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Coalition Laws and Transition Arrangements During Occupation of Iraq

Published online by Cambridge University Press:  10 March 2017

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Type
Contemporary Practice of the United States Relating to International Law
Information
American Journal of International Law , Volume 98 , Issue 3 , July 2004 , pp. 601 - 606
Copyright
Copyright © American Society of International Law 2004

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References

1 For background on the military action and postwar occupation, see 97 AJIL 203, 419, & 681 (2003), and 98 AJIL 190 (2004).

2 National Security Presidential Directive 24 (Jan. 2003) (not publicly available).

3 Remarks Following a Meeting with Secretary of Defense Rumsfeld, Donald H. and an Exchange with Reporters, 39 Weekly Comp. Pres. Doc. 549 (May 6, 2003)Google Scholar.

4 Slevin, Peter, Reject Baath Party, U.S. Tells Iraqi Job Hopefuls, Wash. Post, May 11, 2003, at A22 Google Scholar.

5 On the one hand, some statements by the U.S. government suggest that the CPA was created by the multinational coalition that intervened in Iraq. See, e.g., Letter Dated 8 May 2003 from the Permanent Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/2003/538 (May 8, 2003) (“the United States, the United Kingdom and Coalition partners, acting under existing command and control arrangements through the Commander of Coalition Forces, have created the [CPA], which includes the [ORHA], to exercise powers of government temporarily”); Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, 2004, Pub. L. No. 108–106, ch. 2, 117 Stat. 1209, 1226 (Nov. 6, 2003) (stating that the CPA was established pursuant to SC Res. 1483 (May 22, 2003), 42ILM1016 (2003)). Resolution 1483, however, did not establish or authorize a specific organization to undertake the reconstruction of Iraq. Indeed, a contrast may be drawn with the Security Council’s express authorization in 1996 for the establishment of NATO’s stabilization force (SFOR) in Bosnia-Herzegovina. See SC Res. 1088, para. 18 (Dec. 12, 1996).

On the other hand, other statements by the U.S. government suggest that the CPA was created by the U.S. executive branch. See, e.g., U .S. Office of Management and Budget, Report to Congress Pursuant to Section 1506 of the Emergency Wartime Supplemental Appropriations Act, 2003 (Public Law 108–11) (June 2, 2003), at <http://www.whitehouse.gov/omb/legislative>>Google Scholar (“The CPAis vested by the President with all executive, legislative and judicial authority necessary to achieve its objectives . . .”); Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, supra, 117 Stat, at 1225 (“funds appropriated under this heading [Iraq Relief and Reconstruction Fund] shall be apportioned only to the [CPA] in Iraq (in its capacity as an entity of the United States Government)”).

For an analysis of the legal basis for the CPA, see Congressional Research Service, the Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities (CRS Order Code RL32370, 2004), available at <http://www.fas.org/man/crs/RL32370.pdf>. The CRS analysis states in the summary:

Competing, though not necessarily mutually exclusive, explanations for how [the CPA] was established contribute to the uncertainty about its status. The lack of an authoritative and unambiguous statement about how this organization was established, by whom, and under what authority leaves open many questions, particularly in the areas of oversight and accountability.

6 See CPA Office of Inspector General, Message from the Inspector General of the Coalition Provisional Authority at 5 (Mar. 30, 2004), at <http://www.cpa-ig.org/reports.html>.

7 SC Res. 1483, supra note 5, pmbl. & para. 4.

8 CPA Regulation 1 (May 16, 2003). Oddly, the regulation is dated May 16 but relies on a Security Council resolution mat was adopted only on May 22. Orders and regulations of the CPA have not been published in the Federal Register but—as ofjune 2004—were available at <http://www.iraqcoalition.org/regulations/index.html#Regulations>.

9 Id. §1(1) & (2).

10 Id. §§2, 3.

11 CPA Order 3 (May 23, 2003), as revised and amended.

12 CPA Order 10 (June 5, 2003).

13 CPA Order 74 (Apr. 19, 2004) (establishing an interim law on securities markets); CPA Order 81 (Apr. 26, 2004) (establishing a law on patents, industrial design, undisclosed information, integrated circuits, and plant variety); CPA Order 83 (May 1, 2004) (amending copyright law).

