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Professor Mary Ellen O'Connell
Moritz School of Law, Ohio State University
JURIST Guest Columnist

International lawyers around the world advised their governments on March 19 that the US-led invasion of Iraq was in violation of fundamental international law.[1] Following similar law violations by the US in the past, governments typically registered their condemnation by votes in the UN General Assembly. But Iraq is different and governments will face more, and more complicated, decisions in its aftermath.

Two features distinguish this invasion: Iraq has considerably more assets outside US control than has been the case in the past, and the US policy behind the invasion, the doctrine of preemptive force, challenges the international legal system in a way the US has never before attempted.

These features will create greater demands on states and organizations to consider their legal obligations in reacting to the invasion. Current obligations include the following: First, if states wish to preserve the current restrictions on the use of force, they will not condone the invasion, even while they condemn Saddam Hussein痴 criminal acts and failure to comply with UN Security Council mandates. Second, the United Nations can legitimately administer Iraq, not the representatives of an unlawful occupying power. For the UN to administer, the Security Council must authorize it to do so in a new resolution. Ideally, the Council would also authorize a major peacekeeping and police force from states that did not take part in the war. The precedents for these steps are found in the examples of Cambodia, Bosnia, East Timor, Kosovo, and Afghanistan.

Pending a handover to the UN - or if the US and UK refuse to hand over the administration - the US and UK will remain the belligerent occupiers of Iraq. As such, their conduct is governed principally by the Geneva Conventions and the Hague Regulations.[2] (Yes, the same law Secretary Rumsfeld recently invoked on behalf of coalition forces.) This law requires that the occupying power maintain law and order. HR, art. 43. It requires the occupant to secure the basic human needs of the population. GCIV arts. 55 & 56. Drafters of the Geneva Conventions expected occupations to end within 12 months of the close of hostilities. GCIV, art. 6. Local law may not be changed unless necessary for compelling security reasons (HR, art. 43, GCIV, art. 64) or if it violates international human rights standards-which most agree means eliminating the Iraqi death penalty. Occupants are required to manage resources under the law of usufruct. HR, art. 55. That law calls for managing resources so as to prevent waste. If profits accrue from such management, they may be used to pay for the occupying power痴 costs for local administration. An occupying power may not enrich itself from the occupied territory痴 resources. With particular relevance to Iraq, the United States has taken the position in the past that an occupant may not award new oil development concessions.[3]

International law generally requires that a state using force unlawfully should pay reparations for the damage caused. Iraq has paid billions of dollars to Kuwait and others for its unlawful invasion in 1990.[4] The same rule requires the US, UK and other members of the coalition to pay for the damage they have caused in Iraq.[5]

Neither the UN nor the International Financial Institutions have assisted Iraq in paying for its unlawful action. They are governed by the same principles with respect to the coalition. The UN currently controls Iraqi oil revenues. Given the widely-held conclusion that the invasion was unlawful, the better approach for the UN is not to turn control of Iraqi revenues over to the occupants. Oil revenues may be spent for immediate humanitarian assistance, distributed through neutral channels. Any Iraqi revenues beyond those needed for basic humanitarian assistance, should be conserved by the UN for the future. At the point when it is clear that Iraqis have created their own government and the occupiers have left, Iraqi resources may be turned over to Iraq. The same is true of Iraqi assets outside the country. The example of Kuwait following the Iraqi invasion provides a recent precedent.

The example of Kuwait also shows that an unlawful belligerent occupant has no legal authority to make international agreements for Iraq on debts or any other matters. International law requires that such agreements be treated as nullities. Similarly, no representative of an Iraqi occupation regime can have a seat in the UN or other international organizations.

Some US and British authorities are and have been well aware of the complicated legal problems resulting from invading Iraq without Security Council authorization. The strenuous efforts to get authorization before the invasion and the attempt to justify the invasion on some legal basis afterward indicate as much.[6] These authorities took international law seriously-in contrast to some other US officials. Governments decisions now in confronting the legal issues may well weigh in the balance regarding which officials will lead US foreign policy in the future.

Government decisions will definitely have an impact on the future international law governing the use of force. Making decisions in support of international law will not necessarily be easy. The US is likely to pressure governments to recognize its personnel-American and Iraqi-as the legitimate authorities of Iraq. Responding to this pressure will be part of a choice by the international community between maintaining the current system of international law and tolerating the neo-conservative policies that contradict international law, seen most concretely in the Bush Doctrine of preemptive force.

The Bush Doctrine is at the root of the decision to invade Iraq without Security Council authorization. It is evident again in the US decision to cut Syrian oil purchases from Iraq and in the interest in using armed force against Syria.[7] US officials are attempting to justify forceful action against Syria arguing the country has chemical weapons and may be harboring Iraqis. Syria is not a party to the Chemical Weapons Convention.[8] It may have a customary law obligation not to possess chemical weapons. It may also have a duty to try or extradite persons accused of serious human rights abuse-though it may not turn those persons over to an unlawful occupation regime. In the case of either possible obligation, international law prohibits the use of armed force for enforcement. Armed force is permitted only in self-defense to an armed attack (UN Charter, art. 51) or with Security Council authorization (UN Charter, art. 42).

