In an interview with ABC News anchor David Muir on January 25, 2017, President Donald Trump repeated his position that the United States “should have taken the oil” from Iraq during the occupation of the country following the 2003 US-led invasion. Trump has sought to justify this position as victor’s justice and as a move that might have stopped the rise of the Islamic State (also known as ISIS). When Muir pressed him about critics who say doing this would have violated international law, Trump dismissed them as “fools.” In fact, Trump’s position would violate US law and military regulations that go back to the American Civil War and longstanding US international legal obligations, which have had the support of successive US administrations, the US armed forces, and the United Nations Security Council.

Pillage and International Law

Trump’s position on taking Iraq’s oil amounts to “pillage,” a serious violation of international humanitarian law, or the laws of war. The US tradition of prohibiting pillage is deeply rooted: President Abraham Lincoln included it in General Orders No. 100 to Union soldiers in 1863, known as the Lieber Code. The two principal multinational treaties concerning military occupation, The Hague Regulations of 1907 and the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) explicitly prohibit pillage.

Pillage has generally been defined as the unlawful appropriation of public or private property in connection with an armed conflict. During a military occupation such as in Iraq, international humanitarian law only permits an occupying army to use the natural resources of the territory for the needs of the occupying army or for the benefit the local population. Neither of these exceptions would apply to the kind of economic exploitation Trump is advocating, which is contrary to positions long held by the US government and reflected in a US State Department memorandum in 1977.

Taking Iraq’s oil would also most likely be a crime under US law. The 1996 US War Crimes Act makes it a criminal offense to commit a grave violation of the Geneva Conventions or to violate specific articles of The Hague Regulations, including the prohibition on pillage. Violations of the War Crimes Act can result in a sentence of life in prison.

US control of Iraq’s oil was a major issue at the outset of the 2003 invasion of Iraq, and the George W. Bush administration made clear that it would comply with international law and not appropriate it. After US-led Coalition forces took control of Iraq, the Coalition sent a letter to the United Nations Security Council committing to “strictly abide by their obligations under international law,” even though its forces committed violations of that law, such as the prohibition on torture. The coalition also said it would “ensure that Iraq’s oil is protected and used for the benefit of the Iraqi people.”

Afterwards, the Coalition established the Development Fund for Iraq, an independently audited fund that held revenues from the sale of Iraqi oil for the benefit of the Iraqi people. The Fund later came under the oversight of the Security Council through Resolution 1483. Human Rights Watch and others have identified numerous issues with the Fund, including the questionable flow of billions of US dollars to American contractors. But despite these problems, the Fund reflects the Bush administration’s recognition that “taking Iraqi oil” would be inconsistent with US legal obligations as an occupying power.

ISIS and Oil Funds

In the January 25 interview, Trump said that if the US had taken Iraq’s oil, “you wouldn't have ISIS because they fuel themselves with the oil.” In reality, ISIS’s control over oil fields has been greatly eroded in the past year and the vast majority of its remaining oil sources are located in Syria. However, even with its reduced oil revenues, governments could legally and more easily thwart ISIS’s funding by making sure that no one buys its oil. The largest consumer of that oil happens to be the Syrian government, with help from Russian businessmen and banks.

Oil and gas sales to the government of Bashar al-Assad are now ISIS’s largest source of funds, according to US and UK officials. Its oil smuggling routes to Turkey have been severed, forcing ISIS to reroute its oil to the Syrian government. The US Treasury Department has alleged that these purchases are facilitated by a number of Russian businessmen, as well as Russian banks. The Obama administration sanctioned these individuals and entities it identified as involved in this trade. Trump, however, has said that he will seek a closer partnership with Russia and Syria to fight ISIS. Paradoxically, that approach could increase funds to ISIS instead of reducing them.