The U.S. as Occupying
Power Over Portions of Iraq and Relevant Responsibilities
Under the Laws of War
By Jordan J. Paust
April 2003
I. The Fact of Occupation
Is the United States an Occupying Power
in Iraq? Some have argued that the United States
is not an occupying power with respect to any portion
of Iraq because the U.S. is on a "liberation" mission.
[1] Others might argue that the U.S. is
not an occupying power of any portion of Iraqi territory
because the U.S. has not formally proclaimed that
it is an occupying power and/or that some fighting
is still taking place in certain portions of Iraq.
However, Article 42 of the Annex to the 1907 Hague
Convention IV Respecting the Laws and Customs of
War on Land [2] affirms: "Territory is considered
occupied when it is actually placed under the authority
of the hostile army. The occupation extends...where
such authority has been established and can be exercised."
As recognized in a U.S. Army text addressing this
provision, "Article 42...emphasizes the primacy of
FACT as the test of whether or not occupation exists."
[3] The Army text adds: "Article 43 of
the Hague Regulations continues the theme of the traditional
law with its provision for a clear transfer of authority:
'The authority of the legitimate power having in
fact passed into the hands of the occupant....'" [4]
Paragraph 2 of Article 2 of the Geneva
Convention Relative to the Protection of Civilian
Persons in Time of War [5] reads: "The Convention shall...apply
to all cases of partial or total occupation of the
territory of a High Contracting Party, even if the
said occupation meets with no armed resistance."
Additionally, the International Committee of the
Red Cross' (ICRC) Commentary on the Geneva Civilian
Convention recognizes that occupation under Geneva
law "has a wider meaning than it has in" the Hague
Convention IV and applies to "troops advancing into"
foreign territory, "whether fighting or not," adding:
"There is no intermediate period between what might
be termed the invasion phase and the inauguration
of a stable regime of occupation. Even a patrol which
penetrates into enemy territory without any intention
of staying there must respect the Conventions."
[6] Thus, the duties of an occupying power
are coextensive with its de facto control of territory.
II. Command or Leader Responsibility
Do U.S. military commanders and U.S.
political leaders have legal responsibilities under
the laws of war concerning occupied territory? If
so, are there limitations on the extent of such responsibilities
with respect to Iraqi territory? Are area commanders
responsible for certain acts of looting?
In United States v. List [7] a military tribunal operating after
World War II during the so-called subsequent Nuremberg
proceedings affirmed:
"A commanding general of occupied territory is
charged with the duty of maintaining peace and order,
punishing crime, and protecting lives and property
within the area of his command. His responsibility
is coextensive with his area of command. He is
charged with notice of occurrences taking place
within that territory...dereliction of duty rests
upon him...."
[8]
Under this standard, those high in the chain of command,
who see the large picture and who can assign various
missions to soldiers, have a responsibility to deploy
troops to engage in law and order roles in sectors
that come under effective U.S. control. [9]
Would the looting of artifacts from the
National Museum in Baghdad involve violations of the
law concerning occupied territory? Important questions
would include: When exactly did main looting take
place? Was the museum within an area of Baghdad under
effective control of U.S. military forces at that
time? When a tank stopped near the museum and apparently
fired into the air causing some looters to temporarily
flee could those in the tank or their unit have stopped
large numbers of looters, and were they still on a
combat mission? Was the local commander in the area
still engaged in combat actions? Were other commanders
able to send in other U.S. military personnel for
public order and protection of property in that particular
sector at that time? [10]
Generally, the responsibility of the
United States to restore law and order and public
life in areas under effective control of its military
is reflected in Article 43 of the Annex to the Hague
Convention of 1907, which requires that the occupying
power "shall take all the measures in his power to
restore, and ensure, as far as possible, public order
and safety, while respecting, unless absolutely prevented,
the laws in force in the country." [11]
