'Just World News' with Helena Cobban

Bremer's constitutional follies

The 24-member group of (mostly) blunderers who were appointed by the occupying forces to be the "Iraqi Governing Council" have been engaging in just-about-impossible contortions and ructions in their attempt to pull together an Interim Basic Law--that is, a sort of transitional constitution for their country--before the end-of-Feb deadline announced by Ayatollah Paul Bremer in November.

This effort has three major problems:

1. It's illegal.

2. It's quite pointless and diversionary.

3. It's unnecessarily divisive in a country that, God knows, has enough other internal divisions to deal with, too.

Illegal? This is under the Hague and Geneva Conventions, which are quite clear on the fact that an occupying power cannot change the basic structure of governance in the territories it occupies. The IGC holds its "mandate" (such as it is) only from the occupying power. Certainly not from the people of Iraq. From that point of view, you could view it as exercising the same kind of mandate as, say, the Judenraat Councils appointed by the Nazis to run the Jewish ghettoes...

It's true, the IGC has some people on it who are less insincere, less unrepresentative, and less incompetent than others. (Same was no doubt true of the Judenraat Councils.) But the fact remains, the IGC has no inherent legitimacy under international law except as an administrative arm of the occupying power. As such, it clearly does not have the power to change Iraq's Constitution.

Pointless and diversionary? It's essential pointlessness springs from the above. Basically, no edicts that it produces on aspects of the Constitution such as the role of Sharia, Family Law, federalism, or anything else have any lasting validity. As everyone including Paul Bremer admits, the Interim Basic Law will be in force--formally, at least--only until a duly constituted Iraqi body can design a more permanent constitutional document for the country. Since people are now hoping that elections to this new, much more legitimate and credible, body can take place around the end of the year, we could expect it to come up with a proposal for a new Constitution some months after that.

So the "Interim" Basic Law would have been in place only for about a year or so by then. Why bother? Iraq has muddled along without a new IBL for the past 10 months. The existing Iraqi Constitution was not so terribly bad on many issues (including Family Law, the role of Sharia, etc)...

But meanwhile, this whole effort to get a new IBL right now is certainly distracting attention and resources from what should be the main aim of the occupation administration right now, which is to work with all the indigenous Iraqi political forces--both those represented and those not represented on the IGC--as well as with the UN, in order to start planning for the concrete first steps in the election-organizing project.

As I noted in this post on Feb 24, UN envoy Lakhdar Brahimi had presented a report to the UN that laid out in some good detail the steps that need to be taken to organize the election. (Step 1: produce and validate a voter roll; step two: agree on rules for the holding of the election; step three: agree on the scope of the election; etc.)

But the UN is in no position, on its own, to start carrying out any one of those steps. It needs the active involvement of the occupying power in the venture, as well. And to get that, it probably needs a clear new resolution from the UN Security Council, and some sign of a credible commitment from the ever-weasely Bush administration that it is sincerely going to cooperate in the election-organization plan.

But instead of starting to work seriously on that election-preparation project, the occupying power is busy having the IGC engage in this really illegal and pointless exercise around the IBL?

Divisive? Okay, everyone knows that the divisive issues like Family Law, federalism, etc etc will have to be faced some day soon. But why do this now? Surely now is the time to do things politically that draw Iraqis together--and organizing the election could itself be such a project, if it is carefully done... The election should surely be portrayed as an important and serious way for Iraqis to start to build a new future together; one that respects them as individuals who bear both rights and traditions; etc etc... When well organized and well prepared, in countries like Namibia or South Africa, or elsewhere, the election-preparation project itself can be used to start conceiving of and building new forms of national unity in previously divided nations.

Instead of which, we have all the focus on these highly divisive issues, right now.

Makes you think maybe the US occupiers might even want Iraqis to stay divided? This would be, I know, a highly cynical conclusion to reach... But I can't help thinking back to Martin Indyk's infamous "divide and rule" comment of last April. And I can't help thinking that if, as I noted here recently, one of the main goals of the whole war venture was to get basing for US forces in Iraq--given that the neo-cons were already determined to tear up the basing agreements with the Saudis-- then having continued political chaos in Iraq might be seen as one way to secure that.

And that would seem even more attractive if, as now seems increasingly to be the case, the prospects of any legitimately constituted successor government in Iraq agreeing voluntarily to host large numbers of US forces seem to be just about zero.