Sanctions like cutting off oil to Syria are known as countermeasures in international law.[9] The US might be able to cancel its own contracts with Syria or terminate its own treaties if it can show that Syria has violated an international law obligation owed to the US with respect to either weapons or accused persons. The US must first demand that Syria remedy the violation. Here the US is canceling Iraqi contracts with Syria where Syria denies that it has committed any wrong under international law at all, let alone violations that injure the United States.

Thus, the policy toward Syria is building on the unlawful policy toward Iraq Resisting these policies to keep core international law viable will require that states and organizations respond consistently with their own international law obligations. States have joined in acting collectively without the US in recent years to promote the international rule of law - in the Landmines Convention, the Kyoto Protocol and the International Criminal Court. Doing so again will be in the interest of all states, including the US itself, and would help preserve the international rule of law. And it is not in the end requiring much of the United States - just to work with the UN as the legitimate administrator of Iraq.

[1] Anne-Marie Slaughter, during her Presidential address to the Annual Meeting of the American Society of International Law on Thursday, April 3, 2003, Omni Shoreham Hotel, Washington, D.C., estimated that eight out of ten international lawyers have concluded the invasion of Iraq was unlawful. Many indicators support her estimate. Many international lawyers would have been influenced by Secretary General Kofi Annan痴 statement ten days before the invasion that force in Iraq without Security Council authorization would violate the Charter. Patrick E. Tyler & Felicity Barringer, Annan Says U.S. Will Violate Charter if It Acts Without Approval, NY Times, Mar. 11, 2003, at A8.
[2] Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GCIV]; Convention Respecting the Laws and Customs of War on Land (1907 Hague Convention IV), Oct. 18, 1907, Annex, 36 Stat. 2277, T.S. No. 539, 1 Bevans 631 [Hereinafter HR].
[3] 的nternational law does not support the assertion of a right in the occupant to grant an oil development concession. U.S. Dep稚 of State, Memorandum of Law (Oct. 1, 1976), 16 ILM 733, 752 (1977).
[4] The Security Council 甜r]eaffirms that Iraq, without prejudice to the debts and obligations of Iraq arising prior to 2 August 1990, which will be addressed through the normal mechanisms, is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq痴 unlawful invasion and occupation of Kuwait. UN SC Res. 687 (1991), para. 16.
[5] The coalition failed in its obligation to protect Iraqi cultural heritage and should pay reparations for this failure as well. 典he High Contracting Parties further undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property. 1954 Convention for the Protection of Cultural Property in the Event of an Armed Conflict, 249 UNTS 240, art. 4(3). (The US and UK are signatories only to this convention but its basic provisions, such as those in article 4 are considered part of customary international law.) By contrast to the failure to protect the Iraqi National Museum, the coalition was able to protect Iraqi oil facilities, though they apparently have no similar legal obligation to do so.
[6] See Letter dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, UN Doc. S/2003/351 (Mar. 21, 2003); Letter dated 20 March 2003 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security council, UN Doc. S/2003/350 (Mar. 21, 2003).
[7] Paul Koring, War on Iraq: Shockwaves, U.S. Cuts Syria痴 Oil Lifeline, Pressure on 典errorist Nation Intensifies, But There are No Plans for War, Powell Says, Globe & Mail, April 16, 2003, 04/16/2003 GLOBEMAIL A12.
[8] Convention on the Prohibition of the Development, Production and Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, 32 ILM 800 (1993).
[9] Responsibility of States for Internationally Wrongful Acts, arts. 49-54, G.A. Res. 56/83, U.N. GAOR, 56th Sess., U.N. Doc. A/RES/56/83 (2002).

Mary Ellen O'Connell is William B. Saxbe Designated Professor of Law, Mortiz College of Law & Mershon Center, at the Ohio State University.

April 17, 2003


JURIST Guest Columnist Mary Ellen O'Connell is both a professor of law at The Ohio State University Moritz College of Law and an associate of OSU痴 Mershon Center for the Study of International Security and Public Policy. She teaches courses on international law, international dispute resolution, international environmental law, international law and the use of force, and contracts.

Professor O辰onnell痴 books include: International Dispute Settlement, a volume in the Library of Essays in International Law series by Ashgate/Dartmouth Press. She is co-author of International Law and the Use of Force, co-editor of Politics, Values and Functions, International Law in the 21st Century, Essays in Honor of Professor Louis Henkin. She is currently completing work on Enforcement in International Law and a student text on International Dispute Resolution.

Professor O辰onnell holds a B.A. in history from Northwestern, an MSc. in international relations from the London School of Economics, an LL.B. in international law from Cambridge University, and a J.D. from Columbia Law School. Prior to joining the faculty at Ohio State, she was a visiting professor at the University of Cincinnati College of Law, the University of Munich, and the Bologna Center of the Johns Hopkins University School of Advanced International Studies. She has also been an associate professor on the faculties of Indiana University-Bloomington and the George C. Marshall European Center for Security Studies.