Okay, I still think that Iraq’s Transitional Administrative Law is “illegal…
pointless and diversionary… and divisive.” Sadly, events already
seem to be bearing me out on that last judgment. (See
here
and elsewhere on that. For my earlier reasoning on the TAL, see
here
and here
.)
However, the TAL, with all its faults and evident imperfections, is now with
us. For how long? Who knows. According to
Juan Cole, Ayatollah Sistani has issued a fatwa spelling out his view that:
- any law prepared for the transitional period will
not gain legitimacy except after it is endorsed by an elected national assembly.
Additionally, this law places obstacles in the path of reaching a permanent
constitution for the country that maintains its unity and the rights of its
sons of all ethnicities and sects.
(Juan wrote that this text is available at Sistani’s website. However,
after a few minutes picking my way around the Ayatollah’s sacred rulings
on anal intercourse, temporary marriage, etc., I still couldn’t find it.
I’ll take Juan’s word for it.)
But anyway, the point of this post is to record a few things that I noted
after reading through
the text of the TAL, which fortunately is fairly short, having only 62 Articles.
Personally, if I were Ayatollah Sistani– which, contrary to some indications
I am not– I would be pretty pleased with the progress made so far in the
following directions:
- Blocking the Bushies’ attempts to foist a SOFA onto an unelected ,
quasi-puppet leadership in Iraq, - Securing a substantial role for the UN in key aspects of the transition,
- Getting a strong basis for national-level control of oil revenues,
and - Generally, making my influence felt.
It’s true, he probably has not gotten everything he wanted so far, especially
with regard to that pesky [from his point of view–HC] “Kurdish veto” issue (Art. 61-C.) But he’s doing pretty well, all things considered.
I’ve been particularly interested in two clusters of issues addressed by
the TAL. One is the Kurdish/federalism issue, which has been fairly
widely covered in the press and has been well addressed by Nathan Brown. I
just add to all that commentary the observation that I actually read Article
25 E as providing a much stronger basis for continued governmental centralism
than Nathan seems to.
But let me back up a bit. The procedure the TAL lays out is this. There
will be two stages to the transition. In Stage 1, Iraq is governed
by the Iraqi Interim Government (IIG) that will take over on June 30. Art.
2 B specifies: 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.
(Note that last clause. Very important.)
The IIG will then be responsible for organizing elections, sometime before
January 31, 2005, to a 275-member National Assembly which will be the main
source of authority for a new governing body, the Iraqi Transitional Government
(ITG). It’s the ITG that will actually start drafting a permanent constitution.
Though the TAL specifies many things about the powers the ITG will
have, it does not specify any of the rules for how the election to it will
be conducted, except to define criteria for the eligibility of voters and
candidates.
So I guess the IIG will draw up the rest of the election rules. A very
important task. It could, I believe, do this in coordination with the
UN if it so chose.
So anyway, back to Art. 25 E. Article 25 spells out that the national-level
ITG shall have exclusive competence in a number of matters. In
25 E it states that these include:
- Managing the natural resources of Iraq, which belongs to all the people
of all the regions and governorates of Iraq, in consultation with the governments
of the regions and the administrations of the governorates, and distributing
the revenues resulting from their sale through the national budget in an
equitable manner proportional to the distribution of population throughout
the country, and with due regard for areas that were unjustly deprived of
these revenues by the previous regime, for dealing with their situations
in a positive way, for their needs, and for the degree of development of
the different areas of the country;
So all the central government is required to do is “consult” with the governments
of the regions and the administrations of the governorates on this extremely
crucial issue. I think maybe the Kurds who were dancing in the streets
in Kirkuk Monday night and expressing their delight that they would get to
control its oil resources were maybe a little premature…
The other set of issues that I’ve been tracking fairly closely has to do
with the whole question of command over the armed forces and responsibility
for the internal security situation inside post-June 30 Iraq. You may recall
this JWN post, February
23,
about the collapse of the Pentagon’s hopes to ram a “SOFA” (a Status of
Force Agreement) onto their own appointed quasi-puppets before June 30.
