Iraq, the End of Occupation

N.B. As per the disclaimer, neither the ICRC nor the authors can be identified with the opinions expressed in the Cases and Documents. Some cases even come to solutions that clearly violate IHL. They are nevertheless worthy of discussion, if only to raise a challenge to display more humanity in armed conflicts. Similarly, in some of the texts used in the case studies, the facts may not always be proven; nevertheless, they have been selected because they highlight interesting IHL issues and are thus published for didactic purposes.

[Source: United Nations Security Council Resolution 1546 (2004), 8 June 2004, and Annex, Letter of US Secretary of State Colin Powell to the UN Security Council, available on: www.un.org/documents/scres.htm]

UN Security Council Resolution 1546 (2004)

The Security Council,

Welcoming the beginning of a new phase in Iraq’s transition to a democratically elected government, and looking forward to the end of the occupation and the assumption of full responsibility and authority by a fully sovereign and independent Interim Government of Iraq by 30 June 2004, [...]

Reaffirming the independence, sovereignty, unity, and territorial integrity of Iraq, [...]

Welcoming the efforts of the Special Adviser to the Secretary-General to assist the people of Iraq in achieving the formation of the Interim Government of Iraq, as set out in the letter of the Secretary-General of 7 June 2004 (S/2004/461),

Taking note of the dissolution of the Governing Council of Iraq, and welcoming the progress made in implementing the arrangements for Iraq’s political transition referred to in resolution 1511 (2003) of 16 October 2003, [...]

Recalling the establishment of the United Nations Assistance Mission for Iraq (UNAMI) on 14 August 2003, and affirming that the United Nations should play a leading role in assisting the Iraqi people and government in the formation of institutions for representative government, [...]

Recognizing the request conveyed in the letter of 5 June 2004 from the Prime Minister of the Interim Government of Iraq to the President of the Council, which is annexed to this resolution, to retain the presence of the multinational force,

Recognizing also the importance of the consent of the sovereign Government of Iraq for the presence of the multinational force and of close coordination between the multinational force and that government, [...]

Noting the commitment of all forces promoting the maintenance of security and stability in Iraq to act in accordance with international law, including obligations under international humanitarian law, and to cooperate with relevant international organizations, [...]

Acting under Chapter VII of the Charter of the United Nations,

1. Endorses the formation of a sovereign Interim Government of Iraq, as presented on 1 June 2004, which will assume full responsibility and authority by 30 June 2004 for governing Iraq while refraining from taking any actions affecting Iraq’s destiny beyond the limited interim period until an elected Transitional Government of Iraq assumes office as envisaged in paragraph four below;

2. Welcomes that, also by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty;

3. Reaffirms the right of the Iraqi people freely to determine their own political future and to exercise full authority and control over their financial and natural resources;

4. Endorses the proposed timetable for Iraq’s political transition to democratic government including:

(a)  formation of the sovereign Interim Government of Iraq that will assume governing responsibility and authority by 30 June 2004;

(b)  convening of a national conference reflecting the diversity of Iraqi society; and

(c)  holding of direct democratic elections by 31 December 2004 if possible, and in no case later than 31 January 2005, to a Transitional National Assembly, which will, inter alia, have responsibility for forming a Transitional Government of Iraq and drafting a permanent constitution for Iraq leading to a constitutionally elected government by 31 December 2005; [...]

9. Notes that the presence of the multinational force in Iraq is at the request of the incoming Interim Government of Iraq and therefore reaffirms the authorization for the multinational force under unified command established under resolution 1511 (2003), having regard to the letters annexed to this resolution;

10. Decides that the multinational force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism, [...]

12. Decides further that the mandate for the multinational force shall be reviewed at the request of the Government of Iraq or twelve months from the date of this resolution, and that this mandate shall expire upon the completion of the political process set out in paragraph four above, and declares that it will terminate this mandate earlier if requested by the Government of Iraq; [...]

24. Notes that, upon dissolution of the Coalition Provisional Authority, the funds in the Development Fund for Iraq shall be disbursed solely at the direction of the Government of Iraq, and decides that the Development Fund for Iraq shall be utilized in a transparent and equitable manner and through the Iraqi budget including to satisfy outstanding obligations against the Development Fund for Iraq, that the arrangements for the depositing of proceeds from export sales of petroleum, petroleum products, and natural gas established in paragraph 20 of resolution 1483 (2003) shall continue to apply, that the International Advisory and Monitoring Board shall continue its activities in monitoring the Development Fund for Iraq and shall include as an additional full voting member a duly qualified individual designated by the Government of Iraq and that appropriate arrangements shall be made for the continuation of deposits of the proceeds referred to in paragraph 21 of resolution 1483 (2003);

[...].

Annex

[...]

Letter of Secretary of State Colin Powell to the UN Security Council

The Secretary of State

Washington

5 June 2004

Excellency:

Recognizing the request of the government of Iraq for the continued presence of the Multi-National Force (MNF) in Iraq [...] I am writing to confirm that the MNF under unified command is prepared to continue to contribute to the maintenance of security in Iraq, including by preventing and deterring terrorism and protecting the territory of Iraq. [...]

Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. [...]

In order to continue to contribute to security, the MNF must continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission, and in which the contributing states have responsibility for exercising jurisdiction over their personnel and which will ensure arrangements for, and use of assets by, the MNF. The existing framework governing these matters is sufficient for these purposes. In addition, the forces that make up the MNF are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions.

[...]

Sincerely,

(Signed) Colin L. Powell

1. 1. Did the occupation of Iraq by Coalition forces end on 30 June 2004? On what basis? (HR, Art. 42; GC IV, Arts 6 and 47)
   2. May the end of an occupation depend on a determination by the UN Security Council, or only on the facts on the ground? May the UN Security Council absolve an occupying power of its IHL obligations although Convention IV would continue to apply according to the facts on the ground? (HR, Art. 42; GC IV, Arts 2, 6 and 47)
2. Is it conceivable that if Iraq is no longer an occupied territory, other parts of Convention IV continue to apply? (GC IV, Part II)
3. What law applies to the troops of the multinational force in Iraq following the end of the occupation? What are the obligations of the multinational force after 30 June 2004? If they arrest Iraqis? If fighting erupts between those troops and Iraqi insurgents or terrorists? (GC I-IV, Arts 2 and 3; GC IV, Art. 6(4))
4. What is the impact of the consent of the Iraqi Interim Government to the presence of the multinational force on the legal status of that force? What is the impact on its obligations? (GC IV, Arts 7 and 47)
5. Why is the Iraqi Interim Government not merely a different local authority that would entail application of Art. 47 of GC IV?
6. Is progressively handing over responsibility for security sufficient to end an occupation?
7. Did Security Council Resolution 1546 give Iraq full economic sovereignty?