22 1 7 (2006). This
change was implemented by Memorandum from Secretary of Defense to Secretaries of the Mili-
tary Departments et al., Subject: UCMJ Jurisdiction Over DoD Civilian Employees, DoD Con-
tractor Personnel, and Other Persons Serving With or Accompanying the Armed Forces
Overseas During Declared War or Contingency Operations (Mar. 10, 2008), available athttp://
www.dtic.mil/whs/directives/corres/pdf/sec080310ucmj.pdf.

13. LESSONS LEARNED, supra note 8, at 109. See also Department of Defense, Instruction
3020.41, Contractor Personnel Authorized to Accompany the U.S. Armed Forces (2005), available
at http://www.dtic.mil/whs/directives/corres/pdf/302041p.pdf; Memorandum from Deputy
Secretary of Defense to Secretaries of the Military Departments et al., Subject: Management of DoD

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The Occupation of Iraq

Contractors and Contractor Personnel Accompanying U.S. Armed Forces in Contingency Opera-
tions Outside the United States (Sept. 25, 2007), available at http://www.acq.osd.mil/dpap/pacc/
cc/docs/DepSecDef%20Memo%20Mgt%20of%20Contractors %2025Sep07.pdf; Department of
Defense, Instruction 3020.50, Private Security Contractors (PSCs) Operating in Contingency
Operations (2009), available at http://www.dtic.mil/whs/directives/corres/pdf/302050p.pdf.

14. See supra text accompanying note 9.

15. Headquarters, Department of the Army, FM 2-22.3, Human Intelligence Collector Op-
erations (Sept. 2006), available at http://www.fcnl.org/pdfs/civ_liberties/Field_Manual_Sept06
.pdf.

16. Commission on Army Acquisition and Program Management in Expeditionary Opera-
tions, Urgent Reform Required: Army Expeditionary Contracting (Oct. 31, 2007), available at
http://www.army.mil/docs/Gansler_Commission_Report_Final_07 103 1 .pdf.

218

XII

Occupation in Iraq: Issues on the Periphery

and for the Future:
A Rubik's Cube Problem?

George K. Walker*

Prior articles address occupation issues in 2003-9 coalition operations in Iraq
from an international law perspective and legal and practical issues con-
fronting coalition forces and their lawyers.

This article comments on legal issues at the periphery of the occupation, and
problems that may arise in future occupations, whether governed by the UN Char-
ter, special agreement or the law of armed conflict (LOAC). These include Charter-
based law,;ws cogens norms and other law (e.g., human rights law), international
governmental organization (IGO) standards, the law of treaties and private law
(e.g., admiralty law, torts, contracts) that may apply during occupations. These
problems in single- State occupations, and even more so in multi- State occupa-
tions, can be vexing and complicated, like the solving of a Rubik's Cube puzzle. 1

Geneva and Hague Law

The Fourth Convention, 2 one of the 1949 Geneva Conventions, 3 bears upon the
LOAC governing occupations. Nearly all States are parties to them, 4 some with

* Professor of Law, Wake Forest University School of Law.

Occupation in Iraq: A Rubik's Cube Problem?

reservations or declarations. 5 Commentators and States say that some or all of the
Fourth Convention recites customary law. 6 This has been so for 1907 Hague Con-
vention IV 7 since the Nuremberg Judgment, 8 although one commentator says
Hague IV has lost its normative value in the wake of post-World War II occupa-
tions. 9 However, unlike the other 1949 Conventions, the Fourth Convention de-
clares that its rules supplement Hague IV and 1899 Hague Convention II for States
not Hague IV parties 10 for hostilities (Section II) and military authority over hostile
State territory (Section III). 11

The first paragraph of Hague IV's Regulations, Article 23(h), part of Section II
of that Convention, provides: "In addition to the prohibitions provided by special
Conventions, it is especially forbidden ... [t]o declare abolished, suspended, or in-
admissible in a court of law the rights and actions of the nationals of the hostile
party" during hostilities. 12 Thus even during armed conflict enemy nationals have
rights guaranteed in court proceedings. The Regulations also protect courthouses
and similar facilities that are public buildings. 13 Hague IV, Regulations, Article 43,
in a commonly used English translation, is also pertinent to the analysis:

Hague II, Regulations, Article 43, in an English translation, is similar:

The authority of the legitimate power having actually passed into the hands of the
occupant, the latter shall take all steps in his power to re-establish and insure, as far as
possible, public order and safety, while respecting, unless absolutely prevented, the
laws in force in the country. 15

There is an apparent mistranslation from the authentic French text 16 of Tordre et
la vie publics" in Hague IV, Regulations, Article 43, which should translate as
"public order and life," implying "also the entire social and commercial life of the
community," 17 "public law and civil life," 18 or "the entire social and economic life
of the occupied region." 19 Since Hague II, Regulations, Article 43 uses the same
phrase, "public order and safety," in an English version, comments on Hague IV
should also apply to Hague II. 20

The meaning of "laws in force" is also critical. 21 Can this phrase limit an occupier
State to preserving the status quo, or has recent practice given it a more dynamic
meaning? 22

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George K. Walker

There are other differences. Hague IV's translation "in fact," compared with
"actually" in Hague II, seems a minor distinction; "restore" in Hague IV seems to
mean the same as "re-establish" in Hague II. 23 Whatever the correct translations,
Article 43, seen by Benvenisti "as a sort of miniconstitution for the occupation ad-
ministration," is important. Brussels Declaration Articles 2 and 3 were the origins
of Article 43, but since 1874, and certainly since 1899 and 1907, central govern-
ment's societal role has changed. 24

Whether both treaties have the same language and practice under them is more
than an academic issue. For example, among the States not party to Hague IV,
fourteen are NATO Treaty 25 members and twelve are Rio Pact 26 members. 27 Those
numbers are reduced to ten NATO members and three Rio Pact members who are
not party to Hague II. 28 The result is that some of the members of the two alliances
are, like the United States, party to both Hague II and Hague IV, others are party to
one or the other, and still others are party to neither. All of the NATO States were or
might be involved in collective self-defense responses in Afghanistan 29 and all
members of both treaties could have participated in Iraqi coalition operations.

A message for future occupations is that participating States must consult their
indexes of treaties in force, 30 particularly in multilateral operations, but even if one
State is bound by Hague IV and the other by Hague II to compare differences in
language, interpretation and application in practice. To be sure, Hague IV's Regu-
lations are customary law, 31 and Hague II's and Hague IV's language is the same for
this analysis, 32 but textual differences between the treaties or interpretation of
them invite issues between occupier and occupied States or among occupier States,
or if more than one State has been occupied. 33 This underscores customary law's
importance but suggests diplomacy to persuade States to ratify Hague IV and elim-
inate the issue. 34 Moreover, if a State would emphasize treaty-based rules over
custom-based norms, there is the possibility of a conflict on this score.

The narrow questions for this article are the meaning of "laws in force" 35 in an
occupied State and how the exemption "unless absolutely prevented" fits into in-
ternational law in the Charter era. May an occupier apply a "progressive develop-
ment" principle, 36 including introducing, e.g., international human rights
standards 37 not previously in force in an occupied State, or must it maintain exist-
ing law as an occupier found it? If an occupier State can introduce new measures, 38
how far can it go? After the 2003 invasion the Coalition Provisional Authority pro-
mulgated measures designed to reform domestic governance in Iraq. 39 Were these
permitted under Article 43? When is an occupier "absolutely prevented" from ap-
plying an occupied State's law or using the exception clause to introduce new mea-
sures? 40 If human rights law would apply, whose perception of it counts, the
occupier or occupied State's? 41 Dinstein proposes a "litmus test": if an occupier

221

Occupation in Iraq: A Rubik's Cube Problem?

State wishes to enact new legislation for the occupied State, "the decisive factor
should be the existence of a parallel statute back home[,]" citing an example of re-
quiring car seat belts where none had been required before occupation. 42 It is a use-
ful test, but is it always appropriate? Take, e.g., another hypothetical from traffic
laws. In the United States, an occupier State in Iraq, cars must be driven on the
right side of a road. In the United Kingdom, the other major occupier, the opposite
is true. In a desert country, does it make sense to require either if the previous rule
had been no rule? Which rule should be an "improvement" if one must go into
force? Should neighboring States' laws be taken into account?

Other commentators seem to take a different view, advocating abrogating occu-
pied State laws incompatible with human rights law and promulgating progressive
standards reflecting established human rights law norms and the like. 43 One mili-
tary manual declares certain "human rights": "Respect for human rights — Family
honour and rights, the lives of persons, and private property, as well as religious
convictions and practices, must be respected." 44 For countries with similar military
manual provisions labeling Hague-girded guarantees like this as human rights, an
issue is whether the guarantee may be fleshed out through applying the current law
of human rights. A more far-reaching issue is whether other human rights norms
that do not fit under the Hague rubric may or must also be enforced. 45

Commentators have raised the issue of self-determination, however it is de-
fined. 46 Is it an occupier State's business to promote self-determination or the op-
posite during an occupation? Iraq is an amalgam of three former Ottoman Empire
provinces: one that governed Kurds, a distinct ethnic group; another, with a Shiite
Muslim population; and the third, a Sunni Muslim population. What positions
should the occupiers have taken if claims for separate States for these three groups
had arisen? By contrast, the UN governance of Kosovo before its independence
concerned Kosovar self-determination. The UN interregnum had (and independ-
ent Kosovo today has) a Serb minority problem within Kosovo. Should Kosovo be
a paradigm for future occupations? Is it an occupier's duty today, particularly in
lengthy occupations, to promote self-determination?

An issue related to applying human rights law is the place of Martens clause
principles, "usages . . . among civilized peoples, . . . the laws of humanity and the
dictates of the public conscience." 47 What are these principles, which under the
Fourth Convention and Protocol I, for States party to it, 48 may be further excep-
tions to applying an occupied State's laws? Are the clauses a statement of a general
principle of international humanitarian law? 49 Are they a gate for applying human
rights law, or is this another lex specialis situation demanding different norms, per-
haps the same as human rights principles, but maybe different standards?

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George K. Walker

Might there be differing views of these issues between an occupier and an occu-
pied State, which during an occupation would have little voice in the matter, but
which might revert to earlier law after an occupier departs? Presumably the coali-
tion reached consensus before initiating changes, but might there be issues within a
coalition on what changes are appropriate? 50 If States leave or join a coalition dur-
ing an occupation, how should consensus be maintained or achieved? If several
States are under control of one or more occupier States, or if an occupied State is
divided into administrative zones among occupier States, should the changes be
the same throughout the occupied States, e.g., like Germany and Austria after
World War II? 51 How would countries that are not occupier States view these mat-
ters, particularly if the occupier(s) proceed(s) as the coalition did during 2003-4
with wholesale changes, 52 but without benefit of UN law or similar support as was
then 53 the case? There is also an issue of post-occupation law. If an occupier can
impose beneficial changes, might an occupied State revert to its old ways after oc-
cupation ends by legislative changes, judicial construction or applying civil law
principles on denial of precedent for prior cases 54 with resulting confusion (or
worse) for the population? These are questions that should be asked and resolved
in occupation situations.

The United Nations Charter

Before the 1949 Conventions went into force, States had begun ratifying the UN
Charter. Its Article 103 declares that it trumps all treaties. Mandatory actions under
the Charter have priority over treaty-based rules. Articles 25, 48 and 94 are sources 55
for Charter lawmaking; if the UN Security Council issues a "decision," it binds
UN members. 56

Article 51, preserving States' "inherent right" to exercise individual and collec-
tive self-defense until the Council acts on a situation threatening international
peace and security, is another important rule. 57 An occupier must defend an occu-
pied State from aggression as a Charter-based obligation under Articles 2(4) and 5 1
to preserve that State's territorial integrity and projected political independence in
the future. A correlative to this is to assure, under a reasonableness standard, that
an occupier does not compromise an occupied State's future by actions that leave it
defenseless with insufficient security forces to protect it once it is no longer occu-
pied. An occupied State's future territorial integrity and political independence
must be assured. Occupiers should also be sure that municipal law changes do not
have the same effect — e.g., transforming a formerly financially self-sufficient coun-
try into a weak State that cannot meet economic obligations, a circumstance that

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Occupation in Iraq: A Rubik's Cube Problem?

might reduce its armed forces to a level where self-defense would be impossible
through inability to fund sufficient defense forces from taxes and other sources.

Other issues related to self-defense include applicable standards if personal or
small-unit self-defense situations arise. An easy case is a response by occupier State
units or individuals in circumstances like State v. State confrontations; interna-
tional standards apply. 58 An example might be an occupier State soldier(s) con-
fronted with State-sponsored border raiders from other countries invading an
occupied State. Other relatively easy cases would be trying occupier State service
members under its national military law, 59 trying an occupier State's citizen for of-
fenses against occupier State security law 60 or trying an occupier State citizen tried
in that State's courts; 61 in the first and third cases the accused's national law would
apply if that State's legislation so provides. 62 Problems of perceptions of procedural
justice might arise if the two States' self-defense standards are different, however. 63
More troublesome issues might come in "mixed" situations, e.g., a mob attack on
occupier State forces where some mob members are occupied State citizens, some
of whom participate in the mob action and others are human shields — i.e., unwill-
ing mob members — and still others are, e.g., terrorists perhaps subject to interna-
tional standards because they are outside-State-sponsored or operatives of
organizations like al Qaeda. 64 If occupied State citizens are tried in occupied State
courts, their national standards would seem to apply; 65 terrorists, if State-spon-
sored, would be subject to international law standards. 66 If the terrorists are, e.g., al
Qaeda members, occupier State national standards like the US Military Commis-
sions Act of 2006 67 might apply. The problem of perceptions (equal justice for a de-
fense to the same alleged offense) here might be the greatest, particularly if one
group mounts a successful self-defense claim and another does not. Yet another is-
sue could arise if the confronted forces are members of different States' military
services. 68 If a State or States operate(s) under UN auspices, issues of Charter-based
rules may arise. 69 Finally, there is an issue of compliance with international human
rights law standards, even for cases involving occupier nationals such as members
of the occupier's armed forces, if human rights standards are more protective of
personal rights. 70 What has been said about self-defense is, of course, a paradigm
for other issues of law to be applied during occupations.

Other actions under Charter law may also articulate standards for occupation
situations, i.e., "calls" for action by Council resolutions or General Assembly res-
olutions. 71 Whether these result in binding rules has been debated, most saying
that the resolutions themselves do not bind members. 72 However, if many States
accept a resolution as practice required by law, it can evolve into a customary
norm, e.g., the Uniting for Peace Resolution. 73 To the extent that these resolutions'
content recites general principles of law, 74 e.g., of humanity in Martens clauses, 75

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George K. Walker

they may strengthen these norms, particularly if a resolution cites a Geneva con-
vention. How custom with genesis in ipso facto non-binding UN resolutions must
be considered alongside mandatory Charter law is an open question. 76 The same
is so for customary rules with a parallel, binding Charter rule, e.g., a customary
right of self-defense alongside Article 51, 77 although in the latter case the logic is
that such a customary rule can develop and might be different from the Article
51-supported norm.

After the 2003 invasion the Security Council approved Resolutions 1483 78 and
1546, 79 decisions 80 binding members. Resolution 1483, inter alia, declared that the
US-led coalition (i.e., United Kingdom, United States) was the occupying power;
Resolution 1546 welcomed the end of the occupation by June 30, 2004; then the
LOAC applying to occupation ended, and governance of Iraq under the Interim
Government began. 81 In the future, in other invasion and occupation situations,
might there be non-binding resolutions, particularly as occupiers prepare to leave
an occupied country? Since these non-binding resolutions can generate custom or
restate general principles of law, do they as a sort of "super custom" thereby trump
Fourth Convention treaty terms? If it is different from the letter of or practice under
Hague Regulations, Article 43, does Charter-based law trump the practice? Proba-
bly so, but answers to these questions are far from clear.

Law of Other International Organizations

Another issue that can arise in the future is the impact of binding or non-binding
agreements, resolutions or regulations of other IGOs, notably UN specialized
agencies, and these documents' relationship with the LOAC governing occupa-
tions. The place of the work of IGOs is a related issue.

For example, the World Health Organization (WHO) Health Assembly, analo-
gous to the UN General Assembly in that it has voting members from all States par-
ties, has authority to adopt conventions or agreements within WHO's competence
by a two-thirds vote. These conventions or agreements come into force for a mem-
ber when accepted by the member in accordance with its constitutional processes.
The Assembly can also adopt regulations for, e.g., sanitary and quarantine require-
ments and other procedures designed to prevent the international spread of dis-
ease. These regulations are in force for WHO members after the Assembly gives
due notice, 82 except those notifying the WHO Director-General of their rejection
of or reservation to the regulation within the time stated in the notice. 83

If these WHO conventions, agreements or regulations are in force for an occu-
pier State but not for an occupied country, or the other way around, how should
they be applied in occupation situations under Article 43? Put more broadly, if an

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Occupation in Iraq: A Rubik's Cube Problem?

occupier is a member of other IGOs, but an occupied State is not, or the other way
around, what law governs under Article 43? Health issues are likely to arise during
armed conflict and an ensuing occupation. Other IGOs may have similar proce-
dures for declaring binding rules. A further issue is whether these IGO regulations
bind States not party to them, i.e., that they represent customary norms or perhaps
general principles, 84 or by law of treaties principles binding third States. 85 And if
not, should an occupier State introduce them as progressive development 86 under
Article 43, so that an occupied State will be more forward-leaning in its interna-
tional obligations and rights and national law when occupation ends? Or are these
soft law 87 until an occupied State or an occupier chooses to accept the norms?

There is, of course, a possibility that otherwise-binding IGO-sponsored con-
ventions, agreements or regulations may vary from UN law, e.g., self-defense un-
der Charter Article 5 1 or the parallel customary right of self-defense, 88 or other
binding UN law, e.g., Security Council decisions, 89 during an occupation. Here
IGO rules must give way. 90

A related issue is applying rules or principles from IGOs, i.e., soft law, 91 particu-
larly if an occupied State and an occupier would differ on their application during
occupation. To the extent that an IGO publishes rules purporting to restate custom
or general principles acceptable under both States' laws, they should continue in
force during occupation. 92 If they are not consistent, these standards may enter as
secondary sources, i.e., research of scholars, in a source matrix. 93 If Charter law is-
sues are at stake and these rules differ from IGO standards, analysis similar to that
for IGO-based standards should apply. 94

The Spectral Issue of Jus Cogens

Jus cogens, i.e., fundamental norms trumping treaty and customary law norms,
and perhaps contrary general principles, has been a spectral source of law since
World War II. Authorities differ on jus cogens' scope, ranging from a view thatjws
cogens does not exist to a Soviet author's position that the whole UN Charter re-
states jus cogens. 95 Be that divergence as it may, the International Court of Justice
(ICJ) has twice said that Charter Article 2(4), which declares States entitled to their
territorial and political integrity, "approaches" jus cogens status; 96 some argue that
the right of self-defense also has jws cogens status. 97 The Vienna Convention on the
Law of Treaties (Vienna Convention) declares rules for jus cogens in the law of
treaties. 98 Perhaps not an issue related generally to occupation law today, jus
cogens could create problems in the future, especially if an occupied State or other
countries would claim a jus cogens violation and an occupier would not, or vice

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George K. Walker

versa, or if a claimant argues that jus cogens supports its action when another
claimant asserts a right under a treaty, customary law or general principles.

Law of Treaties Issues

Other law of treaties issues besides the law of jus cogens may apply in occupation
situations.

Treaty succession principles have again become important as new States have
emerged, sometimes after centuries (e.g., Belarus and Ukraine with the USSR's
1991 collapse) from the sovereignty of other countries. In other cases, new States
have declared independence, e.g., some States emerging from the USSR's collapse.
States have divided (e.g., Czechoslovakia) or merged (e.g., Germany). 99 Sometimes
States' declarations recite what treaties of a former sovereign apply and, perhaps by
inference, those that do not. 100 This can be relevant for occupation situations, e.g.,
involving applying Hague II or Hague IV or Protocol I. 101

Vienna Convention Article 60(5) excludes application of its Convention material
breach provisions to treaties providing for LOAC standards. Commentators argue
over applying Article 60(5) to human rights treaties; most say it does not apply. 102
However, during occupations treaty breach issues for agreements other than those
concerned with the LOAC may arise; 103 these could range from human rights trea-
ties to those governing trade and the like. Recent ICJ decisions would say, however,
that human rights law applies during armed conflict, 104 thus blunting the effect of
Article 60(5) if construed to limit its application to LOAC treaties. There are ad-
vantages and disadvantages for applying the LOAC, customary or treaty-based, or
human rights law. 105

Impossibility of performance and fundamental change of circumstances are
narrow exceptions for treaty non-performance. 106 This is particularly so in view of
Vienna Convention Article 26's recitation of pacta sunt servanda, which restates a
fundamental rule of the law of treaties. 107 Nevertheless, these claims may arise in
contexts of compliance with treaties governing occupations, as well as other agree-
ments binding occupier and/or occupied States. Are the exceptions in Hague II and
Hague IV Regulations, Article 43, "unless absolutely prevented," or Hague IV,
Regulations, Article 23(h)'s "especially forbidden" non-compliance statement, lex
specialis rules to be used in place of general standards for impossibility and funda-
mental change of circumstances? Do rules on successive treaties apply? 108 Or are
Vienna Convention standards the same as Geneva and Hague law? A common-
sense answer is that they should be the same, or that lex specialis principles for
applying Geneva/Hague law should govern, but the issue remains.

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Occupation in Iraq: A Rubik's Cube Problem?

A similar issue is the relationship between rules for impossibility and funda-
mental change under the law of treaties and human rights treaties' derogation
clauses. 109 War, or armed conflict, is the prototype of a public emergency threat-
ening the life of a State, but that State may choose not to assert the derogation. 110
(There are certain non-derogable rights. 111 ) Are these derogation clauses lex
specialise prevailing over general law of treaties rules for impossibility and funda-
mental change of circumstances? Like the LOAC exception clauses, it would seem
that the answer should be yes. But do rules on successive treaties on the same sub-
ject apply, such that later in time standards govern? 112 Human rights treaties have
a history contemporaneous with the Vienna Convention; sometimes one pre-
cedes the other to bind a particular country, and sometimes States may not have
ratified the Convention. Some human rights treaties lack derogation clauses; 113
the customary law of treaties — i.e., States' rights to suspend or terminate treaties
during armed conflict — applies to them unless these agreements apply during
peace and war. 114 Or does it? For custom-based human rights law (e.g., if no
treaty is in force), the analysis is problematic. By analogy to other customary
norms now stated in treaties, e.g., the law of the sea, 115 the LOAC as a custom and
treaty-based lex specialis should apply if human rights law and the LOAC squarely
conflict. 116

Suppose, during an occupation, armed conflict (e.g., invasion of an occupied
State by a third State) between an occupied State and another country, or between
an occupier State and a third State, erupts. 117 Do rules for suspending or ending
treaties under customary law 118 or treaty provision 119 enter an occupier's decision
matrix? Geneva and Hague law and the LOAC in general apply to States in armed
conflict, 120 but the fate of other treaties (e.g., trade agreements or human rights
treaties lacking derogation clauses) may be suspension or termination. In armed
conflict situations, does the conflict provide another ground for suspending those
human rights treaties with derogation clauses? 121 Other bases for suspending or
terminating treaty obligations during conflict might be impossibility of perfor-
mance or fundamental change of circumstances. 122 The answers to these questions
are not clear, but an argument for suspending or terminating agreements without
derogation clauses is that negotiators could have inserted them and for whatever
reason chose not to include them, in view of similar agreements that have them or
have clauses applying their terms in peace and war. 123 A rebuttal is that these agree-
ments at least in part represent jus cogens and thus some rights under them are non-
suspendable. 124

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George K. Walker

Other Derogations from Applicable International Law

There are other derogations from applicable international law, sometimes treaty-
based and sometimes grounded in custom, sometimes in both: state of necessity;
reprisals; retorsions; reservations or understandings, interpretive statements and
declarations under the law of treaties; treaty desuetude or obsolescence; and the
persistent objector principle.

The International Law Commission's Draft Articles on State Responsibility,
adopted in General Assembly Resolution 56/83 (2002), 125 restates the state of ne-
cessity doctrine in Article 25:

1. Necessity may not be invoked by a State as a ground for precluding the
wrongfulness of an act not in conformity with an international obligation of that
State unless the act:

(a) is the only way for the State to safeguard an essential interest against a grave
and imminent peril; and

(b) does not seriously impair an essential interest of the State or States towards
which the obligation exists, or of the international community as a whole.

2. In any case, necessity may not be invoked by a State as a ground for precluding
wrongfulness if:

(a) the international obligation in question excludes the possibility of invoking
necessity; or

(b) the State has contributed to the situation of necessity.

Article 25 commentary emphasizes the principle's narrow scope; it attempts to
restate the rules of reprisal and declares that anticipatory self-defense is another ex-
ample of justifiable rule-breaking under extraordinary circumstances. 126 Might
necessity, under the extraordinary circumstances of the doctrine, justify breach of
occupation law — customary or treaty-based — if an emergency ("grave and immi-
nent peril") arises? Is "grave and imminent peril" the same as the Hague Article 43
"unless absolutely prevented" exception? 127 The same construction should apply to
it as the language in Draft Article 25. 128 But what about the relationship between
derogation clauses 129 and the necessity doctrine?

Reprisal rules say that prior notice of a breach of international law must be given
an accused lawbreaker State with opportunity for it to bring its conduct into line
with the law. If there is non-compliance, an aggrieved State may take measures,
proportional to the circumstances but not necessarily in kind (e.g., economic mea-
sures to force human rights compliance), to bring a lawbreaker into line with the

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Occupation in Iraq: A Rubik's Cube Problem?

law. 130 Although reprisal situations could occur between a third State and an occu-
pier or an occupied State, issues could arise between an occupier and the occupied
State. Besides a problem of whose view of the law counts, there is a question of
whether an occupier can act in its behalf or on behalf of an occupied State. The re-
sponse to both questions is yes. Occupation law limits reprisals in some respects,
e.g., forbidding reprisals against protected persons and their property. 131 A further
question is whether reprisals not prohibited by the Fourth Convention can be
imposed in light of human rights law.

Retorsions, an aggrieved State's unfriendly but proportional lawful acts to com-
pel law compliance, may be invoked under general law 132 and the Fourth Conven-
tion. 133 What is proportional among States involved (occupier, occupied or third
States) may arise, however.

Treaty reservations rules 134 must be consulted; States have reserved to the
Geneva Conventions, for example. 135 Some treaties forbid reservations, e.g., the
1982 United Nations Convention on the Law of the Sea, 136 and there is a current
debate on whether reservations to human rights treaties may be interposed, al-
though they do not have no- reservations clauses. 137 Future legal battles over agree-
ments forbidding reservations, or considered by their nature to bar them, may be
over interpretive statements. 138

Occupier and occupied States may have different views on desuetude or obsoles-
cence, i.e., that a treaty is no longer in force because of longstanding non-observance
of its terms. 139

A correlative to treaty reservations rules is the persistent objector principle for
customary law. Reports of its demise are premature; some, perhaps all, countries
are active persistent objectors. 140 This principle may affect occupation law if an occu-
pier State has views on custom different from those of an occupied State, or if oc-
cupier States have different views on custom.

Different International Law Standards for the Same General Body of Law,
e.g., the Law of Armed Conflict among Occupier States

Prior analysis mostly considered LOAC occupation law issues in the context of a
single occupier State, following the Fourth Convention format of addressing issues
in the singular. If more than one State is an occupier for a country, 141 analysis can
be more complex. If occupiers are part of a coalition or an alliance, 142 or a combina-
tion of alliance and coalition partners, 143 there is a further complexity. The reverse
situation — if a State occupies more than one State, or a group of States (coalition or
alliance) occupies more than one State after a conflict — presents more complica-
tions. Peoples within occupied territory may travel, perhaps subject to checkpoints,

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George K. Walker

from one occupation zone to another. Even if they do not, local law, 144 public 145
and private, 146 of a subdivision (province or state as in the United States and other
federal republics) of an occupied State may differ significantly.

Although the 1949 Geneva Conventions apply to nearly all States, and most of
their principles are considered customary law, the same may or may not be true for
the 1977 Protocols I and II 147 to them. The United States and other countries are
not parties to one or both 148 and do not recognize all Protocol I and II provisions as
customary law. 149 Protocol I supplements the Fourth Convention 150 and some-
times supersedes it. 151 The same issues may arise if Fourth Convention States inter-
pret the Convention or custom differently.

Lack of universality is also true for other treaties, e.g., the Torture Convention, 152
although its rules prohibiting torture are considered at least customary law, if not
jus cogens. 153

If Charter law is involved, a problem may be interpreting or applying Article 51;
some States involved in an occupation (typically occupier States) may adhere to a
restrictive view of the valid scope of self-defense (i.e., reactive self-defense) and oth-
ers may say anticipatory self-defense is lawful under the Charter and general inter-
national law. There may be differing views of what is lawful under either view, or
what is valid when unit or individual self-defense is involved. 154 If the occupier (s)
or occupied State(s) operate(s) under Security Council decisions or other UN and
other IGO resolutions, 155 the same kind of definition and scope issues can arise.

Possible Solutions for These Problems

Today military forces operate under peacetime and war rules of engagement
(ROE). 156 They have acted under ROE in the Iraq and Afghanistan occupations. 157
UN and other coalition and alliance operations have joint ROE and have used
them in occupations. 158 ROE are used in law enforcement situations, 159 a major as-
pect of occupation law. ROE are not law but are options given commanders in con-
flict, potential conflict situations or similar circumstances like law enforcement,
with a paramount right of self-defense. ROE are a confluence of diplomacy, policy
and law. 160 ROE analysis suggests an analogous method to be considered for resolv-
ing questions raised for multiple levels of law, multiple sources of law within the
same level of law and multi-State occupations. 161

This author has suggested a factorial analysis, based on the Restatement of the
Law, Third, Foreign Relations Law of the United States 162 (Restatement (Third)) and
Restatement (Second) of Conflict of Laws 163 (Restatement (Second)) for these kinds
of situations. 164 This analysis is based on choice of law or conflict of laws (private in-
ternational law, as non-US commentators entitle it) 165 theories, although options

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Occupation in Iraq: A Rubik's Cube Problem?

are within a public international law context. 166 This is the kind of problem —
choice of law and conflict of laws — albeit more complicated, in occupation law to-
day, what with a hierarchy of sources atop traditional sources 167 and a possibility
of many State actors, whether acting under the LOAC, UN law or general interna-
tional law.

The author's Restatement-based analysis has not escaped criticism, 168 any more
than the Restatements' use in US courts has met with universal approval and ac-
ceptance. 169 It is not useful for all occupation choice of law issues, notably ad hoc
or fast-moving situations like self-defense 170 or operationally immediate decisions
after occupation criteria have been satisfied. 171 Like planning for major military oper-
ations, it is time-intensive and can be cumbersome to use. But might a Restatement-
style analysis be considered for "law planning" at an operational planning stage,
perhaps with "law" options emerging, i.e., those for action below mandatory rules,
e.g., self-defense, Security Council decisions where standards may be spelled out
and the like? 172

Even if it does not apply for public law issues, factorial analysis for conflict of
laws questions may be an issue if courts consider private law issues, 173 e.g., maritime
law claims arising from shipping to and from Iraqi docks on the Shatt al-Arab, 174
or medical supply contract issues involving WHO regulations for Afghanistan or
Iraq if States concerned had adopted different WHO agreements or regulations. 175
Private law issues will arise in occupied State courts, 176 which may have conflict of
laws questions before them. 177 If an occupier State can modify existing occupied
State law on public law and private law 178 issues, can it or should it modify occu-
pied State conflicts principles, perhaps through legislation, as has been the recent
method for other countries, including those with common-law traditions? 179

How the Restatement Analysis Works (Very Briefly)

After a decade of analysis in the American Law Institute, 180 Restatement (Second)
appeared in 1971 and was partly revised in 1988. The Restatement (Third) appeared
in 1987 after a similar process. The first step is to inquire whether there is a conflict
of laws problem, i.e., is the law the same in both jurisdictions? If so, there is no con-
flict and the common standard applies. 181 This might be the circumstance where,
e.g., human rights law and LOAC/occupation law standards are the same. If that is
so, there is no need to analyze further; apply the common standard.

Each issue must be scrutinized (i.e., depecage) for possible conflicts, however. 182
The Restatement (Second) recites a major exclusion; if a jurisdiction has a statute
governing conflict of laws, it must be used. If there is no legislation on point, a
multifactor general analysis is interfaced with factors specific to an area of law, e.g.,

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George K. Walker

torts or contracts, or perhaps particular forms of torts or contracts. 183 There is little
consideration of the international, or transnational, aspects of situations. Never-
theless, the Restatement (Second)' s explicit recognition of a higher rule, under con-
struction principles in US law, is analogous to the command of the UN Charter on
treaty law or a jus cogens mandate that may apply to an international situation. 184

The Restatement (Third) does not list Charter law among its sources for public
international law, but its comments note Charter supremacy in Chapter 1. Possi-
ble use of jus cogens is also mentioned. 185 The Restatement recites non-exclusive
factors for applying particular law in Chapter 4, similar to the Restatement (Second)
methodology. 186

Besides US courts, 187 other institutions and countries have adopted similar fac-
torial analyses for transnational conflict of laws. The European Union recognizes
these principles, as do other States, among them US allies. 188 The US National En-
vironmental Policy Act imposes factorial analysis for environmental impact state-
ments. 189 The US Navy and other armed forces have used multifactor operational
planning analysis. 190 What this author advocates is multifactor operational law
planning analysis.

Is factorial analysis always necessary or useful? The answer is no; it will not work
in rapid-response situations, like self-defense, although it might be used to plan for
self-defense. It is not necessary in situations if competing laws are the same — the
first requirement; if there is no conflict among competing laws, it is not necessary to
go through the analysis. 191 Factorial analysis will not work for some law issues, e.g.,
treaty reservations or persistent objector situations; 192 the reservation or objection
applies or it does not. It might help, e.g., with necessity, reprisal or retorsion situa-
tions 193 to promote thought on whether invoking necessity is appropriate, or the
utility, kind and severity of action under necessity, reprisal or retorsion situations.

As experience through planning and execution proceeds, rules derived from re-
peated, similar situations that began with factorial analysis may be appropriate. 194
Applying this kind of analysis can lead to problems with a need to clarify the law
with new rules, 195 but for military planning, might it be useful to think through
conflicts problems before issuing black-letter recommendations for the command
and an occupied State's citizens and institutions?

Conclusion: Analyzing Occupation Issues Thoroughly through
"Operational Law Planning"

The relatively recent addition of operational law-trained attorneys to battle staffs
and other commands has helped keep military operations within international
and national law. As others have written, "lawfare" 196 is very much a part of those

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Occupation in Iraq: A Rubik's Cube Problem?

operations, particularly given the communications and media revolutions involv-
ing the Internet, television including 24-hour battlespace newscasting, radio
broadcasting, e-mail, texting, facsimile, etc. 197 If John Paul Jones were alive today,
he would say that international law is part of a commander's "tolerable Educa-
tion." 198 But he might add: Consult your lawyer in planning or acting if it is feasi-
ble to do so under the circumstances. Put more prosaically, look before you leap.
Perceptions of law compliance are part of today's battle problem.

A further problem, particularly for operations involving multilateral forces that
may be involved in occupations of or involvement with more than one country, is a
need to perceive conflict of laws issues that may arise. These maybe "vertical" con-
flicts, e.g., between the LOAC and Charter-based law, 199 or "horizontal" law issues,
e.g., among States involved in an occupation or, more subtly, a conflict between the
law of the occupied State(s) as it stood when occupation began and the progress —
or lack of it — of the law as occupiers and others believe it ought to be, or, at another
level, the everyday rules of private orderings (torts, contracts, etc.). 200 For these
issues, developing a factorial decision matrix, perhaps a general checklist for the
"shelf long before need arises or a campaign-specific one for particular military
operations, perhaps based on conflict of laws (private international law) concepts 201
will help. If military staffs 202 plan for and solve complex occupation problems,
whether in one-on-one situations or those with a number of States on either or
both sides, operational law attorneys serving commanders can solve the complex,
multilateral, multilayer legal problems involved. Using conflict of laws analysis
may point toward clearer thinking about concrete solutions if multiple sets or layers
of laws are or can be involved. 203 The proposed analytical method will not produce
a black-letter "answer" or rule, but it should point toward more comprehensive,
well-thought-out rules.

Like Rubik's Cube, the law puzzle for occupations is capable of solution, per-
haps through factorial analysis in other than urgent situations (e.g., self-defense),
for sometimes multilayer, multidimensional choice of law issues under Hague IV,
Regulations, Article 43. 204

Notes

1. Rubik's Cube is a three-dimensional puzzle Erno Rubik invented; a cube's six faces are
covered by six colors (white, red, blue, orange, green, yellow) with nine smaller squares on the
cube's sides. The challenge is to manipulate the cube pivot mechanism until all nine squares are
the same color on each of the cube's six faces.

2. Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949,
6 U.S.T. 3516, 75 U.N.T.S. 287, reprinted in THE LAWS OF ARMED CONFLICTS 575 (Dietrich
Schindler & Jiri Toman eds., 4th ed. 2004) [hereinafter Fourth Convention].

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George K. Walker

3. The others are Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field, Aug. 12, 1949,6U.S.T.3114,75U.N.T.S.31 [hereinafter First
Convention]; Convention for the Amelioration of the Condition of Wounded, Sick and Ship-
wrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [herein-
after Second Convention]; Convention Relative to the Treatment of Prisoners of War, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Third Convention]; all reprinted in THE LAWS
OF ARMED CONFLICTS, supra note 2, at 459, 485, 507, respectively.

4. International Committee of the Red Cross, State Parties to the Following International
Humanitarian Law and Other Related Treaties as of 14-Oct-2009, http://www.icrc.org/IHL.nsf/
(SPF)/party_main_treaties/$File/IHL_and_other_related_Treaties.pdf [hereinafter State Parties],
lists 194 parties to the 1949 Conventions.

5. See id., supra note 4; for a printed source, see THE LAWS OF ARMED CONFLICTS, supra
note 2, at 635-88.

6. YUTAKA ARAI-TAKAHASHI, THE LAW OF OCCUPATION 59-64 (2009) (progression of
Fourth Convention, supra note 2, from aspirational standards to mostly customary law); YORAM
Dinstein, The International Law of Belligerent Occupation 6-7 (2009) (possibility
that some States may not see the 1949 Geneva Conventions as customary law or may not apply
them as municipal law). International custom is general State practice accepted as law. Statute of
the International Court of Justice art. 38(l)(b), June 26, 1945, 59 Stat. 1031, T.S. No. 993 [here-
inafter ICJ Statute]; IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 6-12 (7th ed.
2009); DINSTEIN, supra at 4; OPPENHEIM'S INTERNATIONAL LAW §§ 9-10 (Robert Jennings &
Arthur Watts eds., 9th ed. 1992); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF
THE UNITED STATES §§ 102, 103(2)(d) & cmt. c (1987) [hereinafter RESTATEMENT].

7. Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,
1907, 36 Stat. 2227, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 2, at 55 [hereinafter
Hague IV].

8. Judgment, 1 Trial of the Major War Criminals Before the International Military Tribu-
nal, Nuremberg, 14 November 1945-1 October 1946, at 253-54 (1947). The International Mili-
tary Tribunal for the Far East, Judgment, 15 1.L.R. 356, 346-66 (1948) [hereinafter Tokyo trials]
made the same holding. Two months after the Nuremberg trials ended, Affirmation of the Prin-
ciples of International Law Recognized by the Charter of the Nuremberg Tribunal, G.A. Res. 95,
1 U.N. GAOR, 1st Sess., U.N. Doc. A/64/Add.l, at 188 (Dec. 11, 1946) [hereinafter Resolution
95], unanimously reaffirmed Nuremberg and Tokyo trials principles. Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 256 (July 8) [hereinafter Nuclear
Weapons]; Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005
I.C.J. 19, 70 (Dec. 19) [hereinafter 2005 Congo Case]; Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 172 (July 9)
[hereinafter Wall Case] adopted Nuremberg principles; see also ARAI-TAKAHASHI, supra note 6,
at 55, 57; DINSTEIN, supra note 6, at 5; ANNOTATED SUPPLEMENT TO THE COMMANDER'S

Handbook on the Law of Naval Operations u 5.4.2 (A.R. Thomas & James C. Duncan eds.,
1999) (Vol. 73, US Naval War College International Law Studies) [hereinafter NWP 1-14M
ANNOTATED] (Hague general principles reflect customary law); UK MINISTRY OF DEFENCE, THE
MANUAL OF THE LAW OF ARMED CONFLICT 1f 1.25 (2005) [hereinafter UK MANUAL]; Christo-
pher Greenwood, Historical Development and Legal Basis, in THE HANDBOOK OF
HUMANITARIAN LAW IN ARMED CONFLICTS 1, 24 (Dieter Fleck ed., 1999) (Hague IV Regula-
tions remain of "utmost importance"). These cases and the resolution, although secondary
sources and not binding themselves, restate customary law. See ICJ Statute, supra note 6, arts.
38(1 )(d), 59; BROWNLIE, supra note 6, at 15, 19-22; OPPENHEIM'S INTERNATIONAL LAW, supra

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Occupation in Iraq: A Rubik's Cube Problem?

note 6, §§ 13, 16; RESTATEMENT, supra note 6, §§ 102, 103(2) (d) 8c cmt. c. Although the list of
Hague IV parties is small compared with UN membership today, see THE LAWS OF ARMED
CONFLICTS, supra note 2, at 85, and the treaty has an inter se clause, Hague IV, supra note 7, art. 2,
treaty succession rules may apply Hague IV to other States. See generally Committee on Aspects
of the Law of State Succession, Final Report, in International Law Association, Report of the
Seventy-Third Conference Held in Rio de Janeiro, Brazil, August 17-21, 2008, at 250, 360-62
(2008) [hereinafter Final Report] (UN succession conventions' general acceptance; recent prac-
tice); OPPENHEIM'S INTERNATIONAL Law, supra note 6, § 62, at 211-13; Symposium, State Suc-
cession in the Former Soviet Union and in Eastern Europe, 33 VIRGINIA JOURNAL OF
INTERNATIONAL LAW 253 (1993); George K. Walker, Integration and Disintegration in Europe:
Reordering the Treaty Map of the Continent, 6 THE TRANSNATIONAL LAWYER 1 (1993).