Other significant orders include CPA Order 5 (May 25, 2003) (establishing the Iraqi de-Baathification council); CPA Order 7 (June 10, 2003) (revising the penal code); CPA Order 9 (June 8, 2003) (addressing management and use of Iraqi public property); CPA Order 15 (June 23, 2004) (establishing ajudicial review committee); CPA Order 17 (June 27, 2003) (addressing the status of the coalition, foreign liaison missions, and their personnel and contractors); CPA Order 18 (July 7, 2003) (promulgating measures to ensure the independence of the Central Bank of Iraq); CPA Order 20 (July 17, 2003) (creating an Iraqi trade bank); CPA Order 22 (Aug. 8, 2003) (creating a new Iraqi army); CPA Order 23 (Aug. 20, 2003) (creating a new code of discipline for the new Iraqi army); CPA Order 26 (Aug. 24, 2003) (creating a department of border enforcement); CPA Order 28 (Sept 3, 2003) (establishing an Iraqi civil defense corps); CPA Order 29 (Sept. 7, 2003) (amending the law of estate lease); CPA Order 31 (Sept. 10, 2003) (further modifying the penal code and criminal proceedings law); CPA Order 35 (Sept. 18, 2003) (reestablishing a council of judges); CPA Order 41 (Sept. 19, 2003) (creating certain criminal offenses); CPA Order 39 (Sept. 19, 2003) (providing for foreign investment; later amended by order 46); CPA Order 40 (Sept. 19, 2003) (enacting a new bank law); CPA Order 36 (Oct. 3, 2003) (regulating oil distribution); CPA Order 43 (Oct. 14, 2003) (issuing new Iraqi dinar banknotes); CPA Order 48 (Dec. 10, 2003) (delegating authority for establishment of an Iraqi war crimes tribunal); CPA Order 49 (Feb. 20, 2004) (addressing taxation); CPA Order 50 (Jan. 11, 2004) (creating a ministry of displacement and migration); CPA Order 52 (Jan. 8, 2004) (addressing pensions forjudges and prosecutors who the while holding office); CPA Order 53 (Jan. 18, 2004) (providing for public defenders’ fees); CPA Order 55 (Jan. 28, 2004) (delegating authority regarding the Iraqi commission on public integrity); CPA Order 58 (Feb. 10, 2004) (creating courts of appeal); CPA Order 60 (Feb. 22, 2004) (establishing a human rights ministry); CPA Order 67 (Mar. 21, 2004) (creating a defense ministry); CPA Order 38 (Apr. 4, 2004) (providing for reconstruction levy; amended by CPA Order 70); CPA Order 54 (Apr. 4, 2004) (establishing a trade liberalization policy; amended by CPA Order 70); CPA Order 68 (Apr. 4, 2004) (creating a ministerial committee for national security).

14 CPA Memorandum 3 (June 18, 2003); CPA Memorandum 4 (Aug. 20, 2003); CPA Memorandum 10 (Apr. 5, 2004).

15 Public Notice Regarding the Prohibition Under Iraqi Law of Vehicles with Tinted Windows (June 27, 2003)Google Scholar.

16 Chandrasekaran, Rajiv, Appointed Iraqi Council Assumes Limited Role, Wash. Post July 14, 2003, at A1 Google Scholar. The council comprised thirteen Shiites, five Kurds, five Sunnis, one Christian, and one Turkmen. Three council members were women.

17 Galbraith, Peter W., How to Get out of Iraq, N.Y. Rev. Books, May 13, 2004, at 42, 42–44 Google Scholar (noting five different U.S. strategies over the course of 2003–2004).

18 See, e.g., Allen, Mike & Loeb, Vernon, U.S. Wants Larger U.N. Role in Iraq, Wash. Post, Sept 3, 2003, at A1 Google Scholar (noting that the new U.S. position “reflects a recognition within the administration that a stronger U.N. mandate is essential to winning greater foreign military and economic help in stabilizing Iraq”); Lynch, Colum, New Iraq Proposal Offered to UN., Wash. Post, Oct. 14, 2003, at A1 Google Scholar (stating that the “Bush administration hopes that the resolution will provide greater political cover to countries considering providing troops and financial support in Iraq”).

