Reconstructing Iraq: A guide to the issues
Table of Contents
THE LEGAL FRAMEWORK FOR INTERVENTION IN IRAQ
- Disarmament, Regime Change, and Reconstruction
- A Mandate for Reconstruction: Resolution 1483
- Legal Status of the U.S.-Led Coalition
- Legal Mandate for Previous Intervention in Iraq
- IN FOCUS: Obligations of an Occupying Force
TRADITIONAL ACTORS IN POST-CONFLICT RECONSTRUCTION
- The United Nations System
- International Financial Institutions
- Non-Governmental Organizations
- Regional Security Alliances and
- Ad-Hoc Temporary Alliances
- IN FOCUS: The Oil for Food Program, Past and Future
- IN FOCUS: UN Involvement in Pre-Conflict Iraq
- IN FOCUS: International Committee of the Red Cross (ICRC)
- Ethnic Groups
- Religious Divisions
- Political Groups
- IN FOCUS: A Council of Nine
- Administration Plans and Actions
- Shaping a New Iraqi Government
- Emphasis on the Local Level
- Integration and Representation of Diverse Groups
- Ensuring Substantial Representation of Women
- Toward Democratic Elections
- Ensuring Iraqi Participation and Ownership
- "De-Baathifying" All Sectors of Society
- The UN's Role in Political Reconstruction
- IN FOCUS: Iraqi Principles for a Future Government
- IN FOCUS: The UN Speaks
- Short-Term Needs
- Security: Peacekeeping, Policing, and Constabulary Forces
- Humanitarian Relief
- Weapons Inspection
- Justice Package for Immediate Needs
- Cultural Restoration and Protection
- Medium- and Long-Term Needs
- Financial and Monetary Needs
- Legal System
- Justice, War Crimes, and Reconciliation
- Health, Education and Human Welfare
- Gender Issues
- Control of Natural Resources
- Fostering an Independent Media
- Depleted Uranium
- Landmines and UXO
- IN FOCUS: Awarding Contracts for Reconstruction
- IN FOCUS: Costs of Reconstruction
- Past UN Efforts
- East Timor
- Past U.S. Efforts
- Afghanistan: A Case in Progress
- Security Council Resolution 1483
- Past Security Council Resolutions on
- Oil for Food
- Economic Sanctions
- List of experts
- Post Conflict Reconstruction
- The United Nations
- International Law, Accountability and Justice Issues
- International Finance and Debt
- Index of Reports on Iraq and Reconstruction
U.S. military victory in Iraq has given rise to a new and equally important challenge: rebuilding the country and delivering on President Bush's promise of a free and democratic future for the Iraqi people. Yet post-war reconstruction and transition to self-governance are complex and extremely difficult challenges, and the case of Iraq poses unique problems. It also appears to be the first case in which the provisions on occupation of the 1949 Fourth Geneva Conventions have been formally applied.
The plans put forth by the administration for the reconstruction of Iraq are divergent from the past in significant ways.
First, the United Nations is not playing the leading role in reconstruction efforts and the development of a new government in Iraq. Prior to the adoption of Resolution 1483 on May 22, 2003, this process had been controlled largely by the United States, which had involved the UN and non-governmental organizations (NGOs) largely at its discretion. It remains to be seen exactly how the reconstruction process will unfold, but it seems clear that the U.S. - and not the UN - will play the dominant role, albeit with UN Security Council endorsement of its approach.
Second, President Bush has given the U.S. Department of Defense responsibility for reconstruction. In past cases, civilian agencies such as the State Department and its Agency for International Development (USAID) were charged with leading U.S. efforts to reconstruct nations after conflicts.
