Iraq:
The end of occupation?
An Interim Iraqi
Government has come into being with Ayad Allawi as Prime Minister. It is supposed to run Iraq from 1 July until
elections to a National Assembly are held in six or seven months time. Then a Transitional Government is supposed
to be formed out of the Assembly, which will also have the task of drafting a
constitution for the approval of the Iraqi people. If a constitution is approved, the process is scheduled to be complete
by the end of 2005, when a government elected under that constitution takes
power.
The Security Council
has now blessed these arrangements for Iraq in resolution 1546 passed on 8
June.
That’s
the plan but, with the chaos that the invasion has brought to Iraq, it is
fanciful to believe that the Interim Government will be capable of governing
Iraq in any meaningful sense after 30 June.
It is also very doubtful if even the first step on the road to a
permanent government of Iraq – the holding of elections – will come to pass by
31 January 2005 as planned. And then
comes the hard part: how to bring about a viable system of government in what
is a fundamentally artificial state. It
may never happen.
The
occupiers now tell us that they are keeping their troops in Iraq only for the
benign purposes of bringing about “security and stability”
to Iraq, and fighting “terrorism”. But
what is going on in Iraq is primarily armed resistance to their occupation, and
the most effective way of ending that armed resistance is for the occupation
forces to withdraw. One would be a
starry eyed optimist to believe that peace would break out as a result but it
removes a major part of the problem.
Ayad Allawi is a
secular Shia, who before the US/UK invasion headed the Iraqi National Accord
(INA), an exile group made up largely of former Ba’athists, civilian and
military. The INA was favoured by the
US State Department and the CIA (and supplied MI6 with the flawed
“intelligence” about the 45-minute claim) and, with the help of the CIA, it
mounted an abortive coup against Saddam Hussein in the mid-90s.
Allawi is an ardent
supporter of the invasion, and was appointed by the US to the Iraqi Governing
Council last July. After becoming Prime
Minister, he expressed his gratitude to the Americans, who, he said, “have
sacrificed so much to liberate us”, and he invited the occupation forces to
stay. According to opinion polls, he
has almost no support amongst the Iraqi people.
On the face of it, the
Prime Minister is an American puppet, and the handover is a sham (as I wrote in
last month’s Labour & Trade Union Review). But, with his Iraqi adventure increasingly unpopular with the
American electorate, Bush is in a very weak position and he is desperate to
give the impression that Iraq will be ruled by Iraqis from 30 June and that he
has got a viable strategy for extricating the US from Iraq – otherwise his
chances of re-election in November are at best slim and at worst non-existent.
He had to climb down
at Fallujah, when his own appointees on the Iraq Governing Council threatened
to revolt. This was followed by another
climb down in respect of Moqtada al-Sadr, who has not been arrested and whose
militia has not been disarmed. He cannot
be seen to be at odds with Iraqis who have been prepared to work with him at a
time when Iraqis are supposed to be running Iraq.
He has now been forced to
hand over power to the Interim Government, on paper at least, to a much greater
extent than was envisaged when the handover was first mooted last November in
response to the growing insurgency at that time. He has been forced by military and political pressure from inside
Iraq, and also from France, Germany and Russia on the Security Council. They have been pushing at an open door,
since it is an electoral necessity that power appears to be transferred
completely to Iraqi hands on 30 June.
As a result, that’s what resolution 1546 says, more or less, as we shall
see.
The occupying forces
We will now examine the arrangements, on paper, for the handover,
as specified in resolution 1546, and elsewhere.
First, let us look at the arrangements for control of the
occupation forces, aka the multinational force. Resolution 1511, passed
last October, authorised the occupation forces to use lethal force to put down
resistance to occupation. It put no
limits of any kind on US action – US Marines were acting with the full
authority of the Security Council when they killed hundreds of people in
Falluja. The only obligation placed
upon the US in resolution 1511 was to report to the Security Council every six
months – John Negroponte delivered the first report on 16 April.
By contrast, resolution 1546 does attempt to put limits on US
action, not least by stating that the Iraqi government - either the new Interim
Government or the Transitional Government formed after elections - can request
the termination of the mandate of the “multinational force”, in other words,
that the occupation forces be withdrawn.