III. What Are Some of the Applicable Laws of War?
Applicable portions of the laws of war
include Hague Convention IV, portions of the Geneva
Civilian Convention, and other customary international
law concerning occupied territory. Thus, Articles
42-56 of the Annex to 1907 Hague Convention IV are
applicable. Moreover, common Article 3 of the 1949
Geneva Conventions is customary international law
providing a minimum set of rights not only during
internal conflict, but also during an international
armed conflict. [12] The ICRC Commentary to the Geneva
Civilian Convention points out that the minimum rights
in common Article 3 reflect other, more detailed Articles
in the Convention that expressly apply to occupation
during an international conflict. [13] Consequently,
common Article 3 appears to provide minimum standards
for an occupation during an armed conflict. For purposes
of brevity, the discussion below refers to the minimum
standards of Article 3 rather than to the detailed
provisions of all the other relevant Articles.
Article 6 of the Geneva Civilian Convention also
states:
The present Convention shall apply from
the outset of any conflict or occupation mentioned
in Article 2....
In the case of occupied territory, the
application of the present Convention shall cease
one year after the general close of military operations;
however, the Occupying Power shall be bound, for
the duration of the occupation, to the extent that
such Power exercises the functions of government
in such territory, by the provisions of the following
Articles of the present Convention: 1 to 12, 27,
29 to 34, 47, 49, 51, 52, 53, 61 to 77, 143. [14]
Protected persons whose release, repatriation
or re-establishment may take place after such dates
shall meanwhile continue to benefit by the present
Convention.
However, the 1907 Hague Convention and other customary
international legal norms apply in full during continued
occupation.
[15]
IV. What Are Some of the Types of Duties, Rights,
and Protections?
1. General Protections
The types of rights and related prohibitions
under humanitarian law that apply in occupied territory
are too numerous to list, so the following discussion
relies primarily on common Article 3 of the Geneva
Conventions as the source of a minimum set of guarantees.
Article 3 expressly recognizes the fundamental right,
in all circumstances, to be treated humanely as well
as specific prohibitions of: "(a) violence to life
and person, in particular murder of all kinds, mutilation,
cruel treatment and torture; (b) taking of hostages,
(c) outrages upon personal dignity, in particular
humiliating and degrading treatment; [and] (d) the
passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees
which are recognized as indispensable by civilized
peoples." Articles 27-34 of the Geneva Civilian Convention
also contain several related rights and prohibitions,
including the prohibition of collective penalties
and reprisals addressed in the next subsection. Section
III of Part III of the Convention adds several other
specific rights and prohibitions concerning occupied
territories as such. Specific rights and prohibitions
concerning occupied territory can also be found in
Articles 43-56 of the Annex to the 1907 Hague Convention
IV.
2. Special Concerns
a. Transfer of Persons From
Occupied Territory
Can persons in Iraq who are not prisoners
of war be transferred to Guantanamo Bay for detention,
to the U.S. for trial, or to other countries? Can
Mr. Abbas, accused mastermind of the Achille Lauro
boatjacking, be extradited from Iraq to Italy to stand
trial? Article 49 of the Geneva Civilian Convention
prohibits "[i]ndividual or mass forcible transfers,
as well as deportations of protected persons from
occupied territory...regardless of their motive." [16] Article 147 also lists "unlawful deportation or
transfer or unlawful confinement of a protected person"
as a grave breach of the Convention.
b. Collective Penalties
Can members of al Qaeda or other "terrorists"
found in Iraq be punished for the September 11 attacks
on the United States? Can Iraqi soldiers be punished
for the crimes of Saddam's regime? Customary international
law, reflected in Article 50 of the Annex to 1907
Hague Convention IV, affirms that "No general penalty,
pecuniary or otherwise, shall be inflicted upon the
population on account of acts of individuals for which
they cannot be regarded as jointly and severally responsible."