This booklet, the product of a collaborative effort by various groups involved in policy and on-the-ground assistance in Iraq, is meant to provide concise background information on post-war reconstruction generally, and on Iraq more specifically. It deals briefly with the legal issues entailed in reconstructing Iraq and details both international humanitarian law and Security Council mandates, but the majority of the document is devoted to presenting the larger policy issues entailed in the reconstruction effort. The booklet includes basic information on a wide range of topics, including:
- The traditional actors involved in reconstruction,
their roles, and the guidelines which govern their actions
- Iraq's short-, medium- and long-term
- The history of recent reconstruction
efforts undertaken by the U.S. and/or the UN
- Attitudes of Americans and others about the process of reconstruction.
THE LEGAL FRAMEWORK FOR INTERVENTION IN IRAQ
Disarmament, Regime Change, and Reconstruction
From August 2002 to March 2003, the Bush administration offered a number of reasons to justify military action in Iraq. These ranged from the need to bring about regime change to disarming the Iraqi regime of its weapons of mass destruction to achieving freedom for the people of Iraq.2
In legal terms, the Bush administration ultimately based its decision to launch a military strike against Iraq on past UN Security Council resolutions about Iraq's failure to comply with mandatory disarmament of weapons of mass destruction. Members of the administration made frequent and specific reference to using force in order to enforce Resolution 1441 of November 8, 2002, which-in the words of President Bush-"declared Iraq in material breach of its longstanding obligations, demanding once again Iraq's full and immediate disarmament, and promised serious consequences if the regime refused to comply."3
Neither Resolution 1441 nor others, however, include any mandate for the U.S, the coalition, or the UN to undertake post-conflict reconstruction. In addition, some member states of the UN disagreed with the claim that Resolution 1441 was a proper legal basis for U.S. military intervention. This contention initially left some nations reluctant to cooperate in reconstruction activities without a further resolution.
THE LEGAL FRAMEWORK FOR INTERVENTION IN IRAQ
The Bush administration offered multiple reasons to justify military action in Iraq-ranging from the need to bring about regime change to achieving freedom for the people of Iraq-and ultimately based its decision on past Security Council resolutions on disarmament. These resolutions did not include a mandate for post-conflict reconstruction.
The UN Security Council adopted Resolution 1483 on May 22, 2003, granting wide interim governance powers and control over the collection and disbursement of Iraqi oil revenue to the United States and its coalition partners, and conferring on them the status of an occupying power.
Resolution 1483 grants the U.S. and its partners authorization to carry out activities beyond those explicitly authorized under existing international humanitarian law. There may be discrepancies between existing international humanitarian law and the terms of Resolution 1483.
On May 22, the Security Council passed Resolution 1483 with a vote of 14-0.4 It remains to be seen whether member states will find the resolution a sufficient mandate for all future reconstruction activities in Iraq, or if further resolutions will be needed to deal with such issues as peacekeeping or justice mechanisms.
A Mandate for Reconstruction: Resolution 1483
Resolution 1483, sponsored by the U.S., UK, and Spain, authorizes the United States to control Iraq and its oil until there is an internationally recognized Iraqi government. It contains an array of provisions mainly relating to oil revenue, lifting of the sanctions, the role of the UN through its appointment of a Special Representative, and the future of the humanitarian Oil for Food program. Following is a list of key matters covered:
- No time limit for the resolution.
Resolution 1483 contains no time limit, but does include a provision that
the Security Council will review the resolution within twelve months. Under
these terms, only an affirmative vote by the Security Council, subject
to any one permanent member-state's veto, would be able to alter the resolution.
In effect, the resolution has a built-in automatic renewal.
- Occupation and the Authority.
The resolution notes that a letter was sent by the U.S. and the UK to the
President of the Security Council on May 8, 2003, in which these two powers,
collectively known as "the Authority," acknowledge and accept
the legal status of occupying power in Iraq and all of the attendant rights
and obligations under existing international law. It also notes the possibility
that now or in the future, other states may work under the Authority in
its capacity as an occupying force.
