"Iraq is not America's to sell"

International law is unequivocal - Paul Bremer's economic reforms are illegal

Naomi Klein, in The Guardian, reports:

Bring Halliburton home. Cancel the contracts. Ditch the deals. Rip up the rules. Those are just a few of the suggestions for slogans that could help unify the growing movement against the occupation of Iraq. So far, activist debates have focused on whether the demand should be for a complete withdrawal of troops, or for the United States to cede power to the United Nations.

But the "troops out" debate overlooks an important fact. If every last soldier pulled out of the Gulf tomorrow and a sovereign government came to power, Iraq would still be occupied: by laws written in the interest of another country; by foreign corporations controlling its essential services; by 70% unemployment sparked by public sector layoffs.

Any movement serious about Iraqi self-determination must call not only for an end to Iraq's military occupation, but to its economic colonisation as well. That means reversing the shock therapy reforms that US occupation chief Paul Bremer has fraudulently passed off as "reconstruction", and cancelling all privatisation contracts that are flowing from these reforms.

How can such an ambitious goal be achieved? Easy: by showing that Bremer's reforms were illegal to begin with. They clearly violate the international convention governing the behaviour of occupying forces, the Hague regulations of 1907 (the companion to the 1949 Geneva conventions, both ratified by the United States), as well as the US army's own code of war.

The Hague regulations state that an occupying power must respect "unless absolutely prevented, the laws in force in the country". The coalition provisional authority has shredded that simple rule with gleeful defiance. Iraq's constitution outlaws the privatisation of key state assets, and it bars foreigners from owning Iraqi firms. No plausible argument can be made that the CPA was "absolutely prevented" from respecting those laws, and yet two months ago, the CPA overturned them unilaterally.

On September 19, Bremer enacted the now infamous Order 39. It announced that 200 Iraqi state companies would be privatised; decreed that foreign firms can retain 100% ownership of Iraqi banks, mines and factories; and allowed these firms to move 100% of their profits out of Iraq. The Economist declared the new rules a "capitalist dream".

Order 39 violated the Hague regulations in other ways as well. The convention states that occupying powers "shall be regarded only as administrator and usufructuary of public buildings, real estate, forests and agricultural estates belonging to the hostile state, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct."

Bouvier's Law Dictionary defines "usufruct" (possibly the ugliest word in the English language) as an arrangement that grants one party the right to use and derive benefit from another's property "without altering the substance of the thing". Put more simply, if you are a housesitter, you can eat the food in the fridge, but you can't sell the house and turn it into condos. And yet that is just what Bremer is doing: what could more substantially alter "the substance" of a public asset than to turn it into a private one?

In case the CPA was still unclear on this detail, the US army's Law of Land Warfare states that "the occupant does not have the right of sale or unqualified use of [non-military] property". This is pretty straightforward: bombing something does not give you the right to sell it. There is every indication that the CPA is well aware of the lawlessness of its privatisation scheme. In a leaked memo written on March 26, the British attorney general, Lord Goldsmith, warned Tony Blair that "the imposition of major structural economic reforms would not be authorised by international law".

So far, most of the controversy surrounding Iraq's reconstruction has focused on the waste and corruption in the awarding of contracts. This badly misses the scope of the violation: even if the sell-off of Iraq were conducted with full transparency and open bidding, it would still be illegal for the simple reason that Iraq is not America's to sell.

The security council's recognition of the United States' and Britain's occupation authority provides no legal cover. The UN resolution passed in May specifically required the occupying powers to "comply fully with their obligations under international law including in particular the Geneva conventions of 1949 and the Hague regulations of 1907".

According to a growing number of international legal experts, that means that if the next Iraqi government decides it doesn't want to be a wholly owned subsidiary of Bechtel and Halliburton, it will have powerful legal grounds to renationalise assets that were privatised under CPA edicts.

Juliet Blanch, global head of energy and international arbitration for the huge international law firm Norton Rose, says that because Bremer's reforms directly contradict Iraq's constitution, they are "in breach of international law and are likely not enforceable". Blanch argues that the CPA "has no authority or ability to sign those [privatisation] contracts", and that a sovereign Iraqi government would have "quite a serious argument for renationalisation without paying compensation". Firms facing this type of expropriation would, according to Blanch, have "no legal remedy".

