6.5 |
Planning and preparation for a post-Saddam Hussein Iraq, January to
March 2003
666.
FCO Legal
Advisers had sent the IPU an overview of the legal framework for
the
post-conflict
administration of justice on 16 February.289
The paper,
which was copied
to the
MOD, explained that:
•
With
certain exceptions, the penal laws of the occupied territory would
remain in
force
(Geneva Convention IV, Article 64).
•
Again with
certain exceptions, the administration of justice should remain in
the
hands of
the incumbent administration and courts (Geneva Convention IV,
article
64; Hague
Regulations, Article 43).
•
Where
possible, existing personnel involved in the administration of
justice
should
remain in their positions (Geneva Convention IV, Article
54).
667.
The paper also
listed some of the issues “it may be useful to consider …
in
advance of
a conflict”:
•
identification
of laws to be applied, amended, repealed or enacted by
an
occupying
force;
•
a scoping
study of the current state of the criminal justice
system;
•
identification
of systems for seizure and preservation of evidence
and
maintenance
of known crime sites; and
•
development
of a public information and awareness campaign.
As
Occupying Powers, the UK and US were bound by international law on
belligerent
occupation.
Its rules are set out in the 1907 Hague Regulations (Articles 42 to
56), the
Fourth
Geneva Convention on the Protection of Civilian Persons in Time of
War of 1949
(Articles
27 to 34 and 47 to 78) and the 1977 First Protocol to the Geneva
Conventions
of 1949
Relating to the Protection of Victims of International Armed
Conflicts.290
Article 42
of the Hague Regulations defines an Occupation as
follows:
“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.”
Article 43
of the Hague Regulations provides that the Occupying Power “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”.
289
Minute Hood
to UND [junior official], 16 February 2003, ‘Occupation Rights: the
Administration of
Justice’.
290
International
Committee of the Red Cross, 29 October 2010, The
ICRC’s mandate and mission;
International
Committee of the Red Cross, 29 October 2010, War
and international humanitarian law.
429