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

Article 43 of the 1907 Hague Regulations is a key provisionof the law of belligerent occupation. This essay examines howit has been understood by states and scholars, how it was developedby the Fourth Geneva Convention of 1949 and whether and howit was respected by the US and the UK during their recent occupationof Iraq. Under Article 43, an occupying power must restore andmaintain public order and civil life, including public welfare,in an occupied territory. Local legislation and institutionsbased upon such legislation must be respected by an occupyingpower and by any local authorities acting under the global controlof the occupying power. This general prohibition to change thelocal legislation also applies to post-conflict reconstructionefforts, including constitutional reforms, and changes of economicand social policies. The author examines the exceptions to theprohibition and assesses whether the widespread legislativeactivities by the occupying powers in Iraq fall under theseexceptions. He then analyses the question of whether the lawof military occupation ceased to apply in Iraq on 30 June 2004.It is also suggested that Article 43 applies to some peace operationsand provides a useful framework even for those peace operationsto which it does not formally apply.