Minute fco junior official to ps post conflict iraq iraqi interim authority

Director Global Issues Legal Advisers 1/2003 Reference: Iraq Planning Unit Distribution PS To: SUBJECT: POST-CONFLICT IRAQ: IRAQI INTERIM AUTHORITY 1. I submit a paper on an Iraqi Interim Authority (IA) and a draft speaking note for the Foreign Secretary to use with Colin Powell on 3 April. They have been cleared by Director MENA, UND and Legal Advisers. They also take into account views of other interested departments (MOD, DFID, HMT). DID officials however have raised concerns about the paper but have not yet shown it to their Secretary of State. For tactical reasons, as this is a paper for handing over to the Americans, there are fewer references to the UN than DFID would ideally like. 2. It is common UK/US ground that the Coalition should hand power back to the Iraqis as soon as conditions permit. We also both think we should help establish an IIA, under appropriate supervision, to be the focus of Iraqi provisional self-government. But the common ground ends there. The US inter-agency dispute on how to set up an IIA has become increasingly bitter. 3. The attached paper sets out our thinking on the IIA. The Foreign Secretary's meeting with Powell in Brussels is an opportunity to make him aware of our views (which may not be identical to State's), and to seek advice on the best way of influencing DoD policy. We will cover much of the same ground in official NSC/NO 10 talks here on 4 April. Legal Position / UN Authorisation 4. Without UN authorisation, any bodies set up or decisions taken on issues other than delivery of humanitarian relief, rehabilitation of existing infrastructure, security or public order, whether by the Coalition or others, would not fall within the authority of occupying powers and would therefore be illegal. This applies to the formation of an interim Page 1 NBU/011/003/03 RECEIVED IN REGISTAY 15 APR 2003 REGIST DESK TRACER INTER DFCIASSIFIFD 5. If we can persuade the US of the need for UN cover, much of the details of the selection process for an lIA can be left to the UN Special Co-ordinator. We would be able to have influence by giving advice, including based on what we have picked up eg in the Joint Commissions and suggesting some parameters. The Coalition would of course continue to exercise a great deal of informal influence by virtue of its responsibility for maintaining security and stability within Iraq. Where we differ from the US 6. There are various issues on which we differ with the US, and some where there is an ongoing debate in Washington: a) Consultative Councils: We see some value, in the period before an IIA is established, having an appointed Iraqi consultative council. Any consultative councils should be advisory and made up of people of good standing within Iraq. FCO and MOD are working up ideas for how the British army's tried and tested ways of working with local people in such circumstances, namely through Joint Commissions, can be applied in this context. However, DoD has pushed ahead with plans to identify Iraqi exiles and to form an Iraqi Council for Reconstruction and Development (ICRD, also called the Council of Co- ordinators). Attachment B provides a translation of a DoD document in Arabic which spells out ICRD's remit, which has been handed over to selected participants. Some of the individuals so identified have already arrived in Kuwait. This is seemingly without drawing on the ideas developed by the State Department's "Future of Iraq" process. Some of the individuals included are more politicians than technocrats. This has already raised concern in the Iraqi diaspora, and there is a danger of them purging the ministries to which they are allocated. In recognition of this, President Bush instructed DoD on 28 March to avoid being seen to impose external Iraqi oppositionists on Iraq. Page 2 DECLASSIFIED be avoided. Powers, other than those necessary to ensure security and stabilisation, should be transferred to the IIA in phases as and when the IIA is capable of taking on relevant functions. Given the unclear and evolving status of ORHA, it will be important to ensure that the link between ORHA and the IIA is clearly defined. There is a strong risk of disputes arising between ORHA and the IIA especially as the IIA gains in confidence. The Attorney General has given his advice on ORHA's powers (see Attachment C). It does not make comfortable reading, given what we know of ORHA's intentions to pursue widespread economic and political reform in Iraq. Handling with the US 7. We will need to agree with the US in due course how much of the detail of an IIA needs to spelt out in any UNSCR. For example, there could be one UNSCR appointing a UN Special Representative and a later one blessing the process towards an IIA. 8. In addition to any contacts by the Foreign Secretary, Washington suggest feeding in these ideas to the US using the following channels: i) the military in the field; i1) ORHA; 111) Pentagon; iv) NSC. Iraq Planning Unit NO. OF ATTACHMENTS: 5 Page 3 DFCNARSIFIFN - Recognise that your (and our) thinking is still evolving. Important though to create some clarity on how to achieve our objectives, and what is and is not possible. This is urgently needed; badly-presented ideas will undermine our efforts to win hearts and minds. Particular points to note: Legality: role of the UN Legitimacy: sustainable authority equals one that emerges from an Iraqi owned process Broad Representation: correct balance between Iraqis from inside Iraq and