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Sovereignty and Iraq after June 30 2004

By James O'Neill

04/29/04 "ICH"
-- At his press conference of 14 April 2004 the United States President George W. Bush reaffirmed his determination that "sovereignty" would pass to Iraq on June 30 2004. The precise legal basis of this transition is to be found in a number of documents.

After the American and British led invasion of Iraq, the legal basis of which is widely regarded as untenable, the United Nations Security Council unanimously passed Resolution 1483 of May 22 2003:

(1) Reaffirming the sovereignty and territorial integrity of Iraq
(2) Stressed the right of the Iraqi people to freely determine their own political future and control their own natural resources.
(3) Called upon all concerned to comply fully with their obligations under international law.
(4) Supported the formation by the people of Iraq, with the help of the Coalition Authority, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognised representative government is established by the people of Iraq and assumes the responsibility of the Authority.

The "Authority" referred to in these clauses is the so-called Coalition Provisional Authority (CPA), a body whose membership was chosen by the United States as one of the two occupying powers (the other being the U.K.) The CPA in turn appointed a Governing Council to carry out administrative functions, with each administrative unit under the control of a member of the occupying powers. The Governing Council's membership is heavily drawn from former Iraqi exiles, the most prominent of whom is the convicted fraudster Ahmed Chalabi, an especial favourite of the Pentagon. 

Until recently the Governing Council has been operating at the pleasure of Paul Bremer the American "pro-consul" appointed by President Bush. Any "agreements" reached between the Governing Council and the American government and/or military have to be interpreted in the same way as agreements between a ventriloquist and his dummy. 

Resolution 1483 was passed in the immediate aftermath of the invasion and the defeat of the Iraqi armed forces. It contained few specifics as to how the Iraqi people were to freely determine their own future. That lacuna was addressed in United Nations Security Council Resolution 1511 unanimously passed on October 16 2003. There are four clauses in the resolution of particular interest.

Clause 1 reaffirms the sovereignty and territorial integrity of Iraq and underscores in that context the temporary nature of the exercise by the CPA of its authority and obligations under Resolution 1483. Those powers are to cease when an internationally recognised representative government is established by the people of Iraq and sworn in and assumes the responsibilities of the Authority as set out elsewhere in the resolution.

Clause 4 determines that the Governing Council and its Ministers are the principal bodies of the Iraqi interim administration which embodies the sovereignty of the State of Iraq during the transition period.

Clause 13 authorises a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq. It is this clause that provides the cloak of legitimacy to the occupying powers. It does not exempt them of course from observance of their obligations under international law (that Resolution 1483 specifically endorsed). It is almost certainly the case that the bombing of civilian areas; arbitrary detention of civilians; restrictions on freedom of movement; and the removal of Mr Hussein from the territory of Iraq to confinement in Qatar, to cite just some examples, are breaches of the Hague Regulations 1907 and the Geneva Convention of 1949.

Clause 15 decides that the mandate of the multinational force under clause 13 shall expire upon the completion of the political process that is elsewhere set out in the Resolution. The relevant political process is the setting up of a Governing Council in the terms specified in the Resolution.

It is with that background that the members of the Governing Council laboured to produce a blueprint enabling the completion of the steps to the resumption of self-government set out in Resolution 1511. It is important to note that at no stage of all of these events has Iraq ever not been a sovereign nation. The ability to exercise sovereignty, i.e. independent self-government with dominion over its own affairs, was of course compromised by the realities of foreign invasion, conquest and occupation. 

It is also important to note however, that the United Nations resolutions clearly envisage the suspension of real sovereignty to be a temporary phase that terminates with the swearing in of an internationally recognised representative government.

After some problems all members of the Governing Council signed the "Law of Administration for the State of Iraq for the Transitional Period" to give it its formal title, on March 8 2004. Under Article 2 B(1) of the Law the "transitional period" was defined as commencing on June 30 2004 with the formation of "a fully sovereign Iraqi Interim Government" that takes power on that date. 

The primary constitutional task of the Interim Government is to organise the elections for a National Assembly that are to be held no later than January 31 2005. The general rights and obligations of the government and citizens of Iraq are set out in some detail. They are for persons accustomed to Western liberal democracy for the most part unremarkable. It is rather difficult however to reconcile the guarantees of due process of law in the Law of Transition document with the actions of the American military in Falluja and elsewhere in recent weeks.

Two of the Articles in the Transitional Law are of particular importance in the context of this article. Article 25 provides that the Iraqi Transitional Government (the one that assumes power on June 30 2004) shall have exclusive competence in matters of foreign policy, including negotiating, signing and ratifying international agreements. The most important of those at the moment is a Status of Forces agreement with the occupying powers.

Further, the Iraqi Transitional Government has exclusive competence in formulating and executing national security policy and managing the natural resources of Iraq. 

Article 29 provides that upon the assumption of full authority by the Iraq Transitional Government in accordance with Article 2 B(1), that is, June 30 2004, the Coalition Provisional Authority will be dissolved and the work of the Governing Council shall come to an end.

