PART III POSTCONFLICT ADMINISTRATIONS IN PRACTICE
Chapter 11. Institution-building and Democratic Governance
A. From Interim to Elected Institutions
4. Iraq: from Foreign Occupation to National Institutions
The creation of democratic institutions based on free and fair elections was not expressly included in the relevant Security Council Resolutions or in the first CPA regulations. One of the first indications of the holding of elections is contained in Resolution 1546, in which the Security Council confirmed the importance of holding direct democratic elections and welcomed the effort of the Interim Government in working toward democratic institutions.1177 As in Afghanistan, the political transition process was characterised by two phases: an interim and a transitional phase. The first interim phase comprised the establishment of a
‘Governing Council of Iraq’, while an Iraqi ‘Interim Government’ would be created in a second stage. Two months after the formation of the CPA, the appointed ‘Governing Council of Iraq’ was recognised as the principal body of the Iraqi interim administration pending the establishment of an internationally recognised representative government.1178 The CPA immediately included in the regulation a provision that the Governing Council and the CPA would consult and coordinate on all matters involving the temporary governance of Iraq. The
1175 Report of the Secretary-General, UN Doc. A/60/712–S/2006/145, supra note 152, para. 7.
1176 See Report of the Secretary-General, UN Doc. A/61/799–S/2007/152, supra note 720.
1177 SC Res. 1546, UN Doc. S/RES/1546 (2004).
1178 CPA Regulation Number 6, CPA/REG/13 July 2003/06 (13 July 2003).
creation of an interim Iraqi Government was a necessary intermediate step for the legitimacy of the entire operation and the institution-building process. It was unimaginable for the CPA to have been solely responsible for the administration of the territory pending the organisation of free and fair elections.
On 8 March 2004, the Governing Council of Iraq adopted the ‘Law of Administration for the State of Iraq for the Transitional Period’ (the ‘Transitional Administrative Law’ or TAL),1179 aimed at establishing the legal framework for the Iraqi Government during transition and until the election of the govern- ment. The TAL came into force on 28 June 2004, the date on which, according to Security Council Resolution 1546, the Coalition occupation of Iraq came to an end. The CPA, which had administered Iraq since the fall of the Ba’athist regime, was consequently dissolved. The TAL was designed to function as a sort of interim constitution1180 and contained details of further political develop- ments. The ‘interim’ phase was the formation of an ‘Iraqi Interim Government’, appointed by the ‘Iraqi Governing Council’ and the CPA to assume authority in June 2004, after the dissolution of the CPA. The ‘Iraqi Interim Government’
assumed authority over the country, and governed Iraq between June 2004 and January 2005 until the holding of direct elections leading to the second
‘transitional’ phase.
On 30 January 2005, elections were held for the National Assembly, which was mandated to draft the permanent constitution by no later than 15 August 2005. The overall conduct of the election was in accordance with international standards, although the overall turnout was low, especially among Arab Sunnis.1181 Following these elections, the ‘Iraqi Interim Government’ was replaced by the
‘Iraqi Transitional Government’ and the Transitional Assembly was convened to draft the constitution.1182 Following the positive outcome of the referendum on the constitution, general elections were held on 15 December 2005 for a permanent 275-member Iraqi Council of Representatives.1183 The overall turn- out was far larger than in the January 2005 elections and no ‘major’ incidents
1179 CPA, ‘Law of Administration for the State of Iraq for the Transitional Period’ (8 March 2004).
1180 Critics nevertheless disapproved the incorporation of provisions relating to Islam as a source of legislation, while providing that no law could be adopted which contradicted the universally agreed tenets of Islam (see: UNAMI-OHCHR, ‘Building and Strengthening the National Human Rights Protection System in Iraq: The Human Rights Programme’ (December 2004–December 2006), p. 13).
1181 Report of the Secretary-General, UN Doc. S/2005/141, supra note 553, para. 5.
1182 Report of the Secretary-General pursuant to paragraph 30 of Security Council Resolution 1546 (2004), UN Doc. S/2005/585 (7 September 2005), para. 4.
1183 Report of the Secretary-General pursuant to paragraph 30 of Security Council Resolution 1546 (2004), UN Doc. S/2006/137 (3 March 2006), para. 3.
were reported on Election Day, apart from several reports of violence.1184 An Independent Electoral Commission charged with ensuring the fairness of the process supervised the elections.1185
The main criticisms of the electoral process concerned the timetable and the involvement of local actors. A stable environment is indeed a prerequisite to the holding of elections, but the reliance on various interim or transitional institutions caused great distrust among the local population. In addition, no local or provincial elections were held before the nation-wide parliamentary elections.1186 Nevertheless, the bases of a democratic system, as well as the prin- ciple of holding elections on a regular basis, were laid. The major issue in the Iraqi institutional reconstruction process remains the security aspect which, of course, greatly influences the capacity of the population to participate freely in the electoral process. Indeed, the general perception of the fairness of the elec- tions conducted has to be considered with regard to human rights such as the freedoms of association and expression, the respect of which inevitably influences the fairness of the electoral process.
B. The Context of Elections: Freedom of Expression and Freedom of Association
The practice pertaining to institutional reconstruction in post-conflict situations also demonstrates that the freedoms of expression and of association are basic pillars of democratically elected institutions.1187 This is not entirely surprising since both freedoms are important conditions of the holding of free and fair elections.
The freedom of association and the freedom of expression have been considered by one author as “essential preconditions for an open electoral process”.1188 The respect of these rights cannot therefore be disconnected from free and fair elec- tions.1189 The General Assembly reaffirmed that, “determining the will of the
1184 Ibid., paras. 4 and 11.
1185 CPA Order No. 92, ‘The Independent Electoral Commission of Iraq’, CPA/ORD/31 May 2004/92 (31 May 2004).
1186 See for a critique on the election timetable Diamond, L., ‘Building Democracy after Conflict:
Lessons from Iraq’, 16 Journal of Democracy 9 (2005).
1187 See in general: Cogen and De Brabandere, supra note 1096.
1188 Franck, supra note 335, p. 61.
1189 See Human Rights Committee General Comment 25 (57), The right to participate in pub- lic affairs, voting rights and the right of equal access to public service (Art. 25), UN Doc.
CCPR/C/21/Rev.1/Add.7 (1996). In its General Comment 25, the Human Rights Committee confirms, in order to ensure the full enjoyment of rights protected by Article 25, the importance of “free communication of information and ideas about public and political issues between citizens, candidates and elected representatives, [which] implies a free press and other media
people requires an electoral process that provides an equal opportunity for all citizens to become candidates and put forward their political views, individually and in co-operation with others”.1190 The European Court of Human Rights has similarly emphasized the importance of the respect of these rights in an electoral process, especially in relation to political parties.1191
In fact, already in the case of West Irian, the Agreement concluded between Indonesia and the Netherlands placed an emphasis on these rights, as it provided that “[t]he UNTEA and Indonesia will guarantee fully the rights, including the rights of free speech, freedom of movement and of assembly, of the inhabitants of the area”.1192 This could be seen as an early form of emphasising the importance of these rights in the context of democratic governance under foreign administra- tion, as the West Irianese were asked to vote for the future status of the territory in a referendum. The subsequent practice which we will discuss further below provides evidence of the weight of these rights in the current context.