Legal Perspectives from Iraq
Two leading lawyers who worked in the Coalition Provisional Authority’s General Counsel’s office shared their thoughts on the legal reconstruction of Iraq at the Law School Nov. 18 at a J.B. Moore Society of International Law professor lunch series talk.
Post-Conflict Iraq Reveals Need for Clearer Law of Occupation, McGurk Says
The confusion over the legality of post-conflict rebuilding in Iraq has shown that international laws governing occupation need to be clarified, said visiting instructor Brett McGurk.
“The law of occupation needs to be reformed to explicitly allow interveners in failed and tyrannical states to engage in certain reforms that are consistent with customary norms in international law,” said McGurk, who served as Associate General Counsel to the Coalition Provisional Authority in Baghdad and worked at the Office of the Legal Adviser at the U.S. Embassy in Baghdad until October 2004. McGurk is an Appellate Litigation Associate with Kirkland & Ellis.
“The law of nation-building—the law of post-conflict rebuilding—does not exist,” McGurk said. “To the contrary, it is based on ad hoc U.N. Security Council resolutions, often adopted in haste, with no overarching theme or consistency. This should be unacceptable to anyone who cares about the continuing relevance of international law.” The law of occupation, drawn from the Hague Regulations of 1907 and the Fourth Geneva Convention, appears to prohibit steps that help nations rebuild, such as reforming the legal codes to advance human rights, and rebuilding economic infrastructures. The tensions between the lack of overarching authority to install such reforms and traditional occupation law came to a head in Iraq, “with repercussions that are still being felt today.”
The result of unclear laws can be seen in Kosovo, McGurk charged, where U.N. Security Counsel Resolution 1244 authorized a transitional administration that resulted in an “ill-defined” international presence. However vaguely it did so, the mandate authorized an international authority to perform basic civil and administrative functions, support the reconstruction of key infrastructure, and protect human rights. But five years later, “Kosovo remains a powder keg.” Violence flared last spring, and elections held last month lack credibility because of a widespread boycott by the Serb minority. There’s no end in sight to the international presence in Kosovo, McGurk pointed out. Resolution 1244 remains a “quasi-constitution defining, without any limits, the powers of international overseers.”
Other recent post-conflict operations such as those in East Timor and Sierra Leone have been governed by similar Security Council resolutions. On the positive side, the resolutions formalize a post-conflict transition process and recognize that transitional administration reforms will not cease on an arbitrary date.
“The overarching legal framework in Iraq was very different,” McGurk said, largely because of conditions there shortly after major combat ended. The Coalition agreed in December 2003 to accept the rule of occupation law, but the body of law “appears to prohibit any effort in nation-building as commonly understood.”
Hague regulations enacted in 1907 were designed to protect the occupied country, at a time when laws had to remain secure to prevent legal chaos when occupiers withdrew and returned to their own country. As a result the regulations limit occupiers’ ability to implement legal or economic reforms. Without the subsequent U.N. Security Council resolution that allowed for the Coalition Provisional Authority (CPA) to make reforms in Iraq, the British concluded that the Iraqis would have been forced to fend for themselves under the laws of the former regime. “Thankfully there was a subsequent U.N. resolution, but it created its own problems,” McGurk said. U.N. resolution 1483, enacted in May 2003, authorized the CPA to act as a formal transitional administration, with powers similar to the Kosovo mandate. But paragraph five appears to take that authority away, McGurk noted, as it requires the CPA to comply fully with the obligations of international law, including the Geneva Convention of 1949 and the Hague Regulations of 1907—explicit references to the more limiting law of occupation.
The CPA was given more room to reform with U.N. Resolution 1511, adopted in October 2003; it recognized the authority of the Iraqi Governing Council, and authorized the CPA to institute sweeping reforms in coordination with the IGC. The Resolution allowed for reform measures to have a clear indigenous Iraqi expression, greater than that of other post-conflict situations. The CPA has adopted 100 measures to remove the legal vestiges of the former regime, establish the conditions for economic growth and development, create the institutional framework for public sector transparence and accountability, and build consensus and power-sharing arrangements between different factions.
Some critics have argued that occupation law requires the Hussein regime’s laws to be preserved in some way, and that the CPA itself is void. McGurk called this view a “mockery of international law.
“An honest accounting of the framework for post-conflict rebuilding leaves much to be desired,” he said. “Clarification is necessary to prevent yet another strain of international law from becoming divorced from reality and the felt necessities of our day.”
Lawyers Play Key Role in Reconstructing Iraq, Says Castle
Scott Castle’s workplace in Baghdad’s Republican Palace included four large busts of Saddam Hussein that stared down at those entering the building. Coalition Provisional Authority (CPA) officials couldn’t simply tear them down from the façade of the Republican Palace in Baghdad as the Iraqi people had done to a statue soon after the regime’s collapse. Under international law, occupying forces are required to respect the artistic and cultural artifacts of the occupied nation, “even though those of us who have seen these heads are pressed to describe them as artistic.” Two heads went to the Iraqi Governing Council, and one head was purchased at fair-market value by the CPA through voluntary donations to melt down the bronze sheath to make commemorative coins for soldiers, with the proceeds going to an Iraqi children’s hospital. For the CPA it was a small legal negotiation, but one of many that navigated the murky waters of international law in post-conflict Iraq.
