Iraq's Transitional Law
Gao ID: GAO-04-746R May 25, 2004On June 30, 2004, the Coalition Provisional Authority (CPA) intends to transfer power in Iraq to a fully sovereign Iraqi interim government. CPA and the Iraq Governing Council took a fundamental step toward this goal in March 2004, when they signed the Law of Administration for the State of Iraq for the Transitional Period (hereafter referred to as the transitional law). The transitional law is intended to govern the affairs of Iraq until Iraqis approve a permanent constitution and a permanent Iraqi government takes office. GAO has ongoing and completed work reviewing various aspects of the U.S. effort to reconstruct Iraq. Our ongoing work includes reviewing the costs associated with reconstruction; the process used to award reconstruction contracts; efforts to develop Iraq's security forces; the rebuilding of Iraq's oil, electricity, and water infrastructure; and programs to help Iraq develop a unified, democratic government. For this report, we describe the following information as it exists at this time: (1) the time frames and Iraqi governmental structures established by the transitional law; (2) arrangements in the law for the U.S.-led multinational force, Iraqi security forces, and militias; and (3) mechanisms in the law for resolving disputes over property and territories within Iraq. In each of these areas, we also explain the transitional law's references to other Iraqi laws and legal provisions that help implement the transitional law. Where legal provisions to address these issues have not been completed, we describe the progress toward their completion or other actions to address the issues. We recognize that the situation is fluid and that there are ongoing efforts to address unresolved issues.
Iraq's transitional law divides the transitional period into two phases3--the interim government phase, which begins June 30, 2004, and the transitional government phase, which begins after elections for a National Assembly are held and the transitional government is formed. The law does not specify how the interim government is to be formed or structured, but provides that the interim government will govern in accordance with an annex to be developed. Since April 2004, the United Nations has been playing a key role in helping form and structure the interim government. Elections for the National Assembly are to be held no later than January 31, 2005, under an election law that, according to CPA officials, they aim to complete before the transfer of power. For the transitional government phase, the transitional law details the government's structure and responsibilities, including procedures for developing a permanent constitution and the federal structure. The National Assembly will draft a permanent constitution for the Iraqi people's approval in a general referendum. However, if a majority of Iraqi voters or if two-thirds of the voters in 3 of Iraq's 18 governorates reject the constitution, elections for a new National Assembly will be held and the process of drafting a permanent constitution begins again. To prevent the concentration of power in the federal government, the transitional law encourages local authority during the transitional period. The transitional law recognizes the Kurdistan Regional Government and specifies that it controls the police forces and internal security in the Kurdistan region. The transitional law includes some provisions under which Iraqi security forces and the multinational force will provide security in Iraq after the transfer of power. Officials from DOD and State are examining what additional provisions, if any, may be necessary to further define the role of the multinational force after June 30, including a new U.N. Security Council resolution or revisions to existing CPA orders. The transitional law also outlines elements of the command and control structure for some Iraqi security forces and outlaws all militias not under the command structure of the transitional government, except where provided by federal law. According to State and DOD officials, CPA is currently considering how it could further elaborate on provisions for both of these areas. The transitional law includes provisions for the transitional government to implement that are related to resolving disputes over property rights and territory. These disputes resulted from the previous regime's practices in altering the demographic character and boundaries of certain regions and territories, including Kirkuk. One provision calls for compensating residents who were deported, expelled, or who emigrated, by restoring their homes and property to them, or, where this is infeasible, providing just compensation within a reasonable time. Another provision establishes a process Iraqis will use to resolve the status of disputed territories. If Iraqis cannot resolve the status of disputed territories through the prescribed processes, they would request assistance from the United Nations. The transitional law provides a road map for establishing a permanent, unified, and democratic government in Iraq. Nonetheless, some issues related to the transfer of power remain unresolved. For example, the transitional law does not specify how the interim government is to be structured, nor does it fully clarify the authority of a multinational force in Iraq after the transition of power. U.S. officials and others are working to resolve these and other issues before June 30, to ensure that the transfer of authority can proceed as planned. These issues are discussed in our summary.
GAO-04-746R, Iraq's Transitional Law
This is the accessible text file for GAO report number GAO-04-746R
entitled 'Iraq's Transitional Law' which was released on May 25, 2004.
This text file was formatted by the U.S. General Accounting Office
(GAO) to be accessible to users with visual impairments, as part of a
longer term project to improve GAO products' accessibility. Every
attempt has been made to maintain the structural and data integrity of
the original printed product. Accessibility features, such as text
descriptions of tables, consecutively numbered footnotes placed at the
end of the file, and the text of agency comment letters, are provided
but may not exactly duplicate the presentation or format of the printed
version. The portable document format (PDF) file is an exact electronic
replica of the printed version. We welcome your feedback. Please E-mail
your comments regarding the contents or accessibility features of this
document to Webmaster@gao.gov.
