3. See, for example, Scheffer, D.J., ‘Beyond occupation law’, 97 AJIL (2003) pp. 842 at 843CrossRefGoogle Scholar: ‘Promoting the welfare of the Iraqi people, though laudable, is a goal that cannot be guided by occupation law alone, regardless of how liberally it may be construed. To pull Iraq out of its repressive past and return it to the community of civilized nations, the Authority will aggressively employ international human rights law, principles of democratization (as the engine of self-determination), economic initiatives, and perhaps controversial use of force principles in the name of domestic security. Many of the principles advanced by the Authority will not have occupation law as their source; some may have their own jus cogens identity or be deeply rooted in the normative principles of the United Nations Charter. Indeed, conflict could arise between advancing the welfare of the Iraqi people as subjectively as the Authority is likely to do and adhering to the more narrow constraints of occupation law.’

4. The author was working at Headquarters Australian Theatre (HQAST), the operational headquarters for the Australian involvement in the war and was closely involved in the preparation of Rules of Engagement.

5. This area is governed by other aspects of the law of armed conflict concerning the conduct of hostilities.

6. See the ‘Comprehensive report of the special advisor to the Director of Central Intelligence on Iraq's weapons of mass destruction’ (2004), and in particular the section on Regime Finance and Procurement in Vol. I <http://www.cia.gov/cia/reports/iraq_wmd_2004/>.

7. Art. 42 reads: ‘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 established and can be exercised.’

8. See Tzemel Adv. et al. v. (a)Minister of Defence, (b)Commander of the Ansar Camp (Ansar Prison case), (Israeli High Court, 1982), 13 Israel YB HR (1983) pp. 360–64Google Scholar.

9. This opinion was ventured by an adviser in one Coalition government office in June 2003.

10. The International Military Tribunal at Nuremburg declared: ‘But it is argued that the Hague Convention does not apply in this case, because of the “general participation” clause in Article 2 of the Hague Convention of 1907.’ That clause provided: ‘The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties of the Convention.’ Several of the belligerents in the recent war were not parties to this Convention. In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the Convention expressly stated that it was an attempt ‘to revise the general laws and customs of war’, which it thus recognised to be then existing, but by 1939 these rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war. This ruling was also followed by the Tokyo tribunal and arbitral tribunal decisions. This material and all subsequent citations from the Nuremberg Trials can be viewed at The Avalon Project <http://www.yale.edu/lawweb/avalon/imt/imt.htm>.

11. Defendant Alfred Rosenberg in his capacity as Reich Minister for the Occupied Eastern Territories stated: ‘The regulations of the Hague Convention on land warfare, which concern the administration of a country occupied by a foreign belligerent power, are not applicable, since the USSR is to be considered dissolved and, therefore, the Reich has the obligation of exercising all governmental and other sovereign functions in the interests of the country's inhabitants. Therefore, any measures are permitted which the German administration deems necessary and suitable for the execution of this comprehensive task,’ Nuremberg Trial Presentation of Cases, 17 December 1945, p. 13.

12. Ibid., p. 14.

13. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Rep. (1996) p. 256Google Scholar, para. 75 (hereafter, Nuclear Weapons).

14. The Laws of Naval War Governing the Relations Between Belligerents (1913 Oxford Manual of Naval War), Art. 88: ‘Occupation of maritime territory, that is of gulfs, bays, roadsteads, ports, and territorial waters, exists only when there is at the same time an occupation of continental territory, by either a naval or a military force. The occupation, in that case, is subject to the laws and usages of war on land.’

15. Art. 5 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954; paras. 1–4 Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict of 1954; Art. 9 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict of 1999. Three issues in particular arose during the occupation in respect of the cultural property provisions. The first related to the responsibility to act in relation to the prevention of looting of the Iraqi museums and the recovery of lost items. The second was the discovery of historical documents of the Iraqi Jewish community that were found water damaged in the basement of the Iraqi Secret Police Headquarters and were sent to the United States to restore and preserve. The third was in relation to a proposal by the Polish contingent to conduct archeological work at the Babylon site which was refused due to the provisions of Protocol II to the Hague Cultural Property Convention.

16. The original dichotomy of status between the effective controllers and the mere contributors was recognised in SC Res. 1483 (2003) where it stated: ‘Noting 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 (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the “Authority”), Noting further that other States that are not occupying powers are working now or in the future may work under the Authority.’

