By Michael M. SchmittCrimes of War
April 15, 2003
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 safetyâ€¦." 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.
Taking Care of the Civilian Population
Beyond the maintenance of law and order, Occupying Powers are responsible for the care of the civilian population, including its overall health and hygiene. In particular, the Occupying Power must, to the "fullest extent of the means available to it," ensure the population receives adequate food, water, and medical treatment; if supplies in the occupied territory are inadequate, foodstuffs and medical stores must be brought in. National Red Cross and Crescent societies, like the Iraqi Red Crescent Society, must be permitted to conduct humanitarian activities, a requirement that also applies to other relief agencies, such as those that maintain public utility services, distribute aid, and conduct rescue operations.
The Occupying Power is required to permit the delivery of relief supplies by other States or humanitarian organizations if it cannot meet the needs of the civilian population, although it may place reasonable conditions on the delivery thereof. The International Committee of the Red Cross should be allowed to verify the overall state of humanitarian stores. Since they are responsible for maintaining order as well as caring for the population, the occupying authorities must provide security for relief actions to the extent necessary and possible under the circumstances. For their part, relief workers have to limit their activities to the delivery of humanitarian aid and comply with the security requirements of the Occupying Power. The fact that relief is being delivered, however, does not release the occupying authorities from their continuing obligation to care for the population.
The religious and cultural practices of the local population are also to be respected by the occupying forces, although the clergy must refrain from inciting violence or other resistance to the occupation. Children are entitled to special care. The Occupying Power is responsible for ensuring their education, preferably in cooperation with local authorities, and making sure that children under the age of fifteen who have been orphaned or separated from their families are not left on their own. It must also enable families to exchange personal information, even if beyond the occupied territory, and facilitate (including supporting humanitarian agencies that perform such activities) the reunification of separated families.
Individuals or groups may not be forcibly deported outside occupied territory, while nationals of other States have to be allowed to leave if they so desire. Temporary assignment to specific residences or to internment camps is allowable, but only for valid security reasons. Internees may not be held with POWs or criminals and, whenever possible, families must be kept together. Members of the population may also be temporarily evacuated from dangerous areas, but only in exceptional circumstances to a location outside the occupation zone. Demobilized members of the armed forces may be interned while active hostilities are on-going in the conflict, and are entitled to treatment as POWs.
Labor and Private Property
Although those over the age of 18 may be compelled to work, such work is limited to that necessary for the needs of the occupation force, operation of public utilities, or provision of basic needs of the population, such as food, shelter, clothing, transportation, and health. The occupied country's labor laws governing such matters as wages, work hours, and worker compensation apply to those who are forced to work by occupation authorities. Public officials may be removed from their posts by the occupation authorities, but they may not punish such officials for refusing to perform any official functions. Nor may anyone be forced to perform political, judicial, or other executive functions.
Real or personal property must not be destroyed during an occupation unless "absolutely necessary." Pillage, which is looting by occupation troops, is strictly forbidden, as is any reprisal against property of the inhabitants. Occupation authorities may, however, "control" property when necessary to keep it from being used by enemy forces or to prevent other uses that threaten them. Seizing (temporarily taking) private property that is of direct military use (e.g., communications or broadcasting equipment) is permissible, but the owner must be provided a receipt to allow him to later reacquire the property and receive compensation for any damage.
Services and property may also be "requisitioned" from the populace for the needs of the occupation forces if ordered by the local commander and paid for in cash, preferably at the time of requisition. Food or other items necessary for the well being of the civilian population may only be requisitioned after taking the needs of that population into consideration. Private property cannot be "confiscated," i.e., permanently taken. If necessary, force may be used to seize or requisition services and property. The property of municipalities, as well as the property of institutions dedicated to religious, charitable, educational, artistic, and scientific purposes, even if owned by the State, is to be treated as private property.
Public Property and the Future of the State
Enemy State-owned property other than real property, such as cash, funds, transportation, and other movable property, may be confiscated, i.e., taken without compensation, if it is usable for military purposes or for administering the occupied territory. State-owned real property that is non-military in character, such as public buildings, parks, etc., can only be "administered" by the Occupying Power. That power may use the property, but not in a way that negligently or wastefully reduces its value; moreover, the property may not be sold or otherwise disposed of. By contrast, State-owned real property that is military in nature, such as a military post or airfield, is at the absolute disposal of the Occupying Power.
Although the Occupying Power financially administers the territory, the tax structure in place at the time of occupation remains in effect. The occupied territory can be required to bear the costs of its occupation so long as they are not excessive given the state of its economy. In addition, the Occupying Power is permitted to control all commercial transactions with the occupied territory, including the removal of tariffs. As to currency, the Occupying Power may leave the existing currency in place, introduce its own currency, or issue new currency for use only in the occupied territory.
Much has been made of the role of the United Nations and States that did not participate in the military operations in helping Iraq to recover. The existence of an occupation regime does not preclude contributions to the post-conflict recovery process. For instance, the Interim Security Assistance Force currently maintains the stability of post-conflict Kabul in the aftermath of Operation Enduring Freedom. In fact, the Security Council may mandate a full assumption of responsibility from the Occupying Power, thereby arguably relieving that power of its occupation obligations. As an example, it established UNMIK as an international civil authority in Kosovo following Operation Allied Force, and empowered KFOR to provide security for the area. In the case of Operation Iraqi Freedom, since both the U.S. and U.K. are veto wielding permanent members of the Security Council, any such move in this direction will require their acquiescence.
Occupation formally ends with the reestablishment of a legitimate government (or other form of administration, such as that by the U.N.) capable of adequately and efficiently administering the territory. Thus, British Prime Minister Tony Blair was correct when he labeled the controversy about whether Iraq should be run by coalition forces or the U.N. a "false debate." Occupation law clearly preserves, to the extent possible, the role of Iraqis in governing their own country and facilitates the eventual transfer of all such authority back to the Iraqi people.
Michael N. Schmitt is Professor of International Law at the George C. Marshall European Center for Security Studies, Garmisch-Partenkirchen, Germany. The views expressed are those of the author and do not necessarily represent those of the U.S. or German governments.
More General Articles on International Law and the War on Iraq
More General Articles on the War on Iraq
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