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[casi] FW: International law places demands on occupier




http://www.sunspot.net/news/nationworld/iraq/bal-te.occupation18apr18,0,3382917.story?coll=bal%2Dnews%2Dnation

U.S. victory has steep price in maintaining safe Iraq
peace
International law places demands on occupier
------------------------------------------------------By
Robert Little
Sun National Staff
Originally published April 18, 2003


WASHINGTON - As their soldiers police Baghdad and
their engineers grapple with the city's failing water
and electrical systems, American military officials in
Iraq are acting out of more than simply humanitarian
good will - they are required to repair the country
under international law.

According to well-established treaties that the United
States has long upheld, the invading American forces
must restore and maintain order in Iraq. And that is
only the beginning of the reparative responsibilities
of a foreign occupying power.

If Iraqi citizens need food and medicine, the United
States must get it for them. If orphans need an
education, the United States must provide it. If
anyone in Iraq needs books or supplies to practice
their religion, American forces have an obligation to
help gather and distribute them.

The laws of occupation are so demanding that some
legal scholars think they are a disincentive for
American officials to declare a formal end to the war.
Once the United States' status as an occupier is
established it not only inherits Iraq's humanitarian
and peacekeeping needs but also faces new obstacles in
its effort to find or kill Saddam Hussein. He is a
military target as long as the war continues, but
becomes a "protected person" during a military
occupation, subject to criminal prosecution but not to
assaults by Special Forces or 2,000-pound bombs.

"It's harder for us to kill Saddam Hussein if we're
[an occupying power] because then he has protection,"
said John B. Quigley, a professor of international law
at Ohio State University. "I've suspected that is one
reason why we've been reluctant to declare that the
war is over. As long as there's still hostility we can
say he's an enemy and go after him."

The laws of occupation carry little legal punch,
because the United States does not recognize the
International Criminal Court that most likely would be
called on to enforce them.

But as an occupying force, the United States is
nonetheless responsible for virtually every facet of
Iraq's civil administration, according to
long-accepted treaties that have been incorporated
into this country's own laws and guidelines for war.

"[Gen.] Tommy Franks can't just call off the fighting
and then sit on his hands while people need food and
medical supplies," said University of Houston law
professor Jordan J. Paust, referring to the top U.S.
commander in Iraq. "That would be dereliction of duty,
with possible criminal consequences.

"I don't mean to say that has happened, but it is
something that has to be taken seriously. I can assure
you that the Pentagon knows to take it seriously."

The United States has long been a party to two groups
of international treaties - the Hague Conventions of
1907 and the Geneva Conventions of 1949 - that form
the basis for a general law of war that is recognized
throughout the world. The U.S. Army's "Law of Land
Warfare," first published in 1956 and still in effect,
is essentially a compilation of the Hague and Geneva
conventions.

Most of the laws are designed to protect prisoners and
civilians while a war is raging, but they impose
specific responsibilities on an invading army that has
seized control of enemy territory and assumed the role
of "belligerent occupant."

Foremost, the occupying army must assure that the
basic humanitarian needs of the population are met,
either by bringing in food and medicine or by handing
over that function to an aid organization. It must
also do its best to restore public order.

And the obligations go on. The occupying army must
respect citizens' rights to family life and religious
freedom, and it must enforce criminal laws and ensure
that a judicial system is functioning. No government
or public buildings can be destroyed without a
specific military purpose; no private property can be
seized unless a receipt is issued and compensation is
promised and, ultimately, paid.

"It's a very serious obligation,"

said Quigley. "When you take over a country, and
eliminate whatever controlling authority existed
there, you have a responsibility to make sure things
are decent, that the people's basic needs are met."

The occupying forces can restrict the movement of
citizens, regulate commercial business, seize and
operate public transportation and censor newspapers
and broadcast stations, according to the United
States' interpretations of international law. It can
collect taxes, create a new currency system and
operate government revenue sources - like the Iraqi
oil wells - to pay for the costs of occupation.

Some legal experts think the United States has already
violated international law by not preventing Iraqis
from looting banks and shops and destroying government
buildings and historical artifacts. According to the
Hague conventions, an occupying force "shall take all
the measures in his power to restore, and ensure, as
far as possible, public order and safety."

American military officials say they tried to prevent
some of the recent looting, and that military battles
prevented them from assigning troops to policing
roles.

Defense Secretary Donald H. Rumsfeld described the
looting in Baghdad as "an unfortunate thing" during a
Pentagon briefing this week, but said American forces
were too involved in combat to stop it. "To the extent
it can be stopped, it should be stopped," he said. "To
the extent it happens in a war zone, it's difficult to
stop."

Added Air Force Gen. Richard B. Myers, chairman of the
Joint Chiefs of Staff: "When some of that looting was
going on, people were being killed, people were being
wounded. ... So I think it's, as much as anything
else, a matter of priorities."

The laws of occupation, however, make no exception for
"the mere existence of local resistance groups."

"There's a strict duty here - the Pentagon had a
responsibility to do something about the looting of
Baghdad, and it didn't," said Francis A. Boyle, a
professor at the University of Illinois College of
Law. "Basically, we're now responsible for the entire
country of Iraq and all of its 25 million residents.
Somebody should have given the order to stop the
looting and protect those buildings."

But international laws are subject to broad
interpretation, and other legal authorities do not
find fault with the United States' behavior in the
war.

"The law doesn't say you have to have 20,000 trained
MPs who come in right behind you. That's ridiculous,"
said Eugene R. Fidell, a lawyer specializing in
military law and president of the National Institute
of Military Justice in Washington. "I don't know of
any authority for the proposition that you have to
prepare yourself for a premature collapse of your
adversary."

The U.S. military's position on the laws of occupation
seems to be that it has not formally made the
transition from invading force to occupying power, and
so the laws don't apply, at least not yet. Brig. Gen.
Vincent Brooks, a spokesman for the U.S. Central
Command, said this week: "We're still a liberating
force, and that's how we're approaching our
operations. The final legalistic declarations we make
will be forthcoming in the next several days."

But "liberating force" is not a legal designation, and
many legal scholars say the United States already
meets the legal definition of "belligerent occupant."
The United States' peacekeeping responsibilities
kicked in the moment Hussein fell from power, they
say, regardless of whether those responsibilities were
militarily convenient.

"It makes sense that the military would not be all
that interested in moving into that role right away.
It's a big responsibility," said Boyle. "But there's
no question that we are now a belligerent occupant of
that country, whether we choose to acknowledge it or
not. We have an obligation to ensure that the
indigenous Iraqi civilians can carry on with their
lives."


Copyright  2003, The Baltimore Sun



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