So now, the maneuver with regard to the control-of-security situation is
spelled out in Art. 59-B of the TAL as follows.
- 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.
I find this very interesting. In essence, the Iraqi forces, like
all their “colleagues” in “the multi-national force operating in Iraq” will
be taking their mandate to do so from the U.N. Security Council. Resolution
1511, adopted by the security Council last October, stated that the Security
Council, “authorizes a multinational force under unified command to take
all necessary measures to contribute to the maintenance of security and stability
in Iraq” (para. 13), and assigned to the US–surprise! surprise!– the
responsibility of reporting back to the Security Council “on the efforts
and progress of this force as appropriate” (para. 25).
But in the TAL, we also have specific mention of the possibility of “subsequent
relevant resolutions”. I strongly believe it is in everyone’s interest
that the Security Council should indeed adopt a “subsquent relevant resolution”
in good time before June 30: this should clearly spell out the UN’s responsibilities
for shepherding and overseeing a large number of areas of the governance
of Iraq during the post-June 30 transition, including public security and
oversight of the election process.
In Article 59-C of the TAL, the Bushies have done what they can to try to
establish conditions in which a SOFA could be concluded by the ITG– but
notably NOT by its unelected precursor body, the IIG:
Upon its assumption of authority, and consistent with Iraq?s status as
a sovereign state, the elected Iraqi Transitional Government shall have
the authority to conclude binding international agreements regarding the
activities of the multi-national force operating in Iraq under unified command
pursuant to the terms of United Nations Security Council Resolution 1511
(2003), and any subsequent relevant United Nations Security Council resolutions.
So that, in short, is why I think that all things considered, Ayatollah Sistani has still been doing pretty well.
Interesting constitution. The judiciary is part American and part Egyptian, and the executive is a weird amalgam of the French Fifth Republic and Israeli cabinet government, but the transitional assembly will have time to watch the system in action and tinker with it.
I’m getting a bad Nigeria vibe from Article 25(e), though. Regional control of resources doesn’t work well (especially where the resources aren’t evenly distributed across regions), but central control can be worse, because the regions with political power have a tendency to loot the rest of the country. The oil states in Nigeria are the least developed in the country, with most of the funds in the federal oil account being spent in the north. The arrangement established by Article 25(e) could lead to a similar monopoly by the Shi’ites. I’d feel a lot better if the federal government were required to distribute oil revenue to the regions according to a need-based formula.
BTW, I’ve been meaning to ask why you’re opposed to federalism, particularly for the Kurds. Given that they’re a historically oppressed minority who’ve been fighting for self-determination since Versailles, I think regional autonomy is the least they’re due, and the powers of the regional government under the transitional constitution are actually quite circumscribed. Federalism has been an effective means of managing demands for regional self-determination in other countries (Belgium, Finland and Spain, for starters) and I think it’s a good idea in a multicultural place like Iraq with strong regional identities.
Jonathan, hi.
I agree with you about the possible dangers of national-level control of oil revenues. It all depends, of course, on the quality of the governance of the nation involved. (Q.v. Britain, Norway, etc.)
Also, I do think 25-E states quite well that revenues from national resources should be distributed in a way that is proprotional to population and need, as well as compensatory for past inequities.
However, when I was trying to “think like Sistani” there, I was thinking not just of the question of whether Baghdad or the governorates/regions have responsibility for oil revenues but also of the early-Bremer-era plans to privatize the whole darn thing. I think–and I think Sistani probably thinks–that wd have been a disastrous plan to follow. It’s been “long” dead and buried now. But we shdn’t forget that it was out there as a real possibility just a few months ago.
