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The Future of Iraq: The

The Future of Iraq: The International Perspective.B ETHELHEM KETSELA MOULAT AND SHAWN LEE RATHGEBERUniting Behind the United Nations in IraqIraq’s Future May Require the UN to Take a Greater Role in ReconstructionFOR many years now, the role of theUnited Nations in Iraq has beencontroversial. In the 1990s, the UNwas the forum through which thedevastating regime of sanctions was imposedon the Saddam Hussein dictatorship. Aresult of this program was the heavilycriticized Oil-For-Food Program in 1996.Similarly, it is also arguable that the UNresolutions authorizing the disarming of IraqThe memorial service for Sergio Vieira de Mello in Baghdad.PHOTO: TIMOTHY SOPP/UNprovided the legitimization for the Anglo-American coalition that invaded the countryin 2003, although the Security Councilvetoed a formal authorization of the war.At the outset of the invasion therelationship between the UN and the UnitedStates was strained, with no explicit UNsupport for the invasion. Yet the invasiontook place regardless, leaving many critics ofthe UN to triumphantly claim that itslegitimate and credible role as aninternational body capable of enforcingcollective security, even when such securityis breached by the world’s superpowers, hadbeen severely tarnished.Despite initial differences of opinionbetween the invading coalition and the UN,it was not long before the latter was to beactive within war torn Iraq: on August 14,2003 the Security Council of the UnitedNations passed resolution 1500 to establishthe United Nations Assistance Mission forIraq (UNAMI), which entailed the delivery ofhumanitarian aid and the engagement ininstitution building and reconstruction.However, when the UN compound inBaghdad was struck by a massive truckbomb on August 19, killing 22 UN staffincluding the mission chief Sergio Vieira deE-mail Moulat is a Research Associate at IPOA.E-mail Rathgeber is a Research Associate at IPOA.Mello, then-Secretary General Kofi Annanwithdrew almost all UN personnel from Iraqafter reviewing the security situation.The UN got involved in Iraq once againin 2004 following Security CouncilResolution 1546, which introduced the twomain areas of concern in Iraq that theUnited Nations has had since that time. Thefirst is granting authorization for theMultinational Force Iraq (MNF-I) to operatewithin the country. This was in view ofthe fact that Iraq now had a sovereigngovernment and at the request of thethen Iraqi Prime Minister Dr. AyadAllawi. The authorization hassubsequently been reviewed andrenewed on a yearly basis. The secondis the operation of United Nationsmissions in Iraq, Jordan, and Kuwait,under the auspices of the UNAMI.Five years have passed since thebeginning of the invasion and clearlythe tables have turned as it is now moreevident than ever before that the UNand the U.S. are working side by side inan effort to establish a stable, peaceful,secular and democratic Iraqi state.The UN has two primary roles inIraq—humanitarian and political. Withrespect to its humanitarian role, which isarguably less controversial than the politicalone, the UN has been providing support tothe government of Iraq in delivering basicsocial services through its cluster systemapproach, which comprises of some 16 UNagencies, funds and programs specialized inthe various sectors to be rebuilt. Thesesectors include agriculture and food security,education, health and nutrition, refugeesand IDPs, infrastructure, governance andsupport for the electoral process.Within the framework of the clusterapproach aforementioned, the UnitedNations Development Programme (UNDP)and the United Nations High Commissionerfor Refugees (UNHCR) are two of the mostactively involved UN agencies in thereconstruction and development work that isbeing undertaken in Iraq.Among the extensive number of currentprojects is the Iraqis Rebuilding IraqProgramme through which the UNDP, inclose collaboration with the IraqiGovernment and the InternationalOrganization of Migration, is assisting theprocess of identification and placement ofqualified expatriate professionals in the Iraqilabor market so as to accelerate the ongoingrehabilitation efforts of the Iraqi economy.This particular initiative is exemplary of theUN’s intention of promoting strategies whichare meant to enhance local and nationalownership of all ongoing relief andreconstruction strategies, giving thusopportunity for the Iraqi people as opposedto being strategies dictated from above withlittle concern for the needs of beneficiaries.Other important UNDP-ledhumanitarian initiatives include thosepertaining to the reconstruction of essentialhumanitarian infrastructure and restorationof basic services. These include projectsconcerning water and sanitation,reconstruction