* Visiting Professor of Law, Georgetown University Law Center formerly U.S. Ambassador at Large for War Crimes Issues 1997–2001. I wish to thank Professors Jordan J. Paust, Adam Roberts, Eyal Benvenisti, David Kretzmer, and Michael Newton for their comments on previous drafts. The views expressed in the article are my sole responsibility. Matthew Galvin and Tara Weinstein provided excellent research assistance.

1 SC Res. 1483 (May 22, 2003), 42 ILM 1016 (2003); George W. Bush, Statement on U.N. Vote Lifting Sanctions on Iraq (May 22, 2003), 39 Weekly Comp. Pres. Doc. 645 (May 26, 2003), available, at <http://www.whitehouse.gov/news/releases/2003/05/iraq/20030522-11.html>; Press Release, Foreign Secretary Jack, Straw, We Can Now Move Forward Together in Support of the Iraqi People (May 22, 2003)Google Scholar, United Kingdom Government Foreign and Commonwealth Office, available at <http://www.fco.gov.uk>.

2 “Occupation law” is the international law of military occupation (often accompanied by civilian administration) of foreign sovereign territory, governed in large part by relevant portions of the Fourth Geneva Convention, relevant provisions of Hague Regulations of 1907 and Geneva Protocol I, and by customary international law, which has evolved in recent decades. See Eyal, Benvenisti, The International. Law of Occupation 7–31, 98–106, 209–16 (1992)Google Scholar; Timothy P., Bulman, A Dangerous Guessing Game Disguised as Enlightened Policy: United States Law of War Obligations During Military Operations Other than War , 159 Mil. L. Rev. 152, 182 n.2 (1999)Google Scholar; Adam, Roberts, What Is a Military Occupation? 66 Brit. Y. B. Int’l L. 249 (1984)Google Scholar [hereinafter Roberts, What Is Military Occupation ? ]. See also infra note 24 and David, Scheffer, A Legal Minefield for Iraq’s Occupiers, Fin. Times (London), July 24, 2003, at 17 Google Scholar.

3 See generally Roberts, What Is Military Occupation? supra note 2, and Benvenisti, supra note 2.

4 In 1970, the UN General Assembly adopted without a vote the general principle that, “The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter.” Declaration on Principles of International Law Concerning Friendly Relations and Co–operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625, UN GAOR, 25th Sess., Supp. No. 28, at 121, UN Doc. A/8028 (1970). If it were to be concluded that the military intervention into Iraq in March 2003 contravened the UN Charter, then the subsequent military occupation presumably would be illegal although the obligations of the intervening powers under occupation law would persist. Subsequent Security Council action (such as SC Res. 1483, supra note 1) that has embraced the occupation might render the charge of earlier illegality moot for purposes of occupation law.

5 Indeed, it would be mistaken to regard the totality of occupation law as reflecting jus cogens or erga omnes obligations in the context of such authorized military interventions and occupations. The significance of hierarchic categories of international law, particularly in relation to Article 103 of the UN Charter, erga omnes obligations, and jus cogens, is discussed in Jordan J., Paust, Joan M., Fitzpatrick & Jon M., Van Dyke, International Law and Litigation in the U.S. 47–53 (2002)Google Scholar. Such principles of jus cogens or erga omnes obligations pertaining to occupation law have never been conclusively established, but one would expect them to include the overarching principles of humane treatment and judicial due process that appear in various codified provisions of occupation law. See infra note 24. How those principles are implemented, however, in the context of a modern transformational occupation is by no means firmly established in international law.

6 SC Res. 1483, supra note 1.

7 See Report of the Secretary–General Pursuant to Paragraph 16 (c) of Resolution 1483, UN Doc. S/2003/640 (2003); Edmund L., Andrews; Lifting of Iraq Sanctions Ends 13 Years of Isolation, but Immediate Relief Isn’t Expected, N.Y. Times, May 24, 2003, at A9 Google Scholar; Colum, Lynch, Security Council Ends Iraq Sanctions; U.S. Given Control Over Economy, Wash. Post, May 23, 2003, at A16 Google Scholar.

8 See SC Res. 1483, supra note 1, pmbl. The “Authority” became identified as the “Coalition Provisional Authority.”

9 Id.

10 Id., para. 5. Regarding the collective use of force under the Charter, see Lori F., Damrosch et al.., International Law Cases and Materials 1005–43 (4th ed. 2001)Google Scholar.

11 SC Res. 1483, supra note 1, para. 4.

12 See id., para. 8.

13 SC Res. 1500 (Aug. 14, 2003), para. 2. Tragically, Sergio Vieira de Mello, the UN High Commissioner for Human Rights who was appointed as the first special representative for Iraq in late May 2003 and who was struggling to set the new UN mission on a dynamic course of action, died in the bombing of the UN headquarters on August 19, 2003.

