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Carl Schmitt, The Law of Occupations, and The Iraq War - Peter Stirk
Carl Schmitt, The Law of Occupations, and The Iraq War - Peter Stirk
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Schmitt, the Law of Occupation, and the Iraq War: Peter Stirk
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This image of undifferentiated power recurs throughout Schmitts work, sometimes breaking through other key distinctions, including that between commisarial 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 general traits were identified in a substantial study of the occupation of the Rhineland
by Ernst Fraenkel. According to Fraenkel, Occupation represents not a constitutional government characterised by a balance of powers but rather a sort of emergency 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
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In other words, the occupied population is subject to the holder of undifferentiated power without even the protection afforded to it indirectly by pure international 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
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531
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 coalition 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 neoconservative agenda. Finally, citation of civilian casualties and the transgressions of
international law by coalition soldiers implicitly or explicitly leads to the suggestion 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 implications 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 associated 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 significantly 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 territory 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 requirement 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 convenient for the another purpose, namely to exclude demands from occupied populations 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
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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 occupation 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 government 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 invasion, 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
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Schmitt, the Law of Occupation, and the Iraq War: Peter Stirk
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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 subjugation, 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 reality. Again the complication was bound up with the desire to legitimate the invasion. 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 General 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 contradiction 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 exacerbated 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 relevant U.N. Security Council resolutions, including Resolution 1483 (2003), and
the laws and usages of war. This authority shall be exercised by the CPA Administrator.32 At this point it is less commitment to certain rules that matters than the
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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 occupation 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 Strafrechtswissenschaft 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
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(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 International 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 Ensuring 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.globalpolicy.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 Government and International Affairs, University of Durham. His publications include
Critical Theory: Politics and Society (2000).