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[casi] Iraq Occ: What International Law Requires Now


Professor Mary Ellen O'Connell
Moritz School of Law, Ohio State University

JURIST Guest Columnist

International lawyers around the world advised their governments on March 19
that the US-led invasion of Iraq was in violation of fundamental
international law.[1] Following similar law violations by the US in the
past, governments typically registered their condemnation by votes in the UN
General Assembly. But Iraq is different and governments will face more, and
more complicated, decisions in its aftermath.

Two features distinguish this invasion: Iraq has considerably more assets
outside US control than has been the case in the past, and the US policy
behind the invasion, the doctrine of preemptive force, challenges the
international legal system in a way the US has never before attempted.

These features will create greater demands on states and organizations to
consider their legal obligations in reacting to the invasion. Current
obligations include the following: First, if states wish to preserve the
current restrictions on the use of force, they will not condone the
invasion, even while they condemn Saddam Hussein's criminal acts and failure
to comply with UN Security Council mandates. Second, the United Nations can
legitimately administer Iraq, not the representatives of an unlawful
occupying power. For the UN to administer, the Security Council must
authorize it to do so in a new resolution. Ideally, the Council would also
authorize a major peacekeeping and police force from states that did not
take part in the war. The precedents for these steps are found in the
examples of Cambodia, Bosnia, East Timor, Kosovo, and Afghanistan.

Pending a handover to the UN - or if the US and UK refuse to hand over the
administration - the US and UK will remain the belligerent occupiers of
Iraq. As such, their conduct is governed principally by the Geneva
Conventions and the Hague Regulations.[2] (Yes, the same law Secretary
Rumsfeld recently invoked on behalf of coalition forces.) This law requires
that the occupying power maintain law and order. HR, art. 43. It requires
the occupant to secure the basic human needs of the population. GCIV arts.
55 & 56. Drafters of the Geneva Conventions expected occupations to end
within 12 months of the close of hostilities. GCIV, art. 6. Local law may
not be changed unless necessary for compelling security reasons (HR, art.
43, GCIV, art. 64) or if it violates international human rights
standards-which most agree means eliminating the Iraqi death penalty.
Occupants are required to manage resources under the law of usufruct. HR,
art. 55. That law calls for managing resources so as to prevent waste. If
profits accrue from such management, they may be used to pay for the
occupying power's costs for local administration. An occupying power may not
enrich itself from the occupied territory's resources. With particular
relevance to Iraq, the United States has taken the position in the past that
an occupant may not award new oil development concessions.[3]

International law generally requires that a state using force unlawfully
should pay reparations for the damage caused. Iraq has paid billions of
dollars to Kuwait and others for its unlawful invasion in 1990.[4] The same
rule requires the US, UK and other members of the coalition to pay for the
damage they have caused in Iraq.[5]

Neither the UN nor the International Financial Institutions have assisted
Iraq in paying for its unlawful action. They are governed by the same
principles with respect to the coalition. The UN currently controls Iraqi
oil revenues. Given the widely-held conclusion that the invasion was
unlawful, the better approach for the UN is not to turn control of Iraqi
revenues over to the occupants. Oil revenues may be spent for immediate
humanitarian assistance, distributed through neutral channels. Any Iraqi
revenues beyond those needed for basic humanitarian assistance, should be
conserved by the UN for the future. At the point when it is clear that
Iraqis have created their own government and the occupiers have left, Iraqi
resources may be turned over to Iraq. The same is true of Iraqi assets
outside the country. The example of Kuwait following the Iraqi invasion
provides a recent precedent.

The example of Kuwait also shows that an unlawful belligerent occupant has
no legal authority to make international agreements for Iraq on debts or any
other matters. International law requires that such agreements be treated as
nullities. Similarly, no representative of an Iraqi occupation regime can
have a seat in the UN or other international organizations.

Some US and British authorities are and have been well aware of the
complicated legal problems resulting from invading Iraq without Security
Council authorization. The strenuous efforts to get authorization before the
invasion and the attempt to justify the invasion on some legal basis
afterward indicate as much.[6] These authorities took international law
seriously-in contrast to some other US officials. Governments' decisions now
in confronting the legal issues may well weigh in the balance regarding
which officials will lead US foreign policy in the future.

Government decisions will definitely have an impact on the future
international law governing the use of force. Making decisions in support of
international law will not necessarily be easy. The US is likely to pressure
governments to recognize its personnel-American and Iraqi-as the legitimate
authorities of Iraq. Responding to this pressure will be part of a choice by
the international community between maintaining the current system of
international law and tolerating the neo-conservative policies that
contradict international law, seen most concretely in the Bush Doctrine of
preemptive force.