14 See SC Res. 1483, supra note 1, at para. 9.

15 See James, Harding, et al., White House Prepares to Install Regime of ‘Free Iraqis,’ Fin. Times, Apr. 5, 2003, at 4 Google Scholar; Douglas, Jehl, U.S. Reported to Push for Iraqi Government, With Pentagon Prevailing, N.Y. Times, Apr. 30, 2003, at A13 Google Scholar. L. Paul Bremer, head of the Coalition Provisional Authority, quickly retreated from rapid political transformation and by July 2003 had opted for the creation of a hand–picked 25–member “Governing Council,” including individuals who had lived in exile during Saddam Hussein’s rule, which would exercise broad executive powers. See Rajiv, Chandrasekaran, Former Exiles Given Majority on Iraqi Council; U.S. and Britain Revise Plans in Choosing 25-Member Governing Body, Wash. Post, July 13, 2003, at A23 Google Scholar. The Security Council then welcomed (but chose not to formally recognize) the establishment of the Governing Council of Iraq “as an important step towards the formation by the people of Iraq of an internationally recognized, representative government that will exercise the sovereignty of Iraq.” SC Res. 1500, supra note 13. On October 16, 2003, the Security Council determined that “the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its further evolution, embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognized, representative government is established and assumes the responsibilities of the Authority,” and invited the Governing Council to provide the Council by December 15, 2003, with “a timetable and a programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution. . . .” .See SC Res. 1511 (Oct. 16, 2003), paras. 4, 7. Council members, presented in the debate over Resolution 1511 with a choice between ending the occupation at an early date and effectively validating a prolonged occupation, chose the latter. The Council also authorized “a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq” but left unclear whether such a force would be regarded as part of the occupation regime and occupation law or would stand apart as a UN–authorized deployment with its explicit mandate to contribute to security for “the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure....” Id., para. 13. There was no question that the military forces deployed by the occupying powers and as part of the coalition were separate from this prospective UN–authorized multinational force.

16 See SC Res. 1483, supra note 1, paras. 12–14, 17.

17 See id., para. 16.

18 Examples include the Security Council’s decisions regarding the Development Fund for Iraq, the management of petroleum, petroleum products, and natural gas, and the formation of an Iraqi interim administration as a transitional administration run by Iraqis. In 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’s decisions as legitimately overriding conflicting norms of occupation law. If such is the case, then the Council’s insistence elsewhere in Resolution 1483 on compliance with occupation law breeds confusion. See Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, paras. 50, 53–54, 64–67, 6 UST 3516, 75 UNTS 287 [hereinafter Geneva IV]. Compare SC Res. 1483, supra note 1, at paras. 9, 12–14, 20–22.

19 See Benvenisti, supra note 2, at 6, 107, 149–90, 211–12; Adam, Roberts & Richard, Guelff, Documents on the Law of War 300 (3d ed. 2000)Google Scholar; Ardi, Imseis, On the Fourth Geneva Convention and the Occupied Palestinian Territory, 44 Harv. Int’l L.J. 65, 92–93 (2003)Google Scholar; Hussein A., Hassouna, The Enforcement of the Fourth Geneva Convention in the Occupied Palestinian Territory, including Jerusalem, 7 ILSA J. Int’l & Comp. L. 461, 464 (2001)Google Scholar; Adam, Roberts, Prolonged Military Occupation: The Israeli–Occupied Territories since 1967, 84 AJIL 44, 98 (1990)Google Scholar. But see Jordan J., Paust, Gerhard von, Glahn, & Günter, Waratsch, Report of the ICJ Mission of Inquiry into the Israeli Military Court System in the Occupied West Bank and Gaza, 14 Hastings Int’L & Comp. L. Rev. 1, 5–9 (1990)Google Scholar.

20 See SC Res. 1483, supra note 1, para. 5.

21 Id., para. 14.

22 The nonoccupying states that deploy military forces on Iraqi territory nonetheless confront the dilemma of whether to comply strictly with occupation law requirements (and thus minimize legal risk) or to risk diverging from those requirements when implementing transformational objectives established by the Authority or the Security Council. An excellent, albeit dated, discussion of liability under occupation law can be found in Waldemar A., Solf & Edward R., Cummings, A Survey of Penal Sanctions Under Protocol I to the Geneva Conventions of August 12, 1949, 9 Case W. Res. J. Int’l L. 205 (1977)Google Scholar. See discussion in part IV infra.

