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Constellations Volume 11, No 4, 2004. Blackwell Publishing Ltd.

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Carl Schmitt, the Law of Occupation, and
the Iraq War
Peter Stirk
The events leading to the invasion of Iraq and the claims advanced in favor of that
invasion have rightly attracted great attention. Yet the occupation that followed is
arguably of equal importance and has colored judgments of the Iraq war in
general. Carl Schmitts work is relevant to the kinds of arguments advanced in
justification of the invasion and to the phenomenon of occupation. It is the latter
that this article will concentrate on. First, it will set out Schmitts views. Second,
it will show how these illuminate important aspects of the occupation of Iraq. It
will conclude by noting a crucial limitation to Schmitts approach to the phenom-
enon of occupation.
It is not surprising that Carl Schmitt showed some interest in the phenomenon of
occupation. His native Rhineland was occupied by Allied and American troops at
the end of the First World War and they were not finally withdrawn until 1930.
This was in fact five years ahead of schedule. Yet for most of the period there was
no certainty that the occupation would be ended even by the prescribed date of
1935, for withdrawal was dependent upon German fulfilment of the conditions of
the Treaty of Versailles. From the viewpoint of 1925, Schmitt complained that
one possible outcome was an occupation of unlimited duration.
1
While occupa-
tion of German land was partial at the end of the First World War, in 1945
German defeat and unconditional surrender meant total occupation. This time the
consequences were more drastic. In a dubious analogy that nevertheless says a
great deal about his perception of the experience, Schmitt noted in September
1949 that In medieval theory, the just war meant that the victor had the right to
enslave the subjects of his opponent and to seize his land; today, with more highly
organized forms of mass domination it means above all: determining the constitu-
tion and regime of the defeated.
2
Writing from the perspective of the defeated, Schmitt railed against the
control and the indignities to which his country was subjected. Strictly speaking,
occupation constituted only one of these forms of control. In an essay of 1925 it
came last in a list of four, the first three being reparations, sanctions, and the right
of investigation. Occupation was but one element in a wider strategy of indirect
control that served as a substitute for the annexation of territory of the defeated.
In arguing against his tormentors, whom he identified as the Anglo-Saxon
powers, especially the Americans, rather than the French, Schmitt developed a
528 Constellations Volume 11, Number 4, 2004
2004 Blackwell Publishing Ltd.
sophisticated anti-interventionist rhetoric. Essentially that rhetoric can be broken
down into three types of argument. First, he denounced indirect control as an
affront to traditional concepts of sovereignty perpetrated by a hegemonic power
with global ambitions. Second, he argued that so far as this indirect control, with
its diverse forms of intervention, was supposed to be exercised in the name of the
international community or some more specific instance of an international
regime, its legitimacy depended upon an unstable or bogus higher authority.
Third, he argued that intervention in the name of humanity or a war to end all
wars was more inhumane than the old cabinet wars fought on the analogy of
duels. In brief, such interventions or wars were worse than the disease they
pretended to cure. More specifically, Schmitt complained that this kind of war
was treated as a legal process in which the opponent is condemned to death and
executed.
3
These arguments were advanced to delegitimate the international
order and the League of Nations established at Versailles. The main target was
the United States of America and Schmitts main fear was that the Americans
would intervene in a future war as they had done in the First World War.
Yet there is another, more positive evaluation of occupation in Schmitts work.
In the concluding chapter of Nomos der Erde he drew on a contrast between land
warfare and maritime warfare, with the latter supposedly dominating the concep-
tions of the interventionist Anglo-Saxon powers. This was a well-established
theme in Schmitts work. The core of the argument is that the sheer fact of the
occupation of enemy territory gave the occupying power an interest in the main-
tenance of law and public order in the occupied territory. Here, writes Schmitt,
the immediate connection between protection and obedience becomes evident.
4
Earlier, in the brief section headed Occupatio bellica im jus publicum europaeum,
he develops a number of themes in less than a dozen pages on the law of occupa-
tion, which he describes as the last achievement in international law of the jus
publicum europaeum.