9. Eyal Benvenisti, The International Law of Occupation 96-98, 190 (2d prtg.
2004). This claim must be evaluated in the light of Fourth Convention drafters' and negotiators'
decisions to insert language in Article 154 that supplements Hague Convention (II) with Respect to
Laws & Customs of War on Land, July 29, 1899, 32 Stat. 1803, reprinted in THE LAWS OF ARMED
CONFLICTS, supra note 2, at 55 [hereinafter Hague II], and Hague IV, supra note 7, unlike lan-
guage in analogous First, Second and Third Convention provisions. Another interpretation is
that the Fourth Convention affirms Hague law. See infra notes 10-11 and accompanying text.

10. Hague II, supra note 9. Many States parties to Hague II are also Hague IV parties; eigh-
teen are not. THE LAWS OF ARMED CONFLICTS, supra note 2, at 55. Compare Convention of 1907,
id. at 85, with Convention of 1899: Signatures, Ratifications and Accessions, id. at 83. For States par-
ties to both, Hague IV, Aricles 2 and 4 declare that it is substituted for Hague II, if all belligerents
are parties. Treaty succession rules may bind many countries achieving independence since
1899. See Final Report, supra note 8; Symposium, supra note 8; Walker, supra note 8. Since the
1899 and 1907 Conventions recite the same terms at issue in this analysis in nearly identical lan-
guage, Hague IV's status as custom, see supra notes 7-9 and accompanying text, applies to Hague
II parties except persistent objectors. See infra note 140 and accompanying text. Hague II was not
the first statement of occupation law. U.S. department of War, Instructions for the Government
of Armies of the United States in the Field, General Orders No. 100 arts. 1-47, Apr. 24, 1863, re-
printed in THE LAWS OF ARMED CONFLICTS, supra note 2, at 3, 4-9 [hereinafter Lieber Code];
Project of an International Declaration Concerning the Laws and Customs of War arts. 1-11, 36-
42, Aug. 24, 1874, reprinted in id. at 21, 23-24, 27 [hereinafter Brussels Declaration]; INSTITUTE
OF INTERNATIONAL LAW, THE LAWS OF WAR ON LAND arts. 41-60 (1880), reprinted in id. at 29,
35-37 [hereinafter OXFORD MANUAL], were its precursors. DlNSTEIN, supra note 6, at 8-9.

11. The others say they supersede or are "complementary to" parts of prior treaties. Compare
Fourth Convention, supra note 2, art. 154 with First Convention, supra note 3, art. 59 (replacing
Convention for Amelioration of the Condition of Wounded in Armies in the Field, Aug. 22,
1864, 22 Stat. 940, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 2, at 365; Conven-
tion for Amelioration of the Condition of Wounded and Sick in Armies in the Field, July 6, 1906,
35 Stat. 1885; Convention Relative to the Treatment of Prisoners of War, July 27, 1929, 47 Stat.
2021, reprinted in id. at 421 [hereinafter 1929 PW Convention] ); Second Convention, supra note
3, art. 58, replacing Hague Convention No. X for the Adaptation to Maritime Warfare of the
Principles of the Geneva Convention [of 1906], Oct. 18, 1907, 36 Stat. 2371, reprinted in id. at
397; Third Convention, supra note 3, arts. 134-35 (replacing 1929 PW Convention, supra, com-
plementary to Hague II, supra note 9, Regulations; Hague IV, supra note 7, Regulations for id. ch.
II [spies]); see also ARAI-TAKAHASHI, supra note 6, at 1 15-16; DlNSTEIN, supra note 6, at 6-7; 1
Jean S. Pictet, I Convention Commentary 407-8 (1952); 2 Jean S. Pictet, II Convention

236

George K. Walker

Commentary 277-78 (i960); 3 Jean S. Pictet, III Convention Commentary 636-40

(I960); 4 JEAN S. PICTET, IV CONVENTION COMMENTARY (1958).

12. Hague IV, supra note 7, Regulations, art. 23(h), for which there is no comparable Hague
II, supra note 9, provision. The id., Regulations, art. 44 prohibition appears in the first paragraph
of Hague IV, supra note 7, Regulations, art. 23(h) and is not relevant to this analysis. See United
States, Department of the Army, FM 27-10: The Law of Land Warfare If 372 (July 1956, Change
No. 1, 1975) [hereinafter FM 27-10]; DlNSTEIN, supra note 6, at 53, 195-96; see also infra notes
40, 108, 176 and accompanying text.

13. In today's world, presumably protection would extend to offices, e.g., of prosecutors,
public defenders and poverty assistance attorneys in courthouses or similar buildings, as well as
data centers, clerks' offices, etc. Hague II, supra note 9, Regulations, art. 56; Hague IV, supra note
7, Regulations, arts. 55, 56; see also Brussels Declaration, supra note 10, art. 7; FM 27-10, supra
note 12, f 400; OXFORD MANUAL, supra note 10, 1f C(a) & art. 52; ARAI-TAKAHASHI, supra note 6,
at 196-98, 206; DlNSTEIN, supra note 6, at 213, 220. Hague II, supra note 9, Regulations, art. 55,
does not refer to municipal property, unless its "communes" exception would apply, the French
version of "municipalities," in Hague IV, supra note 7, Regulations, art. 55, which would treat
such assets as private property; see also Brussels Declaration, supra, art. 8, referring to municipal
assets as private property. See also DlNSTEIN, supra note 6, at 220 n.1188. On the other hand,
OXFORD MANUAL, supra note 10, art. 53, declares that municipal property cannot be seized.
Lieber Code, supra note 10, art. 31, declared that title to occupied State-owned real property re-
mained in that State; revenues from such property would go to the occupier; id. said nothing
about public buildings, e.g., courthouses. Id. art. 39 would continue judges' salaries, to be paid
from occupied state funds. Privately owned law offices and other law-related facilities or prop-
erty, e.g., a privately operated poverty law center, are covered under Hague II, supra note 9, Reg-
ulations, arts. 52, 56; Hague IV, supra note 7, Regulations, arts. 52, 56 and maybe requisitioned,
but owners must be compensated; see also FM 27-10, supra note 1 2, \ 406; OXFORD MANUAL, su-
pra, arts. 54, 56, 60; Lieber Code, supra, arts. 37-38; DlNSTEIN, supra at 224-32. Some property of
neutral-country nationals (ships, other means of transport) may be subject to angary, although
Hague II, supra note 9, Regulations, art. 53; Hague IV, supra note 7, Regulations, art. 53 protect
most property of neutrals' nationals, e.g., lawyers' property caught in an occupation situation.
DlNSTEIN, supra note 6, at 236-37. If a courthouse is, or is in, a historic building or a structure of
cultural significance like some US courthouses, it would be protected during occupation as cul-
tural property. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conflicts art. 53, June 8, 1977, 1125
U.N.T.S. 3, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 2, at 71 1 [hereinafter Pro-
tocol I]; Convention for Protection of Cultural Property in the Event of Armed Conflict arts.
1(a), 4-5, May 14, 1954, 249 U.N.T.S. 240, reprinted in id. at 999 [hereinafter Cultural Property
Convention]; Treaty on Protection of Artistic & Scientific Institutions & Historic Monuments,
art. 1, Apr. 15, 1935, 49 Stat. 3267, 67 L.N.T.S. 290, reprinted in id. at 991; Hague IV, supra note 7,
Regulations, arts. 27, 56; Hague II, supra note 9, Regulations, art. 56; OXFORD MANUAL, supra,
art. 53; Brussels Declaration, supra, art. 8; FM 27-10, supra note 12, ffif 45-46, 57, 405; UK
MANUAL, supra note 8, K 1 1.87.1; Lieber Code, supra, art. 34; see generally ARAI-TAKAHASHI, su-
pra note 6, ch. 10; Hans-Peter Gasser, Protection of the Civilian Population, in THE HANDBOOK
OF HUMANITARIAN LAW IN ARMED CONFLICTS, supra note 8, at 209, 262-63; JIRI TOMAN, THE
PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT (1996); Karl Josef
Partsch, Protection of Cultural Property, in THE HANDBOOK OF HUMANITARIAN LAW IN ARMED
CONFLICTS, supra note 8, at 377-97.

14. Hague IV, supra note 7, Regulations, art. 43.

237

Occupation in Iraq: A Rubik's Cube Problem?

15. Hague II, supra note 9, Regulations, art. 43. Earlier international authorities were similar
in tone; promulgating new laws was forbidden unless "necessary." OXFORD MANUAL, supra note
10, art. 44; Brussels Declaration, supra note 10, art. 3. Lieber Code, supra note 10, art. 32, allowed
occupiers to "suspend, change, or abolish, as far as the martial power extends . . ." an occupied
State's laws, without the "necessity" limitation.

16. Authentic Text, in THE LAWS OF ARMED CONFLICTS, supra note 2, at 56 [hereinafter Au-
thentic Text]. The final paragraph of Hague IV, supra note 7 ("Done in The Hague . . . "), says a
single copy of the authentic text is filed with the Netherlands government.

17. DINSTEIN, supra note 6, at 89.

18. BENVENISTI, supra note 9, at 7; see also ARAI-TAKAHASHI, supra note 6, at 91 n.2, 96.

19. Myres S. McDougal & Florentino Feliciano, Law and Minimum Public Order
746(1961).

20. DINSTEIN, supra note 6, analyzes Hague IV, supra note 7, and cites Hague II, supra note 9,
occasionally, DINSTEIN, supra at 4-6, 9, 53, 90, 231, 233, 287, but does not comment on this as-
pect of Hague II, supra note 9, Regulations, art. 43. ARAI-TAKAHASHI, supra note 6, and
BENVENISTI, supra note 9, concentrate on Hague IV, supra note 7, as does FM 27-10, supra note
12. Like Hague IV, supra note 7, the authentic language of Hague II, supra note 9, is French, see
Authentic Text, supra note 16, at 56; the final paragraph of Hague II, supra note 9 ("Done at The
Hague . . . "), says a single copy of the authentic text is in Netherlands archives. Schindler &
Toman, THE LAWS OF ARMED CONFLICTS, supra note 2, at 56, rely on THE HAGUE CONVENTIONS
AND DECLARATIONS OF 1899 AND 1907, at 100-32 (James Brown Scott ed., 3d ed. 1918), that re-
produced the US Department of State Convention translations in 22 Stat. 1803 and 36 Stat. 2227.
The International Committee of the Red Cross website has had the erroneous version, as do
ARAI-TAKAHASHI, supra note 6, at 91 and the long-influential 2 LASSA OPPENHEIM,
INTERNATIONAL LAW § 169 n.4 (Hersch Lauterpacht ed., 1952). FM 27-10, supra note 12, Fore-
word recognizes that French is the Hague treaties' official language. Id. ^ 363 recites the errone-
ous English-language Hague IV, supra note 7, Regulations, art. 43 version. UK MANUAL, supra
note 8, K 1 1.25 seems to rely on the erroneous translation.

US courts apply treaties' authentic language. Eastern Airlines v. Floyd, 499 U.S. 530, 534-37
( 1991 ). The Executive and the Congress interpret treaties; courts may interpret them differently
from either. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 625-33 (2006) (Third Convention,
supra note 3, arts. 2, 3); see also RESTATEMENT, supra note 6, § 326. It is the Supreme Court's
interpretation of the laws that counts. United States v. Nixon, 418 U.S. 683, 703-5 (1974)
(executive action review); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (US statute
review). International court decisions, e.g., of the International Court of Justice (ICJ), are
entitled to great respect, but they do not bind US courts. Medellin v. Texas, 128 S.Ct. 1346, 1358—
60 (2008).

21. See ARAI-TAKAHASHI, supra note 6, at 97-98; BENVENISTI, supra note 9, at 12-18;
DINSTEIN, supra note 6, at 108-9.

22. See generally ARAI-TAKAHASHI, supra note 6, at 98-1 1 3.

23. The French version is the same in both treaties; compare Hague II, supra note 9, Regula-
tions, art. 43, 22 Stat. 1821, with Hague IV, supra note 7, Regulations, art. 43, 36 Stat. 2227. Since
French is the authentic language of both treaties, it is not clear which is the more accurate English
translation, or if a third and more precise English wording should be used. See supra notes 14-22
and accompanying text. I am not sufficiently fluent in French to offer comment.

24. ARAI-TAKAHASHI, supra note 6, at 93-96; BENVENISTI, supra note 9, at 9, 26-29, 182-83
(advocating change in the law if an occupied State's public at large supports it), 209-10. See also
id. 9-14 for the Brussels Declaration and Hague IV, supra notes 7, 10, negotiations. Change in the

238

George K. Walker

law based on public support can raise an issue of differences among groups within a State, e.g.,
different ethnic or religious groups that do not command a majority but are a vocal minority.

25. North Atlantic Treaty, Apr. 4, 1949, 61 Stat. 2241, 34 U.N.T.S. 243 [hereinafter NATO
Treaty].

26. Inter-American Treaty of Reciprocal Assistance (Rio Treaty), Sept. 2, 1947, 62 Stat. 1681,
21 U.N.T.S. 77 [hereinafter Rio Pact].

27. Albania, Bulgaria, Croatia, Czech Republic, Estonia, Greece, Iceland, Italy, Latvia, Lithu-
ania, Slovakia, Slovenia, Spain and Turkey are the NATO non-party States. Argentina, Bahamas,
Chile, Colombia, Costa Rica, Ecuador, Honduras, Paraguay, Peru, Trinidad and Tobago, Uru-
guay and Venezuela are the Rio Pact non-party States. United States Department of State, Trea-
ties in Force: A List of Treaties and Other International Agreements of the United States of
America on January 1, 2009, at 410, 343-44, 438-40 (2009) [hereinafter TIF].

28. Id. at 438-40 (NATO: Albania, Croatia, Czech Republic, Estonia, Iceland, Latvia, Lithu-
ania, Poland, Slovakia and Slovenia; Rio Pact: Bahamas, Costa Rica, and Trinidad and Tobago).

29. George K. Walker, The Lawfulness of Operation Enduring Freedom's Self-Defense Re-
sponses, 37 Valparaiso Law Review 489, 498-500 (2003).

30. For the United States, TIF, supra note 27, printed annually but also on the Department of
State website.

31. See supra notes 7-9 and accompanying text.

32. See supra notes 7-9, 14-15 and accompanying text.

33. The last scenario could have arisen in World War II; Bulgaria and Italy were Hague II,
supra note 9, parties and not Hague IV, supra note 7, parties and were subject to occupation law
for a while. When the Allies invaded and occupied Sicily and southern Italy, Italy was German's
ally; when the Benito Mussolini government fell in Italy and a new Italian government declared
war on Germany, the rest of northern Italy controlled by Germany became subject to occupation
law under Germany and, as the Allies moved north into Italy, Allied occupation law under vari-
ous sovereigns applied. BENVENISTI, supra note 9, at 84-91; DlNSTEIN, supra note 6, at 37. As the
Allies moved into Europe from the east (USSR forces) and the west (primarily UK, US forces),
parts of other States allied with them — parts of Belgium, Denmark (Greenland), France until es-
tablishment of the Charles de Gaulle government, Greece, Iceland (first as a Denmark possession
and later after its declaration of independence during World War II), Luxembourg, Netherlands,
Poland, etc. — were subject to occupation by consent of governments in exile; belligerent occu-
pation rules did not apply. The same applied to colonial areas Japan conquered that the Allies lib-
erated in the Pacific theater; after annexing Manchuria, Japan established puppet governments
for its conquests. The Allies restored colonies to their European sovereigns. BENVENISTI, supra
note 9, at 60-66; DlNSTEIN, supra note 6, at 37, 46-47. Italy's colonies and conquests were sub-
jected to occupation. BENVENISTI, supra note 9, at 72-81.

34. Another issue is the scope of custom the Nuremberg and Tokyo judgments stated.
Nuremberg was decided under Agreement for the Prosecution and Punishment of the Major
War Criminals of the European Axis Powers and Charter of the International Military Tribunal,
Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279; parties were France, Great Britain, the USSR and the
United States. The International Tribunal tried high-ranking Nazi officials; other accuseds went
before military commissions. For Japan, accuseds went before military commissions in Tokyo
and elsewhere in Asia and territories Japan occupied during World War II. The US Navy con-
ducted some. George E. Erickson, Jr., United States Navy War Crimes Trials, 5 WASHBURN LAW
JOURNAL 89 (1965). Although it might be argued that only those States and their nationals in-
volved in the trials were thereafter governed by customary rules the trials declared, Resolution
95, supra note 8, unanimously reaffirmed the Nuremberg and Tokyo principles. The Nuclear

239

Occupation in Iraq: A Rubik's Cube Problem?

Weapons, 2005 Congo and Wall Cases, supra note 8, shut the door on claims of lack of a custom-
ary norm or a variant on Nuremberg standards but do not erase issues of divergence, if any, be-
tween custom and Hague II and Hague IV and later interpretations of them. The three ICJ cases
closed the gap, if it ever existed.

35. See DlNSTEIN, supra note 6, at 90, 108-9, commenting on Hague IV, supra note 7, Regu-
lations, art. 43. Since the Hague II, supra note 9, Regulations, art. 43 phrase is the same, the same
construction should apply.

36. Progressive development is a term in the law of treaties; see, e.g., IAN SINCLAIR, THE
Vienna Convention on the Law of Treaties 17-18 (2d ed. 1984) (comment on Vienna
Convention on the Law of Treaties arts. 53, 64, 71, May 23, 1969, 1 155 U.N.T.S. 331 [hereinafter
Vienna Convention] status of standards for applying jus cogens). Progressive development, per-
haps termed "innovative," can also be seen in secondary sources. See, e.g., SAN REMO MANUAL
ON INTERNATIONAL LAW APPLICABLE TO ARMED CONFLICTS AT SEA ^ 136(g) & cmt. 136.1
(Louise Doswald-Beck ed., 1995) [hereinafter SAN REMO MANUAL]. De lege ferenda, sometimes
styled lex ferenda, relates to the law as it should be; its antonym is lex lata, law as it presently is.
Vienna Convention, supra, is in force for 109 States. Vienna Convention on the Law of Treaties
Between States & International Organizations or Between International Organizations arts. 53,
64, 71, 73, 85, Mar. 21, 1986, 25 INTERNATIONAL LAW MATERIALS 543, is not in force but recites
similar rules on this point and is subject to the Vienna Convention, supra. UN-related IGOs have
ratified it, suggesting that it too must be considered if dealing with one of these IGOs. United Na-
tions, Multilateral Treaties Deposited with the Secretary-General: Status of Treaties XXXIII- 1, 3,
http://treaties.un.org/Pages/Treaties.aspx?id=23&subid=A&lang=en (last visited Sept. 20, 2009)
[hereinafter Multilateral Treaties].

37. Through Hague II and Hague IV, supra notes 7, 9, Regulations, art. 43's "laws" rules; see
supra notes 14-21 and accompanying text. A debate, now maybe settled by ICJ judgments, con-
tinues on whether and under what circumstances human rights law applies during armed con-
flict, or whether the LOAC is lex specialise i.e., in LOAC-governed situations, human rights law
does not apply. See infra notes 104, 116 and accompanying text.

38. DlNSTEIN, supra note 6, at 108-9 says that an occupied State's government can continue
to legislate for occupied territory even after occupation begins. An occupier can concur with an
occupied State's views, but the occupier has a full right to legislate for the territory.

39. BENVENISTI, supra note 9, at ix-x; DlNSTEIN, supra note 6, at 12.

40. DlNSTEIN, supra note 6, at 90-91, 110-16, advocates reading Fourth Convention, supra
note 2, art. 64, to allow amending existing law, criminal or civil, if occupier security interests are
at stake, occupied State law is inconsistent with Fourth Convention obligations, civilian popula-
tion needs must be met ("Article 64's orderly government"), or maybe other changes under the
Hague IV, supra note 7, Regulations, art. 43 "unless absolutely prevented" exception. FM 27-10,
supra note 12, fj 369-70 recite Article 64 and say that " [i]n restoring public order and safety, the
occupant will continue the ordinary civil and penal (criminal) laws of the occupied territory ex-
cept to the extent it may be authorized by [Fourth Convention, supra, art. 64; Hague IV, supra
note 7, Regulations, art. 43] ... to alter, suspend, or repeal such laws," referring also to Hague IV,
supra note 7, Regulations, art. 23(h). FM 27-10, supra note 12, *\ 371 declares an occupier may

alter, repeal, or suspend laws of the following types:

a. Legislation constituting a threat to its security, such as laws relating to
recruitment and the bearing of arms.

b. Legislation dealing with political process, such as laws regarding the suffrage
and of assembly.

240

George K. Walker

c. Legislation the enforcement of which would be inconsistent with the duties of
the occupant, such as laws establishing racial discrimination.

This seems to go further than Dinstein's interpretation and seems consistent with a view that
occupiers may, by suppressing such laws, in effect promote human rights standards. See, e.g.,
ARAI-TAKAHASHI, supra note 6, at 116-36; BENVENISTI, supra note 9, at 187-89, 210-11;
MCDOUGAL & FELICIANO, supra note 19, at 767-71; 2 OPPENHEIM, supra note 20, §§ 172-72b.
UK MANUAL, supra note 8, ffif 11.19, 11.25.1 and 11.60, read together, seem to conclude
similarly. Gasser, supra note 13, at 254-56, also citing Fourth Convention, supra, art. 64, says
occupiers must keep national laws in force but that laws serving the purpose of warfare in the
occupied territory or that are a threat to security or an obstacle to applying humanitarian law
may be repealed or suspended, noting differing views. Gasser's view seems contradicted at
Gasser, supra note 13, at 247-48 when he declares, following Protocol I, Article 75, that
discrimination against civilians for reasons of race, nationality, language, religious convictions
and practices, political opinion, social origin or position or similar considerations is unlawful.
An occupier violates this rule if it keeps national laws of an occupied State in force that would
inflict these kinds of discrimination.

41. See DINSTEIN, supra note 6, at 80-81.

42. Id. at 121.

43. BENVENISTI, supra note 9, at 14-15, 187-89, 210-11 (human rights standards may be
guide for occupation law); see also supra note 40 (others seem to allow more progressive approach).

44. FM 27-10, supra note 12, ^ 380, quoting Hague IV, supra note 7, Regulations, art. 46; com-
pare Hague II, supra note 9, Regulations, art. 46; see also FM 27-10, supra note 12, ^ 406. It must
be noted, however, that citing Hague IV, supra note 7, and Fourth Convention, supra note 2,
provisions in FM 27-10, supra note 12, ffif 381-87 suggests that the drafters had a more restrictive
view in 1956, i.e., what they meant was humanitarian law and not today's human rights law.

45. E.g., FM 27-10, supra note 12, f 377, declares an occupier's broad right to impose media
censorship, without citing authority. International Covenant on Civil & Political Rights art. 19,
Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR], declares a right to expression of opinion in
writing or in print, subject to "certain restrictions . . . provided by law and [which] are neces-
sary." Id., art. 4 allows derogations from this right "[i]n time of public emergency which threat-
ens the life of the nation and the existence of which is officially proclaimed ... to the extent
strictly required by the exigencies of the situation . . . ," a derogation provision in human rights
treaties. See infra notes 109-21 and accompanying text. How should an occupier apply censor-
ship in the light of human rights law? Are the rules the same under occupation law and human
rights law? A further problem, upon which authorities divide, is whether human rights law ap-
plies extraterritorially, such that occupier State personnel carry with them human rights obliga-
tions of their country into an occupied State. Compare ARAI-TAKAHASHI, supra note 6, ch. 21
(they do); DINSTEIN, supra note 6, at 70 (they do not).

46. ARAI-TAKAHASHI, supra note 6, at 65-67; BENVENISTI, supra note 9, at 184-87;
DINSTEIN, supra note 6, at 51-52; see also U.N. Charter arts. 1(2), 55-56; LELAND F. GOODRICH
ET AL., CHARTER OF THE UNITED NATIONS 29-34, 371-82 (3d rev. ed. 1969); Rudiger Wolfrum,
Self-Determination, in THE CHARTER OF THE UNITED NATIONS 47-63 (Bruno Simma ed., 2d ed.
2002).

47. Fourth Convention, supra note 2, art. 1 58; see also First Convention, supra note 3, art. 63;
Second Convention, supra note 3, art. 62; Third Convention, supra note 3, art. 142. As 1 PlCTET,
supra note 1 1, at 413; 2 PlCTET, supra note 1 1, at 283; 3 PlCTET, supra note 1 1, at 47, 648 and 4
PlCTET, supra note 11, at 625, explain, Martens clauses bind Convention parties, even though
they denounce the Convention(s), by the principles in them insofar as they express inalienable

241

Occupation in Iraq: A Rubik's Cube Problem?

and universal international law rules. See also Hague II, supra note 9, pmbl.; Hague IV, supra
note 7, pmbl.; SAN REMO MANUAL, supra note 36, U 2; INSTITUTE OF INTERNATIONAL LAW, THE

Application of International Humanitarian Law and Fundamental Human Rights
in Armed Conflicts in Which Non-state Entities Are Parties u 4 (Aug. 25, 1999), re-
printed in The Laws of Armed Conflicts, supra note 2, at 1205, 1207; institute for Human
Rights, Declaration of Minimum Humanitarian Standards pmbl. (Nov. 30-Dec. 2,
1990), reprinted in id. at 1 199, 1200; ARAI-TAKAHASHI, supra note 6, at 68-71 (ICJ cases support
view that clauses restate customary international law); MICHAEL BOTHE ET AL., NEW RULES FOR
Victims of Armed Conflict 44 (1982); Leslie C. Green, The Contemporary Law of
ARMED CONFLICT 17-18, 34, 349 (2d ed. 2000); Greenwood, supra note 8, § 129(2) (clauses' im-
pact difficult to assess). A preamble is not part of a treaty's binding language but may explicate its
object and purpose. Vienna Convention, supra note 36, art. 31(2); see also ANTHONY AUST,
Modern Treaty Law and Practice 235-38 (2d ed. 2007); Sinclair, supra note 36, at 127-28,
130.

48. Protocol I, supra note 13, art. 1(2) (customary law, Martens clause protection). State
Parties, supra note 4, lists 168 States as Protocol I parties compared with 194 for the 1949 Con-
ventions; many are or were US alliance or coalition partners in Afghanistan or Iraq. See also
DlNSTEIN, supra note 6, at 7 ("determined minority" of non-ratifying States for Protocol I); su-
pra notes 25-28 and accompanying text.

49. ARAI-TAKAHASHI, supra note 6, at 71, 657-60 thinks so.

50. Cf. UK MANUAL, supra note 8, ^ 1 1.3.3. The coalition had joint responsibility for areas
under its effective control in Iraq during 2003-4. DlNSTEIN, supra note 6, at 48.

5 1 . If each occupying power has a separate zone to administer, as in Germany and Austria af-
ter World War II, each power is responsible under occupation law for its zone. Id. at 48-49. This
does not respond to the issue of different interpretations and applications of the laws, including
new legal regimes to replace what may have been laws like those in force in Nazi Germany. In
zonal occupations, as in coalition occupations, the occupying powers should reach consensus on
new legal regimes, looking to when an occupied State regains full sovereignty.

52. See supra note 39 and accompanying text.

53. See infra notes 69, 78-81 and accompanying text.

54. Although precedent {stare decisis) is an entrenched common law principle, States, in-
cluding NATO and Rio Pact, supra notes 25, 26, countries, may adhere to a civil law standard like
ICJ Statute, supra note 6, art. 59, declaring that a judgment only binds States before the Court
and only for the particular case.

55. There are others, e.g., U.N. Charter art. 17(1) (General Assembly must approve UN bud-
get); see also GOODRICH ET AL., supra note 46, at 148-67; THE CHARTER OF THE UNITED
NATIONS, supra note 46, at 334-36.

56. U.N. Charter arts. 25, 48, 94(2), 103; see also DlNSTEIN, supra note 6, at 273; GOODRICH
ET AL., supra note 46, at 207-1 1, 334-37, 555-59, 614-17; SAN REMO MANUAL, supra note 36, fflf
7-9; THE CHARTER OF THE UNITED NATIONS, supra note 46, at 454-62, 776-80, 1 174-79, 1292-
1302; W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AMERICAN
JOURNAL OF INTERNATIONAL LAW 83, 87 (1993) (principles from Council decisions under arts.
25, 48, 103 are treaty law binding UN members, overriding other treaty obligations).

57. U.N. Charter arts. 51, 103; see also GOODRICH ET AL., supra note 46, at 342-53; THE
CHARTER OF THE UNITED NATIONS, supra note 46, at 778-806. U.N. Charter art. 2(1) recognizes
the principle of State sovereignty, traditionally interpreted to mean that in the absence of gov-
erning law, States may act in their interest. See also GOODRICH ET AL., supra note 46, at 36-40;
THE CHARTER OF THE UNITED NATIONS, supra note 46, at 68-91. In the case of self-defense, it

242

George K. Walker

is more than self-interest; it is an inherent right the Charter enshrines under Articles 51 and 103.
Debate continues on whether the right of self-defense includes a right of anticipatory self-defense
and, more recently, claims of a right to take preemptive action. See generally George K. Walker,
Filling Some of the Gaps: The International Law Association (American Branch) Law of the Sea
Definitions Project, 32 FORDHAM INTERNATIONAL LAW JOURNAL 1336, 1355-56 nn. 102-3
(2009).

National sovereignty, sometimes diminished or eroded, has been a fundamental principle
since the Peace of Westphalia. Treaty of Peace of Minister, Fr.-Holy Rom. Empire, art. 64, Oct.
24, 1648, 1 Consol. T.S. 198, 319; Treaty of Peace of Osnabruck, Swed.-Holy Rom. Empire, art. 9,
Oct. 24, 1648, id. at 1 19, 198; see also CHRISTIAN L. WlKTOR, MULTILATERAL TREATY CALENDAR
1648-1995, at 3 (1998). The Peace of Westphalia began the modern State system. Leo Gross, The
Peace of Westphalia, 1648-1948, 42 AMERICAN JOURNAL OF INTERNATIONAL LAW 20 (1948).
Treaties besides the U.N. Charter art. 2(1) ("sovereign equality" of UN members) and decisions
invoking the sovereignty principle include the UN Convention on the Law of the Sea art. 157(3),
Dec. 10, 1982, 1833 U.N.T.S. 3 [hereinafter LOS Convention]; Vienna Convention, supra note
36, pmbl; S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A), No. 10, at 4, 18; S.S. Wimbledon (U.K.
v. Ger.), 1923 id., No. 1, at 15, 25; see also Declaration on Principles of International Law
Concerning Friendly Relations 8c Co-Operation Among States in Accordance with the Charter
of the United Nations, Principle 6, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, U.N.
Doc. A/8028 (1970); Declaration on Inadmissibility of Intervention in Domestic Affairs of States
& Protection of Their Independence 8c Sovereignty, G.A. Res. 2131, U.N. GAOR, 20th Sess.,
U.N. Doc. A/RES/2131 (1965); the Secretary-General, A More Secure World: Our Shared
Responsibility: Report of the Secretary-General's High-Level Panel on Threats, Challenges and
Change, If 29, U.N. Doc. A/59/565 (2004) (States accepting UN Charter benefit of "privileges of
sovereignty . . . [must] also accept its responsibilities"); the Secretary-General, An Agenda for
Peace: Report of the Secretary-General on the Work of the Organization, U.N. Doc. A/49/277, S/
241 1 1 (1992); MICHAEL AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW 21-
23 (Brian Chapman ed., 3d ed. 1977); JAMES L. BRIERLY, THE LAW OF NATIONS 45-49
(Humphrey Waldock ed., 6th ed. 1963); BROWNLIE, supra note 6, at 287-89; GOODRICH ET AL.,
supra note 46, at 36-40; OPPENHEIM'S INTERNATIONAL LAW, supra note 6, §§ 37, 107; LORD
MCNAIR, THE LAW OF TREATIES 754-66 (1961); RESTATEMENT, supra note 6, Part I, ch. 1,
Introductory Note, 16 8c 1 7; THE CHARTER OF THE UNITED NATIONS, supra at 70-9 1 ; R.P. Anand,
Sovereign Equality of States in International Law, 197 RECUEIL DES COURS D'ACADEMIE DE
DROIT INTERNATIONAL [R.C.A.D.I.] 9, 22-51 (1986); Boutros Boutros-Ghali, Empowering the
United Nations, FOREIGN AFFAIRS, Winter 1992, at 89, 98-99; Jonathan I. Charney, Universal
International Law, 87 AMERICAN JOURNAL OF INTERNATIONAL LAW 529, 539 (1993); Gerald
Fitzmaurice, The General Principles of International Law Considered from the Standpoint of the
Rule of Law, 92 RECUEIL DES COURS D'ACADEMIE DE DROIT INTERNATIONAL [R.C.A.D.I.] 1, 49-
50 (1957); Louis Henkin, International Law: Politics, Values and Functions, 216, id. at 9, 46, 130
(1989); Oscar Schachter, International Law in Theory and Practice, 178, id. at 9, 32 (1982); C.H.M.
Waldock, General Course on Public International Law, 106, id. at 1, 156-72 ( 1962). Sovereignty is
a debatable issue today. HENRY KISSINGER, DOES AMERICA NEED A FOREIGN POLICY? TOWARD
A DIPLOMACY FOR THE 2 1ST CENTURY 21-22, 235-37 (2001) declared that the sovereignty
concept was in trouble; Henkin, supra, had earlier recognized sovereignty's force, but in LOUIS
HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 8-10 (1995) denounced it.

58. There are differences among countries on the law of self-defense. See supra note 57 and
accompanying text. Even this "easy" case might raise perceptions of equal justice. There are also

243

Occupation in Iraq: A Rubik's Cube Problem?

possibilities of renewed hostilities, or outbreak of new hostilities, where the LOAC, and not nec-
essarily self-defense, is involved. See generally ARAI-TAKAHASHI, supra note 6, ch. 12.

59. Cf Fourth Convention, supra note 2, arts. 64, 66; Hague II, supra note 9, Regulations, art.
43; Hague IV, supra note 7, Regulations, art. 43; FM 27-10, supra note 12, ^ 374; ARAI-
TAKAHASHI, swpra note 6, at 157-62; DlNSTEIN, supra note 6, at 137; 4 PlCTET, supra note 1 1, at
334-37, 339-41; Gasser, supra note 13, at 273-77. For US forces and others subject to it, it is the
Uniform Code of Military Justice, 10 U.S.C. §§ 801-946 (2009) [hereinafter UCMJ].

60. Fourth Convention, supra note 2, arts. 64, 66; Hague II, supra note 9, Regulations, art.
43; Hague IV, supra note 7, Regulations, art. 43; ARAI-TAKAHASHI, supra note 6, at 162-84;
DlNSTEIN, supra note 6, at 136-37; 4 PlCTET, supra note 1 1, at 334-37, 339-41.

61. Cf. Fourth Convention, supra note 2, art. 64; Hague II, supra note 9, Regulations, art. 43;
Hague IV, supra note 7, Regulations, art. 43; DlNSTEIN, supra note 6, at 132-34; 4 PlCTET, swpra
note 1 1, at 337; Gasser, supra note 13, at 271-72.

62. E.g., UCMJ, supra note 59, art. 2, § 802, is premised on the nationality jurisdiction prin-
ciple, i.e., a State's criminal laws follow those the Code covers wherever they go. BROWNLIE,
supra note 6, at 300-304; OPPENHEIM'S INTERNATIONAL LAW, supra note 6, §§ 137-38;

Restatement, supra note 6, §§ 402(1), 402(2).

63. To be sure, the differences can be erased in terms of law on the books if an occupier State
promulgates changes to local law in conformity with its standards, but a perception might per-
sist among an occupied State's legal community and its constituents, particularly if the differ-
ences are great. Local law refers to a jurisdiction's law exclusive of its conflict of laws, or private
international law, principles. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 4(1) (1971,
1988 rev.) [hereinafter RESTATEMENT (SECOND)]; EUGENE F. SCOLES ET AL., CONFLICT OF
LAWS § 2.1 (4th ed. 2004). Lieber Code, supra note 10, art. 43, declared prize money would be
paid according to "local law," presumably the captor's law. See also infra note 144 and accompa-
nying text.

64. DlNSTEIN, supra note 6, at 99-107 (civilians can be Fourth Convention, supra note 2, art.
73, protected persons but become combatants subject to the LOAC if they participate as part of
an attacking force, then revert to protected status as civilians).

65. This is subject to Fourth Convention authority to try them in special military courts and
under lawful changes an occupier State might make in occupied State law. See supra note 60 and
accompanying text.

66. S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001); S.C. Res. 1373, U.N. Doc. S/RES/
1373 (Sept. 28, 2001); United Nations Global Counter-Terrorism Strategy, G.A. Res. 60/288,
U.N. Doc. A/RES/60/288 (Sept. 20, 2006); Protocol I, supra note 13, art. 51(2); Protocol Addi-
tional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
Non-International Armed Conflicts arts. 4(2)(d), 13(2), June 8, 1977, 1125 U.N.T.S. 609, re-
printed in THE LAWS OF ARMED CONFLICTS, supra note 2, at 775 [hereinafter Protocol II];
INSTITUTE FOR HUMAN RIGHTS, supra note 47, art. 6; Commission of Jurists, Hague Rules Con-
cerning Air Warfare art. 22, Feb. 17, 1923, reprinted in THE LAWS OF ARMED CONFLICTS, supra
note 2, at 315, 317; International Institute of Humanitarian Law, Declaration on the Rules of In-
ternational Humanitarian Law Governing the Conduct of Hostilities in Non-International
Armed Conflicts art. A2, Apr. 7, 1990, in id. at 1 195, 1 196; see also BOTHE ET AL., supra note 47, at
300-301, 677-78; BROWNLIE, supra note 6, at 745; OPPENHEIM'S INTERNATIONAL LAW, supra
note 6, § 122, at 401-3; NWP 1-14M ANNOTATED, supra note 8, ft 8.5.1.2, 1 1.3; RESTATEMENT,
supra note 6, § 404 (State-sponsored terrorism may be a universal crime); COMMENTARY ON
the Additional Protocols of 8 June 1977 to the Geneva Conventions of 1977, at 618,
1375, 1453 (Yves Sandoz, Christophe Swinarski & Bruno Zimmerman eds., 1987). A caveat is

244

George K. Walker

that terrorists' trials might be in special military courts or local courts in an occupied State under
occupier or occupied State law, which might differ from international standards. See supra notes
60, 65, infra note 67 and accompanying text.

67. Pub. L. No. 109-366, 120 Stat. 2600, inter alia codified as 10 U.S.C. §§ 948a-950w (2009).

68. The problem can be largely eliminated in coalition or alliance operations if coalition or
allied forces operate in defined areas, e.g., the UK and US sectors in Iraq and zones in occupied
Germany and Austria after World War II, or if one country is the occupier State, as was the situa-
tion in Japan after World War II. There are no reported issues of this nature involving other
States that sent forces to Iraq as part of the coalition. Agreements among occupier States, like sta-
tus of forces agreements with rules on primary jurisdiction, might resolve issues among States,
but a problem of occupied State and international perceptions might remain.

69. For the 2003 Iraq coalition, UN Security Council Resolutions 1483, S.C. Res. 1483, U.N.
Doc. S/RES/1483 (May 22, 2003); 1511, S.C. Res. 1511, U.N. Doc. S/RES/1511 (Oct. 16, 2003);
and 1546, S.C. Res. 1546, U.N. Doc. S/RES/1546 (June 8, 2004), were the chartering documents,
recognizing the Coalition Provisional Authority and the occupation's end. For commentary on
Iraq after occupation ended, see generally Andrea Carcano, End of the Occupation in 2004? The
Status of the Multinational Force in Iraq After the Transfer of Sovereignty to the Interim Iraqi Gov-
ernment, 1 1 JOURNAL OF CONFLICT & SECURITY LAW 41 (2006), then (in 2005) arguing that the
Interim Government did not meet sovereignty standards and that the coalition continued as oc-
cupiers. See also infra notes 78-81 and accompanying text.

