Legislation and Maintenance of Public Order and Civil Life by Occupying Powers

Abstract

Article 43 of the 1907 Hague Regulations is a key provision of the law of belligerent occupation. This essay examines how it has been understood by states and scholars, how it was developed by the Fourth Geneva Convention of 1949 and whether and how it was respected by the US and the UK during their recent occupation of Iraq. Under Article 43, an occupying power must restore and maintain public order and civil life, including public welfare, in an occupied territory. Local legislation and institutions based upon such legislation must be respected by an occupying power and by any local authorities acting under the global control of the occupying power. This general prohibition to change the local legislation also applies to post-conflict reconstruction efforts, including constitutional reforms, and changes of economic and social policies. The author examines the exceptions to the prohibition and assesses whether the widespread legislative activities by the occupying powers in Iraq fall under these exceptions. He then analyses the question of whether the law of military occupation ceased to apply in Iraq on 30 June 2004. It is also suggested that Article 43 applies to some peace operations and provides a useful framework even for those peace operations to which it does not formally apply.

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