The only way out for the administration is to make sure that Iraq's next government is anything but sovereign. It must be pliant enough to ratify the CPA's illegal laws, which will then be celebrated as the happy marriage of free markets and free people. Once that happens, it will be too late: the contracts will be locked in, the deals done and the occupation of Iraq permanent.

Which is why anti-war forces must use this fast-closing window to demand that the next Iraqi government be free from the shackles of these reforms. It's too late to stop the war, but it's not too late to deny Iraq's invaders the myriad economic prizes they went to war to collect in the first place.

It's not too late to cancel the contracts and ditch the deals.

"Why The Privatization of Iraq is Illegal"

Aaron Mate on "What the US-UK's responsibilities are as occupier of Iraq":

On May 22 2003, the United Nations Security Council passed Resolution 1483, abolishing sanctions against Iraq and recognising the United States and United Kingdom as the country's occupying powers. The resolution called upon the US-UK authority to "comply fully with their obligations under international law, including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907." [1]

How has the CPA changed Iraq's economy and laws?
Among many changes, the US-UK Coalition Provisional Authority (CPA), has laid off hundreds of thousands of Iraqi workers, virtually eliminated trade tariffs and enacted laws that radically alter Iraq's economy. Order 39, decreed by CPA head Paul Bremer on September 20 2003, abolished Iraq's ban on foreign investment, allowing foreigners to own up to 100% of all sectors except natural resources. Over 200 state-owned enterprises, including electricity, telecommunications and pharmaceuticals have been privatised. Iraq's highest tax rate has been lowered from 45% to a flat rate of 15%. Although foreign ownership of land remains illegal, companies or individuals will be allowed to lease properties for up to 40 years. [2]

Are these changes legal?

These laws stand in clear violation of Iraq's constitution, as is openly admitted. The US department of commerce notes that "the Iraqi constitution prohibits foreign ownership of immovable (real) property," and "prohibits investment in, and establishment of, companies in Iraq by foreigners who are not resident citizens of Arab countries." [3]

Consider how the CPA's new laws and massive layoffs conform to its obligations under international law [4]:

· Hague Regulations

Art 43: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

Art 46: Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.

Art 47: Pillage is formally forbidden.

Art 53: An army of occupation can only take possession of cash, funds, and realisable securities which are strictly the property of the state, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the state which may be used for military operations. All appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, generally, all kinds of munitions of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made.

Art 55: The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

· Geneva Conventions:

Article 53: Any destruction by the occupying power of real or personal property belonging individually or collectively to private persons, or to the state, or to other public authorities, or to social or cooperative organisations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.

Article 54: The occupying power may not alter the status of public officials or judges in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against them, should they abstain from fulfilling their functions for reasons of conscience.

What is usufruct?

In accordance with Article 55 of the Hague Regulations, the US-UK are "regarded only as administrator and usufructuary" of Iraq's resources and immovable property, which it must administer "in accordance with the rules of usufruct." Bouvier's Law dictionary defines usufruct as: "The right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantage which it may produce, provided it be without altering the substance of the thing." [5]

As usufructary, the US-UK coalition would have the right to use Iraq's resources without altering or destroying the character of the resource itself. It is widely-recognised that agriculture, wherein crops can grow again and no serious effect is made on the soil or the land, is an appropriate usage of the right of usufruct. But oil is far different: the extraction of oil is the process of extracting the original resource itself, as the fossil fuels are not renewable and the character of the land from which it comes is severely altered, if not depleted. In addition, the responsibilities of usufruct can also apply to structural changes to a public resource or service. As Naomi Klein points out, "what could more substantially alter 'the substance' of a public asset than to turn it into a private one?"

Does the CPA know this already?