5
This law seeks to grasp the curious phenomenon of the
effective exercise of power by one state over the territory of another without there
being any change in sovereignty, regime, or constitution. That exercise of power
is held, moreover, to be legitimate by virtue of a legal title derived directly from
international law. Effective power and international law figure prominently in the
two themes on which Schmitt ends this brief treatment of the law of occupation.
The first is what he calls the striking parallels or the notable substantive affinity
between belligerent occupancy and the state of siege or state of exception within a
state. The second is that this phenomenon breaks through the dualistic conception
of domestic and international law, exposing it as only a formal-juridically inter-
esting question of secondary order.
6
Here Schmitt associates the law of occupation with two key elements that run
throughout his work: the state of exception and the relationship between domestic
and international order. In both cases, he claims that European jurisprudence had
experienced great difficulty in coming to terms with the phenomenon of occupa-
tion. It is worth elaborating on exactly what is at stake in these two cases. With
Schmitt, the Law of Occupation, and the Iraq War: Peter Stirk 529
2004 Blackwell Publishing Ltd.
respect to the striking parallels between belligerent occupancy and state of
siege or the state of exception, there is a temptation, especially in the light of the
current occupation of Iraq, to see the parallel in Schmitts concept of sovereign
dictatorship.
7
Yet this cannot be what Schmitt meant, for he specifies that occupa-
tion entails no change of constitution. Strictly speaking, that is true only where
there is a common constitutional standard. Where there is no common standard,
as in Russian occupation of Ottoman territory in 1877, a new legal order has been
introduced, but by the same token this is not an instance of occupatio bellica.
8
What Schmitt had in mind is evident in an early article on dictatorship and the
state of siege. Written during the First World War, it was part of a wider debate
on whether or not the state of siege created an independent right to issue direct-
ives unconstrained by the rule of law. Schmitt appears to make some concession
to the critics of such an independent right. The separation of powers continues in
this condition, for the military commander does not claim to execute laws he has
made. Schmitt adds, however, that there is a concentration within the executive.
The meaning of this becomes clearer when Schmitt elaborates. He takes up the
distinction between legislative and executive power, where the former, as the true
expression of the sovereignty of the people, is accorded supremacy and the latter
is interpreted simply as the arm of the legislative brain. He then strikes:
But with such antitheses one does not do justice to the significance of the administra-
tion. Administration is more than the mere execution of positive legal definitions, the
law is only the framework within which the creative activity of administration takes
place. Also, the historical development did not occur in such a way that first the
law. . . was declared and then its execution was taken in hand. In the beginning all
state activity is administration; legislation and jurisdiction separated out later. . . . This
primeval condition, if it is permitted to use this word, remains administration. . .
9
This image of undifferentiated power recurs throughout Schmitts work, some-
times breaking through other key distinctions, including that between commisar-
ial and sovereign dictatorship.
10
It is a power guided by the technical, objective
demands of the situation in which general laws are irrelevant or where laws can
no longer be distinguished from administrative decrees. Yet it is still a political
situation in which protection is offered and obedience expected. It is the situation
which prevails both in the state of siege and belligerent occupation.
Schmitt was not being eccentric in this approach to occupation. The same gen-
eral traits were identified in a substantial study of the occupation of the Rhineland
by Ernst Fraenkel. According to Fraenkel, Occupation represents not a constitu-
tional government characterised by a balance of powers but rather a sort of emer-
gency government in which all forms of power are concentrated in one
centralised body.
11
He even warns against an excessively liberal occupation
statute, lest it tempt the occupying power to bend it to suit the circumstances of
the moment, as had in fact been in the case in the occupation of the Rhineland.
The main thrust of Fraenkels argument is, however, to question the more
530 Constellations Volume 11, Number 4, 2004
2004 Blackwell Publishing Ltd.
extreme assertions of unlimited discretion, particularly that associated with the
French chairman of the Inter-Allied Rhineland Commission, Paul Tirard. Fraen-
kel notes that Tirards position was an extension of the power claimed for the
Reich government by Schmitt at the time of the Prussian coup of 1932, namely an
unlimited power to act as required by the circumstances of the moment. In the
case of Tirard, Fraenkel continues, this amounted to the claim that the occupying
power can do whatever is necessitated by his interests.