17. This Regulation was actually drafted on 23 May 2003 as is indicated by the reference to SC Res. 1483 of 22 May 2003. It was, however, backdated to commence operation from 16 May 2003.

18. To create major administrative frameworks or processes.

19. To give effect to directives regulating or providing for the Iraqi public or adjusting existing Iraqi law.

20. Amplifications or administrative provisions to give effect to or expand upon orders.

21. Art. 27 reads as follows:

‘Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion. However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.’

22. Banković and Others v. Belgium and 16 Other Contracting States, Decision of 12 December 2001, reprinted in 41 ILM (2002) p. 517Google Scholar. The essence of the claim was that the bombing had violated the ECHR. The Court rejected extraterritoriality of the ECHR obligations in respect of an aerial bombing campaign but left open the question of extraterritorial effect in relation to military occupation and the exercise of effective control over foreign territory – a situation which the Court was not called to rule upon in the Banković case.

23. The Queen — on the Application of — Mazin Jumaa Gatteh Al Skeini and others v. The Secretary of State for Defence [2004] EWHC 2911 (Admin). See paras. 248, 258, 269, 270, 277 and, in particular, 287. This judgement is another good illustration of the difficulty posed by determining the application of a human rights regime to a LOAC situation. Curiously, there was no discussion whatsoever of the lex specialis issue, and the decision that the Iraqi Governing Council was a ‘sovereign authority’ that had given specific agreement to the UK to operate a prison in Iraq is dubious to say the least. The High Court also found that the application of the ECHR must be limited to the European region as the space juridique. The decision is likely to be appealed.

24. Advisory Opinion of 9 July 2004, ICJ Rep. (2004) paras. 102–113.

25. See Human Rights Committee, General Comment No. 31, ‘The nature of the general legal obligation on States Parties to the Covenant’, UN Doc. CCPR/C/21/Rev.1/Add. 13 (2004). The Comment states at para. 10 that the Covenant applies to ‘…those territories within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation’. Para. 11 adds: ‘As aplied in General Comment No. 29, the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.’

26. Nuclear Weapons, ICJ Rep. (1996) paras. 24 and 25. In particular at para. 25 the ICJ stated the following:

‘The Court observes that the protection 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 provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. 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 ’

27. Art. 4 ICCPR reads:

‘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 intenational law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.’

28. Art 1(3) ICCPR reads: ‘The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations’ [emphasis added].

29. Art 2(1) ICCPR reads: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’

30. See, for example, the way this is dealt with in the relational provisions used in Arts. 1 and 2 of Additional Protocol I of 1977 to the Geneva Conventions of 1949.

31. Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A (Berne, Federal Political Department 1950–1951) p. 671 (hereafter, Final Record 1949)Google Scholar.

32. Advisory Opinion of 9 July 2004, ICJ Rep. (2004) paras. 124–137.

33. Pictet, J.S., Humanitarian Law and the Protection of War Victims (Leiden, Sijthoff 1975)Google Scholar.

34. Roberts, A., ‘The applicability of human rights law during military occupations’, 13 Review of International Studies (1987) p. 39CrossRefGoogle Scholar.

35. For a clear statement of the US position, see Press Release, US Mission-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’, delivered by G. Brancato, 15 August 2003:

