Iraq: The occupation goes on
For George Bush to have a chance of re-election in November, there must soon be light at the end of the tunnel in Iraq, or at least the appearance of it. That is why 30 June 2004 was chosen for the supposed handover of power to an Iraqi government, and why the date is immoveable. It has been chosen to impress upon the US electorate before the presidential campaign begins in earnest that the US is not bogged down in Iraq; that Iraq is not another Vietnam.
This date was set in an “agreement” between the US and its appointees on the Iraqi Governing Council on 15 November. Since the “agreement” is entitled Timeline to a Democratic, Sovereign and Secure Iraq, there must be a suspicion that the Americans wrote it. Much of the detail of the “agreement” is now back in the melting pot, chiefly due to pressure from Shia cleric, Ayatollah Sistani, but the 30 June handover date remains intact, since it is vital to George Bush’s re-election.
The Ayatollah objected most strenuously to the proposed indirect mode of election to the National Assembly, out of which the new Iraqi government is supposed to be formed by 30 June 2004. The November 15 “agreement” states:
“By May 31, 2004, local caucuses will be convened in each of Iraq’s 18 governorates to elect delegates from among their number for an Iraqi Transitional National Assembly.
“By June 30, 2004, the Iraqi Transitional National Assembly will elect its leaders and assume full sovereignty for Iraq”
The Ayatollah demanded direct elections to the Assembly. The US objected, in part, because of the lack of an up to date electoral roll. That has the appearance of an excuse rather than a reason. Direct elections could be held on the basis of the food ration cards, which all Iraqis possess.
Plan for roll
The US doesn’t seem to be in any hurry to draw up an electoral roll. Joel Brinkley reported in the New York Times on 4 December 2003 that the Iraqi Census Bureau submitted a plan to the US authorities last October to take a census of the Iraqi population next summer, leading to an electoral roll being available by 1 September 2004. However, according to Brinkley, the US authorities sat on the plan and kept it from the members of the Iraqi Governing Council, who were unaware of it when they agreed to an indirect form of elections on 15 November.
The precise truth behind this is unknown. In answer to a House of Commons written question from Mike Hancock MP on the issue, Foreign Office Minister Bill Rammell admitted on 1 March 2004 that:
“The Iraqi Central Statistical Organisation did propose a plan last year to conduct a census, upon which elections could be held.”
But he didn’t give any details of the plan, and he said:
“The plan was rejected by the Iraqi Minister of Planning, to whom the Central Statistical Office reports. No decision was ever taken on this matter by any Coalition body.”
That answer stinks to high heaven. The Iraqi Minister of Planning is an appointee of the US appointees on the Iraqi Governing Council. He has no power in his own right, and, if the US authorities had wanted to have a census upon which direct elections could be held, the Iraqi Minister of Planning would not have stood in their way. So why didn’t the US authorities proceed with the plan?
The November 15 “agreement” specifies that:
“By February 28, 2004, the Iraqi Governing Council will approve a Transitional Administrative Law that defines the structure of a transitional government and the procedures for electing delegates to a constitutional convention”.
The Council didn’t make the 28 February deadline, but on 8 March all 25 members of the Council signed what is now entitled the Law of Administration for the State of Iraq for the Transitional Period, aka the Transitional Administrative Law. But it is not complete: Article 2(B)(1) says that an annex has yet to be agreed (on unspecified matters). As we shall see, in drawing up the Transitional Law, all the difficult questions have been left for another day.
The transitional period is supposed to last from 30 June 2004 to 31 December 2005. On 30 June 2004 what is now termed “a fully sovereign Iraqi Interim Government” is supposed to take power. Precisely how it is to come into being is not specified, but it is not going to be by direct elections: all the Transitional Law has to say about it is
“This government shall be constituted in accordance with a process of extensive deliberations and consultations with cross-sections of the Iraqi people conducted by the Governing Council and the Coalition Provisional Authority and possibly in consultation with the United Nations.” (Article 2(B)(1))
Six months later, this Interim Government is to be replaced by a Transitional Government formed after direct elections to a National Assembly. That there is to be a Transitional Government drawn from a directly elected Assembly is a concession to the Shia pressure of recent months: it was not part of the November 15 “agreement”, where the unelected interim government was to continue until the end of next year. Elections to the Assembly are supposed to take place by the end of this year, or at the very latest by 31 January 2005. Is a census to be carried out, and an electoral roll prepared, by then?