The Bush Doctrine is at the root of the decision to invade Iraq without
Security Council authorization. It is evident again in the US decision to
cut Syrian oil purchases from Iraq and in the interest in using armed force
against Syria.[7] US officials are attempting to justify forceful action
against Syria arguing the country has chemical weapons and may be harboring
Iraqis. Syria is not a party to the Chemical Weapons Convention.[8] It may
have a customary law obligation not to possess chemical weapons. It may also
have a duty to try or extradite persons accused of serious human rights
abuse-though it may not turn those persons over to an unlawful occupation
regime. In the case of either possible obligation, international law
prohibits the use of armed force for enforcement. Armed force is permitted
only in self-defense to an armed attack (UN Charter, art. 51) or with
Security Council authorization (UN Charter, art. 42).

Sanctions like cutting off oil to Syria are known as countermeasures in
international law.[9] The US might be able to cancel its own contracts with
Syria or terminate its own treaties if it can show that Syria has violated
an international law obligation owed to the US with respect to either
weapons or accused persons. The US must first demand that Syria remedy the
violation. Here the US is canceling Iraqi contracts with Syria where Syria
denies that it has committed any wrong under international law at all, let
alone violations that injure the United States.

Thus, the policy toward Syria is building on the unlawful policy toward Iraq
Resisting these policies to keep core international law viable will require
that states and organizations respond consistently with their own
international law obligations. States have joined in acting collectively
without the US in recent years to promote the international rule of law - in
the Landmines Convention, the Kyoto Protocol and the International Criminal
Court. Doing so again will be in the interest of all states, including the
US itself, and would help preserve the international rule of law. And it is
not in the end requiring much of the United States - just to work with the
UN as the legitimate administrator of Iraq.

[1] Anne-Marie Slaughter, during her Presidential address to the Annual
Meeting of the American Society of International Law on Thursday, April 3,
2003, Omni Shoreham Hotel, Washington, D.C., estimated that eight out of ten
international lawyers have concluded the invasion of Iraq was unlawful. Many
indicators support her estimate. Many international lawyers would have been
influenced by Secretary General Kofi Annan's statement ten days before the
invasion that force in Iraq without Security Council authorization would
violate the Charter. Patrick E. Tyler & Felicity Barringer, Annan Says U.S.
Will Violate Charter if It Acts Without Approval, NY Times, Mar. 11, 2003,
at A8.

[2] Geneva Convention Relative to the Protection of Civilian Persons in Time
of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GCIV];
Convention Respecting the Laws and Customs of War on Land (1907 Hague
Convention IV), Oct. 18, 1907, Annex, 36 Stat. 2277, T.S. No. 539, 1 Bevans
631 [Hereinafter HR].

[3] "International law does not support the assertion of a right in the
occupant to grant an oil development concession." U.S. Dep't of State,
Memorandum of Law (Oct. 1, 1976), 16 ILM 733, 752 (1977).

[4] The Security Council "[r]eaffirms that Iraq, without prejudice to the
debts and obligations of Iraq arising prior to 2 August 1990, which will be
addressed through the normal mechanisms, is liable under international law
for any direct loss, damage, including environmental damage and the
depletion of natural resources, or injury to foreign Governments, nationals
and corporations, as a result of Iraq's unlawful invasion and occupation of
Kuwait." UN SC Res. 687 (1991), para. 16.

[5] The coalition failed in its obligation to protect Iraqi cultural
heritage and should pay reparations for this failure as well. "The High
Contracting Parties further undertake to prohibit, prevent and, if
necessary, put a stop to any form of theft, pillage or misappropriation of,
and any acts of vandalism directed against, cultural property." 1954
Convention for the Protection of Cultural Property in the Event of an Armed
Conflict, 249 UNTS 240, art. 4(3). (The US and UK are signatories only to
this convention but its basic provisions, such as those in article 4 are
considered part of customary international law.) By contrast to the failure
to protect the Iraqi National Museum, the coalition was able to protect
Iraqi oil facilities, though they apparently have no similar legal
obligation to do so.

[6] See Letter dated 20 March 2003 from the Permanent Representative of the
United States of America to the United Nations addressed to the President of
the Security Council, UN Doc. S/2003/351 (Mar. 21, 2003); Letter dated 20
March 2003 from the Permanent Representative of the United Kingdom of Great
Britain and Northern Ireland to the United Nations addressed to the
President of the Security council, UN Doc. S/2003/350 (Mar. 21, 2003).

[7] Paul Koring, War on Iraq: Shockwaves, U.S. Cuts Syria's Oil Lifeline,
Pressure on "Terrorist Nation" Intensifies, But There are No Plans for War,
Powell Says, Globe & Mail, April 16, 2003, 04/16/2003 GLOBEMAIL A12.

[8] Convention on the Prohibition of the Development, Production and
Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13,
1993, 32 ILM 800 (1993).

[9] Responsibility of States for Internationally Wrongful Acts, arts. 49-54,
G.A. Res. 56/83, U.N. GAOR, 56th Sess., U.N. Doc. A/RES/56/83 (2002).

Mary Ellen O'Connell is William B. Saxbe Designated Professor of Law, Mortiz
College of Law & Mershon Center, at the Ohio State University.
April 17, 2003

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