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November 25, 2007
1. Background
In late
2007, the United States and the United Kingdom
are expected to again present a resolution to
the UN Security Council for the renewal of the
controversial “Multinational Force” in Iraq (MNF).
In September, the Iraqi foreign ministry
announced that it would request a renewal for
one year, beginning on January 1, 2008. This was
reaffirmed in a joint communiqué issued by
President Bush and Prime Minister al-Maliki on
November 26, 2007. The communiqué affirms that
the presence of foreign forces in the country,
beginning in 2009 and for an extended period,
will be negotiated bilaterally between Iraq and
the United States.
This
memo argues that the Council should not
renew the mandate, because:
·
The MNF is responsible for many serious
violations of international law, which are
contrary to the mandate and in violation of its
rules.
·
Under the military control of the MNF, Iraq has
suffered from a steadily-worsening political and
humanitarian crisis. Renewal of the mandate is
likely to prolong the suffering and deepen the
political crisis.
·
A large majority of Iraqis see the MNF as a
foreign occupying force that increases
insecurity in the country and prevents national
reconciliation, according to extensive polling
data.
·
A majority of the Iraqi parliament has called
for a timetable for withdrawal of the MNF
·
The UN’s reputation is seriously tarnished by
its association with (and mandate for) the MNF.
The UN’s present and future capacity for
humanitarian and political assistance in Iraq
are badly damaged in this way.
The memo
will also argue that:
·
The Security Council should not accept any
request for MNF renewal by an Iraqi official if
it is not based on constitutionally-mandated
consultation and ratification by the Iraqi
parliament.
2. Evidence of Multiple MNF
Violations of International Law
Dozens
of reports by human rights organizations,
scholars, journalists, government agencies and
the United Nations have documented serious and
repeated international law violations by the MNF
in such areas as:
·
internment and detention
·
abuse and torture of detainees
·
killing of civilians
·
murder and atrocities
·
use of indiscriminate and especially injurious
weapons
·
siege tactics
·
massive displacement of civilians
·
attacks on and destruction of cities
·
interference with medical care, food relief and
other humanitarian work
·
failure to protect, and destruction of, Iraq’s
unique cultural heritage
·
fraud, theft and other gross misuse of the
Development Fund for Iraq
·
and many other matters.
Considerable evidence is summarized in “War and
Occupation in Iraq,” a detailed and
heavily-documented report by Global Policy
Forum, published with many NGO partners in June
2007 and distributed to all Security Council
delegations. The report sets out the facts and
notes the very serious legal implications. In
the sections of this memo that follow, we note a
few issues that deserve particular attention,
due to recent developments and new information.
The
rights violations must be considered, not only
in terms of applicable international law, but
also in terms of Security Council resolutions
that have provided the MNF mandate and renewed
it. As UNAMI has noted in its most recent
report, Resolution 1546 (June 2004) affirms in
one of its preambular paragraphs “the importance
of the rule of law” and “respect for human
rights.” And the letter from the Government of
Iraq attached to Resolution 1723 (November
2006), the most recent mandate renewal, states
that “The forces that make up MNF will remain
committed to acting consistently with their
obligations and rights under international law,
including the law of armed conflict.” So the MNF
mandate requires adherence to law, but MNF
practice violates the law.
We are
unaware of any conflict in which the United
Nations Security Council has given a mandate for
a multinational force, in which that force has
been responsible for such highly-visible,
repeated and extremely serious violations of
international law.
2a. Increasing Unlawful Detention
by the MNF
As of
the end of June 2007, after several months of
the Bagdad Security Plan (“surge”) operations,
UNAMI reported 42,200 persons in custody,
including 21,100 in the custody of the MNF. This
is an increase of 6,600 in MNF custody in a six
month period and it appears that the numbers
continued to climb thereafter. Sources in the
Iraqi government and in the ICRC have spoken
about a total of 60,000 detainees, the great
majority of whom are held unlawfully. While
prisoner releases have been announced, more have
been detained.
According to UNAMI, the MNF holds Iraqis in
“prolonged detention without trial, with many
security internees held for several years with
minimal access to the evidence against them and
without their defense counsel having access to
such evidence.” UNAMI says that large numbers of
persons have been arrested simply because of
their proximity to a security incident.
UNAMI
points out that most of the MNF detainees are
held in the large Camp Bucca prison camp
facility. This facility is located in the
southern Iraqi desert, where detainees are
exposed to sandstorms, scorpions and extreme
desert temperatures. Guards at Bucca have
repeatedly opened fire on detainees who have
protested their conditions.
UNAMI
has raised concerns with the US embassy about
MNF detention practices, but the embassy
“challenged the notion that human rights law
applies to security detentions under MNF
authority in Iraq.” As UNAMI has pointed out,
there are also protections under international
humanitarian law and the two bodies of law are
complimentary. The US and the UK have insisted,
however, that these protections have limited
application and that the MNF derive its rights
to detain large numbers of persons indefinitely
without charge from UN Security Council mandates
under the rubric of “military necessity” and
“imperative reasons of security.” Jailing tens
of thousands of persons without charge or trial
cannot be reasonably defended in these terms.
