"Take Their Oil" And the Law of War

The question has been posed to me: “Where does it say that while we occupy a nation we are at war with we can't use the natural resources of that occupation?”  “Where” is in what is (for complicated historical reasons) commonly called “the Geneva Convention,” but is more properly designated the

Convention respecting the Laws and Customs of War on Land; The Hague, 10/18/1907 (Hague IV)

to which the United States of America and the Ottoman Empire (predecessor, for treaty-obligation purposes, of the Republic of Iraq) were original signatories, and in particular, in the

ANNEX TO THE CONVENTION
REGULATIONS RESPECTING THE LAWS AND CUSTOMS OF WAR ON LAND

SECTION I
ON BELLIGERENTS

Art. 2. The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.

(I’ve granted myself permission to quote some parts, and make some comments, that are not strictly germane to the “Kick ‘Em in the Ass And Take Their Gas” program the G.W. Bush Administration’s non-adoption of which has been the occasion for our new President’s expressions of wistful regret.)

With customary Oriental torpor, civilian Iraqis failed to take up arms spontaneously upon our approach, doing so only after their territories had (mostly) been occupied.  Whether these facts provide any support for the G.W. Bush Administration’s effort to add the novel classification “enemy combatant,” completely different from the “belligerents” who are subject to and protected by the Convention, may nevertheless be doubted.

Art. 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden –

* * *

(g)       To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war;

Arguably, though, this applies only to the enemy’s property while it is still in territory which has not been occupied.

Section III: Military Authority Over the Territory of the Hostile State

Art. 43. The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

If you recall D. Rumsfeld’s gleeful dismissal of all suggestions that we had any responsibility to suppress chaos in occupied Baghdad, you might begin to think that’s where the right-wing attack on the Geneva Conventions began – but I think you really need to look a little farther back.  (But don’t look to A. Hitler. Despite urging by Goebbels in the final months of WW II, Hitler refused to authorize open violation of the Geneva Conventions by the Wehrmacht.)

Art. 46. Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated

Art. 47. Pillage is formally forbidden.

Art. 48. If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do so, as far as is possible, in accordance with the rules of assessment and incidence in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to the same extent as the legitimate Government was so bound.

Art. 49. If, in addition to the taxes mentioned in the above article, the occupant levies other money contributions in the occupied territory, this shall only be for the needs of the army or of the administration of the territory in question.

Art. 52. Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country.

Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied.

Art. 53. An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations.

Art. 55. The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

OK. Let’s assume the wells in question are not private property but are owned by the Iraqi state.  So is the usufructuary entitled to pump oil out of the wells?  If you think our tax code is right in giving oil companies a “depletion allowance,” then the answer has to be “No.”  If you think of petroleum deposits as eternally self-renewing, like the ever-springing corn, then yes, we should get to harvest it as long as we occupy the territory in which the wells are located.

That the oil once pumped should be used for something other than the needs of the occupying army or the administration of the occupied territory, though, is certainly at odds with the general approach of Section III of the Convention.  The sale of the oil and appropriation of the proceeds for the general enrichment of the occupying power would, in any case, be hard to distinguish from the “formally forbidden” act of pillaging.

The argument that sucking resources out of an occupied country for the general benefit of the occupier is a violation of Section III formed the basis for several of the war crimes charges that we used to convict leading Nazis, and hang some of them, at Nuremburg in 1945-46

Anyway, the prolongation of our occupation for the purpose of pumping and selling more of the oil would have been completely irreconcilable with the noble Liberation of the Iraqi People which the G.W. Bush Administration declared to be our purpose in going to war. It would also have required us to keep our servicemen in harm’s way in order to make more money from the oil we were taking. And how would they, their families or their Congressmen have felt about that?