The National Assembly will have the task of drawing up a constitution for Iraq. A draft constitution is supposed to be complete, and ready for putting to the electorate in a referendum, by 15 August 2005 (Article 61(A)), though this may be extended by 6 months if a majority of Assembly members request it (Article 61(F)).
If the Assembly agrees a draft constitution by 15 August 2005, then a referendum is supposed to be held by 15 October 2005 (Article 61(B)). Article 61(C) prescribes that the ratification of the constitution by the Iraqi people requires more than a simple majority. It says:
“The general referendum will be successful and the draft constitution ratified if a majority of the voters in Iraq approve and if two-thirds of the voters in three or more governorates do not reject it.”
The additional condition gives the Kurds a veto on the constitution if they vote as a bloc, which was one of the reasons why Shia members of the Governing Council were reluctant sign up to the Transitional Law.
If the constitution is ratified, elections are supposed to be held under the new constitution by 15 December 2005, with the new government assuming office no later than 31 December 2005 (Article 61(D)).
If the National Assembly fails to come up with a draft constitution, or if the draft constitution isn’t ratified by referendum, then elections to a new National Assembly are supposed to be called.
Which means that the process could go on indefinitely.
That’s the plan as laid down in the Transitional Law for devising a new constitution and electing a National Assembly and forming a government under it.
But, however long that takes, “a fully sovereign Iraqi Interim Government” chosen in an unspecified manner is to be in place in a mere 3 months time, and at that point occupation will end. According to the November 15 “agreement”, on 30 June 2004:
“The Governing Council and the Coalition Provisional Authority will be dissolved. This will end the responsibilities of the Coalition as an occupying power as specified in the United Nations resolutions.”
So, Paul Bremer and his staff are all going to pack their bags and leave Iraq on 30 June? It seems a trifle unlikely. No doubt law will no longer be made by Orders signed by Bremer as the head of the Coalition Provisional Authority, but it’s a pound to a penny that Bremer’s staff, if not Bremer himself, will metamorphose into “advisors” to Iraqi ministers, to make sure they do the right thing.
Bremer, himself, as the public face of the occupation, will probably have to leave, otherwise the US electorate might not be convinced that the occupation has ended, as required by Bush’s re-election campaign.
Be that as it may, we do know that the 150,000 or so US (and other) occupation forces are not leaving Iraq any time soon. It has always been said that any new Iraqi government would have to make an “agreement” with the occupying powers that these forces would remain indefinitely.
With 150,000 occupying forces in Iraq, it would have been next to impossible for any Iraqi government, even a directly elected government, to resist demands made upon it by the occupying powers. But the Transitional Law has pre-empted any such “agreement” by placing the Iraqi Armed forces under US command until a permanent Iraqi government is in place, that is, until the end of next year at the earliest.
Article 59(B) 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.”
Whether this includes police and border guards is not clear. But there is no doubt that the Governing Council has now agreed that the Iraqi Army be under US command until an Iraqi government is elected under a new constitution.
The cover for this bizarre arrangement was provided in Security Council resolution 1511 passed last October, which transformed the occupation forces in Iraq into UN forces in all but name, but still under continued US command, and authorised them to use force to put down resistance to the occupation.
This is contained in paragraph 13 of 1511, which reads:
“[The Security Council] Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph 7 above and to the ability of the United Nations to contribute effectively to that process and the implementation of resolution 1483 (2003), and authorizes a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq”
Paragraph 14 urges states to contribute to the “multinational force”:
“[The Security Council] Urges Member States to contribute assistance under this United Nations mandate, including military forces, to the multinational force referred to in paragraph 13 above;”
The Iraqi Army, and perhaps other armed forces as well, will now to be part of this UN mandated force under US command.
Lest there be any doubt that the entity referred to as “a multinational force under unified command” is, in fact, the occupying forces commanded by the US, paragraph 25 says:
“[The Security Council] Requests that the United States, on behalf of the multinational force as outlined in paragraph 13 above, report to the Security Council on the efforts and progress of this force as appropriate and not less than every six months;
So, in practice the “fully sovereign Iraqi Interim Government” to be installed on 30 June 2004, will have its sovereignty limited just a smidgeon – by the presence of some 150,000 foreign troops in the country, but also by its armed forces being under the command of the foreign power commanding those troops.
