|
|
|
|
|
Coalition Provisional Authority
This page contains a summary of orders and regulations issued by the
Coalition Provisional Authority, the US temporary government of Iraq.
Some orders of minor importance have been omitted; official versions of
these documents, and others, can be found here.This
page replaces CASI's earlier chronological list
of CPA orders and regulations.
Preliminary notes | Common Phrases
| Security | Trade | Government
Finance |De-baathification | Government Administration | Principal
Bodies| Legal Reform | Further
Resources |
Preliminary notes
Dates. The dating of CPA orders is highly inconsistent
and often inaccurate. The date listed on the CPA website appears to be
when the order is placed online. In addition orders are dated when they
are signed, and the footer of the document may contain another date. It
is rare for tehse dates to match. A few orders specify the date on which
they come into effect. However, Paul Bremer mistakenly dated order 50
'1/11/2003' rather than '1/11/2004'. Regulation 1, establishing the CPA,
is dated 16 May 2003, although it refers to UN Security Council resolution
1483, which was not passed until 22 May.
Language. CPA orders are released first in English and
then in Arabic translation. The Arabic translation may be released some
time after the English version (153 days later, in the case of Orders
3, 4 and 5). Amnesty International has raised
concerns about this: "Evidence from members of the legal
profession indicate that they were not aware of legal changes introduced
through the CPA in a timely way. This was the case also with the establishment
of significant institutions, for example the Central Criminal Court".
The drafting process. Theoretically, the division of
control between the CPA and the Governing Council is vague. Regulation
6 requires that "the Governing Council and the CPA shall consult
and coordinate all matters involving the temporary governance of Iraq".
A few orders (for example Order 50) are the result of proposals made by
the Governing Council. In at least one case (the contentious Governing
Council resolution 137, which would have imposed as Islamic code of civil
law) Paul Bremer has proved unwilling
to approve a Governing Council resolution. In practise it appears that
most orders are drafted by the CPA or by the United States government.
Input may be invited from UN bodies such as OIOS
and OLA,
although time constraints hinder effective contributions from the UN.
The CPA and international law. It is frequently commented
that the CPA is obliged under international law to avoid unnecessary changes
to the legal structure of Iraq. This requirement is emphasised by the
UN in Security
Council Resolution 1483 (paragraph 5 "Calls upon all concerned
to comply fully with their obligations under international law including
in particular the Geneva Conventions of 1949 and the Hague Regulations
of 1907"). However, it should also be noted that the CPA has a moral
and legal responsibility to promote the welfare of Iraqis. Paragraph 4
of UN
Security Council Resolution 1483
Calls upon the Authority, consistent with the Charter of
the United Nations and other relevant international law, to promote the
welfare of the Iraqi people through the effective administration of the
territory, including in particular working towards the restoration of
conditions of security and stability and the creation of conditions in
which the Iraqi people can freely determine their own political future;
The CPA appears to have breached international law in several ways. The
fourth Geneva Convention (article 65) requires
that "The penal provisions enacted by the Occupying Power shall
not come into force before they have been published and brought to the
knowledge of the inhabitants in their own language. The effect of these
penal provisions shall not be retroactive." Both of these requirements
have been broken by the CPA: most orders enter into force on the date
of signature, before an Arabic version is available, and some (for example
order 50) are retroactive.
Some Common Phrases
"This order shall enter into force on the date of signature".
Since Arabic versions of CPA orders are sometimes not released until well
after the signature of the English version, this breaches the fourth Geneva
Convention (article 65), which requires
that "The penal provisions enacted by the Occupying Power shall
not come into force before they have been published and brought to the
knowledge of the inhabitants in their own language. The effect of these
penal provisions shall not be retroactive." Amnesty International
criticizes
this process.
"The principal body of the Iraqi interim administration".
This description of the powers of the Governing Council
is contained in Security Council Resolution 1511 and CPA Regulation 6,
among other places. While it does underline that the GC has some power,
it does not, as it may appear to, give it control of Iraq. Resolution
1483 does not see power being immediately handed over, but "Affirms
that the administration of Iraq will be progressively undertaken by the
evolving structures of the Iraqi interim administration"[para
5]. Resolutions passed by the Governing Council currently have no real
legal force until they are agreed by the CPA Administrator.
