Proposal: The U.N. Post-Conflict Criminal Justice Reform Project

摘要

As Operation Iraqi Freedom developed into an occupation in early 2003, U.S. commanders reached a unanimous conclusion: Iraq possessed ' No effective rule of law or functional legal system based on proper legal procedures, human rights, or commercial codes.' U.S. military commanders felt compelled to correct or reform the Iraqi criminal justice system for several reasons. But their efforts to implement a variety of reforms met with almost immediate questions about the legality of those reform efforts. The existence of the divergent results reached by applying international humanitarian law, international human rights law, and United Nations Security Council Resolution 1483 to the U.S. occupation of Iraq leads some commentators to declare the law of belligerent occupation dead. Declaring the law of belligerent occupation dead, however, over-dramatizes the unsettled state of contemporary international law. States and international law practitioners should instead simply recognize that international humanitarian law, once the lone regulator of international armed conflict and belligerent occupation, now finds itself in a field occupied also by international human rights law and the actions of the U.N. Security Council. Rather than marginalizing the international humanitarian law of belligerent occupation because of its perceived irrelevance, the international legal system should instead develop an ordering principle to bring harmony to the discordant results of the three competing legal regimes. This paper proposes a new initiative, the U.N. Post-Conflict Criminal Justice Reform Project. Minor reforms to the structure and function of the United Nations could provide the ordering principle that would reconcile the contradictory text of the three competing legal regimes present in the field of belligerent occupation. U.N. reform would also preserve the essential principles upon which each source of international law is based.