On Kurds and federalism, I am NOT opposed to a federal outcome for them– there in Iraq, and hopefully in Turkey and possibly other places, later. But in the Iraqi context, if any such outcome is to be stable and legitimate it has to be the outcome of a lengthy series of interactions/conversations among all the parties involved… Sort of like the way RSA’s Constitution took so, so long to reach agreement on– but has proven to be that much stable because of all those many interactions, CODESAs, etc etc.
I don’t see that having Bremer, Wolfowitz and Co ram federalism down the throats of the Shi-ites– also, as you know, a long-oppressed population group there– is a route to the stability and legitimacy (in local eyes) of that outcome.
But the kind of consensus-building exercize I see as needed should start slowly, with basics like equal rights for all women and men; move on to voting-roll eligibility, rules for political parties, rules for decision-making… and sort of take it step by step upwards from there.
That’s why organizing the transitional election is such an important task, because in organizing the election one is actually building the kinds of agreements and understandings among people that will be the foundation of the future nation.
So writing some kind of “federalism” or “Kurdish veto” in from the get-go is a huge diversion from that needed task of building the sinews of the democratic nation. Plus, it is divisive, at a time when focus needs to be placed on the things that unite, not those that divide.
I really don’t think that having the US-appointed IGC issue an edict about federalism at this point is the way to have the idea become a stable and viable reality.
I also, btw, am not certain that federalism really is the best way to go in the circumstances. Federalism has “worked” well for Catalans in Spain in the context of the nation-state there having blurred many of the sharp edges of its power when it joined the EU. Wouldn’t it be great if there were a broader regional confederation involving Turkey, Iran, Iraq, Syria, etc in the context of which the emergence of some specifically Kurdish provinces would not be threatening to edgy nation-states? Dream on, Helena. It may turn out that for Iraq’s Kurds, some version of the RSA’s provincial-dilution approach might work better.
But it is really not for me to say. What we outsiders can and should say is that the Iraqis need to be given every opportunity–and a level playing field–to work this out reasonably among themselves.
I’m not as horrified by the TAL. First, I don’t think it’s federalism as understood in the USA (where Article 10 of the Bill of Rights guarantees rights to the states/people that aren’t reserved in the Constitution to the federal government). Second, the objections you and Shirin (comments, previous post) raise would occur regardless. Articles in the Guardian which you and Juan Cole linked to (“An Empty Sort of Freedom,” H. Mahmud, and the one above) don’t actually finger the TAL, or even-really–the IGC.
As for the Kurdish situation–I think the Kurdish elites would have told their people regardless that they, the elites, drove a hard bargain. Similarly, we can take it as read that the security situation in Iraq is gratuitously horrible, and this has led to a deterioration in conditions for women Iraqis. But that’s an issue separate from the TAL.
I think the objections Mr. Edelstein raised have been addressed in the language of Chapter 2, 25(e); I think there is a grave risk that the Western energy industry will be seeking rents* in Iraq using its ties to the IGC and the White House, but that’s something else that needs to be watched.
There was never going to be a post-war Iraq that was as centralized as it was 1968-2003. Among 3rd world countries, I would venture the economist’s conventional wisdom that too much centralized control is not such a good thing. Similarly, pace Shirin and Ms. Mahmud, there was never any likelihood that the post-war government would be as independent of clergy or conservative nationalist influence as it was under the Ba’th; in other words, that it would be the short-lived welfare state seen between 1974 and 1979 or so.
None of which shouuld be interpreted as an endorsement (May God forbid!) of the invasion; that it would fall to the invaders to resolve these issues is but the least of the reasons why it was a terrible idea.
——————————-
* Rent-seeking: income gotten through coercive means, such as monopoly, state corruption, or fraud
As for the whole project of the TAL: I think there’s a danger of getting bogged down in villifying the IGC as Bremer’s puppets. I totally accept Shirin’s criticisms of Bremer, the CPA, and (to an extent) the IGC. But while Bremer may have the cultural sensitivity of–hmmm, let me get back to you on that simile–and while his alleged skills as a terrorism expert are ruined by his ideological constraints–I think the TAL had to be formulated quickly and passed.