This interpretation of the mandates was rejected
by Secretary General Kofi Annan and it has been
deemed unacceptable by many others.
Iraqi
ministers and judicial authorities have
complained about the arbitrary and illegal
detention policies being practiced by the MNF.
According to UNAMI, the Head of Public
Prosecution at the Higher Judicial Council of
Iraq raised the situation of the Bucca internees
at a press conference in the Ministry of Justice
on 12 May and the Chief Justice of Iraq has
established a judicial investigation committee
to address the growing population of detainees
being held by the MNF and Iraqi security forces
Many Iraqi figures have called for the speedy
release of all those not charged with a crime
but the MNF has ignored these concerns and it
continues its massive detention policy.
2b. Impunity of the MNF and of
“Private Military Contractors”
MNF
forces claim to be exempt from Iraqi legal
accountability under Security Council Resolution
1546 and its attached letters. Military
contractors claim exemption under Order No. 17,
issued in June 2004 by Paul Bremer, the head of
the Coalition Provision Authority.
MNF
military personnel have only been accountable
under the military justice system of their own
country. But studies by human rights
organizations and major newspapers have shown
that US and UK military personnel have rarely
been punished for serious crimes such as murder
and torture. The military justice systems often
do not investigate crimes and when they do, the
military personnel are rarely brought to a court
martial. Punishments are few and mostly
surprisingly light. Officers are only rarely
held accountable. In the absence of serious
accountability, MNF forces are not under legal
pressure to have due regard for the welfare of
Iraqi citizens, nor are they deterred from using
excessive force. As US General Eldon Bargewell
wrote in a Marine Corps report: “all levels of
command [tend] to view civilian casualties, even
in significant numbers, as routine and as the
natural and intended result of insurgent
tactics.”
The US
air-war in Iraq now involves more than 50 air
strikes every day by fixed wing aircraft. Many
dozens of additional air attacks are carried out
by lethal helicopter gun-ships. The air war is
taking a heavy toll in civilian casualties and
destroying much Iraqi property. MNF forces also
kill Iraqi civilians at checkpoints, in house
searches, during ground-based military strikes,
in sniper activities, during convoys, and in
special forces operations.
MNF
commanders also arm, train and finance irregular
Iraqi forces such as police commandoes,
militias, and tribal groups -- forces guilty of
serious criminal conduct but for which the MNF
takes no responsibility.
There is
growing concern about the impunity of MNF-related
contractors and especially the mercenaries or
“private military contractors” who bear arms.
These latter number at least 20,000 in Iraq,
according to a Pentagon estimate cited in the
Washington Post. They serve as bodyguards for
high-ranking military officers, diplomats and
civilian officials. They also serve in force
protection units, or as facilities guards. These
private soldiers have reportedly often been
involved in violent incidents and they are known
for their rapid escalation of force, sometimes
in crowded streets and public place. But in
spite of serious allegations of murder and
atrocities, not a single private military
contract employee has been brought to justice. A
US law that would bring some of these personnel
under the US military justice system has not
been implemented.
On
September 16, 2007, guards employed by the
Blackwater company opened fire in a major
traffic circle in Baghdad. They killed an
estimated 17 Iraqis and wounded 27 more, even
though there was apparently no clear threat. The
Iraqi government and parliament are reportedly
seeking to impose accountability on Blackwater
and military contractors more generally, through
a new law of criminal accountability and new
licensing arrangements. But press reports
suggest that the MNF has made every effort to
block such measures, leaving the contractors
unaccountable.
3. Massive Displacement, High
Mortality, A Major Humanitarian Crisis
About
2.5 million refugees have fled Iraq and 2.2
million are internally displaced within the
country. This represents an increase of about
half a million in the past six months. One in
five Iraqis have now been forced to leave their
homes. Even though some Iraqi have recently
returned home because they have been denied a
visa renewal in their place of refuge or have
run out of money, the overall displacement
situation is deteriorating, according to a
recent assessment by Refugees International.
Many of
the country’s professionals have fled, including
nearly half the medical doctors. Excess Iraqi
mortality is reliably estimated to range in the
hundreds of thousands since March, 2003. The
government’s PDS food distribution system is
increasingly failing and a large number of
Iraqis are malnourished or “food insecure.” The
health care system is very seriously
underperforming and understaffed. Electricity is
available only a small part of every day.
Poverty and unemployment are exceptionally high.
Clean water and proper sewerage are so seriously
lacking that a cholera epidemic broke out in
mid-September and water-borne disease poses a
serious continuing threat.