‘Second, the United States Government reiterates its firm belief, expressed at earlier stages of review and discussion, that the Principles should not address International Humanitarian Law. By attempting to address both human rights and international humanitarian law PIHL”), the Principles create conflict in a well-developed area of law conceptually distinct from international human rights law. It is true that many of the principles of humane treatment found in the law of armed conflict find similar expression in human rights law. The well-renowned scholar Jean Pictet, in a treatise on international humanitarian law (cited above) stated that: “Indeed, the law of conflicts and human rights have the same origin: they stem from the need to protect the individual against those who would crush him.” Nevertheless, the two systems are quite distinct. Professor Theodor Meron, currently the President of the International Criminal Tribunal for the Former Yugoslavia in The Hague, has written: Not surprisingly, it has become common in some quarters to conflate human rights and. the law of war/international humanitarian law. Nevertheless, despite the growing convergence of various protective trends, significant differences remain. Unlike human rights law, the law of war allows, or at least tolerates, the killing and wounding of innocent human beings not directly participating in an armed conflict, such as civilian victims of lawful collateral damage. It also permits certain deprivations of personal freedom without convictions in a court of law. Theodore Meron, The Humanization of Humanitarian Law, 94 A.J.I.L. 239, 240 (2002). Further as Jean Pictet similarly observed, “Some writers on human rights thought I was trying to merge human rights and the law of armed conflicts. It would have been absurd to do so…. What is important is to recognize that the two fields are interrelated and, conversely, that they are distinct and should remain so. … [T]he two legal systems are fundamentally different, for humanitarian law is valid only in the case of an armed conflict while human rights are essentially applicable in peacetime and contain derogation clauses in case of conflict. Moreover, human rights governs relations between the State and its own nationals, the law of war those between the State and enemy nationals.” “There are also profound differences in the degree of maturity of the instruments and in the procedures for their implementation. The Geneva Conventions are universal and of a mandatory nature. This is certainly not the case with human rights instruments. The systems of supervision and sanctions are also different. Thus the two systems are complementary, and indeed they complement one another admirably, but they must remain distinct, if only for the sake of expediency.” J. Pictet, Humanitarian Law and the Protection of War Victims pages 14–15 (1975). As a further example of the distinction between the two bodies of law, through international conventions (notably the Geneva Conventions of 1949) and customary international law, international humanitarian law already recognizes various remedies for transgressions, particularly in the context of international armed conflict and regarding state responsibility. Indeed IHL imposes binding legal obligations on States with respect to criminal sanctions, the duty to search for offenders of certain violations, and compensation, which was recognized as an obligation as early as the Fourth Hague Convention of 1907. We are concerned that these non-binding Principles being developed in this forum would be confusing when placed alongside binding international obligations that States Parties to IHL conventions have already undertaken for international armed conflict. …Accordingly, to avoid creating conflict and ambiguity in an already well-developed area of law, we again recommend that the Principles address human rights law, but not IHL.’ <http://www.us-mission.ch/press2003/1508Statement%20on%20International%20Humantiarian%20Law.html>

36. Mr Castle was also a US Army Reserve Brigadier General in the Judge Advocate Generals (JAG) Corps. Members of the office over the period of the CPA included: US Department of State, Ms Denise Manning, Mr Eric Pelofsky and Ms Corin Stone; US Department of Defense, Maj. Owen Lewis, Maj. Bill Moxley, Col. Dick Pregent, Col. Kaye Sommerkamp, Lt. Col. Andy Hughes, Lt. Col. Derek Gilman, Capt. Chris McMahon, Lt. Col. David Whitfield, Sgt. Rachel Roe, Col. Rafael Lara, Mr Brett McGurk; US Department of Treasury, Mr John Vardaman; US Department of Commerce, Ms Myriah Jordan; US Department of Justice, Mr John Euler; US Department of Commerce Ms Linda Lourie; Australia, Col. Mike Kelly, Lt. Col. Paul Muggleton and GpCapt Ric Casagrande; UK, Mr Gavin Hood, Lt. Col. Justin McLelland, Mr Huw Llewellyn, Ms Rachel Quick, Cmdr. Rupert Hollins, WngCdr Chris Wood, and Lt. Col. Graham Coombes; Iraq, Mr Ahmed Salman and Professor Al an Bahki Majid.

37. US Department of Justice, Office of Overseas Prosecutorial Development Assistance and Training, Report of the Judicial Assessment Team, July 2003.

38. CPA Order No. 7 (CPA/ORD/9 June 2003/07). See also later amendments in CPA Order No. 31 (CPA/ORD/10 Sep 2003/31) which adjusted the law and penalties in relation to the offences of sexual assault, theft of a means of transport, kidnapping, and sabotage of utilities and public facilities.

39. CPA Memorandum No. 3 (CPA/MEM/18 June 2003/03).

40. CPA Order No. 10 (CPA/ORD/8 June 2003/10), and CPA Memorandum No. 2 (CPA/MEM/8 June 2003/02).

41. Art. 5 GC IV reads:

‘Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State. 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. In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case maybe.’

42. Art. 43 GC IV reads:

‘Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.’

43. Art. 78 GC IV reads:

‘If the Occupying 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. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power.’

44. Final Record 1949, Vol. II-A, supra n. 31, pp. 659, 772, 790 and 834.

45. Note that this is contrary to the assertion in the ICRC Commentary on the Convention, which incorrectly asserts that Art. 43 does have a legally determining relationship with Art. 78. ‘It is for the Occupying Power to decide on the procedure to be adopted; but it is not entirely free to do as it likes; it must observe the stipulations in Article 43, which contains a precise and detailed statement of the procedure to be followed when a protected person who is in the territory of a Party to the conflict when hostilities break out, is interned or placed in assigned residence.’ Pictet, J.S., ed., Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in lime of War (Geneva, ICRC 1958) p. 368Google Scholar. As indicated this position is not supported by the travaux preparatoires.