I reviewed the Constitutions of ’25 and the interim one of ’90. The one of 1990 was conceived as an emergency measure to validate the ideological grounding for the invasion of Iraq (please see Kanan Makiyah, Republic of Fear, chapter one). The C of ’25 doesn’t cover the ground required in a modern constitution; and like the other C’s in the region, it would not survive a multiparty election.
Finally, there is is the problem of transition. We agree that the IGC is not a legitimate governing body; but in view of the fact that the invasion has occurred, who would be? You and I might prefer a different set of individuals, but in view of the Geneva Conventions objection, I don’t understand the strategy for restarting the government. Saying, “There should be no new constitution” doesn’t avoid the problem unless Saddam’s constitution is restored in toto. Aside from the issue of citizenship, etc., that’s not a plausible option. Or we could restore the C of 1925, in which case we’re back to the problem of violating the Geneva Conventions.
James,
Kan’an Makiya and Ahmad Chalabi are two peas from the same pod.
Why do you think that? Their careers are very, very different. Also, their outlook is very different.
Hi, friends– these are all some good, serious discussions here. Thanks for your contributions.
As always I’m delighted to have the weight of yr historical knowledge in the discussion, James. If we look at the situation from an international-law perspective, I think that after the destruction/implosion of Iraq’s previously existing government, the occupying power has clear responsibilities to govern the country and to find a legitimate way to hand it back to a duly constituted indigenous governing authority a.s.a.p. That may or may not involve appointing committees, councils, or even a “governing council” composed of actual Iraqis; but any such body would still under IHL derive its power solely from its appointment by the occupying power.
What is new under IHL is the speed w/ which this occupying power is seeking to shuck off ALL of its responsibilities in that role (while retaining as many of the benefits of being an occupier as possible. Q.v. yr reference to the “rents”.)
Meanwhile, under the Hague Convention of 1908, anything the CPA does to change the fundamentals of the way the country is administered is illegal; i.e. it has no validity in internaional law…
But two big questions remain. How should we actually look at the existing IGC; and (even bigger, this one) how is a legitimate, duly constituted successor government actually to be formed and who will control that process?
Regarding how we should rgd the actual IGC, I’m inclined to describe it as only a quasi-puppet body, for two reasons. Firstly, when it was constituted Sergio Vieira of blessed memory actually had a significant hand in helping to persuade some members to join it (so at that informal level, it did deriive a small measure of its authority from the UN, and not solely from the CPA). Secondly, we have seen many of its members acting NOT as puppets.
Regarding how the duly constituted governing body is to be formed, I see no way out at this point except to call in the UN. But you probably knew that already!
I do think 25-E states quite well that revenues from national resources should be distributed in a way that is proprotional to population and need, as well as compensatory for past inequities.
The trouble with exhortatory language like this is that it tends to get interpreted out of existence when politically convenient (I believe similar language is provided by Nigerian law).
On Kurds and federalism, I am NOT opposed to a federal outcome for them
Thanks for clarifying. I’m more sanguine than you are about federalism working outside the context of a multinational federation (to take one LDC example, the long PNG-Bougainville conflict was successfully ended with regional autonomy), which makes me more optimistic about a federal Iraq, but I agree that there are cautionary factors. Maybe the Kurdish veto should have been replaced with a provision forbidding any final document from diminishing the Kurds’ already-existing autonomy.
In any event, I think the Shi’ites will also benefit from federalism; as you note, they too are a group that has suffered from central control. Given that the interim constitution allows groupings of three or more governorates to form regions (map of governorates here), I expect that the Shi’ites will form either one big autonomous region or two smaller ones. And I’d also like to see an EU-style overlay in the Middle East – including Israel – but I’m not holding my breath.