The resolution states that the role of the Authority in Iraq will be to "promote the welfare of the Iraqi people through the effective administration of the territory," and to do so in a manner consistent with relevant international law. It is unclear exactly how this authority to administer the territory will interact with other international law such as the provisions on occupation contained in the Geneva Conventions and the Hague Regulations (for more information, see page 6).
- Oil revenue and financing the reconstruction.
The resolution creates a Development Fund for Iraq, which is to be held
by the Central Bank of Iraq and will receive all oil revenue and other
designated funds. The Fund's resources will be disbursed at the discretion
of the Authority in consultation with the Iraqi interim administration,
in a transparent manner, for humanitarian purposes, economic reconstruction,
continued disarmament, and "for other purposes benefiting the Iraqi
people." The Fund will have an international advisory and monitoring
board whose members will include representatives of the Secretary General,
the World Bank, the IMF, and the Arab Fund for Social and Economic Development.
The disbursement process will not be subject to the decisions of the Board,
and the Board does not include members of Iraqi civil society.
The resolution also indemnifies all oil revenue from legal claims or contest by providing the proceeds from oil sales and revenue collected by the Fund with the privileges and immunities enjoyed by the United Nations. The noted exception to this indemnity is with regard to claims about ecological disasters or oil spills, in which case the Fund is not protected.
Finally, the resolution reduces the amount of oil revenue being paid to the UN compensation committee-which deals with addressing claims on Iraq from the 1991 war against Kuwait-from the current 25 percent to five percent, effective immediately. Resolution 1483 also calls on all states with Iraqi assets to immediately freeze and transfer them to the Development Fund, and maintains that any claims on these funds must be brought before a future permanent government of Iraq. It does not set aside any funds for the UN disarmament process, nor for the Kurds who prior to the war received 13 percent of the Oil for Food proceeds.5
- Oil for Food program. On a related
topic, the Secretary General is instructed to dismantle the Oil for Food
program-which was previously the only legal conduit for selling Iraqi oil
and disbursing the revenue-in six months' time and to turn all of its existing
revenue, currently in a United Nations escrow account, over to the Fund.
He is also instructed to immediately transfer $1 billion of unencumbered
funds from Oil for Food to the Development Fund. In the termination process,
the Secretary General is given ultimate discretion over which existing
contracts to honor and which to postpone or cancel. (There are many outstanding
contracts worth billions of dollars, most notably to Russia, that have
yet to be resolved.) It is unclear from the terms of the resolution whether
or how the Authority will continue humanitarian distribution of food and
- Sanctions. All previous sanctions
levied against Iraq, except for those relating to arms sales, are lifted
by the resolution. Previous resolutions required that disarmament be complete
and certified before the lifting of sanctions could occur; this requirement
is effectively overridden by Resolution 1483.
- Disarmament of Weapons of Mass Destruction.
The resolution does not contain a specific plan or mandate for the continued
disarmament of Iraq. It notes, in a preambulatory clause, the importance
of disarmament and its "eventual confirmation." It seems to suggest
that the Authority will continue to take the lead in conducting disarmament
and will report back to the Security Council on its activities. Finally,
it leaves ambiguous the future role of international weapons inspectors
by stating that the Council will "revisit" the mandates of previous
resolutions on disarmament, leaving open whether this will mean fulfilling
or dismantling such mandates.
- Involving the United Nations.
The main way in which the resolution involves the United Nations is through
the instruction that the Secretary General appoint an independent Special
Representative. The Special Representative is given an "independent"
role and is meant to report back regularly to the Security Council on his
activities under the resolution, including coordinating all UN activities
in Iraq, especially relating to humanitarian work.
The Special Representative is also meant to assist the people of Iraq by, among other activities, working with the international community to facilitate reconstruction of infrastructure, to promote economic reconstruction and development, and to rebuild the Iraqi civilian police force; by working with the Authority and with Iraqis to form local and national institutions for representative governance; and by encouraging international efforts for legal and judicial reform.
