Iraq: Transition to Sovereignty
Released: 2004-07-21T00:00:00

RS21820 -- Iraq: Transition to Sovereignty

Updated July 21, 2004

Background

The Bush Administration had initially made the end of the U.S. occupation contingent on the completion of a new constitution andthe holding of national elections for a new government, tasks to be completed by 2005. However, politicalinfighting among Iraq'svarious ethnic and political factions, coupled with a persistent insurgency, slowed progress on setting up an electedpoliticalstructure. The U.S. administrator in Iraq, L. Paul Bremer (head of the U.S.-led occupation authority, the CoalitionProvisionalAuthority or CPA), in consultation with Iraqis appointed to a 25-seat "Iraq Governing Council (IGC)," agreed toa plan that wouldlead to sovereignty for Iraq by June 30, 2004. Under the plan, announced November 15, 2003, a TransitionalAdministrative Law(TAL) -- a provisional constitution -- was to be signed by February 29, 2004, followed by the holding of local"caucuses" in eachprovince to select a national assembly (by May 31, 2004). The assembly was to choose an executive leadership. The agreementencountered opposition from the revered Shiite Muslim leader Grand Ayatollah Ali Sistani, who called for earlydirect elections; hisviews prompted the CPA to ask the United Nations to assess the feasibility of holding elections for an interimgovernment. A U.N.team led by U.N. envoy Lakhdar Brahimi concluded in February 2004 that national elections could not be heldearlier than late 2004or early 2005. Sistani accepted that time frame.

The Transition Roadmap

Much of the Brahimi findings were incorporated into the TAL, which the IGC formally signed on March 8, 2004. (1) Its key pointsare as follows:

A "transition government" is to be formed, chosen by a 250-seat National Assembly elected in a vote no laterthan January 31, 2005. The Assembly is to choose a "presidency council" (a president and two deputy presidents). It is expectedthat the president would be a Shiite, and the two deputies a Sunni Arab and a Kurd. The presidency council is tooperate byconsensus, including in naming a Prime Minister.

The election law for the transition government "shall aim to achieve the goal of having women constitute noless than one-quarter of the members of the National Assembly."

The Kurds maintain their autonomous "Kurdistan Regional Government," but they were not given control ofthe city of Kirkuk and they received some powers to contradict or alter the application of Iraqi law in the Kurdishprovinces. TheKurdish militias (" peshmerga ") are allowed to continue to operate.

The transition government (post-January 31, 2005) is to draft a constitution (by August 15, 2005) and put it to anational vote (by October 15, 2005). A provision, which Sistani and the Shiite Islamists oppose, allows two-thirdsof the voters anythree Iraqi provinces to veto the constitution, giving the Kurds (who control the three northern provinces of Dohuk,Irbil, andSulaymaniyah) essentially a veto.

If the constitution is approved in the national referendum, elections to a new government are to take place byDecember 15, 2005, and the government is to take office by December 31, 2005. If the constitution is notapproved, it is to beredrafted and submitted again for approval, and if approved, elections are to take place in 2006.

The TAL states that Islam is the official religion of Iraq and is to be considered "a source," but not the onlysource, or the primary source, of legislation. It adds that no law can be passed that contradicts the agreed tenets ofIslam, but neithercan any law contradict the fundamental rights provided for in the TAL. Those rights include peaceful assembly;free expression;equality of men and women before the law; and the right to strike and demonstrate.

Interim (Post-June 30) Government. The TAL did not address how an interimgovernment -- which will be in office from July 1, 2004 until January 31, 2005 -- would be chosen. Some optionsfor selecting theinterim government were considered, including holding a traditional assembly along the lines of Afghanistan's loya jirga; holding asmaller "roundtable" of Iraqi notables; or transforming the existing or an expanded IGC into the interim government. Continuing violence in Iraq contributed to the U.S. decision to give U.N. envoy Brahimi substantial responsibility for selectingthe interimgovernment. (2) Brahimi said he envisioned an interimgovernment of technocrats, who presumably would not seek to use theirofficial positions to further their chances in January 2005 national elections. However, maneuvering by IGC andcabinet membersled to inclusion of many of them -- or their political allies -- in the interim government named on June 1, 2004. Afew of thecabinet positions are held by relatively non-political personalities. The interim government began workingimmediately. Brahimihas said publicly that pressure by U.S. and Iraqi politicians to complete the interim government on time caused himto acquiesce tomany of the appointments.