46. The debate on establishing military commissions recurred throughout the CPA period and was often driven by events. An example was the incident in April 2004, committed in Falujah, when four private security guards were killed and their bodies mutilated. The author argued that the offences would be best described simply as ‘crimes’ rather than ‘war crimes’ as this avoided debate over the issues as to whether the acts were grave breaches under the Geneva Conventions and the status of persons charged with committing such offences. The appropriate authority for establishing tribunals to try persons in occupied territory is Art. 66 GC IV, and the general authority and responsibility to restore and maintain order as set out in both Art. 43 of the Hague Regulations of 1907 and Art. 64 GC IV. The source of universal jurisdiction for war crimes is founded specifically in Art. 146 GC IV, Art. 129 GC III, Art. 50 GC II, and Art 49 GC I. The relevant provision states: ‘Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.’ It should be noted that when such persons are tried in accordance with this provision the Convention requires that: ‘In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949 (sic).’ This would restrict the procedures that could be applied in a military commission as opposed to the Guantanamo Military Commissions, for example. This would have opened the argument as to whether the actions were grave breaches to which universal jurisdiction attaches. With respect to the requirements of Art. 65 GC IV, it would have been possible to prosecute Iraqis for grave breaches without further CPA promulgations or publication in the language as Iraq incorporated the four Geneva Conventions into local law and so local law could have been relied upon without question of retroactivity, publication or nullem crimen sine lege. Apart from this, normal Iraqi criminal law had adequate provision for the prosecution of violent crimes. The key problem as the end of the CPA loomed on 30 June 2004 was whether the US could create tribunals that would be able to carry on past the dissolution of the CPA sitting in Iraq and trying Iraqi citizens. Art. 77 GC IV created the requirement that ‘protected persons who have been accused of offences or convicted by the courts in occupied territory, shall be handed over at the close of occupation, with the relevant records, to the authorities of the liberated territory’. The ICRC Commentary on this point states: ‘This is an absolute obligation and no exception is permitted’ and it would appear to relate to any offences. Art. 133 of GC IV, which states that: ‘Internment shall cease as soon as possible after the close of hostilities. Internees in the territory of a Party to the conflict against whom penal proceedings are pending for offences not exclusively subject to disciplinary penalties, may be detained until the close of such proceedings and, if circumstances require, until the completion of the penalty. The same shall apply to internees who have been previously sentenced to a punishment depriving them of liberty,’ does not provide authority for continuing penal action in occupied territory or under the returned sovereign of occupied territory. The provision is headed ‘Internees in the territory of a Party to the conflict….’ This refers to alien internees in the home state of the Party to the conflict provided for in sec. II of GC IV. For occupied territory the formulation that is used is ‘the occupied territory’ or ‘the occupied country’ which is covered in sec. III. Once the occupation has ended there are no vestiges of occupation power of any description. Occupation authority is associated purely and simply with the control of territory to the exclusion of the sovereign. There would be only one way to operate non-Iraqi tribunals in Iraq after the restoration of the sovereign and that would be by virtue of an agreement with the sovereign or to have this mandated in an SC resolution. The later option was of course highly unlikely. Any other option would either give rise to allegations that the occupation was continuing or, if imposed by duress, that the Coalition was interfering with the political independence and territorial integrity of a sovereign state contrary to the UN Charter.

47. CPA Order No. 13 (CPA/ORD/7 October 2003/13).

48. CPA Order No. 15 (CPA/ORD/26 June 2003/15).

49. CPA Order No. 35 (CPA/ORD/13 September 2003/3).

50. See infra 4.1.11.

51. CPA Order No. 16 (CPA/ORD/1 December 2003/16).

52. CPA Order No. 19 (CPA/ORD/9 July 2003/19).

53. CPA Order No. 3 (CPA/ORD/31 December 2003/3).

54. CPA Order No. 14 (CPA/ORD/10 June 2003/14).

55. Ziemke, E.F., The US Army in the Occupation of Germany, 1944–1946 (Washington, DC, US Army Center of Military History 1990) pp. 134–135Google Scholar; Glahn, G. Von, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (Minneapolis, University of Minnesota Press 1957) p. 300Google Scholar.