70. Cf BENVENISTI, supra note 9, at 20-21. An example is a criminal trial penalty phase
where occupier State law allows the death penalty, perhaps under the LOAC, human rights law
and occupied State law would not, following conviction for violating the law of war. Cf FM 27-
10, supra note 12, Tf 508 (death penalty possible for grave breaches); but see also Fourth Conven-
tion, supra note 2, art. 75; Protocol I, supra note 13, art. 75(4); FM 27-10, supra note 12, ^ 445; 4
PlCTET, supra note 1 1, at 361-63; Gasser, supra note 13, at 274. A similar issue is if occupier State
law allows capital punishment, human rights law does not, and occupier State law prescribes an
execution method different from occupier State law. A common execution method under US
law is lethal injection; other States might use methods not compatible with, e.g., U.S. CONST,
amend. VIII.

71. U.N. Charter arts. 10-11, 13-14 (provisions for Assembly recommendations), 33, 36-37
(Chapter VI provisions for possible Council action), 39-51 (Chapter VII provisions for situa-
tions involving breaches of the peace or threats to international peace and security and the inher-
ent right of individual and collective self-defense and possible Council action).

72. Sydney D. Bailey & Sam Daws, The Procedure of the UN Security Council 18-

21, 236-37 (3d ed. 1998); BROWNLIE, supra note 6, at 14; JORGE CASTENADA, LEGAL EFFECTS OF

United Nations Resolutions 78-79 (Alba Amoia trans., 1969); Goodrich et al., supra note

46, at 111-29, 133-44, 257-65, 277-87, 290-314; OPPENHEIM'S INTERNATIONAL LAW, supra
note 6, § 16; RESTATEMENT, supra note 6, § 103(2)(d) & r.n.2; THE CHARTER OF THE UNITED
NATIONS, supra note 46, at 257-87, 298-326, 583-94, 616-43, 717-49.

73. See W. Michael Reisman, Acting Before Victims Become Victims: Preventing and Arresting
Mass Murder, 40 CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 57, 72-73 (2007-
2008), citing Uniting for Peace Resolution, G.A. Res. 377, f 1, U.N. Doc. A.1775 (Nov. 3, 1950),
employed during the Korean War to continue UN operations; Wall Case, supra note 8, 2004
I.C.J, at 148-51 (adv. op.); Certain Expenses of the United Nations, 1952 I.C.J. 151, 163-71 (adv.
op.); compare Joseph Isanga, Counter-Terrorism and Human Rights: The Emergence of a Rule of
Customary International Law from U.N. Resolutions, 32 DENVER JOURNAL OF INTERNATIONAL
LAW & POLICY 233, 238-49 (2009), also citing 2005 Congo Case, supra note 8, 2005 I.C.J, at 53-54;

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Occupation in Iraq: A Rubik's Cube Problem?

Nuclear Weapons, supra note 8, 1996 I.C.J, at 254-55; Military & Paramilitary Activities in &
Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 99-108 (June 27) [hereinafter Nicaragua
Case]. See also GEORGE K. WALKER, THE TANKER WAR, 1980-88: LAW AND POLICY 175-77
(2000) (Vol. 74, US Naval War College International Law Studies). Otherwise-non-binding
Council resolutions, e.g., calls for action under Chapter VII, supra notes 55-57 and accompany-
ing text, could evolve into a customary norm. Isanga, supra at 240, citing 2005 Congo Case, supra
note 8, at 53-54; Wall Case, supra at 171.

The Supreme Court of the United States has held differently on another important General
Assembly resolution, the Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N.
GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948). Sosa v. Alvarez-Machain, 542
U.S. 692, 734 n.12 (2004), declined to accept the Declaration as part of US customary
international law because the US UN Permanent Representative, Eleanor Roosevelt, had
declared the Declaration was not a binding standard. Filartiga v. Pena-Irala, 630 F.2d 876, 887
(2d Cir. 1980), reached a different conclusion on State-sponsored torture. DlNSTEIN, supra note
6, at 68 and Committee on the Enforcement of Human Rights Law, International Law
Association, Final Report on the Status of the Universal Declaration of Human Rights in National
and International Law, Report of the 66th Conference 523, 544 (1994) say many Declaration
provisions reflect customary international law. This illustrates dilemmas for US and other
national decisionmakers; choices made in conformity with national law standards may not be
the same as public international law norms or as the law as perceived by allied States. A related
issue has been the growth of "soft law," i.e., standards, perhaps coming from an IGO, a non-
binding agreement or a non-governmental organization (NGO), that deserve consideration,
even if they may not have source of law status. AUST, supra note 47, at 52-53.

74. General principles of law are another primary international law source. ICJ Statute,
supra note 6, art. 38( l)(c); BROWNLIE, supra note 6, at 19, 15-27; OPPENHEIM'S INTERNATIONAL
LAW, supra note 6, § 12; but see RESTATEMENT, supra note 6, §§ 102(1 )(c), 102(4) & cmt. / (gen-
eral principles a subsidiary source).

75. See supra notes 47-49 and accompanying text.

76. Vienna Convention, supra note 36, art. 31(3)(b) may give an answer. It provides that
subsequent practice under a treaty, and presumably an ipso facto binding UN resolution emanat-
ing from the Charter (which is a treaty), establishes the parties' agreement on application of the
treaty. A longstanding view has been, however, that treaties and custom are coequal in status; see
ICJ Statute, supra note 6, art. 38( 1 ); RESTATEMENT, supra note 6, § 102. A custom coming later in
time might trump an earlier, inconsistent treaty, particularly if it is in desuetude. AUST, supra
note 47, at 14; BROWNLIE, supra note 6, at 5; RESTATEMENT, supra note 6, § 102 r.n.4. Whether
these construction principles apply to Charter law situations is not clear. A reconciliation is that
there may be a clear difference between the newer custom and the older treaty, such that Article
31(3)(b) does not apply.

77. Cf Nicaragua Case, supra note 73, 1986 I.C.J, at 94.

78. S.C. Res. 1483, supra note 69.

79. S.C. Res. 1546, supra note 69; for questions related to self-defense issues possibly arising
during an occupation, see supra notes 57-70 and accompanying text.

80. U.N. Charter arts. 25, 48, 103; see also supra notes 55-57 and accompanying text.

81. DlNSTEIN, supra note 6, at 273. What began in 2004 was another kind of occupation —
occupation by consent of the government of Iraq and not belligerent occupation under the
LOAC, subject to Security Council Resolution 1546, supra note 69, standards. DlNSTEIN, supra
note 6, at 36 (citing pre-Charter examples), 273. The Fourth Convention/Hague IV, supra notes
2, 7, regime ended June 30, 2004. There can be UN forces occupation with host country consent

246

George K. Walker

or in a kind of trusteeship; these are not belligerent occupations unless there is UN enforcement
action, as distinguished from peacekeeping operations. DlNSTEIN, supra note 6, at 38; Michael
Bothe, Peace-Keeping, in THE CHARTER OF THE UNITED NATIONS, supra note 46, at 648, 683.
These operations, often governed by Council decision but perhaps other UN resolutions, see su-
pra notes 55-57 and accompanying text, may draw from the LOAC of belligerent occupation for
their governance standards.

82. For analysis of "due notice" in the law of the sea (LOS) context, see LAW OF THE SEA
Committee, Report, in Proceedings of the American Branch of the International Law
ASSOCIATION 2007-2008, at 217-20 (2008) [hereinafter LOS Committee Report].

83. The Executive Board is WHO's executive arm, very roughly analogous to the UN Secu-
rity Council. Constitution of the World Health Organization arts. 10, 19, 21-22, 24-37, 59-60,
July 22, 1946, 62 Stat. 2679, 14 U.N.T.S. 185. E.g., Iraq, the United Kingdom and the United
States are WHO members, but there may not be a common matrix of conventions, agreements
or regulations among these countries. TIF, supra note 27, at 370-72.

84. Cf. BROWNLIE, supra note 6, at 691-92; OPPENHEIM'S INTERNATIONAL LAW, supra note
6, § 16; RESTATEMENT, supra note 6, §§ 102, 103(2) (c), cmt. c & r.n. 1; supra notes 73-74 and ac-
companying text.

85. Vienna Convention, supra note 36, arts. 34-38; AUST, supra note 47, ch. 14; BROWNLIE,
supra note 6, at 627-29; OPPENHEIM'S INTERNATIONAL LAW, supra note 6, §§ 626-27; McNAIR,
supra note 57, ch. 16; RESTATEMENT, supra note 6, § 323.

86. See supra note 36 and accompanying text.

87. See supra note 73.

88. U.N. Charter arts. 51, 103; see also supra notes 55-57 and accompanying text. This is not
as far-fetched as it might seem. In 1805 as part of Third Coalition actions against Napoleon
Bonaparte, the commander of Austrian forces in the Italian peninsula established a cordon, "os-
tensibly" to protect against spread of yellow fever behind his defense lines. FREDERICK W.
KAGAN, THE END OF THE OLD ORDER 501 (2006). Although this was a mask for Austrian troop
buildup to await enemy attack if it came, suppose an occupier uses forces in self-defense in ways
that have an incidental effect of violating health regulations but are reasonable under the circum-
stances. The right of self-defense would trump WHO rules. However, an occupier might use a
factorial approach like that suggested infra notes 156-95 and accompanying text to implement
self-defense to give partial or total effect to WHO rules.

89. See supra notes 55-57 and accompanying text.

90. U.N. Charter art. 103; see also supra notes 55-57, 71-73 and accompanying text.

91. See supra note 73.

92. An example from the law of naval warfare is the difference, sometimes subtle, between
the SAN REMO MANUAL and NWP 1-14M ANNOTATED, supra notes 8, 36. Although both deal
with LOAC rules for conflicts at sea, which had some resonance in the 2003-4 Iraq situation, an-
other occupation might raise more of these issues.

93. ICJ Statute, supra note 6, art. 38( 1 ) (d) (writings of scholars); BROWNLIE, supra note 6, at
691-92; OPPENHEIM'S INTERNATIONAL LAW, supra note 6, § 16; RESTATEMENT, supra note 6, §§
102, 103(2)(c), cmt. c & r.n. 1,2.

94. See supra notes 88-90 and accompanying text.

95. See generally BROWNLIE, supra note 6, at 510-12 (Jus cogens' content uncertain); T.O.
Elias, The Modern Law of Treaties 177-87 (1974) (same); Oppenheim's International
LAW, supra note 6, §§ 2, 642, 653 (same); McNAIR, supra note 57, at 214-15 (same);
RESTATEMENT, supra note 6, §§ 102 r.n. 6,323 cmt. b, 331(2), 338(2) (same); SHABTAI ROSENNE,
Developments in the Law of Treaties 1945-1986, at 281-88 (1989); The Charter of the

247

Occupation in Iraq: A Rubik's Cube Problem?

UNITED NATIONS, supra note 46, at 62 (dispute over self-determination as jus cogens); GRIGORII
I. TUNKIN, THEORY OF International Law 98 (William E. Butler trans., 1974) (all of the Char-
ter isjws cogens); Levan Alexidze, Legal Nature o/Jus Cogens in Contemporary Law, 172 RECUEIL
DES COURS D'ACADEMIE DE DROIT INTERNATIONAL [R.C.A.D.L] 219, 262-63 (1981); John N.
Hazard, Soviet Tactics in International Lawmaking, 7 DENVER JOURNAL OF INTERNATIONAL LAW
& POLICY 9, 25-29 (1977); Jimenez de Arechaga, International Law in the Last Third of a Century,
159 RECUEIL DES COURS D'ACADEMIE DE DROIT INTERNATIONAL [R.C.A.D.L] 9, 64-67 (1978);
Georg Schwarzenberger, International Jus Cogens?, 43 TEXAS LAW REVIEW 455 (1978) (jus
cogens non-existent for self-defense, any other purpose); Dinah Shelton, Normative Hierarchy in
International Law, 100 AMERICAN JOURNAL OF INTERNATIONAL LAW 291 (2006) (current analy-
sis); Mark Weisburd, The Emptiness of the Concept of Jus Cogens, As Illustrated by the War in
Bosnia- Herzegovina, 17 MICHIGAN JOURNAL OF INTERNATIONAL LAW 1 (1995) (criticizing the
concept). An International Law Commission (ILC) study acknowledged primacy of UN Charter
Article 103-based law and jus cogens but declined to list ^'ws cogens norms. International Law
Commission, Report on Its Fifty-Seventh Session (May 2-June 3 and July 11-August 5, 2005),
U.N. GAOR, 60th Sess., Supp. No. 10, at 221-25, U.N. Doc. A/60/10 (2005) (2005 ILC Rep.); see
also Michael J. Matheson, The Fifty-Seventh Session of the International Law Commission, 100
American Journal of International Law 416, 422 (2006).

96. Nuclear Weapons, supra note 8, 1996 I.C.J, at 245 ; Nicaragua Case, supra note 73, 1986
I.C.J, at 100-10 1 ; see also Report of the International Law Commission on the Work of its Fifty-third
Session, U.N. GAOR, 56th Sess., Supp. No. 10, art. 50 and Commentary fflf 1-5 at 247-49, U.N.
Doc. A/56/10 (2001) [hereinafter Draft Articles on Responsibility of States for Internationally
Wrongful Acts], reprinted in JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S
ARTICLES ON STATE RESPONSIBILITY 288-89 (2002) ("fundamental substantive obligations");
OPPENHEIM'S INTERNATIONAL LAW, supra note 6, § 2 (Art. 2(4) a fundamental norm);
RESTATEMENT, supra note 6, §§ 102, cmts. h, k; 905(2) & cmt. g (same). The Court is bound by
its sources rules, ICJ Statute, supra note 6, arts. 38, 59; maybe that is why it did not adopt jus
cogens for the issue. Armed Activities on the Territory of the Congo (Dem. Rep. of Congo v.
Rwanda), 2006 I.C.J. 3, 29-30, 49-50 (Feb. 3) (jurisdiction, admissibility of application) [herein-
after 2006 Congo Case] held a jus cogens violation allegation was not enough to deprive the Court
of jurisdiction, preliminarily stating that Convention on Prevention & Punishment of Crime of
Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention] represented erga
omnes obligations; see also Application of Convention on Prevention & Punishment of Crime of
Genocide (Bosn. & Herz. v. Serb. & Mont.), 2007 I.C.J. 191, f 161 (Feb. 26) [hereinafter Genocide
Case], citing 2006 Congo Case, supra. Vienna Convention, supra note 36, art. 53 (declaring jus
cogens standards), was among other treaties 2006 Congo Case, supra, cited. While also citing Nic-
aragua and Nuclear Weapons cases, supra notes 8, 73, Shelton, supra note 95, at 305-306 says the
2006 Congo Case is the first ICJ case to recognize jus cogens, but its holding seems not quite the
same as ruling on an issue and applying jus cogens. The case compromis included the Vienna
Convention, supra note 36, which raises jus cogens issues that the Court could have decided un-
der that law as well as traditional sources. ICJ Statute, supra note 6, arts. 36, 38, 59. Thus the issue
technically remains whether the Court will apply jus cogens as a separate trumping norm, or
whether it will apply jus cogens as stronger custom among competing primary sources — treaties,
custom, general principles — under id., art. 38(1). If the Court is true to its treaty-based rules, it
should opt for the latter analysis. However, it is clear that a case will find the issue before the
Court and it is reasonably clear that an appropriate case will find the Court declaring for jus
cogens, perhaps as trumping custom under id.

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George K. Walker

97. Carin Kahgan, Jus Cogens and the Inherent Right to Self-Defense, 3 ILSA JOURNAL OF
INTERNATIONAL & COMPARATIVE LAW 767, 823-27 (1997) (U.N. Charter art. 51 represents jus
cogens norm); hut see Schwarzenberger, supra note 95. Draft Articles on Responsibility of States
for Internationally Wrongful Acts, supra note 96, art. 21 & Commentary, at 177-80, reprinted in
CRAWFORD, supra note 96, at 166, resolves conflict between UN Charter Articles 2(4) and 51,
saying that no Article 2(4) issues arise if there is a lawful self-defense claim, appearing to give Ar-
ticle 5 1 the same status as Article 2(4). If Article 2(4) has jws cogens status, and Article 5 1 does not,
the result would be that a self-defense response, otherwise lawful under Charter or customary
law, would violate ajws cogens norm in id. art. 2(4).

98. Vienna Convention, supra note 36, pmbl., arts. 53, 64, 71; see also AUST, supra note 47, at
319-20; RESTATEMENT, supra note 6, §§ 331(2)(b) & cmts. e, f; 338(2) & cmt. c; SINCLAIR, supra
note 36, at 17-18, 218-26 (Vienna Convention, supra, principles considered progressive devel-
opment in 1984).

99. See generally Final Report, supra note 8; Symposium, supra note 8; Walker, supra note 8.

100. TIF, supra note 27, is valuable if the United States is a party; Multilateral Treaties, supra
note 36, may help if the UN Secretary-General is the depository; other treaties list other sites, and
still others may be found on unofficial websites, e.g., State Parties, supra note 4. Contacting the
US Department of State Office of the Legal Adviser (for US researchers) or a State's foreign min-
istry may also be useful, particularly if there are ongoing negotiations on what treaties are in
force.

101. See supra notes 12-34, 48 and accompanying text.

102. Vienna Convention, supra note 36, art. 60(5). See generally Draft Articles on Responsi-
bility of States for Internationally Wrongful Acts, supra note 96, art. 40 & Commentary ^ 8, at
333, 336, reprinted in CRAWFORD, supra note 96, at 288, 290; AUST, supra note 47, at 295 (al-
though negotiators had 1949 Conventions, supra notes 2, 3, in mind, Article 60[5] "would apply
equally to other conventions of a humanitarian character, or to human rights treaties, since they
create rights intended to protect individuals irrespective of the conduct of the parties to each
other"); BROWNLIE, supra note 6, at 622-23; OPPENHEIM'S INTERNATIONAL LAW, supra note 6, §
649, at 1302; RESTATEMENT, supra note 6, § 335, cmt. c; SINCLAIR, supra note 36, at 190; Louise
Doswald-Beck & Sylvain Vite, International Humanitarian Law and Human Rights Law, 293
INTERNATIONAL REVIEW OF THE RED CROSS 94 (1993); Crawford, Introduction, in CRAWFORD,
supra note 96, at 41 (State cannot disregard human rights obligations because of another State's
breach; no Vienna Convention, supra note 36, citation for the point); David Weissbrodt & Peggy
L. Hicks, Implementation of Human Rights and Humanitarian Law in Situations of Armed
Conflict, 293 Int'l Rev. Red Cross 120 (1993). AUST, supra, seems to be the only commentator
applying Article 60(5) to human rights treaties; see also Crawford, supra. Preparatory works
discussing other sources, supra, and Article 60(5)'s text ("treaties of a humanitarian charac-
ter"), as distinguished from "treaties of a human rights character," which is not the Article
60(5) language, suggest a misstating of the law if distinctions between humanitarian and hu-
man rights law remain.

103. Vienna Convention, supra note 36, art. 60; Gabcikovo-Nagymoros Project (Hung. v.
Slovk.), 1997 I.C.J. 7, 39, 64 (Sept. 25) (Article 60 customary law) [hereinafter Project Case]; Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West Af-
rica) Notwithstanding Security Council Resolution 276, Advisory Opinion, 1971 I.CJ. 16, 47
(June 21) (Article 60(3) customary law); Article 25 of Harvard Draft Convention on the Law of
Treaties 27, 29 AMERICAN JOURNAL OF INTERNATIONAL LAW 657, 662, 1077-96 (Supp. 1935)
[hereinafter Harvard Convention]; Draft Articles on Responsibility on States for Internationally
Wrongful Acts, supra note 96, art. 42 & Commentary, at 294-30 1 , reprinted in CRAWFORD, supra

249

Occupation in Iraq: A Rubik's Cube Problem?

note 96, at 255-60; AUST, supra note 47, at 293-96; BROWNLIE, supra note 6, at 622-23;
OPPENHEIM'S INTERNATIONAL LAW, supra note 6, § 649; MCNAIR, supra note 57, ch. 36;
RESTATEMENT, supra note 6, § 335; SINCLAIR, supra note 36, at 188-90; Jimenez de Arechaga, supra
note 95, at 79-85.

104. 2005 Congo Case, supra note 8, 2005 I.C.J, at 60 (occupied territory); Wall Case, supra
note 8, 2004 I.C.J, at 173-77 (occupied territory) (adv. op.); Nuclear Weapons, supra note 8,

1996 I.C.J, at 239 (armed conflict) (adv. op); see also DlNSTEIN, supra note 6, at 69-71 (human
rights apply to persons within a State's territory and subject to its authority). Id. 85-88 adds,
however, that if the LOAC and human rights law conflict, LOAC as lex specialis governs. See also
Wall Case, supra note 8, 2004 I.C.J, at 177-81 (human rights law also applies to areas subject to a
State's jurisdiction but outside its sovereign territory, but possibility remains for applying LOAC
as lex specialis); ARAI-TAKAHASHI, supra note 6, at 414-25; BENVENISTI, supra note 9, at 187-89.
UK MANUAL, supra note 8, If 1 1.8 states that the LOAC applies during occupations, but in para-
graph in 1 1.19 declares that an occupier must enforce applicable human rights law and that if an
occupier is a European Convention for Protection of Human Rights & Fundamental Freedoms,
Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention], party the Convention as
amended may apply in occupied territories. UK MANUAL, supra note 8, 1 1 1 .60 adds that Univer-
sal Declaration of Human Rights, supra note 73, rules must also apply during Fourth Conven-
tion, supra note 2, Article 64-governed proceedings. The Declaration may fare differently in US
courts. See supra note 73.

105. DlNSTEIN, supra note 6, at 81-85.

106. Vienna Convention, supra note 36, arts. 61-62; see also Project Case, supra note 103,

1997 I.C.J, at 39 (Articles 61, 62 customary norms); Fisheries Jurisdiction (U.K. v. Ice.), 1973
I.C.J. 3, 18 (Feb. 2) ( same for Article 62 );AUST, supra note 47, at 296-300; BROWNLIE, supra note
6, at 623-25; ARIE E. DAVID, THE STRATEGY OF TREATY TERMINATION ch. 1 (1975); ELIAS, supra
note 95, at 119-30; Harvard Convention, supra note 103, art. 28, at 1096-1126 (rebus sic
stantibus); OPPENHEIM'S INTERNATIONAL LAW, supra note 6, §§ 650-51; RESTATEMENT, supra
note 6, § 336; SINCLAIR, supra note 36, at 190-96; Report of the International Law Commission
on the Work of Its Eighteenth Session, 21 U.N. GAOR, Supp. No. 9, U.N. Doc. A/6309/Rev. 1
(1966), reprinted in 2 (1966) YEAR BOOK OF THE INTERNATIONAL LAW COMMISSION 211, U.N.
Doc. A/CN.4/Ser.A7 1966/ Add. 1, at 169, 255-58 [hereinafter 1966 ILC Rep.]; Gyorgy Haraszti,
Treaties and the Fundamental Change of Circumstances, 146 RECUEIL DES COURS D'ACADEMIE DE
DROIT INTERNATIONAL [R.C.A.D.I.] 1 (1975); Robert D. Kearney & Robert E. Dalton, The
Treaty on Treaties, 64 AMERICAN JOURNAL OF INTERNATIONAL LAW 535, 541-44 (1970) (Vienna
Convention, supra note 36, drafting negotiations); Oliver J. Lissitzyn, Treaties and Changed Cir-
cumstances, AMERICAN JOURNAL OF INTERNATIONAL LAW 895 (1967); Walker, supra note 8, at
65-68 (1993). MCNAIR, supra note 57, at 685 does not recognize a separate impossibility rule;
some of his examples are impossibility situations and might be cited as such.

107. Vienna Convention, supra note 36, pmbl. (". . . pacta sunt servanda rule [is] universally
recognized"), art. 26; see also U.N. Charter pmbl. ("respect for obligations arising from trea-
ties"); Project Case, supra note 103, ICJ at 78-79 ("What is required in the present case by . . .
pacta sunt servanda, as reflected in Article 26 of the [Vienna Convention, supra] is that the Parties
find an agreed solution within the cooperative context of the Treaty."); AUST, supra note 47, at
144-45, 187; BROWNLIE, supra note 6, at 591-92 (general principle of law); Harvard Convention,
supra note 103, art. 20, at 977 (rule of law); 1966 ILC Rep., supra note 106, at 211 (pacta sunt
servanda a rule of law); OPPENHEIM'S INTERNATIONAL LAW, supra note 6, §§ 12, at 38, 584 (pacta
sunt servanda a customary rule); HANS KELSEN, PURE THEORY OF LAW 214-17 (Max Knight
trans., 2d rev. ed. 1967) (pacta sunt servanda comes from custom); MCNAIR, supra note 57, at

250

George K. Walker

465, 493; RESTATEMENT, supra note 6, § 321 & cmt. a (pacta sunt servanda at core of law of inter-
national agreements and is "perhaps the most important principle of international law"); THE
Charter of the United Nations, supra note 46, at 35-36, 92-93, 96-97; Sinclair, supra note
36, at 83-84, 119 (no suggestion pacta sunt servanda a fundamental norm); Kearney & Dalton,
supra note 106, at 516-17 (Vienna Convention, supra art. 26 negotiations analysis).

108. Vienna Convention, supra note 36, art. 30; AUST, supra note 47, ch. 12; BROWNLIE, supra
note 6, at 629-30; Harvard Convention, supra note 103, art. 22, at 661-62, 1009-29;
Restatement, supra note 6, § 323.

109. E.g., ICCPR, supra note 45, art. 4; see also Nuclear Weapons, supra note 8, 1996 I.C.J, at
239 (adv. op.); INSTITUTE OF INTERNATIONAL LAW, supra note 47, art. 4; INSTITUTE FOR
Human Rights, supra note 47, art. 18; Subatara Roy Chowdhury, Rule of Law in a State
OF EMERGENCY 12-13, 22-29, 59, 121-25, 210-1 1 (1989), analyzing International Law Associa-
tion Minimum Standards of Human Rights Norms in a State of Emergency, 1984; Joan
Fitzpatrick, Protection Against Abuse of the Concept of "Emergency," in HUMAN RIGHTS: AN
AGENDA FOR THE NEXT CENTURY 203 (Louis Henkin & John Lawrence Hargrove eds., 1994);
Louis Henkin, International Human Rights as "Rights," 1 CARDOZO LAW REVIEW 446-47 (1979).
Some human rights treaties apply in peace and war, e.g., Convention Against Torture & Other
Cruel, Inhuman or Degrading Treatment or Punishment art. 2(2), Dec. 18, 1984, 1468 U.N.T.S.
85 [hereinafter Torture Convention]; Genocide Convention, supra note 96, art. 1, whose terms
are at least customary law. Reservations to Convention on Prevention & Punishment of Crime of
Genocide, Advisory Opinion, 1951 I.C.J. 15, 23 (May 28); DlNSTEIN, supra note 6, at 147; supra
note 96 and accompanying text. Treaties can provide for armed conflict, e.g., Convention on
Rights of the Child arts. 38-39, Nov. 20, 1989, 1577 U.N.T.S. 3. Others have no derogation
clauses, e.g., International Covenant on Economic, Social & Cultural Rights, Dec. 16, 1966, 993
U.N.T.S. 3. Here law of treaties rules for armed conflict may apply. See infra note 118 and accom-
panying text.

110. DlNSTEIN, supra note 6, at 71-74 (two regional human rights treaties, e.g., European
Convention, supra note 104, exclude application during armed conflict).

111. ICCPR, supra note 45, art. 4(2), listing Articles 6 (right to life, death penalty standards), 7
(prohibition against torture), 8(1) (prohibition against slavery), 8(2) (prohibition against servi-
tude), 1 1 (imprisonment for contract breach barred), 15 (ex post facto criminal laws barred), 16
(recognition as a person before the law), 18 (freedom of thought, conscience, religion); see also
ARAI-TAKAHASHI, supra note 6, ch. 19 ("expanding catalogue of human rights of non-derogable
nature"); DlNSTEIN, supra note 6, at 74-79 (other explicit, implicit limitations).

112. See supra note 108 and accompanying text.

113. See supra note 109.

1 14. This is so for the Genocide and Torture Conventions, supra notes 96, 109. There are oth-
ers that lack derogation clauses. See supra note 109.

115. The LOS treaties except the LOAC from its rules through its "other rules" clauses. Before
these treaties went into force, custom governed the LOS; alongside this custom, the LOAC in
treaties, custom and general principles applied during armed conflict. See infra notes 118-19 and
accompanying text.

116. DlNSTEIN, supra note 6, at 85-88; see also supra note 104 and accompanying text. George
K. Walker, The 2006 Conflict in Lebanon, or What Are the Armed Conflict Rules When Legal Princi-
ples Collide?, ch. 15, in Enemy Combatants, Terrorism, and Armed Conflict Law (David
K. Linnan ed., 2008) proposes a factorial analysis for LOAC-human rights law and similar
clashes based on private international law (conflict of laws) analysis; see also ARAI-TAKAHASHI,
supra note 6, chs. 17-18, 24 for similar analysis; FERNANDO R. TESON, HUMANITARIAN

251

Occupation in Iraq: A Rubik's Cube Problem?

INTERVENTION: AN INQUIRY INTO LAW AND MORALITY (2d ed. 1997); John Norton Moore, To-
ward an Applied Theory for the Regulation of Intervention, in MOORE, LAW AND CIVIL WAR IN
THE MODERN WORLD ch. 1 (1974) and sources cited in George K. Walker, Principles for Collective
Humanitarian Intervention to Succor Other Countries' Imperiled Indigenous Nationals, 18
American University International Law Review 35, 56 n.l 1 1 (2002) (Kosovo), published
in part as Walker, Application of the Law of Armed Conflict During Operation Allied Force: Mari-
time Interdiction and Prisoner of War Issues, in LEGAL AND ETHICAL LESSONS OF NATO'S
KOSOVO CAMPAIGN 85 (Andru E. Wall ed., 2002) (Vol. 78, US Naval War College International
Law Studies) (factorial approaches for intervention).

117. Under the LOAC occupation begins when enemy territory is placed under hostile forces'
authority. Hague II, supra note 9, Regulations, art. 42; Hague IV, supra note 7, Regulations, art.
42. Occupation ends a year after military operations end under Fourth Convention, supra note 2,
art. 6. Protocol I, supra note 13, art. 3 declares that occupation law standards continue until oc-
cupation ends, which could be more than a year. See also ARAI-TAKAHASHI, supra note 6, at 16-
24; Bothe, supra note 81, at 59; DlNSTEIN, supra note 6, at 42-45, 270-73; 4 PlCTET, supra note
11, at 62-63; COMMENTARY ON THE ADDITIONAL PROTOCOLS, supra note 66, at 68. Although
Nazi Germany disappeared as a sovereign State at World War II's end, States like Japan and Italy
retained sovereignty and continued in occupation status after the war. The debellatio doctrine,
i.e., where a State disappears due to total subjugation in war, has been criticized as a principle of
contemporary international law. Compare BENVENISTI, supra note 9, at 92-96, 183 (debellatio
has no place in current international law) and ARAI-TAKAHASHI, supra at 34-40 (German sover-
eignty survived; argument against applying debellatio) with DlNSTEIN, supra note 6, at 2, 32-33
(debellatio doctrine remains viable).

118. 5 Green H. Hackworth, Digest of International Law § 513, at 383-84 (1943);
Harvard Convention, supra note 103, art. 35(a), at 664, 1183-1204; Institut de Droit Interna-
tional, The Effects of Armed Conflicts on Treaties (Resolution of the 1985 Helsinki Session) arts. 3-
4, 61 (2) ANNUAIRE 278, 280 (1986); Institut de Droit International, Regulations Regarding the Ef-
fect of War on Treaties (Approved at the 1912 Christiania Session) art. 5, reprinted in 7 AMERICAN
JOURNAL OF INTERNATIONAL LAW 153, 154 (1913); AUST, supra note 47, at 308-1 1 (ILC's "ostrich-
like" approach that a provision was unnecessary for Vienna Convention, supra note 36);
BROWNLIE, supra note 6, at 620-21 (ongoing ILC work on the subject); OPPENHEIM'S
INTERNATIONAL LAW, supra note 6, § 655; MCNAIR, supra note 57, ch. 43; RESTATEMENT, supra
note 6, § 335, cmt. c; G.G. Fitzmaurice, The Judicial Clauses of the Peace Treaties, 73 RECUEILDES
COURS D'ACADEMIE DE DROIT INTERNATIONAL [R.C.A.D.I.] 255, 312 (1948); Cecil J.B. Hurst,
The Effect of War on Treaties, 2 BRITISH YEARBOOK OF INTERNATIONAL LAW 37, 42 (1921); see
also Vienna Convention, supra note 36, art. 60(5); supra notes 102-5 and accompanying text.

119. The LOS conventions' "other rules of international law" clauses are an example. See LOS
Convention, supra note 57, pmbl., arts. 2(3) (territorial sea); 19, 21, 31 (territorial sea innocent
passage); 34(2) (straits transit passage); 52(1) (archipelagic sea lanes passage; incorporation by
reference of Articles 19,21, 31); 58(1), 58(3) (exclusive economic zone, or EEZ); 78 (continental
shelf; coastal State rights do not affect superjacent waters, i.e., territorial or high seas; coastal
State cannot infringe or unjustifiably interfere with "navigation and other rights and freedoms of
other States as provided in this Convention"); 87( 1 ) (high seas); 138 (the Area); 293 (court or tri-
bunal having jurisdiction for settling disputes must apply LOS Convention and "other rules of
international law" not incompatible with the LOS Convention); 303(4) (archeological, historical
objects found at sea, "other international agreements and rules of international law regarding the
protection of objects of an archeological and historical nature"); Annex III, Article 21(1); Con-
vention on the High Seas art. 2, Apr. 28, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 92 [hereinafter High

252

George K. Walker

Seas Convention]; Convention on the Territorial Sea and Contiguous Zone arts. 1(2), 22(2),
Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 205 [hereinafter Territorial Sea Convention]. Al-
though the other 1958 LOS treaties do not have other-rules clauses, they declare that waters
within their competence are high seas areas; the High Seas Convention, supra, art. 2 "other rules"
clause applies. See Convention on the C1995). For a short analysis through its 2005
session, see generally Matheson, supra note 95, 418-19; Swaine, supra. For counterpoint on
Swaine's analysis, see Laurence R. Heifer, Response: Not Fully Committed? Reservations, Risk, and
Treaty Design, 31 YALE JOURNAL OF INTERNATIONAL LAW 367 (2006). The Commission contin-
ues its work. See generally Main Pellet, Special Rapporteur, International Law Commission, Elev-
enth report on reservations to treaties, U.N. Doc. A/CN.4/574 (Aug. 10, 2006).

Human rights law is relevant for occupations. See supra notes 43-49, 104-5, infra note 152
and accompanying text.

138. The law on these is vague. George K. Walker, Professionals' Definitions and States' Inter-
pretative Declarations (Understandings, Statements or Declarations) for the 1982 Law of the Sea
Convention, 21 EMORY INTERNATIONAL LAW REVIEW 461 (2007) offers solutions.

139. Vienna Convention, supra note 36, does not cover desuetude or obsolescence; its draft-
ers considered these exceptions to performance fell under principles of parties' conduct to aban-
don a treaty, id., art. 54(b). OPPENHEIM'S INTERNATIONAL LAW, supra note 6, § 646, at 1247; see

255

Occupation in Iraq: A Rubik's Cube Problem?

also AUST, supra note 47, at 306-7; McNAIR, supra note 57, at 516-18; SINCLAIR, supra note 36, at
163-64 (drafters' explanation not entirely satisfactory); Richard Plender, The Role of Consent in
the Termination of Treaties, 57 BRITISH YEARBOOK OF INTERNATIONAL LAW 133, 138-45 (1986).
Desuetude claimants must take into account the pacta sunt servanda principle. Vienna Conven-
tion, supra note 36, art. 26; see also supra note 107 and accompanying text. Some LOAC treaties
maybe in desuetude. See, e.g., SAN REMO MANUAL, supra note 36, % 136 cmt. 136.2 (Convention
Relating to Status of Enemy Merchant Ships at Outbreak of Hostilities, Oct. 18, 1907, 205
Consol. T.S. 305, in desuetude).

140. See Committee on Formation of Customary (General) International Law, Final Report:
Statement of Principles Applicable to the Formation of General Customary International Law, in
Final Report, supra note 8, at 712, 738-40; BROWNLIE, supra note 6, at 11; OPPENHEIM'S
International Law, supra note 6, § 10, at 29; NWP 1-14M Annotated, supra note 8, u 5.4.1;
RESTATEMENT, supra note 6, § 102, cmts. b, d; Michael Akehurst, Custom as a Source of Law, 47
British Yearbook of International Law l, 23-27; Waldock, supra note 57, at 49-52; 1
Customary International Humanitarian Law xxxi-xlii (Marie Henckaerts & Louise
Doswald-Beck eds., 2005) (no view on persistent objector doctrine, citing the doubts of Maurice
H. Mendelson, The Formation of Customary International Law, 272 RECUEIL DES COURS
D'ACADEMIE DE DROIT INTERNATIONAL [R.C.A.D.I.] 227-44 [1998]); but see also Charney, su-
pra note 57, at 538-41 (persistent objector rule's existence open to serious doubt). J. ASHLEY
ROACH & ROBERT W. SMITH, UNITED STATES RESPONSES TO EXCESSIVE MARITIME CLAIMS (2d
ed. 1996), an exhaustive study of LOS claims protests, demonstrate that the rule is alive and well
for LOS issues. Problems with studies of States' objections are that many lie buried in chancellery
files because they seem to have little public research value when filed; they may be subject to na-
tional security concerns, cf. RESTATEMENT, supra note 6, § 312 r.n.5; there may be time delay
rules barring publication until after a period of years; or States may have selective or non-publi-
cation policies like courts' unpublished opinion rules.

141. This was the situation in Austria and Germany after World War II; these countries were
divided into four occupation zones. Germany had annexed Austria in 1938; the Third Reich
ceased to exist as a State with surrender of German armed forces in May 1945.

142. Except perhaps Kuwait, which may have signed a bilateral self-defense agreement (up to
now not published) with the United States, countries involved in the 1 990-9 1 and 2003 Iraq con-
flicts were coalition partners. George K. Walker, The Crisis Over Kuwait, August 1990-February
1991,1991 Duke Journal of Comparative & International Law 25, 30.

143. This has been the Afghanistan situation after 9/11; these have been NATO operations
with separate US zones, although there has been no formal occupation. See generally Carcano,
supra note 69, at 58; Walker, supra note 29, at 498-500 (participation under NATO Treaty, supra
note 25; Rio Pact, supra note 26; Security Agreement (ANZUS Pact), Sept. 1, 1951, 3 U.S.T. 3420,
131 U.N.T.S. 83; bilateral agreements like Treaty of Mutual Cooperation & Security, with Agreed
Minute & Exchange of Notes, Japan-U.S., Jan. 19, 1960, 11 U.S.T. 1632, 373 U.N.T.S. 179. By
2009 there was debate on whether it had become a non- international armed conflict or remained
an international conflict. ARAI-TAKAHASHI, supra note 6, at 23-24.

144. Local law refers to a jurisdiction's law exclusive of its conflict of laws, or private interna-
tional law, principles. See supra note 63.

145. This can range from general criminal law and different punishments for crime among
these subdivisions to local government traffic laws and the like.

146. E.g., family law, contracts, torts, property.

147. Protocol I, supra note 13; Protocol II, supra note 66, governing conflicts like civil wars,
for which the law of belligerent occupation does not apply unless a State fighting insurgents

256

George K. Walker

recognizes their belligerency. Then the Fourth Convention, supra note 2, through its Common
Article 3, applies. If a State is a party to Protocol I its Article 1(4) applies to self-determination
conflicts. DINSTEIN, supra note 6, at 34; see also 4 PlCTET, supra note 11, at 25-44.

148. State Parties, supra note 4, lists 164 States as Protocol II, supra note 66, parties, and 168 as
Protocol I, supra note 13, parties; many are US alliance or coalition partners. State Parties, supra
note 4, lists 194 States as 1949 Geneva Conventions parties.

149. See, e.g., supra note 48 and accompanying text.

150. Protocol I, supra note 13, arts. 1, 3, 49(4), 68, 72; see also BOTHE ET AL., supra note 47, at
37-52, 57-60, 291, 428-29, 441-45; COMMENTARY ON THE ADDITIONAL PROTOCOLS, supra
note 66, at 34-56, 66-69, 606-8, 809-10, 841-44.

151. Protocol I, supra note 13, arts. 3 (extending Fourth Convention, supra note 2, art. 6,
protections from a year after general close of military operations until occupation ends); 5(4)
(parties to conflict must approve Protecting Power, amending Fourth Convention, supra note 2,
art. 11); 43-44 (altering Contracting Parties in Third Convention, supra note 3, art. 4(A)(2));
45(3) (greater protections for those taking part in hostilities not entitled to prisoner of war status,
unless accused of espionage, extension of Fourth Convention, supra note 2, art. 5); 73 (prewar
refugees, amending Fourth Convention, supra note 2, art. 4); see also DINSTEIN, supra note 6, at
7, 64-65, 96, 182, 281; 4 PlCTET, supra note 1 1, at 45-64, 99-1 13.

