January 29, 2005 - Many people have been asking why the occupying powers in Iraq are insisting on holding the election at the set date set of31 st January, despite the fact that all the indications call for a delay. International figures such as President Putin, President Chirac and Kofi Annan have expressed their doubts about the credibility or possibility of holding such elections now. Many of the explanations I have read, seem to centre on political issues, but these seem insufficient to justify such insistence on holding elections now, when there are numerous criteria demanding their postponement. Reasons such as the complete lack of security; the ignorance of the Iraqi electorate with election procedure or even with who they are asked to elect; the unreasonableness of having all of Iraq as one electoral district; the unavailability of the names of candidates; the illegality of the Transitional Administrative Law (TAL) which sets out the elections; the illegality of giving a minority a veto over any majority; the demand that any party taking part asserts its acceptance of the TAL which could not be amended or repealed, and many other breaches of basic principles of law.

It is obvious to any reader, even one lacking knowledge of the principles of law, that the TAL was written by politicians setting out to transform Iraq's economic and political order from that of socialist state to capitalist state. The TAL, clearly written by Bremer’s advisors and translated into Arabic (as is obvious to any Arab speaking reader), is intended to be the backbone of the new constitution for Iraq. No future government may repeal or legislate against its principles. Article 1 states that "The Preamble to this Law is an integral part of this Law." Yet the preamble starts with the following sentence:

"The people of Iraq, striving to reclaim their freedom, which was usurped by the previous tyrannical regime, rejecting violence and coercion in all their forms, and particularly when used as instruments of governance, have determined that they shall hereafter remain a free people governed under the rule of law."

This must be the only constitution in the world, which starts with a political condemnation of its predecessor. It reveals the real political, rather than the legal nature of the document. But more importantly it reveals the total disregard of the principles of International Law by the US and the UK.

The call for a delay in holding the election acquires a special importance when this election is meant to be, as claimed by the occupiers, the first free and honest election in the history of Iraq. It would be more logical in view of that claim to prepare adequately for such an election. But more importantly it should be held when the majority of the people in Iraq believe it to be free and honest. It is not sufficient for justice simply to be exercised; it must also be seen to be exercised.

It is widely accepted in the Middle East, that imperialism today has the means to act unilaterally as it pleases without the need for permission from any international body. If imperialism feels a need for such permission it will be able to summon the Security Council to intimidate one party; threaten another, and entice a third to adopt the resolution it is seeking. However, when it feels incapable of getting such a resolution, it declares that it may act without such permission because it feels its national security is at risk! That is precisely what happened in the invasion of Iraq.

Imperialism, nevertheless, is aware of the dynamic nature of history and that what is possible today may not be so tomorrow. Accordingly, it endeavours to keep its actions justifiable within the ambit of international law whenever that is possible. This has become a more demanding requirement since the set up of the International Criminal Court and the ratification of the Statute of Rome by many countries. The US, the UK and their allies are aware of the fact that any crime of genocide, war crime or crime against humanity committed by any of their agents that may not come before the ICC today, may still be investigated any time in the future when the international order becomes more just and calls for justice. The cases of the attempt to indict Pinochet and the indictment of Adolfo Scilingo are just two examples of that eventuality.

In pursuance of this both the US and UK Governments have, since occupying Iraq contrary to International Law, attempted to rely on law through creating facts and forcing the world to deal with them - the very same strategy followed by the State of Israel over the last fifty years. On8 th May2003 , one week after the declared cessation of hostilities, both Governments submitted a letter to the Security Council. The letter was cleverly drafted. It did not call for the Council to pass a resolution on the war or the occupation of Iraq, but referred to disarming Iraq by the occupying armies and the setting up of the Coalition Provisional Authority (CPA). What did the Security Council do, or indeed, what ought the Council to have done?

To answer this, one needs to go back to the principles of International Law and the law of war. The Charter of the United Nations, adopted post WWII, makes it illegal for any country to take military action against another country except in self-defence, but more importantly that right to self-defence ceases when the Security Council is seized of the matter. As the Security Council has stated in every resolution on Iraq since 1990 to be seized of the matter, then the right of self-defence in an action by any state does not arise. Consequently the proper procedure for the Security Council ought to have been the adoption of a resolution declaring the invasion of Iraq to be an illegal act and ordering the withdrawal of all occupying forces with full reparation. However, in the world of today where the US imperialism roams as it pleases, one would be very naïve to expect such a resolution to be adopted even if good will existed among other members. Nevertheless, despite accepting that the Security Council has become a rubber stamp for most US demands, it need not breach International Law so blatantly. There is a difference between overlooking US acts and passing resolutions that amount, explicitly or implicitly, to supporting these acts.

