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.
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.
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.
Delays in reasserting the rule of law can put the US in a precarious position. Experience in other countries suggests people under occupation may become disillusioned with their new overseers, taking matters into their own hands.
Part of the problem is that the US is a victim of its own military success. US officials thought they'd have far more time to prepare. Once fighting ceased, the Defense Department's Office of Reconstruction and Humanitarian Assistance (ORHA) anticipated a period of relative calm, during which it would dispatch a 25-member team to assess the legal and police system before designing new alternatives, says one attorney familiar with the agency's plans.
Instead, civil unrest broke out as Hussein's regime collapsed. For now, US soldiers and Iraqi police officers are relying on "common sense" to fill the legal vacuum, says the diplomat.
The Pentagon did have at least one element of its plan in place: how to prosecute anyone involved in biological-or-chemical-weapons attacks. According to a lawyer who participated in the process, the National Security Council readied two plans: one to set up a UN-sanctioned international court; the other, the Pentagon's preference, would use military tribunals.
Still, while US officials have a developed plan to deal with users of weapons of mass destruction, insiders say the administration is less definitive on how it will handle more general war criminals.
Under one three-tiered plan, high ranking Baath Party and military officials charged with crimes against humanity, genocide, and torture would be tried by a special Iraqi court. Lower-level offenders would tried before Iraqi criminal courts. A separate forgiveness and reconciliation commission would handle lesser crimes.
The plan, fashioned largely by exiled Iraqi lawyers, is being considered at the upper echelons of the State and Defense departments and the National Security Council. But it has yet to be approved. "There is a bit of ambivalence about moving ahead with it," says one lawyer. "There's a fear that if they have an independent structure for the judiciary, it would interfere with political plans."
Iraqi exiles say competition between the State and Defense departments has hampered their contributions. "The Pentagon is going off on its own and is not recognizing all this work that has been done," says Sermid al-Sarraf, a Los Angeles lawyer and member of the exile working group.
But others see unrealistic expectations as much as politics involved. M. Cherif Bassiouni, a DePaul University law professor who is advising the State Department, says its members may have overestimated the role they'd play in helping rebuild Iraq. "The Iraqi expatriates had expectations that this wasn't really a training seminar, but that these people were being selected or tapped to be involved in the future administration of Iraq," he says.