May 25, 2004
By Adam Roberts
On June 30, the formal status of Iraq as a territory under foreign military occupation is due to end. The coalition provisional authority (CPA) under the proconsulship of Paul Bremer will cease to exist, replaced by a new interim Iraqi government. From that day the US will have not a proconsul, but an ambassador, John Negroponte, currently the US representative at the UN.
The plan is that the new arrangements will have the seal of approval of a UN security council resolution; a draft text was presented yesterday. However, when Iraqis wake up on July 1, outside involvement in the administration of the country will not have ceased. Huge numbers of foreign troops and advisers will remain. Will their activities still be subject to the standards laid down in the laws of war, most particularly the 1949 Geneva conventions?
On May 20, Colin Powell, the US secretary of state, said: "We intend for this interim government ... to be sovereign. It is the interim government that is replacing Bremer and the coalition provisional authority, not Ambassador Negroponte." Powell went on to point out that the transfer has been happening gradually; 13 ministries are already operating more or less independently. The main parties involved have chosen to call the change a "transfer of sovereignty"; on May 19, President Bush spoke of "our strategy to transfer full sovereignty to the Iraqi people". A banner on the CPA website today proclaims "37 days to Iraqi sovereignty".
But the proposition that on June 30 there will be a "transfer of sovereignty" is questionable; those claiming to transfer Iraqi sovereignty do not possess it. Under well-established laws relating to occupations, Iraqi sovereignty was always vested in Iraq - and not in the US and its coalition, which, as the occupying power, merely exercised a temporary administrative role. Indeed, Iraq's continuing sovereignty was explicitly confirmed in UN security council resolutions 1483, of May 22 last year, and 1511, of October 16. What is now planned would be better, albeit less dramatically, described as a transfer of administrative authority. Will the interim government really be sovereign?
On May 14, Powell said that if the government asked US forces to leave, the US would comply. Thus the interim government in theory has a degree of power. However, it is only an appointed caretaker government until elections in December or January, and it may well lack popular legitimacy and political clout. Like its predecessor, the Iraqi governing council, it will face violent opposition, and it will be dependent on outsiders - including the US and UK - to keep it in power. The reconstruction of its own armed forces has been clumsily handled and is plainly incomplete. In short, the interim government's capacity to ask the US to leave is not likely to be exercised any time soon. Critics may view the situation as comparable to that of "independent" satellite governments under axis domination before the second world war, as described by George Kennan in a 1939 report on Slovakia to the US state department: "In internal matters, it has exactly the same independence as a dog on a leash. As long as the dog trots quietly and cheerfully at his master's side - and in the same direction - he is quite free; if he starts out on any tangents of his own, he feels the pull at once."
Normally, an occupation comes to an end when an occupying power withdraws or is driven out. On July 1, the formal occupation of the whole of Iraq will have ended, but neither the factual nor legal situation will have changed completely. If coalition forces are used against insurgents, if they take prisoners, or if they find themselves exercising authority in an operational area, then they will continue to be bound by the Geneva conventions - which apply to all international armed conflicts, and to all cases of partial or total occupation of a country. The question of whether there is a formal proclamation of occupation is of limited importance: it is the reality, not the label, that counts. There could be numerous circumstances after July 1 that constitute a general exercise of authority similar to that of an occupier, or else an occupation of at least part of Iraqi territory. In addition, the conventions apply to any continuing armed conflict.
True, from July 1 it might be claimed that any hostilities in Iraq are internal in character, but even if that questionable supposition was accepted, the rules in common article 3 of the conventions (which deals with non-international armed conflict) would be applicable, including the prohibition of cruel treatment and torture. Immense damage has been done to the coalition's cause by the abuse of detainees. The need for a clear line of responsibility for such crimes is all the more pressing because, even after July 1, coalition troops are reportedly to be given continued immunity from prosecution under Iraqi law. Against this background, the UK, US and other powers need to recognise that rules laid down in the Geneva conventions will continue to be applicable to all who serve under them in Iraq, and will actually be implemented by governments of the troop-supplying countries. One way to make the continuing obligation clear would be to spell it out in the forthcoming security council resolution. The transfer of authority must not become an excuse for an abandonment of responsibility.
Sir Adam Roberts, professor of international relations at Oxford University, is a fellow of Balliol College and the co-author of Documents on the Laws of War, third edition