In a leaked March 26 memo that caused a stir in the UK, attorney general Lord Peter Goldsmith advised prime minister Blair that the invasion and subsequent occupation of Iraq was illegal. "My view is that a further security council resolution is needed to authorise imposing reform and restructuring of Iraq and its government," Lord Goldsmith wrote. He added that in his view "the imposition of major structural economic reforms would not be authorised by international law," and that "the longer the occupation of Iraq continues, and the more the tasks undertaken by an interim administration depart from the main objective [of disarming Saddam], the more difficult it will be to justify the lawfulness of the occupation." [6]

Notes

1. UN Security Council Resolution 1483, adopted May 22 2003.

2. Coalition Provisional Authority Order 39, enacted September 19 2003.

3. US Department of Commerce, "Overview of Commercial Law in Iraq".

4. Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (Hague Regulations). The Hague, 18 October 1907.

Convention (IV) relative to the Protection of Civilian Persons in Time of War (Geneva Conventions). Geneva, 12 August 1949.

5. Bouvier's Law Dictionary, cited in University of Tulsa Law Professor R. Dobie Langenkamp, What Happens to the Oil: International Law and the Occupation of Iraq", January 2003,

6. John Innes, "US and UK Action in post-war Iraq May be Illegal," The Scotsman, May 22, 2003.

Flat tax system imposed on Iraq

U.S. Administrator Orders 15% Rate

The Washington Post reports:

“The highest individual and corporate income tax rates for 2004 and subsequent years shall not exceed 15 percent,” Bremer wrote in Coalition Provisional Authority Order Number 37, “Tax Strategy for 2003,” issued last month.

The flat tax, long a dream of economic conservatives, is finally getting its day — not in the United States, but in Iraq. It took L. Paul Bremer, the U.S. administrator in Baghdad, no more than a stroke of the pen Sept. 15 to accomplish what eluded the likes of publisher Steve Forbes, former representative Jack Kemp (R-N.Y.), former senator Phil Gramm (R-Tex.) and former representative Richard K. Armey (R-Tex.) over the course of a decade and two presidential campaigns.

Voila, Iraq has a flat tax, and the 15 percent rate is even lower than Forbes (17 percent) and Gramm (16 percent) favored for the United States. And, unless a future Iraqi government rescinds it, the flat tax will remain long after the Americans have left.

“It’s extremely good news,” said Grover Norquist, head of Americans for Tax Reform and a Bush administration ally. Bremer’s vaguely worded edict leaves open the possibility that Iraqis could face different levels of taxation below 15 percent, but “they told me it’s a flat rate and it appears as though it’s a flat rate,” Norquist said. The tax fighter added: “It might be a hint to the rest of us.”

NO HISTORY OF PAYING TAXES IN IRAQ

Bremer’s new economic policy for Iraq will slash Saddam Hussein’s top tax rate for individuals and businesses from 45 to 15 percent. Of course, since Hussein’s government, like others in the Middle East, almost never enforced tax collection, there is no real history of paying taxes in the country.

During the more than three decades of Baath Party rule, Hussein ran a centrally controlled economy with most large businesses owned or operated by the state. The government also managed the import of most goods.

John B. Taylor, undersecretary of the Treasury for international affairs, said the Iraq flat tax was discussed before the war as preliminary planning was done with the help of some Iraqi exiles.

After major combat ended, the discussions continued with Iraqis in Baghdad, with emphasis on tax policies adopted by other countries making the transition from controlled economies. “One was Russia and subsequently Ukraine, where we heard good things after flat taxes were adopted,” Taylor said.

On Sept. 22, Bremer told the Senate Appropriations Committee: “Iraq’s new tax system is admirably straightforward. The highest marginal tax rate on personal and corporate income is 15 percent.”

Iraq’s new finance minister, Kamil Mubdir Gailani, is considered a follower of Ahmed Chalabi, the Western-oriented banker who has closely adhered to the Bush administration’s economic policies, according to one expert on the Iraqi economy. Gailani presented the new Iraq finance program, including the flat tax, at a recent international meeting.

“A piece of social engineering is being done on Iraq, but it has almost no support from other members of the U.S.-appointed Iraqi Governing Council,” said a Middle East expert who heard Gailani’s presentation.