those in the diaspora. Hearts and Minds: need to do this from the outset; Joint Commissions a possible way forward - Key points relating to a Baghdad Conference seem to us to be: - Involvement of a UN Special Representative or Co-ordinator in the process of selecting the Iraqis who would be involved in any conference - Inviting as broad and representative a sample of Iraqis as possible, but ensuring that those not currently in Iraq are a distinct minority - Avoiding any reinforcement of ethnic, sectarian or tribal affiliations in Iraq DECLASSIFIED volley powers to institute reforms will be limited. Also, ORHA's shelf life will be limited for reasons of political legitimacy, both within Iraq and more widely. We can expect the Iraqis to resist a military administration. The arrangements for an interim authority need to set Iraq on a sustainable path to political and economic reform. Managing an effective transition of civil administration to an Iraqi representative authority is therefore essential to delivery of coalition objectives in Phase IV, including a viable exit strategy for Coalition forces. The emergence, via a conference of Iraqis, of an IIA would mark the re-introduction of an Iraqi civil administration that could progressively take on the civil administration functions of ORHA. To succeed, the IIA must have legitimacy with the people of Iraq. Otherwise it will be inherently unstable and require indefinite support. Looking to the longer term, such an interim authority should also pave the way for wider political and economic reform. We envisage a process including the following key steps: • The establishment of a Consultative Council at a national level and Joint Commissions at a local level to advise and act as the interface with the Coalition transitional military and civil administration. • A process to select an Iraqi Interim Authority, such as a conference similar to the Bonn Conference for Afghanistan. • Formation of an Iraqi Interim Authority. • A constitutional review process. " Preparations for and holding of free and fair elections. • A new representative government 2. Consultative Councils / Joint Commissions: temporary bodies • Consultative Council at a national level • Joint Commissions at a local level In order to fulfil their obligations under international humanitarian law, the Coalition will need very soon to engage systematically with local Iraqi institutions. This is already happening in the south of the country. First, at a local level, Joint Commissions could be formed between local Iraqis and Coalition representatives. At a later stage, there will be a need for a central interface to work with Iraqi Ministries and other organs of central government. At the national level we thus see merit in the emergence of an advisory body to include technocrats and academics. These bodies would act as the Coalition's interface with existing Iraqi institutions and advise the Coalition transitional military and civil administration. They would increase Iraqi It will be essential to present such bodies as temporary and advisory. They should not become a rival power base to an IIA. They should therefore either cease to exist on emergence of an IIA or become subordinate to it. One way of limiting these risks would be to ensure that technocrat advisers are clear that they will not seek to play a political role after this first phase or to participate in the IIA or elections. 3. Baghdad Conference There have been various proposals for conferences, including the US idea of a victors' conference, a possible donors' conference, and conferences to select new Iraqi leadership. There are a number of related issues to address: venue, selection of representatives, the Kurdish angle, exiles, decisions for the conference. Attachment A sets out some ideas for a conference similar to the Bonn Conference for Afghanistan to pave the way for the creation of an IIA. There are advantages to this being held in Baghdad - in particular, a clear indication that it is an Iraqi-led and owned process. This would only be possible if a secure environment could be ensured. Other countries have already expressed an interest in hosting such an event (eg Denmark, Germany). It would be inadvisable for the US/UK to host the event. But an overseas conference, wherever it is held, runs the risk of being dominated too much by Iraqi exiles. We are consulting widely, including with Iraqis, on whether a Baghdad Conference is the best outcome. As President Bush has stipulated, the IIA should be mainly composed of Iraqis from within Iraq. A key difference from the Bonn process for Afghanistan is that some elements from the current administration will need to be involved. It will be difficult for some time to identify suitable individuals with real influence. Some of these may have been part of the Saddam regime, opportunists who will lack democratic credentials but who will be needed to ensure that the civil administration continues to function. We need to ensure Iraqi exiles clearly understand their role and the need for an inclusive process. Another important difference is the existence of the two functioning regional administrations in the Kurdish region in northern Iraq. The IIA will need to take account of the Kurdish institutions at the regional level and any differences between them and those applying in the rest of Iraq. There is also a risk that the main Kurdish DECLASSIFIED whenever owens moon or to dectomy will stem from public knowledge and acceptance of its mandate. A public information campaign will be crucial in this respect. 