The US's pursuit of Iraqi oil is not only rapacious, but illegal as well, argues Ahmad Naguib Roushdy* It's official: Iraq is now under the belligerent occupation of the armies of the United States and Britain -- though it is actually a US occupation -- by virtue of Security Council Resolution No 1483 of 2003. Contrary to the law and practice of combatants in the past, the occupation was established for an indefinite period, presumably, as President George W Bush put it after the recent Sharm El- Sheikh summit, until the Iraqi people are ready to govern themselves, the same claim the British made during their prolonged occupation of Egypt. Bush had tried to convince the world that the war against Iraq was to liberate it from the tyranny of Saddam Hussein. Few though bought that argument in spite of his concerted attempts, along with British Prime Minister Tony Blair, to convince the world they were attacking Iraq because it possessed weapons of mass destruction -- a claim they could not prove. Persistent denials by US Defense Secretary Donald Rumsfeld that the war had nothing to do with oil were put paid to when international wire services and television channels reported that hours after the invasion began, US forces had captured two offshore oil terminals each with massive capacity for the fuel. Now Bush and Blair are facing tough battles in Congress and in the House of Commons to justify their lies about the war. Many writers have hit on oil as the main reason for the invasion. Others conclude that gaining control over Iraqi oil was merely a step towards achieving other goals. For instance, the writers Donald L Barlett and James Steele, in their article in the 19 March 2003 Time, "Iraq's crude awakening", presented Iraqi oil as the tool by which the United States intends to gain control over the international economy. But the Australian writer Geoffrey Heard, in an essay he published in March, entitled, "It's not about oil or Iraq. It's about the US and Europe going head--to-head over world economic domination," went beyond that, arguing that the invasion of Iraq would achieve three goals. First, by controlling oil in Iraq -- which has reserves second only to Saudi Arabia -- the US will be able to determine which countries receive the resource or obtain contracts in the industry. Iraqi oil is vital to Europe and China, while France and Russia have in the past invested heavily in the Gulf country. One benefit of this control for the US, then, is that it has the power to punish those who opposed the war. Second, US control will see the dollar replace the euro as the currency for which Iraq's oil is sold, Heard predicted. In the late 1990s, Saddam Hussein shifted Iraq's oil dealings from dollars to the euro. Control over oil would have an added bonus of strengthening the dollar. Third, the war would strengthen the US's position in its competition with Europe for international economic domination and political leadership after demonstrating its military superiority in the war. Heard contends that those goals were part of a plan made by the Americans before 11 September to revive the US economy through granting American companies contracts for oil exploitation and the reconstruction of Iraq. Iraqi oil, then, was viewed as the key to rebuilding the new American empire in the Middle East. Given the desperate state of the US economy, it seems unlikely Iraq would have been of any interest to the US if it weren't for its oil. Control over Iraq also gives Israel a chance to obtain Iraqi water to quench its thirsty population and avert its looming water crisis. Iraqi oil is particularly attractive in view of its relatively cheap production cost -- less than $1.00 per barrel, as compared to $2.50 in Saudi Arabia and $10.00 in the US). Hussein Abdallah, an oil and energy expert, anticipates in his new book, Arab oil: a detailed economic and political study, that Iraq will be one of six Organisation of Petroleum Exporting Countries (OPEC) able to increase its total production capacity from 24 million barrels a day in 2000, to 48 million barrels a day in 2020. Barlett and Steele, for their part, predict that Iraq will be able to increase its production by 12 million barrels a day and thereby surpass Saudi Arabia. Should their projections come to pass, there is no doubt that Iraq will be the most important player in the international oil market. Bearing in mind that such a level of production is not expected to be reached for at least 10 years, the obvious question is: how long do the Americans expect to occupy Iraq? Political developments suggest that the American plan is underway. The UN Security Council resolution I mentioned earlier failed to condemn the unlawful invasion, lifted sanctions -- how else would US companies deal in Iraqi oil? -- and placed the administration of the country in the hands of the US occupation authority with a marginal role for the United Nations in the country's reconstruction. Notably, the occupation authority was given exclusive jurisdiction in operating Iraqi oil fields. Due to the fact that the occupation authority is bound to respect international law in administering occupied territory and its natural resources, and owing to the vital role of Iraqi oil in the recent war and to the future of world energy needs, it is necessary to summarise the limits of the occupier's authority over oil resources. The international rules related to occupations are codified in Hague Convention No IV of 1907, Respecting the Laws and Customs of War on Land and Annex Thereto Embodying Regulations Respecting the Laws and Customs of War on Land (The Hague Regulations); and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949 (the Geneva Civilian