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The international law and practice of occupation between transformation and preservation: the occupation of Iraq and the American Lieber Code

Konferensbidrag (offentliggjort, men ej förlagsutgivet)
Författare Matilda Arvidsson
Publicerad i 50 Years after 1967: Evaluating the Past, Present and Future of of the Law of Belligerent Occupation: Conference Papers
Publiceringsår 2017
Publicerad vid Juridiska institutionen
Språk en
Länkar en.law.huji.ac.il/event/50-years-af...
Ämnesord The International Law of Belligerent Occupation, the occupation of Iraq, the Lieber Code, the Coalition Provisional Authority, history of international law, international humanitarian law
Ämneskategorier Folkrätt


Contrary to the common understanding that transformative occupations are innovations of our own times contemporary scholars of international law and history have pointed to the historical, interdependent, and continuant prevalence of transformation and preservation as key legal notions and practices during occupations (Bhuta 2005; Benvenisti 2012; Stirk 2009; Arvidsson 2016). The techniques, sources, and arguments through which the relation between the two notions and practices have been worked out and put to action have, however, shifted over time and in relation to the specific context of each occupation. This paper departs from the occupation of Iraq 2003–2004 and asks about the use of the American General Orders no. 100 of 1863, known as the Lieber Code, as a way to consider the encounter between the past and the present of transformation and preservation in the laws and practices of occupation. The Lieber Code was drafted for the purpose the American Civil War and, as Helen Kinsella has noted, has been put to contemporary use almost exclusive within the context of international armed conflicts (as opposed to non-international armed conflicts) (Kinsella 2011). Drawing on the recent turn to history in international law (Craven et al 2007; Fassbender & Peters 2012; Orford 2017) the paper aims to explore the problems and potentials of turning to the laws and practices of the past (in this case the Lieber Code) in order to consider the conditions of law, war, and occupation in our own present time. How and to which effects did the Lieber Code enter into legal argument and practice during the war and occupation of Iraq, and what can we learn from it for the purpose of thinking about our current conditions? The paper identifies the use of the Lieber Code within the US administration as well as within the Coalition Provisional Authority (CPA) of Iraq. In particular, the paper attends to the ways in which the Lieber Code figures in US and CPA legal memos concerning the laws and practice of occupation, as well as in the Regulations, Orders, and Memoranda through which the CPA reconfigured the legal, political, and economic fabric of Iraq. The Lieber Code, the paper contends, was used as a source that exceeded (or rather, through which the administrations sought to exceed) contemporary IHL, invoked as part of an US “national common law of war” (Ohlin 2016), and as conveying “the laws and usages of war” (Arvidsson 2017). The recourse to the Lieber Code sought to underpin the exceedingly transformative occupation as lawful, and it served to de-emphasize the status quo principle. Based on the Lieber Code’s configuration of occupation (predating the modern IHL distinction between international and non-international armed conflicts, and specifically designed to cater to the idea that occupation of enemy territory does not include recognition of that territory or the enemy as sovereign) its formulations and previous uses allowed for a legal oscillation by the occupying powers in Iraq between, on the one hand, a strict separation between the sovereignty of the occupying power and that of the occupying people and territory (as reflected in contemporary IHL), and, on the other hand, the understanding of occupied territory and people as always-already within the sovereign jurisdiction of the occupying power (as reflected in the Lieber Code’s terminology and usage). Besides the criticism that may be raised against the use of the Lieber Code and the transformative measures pursued during the specific case of the occupation of Iraq, the Lieber Code’s “resurfacing” as a historical source of law in the contemporary law and practice of occupation raises questions and concerns of a more general kind. The analysis in this paper alerts us to the method through which the use of international law’s language in the past is anachronistically made into authoritative precedents and arguments in the present (Orford 2017); it further suggests that laws and legal configurations discarded in the name of “progression” may offer new analytic insights in our present times of insecurity, war, law and occupation. The example of the Lieber Code during the war and occupation of Iraq shows us, this paper argues, that “old” solutions to our present concerns may offer new frames of understanding and responding to the present. Yet, as the case of Iraq also shows, “old solutions”, or the recourse to laws and practices from the past, may also be as inadequate and damaging as “more” nor “new” laws as a prescription to the international problems we experience, at least so when pursued as a politics of furthering global unequal relations through the auspice of law. References Arvidsson, M. (2017). The Subject in International Law: The Administrator of the Coalition Provisional Authority of Occupied Iraq and its Laws. Unpublished dissertation. Arvidsson, M. (2016). ‘From teleology to eschatology: The katechon and the political theology of the international law of belligerent occupation’. In The Contemporary Relevance of Carl Schmitt: Law, Politics, Theology, eds. Arvidsson, Brännström, and Minkkinen, 223–36. London: Routledge. Craven, M. et al, eds. (2007) Time, History and International Law. Leiden and Boston: Martinus Nijhoff Publishers. Benvenisti, E. (2012). The International Law of Occupation, 2nd ed. Oxford: Oxford University Press. Bhuta, N. (2005). ‘The Antinomies of Transformative Occupation’. European Journal of International Law 16 (4): 721–40. Kinsella, H. (2011). The Image before the Weapon: A Critical History of the Distinction between Combatant and Civilian. Ithaca: Cornell University Press. Fassbender B. & Peters, A. eds. (2012). The Oxford Handbook of the History International Law (Oxford: Oxford University Press. Ohlin, D. (2016). ‘The Common Law of War’. Cornell Law School Legal Studies Research Papers Series, no 15–16. Orford, A. (2017). ‘International Law and the Limits of History’. In The Law of International Lawyers: Reading Martti Koskenniemi, eds. Wouter Werner, Marieke de Hoon, and Alexis Galán. Cambridge: Cambridge University Press. Stirk, P. (2009). The Politics of Military Occupation. Edinburgh: Edinburgh University Press.

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