The following is an archived copy of a message sent to a Discussion List run by the Campaign Against Sanctions on Iraq.
Views expressed in this archived message are those of the author, not of the Campaign Against Sanctions on Iraq.
[Main archive index/search] [List information] [Campaign Against Sanctions on Iraq Homepage]
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 __________________________________________________ Do you Yahoo!? The New Yahoo! Search - Faster. Easier. Bingo http://search.yahoo.com _______________________________________________ Sent via the discussion list of the Campaign Against Sanctions on Iraq. To unsubscribe, visit http://lists.casi.org.uk/mailman/listinfo/casi-discuss To contact the list manager, email firstname.lastname@example.org All postings are archived on CASI's website: http://www.casi.org.uk