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15 March 2004

The right exit

Iraq one year on - What are the responsibilities of an occupying power in its withdrawal? By Ken Rot

By Ken Roth

The Geneva Conventions impose detailed duties on the occupying powers in Iraq to protect the civilian population. But what are the duties of a “de-occupying power”? The question is coming to the fore as American and British forces contemplate handing over at least formal sovereignty to an Iraqi government on 30 June.

International law provides surprisingly little guidance. Yet basic decency suggests that some duties are still owed the people of Iraq – and that a cut-and-run strategy would be wrong.

First and foremost, the coalition authorities must provide security. Some resistance to the occupation was perhaps inevitable. But decisions made in Washington have exacerbated the daily toll of bombings and assassinations. The Bush administration’s rush to war in March 2003 gave coalition forces enough troops to prevail in combat, but not enough to preserve the peace. Washington’s insistence on acting without UN approval made most other governments unwilling to fill this policing gap. The ensuing looting and chaos allowed rival forces to empty arms caches, later to be used in attacks on coalition troops and Iraqi civilians in an epidemic of violence.

The problem was only compounded by the blanket dissolution of the Iraqi army – even though many of its members had not been complicit in Saddam Hussein’s atrocities. That left a security void and a bazaar of unemployed men ready for resistance recruiters.

The coalition troops are working feverishly to rebuild Iraqi security forces to restore order, but this process will not be anywhere near complete by 30 June. Until it is, coalition forces should continue to bear that burden.

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There is also the threat of communal violence. The issue is not simply the alleged efforts of Abu Musab al-Zarqawi, the terrorist leader, to whip up Shia-Sunni hatred. The oil-rich city of Kirkuk in northern Iraq remains a tinderbox, with Kurds hoping to return to homes now occupied by beneficiaries of Saddam Hussein’s “Arabisation” policy. The spring planting season is likely to see a surge of Kurdish returns, but the proposed Iraq Property Claims Commission, which would resolve competing claims, has yet to be established.

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Departing coalition forces are also responsible for the political structure they leave in their wake. The interim constitution adopted on 8 March reflects a careful balance between national and parochial interests and Islamist and secular concerns. But one major, unresolved issue involves the role of women. The interim constitution contains laudable language guaranteeing women equal protection under the law, but similar guarantees in other Middle Eastern constitutions have not prevented gender discrimination on marriage, divorce, inheritance, child custody and citizenship. A decision by the Iraqi Governing Council in December to relegate such matters to the religious courts showed the danger of discrimination to be real. Opposition within the IGC and the intervention of Paul Bremer, the Coalition Provisional Authority administrator, led to the reversal of the order. But vigilance will be needed to avoid retrenchment for the rights of Iraqi women.

Finally, the coalition should help build the rule of law in Iraq. Yet Washington’s insistence on impunity for its own troops and a compromised procedure for trying Saddam Hussein threaten that goal. Under the Ba’ath Party, the Iraqi people had no legal recourse to challenge the government’s depredations. It is sadly ironic that Washington seeks a “status of forces agreement” that would also exempt US troops from liability in Iraq’s courts, even for war crimes they might commit.

British forces would remain subject to at least the theoretical jurisdiction of the International Criminal Court, but Washington will not countenance anyone else looking over its shoulder. In the absence of such external scrutiny, Human Rights Watch researchers have found, Washington has shown little inclination to investigate its own troops’ recourse to excessive or indiscriminate lethal force. Such impunity sets a poor precedent for Iraq’s future.

Washington also undermines the rule of law when it insists that only Iraqis can try Saddam Hussein and his henchmen. In principle, one would want to see Iraqis trying their own; but the deeply compromised Iraqi legal system has no experience with prosecutions as complex as trials for genocide or crimes against humanity. Extensive international assistance will be required to provide trials that will be both thorough and fair.

Tacitly recognising this deficiency, Washington is shipping 200 American attorneys to Iraq to help, but they will not confer the legitimacy of a tribunal that has broader international participation. The best model is the Special Court for Sierra Leone, in which local lawyers participate extensively, but international jurists lead the prosecution and comprise a majority of judges. Washington, however, resists this logical formula out of fear that a court with international involvement would block the death penalty and indirectly legitimise the dreaded International Criminal Court. This reasoning hardly reflects concern with the welfare of the Iraqi people.

Although 30 June may be the end of the road for the formal occupation of Iraq, it will hardly be the end of the challenges facing the coalition authorities. Iraq’s long-term welfare will depend on the US and British governments accepting that even de-occupying powers have certain long-term obligations to the people of the country they invaded. The stakes are too high to give those duties short shrift.

Ken Roth is the executive director of Human Rights Watch