56. Iraqi Weapons Law No. 13 of 1992 as amended by Law No. 15 of 2000.

57. Von Glahn, supra n. 55, pp. 139, 215 and 265.

58. Art. 53 Hague Regulations of 1907. When these belong to private individuals compensation should be paid when ‘peace is made’.

59. CPA Regulation No. 4 (CPA/REG/25 June 2003/4).

60. CPA Regulation No. 8 (CPA/REG/14 January 2004/8).

61. Art. 43 Hague Regulations of 1907.

62. Art. 43 Hague Regulations of 1907; GC IV, Art. 64: ‘The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfill its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them;’ Von Glahn, supra n. 55, pp. 224–227 and 264.

63. Liege Court of Appeal decision of 13 February 1917, 44 Clunet (1917) p. 1809Google Scholar. See also De Ridder-Tartarin v. Procureur du Roi (Belgian Court of Cassation 1916), 47 Clunet (1920) pp. 292 and 727Google Scholar. Morgenstern, F., ‘Validity of the acts of the belligerent occupant’, 28 BYIL (1951) pp. 291 at 306–307Google Scholar.

64. Art. 2 Actes de la Conférence Réuni a Bruxelles, du 27 Juillet au 27 Août 1874, pour Régler les Lois et Coutumes de la Guerre, Nouveau Recueil général de Traités, 2e série, 1879–1880.

65. Arts. 64–78 GC IV. Of particular note is Art. 66, which permits appeal courts to sit out of the country and presumably the transport of the accused out of the country to be present at the proceedings, although preferring that they be held in the occupied territory.

66. Von Glahn, supra n. 55, p. 111.

67. Pictet, supra n. 45, p. 340.

68. See paras. 357–368 of the Iraqi Criminal Procedure Code with respect to the extradition provisions.

69. Para. 444(11). Under the Code theft is the willful appropriation of moveable property belonging to another. Moveable property includes an energy or power resource, para. 439.

70. Art. 194 Iraqi Customs Law No. 23 of 1984.

71. The master may request contact be made with Panama in accordance with Art. 27 UNCLOS, which states that: ‘…the coastal State shall, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall facilitate contact between such agent or officer and the ship's crew. In cases of emergency this notification may be communicated while the measures are being taken.’

72. See Art. 88 of the Oxford Manual of Naval War, supra n. 14, which is considered an authoritative statement of customary law on the subject.

73. See Art. 27 UNCLOS.

74. Iraq ratified 30 July 1985, Panama ratified 1 July 1996 and Ukraine ratified 26 July 1999.

75. Established under SC Res. 661, 6 August 1990.

76. Sec. II, para. 120. A neutral merchant vessel is exempt from the exercise of the right of visit and search if it meets the following conditions:

‘(a) it is bound for a neutral port; (b) it is under the convoy of an accompanying neutral warship of the same nationality or a neutral warship of a State with which the flag State of the merchant vessel has concluded an agreement providing for such convoy; (c) the flag State of the neutral warship warrants that the neutral merchant vessel is not carrying contraband or otherwise engaged in activities inconsistent with its neutral status; and (d) the commander of the neutral warship provides, if requested by the commander of an intercepting belligerent warship or military aircraft, all information as to the character of the merchant vessel and its cargo as could otherwise be obtained by visit and search.’

77. CPA Order No. 25 (CPA/ORD/31 August 2003/25).

78. CPA Order No. 36 (CPA/ORD/3 October 2003/36).

79. CPA Order No. 48 (CPA/ORD/9 December 2003/48).

80. Art. 12 GC III.

81. Arts. 84, 85 and 99–108 GC III.

82. ‘The Party to the conflict in whose hands protected persons may be, is responsible for the treatment accorded them by its agents, irrespective of any individual responsibility which may be incurred.’

83. ‘Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.’

84. Letter dated 9 May 2003.

85. (CPA/ORD/25 May 2003/04), Sec. 1: ‘“property and assets” includes all movable and immovable property, records and data, cash, funds, realisable assets and liquid capital, in whatever form maintained and wherever located, used, possessed, or controlled by the Ba'ath Party, its officials and members, and all residences occupied by Ba'ath officials or members assigned to them by the Party, a member of the Ba'ath Party or other State instrumentality and that were not purchased for full value by those officials or members.’