Additionally, the 1919 List of War Crimes prepared
by the Responsibilities Commission of the Paris Peace
Conference expressly affirms the customary prohibition
of "[i]mposition of collective penalties." [17] Article 33 of
the Geneva Civilian Convention also affirms these
customary prohibitions when recognizing: "Collective
penalties and likewise all measures of intimidation...are
prohibited."
c. Cruel, Inhumane Treatment,
Injury and Suffering
Can Iraqis detained for questioning or
other purposes be subjected to coercive interrogation
techniques or treatment? As noted, common Article
3 of the Geneva Conventions prohibits, among other
conduct, "violence to life and person, in particular...mutilation,
cruel treatment and torture..." and requires that
all persons taking no active part in hostilities "shall
in all circumstances be treated humanely...." The
ICRC Commentary notes that Articles 27-34 of the Geneva
Civilian Convention "apply equally" in occupied territories. [18] Article 27 expressly affirms: "Protected persons
are entitled, in all circumstances, to respect....
They shall at all times be humanely treated, and shall
be protected...." Article 31 commands: "No physical
or moral coercion shall be exercised against protected
persons, in particular to obtain information from
them or from third parties." Wilful "torture or inhuman
treatment" is also listed in Article 147 among grave
breaches of the Convention. Further, according to
the ICRC, any claim of "necessity" for violating Geneva
prohibitions is legally unacceptable.
d. Care for Wounded and
Sick and Provision of Food and Medicine
Does the United States have a duty to
provide needed food and medicine to Iraqi persons
within sectors effectively controlled by U.S. forces?
Common Article 3 of the 1949 Geneva Conventions, in
addition to its general duty of humane treatment and
prohibition of "cruel treatment" noted above, contains
the specific requirement that "[t]he wounded and sick
shall be collected and cared for." Clearly, a refusal
of medical treatment of wounded persons in one's control
would be a violation of common Article 3. Article
38 of 1949 Geneva Civilian Convention IV recognizes
the right of protected persons "if their state of
health so requires, [to] receive medical attention
and hospital treatment to the same extent as the nationals
of the State concerned." Article 23 adds the general
duty to "allow the free passage of all consignments
of medical and hospital stores...." As recognized
in Article 55, the occupying power, "[t]o the fullest
extent of the means available to it..., has the duty
of ensuring the food and medical supplies of the population"
and, "in particular, [to] bring in the necessary foodstuffs,
medical stores and other articles if the resources
of the occupied territory are inadequate." Article
56 adds: "[t]o the fullest extent of the means available
to it...[there is a] duty of ensuring and maintaining...the
medical and hospital establishments and services,
public health and hygiene in the occupied territory.
e. Prosecution of War Crimes
and Other International Crimes
Can the United States prosecute persons
who are reasonably accused of war crimes, genocide,
and other crimes against humanity in Iraq? As an
occupying power, the United States could set up a
military commission for prosecution of war crimes
and other crimes under international law.
[19] However, the military commission
would have to follow rules of procedure and provide
other due process rights guaranteed under human rights
law and the 1949 Geneva Conventions.
[20] The U.S. could also agree with other
occupying forces and/or a new regime in Iraq to set
up an international military commission or tribunal
with proper procedures and rights to due process.
Additionally, the U.S. could seek the creation by
the United Nations Security Council of a new International
Criminal Tribunal for Iraq (ICTI), much like the International
Criminal Tribunal for Former Yugoslavia (ICTY) and
International Criminal Tribunal for Rwanda (ICTR),
with jurisdiction over such international crimes.
Under Article 49 of the Geneva Civilian
Convention, persons who are not prisoners of war cannot
be transferred from occupied territory in Iraq for
trial in the U.S. or elsewhere, although prisoners
of war could be transferred for trial. At least one
federal statute in the United States permits prosecution
in U.S. courts for certain violations of the laws
of war committed basically by or against U.S. nationals.
[21] The U.S. has no legislation for prosecution
of crimes against humanity as such, but international
law permits universal jurisdiction over such crimes.
[22] The United States arguably could
enact new legislation to operate retrospectively without
violating the constitutional prohibition of ex post
facto laws, since the crimes are already crimes under
customary international law.