The composition and powers of the interim government are addressed in an addendum to the TAL, signed by the IGC on June 1,2004, just before the IGC dissolved itself. The interim government has a "presidency" composed of a largelyceremonial president(former IGC member and Shammar tribal elder Ghazi al-Yawar) and two deputy presidents (Ibrahim al-Jafari ofthe Da'wa Partyand Kurdistan Democratic Party activist Dr. Rowsch Shaways). There is a prime minister (Iraq National Accordleader Iyadal-Allawi), a deputy prime minister, 26 ministers, two ministers of state with portfolio, and three ministers of statewithout portfolio. The prime minister has executive power. Six members of the interim government are women. Some of theministers were held overfrom the occupation period -- Hoshyar Zebari, a top KDP official, remained Foreign Minister; Dr. Mehdi al-Hafidh,an independentShiite, remained Minister of Planning; Patriotic Union of Kurdistan (PUK) official Dr. Abdul Latif Rashid stayed Minister of WaterResources; and Ms. Nasreen Berwari, a Kurd affiliated with the KDP, stayed Minister of Public Works.

Resolution 1546. Many of the powers and responsibilities of the interim government are spelled out in U.N. Security Council Resolution 1546, adopted unanimously on June 8, 2004, whichendorsed thehandover of sovereignty. Its major provisions are the following:

After the handover, U.S. officials no longer have final authority on non-security related issues. The UnitedStates and United Nations intend that the interim government not make any long-term laws or decisions -- itsprimary function is torun the ministries and prepare for national elections. The Kurds fear that the interim government will repeal aspectsof the TAL thatthe Kurds view as protecting them from the Arab majority, (3) a fear that was heightened by the omission from Resolution 1546 of anymention of the TAL. That omission was reportedly at the behest of pressure from Sistani and his Shiite allies whowant to removefrom the TAL limitations on majority rule. Prime Minister Allawi has tried to defuse this dispute by promising thatthe interimgovernment would not undo the relevant provisions of the TAL.

According to the resolution and the addendum to the TAL, later in July a conference of over 1,000 Iraqis (the1,000 will be chosen by a 60-member commission of Iraqis) is to be held, and it is to choose a 100-seat advisorycouncil ("InterimNational Council") to the interim government. This body will not have legislative authority but, according to theaddendum to theTAL, it will be able to veto decisions by the executive branch with a two-thirds majority. Members of the IGC whoare not in theinterim government are to be included in the Council.

One of the major debates in the adoption of Resolution 1546 was on security issues, particularly the relationship between coalition forces and the Iraqi interim government. The operational relationship -- to be oneof coordinationand partnership -- is outlined in an exchange of letters between Secretary of State Powell and Prime Minister Allawiannexed to theresolution. The resolution says that the coalition's mandate would be reviewed "at the request of the Governmentof Iraq or twelvemonths from the date of this resolution," that the mandate would expire when a permanent government is sworn inat the end of2005, and that the mandate could be terminated at any time if the interim government so requests. The Iraqigovernment was notgiven a veto over specific coalition operations, and the coalition retains the ability to take prisoners.

Resolution 1546 gives the interim government control over Iraq's oil revenues and the Development Fund forIraq (DFI), subject to monitoring for at least one year by the U.N.-mandated International Advisory and MonitoringBoard. Theinterim government also is given responsibility for final close-out of the U.N.-run "Oil-for-Foodprogram."

Other Preparations for Handover. The following additional decisions or eventswere part of the handover: (4)

Bremer departed Iraq on June 28, 2004, right after the handover, and the CPA ceased to exist. A large U.S.embassy opened on June 30, 2004, headed by Ambassador John Negroponte, and it is being staffed with about1,000 U.S. personnel,including about 160 U.S. officials and representatives that will serve as advisers to the interim government. SomeCPA functions,such as the advising of local Iraqi governments, local Iraqi governing councils, and U.S. military units, were retainedat the U.S.embassy in the form of an "Iraq Reconstruction and Management Office (IRMO)." About 150 U.S. personnel willserve at severalcenters around Iraq to advise local Iraqi governments.

U.S. military headquarters in Baghdad (Combined Joint Task Force-7, CJTF-7) became a multinational headquarters (Multinational Force-Iraq, MNF-I). U.S. four-star Gen. George Casey assumed command. (5) U.S. officials say that,largely because of ongoing violence, U.S. forces will number about 140,000 into 2005 and possibly beyond. U.S.and coalitionforces continue to build Iraq's security institutions, but U.S. officials say the Iraqi forces are not able to maintainsecurity on theirown.

The Program Management Office (PMO), which reports to the Department of Defense and administers someU.S. funds for Iraq, will be replaced by a "Project and Contracting Office." The upsurge of violence since earlyApril 2004 hasreportedly slowed obligation of reconstruction funds; as of July 2004, about $8 billion of $23 billion in appropriatedreconstructionfunds had been obligated.