23 See Regulations Respecting the Laws and Customs of War on Land, annexed to Convention Respecting the Laws and Customs of War on Land, Oct. 18,1907, 36 Stat. 2277, 2 AJIL Supp. 90 (1908), TS No. 539, 205 Parry’s TS 277 [hereinafter Hague Regulations]; Geneva IV, supra note 18; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3, 7, 16 ILM 1391 [hereinafter Geneva Protocol I]; Benvenisti, supra note 2; Francoise Bouchet-Saulnier, The Practical Guide to Humanitarian Law 260–263 (2002); Bulman, supra note 2, at 168; Imseis, supra note 19, at 86–92; Roberts, What Is Military Occupation? supra note 2.

24 The major codified elements of occupation law include the following instruments: Article 43 of the Hague Regulations, which remains a significant pillar of occupation practice, requires that, “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.” Among other rules, the Hague Regulations forbid the occupying power from forcing inhabitants to furnish information about their own troops or means of defense (Art. 44); require that it respect family honor and rights and religious convictions (Art. 46); prohibit confiscation of private property (Art. 46) and pillage (Art. 47); forbid any general penalties upon the population (Art. 50); classify the occupying state only as administrator and usufructuary of public properties, which must be safeguarded and administered in accordance with the rules of usufruct (Art. 55); and require that all institutions dedicated to religion, charity and education, the arts and sciences, “even when state property,” must be treated as private property and, if such institutions or historic monuments or works of art or science are seized or destroyed or willfully damaged, then such acts “should be made the subject of legal proceedings” (Art. 56). See Hague Regulations, supra note 23. Article 1 of each of the four 1949 Geneva Conventions requires high contracting parties to undertake to respect and ensure respect for the Conventions in all circumstances. Article 2 of each Convention stipulates that each such convention “shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party [such as Iraq], even if said occupation meets with no armed resistance.” Article 5 of Geneva IV requires that any individual protected person who is actively hostile to the security of the occupying power shall not be deprived of the rights of fair and regular trial prescribed by Geneva IV. Part III of Geneva IV contains forty articles listing the nondiscretionary responsibilities of occupying powers. These include, inter alia, the responsibility to respect protected persons and their religious practices; to treat them humanely at all times; to protect them against all acts or threats of violence; to protect women against rape; not to discriminate based on race, religion, or political opinion (Art. 27); not to exercise any physical or moral coercion to obtain information (Art. 31); not to take any measure that would cause the physical suffering or extermination of protected persons, including any measures of brutality (Art. 32); not to impose any collective penalties or measures of intimidation (Art. 33); not to deprive inhabitants of any of the benefits of Geneva IV by any change introduced into the institutions or government of the occupied territory or by any agreement between local authorities and the occupying power (Art. 47); not to engage in individual or mass forcible transfers (Art. 49); to take special care of children (Art. 50); to require work only under special conditions (Art. 51); not to create unemployment (Art. 52); not to destroy real or personal property unless absolutely necessary by military operations (Art 53); not to alter the status of public officials or judges (Art. 54); to ensure food and medical supplies of the population (Art 55); to ensure and maintain medical and hospital establishments and services (Art 56); to agree to relief schemes on behalf of the population if they are inadequately supplied (Art. 59); to ensure the rapid distribution of relief consignments (Art 61); to maintain in force the penal laws of the occupied territory unless a designated exception applies (Art. 64); to subject the population to provisions to maintain orderly government and the security of the occupying power (Art. 64); not to make any new penal provisions retroactive (Art 65); to constitute nonpolitical military courts sitting in the occupied country (Art. 66); to administer only specified punishments for criminal offenses (Arts. 68–69); not to arrest, prosecute, or convict any inhabitant for acts committed or opinions expressed prior to the occupation except for violations of the laws and customs of war (Art. 70); and to ensure certain due process rights of accused persons (Arts. 72–76). The occupying power “may take such measures of control and security... as may be necessary as a result of the war” (Art. 27). See Geneva IV, supra note 18. For states, such as the United Kingdom, that are parties to Geneva Protocol I, there is the additional clarification that the Geneva Conventions and Protocol I shall cease to apply “on the termination of the occupation” (Art. 3(b)). Geneva Protocol I also requires the occupying power to ensure “to the fullest extent of the means available to it” clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population and objects necessary for religious worship (Art. 69 (1)), and requires that relief actions governed by Geneva IV “be implemented without delay” (Art. 69(2)). See Geneva Protocol I, supra note 23.

