Aid groups wary of working too closely with US in Iraq
Some workers wait in Jordan for clarification on whether partnering with the US is illegal.
A group of aid workers whiles away another afternoon in a chic Amman pastry shop, sipping cappuccinos and leafing through the Geneva Conventions. The well-intentioned group has been here for weeks, waiting for security clearance to enter neighboring Iraq do what they came here to do - help with Iraq's reconstruction.
While they have done this before in some of the world's most needy places - mending pipes in Afghanistan, rebuilding schools in Sierra Leone, and distributing food in Ethiopia - in Iraq, they are entering uncharted waters.
Naz Modirzadeh, a lawyer with the Harvard Program on Humanitarian Policy and Conflict Research (HPCR) at the head of the pastry-shop table, tells the baffled group that by working in Iraq they could be breaking the law.
The reason: Until a new Iraqi government is established, the US is considered an occupying force - and is prohibited from significantly altering the occupied territory by such actions as setting up a new government or changing preexisting laws.
By partnering with the US during this time, aid workers are under the same obligations as the occupying power itself. Some actions they take could cause them, unwittingly, to violate international humanitarian law.
Though the US rejects the label of occupier, Ms. Modirzadeh argues that, legally, it is one. In the context of an international conflict, the US is present in Iraqi territory and can impose control, while the former Iraqi government is no longer able to exercise authority. This, by definition, makes the US an occupying force.
Occupation comes with a long list of rules and regulations, as set out by the Geneva Conventions, to which the US and Iraq are signatories. The US - and nongovernmental organizations (NGOs) and UN bodies that partner with it - must, for example, maintain law and order and ensure sufficient supplies of food, water, and medical care for the civilian population.
But according to some experts, they are prohibited from certain activities, such as reconfiguring the police force or rewriting school curricula. These activities, which the US has expressed intentions of carrying out with the help of NGOs, need to be done with great care, if at all, lest they be deemed illegal.
"Working with USAID [US Agency for International Development], which funds development work around the world, feels natural," says Claude Bruderlein, director of HPCR. "But in this case it's a political statement and has a host of added responsibilities."
The Defense Department contends that the Geneva Conventions allow it to facilitate the proper working of institutions, including rebuilding schools, modifying curricula, and changing the judicial system. The US maintains that "It is the US and not an NGO or the UN that is responsible for ensuring, as far as possible, public order and safety," says Marine Corps Lt. Col. Michael Humm, Defense Department spokesman.
No one is suggesting the aid organizations refrain from helping in Iraq, where 60 percent of the population relies entirely on external assistance for survival. But what the HPCR and other legal bodies reaching out to the aid community today are saying is: Be aware, and beware.
"Only if the costs to the Iraqi people outweigh the benefits of assistance should the NGOs withdraw aid," says Sarah Kenyon Lischer, a specialist in humanitarian emergencies at Harvard University. "Subordination to the US military is distasteful to many charities ... but the disadvantages of that subordination are not likely to outweigh the benefits of the assistance provided to the Iraqi people."
But, warns Ms. Lischer, whatever goes on in coming weeks in Iraq will set a precedent for future crises, so organizations must think of the long-term effects of their actions. "From that point of view, complete capitulation to the Pentagon plan could set up a template for future crises in which humanitarian organizations have even less independence," she says.
The advice being given to the aid organizations by in-house lawyers and groups such as HPCR is to stick with urgent rehabilitation and reconstruction, and steer clear of projects that significantly alter the state structure of Iraq until the legal ramifications of occupation are worked out or the occupation ends. They should also use moral clout, their reputation for altruism, and access to media and governments to press for more civilian control over reconstruction.
Occupation formally ends with the reestablishment of a legitimate government, or other form of administration, such as by the UN. Government structures set up by the military do not fulfill the conditions. Thus, say legal experts, it remains to be seen whether the interim government, expected to be chosen in a month at a national conference, will signal the end of the occupation.