Breakthrough overshadowed by violence
On 1 March 2004, the US-appointed Iraqi Governing Council finally agreed a new provisional constitution, the Transitional Administrative Law. This major breakthrough came only after months of divisive negotiations between factions on the Council, the civilian head of the Coalition Provisional Authority (CPA) Paul Bremer and wider Iraqi society. It marks the greatest political success of the occupation to date. But its announcement coincided with the most violent day since the invasion of Iraq last March. Explosions in Baghdad and the southern town of Karbala at the height of the Shi'a festival of Ashura killed more than 180 people and significantly raised sectarian tensions. This contradiction between progress in political developments and the increasing brutality of the insurgency highlights the nature of the problems facing the coalition. It is battling against the legacy of 35 years of Ba'ath party rule that has left Iraq with an atomised society, a broken state and a violent political culture. Against this backdrop, the US has to put in place the foundations of a stable political process before American electoral dynamics put pressure on the administration to reduce the presence in the country this summer.
The Transitional Administrative Law
The 32-page Transitional Administrative Law had a lengthy and problematic gestation. The 25-five strong Council, appointed by Bremer in July 2003, set about drafting a constitution almost immediately. A substantive report on the issue was due in September that year, but serious disagreements led to repeated delays. Washington finally imposed the end of February 2004 as the last possible date that the new constitution could be agreed upon. The setting of this deadline reflected not only frustration with paralysis on the Council but also the influence of a fast-approaching US presidential election. In mid-November 2003, Bremer was tasked with handing sovereignty back to the Iraqis by 30 June 2004. An agreed constitution became central to that process.
The document is seen by the Council as temporary, aimed at guiding the new government through to the end of 2005, when a permanent constitution and an elected government are scheduled to replace it. The divisions about what it should contain and the short-term nature of its influence means that the constitution is largely symbolic, setting out in the broadest terms the guidelines within which the new Iraqi state should evolve. The two most controversial issues that dogged the drafting of the law were the role that Islam and the Kurds are to play in the new state.
Autonomy and religion
The two main Kurdish parties, the Patriotic Union of Kurdistan (PUK) and the Kurdish Democratic Party (KDP) have effectively run two independent fiefdoms in the north of Iraq since 1991. How and indeed whether these two areas are to be reintegrated into post-Saddam Iraq is one of the most difficult issues the country will have to face over the next few years. The fact that the KDP and PUK both have independent and well-armed militias has given them significant leverage in the negotiations. US officials had to persuade the KDP and PUK to postpone their central demand that they be given a fixed percentage of oil revenue and be allowed to increase their geographic area of rule to include the large cities of northern Iraq not yet under their control. In the end, agreement about the position of the north was secured in two ways. First, the constitution recognises that Iraq will not only be democratic but also federal, allowing for the theoretical devolution of as much power as possible to the regions. But, secondly, negotiations circumvented arguments about precisely what type of federal system will be used and the exact degree of autonomy the two Kurdish organisations will be allowed to retain. This was achieved by postponing a decision on these substantive issues until the end of the transitional period in 2005.
The associated problem of the continued existence and role of private militias was also avoided in order to secure agreement. The transitional law bans militias that are not directly controlled by the federal government, but adds the proviso that their members will be integrated into the government's security services or helped to make the transition into civilian life. As this process would necessarily take time to enact, another contentious issue has been set aside for the future.
The issue of religion also highlighted competing visions of Council members about how Iraq will develop. The liberal ambitions of some Council members resulted in the commitment to protect the freedom of worship of all Iraq's citizens. However, arguments about the role that Islam will play in the political and – more importantly – legislative life of the country were hard-fought. The debate centred on whether Islam should be the or only a main source of inspiration for future legislation. In January, the Council appeared to indicate its preference on this matter by voting to allow Islamic law to override civil law in matters of divorce and inheritance. Bremer intervened by refusing to recognise this decision, forcing a compromise on the wording of the constitution.
Timetable for democracy
The transitional law states that national elections must be held no later than the end of January 2005. This would result in a 275-seat national assembly that would in turn choose a president and two deputies. These three will have the responsibility for picking a prime minister who will then wield the majority of executive powers. The constitution also states that 25% of seats in the national assembly will be reserved for women. This is a bold move in a patriarchal country, especially when coupled with another of the constitution's articles that guarantees all Iraqis equal rights regardless of their gender.
That such a short-term and idealistic document could engender such political conflict within the Council does not bode well for the transition period to 2005. The document was unveiled publicly by only five members of the Council, none of whom represented the Shi'a or Kurdish parties. Four of the five only returned to Iraq in April after many years of exile, highlighting the disjuncture between the Council charged with forming the government and extending the state's influence across the country and the vast majority of the Iraqi population, struggling with pervasive lawlessness, economic hardship and uncertainty.