Legal Issues of the Handover

A number of legal issues are likely to arise. The actual extent of the interim government's sovereignty -- or its lawful control overits own territory to the general exclusion of other states -- is unclear, as are the continuing coalition responsibilities. Laws andagreements put in place during the occupation may be challenged, placing the validity of legal contracts andproperty interests,public or private, in some doubt. The status of coalition forces remaining in Iraq has changed somewhat, asdiscussed below.

Interpreting Resolutions 1483, 1511 and 1546. Two sources of international lawhave governed the occupation of Iraq: U.N. Security Council resolutions (in particular Resolution 1483 of May 22,and Resolution1511 of October 16, 2003) and international treaties such as the Hague Regulations of 1907 and the Fourth GenevaConvention of1949. Under these treaties and other sources forming the international law of belligerent occupation, an occupyingpower mustmaintain existing laws and governmental structure unless absolutely prevented by the exigencies of occupation, andany suchchanges are temporary. On the other hand, U.N. Resolution 1483 appears to contemplate an overhaul of Iraqiinstitutions, even as itreiterates the applicability of international occupation law. Resolution 1483 may be read to provide certaincarve-outs from that law,allowing initiatives that might otherwise exceed the authority of an occupying power.

Resolution 1546 recognizes that the interim government has only temporary and limited power, noting that even as the interimgovernment "assumes full responsibility ... for governing Iraq" it is to "refrain ... from taking any actions affectingIraq's destinybeyond the limited interim period until an elected Transitional Government of Iraq assumes office." In effect,Resolution 1546appears to substitute the Iraqi interim government for the CPA as temporary governing authority until an"internationally recognized,representative government is established ... ," but it appears that some of the CPA's obligations and authority do notpass to theinterim government, and will remain instead with the United States as head of the MNF. Obligations that weremade under explicitUN approval, such as the Oil-for-Food program or the DFI, are expressly made binding on the interim government. If Iraq exercisesfull sovereignty, as that concept is ordinarily understood, the interim government could conceivably revoke oramend the TAL,notwithstanding a provision in the TAL that allows only limited amendment during the second phase of thetransition. Despitelanguage in Resolution 1511 recognizing limited and temporary sovereignty in the CPA and the IGC, both entitiesarguably lackedthe clear authority to bind Iraq to any agreements outlasting the formal occupation of Iraq.

CPA Laws. Laws put in place by the CPA are to remain in force duringthetransitional period, unless rescinded or amended during the second phase of the transition. The United States doesnot, however,retain any authority to interpret and enforce those laws. Although Resolution 1546 admonishes the interimgovernment to refrainfrom any actions that would affect Iraq's post-interim period destiny, it is not clear whether temporary laws put inplace by the CPAare automatically protected. The interim government could conceivably choose to rescind such laws or agreementsand decline tohonor or enforce any obligations created pursuant to them. For example, if CPA orders authorizing foreigninvestment in Iraq wereto be rescinded or modified, the interests of foreign investors could be adversely affected.

Status of Military Forces. It appears that the MNF is operating under a U.N.mandate, with the consent of the Iraqi government, rather than as "occupying forces." Resolution 1546 reaffirms,at the request ofthe interim government, the authorization for the MNF to "take all necessary measures to contribute to themaintenance of securityand stability in Iraq ... including by preventing and deterring terrorism ..." until elections can be held. Under theletter from SecretaryPowell annexed to Resolution 1546, these measures include combat operations against insurgents, internment where"necessary forimperative reasons of security," and the continued search for weapons that threaten Iraq's security. Notably, themandate is to beended at the request of the Iraqi government.

Although Res. 1546 recognizes the end of the occupation of Iraq, it nonetheless notes that the MNF is committed to promotingsecurity and stability "in accordance with international law, including obligations under international humanitarianlaw." Ordinarily,international humanitarian law would no longer apply at the end of a military occupation. The UN resolutions leaveambiguouswhich of the responsibilities of an occupying power under the laws of war were to apply both during the occupationand afterward. Some observers have suggested that Iraq remains under a de facto occupation and that all relevant internationalcontinues to apply.

A status of forces agreement will not be possible until the second phase of the transition because only the Iraqi TransitionalGovernment will have the authority to bind Iraq to treaties. At present, coalition forces in Iraq are immune fromIraqi legal processunder CPA Order No. 17, which has been extended for the duration of the MNF's presence. However, a sovereignIraq, even underan interim government, could assert the authority to revoke the immunity.