19 Lynch, supra note 18; Lynch, Colum, Three Countries Give U.S. a Key Iraq Concession, Wash. Post, Oct 15, 2003, at A1 Google Scholar.

20 SC Res. 1511, para. 7 (Oct. 16, 2003). The resolution was adopted unanimously.

21 Id., para. 15.

22 Agreement on Political Process (Nov. 15, 2003). For information on the agreement, see <http://www.cpa.gov/government/AgreementNovl5.pdf>.

23 Law of Administration for the State of Iraq for the Transitional Period (Mar. 8, 2004), at <http://www.cpa.gov/government/TAL.html>>Google Scholar

24 Id., Art. 2(B).

25 Id., Art. 2.

26 See Galbraith, supra note 17, at 46 (“The Bush administration, having scorned the United Nations, is now desperate to have it back.”); Hoge, Warren, U.N. Is Wary of Dangers in Taking Lead Role in Iraq, N.Y. Times, Apr. 18, 2004, §1, at 11 Google Scholar (“With time running out on the June 30 deadline for transfer of power, the United Nations is being looked to as the only institution that can confer immediate global legitimacy on the American goal of bringing representative government to Iraq.”); Milbank, Dana, Bush, Blair Support U.N. on Iraq Plan, Wash. Post, Apr. 17, 2004, at A1 Google Scholar.

27 Letter Dated 7 June 2004 from the Secretary-General to the President of the Security Council, UN Doc. S/2004/461, at 1 (June 7, 2004) (reporting on Brahimi’s mission in Iraq); UN Doc. S/PV.4982, at 2 (June 3, 2004) (representative of Iraq describing the UN special envoy’s role in meeting with Iraqi leaders); see also Wright, Robin & Pincus, Walter, U.S., UN. Seek New Leaders for Iraq, Wash. Post, Apr. 24, 2004, at A1 Google Scholar.

28 UN Doc. S/2004/461, supra note 27, at 7; UN Press Release, Head of Iraqi Governing Council to Serve as Interim President—UN Envoy (June 1, 2004), at <http://www.un.org>; Chandrasekaran, Rajiv, Interim Leaders Named in Iraq, Wash. Post, June 2, 2004, at A1 Google Scholar. It was anticipated that a national conference would be convened in July 2004 to select the hundred-member National Council.

29 Filkins, Dexter, New Government Is Formed in Iraq as Attacks Go On, N.Y. Times, June 2, 2004, at A1 Google Scholar.

30 E.g., UN Doc. S/PV.4982, supra note 27, at 7 (representative of France asserting that “the general principles and parameters of that cooperation and partnership must be specified in the resolution”); see also Wright, Robin, U.S. Faces Payback on Iraq Solution, Wash. Post, June 3, 2004, at A14 Google Scholar.

31 See Text of Letters from the Prime Minister of the Interim Government of Iraq Dr. Ayad Allawi and United States Secretary of State Colin L. Powell to the President of the Council (June 5, 2004), SC Res. 1546, annex (June 8, 2004).

32 Id. (letter of Colin L. Powell).

33 See Milbank, Dana, Iraqi’s Offer to U.S. Troops CouldLead to UN. Action, Wash. Post June 6, 2004, at A20 Google Scholar; Stevenson, Richard W., Bush and Chirac Reporting Progress on Iraq Resolution, N.Y. Times, June 6, 2004, §1, at 20 Google Scholar.

34 Wright, Robin & Milbank, Dana, U.S. Bends to France, Russia on U.N. Iraq Resolution, Wash. Post, June 8, 2004, at A4 Google Scholar.

35 SC Res. 1546, supra note 31, para. 3.

36 See id., para. 11.

37 See id., para. 5.

38 Id.; Slevin, Peter & Wright, Robin, U.N. Backs Plan to End Iraq Occupation, Wash. Post, June 9, 2004, at A1 Google Scholar.

39 SC Res. 1546, supra note 31, para. 1.

40 Id., paras. 2–3.

41 Id., paras. 10–12.

42 Id., paras. 24–25.

43 Id., para. 26.

44 UN Doc. S/PV.4987, at 2 (June 8, 2004).