U.S. victory has steep price in maintaining safe Iraq peace

International law demands order and public safety

War In Iraq

April 18, 2003|By Robert Little | Robert Little,SUN NATIONAL STAFF

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."

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.