U.S. rules Iraq under international law doctrine of ‘debellatio’ and will until stable government is formed

Americans anxious to handover power to a sovereign Iraqi government by June 30 should remember it took 10 years for Allied Forces to return similar powers to Germany following World War II. Like it or not, the United States is stuck in Iraq until a new government is formed, a process that hinges on some very contentious constitution making, says Victor Le Vine, emeritus professor of political science in Arts & Sciences at Washington University in St. Louis.

A U.S. Army brigadier general congratulates the graduates of the new police academy in Sin'Jar.
A U.S. Army brigadier general congratulates the graduates of the new police academy in Sin’Jar.

Le Vine, an expert on terrorism and political unrest in North Africa and the Middle East, has spent the last two years examining the modern constitution-making process as part of an ongoing United Nations and U.S. Institute of Peace conference on “Post-Conflict Constitutional Reconstruction.”

Le Vine is available to discuss the critical challenges that lie ahead for the nation-building process in Iraq.

His views are outlined in the newspaper commentary below, which is republished with permission from the St. Louis Post-Dispatch. The article ran in the NewsWatch section of the St. Louis Post-Dispatch on Sunday, Feb. 22, 2003. Copyright 2004 St. Louis Post-Dispatch, Inc.



By Victor T. Le Vine / Special To The Post-Dispatch

NEWS: Last week, L. Paul Bremer, the chief of the American occupation, reiterated his commitment to hand over power in Iraq by June 30.

ANALYSIS: Just how a constitution is drafted and how that constitution is structured will have everything to do with politics and the three major ethnic and religious factions in Iraq.

Victor Le Vine
Victor Le Vine

Like it or not, we’re stuck in Iraq and largely responsible both for keeping the country out of a civil war, which is more than likely to happen if we simply pack up and leave, and for trying to move it to some sort of a political future in which ordinary Iraqis can go back to peaceful pursuits and the country can begin to profit from its oil bounty.

Whatever the reasons, it is already clear that getting to what seems so simple a future is going to be painful and agonizingly difficult. At all events, we’re committed at least for the medium run, and no one else — not the United Nations, not the European Union, not the French, not the Germans, not even the British — are willing to carry that burden. I assume they might do so if we leave precipitously, or if Iraq threatens to explode in the faces of our anxious oil-rich friends in the region and we can’t put out the fires. But that’s just in case, and certainly not yet.

What is certain is that the Iraqi political future is up for grabs, our presence and commitment notwithstanding. We insist upon acting as if there were a real Iraq within its international borders, but the naked truth is that there is now no Iraqi state: what there was, the Baathist Arab Socialist “Democratic People’s Republic of Iraq,” finally closed down with Saddam Hussein’s humiliating capture Dec. 14.

According to the International Law doctrine of debellatio (KO’d by war), under which we profess to operate, it is the coalition, through Ambassador L. Paul Bremer III and his administration, that makes the important political and economic decisions for the Iraqis.

Bremer’s occupation authority will wield sovereign power until we hand over sovereignty around June 30 (as promised by the Bush administration) to some kind of temporary Iraqi government, or there is a new Iraqi state, under a new constitution. The June 30 transfer might not occur as planned, or everything stays on hold until a constitution gets written and adopted. What remains, in any case, is to create the new Iraq.

We forget that Germany was debellatio for 10 years, divided up by the victorious allies (the United States, Britain, France and Russia), with each running its sector as it saw fit. A new state, the German Federal Republic, reemerged only in 1955 when it signed peace treaties with its erstwhile occupiers. So what does it take to reinvent Iraq, given that the old Iraq is debellatio?

I admit to special interest in the question: For the past two years I’ve been part of an ongoing conference, sponsored by the United Nations and the U.S. Institute of Peace, with the ponderous name “Post-Conflict Constitutional Reconstruction.” We’ve examined some 20 cases of constitution-making for countries that went through upheavals ranging from war and revolution to rebellion and internal collapse, and of course, Iraq became part of our discussions, in which members of the Interim Iraqi Governing Council participated. We’re supposed to wind up sometime this year, but so far, what have we learned about Iraq?

