I wrote this article in 2003 at the height of the Bush war on Iraq.
LEGAL DUTIES OF THE OCCUPYING POWERS IN IRAQ
UNDER INTERNATIONAL HUMANITARIAN LAW
(LAW OF WAR)
By:
Atty. MANUEL J. LASERNA JR.
The United States and Great Britain as occupying powers in Iraq are subject to certain duties and responsibilities under international humanitarian law (law of war). The pronouncements of US Pres. George W. Bush and British Prime Minister Tony Blair that their mission is to “liberate” Iraq does not detract from the fact that they are “belligerent occupants” in that country. Territory is considered occupied when it is actually placed, partially or totally, under the authority of the hostile army, even if the said occupation meets with no armed resistance. There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. (Article 42 of the Annex to the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land; Par. 2, Art. 2 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War).
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.
The responsibility of the United States and Great Britain to restore law and order and public life in areas under effective control of its military is stated 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.
The 1907 Hague Convention IV and the 1949 Geneva Civilian Convention govern the duties of belligerent occupants under public international law and international humanitarian law. 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. Article 6 of the Geneva Civilian Convention states in the case of occupied territory, the application of the 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 occupying power exercises the functions of government in such territory.
Article 3 of the Geneva Conventions 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.
Iraqis and other persons in Iraq who are not prisoners of war may not be transferred to Guantanamo Bay in Cuba or to the United States or to other countries for trial. Article 49 of the Geneva Civilian Convention prohibits individual or mass forcible transfers, as well as deportations of protected persons from occupied territory regardless of their motive. Article 147 lists unlawful deportation or transfer or unlawful confinement of a “protected person" as a grave breach of the Convention.
It seems that, as a collectivity, members of al Qaeda or other "terrorists" found in Iraq may not be punished for the September 11 attacks on the United States or that Iraqi soldiers may not be collectively punished for the crimes of Saddam Hussein's regime. Customary international law, reflected in Article 50 of the Annex to 1907 Hague Convention IV provides 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. The 1919 List of War Crimes prepared by the Responsibilities Commission of the Paris Peace Conference affirms the customary prohibition of imposition of “collective penalties”. Article 33 of the Geneva Civilian Convention affirms these customary prohibitions when recognizing that “collective penalties” and measures of intimidation are prohibited.
Iraqis detained for questioning or other purposes may not be subjected to coercive interrogation techniques or treatment. Article 3 of the Geneva Conventions prohibits 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. Article 27 affirms that protected persons are entitled, in all circumstances, to respect. They shall at all times be humanely treated, and shall be protected. Article 31 commands that no physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties." Wilfull torture or inhuman treatment is also listed in Article 147 among grave breaches of the Convention. The International Committee for the Red Cross has commented that any claim of “necessity" for violating Geneva prohibitions is legally unacceptable.
The United States and Great Britain as belligerent occupants have a duty to provide needed food and medicine to Iraqis within sectors effectively controlled by them. 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 the wounded and sick shall be collected and cared for. 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. Under Article 55, the occupying power, to 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 the duty of ensuring and maintaining...the medical and hospital establishments and services, public health and hygiene in the occupied territory.
As an occupying power, the United States could set up a US military commission in Iraq for the prosecution of war crimes and other crimes under international law. However, the US 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. 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. 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. The general legal opinion is that the United States or the United Nations 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. New legislation could also be enacted to assure prosecution of genocide.
SOURCES:
- Prof. Jordan J. Paust, THE U.S. AS OCCUPYING POWER OVER PORTIONS OF IRAQ AND RELEVANT RESPONSIBILITIES UNDER THE LAWS OF WAR, available at http://www.asil.org/insights.htm (Am. Soc. Of Int’l Law [ASIL] website, visited April 22, 2003). This article and the sources/citations, infra, are based on this work of Prof. Paust.
- Katherine Butler & Donald Macintyre, The Iraqi Conflict: General Franks Strides into His Baghdad Palace, The Independent (London), Apr. 17, 2003 (quoting General Tommy Franks: "this has been about liberation, not about occupation.").
- 12 Aug. 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 [Geneva Civilian Convention].
- 4 Commentary, Geneva Convention Relative to the Treatment of Civilians in Time of War 60 (ICRC 1958).
- United States v. List, et al., 11 Trials of War Criminals 757 (1948).
- Jordan J. Paust, M. Cherif Bassiouni, Michael Scharf, et al., International Criminal Law 51-52, (2d ed. 2000)
- Douglas Jehl & Elisabeth Becker, Despite Promises, Marines Failed to Stop Museum's Plunder, Int'l Herald Tribune Apr. 16, 2003; Douglas Jehl & Elisabeth Becker, Pentagon War Told About Museum Risk, Int'l Herald Tribune Apr. 17, 2003.
- Richard Willing, Prosecution of War Crimes Could Get Complicated, USA Today, Apr. 16, 2003.
- 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).
