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US struggles with new rules as war turns to occupation

Under international law, an occupied nation's laws take priority, but the US doesn't understand all local codes.



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By Seth SternStaff writer of The Christian Science Monitor / April 21, 2003

Exiled Iraqi lawyers say the US government failed to adopt - or even translate from Arabic - suggestions they provided in advance on how to prevent the kind of civil disorder, including looting and revenge killings, that has marred postwar Iraq.

Weeks before the unrest erupted, the exiles proposed imposing martial law for 24 hours. The Pentagon also shelved a recommendation to recruit and vet Iraqi traffic police and security officers, who American soldiers did eventually turn to - but without checking their backgrounds.

These are just two examples, lawyers familiar with the process say, of how inadequate preparation by US officials hampered efforts to reestablish law and order in Iraq. While the war itself may have been meticulous - planned over many months to achieve its objectives with speed and flexibility - US preparation for the next phase appears to have been less thorough.

As the process of occupation begins, US officials are struggling to cope with new legal and administrative rules that take effect when hostilities turn to governance. For instance, coalition forces are supposed to begin applying local laws, but they don't understand what they all mean.

"Some 18-year-old marines are arresting people suspected of looting. But what do they do with them?" says one international lawyer who has been involved with the US in postwar planning. "They don't have a clue on what procedure to apply."

To be sure, US officials were caught off guard by the rapid fall of the Hussein regime. But outside analysts say that infighting between the State and Defense departments hasn't helped with transition issues.

Laws of occupation

In general, the duties of both civilians and soldiers change once the military phase of a war is over. The 1949 Geneva Conventions specify that the laws of the occupied country take precedence over those of the conquering nation, unless doing so imperils the security of the troops. Only a new, legitimate Iraqi government could change laws related to marriage or owning property, for example, but Hussein's most egregious decrees, such as legalizing torture, could be stripped away.

Yet even here, the correct approach isn't always clear cut. What do you do, for instance, if one part of a country is still at war and another isn't? Further complicating matters, the law of occupation has gone essentially unused since its adoption half a century ago, says Claude Bruderlein, director of Harvard University's Program on Humanitarian Policy and Conflict Resolution. "There aren't so many precedents" he says. It remains unclear, for instance, how the US should handle political dissent.

The Defense Department's Office of General Counsel, for its part, says the decision about when occupation law applies "is a factual issue that will vary throughout Iraq based upon conditions." It also says US military lawyers in Iraq are, in fact, familiar with local laws.

But those laws represent a complex amalgamation of French codes and Muslim sharia law, and international lawyers say the US did little in advance to master legal details. "They don't know what's in there. They have no idea," says one senior international diplomat who has been involved with previous nation-building efforts.

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