Proponents of the flat tax have long favored this kind of tax system for Iraq. Without much of a framework to start with, Iraq “need not worry about all the political and transition problems that have made adoption of fundamental tax reform here so difficult,” Bruce Bartlett, an economist in the Reagan and first Bush administrations, wrote this spring. “It is gratifying, therefore, that leaders of the new Iraq are said to be looking at a flat rate tax system for their country.”

RUSSIA SEEN AS A MODEL FOR IRAQ

Bartlett, once an aide to Kemp and now with the National Center for Policy Analysis, said the model for Iraq should be Russia, which in 2001 set a 13 percent flat tax on individual income. The Bush administration, still disturbed by much higher tax rates here, has said it admires Russia’s flat tax. Russia “understands the importance of getting the tax structure right in your economy,” Commerce Secretary Donald L. Evans told the conservative Heritage Foundation last year.

President Bush, in Russia last year to see President Vladimir Putin, said: “The good news is that the flat tax in Russia is a good, fair tax — much more fair, by the way, than many Western countries, I might add.”

“At the previous 40 percent to 50 percent, Russian people were evading,” said one economist familiar with the area. “Now at a lower rate they are paying because the penalties are so heavy.”

Conservatives have similarly celebrated Bremer’s move in Iraq. “Such low rates will put Iraq on a par with Hong Kong and flat-tax-land Russia,” editorialist Amity Shlaes wrote in the Financial Times. “They contrast favorably with the onerous regimes of some neighbors.”

American flat-tax advocates have made little headway at home, in part because Democrats say it would disproportionately hurt lower-income Americans and because expensive tax breaks such as the deductions for mortgage interest and charitable donations are beloved in both parties. But in places such as Russia, the Baltic states and Iraq, there was no well-established tax code defended by an army of lobbyists. “Somehow, it’s easier when you start from scratch,” Norquist said.

The 15 percent rate does not take effect until January. In the meantime, Bremer has abolished all taxes except for real estate, car sales, gasoline and the pleasantly named “excellent and first class hotel and restaurant tax.” Even while leaving these Hussein-era levies in place, Bremer exempted his coalition authority, the armed forces, their contractors and humanitarian organizations. Exempting occupation personnel leaves only the Iraqis to pay taxes, as well as journalists, businesspeople and other foreigners.

Looking back at the failed attempt by presidential candidate Forbes to rally U.S. public support behind the flat tax, Gene Sperling, a senior Clinton economic adviser who is with the Council on Foreign Relations, said wryly, “If Steve Forbes does a bus tour [of Iraq] to promote it, I hope they have adequate security."

Flat tax system imposed on Iraq

U.S. Administrator Orders 15% Rate

The Washington Post reports:

“The highest individual and corporate income tax rates for 2004 and subsequent years shall not exceed 15 percent,” Bremer wrote in Coalition Provisional Authority Order Number 37, “Tax Strategy for 2003,” issued last month.

The flat tax, long a dream of economic conservatives, is finally getting its day — not in the United States, but in Iraq. It took L. Paul Bremer, the U.S. administrator in Baghdad, no more than a stroke of the pen Sept. 15 to accomplish what eluded the likes of publisher Steve Forbes, former representative Jack Kemp (R-N.Y.), former senator Phil Gramm (R-Tex.) and former representative Richard K. Armey (R-Tex.) over the course of a decade and two presidential campaigns.

Voila, Iraq has a flat tax, and the 15 percent rate is even lower than Forbes (17 percent) and Gramm (16 percent) favored for the United States. And, unless a future Iraqi government rescinds it, the flat tax will remain long after the Americans have left.

“It’s extremely good news,” said Grover Norquist, head of Americans for Tax Reform and a Bush administration ally. Bremer’s vaguely worded edict leaves open the possibility that Iraqis could face different levels of taxation below 15 percent, but “they told me it’s a flat rate and it appears as though it’s a flat rate,” Norquist said. The tax fighter added: “It might be a hint to the rest of us.”

