Good article, thanks Keith. I sent it to my relatives. REH
----- Original Message ----- From: "Keith Hudson" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Cc: <[EMAIL PROTECTED]> Sent: Thursday, July 24, 2003 2:58 PM Subject: [Futurework] Iraq > Here's a quietly spoken, but powerful, article from today's FT: > > ------ > A legal minefield for Iraq's occupiers > By David Scheffer > > > 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 > > Financial Times; Jul 24, 2003 > > Keith Hudson, 6 Upper Camden Place, Bath, England > > _______________________________________________ > Futurework mailing list > [EMAIL PROTECTED] > http://scribe.uwaterloo.ca/mailman/listinfo/futurework > _______________________________________________ Futurework mailing list [EMAIL PROTECTED] http://scribe.uwaterloo.ca/mailman/listinfo/futurework