Paragraph 6 of the resolution states:
“[The Security Council] Decides further that the mandate for the
multinational force shall be reviewed at the request of the Government of Iraq
or twelve months from the date of this resolution, and that this mandate shall
expire upon the completion of the political process set out in paragraph four
above, and declares that it will terminate this mandate earlier if
requested by the Government of Iraq;”
Theoretically, therefore, any Iraqi
government, including the Interim Government, can have the occupation forces
withdrawn at any time.
Tacked on to resolution 1546 is a pair of
letters dated 5 June, one from Prime Minister Allawi and the other from US Secretary
of State, Colin Powell. The Allawi
letter requests the occupation forces to remain in Iraq:
“Until we are able to
provide security for ourselves, including the defence of Iraq’s land, sea and
air space, we ask for the support of the Security Council and the international
community in this endeavour. We seek a new resolution on the Multinational
Force (MNF) mandate to contribute to maintaining security in Iraq, including
through the tasks and arrangements set out in the letter from Secretary of State
Colin Powell to the President of the United Nations Security Council.”
The two letters are concerned primarily
with the arrangements for control of the “multinational force”. In his letter, Allawi proposes to set up a
Ministerial Committee for National Security, in which the US military commander
is to be invited to participate, to which Powell responds in his letter:
“The commander of the MNF will work in
partnership with the sovereign Government of Iraq in helping to provide
security while recognizing and respecting its sovereignty. To that end, the MNF
stands ready to participate in discussions of the Ministerial Committee for
National Security on the broad framework of security policy, as referred to in
the letter from Prime Minister of the Interim Government of Iraq Allawi dated 5
June 2004.”
Prior to the US retreat at Fallujah,
I would have regarded US assertions of willingness to discuss security policy
with an Iraqi government as meaningless window dressing. But, up until November, the appearance of a
handover to Iraqis has to be maintained, otherwise Bush is dead in the water,
so US freedom of action is going to be circumscribed.
US military action in Iraq against the wish of
the Interim Government would give the wrong impression to the US electorate
that the US is still running Iraq. So,
it’s a fair bet that, up until November at least, not only policy but specific
operations will be discussed with the Interim Government, and that major
operations will not be embarked upon without its consent. After November, things may be different.
The UN withdrew its personnel from Iraq
after the bombing of its building in Baghdad last August. Since then, a limited number of UN
personnel, including Kofi
Annan’s Special Advisor on Iraq, Lakhdar Brahimi, have
returned for specific purposes. I don’t
know whether the occupying forces have been providing them with protection or
whether they have hired their own private security.
It is expected that considerably more UN
personnel will be in Iraq over the next six months to assist with the
elections, and Kofi Annan has now agreed that they be protected by the
occupying forces.
I first came across a reference to this in
Negroponte’s report to the Security Council on 16 April:
“With the support of the United Nations, the United States has begun to
solicit force contributions for the protection of a broad-based UN mission
whose role will be further defined by Security Council action. Operating
as part of the MNF, such forces would be dedicated solely to providing security
for United Nations personnel and facilities. … I urge that member states
contribute to the future of Iraq by providing troops to carry out the function
of security support for the essential United Nations role. Member states should
contact my delegation or the other Coalition members as soon as possible.”
This has now been formalised in resolution 1546,
paragraph 13, which notes the intention set out in Powell’s letter “to create a
distinct entity under unified command of the multinational force
with a dedicated mission to provide security for the United Nations presence in
Iraq”. Presumably, a “distinct entity”
(with blue helmets?) is being created in the hope of disassociating the UN from
the occupation, and rendering it less vulnerable to attack. It seems like a vain hope.
Resolution 1546 makes no mention of
the sensitive issue of who will be in charge of the prisons after 30 June. However, Powell’s letter leaves no doubt
that US forces will continue to detain, and no doubt interrogate, people as
they see fit. Of the tasks to be
undertaken by the “multinational force”, he writes:
“These include activities necessary to counter
ongoing security threats posed by forces seeking to influence Iraq’s political
future through violence [which the US would never do]. This will include combat operations against
members of these groups, internment where this is necessary for imperative
reasons of security, and the continued search for and securing of weapons that
threaten Iraq’s security.”
