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Problem of legitimacy of the occupying powers in Iraq
Prof
M Shah Alam
While
the United Nations failed to avert war in Iraq, failing thereby to prevent
violation of international law by two permanent members of the UN Security
Council, one of them the only super power of contemporary world, the world
organisation suffered a serious set-back. But contrary to pessimism expressed
by many has not lost the power and relevancy, which the founding fathers
attributed to it in 1945. The history of the United Nations is a history
of its successes and failures. While the organisation has failed to prevent
armed conflicts in many regions of the world, it has succeeded in preventing
such conflicts in many others, or has enforced cease-fire to make way
for peaceful settlement of disputes. Undoubtedly, the UN has been successful
so far 'to save succeeding generations from the scourge of (a global)
war', the resolve which was solemnly expressed in the very first sentence
of the preamble of the UN Charter. The UN has relentlessly laboured ever
since for creating material conditions for peace and security by ensuring
friendly and fruitful cooperation amongst the member states in different
fields, and by contributing to worldwide protection and promotion of human
rights.
Power,
politics & Int. Law
International peace and security has always been a function of power,
politics and law. The factor of law has definitely gained prominence under
the United Nations, but at times becomes helpless bystander before power
and politics. The whole world listened in utter awe when the US President
George Bush in his address in the UN Security Council early this year
called upon the Council to approve use of force against Iraq and thereby
prove the relevancy of the United Nations. It was a covert threat to the
very existence of the UN. The use of force was not approved but could
not be stopped either. Good thing was that the Council was able to withstand
the mounting pressure from the USA and UK. UN approval of the use of force
would have been a violation of its Charter seriously undermining the credibility
of the organisation.
Violation of law in the international arena is not the end of law. Violation
also takes place within the state, of the state laws, and often by the
state itself. Nonetheless, pursuit for better provision for the rule of
law continues. USA and UK defied the United Nations but again turned to
it to decide how and what to do in Iraq in the aftermath of the war. The
result has been the UN Security Council resolution no. 1483 (May 22, 2003)
to rebuild Iraq and restore its sovereignty to the people of Iraq.
Any action otherwise illegal cannot be made legal by any decision or resolution
of any national or international body. The results of such illegal action
are also illegal. Hence, the resolution no. 1483 has no consequence as
to legalise the act of invasion of Iraq. However, the United Nations,
not a sovereign entity, although primarily responsible for international
peace and security, and its power limited by the Charter, cannot but take
into account the imperatives of power and politics, and accept the presence
of the occupying forces in Iraq as "fait accompli" and determine
its role afresh to restore the sovereignty of Iraq to the Iraqi people.
For that to happen, resolution 1483 is an important move taken by the
Security Council. The resolution provides a legal framework within which
UN can work and enhance its authority in post-war rebuilding of Iraq.
Resolution
1483-a necessary evil
In the entire scenario of illegality of invasion of Iraq by the USA-UK
forces, the continued presence of these forces in Iraq, economic, political,
social and administrative disruption in Iraq and resultant discontentment
of the Iraqi people, resolution 1483 is a concrete first step to restore
Iraqi sovereignty in a peaceful way. Should its objectives remain as they
are, it can provide legitimacy to the activities, which have been considered
and assigned to the relevant parties under the resolution. It is worth
repeating that the resolution 1483 has not legalised the US led act of
aggression and occupation of Iraq, but it has accorded legitimacy to the
works which the occupying powers are to undertake with the ultimate aim
of returning power to Iraqi people. No question, the degree of legitimacy
would depend on how sincerely, seriously and rationally they would perform
their works within a reasonable time frame, and on the support they would
get from the people of Iraq.
Belligerents of war whether the war is lawful or unlawful, are bound by
the Geneva conventions of 1949 and Hague conventions of 1907 relating
to the laws and customs of war. These laws, where necessary, continue
to operate even after the cessation of hostilities. While the resolution
1483 recognises 'the specific authorities, responsibilities, and obligations
under applicable international law of these states (USA and UK) as occupying
powers (in Iraq) under unified command -- the "Authority" (preamble),
it also calls upon the occupying powers to act in consistence with relevant
international law '...... to promote the welfare of the Iraqi people through
the effective administration of the territory, including in particular
working towards the restoration of conditions of security and stability
and the creation of conditions in which the Iraqi people may freely determine
their own political future' (Para 4). Occupying powers are under strict
international obligation to secure the life and property of the Iraqi
people and to protect their cultural heritage.
The resolution 1483 reaffirms the sovereignty and territorial integrity
of Iraq, stresses the rights of the Iraqi people to control their own
natural resources, and expresses '..... resolve that the day when Iraqis
govern themselves must come quickly'. (preamble)
While the resolution has accepted the Authority (USA-UK) as central to
internal administration of Iraq and to all efforts to be made for creating
conditions of stability and transition to representative government. It
has also provided for active role and involvement of the United Nations
in monitoring, coordinating and helping these efforts. The resolution
envisages a vital role of the United Nations not only in humanitarian
relief and reconstruction of Iraq but also in the restoration and establishment
of national and local institutions for representative governance (preamble).
Concretely, the resolution provides for an UN 'Special Representative
for Iraq whose independent responsibilities shall involve reporting regularly
to the Council on his activities under this resolution.....' (para 8).
The Special Representative would assist the people of Iraq through, inter
alia 'working intensively with the Authority, the people of Iraq, and
others concerned to advance efforts to restore and establish national
and local institutions for representative governance, including by working
together to facilitate a process leading to an internationally recognised,
representative government of Iraq' (para 8/c).
The resolution also 'supports the formation, by the people of Iraq with
the help of the Authority and working with the Special Representative,
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' (para 9).
The resolution takes into cognizance the establishment of a Development
Fund for Iraq to be held by the Central Bank of Iraq and to be audited
by independent public accountants approved by the International Advisory
and Monitoring Board of the Development Fund for Iraq. The resolution
urges that the Fund be used by the Authority in consultation with the
Iraqi interim administration in a transparent manner to meet the needs
of Iraq and Iraqi people (paras 12, 13 & 14). The resolution also
provides for lifting of economic sanctions against Iraq imposed on it
by SC resolution 661 in 1990, and requires the sale proceed from oil to
be deposited into the Fund.
Another significant aspect of the resolution is that it welcomes 'the
willingness of Member States to contribute to stability and security in
Iraq by contributing personnel, equipment, and other resources under the
Authority' (preamble), and also 'appeals to Member States and concerned
organisations to assist the people of Iraq in their efforts to reform
their institutions and rebuild their country, and to contribute to conditions
of stability and security in Iraq in accordance with this resolution'
(para. 1).
Advocacy
for cooperation
More are the numbers of states willing to respond to the call of the Security
Council to assist the people of Iraq, presumably, stronger and more effective
are likely to be the involvement and position of the United Nations vis-a-vis
the Authority during the transitional period in Iraq. Assuming that the
decisive power remains with the Authority, exercise of that power has
more scope to be rationalised by the participation of increased number
of states for expeditious transition to Iraqi sovereignty. Such participation
and assistance would facilitate the review of the implementation of the
resolution, which is provided for in the resolution (para 25), in more
meaningful way i.e. taking of concrete steps within a definite time-frame
to hand over power to a representative government established by the people
of Iraq. Only such perspective would earn the confidence and trust of
the people of Iraq and ensure their cooperation with the efforts to be
made by the relevant parties under resolution 1483. Cooperation and support
of the people and perspective of fulfilling their aspirations are primary
conditions for the implementation of the resolution.
Professor
M Shah Alam is Dean, Faculty of Law, University of Chittagong.
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