VI. LEGAL OBLIGATION OF COALITION FORCES TO PROVIDE SECURITY IN IRAQ

A sentiment common among Iraqis speaking to Human Rights Watch was to blame U.K. and U.S. forces for failing to stop the ongoing problems with lack of security and criminality. Most often, this complaint was couched in terms of the legal obligations of the occupying power, which are quite well known among Iraqis. References to the Fourth Geneva Conventions Relative to the Protection of Civilian Persons in Time of War, which covers situations of military occupation, abounded in discussions with community and religious leaders, as well as Iraqi citizens from various educational levels and geographic backgrounds. In this environment, the failure of coalition forces to meet this standard has, and will continue to do so, fostered Iraqi resentment toward coalition forces.

International humanitarian law, as reflected in the U.S. military's own guidelines, obliges the occupying power to restore and ensure public order and safety. Law enforcement must, itself, be conducted in conformity with international human rights law standards. These standards apply to all those acting under U.S. authority, including non-U.S. members and coalition armed forces, Iraqi police, and any international law enforcement officers who may eventually serve in Iraq.

The duty to provide security for civilians attaches as soon as the occupying force exercises control or authority over civilians of the occupied territory-that is, at the soonest possible moment. (This principle is stated in U.S. Army Field Manual 27-10 as well as the Fourth Geneva Convention, art. 6.) Military commanders on the spot must prevent and where necessary suppress serious violations involving the local population under their control or subject to their authority.⁴⁵
The occupying force is also responsible for protecting the population from violence by third parties, such as armed groups or forces of the former regime (Fourth Hague Convention, art. 47). Ensuring local security includes protecting persons, including minority groups and former government officials, from reprisals and revenge attacks. Occupying forces may have to be deployed to secure public order until the time local or international police can be mobilized for such responsibilities. Up to the time of writing, local or international police have been insufficient or unavailable in Iraq, placing the burden of law enforcement squarely on coalition forces.

Given the absence of civilian (or even military) police, coalition forces relied extensively on combat troops for policing duties. Unless such forces are facing hostilities, the use of force is governed by international standards for law enforcement. That is, only absolutely necessary force may be used and only to the required extent, in accordance with the principle of proportionality. In the first few weeks after the end of active military conflict, soldiers fresh from the "shooting war" were pressed into patrolling duty, often without training in basic law enforcement techniques. This approach-dictated by the relatively small number of troops deployed by the United States and the United Kingdom-resulted in inadequate policing and, simultaneously, incidents of improper treatment of civilians.

Generally, an occupying power is responsible for ensuring that food and medical care are available to the population under its control, and for facilitating assistance by relief agencies. An occupying force has a duty to ensure the food and medical supplies of the population, as well as maintain hospitals and other medical services, "to the fullest extent of the means available to it" (Fourth Geneva Convention, arts. 55 and 56). This includes protecting civilian hospitals, medical personnel, and the wounded and sick. Medical personnel, including recognized Red Cross/Red Crescent societies, shall be allowed to carry out their duties (Fourth Geneva Convention, arts. 56 and 63).

The Fourth Geneva Convention states that while the occupying power has a duty to restore public order and safety, the criminal laws of the occupied country remain in effect. The occupying power may only set aside or modify laws that contravene humane and nondiscriminatory treatment or which pose a security threat to the occupying power (Fourth Geneva Convention, arts. 64 and 27). Any criminal laws enacted must be publicized in the local language; (retroactive) laws are prohibited. Through mid-May, Human Rights Watch could not confirm the existence of an Arabic translation of the criminal laws enforced by British troops in Basra, or more generally, by coalition troops across Iraq. No Iraqi interviewed by Human Rights Watch was aware of the existence of any criminal laws enacted by the coalition (and naturally, of an Arabic version of such laws).

So long as they can ensure the effective administration of justice, the courts of the occupied territory shall continue to function (Fourth Geneva Convention, art. 64). Until Iraqi courts are able to function, or where Iraqi penal law has been displaced or supplemented, the occupying power may set up "properly constituted, non-political military courts" with local or foreign judges to sit in the occupied country (Fourth Geneva Convention, art. 66); such courts must apply international fair trial standards. As of the time of writing, local courts were only tentatively being reconstituted in al-'Amara, and were not yet operational in other cities in southern Iraq.

These duties incumbent on the coalition as occupying powers have been strengthened by U.N. Security Council Resolution 1483 of May 22, 2003.⁴⁶ In the fourth paragraph of that resolution, the Security Council, acting on its Chapter VII powers, called on the occupying powers "to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people may freely determine their own political future." Moreover, such action is to be "consistent with the Charter of the United Nations and other relevant international law."

⁴⁵ This principle was clearly stated in the aftermath of World War II. See for instance United States v. List, et al., 11 Trials of War Criminals 757 (1948), where a military tribunal stated: "A commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime, and protecting lives and property within the area of his command." Jordan J. Paust, "The U.S. as Occupying Power Over Portions of Iraq and Relevant Responsibilities Under the Laws of War," ASIL Insights, April 2003.

⁴⁶ United Nations Security Council Resolution 1483 at paragraph 4, S/RES/1483(2003) available at http://ods-dds-ny.un.org/doc/UNDOC/GEN/N03/368/53/PDF/N0336853.pdf?OpenElement