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Transitional Authority in Iraq : Legitimacy, Governance and Potential Contribution to the Progressive Development of International Law Zakia Afrin

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Transitional Authority in Iraq : Legitimacy, Governance and Potential Contribution to the Progressive Development of International Law Zakia Afrin Golden Gate University School of Law GGU Law Digital Commons Theses and Dissertations Student Scholarship 2007 Transitional Authority in Iraq : Legitimacy, Governance and Potential Contribution to the Progressive Development of International Law Zakia Afrin Follow this and additional works at: http://digitalcommons.law.ggu.edu/theses Part of the Constitutional Law Commons, and the Law and Gender Commons Recommended Citation Afrin, Zakia, "Transitional Authority in Iraq : Legitimacy, Governance and Potential Contribution to the Progressive Development of International Law" (2007). Theses and Dissertations. Paper 7. This Dissertation is brought to you for free and open access by the Student Scholarship at GGU Law Digital Commons. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. SJD in International Legal Studies School of Law Transitional Authority in Iraq: Legitimacy, Governance and potential contribution to the Progressive Development of International Law. By: Zakia Afrin I Scientiae Juridicae Doctor Candidate This work is dedicated to my parents: Alfaz Uddin, A freedom Fighter of Bangladesh Independence war and Kamrun Nahar, Divine purity on earth Preface The unauthorized use of force in Iraq by the coalition forces and the establishment of a transitional authority following the occupation of Iraq by the occupying powers raised serious concerns for the appearance of legitimacy under international law. As scholars have called this period of uncertainty 'cross roads' 1, this event calls for a precise legal analysis. As a student of International Law I find it irresistible to undertake an in- depth research on this phenomenon. I shall to this end conduct and present a thorough investigation of the Transitional Authority in Iraq, its legitimacy, governance and seek to identify potential contribution to the progressive development of international law in this field. Besides, my personal interest in the Iraqi events played a role in selecting this topic. Freedom, war, and democracy- these words have simply been integral part of my regular life as I was growing up in Bangladesh. The fact of being the first generation of a new country came with its demands. I witnessed nostalgia about the freedom struggle, survival stories during the war, almost fifteen years of military dictatorship and uprising and sacrifice of common people for democracy. The ordeal of Iraqi people and the future of this vibrant culture attracted me to study their journey to a new political reality. My two and half years' stay in the Middle East has played a role in deciding to work with this subject. By any standard, this is as sensitive a political topic as it is a legal one. Though I tried to analyze without partisan bias, at times I have taken sides. As one of the most 1 Sompong Sucharitkul, International law at the crossroads, 13th Regional Meeting of the American Society of International Law, March 12, 2004, San Francisco. 2 influential historians in the US Howard Zinn wrote, "You can't be neutral on a moving train" - I did not try to be one. I have voiced my support for the law above everything else. It is my great pleasure to thank the members of my committee; my advisors Professor Christian Okeke and Professor Michael Van Walt for their support and inspiration over the years. I am indebted to my Supervisor Distinguished Professor Sompong Sucharitkul for his endless contribution to this work as well as my understanding of international law in general. My heartfelt thanks go to John Pluebell of GGU International Student Services for his ever smiling helpfulness. My deepest appreciation for all my friends in the Bay Area who helped me survives spiritually. And last but not the least I thank the most favorite men in my life -my brother Kamrul Hassan, spouse Pablo Barua and my two month young son Duronto Pablo, without whom I might have given up a long time ago. I hope this dissertation contributes to the growing study of transitional authorities in international law. This work has been my love made visible (As put by Kahlil Gibran) and I wish to continue my efforts in this regard. 3 Contents Chapter I ...............................................................................................................................................................6 Transitional Administration in International Law and Relevance of Iraqi.. .............................................................6 Introduction ........................................................................................................................................................7 Chapter II ............................................................................................................................................................17 Transitional Authority in Iraq: Legitimacy and Governance ................................................................................. 17 Introduction ......................................................................................................................................................18 Iraq: Cradle of Civilizations ..............................................................................................................................20 Legality of the Iraq war ....................... ;............................................................................................................. 21 Authority of UN in delegating power to the Occupiers .....................................................................................26 The occupying power and their Legal authority ........................................................................................28 Coalition Provisional Authority (CPA): The occupying liberators ..............................................................31 Governing Council (GC) of Iraq: Shadowy Existence ..............................................................................33 Iraqi Interim Government (IG): Conditional Sovereignty ..........................................................................36 Iraqi Transitional Government: Sovereign at the outset ...........................................................................38 Multi National Force .........................................................................................................................................39 Nation Building: An experiment gone awry ......................................................................................................40 the Transitional Administration in East Timor ..................................................................................................48 Conclusion .......................................................................................................................................................50 Chapter III ...........................................................................................................................................................56 The Constitution of Iraq: A feeble document born to a hasty process ................................................................ 56 Introduction ......................................................................................................................................................57 Inside the Constitution .....................................................................................................................................58 Preamble ................................... , ...............................................................................................................58 Basic Principles ........................................................................................................................................60 Rights and Liberties ..................................................................................................................................64 Federal Powers .........................................................................................................................................68 Dissecting the Process of Constitution making ............................................................ ,................................... 74 Political Will .................................... :.......................................................................................................... 76 Participatory constitution making ..............................................................................................................77 Constitution Drafting Committee ...............................................................................................................79· Timeline ....................................................................................................................................................80 International Involvement. .........................................................................................................................81 Representation of groups .........................................................................................................................82 Participation of Women .............................................................................................................................82 Participation of Common people ..............................................................................................................83 Referendum ..............................................................................................................................................85
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