New phase in the insurgency
The drafting of the constitution is part of the CPA's wider plans to quickly reduce its political and strategic role in running Iraq. The explosions in Baghdad and Karbala that greeted the constitutional breakthrough mark a response to these plans and herald a new and destabilising phase in the insurgency. It is designed to make Iraq ungovernable – by either the US or a new Iraqi government. Terrorism is now being deployed with the twin aims of exacerbating sectarian tensions and stopping the growth in indigenous governing structures designed to replace the occupation.
As US troops take a less public role and begin redeployment to more secure bases, the insurgents have sought out more accessible targets – those provided by the nascent institutions and personnel of the new Iraqi state. This change in tactics was heralded by the attack on three police stations in Baghdad on the same day in October 2003. Since then, this method has been extended in geographical scope and ferocity, with car bombs used to target police stations in Khalidyah in western Iraq, Mosul in the north and Iskandariya and Hillah south of Baghdad. These attacks, along with the devastating car bomb assault on an army recruiting centre in Baghdad that killed 53 people in February, are designed not only to discourage Iraqis from working for the new state but to stop the growth of its institutions. They undermine attempts to deliver to the Iraqi population what they have been demanding since the fall of the Ba'ath regime: law and order.
However, the second tactic adopted by insurgents has the potential to be even more damaging. By targeting the large crowds that gathered to commemorate the Shi'a festival of Ashura in Baghdad and Karbala, the perpetrators of the attacks on 2 March were clearly attempting to mobilise sectarian resentment and make a civil war between Iraq's different communities a distinct possibility. This approach first became apparent on 29 August 2003, when a large car bomb at one of Shi'a Islam's most holy sites, the Imam Ali mosque in Najaf, killed at least 83 people including Ayatollah Mohammed Bakr al-Hakim. Hakim was not only a leading religious figure but a senior politician in the Supreme Council for the Islamic Revolution in Iraq, one of the two main parties competing for the votes of the Shi'a population. In February, this tactic was extended to the Kurdish areas of Iraq when two suicide bombers killed 101 people in Arbil at the offices of the KDP and PUK.
The assumption that these attacks were designed to trigger a civil war has been further strengthened by the discovery in Iraq of a letter reputedly written by an Ansar al-Islam figure who acted as liaison to al-Qaeda. In the 17-page letter, the Jordanian Abu Musab al-Zarqawi argues that the only way al-Qaeda can 'prolong the duration of the fight between the infidels and us' is by 'dragging them into a sectarian war, this will awaken the sleepy Sunnis who are fearful of destruction and death at the hands of the Shia'.
Iraqi politicians have also been keen to blame the rise in sectarian violence on outside forces. But they have tended to overstate their case. The efficiency of these attacks, their regularity and the speed with which they were organised in the aftermath of Saddam's fall all point to a large amount of Iraqi involvement. The shadowy organisation behind these sectarian attacks is much more likely to be a hybrid, with elements of the old regime acting in alliance with indigenous Islamic radicals and a small number of foreign fighters. This potent mix has allowed mid-ranking members of the old regime to deploy their training and weapons stockpiles. They have sought to ally themselves with a new brand of Islamic nationalism, seeking to mobilise Sunni fears of Shi'a and Kurdish domination and a widespread resentment at foreign occupation. Although the use of indiscriminate violence has alienated the vast majority of Iraqi public opinion, the carnage has been a major setback for state building and stability.
Looking ahead
Both the coalition occupiers and those Iraqis seeking to build a new state are struggling with Saddam Hussein's legacy. By the late 1980s, the Ba'athist regime had atomised Iraqi society, using military and economic power to break all organisations that they did not control. The eight-year war with Iran, the 1990–91 Gulf War and the imposition of draconian sanctions in its aftermath greatly undermined the coherence and efficiency of Iraqi state institutions.
Thus, once the initial military opposition had been overcome and Baghdad seized by the coalition, plans to take state institutions more or less intact and use them to rule Iraq proved to be misguided. After 12 years of sanctions, the fabric of Iraqi government had been stretched very thin. 2003 saw the institutions of the Iraqi state face a third war in 20 years. This, combined with the three weeks of looting and the general lawlessness that greeted liberation in April, meant that large numbers of civil servants simply went home and stayed there. The CPA, instead of finding a coherent state, found a governmental shell that will take many years and a great deal of money to rebuild.
The signing of the Iraqi constitution, although largely symbolic, is a step towards rebuilding the state and institutionalising the rule of law. However, the most important task has yet to begin in earnest. The 25 ministers appointed by the Council to rebuild the institutions of the state and make their influence felt across Iraq face a daunting task. The Iraqi population needs to see state institutions making a direct and positive impact on their everyday lives. This has yet to happen in a systematic way. Instead, the country is facing a security vacuum that has given rise to a series of politically motivated militias and terrorists who appear to strike with impunity. Against this background, US plans to hand power back to Iraqis on 30 June appear to be risky at the very least. For state building to stand any chance of success, and for a stable and democratic government to emerge from the chaos of Ba'athist rule and regime change, large numbers of troops, foreign aid and international oversight need to remain in the country for many years to come. If this does not happen, and if international attention wanes and Iraq is left to its own devices, instability, violence and political radicalism will come to dominate Iraq and destabilise the wider region.