86. Feilchenfeld, E.H., The International Economic Law of Belligerent Occupation (Washington, DC, Carnegie Endowment for International Peace 1942) p. 38Google Scholar.

87. Ibid., p. 50.

88. Judgement, 5 December 1924, 2 Annual Digest (1923–1924) Case No. 243Google Scholar.

89. Von Glahn, supra n. 55, p. 186.

90. Ibid., p. 179.

91. Catan, T., ‘Iraq business deals may be invalid, law experts warn’, in The Financial Times, 29 10 2003Google Scholar.

92. Von Glahn, supra n. 55, p. 178.

93. Spoliation equates to the stripping of the assets of the occupied state for transport to the territory of the Occupying Power for its own economic benefit.

94. (1923), 2 MAT p. 715Google Scholar.

95. (1925), 5 MAT p. 716Google Scholar.

96. (1931), 2 RIAA p. 1118Google Scholar.

97. (1981), 11 Israel YB HR (1981)p. 354Google Scholar.

98. Debellatio (also known as subjugation) is really two things in the context of an occupation situation. Firstly it describes the circumstance whereby a state has been totally defeated, its government effectively destroyed and therefore the state has effectively ceased to exist (see the definition of a state contained in the Montevideo Convention on the Rights and Duties of States 1933, Art. 1: ‘The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states’). In addition, the term represented the principles that applied to the control and annexation of territory reduced to a state of debellatio. Effectively these rights were unlimited. The Allies after World War II claimed this adhered to the situation in Germany and that therefore it was not an occupation, the Hague Regulations did not apply and they had a free hand to administer Germany as a sovereign with unlimited authority. GC IV addressed this situation and prevented it from occurring again by the universal coverage expressed in Art. 2 and the cessation clause at Art. 6, which defines the continuing application of the Convention or parts thereof, as will be discussed in the next part. The UN Charter also eliminated the annexation aspect of the doctrine. The term is now therefore only relevant to describing the state of debellatio. Von Glahn, supra n. 55, pp. 273–286; Schwarzenberger, G., International Law, Vol. II (London, Stevens & Sons 1968) pp. 63 and 166–173Google Scholar; Benvenisti, E.., The International Law of Occupation (Princeton, Princeton University Press 1993) pp. 91–96Google Scholar.

99. Lord Rennell of Rodd, British Military Administration of Occupied Territories in Africa During the Years 1941–1947 (London, His Majesty's Stationary Office 1948)Google Scholar.

100. See Nuremberg Trial Proceedings, Vol. 1, Indictment: Count Three, (E) Plunder of Public and Private Property, and also the Presentation of Cases Transcript, 14 December 1945, pp. 573–597 and 17 December 1945, pp. 3–16 as examples of the sort of evidence and allegations raised concerning the execution of the Germanisation and spoliation process. The Avalon Project, supra n. 10.

101. Art. 55 Hague Regulations of 1907.

102. Law of Administration for the State of Iraq for the Transitional Period. The Iraqi Governing Council signed the TAL on 8 March 2004. A copy of the TAL can be found at <http://www.iraqcoalition.org/government/TAL.html>.

103. See, for example, Zeeuwsche Hypotheek-Bank Ltd. v. State of the Netherlands, NJ 1948 No. 108; Chop Sun Cheong Loong v. Lian Teck Trading Co. [1947] Malayan Union Reports 80.

104. Morgenstem, F., ‘Validity of the acts of the belligerent occupant’, 28 BYIL (1951) pp. 291 at 299Google Scholar.

105. See, for example, Re Van Huis, 2 Na-oorlogse Rechtspraak (1946) No. 605; Bochart v. Committee of Supplies of Corneux (Liege Court of Appeal, 1920), 1 Annual Digest (1919–1922) Case No. 327Google Scholar.

106. UN Doc. S/RES/1546 (2004).

107. Final Record 1949, Vol. II-A, supra n. 31, p. 815.

108. Annex to the TAL dated 1 June 2004: ‘The Council of Ministers with the unanimous approval of the Presidency, may issue orders with the force of law that will remain in effect until rescinded or amended by future Iraqi governments. The Council of Ministers will have the authorities granted to the National Assembly in this Law related to appointments, the use of the Iraqi Armed Forces, and approval of international agreements. The Interim Government will represent Iraq in its external relations, but its powers in concluding international agreements will not extend beyond Iraq's diplomatic relations, international loans and assistance, and Iraq's sovereign debt.’