Who’s Got the Title? or, The Remnants of Debellatio in Post-Invasion Iraq

Introduction*

The invasion of Iraq by the British and U.S.-led Coalition forces in March 2003 silently effected debellatio, the ancient doctrine by which a military victor takes title to territory in which the defeated government has ceased to function. The Coalition governments’ failure to recognize it as such and to invoke the attendant legal consequences enabled destructive chaos on the ground and created a troubling precedent for the application of international law to any future exercise of one sovereign state’s authority within the geographical boundaries of another sovereign state. The Coalition forces ostensibly acted pursuant to the international law of occupation, but the legal framework ultimately agreed upon and actually utilized in post-invasion Iraq more closely resembles debellatio. Though this doctrine traditionally is associated with conquest and annexation, it need not be; as updated by modern ideas of self-determination and what I call “sovereign identity,” it is in fact the extant doctrine most consistent with the factual and legal situation caused by the invasion.

In what was perhaps an understandable bid to constrain U.S. and British power, the United Nations labeled the Coalition “occupying powers,” thereby invoking the body of international occupation law traditionally applicable only to foreign authorities assuming “temporary managerial powers” over another sovereign’s territory during which “limited period” the foreign force may not “bring about by itself a valid transfer of authority.” The application of this body of law to the Coalition presence in Iraq was a poor choice, however, given the Coalition’s nation-building aspirations and may have stemmed in part from a perceived unavailability of any other plausible body of international law, given scholarly assertions that debellatio, the international legal doctrine that best fits the factual and legal situations existing after the Coalition’s invasion, was defunct. This Note argues that occupation law is fundamentally inconsistent with the Coalition’s post-invasion exercise of power within Iraq and that, as contextualized within the modern regime of human rights law, a modern doctrine of debellatio much better comports with the Coalition’s authority in post-invasion Iraq.

In Part I of this Note, I explain why occupation law is poorly tailored to nation-building and highlight some of the consequences of its application in Iraq for the occupiers, the occupied, and the evolution of occupation doctrine. In Part II, I make a case for the legal viability of a modern doctrine of debellatio consistent with both the right of a people to self-determination and the idea that sovereignty may not be taken by force. In Part III, I argue that the legal framework under which the Coalition Provisional Authority (“CPA”) actually operated through the chaotic post-invasion phase that created further divisions among the Iraqi people is something more than traditional occupation law but something much less than the ancient tradition of annexation via debellatio; it is a legal framework best supported by a modern doctrine of debellatio that allows the occupier to take contingent, temporary title to the territory in which the vanquished government formerly operated. Finally, in Part IV, I outline the advantages of acknowledging a modern doctrine of debellatio.

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