1 52. Torture Convention, supra note 109. As Multilateral Treaties, supra note 36, at IV-9 sug-
gests for this treaty in listing 146 parties, all States are not parties to every human rights treaty; the
issue is whether custom or general principles bind non-party States. Beneath this general treaty
web lie regional human rights treaties that must be consulted if States (occupier and occupied
States alike) are parties. The issue here, like general treaties, is whether a regional treaty applies
under law of treaties rules for territorial application. Vienna Convention, supra note 36, art. 29;
AUST, supra note 47, at 202-5, 439-40; OPPENHEIM'S INTERNATIONAL LAW, supra note 6, § 621;
MCNAIR, supra note 57, at 116-17; RESTATEMENT, supra note 6, § 322(b); SINCLAIR, supra note
36, at 87-92. If territorial rules do not apply, a question is whether a treaty applies to the person
of one accused of a violation, under a treaty to which his/her country is a party, customary law,
general principles of law or jus cogens standards. See, e.g., ICCPR, supra note 45, art. 2; DINSTEIN,
supra note 6, at 82, 147; OPPENHEIM'S INTERNATIONAL LAW, supra note 6, § 622; RESTATEMENT,
supra note 6, § 322 r.n.3. Treaty succession principles may also govern territory rules; see Final
Report, supra note 8; Symposium, supra note 8; Walker, supra note 8.

153. The same is true for the Genocide Convention, supra note 96. RESTATEMENT, supra note
6, §§ 702(a), 702(d) & cmts. a-b, d, g, o, r.n.1-3, 5; see also supra notes 95-98 and accompanying
text.

154. See supra note 57 and accompanying text.

1 55. There may be similar issues under other Charter law or the law of IGOs and perhaps soft
law norms derived from them or NGOs. See supra notes 55-57, 71-77, 82-94 and accompanying
text.

156. Cf, e.g., NWP 1-14M ANNOTATED, supra note 8, ffif 3.1 1.5.1, 4.3.2.2, 5.5; see also BRADD C.
Hayes, Naval Rules of Engagement: Management Tools for Crisis (1989); D.P.
O'CONNELL, THE INFLUENCE OF LAW ON SEA POWER 169-80 (1975); Christopher Craig, Fight-
ing by the Rules, NAVAL WAR COLLEGE REVIEW, May-June 1984, at 23 (UK Wartime ROE, 1982
Falklands/Malvinas War); James C. Duncan, The Commander's Role in Developing Rules of En-
gagement, NAVAL WAR COLLEGE REVIEW, Summer 1999, at 76; Richard J. Grunawalt, The
JCS Standing Rules of Engagement: A Judge Advocate's Primer, 42 AIR FORCE LAW REVIEW 245
(1997); J. Ashley Roach, Rules of Engagement, NAVAL WAR COLLEGE REVIEW, Jan.-Feb. 1983,
at 46, reprinted in 14 SYRACUSE JOURNAL OF INTERNATIONAL LAW AND COMMERCE 865 (1988);

257

Occupation in Iraq: A Rubik's Cube Problem?

Ivan A. Shearer, Rules of Engagement and the Implementation of the Law of Naval Warfare, id.
at 767.

157. Neil Brown, Issues Arising from Coalition Operations: An Operational Lawyer's Perspec-
tive, in International Law and Military Operations 225, 228-31, 233 (Michael D. Carsten
ed., 2008) (Vol. 84, Naval War College International Law Studies); Vickie McConachie, Coali-
tion Operations: A Compromise or an Accommodation, in id., ch. 12; Dale G. Stephens, Coalition
Warfare: Challenges and Opportunities, in THE LAW OF WAR IN THE 2 1ST CENTURY: WEAPONRY
AND THE USE OF FORCE 245 (Anthony M. Helm ed., 2006) (Vol. 82, Naval War College Interna-
tional Law Studies).

158. See, e.g., Charles Dunlap, Legal Issues in Coalition Warfare: A US Perspective, in THE LAW
OF WAR IN THE 2 1ST CENTURY, supra note 157, at 221, 224 (possibility of different interpreta-
tions by coalition partners); McConachie, supra note 157, at 242-43 (East Timor); Stephen A.
Rose, Crafting the Rules of Engagement for Haiti, in THE LAW OF MILITARY OPERATIONS: LIBER
AMICORUM PROFESSOR JACK GRUNAWALT 225 (Michael N. Schmitt ed., 1998) (Vol. 72, Naval
War College International Law Studies). The International Institute of Humanitarian Law will
publish draft multinational ROE in the near future.

159. Cf NWP 1-14M ANNOTATED, supra note 8, % 3.1 1.5.1 (US Coast Guard, Department of
Defense units performing law enforcement duties).

160. Roach, supra note 156.

161. See supra notes 14-34, 50-54, 71-77, 82-98, 134-55 and accompanying text.

162. Restatement, supra note 6.

163. Restatement (Second), supra note 63.

164. WALKER, supra note 73, ch. 6 (environmental issues during armed conflict); Walker, The
2006 Conflict in Lebanon, supra note 1 16 (Israel- Lebanon-Hezbollah, 2006); Walker, Principles,
supra note 1 16 (Kosovo).

165. "Conflict of laws" in US law instead of private international law or transnational law, ICJ
Judge Philip C. Jessup's phrase for transactions and situations crossing national borders, results
from the scholarship of US Supreme Court Justice Joseph Story. See PHILIP C. JESSUP,
Transnational Law (1956); Joseph Story, Commentaries on the Conflict of Laws
(1834).

166. "Public international law," as contrasted with private international law or conflict of
laws, is a term used throughout much of the world; in US law the field is known as international
law. Cf. the title to BROWNLIE, supra note 6; but see the title to OPPENHEIM'S INTERNATIONAL
LAW, supra note 6, representing older UK usage. Conflict of laws issues seldom arose in English
courts before the end of the last century. SCOLES ET AL., supra note 63, §§ 1.1, 2.1.

167. Some UN law and jws cogens if the latter applies. RESTATEMENT (SECOND), supra note 63,
§ 6(1) gives primacy to statutes governing conflict of laws over common-law factorial analysis,
an analogy to supremacy of Charter Articles 103 and 51 (the right of self-defense) and Security
Council decisions under Articles 25, 48 and 94 over treaties. See supra notes 55-57 and accompa-
nying text. In US courts state statutory or common-law conflict of laws rules must satisfy the
Constitution's due process and full faith and credit provisions. Phillips Petrol. Co. v. Shutts, 472
U.S. 797, 816-23 (1985). This is another higher law analogy for Charter law supremacy on self-de-
fense and Council decisions in public international law.

168. E.g., Jane G. Dalton, George K. Walker's The Tanker War, 1980-88: Law and Policy, 96
AMERICAN JOURNAL OF INTERNATIONAL LAW 278 (2002) (book review).

169. Laker Airways v. Sabena, Belgian World Airways, 73 1 F.2d 909, 948-53 (D.C. Cir. 1984);
Boudreau v. Baughman, 368 S.E.2d 849, 853-56 (N.C. 1988); SCOLES ET AL., supra note 63, §§
2. 19-2.24; WALKER, supra note 73, at 542. Other multifactor analyses have been criticized. See, e.g.,

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George K. Walker

John Norton Moore, Prolegomenon to the Jurisprudence ofMyres S. McDougal and Harold Lasswell,
54 VIRGINIA LAW REVIEW 662 (1968), supporting the law-science-policy (LSP) decision-making
approach Myres McDougal advocated but noting criticisms. LSP LOAC analysis, MCDOUGAL &
FELICIANO, supra note 19, is still helpful. MYRES S. MCDOUGAL ET AL., HUMAN RIGHTS AND
World Public Order (1980) uses the analysis.

1 70. No one expects commanders, or an individual sailor, airman, soldier, Marine, or civilian
supervisor, to seek legal advice on what to do in anticipatory or many reactive self-defense situa-
tions; here ROE give basic rules and declare the fundamental law of self-defense, and that is
enough, if commanders act or acted on facts they know, or reasonably should have known. See,
e.g., Walker, The 2006 Conflict in Lebanon, supra note 1 16, at 258-59, 269.

171. Fourth Convention, supra note 2, arts. 2, 6; Hague II, supra note 9, Regulations, arts. 42-
56; Hague IV, supra note 7, Regulations, arts. 42-56; ARAI-TAKAHASHI, supra note 6, at 16;
BENVENISTI, supra note 9, ch. 2; DlNSTEIN, supra note 6, ch. 2; FM 27-10, supra note 12, Iflj 351-
61; 4 PICTET, supra note 1 1, at 17-25, 58-64; Gasser, supra note 13, at 240-46.

172. See supra notes 55-57 and accompanying text.

173. LSP analysis has been concerned with public order, i.e., public international law, issues,
as titles to MCDOUGAL & FELICIANO and MCDOUGAL ET AL., supra notes 19, 169, suggest. See
also supra note 169 and accompanying text.

174. If cargo loss claims come from voyages to or from US ports, US courts must apply US
law, i.e., the Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300-15 (2006), modifying International
Convention for Unification of Certain Rules Relating to Bills of Lading, Aug. 25, 1924, 51 Stat.
233, 1 20 L.N.T.S. 1 55 [hereinafter Brussels Convention] . Since the United States is not a party to,
e.g., Protocols, Feb. 23, 1968, 1412 U.N.T.S. 121, andDec. 21, 1979, 1412 U.N.T.S. 121, to amend
the Brussels Convention or the superseding United Nations Convention on Carriage of Goods
by Sea, Mar. 31, 1978, 1695 U.N.T.S. 3, shipments to and from US ports are not governed by their
terms. US courts might apply other treaty standards if litigants are nationals of States that are
parties to these treaties, however.

175. See supra notes 82-87 and accompanying text.

176. Fourth Convention, supra note 2, art. 64; Hague II, supra note 9, Regulations, art. 43;
Hague IV, supra note 7, Regulations, art. 43; see also 4 PICTET, supra note 1 1, at 335. Although the
thrust of the Fourth Convention, supra note 2, is protecting accuseds in penal legislation — see id.
arts. 64-78 — DlNSTEIN, supra note 6, at 128-29; 4 PICTET, supra at 335-69; UK MANUAL, supra
note 8, fflf 1 1.56-1 1.74 say Article 64 applies equally to private law claims. Even if Articles 64-78
would be held to apply only to criminal law, the first paragraph of Hague IV, supra note 7, Regu-
lations, art. 23(h) declares that it is "especially forbidden . . . [t]o declare abolished, suspended, or
inadmissible in a court of law the rights and actions of the nationals of the hostile party." Article
23(h) applies during occupations. DlNSTEIN, supra at 135. The Article 23(h) prohibition is a cus-
tomary norm. See supra notes 7-9 and accompanying text. There is no comparable Hague II, supra
note 9, provision; see supra notes 12-13, 40 and accompanying text.

1 77. Conflict of laws, or private international law, is governed by lex fori, the law of the forum;
it is "procedural" in nature, as distinguished from the "substantive" law of, e.g., contracts or
torts.

178. See supra note 173 and accompanying text.

179. See infra note 188 and accompanying text.

180. The American Law Institute (ALI) is a non-profit corporation in Philadelphia. It elects
US state and federal judges, academics and lawyers as members; there are ex officio members, e.g.,
US law school deans. The Institute works with the American Bar Association and the National
Conference of Commissioners on Uniform State Laws on law-improvement projects. None of

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Occupation in Iraq: A Rubik's Cube Problem?

these organizations is government-affiliated or sponsored. No government or court in the
United States must accept and apply any standard these organizations publish unless, of course,
higher authority, e.g., legislation, declares a restatement provision is the rule to be followed.

181. Phillips, supra note 167, 472 U.S. at 816; SCOLES ET AL., supra note 63, § 3.23. An analogy
for this analysis is, e.g., if US national law and an international standard are the same. This occurs
if US statutes implement a treaty without modifying treaty standards, e.g., Hamdan, supra note
20, 548 U.S. at 627-33 (UCMJ, supra note 59, art. 21, 10 U.S.C. § 821 [2006] incorporates Third
Convention, supra note 3, art. 3, rules without modification). It can also happen if courts agree
that US judge-made law is the same as customary international law, e.g., The Pacquete Habana,
175 U.S. 677, 686-700 (1900), whose rules for wartime capture of inshore fishing boats are the
same in international law, Convention No. XI Relative to Certain Restrictions with Regard to the
Exercise of the Right of Capture in Naval War art. 3, Oct. 18, 1907, 36 Stat. 2396. Habana general
customary international law and scholarly research rules also remain the same for US courts.
Compare Habana, 175 U.S. at 700 with Sosa, supra note 73, 542 U.S. at 734.

182. See, e.g., RESTATEMENT (SECOND), supra note 63, §§ 6(1), 145, 187; see also SCOLES ET
AL., supra note 63, §§ 2.14, 17.24, 18.8.

183. RESTATEMENT (SECOND), supra note 63, §§ 6, 145, 187-88. The Restatements drafters in-
tended that the section 6 policies would be initially applied; some courts, if no statute is involved,
examine the special provisions (e.g., id. §§ 145, 187-88) first, with review of section 6 factors
next, or not at all. SCOLES ET AL., supra note 63, §§ 2.14, 2.19. The Restatements' black-letter sec-
tion and Comment materials represent the ALI's official position. Reporters' notes after sections
are not the ALI position but explain and amplify sections and Comments. See also supra note 180
and accompanying text.

184. U.N. Charter art. 103; see also supra notes 55-57 and accompanying text.

185. RESTATEMENT, supra note 6, § 102 & cmts. g, h, k; see also supra notes 55-57, 71-77, 95-
98 and accompanying text.

186. The RESTATEMENT, supra note 6, also distinguishes between jurisdiction to prescribe,
i.e., authority to legislate; jurisdiction to adjudicate, i.e., authority to subject people or things to
court process; and jurisdiction to enforce, or executive authority to compel or induce compli-
ance with law. It then gives factors for asserting kinds of jurisdiction, and for universal crimes,
authority to prescribe rules and adjudicate issues connected with them. Compare id. §§ 102 &
cmts. g, h, k; 401-4, 421, 423, 431-32 with RESTATEMENT (SECOND), supra note 63, § 6. Similar
to id., RESTATEMENT, supra note 6, has special factorial standards for selected transnational
transactions, taxation and anti-competitive (i.e., anti-trust) activities; the RESTATEMENT
(SECOND), supra note 63, purports to cover all areas of US law. Compare RESTATEMENT, supra
note 6, §§ 411-16 with, e.g., RESTATEMENT (SECOND), supra note 63, §§ 145, 187-88.

187. Many US jurisdictions apply RESTATEMENT (SECOND), supra note 63, methodologies.
Some do analysis differently, e.g., examining a factor list (e.g., for torts), before considering
RESTATEMENT (SECOND), supra note 63, § 6, the opposite of what the drafters intended. See gen-
erally SCOLES ET AL., supra note 63, § 2.19. US federal courts follow the RESTATEMENT
(SECOND), supra note 63, if there is no statute, treaty or contrary precedent. Compare, e.g., Har-
ris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1003-4 (9th Cir. 1987) (applying Restatement [Sec-
ond] in Foreign Sovereign Immunities Act-governed case) with Oviessi v. Islamic Repub. of
Iran, 573 F.3d 835, 841 (D.C. Cir. 2009) (applying state law in case under the Act to effectuate
Congressional intent). Transnational or maritime law cases may cite RESTATEMENT, supra note
6, e.g., F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 163-67 (2004) (anti-trust);
Neely v. Club Med Mgt. Serv., 63 F.3d 166, 183-98 (3d Cir. 1995) (maritime personal injury).

260

George K. Walker

188. Changes have come through legislation or treaties. See generally PETER HAY ET AL.,
CONFLICT OF LAWS 538-45 (13th ed. 2009).

189. 42 U.S.C. § 4332 (2006). U.S. DEPARTMENT OF JUSTICE & FEDERAL TRADE COMMISSION,
ANTITRUST ENFORCEMENT GUIDELINES FOR INTERNATIONAL OPERATIONS 20-22 (1995),
Reprinted in 34 INTERNATIONAL LEGAL MATERIALS 1080, 1 102-4, uses similar factorial analysis.

190. Cf. Frank M. Snyder, Introduction, in US NAVAL WAR COLLEGE, SOUND MILITARY
DECISION (1992).

191. See supra note 181 and accompanying text.

192. A State can decline to invoke a reservation, inviting a claim of later practice inimical to
the reservation. If a State has previously objected but does not do so in a particular situation, that
could weaken an objection's "persistency." See supra note 140 and accompanying text. However,
might a State recite, in publicly declining to invoke a reservation or objection, that its action in a
particular occupation situation is subject to its prior reservation or objection in all other cases?
There seems to be little law on this, but cf. Vienna Convention, supra note 36, art. 30(2) (treaty
clause that it is subject to earlier treaty); see supra note 108 and accompanying text.

193. See supra notes 125-33 and accompanying text.

194. This has been the New York state experience, where its conflict of laws rules evolved
from traditional vested rights rules to a factorial approach (contacts, interest analysis) for each
issue in a case, e.g., Babcock v. Jackson, 191 N.E.2d 279, 280-85 (N.Y. 1963) (which jurisdiction's
guest passenger law should apply), to rules for variants on the issue, Neumeier v. Kuehner, 268
N.E.2d 454, 457-59 (N.Y. 1972), to applying these rules in other cases, e.g., Cooney v. Osgood
Mach., Inc., 612 N.E.2d 277, 279-84 (N.Y. 1993) (work-related injury), which also recognized
the supremacy of the US Constitution's full faith and credit and due process principles, analo-
gous to the UN Charter's primacy for public international law issues; see supra notes 55-57 and
accompanying text. Less-than-critical analysis can cause results that many would think wrong,
e.g., Shultz v. Boy Scouts of America, 480 N.E.2d 679 (N.Y. 1985).

195. See generally Neumeier, supra note 194.

196. Dunlap, supra note 158, at 227-28.

197. These means of swift communications apply as well to coalition planning; indeed, one
issue may be too many communications. It is a far cry from the courier system of two hundred
years ago. See, e.g., KAGAN, supra note 88, at 280-81 (communications difficulties for Third Co-
alition facing Napoleon, 1804-5).

198. Letter from John Paul Jones to Joseph Hewes (May 19, 1778), in SAMUEL ELIOT MORI-
son, John Paul Jones: A Sailor's Biography 55, 56 (1959).

199. This can also occur between the LOAC and law derived from other IGOs or NGO claims.
See supra notes 55-57, 71-77, 82-90 and accompanying text.

200. Hague IV, supra note 7, Regulations, art. 43; see also supra notes 14-34, 50-54, 82-98,
134-55 and accompanying text.

201. See supra notes 156-93 and accompanying text.

202. KAGAN, supra note 88, at 279-80, discusses problems of staffing, planning and coordi-
nating large-scale armies during the Napoleonic Wars, and separation of overall priorities and
war planning in World War II. Might a similar division of tasks be appropriate for lawyers who
serve commanders, particularly in occupation situations? E.g., US occupation planning spanned
years before plans were put into effect after surrenders in Europe. See generally HARRY L. COLES
& Albert K. Weinberg, Civil Affairs: Soldiers Become Governors ch. l (1964).

203. Having this analysis committed to records, electronic or otherwise and perhaps classified,
may help justify ultimate actions commanders take, particularly if there are claims of legal liabil-
ity, or if there are questions raised during later litigation, diplomacy or legislative investigations.

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Occupation in Iraq: A Rubik's Cube Problem?

White House Counsel Alberto Gonzalez's unfortunate reference to the 1949 Geneva Conven-
tions as "quaint" is a negative example of how these memoranda can hurt an author and those
who supervise him or her as well as subordinates relying on them. The other side of the coin is
that well-reasoned, thoughtful memoranda can be a positive support for action taken, even if the
result is untoward. In self-defense and LOAC situations, and occupations as well, a commander
or individual service member is bound by what he or she knew, or reasonably should have
known, before acting. See supra note 170. Part of this reasonableness rule is advice on the law;
solid analysis justifying how a choice of law was derived is critical to a record of that advice, even
though results from action taken may not be seen as good in the eyes of some.

204. A peripheral issue is correctly translated treaties for clarity of interpretation and applica-
tion. Some treaties have plurilingual texts, all of which are authentic, see, e.g., U.N. Charter art.
Ill, and for which Vienna Convention, supra note 36, Article 33 rules apply. Others, like Hague
II and IV, supra notes 7, 9, have one official language. Might it be appropriate for foreign or de-
fense ministries to review treaties, particularly those in common use, to be sure of proper transla-
tion and note the problem in, e.g., military manuals? For Hague II and IV, the difference
between, e.g., the official French text of Regulations, Article 43 and unofficial translations maybe
significant in occupations. There seem to be other translation issues. See supra notes 14-34 and
accompanying text. See also AUST, supra note 47, at 253-55 (Article 33 recites custom); McNAIR,
supra note 57, at 30-31, ch. 25; RESTATEMENT, supra note 6, § 325, cmt. f & r.n. 2, § 326; SINCLAIR,
supra note 36, at 147-53 (Article 33 recites custom). The more difficult problem is how to correct
the problem. If over one hundred years have passed, and some States still adhere to Hague II, su-
pra note 9, what chance is there for general acceptance of amending protocols? Might it be ar-
gued that parallel custom, cf. ICJ Statute, supra note 6, art. 38(1), supersedes the treaty rule, or
that practice under the treaties, see Vienna Convention, supra note 36, art. 31(3)(b), cures the
problem? Article 3 1 (3)(b) is today a customary rule. See generally Genocide Case, supra note 96,
2007 I.C.J. H 160; AUST, supra at 241; SINCLAIR, supra note 36, at 135-40. Another issue is consid-
ering review of national military manuals, e.g., FM 27-10, supra note 12, for correct translations
and applying them. It is unlikely that States will negotiate amending protocols to correct
mistranslations; manuals might note the problem and declare customary rules that have devel-
oped, either as superseding law or as practice under the treaties. Third, manuals should recog-
nize developing principles that may apply to future occupations, e.g., Charter law, IGO-
developed rules, jus cogens norms and human rights law. The influence of NGOs and soft law
cannot be discounted, either.

262

XIII

The Occupation of Iraq: A Reassessment

Eyal Benvenisti and Guy Keinan*
I. Introduction

The invasion and subsequent occupation of Iraq in 2003 provided a rare oppor-
tunity to examine the viability in the twenty-first century of a legal doctrine
rooted in the military and political circumstances of the nineteenth century. 1 The rar-
ity of this opportunity is not a result of paucity of occupations, but of the prevalent dis-
inclination of occupants to recognize their status as such. 2 This article reflects on
several key questions concerning the occupation of Iraq, not in an attempt to evaluate
the occupants for their compliance with the law, but rather to study contemporary
challenges to the law and possibilities for adaptations in the twenty-first century. The
article addresses the beginning and end of the occupation in Iraq and potential pre-
and post-occupation responsibilities (Part II), and examines the scope of authority of
the occupants and of the UN Security Council in Iraq (Part III). Part IV concludes.

II, The Time Frame of the Occupation in Iraq

The Beginning: When Was Iraq Occupied?

Background: When Does Occupation Begin?

This seemingly straightforward question has proven to be quite complex. It has al-
ways been complex, but for different reasons. In the nineteenth century, the

* Eyal Benvenisti, Anny and Paul Yanowicz Professor of Human Rights, Tel Aviv University,
Faculty of Law, and Guy Keinan, LL.B. candidate, Tel Aviv University.

The Occupation of Iraq: A Reassessment

concern was that eager invaders would declare an area occupied prematurely. Be-
cause the law of occupation granted occupants control over key strategic resources,
such as public property, invaders might be tempted to assert authority without ac-
tually controlling the area. 3 But over the years, and most notably since the adoption
of Geneva Convention IV, which imposed on occupants extended obligations over
civilians in occupied territories, and several human rights conventions that added
to those obligations, occupants found little interest in asserting their status as occu-
pants. The derogatory connotation that the term "occupation" has gained, particu-
larly during the second half of the twentieth century, added to this reluctance.
Moreover, the asymmetric nature of many of the recent conflicts has provided an-
other incentive for the occupant to act through intermediaries or otherwise mini-
mize its contact with particularly violent indigenous communities. Therefore,
while the drafters of the original text on occupation law were concerned about
overly assertive occupants, today's interpreters have to deal with occupants who try
to evade this designation. With contemporary technology and weaponry that en-
ables certain armies to control an area from a distance, a new challenge to the defi-
nition emerges.

Given the occupants' increasing ability and prevailing interest to control an area
but not its population, it is important to note that the governing legal definitions
seek to preclude this option and insist on the protection of individuals. The Hague
Regulations emphasize the territorial test, 4 implying that whoever controls the ter-
ritory has responsibility over the population, while Geneva Convention IV does
not attempt a territorial definition, instead emphasizing the relations between the
occupant and the "protected persons" who "find themselves ... in the hands" of an
occupying power 5 as the relevant test.

Some confusion, however, arises from the second sentence of Article 42 of the
Hague Regulations, which stipulates that " [t] he occupation extends only to the ter-
ritory where such authority has been established and can be exercised." This addi-
tion can at first sight be interpreted as suggesting that an occupant that manages to
control only the land, but does not actually exercise authority over the civilian pop-
ulation, is freed from responsibility toward it. This reading is plainly wrong. It is
wrong because the text was intended to exclude premature occupations, rather than
to allow occupants to evade their responsibilities. 6 It is wrong also literally, because
the reference in "such authority" is to the first sentence of the article, which discusses
authority over territory, not over the population in the territory. 7 Finally, it is wrong
because it lets occupants off the hook of responsibility toward the population. The
better interpretation of the test for occupation therefore stipulates that occupation
begins when the foreign army is in actual control over enemy territory, and is in a
position to establish, if it so wishes, an authority of its own over the population. It is

264

Eyal Benvenisti and Guy Keinan

irrelevant whether or not the army actually does so. By assuming control over the
land the occupant assumes responsibility over the population situated on that land. 8
The same confusion is reflected in some States' military manuals. Whereas the
German military manual accurately requires merely a potential to actually exercise
authority, 9 the US military manual insists that the test for occupation is that the
"invader has successfully substituted its own authority for that of the legitimate
government in the territory invaded." 10 To add confusion, the British manual ap-
parently contains an internal contradiction, as it appears to support both views. On
the one hand, it stipulates that "the occupying power [must be] in a position to sub-
stitute its own authority for that of the former government" (paragraph 13.3), but
later it indicates that occupation "depends on whether authority is actually being
exercised over the civilian population." 11 In this confusing mist, the International
Court of Justice (ICJ) adopted the "actual authority" test in the Armed Activities
case. 12 Except for one district, where actual authority had been established and
hence was regarded by the Court as occupied, the ICJ accepted Uganda's argument
that in other areas it controlled only land, not people, and therefore did not "oc-
cupy" them. 13 In other words, in the ICJ's view, only direct authority over a popula-
tion amounts to occupation. This is an unfortunate outcome. 14 It is unfortunate
from the perspective of the local population, which is left with no accountable gov-
ernment in charge. It is also unfortunate from the perspective of neighboring
States that are weaiy of geographical areas left without responsible State authority.
An invader that is unaccountable for what transpires in an area it dominates is
likely not to internalize the dangers emanating from the invaded territory, and, as a
result, that area may become a source of regional, if not global, instability.

The Occupation of Iraq by the United States and the United Kingdom
It is quite obvious that the initial planning for the invasion of Iraq did not include
plans to establish military administration whose authority would derive from the
law of occupation. Months before the invasion, which began on March 20, 2003,
officials in the US administration had been divided on the applicability of the law
of occupation. While some of them believed it was appropriate, others viewed the
situation not as occupation, but as mere "liberation." 15 Even after parts of Iraq had
already been occupied and Baghdad was falling, President Bush and Prime Minister
Blair emphasized this liberating role of their coalition and envisioned "the forma-
tion of an Iraqi Interim Authority, a transitional administration, run by Iraqis, un-
til a permanent government is established by the people of Iraq." 16 Military
officials still refused to speak of occupation in the legal, rather than colloquial,
sense, and maintained that "occupation" in the legal sense required taking over an
area "with the intent to run the government in that area," 17 which, at the time, was

265

The Occupation of Iraq: A Reassessment

not the case for the coalition forces in Iraq. But British jurists had a different view
from the start. In a secret memorandum from late March, the British Attorney
General, Lord Goldsmith, wrote that the United States and the United Kingdom
would be bound by the law of occupation, unless the Security Council passed a spe-
cific resolution. 18

These differences of opinion were reflected in a gradually changing attitude on
the ground. The initial institution entrusted with administering occupied Iraqi ter-
ritory was the US Office for Reconstruction and Humanitarian Assistance
(ORHA), established two months before the ground invasion. 19 During the initial
phase of the occupation, despite a late March Security Council resolution that had
reminded coalition forces of an occupying power's responsibilities, 20 the coalition
forces made efforts to set up an indigenous Iraqi regime. On April 15, Coalition of-
ficials held a meeting with Iraqi representatives in Nasiriyah, in which a thirteen-
point statement on the political future of Iraq was adopted. 21 Together with a sub-
sequent meeting, which took place on April 28 in Baghdad, these were part of "ini-
tial moves towards the establishment of a national conference, which could set up
an interim authority and make progress towards constitutional change and the
election of a new government." 22 But on April 16, only one day after the Nasiriyah
meeting, without an explanation or a formal document setting it up, 23 the head of
the ORHA announced the establishment of the Coalition Provisional Authority
(CPA). Another three weeks passed until on May 8 the UK and US representatives
to the UN sent a letter recognizing their obligations under the Hague Regulations
and Geneva Convention IV. 24 L. Paul Bremer was appointed the US presidential
envoy to Iraq on May 6 and the CPA Administrator on May 13.

The legal situation crystallized during the month of May as the occupying powers
began seeking to establish their own government instead of setting up an interim
Iraqi government. To do so they had to rely on authority under international law.
While they did not explicitly acknowledge their status as occupants, they impliedly
acknowledged the applicability of the Hague Regulations and Geneva Convention
IV to their actions in Iraq. Explicit recognition of occupation law came later, when
the British Foreign and Commonwealth Office relied on it expressly, 25 as did
American legal advisors stationed in Iraq. 26

Security Council Resolution 1483, of May 23, 2003, clarified the legal status of
Iraq at the time. The Resolution "noted" the May 8 letter of the UK and US repre-
sentatives, but continued to "recogniz[e] the specific authorities, responsibilities,
and obligations under applicable international law of these States as occupying
powers under unified command" (emphasis added). 27 The Resolution further
"[c]all[ed] upon all concerned to comply fully with their obligations under

266

Eyal Benvenisti and Guy Keinan

international law including in particular the Geneva Conventions of 1949 and the
Hague Regulations of 1907." 28

But this was not meant to be a casebook example of occupation, because the oc-
cupants sought a broad Security Council mandate that went beyond the scope of
authority recognized by international law. 29 The UN's role was meant to widen the
authority of the CPA, while being instrumental — but without formal authority —
in offering humanitarian relief and assistance to the CPA in the reconstruction of
Iraq and the establishment of institutions for representative governance. 30

Pre-occupation Responsibilities?

The traditional reading of the laws of armed conflict distinguishes between the
hostilities and the post-hostilities phases. This distinction is also reflected in the
different sections of the Hague Regulations. However, such a neat distinction can
be questioned. As Dinstein notes, "[i]t is impossible to pinpoint an instant mark-
ing transition from an extended foray to a fledgling belligerent occupation." 31 In-
stead, it is possible to recognize the simultaneous applicability of both in hello and
post helium norms with respect to the obligations an enemy army has toward the
local population. 32 Although it is beyond the scope of this article to explore this
question in depth, 33 it can be noted that the obligations toward the population in
enemy territory arise even before the establishment of firm control over territory
and population. Given contemporary technology and weaponry, on the one hand,
and the proliferation of weak or failing indigenous regimes, on the other, the neat
allocation of responsibilities between occupant and occupied based on physical
control of territory ("boots on the ground") does not serve humanitarian and
global interests. It is necessary to impose legal restraints on any foreign power that
effectively controls activity in a foreign area, even without having actual presence
in the territory in the ancient form of full-fledged military administration. There is
thus a need to redefine the rules of allocating responsibilities. The most sensible
one would seem to be a rule that interprets authority as "power" (rather than "control"
or "jurisdiction"), to be determined based on the consequences of the actual exer-
cise of power in a given territory. A State that exercises its power in a foreign un-
governed or partly governed land will thus be regarded as bearing at least the basic
obligations borne by an occupant.

This implies that pre-occupation obligations toward the local population need
to be recognized, and they can derive, inter alia> from the obligations under
Geneva Convention IV toward people who "find themselves ... in the hands" of
the invading army. 34 It would be ridiculous to suggest, for example, that Article 49
of that Convention, which proscribes deportations of enemy civilians, would be
inapplicable unless the area has been occupied. 35 Similarly senseless would be the

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interpretation that only armies that actually substitute for the ousted government
in a foreign territory are required to provide food and shelter to persons protected
by Geneva Convention IV.

In the context of Iraq such questions were pertinent also to the failure to protect
against looting. As in previous situations of invasions (e.g., Panama in 1989), 36
widespread looting followed the invasion and occupation of Iraq. On April 10,
2003, only one day after the fall of Baghdad to coalition forces, looting was already
in progress. 37 But in Iraq the looting affected also art treasures and important ar-
cheological artifacts. The National Museum in Baghdad, for instance, lost around
15,000 artifacts. 38 Note that the Hague Convention on Cultural Property (1954) 39
obliges State parties 40 "to respect cultural property situated within their own terri-
tory as well as within the territory of other High Contracting Parties." 41 The Con-
vention formally amplifies these duties during occupation, but they arguably
apply also before the occupation stage. 42

The End of Occupation

When Does Occupation Cease?

The occupation ends whenever the conditions of Article 42 of the Hague Regula-
tions are no longer fulfilled. 43 Under the test of actual control, an occupation ends
when the occupant no longer exercises its authority in the occupied territory. Un-
der the test of potential control, the occupation ends when the occupant is no lon-
ger capable of exercising its authority. It is generally accepted that occupation
continues as long as the occupying force can, within a reasonable time, send de-
tachments of troops to make its authority felt within the occupied area.

In other words, an occupation ends as a result of the armed return of the
ousted government, an indigenous uprising or a unilateral occupant withdrawal
or as part of a peace agreement. The "legal oddity" 44 that is Article 6(3) of Geneva
Convention IV does not affect the end of occupation. Although it stipulates that
"the application of the present Convention shall cease one year after the general
close of military operations," it does not regard the area as no longer occupied, and
considers the occupant as bound by significant portions of the Convention, 45 as
well as the Hague Regulations. 46

A rather problematic question arises when the occupant transfers authority to
an indigenous government that has no link to the ousted government. The law
looks at such transfers with suspicion, because the concern is that the indigenous
government might not be representative of the indigenous population and might
be nothing but a puppet regime of the occupant. It is also worried about the
commitment of the indigenous regime to respect the rights of the occupied

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population. 47 This is the challenge of what Roberts calls "transformative occupa-
tions," namely "occupations [that] aim at establishing a political order based on
the principle of self-government." 48 In such occupations,

determining at what point one can say that the transformation has been achieved, and
the government of the occupied territory is in a position to exercise the powers of
sovereignty, is genuinely difficult. . . . Where what is involved is a gradual transfer of
powers to the indigenous authorities as their capacity to govern is built up, there is
bound to be an arbitrary element in fixing on a single date as the symbolic ending of the
occupation. 49

Based on policy reasons and State practice, it can be said that "[t]he ultimate test
for the legality of a regime installed by an occupant, is its approval in internation-
ally monitored general elections, carried out without undue delay." 50

The End of Occupation in Iraq

Although occupation is a matter of fact, its legal status can be subject to the de-
termination of the Security Council acting under Chapter VII of the Charter as
the ultimate arbiter of the law. Therefore, since Security Council Resolution 1546
stipulated that "by 30 June 2004, the occupation will end and the Coalition Provi-
sional Authority will cease to exist, and that Iraq will reassert its full sovereignty," 51
in the eyes of the law the occupation formally came to a close by June 30 despite the
fact that the coalition forces were still exercising administrative authority in certain
areas of Iraq. 52

The discrepancy between the UN declaration on the reassertion of full Iraqi sov-
ereignty and the actual state of affairs derives from the fact that at that point in time
the fledgling Iraqi government was the construct of the occupation authority and
was yet to be endorsed by a valid act of self-determination. Such an endorsement,
which ended the occupation not only from the formal perspective, occurred only
after the interim government of Iraq assumed full authority. 53

Post-occupation Responsibilities?

If occupants may have pre-occupation responsibilities, they may be equally subject
to post-occupation responsibilities to the extent that they continue to exert au-
thority in the foreign territory. The previous occupant could also be responsible for
ameliorating conditions it created in the previously occupied territory. 54

Traditionally, in post-occupation situations, when former occupants were re-
quested by the newly installed governments to maintain some authority, such au-
thority was deemed to derive from the sovereigns' authorization, and hence was
beyond the scope of the law of occupation. But this traditional view could be

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The Occupation of Iraq: A Reassessment

revisited. There may be sufficient ground to argue that even while exercising au-
thority on the behest of an indigenous government, the entity that acts must
comply with the international obligations to which it is bound. This is likely to be the
case under international human rights law when the actor exercises authority over
individuals who are under its control. This is also the case under international hu-
manitarian law that stipulates minimal standards of treatment 55 under the national
law of several countries. 56

Such a view seems to find support in two recent judgments, related to the Brit-
ish occupation and post-occupation practices in Iraq. In the Al-Jedda case, the
House of Lords ruled that even if the United Kingdom had been operating in Iraq
on the UN's behalf (i.e., not as an occupant), it was still subject to its human rights
obligations to the extent possible. As Lord Bingham noted, the United Kingdom
could detain persons as authorized by the Security Council, "but must ensure that
the detainee's rights . . . are not infringed to any greater extent than is inherent in
such detention." 57 The same logic could apply to the post-occupation forces pres-
ent in Iraq. More recently, the United Kingdom maintained that after the end of
formal occupation, the British Army was merely an "executor" of decisions of
Iraqi courts. Since prisoners were detained and transferred by the United King-
dom at the request of the Iraqi courts, the United Kingdom argued it did not exer-
cise "any recognised extra-territorial authority." 58 The European Court of Human
Rights (ECtHR), however, refused to regard that relationship between the British
and the Iraqi government as one that excludes the applicability of the European
Convention on Human Rights (ECHR) and the Court's jurisdiction. The gist of
the idea is simple and convincing: acting under instructions of others cannot and
does not relieve one of one's international obligations.

HI. The Authority of the Occupants in Iraq

The Transformative Nature of the Occupation

Aiming to create a market-based democratic Iraq, the occupying powers intro-
duced major administrative and legislative changes. These changes related not
only to public order and security, to the "de-Ba'athification of Iraqi society," the
overhauling of Iraqi criminal law and the judicial system, but also to areas often
untouched during occupation, such as trade law, 59 company law, 60 securities law, 61
bankruptcy law, 62 and even intellectual property 63 and copyright laws. 64 The rea-
sons usually given for these reforms were the need to promote human rights, effi-
ciency, modernization and compliance with international standards. Because
these reasons sometimes deviate from the traditional law of occupation, scholars
referred to the occupation as "transformative." 65 This section reviews some of the

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Eyal Benvenisti and Guy Keinan

more controversial changes introduced by the CPA. The subsequent section eval-
uates their compatibility with international law.