12
A more overtly ideological commentary on occupation was offered by
Schmitts contemporary critic, Werner Best, albeit without any explicit reference
to Schmitt. Best plays on the etymology of the German word for administration
(Verwaltung). He writes that administration had originally signified a broad
power of ruling (Walten) that had gradually been narrowed down to signify exe-
cution of the commands of others or mere bureaucratic activity. Administration
(Verwaltung) had in particular been separated out from politics and subordinated
to it. According to Best, experience of occupation had demonstrated that this
trend had to be reversed and administration (Verwaltung) restored to its original
meaning of comprehensive rule (Walten) over all public affairs.
13
Schmitts claims about the analogy between the state of siege and belligerent
occupation are closely tied to his assertion that the latter exposes the fragility of the
dualistic approach to domestic and international law. Time and again he plays on the
exceptional nature of intervention by one state in the affairs of another to draw the
parallel. In part this is simply a matter of noting that the controls over Germany or
other states were supposed to be exceptional in some form or another. More
broadly, Schmitt argues that the principle of intervention a question of international
law always presupposes some specific conception of the constitutional order
within states a question of constitutional state law. Both the Holy Alliance and the
Monroe Doctrine reveal how closely the two are entwined.
14
In Nomos der Erde
Schmitt gives a somewhat different, but related account:
The real state of affairs is this, that the military commander of the occupying power
steps into a direct relationship with the population of the occupied territory. . . . That
is the indisputable reality, but it is incompatible with the dogmatic exclusiveness of
the so-called dualistic theory of internal and external relationships. For it is neither
pure domestic law nor pure international law. The population of the occupied
territory does not count as a legal subject. . . .
15
In other words, the occupied population is subject to the holder of undifferenti-
ated power without even the protection afforded to it indirectly by pure inter-
national law, for it is not a legal subject. At this point Schmitt refers to the
striking parallels between military occupation and the state of siege or exception.
It is not difficult to see the potential relevance of Schmitts arguments to
the current occupation of Iraq, especially to the question of whether or not the
Schmitt, the Law of Occupation, and the Iraq War: Peter Stirk 531
2004 Blackwell Publishing Ltd.
invasion of Iraq was justified in the first place.
16
His invocation of traditional
rights of sovereignty fits easily with those who fear that ideas of humanitarian
intervention, let alone the doctrine of pre-emptive defense, are open to abuse,
especially in the new unipolar world. Similarly, the claim that the invasion was
carried out by an international coalition, or in fulfilment of the pronouncements
of the international community as represented by the United Nations, has been
met with what amounts to the second of Schmitts rhetorical strategies: the coali-
tion is bogus and the appeal to an international community is a fig leaf that does
not even cover the imperialist ambitions of George W. Bush and the neoconserv-
ative agenda. Finally, citation of civilian casualties and the transgressions of
international law by coalition soldiers implicitly or explicitly leads to the sugges-
tion that the invasion and subsequent occupation are worse than the disease they
were supposed to cure. These arguments have been advanced predominantly in
the context of whether the invasion was justified in the first place and the implica-
tions for the future of the international law and the international order, or in the
context of whether what has emerged as the prime purpose of the occupation,
regime transformation, is likely to be achieved. It is doubtful if the structure and
form of the occupation can be treated in isolation from these broader questions,
but the purpose of occupation law was to deal with jus in bello as opposed to jus
ad bellum and, more recently, to do so under the presumption that the mere fact of
occupation does not automatically entail the alienation of sovereignty.
