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The Brahimi Way
Sending Iraq down the wrong path.


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With June 30 fast approaching, the nature and composition of the new, transitional Iraqi government, which will replace the Coalition Provisional Authority (CPA), has yet to be determined. There are a number of options, and all of them present a fundamental problem for the United States–after June 30 American and Coalition forces will still have responsibility for Iraq’s security, but will no longer have the ultimate authority over Iraqi political affairs. This will leave the new Iraqi government in a position both to second guess, and potentially to thwart, U.S. and Coalition military operations considered necessary to maintain law and order, and to combat the remaining insurgents. This problem will be especially acute if the proposal recently made by Lakhdar Brahimi, U.N. Secretary General Kofi Annan’s representative in Iraq, is adopted. He has suggested that the current Iraqi Governing Council be replaced with a caretaker, technocratic government, effectively under United Nations auspices.

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As Carl von Clausewitz suggested, war and politics are not separate domains. There is little doubt that many, hopefully most, Iraqis would like to build a stable, prosperous and democratic body politic, and recognize that continued U.S. military involvement will be a necessary means to that end for some time to come. Nevertheless, sizable numbers of Sunni and Shiite insurgents, aided by the remnants of Saddam Hussein’s regime and foreign jihadists, remain determined to create chaos, inflict casualties on Coalition forces and drive them out of Iraq. To state the obvious, this presents a difficult challenge at a time when a new government is being established. An excessively heavy-handed response to the continuing attacks, particularly if large-scale civilian casualties result, could well alienate Iraqis who are currently supportive of the Coalition’s mission.

On the other hand, the failure to respond decisively to insurgent attacks, which have grown progressively more brazen and brutal, is also certain to embolden further the anti-democratic forces in Iraq, and to demoralize the Coalition and its Iraqi supporters. Indeed, it is entirely possible that, even today, the Coalition’s willingness to entertain ceasefire negotiations with the Fallujah-based insurgents is convincing numerous Iraqis that, in Osama bin Laden’s famous expression, the United States is a “weak horse.” As a result, the temptation to have the new civilian government micromanage military operations, imposing unrealistic rules of engagement, carries very significant risks–both for the physical safety of U.S. and Coalition forces, and for the ultimate success of their mission. The same risks are posed by politicians, however well meaning or idealistic, playing the role of a “loyal opposition,” criticizing rather than endorsing robust military operations.

This problem, which exists in any democratic body politic, is certain to be exacerbated by the emergence of a U.N.-led technocratic government. Brahimi, and even several members of the current Governing Council, have already blasted the U.S. military response to the Fallujah massacre of American contractors and the attacks of Moqtada Sadr’s “Mahdi” army, as “collective punishment” and the excessive use of force–unfortunate and incendiary rhetoric that ignores the established laws of war. Perhaps more to the point, a U.N.-led mission would raise significant issues regarding the applicable legal regime. On the question of irregular forces, the United States maintains a traditional view of the laws of war, which require humane treatment, but which are otherwise comparatively permissive with respect to counterinsurgency operations. United Nations missions, however, are generally governed by more restrictive rules, as outlined in the 1977 Protocol I Additional to the Geneva Conventions. Although this treaty embodies a number of customary rules of war to which the United States fully subscribes, it also contains many provisions that represent innovations–beneficial to “unlawful” or “irregular” combatants–which the United States has definitively rejected.

As a result, even if the United States insists, as a force protection matter, on following its own rules of engagement, the U.N. authorities could be expected to approach these issues from a fundamentally different perspective. The fact that the U.N. transitional government would have no formal responsibility for security would only make things worse; they would have all the incentives to meddle and grandstand, and none of the accountability for their policy advice. The end result would be both a deterioration in the Iraqi security–as uses of military force are progressively delegitimized–and a further alienation of friendly Iraqis.

All of this suggests that whatever the form taken by a transitional Iraqi government, a controlling U.N. role must be avoided. Although the current “Governing Council” has been riven by factionalism, it has at least succeeded in adopting one of the most progressive constitutions in the Arab world. Warts and all, it continues to enjoy support among a broad swath of the Iraqi public, and it may well remain the best possible arrangement for governing Iraq until elections can be organized. The United Nations, which has a dubious record in managing serious security problems, and which precipitously withdrew from Iraq last year after its headquarters were attacked, has proven itself well able to organize and manage electoral processes. It can, and should, make a contribution in that area. It should have no major role in the actual governance of Iraq, and no voice at all in military matters.

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP. They served in the Justice Department during the Reagan and Bush Sr. administrations.



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