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Iraq occupation a legal minefield

Once the fighting is over in Iraq, the United States military will radically change its assignment and become an occupying force, required to follow a system of international law and treaties. Pete Williams reports.
/ Source: NBC News

Once the fighting is over in Iraq, the United States military will radically change its assignment and become an occupying force, required to follow a system of international law and treaties, some of which could be applied for the first time in history.

“THE U.S. MILITARY would go through the looking glass, incurring a whole new set of obligations. It’s arguably even more complicated to be an occupying force than an attacking one,” said Eugene Fidell, a Washington lawyer specializing in military law.

The main body of rules comes from the Fourth Geneva Convention, adopted in 1949, largely in response to German occupations in World War II, and regulations adopted by the Hague in 1907.

Legal experts believe the U.S. occupation of Iraq would be the first time the Geneva Convention’s rules would actually be put into effect. “Since 1945 there have been several occupations, but none were recognized as such by the occupiers,” said Eyal Benvenisti, a professor of international law at Tel Aviv University.


That set of rules, along with international human rights laws and other regulations, would make the U.S. military responsible for the health and safety of the people of Iraq. The rules and regulations also would limit the kinds of changes that could be made to Iraq’s system of government.

Civilian courts, for example, must be allowed to function so long as they are competent.

“But the U.S. military could set up its own courts-martial to handle cases of saboteurs or war criminals,” said Professor Robert Goldman of American University’s Washington College of Law.

The United States could not move sectors of the population around or permanently resettle them. Groups could be evacuated temporarily for their safety but must be allowed to return.

Responsibility for the health and safety of the people would mean, legal experts say, that the United States would be obligated to come to the defense of the Kurds in northern Iraq if they came under attack from the Turks.


“There is no question but that we would do what we needed to do to see that there was not a conflict between friendly forces in northern Iraq,” Defense Secretary Donald Rumsfeld told NBC News last month, when asked about that obligation.

Legal experts say the United States could take over Iraqi oil fields, but only to maintain them for the benefit of Iraq. The U.S. military could, for example, invite in oil field service companies to restore production, but the oil would remain the property of Iraq.

“The gist of the law is that the oil belongs to Iraq and the U.S. has the duty to administer it on behalf of the Iraqi people, defraying the expenses of the occupation administration,” said Benvenisti.

“In other words, they can continue pumping the oil and sell it but all for the purpose of the Iraqi economy, minus the costs of the occupation,” he said.


Difficult legal questions will arise over how to move to a democratic form of government. If the Iraqis refused, for example, to switch to a democracy, the United States could not force them to do it, legal experts agree. The United States would no longer be free to make the kind of drastic changes in an occupied country that it imposed on Germany and Japan after World War II.

“It’s got to be an Iraqi constitution, though there’s sort of a curious puzzle there,” said Professor Detlev Vagts of Harvard Law School. “How will they elect the people who will draft the constitution and approve it? That will be governed by good sense, rather than international law.”

But Vagts said there’s no question the United States would assume responsibility for virtually every facet of Iraq’s civil administration, from educating children to providing for the poor.

“It’s like they say in pottery stores. You break it, you buy it,” Vagts said.