Among the many reforms taken by the occupants, it was the economic legisla-
tion that attracted the most criticism. Was it lawful, appropriate and needed to re-
place "all existing foreign investment law," 66 to rewrite securities law almost
completely, 67 to suspend all customs duties and tariffs, 68 and to profoundly change
corporation law in a way that allows foreign citizens to acquire membership in
companies? 69 The CPA sought to explain the motivation of these and other sweep-
ing economic reforms by emphasizing indigenous endorsement. A key player in
this indigenous participation was the Iraqi Governing Council, a "principal bod[y]
of the Iraqi interim administration" established by the CPA on July 13, 2003. 70 The
CPA emphasized that it "worked closely with the Governing Council to ensure that
economic change occurs in a manner acceptable to the people of Iraq," 71 and reit-
erated that the change was made " [i] n close consultation with and acting in coordi-
nation with the Governing Council." 72 In fact, the CPA attributed the foreign
investment initiative to "the Governing Council's desire to bring about significant
change to the Iraqi economic system." 73

The CPA also relied on the UN authorization as an independent source of au-
thority. Practically all orders issued by the CPA contained a preambular paragraph
stressing their consistency with the laws and usages of war, as well as with the rele-
vant Security Council resolutions. The CPA additionally relied on the report of the
Secretary- General, which concerned "the need for the development of Iraq and its
transition from a non-transparent centrally planned economy to a market econ-
omy characterized by sustainable economic growth," 74 and often emphasized that
it had "coordinated with the international financial institutions, as referenced
in . . . U.N. Security Council Resolution 1483." 75

Moreover, great efforts were made to show how the reforms would benefit Iraqi
society. For example, the goal of foreign investment reforms was to "improve the
conditions of life, technical skills, and opportunities for all Iraqis and to fight un-
employment with its associated deleterious effect on public security." 76 The CPA
saw itself obligated to "ensure the well being of the Iraqi people and to enable the
social functions and normal transactions of every day [sic] life." 77

The CPA didn't stop there. Economic modernity, fairness, efficiency, trans-
parency, predictability and independence were invoked as justifications for
several reforms. 78 Long-term policies were also mentioned: at one point, the CPA
noted "the demonstrated interest of the Iraqi Governing Council for Iraq to be-
come a full member in the international trading system, known as the World Trade
Organization." 79

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The Occupation of Iraq: A Reassessment

The Lawfulness of the CPA Measures under International Law

The transformation of Iraq from a centralized dictatorship into a market-based de-
mocracy raised questions about the scope of authority of the CPA under interna-
tional law. Some in the CPA really thought that the law of occupation allowed such
wide-ranging reforms. 80 But British officials differed. 81 More generally, the British
government distinguished "between direct positive acts of government and . . . the
facilitation of plans and efforts of the nationals of the occupied territory for the
development of governmental institutions," 82 with only the latter being deemed
permissible under occupation law. 83 To make reforms that go beyond the law of
occupation, they maintained, "further authority in the form of a Security Council
resolution would be required." 84 According to this view, with Security Council
Resolution 1483 as the additional basis for the reforms, "the question of the UK's
responsibilities in respect of political reform is no longer governed solely by the law
of occupation." 85 Later the British discovered that they were expected to comply
also with their international and European human rights obligations. As a conse-
quence, in the occupation of Iraq there were three bodies of law — occupation law,
human rights law and UN law — at play. This section analyzes the outcome.

Authority under the Law of Occupation

We begin with a succinct analysis of the scope of authority under the law of
occupation. The request for authorization from the Security Council implies an
acknowledgment of the limited authority granted to occupants under traditional
occupation law. A textual reading of Article 43 of the Hague Regulations easily sup-
ports the conclusion that the occupant is bound by what Gregory Fox named "the
conservationist principle." 86 The call for conservation of the status quo ante helium
is reflected in the admonition that the occupant has but de facto authority (whereas
the ousted government is still the "legitimate power") in the restricted scope of au-
thority "to restore, and ensure" public order and civil life, and in the obligation to
respect the laws in force in the country "unless absolutely prevented." 87

The term "unless absolutely prevented" was inserted during the First Peace
Conference in 1899 to replace the term "unless necessary" at the insistence of the
potentially occupied States to emphasize the occupant's obligation to also preserve
the status quo in the legal sphere. 88 Whether this insertion was prudent is a differ-
ent question. The restraint on the occupant's authority necessarily creates a ten-
sion with its authority and obligation to ensure public order and civil life. This
restraint was significantly diluted by Article 64 of Geneva Convention IV, which
replaced the negative test of "unless absolutely prevented" with a positive authori-
zation for the occupant, which "may subject the population of the occupied terri-
tory to provisions which are essential to enable the Occupying Power to fulfill its

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Eyal Benvenisti and Guy Keinan

obligations under the present Convention, to maintain the orderly government of
the territory, and to ensure the security of the Occupying Power." The duties of the
occupant under Geneva Convention IV are far more numerous than those stipulated
in the Hague text. The Geneva text envisions the occupant no longer as the disin-
terested watch guard, but instead as a very involved regulator and provider. 89
Scholars in the post-World War II period readily conceded legitimate subjects for
the occupant's lawmaking other than military necessity. The welfare of the popula-
tion was deemed a worthy goal for the occupant to pursue. 90 Such an expansive view
seems to be consonant with the prevalent view that the occupant is bound also by hu-
man rights obligations, and that in general it must "take measures to ensure respect
for human rights and international humanitarian law in the occupied territories." 91

The parallel applicability of international and, for the British troops, European
human rights law raises additional questions regarding the authority of the occu-
pants and the adequacy of the conservationist principle. It is beyond the scope of
this article to explore the questions concerning the applicability of international
and European human rights law to occupied territories, and the relationships be-
tween occupation law and human rights law. Still, international treaty bodies and
tribunals, 92 as well as the majority of scholars, 93 are of the opinion that human
rights law applies to occupied territories. The consequences of this parallel applica-
tion would seem to support a modification of the conservationist principle when
changes are necessary to ensure the enjoyment of human rights by the occupied
population. 94

Reflecting on the occupation of Iraq as a "transformative occupation," Adam
Roberts noted that "occupying powers can justify certain transformative policies
on the basis that these are the best way to meet certain goals and principles en-
shrined in international human rights law." 95 More generally, Roberts believes hu-
man rights conventions "can play an important role" in occupations, as they "may
impose formal obligations on parties; be instrumental in political debate, as a basis
for assessing the actions of external powers and local actors; provide legal proce-
dures for taking action; or serve as one basis for pursuing transformative goals." 96
Other scholars accept this view with some insignificant nuances.

A particularly strong case can be made for extensive authorization to introduce
significant changes in an occupied territory that had been governed by an unrep-
resentative regime that enjoyed little or no domestic support after being ousted
by the occupant. The underlying premise of the law of occupation is, as was seen,
that the legitimate power in the country retains the right to revert to its ante helium
position, unless it agrees to territorial changes. But when this power has already
taken its last breath, or when its source of authority is contested by the indigenous
population exercising its right to self-determination, the only legitimate power

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The Occupation of Iraq: A Reassessment

that seems relevant is the people itself and not the ousted regime. This is a situa-
tion where the "reversioner" is the people, and the occupant must take its interests
and wishes, rather than those of the ousted regime, into account. 97 Such an argu-
ment can support the dismantling of the Ba'athist regime, which is evident in the
CPA's first-ever legislative act, aptly titled "De-Ba'athification of Iraqi Society." 98
But it is important to keep in mind that even in such instances, reforms intro-
duced by the occupant — as beneficial to the local population as they may be — are
subject to the principle of self-determination. This principle may be "meaningful
for the post-occupation society" only by refraining from making "overbroad sys-
temic changes." 99 There is, therefore, ground to argue that the law of occupation,
whether alone or together with the law on self-determination and human rights
law, gave the occupants in Iraq a wide margin of discretion. 100

It is noteworthy that the two occupants of Iraq did not wish to found their
transformative occupation on their human rights obligations. In fact, they both re-
jected the applicability of human rights law in Iraq. 101 The US government has
claimed that the International Covenant on Civil and Political Rights 102 does not
apply outside its territory or during an international armed conflict. 103 In the midst
of the Iraq conflict, the United States expressed its "firm belief ' that humanitarian
law is a "well- developed area of law conceptually distinct from international hu-
man rights law," and that the two cannot apply simultaneously. 104 The United
Kingdom, as a party to the ECHR, had to face numerous petitions in relation to the
ECHR's applicability in Iraq, and offered several reasons why it was not bound by
that treaty 105 — reasons that did not impress the British courts 106 or the ECtHR. 107

Authority under Security Council Resolution 1483

Security Council Resolution 1483 provided the framework for the coalition's ac-
tions in Iraq. On the one hand, it endorsed its authority over Iraq and the Iraqi peo-
ple, and, on the other hand, it delineated the legal constraints and guidelines that
this authority was bound by, namely "the Charter of the United Nations and other
relevant international law," 108 and other "obligations under international law in-
cluding in particular the Geneva Conventions of 1949 and the Hague Regulations
of 1907." 109 The President of the Security Council emphasized that the powers del-
egated by the Resolution "are not open-ended or unqualified," and should be exer-
cised "in conformity with the Geneva Conventions and the Hague Regulations." 110
Concurrently, however, the Resolution clearly endorsed the transformative course
of action that the CPA embarked upon immediately. The occupants, referred to as
the "Authority" in the Resolution, are

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Eyal Benvenisti and Guy Keinan

[c]all[ed] upon . . . consistent with the Charter of the United Nations and other relevant
international law, to promote the welfare of the Iraqi people through the effective
administration of the territory, including in particular working towards the restoration
of conditions of security and stability and the creation of conditions in which the Iraqi
people can freely determine their own political future m

Furthermore, Resolution 1483 created a new position, the "Special Representative
for Iraq," which would be independent of the occupying power and whose tasks
would include assisting the people of Iraq, coordinating the activities of the United
Nations in post-conflict processes in Iraq and with international agencies engaged
in humanitarian assistance and reconstruction activities in Iraq, and promoting
the protection of human rights. 112

How should one read this Resolution? Does it endorse an expansive view of the
law of occupation, or does it form an independent source of authority on the
strength of Chapter VII law? Indeed, there are three possible interpretations of Res-
olution 1483. According to the first reading, the Resolution endorses an expansive
reading, influenced by human rights law, of the occupant's authority under the law
of occupation. A slightly different interpretation of the Resolution would suggest
that the expansive reading of the occupant's powers applies only to the unique cir-
cumstances of Iraq as opposed to all other occupations. The third possible inter-
pretation of the Resolution would be that the Resolution gave the occupants
additional authority to transform Iraq that they would not have had otherwise. As
mentioned above, at least British officials relied on the latter interpretation, having
concluded that the law of occupation as such stopped short of granting them ex-
tensive authority.

In these authors' view, Resolution 1483 relates, of course, only to the specific
situation in Iraq, but at the same time it signals an endorsement of a general view
that regards modern occupants as subject to enhanced duties toward the occu-
pied population and therefore also having the authority to fulfill such duties.
"The call to administer the occupied area 'effectively' acknowledges the several
duties that the occupants must perform to protect the occupied population. It
precludes the occupant from hiding behind the limits imposed on its powers as a
pretext for inaction." 113 Indeed, an evolutionary reading of the law of occupation
in an era heavily informed by human rights concerns cannot reach a different
conclusion. 114

This interpretation is based not only on the Resolution or the evolutionary in-
terpretation of the law of occupation. It is also based on the authority of the Secu-
rity Council when acting under Chapter VII of the UN Charter. This authority is
not limitless but subject at least to compliance withjws cogens. 115 One of the central
jus cogens norms is the right of peoples to self-determination. 116 The law of

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The Occupation of Iraq: A Reassessment

occupation internalizes a delicate balance between conflicting interests of occu-
pant and occupied, and is heavily influenced by the effort not to alienate the indig-
enous people's right to continue to exercise its right to self-determination. 117 The
law of occupation has always been intimately linked to the concept of national sov-
ereignty. "Indeed, the evolution of the concept of occupation can be seen as the
mirror-image of the development of the concept of sovereignty. >>118 Therefore,
authorizing an occupant to derogate from its responsibilities under the law of oc-
cupation and thereby limit and shape the political choices of an occupied sovereign
people carries the danger of effectively infringing the right to self-determination,
which might be beyond the authority of the Council. 119

Obviously, not every limitation of the right to self-determination is an imper-
missible infringement of a jus cogens right. There may be solid reasons to interfere
in the exercise of the right to self-determination to ensure that the process is practi-
cal, inclusive and fair. It is also reasonable to argue that the Security Council is
more trustworthy than the occupant to be entrusted with such a complex matter,
and therefore it may be granted the authority to limit or influence the exercise of
the right to self-determination to a greater extent than the occupant would, as is the
case in territories directly administered by the UN. 120 The Security Council is
clearly less prone to bias than the occupant, if only because of its diverse composi-
tion and lack of immediate interest. 121 It therefore makes eminent sense to recog-
nize that the Security Council would have the authority under Chapter VII of the
Charter to authorize the transformation of a regime under occupation beyond
what the law of occupation would otherwise allow, but this could not be an
unfettered discretion delegated to interested parties without monitoring them. If
the Security Council wished to extend such an authorization to the occupant, it
would have to remain closely involved, through ample supervisory mechanisms,
effectively approving and reviewing the actual transformation process. Because
such mechanisms were not employed in the case of Iraq, the CPA having acted with
limited monitoring by the Council, 122 one could understand its attitude either as
carelessness that bordered on infringement of its jus cogens obligations or as a re-
flection of its general attitude toward the occupants powers under the law of
occupation.

IV, Conclusion: The Legacy of the Occupation of Iraq

The occupation of Iraq raises a host of questions beyond the scope of a single article.
In addition to questions regarding the timing of the occupation, pre- and post-
occupation responsibilities, and the scope of authority of the occupant in
transformative occupation, the occupation of Iraq gave rise to queries regarding the

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Eyal Benvenisti and Guy Keinan

definition of protected persons 123 and the proper interpretation of Article 49 of the
Fourth Geneva Convention, 124 in addition to the proper treatment of detainees and
the responsibility for their shameful abuse. The management by the occupants of
public property, including natural resources such as oil and freshwater, was also sub-
ject to legal analyses. 125 Overall it is almost astounding to observe how a nineteenth-
century doctrine that during the last half century almost reached the stage of desuetude
due to lack of adherence was suddenly revived in unanticipated circumstances.
Critics could argue that its invocation was nothing more than an afterthought, a
sort of "Plan B" that was put in motion after the effort to install a "genuine" in-
digenous regime failed. Nevertheless, the doctrine was there ready to be applied,
flexible enough to be adapted to twenty- first-century contemporary circumstances
and challenges, as well as current legal and political perceptions.

Resolution 1483 marks the first time the Security Council resorted to the con-
cept of occupation to describe, authorize and delimit the authority of foreign
troops in control of enemy territory. The recognition of the applicability of the law
on occupations refuted the claim that occupation, as such, is illegal, and revived the
neutral connotation of the doctrine, at least from a legal perspective. At the same
time, the broad mandate recognized by the Security Council as pertaining to the
occupants to transform Iraq into a market-based democracy, although commend-
able and probably lawful under UN Charter law, also tested the limits of the law of
occupation and the Security Council's own authority to shape the way the Iraqi
people exercised their inalienable right to self-determination.

Notes

1 . On the history of the law of occupation, see Eyal Benvenisti, The Origins of the Concept of
Belligerent Occupation, 26 LAW & HISTORY REVIEW 621 (2008); Nehal Bhuta, The Antinomies of
Transformative Occupation, 16 EUROPEAN JOURNAL OF INTERNATIONAL LAW 721 (2005).

2. Eyal Benvenisti, The International Law of Occupation 5 ( 1993).

3. For this reason, "to extend the rights of occupation by mere intention, implication or
proclamation, without the military power to enforce occupation, would be establishing a paper
occupation infinitely more objectionable in its character and effect than a paper blockade."
Doris appel Graber, The Development of the Law of Belligerent Occupation 1863-
1914: A Historical Survey 56 (1949).

4. Regulations Respecting the Laws and Customs of War on Land, Annexed to Convention
No. IV Respecting the Laws and Customs of War on Land art. 42, Oct. 18, 1907, 36 Stat. 2227, re-
printed in DOCUMENTS ON THE LAWS OF WAR 69, 80 (Adam Roberts & Richard Guelff eds., 3d
ed. 2000) ("Territory is considered occupied when it is actually placed under the authority of the
hostile army. The occupation extends only to the territory where such authority has been estab-
lished and can be exercised") [hereinafter Hague Regulations].

5. Convention Relative to the Protection of Civilian Persons in Time of War art. 4, Aug. 12,
1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, reprinted in id. at 301, 302 [hereinafter Geneva Convention IV] .

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The Occupation of Iraq: A Reassessment

6. Suggestions in the Hague conference of 1 899 to remove the second sentence had been re-
jected, as it was seen as crucial to the understanding of the first sentence. The Belgian representa-
tive insisted that the second sentence's absence might lead to premature proclamations of
occupation. See GRABER, supra note 3, at 60.

7. "Territory is considered occupied when it is actually placed under the authority of the
hostile army" (authors' emphasis).

8. See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005
I.C.J. 116 (Dec. 19) (separate opinion of Judge Kooijmans, 1J 49) ("I am, therefore, of the opinion
that it is irrelevant from a legal point of view whether [Uganda] exercised this authority directly
or left much of it to local forces or local authorities. As long as it effectively occupied the locations
which the DRC Government would have needed to re-establish its authority, Uganda had effec-
tive, and thus factual, authority" (first emphasis added)).

9. Federal Ministry of Defense of the Federal Republic of Germany, ZDv 15/2, Humanitar-
ian Law in Armed Conflicts: Manual % 526 (1992) ("[T]he occupying power must be able to actu-
ally exercise its authority' (first emphasis added)).

10. Department of the Army, FM 27-10, The Law of Land Warfare % 355 (1956).

11. United Kingdom Ministry of Defence, The Manual of the Law of Armed
CONFLICT ffll 13.3, 13.3.2 (2004) (authors' emphases).

12. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005
I.C.J. 116,H 173 (Dec. 19) ("the Court must examine whether. . .the said authority was in fact es-
tablished and exercised") [hereinafter Armed Activities case].

13. W., 1(170.

14. See the critical comments of Judge Kooijmans in his separate opinion, supra note 8, ffl|
40-41.

15. David Scheffer, The Security Council and International Law on Military Occupations, in
The United Nations Security Council and War: The Evolution of Thought and
PRACTICE SINCE 1945, at 597 (Vaughan Lowe et al. eds., 2008); Adam Roberts, Transformative
Military Occupation: Applying the Laws of War and Human Rights, 100 AMERICAN JOURNAL OF
INTERNATIONAL LAW 580, 608-9 (2006).

16. Joint Statement by President George W. Bush and Prime Minister Tony Blair on Iraq, 1
PUBLIC PAPERS 328 (Apr. 8, 2003), available at http://usa.usembassy.de/etexts/docs/bush080403
.htm ("The Interim Authority will be broad-based and fully representative, with members from
all of Iraq's ethnic groups, regions and diaspora. The Interim Authority will be established first
and foremost by the Iraqi people, with the help of the members of the Coalition, and working
with the Secretary General of the United Nations").

17. United States Department of Defense News Transcript, Briefing on Geneva Conven-
tion, EPW's and War Crimes (Apr. 7, 2003), http://www.au.af.mil/au/awc/awcgate/dod/
t04072003_t407genv.html. When asked whether the United States was an occupying power in
Iraq, W. Hays Parks, Special Assistant to the Army Judge Advocate General, replied: "Obviously,
we occupy a great deal of Iraq at this time. But we are not, in the technical sense of the law of war,
a military occupier or occupation force."

18. John Kampfner, Blair Was Told It Would Be Illegal to Occupy Iraq, NEW STATESMAN,
May 26, 2003, available at http://www.newstatesman.com/200305260010.

19. L. Elaine Halchin, Congressional Research Service, The Coalition Provisional Authority
(CPA): Origin, Characteristics, and Institutional Authorities 1-2 (Apr. 29, 2004), available at
http://www.fas.org/man/crs/RL32370.pdf.

20. S.C. Res. 1472, U.N. Doc. S/RES/1472 (Mar. 28, 2003). However, this Resolution was am-
biguous and did not expressly say that the occupation had begun.

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Eyal Benvenisti and Guy Keinan

21. Plan Unveiled for Iraq (Apr. 15, 2003), http://www.abc.net.au/news/stories/2003/04/15/
832822.htm. Principle 13 stated: "The Iraqi participation in the Nasiriyah meeting voted that
there should be another meeting in 10 days in a location to be determined with additional Iraqi
participants and to discuss procedures for developing an Iraqi interim authority."

22. Paul Bowers, Iraq: Law of Occupation, House of Commons Library Research Paper 03/
51 (June 2, 2003), available at http://www.parliament.uk/commons/lib/research/rp2003/rp03
-051.pdf [hereinafter Research Paper 03/51].

23. Roberts, supra note 1 5, at 6 1 n. 1 2. It is not clear how the CPA was legally established. See
Halchin, supra note 19, at 4.

24. Letter 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 Ad-
dressed to the President of the Security Council, U.N. Doc. S/2003/538 (May 8, 2003).

25. Committee on Foreign Affairs Written Evidence, Memorandum from the Foreign and
Commonwealth Office (May 13, 22, 2003), available at http://www.publications.parliament.uk/
pa/cm200203/cmselect/cmfaff/405/405we04.htm.

26. Noah Feldman, What We Owe Iraq: War and the Ethics of Nation Building
54-56 (2004).

27. S.C. Res. 1483, U.N. Doc. S/RES/1483 (May 23, 2003). As a "unified command," the
countries operating in Iraq "bear the brunt of joint responsibility for what is happening within
the area subject to their combined effective control." YORAM DlNSTEIN, THE INTERNATIONAL
LAW OF BELLIGERENT OCCUPATION 48 (2009). This unified command eventually took the form
of the Coalition Provisional Authority. For a discussion of the Authority's creation and struc-
ture, see Halchin, supra note 19. For an explanation of how the CPA fits in the legal framework of
the Hague Regulations, see Michael A. Newton, The Iraqi Special Tribunal: A Human Rights Per-
spective, 38 Cornell International Law Journal 863, 872 (2005).

28. S.C. Res. 1483, supra note 27, 1 5.

29. See infra pp. 274-76. The two States sought to obtain a UN mandate in order to "evade
legal difficulties if [they] sought to move beyond the limited rights conferred by the Hague Regula-
tions and Geneva Convention IV to vary existing arrangements." See Research Paper 03/51, supra
note 22, at 16.

30. S.C. Res. 1483, supra note 27, pmbl.

31. DlNSTEIN, supra note 27, at 39.

32. This arguably applies also to questions concerning the rules of engagement, which are
beyond the scope of this article.

33. See Eyal Benvenisti, The Law on Asymmetric Warfare, in LOOKING TO THE FUTURE:
Essays on International Law in Honor of W. Michael Reisman (Mahnoush Arsanjani,
Jacob Cogan, Robert Sloane & Siegfried Wiessner eds. (forthcoming 2010)).

34. Geneva Convention IV, supra note 5, art. 4.

35. See the determination of the International Criminal Tribunal for the former Yugoslavia
(ICTY) Trial Chamber in Prosecutor v. Naletilic & Martinovic, Case No. IT-98-34-T, Judgment,
H 221 (Mar. 31, 2003) (reasoning that "[o]therwise civilians would be left, during an intermediate
period, with less protection than that attached to them once occupation is established").

36. For the US military's failure to prevent the looting in Panama, see DONALD P. WRIGHT &
Timothy R. Reese, On Point II: Transition to the New Campaign: The United States
Army in Operation Iraqi Freedom, May 2003-January 2005, at 55 (2008), available at
http://www.globalsecurity.org/military/library/report/2008/onpoint/chap02-02.htm.

37. Frank Rich, And Now: 'Operation Iraqi Looting,' NEW YORK TIMES, Apr. 27, 2003, § 2, at 1 ,
available at http://www.nytimes.com/2003/04/27/arts/and-now-operation-iraqi-looting.html.

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The Occupation of Iraq: A Reassessment

38. Roger Cohen, The Ghost in the Baghdad Museum, NEW YORK TIMES, Apr. 2, 2006, § 2, at
1, available at http://www.nytimes.com/2006/04/02/arts/design/02cohe.html.

39. Convention for the Protection of Cultural Property in the Event of Armed Conflict, May
14, 1954, 249 U.N.T.S. 240, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 4, at 373,
available athttp://www.icrc.org/IHL.NSF/FULL/400?OpenDocument [hereinafter Hague Con-
vention on Cultural Property].

40. The Convention is relevant to the Iraq war assuming the Convention, which currently
has 123 parties, is customary law. When the war began, the United States and the United King-
dom were merely signatories (US ratification came on March 13, 2009); Iraq was a party.

41. Hague Convention on Cultural Property, supra note 39, art. 4(1).

42. The occupant is required to "support the competent national authorities of the occupied
country in safeguarding and preserving its cultural property" and "take the most necessary mea-
sures of preservation" (id., art. 5). Since lootings often erupt in the post-invasion, pre-occupation
phase, it is sensible to give cultural property a higher degree of protection, usually pertinent in
occupations, and oblige the invading power to actively secure art, archeology and similarly en-
dangered resources.

43. For these conditions see pp. 263-64 supra, as well as the ICTY's determination in
Naletilic & Martinovic, supra note 35, If 2 1 5. See also Prosecutor v. Kordic & Cerkez, Case No. IT-
95-14/2-T, Judgment, U 338-39 (Feb. 26, 2001).

44. The "one year after" rule probably never reflected customary law but was instead under-
stood as a specific reference to the post-WWII occupations in Germany and Japan. Adam Rob-
erts, Prolonged Military Occupation: The Israeli-Occupied Territories since 1967, 84 AMERICAN
JOURNAL OF INTERNATIONAL LAW 44, 57 (1990) ("In general, the 'one year after' provision of
1949 must be viewed as a legal oddity"). Professor Bothe and his fellow authors say:

Article 6(3) of the Fourth Convention . . . was a special ad hoc provision for certain
actual cases, namely the occupation of Germany and Japan after World War II. There is
no reason to continue to keep in force such provisions designed for specific historic
cases. In 1972 the majority of government experts expressed a wish to abolish these time
limits.

Michael Bothe et al., New rules for Victims of Armed Conflicts: Commentary on
the Two 1977 Protocols Additional to the Geneva Conventions of 1949, at 59 (1982).
According to Article 3(b) of Additional Protocol I, occupation law ceases to apply "on the
termination of the occupation." Protocol Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977,
1 125 U.N.T.S. 3, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 4, at 422. The ICJ
referred to Article 6(3) as relevant in the Wall advisory opinion (Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 1 36,
185 (July 9) [hereinafter Wall Advisory Opinion]), but it is widely accepted that this reference
was seriously flawed. See Michael J. Dennis, Application of Human Rights Treaties
Extraterritorially in Times of Armed Conflict and Military Occupation, 99 AMERICAN JOURNAL OF
INTERNATIONAL LAW 119, 134 (2005); Roberts, supra note 15, at 597; Ardi Imseis, Critical
Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion, 99
American Journal of International Law 102, 105-9 (2005).

45. This is clear from the text of Article 6(3) itself, which reads:

[I]n the case of occupied territory, the application of the present Convention shall cease
one year after the general close of military operations; however, the Occupying Power
shall be bound, for the duration of the occupation, to the extent that such Power
exercises the functions of government in such territory, by the provisions of the

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Eyal Benvenisti and Guy Keinan

following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59,

61 to 77, 143 [emphasis added].
In other words, occupation continues, but it is no longer subject to the entirety of the
Convention.

46. See Geneva Convention IV, supra note 5, art. 154, discussing the relationship between
the Geneva and Hague texts.

47. See, e.g., id., art. 47.

48. Roberts, supra note 15, at 616.

49. Id.

50. BENVENISTI, supra note 2, at 173.

51. S.C. Res. 1546, f 2, U.N. Doc. S/RES/1546 (June 8, 2004).

52. DINSTEIN, supra note 27, at 273 (the occupation ended "only 'notionally'"). While
Sassoli agrees that this was the legal effect of Resolution 1546, he criticizes it and calls it a "dan-
gerous precedent." Marco Sassoli, Legislation and Maintenance of Public Order and Civil Life by
Occupying Powers, 16 EUROPEAN JOURNAL OF INTERNATIONAL LAW 661, 684 (2005).

53. It is hard to point at a specific time when that happened. The assumption of authority
was gradual, just as the occupation did not end overnight. See Adam Roberts, The End of Occupa-
tion: Iraq 2004, 54 INTERNATIONAL & COMPARATIVE LAW QUARTERLY 27, 46 (2005), discussing
Iraq's status after June 28, 2003 ("The Interim Government, while exercising a wide range of gov-
ernmental decision-making powers, is constrained in key respects by its essentially caretaker
character, the formal restrictions as regards 'taking any decisions affecting Iraq's destiny', the
limitations on its treaty-making powers, and its weaknesses in certain areas when compared to
the position of external powers in Iraq").

54. See Eyal Benvenisti, The Law on the Unilateral Termination of Occupation, in A WISER
Century? Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years
AFTER THE SECOND HAGUE PEACE CONFERENCE 371, 379 (Thomas Giegerich ed., 2009).

55. For example, coalition forces must respect Common Article 3 of the Geneva Conven-
tions, as well as Article 75 of Additional Protocol I (both providing fundamental guarantees), as
long as they continue to participate in an armed conflict.

56. American and British laws may bind American and British soldiers, respectively, even
when the soldiers are stationed abroad. See Justice Barak's reasoning in HCJ 393/82 Jama'it
Askan Alma'amun v. Commander of IDF Forces [1983] IsrSC 37(4) 785, 810 ("Every Israeli sol-
dier carries in his backpack the customary rules of public international law relating to the laws of
war, as well as the basic rules of Israeli administrative law").

57. R (on the application of Al- Jedda) v. The Secretary of State for Defence [2007] UKHL 58,
U 39 [hereinafter Al-Jedda case].

58. Al-Saadoon and Mufdhi v. United Kingdom, App. No. 61498/08 (admissibility deci-
sion), If 79, http://www.echr.coe.int/eng ("The applicants were detained and transferred by
United Kingdom forces solely on the basis of decisions taken unilaterally by the Iraqi courts")
[hereinafter Al-Saadoon case]. The ECtHR had determined that this argument was not "mate-
rial" to the admissibility decision, and would be discussed in relation to the merits of the case. See
id., U 89.

59. CPA Order No. 54, Trade Liberalization Policy 2004 with Annex A (Feb. 24, 2004). All
CPA orders, regulations and memoranda are available at http://www.cpa-iraq.org/regulations/
(then hyperlink by name of order, regulation or memorandum).

60. CPA Order No. 64, Amendment to the Company Law No. 2 1 of 1997 with Annex A (Feb.
29, 2004).

61. CPA Order No. 74, Interim Law on Security Markets (Apr. 18, 2004).

281

The Occupation of Iraq: A Reassessment

62. CPA Order No. 78, Facilitation of Court-supervised Debt Resolution Procedures (Apr.
19, 2004).

63. CPA Order No. 80, Amendment to the Trademarks and Descriptions Law No. 2 1 of 1957
(Apr. 26, 2004).

64. CPA Order No. 83, Amendment to the Copyright Law (Apr. 29, 2004).

65. E.g., Roberts, supra note 15; Gregory Fox, The Occupation of Iraq, 36 GEORGETOWN
Journal of International Law 195 (2005).

66. CPA Order No. 39, Foreign Investment (Sept. 19, 2003).

67. CPA Order No. 74, supra note 61.

68. CPA Order No. 56, Central Bank Law with Annex A (Feb. 24, 2004).

69. CPA Order No. 64, supra note 60.

70. CPA Regulation No. 6, Governing Council of Iraq (July 13, 2003). See also S.C. Res. 1511,
1J4, U.N. Doc. S/RES/151 1 (Oct. 6, 2003) ("the Governing Council and its ministers are the prin-
cipal bodies of the Iraqi interim administration, which, without prejudice to its further evolu-
tion, embodies the sovereignty of the State of Iraq during the transitional period until an
internationally recognized, representative government is established and assumes the responsi-
bilities of the Authority"). The Governing Council was dissolved on June 1, 2004 (CPA Regula-
tion No. 9, Governing Council's Dissolution (June 9, 2004)) and replaced by the interim
government of Iraq (CPA Order No. 100, Transition of Laws, Regulations, Orders, and Direc-
tives Issued by the CPA (June 28, 2004)).

71. CPA Order No. 39, supra note 66, pmbl.

72. Id.

73. Id.

74. As articulated by CPA Order No. 78, supra note 62.

75. CPA Order No. 40, Bank Law with Annex A (Sept. 19, 2003).

76. CPA Order No. 39, supra note 66, pmbl.

77. Id.

78. See, for instance, CPA Orders No. 64, supra note 60; No. 74, supra note 61; No. 80, supra
note 63; No. 83, supra note 64.

79. CPA Order No. 80, supra note 63.

80. Theodore W. Kassinger & Dylan J. Williams, Commercial Law Reform Issues in the Re-
construction of Iraq, 33 GEORGIA JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 217, 218-
19 (2004).

81. Or as the Attorney General put it in late March 2003, "[T]he imposition of major struc-
tural economic reforms would not be authorised by international law." Kampfner, supra note
18.

82. Kayian Homi Kaikobad, Problems of Belligerent Occupation: The Scope of Powers Exercised
by the Coalition Provisional Authority in Iraq, April/May 2003-June 2004, 54 INTERNATIONAL &
COMPARATIVE LAW QUARTERLY 253, 260 (2005) (emphasis in original).

83. Committee on Foreign Affairs Written Evidence, supra note 25 ("Whilst the introduc-
tion of democratic changes in government can not be imposed by the Occupying Powers, this
does not affect the rights of the Iraqi people themselves to develop their own systems of govern-
ment. It is therefore permissible for the Occupying Powers to play a facilitating role in relation to
reforms genuinely undertaken by the people of Iraq themselves").

84. Id.

85. Id.

86. Fox, supra note 65, at 263.

282

Eyal Benvenisti and Guy Keinan

87. Hague Regulations, supra note 4, art. 43 ("The authority of the legitimate power having in
fact passed into the hands of the occupant, the latter shall take all the measures in his power to re-
store, and ensure, as far as possible, public order and safety, while respecting, unless absolutely
prevented, the laws in force in the country").

88. Benvenisti, supra note 1, at 646-47.

89. The occupant is required to ensure the humane treatment of protected persons, without
discriminating among them, and to respect, among other things, the protected persons' honor,
family rights, religious convictions and practices, and manners and customs. Geneva Conven-
tion IV, supra note 5, art. 27. Additionally, it is required to facilitate the proper working of all in-
stitutions devoted to the care and education of children (id., art. 51), provide specific labor
conditions (id., art. 52), ensure food and medical supplies to the population (id., art. 55), main-
tain medical services (id., art. 56), and agree to relief schemes and to facilitate them by all means
at its disposal (id., art. 59).

90. Gerhard von Glahn, The Occupation of Enemy Territory: A Commentary on
the Law and Practice of Belligerent Occupation 97 (1957); Morris Greenspan, The
Modern law of Land Warfare 224 (1959); Myres S. McDougal & Florentino P.
Feliciano, Law and Minimum World Public Order 767, 770 (1961); Odile Debbasch,
l'occupation militaire: pouvoirs reconnus aux forces armies hors de leur
Territoire National 1 72 ( 1 962) ; Lord McNair & Arnold Duncan Watts, Legal Effects
OF WAR 369 (1966). For a more conservative view, see Michael Bothe, Belligerent Occupation, in
4 Encyclopedia of Public International Law 65 (Rudolf Bernhardt ed., 1982); rudiger
Wolfrum, Developments of International Law in Treaty Making 9 (2005).

91. Armed Activities case, supra note 12, U 21 1.

92. ICJ (Wall Advisory Opinion, supra note 44); ECtHR (Loizidou v. Turkey, App. No.
15318/89, 23 Eur. H.R. Rep. 513 (1996) (merits) (the European Convention on Human Rights
applies to the part of Cyprus occupied by Turkey)); UN Human Rights Committee (Concluding
Observations of the Human Rights Committee: Israel, U.N. Doc. CCPR/C/79/Add.93 (Aug. 18,
1998), available at http://wwwl.umn.edu/humanrts/hrcommittee/israell998.html).

93. See, e.g., Roberts, supra note 44, at 70 ("the scope-of-application provisions of human
rights accords do not exclude their applicability in principle, even if they do, as noted below,
permit certain derogations in time of emergency"); ESTHER COHEN, HUMAN RIGHTS IN THE

Israeli-Occupied Territories 1967-1982, at 28-29 (1985); Benvenisti, supra note 2, at
187-89. But see Yoram Dinstein, Human Rights in Armed Conflict: International Humanitarian
Law, in HUMAN RIGHTS IN INTERNATIONAL LAW 345, 350-52 (Theodor Meron ed., 1985)
(stipulating that most human rights exist in peacetime but may disappear completely in war-
time; Dinstein later supported the simultaneous applicability of human rights law. See
DINSTEIN, supra note 27, 69-71).

94. DINSTEIN, supra note 27, at 1 13 (an occupant may repeal existing legislation that is in-
consistent with binding norms of international law such as Geneva Convention IV), 115 (the oc-
cupant may legislate "at the behest" of the local population), 116 (the occupant has a "right to
revise and even reform legislation in consonance with new developments"). Sassdli endorses an
expansive authority to legislate and he does so with the local population's best interests in mind.
Aside from the usual exceptions to the conservationist principle, he supports occupant legisla-
tion that is "essential for the implementation of IHL [international humanitarian law]" and that
realizes human rights law or maintains civil life (Sassoli, supra note 52, at 675-77). In his view,

[t]he occupying power . . . has an obligation to abolish legislation and institutions

which contravene international human rights standards [I]t may introduce only as

many changes as is absolutely necessary under its human rights obligations and must

283

The Occupation of Iraq: A Reassessment

stay as close as possible to similar local standards and the local cultural, legal and
economic traditions.

Id. at 676-77.

95. Roberts, supra note 15, at 620. One such scenario is when "the occupant and/or interna-
tional bodies properly refer to human rights law as providing a legal basis for changing certain
laws of the occupied territory, or even as setting goals for a transformative occupation." Id. at 60 1 .

96. Id. at 600.

97. Melissa Patterson, Note, Who's Got the Title? or, The Remnants ofDebellatio in Post-Invasion
Iraq, 47 HARVARD INTERNATIONAL LAW lOURNAL 467 (2006).

98. CPA Order No. 1, De-Ba'athification of Iraqi Society (May 16, 2003). See also CPA
Memorandum No. 1, Implementation of De-Ba'athification Order No. 1 (June 3, 2003).

99. Fox, supra note 65, at 277.

100. An alternative basis for the applicability of international human rights treaties in occu-
pied territories would be the law of occupation itself. Article 43 of the Hague Regulations re-
quires the occupant to respect "the laws in force in the country." To the extent that international
treaties, including human rights treaties, form part of the local law, the occupant is bound to re-
spect them as well. Hague Regulations, supra note 4, art. 43.

101. That did not keep the CPA from taking human rights considerations into account — e.g.,
CPA Order No. 19, Freedom of Assembly (July 9, 2003) {"Determined to remove the unaccept-
able restrictions on human rights of the former Iraqi Baath Party regime . . .").

102. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171,
reprinted in 6 INTERNATIONAL LEGAL MATERIALS 368 (1967).

103. United States Department of Defense, Working Group Report on Detainee Interroga-
tions in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational
Considerations 6 (Apr. 4, 2003), available at http://www.dod.gov/pubs/foi/detainees/working
_grp_report_detainee_interrogations.pdf. See also Brief for Appellees at 41-42, Al Odah v. U.S.,
321 F.3d 1134 (D.C. Cir. 2003) (No. 02-5251), available at http://www.aclu.org/hrc/Post911
_AlAdah_v_US.pdf.

104. Press Release, U.S. Mission to the U.N. in Geneva, General Comments of the United
States on Basic Principles and Guideline on the Right to a Remedy for Victims of Violations of
International Human Rights and Humanitarian Law (Aug. 15, 2003), cited in Michael J. Kelly,
Critical Analysis of the International Court of Justice Ruling on Israel's Security Barrier, 29
FORDHAM INTERNATIONAL LAW JOURNAL 181, 205 (2005).

105. The government maintained that the ECHR was "intended to apply in a regional con-
text in the legal space of the Contracting States." Letter from Adam Ingram, MP, UK Armed
Forces Minister, to Adam Price, MP (Apr. 7, 2004), cited in Ralph Wilde, The Applicability of In-
ternational Human Rights Law to the Coalition Provisional Authority (CPA) and Foreign Military
Presence in Iraq, 1 1 ILSA JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 485, 488-89
(2005). On that basis, the United Kingdom argued that, although it was an occupying power in
Iraq, it did not possess the needed degree of effective control for the ECHR to apply, and that
there was no general doctrine of "personal jurisdiction" in relation to the ECHR. Al-Skeini and
others v. Secretary of State for Defence [2004] EWHC 2911, J 287 [hereinafter Al-Skeini
[2004]]. Later, the United Kingdom maintained that its actions in Iraq were attributable to the
United Nations, thereby absolving it of any responsibility under the ECHR (Al-Jedda case, supra
note 57, at U 3, U 49).

106. Al-Skeini [2004], supra note 105, \ 287; Al-Skeini and others v. Secretary of State for
Defence [2007] UKHL26,U 132.

107. Al-Saadoon case, supra note 58, U 88.

284

Eyal Benvenisti and Guy Keinan

108. S.C. Res. 1483, supra note 27, ^ 4.

109. Id.^5.

1 10. U.N. SCOR, 58th Sess., 4761st mtg. at 1 1-12, U.N. Doc. S/PV.4761 (May 22, 2003).

111. S.C. Res. 1483, supra note 27, U 4.

112. M,f8.

113. Eyal Benvenisti, Water Conflicts during the Occupation of Iraq, 97 AMERICAN JOURNAL
of International Law 860, 863 (2004).

114. For the rise of human rights in international law, see THEODOR MERON, THE
HUMANIZATION OF INTERNATIONAL LAW (2006). For an evolutionary interpretation of treaties,
see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971
I.C.J. 16, 31 (June 21); World Trade Organization, Appellate Body Report, United States —
Import Prohibition of Certain Shrimp and Shrimp Products ffl[ 129-30, WT/DS58/AB/R (Oct. 12,
1998); Richard Gardiner, Treaty Interpretation 251-56 (2008).