First, we agree on what the new Iraq will not be: Clearly, a Baathist-run, Sunni-dominated state is out, the bloody efforts of Saddam’s remaining friends to restore it notwithstanding.

The Kurds absolutely refuse to contemplate a regime run to please the Shiite majority, one in which they would have to give up the areas and towns they now control in the north of the country, and what is left of the marsh Arabs would certainly refuse to obey any regime that looked as if wanted to complete the work of exterminating them begun by Saddam.

We could not find anyone — the remaining Saddamites and some of the Shiite clergy excepted — who seriously consider recreating a unitary Iraqi state, even one run on majority rule principles, which the Grand Ayatollah Sistani appears to favor. It is not impossible that given power, Iraq’s Shiites would give up all thoughts of revenge against the country’s Sunnis and rule as tolerant and benign democrats, but it is hard to find any Kurdish or Sunni politicians who believe that. Too much Kurdish and Shiite blood has been shed by the Sunni-Saddam combine for forgiveness and reconciliation to emerge yet.

So what are the options?

First of all, there’s already at least general agreement on what should be done to bring the country to the point where the Iraqis will begin the job of reinvention. Most Iraqi leaders, with U.N. and EU backing, are prepared to have the coalition hand over sovereignty to some kind of Iraqi government around June 30, to be followed by the selection of a constituent assembly to draft a new Iraqi constitution. That’s the limit, however, of consensus so far.

The current dispute is not so much about step one, the transfer of sovereignty, but about step two, putting together and convening the constitutional assembly. Ayatollah Sistani and the principal Shiite leaders oppose the Bremer plan for selecting a national assembly (which will set the stage for the constitutional assembly) through local-regional caucuses. So it is more than likely that some sort of compromise direct election plan will be worked out that doesn’t threaten the Kurds, the Sunni and the marsh Arabs.

That done, the assembly elected and the constituent assembly convened, the Iraqis must then face the more important decisions in the reinvention process: What kind of a political Iraq should they create?

Assuming a monarchy is out, as is a new version of the Saddamite state, how about three separate and independent states: one each for the Kurds, the Shiites and the Sunnis?

The idea is not new, and absent a better proposal, is certainly favored by the Kurds, who would not accept either unconditional Sunni or Shiite overlordship. The Kurds have lived a semi-sovereign and relatively prosperous existence since the United Nations created the autonomous no-fly zone for them in 1991.

The only problem with this is that the Turks, whose 12 million Kurdish citizens might find a Kurdish Kirkuk Republic irresistible, would not tolerate such a move, and would almost certainly invade northern Iraq to prevent it. Three Iraqi states is a nonstarter, likely to generate new rounds of bloodshed.

Is there any version of a unitary state that might be acceptable? A unitary state based on majoritarian democratic principles and direct elections would likely give power to the Shiite majority — some 60 percent of Iraqis are Shiites. However, as was suggested earlier, agreement on even the most benevolently democratic unitary state run by the Shiites is unlikely for the present.

That leaves the proposal favored by most leaders on all sides: some sort of federal arrangement that guarantees considerable autonomy to all the main political communities and effectively divides sovereignty between the center and the component units. At present the level of mutual distrust among the Iraqi political communities, fanned by the daily rounds of deadly violence, is such that only a federal solution has a chance of finding support in Iraq’s future constitutional convention.

Given the political obstacles already in the way, it will not be easy just getting to the convention, and even if there is consensus on a federal Iraq, the delegates still have to decide whether it is to be confederal — like the early U.S. model — or late federal, like Germany and Canada. Since we’re not yet even at step one, it will all bear careful watching from now on.

Victor T. Le Vine is a professor emeritus of political science at Washington University in St. Louis.