Convention). It is essential to state that the rules of warfare, which aim to diminish the evils of conflict are, as The Hague Convention states, "intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants". Hence, an occupation does not transfer the sovereignty of the occupied land to the occupier. The occupier is only considered an administrator of the occupied land and the sovereignty over the land is preserved for the original sovereign, the people. The rules, then, were set-up to ensure that humanitarian values in the occupied land are not violated. Although the invading army is strictly forbidden from attacking or killing civilians, destroying or pillaging civilian property, hospitals or places dedicated to religion, charity and education, the practice of combatants in past wars and, in particular, in the American invasion of Iraq, evidences that those rules haven't always been followed. In principle, the rules related to property rights in occupied territories do not prevent the occupier from using the enemy's property. However, those use rights do not extend beyond establishing law and order and they are different for private property and public property, the latter of which was often referred to as state property. In either case, pillage and destruction of any kind of property in the occupied land are forbidden. Private property comprises the property of individuals, companies and private establishments. The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even state property, is to be treated as private property. In general, and according to Article 52 of the Hague Regulations, the occupier is prohibited from confiscating, seizing or destroying private property. The military commander is entitled to demand requisitions in kind and services from municipalities or inhabitants, such as food and crops, means of transport and the like, but only to meet the needs of the occupying army, and in proportion to the resources of the country after satisfying the needs of the civilian population. The occupier should not attempt to deplete resources or violate humanitarian values. At the end of the occupation, the occupier is obliged to return the used items or pay their fair value (Article 52 of the Hague Regulations and 55 of the Geneva Civilian Convention). Furthermore, Article 55 of the Geneva Convention added a protection of a notable human right for the civilian inhabitants: it obliged the occupier to provide them with food, medical supplies and hospitals. If resources in the occupied territories are insufficient to meet those needs, the occupier has the duty to import those items. So far the occupation authority in Iraq has failed on those counts. Regarding public or state property, a distinction is usually drawn between movable and immovable property. With respect to movable public property -- crops, supplies, means of transportation, currency and in general, all movables that can be used in the operations of war -- the occupier is permitted to seize them or utilise them without payment of compensation. The occupation army can also seize depots of arms, and, generally, all kinds of ammunition, even if it belongs to individuals, but must be restored and compensation fixed when peace is made (Article 53 of the Hague Regulations). Immovable public property raises some questions. Of great importance is the standard established by the Hague Regulations obliging the occupier to minimise damage in the occupied territories. As a rule, the occupier is prohibited from seizing immovable public property. The occupant is only regarded as an administrator of immovable public property, such as public buildings, real estate, forests and agricultural land. It must safeguard the capital of these properties and administer them according to the rules of usufruct (Article 55 of the Hague Regulations). The occupier, in exercising the right of usufruct, should administer the immovable public property with diligence and should not deplete or destroy it. This is also required of the usufructuary under internationally recognised rules of usufruct as originated in Roman Law, and in legal codes including Shari'a, the Common Law of the United States and England, and in the Civil Law system, in force in France, Italy, Germany, Egypt, Iraq, Libya and many other countries. Therefore, the basic rule in this regard is that what is renewable is consumable. So the right of usufruct is the right to use and enjoy the property of another, which permits appropriating the fruits of the property on condition that the character of the property remains unchanged. Agricultural crops are a typical example of fruits of the land that are renewable and whose appropriation does not affect the soil or structure of the land. On the other hand, if the utilisation of the land will result in affecting its capital or character, as in constructing buildings on arable land, the usufructuary will be in violation of the law and will lose its right to utilise the land. The extraction of fossil fuels provides a perfect case of the abuse of the right of usufruct. In situ fossil fuels, such as oil and gas, are part of the porous underground rocks. They are not the product of the soil or its fruits. Extracting fossil fuels is taking the soil itself, the substance, or, the capital of the property which will result in the depletion and exhaustion of the soil, a matter which contravenes the rules of usufruct. Once oil is extracted, it cannot be renewed and the underground reserves will be depleted. Indeed, if the usufruct cannot be established on in situ fossil fuels the occupier cannot change the nature of the fossil fuels in the subsoil to a movable by extracting them. Consequently many international