Forming the Post-Saddam Government

The invasion of Iraq was an initial military success and led to complete destruction of Saddam Hussein's regime. The military forces established the Coalition Provisional Authority (CPA) on April 21, 2003, citing UN Security Resolution 1483 as justification for its assumption of governmental control. Despite violence, the Interim Governing Council of Iraq signed the Transitional Administrative Law (TAL) on March 8, 2004, which served as the interim government's working constitution. The TAL called for the CPA to transfer power to the interim government by June 2004, on condition that national elections be held no later than January 31, 2005.

The Interim Government

The TAL stipulated that Iraq be governed as a democratic republic according to federal principles, with government power shared between central and regional authorities based upon "geographic and historical realities ... and not upon origin, race, ethnicity, nationality, or confession." The document further established essential human rights for citizens, and required the Transitional Government end the "vestiges of the oppressive acts of the previous regime arising from forced displacement, deprivation of citizenship, expropriation of financial assets and property, and dismissal from government employment for political, racial, or sectarian reasons." Islam was recognized as both the official religion of Iraq and a source of legislation, and both Arabic and Kurdish were recognized as the country's official languages.

The CPA transferred power to the interim government on June 28, 2004. However, continued cooperation efforts by the Iraqi interim government to aid US military forces was the basis for harsh criticism and led to claims that interim Prime Minister Iyad Allawi was a "puppet" of the US government. JURIST Contributing Editor Marjorie Cohn argued that this military cooperation was a failed policy that injured the legitimacy of both governments and caused extensive bloodshed:

Working hand-in-glove with the U.S. government, interim puppet prime minister Iyad Allawi helped to soften up the rebels by declaring martial law throughout most of Iraq. His authority came from legislation the human rights minister characterized as "very similar to the Patriot Act of the United States." It enables Allawi to conduct extensive surveillance, impose cordons and curfews, limit freedom of movement and association, and freeze bank accounts and seize assets ... Bush's aggressive war against the people of Iraq promises to kill many more American soldiers and untold numbers of Iraqis. Nuremberg prosecutor Justice Jackson labeled the crime of aggression "the greatest menace of our times." More than 50 years later, his words still ring true.
Despite continuing violence in November 2004, the first election of the National Assembly was scheduled for January 30, 2005. Iraqi political parties had mixed responses to the coming elections. The United Iraqi Alliance (UAI), a coalition of 23 Shia groups led by Ayatollah Ali Sistani, announced a list of 228 candidates in December 2004. However, the Iraqi Islamic Party, the country's largest Sunni political group, announced that it would not participate in the elections. Despite sectarian divisions, the UN Assistance Mission for Iraq reported that over 6,000 candidates registered for the election by December 27, 2004.

Though violence reportedly escalated on the eve of the election, the Independent Electoral Commission of Iraq estimated voter turnout to be between 60 and 75 percent, yet with a reportedly low turnout among Arab Sunni voters. The UIA received 48 percent of the vote, the Democratic Patriotic Alliance of Kurdistan (DPAK) received 26 percent and the Iraqi List, sponsored by Allawi, received 14 percent.

The Iraqi Constitution

The new National Assembly was charged primarily with ensuring that a constitution was drafted and presented for a public referendum by October 15, 2005. The Assembly formed a constitutional drafting committee, originally composed of 55 members, of whom 28 were from the UIA and 15 were from the DPAK. A perceived under-representation of Sunni interests brought political controversy, but the committee eventually reached a compromise with Sunni leaders by creating an additional 15 positions with voting rights for them. However, continuing Sunni objections resulted in delays in the drafting process and caused the committee to miss its initial drafting deadline.

On August 25, 2005, the committee presented a draft constitution to the National Assembly, inspiring large protests from Arab Sunnis who claimed that the draft was pushed through the committee by a Shia-Kurdish majority. Sunni opposition to the draft resulted in few changes from the version presented in August, other than a reference to Iraq as a founding member of the Arab League. However, less than a week before the referendum, Shia and Kurdish leaders agreed to establish a constitutional review commission to draft possible amendments for parliamentary and public approval. The successful agreement increased Sunni support for the constitution — and results of the October 15 referendum indicated 79 percent popular approval for the constitution, as confirmed by the UN Electoral Division.

Following the adoption of the Iraqi Constitution, new elections were held in December 2005. These elections created Iraq's first permanent government, amid several reports of violence. Despite allegations of fraud by Sunnis and secular Shia groups, by February 2006 Iraqi officials and the International Mission for Iraqi Elections confirmed the results. The new legislature, the Council of Representatives, created a constitutional review committee in September 2006, responding to Sunni concerns regarding the federalist nature of the Iraqi government. Over sectarian objections, the Council approved a bill in October 2006 that increased the federal power of the Iraq government and provided for the possibility of dividing Iraq into distinct regions — a prominent concern amongst Sunni lawmakers due to the risk that dividing the country would allow majority sectarian groups to maximize their political influence.