This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed
in its entirety without further permission from GAO. Because this work
may contain copyrighted images or other material, permission from the
copyright holder may be necessary if you wish to reproduce this
material separately.
Washington, DC 20548:
United States General Accounting Office:
May 25, 2004:
The Honorable Richard G. Lugar:
Chairman:
The Honorable Joseph R. Biden, Jr.
Ranking Member:
Committee on Foreign Relations:
United States Senate:
The Honorable Henry J. Hyde:
Chairman:
The Honorable Tom Lantos:
Ranking Member:
Committee on International Relations:
House of Representatives:
Subject: Iraq's Transitional Law:
On June 30, 2004, the Coalition Provisional Authority (CPA) intends to
transfer power in Iraq to a fully sovereign Iraqi interim
government.[Footnote 1] CPA and the Iraq Governing Council took a
fundamental step toward this goal in March 2004, when they signed the
Law of Administration for the State of Iraq for the Transitional Period
(hereafter referred to as the transitional law). The transitional law
is intended to govern the affairs of Iraq until Iraqis approve a
permanent constitution and a permanent Iraqi government takes
office.[Footnote 2]
GAO has ongoing and completed work reviewing various aspects of the
U.S. effort to reconstruct Iraq. Our ongoing work includes reviewing
the costs associated with reconstruction; the process used to award
reconstruction contracts; efforts to develop Iraq's security forces;
the rebuilding of Iraq's oil, electricity, and water infrastructure;
and programs to help Iraq develop a unified, democratic government. For
this report, we describe the following information as it exists at this
time: (1) the time frames and Iraqi governmental structures established
by the transitional law; (2) arrangements in the law for the U.S.-led
multinational force, Iraqi security forces, and militias; and (3)
mechanisms in the law for resolving disputes over property and
territories within Iraq. In each of these areas, we also explain the
transitional law's references to other Iraqi laws and legal provisions
that help implement the transitional law. Where legal provisions to
address these issues have not been completed, we describe the progress
toward their completion or other actions to address the issues. We
recognize that the situation is fluid and that there are ongoing
efforts to address unresolved issues.
To address these objectives, we examined the transitional law and
related CPA regulations, orders, and memoranda, as well as assessments
of Iraqi institutions prepared by the Department of Justice and
nongovernmental organizations. We met with officials from the
Departments of State (State), Defense (DOD), and Justice, and CPA to
clarify provisions of the transitional law. We also discussed with
these officials progress toward completing provisions referred to in
the transitional law, such as the annex and electoral laws. We
conducted our review from March to May 2004 in accordance with
generally accepted government auditing standards.
Overview:
Iraq's transitional law divides the transitional period into two
phases[Footnote 3]--the interim government phase, which begins June 30,
2004, and the transitional government phase, which begins after
elections for a National Assembly are held and the transitional
government is formed. The law does not specify how the interim
government is to be formed or structured, but provides that the interim
government will govern in accordance with an annex to be developed.
Since April 2004, the United Nations has been playing a key role in
helping form and structure the interim government. Elections for the
National Assembly are to be held no later than January 31, 2005, under
an election law that, according to CPA officials, they aim to complete
before the transfer of power. For the transitional government phase,
the transitional law details the government's structure and
responsibilities, including procedures for developing a permanent
constitution and the federal structure. The National Assembly will
draft a permanent constitution for the Iraqi people's approval in a
general referendum. However, if a majority of Iraqi voters or if two-
thirds of the voters in 3 of Iraq's 18 governorates reject the
constitution, elections for a new National Assembly will be held and
the process of drafting a permanent constitution begins again. To
prevent the concentration of power in the federal government, the
transitional law encourages local authority during the transitional
period. The transitional law recognizes the Kurdistan Regional
Government and specifies that it controls the police forces and
internal security in the Kurdistan region.
The transitional law includes some provisions under which Iraqi
security forces and the multinational force will provide security in
Iraq after the transfer of power. Officials from DOD and State are
examining what additional provisions, if any, may be necessary to
further define the role of the multinational force after June 30,
including a new U.N. Security Council resolution or revisions to
existing CPA orders. The transitional law also outlines elements of the
command and control structure for some Iraqi security forces and
outlaws all militias not under the command structure of the
transitional government, except where provided by federal law.
According to State and DOD officials, CPA is currently considering how
it could further elaborate on provisions for both of these areas.
The transitional law includes provisions for the transitional
government to implement that are related to resolving disputes over
property rights and territory. These disputes resulted from the
previous regime's practices in altering the demographic character and
boundaries of certain regions and territories, including Kirkuk. One
provision calls for compensating residents who were deported, expelled,
or who emigrated, by restoring their homes and property to them, or,
where this is infeasible, providing just compensation within a
reasonable time. Another provision establishes a process Iraqis will
use to resolve the status of disputed territories. If Iraqis cannot
resolve the status of disputed territories through the prescribed
processes, they would request assistance from the United Nations.