- Governance of Iraq. Resolution
1483 states that "the people of Iraq with the help of the Authority
and working with the Special Representative," will form a transitional
administration that will operate until an internationally recognized, representative
government is formed and assumes the responsibilities of the Authority.
This clause leaves ambiguous which entity will take the lead in forming
an interim government, and whether UN activities on governance will be
subject to ultimate approval by the Authority.
In terms of creating a permanent Iraqi government, the resolution states only that the Authority, the Special Representative, and Iraqis will have to work together toward its formation and that it will have to be "internationally recognized." It is also unclear how the necessary assumption by a future Iraqi government of the "responsibilities of the Authority" will take place, and whether this will be a strict benchmark for a new government to meet before the Authority will confer recognition of its legitimacy.
On May 1, 2003, President Bush announced that "major combat operations in Iraq have ended," which marked a new chapter in operations on the ground in Iraq.6 His pronouncement did not, however, immediately resolve the legal status of U.S. forces in the region. It was only with the passage of Resolution 1483 more than three weeks later that the U.S. formally accepted its status as occupier in Iraq and agreed to abide by the applicable provisions of international law.7 Formal recognition by the Authority of its status as an occupying power appears to mark the first time since entry into force that the Fourth Geneva Convention's provisions on occupation will be applied.8
The resolution of the question had significant implications for which government or international institutions would be responsible for providing humanitarian relief and other services for the Iraqi people. Among other provisions, these governing instruments of international humanitarian law require that an occupying force provide for the basic security and health of the country's populace, and, in general, prohibit the occupier from changing existing laws. (For more information on the Hague Regulations and the Geneva Conventions, see the pull-out box on page 6.)
Resolution 1483 formally confers the status of occupier upon the Authority, but it also permits the U.S. and its partners to undertake activities beyond those that are explicitly authorized under the Fourth Geneva Convention and the Hague Regulations. While the Convention and the Regulations state that an occupier may administer the territory, many components of the U.S. plans for reconstruction in Iraq can arguably be construed as going beyond what these humanitarian instruments expressly or implicitly authorize. An occupying power as envisioned in the Fourth Geneva Convention and the Hague Regulations is essentially a "trustee" which is authorized to administer, but not to substantially transform, the country and its institutions. Thus, radical transformation of the country's governmental institutions, of its legal code, and of the governing mechanisms for controlling natural resources - all of which could be construed as part of the democratization process promised to the Iraqi people by President Bush-arguably go beyond what the governing instruments of humanitarian law permit an occupying power to do.
However, Resolution 1483 will likely confer greater legitimacy upon the U.S. plans for the transformation of Iraq, even those components which might not ordinarily be permitted under the provisions of humanitarian law relating to occupation. The resolution may reasonably be interpreted to constitute Security Council endorsement of the type of fundamental changes envisioned by the U.S. for Iraq.
OBLIGATIONS OF AN OCCUPYING FORCE
The 1907 Hague Conventions and the four Geneva Conventions of 1949 and their two Additional Protocols of 1977 are the principal instruments of international humanitarian law (IHL), which is also known as the laws of war or of armed conflict. Most states today are bound in the conduct of their military operations by the Geneva Conventions and the customary law reflected in the Hague Conventions and Protocol One.