4. Iraqi Interim Authority (IA) The process of appointing an IIA should be seen to be in the hands of the people of Iraq, albeit with international support. The IIA should be an interim authority with provisional powers, and it should set in train a process leading to constitutional reform and the eventual election of a new government of Iraq. It will be for the Baghdad Conference to determine the powers that the IIA should have, although clearly a viable IIA would need to take full account of the internal security situation and the external political environment. As currently envisaged, the IIA would have two main functions: i) to take over responsibility for ministries from the coalition military authority, probably on a phased basis; ii) to create the constitutional framework to give rise to an eventual Iraqi government. The IIA's core focus should be on running the civil administration. It is possible that certain powers could remain under the auspices of the Coalition, such as security and stabilisation. Others could be transferred to the IIA in phases. ORHA has a crucial role in managing this. It will need to be clear whether IIA members will act as Ministers with full interim powers, with assistance from international advisers as necessary, or simply give guidance on which institutions will act. This should be determined by the Baghdad Conference. Whatever the powers of the IlA members, it would be important for a neutral figure in the form of a UN Special Co-ordinator to have a role over the IIA which would include a degree of supervision and informal influence. Relationship to ORHA Given the unclear and evolving status of ORHA, it will be important to ensure that the link between ORHA and the IIA is clearly defined. There is a strong risk of differences in view arising between ORHA and the IIA especially as the IIA gains in confidence and assumes greater power. It is not legally or politically sustainable though to subordinate the IIA to ORHA. DECLASSIEIFI Any interim constitution mechanism must detail a process for drafting and consulting on a permanent constitution, and for holding any referendum. 6. Role of the Coalition The more control the Coalition has, the less independence and legitimacy the IIA will be seen to have. Further, the more control the Coalition seek to exercise, the less the process would be genuinely one of reform by the people of Iraq themselves, and the greater the risk that the occupying power would thereby be exceeding its authority and acting unlawfully. The same applies to the arrangements for supervising the IIA. Our preferred option would be for a UN Special Co-ordinator to be mandated to oversee the process of transition to a representative government. The advantages of this include: a clear sign of commitment to allow Iraqis to decide their future; greater credibility amongst Iraqis and in the region; maximum international support, including in meeting costs. The disadvantages include loss of direct Coalition control over the selection process; risk of non-democratic or anti-Coalition figures gaining influence. There may be a role for the Coalition to assist in vetting selected individuals on a security and/or public order basis, with a view to weeding out unacceptable individuals. This would not involve nominating preferred candidates. The optimum solution would therefore probably be for the UN to lead the process with the Coalition assisting on the ground. The Coalition will have an important role through gathering information on political leadership and officials at a local level in secured areas (some of this work is already underway). 7. Elections The Edgware Road Conference of Iraqi opposition groups in exile held in December 2002 recommended that there should be a maximum period of two years before the holding of elections. The IIA will need to set out clearly the process for participating in and the holding of elections. Iraq Planning Unit Foreign and Commonwealth Office 2 April 2003 DECLASSIFIEC and the UN Special Representative will need to be central to this process. This paper sets out some general ideas on how this might be organised 3. We may be able to work with elements of the existing 'popular councils' (majaalis al-sha'ab) but must look for other representatives from within the country. 4. The Afghan model might provide some guidance on how to juggle the demands of different ethnic and religious groups, though there are key differences in how the process was managed. Timing 5. The need is to have an executive under early and visibly-accountable Iraqi control, not least because any large-scale revision of laws, bureaucratic structures, the oil industry, the economy and the constitution must be seen to be done with full Iraqi involvement. 6. Balanced against this need for urgency is the Coalition's need for time to assess the attitudes and ability of those currently involved in Iraq's administration. A timescale of 4-6 weeks after the fall of the current regime looks realistic. Internal representation 7. Representatives at the Conference should be selected from each of the 18 governorates of Iraq. There are wide population disparities between the governorates and the status of the governorates in any federal/decentralised system remains controversial, but this is the most logical structure to work with in the short term. 8. Currently there is a system in place of 'popular councils', local bodies without any real power but some influence as they include local figures. Having consulted a range of Iraqis, there is a difference of opinion on how far we can use these 'popular councils' as the basis of internal representation. 