The transitional law provides a road map for establishing a permanent,
unified, and democratic government in Iraq. Nonetheless, some issues
related to the transfer of power remain unresolved. For example, the
transitional law does not specify how the interim government is to be
structured, nor does it fully clarify the authority of a multinational
force in Iraq after the transition of power. U.S. officials and others
are working to resolve these and other issues before June 30, to ensure
that the transfer of authority can proceed as planned. These issues are
discussed in our summary.
The Departments of State and Justice declined to provide comments on a
draft of this correspondence. The Department of Defense and the
Coalition Provisional Authority did not provide official comments, but
sent us technical comments, which we incorporated as appropriate.
Background:
On November 15, 2003, the Iraq Governing Council and CPA signed an
agreement on the steps needed to transfer power to an Iraqi
transitional administration. The Iraq Governing Council completed a key
step in this process by drafting the transitional law in consultation
with CPA and signing it on March 8, 2004. The transitional law states
that it is the supreme law of the land and that it is binding in all
parts of Iraq during the transitional period. It contains 62 articles
that (1) protect or guarantee fundamental rights for all Iraqis,
including the right of free expression, peaceable assembly, religion,
and a fair and public hearing by an impartial tribunal and (2) outline
the structure and authority of Iraq's transitional government,
including its federal structure and legislative, executive, and
judicial branches.
The transitional law also states that it cannot be amended except by
the approval of Iraq's transitional presidency council and a three-
fourths majority of the National Assembly. Similarly, all laws in place
in Iraq before June 30, 2004, will remain in force until amended or
rescinded by the transitional government. Similarly, CPA laws,
regulations, orders, and directives shall remain in force until amended
or rescinded by duly enacted legislation. The law also makes Islam the
official religion of Iraq and states that Islam is a source of
legislation. The law clarifies this by stating that no law that
contradicts the universally agreed tenets of Islam, the principles of
democracy, or other rights may be enacted. Moreover, it guarantees to
all individuals full freedom of religious belief and practice.
To support governance and security issues related to implementing the
transitional law, the United States had obligated about $1.7 billion as
of April 2004. This includes $244 million for the Iraqi police and
security forces; $378 million for rule of law and democracy building,
including the interim and transitional governments; and $1.08 billion
for CPA and U.S. agencies' operating expenses in Iraq.
Time Frames and Establishment of an Iraqi Government during the
Transitional Period:
The transitional law divides the transitional period into two phases.
The first phase begins June 30, 2004, when a fully sovereign interim
government assumes power. The transitional law does not detail how the
interim government is to be formed or how it will be structured, but
refers to an annex to be developed before June 30, 2004. As of May
2004, the United Nations was playing a key role in helping form this
interim government. During the interim government phase, elections for
a National Assembly are to be held no later than January 31, 2005. The
second phase begins after the Iraqi people elect the National Assembly
and the transitional government is formed. The transitional government
will then draft a permanent constitution for the Iraqi people's
consideration. The second phase will end once the Iraqi people approve
a permanent constitution and elect a permanent government. Figure 1
shows the key dates for the two phases.
Figure 1: Time Line of Major Events for Interim and Transitional
Governments:
[See PDF for image]
[End of figure]
Interim Government during First Phase:
The transitional law states that a fully sovereign interim government
will assume power in Iraq on June 30, 2004, and that the interim
government will be formed through consultations with Iraqis and
possibly in consultation with the United Nations. The transitional law
does not specify the exact process for forming the interim government,
nor does it define its structure or authority. It provides that the
interim government will govern Iraq in accordance with the transitional
law and the forthcoming annex to the transitional law to be issued
before June 30. Since April 2004, the United Nations has also been
playing a key role in helping form the interim government. The U.N.
Special Adviser on Iraq proposed that the interim government be a
caretaker with the sole purpose of tending to the day-to-day
administration of the country.[Footnote 4] The special adviser further
proposed that a prime minister lead the interim government and that a
president serve as head of state, with two vice presidents. He stated
that, by the end of May 2004, it would be possible to identify leaders
respected by and acceptable to Iraqis across the country to form this
government.
One key function of the interim government is to prepare Iraq for
conducting elections for a National Assembly that will then form a
transitional government. The transitional law provides that the
National Assembly elections will be held in accordance with an
electoral law and a political parties law. These laws do not currently
exist and CPA officials are drafting CPA orders to address these
issues, according to U.S. officials. According to the transitional law,
two goals of the electoral law are to have women constitute one-fourth
of the members of the National Assembly and to achieve fair
representation for all communities in Iraq. The transitional law does
not specify any other provisions to be included in the electoral or
political parties laws. The U.N. Special Adviser recommended that the
leaders of a caretaker government should not be candidates for the
National Assembly.