[23] New legislation could also be enacted
to assure prosecution of genocide. [24]
About the Author:
Jordan J. Paust is Law Foundation Professor, University
of Houston, and is the author of books and articles
on the law of war, human rights, and the foreign relations
law of the United States.
[1] See, e.g., Katherine Butler
& Donald Macintyre, The Iraqi Conflict: General
Franks Strides into His Baghdad Palace, The
Independent (london), Apr. 17, 2003, at 6 (quoting
General Tommy Franks: "this has been about liberation,
not about occupation.").
[2] 18 Oct. 1907, 36 Stat. 2277, T.S.
No. 539.
[3] U.S. Dep't of Army Pam. 27-161-2,
2 International Law 159 (1962).
[6] 4 Commentary, Geneva Convention
Relative to the Treatment of Civilians in Time of
War 60 (ICRC 1958).
[7] United States v. List, et al.,
11 Trials of War Criminals 757 (1948).
[8] Id. at 1270-71.
[9] See, e.g., United States
v. List, supra note 7; Jordan J. Paust,
M. Cherif Bassiouni, Michael Scharf, et al.,
International Criminal Law 51-52, passim
(2d ed. 2000) [hereinafter ICL].
[10] See, e.g., Douglas Jehl
& Elisabeth Becker, Despite Promises, Marines
Failed to Stop Museum's Plunder, Int'l Herald
Tribune Apr. 16, 2003, at 3 (also quoting General
Richard Myers, Chairman of the Joint Chiefs of Staff,
"It's, as much as anything else, a matter of priorities.");
Douglas Jehl & Elisabeth Becker, Pentagon
War Told About Museum Risk, Int'l Herald Tribune
Apr. 17, 2003, at 2.
[11] The French text is authoritative
and uses the relevant phrase l' ordre et la vie
publics.
[12] See, e.g., ICL, supra
note 9, at 689, 692-93, 695 (ICTY, The Prosecutor
v. Tadic, Trial Chamber (10 Aug. 1995), noting especially
the same recognition by the ICJ in Nicaragua v.
United States, 1986 I.C.J. 4, at paras. 218, 255),
814, 823, 829-31 (ICTY, The Prosecutor v. Tadic,
Appeals Chamber (2 Oct. 1995), recognizing that
common Article 3 violations, if serious, are war
crimes).
[13] 4 Commentary, supra note 6,
at 40 (referring to Articles 27, 31 to 34, and 64
to 77).
[14] The ICRC Commentary adds: "It
must be remembered...that Articles 27-34...apply
equally to this Section [Section III of Part III
on "Occupied Territories"] and to the Section dealing
with aliens in the territory of a belligerent."
4 Commentary, supra note 6, at 272.
[15] See, e.g., ICL, supra
note 9, at 808-09; U.S. Dep't of Army, Field Manual
27-10, The Law of Land Warfare 8-9, para. 10(d)
(1956).
[16] See also 4 Commentary, supra
note 6, at 278-80.
[17] Crime number 17, reprinted
in ICL, supra note 9, at 32-33. On
collective penalties, see also id. at 33,
45-46.
[18] See 4 Commentary, supra
note 6, at 272.
[19] See, e.g., Richard Willing,
Prosecution of War Crimes Could Get Complicated,
USA Today, Apr. 16, 2003, at 4A; ICL, supra
note 9, at 261-67, 288-93, 625-37.
[20] See,
e.g., Paust, Antiterrorism Military Commissions:
The Ad Hoc DOD Rules of Procedure, 23 Mich. J. Int'l
L. 677 (2002); Antiterrorism Military Commissions:
Courting Illegality, id. 1 (2001).
[21] 18 U.S.C.
§ 2441.
[22] See generally ICL, supra
note 9, at 157-69, 658-60, 856-65, 868-73, 875.
[23] See, e.g., id.
at 244-48, 867-68, 872-73.
[24] See, e.g., id.
at 945-50.
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