The Iraqi Interim Government, and its successor, the Iraqi Transitional Government, will have its sovereignty restricted in another respect also: its writ will not run in the semi-autonomous Kurdish areas in northern Iraq. Articles 53(A) and 54 makes that clear. Article 53 says:
“The Kurdistan Regional Government is recognized as the official government of the territories that were administered by that government on 19 March 2003 in the governorates of Dohuk, Arbil, Sulaimaniya, Kirkuk, Diyala and Neneveh. The term “Kurdistan Regional Government” shall refer to the Kurdistan National Assembly, the Kurdistan Council of Ministers, and the regional judicial authority in the Kurdistan region.”
Article 54 says that, broadly speaking, the Kurdistan Regional Government “shall continue to perform its current functions throughout the transitional period” and will have the right “to impose taxes and fees within the Kurdistan region”. The Kurdistan National Assembly will have some freedom to amend the application of federal law within the Kurdistan region.
Article 27(B) says:
“Armed forces and militias not under the command structure of the Iraqi Transitional Government are prohibited, except as provided by federal law.”
But an exception is made for the Kurds in Article 54, where it says that the Kurdistan Regional Government “shall retain regional control over police forces and internal security”. Uniquely, therefore, the Kurds are allowed to maintain their own militias.
This maintenance of Kurdish autonomy highlights a key question about the future structure of government in Iraq: is it to be a federation of regions defined by ethnic group or religious confession? Article 4 answers that question in the negative, saying:
“The federal system shall be based upon geographic and historical realities and the separation of powers, and not upon origin, race, ethnicity, nationality, or confession.”
But only one region is defined, and it is based on Kurdish ethnicity – which flies in the face of Article 4. Apart from that, there is provision (in Article 53(C)) that up to three governorates outside Kurdistan (but not Baghdad or Kirkuk) may form a region.
An added complication is the Kurdish ambition to have a much larger Kurdish region, including Kirkuk with its surrounding oilfields, and potentially therefore access to oil revenue.
As regards the latter, Article 25(E) of the Transitional Law puts the federal government in charge of managing “natural resources”, and the revenue derived from their sale, on behalf of the nation as a whole. But a federal government would have difficulty resisting demands by a Kurdistan including the Kirkuk oilfields for control over oil revenues derived from that area.
Linked to this demand for a larger Kurdistan is a demand that the Arabisation of certain areas in Northern Iraq, allegedly carried out by Saddam Hussein, be reversed. In other words, that Kurds who were expelled be given their property back and Arabs who were given their property be expelled. If this were done, the Kurds expect that this would enhance their claims to certain areas, not least to Kirkuk and its environs.
Article 58(A) of the Transitional Law provides for the reversal of Arabisation:
“The Iraqi Transitional Government, and especially the Iraqi Property Claims Commission and other relevant bodies, shall act expeditiously to take measures to remedy the injustice caused by the previous regime’s practices in altering the demographic character of certain regions, including Kirkuk, by deporting and expelling individuals from their places of residence, forcing migration in and out of the region, settling individuals alien to the region, depriving the inhabitants of work, and correcting nationality. To remedy this injustice, the Iraqi Transitional Government shall take the following steps:
“(1) With regard to residents who were deported, expelled, or who emigrated; it shall, in accordance with the statute of the Iraqi Property Claims Commission and other measures within the law, within a reasonable period of time, restore the residents to their homes and property, or, where this is unfeasible, shall provide just compensation.
“(2) With regard to the individuals newly introduced to specific regions and territories, it shall act in accordance with Article 10 of the Iraqi Property Claims Commission statute to ensure that such individuals may be resettled, may receive compensation from the state, may receive new land from the state near their residence in the governorate from which they came, or may receive compensation for the cost of moving to such areas.”
There also seems to be claimed that Saddam Hussein changed the borders of governorates for political purposes, presumably in Kurdish areas, and Article 58(B) provides for this to be reversed. Article 58(C) then says:
“The permanent resolution of disputed territories, including Kirkuk, shall be deferred until after these measures are completed, a fair and transparent census has been conducted and the permanent constitution has been ratified This resolution shall be consistent with the principle of justice, taking into account the will of the people of those territories.”
The application of the phrase “disputed territories” to Kirkuk seems to imply that the inclusion of Kirkuk in an expanded Kurdistan is a real possibility.
After the Transitional Law was signed, Kurds in Kirkuk came out on to the streets to celebrate its inclusion in Kurdistan. They were a little bit premature, but the Transitional Law gives them reason to hope that it will be one day, not least because they have been accorded a veto over a new constitution.
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