17
Those limitations have not made the phenomenon of occupation and its associ-
ated legal interpretation stable or easy to define. There is a semblance of stability
in international law insofar as the Hague Resolutions of 1907 continue to form a
point of reference. That semblance of stability was enhanced by the claim that the
Fourth Geneva Convention of 1949 did little more than restate the principles of
the Hague Resolutions. In fact, the underlying assumptions and context were sig-
nificantly different. The Hague Resolutions were essentially a set of agreements
that regulated the relations between warring elites, with the governments of the
warring states being the main parties. This explains the concern with the extent to
which the occupying power should respect the existing laws of the occupied terri-
tory unless absolutely prevented from doing so. Behind the exemption lay the
notion that military necessity was the prime consideration, and hence also that the
occupying power had limited interest in the occupied territory as such and would
prefer to leave the occupied population to its own devices, subject to the require-
ment to restore and ensure, as far as possible, public order and civil life.
18
Such restraint and its underlying assumptions quickly proved to be obsolete.
As Eyal Benvenisti has shown, the record of twentieth-century occupations is one
of an expanding remit for the occupation authorities, especially but not solely in
prolonged occupations. Occupying powers did find the Hague Resolutions con-
venient for the another purpose, namely to exclude demands from occupied popu-
lations for participation, as the British did in Cyrenaica in the Second World War,
on the grounds that such participation was inconsistent with the responsibilities of
532 Constellations Volume 11, Number 4, 2004
2004 Blackwell Publishing Ltd.
the occupying power.
19
There is even a curious contemporary echo of this in the
claim that, since the coalition is obligated to establish the orderly governance of
Iraq . . . , the United States and other coalition countries arguably cannot delegate
the responsibility for the postwar governance of Iraq to the UN or any other
entity.
20
The Fourth Geneva Convention introduced some significant changes, in part to
emphasize the rights of the occupied population rather than those of the ousted
government. In other respects, however, it explicitly enhanced the remit of the
occupying power in light of the experience of the victorious states of the Second
World War. In this respect, the development of the law of occupation suggests an
answer to the question raised in the title of one commentary of the current occu-
pation of Iraq: Will International Law Shape the Occupation, or the Occupation
Shape International Law?
21
The answer is that, historically, the latter has more
frequently been the case. This is much as one might expect from Schmitts
emphasis upon the analogy between the state of the exception and belligerent
occupation.
The direct invocation of the rights of belligerent occupation has been unusual
in the postwar world. Benvenistis survey, published in 1993, identified only the
Israeli occupation of 1967 as an explicit case of recourse to the law of occupation,
even though he insisted that the law of occupation was applicable in other
cases.
22
In the case of the invasion of Iraq, the position of the United States and
the United Kingdom as occupying powers was again explicitly invoked in a May
8, 2003 letter to the President of the Security Council. The letter announced the
creation of the Coalition Provisional Authority to exercise powers of govern-
ment temporarily, and, as necessary, especially to provide security, to allow the
delivery of humanitarian aid and to eliminate weapons of mass destruction.
23
This was in turn acknowledged by Security Council Resolution 1483, adopted on
May 22, 2003, which recognized the specific authorities, responsibilities, and
obligations under applicable international law of these states as occupying powers
under unified command (the Authority) and specifically referred to the Geneva
Convention of 1949 and the Hague Resolutions of 1907. Although these
documents have become ammunition in debate about the legitimacy of the inva-
sion, the acknowledgment of the status of these states as occupying powers is
independent of any judgment about the legitimacy of the occupation.
24
Nor is
there any obligation to obtain Security Council authorization for occupation per
se. Indeed, as a House of Commons Research Paper put it, the purpose of the
exercise was to evade legal difficulties if the occupying powers sought to move
beyond the limited rights conferred by the Hague Regulations and Geneva
Convention IV to vary existing arrangements.
25
The position of the occupying powers was aggravated by two factors, both
of which magnify the relevance of Schmitts analogy. The first is the sheer extent
of the impact on the Iraqi state machine. In part this was a product of the intent of
the occupying powers, as embodied, for example, in the first two orders of the
Schmitt, the Law of Occupation, and the Iraq War: Peter Stirk 533
2004 Blackwell Publishing Ltd.
Coalition Provisional Authority (CPA) dissolving the Baath Party and a series of
state institutions.
26
In part it was a product of the impact of the invasion itself and
the ensuing deterioration of daily security. It is indicative of the extent of this that
in September 2003 the CPA put forward a tax strategy, Noting that the Tax
Commission has not been operational.