The U.N. Special Adviser also proposed that during the interim
government phase, a national conference be held of at least 1,000
Iraqis representing all political parties, tribal leaders,
universities, women's groups, religious leaders, and others. The
national conference would contribute ideas on how to address the
security situation, elections, and aspects of the transitional law.
According to the U.N. Special Adviser, a consultative council of the
national conference would be available to advise the government on such
issues.
Transitional Government during Second Phase:
The second phase will begin after elections for a National Assembly are
held and the transitional government is in place. Elections are to be
held no later than January 31, 2005. The transitional government will
consist of separate and independent legislative, executive, and
judicial authorities (see fig. 2). According to the transitional law,
once elected and assembled, the National Assembly will elect the
Presidency Council, which will then name a prime minister. The prime
minister will recommend candidates for the Council of Ministers, which
the Presidency Council will name. Both the prime minister and Council
of Ministers will be subject to a vote of confidence by the National
Assembly. The Presidency Council will also appoint judges to the
Federal Supreme Court from candidates that the Higher Juridical Council
nominates.
Figure 2: Formation of the Iraqi Transitional Government:
[See PDF for image]
[End of figure]
The National Assembly will perform legislative and oversight functions.
Composed of 275 members, it will develop its own internal procedures
and sit in public sessions. It will examine bills proposed by the
Council of Ministers, propose its own bills, ratify international
treaties, and exercise oversight over the work of the executive
authority.
A key function of the National Assembly is to write a draft permanent
constitution by August 15, 2005.[Footnote 5] The Iraqi people will then
vote to approve the constitution in a general referendum to be held by
October 15, 2005. If the permanent constitution is approved in the
referendum, elections for a permanent government would take place no
later than December 15, 2005, and the permanent government would take
office no later than December 31, 2005. However, if a majority of Iraqi
voters do not approve the draft constitution or if two-thirds of the
voters in three or more governorates reject it, then the National
Assembly will be dissolved. Elections for a new National Assembly would
take place by December 15, 2005. The new government would continue to
operate under the transitional law and be responsible for writing
another draft permanent constitution.
The executive authority of the transitional government will consist of
the Presidency Council, prime minister, and Council of Ministers. The
Presidency Council will consist of a president and two deputies. All
decisions made by the Presidency Council must be unanimous. The
Presidency Council may veto any legislation passed by the National
Assembly, but the National Assembly may override a veto with a two-
thirds majority vote. The prime minister will be responsible for the
day-to-day management of the government. The Council of Ministers will
draw up rules of procedure for its work and issue regulations necessary
to enforce the laws. It will also have the exclusive right to propose a
national budget to the National Assembly.
The transitional law modifies the existing judiciary by establishing a
Higher Juridical Council and Federal Supreme Court. The Higher
Juridical Council will supervise the federal judiciary and administer
its budget, nominate judges for the Federal Supreme Court, and appoint
judges to the federal courts. The Higher Juridical Council will be
composed of judges from the Federal Supreme Court, the federal Court of
Cassation, the federal Court of Appeal, and each regional Court of
Cassation.[Footnote 6] The nine-member Federal Supreme Court will have
jurisdiction over legal matters between the transitional government and
the regional governments, governorate and municipal administrations,
and local administrations. It will also have jurisdiction over
complaints that a law is inconsistent with the transitional
law.[Footnote 7] Figure 3 illustrates the legislative, executive, and
judicial structure laid out in the transitional law.
Figure 3: Function and Composition of the Iraqi Transitional
Government:
[See PDF for image]
[End of figure]
Provisions for Regions and Governorates:
According to the transitional law, the Iraq government will be a
federal system designed to prevent concentration of power in the
federal government and to encourage the exercise of local authority and
participation in government affairs. The transitional law recognizes
the Kurdistan Regional Government as the official government of the
territories that were administered by that government on March 19,
2003. The Kurdistan Regional Government will continue to perform its
current functions throughout the transitional period, except with
regard to issues that the transitional law exclusively reserves for the
federal government. Specifically, it retains control over the police
forces and internal security and has the right to impose taxes and fees
within the Kurdistan region.
The transitional law allows for the formation of other regions within
Iraq. Except for Baghdad and Kirkuk, groups of two or three
governorates can form regions. The law does not specify how these
regions could be formed but allows the interim government to propose
mechanisms for their formation. The National Assembly would consider
the proposal for enactment into law. Before a region can be formed, the
people of the relevant governorates must approve the proposal in a
referendum.
