Cobban on CPA Laws and Transition to new Iraqi Government
Veteran journalist and blogger Helena Cobban wrote in with further remarks on the issue of whether Coalition Provisional Authority regulations in Iraq are likely to survive the transition to an Iraqi government. I quote her below with kind permission.
“Nathan Brown says this:
“My impression is that such regulations [as those already enacted by the CPA] are likely to survive the CPA. In the closest local precedents we have, the PNA [Palestinian National Authority] actually retained almost all legal enactments issued by the Israeli militarygovernment and civil administration (though it was loathe to admit that it had done so).”
I would suggest that actually this is not at all a “close precedent”, since the PA was only ever regarded by the Israelis as a transitional body, and never as the sovereign government of an independent state. Israeli government lawyers argued at the time–with complete justification under international law– that despite the creation of the PA, Israel still exercized broader authority over ALL of the areas of the West Bank and Gaza by virtue of their position as occupying power. Hence, for example, when they went back into the areas of “Area A”, that was NOT under international law an aggression against Palestinian sovereign territory; and their relentless recent campaign against Arafat’s regime and the organs of PA power like police, security forces, etc., have NOT constituted aggression against a sovereign power.
Obviously, what we all want to see in Iraq in the long term (and preferably as soon as possible) is not a feeble “transitional” body like the PA (or indeed, the IGC) but rather an independent government exercizing real national sovereignty. Such a government should, ideally, follow its people’s wishes in all acts of choice regarding what constitutional basis it adopts and which precedents from past administrations of the country it chooses to keep, and which to reject. The problem, right now, bviously is how such a truly self-governing leadership is to be formed. CoDeSa in S. Africa provides one model (took two years or more). The UN transitional arrangements in East Timor and Namibia provide much more closely analogous precedents–transitions from rule by foreign occupying forces to rule by a democratically constituted independent national government… But Israel’s very partial and in practice aborted quasi-‘transition’ to the PNA doesn’t provide a precedent at all.
(I’m just writing about Namibia and East Timor for Hayat– I may put something up on the blog, too.)”
Chris S. kindly recommended this link for informed legal/military commentary on the trial of Saddam and the implications of his POW status.