FPIF Commentary

Travails of Transition: Iraq on the Brink

By Colonel Daniel Smith, USA (Ret.) | February 23, 2004

Editor: John Gershman, Interhemispheric Resource Center (IRC)

Twenty minutes. That must have felt like an eternity for those on the receiving end of the barrage of 33 mortar rounds and five rockets that struck the U.S. camp on the edge of Baghdad on February 18. It was another example, after two coordinated insurgent attacks that killed over 100 Iraqis in the previous week, of the continuing lack of security in key areas of Iraq despite an occupation that has run ten months.

Nonetheless, L. Paul Bremer, head of the Coalition Provisional Authority (CPA) that is the de facto (albeit not the legal) sovereign in Iraq today, reaffirmed February 19 that the U.S. goal of returning sovereignty to Iraqis by June 30 remains unchanged. But the continuing insurgency and growing casualties among Iraqis willing to accept (and needing) a job from the coalition authorities have reduced the available choices of the mechanism by which this "transfer" will take place. Moreover, the transformation of political control will not be matched by a parallel change in military control.

This split in authority is unlikely to be resolved anytime soon. While the CPA is racing to reach its goal of inducting 235,000 men and women into Iraq's security forces - army, police, civil defense corps, border police - there will not be time enough to equip and train these forces to proficiency levels that are the hallmark of a disciplined, accountable, and professional force in a democratic society.

What will happen, what is happening, is the withdrawal of U.S. forces from "routine" patrols and static guard duties where they tend to be exposed to insurgent attacks. As in Somalia in 1993, the U.S. will try to reduce its role to that of the on-call "cavalry" able to react to information (raids, arrests) or events (insurgent attacks).

But unlike Somalia, where central sovereign authority had broken down and warlords ruled, Iraq will have a political-juridical center in its national-level transitional "government" and a "basic law" which will have deep roots in Islamic law. Yet the military-security center will remain Washington, at least through the transitional period that UN Secretary-General Kofi Annan said could last into 2005, for no other country or organization is eager to step into the breach.

Into the Breach

A cynic might conclude that the political-juridical center will be a sham, with the CPA still running the show as the post-June 30 "U.S. embassy." Indeed, even as the U.S.-appointed Iraq Governing Council (IGC) works on the basic law, Paul Bremer has warned he will veto provisions that infringe on the human rights and civil liberties of women and tribal, ethnic, or religious minorities.

But assuming the highly nationalistic Iraqis support the transitional government, however chosen, can the country be effectively governed with dual and potentially dueling authorities? (Many today would argue it is barely governable with a unified political and military structure.) Which will have the last word after June 30 should there be disagreement over policy or programs?

For ordinary Iraqis and the U.S. public - particularly those with family members in the war zone - the more salient questions are how long will this division persist, with its requirement for a large foreign troop contingent, and under what rules?

On the first question, in mid-February, General Richard Myers, Chairman of the Joint Chiefs of Staff, told reporters: "I really do believe it's unknowable….We're going to have to let events dictate." However, Myers does not anticipate that the June 30 transition to an Iraqi "sovereign" will change U.S. force levels given the continuing insurgency. Indeed, testifying before Congress a few days earlier, Army Chief of Staff General Peter Schoomaker said the Army expects to have 100,000 soldiers in Iraq for at least two years.

Adding to this travail, the rules under which U.S. forces operate might well change. According to Article 43 of the Annex to the 1907 Hague Convention on the laws of land warfare, an occupying army normally must "respect, unless absolutely prevented, the laws in force in the country." On the political level, the CPA has interpreted "absolutely prevented" to include laws from Saddam Hussein's rule that it finds contrary to human rights or otherwise repugnant to western liberal values (thus Bremer's veto threat).

On the military level, the actions of U.S. forces are judged against the rules of engagement set by the Pentagon for the occupation forces, the current security situation in Iraq, and the U.S. Code of Military Justice (which reflects the laws of land combat). But after June 30, when "occupation" formally ends, U.S. troops will be subject to Iraqi laws and to Iraqi courts - something unacceptable to the White House and the U.S. public in general.

Three Options

At this juncture, the White House seems to have three main options.

First, it can go through the UN Security Council for a new resolution that recognizes the changed facts on the ground post-June 30 and exempts foreign security forces from the Iraqi legal system as long as alleged violations are investigated and prosecuted, if warranted, by the applicable foreign government. This option has little traction as the Bush administration opposes any action that might be perceived as relinquishing substantial control over the pace and conditions of Iraq's reintegration into the world community.

Second, it can conclude a bilateral Status of Forces Agreement, similar to agreements the U.S. has with 53 other countries. One is being developed, but it may not be ready by the transition date. In fact, the CPA and the Pentagon had a target date of March 31 to get an agreement with the IGC. The calculation here seems to have two components. First, it will be necessary to "sell" to an Iraqi public traumatized by continuing high numbers of noncombatant deaths the idea of legal immunity from Iraqi law (and the punishment prescribed) for foreign troops accused of violating that law. Second, it would be an unnecessary burden for the post-June 30 transitional authority to have to "sell" such an explosive issue. Far better in the long run to leave that task to the IGC - if it has the courage to take it on - as it will cease to exist as presently constituted (25 persons appointed by the CPA) on June 30. As matters now stand, even the IGC wants nothing to do with such an arrangement.

Third, the administration can induce the IGC to write into the basic law a provision exempting foreign troops from prosecution under Iraqi law. This runs two risks. First, if included in the basic law, a blanket exemption might inflame the population more than a Status of Forces agreement as the basic law would have to be promulgated throughout the country. Second, there is no assurance that the new Iraqi transitional authority would accept such a provision regardless of any prior consensus within the IGC or between the IGC and the CPA.

As added "protection," the administration could pursue with the IGC an Article 98 exemption to the Rome Statute on the International Criminal Court. Such an agreement would remove U.S. persons from that court's potential jurisdiction for any war crime, act of genocide, or crime against humanity committed in Iraq.

Of course, success with the IGC - which is becoming less and less likely - and then with the transitional government is no guarantee of success with a full-fledged, elected Iraqi administration. Continued violence that involves or is perceived as involving high casualties among noncombatants will undermine any agreement at any stage. If General Schoomaker's prediction is accurate, large U.S. forces will be in Iraq well past the anticipated elections for both a constitutional assembly and a permanent government, at which time Iraqis will regain total sovereignty and will be free to invite or disinvite whomever they please.

(Dan Smith is a military affairs analyst for Foreign Policy in Focus (online at www.fpif.org), a retired U.S. army colonel and a senior fellow on Military Affairs at the Friends Committee on National Legislation.)

Published by Foreign Policy In Focus (FPIF), a joint project of the Interhemispheric Resource Center (IRC, online at www.irc-online.org) and the Institute for Policy Studies (IPS, online at www.ips-dc.org). ©2004. All rights reserved.

Recommended citation:
Colonel Daniel Smith, USA (Ret.), “Travails of Transition: Iraq on the Brink,” (Silver City, NM & Washington, DC: Foreign Policy In Focus, February 23, 2004).

Web location:
http://www.fpif.org/commentary/2004/0402brink.html

Production Information:
Writer: Colonel Daniel Smith, USA (Ret.)
Editor: John Gershman, IRC
Layout: Tonya Cannariato, IRC