It is important to point out here that, despite its authority, the Security Council is bound by the Charter that created it and by the peremptive rules of International Law. The Security Council, for example, cannot impose genocide or allow slavery. In short the Security Council is only able to act within the law that created it. It is not entitled to breach the Charter of the UN, which created it. If it were allowed to do so, this would be acting contrary to the most fundamentals principles of law. It follows that the Security Council, contrary to the generally accepted wisdom, may itself act illegally.

The Security Council adopted resolution 1483 on22 nd May2003 . Although the Council did not refer to the legality, or otherwise, of the invasion of Iraq, it, nevertheless, created serious and dangerous precedents.

The resolution states et al:

"Encouraging efforts by the people of Iraq to form a representative government based on the rule of law that affords equal rights and justice to all Iraqi citizens without regard to ethnicity, religion, or gender, and, in this connection, recalls resolution 1325(2000) of 31 October2000 ,

welcoming the first steps of the Iraqi people in this regard, and noting in this connection the 15 April 2003 Nasiriyah statement and the 28 April 2003 Baghdad statement."

In adopting such a statement, the Council has breached the Charter in accepting that a sovereign founding member state has had its sovereignty stripped by an invading force with the blessing of the Council while at the same time granting legitimacy to declarations made by people, such as Ahmed Al-Chalabi, who came with the invader. It is not difficult to see the dangers for the whole world that such a precedent creates. It seems to me that resolution 1483 and the following resolutions that relied on it are open to legal challenge before the International Court of Justice on the ground that the Security Council has acted ultra vires.

It remains to say that some members of the Security Council, for reasons that are not solely principled, ensured that the Resolution 1483 binds all parties by International Law:

" Calls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of1907 ;"

In doing so, some of the Security Council members left the door open for future independent Iraqi Governments to sue the invaders for the illegal war and for breaches of the Geneva Conventions in any case.

Laws of Occupation

The Hague Regulations 1907lay down the law of land war. The Geneva Conventions 1949 were drafted and ratified by the world community to supplement and fill the gaps in the law that became apparent during the WWII. They are fundamental and are made to be obeyed by states, just as much as any domestic legislation is meant to be obeyed.

The Hague Regulation defines occupation in Article 42 as:

" Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised."

It is clear from the above definition that Iraq was occupied the day the US and British armies imposed their military control over it, disbanded its army and security and stripped its sovereign government of its authority. The importance of this definition is that it puts legal obligations on the occupier, which last for the duration of the occupation. A belligerent occupation comes to an end in one of two ways – either through withdrawing from the territory or being driven out of it. There is no other method for ending occupation under International Law. The importance of this latter definition arises from the possible attempt of the occupier to evade the legal obligation by declaring the end of the occupation and shifting the legal responsibility to a third irresponsible party. It seems that that is precisely what the occupiers have done in Iraq and that they have got the blessing of the Security Council for doing so. The Security Council Resolution 1546 adopted on8 th June 2004 states:

"Welcomes that, also by 30 June2004 , the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty;"

In stating this, the Security Council accepted that occupation would end by the end of June 2004 as claimed by the occupier when in fact the occupation was, de facto, in continuance. The Security Council fell into a legal paradox. On one hand it accepted that occupation was coming to an end while on the other it accepted that it was continuing under the guise of being asked to stay in Iraq by the transitional government which itself was appointed by the occupier. In short the Security Council accepted that the occupiers are allowed to breach the International Law it bound them by. But more significantly the Security Council, in accepting the plans of the occupier has in fact created new legal definition of occupation and its end.
It is not difficult to see the reasons for the demand and success of the occupiers in securing such resolutions as Resolutions1546 . For example, the Geneva Convention relative to the Protection of Civilian Persons in Time of War, Article6 , states that the application of the present Convention shall cease one year after the general close of military operations. The Article goes on to state that "however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory." The Article imposes obligation on the occupier for the duration of occupation but leaves the door open for interpretation as to when occupation comes to an end in the case of continuous presence of the occupying power.