25 See Benvenisti, supra note 2, at 182–83, 209–16; 4 Jean S., Pictet, The Geneva Conventions of 12 August 1949: Commentaries 273 (1958), available at <http://www.icrc.org/ihl.nsf/COMART?OpenView>>Google Scholar; Maxine, Marcus, Humanitarian Intervention without Borders: Belligerent Occupation or Colonization? 25 Hous. J. Int’l L. 99, 115–16 (2002)Google Scholar; John, Embry Parkerson Jr., United States Compliance with Humanitarian Law Respecting Civilians During Operation Just Cause, 133 Mil L. Rev. 31, 36–40, (1991)Google Scholar.

26 See Benvenisti, supra note 2, at 27, 107–83; see also Geneva IV, supra note 18, Art. 6 (which limits application of Geneva IV to one year “after the general close of military operations,” but requires prolonged application of some occupation law requirements thereafter if circumstances warrant, such as a prolonged legitimate occupation).

27 See Benvenisti, supra note 2, at 26–31, 211–16.

28 “As it is generally understood, ‘debellatio,’ also called ‘subjugation,’ refers to a situation in which a party to a conflict has been totally defeated in war, its national institutions have disintegrated, and none of its allies continue militarily to challenge the enemy on its behalf.” See id. at 92 (for full discussion, see id. at 91–96). For an evaluation of the legal character of the U.S. occupation of Japan after World War II, see Nisuke, Ando, Surrender, Occupation, and Private Property in International Law (1991)Google Scholar, and Roberts, What Is Military Occupation? supra note 2, at 262.

29 U.N. Department of Peacekeeping Operations, Year in Review—United Nations Peacekeeping Operations 2002, at <http://www.un.org/Depts/dpko/yir/english/> (visited Oct. 23, 2003)+(visited+Oct.+23,+2003)>Google Scholar.

30 See Roberts, What Is Military Occupation ? supra note 2, at 302–05.

31 Id.

32 Benvenisti, supra, note 2, at 166–67; Marcus, supra note 25.

33 Geneva IV, supra note 18, Arts. 27–34, 47–78; Geneva Protocol I, supra note 23.

34 See Geneva IV, supra note 18, Arts. 27–34, 47–78.

35 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, UN Doc. S/2003/538 (2003), referenced in SC Res. 1483, supra note 1, pmbl. (recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command); see also Comments made by UK Permanent Representative Sir Jeremy Greenstock after UK-U.S. Presentation of Joint Draft of Security Council Resolution on Iraq, United Nations, New York, May 9, 2003, available at <http://www.ukun.org/xq/asp/SarticleType.17/Article_ID.640/qx/articles_show.html> (“We are accepting that there are conventions and regulations Geneva and the Hague which we need to respect, but there needs now to be a series of things done on the ground that goes beyond the minimum requirements of occupying powers and we want the international community to be involved in that endeavour. So it is a combination of being an occupying power and an authority that wants to do something for the Iraqi people that restores Iraq to a stable prosperous country being worked on by the Iraqi people for all Iraqis on the ground. That’s the reason, it’s a combination . . . . Preambular paragraph twelve that notes the letter that we have just sent makes it clear that others who want to join on needn’t be occupying powers. It is others who want to take on the responsibilities of helping. But we accept that the United States and the United Kingdom in particular must carry the responsibilities of occupation. Apart from that anybody who wants to contribute to the aims we set out in this draft are as I understand my government’s decision, most welcome.”); Briefing by Assistant Secretary of State for International Organizations, Kim, Holmes, New Resolution Defines “Vital Role” for UN in Iraq, Foreign Press Center Briefing (May 23, 2003) available at <http://www.usembassy.it/file2003_05/alia/A3052306.htm>Google Scholar (“[Resolution 1483] recognizes the authority of the coalition forces in Iraq under the obligations and rights of the Fourth Geneva Convention, and also the Hague regulations, as an occupying power. That’s a term that is used in the Geneva Conventions. And that means that the . . . coalition provisional authority, as it is described in the resolution, has the rights and the obligations, which means it. . .will be taking the lead during this interim period, not only in reconstructing and rebuilding Iraq in the near–term, in terms of getting humanitarian aid and relief delivered, but also in helping the Iraqi people and facilitating the Iraqi people and reconstructing a process by which they can choose their own future government”).

36 See SC Res. 1483, supra note 1, para. 5.

37 See Roger, Hardy, Struggle for Power in Iraq, BBC News, Apr. 13, 2003 Google Scholar; Jane, Perlez, U.S. Team Arrives in Iraq to Establish Postwar Base, N.Y. Times, Apr. 9, 2003, at B10 Google Scholar; Richard W., Stevenson, Bush Sees Aid Role of U.N. as Limited in Rebuilding Iraq, N.Y. Times, Apr. 9, 2003, at A1 Google Scholar.