4. Iraqi Public Opinion and the
MNF
Polling
organizations have carried out many opinion
surveys in Iraq since March 2003. The results of
these polls, including those sponsored by the US
and UK governments, show clearly that Iraqis are
very critical of the foreign presence in their
country. The trend of polling data is also very
instructive. It shows increasingly negative
judgments about the security situation, the
economic condition, and the availability of key
services such as education and electricity. In a
BBC/ABC poll taken in August 2007, only 11%
thought that security in the country had
improved over the previous six months, while 61%
thought that security had grown “worse” during
the period. In the same poll, 79% opposed the
presence of coalition forces in Iraq, compared
to 51% in 2004. And 72% said the presence of US
forces makes the security situation in the
country “worse.”
A large
majority of Iraqis are opposed to MNF forces,
widely seen as an “occupation” not a
“liberation.” Large majorities of Iraqis favor
immediate or near-term withdrawal of the MNF and
see such withdrawal as increasing overall
security. In many polls, nearly two-thirds of
Iraqis say they believe attacks on MNF forces
are justified.
These
opinions do not suggest that security in the
country has “improved,” as Washington is now
claiming. Instead, they suggest that trends
continue in a negative direction and that the
further presence of the occupation forces will
face strong and very broad popular opposition.
Military force (even if mandated by the Security
Council) cannot overcome through repressive
tactics such broad public opposition.
5. The Iraqi Parliament and the
MNF
In the
fall of 2006, as the renewal of the MNF mandate
approached, the Iraqi parliament asked the
government to submit for parliamentary approval
any request to the UN Security Council
concerning the mandate. But the al-Maliki
cabinet went ahead without any consultation or
approval. It presented a letter to the Security
Council asking for a renewal of the MNF mandate
dated November 14, 2006.
Following those events, the Iraqi parliament
took further steps on the question of the MNF.
In April, a majority of parliamentarians signed
a letter addressed to members of the Security
Council, calling the 2006 mandate renewal
“unilateral” and “unconstitutional.” The
parliamentarians also asked in the letter for a
timetable for withdrawal of the MNF. In May, the
parliament passed a law requiring the government
to obtain parliamentary ratification prior to
making any future request for renewal to the UN
Security Council.
Al-Maliki
has announced that he is again asking for a
mandate renewal. But this request is again being
made without referring the matter to parliament
for ratification as the constitution requires.
Yet the Bush-Maliki communiqué speaks of
“Respecting and upholding the Constitution as
the expression of the will of the Iraqi people
and standing against any attempt to impede,
suspend, or violate it.” What can this mean, if
the Prime Minister refuses to abide by a basic
constitutional requirement and a law passed to
affirm it?
If the
Security Council accepts the request in the
absence of legally-binding parliamentary
consultation and ratification, it will set an
extremely bad precedent and worsen Iraq’s
already serious political crisis.
6. MNF Conversion into a
Long-Term Occupation/Protectorate
Previous
cases of “robust” MNF mandates by the Security
Council have usually ended in a relatively short
period of time, with the withdrawal of MNF
forces from the lands of conflict and the return
of sovereignty and local rule. The MNF in Iraq,
by contrast, has been operational with a very
large force for well over four years, with an
active counterinsurgency campaign throughout.
The US is not currently planning to withdraw
subtantially its forces. Instead, Washington has
announced that there will be a long-term US
military presence in Iraq, including “enduring”
military bases, as set forth in the Bush-al-Maliki
communiqué of November 26. No previous MNF
mandate has had such an outcome.
US
influence over the Iraqi government is similarly
inconsistent with previous cases of MNF
mandates. US influence in Iraq is enormous and
it is well known that the Iraqi government has
very limited sovereignty. The mammoth US embassy
in Baghdad, the largest US diplomatic presence
in any country, symbolizes this extraordinary
influence, and it suggests the long-term
political protectorate that is planned.
Preferential treatment of US investments in Iraq
has also been announced. This future US hegemony
suggests a corresponding lack of influence of
the UN and the international community, in
promoting Iraqi self-rule, full sovereignty and
economic independence.
The
Security Council should not affirm the interests
of a single powerful state, as opposed to the
broader interests of the international community
and the right of the Iraqi people to self-rule.
By failing to insist on MNF withdrawal and real
transition to local sovereignty, the Council
appears to be acknowledging an unprecedented new
type of open-ended political and economic
protectorate, with virtually no international
oversight or accountability.
7. Conclusion
There
are many reasons for the UN Security Council to
reject the renewal of the MNF in Iraq. The
Council must take into account the violations of
international law by the MNF and the opposition
to the occupation by the great majority of the
Iraqi people. The Council must also take account
of the opposition of the Iraqi parliament and
its call for MNF withdrawal, the tragic
humanitarian crisis, and the great suffering of
the people of Iraq. Most Iraqis believe that the
MNF worsens their security, their well-being and
their hope for a political future. The mandate
is also a worldwide embarrassment to the UN and
it clearly weakens the organization’s capacity
to do effective work in Iraq in the future.
Further, the MNF in Iraq has a destabilizing
effect on the entire Middle East region. It is
time for the Security Council to take these
realities into account and to end this
regrettable episode in the UN’s history?
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