The Occupying State as Legislator in Occupied Territory: Challenges to the duty imposed by the international law of belligerent occupation to respect the existing law and institutions in occupied territory

Abstract

The Occupying State as Legislator in Occupied Territory: Challenges to the duty imposed by the international law of belligerent occupation to respect the existing law and institutions in occupied territory Author: David Kevin O Sullivan At a time when the rules-based international order , including occupation law, is under threat, this thesis looks at the challenges to the rules of occupation law which require an occupying state, subject to limited exceptions, to respect the existing law and institutions of the occupied territory. Three principal challenges to those rules can be identified in the literature: (i) the challenge posed by the idea that occupying states should be freed of their obligations to respect the existing law and institutions so as to be permitted to engage in transformative occupations; (ii) the challenge posed by the applicability of human rights treaties in occupied territory; and (iii) the challenge from the idea that the Security Council may authorise a departure from, or override, the rules which require respect for existing laws and institutions. This thesis explores these challenges by examining as a case study the occupation of Iraq by the US and UK in 2003-04. The case study is considered in a wider context and other practice is taken into account where relevant. This thesis makes use of new information and evidence which has been disclosed in the years since the occupation, including that contained in the Report of the Iraq Inquiry (the Chilcot Report) in the UK, which was published in July 2016. The rules of the law of occupation in question survive largely unscathed the challenges identified. The idea of transformative occupation is undermined by the case study of Iraq, including the damaging effects of the legislation enacted by the Coalition Provisional Authority (CPA) on de-Ba athification and dissolution of the Iraqi Army; the evidence that large numbers of laws (including most of the commercial laws) were being enacted by the CPA and then not implemented; and the fact that, despite all the CPA legislation on human rights, the evidence examined suggests that serious and widespread human rights abuses, including torture, have continued to take place for years after the occupation. As regards the applicability in occupied territory of the International Covenant on Civil and Political Rights ( ICCPR ), although state practice appears to embody an emerging consensus among most states parties, it does not establish the applicability of the ICCPR in occupied territory, because the fact that other states parties such as the US have made clear their disagreement prevents the agreement of the parties being established regarding the interpretation of the treaty, within the meaning of Article 31(3)(b) of the Vienna Convention on the Law of Treaties. The US stance on the non-applicability of the obligations of a state party under the ICCPR in territory which it occupies finds support in the travaux préparatoires, and that stance appears to have become entrenched given its inclusion in the US manual on the law of war issued in 2015. The Advisory Opinion of the International Court of Justice in the Wall case contains within the Court s interpretation of the travaux préparatoires a potentially important qualification to the extraterritorial application of the ICCPR, which is identified and discussed. As regards, the question whether the European Convention on Human Rights ( ECHR ) requires an occupying power which is a state party to it to change pre-occupation laws in occupied territory which are incompatible with the ECHR rights, in Al-Skeini v. The United Kingdom the European Court of Human Rights, through its approach of dividing and tailoring rights where the basis of jurisdiction is state agent authority and control (the basis which it employed in that case in relation to Iraq) has found a way of protecting and vindicating the rights of individuals who come into direct contact with soldiers or other agents of the occupying power, whilst at the same time avoiding the imposition of ECHR standards on non-European societies and any requirement to change pre-occupation laws there. There is uncertainty as to whether a Security Council Resolution provides a sound legal basis for an occupying state to enact legislation which would otherwise be outside the constraints of the law of occupation. Furthermore, the UK Attorney General s advice, disclosed by the Chilcot Inquiry, was that the legal basis for actions going beyond occupation law in Iraq required coordination with the UN Secretary-General s Special Representative for Iraq pursuant to Security Council Resolution 1483. It is apparent from the Chilcot Report that after a certain point the CPA stopped sending proposed legislation to the Special Representative for coordination, after the US was informed by a reliable source that the UN would veto proposed laws. Accordingly Resolution 1483 did not provide a legal basis for legislation in that period which went beyond occupation law. If in the future the Security Council should be called upon to adopt a resolution in the context of an occupation, the lessons of what happened in Iraq need to be learned. Guidelines are proposed for such resolutions, in order to reduce the scope for abuse.