Who is to control Iraqi armed forces? Last March, the US-appointed Iraqi Governing
Council signed, albeit reluctantly, the so-called Transitional Administrative
Law (TAL), which was supposed to apply until a new constitution is arrived
at and a government elected under it (see Iraq: the occupation goes on
in the March issue of Labour & Trade Union Review).
Article 59(b) of it says:
“Consistent
with Iraq’s status as a sovereign state, and with its desire to join other
nations in helping to maintain peace and security and fight terrorism during
the transitional period, the Iraqi Armed Forces will be a principal partner in
the multi-national force operating in Iraq under unified command pursuant to
the provisions of United Nations Security Council Resolution 1511 (2003) and
any subsequent relevant resolutions. This arrangement shall last until
the ratification of a permanent constitution and the election of a new
government pursuant to that new constitution.”
So, according
to the Transitional Law, Iraq armed forces were to be under US command until
the end of this transitional period.
That provision has now been set aside: resolution 1546 makes it clear
that Iraqi armed forces are to be under Iraqi command. Paragraph 8 talks about Iraqi armed forces “operating under the authority of
the Interim Government of Iraq and its successors” and paragraph 11 notes that
“Iraqi security forces are responsible to appropriate Iraqi ministers”. That is a significant change.
It now looks as if the Transitional Law as
a whole is no longer sacrosanct.
Certainly, there is no mention of it at all in resolution 1546. This is strange because the steps envisaged
in the transition are listed, and approved of, in paragraph 4 of the
resolution, yet there is no mention at all of the law which was supposed to
apply during the transitional period.
If the Transitional Law has been set
aside, it is a highly significant development – and a great victory for
Ayatollah Sistani. He objected to it
from the outset on the grounds that it was unreasonable that the National
Assembly to be elected in six or seven months time should be bound by this law
drawn up by the occupying powers and their appointees in the Iraqi Governing
Council. Because of his objections, the
13 Shia members of the Governing Council signed the law with great reluctance,
and considerable hesitation, last March and 12 out of the 13 of them attached a
reservation threatening to amend the law at a later date.
In a letter to Lakhdar Brahimi on 19 March, Sistani complained that:
“The future
National Assembly will be shackled by many restrictions that will prevent it
from undertaking what it sees as congruent with the interests of the Iraqi
people. A non-elected council – the Interim Governing Council – in coordination
with the occupying authority foisted upon the future National Assembly a
‘strange’ law to administer the country during the transitional phase. It also
dictated – and this is most dangerous – specific principles, rules and
mechanisms with regard to the writing of a permanent constitution and
organising a referendum.” (quoted in Iraq's Transition: On
a Knife Edge by the International Crisis Group).
The Transitional
Law allows the law itself to be changed by the National Assembly, but it is
difficult to do so – it requires unanimity in the three-man presidency of the Transitional
Government and a three-fourths majority in the Assembly. (The structure of the Transitional
Government, including the three-man presidency, and the mechanisms for forming
the Government, and much else besides concerning the arrangements for the
transitional period, are laid down in the Transitional Law itself).
According to a
comment by Juan Cole dated 9 June (see www.juancole.com), while resolution 1546 was in
gestation, Sistani wrote to Kofi Annan in the following terms:
“It has reached us that some are
attempting to insert a mention of what they call 'The Law for the
Administration of the Iraqi State in the Transitional Period' into the new UN
Security Council resolution on Iraq – with the goal of lending it international
legitimacy. This ‘Law’, which was legislated by an unelected council in the
shadow of Occupation, and with direct influence from it, binds the national
parliament, which it has been decided will be elected at the beginning of the new
Christian year for the purpose of passing a permanent constitution for Iraq.
This matter contravenes the laws, and most children of the Iraqi people reject
it. For this reason, any attempt to bestow legitimacy on it through mentioning
it in the UN resolution would be considered an action contrary to the will of
the Iraqi people and a harbinger of grave consequences."
Sistani clearly got his way, as he has
done throughout. He refuses to talk
directly to the US authorities, but they have had to bow to his wishes at
almost every stage.