Each of Iraq's 18 governorates has the power to name a governor and
form municipal and local councils. Elections for governorate councils
will take place at the same time as elections for the National Assembly
(no later than January 31, 2005). Governorate councils will have the
authority to impose taxes and fees, organize administration of the
governorate, implement projects at the provincial level independently
or with other organizations, and conduct other activities consistent
with applicable laws. In addition, governorate councils will assist the
federal government in coordinating federal ministry operations within
their governorates, including reviewing annual ministry plans and
budgets as they relate to activities in the governorate. The
transitional law also encourages the federal government to devolve
other functions to lower levels of government where appropriate.
Arrangements for the Multinational Force, Iraqi Security Forces, and
Militias:
The transitional law includes some provisions for the framework under
which Iraqi security forces and the multinational force will provide
security in Iraq after the transfer of power on June 30, 2004.
Officials from DOD, State, and CPA are examining what authorities in
addition to the current U.N. Security Council resolution and CPA order
may be necessary. The transitional law also outlines elements of the
command and control structure for some Iraqi security forces and
outlaws all militias except where provided by federal law. According to
State and DOD officials, CPA is currently addressing issues related to
these areas.
Mandate and Legal Status of the Multinational Force:
According to Article 59 of the transitional law, the multinational
force will continue operating in Iraq pursuant to the provisions of
U.N. Security Council Resolution 1511 and any subsequent resolutions.
In this resolution, the U.N. Security Council determined that the
provision of security and stability is essential to the completion of
Iraq's political transition process. Toward that end, the resolution
authorized a multinational force under unified command to take all
necessary measures to contribute to the maintenance of security and
stability in Iraq, including ensuring necessary conditions for
implementing the political transition's timetable and program. It also
authorized the multinational force to provide security for the U.N.
Assistance Mission for Iraq, the Governing Council for Iraq, other
institutions of the Iraqi interim administration, and key humanitarian
and economic infrastructure. In the resolution, the U.N. Security
Council called for this mandate to expire upon the establishment of an
internationally recognized, representative government of Iraq and the
completion of the political process in Security Council Resolution
1511.[Footnote 8] However, the Security Council expressed readiness to
consider any need to continue the multinational force, taking into
account the views of this new Iraqi government.
The transitional law does not specifically deal with legal immunities
for the force during the transitional period. However, the transitional
law states that CPA orders remain in force until rescinded or amended
by legislation. According to CPA Order 17, the multinational force is
subject to the exclusive jurisdiction of their parent states and are
immune from Iraqi legal jurisdiction.[Footnote 9] This immunity remains
in effect for their acts or omissions that occur during the period of
authority of CPA, which is due to expire on June 30, 2004.
Senior officials from DOD and State have stated that the transitional
law, U.N. Security Council Resolution 1511 and any subsequent
resolution, and CPA Order 17 will sufficiently address the legal status
of the multinational force after the transfer of power on June 30,
2004. According to a senior State official, the United States is
currently working on a new Security Council resolution on Iraq to
support the June 30 transition. According to this official, this
resolution, among other things, would address the continuing need for
security to complete the political process and would further define the
role of the multinational force after June 30. In addition, a DOD
official told us that CPA Order 17 is being revised and may provide
more detail on the status of the multinational force than the current
version.[Footnote 10] While CPA Order 17, the transitional law, and
U.N. Security Council Resolution 1511 cover many important elements of
the legal status of the multinational force, they do not explicitly
address other key issues, such as the authority of the force to move
its personnel, equipment, and supplies into and throughout the country
after the transfer of power. Nonetheless, subsequent U.N. resolutions
or other agreements could address these issues.
For the transitional government phase, Article 59 of the transitional
law authorizes the government to conclude binding international
agreements regarding the activities of the multinational force
operating in Iraq. The transitional law further states that nothing in
the law will affect the rights and obligation under these bilateral
agreements, or U.N. Security Council Resolution 1511 and any subsequent
U.N. resolution, which will govern the activities of the multinational
force pending the entry into force of these agreements.
Control and Command of Iraqi Security Institutions:
The transitional law and related CPA orders discuss the relationship
between some of the Iraqi security forces and the multinational force
after the transfer of power, as shown in the following table.
Table 1: Control of Iraqi Security Forces after June 30, 2004:
Ministry: Ministry of Defense;
Security Force: Iraqi Armed Forces; Regular army and other services[B];
Mission: Security forces that will be responsible for the defense of
Iraqi territory when fully operational;
Force Level; As of 5/05/04[A]: 4,100;
Force Level; Requirement: 35,000;
Controlling Authority after June 30, 2004: The Ministry of Defense
shall exercise administrative control. Coalition Forces will have
operational control.[C].
