Daily Star Home  

<%-- Page Title--%> Star Law Analysis <%-- End Page Title--%>

  <%-- Page Title--%> Issue No 103 <%-- End Page Title--%>  

August 3, 2003 

  <%-- Page Title--%> <%-- Navigation Bar--%>
<%-- Navigation Bar--%>

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.


      (C) Copyright The Daily Star.