For the important transitional period between June 30 2004 and the election of the National Assembly to be held no later than January 31 2005 the Law of Administration provides further, in Article 59(B), that the Iraqi armed forces will be the principal partner in the multinational force established under Security Council Resolution 1511. This stands in contradistinction to the recent claims by the Bush administration and military spokesmen that the American military will remain in control of "security" operations.

Article 59(C) further provides that "consistent with Iraq's status as a sovereign state, the elected Iraqi Transitional Government shall have the authority to conclude binding agreements regarding the activities of the multi-national force established under Resolution 1511.

It is clearly only under Article 59(C) that any foreign military forces may remain on Iraqi sovereign territory and only then in accordance with an agreement entered into with the Iraqi Transitional Government.

It is open to the Iraqi Transitional Government in accordance with both of the United Nations resolutions cited above and the Law of Administration to decline to enter into any such agreement. If that happens then all foreign forces will have to withdraw from Iraqi territory or they will be acting outside the scope of any lawful authority. Acts such as bombing, shelling or otherwise destroying Iraqi property, and the killing of Iraqi citizens will be war crimes, quite apart from any breaches of Iraqi civil and criminal law.

The U.S U.K and Australian governments clearly do not envisage being asked to leave. There have been a number of statements from politicians in all three countries recently marked by phrases such as "staying the course" "finishing the job" etc. The fact that the "course" or "job" was illegally commenced is not discussed. Quite how staying to finish a job or otherwise is lawfully possible without the consent of, or direct request from, the Iraqi Transitional Government is a question that also remains unasked, much less answered.

An intimation of the American view can be found in statements made by Mr Bremer on March 25 2004. He announced that the United States forces would remain in Iraq regardless of whether or not the new government requested their departure. This is clearly at odds with the clear terms of Article 59(C) of the Law of Transition.

He also announced that the United States would control the newly formed Iraqi army. Further, the United States would be housing more than 100,000 US troops in the 14 major military bases under construction. Again, this cannot be reconciled with the provisions of Article 59(B).

It is, quite simply, impossible to reconcile the transfer of sovereignty as set out in the Law of Transition and the Security Council Resolutions with Mr Bremer's pronouncements. A country cannot at the same time be sovereign, that is exercising complete self-government and independence, and have decisions made by an occupation power that explicitly negates the option of one exercise of that sovereignty, being a request to the occupying forces to leave. 

At the time that Mr Bremer made his pronouncement his probable expectation was that the CPA would be able to handpick the membership of the Interim Transitional Government in the same way that it had chosen the membership of the Governing Council. That body would in turn "negotiate" a Status of Forces Agreement with the American government, giving effect to Mr Bremer's declaration. This position was itself a modification of an earlier position. 

The earlier intention, contained within section 2 of the Agreement of November 15 2003 between the CPA and Iraq Governing Council (the ventriloquist and his dummy) was for a Status of Forces Agreement to be concluded before March 31 2004. In the light of the developing political realities however, the IGC refused to sign such an agreement on the grounds that such an agreement could only be concluded with the sovereign government. That position was soundly based in international law as only Status of Forces agreements between sovereign nations are recognised as being legally binding.

The obvious discontinuities between the provisions of the Transitional Law signed on March 8 2004 and Mr Bremer's edicts on March 25 2004 are not difficult to see. The growing Iraqi demand that its people should actually exercise their sovereign rights as guaranteed in the Security Council Resolutions and the Transitional Law is coming into conflict with the different agendas of the occupying powers. In that conflict the "freedoms" and "democracy" that Mr Bush spoke of in his last press conference appear to have a distinctly elastic definition. 

A probable cause of the increasing armed resistance to the occupation is the growing realisation by the Sunni and Shi'ite people in particular of the discontinuity between the written words of the documents referred to above and daily reality of their lives under occupation.

It is one of the ironies of the present tragedy that the United States, United Kingdom and Australian governments in launching their illegal attack upon Iraq did so without regard for the United Nations or international law. Those same countries now need the United Nations, not only to negotiate the transition on June 30, but to give some semblance of legality to their declarations of an intended continued presence in Iraq beyond that date. It is certainly arguable that without a further Security Council resolution and/or the request of a properly constituted transitional government any foreign troop presence in Iraq after June 30 2004 will be without lawful authority.

The increasing likelihood however, is that the post June 30 period will be marked by a continuing upsurge in resistance, the further suppression of which will escalate the committing of war crimes that have been observed in recent weeks. If the UK, Australia and others remain in Iraq beyond June 30 in clear conflict with the wishes of the Iraqi people and without the legitimacy of a request from the transitional government, they must bear the legal consequences of their complicity in American war crimes.

A failure of foreign troops to leave Iraq when requested to do so by the transitional government will expose as the sham that it is the protestations of freedom, democracy and a "return" of sovereignty to the Iraqi people.

James O'Neill is a lawyer practising in Brisbane Australia. He can be reached at joneill@qldbar.asn.au 

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