Following is a list of key duties and obligations of an occupying power according to the terms of the 1907 Hague Regulations and the 1949 Fourth Geneva Convention.9
1. Respect the human rights of the local population
"Protected persons ...shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention..." including the right of self determination.10
2. Ensure public order and safety
The Occupying Power "shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety while respecting...the laws in force in the country."11
3. Ensure and maintain public health and hygiene
"...the Occupying Power has the duty of ensuring and maintaining, with the cooperation of the national and local authorities...the public health and hygiene in the occupied territory..." 12
4. Provide food and medical supplies
"...the Occupying Power has the duty of ensuring the food and medical supplies of the population..."12
5. Protect property and resources
"The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests and agricultural estates belong to the hostile State and...it must safeguard the capital of these properties."14
6. Permit and facilitate humanitarian relief operations
"If...the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of said population, and shall facilitate them..."15
7. Refrain from making changes to the institutions of the government of the occupied territory that deprive the population of their rights
"Protected persons...shall not be deprived...of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions of government of the said territory..."16
8. In general, refrain from changing the penal laws
"The penal laws of the occupied territory will remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention."17
9. Refrain from selectively transferring and/or deporting persons
"Individual or mass forcible transfer, as well as, deportation of protected persons from occupied territory...are prohibited, regardless of motive."18
A legal debate over exactly how much latitude the U.S. should have as an occupying power to transform Iraq's institutions, and how the rights and obligations of an occupying power will interact with the provisions in Security Council resolutions such as 1483, is likely to take place among experts and scholars for years to come. But regardless of what those debates may conclude, the further question about how the U.S. chooses to go about substantially transforming the country's institutions-the question with which the majority of this document deals-is largely a policy issue.
Legal Mandate for Previous Intervention in Iraq
Resolution 1483, having invoked Chapter VII authority, now constitutes binding international law on Iraq. All previous Security Council resolutions on Iraq-an extensive legal framework beginning with the lead-up to the 1991 Gulf War-are now only relevant insofar as they deal with subjects not covered by 1483. Resolutions on topics such as sanctions and the Oil for Food program have been largely replaced.
Security Council resolutions constitute binding international law; they bestow legality upon the actions of nations or coalitions of nations, and contain prohibitions which are legally binding on all states. As noted above, the legal mandates and prohibitions contained within applicable past resolutions and those in Resolution 1483 may serve to expand or complicate the activities undertaken by the Authority in its capacity as an occupying force.
The extensive list of previous resolutions on Iraq is instructive in tracking the activities of the international community over the past decade. For example, unlike the recent conflict in Iraq for which no additional Security Council authorization was obtained, the 1991 Gulf War was authorized by S.C. Resolution 678 on November 29, 1990. In addition, economic sanctions against Saddam Hussein's regime and the UN-led Oil for Food Program were both governed by extensive sets of Security Council resolutions. A comprehensive list of Security Council resolutions on Iraq, starting from the Gulf War, is included in Appendix 2 on page 65. The resolutions are divided into three topics: Disarmament and Inspections; Oil for Food; and Economic Sanctions.
1 Please note that while every effort has been made to provide up-to-date information about various post-conflict reconstruction activities in Iraq, the nature of fast-moving events on the ground guarantees that some information provided in this booklet will become outdated. Therefore, the Open Society Institute will periodically post updates of significant changes to the information contained in this document, and will list new publications of major reports on Iraqi reconstruction. Please refer to http://www.osi-dc.org for these features.
2 For example, in remarks with President Hamid Karzai of Afghanistan on February 27, President George W. Bush stated that "the mission now is to disarm Saddam Hussein, in the name of peace. And we will disarm Saddam Hussein." And in a subsequent speech to the nation on the eve of war, March 19, 2003, President Bush asserted that "The people of the United States and our friends and allies will not live at the mercy of an outlaw regime that threatens the peace with weapons of mass murder...we will meet that threat now...so that we do not have to meet it later." Regime change became incorporated into the notion of full disarmament, as President Bush explained on February 27: "Should we be forced to commit our troops because of [Saddam Hussein's] failure to disarm, the mission will be complete disarmament, which will mean regime change."
3 Remarks of President George W. Bush, Azores Conference, Azores, Portugal, March 16, 2003. The President also stated that "That resolution was passed unanimously and its logic is inescapable; the Iraqi regime will disarm itself, or the Iraqi regime will be disarmed by force. And the regime has not disarmed itself." See also Secretary of State Colin Powell's speech to the UN Security Council on Feb. 5, http://www.state.