38 See Christopher, Adams & Mark, Turner, Washington’s Stance over UN Raises Concern, Fin. Times (London), Apr. 26, 2003, at 8 Google Scholar. The British continued to pursue a United Nations mandate after the occupation of Iraq began. See, e.g.. James, Blitz, Britain Looks to Back UN Iraq Move, Fin. Times (London), Aug. 4, 2003, at 1 Google Scholar; see also Steven R., Weisman & Felicity, Barringer, U.S. Abandons Idea of Bigger UN. Role in Iraq Occupation, N.Y. Times, Aug. 14, 2003, at A1 Google Scholar.

39 See generally Brian D., Tittemore, Belligerents in Blue Helmets: Applying International Humanitarian Law to United Nations Peace Operations, 33 Stan. J. Int’l L. 61 (1997)Google Scholar.

40 See e.g. Geneva IV, supra note 18; Pictet, supra note 25; Marcus, supra note 25, at 109–116; Parkerson, supra note 25; Roberts, What Is Military Occupation? supra note 2, at 31.

41 See International Commission on Intervention and State Sovereignty, The Responsibility to Protect (International Development Research Centre, 2001)Google Scholar; Gareth, Evans & Mohamed, Sahnoun, The Responsibility to Protect, Foreign Aff. (November/December 2002), at 99 Google Scholar.

42 See Secretary–General Kofi, Annan, Address at the Hague Appeal for Peace (May 15, 1999) available at <http://www.un.org/News/Press/docs/1999/19990517.SGSM6995.html>>Google Scholar; Alton, Frye, Humanitarian Intervention: Crafting a Workable Doctrine (Council on Foreign Relations, 2000)Google Scholar; Damroschet Al., supra note 10, at 990–1005; Sean D., Murphy, Humanitarian Intervention (1996)Google Scholar; David J., Scheffer, Toward A Modem Doctrine of Humanitarian Intervention, 23 U. Tol. L. Rev. 253 (1992)Google Scholar.

43 See Bulletin on the Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST/SGB/1999/13 (1999), reprinted in 38 ILM 1656 (1999). Section 1.1 of the Bulletin describes the application of international humanitarian law “to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self–defence.” Such circumstances presumably would apply to any de facto occupation by United Nations forces as the use of force in self–defense always applies to any peacekeeping operation. Nonetheless, the Bulletin does not address issues of occupation or any of the requirements of occupation law, particularly after hostilities have ended. The entire focus of the document is on legal requirements during times of combat. See Roberts & Guklff, supra note 19, at 721–25. Although guidelines for strictly noncombat peacekeeping operations were long anticipated, they have never been promulgated by the UN Secretary–General. See also Tittemore, supra note 39 (although he does not analyze how UN peace operations relate specifically to occupation law).

44 See Glenn, Bowens, Legal Guide to Peace Operations 140–56 (U.S. Army Peacekeeping Institute, 1998)Google Scholar; Tittemore, supra note 39, at 78–80; Dieter, Fleck, Legal Issues of Multinational Military Units: Tasks and Missions, Stationing Law, Command and Control, in International Law Across The Spectrum of confilict, Essays In Honour of Professor L. C. Green on the Occasion of His Eightieth Birthday (Michael N., Schmitt ed., 2000), at 161 Google Scholar.

45 See Convention on the Safety of United Nations and Associated Personnel, Dec. 9, 1994, Art. 2(2), 34 ILM 482. See abo Roberts & Guelff, supra note 19, at 624–626; Tittemore, supra note 39, at 92.

46 UN Charter Art. 103 (“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”)

47 See SC Res. 940 (July 31, 1994).

48 None of the Security Council resolutions or international agreements governing these deployments invokes occupation law. Rather, the mandates set forth specific tasks for the military deployments on and civilian administration of the relevant territories. See UN Dep’t. of Public Information, United Nations Protection Force (unofficial document), available at <http://www.un.org/Depts/dpko/dpko/co_mission/unprof_p.htm> (for the mandate relating to UN operations in Bosnia and Herzegovina and in Croatia prior to the Dayton Peace Accords) (visited Dec. 3, 2003); see also Bosnia and Herzegovina–Croatia–Yugoslavia: General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes (Dec. 14, 1995), 35 ILM 75 (1996); SC Res. 1031 (Dec. 15, 1995), 35 ILM 251 (1996): and SC Res. 1035 (Dec.21, 1995) (regarding Bosnia–Herzegovina); SC Res. 1244 (June 10, 1999) (regarding Kosovo); SC Res. 1272 (Oct. 25, 1999), 38 ILM 240 (2000); SC Res. 1410 (May 17, 2002), 41 ILM 1011 (2002); and SC Res. 1480 (May 19, 2003) (regarding East Timor); SC Res. 1363 (July 30, 2001); SC Res. 1378 (Nov. 14, 2001), 41 ILM 505 (2002); and SC Res. 1444 (Nov. 27, 2002) (regarding Afghanistan).

