International
law is Unequivocal - Paul Bremer's Economic Reforms are
Illegal
By
Naomi Klein, Published on Friday, November 7, 2003 by the
Guardian/UK
Bring
Halliburton home. Cancel the contracts. Ditch the deals. Rip up the rules.
Those are just a few of the suggestions for slogans that could help unify the
growing movement against the occupation of Iraq. So far, activist debates have
focused on whether the demand should be for a complete withdrawal of troops,
or for the United States to cede power to the United
Nations.
But
the "troops out" debate overlooks an important fact. If every last Soldier
pulled out of the Gulf tomorrow and a sovereign government came to power, Iraq
would still be occupied: by laws written in the interest of another country;
by foreign corporations controlling its essential services; by 70%
unemployment sparked by public sector layoffs.
Any
movement serious about Iraqi self-determination must call not only for an end
to Iraq's military occupation, but to its economic colonization as well. That
means reversing the shock therapy reforms that US occupation chief Paul Bremer
has fraudulently passed off as "reconstruction", and canceling all
privatization contracts that are flowing from these
reforms.
How
can such an ambitious goal be achieved? Easy: by showing that Bremer's reforms
were illegal to begin with. They clearly violate the international convention
governing the behavior of occupying forces, the Hague regulations of 1907 (the
companion to the 1949 Geneva conventions, both ratified by the United States),
as well as the US army's own code of war.
The
Hague regulations state that an occupying power must respect "unless
absolutely prevented, the laws in force in the country". The coalition
provisional authority has shredded that simple rule with gleeful
defiance. Iraq's constitution
outlaws the privatization of key state assets, and it bars foreigners from
owning Iraqi firms. No plausible argument can be made that the CPA was
"absolutely prevented" from respecting those laws, and yet two months ago, the
CPA overturned them unilaterally.
On
September 19, Bremer enacted the now infamous Order 39. It announced that 200 Iraqi
state companies would be privatized; decreed that foreign firms can retain
100% ownership of Iraqi banks, mines and factories; and allowed these firms to move 100% of their
profits out of Iraq. The Economist declared the new rules a "capitalist
dream".
Order
39 violated the Hague regulations in other ways as well. The convention states
that occupying powers "shall be regarded only as administrator and usufructuary of public buildings, real
estate, forests and agricultural estates belonging to the hostile state, and
situated in the occupied country. It must safeguard the capital of these
properties, and administer them in accordance with the rules of
usufruct."
Bouvier's
Law Dictionary defines "usufruct" (possibly the ugliest word in
the English language) as an arrangement that grants one party the right
to use and derive benefit from
another's property "without altering the
substance of the thing". Put more simply, if you are a housesitter, you
can eat the food in the fridge, but you can't sell the house and turn it
into condos. And yet that is just
what Bremer is doing: what could more substantially alter "the substance" of a
public asset than to turn it into a private one?
In
case the CPA was still unclear on this detail, the US army's Law of Land
Warfare states that "the occupant does not have the right of sale or
unqualified use of [non-military] property". This is pretty
straightforward: bombing
something does not give you the right to sell it. There is every indication
that the CPA is well aware of the lawlessness of its privatization scheme. In
a leaked memo written on March 26, the British attorney general, Lord
Goldsmith, warned Tony Blair that "the imposition of major structural economic
reforms would not be authorized by international
law".
So
far, most of the controversy surrounding Iraq's reconstruction has focused on
the waste and corruption in the awarding of contracts. This badly misses the
scope of the violation: even if the sell-off of Iraq were conducted with full
transparency and open bidding, it would still be illegal for the simple reason
that Iraq is not America's to sell.
The
Security Council's recognition of the United States' and Britain's occupation
authority provides no legal
cover. The UN resolution passed in May specifically required the
occupying powers to "comply fully with their obligations under international
law including in particular the Geneva conventions of 1949 and the Hague
regulations of 1907".
According
to a growing number of international legal experts, that means that if the
next Iraqi government decides it doesn't want to be a wholly owned subsidiary
of Bechtel and Halliburton, it will have powerful legal grounds to
renationalize assets that were privatized under CPA
edicts.
Juliet
Blanch, global head of energy and international arbitration for the huge
international law firm Norton Rose, says that because Bremer's reforms
directly contradict Iraq's constitution, they are "in breach of international law and are likely not
enforceable". Blanch argues that the CPA "has no authority or
ability to sign those [privatization] contracts", and that a sovereign Iraqi
government would have "quite a serious argument for renationalization without
paying compensation". Firms facing this type of expropriation would, according
to Blanch, have "no legal remedy".
The
only way out for the administration is to make sure that Iraq's next
government is anything but
sovereign. It must be pliant
enough to ratify the CPA's illegal laws, which will then be celebrated as the
happy marriage of free markets and free people. Once that happens, it will be
too late: the contracts will be locked in, the deals done and the occupation
of Iraq permanent.
Which
is why anti-war forces must use this fast-closing window to demand that the
next Iraqi government be free from the shackles of these reforms. It's too
late to stop the war, but it's not too late to deny Iraq's invaders the myriad
economic prizes they went to war to collect in the first
place.
It's
not too late to cancel the contracts and ditch the
deals.