Continuing Conflicts

Article 140 of the Iraqi Constitution, which stipulates that the government must remedy the ethnic repression under Saddam Hussein's regime, has been a source of continued ethnic division in Iraq's post-invasion government. JURIST Contributing Editor Haider Ala Hamoudi used the Iraq city of Kirkuk as an example to highlight the political turmoil caused by Article 140:

Almost since the day that Saddam's Ba'ath regime fell, the question of what to do about Kirkuk has remained unanswered. The Kurdish authorities in Iraq's north claim (correctly) that Saddam Hussein engaged in a process of forced Arabization of this historically multiethnic city. They therefore call for this process to be reversed, for the population to revert back to what it was in 1957, and then for a referendum to be held in Kirkuk to determine whether or not its population would choose to join the Kurdish autonomous zone in northern Iraq, a referendum that the Kurds would almost certainly win if held on that basis. The extent of Kurdish influence in the Iraq constitution is apparent by the fact that there is an Article in the Constitution, Article 140, that calls for the implementation of the Kurdish solution.

Naturally, this notion of turning back the clock, and reversing decades of population change, has not sat well with those who would have to be forcibly removed in order to realize it, mainly the Arab and Turkoman populations. They have resisted the implementation of Article 140 largely successfully, to Kurdish dismay. What has resulted has been something of a de facto "Kurdization" of Kirkuk, with tens of thousands of Kurds returning to Kirkuk over the past half decade, but with no substantive implementation of Article 140. The question of Kirkuk has arisen several times, most notably in the provincial elections last year, but for the most part the problem has been met with procrastination rather than decision making on what to do about it by forming committees to study an issue or by delaying an election pending further developments and the like.

Despite attempted compromises, sectarian strife and violence have continued in recent years. A controversial attempt to reform Iraqi election laws and discourage strict religious voting blocks was rejected in July 2008 and only approved in November 2009. Additional concessions were made to Sunni lawmakers in December 2010 by increasing the total number of seats in the Council and reserving them to represent Iraqis living abroad. Despite these compromises, violent political insurgency killed dozens during the elections of January 2010. Accusations of electoral fraud were also revived in January 2010, despite a certified recount by Iraq's Independent High Electoral Commission (IHEC).

The question of whether individuals suspected of ties to Saddam Hussein's Baath Party could run for political office also presented a controversy directly tied to the Iraq War. In February 2010, an Iraqi appeals court ruled that approximately 500 primarily Sunni candidates who had been barred from running for office due to suspected ties to the Baath Party could now run for office. The ruling was widely criticized, prompting the court to revise its decision and conduct a case-by-case review of the 177 candidates who had appealed the original order. This process resulted in 28 out of the 177 potential candidates being granted the right to run for office, in part due to improper filings by 140 of the appellants.

These fresh controversies caused significant delays in the formation of a new Iraqi government in 2010, and prompted pleas of urgency from UN Secretary General Ban Ki-moon in August 2010. A governmental unity agreement was approved in November 2010 after months of deadlock. It installed Prime Minister Nouri al-Maliki and President Jalal Talabani for an additional term each, but provided that other major government positions be divided equally between Sunni, Shia and Kurdish candidates.

Despite the new stability of the Iraqi government, there was still international concern regarding the temperament and administrative decisions of the new regime. Vice President Tariq al-Hashimi was under investigation on accusations that he directed bombing attacks that targeted Shiite officials. In addition, the number of executions under the new Iraqi government raised eyebrows abroad. The UN High Commission Human Rights Navi Pillay denounced the country's execution of 34 individuals in a single day for "terrorism-related offenses" in January 2012 and Human Rights Watch (HRW) released a report in February 2012 which accused Iraq of having a "flawed criminal justice system" that denies capital defendants "meaningful defense[s]." JURIST Guest Columnist Nadia Bernaz criticized the Iraqi government's commitment to the death penalty as contrary to their international responsibilities to respect life:

Although the use of the death penalty has significantly decreased since the fall of Saddam Hussein's regime, the current rise in executions show that the Iraqi authorities continue to see the death penalty as a non-exceptional sentence, and as a way to address the country's immense difficulties. All retentionist countries argue that their specific circumstances call for the continuing use of capital punishment. In the case of Iraq, terrorist attacks, which undoubtedly fall under the "most serious crimes" category, are the main justification for retaining it. However, the death penalty is currently imposed for various offenses, including crimes that are unrelated to terrorism. In a way, the country's situation is used to justify a wide use of the death penalty with no apparent logic. One strategy for the UN could be to beat the Iraqi authorities at their own game and demand that the death penalty be used exclusively for terrorist offenses that resulted in death, as opposed to calling for a moratorium on all executions. Though not satisfactory for the abolitionists, the adoption of this strategy would limit the number of executions and make the use of the death penalty truly exceptional, which could eventually lead to a complete abolition.


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