NO HISTORY OF PAYING TAXES IN IRAQ

Bremer’s new economic policy for Iraq will slash Saddam Hussein’s top tax rate for individuals and businesses from 45 to 15 percent. Of course, since Hussein’s government, like others in the Middle East, almost never enforced tax collection, there is no real history of paying taxes in the country.

During the more than three decades of Baath Party rule, Hussein ran a centrally controlled economy with most large businesses owned or operated by the state. The government also managed the import of most goods.

John B. Taylor, undersecretary of the Treasury for international affairs, said the Iraq flat tax was discussed before the war as preliminary planning was done with the help of some Iraqi exiles.

After major combat ended, the discussions continued with Iraqis in Baghdad, with emphasis on tax policies adopted by other countries making the transition from controlled economies. “One was Russia and subsequently Ukraine, where we heard good things after flat taxes were adopted,” Taylor said.

On Sept. 22, Bremer told the Senate Appropriations Committee: “Iraq’s new tax system is admirably straightforward. The highest marginal tax rate on personal and corporate income is 15 percent.”

Iraq’s new finance minister, Kamil Mubdir Gailani, is considered a follower of Ahmed Chalabi, the Western-oriented banker who has closely adhered to the Bush administration’s economic policies, according to one expert on the Iraqi economy. Gailani presented the new Iraq finance program, including the flat tax, at a recent international meeting.

“A piece of social engineering is being done on Iraq, but it has almost no support from other members of the U.S.-appointed Iraqi Governing Council,” said a Middle East expert who heard Gailani’s presentation.

Proponents of the flat tax have long favored this kind of tax system for Iraq. Without much of a framework to start with, Iraq “need not worry about all the political and transition problems that have made adoption of fundamental tax reform here so difficult,” Bruce Bartlett, an economist in the Reagan and first Bush administrations, wrote this spring. “It is gratifying, therefore, that leaders of the new Iraq are said to be looking at a flat rate tax system for their country.”

RUSSIA SEEN AS A MODEL FOR IRAQ

Bartlett, once an aide to Kemp and now with the National Center for Policy Analysis, said the model for Iraq should be Russia, which in 2001 set a 13 percent flat tax on individual income. The Bush administration, still disturbed by much higher tax rates here, has said it admires Russia’s flat tax. Russia “understands the importance of getting the tax structure right in your economy,” Commerce Secretary Donald L. Evans told the conservative Heritage Foundation last year.

President Bush, in Russia last year to see President Vladimir Putin, said: “The good news is that the flat tax in Russia is a good, fair tax — much more fair, by the way, than many Western countries, I might add.”

“At the previous 40 percent to 50 percent, Russian people were evading,” said one economist familiar with the area. “Now at a lower rate they are paying because the penalties are so heavy.”

Conservatives have similarly celebrated Bremer’s move in Iraq. “Such low rates will put Iraq on a par with Hong Kong and flat-tax-land Russia,” editorialist Amity Shlaes wrote in the Financial Times. “They contrast favorably with the onerous regimes of some neighbors.”

American flat-tax advocates have made little headway at home, in part because Democrats say it would disproportionately hurt lower-income Americans and because expensive tax breaks such as the deductions for mortgage interest and charitable donations are beloved in both parties. But in places such as Russia, the Baltic states and Iraq, there was no well-established tax code defended by an army of lobbyists. “Somehow, it’s easier when you start from scratch,” Norquist said.

The 15 percent rate does not take effect until January. In the meantime, Bremer has abolished all taxes except for real estate, car sales, gasoline and the pleasantly named “excellent and first class hotel and restaurant tax.” Even while leaving these Hussein-era levies in place, Bremer exempted his coalition authority, the armed forces, their contractors and humanitarian organizations. Exempting occupation personnel leaves only the Iraqis to pay taxes, as well as journalists, businesspeople and other foreigners.

Looking back at the failed attempt by presidential candidate Forbes to rally U.S. public support behind the flat tax, Gene Sperling, a senior Clinton economic adviser who is with the Council on Foreign Relations, said wryly, “If Steve Forbes does a bus tour [of Iraq] to promote it, I hope they have adequate security."