9. What is clear about the 'popular councils' is that: • It is a country-wide structure (though no longer used in northern Iraq which has had democratic local council elections); • It does include respected professionals such as doctors, engineers, professors and religious representatives; • These individuals have been approved by the Ba'th party; DECI ASSIFIED Diaspora representation 11. Current structures of the Iraqi opposition include the Co-ordination Committee formed at the Edgware Road conference in December (65-75 members) and the Advisory Committee formed in February in Salahuddin (4-6 members). 12. These representatives from the diaspora should be augmented by: • Non-political entrepreneurs and technocrats such as doctors and engineers who have shown a commitment to return to Iraq and work on reconstruction. These will return from Iran and the Arab world as well as the West. • Representatives of religious charitable organisations such as Assyrian church groups, the al-Khoei foundation etc. Those who have so far stayed aloof US-led initiatives such as al-Da'wa party and the Communists. Non-Iraqi representation 13. Important international actors should have observer status at the conference. The UN Special Co-ordinator will have a central role in managing the process. Representatives of the coalition should be balanced with institutions such as the UN humanitarian agencies, the Arab League, OIC, NAM, GCC, IMF, World Bank, EU and neighbouring countries. 'Buy in' by the international community will be essential when looking for donors for Iraq's reconstruction effort. How to manage the process 14. The following are some guidelines of how the process might work: • The final aim of the Conference is to elect an IIA of around 24 • Voting participants at the Conference should be in the order of 300-350, with a balance of 2:1 (internal:diaspora). • All those present at the Conference should be involved in electing members of the IIA, both those from within the country and those from the diaspora. This will ensure that those elected from the diaspora have real following and support from within the country. 15. The system for electing the IIA will need careful thought. Getting a balance for the communities within Iraq will be difficult. There should be reserved places for 1 Assyrian and 1 Turkoman or those communities will be marginalised from the DECLASSIFIED to balane me bemanus or bemo sensitive to communal differences without letting these communal differences dominate and become divisive. Research Analysts Foreign and Commonwealth Office 2 April 2003 DECLASSIFIFN foundations for bringing the country forward into the phase of democracy. Fundamentals The liberation and reconstruction of Iraq will require the cooperation of all the Iraqi people, in their various political and social groups. Every member of the Council must understand that he represents all Iraqis, not just one particular family, tribe, religion or religious or political grouping. He must also acknowledge the requirement to adhere to the following principles which are essential to the success of the ICRD's work and the speed of the operation of democratic transformation in Iraq. • Members of the ICRD do not represent the Government of the USA or the Coalition forces, nor do they represent any specific religious or political group; every member of the ICRD must understand that he represents all Iraqis, and must therefore understand that he has no right to exploit his position on the Council for the benefit of any political organisation or grouping; • Members of the Council must work effectively to reestablish civil organisation within Iraq and to protect the unity of the country; • Members of the Council will be required to protect/preserve public order in the country, and must understand that not everyone who had held positions of authority abused their authority; and that it might be beneficial to allow some people who have behaved wrongly in the past to remain in their positions for a period of time in order to maintain public order and the continued supply of services to the population; • While Council members must accept the importance of maintaining the continuity of government and the provision of government services to the population, they will also be expected to bring about fundamental changes in the nature of the Iraqi government so that it comes to represent all the ethnic, religious and sectarian constituents of the Iraqi people, and the necessity of establishing democratic rule in Iraq. • Duties of the Members of the Council will vary from one member to another, but every one of them will be responsible for liaising with the population in order to establish the immediate and future needs of its various sections and to facilitate the measures that will be needed to maintain general order [ie to keep things runningl, so that every Member will be the appropriate channel for delivering assistance to the population. • Council Members must realise that the Coalition forces will need their cooperation to carry out relief works and to rebuild the country, and this assistance may be by providing translation or coordination services [for communicating with] local officials or different social groups, as well as to identify individuals and groups in particular need of help and to ensure the delivery of aid to them. DECI ASSIFIFO Pe dana be de bammo