A year ago, he insisted that a new
constitution could only be drafted by a
constitutional conference directly elected by the Iraqi people and that was
conceded by the US in proposals made on 15 November 2003, which form the basis
of the present proposals. But he
objected to the proposal to
create a National Assembly, out of which the new Interim Government was to be
formed, by holding “caucuses” in each of Iraq's 18 governorates. He demanded direct elections to the Assembly. The US said it couldn’t be done in
time. Eventually, he demanded that the
UN was brought in to mediate, and the US had no option but to accede to his
demand. Kofi Annan sent a fact-finding
mission to Iraq led by Lakhdar Brahimi. It
reported on 23 February, and agreed with the US that elections couldn’t be held
before 30 June but recommended that the “handover” go ahead anyway.
Originally, it seemed that the US was content that Brahimi select
the Interim Government, and he indicated that, because of the unpopularity of
the US-appointed Iraqi Governing Council, he would appoint a group of
technocrats to run Iraq until the end of the year. However, in the event, Brahimi’s choices for Prime Minister and
President were both overruled. For
Prime Minister, Brahimi had chosen for Hussain al-Shahristani, a secular Shia
and a nuclear scientist jailed under Saddam Hussein, who last year refused a US
invitation to serve on the Council on the grounds that it would be a US puppet. However, the Council chose one of their own,
Ayad Allawi, and, with the support of the US, announced its choice without
telling Brahimi. His choice for
President – Adnam Pachachi – was backed by the US, but the Council chose Sheikh
Ghazi al-Yawar instead, and Pachachi retired from the fray.
Why the US undermined Brahimi at the last moment is a mystery,
since even President Bush seems to have worked out that an Iraqi government
with an appearance of independence from the US would best serve the US
interest, and his own personal chances of being elected in November. Allawi is much closer to the US than
Brahimi’s choice for Prime Minister.
However, there doesn’t seem to be much difference between the two choices
for President: both Pachachi and Sheikh Ghazi are secular Sunnis, who publicly
criticised the US use of force at Fallujah and have demanded that a time limit
be put on the US occupation.
It has been widely reported that Sistani has welcomed the Interim
Government, even though his original demand that the Interim Government be directly
elected has not been fulfilled. Jack
Straw told the House of Commons on 7 June that he had done so.
I haven’t come across a specific statement on it from him or
anyone speaking for him, and I doubt that he was as enthusiastic as has been
reported.
Lawmaking powers?
There are a number of key questions about the powers of the
Interim Government. In particular, can
it amend existing law and make new law?
Resolution 1546 says in paragraph 1:
“[The Security Council] Endorses
the formation of a sovereign Interim
Government of Iraq, as presented on 1 June 2004, which will assume full
responsibility and authority by 30 June 2004 for governing Iraq while
refraining from taking any actions affecting Iraq’s destiny beyond the limited
interim period until an elected Transitional Government of Iraq assumes office
[in January 2005]”
The limitation contained in the latter clause is yet another
response to Sistani, who has consistently expressed the view that unelected
bodies should not make decisions affecting the long term future of Iraq.
But, will the Interim Government be empowered to alter, for
instance, Orders made by the occupying powers?
Robin Cook asked
Jack Straw that very question in the House of Commons on 7 June. He said:
“A month
ago, Ambassador Bremer said that the interim Government would not have the
power to vary the laws that he brought in as presiding genius of the coalition
authority. Will my right hon. Friend give me the further good news that the
United States has also given ground on that point and that the interim
Government will be able to amend the directives that they inherit from the
coalition authority should they wish to do so?”
Straw’s answer
was definitely yes, albeit with a few ifs and buts. He said:
“The
transitional administrative law was negotiated between the appointed Iraqi
Governing Council and the Coalition Provisional Authority. The interim
Government have said that they have no intention of disturbing key elements of
that because they do not want to pre-empt the rights of the transitional
Government who will be in place, God willing, after being elected within a
seven-month period. Subject to that, however, if they wish to make changes,
they may do so because they are the sovereign Government of Iraq. The
self-denying ordinance is not required by the Security Council and nor could it
be required by the coalition, the role and authority of which finishes, full
stop, on 30 June.”
The Interim
Government will be able to make or rescind law by Executive Order. However, Executive Orders will subject to
veto by a national council, which is scheduled to be elected by a large
national conference to be arranged by Brahimi in July.