49 See United Nations Interim Administration Mission in Kosovo, available at <http://www.unmikonline.org/>(visited Oct. 23, 2003); United Nations Mission in Bosnia and Herzegovina, available at <http://www.un.org/Depts/dpa/prev_dip/americas_europe/bosnia/fst_bosnia.htm> (visited Oct. 23, 2003); United Nations Transitional Administration in East Timor, available at <http://www.un.org/peace/etimor/etimor.htm> (visited Oct. 23, 2003);

SC Res. 1453 (Dec. 24, 2002) (regarding Afghanistan).

50 See supra note 24.

51 An excellent analysis of “avoidable problems” that arose in the aftermath of Operation Iraqi Freedom is discussed in Anthony H., Cordesman. The Iraq War: Strategy, Tactics and Military Lessons (2003)Google Scholar. See also Michael, Elliot, So, What Went Wrong? Time, Oct 6, 2003, at 30 Google Scholar; Max, Rodenbeck, The Occupation, N.Y. Review of Books, Aug. 14, 2003, at 13 Google Scholar; Peter, Slevin & Dana, Priest, Wolfowitz Concedes Iraqi Errors, Wash. Post, July 24, 2003, at A1 Google Scholar; Peter, Slevin & Vernon, Loeb, Plan to Secure Postwar Iraq Faulted, Wash. Post, May 19, 2003, at A1 Google Scholar.

52 See e.g., Frederick D., Barton & Bathsheba N., Crocker, A Wiser Peace: an Action Strategy For a Post Conflict Iraq (Center for Strategic and International Studies, 2003), available at <http://www.csis.org/isp/wiserpeace.pdf>Google Scholar; Guiding Principles For U.S. Post–Conflict Policy In Iraq (Independent Working Group of the Council on Foreign Relations and James A. Baker III Institute for Public Policy, 2002), available at <http://www.bakerinstitute.org/Pubs/workingpapers/iraq/Iraq_final.pdf>; Thomas R., Pickering & James R., Schlesinger, Iraq The Day After (Council on Foreign Relations, 2003), available at <http://www.cfr.org/pdf/Iraq_DayAfter_TF.pdf>>Google Scholar; James, Dobbins et al. America’s Role in Nation–Building: From Germany to Iraq (2003)Google Scholar; Hearings to Examine Threats, Responses, and Regional Considerations Surrounding Iraq. Hearing on PL. 107–243 Before the Senate Comm. on Foreign Relations, 107th Cong. 64–158, 165–230 (2002)Google Scholar; Next Steps in Iraq. Hearing on P.L. 107–243 Before the Senate Comm. on Foreign Relations, 107th Cong. 3–15, 17–87, 91–85 (2003)Google Scholar.

53 Chairman of the Joint Chiefs of Staff Instruction, CJCS1 5810.01B, para. 4b (Mar. 25, 2002). The law of war definition includes “treaties and international agreements to which the United States is a party, as well as applicable customary international law.”

54 See Iraqi Looting Sparks U.S. Resignations, L.A. Times, Apr. 18, 2003, at 2 Google Scholar; Slevin & Priest, supra note 51; Jonathan, Weisman, Iraq Chaos No Surprise, hut Too Few Troops to Quell It, Wash. Post, Apr. 14, 2003, at A28 Google Scholar; Henry, Wright, An Archaeologist’s Lament: Mourning the Sack of the Iraq Museum, An Expert Assesses the Toll, Nat’l Geographic (July 2003), at 168 Google Scholar.

55 See e.g., Rajiv, Chandrasekaran, Inexperienced Hands Guide Iraq Rebuilding, Wash. Post, June 25, 2003, at A1 Google Scholar; Slevin & Priest, supra note 51. This was emblematic of the “empire light” attitude popularized by Michael Ignatieff. See Michael, Ignatieff, Empire Lite: Nation Building In Bosnia, Kosovo and Afghanistan (2003)Google Scholar.

56 See Maggie, Farley, Relief Groups Say Efforts Hindered by Military Distrust, L.A. Times, Apr. 19, 2003, at 3 Google Scholar.

57 See id.; Edmund L., Andrews, After the War: the Postwar Task; U.S. Focus in Iraq is on Repairs, Not Building, N.Y. Times, June 20, 2003, at A11 Google Scholar; Torriero, E. A., U.S. Near Powerless to Fix Iraq Electricity; Hussein, Looters Sabotaged Grid, Chi. Trib., May 26, 2003, at 3 Google Scholar; Vernon, Loeb & Jonathan, Weisman, U.S. Losses Light as Iraqi Toll Surges in Baghdad Fighting, Wash. Post, Apr. 8, 2003, at A21 Google Scholar.

