Subject and Bond: International Law of Belligerent Occupation and the Administrator of the Coalition Provisional Authority of Occupied Iraq

In the wake of the occupation of Iraq, 2003–2004, scholars of international law took a new interest in the field of international law of belligerent occupation. In focus were the many failures of the occupation powers and their administration in Iraq – the Coalition Provisional Authority (CPA) – to deliver, not the least in terms of international law.
Focusing on the administrator of the CPA, this study formulates and responds to the question: how can we explain that the administrator of the CPA did not fully and correctly respond to international law of belligerent occupation?
In contrast to contemporary understandings of the problem – which responds to ‘failure’ by proscribing further detailed enumerations of international law of belligerent occupation – this study points to the process through which the administrator – a subject of that law – were construed in a mutual bond to international law of belligerent occupation, and related law and policy. That bond, the study argues, circumscribes and holds the subject to the law. Yet, the bond goes two ways: the subject can, as it were, ‘speak back’ at law. In doing so the subject reconfigures and disrupts law such as we, as international legal scholars, thought we knew it.
Where other studies have concluded that the CPA, and its administrator, failed to fully and correctly respond to international law of belligerent occupation, this study finds that the process of the administrator’s subject-formation enabled it to pursue a particular position in international law of belligerent occupation: the Lieber Code position. That position responds to contemporary orthodox understandings of the law, while it also draws on – and re-introduces – earlier, US specific, historical, sources and experiences of the law of belligerent occupation, predating its European codification as part of international humanitarian law. The US Union Army Lieber Code, of 1863, which regulated belligerent occupation within the framework of American civil war, making irrelevant the question of sovereignty, thus reappeared during the occupation of Iraq, in the CPA administrator’s declarations of its legal authority and capacity as the legislator of Iraq. The result being a far-ranging transformative occupation. Rather than failing to heed to international law of belligerent occupation, the administrator of the CPA, in this way, reconfigured and disrupted international law of belligerent occupation through recourse to its own history, as part of national law, use and experience.
The main motivation and aim of the study is to critically engage with the field of international law of belligerent occupation, and scholarly debates related to it, as well as with the occupation of Iraq, 2003–2004, in order to say something about the fundamental processes and structures of that field of law. As such it is a reinterpretation of an established field of law, and the ways in which that field engages with its particular problems. The methodological and theoretical engagement of the study – informed by the scholarships of Judith Butler, Jean Laplanche, and Jacques Derrida – is an attempt to explore, in an original way, and point to, the relevance of interdisciplinary within international legal studies and jurisprudence.