There is one
puzzling aspect to Straw’s statement: he says that the Interim Government have
agreed not to disturb key elements of the Transitional Law. But one key element is that the Interim
Government cannot amend the laws in force in Iraq on 30 June. Article 26 of the transitional law says:
“Except
as otherwise provided in this Law, the laws in force in Iraq on 30 June 2004
shall remain in effect unless and until rescinded or amended by the Iraqi
Transitional Government in accordance with this Law.”
Since the
Transitional Government is a replacement for the Interim Government after
elections at the end of the year, that excludes the possibility of the Interim
Government rescinding or amending the laws in force on 30 June. Lest there be any doubt that the laws in
question include Orders made by the occupation authorities, I quote again from
Article 26, which says:
“The
laws, regulations, orders, and directives issued by the Coalition Provisional
Authority pursuant to its authority under international law shall remain in
force until rescinded or amended by legislation duly enacted and having the
force of law.”
These Orders are very important.
For instance, Order 39 changed Iraqi law to allow for the non-Arab
foreign ownership of Iraqi companies.
And Order 17 granted immunity from prosecution under Iraqi law to
“Coalition Personnel” and “Coalition contractors”.
In Order 17, “Coalition Personnel” are defined as “all
non-Iraqi military and civilian personnel assigned to or under the command of the
Commander, Coalition Forces, or all forces employed by a Coalition State
including attached civilians, as well as all non-Iraqi military and civilian
personnel assigned to, or under the direction or control of, the Administrator
of the CPA”. "Coalition
contractors" are defined as “non-Iraqi business entities or individuals
not normally resident in Iraq supplying goods and/or services to or on behalf
of the Coalition Forces or the CPA under contractual arrangements”. So, the immunity applies to all non-Iraqi
personnel, military or civilian, who have anything to do with the
occupation. With the demise
of the CPA on 30 June, that Order will have to be amended by the Interim
Government to preserve these immunities.
Control of oil?
Another key question is: does the Interim
Government have powers to raise revenue, in particular, to sell oil, and spend
the proceeds?
Security Council resolution 1483, passed on 2 May last
year, allowed the occupying powers to sell Iraqi oil and to put the proceeds
into a so-called Development Fund for
Iraq. It also ordered that residual
monies from the UN-administered Oil-for-Food programme be transferred to this
fund. Paragraph 13 of that resolution gave
the occupying powers authority to spend that money:
“[The Security Council]
Notes further that
the funds in the Development Fund for Iraq shall be disbursed at the direction
of the Authority, in consultation with the Iraqi interim administration”
Paragraph 24 of resolution 1546 transfers
that authority to the Government of Iraq:
“[The Security
Council] Notes that,
upon dissolution of the Coalition Provisional Authority, the funds in the
Development Fund for Iraq shall be disbursed solely at the direction of the
Government of Iraq”
That could hardly be
clearer.
However, 5% of the Development Fund is still reserved for the payment of
reparations to Kuwait (see paragraph 24).
Iraq has over $100 billion of debt outstanding from the time of the
Iran/Iraq war and theoretically, anybody who is owed any of this could take
legal action to seize Iraqi oil in lieu of payment. Resolution 1483 prevented that happening, but for some unknown
reason that immunity has been removed in resolution 1546 in respect of
contracts signed by Iraq after 30 June.
The Kurds got a very good deal in the
Transitional Law, which
(a) allows them to retain their autonomy (and their militias) in Kurdistan
until a new constitution is drawn up and a government elected under it,
(b) accords them a veto over a new constitution,
(c) provides for the reversal of Arabisation of formerly Kurdish areas, and
(d) subsequent to the latter, allows for the possibility that the existing
autonomous Kurdistan be expanded to include Kirkuk and its environs.
According to Juan Cole (ibid), the Kurds
are absolutely furious that resolution 1546 did not mention the Transitional
Law, and they wrote a letter to President Bush on 7 June threatening to boycott
the elections at the end of the year, if there is any move to curtail their
sovereignty or rescind or amend the Transitional Law.
That bodes ill for the possibility of
devising a permanent constitution for Iraq that is acceptable to the Kurds, as
well as the Shia and Sunni Arabs.
June 2004