The Transformation of Occupied Territory in International Law (Leiden Studies on the Frontiers of International Law, 2)

The Transformation of Occupied Territory in International Law
Table of Contents
Editorial Foreword
Foreword
Preface
Select List of Abbreviations
Table of Cases
Introduction
	1. Scope of the research
	2. Some issues of methodology
Chapter 1 International Law and Transformative Occupation: A Historical Perspective
	1. Occupation as conquest and exploitation
		1.1. The Roman law tradition and its influence up to the Modern Age
		1.2. The French occupation of the Rhineland (1794–1801)
	2. Occupation as control and administration of territory
		2.1. Occupation and sovereignty
		2.2. The distinction between belligerent states and private individuals
		2.3. The Prussian occupation of Alsace-Lorraine (August 1870– February 1871)
		2.4. The process of codification
	3. Occupation as transformation
		3.1. The concept and its origin
		3.2. From ‘liberation’ to political independence
			3.2.1. The Russian occupation of Bulgaria (1877–1878)
			3.2.2. The British occupation of Mesopotamia and the Mandate (1914–1932)
				(a) The occupation (1914–1920)
				(b) The Mandate (1920–1932)
		3.3. From surrender to the establishment of ‘democratic institutions’
			3.3.1. The Allied Powers’ occupation of Germany (1945–1949)
			3.3.2. The Allied Powers’ occupation of Japan (1945–1952)
	4. Occupation as implementation of a ‘humanitarian agenda’: the Geneva Convention IV and Additional Protocol I
	5. Conclusion
Chapter 2 International Law and Transformative Occupation: Contemporary Challenges
	1. The development of the international law applicable to an occupation
		1.1 The issue of the legality of the existence of an occupation
		1.2. The applicability of human rights law
		1.3. The coordination between human rights law and international humanitarian law
	2. Some contemporary arguments for transformative occupation
		2.1. Advancing human rights
		2.2. Enabling self-determination
	3. Conclusion
Chapter 3 The Occupation of Iraq (2003–5)
	1. Chronology of key events
	2. The legal status of the Coalition Forces in Iraq in April 2003
		2.1. Occupation versus debellatio
		2.2. The establishment of the occupation
		2.3. The existence of an occupation in Iraq as of mid-April 2003
	3. The status of the Coalition Forces during the looting of Baghdad
		3.1. Key events
		3.2. The extent of the Coalition Forces’ control over Baghdad
	4. The role of the Office of Reconstruction and Humanitarian Assistance
	5. The Coalition Provisional Authority
		5.1. The CPA as an occupation administration: legal basis and structure
		5.2. The CPA’s purposes: nation-transformation
		5.3. The CPA’s self-definition of its authority and objectives: Regulation 1
	6. Security Council Resolution 1483: framing the role of the main actors in the Iraqi crisis
		6.1. The quest for a Security Council resolution by the occupying powers
		6.2. The status and functions of the CPA
			6.2.1. Reappraising the legality of the CPA’s presence in Iraq
			6.2.2. Authorities, responsibilities, and limits
				(a) The CPA’s ‘political’ tasks: a derogation from the law of occupation?
				(b) The administration of Iraqi oil
		6.3. The role of the United Nations
		6.4. The role of the Iraqi people
			6.4.1. The ambit of the Iraqi people’s right to self-determination
			6.4.2. A position of subordination
			6.4.3. The Security Council and the right to self-determination
				(a) Enablement of the right to self-determination or breach?
				(b) Internal self-determination and Saddam Hussein’s regime
	7. Conclusion
Chapter 4 Occupation as Transformation: The Practice of the CPA
	1. The dismantling of Saddam Hussein’s regime
		1.1. The de-Ba’athification of Iraqi society
		1.2. Dissolution of entities
		1.3. Assessment
	2. The duty to restore ‘conditions of security and stability’
		2.1. Control of weapons
		2.2. The criminalisation of specific conduct and the harshening of penalties
		2.3. The effort to restrain private militias
		2.4. The attitude towards private contractors
		2.5. The attitude of Coalition Forces towards the Iraqis
		2.6. The creation of new Iraqi security forces
		2.7. Assessment
	3. The administration and reform of the judicial system
		3.1. Amending existing legislation: the influence of human rights law
		3.2. The establishment of new courts
			3.2.1. The Iraqi Special Tribunal
			3.2.2. The trial of Saddam Hussein
		3.3. The management and supervision of detention facilities
	4. The political and constitutional process to transform Iraq into a democracy
		4.1. The role of the Iraqi Governing Council
		4.2. Sistani’s fatwa against the drafting of a constitution by a non-elected body
		4.3. Security Council Resolution 1511: moving democratisation forward
			4.3.1. The 15 November Agreement between the IGC and the CPA
			4.3.2. A breach of the right to self-determination?
		4.4. The UN involvement in determining date and modalities of the elections
		4.5. The Law of Administration for the State of Iraq for the Transitional Period
			4.5.1. Content
			4.5.2. Assessment
	5. The transformation of the Iraqi economy
		5.1. Opening Iraq to foreign investments
		5.2. Financial, fiscal, and labor reforms
		5.3. Auditing and best financial practices
		5.4. Evaluation
	6. Conclusion
Chapter 5 The Democratisation of Iraq after the Demise of the CPA
	1. The legal effects of the CPA’s legislation after its demise
	2. The formation of the Interim Government
	3. The content and effects of Resolution 1546
		3.1. Upholding the timetable of transition to a democratic constitution
		3.2 The Invitation to the Multinational Force
	4. The scholarly debate
		4.1. Whether the Interim Government was sovereign
		4.2. Whether the recognition by the Security Council may override the lack of internal sovereignty
		4.3. The International practice
		4.4. The status of the Multinational Force
			4.4.1. The Multinational Force’s relationship with the Interim Government and the Iraqi people
			4.4.2. The Multinational Force’s relationship with UNAMI
		4.5. The Practice of the Interim Government: a ‘caretaker’?
	5. Towards full sovereignty: the practice of the elected Iraqi governments
		5.1. The Jaafari Government (April 2005–May 2006)
		5.2. The adoption of a permanent constitution (October 2005)
			5.2.1. Content
			5.2.2. A foreign-imposed constitution?
		5.3. The Maliki Government (May 2006–re-elected in 2010)
	6. The Withdrawal of the Multinational Force
	7. Conclusion
Chapter 6 International Law and Transformative Occupation after Iraq
	1. Break from or continuum with the past?
		1.1. A comparison with the occupation of Mesopotamia and the subsequent Mandate
			1.1.1. Some similarities and differences
			1.1.2. Self-determination as a limit to constitutional processes
		1.2. A comparison with the Allied Powers’ occupation of Germany and Japan
	2. The occupation of Iraq as precedent
		2.1. The irreplaceable function of the law of occupation
		2.2. Should aspects of the law of occupation be amended?
		2.3. Transformative occupation and international territorial administration
		2.4. Transformative occupation and jus post bellum
		2.5. Whether the Security Council should support prodemocratic transformative occupations
Bibliography
Index