58 Geneva Protocol I, supra note 23.

59 For an instructive discussion of U.S. responsibilities as an occupying power in Iraq, see Jordan J., Paust, The U.S. as Occupying Power Over Portions of Iraq and Relevant Responsibilities Under the Laws of War, May 2003, available al <http://www.nimj.com/documents/occupation(1).doc>>Google Scholar.

60 See Hague Regulations, supra note 23, Arts. 43, 55, 56; Geneva IV, supra note 18, Arts. 50, 53, 55, 56 (as indirect participants in the destruction of property by willfully permitting looting when it had the means to prevent it).

61 See Hague Regulations, supra note 23, Art. 43, and Geneva IV, supra note 18, Arts. 27, 64.

62 See Geneva IV, supra note 18, Art. 63.

63 Id., Art. 55.

64 Id., Art. 56.

65 Id., Arts. 64–77.

66 Id, Art. 52.

67 See Geneva IV, supra note 18, Art. 54; Pictet, supra note 25, at 303–08.

68 See Geneva IV, supra note 18, Art. 55.

69 Id., Art. 56.

70 See Hague Regulations, supra note 23, Art. 55; Geneva IV, supra note 18, Art. 53; Monroe, Leigh, Department of State Memorandum of Law on Israeli’s Right to Develop New Oil Fields in Sinai and The Gulf of Suez, 16 ILM 733, 734 (1977)Google Scholar (“An occupant’s rights under international law do not include the right to develop a new oil field, to use the oil resources of occupied territory for the general benefit of the home economy or to grant oil concessions”).

71 See Geneva IV, supra note 18, Art. 53. Rapid voluntary payments of compensation to innocent victims of military action by U.S. Armed Forces in Iraq are commendable and may mitigate any such liability, but such payments would remain subject to scrutiny under occupation law. Army Reg. 27–20, The Army Claims System (Aug. 1, 2003), available at <http://docs.usapa.belvoir.army.mil/jw2/xm/demo/t27_20/cover.asp>. See, e.g., Michael R., Gordon. The Struggle for Iraq Reconstruction; 101st Airborne Scores Success in Northern Iraq, N.Y. Times, Sept. 4, 2003, at A1 Google Scholar.

72 See David, Kretzmer, The Occupation of Justice (2002)Google Scholar; Hassouna, supra note 19; Imseis, supra note 19; Roberts & Guelff, supra note 19; Samira, Shah, On the Road to Apartheid: The Bypass Road Network in the West Bank, 29 Colum. Hum. Rts. L. Rev. 221 (1997)Google Scholar; Detiev F., Vagts, Case Report: Ajuri v. IDF Commander, 97 AJII, 173 (2003)Google Scholar.

73 The Statute of the International Criminal Court, for example, does not include in its compilation of war crimes any of the specific violations of occupation law found in the Fourth Geneva Convention or Geneva Protocol I other than the war crime of the occupying power transferring, “direcdy or indirecdy... parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.” Rome Statute of the International Criminal Court, July 17, 1998, Art. 8 (2) (b) (viii), UN Doc. A/CONF.183/9 (1998), reprinted in 37 ILM 999, 1007 (1998). If the Authority in Iraq engages in forcibly transferring parts of the population or perhaps even permitting such transfers to occur unopposed, particularly if any such forcible transfer is undertaken in a manner that violates due process or other international human rights standards or even becomes a form of reverse ethnic cleansing, then there may be a grave breach and hence criminal liability for officials arising under the Fourth Geneva Convention and, for the United Kingdom which is a party to the Statute of the International Criminal Court, possible criminal liability for its officials arising under Article 8(2) (b) (viii) of such Statute in the event jurisdictional requirements are met.

74 See Geneva IV, supra note 18, Art. 146.

75 See, e.g., War Crimes Act of 1996, 18 U.S.C.A. §2441 (1996) (as amended 2002). Opportunities for prosecution might also arise regarding “any person who by the law of war is subject to trial by a military tribunal” (10 U.S.C. §818) or regarding options available to military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by such bodies (10 U.S.C. §821). See also 18 U.S.C. §3231, which would trigger federal district court jurisdiction but most likely only with respect to prisoners of war who could be transferred to the United States for trial (and who, within such proceedings, claim as a defense violations by the occupying powers).