115. For a discussion of derogation from jus cogens rights by the Council, see Case T-315/1,
Yassin Abdullah Kadi v. Council of European Union and European Commission, [2005] ECR II-
3649, 1 230; Erika De Wet, The Role of Human Rights in Limiting the Enforcement Power of the
Security Council: A Principled View, in REVIEW OF THE SECURITY COUNCIL BY MEMBER STATES 7,
22 (Erika De Wet et al. eds., 2003); Dapo Akande, The International Court of Justice and the
Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United
Nations?, 46 INTERNATIONAL & COMPARATIVE LAW QUARTERLY 309, 322 (1997). See also Marten
Zwanenburg, Existentialism in Iraq: Security Council Resolution 1483 and the Law of Occupation,
86 International Review of the Red Cross 745, 760-66 (2004). But see Greg Fox,
Humanitarian Occupation 211-13 (2008).

1 16. For the principle of self-determination as an erga omnes obligation, see East Timor (Port,
v. Austl.), 1995 I.C.J. 90, 102 (June 30). For the principle as also a jus cogens right, see Draft Arti-
cles on Responsibility of States for Internationally Wrongful Acts, Report of the International
Law Commission on the Work of its Fifty- third Session 113, U.N. GAOR, 56th Sess., Supp. No.
10, at 48, U.N. Doc. A/56/10 (2001), available at http://untreaty.un.org/ilc/texts/instruments/
english/draft%20articles/9_6_2001.pdf; ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES:
A Legal Reappraisal 320 (1995).

117. BENVENISTI, supra note 2, at 213-14.

118. Benvenisti, supra note 1, at 623.

119. See also Yehuda Z. Blum, UN Membership of the "New" Yugoslavia: Continuity or Break?,
86 AMERICAN JOURNAL OF INTERNATIONAL LAW 830, 833 (1992) ("Yugoslavia has been sus-
pended from the General Assembly, pending reconsideration of the matter by the Council . . ., in
a manner not foreseen by the Charter ...").

120. On these, see Ralph Wilde, International Territorial Administration: How
Trusteeship and the Civilizing Mission Never Went Away (2008); Carsten Stahn, The
Law and Practice of International Territorial Administration: Versailles to Iraq
and Beyond (2008).

121. While the United States and the United Kingdom were both occupants in Iraq and per-
manent members of the Council, their interests were balanced by the presence of other perma-
nent members, most notably China and Russia.

122. The occupants were merely "encourage [d] " to "inform the [Security] Council at regular
intervals of their efforts . . ." (S.C. Res. 1483, supra note 27, 1 24). There is no evidence of such
regular notifications.

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The Occupation of Iraq: A Reassessment

123. Memorandum Opinion from Jack L. Goldsmith III, Assistant Attorney General, to the
Counsel to the President, "Protected Person" Status in Occupied Iraq under the Fourth Geneva
Convention (Mar. 18, 2004), available at http://www.usdoj.gov/olc/2004/gc4marl8.pdf.

124. Memorandum from Jack L. Goldsmith III, Assistant Attorney General, to William H.
Taft, General Counsel, Department of State, Re: Draft Opinion Concerning Permissibility of Re-
locating Certain "Protected Persons" in Occupied Iraq (Mar. 19, 2004), available at http://
www.washingtonpost.com/wp-srv/nation/documents/doj_memo031904.pdf; Leila Nadya Sadat,
Ghost Prisoners and Black Sites: Extraordinary Rendition under International Law, 37 CASE
Western Reserve Journal of International Law 309, 324-38 (2006); David Weissbrodt &
Amy Bergquist, Extraordinary Rendition and the Humanitarian Law of War and Occupation, 47
Virginia Journal of International Law 295, 320-43 (2007).

125. Michael Ottolenghi, The Stars and Stripes in Al-Fardos Square: The Implications for the
International Law of Belligerent Occupation, 72 FORDHAM LAW REVIEW 2177, 2205-10 (2004)
(discussing the use of Iraqi oil); Frederick Lorenz, Strategic Water for Iraq: The Need for Planning
and Action, 24 AMERICAN JOURNAL OF INTERNATIONAL LAW 275, 280, 285, 296-98 (2008); Amy
Hardberger, Whose Job Is It Anyway? Governmental Obligations Created by the Human Right to
Water, 41 TEXAS JOURNAL OF INTERNATIONAL LAW JOURNAL 533, 561-63 (2006).

286

PART VI

STABILITY OPERATIONS IN IRAQ

XIV

Counterinsurgency and Stability Operations:
A New Approach to Legal Interpretation

Dale Stephens*

Introduction

We live in the postmodern era of warfare, 1 where small-scale, intra-State
conflict is increasingly becoming the norm. While the modern era con-
ceived of war and warfighting as a large-scale, inter-State conflict waged between
massed professional armies, 2 the postmodern era perceives conflict as "war among
the people" 3 where technological advantage, massive firepower and physical ma-
neuver can count for little in the struggle for ascendancy. 4 It turns out that such
conflict can be as deadly and as strategically significant as conventional warfare.

The US military in its recent reconceptualization of how such wars are to be ef-
fectively engaged (and how victory is to be meaningfully measured) has embraced
the realities of the emergent postmodern style of warfare. The recently published
U.S. Army/Marine Corps Counterinsurgency Field Manual 5 and its companion vol-
ume, The U.S. Army Stability Operations Field Manual, 6 portray a somewhat
counterintuitive model for prevailing in these postmodern conflicts. Significantly,
the methodologies these manuals espouse are written against the background of
bitter experience of conflict in Iraq and Afghanistan. Indeed, partially through ne-
cessity, these doctrines emerged from reflection about these conflicts and took

* Captain, CSM, Royal Australian Navy. All views expressed in this article are solely those of the
author and do not necessarily reflect the views of the Australian government, Department of
Defence or Royal Australian Navy.

COIN and Stability Operations: A New Approach to Legal Interpretation

account of "counterinsurgency best practice." 7 The tactics and doctrine reflected
in these manuals worked to stave off near defeat, especially in the Iraq theater of
operations during the 2007 "surge." 8

Paradoxically, while military doctrine has managed a self-conscious leap in per-
spective regarding means and methods of warfare, there has been a correlative lack
of innovation within established mainstream legal thinking, at least in the prevail-
ing literature. 9 A formalist methodology of interpretation and a continued com-
mitment to the attritional focus of the law of armed conflict (LOAC) remain the
prevalent orthodoxy, notwithstanding that such binary thinking has proven to
have had limited utility within counterinsurgency (COIN) and stabilization opera-
tions. There is plainly a need for renewed thinking, or at least an appreciation of the
direction warfare is going, so that interpretative techniques employed in LOAC
may be reimagined and recalibrated in order to remain relevant to operational
realities. This paper seeks to facilitate that process.

Part I of the paper will survey the themes contained in the counterinsurgency/
stability operations manuals and will contrast these to the prevailing intellectual
framework which underpins LOAC. Part II examines the key principles of "dis-
tinction" and "proportionality" under LOAC and argues that a reconceptualized
interpretative approach to implementing these principles is required. A particular
emphasis will be placed on the rules/standards dichotomy in order to better reveal
the limits of formalist thinking. Finally, Part III will canvass the challenges and
choices available to an operational legal advisor when operating during COIN/
stability operations consistently with revised doctrine.

Part I. COIN and Stability Operations: A New Doctrinal Paradigm

Counterinsurgency Doctrine

The strategic-political realities of the Cold War prompted preparation for large-
scale, inter-State "industrial" warfare. 10 Technology, firepower and maneuver
were key elements in designing effective and efficient combat for massed profes-
sional armies. Rationalist strategizing provided the necessary gestalt and the "tools
of modernity" 11 were expected to deliver operational success. According to Lieu-
tenant General Sir John Kiszely, it was a model that relied upon "more advanced
technology, firepower, lethality, speed, stealth, digitization, logistics, network-
centric warfare [and] hi-tech 'shock and awe/" 12 These features still underpin the
requirements of fighting conventional warfare. Indeed, conventional warfare still
occurs, but is not the likely anticipated scenario for future warfighting.

The reality of postmodern warfare is what has been occurring in "post-conflict"
Iraq and Afghanistan in recent years. Such conflicts are mostly non-international

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in character and are typically manifested as small internecine warfare where non-
State actors employ asymmetric means against State military forces. The envi-
ronment in which this warfare is undertaken is one of mixed peace and war. The
deployment of armed State forces within such conflicts has been difficult to recon-
cile with "first order" conventional warfare training and preparation. Such conflict
has been variously described as, inter alia, "military operations other than war"
(MOOTW), peacekeeping, peace enforcement, "wider peacekeeping," low intensity
conflict and "gray area operations." 13 These terms are not interchangeable, as they
differ according to legal and doctrinal authority and the nature of the deployment,
but they all share common elements which separate them from conceptions of
conventional warfare. These operations have required different and more nuanced
skills, though it was thought that conventional warfare training could be "ratcheted
down" to apply to such operations. 14 Such assumptions were not well placed.

The US COIN Manual grapples with the new realities of postmodern war and
recommends decisive change. Indeed, the introduction to the manual makes it
very clear that it is intended to be "paradigm shattering." 15 Within the first para-
graph of the introduction, the point is forcefully made that "[t]hose who fail to see
the manual as radical probably don't understand it, or at least understand what it's
up against." 16 The manual provides that while all insurgencies are sui generis, there
are common characteristics that apply to all and there are patterns of operational
response that have been proven to be effective. The manual evidently borrows from
classic counterinsurgency works relating to the British experience in Malaya 17 and
the French experience in Algeria, 18 and it also updates the work that had been un-
dertaken during the Vietnam conflict. 19 Most significantly, it draws upon contem-
porary experience in Iraq and Afghanistan in detailing a number of principles
labeled "paradoxes of counterinsurgency operations" 20 that provide a conceptual
framework for operational planning.

In very clear terms the manual outlines the elements of an insurgency and iden-
tifies the requirements that must be met in order to prevail. The doctrine is con-
frontational and counterintuitive to that which is required for conventional
warfare. The manual painstakingly describes that an insurgency is fundamentally a
political struggle, where the center of gravity is the population, which remains "the
deciding factor in the struggle." 21 It is asserted that insurgents invariably use unlaw-
ful means to intimidate the population and discredit the legitimate government.
Such unlawful means are designed to bring about an overreaction by counterinsur-
gent forces. Violence is the currency of an insurgency and destabilizing the legiti-
macy of the host-nation government and its supporting counterinsurgent forces a
strategic goal. 22 Provoking violation of counterinsurgent ethics and values in react-
ing to an insurgency is a means to secure that goal. This perspective is highlighted

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by counterinsurgent specialist David Kilcullen when describing the operational
modus operandi of Al Qaida in Iraq as one that relies upon provocation, intimida-
tion, protraction and exhaustion, and drawing the majority of its strength from the
"backlash engendered by counter- insurgent overreaction rather than genuine
popular support." 23 The COIN Manual describes that "[t]he real battle is for civil-
ian support for, or acquiescence to, the counterinsurgents and host nation govern-
ment. The population waits to be convinced. Who will help them more, hurt them
less, stay the longest, earn their trust?" 24 Thus the primary purpose of a counterin-
surgency is "securing the civilian, rather than destroying the enemy." 25

In countering an insurgency, traditional thinking regarding combat and the
application of overwhelming force acts as a negative factor. "Cartesian or
reductionist" 26 logic that is so ingrained in military staff training as the primary
means for problem solving offers little assistance. The temptation to act, "to do
something," 27 is likely the wrong response; rather, the better solution in a tactical
sense may be to exercise patience, "to do nothing." 28 Such an approach is chal-
lenging to the military ethos; Sir John Kiszely notes that counterinsurgency "re-
quires . . . warriors to acquire some decidedly un-warrior-like attributes, such as
emotional intelligence, empathy with one's opponents, tolerance, patience, sub-
tlety, sophistication, nuance and political adroitness." 29 The battle is not con-
ceived in the ordinary "formulaic and mechanistic" 30 sense but rather is more
conceptual, relying heavily upon sociological and psychological inputs. Kiszely
reinforces the need to work smarter rather than harder when conceptualizing the
counterinsurgency strategy, noting in tandem with the COIN Manual that de-
priving the insurgents of popular support and winning it oneself is the key
objective:

[T]he contest takes place not on a field of battle, but in a complex civilian environment

Nor is it a primarily military contest The war, is in large part a war of ideas, the

battle largely one for perception, and the key battleground is in the mind — the minds
of the indigenous population, and the minds of regional and world opinion. 31

Kiszely approvingly cites classic counterinsurgency expert David Galula's estima-
tion of effort in battling an insurgency as "twenty percent military, eighty percent
political [as] a formula that reflects the truth." 32 The psychological imperatives are
reiterated in General Rupert Smith's analysis in The Utility of Force when he ob-
serves that " [w]ar amongst the people is different: it is the reality in which the peo-
ple in the streets and houses and fields — all the people, anywhere — are the
battlefield." 33 Kilcullen notes more pragmatically that "[i]n [a] population-centric
strategy, what matters is providing security and order for the population, rather

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than directly targeting the enemy — though this type of strategy will also effectively
marginalize them." 34

The implications of the revised COIN doctrine are far-reaching. The manual
lists a number of contemporary counterinsurgency imperatives that should guide
planning and execution. 35 These principles have been replicated in operational
guidelines within Multi-National Force-Iraq (MNF-I) protocols 36 and have, in
fact, become operationalized over the past few years. Their import is significant
with respect to both military ethos and public expectation, and, as will be demon-
strated infra, also with respect to classic legal reasoning under LOAC. The princi-
ples of legal relevance recognized within the manual include the following
contemporary "paradoxes":

• "Sometimes, the more you protect your force, the less secure you may be," 37

• "Some of the best weapons for counterinsurgents do not shoot," 38

• "Sometimes, the more force is used, the less effective it is," 39 and

• "The more successful the counterinsurgency is, the less force can be used
and the more risk must be accepted." 40

It is evident that COIN doctrine does knowingly place greater physical risk on
counterinsurgent forces. It concedes that choices will need to be made that will re-
sult in higher counterinsurgent casualties. These truisms necessarily test resolve, 41
as well as public expectation. The questions of insurgent targeting and the formu-
lation of collateral/incidental damage/injury assessments in this new intellectual
environment play a pivotal part of the COIN strategy. Significantly, they do so in a
manner that reverses expectations and conventional reasoning. As will be dis-
cussed infra, a revised interpretative lens must be applied when grappling with
these legal tests. Such analysis reconfigures the current self-contained ethical
certainties currently underpinning traditional LOAC reasoning.

Stability Operations

Stability operations are incorporated into modern COIN 42 and form part of the so-
called "full-spectrum operations" operational design. COIN and stability opera-
tions are likely to be conducted conjointly but emphasize different aspects of the
continuum. Stability operations doctrine shares the COIN aversion to kinetic op-
erations though it is more dedicated to broader capacity building. 43 Stability opera-
tions are defined within US joint doctrine as follows:

[Stability operations encompass] various military missions, tasks, and activities
conducted outside the United States in coordination with other instruments of
national power to maintain or reestablish a safe and secure environment, provide

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COIN and Stability Operations: A New Approach to Legal Interpretation

essential governmental services, emergency infrastructure reconstruction, and
humanitarian relief. 44

Despite the overwhelming emphasis previously placed upon conventional war-
fare preparation, the Stability Operations Manual notes that the US military has, in
fact, only been involved in eleven conventional conflicts during its entire history. 45
Conversely it has been involved in hundreds of operations that may be identified as
stability operations. Significantly, since the fall of the Berlin Wall alone, the manual
notes that US forces have been involved in fifteen stability operations. 46 The Stabil-
ity Operations Manual represents a decisive "moment" where such operations are
squarely addressed and where doctrine is both tailor-made and comprehensive.

Stability operations are principally concerned with post-conflict operations.
The (in)famous phase IV element of the Operation Iraqi Freedom campaign plan,
for example, was not accorded a particularly high priority during the planning and
execution phases of the Iraqi conflict, 47 and yet was supposed to deal with stabiliza-
tion. The failure to implement a comprehensive stabilization policy self- evidently
represented a significant strategic failure. As a result of that experience, and the
recalibration of enlightened doctrinal thinking, stability operations have been for-
mally accorded a high priority within the planning framework. US Department of
Defense Directive 3000.05 stipulates that

Stability Operations are a core U.S. military mission that the Department of Defense
shall be prepared to conduct and support. They shall be given priority comparable to
combat operations and be explicitly addressed and integrated across all [Department
of Defense] activities including doctrine, organizations, training, education, exercises,
material, leadership, personnel, facilities, and planning. 48

Stability operations are predicated upon the strategic proposition that in the
contemporary environment, US security is threatened more by weak and failing
States, which can act as sanctuaries for multinational terrorist networks, than by
traditional strong nation-State entities. 49 The institutional design that underpins
stability operations is the creation in a post-conflict State of an environment that
facilitates reconciliation; establishes the development of political, legal, social and
economic institutions; and facilitates transition to a legitimate civil authority oper-
ating under the rule of law. 50 It does deal with capacity building (indeed, embrac-
ing the previously maligned notion of "nation building") and procedurally adopts
an interagency focus. 51 DoctrinaUy, the US military's role in stability operations is
to assist the US Department of State, which is to lead in these efforts, 52 but also
principally to provide the necessary security to permit these conditions to
manifest.

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Dale Stephens

The stability operations doctrine has, not surprisingly, been dismissed as Uto-
pian in design. 53 The doctrine's precepts of providing "basic public services, physi-
cal reconstruction, the hope of economic development and social amelioration" 54
have been criticized by commentators such as Edward Luttwak, who query
whether models of Western liberal democracy (and the efforts required to create
such societies) are really the only political structures that will provide sufficient sta-
bility for US security interests.

Notwithstanding these criticisms, stability operations doctrine and the integral
capacity-building elements have been strongly identified by counterinsurgency ex-
perts as being a critical factor in effectively combating an insurgency. In describing
the factors that contributed to the success of the 2007 Iraq "surge," for example,
Kilcullen notes, "[W]e conducted operations to support the rule of law, which
helped deal with 'accelerants,' and we introduced what we might call 'decelerants'
such as political reconciliation and building competent, nonsectarian governance
and national institutions, which helped slow and reduce the intensity of the vio-
lence." 55 Indeed, Kilcullen criticizes the prevalent thinking that underpinned the
original Operation Iraqi Freedom planning for failing to anticipate the military le-
verage required to facilitate Iraqi governmental capacity to ameliorate sectarian
tendencies: "[B]ecause our focus was on transition rather than stabilization, on
getting ourselves out no matter what the situation was on the ground, we lacked
the presence or relevance to generate that leverage." 56

Like the COIN doctrine, the Stability Operations Manual implicitly acknowl-
edges that there is a finite limit in the ability of military force to achieve societal
outcomes. It has become a necessary feature of postmodern conflict today that
such recognition of the limitations of force is indispensible to strategic success.
These lessons are learned over and over and yet have been demonstrated to
achieve success in the context of multiple UN peace operations where stability-
type functions have formed a core element of Security Council peace-keeping/
peace-enforcement mandates. 57

There remains considerable debate on the meaning of "rule of law" within the ac-
ademic literature and how it may be measured. Some perceive it as the external indi-
cia of a functioning legal system — that is, the establishment of police forces and
stations, courthouses and prisons — namely an institutionalist perspective, 58 whereas
other more substantively based conceptions equate rule of law success to the acqui-
sition of internal values within the society and especially the power elites. 59 This
too may draw the critique of imperialism, especially in its emphasis upon interna-
tional human rights (HR) standards being externally imposed upon a prevailing
culture. 60 Notwithstanding these critiques, the implementation of a rule of law
program is seen, under stability operations doctrine, as a fundamental feature in

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building host-State legitimacy, 61 though as will be subsequently addressed, it is not
without its own operationally significant difficulties.

Part II. The Law of Armed Conflict: Interpretative Paradigms in
COIN/Stability Operations

The law of armed conflict reflects an amorphous panoply of historical influences.
Sovereignty is represented in its preeminent, as well as disaggregated, forms, as are
the humanitarian impulses that act as a counterbalance to sovereign military
rights. In form, it displays a jumble of sharp distinctions, positivist freedom, hu-
manitarian obligations and, of course, the perennial interpretative interplay be-
tween rules and standards.

The interdependence of rules and standards and between law and policy forms
the foundational structure and the basic intellectual framework for tackling the
paradoxes of restraint and freedom under the law. In discerning the correct inter-
pretative valence of the law of armed conflict either in conventional warfare or un-
der the more attenuated circumstances of COIN/stability operations, it is
especially critical to investigate the well rehearsed "dialectic" 62 reasoning that is
employed when reconciling the advantages and disadvantages of employing rules
and standards and their respective modalities.

The purpose of this Part, therefore, is to survey interpretative techniques under
the framework of the rules/standards dichotomy as applicable to the law of armed
conflict. As the previous Part has demonstrated, there is a decisive shift in
reimagining the way the law should be applied in COIN/stability operations in or-
der to achieve definitive military goals. Rules necessarily carry with them a level of
rigidity that potentially resists incorporation of "policy," whereas standards have
always been open to a more intuitive application of socio-legal norms. In the COIN
environment these traditional approaches have been upended somewhat, especially
in relation to the LOAC concepts of distinction (a rule) and proportionality (a
standard). This author will argue that in shaking these prima facie perspectives, the
COIN doctrine has created a fissure that reveals the limits of the traditional certain-
ties concerning interpretative valence. Simultaneously, however, we get an ex-
tremely insightful glimpse into the policy/legal interplay that underpins all
international law and which offers a unique opportunity for a more normatively
based and savvy approach to interpretation.

Rules and Standards

In his seminal article "Form and Substance in Private Law Adjudication" 63 Duncan
Kennedy provides an illuminating account of the jurisprudence of rules and

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standards. Kennedy notes that such jurisprudence is "premised on the notion that
the choice between standards and rules of different degrees of generality is signifi-
cant, and can be analyzed in isolation from the substantive issues that the rules or
standards respond to." 64 Dealing first with rules, Kennedy identifies particularly
the dimension of "formal realizability," 65 which acts to give rules their "ruleness." 66
Hence a rule may be construed as a directive that is issued in language that directs
action in a determinate way to test factually distinguishable situations. 67 Standards,
on the other hand, are more fluid and refer to directives that relate directly to one
of the substantive objectives of the legal order. Kennedy notes that examples of
standards are found in principles of "good faith," "due care," "fairness," etc. 68
Thus, when dealing with a standard, a judge is required to "both discover the facts
of a particular situation and to assess them in terms of purpose or social values em-
bodied in the standard." 69 This process is plainly a more freewheeling exercise
where underpinning values intentionally play a bigger role in the ex post reasoning
that is required under this regime. It also allows for a more instrumental applica-
tion of the law.

Pierre Schlag offers a similar, if more fused, explanation, identifying both rules
and standards as directives comprised of two parts, namely a "trigger" and a "re-
sponse." 70 The "trigger" maybe empirical or evaluative. 71 A rule paradigmatically
comprises a hard empirical trigger and a hard determinate response; hence he of-
fers that a rule may be stated as follows: "sounds above 70 decibels shall be pun-
ished by a ten dollar fine." 72 In contrast, Schlag defines standards as having a soft
evaluative trigger and a soft modulated response, identifying an example of a stan-
dard as "excessive loudness shall be enjoinable upon a showing of irreparable
harm." 73 Rules and standards may both be general or particular, may be condi-
tional or absolute, narrow or broad, weak or strong. 74 Rules are thought to be more
costly in terms of their development with legislators or courts, employing greater
work in anticipating future variables they wish covered, and are perceived to be less
cost intensive in their application. Standards, on the other hand, offer a reverse
cost/benefit symmetry, being less costly to develop and more costly to apply in each
instance, requiring greater analysis and appreciation of both particular and sur-
rounding circumstances. 75

The acknowledged benefits of rules are that they encourage certainty and guard
against official arbitrariness. 76 Individuals may thus plan their affairs more confi-
dently knowing the boundaries of permissible and forbidden conduct. This may,
however, permit "close sailing" to social limits by canny individuals who are able to
more precisely order their activities to follow, but not exceed, strict limits. 77 This
may, in turn, foster more socially suspect behavior as a "fixed cost" of doing busi-
ness. 78 Standards, on the other hand, require individualized judgments about

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substantive compliance/violation that permit endorsed policy considerations to
play a significant role in the balancing that invariably takes place. 79 Conversely, the
ambiguity about where the limits may lie within a standard can have a "chilling ef-
fect" upon individuals, who may desist from socially useful or desirable activities
because of self-imposed margins of appreciation to assumed limits. 80 Standards
lack the certainty of rules and determinations having little precedential value are
usually the result.

Because rules can also be general, judges (and other decisionmakers) may end
up providing ad hoc exceptions and variations to their interpretations that act over
time to seriously undermine the certainties anticipated. 81 There may be other rules
that are more particular in character and which act to contradict general rules, or at
least carve out specific areas of independent operation. Indeed, the historic positiv-
ist/realist debate revolves around the very choices permitted when interpreting
rules. H.L.A. Hart's "soft positivism," for example, anticipates a broad settled
"core" of meaning in the interpretation of rules and a smaller "penumbra" of de-
batable meaning. 82 Legal realists find Hart's assertions to be somewhat overstated,
at least in the context of appeal cases, and, while equally relying upon the positivist
frame of rules as having determinative effect, find greater discretion within legal
culture when applying particularized canons of interpretation to reach socially
cognizable outcomes. 83

The Law of Armed Conflict Interpretative Structure

Evidencing its evolutionary historical development, the modern law of armed
conflict displays ample evidence of both hard empirical rules and more fluid
evaluative standards within its structure. These were products of different histori-
cal attitudes toward questions of sovereignty and more recently reflect questions
of legitimacy. 84 Given the historical longevity of this body of law, fulsome positive
freedoms are invariably argued in favor of military discretion and the prevailing
treaty rules, especially those from the nineteenth and early twentieth centuries,
tend to accommodate such advocacy. It needs to be recalled that a great propor-
tion of the modern law of armed conflict was fashioned at a time when interna-
tional jurisprudence was reluctant to presume limitations upon sovereignty. 85
Against this backdrop it is not altogether surprising that humanitarian advocates
modified their strategy in the post- World War Two environment to introduce a
new narrative to the substance of the law. The incorporation of standards into the
LOAC lexicon was anticipated to better achieve humanitarian outcomes within
orthodox interpretative attitudes. 86 Moreover it seemed to permit greater partner-
ship with military voices in exercising statecraft. 87

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Mainstream LOAC literature tends toward a classic "soft positivism" in its in-
terpretative valence. Language is parsed carefully and the pedigree of legal norms
assessed very carefully. 88 It has largely been a "closed system" of interpretative anal-
ysis, where there are exclusive relationships between legal ideas 89 and where lan-
guage and its syllogistic interpellation play a key role in divining legal meaning.
Under this theory, legal practitioners and judges alike are able to skillfully employ
these interpretative techniques to arrive at the "correct" legal answer in each case.
Of course, it axiomatically reflects the "Hartian" themes of interpretation. It is this
author's contention that such a methodological view has its unacknowledged limi-
tations especially in the context of COIN/stability operations. This article examines
the key LOAC principles of distinction and proportionality under the aegis of the
new doctrinal orientation applicable to postmodern warfare and will make a case
for acknowledging a revised measure of interpretative approach.

The Principle of Distinction

The principle of distinction has been described as a "cardinal" principle of the law
of armed conflict by the International Court of Justice (ICJ). 90 Indeed, the principle as
reflected in Additional Protocol I to the 1949 Geneva Conventions (GPI) 91 is titled
the "Basic Rule" in Article 48, which states:

In order to ensure respect for and protection of the civilian population and civilian
objects, the Parties to the conflict shall at all times distinguish between the civilian
population and combatants and between civilian objects and military objectives and
accordingly shall direct their operations only against military objectives.

Violation of Article 48 is deemed a "grave breach" by virtue of Article 85(3) (a)
of GPI, 92 and under Article 85(5) is further defined as a "war crime" 93 that "High
Contracting" parties have a duty to repress and for which they have a duty to ensure
appropriate penal and disciplinary consequences are imposed. These obligations
extend to both subordinates and superiors who come within the ambit of com-
mand responsibility. 94 Given the central place of the principle of distinction in the
LOAC firmament, it is not surprising that it has been accorded such stature.

The terms of Article 48 appear clearly to be a "rule." Invoking Kennedy's criteria,
it is clear that there is a high degree of formal realizability in its terms. A distinction
"at all times" is to be made between "combatants" and the "civilian population," as
well as "military objectives" and "civilian objects," and parties are obliged to "di-
rect operations only against military objectives" and, by implication, "combat-
ants." The directive plainly contains the hard empirical trigger and hard
determinative response. Combatants and military objectives only may be attacked

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COIN and Stability Operations: A New Approach to Legal Interpretation

and civilians and civilian objects may not. Violation of this "Basic Rule" is deemed
both a "grave breach" and a "war crime."

As with all generally stated directives, this rule is both under- and over-
inclusive. 95 The operation of other provisions within GPI 96 (as well as Additional
Protocol II (GPII) for non-international armed conflict 97 ) make an exception for
the rule against attacking civilians in the case of those civilians who take a "direct
part" in hostilities, for "such time as they take a direct part." 98 International dia-
logue on the issue of direct participation in hostilities (DPH) has, over recent years,
mapped out a series of functional categories for those civilians who may lose their
immunity. 99 The consensus view would seem to be that DPH extends down the
causal chain from primary "shooter" or "bomb layer" to include (among others) ci-
vilian planners and tactical facilitators, at least in relation to organized armed groups
whose members assume a "continuous combat function" in non-international
armed conflict. 100 Such expansion exceeds what the original drafters of the GPI
seemed to anticipate, 101 though the expansion does reflect emergent operational
realities and associated State practice. Current perspectives have nonetheless set
what appear to be policy limits on the breadth of the loss of immunity (despite the
logic of "continuous combat function" extending down the causal chain). Hence
financiers and those inciting such participation through propaganda are not con-
sidered to come within the DPH rubric, 102 notwithstanding that such activity has
great strategic and operational significance on sustaining a conflict, especially in an
insurgency. 103 Thus, by virtue of a combination of legal construction and the arti-
fice of applied policy, certain civilians lose their immunity and others don't under
the DPH formula. Some determinations are based upon a logical deduction from
what "direct participation" connotes, and others are based upon policy reasons
which seek to exclude those who might otherwise be caught by logically assessing
their functional impacts in inciting or sustaining an insurgency. 104 These catego-
ries have been relatively clearly defined and articulated, and have been subject to
close superior court scrutiny in at least one domestic legal system. 105 They may also
be reasonably appreciated in any "kill-capture" targeting methodology undertaken
by an opposing military force. It is, to paraphrase Kennedy, a relatively classic appli-
cation of a list of distinguishable factual criteria that allows intervention in a deter-
minate way. One is able to compile a "list" from a review of authoritative legal
materials and can verify via this list whether an individual's function puts him/her
inside or outside the veil of immunity.

Accordingly, there appears to have been the development of a rule that, while
still relatively general, permits a confident appreciation of boundary. Military ac-
tion based upon this directive may be executed to the limits tolerated by the law
and, of course, canny military/legal planning may indeed permit "close sailing"

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while still purchasing the "moral absolutism" that "complying with the law"
provides.

While providing a firm lawful basis for the conduct of "kill-capture" operations,
the law itself is predicated upon a different theoretical model from that which ap-
plies in the context of COIN/stability operations. Accordingly, as a template for
military action its assumptions may lack the necessary operational acuity for
postmodern success. The primary corpus of modern LOAC was developed in the
immediate aftermath of the Second World War. The law, as comprised in the four
1949 Geneva Conventions, complemented the pre-existing Hague Law, which
dealt mostly with "means and methods." This collective body of law anticipated
State-on-State "industrial" warfare 106 to be the prototypical norm, where attrition
is the primary means by which to defeat military adversaries. The subsequent Viet-
nam conflict provided significant impetus to the development of the 1977 Addi-
tional Protocols that acted to partially fuse Geneva and Hague law with a more
contemporary relevance. Nonetheless, there was still a significant emphasis placed
upon a linear conception of warfare between sovereign equals and the model for
military triumph was still most assuredly one of attrition. Admittedly, GPI ex-
pressly recognizes particular non-State fighters participating in conflicts relating
specifically to colonial and alien domination and against racist regimes in their ex-
ercise of self-determination. 107 However, they were not treated in any original
manner; rather such fighters were "elevated" in status akin to that of soldiers
within State forces. Similarly, while non-international conflicts were specifically
dealt with under GPII, the preeminent model was one that anticipated organized
dissident armed forces controlling territory and exercising State-like powers with
respect to that territory in order to implement the Protocol, as well as exercising
"responsible command" over such forces in order to conduct "sustained and con-
certed military operations." 108

The framework for engaging in conflict during COIN/stability operations es-
chews these norms. The strategies and tactics for COIN/stability operations are
profoundly more nuanced than what the law provides. The COIN doctrine coun-
sels greater restraint when confronting and targeting individuals who come
squarely within the criteria of DPH targeting. It has become clear that functional
categorization of individuals and the validity of the norm are not the complete an-
swer for lawful targeting — just as it has become clear that a state cannot kill its way
out of an insurgency. The success of the Iraqi surge in 2007 was dependent on an
extremely nuanced and politically aware strategy of engagement, where efforts
were made to reconcile with those who were otherwise targetable under the DPH
formula. The COIN guidance applicable to MNF-I makes it clear that discretion is
to be carefully exercised with respect to the application of force. Non-kinetic

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options have a decisive strategic role; hence under the point titled "Promote recon-
ciliation" the MNF-I guidance notes:

We cannot kill our way out of this endeavor. We and our Iraqi partners must identify
and separate the "reconcilables" from the "irreconcilables" through engagement,
population control measures, information operations, kinetic operations, and political
activities. We must strive to make reconcilables a part of the solution, even as we
identify, pursue, and kill, capture, or drive out the irreconcilables. 109

The guidance for who may be "reconcilable" within the policy is not defined
with any great clarity. The criteria nonetheless require greater consideration of in-
dividual identity and broader sociopolitical considerations relating to the individ-
ual and the sectarian/tribal/regional connections he/she may be entwined within.
Kilcullen identifies such potentially "reconcilable" persons as "accidental gueril-
las," 110 individuals who find themselves manipulated into insurgent activity but
without the hard-core ideological drive. "Reconcilables" are also plainly those per-
sons who may be turned against their terrorist sponsors and who may offer both
intelligence and cooperation with the counterinsurgency effort. The turning of the
"Sons of Iraq," predominantly within Al Anbar province during the surge, for ex-
ample, has been identified as a key outcome in addressing the insurgency. 111

When the objective of a successful COIN/stability operation campaign is to
"win the population," rather than "kill-capture" the insurgents, 112 a different ori-
entation to legal interpretation is required. In reflecting on his experiences in Iraq,
former MNF-I Commander General David Petraeus acknowledged that when en-
gaged in COIN a sophisticated risk/benefit calculation is mandated when dealing
with the consequences of targeting. He implicitly acknowledges that such an analy-
sis may transcend traditional LOAC thinking in terms of determining who may be
targeted when he notes:

[W]e should analyze costs and benefits of operations before each operation . . . [by
answering] a question we developed over time and used to ask before the conduct of
operations: "Will this operation," we asked, "take more bad guys off the street than it
creates by the way it is conducted?" If the answer to that question was, "No," then we
took a very hard look at the operation before proceeding. 113

In reinforcing this point, General Petraeus refers to lessons learned by previous
US commanders, commenting that

[i]n 1986, General John Galvin, then Commander in Chief of the U.S. Southern
Command (which was supporting the counterinsurgency effort in El Salvador),

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described the challenge captured in this observation very effectively: "The . . . burden
on the military institution is large. Not only must it subdue an armed adversary while
attempting to provide security to the civilian population, it must also avoid furthering
the insurgents' cause. If, for example, the military's actions in killing 50 guerrillas cause
200 previously uncommitted citizens to join the insurgent cause, the use of force will
have been counterproductive." 114

The law of armed conflict doesn't deal well with these questions. With respect to
the principle of distinction, it requires consideration of whether the person is
targetable, not whether the person should in fact be targeted and what such targeting
will do in the broader strategic environment. How do we rationalize this? It may be
that formalist conceptions of legal interpretation under LOAC are not indicted un-
der this new doctrinal focus and the principle of distinction may still retain its bi-
nary certainty. One might regard considerations of individual "reconcilability"
and cost/benefit analysis as mere "policy" overlays. A conscientious lawyer will
therefore guard against crossing the line, will ensure that he/she carefully stays
within the confines of "the law" and will know where the seam of true legal advice
must end. To do so, though, seems a bit disingenuous. The policy overlay that is
mandated by the COIN/stability operations doctrine requires consideration of vari-
ables concerning individual identity, of affiliation and role, and of sociopolitical con-
text. It does so because it has been proven to work in achieving the military goals
sought. A responsible lawyer must take these things into account when dispensing
meaningful legal advice. Once these elements are put into the balance, the rule re-
garding distinction becomes less an empirical exercise and more of an evaluative
process. The rule begins to transform into a standard. On the one hand is the re-
quirement to determine whether or not the person is in fact targetable under the
general DPH formula and then on the other is the issue of individually specific cri-
teria to determine whether or not the person is "reconcilable" or his targeting oth-
erwise has greater operational implications. Under this standard, the responsible
lawyer is permitted to have broader regard to the purposes and social values the
doctrine is propagating. Thus, in undertaking this exercise the role of policy be-
comes heavily implicated in the interpretation of the "rule." This in turn shapes the
quality of legal advice that must be reached. The issue is equally attenuated when
dealing with the cognate principle of proportionality, which will now be addressed.

The Principle of Proportionality

The principle of proportionality as outlined in GPI is provided in the following rel-
evant recitation of Article 51(5)(b) under the heading "Protection of the civilian
population." Article 51(5)(b) prohibits indiscriminate attacks, defined as " [a] n at-
tack which may be expected to cause incidental loss of civilian life, injury to

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civilians, damage to civilian objects, or a combination thereof, which would be ex-
cessive in relation to the concrete and direct military advantage anticipated." The
principle is also contained in Article 57(2)(b), which is listed under the chapeau of
"Precautions in attack."

The principle plainly introduces a standard whose factors concerning collateral
damage to property and incidental injury to civilians need to be balanced and
weighed against concrete and direct military advantage. The principle is one that
has not easily been reconciled. Professor Dinstein notes, for example, that there
has always been a fundamental disconnect between balancing military consider-
ations against civilian losses, as they are "dissimilar considerations." 115 Major
General Rogers poignantly notes that "[t]he rule is more easily stated than applied
in practice." 116

Numerous States parties to GPI have made declarations seeking to assure a
more expansive (and militarily advantageous) formalist architecture, including,
for example, declarations that the security of the attacking force may be a factor
that may be taken into account when balancing against "excessive" civilian loss and
that proportionality assessments should be undertaken with respect to the "attack
as a whole" and not individualized aspects of the attack. 117 Dinstein notes the criti-
cism leveled at the principle as elaborated within GPI as permitting possibly too
great a subjective assessment by military commanders when undertaking the bal-
ancing requirement. 118 As with the principle of distinction, a somewhat linear for-
mulation of assessment is undertaken. Hence civilians and civilian objects are
accorded a "value" and an exchange is processed along consequentialist lines,
whereby an attack may proceed on the basis that "anticipated concrete and direct
military advantage" outweighs, by even the smallest of margins, the expected
civilian loss.

Against this background the COIN Manual signals a self-conscious revision of
the application of the proportionality principle in accordance with its stated "para-
doxes" of counterinsurgency. Hence the manual states:

In conventional operations, proportionality is usually calculated in simple utilitarian
terms: civilian lives and property lost versus enemy destroyed and military advantage
gained. But in COIN operations, [military] advantage is best calculated not in terms of
how many insurgents are killed or detained, but rather which enemies are killed or
detained .... In COIN environments, the number of civilian lives lost and property
destroyed needs to be measured against how much harm the targeted insurgent could
do if allowed to escape. 119

The commentary subsequently notes that the principles of discrimination and
proportionality may have an additional sociopolitical significance, stating that

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"[f]ires that cause unnecessary harm or death to noncombatants may create more
resistance and increase the insurgency's appeal — especially if the populace per-
ceives a lack of discrimination in their use." 120

The formulation of military advantage and express reference to the political
and social implications of the use of force aren't easily reconciled with classic reci-
tations of the parameters for assessing military advantage over civilian cost. The
COIN Manual commentary cited above focuses on the individual identity of the
insurgent, requires assessment of future potential harm such a person may inflict
(harm that the insurgent "could do") and seeks to measure that against potential
civilian loss in terms of civilian reaction in relation to ongoing support for the in-
surgency and the associated risk of alienation. Such prescriptions plainly fit within
a model of "winning the population" under the COIN strategy by designing a
sociopsychological "barrier" between the population and insurgents, but do not
seem to square with the commentary offered on this principle arising out of the
negotiations that produced the Additional Protocols. Thus the International
Committee of the Red Cross (ICRC) Commentary to the negotiations notes that
the proportionality principle is to be viewed in the tactical context, not strategic,
commenting that the military advantage should be "substantial and close" 121 and
that advantages that "would only appear in the long term should be disre-
garded." 122 Similarly, the ICRC Commentary rejects any notion of "political" ad-
vantage as coming within a formalistic reading of what the term "military advan-
tage" anticipates. 123 This is not the type of calculation that the COIN Manual
mandates.

