Amid ongoing insurgency, the United States handed sovereignty to an Iraqi interim government on June 28. The Bush Administration maintains that the handover was a success and will begin a transition to democracy and stability. Critics assert that the handover does not appear to have diminished the anti-U.S. insurgency, threatening the transition roadmap developed by the United States and United Nations. Legal issues may arise regarding the validity of laws issued during the occupation, as well as the status of U.S. troops in Iraq. See CRS Report RL31339 , Iraq: U.S. Regime Change Efforts and Post-Saddam Governance .
Amid ongoing insurgency, the United States handed sovereignty to an Iraqi interim government on June 28. The Bush Administration maintains that the handover was a success and will begin a transition to democracy and stability. Critics assert that the handover does not appear to have diminished the anti-U.S. insurgency, threatening the transition roadmap developed by the United States and United Nations. Legal issues may arise regarding the validity of laws issued during the occupation, as well as the status of U.S. troops in Iraq. See CRS Report RL31339, Iraq: U.S. Regime Change Efforts and Post-Saddam Governance.
The Bush Administration had initially made the end of the U.S. occupation contingent on the completion of a new constitution and the holding of national elections for a new government, tasks to be completed by 2005. However, political infighting among Iraq's various ethnic and political factions, coupled with a persistent insurgency, slowed progress on setting up an elected political structure. The U.S. administrator in Iraq, L. Paul Bremer (head of the U.S.-led occupation authority, the Coalition Provisional Authority or CPA), in consultation with Iraqis appointed to a 25-seat "Iraq Governing Council (IGC)," agreed to a plan that would lead to sovereignty for Iraq by June 30, 2004. Under the plan, announced November 15, 2003, a Transitional Administrative Law (TAL) -- a provisional constitution -- was to be signed by February 29, 2004, followed by the holding of local "caucuses" in each province to select a national assembly (by May 31, 2004). The assembly was to choose an executive leadership. The agreement encountered opposition from the revered Shiite Muslim leader Grand Ayatollah Ali Sistani, who called for early direct elections; his views prompted the CPA to ask the United Nations to assess the feasibility of holding elections for an interim government. A U.N. team led by U.N. envoy Lakhdar Brahimi concluded in February 2004 that national elections could not be held earlier than late 2004 or early 2005. Sistani accepted that time frame.
Much of the Brahimi findings were incorporated into the TAL, which the IGC formally signed on March 8, 2004. (1) Its key points are as follows:
Interim (Post-June 30) Government. The TAL did not address how an interim government -- which will be in office from July 1, 2004 until January 31, 2005 -- would be chosen. Some options for selecting the interim government were considered, including holding a traditional assembly along the lines of Afghanistan's loya jirga; holding a smaller "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 selecting the interim government. (2) Brahimi said he envisioned an interim government of technocrats, who presumably would not seek to use their official positions to further their chances in January 2005 national elections. However, maneuvering by IGC and cabinet members led to inclusion of many of them -- or their political allies -- in the interim government named on June 1, 2004. A few of the cabinet positions are held by relatively non-political personalities. The interim government began working immediately. Brahimi has said publicly that pressure by U.S. and Iraqi politicians to complete the interim government on time caused him to acquiesce to many 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 largely ceremonial president (former IGC member and Shammar tribal elder Ghazi al-Yawar) and two deputy presidents (Ibrahim al-Jafari of the Da'wa Party and Kurdistan Democratic Party activist Dr. Rowsch Shaways). There is a prime minister (Iraq National Accord leader Iyad al-Allawi), a deputy prime minister, 26 ministers, two ministers of state with portfolio, and three ministers of state without portfolio. The prime minister has executive power. Six members of the interim government are women. Some of the ministers were held over from the occupation period -- Hoshyar Zebari, a top KDP official, remained Foreign Minister; Dr. Mehdi al-Hafidh, an independent Shiite, remained Minister of Planning; Patriotic Union of Kurdistan (PUK) official Dr. Abdul Latif Rashid stayed Minister of Water Resources; 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, which endorsed the handover of sovereignty. Its major provisions are the following:
Other Preparations for Handover. The following additional decisions or events were part of the handover: (4)
A number of legal issues are likely to arise. The actual extent of the interim government's sovereignty -- or its lawful control over its own territory to the general exclusion of other states -- is unclear, as are the continuing coalition responsibilities. Laws and agreements put in place during the occupation may be challenged, placing the validity of legal contracts and property interests, public or private, in some doubt. The status of coalition forces remaining in Iraq has changed somewhat, as discussed below.