Castle, who now serves as Deputy General Counsel for Fiscal Matters in the Defense Department’s Office of the General Counsel, said the 13 months he spent in Iraq were the most fascinating of his career. For the first time in history, the occupying power was also serving as rebuilder, and CPA lawyers were playing a large role in reconstructing the legal framework of the country. Castle said he “cannot overestimate how important lawyers were in this exercise.” Working 19 hours a day, seven days a week, they not only interpreted the law, but wrote new laws.
“[Special Envoy Paul] Bremer would give us very scant policy advice,” so lawyers often were making policy decisions in their legal work. As a result, CPA lawyers were “entrusted with a great deal of policymaking authority,” Castle said.
Castle arrived in May 2003, when four lawyers were building the General Counsel office, and left in June 2004, when their numbers had grown to 25. Between June and August they issued four to five orders per week. “During those first months the lawyers were really the only functioning element of the Republican palace,” he said. Yet even in the early days Bremer and his team’s work was vetted and discussed by the State and Defense Departments, the National Security Council, British officials, and others. The lessons learned in the process will give a clear idea of which orders should be delivered first in a post-conflict state, Castle said. “A lot of the early work was ad hoc and reactionary and crisis driven.”
During his presentation, Castle showed CPA living arrangements, including his own quarters, a shipping container converted to a trailer with sandbags stacked high and deep around it to protect from rocket and mortar attacks. Attacks aimed at the “Green Zone” became so frequent over time that Castle’s office ran a pool—the winner collected the pot when an attack happened during the time he picked. “We didn’t have that many pots that broke from one night to the next because the attacks were that frequent during about a five or six-month period,” he said.
Many moved inside the un-air-conditioned palace chapel to avoid the attacks, but they woke up to a painted mural of rockets firing on the chapel wall instead. After insurgents bombed a hotel housing CPA workers, 350 officials relocated to tents on the front lawn of the palace.
The General Counsel office drafted orders for Bremer, including the controversial de-Ba’athification order allowing for the removal of the top four levels of Hussein regime officials. Castle acknowledged that many of the Ba’athists, if given the chance, were more than willing to help restructure the government, but were denied that opportunity.
The General Counsel’s office addressed issues that dealt with international law, litigation, contract/fiscal law, Iraqi asset recovery, commercial law, and administrative law. The office included reserve and active military, civilian attorneys from the United States and United Kingdom, and Iraqi international attorneys.
He emphasized that “every initiative that we put into place had a sponsor and there were many Iraqi sponsors.” Initiatives were variously reviewed by London, the IMF, the United States, interim Iraqi administrators, and the Iraqi Governing Council, which approved all measures before Bremer signed them.
The General Counsel office had lawyers working on defending Iraq from 70 international lawsuits that sought billions of dollars. The CPA didn’t want the Iraqi people to be harmed by inattention to those cases, Castle said.
The office also had to set rules for the administration of the billions the United States granted for reconstruction, making sure contracts were properly competed for and documented.
The lawyers focusing on asset recovery helped bring back $745 million taken by the Iraqi first family. Syria and Lebanon in particular invoked domestic legal arguments to keep the money in their banks, while others argued that competing claims prevented them from returning the money. Potentially $2 billion was taken illegally, Castle said.
Castle noted the underlying structure of Iraqi law, created in the 1950s, was basically sound, but the regime had layered over the structure with laws that allowed for corruption.
In fulfilling their duties under the U.N. Security Council Resolution, Castle’s office had to determine what the CPA was. They decided the CPA was both a discrete international entity and a U.S. government entity, because Bremer was appointed as a special envoy to Iraq and reported to the President. “We were able to invoke this status as an advantage,” Castle said. Goods and services were cheaper through sharing with other governments as a U.S. body, and the international entity role was convenient for accepting donations of realty, for example.
Besides dealing with post-occupation issues like the Oil for Food Program investigation and de-Ba’athification, lawyers organized the Iraqi Property Claims Commission, which investigated the dislocation of northern Iraqis because of Saddam’s Arabization of the north. Of the 100 orders the CPA issued, 27 dealt with commercial reform, which allowed for foreign direct investment on the basis of parity with the Iraqis. Castle noted that Iraqis were suspicious that the United States would be selling their country off to foreigners. One of the more successful orders was the issue of the new Iraqi dinar; the typical pitfalls of issuing new currency didn’t happen.
During the final stages of the occupation, key issues included the Oil for Food contracts and investigations, the transition of the CPA to the U.S. Embassy, security arrangements, Ministry of Defense orders, and commercial law reform.
The CPA also wanted to demonstrate the value of decentralized decision-making to the Iraqis; the Local Governmental Powers order, issued in April 2004, was designed to show “that we were serious about devolving power to them.” The occupation ended on June 25, 2004, a “milestone” along the road to a free and demilitarized Iraq.
“I remain cautiously optimistic that our work will bear fruit
if we can turn the corner on the security situation,” he said,
which will depend on training Iraqi troops. “If we can get to
a place where we can have 90 percent or more participation in a fair
and federal election process in January, I think you will see the resulting
government gain a degree of credibility that will help stem the tide
of the insurgency and enable this legal framework to carry forth some