The ICRC Commentary naturally presumes that the balancing anticipates that
incidental loss of civilian life is to be weighed (and sacrificed) against military ad-
vantage and seeks to impose finite humanitarian limits on that equation. The
COIN orientation of this formula, however, ends up conflating minimization of
incidental civilian loss with military advantage. Ganesh Sitaraman concludes his
analysis of this phenomenon by stating that there is a unification of both humani-
tarian concerns and strategic self-interest. 124 As a standard, the proportionality
principle more openly permits recourse to social purposes as an interpretative
tool. The ICRC Commentary reinforces this perspective by invoking the standard-
like obligations of "good faith" 125 and "equity" 126 as criteria that must apply to
decision making under the proportionality principle. Has, in fact, the COIN di-
rection to assess second- and third-order effects under the proportionality equa-
tion rendered the proportionality standard more "rule-like" with respect to
weighing the humanitarian side of the equation? Certainly, the trend in
international tribunal decision making has been to continually highlight humani-
tarian interests in LOAC 127 and this author has argued elsewhere that the ICJ has

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proposed a formula for proportionality that does accord a perceptible weighting
for humanitarian requirements. 128

A military decisionmaker is obliged under the COIN doctrine to assess the civil-
ian loss occasioned by an attack in broader operational and strategic terms. This is
not mandated under the terminology of Articles 51 and 57 of GPI but nonetheless
from the perspective of the military decisionmaker is a norm that now has authori-
tative effect. Akin to the status of a domestic law "regulation" the revised COIN
Manual has definitive de facto impact. A strict formalist approach to this issue may
disregard such doctrine as mere "policy." As discussed previously, however, it
would be a foolish military lawyer who would adopt such a posture. The COIN
doctrine has an empirical rigidity that necessarily influences the manner in which
the principle of proportionality is applied. As Sarah Sewall emphasizes:

[I]n this context, killing the civilian is no longer just collateral damage. The harm
cannot be easily dismissed as unintended. Civilian casualties tangibly undermine the

counterinsurgent's goals [T]he fact or perception of civilian deaths at the hands of

their nominal protectors can change popular attitudes from neutrality to anger and
active opposition. 129

Indeed, so strategically significant is the issue of incidental injury in the COIN
context that the commanding general in Afghanistan recently issued a directive de-
tailing very limited and prescribed circumstances under which close air support
and indirect fire can be undertaken in residential areas. 130 Such circumstances start
to resemble a "list" approach to when incidental injury may be occasioned. The
fact of incidental injury, however justified under formalist recitations of the law,
has proven to be a strategically intractable problem. Military policy has imposed a
high value on civilian loss that effectively weights the proportionality formula in fa-
vor of the humanitarian side, not because it is the "nice" thing to do, but rather as
Kilcullen notes, "our approach was based upon a clear-eyed appreciation of certain
basic facts" 131 concerning the nature and quality of fighting an insurgency.

Rules/Standards and Legal Reasoning

The law of armed conflict sets, throughout its structure, the principles of military
necessity and humanitarian considerations in equipoise. 132 The humanitarian
strategy of relying upon both rules and standards to advance humanitarian priori-
ties under this body of law is a considered, and a not-so-surprising, outcome. We
find hard empirically based rules to ensure a firm separation between combatants
and civilians under the principle of distinction and a more evaluative standard for
undertaking proportionality calculations where incidental injury is anticipated. As

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we have seen, under prevailing canons of interpretation, rules provide a requisite
level of certainty and objectivity, whereas employment of standards mandates that
"all perspectives" 133 be taken into account, making "visible and accountable the in-
evitable weighing process that rules obscure." 134 The proportionality standard thus
requires that an express incorporation and open balancing of civilian lives be made
in the decision- making calculus.

As previously discussed, the COIN doctrine has inverted these truisms by ren-
dering the principle of distinction more standard-like and the principle of propor-
tionality more rule-like. It seems ironic that the purpose of this inversion is to
actually advance humanitarian considerations, albeit under a self-interested strat-
egy of ensuring military success. Should this be a problem? It would seem to be
problematic from a formalistic perspective. Focusing solely upon military (and po-
litical) effect under the law rather than upon traditional functional categories has
the potential to obscure the integrity of the "equipoise" established under the law.
The evolution of "effects-based targeting" methodology, for example, which simi-
larly applies a much more instrumentalist approach to targeting decisions, has
been resisted by international legal scholars because of its potential to undermine
the traditional legal distinctions between civilian and combatant. 135 The fear is that
if military effectiveness becomes a viable benchmark for confidence then civilian
protection will be progressively eroded.

There remains a strong professional adherence to the existing formalist tenor of
the law of armed conflict, even when deviation from its terms can actually increase
the probability of humanitarian outcomes. Gabriella Blum has, for example, sur-
veyed a range of case studies where utilitarian reasoning under the law would
lessen humanitarian risk, though she has also demonstrated powerful resistance to
the employment of such reasoning. 136 Her review of the "early warning proce-
dure" decision by the Israeli Supreme Court in the case of Adalah v. IDF 137 is par-
ticularly instructive. The case concerned the use of Palestinian civilians by the
Israel Defense Forces (IDF) to provide early warning of an imminent arrest in
order to facilitate potential surrender and evacuation of innocent persons. Em-
pirical evidence adduced by Blum tends to support the conclusion that use of such
volunteers has reduced casualties of both military and civilians when undertaking
such arrests, though concomitantly the use of such procedures is prima facie con-
trary to a number of provisions of LOAC. The Israeli Supreme Court unanimously
rejected IDF use of this technique, holding that this procedure was contrary to the
law of armed conflict, reiterating "the IHL prohibition on using the civilian popu-
lation for the military needs of the occupying army, and also the obligation to dis-
tance innocent civilians from the zone of hostilities." 138 It appears that the

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pragmatic humanitarian outcomes that the IDF policy sought to optimize weren't
significant enough to obviate the risk of forensic violation of LOAC principles.

Unlike the choices faced by the Israeli Supreme Court in the Adalah case, the
reasoning applied under the COIN/stability operations doctrine doesn't constitute
a direct affront to the existing humanitarian principles underpinning the LOAC;
rather it demands a variegated reasoning process. Such reasoning can exist within
traditional categories by providing a narrower band of who may be targeted (dis-
tinction) and when incidental injury is permissible (proportionality) and may thus
meet with less resistance. These goals are certainly consistent with humanitarian
priorities but they demand a more policy/political-oriented interpretative ap-
proach in individual cases, and, of course, they serve specific military ends. If noth-
ing else it demonstrates yet again the indeterminacy of the law and the artificiality
of formalist legal reasoning. H.L.A. Hart himself acknowledged that principles,
policies and purposes can inform reasoning within the penumbral region of rules
and the more open context of standards. He remained adamant that such "law
making" occurred only at the "fringe" 139 with respect to rules and was nonetheless
still subject to "indisputable" measures of correctness with respect to standards. 140
This marginalization of principles, policies and purposes to inform legal reasoning
has been at the center of jurisprudential debate for many years. It was Hans
Morgenthau who advocated a more direct assimilation of policy and law over
sixty years ago. His functionalist advocacy required "precepts of international
law" to be interpreted in the light of "ethico-legal principles" 141 with a strong refer-
ence to "social" 142 context if law was to escape its formalistic orientation and be-
come more relevant to international discourse. In the COIN doctrine we see the
realization of this concept. Doctrine applies to reshape rules and standards alike,
such modification being consciously directed under specific means/ends rational-
ity. It remains to be seen whether this development is accepted for what it is, or
whether it will be reconciled and explained away within existing canons of interpre-
tation, no matter how artificial and unsatisfying that explanation. In representing
an affront to interpretative approaches to rule formalism, it may also be resisted
for what it presages. Conflating military effectiveness with humanitarian protec-
tion is surely sound but, as in the Adalah case, the acceptance of this proposition
strikes deep into judicial sensitivities and runs the perceived risk of opening the
door to accepting a deeply instrumentalist approach to the law that risks elevating
military effectiveness as an interpretative benchmark.

Alternatively, the combination of rules and standards methodologies under
COIN/stability operations doctrine can operate to better inform ethical judg-
ment. In his critique of the principle of LOAC's concept of distinction, David
Kennedy queries whether the purpose of the classic rule is "ethical distinction" or

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"instrumental calculation." 143 The same critique may, of course, apply to the
principle of proportionality. According to Kennedy, the combination of invoking
a formalist style of interpretation in conjunction with an underlying utilitarian
orientation allows for a "proceduralization" of bloodshed that permits the avoid-
ance of any real sense of personal responsibility. 144 The new COIN/stability oper-
ations doctrine, which demands sociopolitical analysis in any targeting solution
under the law, meets these criticisms. However, it carries with it a particular cog-
nitive risk. Once individuals are assessed on criteria of "reconcilability" rather than
on the more formulaic DPH criteria, it animates both cognitive and emotional
processing of information. Thus, from an emotional perspective, whether a tar-
geting action is an instance of lawful engagement or "murder" has the potential
for initiating significant cognitive dissonance. It is an omnipresent feature in in-
dividual decisions under the law and the "firewall" between such concepts is ade-
quately maintained through a functional DPH category approach. The
requirement for individual assessment based upon socio-legal considerations,
even when a person comes within the DPH criteria, threatens to unravel this ethi-
cal "distance" that the existing law establishes.

In warfare, military lawyers effectively undertake the judicial decision-making
role. Military lawyers will provide a multitude of interpretations and advice to
commanders on what always seem to be cascading legal problems. This advice is al-
ways time sensitive and always undertaken in the shadow of the law. The COIN/
stability operations policy approach to questions of targeting imposes a definitive
high "value" on civilian life that is heavily weighted on achieving advantageous
militarily strategic outcomes. This policy can in fact be reconciled with existing
formulations of distinction and proportionality, but we should be aware of the way
this policy is guiding selection of legal canons of interpretation. The malleability of
interpretative devices, of turning rules into standards and vice versa, exposes the
apparent structural "certainties" of formalism and threatens incorporation of the
traditional risks of arbitrariness, subjectivity and inflexibility associated with the
rules/standards dichotomy in a compounded manner. It would be wrong to read
too much into this phenomenon, however. Indeterminacy is more of a feature of
the law than we might like to think. The realist movement and its "critical legal
studies" successors have long been dedicated to ascertaining the inchoate policy
preferences of judicial decision making. Here, ironically, the role of humanitarian
considerations has been "imposed" as an express preference in the interpretation
of the principles of distinction and proportionality. It is both an ethical distinction
and an instrumental calculation. It also speaks the language of legitimacy, which is
fast becoming the currency of the law of armed conflict but, as stated, is not
without its cognitive risks.

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Part III. Legal Plurality in COIN/Stability Operations

The COIN/stability operations manuals emphasize the critical need for interven-
ing forces to assume a particularized form of ethical orientation, one that displays
demonstrable compliance with the law and its underlying humanitarian ethos and
also accepts greater risk in achieving the military goals that have been set. Acting
with "rectitude" has become a key theme in establishing the necessary legitimacy to
underpin COIN/stability operations. 145 The role of "soft power" has been high-
lighted as a fundamental tenet of success. In this regard Kilcullen notes, "America's
international reputation, moral authority, diplomatic weight, persuasive ability,
cultural attractiveness, and strategic credibility — its 'soft power' — is not some op-
tional adjunct to military strength. Rather, it is a critical enabler for a permissive
operating environment." 146 In the working environment of COIN/stability opera-
tions this throws up numerous legal conundrums. The perennial question of the
interplay between LOAC and human rights law within a conflict zone is one of
these. Another is the choice between invocation of the full conventional apparatus
of the law of armed conflict when dealing with, for example, "irreconcilables," as
against resort to law enforcement measures and associated criminal justice proce-
dures to be undertaken primarily by domestic national forces.

The dilemmas facing the legal advisor in a "post-conflict" conflict are multifac-
eted and perhaps more challenging than in a straightforward conventional war
context. At what point, for example, does the LOAC framework give way to human
rights norms and the application of domestic criminal law standards? Is it a sliding
scale? Are there particular categories of actor or context where the break is more
abrupt? COIN and stability operations doctrine makes it plain that counterintuitive
principles are critical to success, though conventional LOAC interpretative meth-
odologies still have their place. The challenge is discerning when one is to be pre-
ferred over the other. In all post-conflict societies where intervening military forces
are operating, there is a strong will for emerging national institutions to assert their
understandable desire for sovereign independence. Concomitantly, a stated coun-
terinsurgency "paradox" principle is "[t]he host nation doing something tolerably
is normally better than us doing it well." 147 Establishing the legitimacy of domestic
institutions is a key factor in COIN/stability operations doctrine, though what if the
probable cost of forbearance is the loss of life in one's own forces? Moreover, what if
complying with civil law processes (warrant-based arrests, for example) will likely re-
sult in greater casualties for your forces though resort to available LOAC avenues of
action to "kill-capture," which minimize that risk, are equally available? Which
legal option is the right one to take? Post-conflict societies are often in a mixed state
of war and peace, and the reality of complying with civil law enforcement measures

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is not like that in Western democratic societies. When is the assumption of greater
risk, which COIN/stability operations doctrine mandates, not appropriate, espe-
cially when other legal regimes that mitigate that risk (though not without some
cost to legitimacy) are equally applicable and equally valid?

The Interaction of LOAC and International Human Rights Law in
COIN/Stability Operations

The interaction of the law of armed conflict and international HR law, which is so
much a staple of contemporary mainstream academic debate, has its operation-
alization in the very contexts that COIN and stability operations doctrine anticipates.
This requires practical disentangling on the ground. While the framework estab-
lished by the ICJ in the Nuclear Weapons advisory opinion 148 for reconciling these
questions makes plain that LOAC (referred to by the Court as international hu-
manitarian law (IHL)) and HR law can both apply during a time of armed conflict,
the maxim of lex specialis will determine the content of prevailing obligation. In
that instance, dealing with the right to life and the prohibition of arbitrary depriva-
tion, in issuing its advisory opinion the Court found that IHL represented the lex
specialis. 149 The ICfs subsequent pronouncement in the 2004 Wall advisory opin-
ion 150 provided less than exacting guidance when determining that "some rights
may be exclusively matters of IHL; others may be exclusively matters of human
rights law; yet others maybe matters of both these branches of international law." 151

The question of resolution between these two bodies of international law may,
however, be more prosaically tackled. Rather than a mighty clash of strategic prin-
ciple where one body of law in toto trumps the other, there appears to be a more
nuanced assimilation that is occurring in practice. For certain coalition partners ei-
ther policy or domestic legal directives will directly or indirectly apply human
rights norms to their operational activities. They are rarely formally expressed at
the ground level as being one or the other and to the soldier on the ground the dis-
tinction is of little import. Hence, with respect to detention operations, which are
plainly a significant component of COIN operations, it is evident that the influence
of domestic law, such as the UK Human Rights Act (which in turn incorporates the
European Convention on Human Rights) will continue to have application for ac-
tivities occurring during armed conflict. As the Al-Skeini case 152 has established,
these norms can have decisive legal application in a conflict so as to compel obser-
vance by particular forces with respect to particular fact circumstances. 153 While
courts will invariably rely upon a careful recitation of facts and circumstances
when formulating such standards, government and military policy will usually
provide for a broader degree of "margin" to ensure lawful and socially legitimate/
acceptable behavior. Hence the impact of this UK legislative authority (as judicially

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interpreted) has an assimilative effect in terms of standard operating procedures
(SOPs) written for such operations, ones that other coalition partners are required
to respect and observe when engaging in combined operations. Whether the guid-
ance derives from LOAC or HR law, from domestic or international law, the im-
pact upon operations on the ground and the indirect policy do influence behavior
and act as socializing agents between forces acting in concert. Thus in the event of
COIN operations within Iraq or Afghanistan, should non-UK forces wish to utilize
UK detention facilities there is a requirement for compliance with UK legal and
policy preferences. Given the specificity of such obligations the question of lex
specialis becomes, in effect, one of HR obligations providing definitive guidance.

The Orientation of Legal Advice

Grappling with the reality of legal plurality within an operational context, especially
when looking at both the horizontal and vertical planes of interaction in a COIN
environment, provides unique challenges. Lawyers are used to compartmentalizing
legal concepts and applying time-tested forensic skills and "disciplined, intuitive" 154
legal reasoning to the resolution of problems. The law of armed conflict provides a
particularized intellectual structure. Counterinsurgency inverts most of the truisms
associated with such formalist thinking. When defeat was staring the coalition in
the eyes in Iraq in 2007, a radical new strategy was developed that recognized the
need for a more careful and judicious application of force ("We cannot kill our way
out of this endeavor"). Classic legal prescriptions under LOAC don't quite match
the objectives being sought, or at least don't synchronize with the new "means" as
easily, except in the pressing case of targeting "irreconcilables."

The legal advisors in both Iraq and Afghanistan over the past few years have
been dealing with the classic "three-block war" concept. 155 In these instances, the
forces were engaged in antiterrorism, as well as counterinsurgency, while simulta-
neously trying to build capacity and ensuring compliance with the multifaceted
rule of law foundation that COIN/stability operations doctrine demands. 156 Legal
problems in these contexts are not so easily compartmentalized; these issues are
too deeply interconnected. Choices need to be made holistically with the net result
possibly being the loss of one's own soldiers through compliance with what ap-
pears to be abstract and aberrant policy. It is clear, though, that the new doctrine
reflected in the COIN/stability operations is actually working in the strategic sense.

Doctrine plays a decisive role in military decision making and there is evidence
that operational planning teams have socialized the new directions mandated in
effectively fighting this postmodern warfare. As previously mentioned, there is not
a lot of evidence that the legal community has been as ready to internalize these
fundamental changes. Lawyers have a tendency to interpret factual problems in

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accordance with extant legal prescriptions and prevailing models, and seek to
manipulate facts to ensure a sense of legal integrity when dispensing advice. Per-
haps the dissociative mechanism of distinguishing between law and policy that
lawyers readily employ to temper challenges to formalist orthodoxy in the area of
operational law will again prevail. Perhaps the law of armed conflict will retain its
perceived ideational integrity, though stepping back from this, there is something
unsettling in trying to conform postmodern approaches into a legal framework
that predominantly dates back to the post-World War Two era (in fact, back to the
nineteenth century). It seems to set the stage for legal marginalization. The better
accommodation may be one that retains the substance of the law but is more open
to a modified interpretative valence.

Part IV. Conclusion

The body of the modern law of armed conflict is "the result of an equitable balance
between the necessities of war and humanitarian requirements." 157 Through the
mechanism of hard-line empirical rules, as well as flexible evaluative standards,
this fundamental military/humanitarian balance is in perpetual creative tension.
The adoption of a shared vocabulary within the law has allowed an intersection of
dialogue between military professionals and humanitarian advocates that has, in
fact, empowered both camps. It is of no small measure, for example, that the prin-
ciple of proportionality may be celebrated as a desirable union of both military
economy and humanitarian restraint. The principle provides a moral and political
convergence: only "direct and concrete military advantage" and non-"excessive"
civilian loss are permitted. Yet, the simple mechanics and elegant mathematical
confidence of the proportionality principle seem to permit avoidance of broader
ethical questions. As David Kennedy has observed, mechanically complying with
the law can allow the avoidance of "ethical jeopardy" and the minimization of per-
sonal responsibility. 158 The recognition of the specifics of individual identity and
anticipating the second- and third-order effects of a "proportionate attack" are not
matters that have occupied much legal time in any planning analysis, and yet, as we
have seen in COIN, they can have enormous strategic policy significance.

The postmodern era of warfare challenges old legal orthodoxies. Concepts such
as avoiding incidental civilian injury in terms that far exceed legal limits and re-
quiring greater precision in targeting than merely verifying the relevant civilian/
combatant categories of privilege (and its loss) represent a powerful transformative
approach to conducting operations. The COIN/stability operations doctrine predi-
cates are largely counterintuitive and at odds with traditional approaches to legal in-
terpretation. When, for example, has "emotional intelligence," as General Kiszely

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identifies, 159 ever been relevant to disciplined legal analysis? It is evident that the
weight of operational doctrine and increasing assimilation of human rights norms
into multi-splintered SOPs require a reconsideration of prevailing approaches to
interpretative valence. Perhaps issues such as human rights norms applying to op-
erations and the conflation of military advantage with preserving civilian lives un-
der age-old formulas may be rationalized and distinguished as "mere" policy.
Perhaps legal advisors can continue to insist on a "Hartian" template for interpre-
tative rectitude and can answer all the relevant constituencies "out there" with a ro-
bust assertion that it "is the law" that justifies and rationalizes actions, and as
lawyers we must be vigilant to remain strictly within its boundaries. Or perhaps
not. Could it be that policy has always infiltrated legal reasoning in ways that are
not openly acknowledged? Perhaps the American realists of the interwar period 160
did have it right and legal analysis can be much more flexible and accommodating
of policy inputs than what we might want to admit and, moreover, may do so with-
out impugning the integrity of the law. Perhaps the law of armed conflict still re-
tains all we need to ensure military success, we just need to be mindful of what we
mean by such success and be conscious of how we can get there. Either way, a real
revolution in military affairs is under way and it does implicate the law in funda-
mental ways. The coming storm offers a rare opportunity to recalibrate the inter-
pretative valence of the law in a spirit of self- awareness made all the more ironic by
the fact that it is operational pragmatism that has sparked this phenomenon.

Notes

1. John Kiszely, Post-Modern Challenges for Modern Warriors, AUSTRALIAN ARMY
JOURNAL, Winter 2008, at 177.

2. Mat 178.

3. Rupert Smith, The Utility of Force: The Art of War in the Modern World 5
(2007).

4. Kiszely, supra note 1; COIN Manual, infra note 5, at iii.

5. Headquarters, Department of the Army & Headquarters, Marine Corps
Combat Development Command, FM 3-24/MCWP 3-33.5, The U.S. Army/Marine Corps
COUNTERINSURGENCY FIELD MANUAL (University of Chicago Press 2007) (2006) [hereinafter
COIN Manual].

6. HEADQUARTERS, DEPARTMENT OF THE ARMY, FM 3-07, THE U.S. ARMY STABILITY
OPERATIONS FIELD MANUAL (University of Michigan Press 2009) (2008) [hereinafter Stability
Operations Manual].

7. David Kilcullen, The accidental Guerrilla 129 (2009).

8. Id. at 128-54.

9. Ganesh Sitaraman, Counterinsurgency, the War on Terror, and the Laws of War, 95
VIRGINIA Law REVIEW 1745, 1747 (2009) ("despite counterinsurgency's ubiquity in military
and policy circles, legal scholars have almost completely ignored it").

314

Dale Stephens

10. SMITH, supra note 3, at 5.

1 1. Kiszely, supra note 1, at 179.

12. Id.

13. There has been a strong sense of ad hoc doctrinal "catch-up" to synchronize with these
non-conventional operations especially during the 1990s. See, e.g., Peter Viggo Jakobsen, The
Emerging Consensus on Grey Area Peace Operations Doctrine: Will It Last and Enhance Opera-
tional Effectiveness?, INTERNATIONAL PEACE-KEEPING, Autumn 2000, at 36; Michael Stopford,
Peace-Keeping or Peace-Enforcement: Stark Choices for Grey Areas, 73 UNIVERSITY OF DETROIT
Mercy Law Review 499 (1996); International & Operational Law Department, The
Judge Advocate General's School, Operational Law Handbook ch. 23 (2001).

14. Kiszely, supra note 1, at 185-86.

15. COIN Manual, supra note 5, at xxxv.

16. Id. atxxi.

17. Id. at 234-35.

18. Id. at 13 & 252 ("Lose Moral Legitimacy, Lose the War").

19. Mat 11-14.

20. Mat 47-51.

21. Id. at xxv.

22. Id. at 37-39, 42-43, 49-50; Stability Operations Manual, supra note 6, at 1-29.

23. KlLCULLEN, supra note 7, at 30-34.

24. COIN Manual, supra note 5, at xxv.

25. Id.

26. Kiszely, supra note 1, at 182.

27. Id.

28. COIN Manual, supra note 5, at 49.

29. Kiszely, supra note 1, at 184.

30. Id. at 179.

31. Id. at 180.

32. Id.

33. SMITH, supra note 3, at 6.

34. KlLCULLEN, supra note 7, at 129-30.

35. COIN Manual, supra note 5, at 44-47.

36. MNF-I Commander's Counterinsurgency Guidance (June 21, 2008), reprinted in
THOMAS E. RICKS, THE GAMBLE 369 (2009), available at http://www.mnf-iraq.com/images/
CGs_Messages/080621_coin_%20guidance.pdf [hereinafter MNF-I Guidelines].

37. COIN Manual, supra note 5, para. 1-149, at 48.

38. M.,para. 1-153, at 49.

39. M.,para. 1-150, at 48.

40. M.,para. 1-151, at 48.

4 1 . "Resolve" is identified in many accounts of COIN as being the key counterinsurgent vul-
nerability. See, e.g., Jim Molan, Thoughts of a Practitioner, AUSTRALIAN ARMY JOURNAL, Winter
2008, at 215, 220.

42. COIN Manual, supra note 5, at xxiii.

43. Given the natural interaction between COIN and stability operations doctrine, I will be
referring to both as COIN/stability operations. The main point is that they are doctrinally dis-
tinct from conventional warfare.

44. Stability Operations Manual, supra note 6, at viii.

45. Mat 1-1.

315

COIN and Stability Operations: A New Approach to Legal Interpretation

46. Id. at 1-3.

47. See DONALD P. WRIGHT & TIMOTHY R. REESE, ON POINT II: TRANSITION TO THE NEW

Campaign, The United States Army in Operation IRAQI FREEDOM May 2003-January
2005 ch. 2 (2008), available at http://www.globalsecurity.org/military/library/report/2008/
onpoint/index.html, where the following is stated:

Clearly, the PH [phase] IV planning efforts by ORHA [Office of Reconstruction and
Humanitarian Assistance], the Joint Staff, and CENTCOM attest to the fact that many
within the US Government and the DOD community realized the need to plan for
operations after the fall of the Saddam regime. . . . Nonetheless, as in the planning
process for Operation JUST CAUSE, the emphasis within the major US commands, as
well as within the DOD, was on planning the first three phases of the campaign. As
stated earlier in this chapter, the Office of the Secretary of Defense focused the
CENTCOM and CFLCC [combined force land component commander] staffs on these
phases. The CENTCOM staff spent a greater amount of time on the preparation for the
staging of forces in Kuwait and initial offensive operations than it did on what might
happen after the toppling of the Saddam regime. At the CFLCC level, Benson, the chief
CFLCC planner, asserted that he was not able to induce McKiernan to spend a

significant amount of time on the planning for stability and support operations Not

surprisingly, Benson felt somewhat overwhelmed by the task of PH IV operations given
the lack of resources he had. He underlined the problem created by Army planners who
gave most of their attention to conventional operations, saying, "We were
extraordinarily focused on Phase III. There should have been more than just one Army
colonel, me, really worrying about the details of Phase IV."

48. Stability Operations Manual, supra note 6, at ix.

49. Id. at vii.

50. US Department of Defense policy is as follows:

Stability operations are conducted to help establish order that advances U.S. interests
and values. The immediate goal often is to provide the local populace with security,
restore essential services, and meet humanitarian needs. The long-term goal is to help
develop indigenous capacity for securing essential services, a viable market economy,
rule of law, democratic institutions, and a robust civil society.

US Department of Defense, Directive 3000.05, Military Support for Stability, Security,
Transition, and Reconstruction (SSTR) Operations para. 4.2 (Nov. 28, 2005), available athttp://
www.dtic.mil/whs/directives/corres/pdf/300005p.pdf [hereinafter DoD Directive 3000.05].

51. Stability Operations Manual, supra note 6, at 1-22, 1-23.

52. National Security Presidential Directive/NSPD-44 (2005), available at http://www
.fas.org/irp/offdocs/nspd/nspd-44.html; Stability Operations Manual, supra note 6, para. 1-66,
at 1-22. DoD Directive 3000.05, supra note 50, para. 1-73, at 1-15, emphasizes, however, that
military force "will assume responsibility" for stability operations tasks even in the absence of ci-
vilian capacity or preparedness to undertake such activities.

53. William Easterly, J 'accuse: The US Army Development Delusions, AID WATCH, June 18,
2009, available at http://www.press.umich.edu/pdf/9780472033904-reviewl.pdf, where the au-
thor states: "The 2009 US Army Stability Operations Field Manual is remarkably full of Utopian
dreams of transforming other societies into oases of prosperity, peace, and democracy through
the coordinated use of military force, foreign aid, and expert knowledge."

316

Dale Stephens

54. Edward Luttwak, Dead End: Counterinsurgency Warfare as Military Malpractice,
HARPER'S MAGAZINE, Feb. 2007, at 33, available at http://www.harpers.org/archive/2007/02/
0081384.

55. KILCULLEN, supra note 7, at 143.

56. Id. at 126.

57. See S.C. Res. 1272, para. 2, U.N. Doc. S/RES/1272 (Oct. 25, 1999), which provided that
the mandate of the United Nations Transitional Administration in East Timor was comprised of
the following elements:

(a) To provide security and maintain law and order throughout the territory of East
Timor;

(b) To establish an effective administration;

(d) To ensure the coordination and delivery of humanitarian assistance, rehabilitation
and development assistance;

(e) To support capacity-building for self-government; [and]

(f) To assist in the establishment of conditions for sustainable development.

58. Tonya Jankunis, Military Strategists Are from Mars, Rule of Law Theorists Are from Venus:
Why Imposition of the Rule of Law Requires a Goldwater-Nichols Modeled Interagency Reform, 1 97
Military Law Review 16, 41-42 (2008).

59. Id. at 42.

60. Dan E. Stigall, The Rule of Law: A Primer and a Proposal, 189 MILITARY LAW REVIEW 92,
97-98(2006).

61. Stability Operations Manual, supra note 6, at 1-40-1-46.

62. Pierre Schlag, Rules and Standards, 33 UCLA LAW REVIEW 379, 383 (1985).

63. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARVARD LAW
REVIEW 1685 (1976).

64. Mat 1687.

65. Id.

66. Id.

67. Id.

68. Mat 1688.

69. Id.

70. Schlag, supra note 62, at 381.

71. Mat 382.

72. Id. at 383.

73. Id.

74. Mat 381-82.

75. See generally Louis Kaplow, Rules versus Standards, 42 DUKE LAW JOURNAL 557 ( 1 992 ) .

76. Kennedy, supra note 63, at 1688.

77. Schlag, supra note 62, at 379-80.

78. Id. at 385.

79. Kennedy, supra note 63, at 1688.

80. Schlag, supra note 62, at 385.

81. Kennedy, supra note 63, at 1701.

82. H.L.A. Hart, The Concept of Law 134 (2d ed. 1994).

83. Brian Leiter, American Legal Realism, in PHILOSOPHY OF LAW AND LEGAL THEORY 64
(Martin P. Golding 8c William A. Edmundson eds., 2009).

84. David Kennedy, Of War and Law 134-38, 156-57 (2006).

317

COIN and Stability Operations: A New Approach to Legal Interpretation

85. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).

86. David Kennedy, The Dark Sides of Virtue: Reassessing International
humanitarianism 267 (2004).

87. KENNEDY, supra note 84, at 104.

88. Id. at 91.

89. RICHARD POSNER, THE PROBLEMS OF JURISPRUDENCE 434-46 (1990).

90. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, para.
78 (July 8) ("The cardinal principles contained in the texts constituting the fabric of humanitarian
law are the following. The first is aimed at the protection of the civilian population and civilian
objects and establishes the distinction between combatants and non-combatants; States must
never make civilians the object of attack . . . .") [hereinafter Nuclear Weapons case].

91. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3, reprinted
in DOCUMENTS ON THE LAWS OF WAR 422 (Adam Roberts & Richard Guelff eds., 3d ed. 2000)
[hereinafter GPI].

92. Id., art. 85(3)(a), provides that "the following acts shall be regarded as grave breaches of
this Protocol, ... (a) making the civilian population or individual civilians the object of attack."

93. Id., art. 85(5), provides that "[w]ithout prejudice to the application of the Conventions
and of this Protocol, grave breaches of these instruments shall be regarded as war crimes."

94. Id., art. 86(2), provides that

[t]he fact that a breach of the Conventions or of this Protocol was committed by a
subordinate does not absolve his superiors from penal or disciplinary responsibility . . .
if they knew, or had information which should have enabled them to conclude in the
circumstances at the time, that he was committing or was going to commit such a
breach

95. Kennedy, supra note 63, at 1695.

96. GPI, supra note 91, art. 51(3), states that "[civilians shall enjoy the protection afforded
by this Section, unless and for such time as they take a direct part in hostilities."

97. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609,
reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 91, at 483 [hereinafter GPII] ; GPII's
Article 13(3)'s terms are substantively identical to those in GPI, id.

98. GPI, supra note 91.

99. The International Committee of the Red Cross (ICRC), in conjunction with the TMC
Asser Institute, has, since 2003, engaged in an ongoing study of the "direct participation in hos-
tilities" concept with a number of experts in the field and through this process has made a valu-
able contribution to the ongoing debate with its successive yearly release of reports of
proceedings. See also Michael N. Schmitt, Humanitarian Law and Direct Participation in Hostili-
ties by Private Contractors or Civilian Employees, 5 CHICAGO JOURNAL OF INTERNATIONAL LAW
511 (2005); and Dale Stephens & Angeline Lewis, The Targeting of Civilian Contractors in Armed
Conflict, 9 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW 25 (2006).

100. Based on the study of "direct participation in hostilies," the ICRC recommended that
the LOAC be interpreted as follows: "In non-international armed conflict, organized armed
groups constitute the armed forces of a non-State party to the conflict and consist only of indi-
viduals whose continuous function it is to take a direct part in hostilities ('continuous combat
function')"; and commented that "[t]hus, individuals whose continuous function involves the
preparation, execution or command of acts or operations amounting to direct participation in
hostilities are assuming a continuous combat function." NILS MELZER, INTERPRETIVE GUIDANCE

318

Dale Stephens

ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HUMANI-
TARIAN LAW 16, 34 (2009), available at http://www.icrc.org/Web/eng/siteengO.nsf/htmlall/
direct-participation-report_res/$File/direct-participation-guidance-2009-icrc.pdf [hereinafter
ICRC Interpretative Guidance].

101. COMMENTARY ON THE ADDITIONAL PROTOCOLS of 8 JUNE 1977 TO THE GENEVA
CONVENTIONS OF 12 AUGUST 1949 para. 1659, at 516 (Yves Sandoz, Christophe Swinarski &
Bruno Zimmermann eds., 1987) [hereinafter ICRC Commentary], states that "[d]irect partici-
pation in hostilities implies a direct causal relationship between the activity engaged in and the
harm done to the enemy at the time and place where the activity takes place."

102. The Supreme Court of Israel expressly excluded financiers from its determination of
persons who directly participate in hostilities. HCJ 769/02 Public Committee against Torture in
Israel v. Government of Israel, Judgment, para. 35 [Dec. 13, 2006] (not yet published), available
at http://elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf. See also ICRC Inter-
pretative Guidance, supra note 100, at 51-52.

103. Sitaraman, supra note 9 ("A civilian engaged in spreading propaganda may be highly ef-
fective in contributing to the defeat of the counterinsurgents, even though his actions are not in-
tended to cause harm to physical forces"; and he observes, "A television or radio station is a
much greater force multiplier for an insurgency than a few additional recruited combatants").

104. INTERNATIONAL COMMITTEE OF THE RED CROSS, DIRECT PARTICIPATION IN
HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW 2 (Sept. 2003), available at
http://www.icrc.org/Web/ara/siteara0.nsf/htmlall/participation-hostilities-ihl-3 1 1 205/$File/Direct
_participation_in_hostilities_Sept_2003_eng.pdf; and NILS MELZER, THIRD EXPERT MEETING
ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES: SUMMARY REPORT 17-36 (Oct.
2005), available at http://www.icrc.org/Web/eng/siteengO.nsf/htmlall/participation-hostilities
-ihl-3 1 1 205/$File/Direct_participation_in_hostilities_2005_eng.pdf.

105. Public Committee against Torture in Israel, supra note 102.

106. SMITH, supra note 3, at 5.

107. GPI, supra note 91, art. 1(4).

108. GPII, supra note 97, art. 1.

109. MNF-I Guidelines, supra note 36.

1 10. KILCULLEN, supra note 7, at 38.

111. RICKS, supra note 36, at 264.

112. Sitaraman, supra note 9, at 1 777 ("Counterinsurgency is defined by a win-the-population
strategy for victory, not a kill-capture strategy for victory. It shifts the goals of war from destroy-
ing the enemy to protecting the population and building an orderly, functioning society").

113. David H. Petraeus, Learning Counterinsurgency: Observations from Soldiering in Iraq,
AUSTRALIAN ARMY JOURNAL, Winter 2008, at 57, 63 (2008).

114. Id.

115. yoram dinstein, the conduct of hostilities under the law of international
Armed Conflict 122 (2004).

1 16. A.P.V. Rogers, Law on the Battlefield 20 (2d ed. 2004).

117. See, e.g., the following declarations:

Australia: In relation to paragraph 5(b) of Article 51 and to paragraph 2(a)(iii) of Article
57, it is the understanding of Australia that references to the "military advantage" are
intended to mean the advantage anticipated from the military attack considered as a
whole and not only from isolated or particular parts of that attack.

United Kingdom: In relation to paragraph 5(b) of Article 51 and paragraph (2)(a)(iii)
of Article 57, that the military advantage anticipated from an attack is intended to refer

319

COIN and Stability Operations: A New Approach to Legal Interpretation

to the advantage anticipated from the attack considered as a whole and not only from
isolated or particular parts of the attack.

The complete text of all reservations and declarations is available at http://www.icrc.org/ihl.nsf/
WebSign?ReadForm&id=470&ps=P#res.

1 18. DINSTEIN, supra note 1 15, at 122.

119. COIN Manual, supra note 5, at 247-48.

120. Id. at 249.

121. ICRC Commentary, supra note 101, para. 2209, at 684.

122. Id.

123. Id. y para. 22 18, at 685 ("there can be no question of creating conditions conducive to sur-
render by means of attacks which incidentally harm the civilian population").

1 24. Sitaraman, supra note 9, at 1 78 1 ("proportionality, a principle that in counterinsurgency
unifies humanity and strategic self-interest").

125. ICRC Commentary, supra note 101, para. 2208, at 683.

126. Id., para. 2206, at 683.

127. See, e.g., the International Court for the former Yugoslavia's judgment in Prosecutor v.
Kupreskic, Case No. IT-95-16-T (Jan. 14, 2000), where both the Martens clause (para. 527) and
human rights law (para. 529) are cited to signal the "profound transformation of humanitarian
law" to permit the imposition of more humanitarian standards. For a contextualized analysis
of these factors, see Gabriella Blum, The Laws of War and the "Lesser Evil, " 35 YALE JOURNAL OF
INTERNATIONAL LAW 1 (2010), where the author identifies a structural resistance by courts/
tribunals to permit military forces to depart from the terms of IHL's formalist terms even where
a greater humanitarian outcome would be anticipated from such departure.

1 28. See Dale Stephens, Human Rights and Armed Conflict: The Advisory Opinion of the Inter-
national Court of Justice in the Nuclear Weapons Case, 6 YALE HUMAN RIGHTS AND
Development Law Journal 1, 14-15 (2006).

129. COIN Manual, supra note 5, at xxv.

130. Headquarters, International Security Force, Tactical Directive (July 6, 2009), available at
http://www.nato.int/isaf/docu/official_texts/Tactical_Directive_090706.pdf.

131. KILCULLEN, supra note 7, at 145.

1 32. Michael N. Schmitt, The Vanishing Law of War: Reflections on Law and War in the 21st Cen-
tury, HARVARD INTERNATIONAL REVIEW, Spring 2009, at 64, available at http://www.entrepreneur
.com/tradejournals/article/20027 1 86 1 .html.

133. Kathleen Sullivan, Foreword: The Justice of Rules and Standards, 106 HARVARD LAW
REVIEW 22, 69 (1992).

134. Id. at 67.

135. See Dale Stephens & Michael W. Lewis, The Law of Armed Conflict — A Contemporary
Critique, 6 MELBOURNE JOURNAL OF INTERNATIONAL LAW 55, 82-83 (2005), available athttp://
mjil.law.unimelb.edu.au/issues/archive/2005( l)/03Stephens.pdf.

136. Blum, supra note 127.

137. HCJ 3799/02 Adalah v. GOC Central Command [2005] (not yet published), English
trans, available at http://elyonl.court.gov.a/Files_ENG/02/990/037/a32/02037990.a32.pdf.