76 See Geneva Protocol I, supra note 23, Art. 85 (4) (e).

77 Id., Art. 91; Geneva Conventions Act, 1957, 5 Eliz. 2, c. 52, sched. 4, pt. III (Eng.).

78 See 28 U.S.C.S. §2680 (a) (Law. Co–op. 2003).

79 Sue 28 U.S.C.S. §2671 et seq (Law. Co–op. 2003).

80 See Industria Panificadora, S.A. v. United States, 957 F.2d 886 (D.C. Cir. 1992); Goldstar (Pan.) S.A v. United States, 967 F.2d 965 (4th Cir. 1992); Starkist Foods, Inc., et al. v. United States, 1992 U.S. Dist. LEXIS 9133 (1992).

81 See Macharia v. United States, 334 F.3d 61 (D.C. Cir. 2003).

82 See Benvenisti, supra note 2, at 172–173.

83 The Court of Appeals in Macharia v. United States, supra note 81, pointed out in its reasoning to deny claims against the federal government what would be required to uphold claims by foreign plaintiffs under the Federal Tort Claims Act. Occupation law, including U.S. obligations under Geneva IV, imposes constraints on an occupying power to the extent that discretion is limited by what must be adhered to by the policymakers, military commanders, and personnel of that government.

84 By executive order, the Bush administration shielded from the threat of attachment or other legal process the Development Fund for Iraq and all Iraqi petroleum and petroleum products and designated interests, proceeds, obligations, and financial instruments that fall within U.S. jurisdiction or within the possession or control of “United States persons,” such as a U.S.–incorporated contractor or even its foreign branch. Exec. Order 13303, 68 Fed. Reg. 31931 (May 28, 2003). The intent of this order awaits regulations that were still being drafted by the Treasury Department in October 2003, but a Treasury spokesman sought to allay concerns about overly broad application of the order by confirming that the intent is to protect proceeds from the sale of Iraqi crude oil, which are destined for the Development Fund for Iraq. Lisa, Girion, Immunity far Iraqi Oil Dealings Raises Alarm; Home Contend Bush’s Order Grants U.S. Firms a Broad Exemption, a View the Government Rejects, L.A. Times, Aug. 7, 2003, at 1 Google Scholar. One can envisage the executive order being challenged if qualified claimants raise treaty and customary international law obligations under occupation law with respect to the operation of the Development Fund for Iraq or the disposition of Iraqi petroleum or other items described in the order.

85 See Macharia v. United States, supra note 81, at 69.

86 Furthermore, decision making regarding the U.S. occupation of Iraq occurs in significant part in Washington, D.C., and other areas of the United States, the consequences of which may indeed be played out on Iraqi territory.

87 28 U.S.C. §1350.

88 War Crimes Act of 1996, supra note 75.

89 The Security Council could require that interested governments fully comply with applicable international law in the performance of the Council’s mandated mission in Iraq. This would leave room for continued compliance with those provisions of occupation law that are jus cogens or erga omnes obligations or otherwise remain relevant and consistent with progressive rules of international law, but put aside those provisions that are clearly irrelevant or that retard the transformational objectives confirmed by the Council.

90 See Rajiv, Chandrasekaran, Council Leaders Pressing for Power; Iraqis Urge Quick End to Occupation, Wash. Post, Sept. 15, 2003, at A1 Google Scholar. Certain Security Council members and the UN secretary–general were pursuing this option during September and October 2003. An “occupation by consent” might arise following a transfer of sovereignty, even if such transfer is to an interim government in Iraq, and that prospect may compel the relevant parties to enter into a transfer agreement that specifies the rights and responsibilities of any foreign occupying force that remains with the consent of the Iraqi government.

91 The track record of UN peace operations and civilian administrative missions is respectable and mindful of the lessons learned from past missions. That record also reflects little explicit application of occupation law, until Iraq. See Letter dated 17 August 2000 from the Chairman of the Panel on United Nations Peace Operations to the Secretary–General, UN Doc. A/55/305–S/2000/809 (2000), available at <http://www.stimson.org/fopo/pdf/fullreport.pdf>.

92 For a discussion of atrocity crimes, see David J., Scheffer, The Future of Atrocity Law, 25 Suffolk Trans. L. Rev. 390 (2002)Google Scholar.

93 UN Charter, chs. XI–XIII. See The Charter of the United Nations; A Commentary 1089–138 (Bruno, Simma et al. eds., 2d ed. 2002)Google Scholar; Address by the U.N. Secretary–General to the U.N. General Assembly, Press Release, UN Doc. No. SG/SM/8891, GA/10157 (Sept. 23, 2003)Google Scholar; Report of the Secretary–General, Implementation of the United Nations Millennium Declaration, UN Doc. No. A/58/323 (Sept. 2, 2003) at 16–17 Google Scholar; Morton H., Halperin & David J., Scheffer, Self–Determination in The New World Order 112–14 (1992)Google Scholar.