Another Iraq rant

I seem to have developed an Iraq obsession over the last couple of days. I’ll try to make this my final post on the subject for the moment at least. However, Alan from Southerly Buster has now posted his promised article on the Iraq interim constitution. It’s well worth reading, but also merits a substantive response at greater length than is feasible in a comment box..

Alan essentially advances two arguments against the interim constitution:

(1) Article 59 effectively makes the Iraqi military subject to the overriding control of the US-led military occupation force “until the ratification of a permanent constitution and the election of a new government pursuant to that new constitution. ” That essentially means until the end of 2005. This is a Clayton’s form of sovereignty at best, so Alan argues. Alan even compares the situation with weak US-sponsored puppet governments in Vietnam during the 1960s!

(2) The process leading to signing of the interim constitution has been conducted largely behind closed doors, resulting in a lack of feelings of “ownership” of the process by the Iraqi people.

Dealing with Alan’s first argument, I certainly agree that Article 59 makes Iraqi military forces subject to overriding control of US-led forces until the end of 2005, but in a practical sense that’s unavoidable given that viable de-Baathified Iraqi military and police forces are still being established and trained. It’s currently not possible simply to hand over complete control of military and policing functions to the Iraqis, because the result would be instant chaos and civil war.

Alan’s second argument conflates the initial process of arriving at an interim constitution (which has now been achieved) with the ongoing and strongly democratic process of developing a permanent constitution. He quotes from an International Crisis Group (Gareth Evans’ mob) document that does indeed assert that Iraqis feel alienated, and that more openness of process would be desirable to foster Iraqi “ownership”. However, openness and popular democratic control of the process is exactly what the interim constitution requires. Although I suppose one might have hoped for greater openness in the earlier processes, I think Simon Chesterman comes closer to the mark in his report for the International Peace group titled “You, The People – The United Nations, Transitional Administration, and State-Building“:

Benevolent autocracy is an uncertain foundation for legitimate and sustainable national governance. It is inaccurate and, often, counterproductive to assert that transitional administration depends upon the consent or ‘ownership’ of the local population. It is inaccurate because if genuine local control were possible then a transitional administration would not be necessary. It is counter-productive because insincere claims of local ownership lead to frustration and suspicion on the part of local actors. Clarity is therefore required in recognizing: (i) the strategic objectives;(ii) the relationship between international and local actors and how this will change over time; and (iii) the commitment required of international actors in order to achieve objectives that warrant the temporary assumption of autocratic powers under a benevolent international administration.

Given that even the UN (and presumably Alan as well) accepts that popular elections have not until now been feasible and can’t be achieved by 30 June this year, a high degree of “benevolent autocracy” in the initial phases has been unavoidable. That practical necessity applies at least equally to the security situation and the overriding effect of Article 59. Democratic nation-building simply isn’t possible without a fair degree of benevolent autocracy during the transitional phase. To paint this as somehow connoting anti-democratic bad faith on the part of the Americans is mischievous.

It may well be that, as John Quiggin asserts, the ill-defined and ‘unstable interregnum’ (which will exist under the interim constitution between 30 June and the end ofthe year when a popularly elected National Assembly comes into being) flows from an earlier US flirtation with unelected regional caucuses as its preferred vehicle for overseeing the process of development of a permanent democratic constitution. However, given the UN acceptance that popular elections are not feasible for the moment, some non-elected interim body is simply unavoidable. One might perhaps reasonably argue that it would have been easier simply to stick with the existing 25 man Iraqi Governing Council until popular elections can be held at the end of this year. Presumably, however, influential Iraqis insisted on seeing some immediate tangible movement from the appointed IGC to a broader National Assembly and full executive government, hence the 30 June commencement of the interim constitution in a somewhat half-baked form pending end of year elections.

Although both John and Alan make some valid points, it’s difficult not to see their overall responses as determinedly hostile in the face of a constitutional document that simply doesn’t merit such negativity.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Niall
2022 years ago

Individual opinions that disagree with your own don’t automatically make them inherently hostile, just different.

John
John
2022 years ago

My comment wasn’t a response to the constitution but a further criticism of the caucus idea, pointing out that, even though it’s been abandoned, its adverse consequences are still with us.

Alan
Alan
2022 years ago

I’ll have more to say on the ITG’s structure tomorrow.

Michael 2
Michael 2
2022 years ago

“Individual opinions that disagree with your own don’t automatically make them inherently hostile, just different.”

Instead of some lame PC (so ironic after your recent racism embarrassment) waffling, how about stating WHY you believe that those opinions are NOT hostile (as in “negative”) towards the agreement?
I’m not trying to say those opinions aren’t valid, but I can’t for the life of me see how you could characterize them as being positive towards the agreement.

John
John
2022 years ago

I’ve given a broad assessment of the Iraq situation here.

bargarz
2022 years ago

John, link is not working

John Quiggin
John Quiggin
2022 years ago

Another try on the link to my post.

trackback
2022 years ago

Transitional Administrative Law

Much press comment has parroted the claim that the Law provides for a bill of rights unprecedented in the region.