Ministry: Ministry of Defense;
Security Force: Iraqi Civil Defense Corps;
Mission: Security and emergency service agency that directly supports
coalition operations to provide security and stability. Complements the
police force, but designed to perform operations that exceed the
capacity of the police;
Force Level; As of 5/05/04[A]: 29,100;
Force Level; Requirement: 41,500;
Controlling Authority after June 30, 2004: The Ministry of Defense
shall exercise administrative control. Coalition Forces will have
operational control.
Ministry: Ministry of the Interior;
Security Force: Iraqi Police Service;
Mission: Primary law enforcement agency responsible for public safety,
security, and order;
Force Level; As of 5/05/04[A]: 87,300;
Force Level; Requirement: 89,400;
Controlling Authority after June 30, 2004: Not yet determined.
Ministry: Ministry of the Interior;
Security Force: Department of Border Enforcement;
Mission: Monitors and controls the movement of persons and goods to,
from, and across the borders of Iraq. Includes Iraqi Border Police
charged with border and customs enforcement, as well as immigration
duties;
Force Level; As of 5/05/04[A]: 15,900[D];
Force Level; Requirement: 20,400;
Controlling Authority after June 30, 2004: Not yet determined.
Ministry: Ministry of the Interior;
Security Force: Facilities Protection Service;
Mission: Guards who secure individual ministry and municipal facilities
against vandalism and theft;
Force Level; As of 5/05/04[A]: 74,100;
Force Level; Requirement: 75,000;
Controlling Authority after June 30, 2004: Not yet determined.
Sources: DOD, CPA.
[A] GAO has not performed data reliability testing on these figures.
[B] According to a CPA official, these forces include units of the
Iraqi Army, Iraqi Naval Infantry (less than a battalion), Iraqi Army
Aviation (a few helicopters and small transport planes), Iraqi Coastal
Defense Force (about a half-dozen patrol boats), an Iraqi
counterterrorism force, and associated headquarters.
[C] According to DOD's Joint Publication 1-02, "DOD Dictionary of
Military and Associated Terms," administrative control is the direction
or exercise of authority over subordinate organizations in respect to
administration and support, including control of resources and
equipment, personnel management, unit logistics, individual and unit
training, readiness, mobilization, and discipline. Operational control
is the authority to perform those functions of command over subordinate
forces involving organizing and employing commands and forces,
assigning tasks, designating objectives, and giving authoritative
direction necessary to accomplish the mission.
[D] Figure includes Border Police and Department of Border Enforcement
staff.
[End of table]
As shown in the above table, the Ministry of Defense and the
multinational force will both exercise some element of control over the
Iraqi Armed Forces, which now includes the Iraqi Civil Defense Corps.
According to Article 59 of the transitional law, the Iraqi Armed Forces
will be a principal partner in the multinational force pursuant to the
provisions of U.N. Security Council Resolution 1511 and any subsequent
resolutions during the transitional period. Issued on March 21, 2004,
CPA Order 67 provides more detail on this relationship. The order
established the Ministry of Defense, placed the Iraqi Armed Forces
under the administrative control of the Ministry of Defense, and stated
that the Iraqi Civil Defense Corps will be transferred to the Iraqi
Armed Forces by June 1, 2004. The order stated, that pursuant to the
provisions of U.N. Security Council Resolution 1511, all trained
elements of the Iraqi Armed Forces will at all times be under the
operational control of the Commander of the multinational force for the
purpose of conducting combined operations and providing other support
in accordance with CPA orders. CPA Order 73 formally transferred the
Iraqi Civil Defense Corps to the Ministry of Defense as a component of
the Iraqi Armed Forces on April 22, 2004.
According to Article 39 of the transitional law, national command
authority on military matters during the transitional government phase
is to flow from the prime minister to the minister of Defense to the
military chain of command of the Iraqi Armed Forces. The law does not
define national command authority during the interim government phase,
which begins on June 30, 2004. According to CPA Order 67, the Ministry
of Defense will operate under the authority, direction, and control of
the CPA Administrator until the transfer of full governance authority
to the Iraqi interim government.
As of May 5, 2004, the CPA Administrator exercised control over the
Iraqi Police, Border Police, and Facilities Protection Service through
the Ministry of the Interior. The Facilities Protection Service differs
somewhat from the other forces in that its personnel are regulated by
the Ministry of the Interior, but are paid and operate under the
immediate command of the individual Ministry employing them. DOD
officials have told us that all of the Ministry of Interior forces
listed in the above table will be under the control of the
multinational force after June 30; however, this arrangement has not
been explicitly stated in any legal documents published by DOD or CPA.
