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A legal minefield for Iraq's occupiers
Financial Times ^ | July 23 2003 | David Scheffer

Posted on 07/23/2003 3:29:27 PM PDT by Hal1950

The deaths of Uday and Qusay Hussein will provide a welcome morale-boost for the Anglo-US forces in Iraq. It has become all too clear in recent weeks, as casualties have mounted and budgets escalated, that America and Britain gravely underestimated the task awaiting them in post-war Iraq.

What the occupying powers may not yet fully appreciate, however, is the extent of their long-term liability under international law.

Because they rejected a United Nations-supervised administration of post-Hussein Iraq, the US and Britain needlessly shoulder most of the legal responsibility for the success or failure of the administration and reconstruction of Iraq.

No wonder other nations and groupings, such as India, Pakistan and Nato, have rejected Washington's appeal for troops. Why risk the liabilities of a military occupation under current conditions, especially when a simple Security Council mandate could trump occupation law, with all its attendant burdens?

In an awkwardly crafted resolution in May, authored by Washington and London, the Security Council designated the two victorious nations as the "occupying powers". This title carries all the responsibilities, constraints and liabilities that arise under occupation law, codified in the fourth Geneva Convention of 1949 and other instruments.

The UN assumed an advisory role but left the legal responsibility squarely with the US and Britain and reminded other nations of their obligations if they deployed troops in Iraq.

In the last half-century no country requiring such radical transformation has been placed under military occupation law instead of a UN mandate or trusteeship.

No conquering military power has volunteered formally to embrace occupation law so boldly and with such enormous risk. And never in recent times has an occupation occurred that was so predictable for so long and yet so poorly planned for.

Occupation law was never intended to encourage invasion and occupation for the purpose of transforming a society, however noble that aim. The narrow purpose is to constrain an occupying military power and thus discourage aggression and permanent occupation. The humanitarian needs of the civilian population take priority and usually require the occupying power to act decisively for that purpose.

But Iraq - under Saddam Hussein, a tyranny built on atrocities - requires radical political and economic transformation in the aftermath of Operation Iraqi Freedom, a worthy goal now sought by the occupying powers. Yet their performance to date raises serious risks of liability under occupation law, which could lead to civil and criminal actions (even against military and civilian officials) by Iraqi citizens.

The liability trap deepens every day, dug by the failure of the occupying powers to plan for and take immediate action to prevent looting of critical facilities and cultural sites, to deploy enough soldiers to maintain security and to establish effective law enforcement on the streets with well-trained police.

The occupying powers also risk liability in other ways: by their refusal to permit entry of international weapons inspectors or of humanitarian supplies from the UN and other relief organisations in the early stages of the occupation; by their failure rapidly to restore and maintain water, sewerage and electricity services; by having created unemployment on a massive scale; and by their controversial plans for the management of Iraq's oil industry.

Occupation law imposes high performance standards on an occupying military power and liability can arise quickly. This is particularly so in cases where an occupation and its many responsibilities were readily foreseeable - as is the case in Iraq, whose invasion was planned for a long time.

The challenges of humanitarian occupations by benevolent military forces seeking to transform devastated societies cannot be met within the confines of occupation law.

Indeed, in recent years the UN has developed much experience in overcoming that law's outdated norms and directly promoting democracy and economic development in war-torn nations.

The US and Britain could gain legal and practical advantage - as well as more international support - if the Security Council adopted a resolution to establish a comprehensive UN mandate over the civilian and military administration of Iraq. Its terms could be modelled on the other cases in which the UN has been called on to help transform a nation. Speculation that a new resolution may be forthcoming is encouraging, provided it establishes a new legal framework for all coalition forces.

With a fresh UN mandate, the burden and risks of occupation law would be greatly reduced for the occupying powers. Their main responsibilities would be defined by the Security Council rather than by a body of law that is ill-suited to the task at hand. Ultimately that would benefit occupiers and occupied alike.

The writer, the former US ambassador at large for war crimes issues, is a visiting professor at Georgetown University Law Center in Washington


TOPICS: Business/Economy; Constitution/Conservatism; Crime/Corruption; Culture/Society; Foreign Affairs; Front Page News; Government; News/Current Events
KEYWORDS: chantemiller; globaloney; iraq; rebuildingiraq

1 posted on 07/23/2003 3:29:28 PM PDT by Hal1950
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To: *Globaloney
http://www.freerepublic.com/perl/bump-list
2 posted on 07/23/2003 3:34:08 PM PDT by Libertarianize the GOP (Ideas have consequences)
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To: Hal1950
Wait a minute! Are you seriously telling me that David Scheffer - veteran Clinton kneepadder, former lackey to Madeleine Albright, UN booster - is critical of President Bush's foreign policy?

Say it's not so!

3 posted on 07/23/2003 3:37:38 PM PDT by wideawake (God bless our brave soldiers and their Commander in Chief)
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To: Hal1950
I keep hearing it said that the administration "underestimated" the difficulties of the post-war situation. Can anyone point to a single comment from the administration indicating that the post-war effort would be quick and easy? All these backseat drivers make it sound like (1) none of the problems were foreseen and (2) they should all have been solved by now. It's absurd to believe that the administration thought this would be easy, and it's even more absurd to suggest that all of the problems could or should have been resolved by now. They're still muddling through in Kosovo 4 years after the war.
4 posted on 07/23/2003 4:05:08 PM PDT by Steve_Seattle
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To: Hal1950
"shoulder most of the legal responsibility"

Who is going to enforce this so-called legal responsibility?

Not much risk is there?
5 posted on 07/23/2003 4:21:10 PM PDT by Pukka Puck
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To: Hal1950
What the occupying powers may not yet fully appreciate, however, is the extent of their long-term liability under international law.

What international law?

6 posted on 07/23/2003 4:22:50 PM PDT by Cicero (Marcus Tullius)
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To: Steve_Seattle
Yep, just more BS. He conveniently left out Portugal, Poland and Italy sending in troops for the peacekeeping phase. Parley
7 posted on 07/23/2003 4:23:44 PM PDT by Parley Baer
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To: wideawake
Its a Quagmire! Its a Quagmire! Its a Quagmire!
8 posted on 07/23/2003 4:27:58 PM PDT by SubMareener
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To: Hal1950
HA! Like the UN managed the reconstruction of Bosnia and Kosovo? Yeah, that's a real testimony to UN efficiency. Those two countries are STILL not up and running properly. General Sanchez, who was in Kosovo for a year, said Iraq was already better run then Kosovo was when he left and that was years after the UN took over.

These people may not like it, but we're already doing a better job and Iraq is better off as a result.

9 posted on 07/23/2003 4:44:24 PM PDT by McGavin999
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To: Hal1950
If we turn it over to the UN, we still have to do all the work and everything we have to do has to go thru the UN. Why would we want to put others in charge of a process that is our's to do ?
10 posted on 07/23/2003 6:09:30 PM PDT by VRWC_minion (Opinions posted on Free Republic are those of the individual posters and most are right)
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To: Hal1950
I am not a lawyer, but I have had some professional training where International Law was extensively discussed. The key point was IMHO international law was what the nations of the world wanted it to be. If the US said that it controlled the seas 200 miles out from its coastline, it did.

If we couldn't enforce that limit in wasn't. The original 3 mile limit grew out of how far the king's cannon would shoot.

Consider, if someone says that the US is "violating" international law, who is going to enforce that law? If we agree that we are "violating" a "law", and we are willing to change then we cease violating that law. No policeman is going to come and arrest the President.

11 posted on 07/23/2003 6:27:45 PM PDT by Citizen Tom Paine (The big fish eats the little fish.)
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