27
Indeed, the disintegration of the Iraqi
state was so extensive that the situation amounted to one of debellatio or subjuga-
tion, in which case, at least according to older international law, the coalition
powers would technically be entitled to assume sovereignty over the territory or
even annex it.
28
This raises a host of separate questions about where sovereignty
now lies and about the relevance of analogies with previous instances where
sovereign power was asserted, notably in the case of Germany and Japan.
29
The
main point here is that the disintegration of the Iraqi state was bound to extend the
de facto remit of the occupying powers.
Paradoxically, the second aggravating factor amounted to a denial of this real-
ity. Again the complication was bound up with the desire to legitimate the inva-
sion. It consisted in the much repeated assertion that the mission of the occupying
powers was one of liberation. Indeed, in some formulations, such as that of Gen-
eral Tommy Franks, it amounted to a denial that occupation was involved at all:
this has been about liberation, not occupation.
30
This stood in crass contradic-
tion not only to the publicly acknowledged position of the occupying powers, but
also to the fact of occupation as specified in Article 43 of the Hague Resolutions
The authority of the legitimate power having in fact passed into the hands of the
occupant . . . and to Schmitts statement The real state of affairs is this, that
the military commander of the occupying power steps into a direct relationship
with the population of the occupied territory. . . . That is the indisputable
reality. . . . The two factors were, of course, linked. The disinclination to grasp
the enormity of the task associated with the disintegration of the Iraqi state exacer-
bated that disintegration, and hence the scope of the task.
The precise range of the CPAs powers is not necessarily clear to those who
support the law of occupation as the basis of its authority. Thus, Rivkin and
Bartram, with explicit reference to the situation in Germany and Japan at the end
of the Second World War, write that occupation law entitles occupying powers
to wield the totality of sovereign powers that had formerly been vested in the
defeated governments, but then go on to quote the US Army Field Manual,
according to which occupation does not transfer the sovereignty to the occupant,
but simply the authority or power to exercise some of the rights of sovereignty.
31
The elasticity is not merely a question of interpretation but points to the reality of
undifferentiated power. That is evident in the CPAs own statements. Regulation
Number 1 specifies that The CPA is invested with all executive, legislative and
judicial authority necessary to achieve its objectives, to be exercised under rele-
vant U.N. Security Council resolutions, including Resolution 1483 (2003), and
the laws and usages of war. This authority shall be exercised by the CPA Admin-
istrator.
32
At this point it is less commitment to certain rules that matters than the
534 Constellations Volume 11, Number 4, 2004
2004 Blackwell Publishing Ltd.
concentration of executive, legislative, and judicial power. Regulation Number 1
further specifies that regulations shall be those instruments that define the insti-
tutions and authorities of the CPA, while orders are the binding instructions of
the CPA. The CPA is, then, sovereign in the sense of being able to determine its
own organs and powers.
Schmitts comments on occupation capture this moment of undifferentiated,
self-defining power. His observation that belligerent occupation breaks through
the dualism of domestic and international law follows from this and is equally
applicable. The CPA rules, in a sense that is in principle unlimited, over a foreign
population. The fact that the administrator is a civilian makes no difference. The
same point was noted by Fraenkel: An occupation regime . . . is the rule of a
foreign government which does not even pretend to represent the will of the
governed population.
33
The fact that the rhetoric of liberation does involve a
pretence to represent the will of the Iraqi people again makes no difference. This
was evident in the ambivalent role ascribed to the Interim Governing Council. As
a body created by a CPA regulation that clearly distinguished it from a repre-
sentative government of the Iraqi people, it is caught between playing a role in
the governance of Iraq under a regime of occupation and a role in constitution-
making that requires a higher degree of legitimacy than it possesses and which is
intended to lead to a constitution that does express the will of the Iraqi people.
34
The assertion by the UN that this Council embodies the sovereignty of the State
of Iraq during the transitional period merely muddies the water further.
35
What does begin to make a difference is an issue on which Schmitt is silent. That
is the extent to which, as Fraenkel puts it, the occupation is intended to be a rule
of law. So long as it is not so intended, Fraenkel claims that restrictions on milit-
ary occupation analogous to those found within a constitutional government are
irrelevant.
