The U.S. as Occupying Power Over Portions of Iraq and Relevant Responsibilities Under the Laws of War

Jordan J. Paust
April 12, 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).
            [4]   Id. at 160 (emphasis added in the Army text).
            [5]   12 Aug. 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 [hereinafter Geneva Civilian Convention].
            [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.