JURIST 2016 Law of Armed Conflict Contributing Editor Laurie R. Blank of the Emory University School of Law discusses recent political comments concerning application of law during times of war…

The apparent deliberate bombing of a UN relief convoy bringing lifesaving supplies to the beleaguered population of Aleppo, Syria was the epitome of the no-holds-barred approach to conflict [JURIST] that Syrian President Bashar al-Assad’s regime has taken since the conflict began in 2011. Contrary to Assad’s blatant disregard for human life, however, there are clear rules prohibiting such acts precisely to minimize suffering and enable efforts to sustain and preserve human dignity during war — rules codified in international treaties for over 150 years. Unfortunately, recent discourse here in the US poses an extraordinary danger to this essential framework.

Last week, Republican Presidential candidate Donald Trump announced that if he has been in charge in 2003 — and going forward if he were to become Commander-in-Chief — the US should “take all the oil out of Iraq,” and use it for its own purposes, including sale and use of the revenue for any purpose. His basis for this statement was an anachronistic “to the victor belong the spoils” theory. In response to questions about this proposition, former New York Mayor Rudolf Giuliani, a regular stand-in for Trump, stated emphatically that, “until the war is over, anything is legal.”

The statement is wrong on two levels: first, taking the oil out of Iraq violates international law and the law of armed conflict; and, second, there is a remarkably robust and comprehensive framework of law that applies specifically in war to regulate the conduct of hostilities and the protection and treatment of persons.

At a deeper level, however, the claim that “anything is legal” in war presents an existential challenge to the very nature of law as an essential tool to minimize suffering during wartime. Fifteen years after 9/11 and the many legal issues the attacks and subsequent conflicts have engendered, this argument is incomprehensible — and highly dangerous. It goes beyond the now-familiar claims that the law does not work effectively to counter terrorist groups or that the law should be interpreted narrowly (to exclude certain protections and duties), or quite broadly (to encompass certain rights and authorities). All of those highly problematic claims nonetheless rest on a shared – if quite frayed in the context of those arguments – notion that law exists and plays a role in wartime. In contrast, to say that “anything is legal” in war is to turn the law solely into a tool of empowerment and to eliminate altogether any conception of law as restraint, as parameters, as guidance.

First, the specifics: the idea that the US could simply take over Iraq’s oil wells – either back in 2003 or now – and pump the oil out for its own benefit utterly disregards sovereignty, the fundamental ordering structure of the international community. It also flies in the face of established international law for nearly a century and a half.

Both The Hague Conventions of 1899 and 1907, and the Fourth Geneva Convention of 1949 [PDF, report] affirm that an occupying power does not acquire an unfettered right to use, destroy, exploit, and otherwise take advantage of the territory, property, and natural resources of the occupied country. Rather, an occupying country is a caretaker that administers the occupied territory and must preserve the status quo as much as possible. Although an occupying power may use the natural resources and public property of the occupied territory where necessary for its own military purposes, such use does not extend to expropriation for development, financial, or other purposes.

Occupation is not a license to bleed a country dry; the days of war as conquest are long over. International law protects a nation’s sovereignty, even when it has been occupied — the occupied country does not cease to exist, and it retains its territory, population, and the rights and duties owed to that population.

But it is the overarching message about law and war that is so troubling and must be rejected. Historically, it has been Cicero‘s famous statement, penned in Ancient Rome, that formed the backdrop to highlight advances in the legal framework applicable during war. Silent enim leges inter arma, (often also rendered as: inter arma enim silent leges), Cicero wrote, popularly translated as, “in times of war, the law falls silent.” Interpreted to mean that the law did nothing to constrain leaders and the government during war, Cicero’s powerful critique of conditions at the time has consistently been used in modern times as the contrast to highlight the importance of protecting individual rights in war and times of crisis.

The idea that laws fall silent during war is, of course, highly problematic and raises the specter of the unfettered executive of which the US Supreme Court has warned in the past, and the horrific attacks on relief convoys and hospitals across Syria and other conflict regions. But, a claim that in war “anything is legal,” poses an entirely different scope of danger. If anything is legal, that means not only that the law fails to restrain the government and protect citizens in its usual manner, but that the law actually empowers the government to take action directly contrary to individual rights, another nation’s sovereign rights, or any of the other concerns that animate modern international law and the law of war.

A German military doctrine from the early 1900s called Kriegsraison theorized that military necessity could trump international law whenever needed; it was roundly rejected at the Nuremberg tribunals, and in national courts in the years since. Even that never-accepted theory began with the idea of law as a restraint, and then sought ways around it. “Anything is legal” turns law into a farce, a simple window-dressing at best, and a tool for great harm at worst.

In direct contrast to the law of war’s core purposes of protecting civilians from harm during war, minimizing unnecessary suffering of combatants, and enabling effective and moral military operations, an “anything is legal” construct would simply enforce as legal the government’s every whim and desire in the pursuit of power and military conquest. No less, one can only envision how quickly such a government might transition to that same approach in the domestic arena as well.

When Cicero’s words that in times of war, the law fall silent begins to look like a positive trend, it’s time to speak up on behalf of the law, and reinforce its essential role in wartime just as in peacetime.

Laurie R. Blank is a Clinical Professor of Law and Director of the International Humanitarian Law Clinic at the Emory University School of Law, and is the 2016 JURIST Contributing Editor of the Law of Armed Conflict.

Suggested citation: Laurie R. Blank, Cicero, International Law, and the Oil in Iraq, JURIST – Academic Commentary, September 23, 2016, http://jurist.org/forum/2016/09/laurie-blank-cicero-oil.php.