The Guardian has printed an article by Naomi Klein which adds fuel to the fairly widely-held perception that the occupation authority in Iraq is acting illegally by indulging in what she calls economic colonisation or, in less emotive language, the privatisation of certain state-owned companies (none of which concern “natural-resources” ie oil) previously run as private fiefdoms by Baath Party loyalists.
As Klein explains in her article she seeks to show
that Bremer’s reforms were illegal to begin with.
They clearly violate the international convention governing the behaviour 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
There are a number of holes in her argument which I think should be pointed out before any overexcitable Guardian readers attempts to do a Tatchell on George Bush when he visits london later this month.
First, Klein seeks to persuade us that the decision to privatise the state-owned companies was Bremer’s doing alone, nowhere in her article does she note that the Iraqi Governing Council actually came up with the idea. I think forgetting to mention that fact exposes the hole in her argument that Iraq has been economically colonised.
Secondly, the Hague Regulations are probably not relevant. Article 2 of the regulations states that the Regulations do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention. I have yet to find anything which shows that Iraq signed the Regulations but I suspect it did not, being a part of the Ottoman Empire at the time and therefore not a sovereign state capable of signing international treaties.
Thirdly, The Geneva Convention was drawn up for the purposes of giving directions for ameliorating the condition of the wounded in battle and the treatment of prisoners of war. I couldn’t find anything in the Convention relating to the privatisation of previously state-owned companies.
In search of further evidence for her assertions Klein quotes a London based international Arbitrator, Juliet Blanch, who states that the occupation reforms are
“in breach of international law and are likely not enforceable”.
the CPA “has no authority or ability to sign those [privatisation] contracts”, and that a sovereign Iraqi government would have “quite a serious argument for renationalisation without paying compensation”. Firms facing this type of expropriation would, according to Blanch, have “no legal remedy”.
In light of the points I made about the two international treaties above it’s not obvious which authority or authorities Blanch seeks to rely on in support of her statement (Klein certainly doesn’t tell us). Perhaps she is thinking of the US Army’s Law of Land Warfare which, according to Klein, prohibits the sale of non-military property.
Whichever law or laws Blanch seeks to rely on Klein would do well to consider that there is an undeniable argument that United Nations Security Council Resolution 1483 recognises the Governing Council as the legitimate government of Iraq for the time being. Clause 9 states that the UN
SUPPORTS the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognized, representative government is established by the people of Iraq and assumes the responsibilities of the Authority;
Such an administration would have the right under international law to carry out provisional economic reforms if they were in the interests of the country as a whole. In my opinion the formation of the Governing Council means that Klein’s disembodied quotation of Lord Goldsmith’s out-of-date advice given in March 2003 that “the imposition of major structural economic reforms would not be authorised by international law” is not only meaningless but disingenous.
I suspect that Resolution 1483 might provide us with a clue as to why the Arbitrator, quoted above, believes the current privatisation programme might not be enforceable after the occupation ends. This is how it works – when an internationally recognised and sovereign government comes to power in Iraq after the occupation ends it will be legally entitled to disregard the decisions made by it’s predecessor, the Governing Council, which, as we have seen, enjoys only interim status under international law. It may well decide to re-nationalise the companies in question and it would be perfectly capable of doing so legally and without compensation to the new private ‘owners’ of the companies. That’s only one part of the story though.
The important question, ignored by Klein but which needs answering, is why a post-occupation government would actually want to vote to restore the pre-occupation status quo with respect to these companies. Inefficient, badly-run bodies which existed in large part to provide relatives and supporters of Saddam Hussein with an easily-plunderable resource are hardly a desirable state of affairs or in the interests of the Iraqi people.
The Iraqi’s know full-well that their economy was appallingly mismanaged under the Saddam regime and that restoring the pre-occupation economic status quo can only lead to poverty and corruption. That’s why I can’t forsee a post-occupation government giving serious thought to going “back to the future” despite Klein’s wrongheaded huffing and puffing.