tonue, brutamy, kills and group punishments; • Respect for the religious, sectarian and ethnic diversity of the population of Iraq in reforming the departments and institutions of the state, and using citizenship as the sole criterion in allocating responsibilities to individuals, avoiding the politics of racial and sectarian discrimination, and working with complete impartiality so as to prevent the usurpation of power by any individual or group over the apparatus of the state; • Accept the citizenship of Iraqis who were forced to live abroad by the policies of the repressive regimes, and to take appropriate measures to facilitate the return of exiles and expatriates, to train them (?) and provide their daily necessities; • To emanate an atmosphere of debate and spread a spirit of tolerance and a readiness to accept the views of others, and to accept the principle of taking decisions by majority, and to move away from an atmosphere of feuding and revenge through the principle of justice and fairness in carrying out the reform of the apparatus of the state; • Priority to be given to extending aid and support to the places and sections of the population that have suffered most in the country, and reform/repair of vital utilities, and giving particular attention to widows, orphans, the disabled and victims of Saddam's regime • Adherance to the principle of equality of rights and duties among all Iraqis, without discrimination between them for any political, [...] religious or sectarian reason. Working Methods • The Council will consist of its present members and whoever may be added to it from inside Iraq after liberation to run the country in accordance with the principles set out above; • Members of the Council will be allocated, according to their specialisations, to committees that will oversee the direction of (each) of the Ministries of the state, or its vital institutions listed in Appendix (1). Each Committee will choose/elect from among its membership at person to coordinate its work; • The Council will meet regularly as required, at least once a month. the Chairman of the Council will be responsible for convening it; • The Council will discuss in its regular meetings matters involving more than one Ministry in order to keep the country's affairs going and to take appropriate decisions and measures to that end; • The coordinators of the ministry committees will meet as required at least once a week to coordinate the work of the ministries and to identify issues of common interest and to implement the decisions of the Council relating to the DECIASSIFIED the situation in the country and any new developments. Work Programme The Ministry Committees will be responsible for implementing reform and abolishing administrative corruption ete and improving the performance and competence of the institutions of the state in the following steps; 1) Removal or suspension of senior administrators on the following grounds: • Person with a criminal record that is not subject to appeal • Involved in widespread administrative corruption • Unqualified • Played a key role in maintaining and protecting the present regime • Used oppressive or humiliating manner in dealing with government employees • Always provided that they can be dispensed with and that the service they are responsible for will not fail without them. 2) Identify the people already in government service best fitted to fill senior management vacancies left by people who have fled or been dismissed or suspended, and the new administrations to be responsible for reforming lower level management under the direct supervision of the Ministry Council; 3) Exert maximum effort to identify competent people who had been removed from or left their jobs both inside and outside Iraq, and encourage them to return to play their part in the process of administrative reform 4) Take measures and establish controls to ensure the protection of the lives of citizens and to work to create an atmosphere of security and stability openness and positive participation in the processes of reconstruction and reform 5) Protection of public and private property as well as the property of the state and its documents/records, including incriminating documents and any that might assist the location of stolen funds and the return of state funds smuggled out by means of the agents of the regime both inside and outside Iraq, whether by individuals, state establishments or companies. DECLASSIFIED 9. Health 10. Local Government 11. Commerce 12. Economy and Finance 13. Awqaf 14. Oil 15. Industry and Minerals 16. Transport and Communications 17. Labour and Social Affairs 18. Public Works 19. Planning 20. Electricity [and water?] 21. Military Industrialisation Organisation 22. Development Council 23. Information and Culture 24. Central Bank DECLASSIFIED Temporary period will be as follows: Civil Administration: Legislature: All laws and decrees that are contrary to human rights and democracy will be repealed; one of the duties of the Military Administrative Governor will be to stand in for the legislature by issuing orders; the committee responsible for the Ministry of Justice will exercise some of the duties of the legislature by annulling, amending or adding laws and decrees. Judiciary: Normal judicial process will continue as normal without government intervention, except where it runs contrary to democratic rule; Special and secret court will be abolished. Executive: Powers will be exercised by the (ministry) committees formed in the ICRD. DECLASSIFIED