A legal minefield for Iraq's occupiers

[jamesinca]

A legal minefield for Iraq's occupiers
By David Scheffer
Published: July 23 2003 20:50 | Last Updated: July 23 2003 20:50


The deaths of Uday and Qusay Hussein will provide a welcome morale-boost for the Anglo-US forces in Iraq. It has become all too clear in recent weeks, as casualties have mounted and budgets escalated, that America and Britain gravely underestimated the task awaiting them in post-war Iraq. What the occupying powers may not yet fully appreciate, however, is the extent of their long-term liability under international law.


Because they rejected a United Nations-supervised administration of post-Hussein Iraq, the US and Britain needlessly shoulder most of the legal responsibility for the success or failure of the administration and reconstruction of Iraq. No wonder other nations and groupings, such as India, Pakistan and Nato, have rejected Washington's appeal for troops. Why risk the liabilities of a military occupation under current conditions, especially when a simple Security Council mandate could trump occupation law, with all its attendant burdens?

In an awkwardly crafted resolution in May, authored by Washington and London, the Security Council designated the two victorious nations as the "occupying powers". This title carries all the responsibilities, constraints and liabilities that arise under occupation law, codified in the fourth Geneva Convention of 1949 and other instruments. The UN assumed an advisory role but left the legal responsibility squarely with the US and Britain and reminded other nations of their obligations if they deployed troops in Iraq.

In the last half-century no country requiring such radical transformation has been placed under military occupation law instead of a UN mandate or trusteeship. No conquering military power has volunteered formally to embrace occupation law so boldly and with such enormous risk. And never in recent times has an occupation occurred that was so predictable for so long and yet so poorly planned for.

Occupation law was never intended to encourage invasion and occupation for the purpose of transforming a society, however noble that aim. The narrow purpose is to constrain an occupying military power and thus discourage aggression and permanent occupation. The humanitarian needs of the civilian population take priority and usually require the occupying power to act decisively for that purpose.

But Iraq - under Saddam Hussein, a tyranny built on atrocities - requires radical political and economic transformation in the aftermath of Operation Iraqi Freedom, a worthy goal now sought by the occupying powers. Yet their performance to date raises serious risks of liability under occupation law, which could lead to civil and criminal actions (even against military and civilian officials) by Iraqi citizens.

The liability trap deepens every day, dug by the failure of the occupying powers to plan for and take immediate action to prevent looting of critical facilities and cultural sites, to deploy enough soldiers to maintain security and to establish effective law enforcement on the streets with well-trained police. The occupying powers also risk liability in other ways: by their refusal to permit entry of international weapons inspectors or of humanitarian supplies from the UN and other relief organisations in the early stages of the occupation; by their failure rapidly to restore and maintain water, sewerage and electricity services; by having created unemployment on a massive scale; and by their controversial plans for the management of Iraq's oil industry.

Occupation law imposes high performance standards on an occupying military power and liability can arise quickly. This is particularly so in cases where an occupation and its many responsibilities were readily foreseeable - as is the case in Iraq, whose invasion was planned for a long time.


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The US and Britain could gain legal and practical advantage - as well as more international support - if the Security Council adopted a resolution to establish a comprehensive UN mandate over the civilian and military administration of Iraq. Its terms could be modelled on the other cases in which the UN has been called on to help transform a nation. Speculation that a new resolution may be forthcoming is encouraging, provided it establishes a new legal framework for all coalition forces.

With a fresh UN mandate, the burden and risks of occupation law would be greatly reduced for the occupying powers. Their main responsibilities would be defined by the Security Council rather than by a body of law that is ill-suited to the task at hand. Ultimately that would benefit occupiers and occupied alike.

The writer, the former US ambassador at large for war crimes issues, is a visiting professor at Georgetown University Law Center in Washington

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