The Occupation of Iraq: A Reassessment

• Author: Eyal Benvenisti - Guy Keinan
• Position: Professor of Human Rights, Tel Aviv University, Faculty of Law - LL.B. candidate, Tel Aviv University
• Pages: 263-286

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The Occupation of Iraq: AReassessment

Eyal Benvenisti and Guy Keinan*

I. Introduction

Theinvasion and subsequent occupation of Iraq in 2003 provided arare oppor-

tunity to examine the viability in the twenty-first century of alegal doctrine

rooted in the military and political circumstances ofthe nineteenth century. 1The rar-

ity ofthis opportunity is not aresult of paucity ofoccupations, but ofthe prevalent dis-

inclination of occupants to recognize their status as such.2This article reflects on

several key questions concerning the occupation ofIraq, 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 ofthe 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 ofIraq: AReassessment

concern was that eager invaders would declare an area occupied prematurely. Be-

cause the law ofoccupation granted occupants control over key strategic resources,

such as public property, invaders might be tempted to assert authority without ac-

tually controlling the area.3But 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 adistance, anew 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,4implying that whoever controls the ter-

ritory has responsibility over the population, while Geneva Convention IV does

not attempt aterritorial definition, instead emphasizing the relations between the

occupant and the "protected persons" who "find themselves ... in the hands" of an

occupying power5as 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.6It is wrong also literally, because

the reference in "such authority" is to the first sentence ofthe article, which discusses

authority over territory, not over the population in the territory.7Finally, 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

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