36
In the case of Iraq, the CPA, for all its faults and misjudgments of the
scale of the task, clearly does intend to be a rule of law. Amnesty International
has acknowledged this in, for example, welcoming the use of the UN Standard
Minimum Rules for the Treatment of Prisoners in formulating CPA Memoran-
dum Number 2. By the same token, Amnesty has criticized the CPA for a series
of legal and policy decisions that it found inconsistent with internationally recog-
nized treaties, standards, and practices of the rule of law.
37
There is a further com-
plication here, again identified by Ernst Fraenkel in the context of the occupation
of the Rhineland: From a psychological point of view, the coexistence of two
systems of government a rule of arbitrariness and a rule of law is probably
harder to endure than an outright rule of martial law. . . if legal procedures are
presumably respected, extra-legal measures appear arbitrary and the activities of
the courts hypocritical.
38
That is, however, the situation in which the occupying
powers have found themselves.
Carl Schmitt grasped important and enduring aspects of the process of occupa-
tion: the initial and inevitable concentration of power in the hands of the occupier,
Schmitt, the Law of Occupation, and the Iraq War: Peter Stirk 535
2004 Blackwell Publishing Ltd.
the direct political relationship between occupier and occupied, and the fact that
this relationship breaks through the dualism of domestic and international law.
There his insight and relevance cease. For he had no interest in going beyond this
and asking Fraenkels question: whether it is possible to devise limitations on
military occupation analogous to those found in a constitutional state. Answering
this question is not merely a matter of more elaborate laws, international
standards, and the like, important though they are. It is essentially a political
question about the nature and distribution of power. Answering that question
requires recognizing that occupation is a form of government or rule and that it
may not be prudent, may indeed be counterproductive, to take the step to occupa-
tion intended to be a rule of law too early.
NOTES
1. Schmitt, Die Rheinlande als Objeckt internationaler Politik (1925), in Positionen und
Begriffe im Kampf mit Weimar-Genf-Versailles 19231939 (Hamburg: Hanseatische Verlagsanstalt,
1940), 26.
2. Schmitt, Glossarium. Aufzeichnungen der Jahre 19471951 (Berlin: Duncker & Humblot,
1991), 269.
3. Schmitt, Der Status Quo und der Friede, in Positionen und Begriffe im Kampf mit
Weimar-Genf-Versailles, 41. On Schmitts anti-interventionist rhetoric in general, see Peter Stirk,
Carl Schmitts Enemy and the Rhetoric of Anti-Interventionism, The European Legacy 8, no. 1
(February 2003).
4. Schmitt, Der Nomos der Erde (Berlin: Duncker & Humblot, 1997), 295.
5. Ibid., 180.
6. Ibid., 182.
7. See Andrew Arato, The Ocupation of Iraq and the Difficult Transition from Dictatorship,
Constellations 10, no. 3 (2003): 7. Arato goes on to make the important point that the destruction of
the Iraqi state may have undermined the only framework that defined an Iraqi people and hence the
ultimate source of legitimation for the sovereign dictatorship. One could add that there is some
irony in the fact that two of the states that created the Iraqi state, and hence the possibility of an Iraqi
people, in the first place may now, almost a century later, have undermined their own creation.
8. Schmitt, Nomos der Erde, 182.
9. Schmitt, Diktatur und Belagerungszustand, Zeitschrift fr die gesamte Strafrechtswis-
senschaft 38 (1917): 157. Commentators have found this piece problematic. A recent survey by
Duncan S. Kelly decsribes Schmitts logic as bizarre and quasi-Hegelian, though it is far removed
from Hegel. The State of the Political (Oxford: Oxford University Press, 2003), 177.
10. See Carl Schmitt, Die Diktatur (Berlin: Duncker & Humblot, 1964), 1934.
11. Ernst Fraenkel, Military Occupation and the Rule of Law (1944) in Gesammelte Schriften
(Baden-Baden: Nomos, 1999), 3: 211
12. Ibid., 293
13. Werner Best, Grundfragen einer deutschen Groraum-Verwaltung, in Festgabe fr
Heinrich Himmler (Darmstadt: Wittich, 1941), 367.
