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.
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.