The American Society of International Law (ASIL) has posted on its
website the following useful summary by Prof. Jordan Paust, who explains
the legal responsibilities of the U.S. as occupying power in parts of Iraq
under the laws of war. Among the legal questions he considers:
Would the looting of artifacts from the National Museum in Baghdad
involve violations of the law concerning occupied territory?
I found this a helpful resource and am passing it on to this list.
(ASIL permits educational copying, with due acknowledgement.)
Andras Riedlmayer
________________________________________________________________________
http://www.asil.org/insights/insigh102.htm
ASIL Insights
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
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. 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.
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