Future of Iraqi Militias:
Article 27 of the transitional law specifies that armed forces and
militias not under the command structure of the Iraqi transitional
government are prohibited, except as provided by federal law. The
transitional law does not address the status of militias under the
interim government or establish mechanisms to disband or integrate
militias into Iraq's security forces. However, according to CPA
officials, they are working with political and militia leaders to
encourage members of the militias to play a role in security by
enlisting in the Iraqi Armed Forces and Iraqi Civil Defense Corps. For
example, CPA is negotiating with Kurdish leaders on the transition of
members of the Pesh Merga into national security structures, job
placement, or retirement. State Department officials said that it would
take time to address the transition of militias. Presently, four major
militias and numerous smaller militias are operating in Iraq. Table 2
provides information about some of these militias.
Table 2: Some Militias Present in Iraq:
Militia: KDP Pesh Merga;
Political Affiliation: Militia of the Kurdistan Democratic Party;
Location in Iraq: Northern portion;
Number: 31,000 active.
Militia: PUK Pesh Merga;
Political Affiliation: Militia of the Patriotic Union of Kurdistan;
Location in Iraq: Northern portion;
Number: 13,000 active.
Militia: Badr Brigades;
Political Affiliation: Militia of Supreme Council for Islamic
Revolution in Iraq, a Shiite Islamic Fundamentalist group that has ties
with Iran;
Location in Iraq: Southern portion;
Number: 8,000 active.
Militia: Mahdi's Army;
Political Affiliation: Followers of Muqtada al-Sadr, the radical Shiite
leader;
Location in Iraq: Central and southern portions;
Number: 2,000-5,000 active.
Source: CPA and Congressional Research Service Reports on
Iraq.[Footnote 11]
[End of table]
Mechanisms for Resolving Disputes Over Property Rights and Territory
during the Transitional Government Phase:
The transitional law includes three provisions for the transitional
government to implement related to resolving disputes over property
rights and territory. These disputes resulted from the previous
regime's practices in altering the demographic character and boundaries
of certain regions and territories, including Kirkuk.[Footnote 12]
Article 58(A) outlines mechanisms for resolving disputes over property
rights; Articles 58(B) and (C) discuss the possible mechanisms and
timing for determining the status of disputed territories.
Article 58(A) of the transitional law calls for the Iraqi transitional
government,
particularly the Iraq Property Claims Commission[Footnote 13] and other
relevant bodies, to take measures to remedy the injustice caused by the
previous regime's practices in altering the demographic character of
certain regions by expelling or relocating people. For residents who
were deported, expelled, or who emigrated, such measures include
restoring to them their homes and property, or, where this is
infeasible, providing just compensation within a reasonable time, in
accordance with the Iraq Property Claims Commission statute and other
laws. For those people who had been newly introduced to specific
regions and territories, the transitional government will ensure such
individuals may be resettled, compensated, or possibly receive new land
near their residence in the governorate from which they came, in
accordance with the Iraq Property Claims Commission statute. The
provision also states that the transitional government will permit
affected persons the right to determine their own national identity and
ethnic affiliation free from coercion and duress.
Two other provisions, Articles 58(B) and (C), discuss the possible
mechanism and timing for determining the status of disputed territories
whose administrative boundaries the previous regime had altered for
political ends. Article 58(B) establishes a process Iraqis will use to
resolve these disputes before requesting assistance from the United
Nations. The article calls for the Presidency Council of the Iraqi
transitional government to recommend remedies to the National Assembly
to rectify such situations in the permanent constitution. If the
Council cannot unanimously agree on a set of recommendations, it will
appoint a neutral arbitrator to examine the issue and make
recommendations. If the council cannot agree unanimously on an
arbitrator it will request the U.N. Secretary General to appoint a
distinguished international person to be the arbitrator. Article 58(C)
states that the permanent resolution of disputed territories, including
Kirkuk, will be deferred until after these measures are completed, a
fair and transparent census has been conducted, and the permanent
constitution has been ratified. The provision also states that the
permanent resolution will take into account the will of the people of
those territories.
Summary:
The transitional law provides a road map for establishing a permanent,
unified, and democratic government in Iraq. Nonetheless, some issues
related to the transfer of power remain unresolved. For example, the
transitional law does not specify how the interim government is to be
formed or structured, but states that the interim government will
govern in accordance with an annex to be developed. Since April 2004,
the United Nations has been playing a key role in helping to structure
the interim government. However, to date, the interim government's
specific authorities and responsibilities remain undefined. In
addition, the electoral law for the National Assembly is to be
completed before June 30, 2004, according to U.S. officials. Without an
electoral law, the National Assembly cannot be formed. Finally,
according to State Department and DOD officials, the transitional law
and U.N. Security Council Resolution 1511 authorize the multinational
force to operate in Iraq after June 30, and a new resolution may
further define its role. However, the Secretary of State said in mid-
May that if the Iraqi interim government asked the multinational force
to leave, the force would leave. He did not expect this to happen.
Although there are many difficult issues to be resolved, U.S.
government and Iraq Governing Council officials, along with the United
Nations, have only until June 30 to complete the work needed to ensure
a smooth transition.
