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Only those who are not aware of the propaganda tools and methods historically used by imperialist powers to divide and conquer peoples can believe that there is in Iraq today a genuine political process meant to build a unified state with a permanent constitution.
It is obvious that the occupation is attempting to build three protectorates so weak and conflicting that Iraqis will not be able to get rid of American military, political and economic control. There is no real political process in Iraq now to build a unified state respected by all Iraqis and by the world. The people participating in what the Americans call a political process cannot build a unified Iraqi state, nor do they want to. The Kurds try to build a state within a state in order to take control of Kirkuk and start a process of independence.
The party of Prime Minister Ibrahim Al- Jaafari, the United Iraqi Alliance, is building, in southern Iraq, a religious state similar to and allied with Iran. These groups have forged a temporary alliance of convenience against the resistance, but they are not working to build a unified Iraqi state for all Iraqi citizens.
Speaking of "Sunni" participation, or that of any sectarian group, in the political process participates in the process of implanting divisions and strife among the Iraqi people. The Sunnis in Iraq indeed represent a specific social strata with their own religious identity, but they are refusing to engage in a political process that gives them a distinct identity separate from that of other Iraqis. This idea has been demonstrated in the past in Iraq in the history of Arab national movements, including that of the Baath Party or leftist movements. If the Sunnis accept a sectarian-based separation they will be bound to accept the division of Iraq into sects and ethnicities and this is what they fight against strongly.
From an international law perspective, the pre-emptive war against Iraq and the subsequent occupation are illegal. The United Nations was created specifically to respond to such crimes against peace and as an attempt to prevent future generations from experiencing such wars. The "pre- emptive" war doctrine is incompatible with international law which restricts the use of force to self-defence and in particular to situations where a state has been subjected to armed attack or aggression. The invasion of Iraq without the approval of the Security Council, and the subsequent occupation, are therefore illegal.
Despite the fact that the United States considers securing its interests as the very definition of international law, since 1945 international relations among independent states have been ruled by the UN Charter through the Security Council and the General Assembly. None of these two bodies declared war on Iraq. On the contrary, UN Resolution 2649 adopted by the General Assembly on 30 November 1970 "affirms the legitimacy of the struggle of peoples under colonial and alien domination recognised as being entitled to the right of self-determination to restore to themselves that right by any means at their disposal."
Iraqi sovereignty is protected by the UN Charter, The Hague treaty and the Geneva Conventions. Stipulated in these treaties are the duties of the occupying powers, which concede that laws passed under occupation are made by and for the occupation, not by an independent state, and cannot in any way become permanent and that no state has the right to decide the political institutions of another. The drafting of a permanent constitution for Iraq under occupation is therefore illegal and illegitimate.
How can a permanent constitution be written while there are more than 150,000 American soldiers waging military operations every day on Iraqi cities and villages, while prisons are full with political prisoners, while people live under martial law and cannot gather freely, and while the US controls security forces, the army, the economy, the courts, and all other relevant institutions? As Eman Khammas from Occupation Watch writes, "You have to tell the outside world what the occupation brought to Iraq. How it destroyed it as a state, a country, a nation, and as a power. At least you have to talk about the human rights atrocities that are committed daily. We do not feel safe inside our houses." What is a permanent constitution if it is not the principles and the mechanisms under which citizens can live together peacefully and are accepted by all, free of violence and intimidation? Occupation is the highest form of dictatorship, as it tries to impose legislation by military means.
According to the electoral commission presided by Abdul-Hussein Al-Hindawi, eight million Iraqis of the 14 million eligible to vote actually voted, while six million boycotted. Among the voters, two million are Kurdish and have their own parliament. Additionally, only 20 per cent of four million Iraqi exiles voted. The recent Iraqi elections were meant to elect a body able to write a constitution, however, does half of the population have the right to write a constitution for the other half while violently attacking them if they refuse its terms? Does the government have the right to repress half the population only because the occupation dictates that they do so? If only half of eligible Iraqis voted, what sort of legitimacy does this bestow on the new Iraqi government to draft a permanent constitution for all Iraqi citizens?
The new Iraqi government has been installed in acceptance of the transitional law of the state imposed by the American Civil Administrator Paul Bremer and accepted by the unelected interim governing council. Both of these bodies were illegal. The anti- occupation movement refuses the occupation and the laws resulting from it, as did Ayatollah Al-Sistani, who openly refused and opposed what was known as "Bremer's law". The UN ignored Bremer's law because it failed to respect the principles of international law, and Iraqis boycotted the elections in large numbers because they recognised that its goal was to legitimise the occupation and the laws derived from it.
Those who support coalition policies often cite the surrender of Germany and Japan during WWII as examples to justify their right to draft a permanent constitution for Iraq. They call it nation building. In Iraq, no surrender occurred and no representatives of the old state gave the Americans the right to determine Iraq's future by surrendering or through a treaty. Neither the old regime accepted Bremer's law, nor did the Iraqi army or government. On the contrary, a significant segment of the Iraqi army and people decided to resist.
For this reason, and according to the tenets of international law, the Iraqi political, civil, and military resistance represents the continuity of the independent Iraqi state. The US waged a war of aggression not only to remove Saddam Hussein's regime but to destroy the Iraqi state, abolish it and create a new, weak one. Parts of the original anti- war movement which opposed this war from the beginning now legitimises the occupation in the name of the successful removal of the former oppressive regime. But struggling against the policies of Saddam Hussein does not mean accepting the abolition of the Iraqi state, the repressive political laws made by the occupation against Baathists which target more than one million people and are against all values of justice, democracy, and human rights, and the repression of anti-occupation forces.
If the US has no right to conquer an independent state and to build a new state in its place, who then represents the Iraqi people? It is the resistance, which struggles by different means against the occupier and its laws, that represents the continuity of the Iraqi state. The resistance struggles to preserve national resources, agricultural reforms, and restore infrastructure, education, and health systems that are currently being destroyed by the occupation. The resistance legally represents the Iraqi people and their independence until the Iraqi people have the opportunity to freely create a new state independent of outside influence. To represent the continuity of the state does not necessarily mean the old regime, as there is a difference between the notion of the state and the notion of a particular government.
The people of Iraq need a democratic state of its citizens, independent of any hegemony, regional or international, directing its own affairs and interests peacefully and democratically, with the ability to exercise complete sovereignty over its land and resources. They need a state in which the UN Charter and the Universal Declaration of Human Rights are parts of the constitution. This can only happen after the complete and unconditional withdrawal of all foreign occupying troops from Iraqi soil.
Abdul-Ilah Al-Bayaty is an Iraqi political analyst based in France and Hana Al- Bayaty is a member of the Organising Committee of the Brussels Tribunal on Iraq.
Disclaimer: The views expressed in this article are the sole responsibility of the author and do not necessarily reflect those of the Centre for Research on Globalization.
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