courts, especially since World War II, have affirmed that an occupier is not permitted to use the oil fields of the country it is administering. Under the resolutions of the General Assembly of the United Nations, sovereignty over natural resources is reserved for the people of a country who have the exclusive right to choose how to utilise them for their own economic benefit. Violations have occurred to the limits imposed on occupiers at the orders of the of the commander of the occupying army or as a result of his government's policies. One such example was the Israeli plan to exploit oil resources in the Egyptian Sinai desert during its occupation after the 1967 War. Israel granted a concession to an oil company for exploration and extraction of oil in the Sinai and the Gulf of Suez. Israel exhausted those oil resources, using them on its mainland and selling them in the international market in violation of the rules of usufruct, a matter which gives the Egyptian government the right to demand compensation (see my article in the Al-Ahram daily, 1 July 1998). The American occupier gives every appearance of being about to repeat history in Iraq. After proclaiming that the US had liberated Iraq, President Bush announced that the occupation authority in Iraq would respect international law and that it would exploit Iraqi oil resources for the benefit of the Iraqi people. In supporting this pledge, much of the Security Council resolution reflects Bush's efforts to reassure the world that the US intends to adhere to international law. The resolution requires that the proceeds from selling Iraqi oil will be turned over to a new Iraqi Assistance Fund held by the Iraqi Central Bank, with an international advisory board including representatives from the UN, the World Bank, the International Monetary Fund and others. The proceeds will be used in the Iraqi oil-for-food-programme and in the reconstruction of Iraq (mending or restoring what the American and British troops have destroyed). A portion of the proceeds would go to pay restitution for the Kuwait invasion of 1990, although one is given to wonder what will be done about Iraq's debts to foreign companies and other countries. The Bush administration did not keep its promise to adhere to international law for long. Reports that American companies, such as Halliburton and Bechtel were granted major contracts in the exploitation of Iraqi oil and the reconstruction of Iraq, respectively, came swiftly on the heels of the end of military operations. It is well known that Vice- President Dick Cheney's previous job was as chief executive officer of Halliburton and that George Shultz, a former secretary of state, and an advisor to President Bush, is one of Bechtel's senior executives. The conflict of interest is plain for all to see: the US occupation of Iraq is favouring American companies in the exploitation of oil resources and reconstruction. In consequence, the American economy will be enriched by using the resources of the occupied territories, which violates the rules of war. Utilisation of resources in occupied Iraq then, is not proceeding in accordance with international law. Not only is the occupation authority forbidden from exploiting Iraqi oil using American companies, but it is also forbidden from granting contracts to foreign concerns. Whatever the arrangement under which oil extraction proceeds -- a concession, joint-venture, or profit-sharing sharing scheme -- the occupation authority does not have the right to give such contracts to any company. Regardless of the precise details of the agreements, the companies will be given a percentage of the produced oil to cover production costs, and another percentage as a reward for bearing the project's risk or for the development of oil fields. The company will sell its share of the oil in the international market, meaning that the American economy will be enriched on account of and without the consent of the Iraqi people by virtue of the US invasion. These benefits to the American economy will increase in proportion to the company's efforts to increase the capacity of the oil fields in a manner that may deplete them, which amounts to destruction due to the continuing depletion of the underground reserves. It's no surprise that the United States, the sole superpower at present, is attempting to use its might for economic benefit; history is replete with examples of such behaviour. It is, however, a pity that the United States waged an unjustified war against Iraq and carried it out unlawfully and wantonly in violation of the very rules the United States participated in drafting and promulgating. Indeed, the US, for similar violations, put the leaders of the German Nazis on trial in the Nuremberg courts after World War II. No one expects the US administration to listen to reason. The Iraqi campaign was a clear warning to other countries that would dare oppose the US. But if the United States is claiming to lead the free world, it must not shirk its vital duty to show that it is a law-abiding country, and is thereby willing to protect Iraqi civilians from being killed by American soldiers, to protect private property and natural resources and return the country to its original sovereign, the Iraqi people. The US's violations of international law through its invasion and occupation of Iraq surely make it and its subordinates criminally responsible and legally liable for compensation and restitution. The Bush administration's attempts to exempt American citizens from the jurisdiction of the International Criminal Court is not merely a shameful and unprecedented act, but an admission of guilt. * The writer is an attorney-at-law based in New York and Cairo.
