Legality of Changing Iraq Is Questioned
WASHINGTON (AP) -- The old Iraq wasn't particularly hospitable to foreign investors, but L. Paul Bremer III, the U.S. administrator in the new Iraq, is making it clear that times have changed - and a new era for outside entrepreneurs is at hand.
"This Order replaces all existing foreign investment law," Bremer said in a directive issued last September as part of the Coalition Provisional Authority's ongoing makeover of the nation Saddam Hussein once ruled.
Other U.S.-initiated decrees for Iraq include a free market economy, a 15 percent tax ceiling and a new banking code.
But questions are being raised about whether these and other moves are consistent with international law, particularly the Geneva conventions of 1949 and the Hague Resolutions of 1907, both ratified by the United States.
The Hague accord, for example, directs occupying powers to respect, "unless absolutely prevented, the laws in force in the country."
Section 4 of Bremer's September directive, known as Order 39, states: "A foreign investor shall be entitled to make foreign investments in Iraq on terms no less favorable than those applicable to an Iraqi investor."
The changes planned for Iraq aren't only about economics. On the political front, the Bush administration envisions a one-person, one-vote system that it hopes will serve as a model for other Arab countries.
David Scheffer, a Clinton-era ambassador-at-large for war crimes, believes the administration, along with co-occupier Britain, is carrying things too far.
"The whole point of an occupation is to create a temporary stabilizing system on a foreign society and then transform that very quickly to sovereign status," Scheffer said in an interview.
Scheffer, now a Georgetown University professor, said occupation law was designed to discourage countries which may be tempted to invade, occupy and transform another country.
They can "tinker around the edges" but not much more, he said in an article in a forthcoming issue of the American Journal of International Law.
Without restraints, "the door would be wide open for abuse by aggressive and benevolent armies alike."
Bush administration officials say U.S. actions in Iraq were authorized in general terms by U.N. Security Council resolution 1483, adopted May 22.
It permits occupying nations in Iraq "to promote the welfare of the Iraqi people" by "working toward the restoration of conditions of security and stability ... in which the Iraqi people can freely determine their own political future."
Beyond that, a State Department official said basic decision-making in Iraq these days is in the hands of the 25-member Iraqi Governing Council and the ministries under its control.
The council is acquiring more power each day from the Coalition Provisional Authority, which, in any case, is due to hand over authority to Iraqis on June 30, the official said.
At that time, Iraqis will be free to reverse any dictates by the provisional authority, the official noted. Left unchecked in the interim, Iraq could once again revert to a "bastion of terrorism," said the official, who spoke on condition of anonymity.
Existing occupation laws may have been reasonable early in the past century but not in the terrorism era, the official added.
A Jan. 10 New York Times article said there are few precedents to guide experts on the legality of U.S. actions in Iraq because the number of self-declared occupiers is small.
It pointed out that the United States did not claim occupier status in Germany and Japan after World War II because both had surrendered.
The Times account said coalition concerns about legal overreach in Iraq prompted the administration to scrap a plan to privatize inefficient state-owned enterprises. Decisions on those issues will be made by Iraqis.
Scheffer says the Iraq's occupiers could be subject to civil or criminal liability under the Hague and Geneva accords.
They have failed, he wrote, "to establish and maintain public order," to restore in a timely manner electricity and other services, and "to create unemployment on a massive scale" by demobilizing Saddam's police and military.
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