of hospitals and communitymarkets and the installation of electricitygenerators and transmission equipment.Similarly, in the area of transportationthe UNDP has been providing support in thedevelopment of ports, waterwaysmanagement practices and the rehabilitationof the national civil aviation infrastructure.Moreover, the UNDP has been engaged in aneffort to remove UXOs (UnexplodedOrdnance) which obstruct safe commute aswell as reconstruction work throughout Iraq.On the more sensitive issue of thepolitical role of the UN, past majorachievements include the latter’scontribution to the formation of the firstfunctional and democratically-elected Iraqiparliament in 40 years and its role in thedrafting of the 2005 Iraqi Constitution. TheUN has also helped in the implementation ofthe two rounds of general election and anational referendum on the Constitution.Furthermore, UNAMI has providedassistance in the planning process of thelegislative agenda of the Independent HighElectoral Commission and has been able toobserve the selection of the nine Commissionersby the Council of Representatives.However, the support of the UN and theU.S. in the establishment of an Iraqi electedgovernment has not been able to strengthenthe government’s legitimacy as resistancecontinues to pose security problems fromwithin, ultimately hindering the successfulimplementation of current and futurehumanitarian assistance initiatives.It is clear that a long-lasting peace inIraq will only be achieved through a wellnegotiated and inclusive political settlement.Therefore, it is plausible to argue that thereis scope for the UN to play a significantpeace brokering role in such a politicalsettlement process; however, this will bepossible only if the UN is allowed to take thelead as a neutral body and if it then engageswith all key actors. Ultimately, if thishappens, the humanitarian initiatives of theUN will bear even more fruitful futureoutcomes than now.20JOURNAL OF INTERNATIONAL PEACE OPERATIONS — — VOLUME 3, NUMBER 6 : May-June 2008

Government Affairs.THE U.S. Department of Defenserecently released a memo directingcommanders to apply Uniform Codeof Military Justice (UCMJ) jurisdiction incertain circumstances involving civilians,and currently the first civilian contractor isbeing prosecuted under military law sincethe Vietnam War. The Departments ofDefense and State, and USAID have beenworking toward a Memorandum ofUnderstanding to develop improved uniformstandards and requirements for contractors.Congress continues to call for hearings oncontractor oversight and accountability, yetthe MEJA Expansion Act continues toremain stuck in the Senate.Looking at the overall report card, theDepartment of Defense, in coordination withState and USAID, is trying to take specificinitiatives to improve its acquisitionprocedures and clarify the role and standingof its contractors. In his testimony to theSenate Armed Services Committee in earlyApril, Jack Bell, the Deputy Under-Secretaryof Defense for Logistics and MaterielReadiness, stated that the Memorandum ofUnderstanding and other inter-agencyregulations mandated by Sections 861 and862 of the National Defense AuthorizationAct (NDAA) FY08 should be executed by theJuly 1, 2008 deadline. However, efforts atimprovement might prove to be long andpainful. Recent embarrassments such as afraudulent ammunitions contract and therecent Defense Procurement Policy Reportciting the Army’s failure on testing andapproval of first articles for over half of itsbody armor contracts no doubt reveal this.Moreover, attempts to clarifyprocedures and jurisdiction for handlingmisconduct by contractors in contingencyoperations have resulted in an even moreconfounding picture. The Department ofJustice has been repeatedly criticized for itsabsence in pursuing criminal cases under thejurisdiction given to it by the currentMilitary Extraterritorial Jurisdiction Act(MEJA) passed in 2000. Testifying beforeCongress in early April, the Deputy AssistantAttorney General for the Department ofJustice Criminal Division divulged (withoutproviding the number of total referrals it hadreceived) that only twelve federalindictments under MEJA have occurredsince it was originally passed.In the face of the complacency of theDepartment of Justice and the increasingfrustration and confusion of troops on theground who often work alongside securitycontractors, it is no surprise that thePentagon came forward with its March 10thmemo. The memo asserted UCMJjurisdiction over Defense Departmentcivilian employees and contractors incontingency operations in situations whereoffenses have not been pursued by theDepartment of Justice or action was stillpending. It was perhaps the first attempt,albeit a vague a one, to reinforce the changesmade to the UCMJ in October 2006 thatallowed for