Thanks, but I’m proving appallingly dense here:
[…] The occupying power has clear responsibilities to govern the country and to find a legitimate way to hand it back to a duly constituted indigenous governing authority a.s.a.p. That may or may not involve appointing committees, councils, or even a “governing council” composed of actual Iraqis; but any such body would still under IHL derive its power solely from its appointment by the occupying power.
What sort of entity would that be? According to the L Brahimi Rep’t cited, the timeline involved elections and consultation with stakeholders. If the IGC is qua illegal, how does it differ materially from a legal body? If the CPA is obligated to withdraw from Iraq ASAP and turn over power to the ITG, is it not true that a framework for the transition is also required ASAP? If so, does it not follow that Bremer’s need for approval duing the Ashura period is actually defensible on the grounds of hastening a withdrawal?
Finally, while you believe the problem with the drafting of the Fundamental Law/TAL was needlessly divisive, because it raised issues that ought to have been resolved later, Juan Cole seems to have taken the opposite position. Is this a misreading?
The reason I’m persisting is that I’m trying to understand a plausible alternative scenario that might have been pursued with greater success and legitimacy.
BTW, yesterday Prof. Cole pointed out that the governorates could very easily become sinecures for ethnic or confessional warlords. This seems to me an objection that is specific to the actual document
Regarding how the duly constituted governing body is to be formed, I see no way out at this point except to call in the UN.
Understood. And they furnished the Brahimi Report. But that still leaves elections in late 2004 and a new constitution, the convention for which requires a structure. Is your position that direct UN supervision would make the process legitimate?
H’mmm, James, lots of huge questions there.
Firstly, unlike many of my friends, I don’t think that a military occupation is in itself illegal. Many things that an occupying power may do are illegal under the Hague and Geneva Conventions; but an occupation in itself is not illegal. It happens. If it happens as a result of an illegitimate war, that may taint the way it is viewed, certainly.
So a governing council that is appointed by an occupying power is not in itself illegal (though things that id does may, as above, be illegal.) Illegal, however, is different from “illegitimate”, which in this context is mainly a political judgment, deriving principally from the way this or any other body is viewed by the people of the occupying [oops! big blooper here! I meant ocuppIED… ~HC] country.
I agree with you that a framework for the transition to a legitimate indigenous government is needed a.s.a.p. But this franework itself can be viewed as legitimate or illegitimate–both by the Iraqis themselves and by the UN. For example, most Iraqis (and most outsiders, myself included) considered the frwamework for transition crafted last November to be quite illegitimate.
Luckily, for now, both the UN and apparently most of the Iraqi people seem to agree on what constitutes the “legitimacy” of a government and the legitimacy fo the framework for getting there. This is more or less the Lockean view that to be legitimate a government must have the consent of the governed. Brahimi’s view (and my own) is that getting this process of discerning the will of the people re their government right is better than doing a hasty, botched job.
I have noted before (hit “Namibia” in the JWN Search box) that the UN has actually faced very similar problems before– in both Namibia and East Timor. In both those cases there was a foreign power ruling over a territory in a situation where its right to do so indefinitely was contested both by the indigenes and by a clear majority of the other governments of the world; and where the indigenous constitutional structures themselves did not exist and had to be created from the ground up. (At least in Iraq there are some constitutional precedents to draw on.)
In both those other cases, the occupying power came to see that it needed the symbolic legitimacy that the UN can confer (as well as the UN’s undoubted expertise in organizing elections in difficult places) in order to midwife the process of transition from their own rule to democratic indigenous rule. Who else could do it? If the occupying power were to organize the elections itself, any losers would immediately claim that the winners were mere Quislings… You need, if you like, a neutral external “referee” for the process.