14. Carl Schmitt, Die Kernfrage des Vlkerbundes, Schmollers Jahrbuch 48, no, 4 (1925): 774.
15. Schmitt, Nomos der Erde.
16. This is the main theme of Agora: Future Implications of the Iraq Conflict, American
Journal of International Law 97, no. 3 (July 2003)
17. Ibid. See also, from different perspectives, Geoffrey Best, Humanity in Warfare (New
York: Columbia University Press, 1984); Eyal Benvenisti, The International Law of Occupation
536 Constellations Volume 11, Number 4, 2004
2004 Blackwell Publishing Ltd.
(Princeton: Princeton University Press, 1993); Karma Nabulsi, Traditions of War. Occupation,
Resistance and the Law (Oxford, Oxford University Press, 1999).
18. On the appropriate translation of lordre et la vie publique, see Benvenisti, The Inter-
national Law of Occupation, 7. Interestingly, David B. Rivkin Jr. and Darin B. Bartram use the old,
misleading translation, public order and safety and quote the US Army Field Manual, which has a
similar emphasis: necessity of maintaining law and order. Military Occupation: Legally Ensur-
ing a Lasting Peace, The Washington Quarterly 26, no. 3 (Summer 2003): 97.
19. Benvenisti, The International Law of Occupation, 79.
20. Rivkin and Bartram, Military Occupation, 96.
21. Ian Williams in Foreign Policy in Focus (14 May 2003) available at http://www.global-
policy.org/security/issues/iraq/attack/law/2003/0514shape.htm.
22. Benvenisti, The International Law of Occupation, 107.
23. Letter to the Security Council from the USA and UK, S/2003/538 (8 May 2003), which
avoided the term occupation.
24. See Frederic L. Kirgis, Security Council Resolution 1483 on the Rebuilding of Iraq,
ASIL Insights (May 2003).
25. Iraq: Law of Occupation, House of Commons Library Research Paper 03/51 (2 June
2003), 25. The only thing to quarrel with in this judgement is the use of if. It was clear from the
outset that they did intend to go beyond those limited rights.
26. CPA/ORD/16 May 2003/01 and CPA/ORD/23 May 2003/02. CPA regulations, orders,
and memoranda are available at http://www.cpa-iraq.org. They are cited as specified in Regulation
Number 1.
27. CPA/ORD/19 September 2003/37.
28. Benvenisti, The International Law of Occupation, 916.
29. Even prior to the invasion there was an interesting and vehement rejection of the anology
with Japan by specialists of the occupation of that country. See http://communication.ucsd.edu/911/
japan.html
30. Quoted in Jordan J. Paust, The U.S. as Occupying Power Over Portions of Iraq and
Relevant Responsibilities Under the Laws of War, ASIL Insights (April 2003).
31. Rivkin and Bartram, Military Occupation, 95 and 97. The italics are mine.
32. CPA/REG/16 May 2003/01.
33. Fraenkel, Military Occupation and the Rule of Law, 298.
34. CPA/REG/13 July 2003/06. The International Crisis Group suggests decoupling these
two tasks. See International Crisis Group, Iraqs Constitutional Challenge, IGC Middle East Report
No. 19 (13 November 2003), 1925.
35. S/RES/1511 (2003), 16 October 2003.
36. Fraenkel, Military Occupation and the Rule of Law, 298.
37. Amnesty International, Iraq. Memorandum on Concerns Relating to the Rule of Law,
MDE 14/157/2003 (23 July 2003). See also the later Iraq. Memorandum on Concerns Related to
Legislation Introduced by the Coalition Provisional Authority. MDE 14/176/2003 (4 December
2003).
38. Fraenkel, Military Occupation and the Rule of Law, 244.
Peter Stirk is Senior Lecturer in the Department of Politics, School of Govern-
ment and International Affairs, University of Durham. His publications include
Critical Theory: Politics and Society (2000).

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