Interpreting Resolutions 1483, 1511 and 1546. Two sources of international law have governed the occupation of Iraq: U.N. Security Council resolutions (in particular Resolution 1483 of May 22, and Resolution 1511 of October 16, 2003) and international treaties such as the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949. Under these treaties and other sources forming the international law of belligerent occupation, an occupying power must maintain existing laws and governmental structure unless absolutely prevented by the exigencies of occupation, and any such changes are temporary. On the other hand, U.N. Resolution 1483 appears to contemplate an overhaul of Iraqi institutions, even as it reiterates the applicability of international occupation law. Resolution 1483 may be read to provide certain carve-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 interim government "assumes full responsibility ... for governing Iraq" it is to "refrain ... from taking any actions affecting Iraq's destiny beyond the limited interim period until an elected Transitional Government of Iraq assumes office." In effect, Resolution 1546 appears 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 not pass to the interim government, and will remain instead with the United States as head of the MNF. Obligations that were made under explicit UN approval, such as the Oil-for-Food program or the DFI, are expressly made binding on the interim government. If Iraq exercises full sovereignty, as that concept is ordinarily understood, the interim government could conceivably revoke or amend the TAL, notwithstanding a provision in the TAL that allows only limited amendment during the second phase of the transition. Despite language in Resolution 1511 recognizing limited and temporary sovereignty in the CPA and the IGC, both entities arguably lacked the 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 during the transitional period, unless rescinded or amended during the second phase of the transition. The United States does not, however, retain any authority to interpret and enforce those laws. Although Resolution 1546 admonishes the interim government to refrain from any actions that would affect Iraq's post-interim period destiny, it is not clear whether temporary laws put in place by the CPA are automatically protected. The interim government could conceivably choose to rescind such laws or agreements and decline to honor or enforce any obligations created pursuant to them. For example, if CPA orders authorizing foreign investment in Iraq were to 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 of the interim government, the authorization for the MNF to "take all necessary measures to contribute to the maintenance of security and stability in Iraq ... including by preventing and deterring terrorism ..." until elections can be held. Under the letter from Secretary Powell annexed to Resolution 1546, these measures include combat operations against insurgents, internment where "necessary for imperative reasons of security," and the continued search for weapons that threaten Iraq's security. Notably, the mandate is to be ended 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 promoting security and stability "in accordance with international law, including obligations under international humanitarian law." Ordinarily, international humanitarian law would no longer apply at the end of a military occupation. The UN resolutions leave ambiguous which of the responsibilities of an occupying power under the laws of war were to apply both during the occupation and afterward. Some observers have suggested that Iraq remains under a de facto occupation and that all relevant international continues to apply.
A status of forces agreement will not be possible until the second phase of the transition because only the Iraqi Transitional Government will have the authority to bind Iraq to treaties. At present, coalition forces in Iraq are immune from Iraqi legal process under CPA Order No. 17, which has been extended for the duration of the MNF's presence. However, a sovereign Iraq, even under an interim government, could assert the authority to revoke the immunity.
4. (back)Information in this section was obtained from various press reports, the text of a May 11, 2004 national security presidential directive, CRS conversations with executive branch officials in May 2004, CRS conversations with journalists and other observers, and CRS participation in a congressional visit to Iraq during Feb. 28-29, 2004.