Occupation: The Inconvenient Truth About Iraq

The Law of Belligerent Occupation
Michal N. Schmitt


As combat operations in Iraq wind down, attention is quickly shifting to the plight of the Iraqi population. Looting and violence have broken out in a number of cities, and critics are condemning U.S. and British forces for moving too slowly to restore order. Indeed, Human Rights Watch has charged that "[s]ome U.S. government officials seem unaware of their obligations under international law to act promptly to prevent looting and other disturbances." Quite aside from the issue of lawlessness, humanitarian organizations such as the International Committee of the Red Cross are urging action in the face of an overwhelmed medical system, inadequate water and electricity supplies, and the risk of disease.

What are the rights and obligations of "Occupying Powers," the legal term for countries that occupy an adversary's territory? As growing portions of Iraq fall to U.S. and British forces, it is a propitious time to review the basic requirements of that body of law.

The Annexed Regulations to Hague Convention IV of 1907, the 1949 Fourth Geneva Convention, and customary international law set forth the laws of belligerent occupation applicable in this conflict. Both the Nuremberg Tribunal and a 1993 Report of the U.N. Secretary-General characterized the Hague Regulations as reflecting customary international law binding on all States. Since Iraq, the U.S., and the U.K. are parties to the Geneva Conventions, that instrument also applies. Finally, there was extensive State practice of occupation in the 20th Century, particularly after the Second World War, much of which has matured into customary law bearing on the occupation of Iraq. It should be noted that while the 1977 Protocol Additional I to the Geneva Conventions contains the most recent codification of occupation law, that treaty does not apply in this case because neither the U.S. nor Iraq are Parties to the agreement.

When Does Occupation Start?

These laws come into effect as soon as territory is "occupied" by adversary forces, that is, when the government of the occupied territory is no longer capable of exercising its authority, and the attacker is in a position to impose its control over that area. The entire country need not be conquered before an occupation comes into effect as a matter of law, and a state of occupation need not be formally proclaimed, as General Eisenhower did in the Second World War. Obligations and rights of the Occupying Power obviously extend only to those areas that the attacking forces actually control. Ultimately, whether territory is occupied is a question of fact. That some resistance continues does not preclude the existence of occupation provided the occupying force is capable of governing the territory with some degree of stability. Moreover, it is not legally relevant that the occupiers claim to be "liberating" the population; so long as an international armed conflict is underway, the justification for the conflict has no bearing on whether the laws of occupation apply.

It is important to understand that occupation does not imply an assumption of sovereignty over the territory; the Occupying Power is simply administering the area it has captured. That said, various attributes of sovereignty are suspended or limited during an occupation. Most notably, the Occupying Power temporarily assumes many of the executive functions of the former government, as well as some of its legislative and judicial responsibilities. In administering the occupied territory, any discrimination on the basis of race, political opinion, nationality, language, religion, and social origin is now forbidden as a matter of both treaty and customary international law.

A "military government" administers the occupied territory, although it may permit segments of the local government to continue operating (subject to the oversight of the occupation authorities). Indeed, a strong preference for allowing local authorities to perform governmental functions is evident throughout the body of occupation law.

Despite being labeled "military," the occupation government may be military, civilian, or mixed in composition. As a matter of law, this government need comply with all requirements set forth in occupation law for only one year following the termination of hostilities, although certain of the more important provisions, such as the prohibition on deportation of the population, remain in effect until the occupation ends. As a matter of policy, though, it is advisable to continue applying all aspects of the law throughout the occupation. U.S. Army training manuals wisely adopt this approach.

Maintaining Law and Order

One of the most pressing tasks faced by any military government is the maintenance of law and order. With government buildings, stores, hospitals, and cultural facilities being looted, revenge killings taking place, and general lawlessness preventing the delivery of humanitarian aid, this has become an omnipresent concern for the coalition forces in Iraq. Their responsibility in this regard is unambiguously set forth in the U.S. Army's Field Manual 27-10: "The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety…." Thus, although there have been assertions that the coalition forces are not police, in fact occupation law imposes policing responsibilities on them during an occupation.

Although occupation forces must maintain law and order, pre-existing civil and criminal laws of the occupied territory remain in effect to the extent they are apolitical, consistent with the maintenance of public order, and otherwise appropriate (e.g., discriminatory or inhumane laws are void); understandably, members of the occupying forces are immune from the jurisdiction of local law enforcement and judicial authorities. The Occupying Power may issue regulations, including penal regulations, necessary to meet its obligations under occupation law. In particular, measures necessary for the security of the occupying force and for the maintenance of law and order are typically promulgated. Common examples include censorship of the media, limitations on public gatherings, and control over travel and means of transportation (whether private or public). Penal provisions cannot be retroactive and do not come into effect until published in the inhabitants' language. Overall, occupation law seeks a balance between the maintenance of order and the preservation of the pre-existing legal order.

Crime and Punishment

War crimes, crimes against humanity, genocide, and aggression committed prior to or during the course of the conflict are prosecuted in accordance with the principles of international criminal law. Although case-specific, judicial bodies with jurisdiction may include domestic courts in the occupied territories, courts of any State for crimes of universal jurisdiction, ad hoc tribunals specifically established by the international community for the prosecution of such offenses, or the occupying force's courts. In the future, the International Criminal Court may prove useful in prosecuting such offenses (it has jurisdiction over those committed 1 July 2002 or later), but because Iraq is not a Party to the Rome Statute, the ICC lacks jurisdiction in this case (absent a special acceptance of jurisdiction by Iraq).

Occupying authorities must allow domestic courts to continue to function as the judicial system of the occupied territory whenever feasible. If they cannot (e.g., judicial officials refuse to cooperate, the system has otherwise collapsed, or it is corrupt or unfairly constituted), the Occupying Power may establish tribunals (commissions) to enforce the law of the occupied territory, but may not prosecute offenses (other than violations of international humanitarian law) committed before occupation. It may also establish tribunals to try cases involving the breach of penal regulations it has issued. Pursuant to both humanitarian and human rights law, they may impose punishment only after a regular trial in which the accused has been informed in writing of the charges. Trial must occur within a reasonable period and the accused is entitled to the assistance of counsel and the opportunity to present evidence in his or her defense.

Under occupation law there is no absolute right of appeal, since Geneva Convention IV simply provides that "the convicted persons shall have the right of appeal provided for by the laws applied by the court." When no appeal is provided for, the convicted individual may petition the "competent authority of the Occupying Power" for relief from the finding or sentence. However, human rights law does generally provide for a right of review by a higher tribunal. Those convicted by occupation tribunals (like those detained prior to trial) may not be incarcerated outside the occupied territories, and may be visited by the ICRC. They are transferred to the local authorities at the end of the occupation, together with all relevant documentation on their case.

There are various limitations regarding the death sentence in the Fourth Geneva Convention. In particular, under no circumstances may a person who was under 18 at the time of the offense be executed. Moreover, collective punishment of the population for the offenses of individuals is forbidden.

http://www.crimesofwar.org/print/onnews/iraq5-print.html

Dueling extremist screeds . . . you two deserve each other. Woiyo, at least, gets points for copying and pasting a reasonably readable text. F4F apparently can't be bothered to preview his screed, and replace the code with quotation marks.