UCMJ jurisdiction over personsaccompanying U.S. armed forces in bothdeclared war and contingency operations.It is unclear whether in publishing thismemo, Defense fully anticipated thepotential outcomes that would arise. Withwhat was seemingly a balanced attempt totake action without stepping on the authorityof U.S. federal jurisdiction, myriad legal andpractical challenges were unleashed whenless than a month later the first activeprosecution of a civilian contractor in Iraqoccurred. Alaa Mohammad Ali, a dualCanadian-Iraqi citizen who served as atranslator for the U.S. Army, was accused ofstabbing another contractor on a U.S. base inIraq. Should this case go to trial in a militarycourt, it will both once again raise thecontroversial issue of prosecuting civiliansunder military law and bring up questions ofwhether the military is prepared andequipped to handle the sheer number ofpotential cases that this precedent could set.Mr. Ali’s non-American citizenship only addsanother layer to this already complex case.Looking to Congress, clarification andguidance do not appear to be in sight as longas the Presidential election dominates thescene. There has certainly been no shortageof congressional hearings by the variousgovernment oversight, foreign relations, andarmed services committees andsubcommittees over the past few monthsduring which federal agencies are chastisedfor their poor acquisition and oversightprocesses. However, it is not enough forCongress to criticize and then pass the buck.Partisan politics threaten necessary firststeps such as passing the MEJA ExpansionAct or creating the Commission on WartimeContracting that was mandated in the NDAAFY08. The rule of construction added to theMEJA Expansion bill passed by the Housethat exempts intelligence activitieschallenges both its ability to be passed in theSenate and the bill’s potential effectiveness ifit were to be passed. As for the Commission,with two appointees made by the President,it is doubtful if any action will be taken onthat front prior to the November election.The lack of direction in developing aunified strategy for regulating and ensuringM ELINDA BAKERMilitary Law on TrialThe First Civilian Contractor to be Prosecuted Under UCMJ Since Vietnamlegal accountability for contractors incontingency operations poses a majorproblem for all stakeholders. The possibilitythat the application of military law tocivilians will be struck down in the future, asit was decades ago, is very real. The DFARrules continue to emphasize that contractorsare not part of the armed services, do notcarry out combat missions, are subject to therules on the use of force rather the militaryrules of engagement, and bear the risk ofdetermining which set of laws takeprecedence, including those of the hostcountry. Given these continued designations,it is difficult to determine whether theOctober 2006 UCMJ amendments will beable to hold-up given the traditional civilmilitarylegal distinction.In the face of an absent Department ofJustice, striking down military jurisdictionwould continue to perpetuate theunacceptable lack of legal accountability thatthe U.S. has been struggling with for the pastseveral years. On the other hand, using themilitary justice system to investigate everyallegation of wrongdoing is at best burdensomeon a practical level. At worst, the U.S.military is setting a dangerous precedent inhaving a second-country military play judgeto a third-country national when a hostcountry’slegal system is unavailable. In Iraq,CPA Order 17, which currently provides non-Iraqi contractors immunity from Iraqi law,will run out at the end of 2008. Withresentment from Iraqi officials, the U.S.’sinability to establish a legal solution thatfalls in line with the values of its legal systemcould come back to haunt it in the future.U.S. legislators must recognize that theuse of contractors in contingency operations,particularly private security contractors, is areal and complex situation that requiresproactive solutions. Passing effective MEJAlegislation can provide the JusticeDepartment with FBI investigative resourcesand required reporting mandates that canhelp it to become the necessary legal outletthat should be handling these cases in thefirst place. On the front side, Congress needsto push for better regulations that help weedout unqualified contractors before problemsarise. If the U.S. government and militarycannot come up with a more closelyintegrated approach to acquisition,oversight, and accountability, problems willcontinue to slip through the cracks and theblame game will continue indefinitely.Email mbaker@ipoaonline.orgThe author is a Research Associate at IPOA.JOURNAL OF INTERNATIONAL PEACE OPERATIONS — — VOLUME 3, NUMBER 6 : May-June 200821

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