138. Blum, supra note 127, at 17.

139. HART, supra note 82, at 133.

140. Id. at 131.

141. Hans Morgenthau, Positivism, Functionalism and International Law, 34 AMERICAN
JOURNAL OF INTERNATIONAL LAW 260, 269 (1940).

142. Id. at 270.

320

Dale Stephens

143. KENNEDY, supra note 84, at 1 17.

144. Id. at 169.

145. MARK O'NEILL, Back to the Future: The Enduring Characteristics of Insurgency and Coun-
terinsurgency, AUSTRALIAN ARMY JOURNAL, Winter 2008, at 41, 53 (2008).

146. KILCULLEN, supra note 7, at 14.

147. COIN Manual, supra note 5, at 49-50.

148. Nuclear Weapons case, supra note 90.

149. Id., para. 25.

1 50. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 I.C.J. 136 (July 9), reprinted in 43 INTERNATIONAL LEGAL MATERIALS
1009 (2004).

151. Id., para. 106, at 97. The Court also determined that the application of the International
Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cul-
tural Rights and the Convention on the Rights of the Child also adhered to occupied territory
(paras. Ill, 112 & 113).

152. Al-Skeini & Others v. Secretary of State for Defence [2007] UKHL 26.

153. In this instance, the House of Lords determined that UK forces could be held account-
able for the violation of rights of detainees when held by them in a UK military installation
abroad under the UK Human Rights Act, even during a time of armed conflict, on the basis of a
constructive territoriality.

154. Charles Fried, The Artificial Reason of the Law or: What Lawyers Know, 60 TEXAS LAW
REVIEW 35, 57 (1981).

155. Kiszely, supra note 1, at 185. The concept of the "three-block war" was promulgated by
General Charles Krulak when he was Commandant of the Marine Corps, from 1995 to 1999. He
used the phrase in the realization that on the modern battlefield Marines could be called upon to
perform very different missions simultaneously. See Charles C. Krulak, The Strategic Corporal:
Leadership in the Three Block War, MARINES MAGAZINE, Jan. 1999, at 3, available at http://
www.au.af.mil/au/awc/awcgate/usmc/strategic_corporal.htm.

156. KILCULLEN, supra note 7, at 152 ("prosecuting the campaign demands an agile mixing of
counterinsurgency, counterterrorism, border security, nation-building, and peace enforcement
operations").

157. ICRC Commentary, supra note 101, para. 2206, at 683.

158. KENNEDY, supra note 84, at 169.

159. Kiszely, supra note 1, at 184.

160. Referring generally to 1918-39, the period between the end of World War One and the
beginning of World War Two.

321

Rule of Law Capacity Building in Iraq

Richard Pregent*

Introduction

This article discusses the US efforts to assist the government of Iraq (GOI) in
establishing the rule of law (ROL). It focuses on the period from the summer
of 2008 to the summer of 2009, and the perspective is that of a military lawyer sec-
onded to the US Embassy in Iraq. Although dated, the events and observations set
forth may provide useful lessons as the United States continues its reconstruction
and stabilization efforts in Iraq and elsewhere. Before beginning a detailed review
of ROL capacity building in Iraq, the basic concept must be placed within a
broader context.

ROL capacity building is one aspect of a broader national strategic goal of recon-
struction and stabilization of "fragile, conflict-prone, and post-conflict states/' 1
Whether the premise that "weak and failed states are per se among the most signifi-
cant threats to the United States" 2 is valid or not is beyond the scope of this discus-
sion; it is simply accepted as true. Within the Department of Defense (DoD) the
reconstruction and stabilization mission is described as "stability operations";
ROL capacity building is one part of those operations. 3 In a typical post-conflict
situation a State's ability to keep the peace by enforcing the law has been compro-
mised. Police, courts and detention capacity may be limited or not exist at all. The
ROL plays a key role in establishing and maintaining stability, particularly in disci-
plining the actions of the State. It is, however, only one part of the good governance

* Colonel, JA, US Army.

Rule of Law Capacity Building in Iraq

needed to help stabilize and rebuild a weakened State. Just as important to stability
operations is the State's ability to provide for the essential needs of its citizenry:
clean water, adequate food and shelter, a secure environment and a functioning
economy with legitimate employment opportunities.

For the purposes of this discussion, the definition of the rule of law set forth in
the US Army's Rule of Law Handbook has been adopted:

Rule of Law is a principle of governance in which all persons, institutions and entities,
public and private, including the state itself, are accountable to laws that are publicly
promulgated, equally enforced, and independently adjudicated, and which are
consistent with international human rights norms and standards.

That principle can be broken down into seven effects:

• The state monopolizes the use of force in resolution of disputes.

• Individuals are secure in their persons and property.

• The state is itself bound by law and does not act arbitrarily.

• The law can be readily determined and is stable enough to allow individuals to plan
their affairs.

• Individuals have meaningful access to an effective and impartial legal system.

• Human rights and fundamental freedoms are protected by the state.

• Individuals rely on the existence of legal institutions and the content of the law in the
conduct of their daily lives. 4

This definition was adopted by both the US Mission-Iraq (the Mission) and Multi-
National Forces-Iraq (MNF-I) in their joint campaign plan.

It must also be recognized that ROL capacity building cannot be conducted in
an operational vacuum. Some degree of security must exist for technical advisors
to focus on a State's compliance with its own laws, building a functional court
system, protecting the due process rights of pretrial detainees and the many other
ROL capacity-building missions. There will be instances in which security and the
types of protections associated with the rule of law will come into tension. In those
cases senior leaders will have to make the strategic decision to improve security
that some may criticize as compromising the rule of law. Particularly during an
active counterinsurgency there will be times when the long-term goals of the rule

324

Richard Pregent

of law mission will of necessity be a lower priority than establishing and maintain-
ing security.

Finally, US ROL capacity-building efforts are hampered by a lack of both unity
of command and unity of effort. The DoD stability operations doctrine tries to rec-
oncile two conflicting facts: that reconstruction and stabilization efforts are best
conducted and led by civilians, and that military personnel will oftentimes be the
only assets available to perform these tasks. 5 At times this conflict has defined the
US government's (USG) ad hoc reconstruction and stabilization efforts in Iraq
since the invasion.

This article will first discuss the tensions that occasionally arose between security
operations and ROL capacity-building efforts, and then focus on the roles the
Departments of State (DoS), Defense and Justice (DoJ) played in ROL capacity
building in Iraq. Finally, there will be an assessment of the effectiveness of the cur-
rent USG approach with specific recommendations for improvements.

Security and the Rule of Law

The Awakening

In 2007 many of the Sunni insurgency leaders realized that it was in their best inter-
est to come to terms with the coalition forces (CF) and government in Iraq. 6 The
movement began in Anbar province and became known as the Awakening. As the
movement spread, MNF-I entered into agreements with regional Awakening leaders,
literally bringing former Sunni insurgents, the Sons of Iraq (SOI), into a contractual
relationship with CF. The SOI were paid salaries by CF and were incorporated into CF
security plans and operations. Some observers believe this development was a greater
contributor to the improvement in security than the increase in combat forces, com-
monly referred to as the Surge, ordered by the Bush administration in 2007. 7

In late 2007 the Awakening began to bear political fruit: MNF-I negotiated an
agreement with the GOI to incorporate a portion of the SOI into government posi-
tions. 8 SOI members were hired into positions at the Ministry of Interior (MOI)
and brought into the Iraqi army. This partial "reconciliation" between the GOI and
former insurgents was strategically key to improving security across the country;
wherever these agreements were put in place acts of violence decreased dramati-
cally. Even though the agreements were effective, they were also extraordinarily
difficult to maintain politically for both the Sunni insurgency leadership and the
primarily Shia elected government officials. Elected leaders felt the SOI had boy-
cotted earlier national elections and chosen to become terrorists, while the SOI felt
the elected government had been complicit in the vicious sectarian ethnic cleans-
ing that had convulsed the country since the Samarra mosque bombing in

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February 2006. 9 Thus this political compromise was both strategically crucial and
extremely fragile.

As insurgents, many of the SOI had committed criminal acts before this recon-
ciliation. In many cases arrest warrants had been legally issued by Iraqi judges.
These arrest warrants were not withdrawn with the advent of the Awakening nor
when CF — and later the GOI — entered into agreements with the SOI. In 2008
there were several instances of Iraqi security forces (ISF) arresting senior Sunni
Awakening leaders based upon these pre- Awakening warrants. These arrests led
the SOI to believe the GOI was breaking faith with their agreements, creating a very
real risk that the security situation would backslide as the SOI turned back to the
insurgency. Although the arrests on their face were lawful, they also created the
strategic risk of destabilizing fragile political agreements.

At first glance, CF and Mission leadership seemed to be placed in the position of
having to choose between supporting the arrest and prosecution of Sunni leaders
for criminal acts or discouraging this enforcement of the law — essentially
encouraging Iraqi officials to ignore judicial arrest warrants — in order to support a
political agreement that improved the nation's short-term security. In fact, there
was no choice in the matter; the realities on the ground dictated that security be
maintained and the warrants not be executed. Given the circumstances in Iraq at
the time, short-term security necessarily took priority over long-term realization of
the principles underlying the rule of law.

The resolution was that the Awakening leadership would not be prosecuted for
allegations of criminal acts related to the insurgency that preceded their agree-
ments with CF and the GOI. Criminal allegations that arose for acts committed af-
ter the conclusion of these agreements, however, did result in arrests and
prosecutions. This political resolution was not formally approved by the Iraqi Par-
liament; an Awakening amnesty was never enacted. The executive branch simply
did not execute the legally valid arrest warrants issued by the courts. In principle,
this undercut the rule of law in Iraq. In reality, it made it possible for the SOI to
begin a reconciliation process with the GOI and improved security nationwide.
The improved security environment made it possible for the GOI, USG and the in-
ternational community to expand their reconstruction efforts, to include trying to
establish the rule of law. Ultimately, the leadership realized that the rule of law
capacity-building mission must not block political accommodations between fac-
tions that make stability possible.

UN Security Council Resolution Detainees

Another example of the tension between ROL capacity building and maintaining

security can be found in the disposition of legacy detainees. These individuals were

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detained by CF under the authority of a series of UN Security Council Resolutions
(UNSCRs), the last being UNSCR 1 790, 10 which expired December 31, 2008. It was
replaced by the US/Iraq security agreement (SA), which took effect the next day. 11
Article 22 of the security agreement states:

Upon entry into force of this Agreement, the United States Forces shall provide to the
Government of Iraq available information on all detainees who are being held by them.
Competent Iraqi authorities shall issue arrest warrants for persons who are wanted by
them. The United States Forces shall act in full and effective coordination with the
Government of Iraq to turn over custody of such wanted detainees to Iraqi authorities
pursuant to a valid Iraqi arrest warrant and shall release all remaining detainees in a safe
and orderly manner, unless otherwise requested by the Government of Iraq and in
accordance with Article 4 of this Agreement. 12

On January 1, 2009 when the SA came into effect, US forces held in excess of 15,000
detainees. The challenge was to devise a process that complied with the SA without
undercutting security, and in a way that supported the establishment of the ROL.
The end result was a qualified success.

Under the SA, detainees either had to be prosecuted pursuant to Iraqi criminal
law or had to be released. At the time, nearly two thousand detainees held by CF
under the authority of the UNSCRs were in some stage of criminal prosecution in
an Iraqi court. These detainees could be transferred into the Iraqi pretrial deten-
tion system as space became available. Both the GOI and CF were concerned that
releasing the remaining thousands of detainees at one time could not be done "in a
safe and orderly manner." 13 It would put hard-earned security improvements at
risk. CF established a review and release plan for the remaining detainees.

Lists of detainees were given to the GOI each month with releasable information
that supported the detentions. Frequently the information supporting detention
was classified so very little evidence was provided. Most disclosures consisted of a
conclusory statement that the detainee was involved in supporting the insurgency.
The GOI in turn either acceded to the releases or provided warrants for the arrests
of the detainees. To the surprise of many, the GOI began to produce hundreds of
warrants for detainees CF intended to release. It quickly became evident that the
GOI was not issuing warrants as the result of independent assessments of evidence
in accordance with Iraqi criminal and constitutional law. The warrants were being
mass-produced by the GOI to effect the transfer of legacy detainees from US cus-
tody into Iraqi pretrial detention.

Many within the GOI leadership believed that the detainees CF held were
security threats and their release would destabilize the country. Many within the
US forces leadership felt the same. Because a warrant enabled CF to transfer the

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detainees into the Iraqi criminal justice system rather than release the detainees
into Iraqi society, many US military leaders welcomed the flood of Iraqi warrants as
a positive development rather than a violation of the principles underlying the rule
of law. US forces made no effort to encourage the GOI to issue warrants that were
based upon adequate evidence. Keeping these detainees off the streets was deemed
more important than ensuring that their deprivation of liberty was done in accor-
dance with the law. The result was moving even more pretrial detainees into a
criminal justice system that was already glutted and dysfunctional.

One of the many organizations that worked closely with Iraqi officials to help es-
tablish the ROL, the Law and Order Task Force (LAOTF), had studied the detainee
population records at Rusafa prison, Iraq's largest detention facility. This prison
held over 20 percent of Iraq's entire detainee population and would house the vast
majority of detainees transferred from US custody. LAOTF's study showed that
over 20 percent of the prison population had been arrested by the Iraqi army and
no action had been taken on their cases since their detention order. Over 500 of these
detainees had been in pretrial confinement more than a year without any action
taken on their cases; over 290 of these had been in pretrial confinement for over
two years with no action taken. This study highlighted violations of Iraqi law and a
significant cause of the constant overcrowding and inhumane conditions for the
detainees. The United States was quick to bring this to the attention of the Minister
of Justice for corrective action.

Despite this information, US detention leaders chose to continue to equate war-
rants with success. The warrants enabled the United States to transfer detainees
into a broken Iraqi pretrial detention system. This exacerbated the overcrowding
and continued to overwhelm the Iraqi courts. Many argued that the warrants were
valid on their face, that the United States had no authority to question them and
that the SA gave the United States no choice but to transfer the detainees. While
each of these statements was true, the reality was that the US leadership made no
effort to ensure that Iraq was taking these actions against US-held detainees in ac-
cordance with Iraqi law.

The vast majority of the detainees transferred were Sunni, a reflection of the fact
that 80 percent of the detainee population was Sunni. It remains to be seen whether
the USG detention leaders have created a longer-term strategic risk. Will these detain-
ees be treated like those detained by the Iraqi army and remain in pretrial confinement
with no action being taken on their cases for years? If so, will it undercut efforts at
reconciliation and radicalize the detainees and their families and tribes once again?

Unlike the case of not executing arrest warrants against the leadership of the
Awakening, the decision to transfer thousands of Sunni detainees from US deten-
tion into Iraqi custody without some effort to ensure the integrity of the judicial

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process was a mistake. These wholesale transfers were expedient from a security
point of view. The focus on security, however, has arguably led the United States to
be complicit in what is de facto security detention. It is impossible to predict the
impact these actions will have on establishing the rule of law in Iraq. The least that
can be said is that this was a lost opportunity to encourage the executive branch of
the GOI to comply with its own laws.

The Counter-Terrorism Bureau

In 2006 and 2007 Iraq's security forces were virtually incapable of conducting
effective counterterrorism operations. The Ministry of Interior in particular had
been infiltrated by criminal elements involved in sectarian violence. Iraqi special
operations forces (ISOF) were often hamstrung by an inefficient command structure
and a lack of funding. In response, and with the support of CF, the Prime Minister
(PM) established the Counter-Terrorism Bureau (CTB). The CTB was intended
to develop anti-terrorism strategies for the government, as well as conduct
counterterrorism operations. 14 The PM removed ISOF from the Ministry of De-
fense (MOD) and placed them under his direct control. Initially this was done
within the context of a statement of emergency (SOE) announced by the PM and
approved by the Iraqi Council of Representatives (COR) in accordance with the
Iraqi Constitution. The Constitution, however, states that an SOE may only be
declared for a period of thirty days and must be extended for similar periods with
the COR's approval for each period. 15 The original SOE lapsed and has never been
approved again by the COR in accordance with the Constitution.

With the technical assistance of CF, the CTB proved to be an effective counter-
terrorism force. There were incidents, however, where the CTB appeared to be
undisciplined and acting from a sectarian bias. Since it was not part of a ministry, it
was not subject to ministerial oversight. Tensions arose between the executive
branch and the COR during 2008 as the PM pressed to have legislation enacted
legitimizing the CTB. 16 The proposed legislation, however, would have approved
the status quo and did not include oversight processes that were independent of the
PM's office. In early 2009 the COR passed a statute that prohibited expending
funds on any quasi-governmental institutions that were created or operated out-
side of established legal institutions. This was directly aimed at forcing the execu-
tive branch to institutionalize the CTB. Critics were concerned that the CTB,
which had grown to nine ISOF brigades located across the country, could become
the PM's personal militia.

US forces were intimately involved in the development of the CTB and helped
ensure its fighting effectiveness. The CTB in fact made significant contributions to

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the counterterrorism fight in Iraq, and was an important factor in creating and
maintaining security. The CTB did not, however, have a legitimate basis in Iraqi
law. The executive branch had built it unilaterally without concern for the law. The
CF and US Mission leadership once again felt the tension of security versus the rule
of law. It had helped create an effective fighting force, but one that was operating
outside the authorities of the Iraqi Constitution and Iraqi laws. This tension was
primarily one between branches of Iraqi government and the US ability to influ-
ence that debate grew less as Security Council Resolution 1790 lapsed and the secu-
rity agreement took effect. To date this internal Iraqi debate has not been resolved.
During the counterinsurgency fight US forces must be mindful that the capa-
bilities it helps the host nation develop are consistent with that nation's legal
structure. Supporting the PM's effort to fight the insurgency and terrorism cannot
be done in such a way that it undercuts the balance of powers established by that
State's constitution. To do so could result in the re-establishment of a strongman
State rather than a State governed by the rule of law.

Rule of Law Capacity Building

In 2008 both MNF-I and the Mission were anticipating the expiration of UN Security
Council Resolution 1790 at the end of the calendar year. 17 This would bring to an
end the United Nations Chapter VII authority for coalition forces to conduct mili-
tary operations in Iraq as they had since the formal end of occupation in June 2004.
Without the consent of the government of Iraq, the host nation, there would no
longer be legal authority for CF to be present on Iraqi territory, never mind conduct
unilateral military operations. Bilateral negotiations had begun seeking an ar-
rangement that would respect Iraq's sovereignty and growing sense of nationalism,
while simultaneously allowing for the support and technical assistance provided by
US forces — assistance both sides recognized as absolutely essential to maintain and
improve security.

It was in this context that a periodic review of progress in achieving the goals of
the joint campaign plan ( JCP) was conducted for the ambassador and MNF-I com-
mander in the summer of 2008. At that time the JCP focused on four lines of opera-
tion: security, economic, political and diplomatic. The Awakening, the surge of US
forces and the increases in the capabilities of Iraqi security forces had resulted in a
dramatic improvement in the security environment; by virtually every statistical
measure acts of violence had reached levels last seen in 2003. Economically, Iraq
was facing a budget surplus. This was due primarily to record high prices for oil
(approximately 95 percent of the Iraqi economy is based upon oil revenues). An-
other contributing factor was government inefficiency; ministries simply could

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not execute their budgets. While oil production was still inefficient, it was envi-
sioned that the budget surplus would provide the opportunity to make needed
capital investments to improve output. On the political front, progress had been
made by the COR in passing some "benchmark" legislation, 18 the executive
branch appeared to be making efforts to conduct security operations and govern in
a generally non-sectarian manner, and preparations were on track for provincial
elections in December 2008. Finally, in the diplomatic arena, Iraq's international
relations were progressing. More nations, particularly regional neighbors, were
sending delegations to, and opening missions in, Iraq, and Iraq was increasing its
participation in regional and international forums. Thus, impressive progress had
been achieved in each line of operation. The same could not be said for the estab-
lishment of the rule of law.

While the Iraqi judiciary was legally independent of the other branches of gov-
ernment, it was also overwhelmed. The High Judicial Council recognized a need
for 3,000 judges; 19 there were only about 1,250. Judicial security was a significant
problem; dozens of judges had been assassinated since 2003. These problems led to
significant backlogs of cases, which exacerbated the existing pretrial detention
challenges. Pretrial detention conditions rarely met the most basic international
standards. Conditions of overcrowding, inadequate hygiene facilities and very lim-
ited medical support — in some cases there was none — existed in nearly every pre-
trial detention facility. Forcing confessions from prisoners was a well-established
police practice. MNF-I police training teams reported scores of detainee abuse
cases at Iraqi detention facilities every month, supported by physical evidence. In
addition, there were significant challenges beyond "courts, cops, and corrections,"
the areas military forces traditionally focus on during post-conflict operations. Of-
ficial corruption was endemic and the GOI had not developed the oversight mech-
anisms needed to combat it. The ministry inspectors general were neither
resourced nor empowered to act. The Board of Supreme Audit and the Commis-
sion on Integrity were similarly hampered. Most problematic was Article 136b of
the Criminal Procedure Code, which gave individual ministers the authority to
block the criminal prosecution of any member of their ministries. After this peri-
odic review the ambassador and MNF-I commander decided to make the rule of
law a separate line of operation of the JCP.

The persons tasked to lead the lines of operations were the senior officers re-
sponsible for the US government efforts in those areas: the MNF-I Deputy Com-
manding General for Operations for the security line, and the Mission's senior
political, economic and diplomatic officers for those lines. The lead for the rule of
law line of operation was shared by the Mission's Rule of Law Coordinator (ROLC)
and the MNF-I Staff Judge Advocate (SJA), a US Army colonel. This was a

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reflection of both the realities on the ground and the manner in which the United
States had conducted operations in Iraq since the invasion. While the ambassador
was the senior representative of the United States, there was an overwhelming mili-
tary presence. In August 2008 there were over 160,000 coalition forces in Iraq, with
nearly as many contractors supporting the military presence. These military and
civilian assets were spread across the country. The number of Mission personnel
and contractors was a small fraction by comparison, and most were concentrated
in Baghdad.

Civilian-Led Rule of Law Capacity-Building Assets

The ROLC was a senior executive service officer seconded to the Mission from the
Department of Justice. It should be noted that rule of law capacity building was
only part of his responsibilities. Both Do J and the Mission looked to that person to
oversee all USG justice activity in Iraq, the ROLC basically serving the role of legal
attache, as well as rule of law coordinator. In August 2008 the number of personnel
under the ROLC's technical supervision included personnel from the US Marshals
Service, the Federal Bureau of Investigation and Department of Homeland Secu-
rity, but few of these assets were in Iraq to support the ROL capacity-building mis-
sion. ROLC personnel dedicated to the ROL mission included the ROLC deputy,
one action officer and liaisons to the Ministry of Justice (MOJ), Ministry of Inte-
rior (MOI), the Iraqi High Tribunal (IHT), the Bureau of International Narcotics
and Law Enforcement (INL) office, and the International Criminal Investigative
Training Assistance Program (ICITAP) office. There were also resident legal advi-
sors (RLAs) located with most of the Provincial Reconstruction Teams (PRTs).
The numbers and sizes of PRT offices fluctuated frequently, but in the summer of
2008 there were about twenty-six PRTs spread across the country. There were sev-
eral in Baghdad and some of the eighteen provinces had two or more, while the
Kurdistan region had only one. The PRTs and their RLAs fell under the authority
of the Chief of the Office of Provincial Reconstruction (OPR) and not the ROLC.
The ROLC MOJ and MOI liaisons had limited impact. The capacity-building
mission for the MOI rested with MNF-I. 20 Thus the Mission's liaison was an ob-
server of events within the Ministry of Interior and developed a network within the
ministry to arrange key leader engagements. This was an important function, but
did not make a critical contribution to ROL capacity building. Regarding the MOJ
liaison, it must be noted that, in the summer of 2008, the acting Minister of Jus-
tice, who had been in place for nearly a year, refused to cooperate with either CF or
the Mission. This continued until early 2009 when a new minister was appointed.
Thus, the Mission's MOJ liaison could accomplish very little. The IHT liaison

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office was known as the Regime Crimes Liaison Office from 2003 to 2007. In the
earlier years it had a larger staff and provided significant amounts of technical as-
sistance to the IHT. By 2008 the IHT was well established and the liaison office was
reduced to a single officer who observed the court's activities and provided techni-
cal assistance as needed. The bulk of the ROL capacity-building contributions by
the ROLC were made by ICITAP, INL and the RLAs with the PRTs.

ICITAP's role was to provide technical assistance to the GOI to improve the
quality of correctional facilities and the professionalism of the Iraqi Corrections
Service. ICITAP had been present in Iraq since 2003 and helped the GOI make
enormous strides in its correctional system. In 2008 it had a senior corrections pro-
fessional in the ROLC managing over eighty contractors divided into teams spread
across eleven prisons and six detention facilities. Although ICITAP's focus was on
post-trial detention facilities, it maintained a presence in some pretrial facilities.
ICITAP worked closely with MNF-I's Task Force (TF) 134 to train Iraqi correc-
tions officers and help the GOI institutionalize this training capacity. The ICITAP
contractors were the USG's eyes and ears into Iraqi corrections facilities. ICITAP
was greatly responsible for the fact that by 2008 MOJ-run facilities usually met in-
ternational standards and rarely generated allegations of detainee abuse. As dis-
cussed later, conditions in pretrial detention facilities were appalling, but most of
those facilities were run by the MOI.

The RLAs focused on rule of law capacity building at the provincial level and
below. As previously indicated, they were part of the PRTs, falling under the au-
thority of the embassy's Office of Provincial Reconstruction, not the ROLC. The
PRTs had the broader reconstruction and stabilization goals of supporting good
governance by improving the local governments' ability to provide essential ser-
vices, employment and educational opportunities, and health services, as well as
increasing the transparency of government to battle corruption. The RLAs focused
on the rule of law aspect of reconstruction and stabilization, tailoring their efforts
to the needs of a given region. The RLAs frequently served in austere and danger-
ous environments, and relied on MNF-I assets for security and movement support.
Several RLAs were retired military lawyers or assistant US attorneys on detail and
served for at least a year.

Although the INL office had no rule of law capacity-building practitioners, it
controlled the funding for the civilian rule of law capacity-building efforts and
managed related contracts. INL funded ICITAP, most of the RLAs, Iraqi judicial
and law enforcement assistance programs, various information technology
initiatives and the construction of five prisons. INL also managed a $400 million
contract for the DoD to provide over 750 police and border advisors. The ROLC
had no authority over the director of the INL office. This was a significant source

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of friction in the Mission's rule of law capacity-building efforts. Frequently, the
INL office would act independently without coordinating its actions with the
ROLC. At other times, the INL office would disagree with the rule of law priorities
set by the ROLC and refuse to fund them. The tension between these offices re-
flected the greater tension between the Department of Justice and Department of
State. DoS lacked subject-matter expertise in rule of law capacity building and
turned to DoJ for this support. Yet DoS refused to give that officer authority over
the funding of rule of law capacity building. This fundamental gap between DoS
capabilities and responsibilities is at the heart of USG failings in reconstruction
and stabilization efforts.

Military-Led Rule of Law Capacity-Building Assets

By comparison to the civilian-led effort the US military applied far more assets to
the stabilization and reconstruction mission, including rule of law capacity build-
ing. In 2004, then-major general Petraeus built the Multi-National Security Tran-
sition Command-Iraq (MNSTC-I), consolidating US government efforts to
provide technical assistance to the GOI in rebuilding the Ministries of Defense and
Interior, as well as the Iraqi military and police forces. In its early years MNSTC-I
focused on force generation to increase the number of ISF available to conduct
counterinsurgency operations. As the security situation improved in 2008,
MNSTC-I began to shift its focus to professionalizing those forces and improving
their respective ministries' ability to support and oversee their operations.
MNSTC-I assisted both the MOI and MOD in developing codes of conduct, and
establishing open and transparent internal court systems to discipline their forces.
Dozens of MNSTC-I advisors and contractors worked within the ministries to in-
stitutionalize oversight mechanisms (inspectors general and human rights offices)
and at the training bases to assist in establishing training standards that included
respect for basic human rights and the rule of law. These advisors also worked to
"train the trainers," helping to develop a cadre of Iraqis who understood the sub-
jects and who had developed the skills needed to pass that knowledge on to new
trainees. MNSTC-I also trained CF training teams that were then assigned to the
field commanders within Multi-National Corps-Iraq (MNC-I), MNF-I's subordi-
nate, operational command.

In 2008, MNC-I had 120 military training teams, 35 national police training
teams and 244 police training teams operating in Iraq. These teams were partnered
with Iraqi units and worked with them on a daily basis to provide technical assis-
tance in conducting operations and professionalizing the forces. MNC-I required
each subordinate command to inspect all Iraqi detention facilities within its area of

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responsibility every quarter. Training teams were often used to conduct these as-
sessments. Monthly reports were provided to the MNC-I Provost Marshal and
proved to be an invaluable tool to identify the areas with the most significant prob-
lems. MNC-I also had a contract for law enforcement support in addition to the
$400 million contract managed by INL referred to above. About 150 civilian law
enforcement professionals were provided under this contract and were distributed
down to the battalion level to work with the police training teams and partnered
Iraqi units. In 2008 over two hundred military lawyers and paralegals were serving
within MNC-I. Many of them worked with the PRT RLAs and local Iraqi judicial
and law enforcement officers on various rule of law capacity-building projects.

TF 134 was created in 2004 to manage detention operations for CF. Although
the task force's principal mission was running detention facilities at Camps Crop-
per and Bucca, which housed thousands of security detainees, it also made signifi-
cant contributions to rule of law capacity building. The TF 134 legal office was
staffed with dozens of attorneys whose mission was to support the prosecution of
security detainees in the Central Criminal Court of Iraq. These lawyers marshaled
the evidence and provided it to the investigating judge in an effort to turn security
detainees held under the authority of Security Council Resolution 1790 into pris-
oners convicted and sentenced under Iraqi criminal law. Although this effort was
intended primarily to prosecute and punish those who attacked CF, it had the
added benefit of improving to some degree the efficiency and professionalism of
one of Iraq's largest criminal courts. 21

TF 134 also conducted inspections of Iraqi prison facilities to ensure that the fa-
cilities met basic standards before transferring detainees that were charged with, or
convicted of, committing offenses under Iraqi law. In addition, TF 134 trained
Iraqi corrections officers and integrated them into the guard force rotations at
Camps Cropper and Bucca, providing carefully supervised on-the-job training. In
2009, TF 134 initiated and oversaw, in coordination with ICITAP, the construction
of a multimillion-dollar training center near Camp Cropper. This effort included
the development of programs of instruction and training Iraqi trainers. Despite the
downsizing of MNF-I in 2009, TF 134 also built a capability to field nine correc-
tions assistance transition teams. Much like the police training teams described
earlier, these teams travel to Iraqi detention facilities ICITAP cannot support, and
provide technical assistance to the Iraqi guard force and facility managers.

MNF-I created the Law and Order Task Force (LAOTF) in 2008. It was intended
to help build "Iraqi capacity for independent, evidence based, and transparent in-
vestigation and trial of major and other crimes before the Central Criminal Court
of Iraq." 22 LAOTF was located at Forward Operating Base Shield near Rusafa
prison, Iraq's largest detention facility, and the Rusafa criminal courts. Rusafa

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prison included both sentenced prisoners and pretrial detainees. Although the
conditions were better than most Iraqi pretrial detention facilities, it was notoriously
overcrowded. The detention facility was poorly managed; corruption and sectarian
bias were rampant. ICITAP's efforts to improve prison conditions were frequently
frustrated by the inertia of the Rusafa criminal courts. In August 2008 the courts
were so slow that it would take three years to retire the backlog of cases. Thousands
of pretrial detainees languished awaiting trial. LAOTF's mission was to improve
the Rusafa criminal court's throughput.

LAOTF was initially staffed with US military lawyers, and criminal investigators
from Australia, the United Kingdom and US armed forces. It was intended that the
criminal investigators be paired with Iraqi criminal investigators to improve the
quality and efficiency of their investigations. The military lawyers were titled
"mentors" for the Iraqi investigative and trial judges. 23 LAOTF also established
Iraq's first defense clinic near the prison. The clinic was run by an experienced US
DoJ civilian attorney and a military judge advocate. It was comprised of about
twenty Iraqi defense counsel who were "mentored" on how to provide support to
Rusafa detainees. It must be noted that the Iraqi criminal justice system is inquisi-
torial rather than adversarial, leaving a very limited role for defense counsel. Most
Western-trained attorneys found it difficult to accept that the investigative judge
served the roles of prosecutor and defense counsel, as well as that of independent
judge. 24 The goal of the defense clinic was not to change Iraqi criminal law or prac-
tice, but a more modest one of providing detainees with advocates who might be
able to move their cases through the investigative process more quickly.

LAOTF also assumed a role in coordinating Iraqi judicial support to military
operations following the expiration of Resolution 1790. As the expiration date ap-
proached, MNF-I conventional forces began to conduct all operations "by, through,
and with" their Iraqi counterparts. These operations were based upon warrants is-
sued by Iraqi criminal courts. LAOTF worked closely with the units and Central
Criminal Court of Iraq judges to assist in the presentation of evidence supporting
the issuance of warrants and the follow-on prosecution of those cases. This support
helped to some degree in disciplining the operations of the Iraqi security forces
who were not accustomed to conducting counterinsurgency operations with a goal
of criminally prosecuting the detainees, an important rule of law goal.

Rule of Law Coordinating Center

As the importance of rule of law capacity building was being recognized by the
Mission and MNF-I leadership by making it a separate line of operation in the joint
campaign plan, the ROLC and MNF-I Staff Judge Advocate recognized that there

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were numerous actors working in the field. They also recognized that those efforts
were being conducted by separate commands and agencies; there was no unity of
command. Trying to achieve a unity of effort, they decided to create the Inter-
agency Rule of Law Coordinating Center (IROCC).

The IROCC was intended to coordinate and synchronize rule of law capacity
building. In military parlance, it would serve the role of a fusion cell. The concept
of the IROCC was initially opposed by the senior DoS leadership in the Mission, a
result of the ingrained institutional concern about the "militarization of diplomacy."
Only after repeated assurances that the IROCC would have no authority over any
DoS assets did the Mission relent.

The concept was that the IROCC would be staffed with action officers from the
ROLC office and the MNF-I SJA's rule of law office. Those officers would continue
to work on rule of law issues but do so together in one office ensuring that all
would have a broad situational awareness, avoiding redundancies and achieving
synergies. The IROCC would be led by an Army judge advocate colonel working
for both the ROLC and the MNF-I SJA. When the draft fragmentary order
(FRAGO) was initially staffed, civilians within the ROLC office who would be
working within the IROCC objected. These were DoJ employees who balked at
working within an organization led by a military officer. Once again, it was reiter-
ated that the IROCC was a coordinating body and had no tasking authority over
either DoS or DoJ personnel.

Once the FRAGO was issued by the MNF-I commander, 25 the military entities
involved in rule of law capacity building (MNC-I, MNSTC-I, TF 134 and LAOTF)
immediately engaged in the coordination process led by the IROCC. Mission rep-
resentatives (ROLC, OPR, ICITAP, MOJ and MOI liaisons, INL, Baghdad PRT
RLAs) also participated. At the action officer level it was quickly discovered that the
IROCC was a useful (and non- threatening) coordinating body. Weekly video-
teleconferences were held with all rule of law capacity builders at the operational
level and above participating.

Initially the IROCC focused on Iraqi detention facility inspections. A central data-
base, accessible to all ROL capacity builders, was developed for inspection reports, as
was a central inspection/assessment calendar to de-conflict the oversight process.
MNSTC-I advisors to the Ministry of Defense Human Rights Office and Ministry
of Interior Inspector General offices were able to better coordinate logistical sup-
port for Iraqi inspections of Iraqi detention facilities. MNC-I was able to more
quickly provide reports of inspections and serious incident reports to the MNSTC-I
liaison officers to ensure inspection reports were not stale and could be investi-
gated by the Iraqis. The results of all inspections were more efficiently and broadly
shared across the inspecting community. Significant incidents or particularly bad

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conditions could be quickly brought to the attention of both the Mission and
MNF-I leadership. The IROCC supported a "targeting" process for key leader
engagements.

The IROCC became the established mechanism for USG rule of law capacity
builders to coordinate and de-conflict their efforts. During the weekly meetings
rule of law capacity-building initiatives were presented, ranging from real property
dispute resolution to coupons for legal representation for the indigent. The IROCC
held a separate forensics forum, gathering subject-matter experts from MNSTC-I,
MNC-I, ROLC, MNF-I, LAOTF and TF 134, and the UK Mission, to discuss initia-
tives to help the Iraqis develop a forensic capability within its Ministry of Interior
and courts. It was quickly discovered that there were overlapping efforts and op-
portunities that had not been identified earlier. The forum helped the leadership
dispel "urban legends" that the Iraqi courts would not accept forensic evidence,
and to focus their efforts on the weakest link in the forensic arena — police training.
The IROCC also held an information technology forum during which it gathered
all those who were developing databases or information management systems for
the Iraqis (TF 134, LAOTF, INL and MNC-I). The goal was to achieve compatibil-
ity and avoid creating a series of separate, unique and incompatible information
management systems.

The International Committee of the Red Cross attended several IROCC meet-
ings, as did the UK Mission legal advisors. After six months the IROCC attempted
to engage with the international community to coordinate ROL capacity-building
efforts there as well. The Mission leadership objected, saying that this was the ex-
clusive province of the DoS and the ROLC office. It should be noted that to date
there is no organization comparable to the IROCC within the international com-
munity in Iraq.

Despite the bureaucratic hesitation, the IROCC proved to be a useful coordinat-
ing mechanism. It remains to be seen whether the various agencies involved in re-
construction and stabilization operations in the future will embrace the concept of
a fusion cell in the field.

State Department Leadership in Reconstruction and Stabilization

The concept of "nation building," widely criticized during the 1990s with US in-
volvements in Somalia, Rwanda, Bosnia-Herzegovina and Kosovo, took on a new
legitimacy after the attacks of 9/1 1. During those earlier peacekeeping and human-
itarian operations, US support to the capacity-building efforts fell to the military
because of both a lack of interest on the part of policymakers within the Clinton ad-
ministration and a lack of capacity within the Department of State. After 9/11

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Richard Pregent

many now viewed weak and failing States as potential threats to the United States
because of their inability to deny safe haven to transnational terrorists, or, as in
the case of the Taliban, a willingness to provide such a haven. 26 The lack of a civil-
ian capacity to plan, coordinate and execute post-conflict governance and capacity
building became clear after the invasion of Iraq and the toppling of the Saddam
Hussein regime.

In 2004 the State Department established the Office of the Coordinator for Re-
construction and Stabilization (S/CRS). In the same year Congress supported the
creation of the S/CRS with funding in its Consolidated Appropriations Act for fis-
cal year 2005. The congressional language set forth a broad stability and recon-
struction leadership role for DoS, including developing a readily deployable
capability of civilian subject-matter experts to lead reconstruction activities in re-
gions or countries trying to overcome crises. 27 In December 2005 President Bush
signed National Security Presidential Directive 44 (NSPD 44), explicitly tasking
the Secretary of State to lead and coordinate all US government stabilization and
reconstruction efforts. 28 The Secretary of State was given the responsibility to not
simply lead the interagency process on this subject, but also develop a strong civil-
ian response capacity for post-conflict situations.

Over the last four years the S/CRS established an Active Component (CRC-A)
and Standby Component. The S/CRS's goal is to have 250 government personnel
working in the CRC-A full-time and 2,000 working in other federal agencies out-
side DoS but available for surge requirements. The S/CRS also seeks to create a re-
serve force of up to two thousand persons not employed by the government but
available for deployments. 29 This force structure has not been authorized or
funded to date. The Bush administration proposed a Civilian Stabilization Initia-
tive for fiscal year 2009, requesting $248.6 million to finance the first year of the
initiative. This sum represents a small fraction of the monies expended by the USG
in Iraq each year for stabilization and reconstruction. 30 In the last two years a very
limited number of DoS personnel have been deployed by the S/CRS to support
capacity-building initiatives in Sudan, Haiti, Chad and Liberia. 31 It must be noted
that, since its creation in 2004, the S/CRS has had no significant involvement in
Iraq and has made virtually no contribution to the reconstruction and stabilization
efforts there.

Virtually all USG rule of law practitioners currently working in Iraq are military,
DoJ or contractor personnel. Although INL and the United States Agency for
International Development (USAID) administer many large ROL-related con-
tracts, neither organization has a DoS rule of law subject-matter expert serving in
Iraq. It is particularly noteworthy that the Mission's Rule of Law Coordinator is
seconded to the Mission from DoJ. In Iraq, the State Department outsources the

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management of rule of law capacity building and contracts out all reconstruction
and stabilization efforts. It is unclear whether either DoS or USAID has the subject-
matter expertise on staff to manage these contracts.

In the fall of 2008 the American Academy of Diplomacy issued a report on what
it described as a "crisis in diplomatic readiness." 32 The report recognizes that DoS
is incapable of performing the missions given it by NSPD 44 and acknowledges that
the military has assumed a greater role in diplomacy as a result: "The 'militariza-
tion of diplomacy' is noticeably expanding as DoD personnel assume public diplo-
macy and assista