9.1 |
March to 22 May 2003
It was
widely understood by both the US and UK that once they had
displaced the
regime of
Saddam Hussein, Coalition Forces would exercise authority over –
and, under
international
law be occupiers in – Iraq. FCO lawyers confirmed on 2 April
2003
that by
that date, UK forces were an Occupying Power in that part of Iraq
in their
The basic
principles of International Humanitarian Law as they apply to
military action, in
particular
in relation to targeting and the Rules of Engagement, are set out
in Section 6.1.
This Box
explains the main principles applicable to the occupation of one
state by another,
a process
which makes it the “Occupying Power”.
As
Occupying Powers, the UK and USA 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.
Article 42
of the Hague Regulations defines an Occupation:
“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.”
In Iraq in
April 2003 this meant that, at a minimum, the UK was considered the
Occupying
Power in
that part of South-East Iraq where its forces were physically
present and
exercised
authority. The UK’s role alongside the US in ORHA (and then the
CPA) raised
questions
about whether the UK was also jointly responsible for the actions
of those
organisations
throughout Iraq.
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”.
Sir Michael
Wood, a former FCO Legal Adviser, told the Inquiry: “While some
changes to
the
legislative and administrative structure may be permissible if they
are necessary for
public
order and safety, more wide-reaching reforms of governmental and
administrative
structures
are not lawful. That includes the imposition of major economic
reforms.”38
The Fourth
Geneva Convention defines “protected persons” as those who
“find
themselves
… in the hands of a party to the conflict or Occupying Power of
which they
are not
nationals”. It sets out a number of detailed provisions on status
and treatment
of
protected persons; and a number of responsibilities and
restrictions that apply to
the
Occupying Power in relation to the occupied territory. The
provisions of particular
relevance
to the UK’s involvement in Iraq are:
•
Article 54,
which prohibits any alteration in the status of public officials
should they
abstain
from fulfilling their functions for reasons of conscience. It does
not affect
the right
of the Occupying Power to remove public officials from their
posts.
37
Minute
Llewellyn to Bristow, 2 April 2003, [untitled].
38
Statement
Wood, 15 January 2010, pages 2-3.
145