It is obvious that the occupying powers, by declaring that occupation has ended in Iraq, are trying to assert that the Convention does not apply and they are free to operate under agreement with the Iraqi authority. This is at the heart of the insistence of having the elections as soon as possible.

The obligations under the Geneva Conventions create another serious legal problem for the occupying powers. The UK has ratified Protocol I i.e. Protocol Additional to the Geneva Conventions of 12 August1949 , and Relating to the Protection of Victims of International Armed Conflicts, while the US has declined to ratify it. As the title indicates the Protocol creates further legal obligations relevant to the treatment of civilians in occupied territories. It is not difficult to realize the reason for the US, which claims to top the list of civilized nations, to refrain from ratifying such an important international obligation. However, the UK has a real legal problem in explaining how it went into a venture with a partner who from the outset had the intention of breaching an international obligation, which the UK has ratified. Both countries sought jointly the right to occupy and govern Iraq. They were jointly granted such authority by the Security Council conditional on abiding by their obligation under International Law. It follows that the UK could be found guilty of any breach by the US under its obligation to Protocol I!

It is inconceivable that a free election can take place in a country under occupation. The outcome of any such election is a government loyal to the occupier. If that were not the outcome of the election in Iraq then the occupation by UK and US would be one of the most stupid ventures in modern history.

The US imperialist plan for the Middle East, which started with the occupation of Iraq, intends to hold an election of some sort. Once this is achieved the US and the UK would seek the Security Council recognition of the election and its outcome. It is not hard to see why the Security Council would not hesitate to grant such recognition. If there were no other good reason it would be to wash its hands of the whole matter and its legal consequences as it seems it finds itself incompetent to do anything else considering that the Secretary General of the UN has declared, no doubt on sound legal advise, the invasion of Iraq was illegal.

The occupying power will be asked by the new government to stay in Iraq until security allows it to withdraw, which by definition may be indefinitely. The elected government would build on the 100 orders passed by the occupying authority in which Iraq’s economy was changed contrary to International Law, and award Iraq’s oil and mineral deposits to US companies.

What happens after the election?

By analysing what has happened in Iraq so far and with some understanding of the power centres in Iraqi society it seems that the scenario of events after the election will the take the following form.

1. Some election will take place because postponing it amounts to total collapse of all that, which UK and US have claimed to be their objective.

2. The occupiers will declare the 'democratic’ election to be a unique event and sell it to their public and to those Arab masses, which rely on Arab media located or supported by the corrupt regimes of Arabia and the Gulf, none of which has ever had an election.

3. The occupiers will rush to the Security Council seeking a resolution recognizing the legitimate outcome of the election, which will be instantly granted.

4. Iraq will be divided, following the election, on sectarian basis between the Sunni and the Shi’a, and on racial basis between the Shi’a and the Kurds, with the latter division having a more detrimental result for Iraq.

5. The occupiers will enter into an agreement with the duly elected body for the former to be asked to stay in Iraq for a certain period to be extended by agreement.

6. A timetable will be agreed for the occupying forces to withdraw to secure bases outside the cities as security allows, with a proviso that allows them to enter any city whenever they decide that their security demands it.

7. The newly elected authority will enter into an agreement granting the occupying powers any commercial interest of any value in Iraq’s natural resources, which were managed by Iraqis for forty years.

8. The occupying power will determine its stay in Iraq in accordance with the outcome of the internal conflict between the legitimate resistance, which will undoubtedly carry on fighting irrespective of the election, and its outcome, and the occupying forces and their allies from among the Iraqis.

9. If the forces allied with the occupation succeed in containing the resistance, the occupying forces will be staying in Iraq in one form or another for decades.

10. If, on the other hand, the forces allied to the occupier look like losing the battle, the US may withdraw and fuel the conflict by arming their allies and via US trained death squads. In any case, if the US were not able to secure Iraq as a base for hegemony over the rest of the Middle East, then taking Iraq out of the struggle between Arabism and Zionism would have been worth the cost.


Dr. Abdul-Haq Al-Ani
Barrister-at-law - alaninew@hotmail.com