The transitional law contains some provisions addressing two of the key
challenges facing the interim and transitional governments--
maintaining a unified Iraq and ensuring its security--but many issues
remain open. The law recognizes the Kurdistan Regional Government and
gives it control of territories in six governorates that it controlled
before the war in Iraq. Since two-thirds of the voters in any three
governorates can reject any draft constitution, Kurdistan or any three
governorates could have significant influence on Iraq's political
unity. The transitional law also recognizes the need to structure Iraq
security forces as the country strives to form a unified permanent
government, but does not fully detail how this will occur. For example,
coalition and Iraqi officials are still working out the command and
control structure of Iraqi security forces under the Ministry of the
Interior. In addition, the transitional law does not establish
mechanisms to disband or integrate militias into Iraq's security
forces. If not resolved before June 30, the issue will be left to
Iraq's interim or transitional government to address.
We are sending copies of this letter to interested congressional
committees. The letter is also available on GAO's home page at http://
www.gao.gov. If you or your staff have questions, please contact me at
(202) 512-8979 or christoffj@gao.gov. Key contributors to this report
included Tetsuo Miyabara, Judith McCloskey, Valérie Nowak, Mary
Moutsos, Lynn Cothern, Robert Ball, Julie Chao, David Hancock, and
Stephanie Robinson.
Signed by:
Joseph A. Christoff:
Director:
International Affairs and Trade:
(320263):
FOOTNOTES
[1] The Coalition Provisional Authority (CPA) is the U.N.-recognized
coalition authority, led by the United States and the United Kingdom,
responsible for the temporary governance of Iraq.
[2] The transitional law states that on June 30 a "fully sovereign
Iraqi Interim Government" will take power. However, the law does not
further elaborate the structure or authority of the interim government.
[3] Under the transitional law, the transitional period covers the
interim government phase and the transitional government period. The
interim government phase begins June 30, 2004, and the transitional
government phase ends with the formation of an elected Iraqi government
under a permanent constitution.
[4] In testimony before the House Armed Services Committee on April 21,
2004, and before the Senate Foreign Relations Committee on April 22,
2004, Under Secretary Marc Grossman of the Department of State noted
that one of the Administration's criteria for the interim government is
that it not have a law-making body.
[5] If the National Assembly cannot meet this deadline, the President
of the National Assembly may certify the need for additional time to
write a draft constitution to the Presidency Council, but must do so no
later than Aug. 1, 2005. The Presidency Council may extend the deadline
by 6 months but may not extend the deadline again.
[6] According to the transitional law, the court of cassation is the
court of last resort in Iraq except where the Federal Supreme Court has
jurisdiction.
[7] The Federal Supreme Court's ordinary appellate jurisdiction will be
defined under federal law.
[8] Security Council Resolution 1511 lays out a political process that
includes the internationally recognized Iraqi government assuming the
CPA's responsibilities, providing a timetable and program for drafting
a new constitution and holding elections, and convening a
constitutional conference.
[9] According to this order, in cases where coalition personnel commit
an act in Iraq for which the parent state has no criminal sanctions,
CPA may request that the parent state waive jurisdiction to try such
acts under Iraqi law. In these cases, no legal process could begin
without the written permission of the CPA Administrator.
[10] According to the Department of Defense's Joint Publication 1-02, a
status of forces agreement defines the legal position of a visiting
military force deployed in the territory of a friendly state. Such an
agreement's provisions describe (1) how the authorities of a visiting
force may control that force's members, and (2) the amenability of the
force or its members to the local law or to the authority of local
officials. Provisions pertaining to the status of visiting forces may
be in a separate agreement or they may form a part of a more
comprehensive agreement.
[11] Iraq: U.S. Regime Change Efforts and Post-War Governance, August
29, 2003; Iraq: U.S. Regime Change Efforts and Post-Saddam Governance,
February 23, 2004, Congressional Research Service.
[12] According to the 2003 State Department Human Rights report, the
previous regime had systematically forced the removal of ethnic
minorities under its admitted policy of "Arabizing" arable land.
Specifically, the regime "Arabized" certain Kurdish areas, such as the
urban centers of Kirkuk and Mosul, through the forced movement of local
residents from their homes and villages and their replacement by Arabs
from outside the area. Moreover, non-Arab citizens--people with
Kurdish, Turkmen, Chaldean, or Assyrian identity--were forced to either
change their ethnicity on their identity documents and adopt Arabic
names or be expelled to the Kurd-controlled northern provinces.
[13] CPA Regulation 8 delegated authority to the Iraq Governing Council
to establish the Iraq Property Claims Commission for the purpose of
collecting and resolving real property claims. The Iraq Property Claims
Commission statute, effective January 15, 2004, establishes the
Commission and outlines its structure, procedures, and general
principals.
