The Occupation of Iraq

Abstract

This paper addresses an aspect of the 2003-2004 Iraq war that was central to American foreign policy but, to date, has been almost wholly ignored as a legal question. This is the program of reform and reconstruction undertaken by the Coalition Provisional Authority (CPA), the US civil administration in Iraq. The CPA changed virtually every aspect of Iraqi public law, abolishing many institutions, creating new ones and introducing areas of regulation (such as anti-corruption) previously unknown in the Iraqi legal system. The reforms were the very antithesis of what is usually understood as a central obligation of occupying powers: to preserve existing laws and institutions to the extent possible. Sweeping legislative action of the kind undertaken by the CPA is generally reserved for the indigenous government that returns to power at the end of the occupation. An occupier is a de facto but not a de jure sovereign. To hold otherwise, most writers say, would border on allowing an occupier to annex the territory and assume all the law-making powers of a legitimate government. The paper asks whether an accommodation is possible between these two compelling imperatives: to reform a society in which many laws and institutions lag far behind international standards, but also to preserve the ability of Iraqis to make fundamental decisions about their political and economic institutions for themselves. It examines a series of justifications for the reforms, some of which seek an accommodation with occupation law and some that challenge its central premises. The article concludes that only the core of human rights-related reforms can be justified.