I certainly know that in E. Timor, the aftermath of the elections was horrendous for the Timoreans because of massive Indonesian non-compliance, the local Indonesian commanders’ organizing of terror mobs, etc etc. But still, the fact that Fretilin had indubitably won in that election (which was a referendum on indpendence vs. a limited “autonomy”, as I recall), and that that poll had been organized by the UN, gave Fretilin the unassailable right to request the assistance of the UN and of its member states in order to oust the Indonesians from the territory. Which the UN–led in that case by Australia– did through a lot of diplomatic arm-twisting and some threat of force but not the actual use of force…
And yes, in both those previous, successful cases of the UN organizing a transition from foreign military rule to indigenous democracy, the approach the UN used was to build up the different levels of consensus among the potential voters slowly, one step at a time. NOT to come right on in with its own formulas for federalism or anything else.
I’m assuming here–and this is not necessarily a valid assumption–that the USG would actually like this transition to indigenous democratic rule to work and to result in the creation of a stable Iraqi administration that effectively protects and represents the interests of (all the different segments of) the Iraqi people. One could easily think of reasons why this might NOT be the preferred outcome of some of the Bushies…
For reader convenience: JWN post on Namibia and East Timor transitions.
Amusing observation: here, also, I left a comment with an allusion to rents (that was in mid-Jan).
This is good. I can use this at my site to make a case. Thanks, Helena!
Dear James,
Sorry that I can’t give you a full reply regarding Kan’an Makiya right now, but it’s late and it’s been a busy day.
For now I’ll just point out that they are both opportunists of the first water.
Well, I did a search for KM and some various organizations. The most notorious neo-con orgs are AEI and PNAC; the NED is an umbrella group towards which I have especial animus. However, the NED is not really a thinktank; it is a gob of dough that Congress in its infinite wisdom puts up for grabs. The NED-IRI is the neo-con sinecure but other money just goes to the foreign policy departments at a bunch of East Coast institutions.
Well, KM is a member of the International Forum for Democratic Studies (IFDS) Research Council, which just publishes reports. Its members seem to span a continuum of mainstream American views; founded in ’94 it mitigates the damage done by the NED by tying up its budget on reaserch grants and publications.
KM is not on the masthead at the AEI but has been a guest speaker at three functions co-sponsored by them. Just reviewed the list of people who are “scholars and fellows” there–restraining myself from a stream of unprintable invective, let me just say the AEI richly deserves its odium.
KM has nothing to do with the PNAC.
KM does have something to do with the INC, which was banged together by Western intelligence at a conference in Jordan. I always did think this was a joke, but it’s true anyone participating in Iraqi politics is going to have some compromising associations, including compromising associations with Americans or with the prior regime. What is discouraging is that he actualy works at Benador Associates–a PR firm which also employs really staggeringly unsavory characters (Satan’s application, however, was probably turned down because they couldn’t contact his references).
So it seems that KM has some really ugly associations he really isn’t required to have (he’s a professor at Brandeis U). OTOH, Republic of Fear is a classic and its analysis of the hyper-Hegelian state is way up there on my list of great books. And 1st edition was published in 1986, when the think-tank gravy train was pro-Saddam.
So I would refine the analogy to say that, while Ahmad Chalabi is a lying, bank-robbing, nepotistic, coat-turning Arab-despising SoS, KM cannot be accused of despising Arabs (he spends a lot of time refuting negative stereotypes of Arabs in RoF), he’s been very sharply critical of the WH post-invasion, and I’ve not found any allegation that he’s corrupt, even by those who plainly hate him; but he has thrown in his lot with the American right, which, until 2000, was a demographic norm amongst Arab Americans.
This is just a summary of some research just now. It should not be regarded as “the lst word.”
Iraq and the Law-Once More into the Breach
I’ve posted several times on the fundamental law (transitional administrative law, or TAL; 1, 2). I mention them in passing because I was grappling with the questions Ms. Cobbam and Prof. Cole had raised re. the interim constitution. Since that…
Never let your sense of morals prevent you from doing what’s right.
Fundamental Law–MacLean just doesn’t get it
(updated 0308 GMT 12 March) Below, I wrote that I’m mystified as to why the Fundamental Law per se is condemned. Here’s a shorter JRM:I’m not as horrified by the TAL [as Just World News & CSM writer Helena Cobbam…