"Pursuant to my authority as Administrator of the Coalition
Provisional Authority (CPA), and under the laws and usages of war, and
consistent with relevant U.N. Security Council resolutions, including
Resolutions 1483 (2003) and 1511 (2003)" Variations on this
formula form the first paragraph of most CPA orders. It refers to a large
body
of international law, particularly the 1907 Hague Regulations and the
1949 Geneva Conventions. Relevant sections of Security Council resolutions
include, in 1483:
- "recognizing the specific authorities, responsibilities,
and obligations under applicable international law of these states [USA
and UK] as occupying powers under unified command (the “Authority”),"
[1483, preambular paragraph 14]
- "Calls upon the Authority, consistent with the Charter of
the United
Nations and other relevant international law, to promote the welfare
of the Iraqi
people through the effective administration of the territory, including
in particular
working towards the restoration of conditions of security and stability
and the
creation of conditions in which the Iraqi people can freely determine
their own
political future;" [1483, para 4]
- "Calls upon all concerned to comply fully with their obligations
under
international law including in particular the Geneva Conventions of
1949 and the
Hague Regulations of 1907;" [1483, para 5]
- "Supports the formation, by the people of Iraq with the help of
the Authority and working with the Special Representative, of an Iraqi
interim administration as a transitional administration run by Iraqis,
until an internationally recognized, representative government is established
by the people of Iraq and assumes the responsibilities of the Authority;"
1483, [para 9]
- "Notes further that the funds in the Development Fund for
Iraq shall be disbursed at the direction of the Authority,
in consultation with the Iraqi interim administration, for the purposes
set out in paragraph 14 below;" [1483, para 13]
- "...encourages the United Kingdom of Great Britain and
Northern Ireland and the United States of America to inform the Council
at regular
intervals of their efforts under this resolution;" [1483,
para 24]
- "Welcomes the establishment of the broadly representative
Governing
Council of Iraq on 13 July 2003, as an important step towards the formation
by the
people of Iraq of an internationally recognized, representative government
that will
exercise the sovereignty of Iraq;" [1500, para 1]
- "Underscoring that the sovereignty of Iraq resides in the
State of Iraq,
reaffirming the right of the Iraqi people freely to determine their
own
political future and control their own natural resources, reiterating
its
resolve that the day when Iraqis govern themselves must come quickly,
and
recognizing the importance of international support, particularly that
of
countries in the region, Iraq's neighbours, and regional organizations,
in
taking forward this process expeditiously," [1511, preambular
para 2]
- "Welcoming the decision of the Governing Council of Iraq
to form a
preparatory constitutional committee to prepare for a constitutional
conference that will draft a constitution to embody the aspirations
of the
Iraqi people, and urging it to complete this process quickly,"
[1511, preambular para 4]
- "Reaffirms the sovereignty and territorial integrity of Iraq,
and underscores, in that context, the temporary nature of the exercise
by the Coalition Provisional Authority (Authority) of the specific responsibilities,
authorities, and obligations under applicable international law recognized
and set forth in resolution 1483 (2003) which will cease when an internationally
recognized representative government established by the people of Iraq
is sworn in and assumes the responsibilities of the Authority, inter
alia through steps envisaged in paragraphs 4 through 7 and 10 below:"
[1511, para 1]
- Welcomes the positive response of the international community...
to the establishment of the broadly representative Governing Council
as all important step towards an internationally recognized, representative
government;" [1511, para 2]
- "Supports the Governing Council's efforts to mobilize the
people of Iraq, including by the appointment of a cabinet of ministers
and a preparatory constitutional committee to lead a process in which
the Iraqi people will progressively take control of their own affairs;"
[1511, para 3]
- "Determines that the Governing Council and its ministers
are the principal bodies of the Iraqi interim administration, which,
without prejudice to its further evolution, embodies the sovereignty
of the State of Iraq during the transitional period until an internationally
recognized, representative government is established and assumes the
responsibilities of the Authority;" [1511, para 4]
- "Affirms that the administration of Iraq will be progressively
undertaken by the evolving structures of the Iraqi interim administration;"
[1511, para 5]
- "Calls upon the Authority, in this context, to return governing
responsibilities and authorities to the people of Iraq as soon as practicable
and requests the Authority, in cooperation as appropriate with the Governing
Council and the Secretary-General, to report to the Council on the progress
being made;" [1511, para 6]
Security
- Iraqi Army
- Creation
of a New Iraqi Army (Order 22, 7 August 2003)
- Creation of the Defense Support
Agency (Order 42, 23 September 2003)
- New body, under CPA control, to provide legal, medical, financial,
logistical, recruitment, training and property management support
to the Iraqi army
- Creation
of a New Code of Military Discipline for the New Iraqi Army
(Order 23, 23 August 2003)
- Three new armed forces:
- Weapons Control (Order
3, 23 May 2003)
- Bans possession of heavy weapons, and possession of small arms
except at home or in a place of work
- Exceptions granted for Coalition personnel and for Iraqi police
and soldiers
- Establishes weapons collection programme
- CPA
Memorandum 5 (1 September 2003) governs aspects of implementation
Trade
- Removal
of water transportation monopoly (Order 51, 21 January 2004)
- New Iraqi Dinar (14 October
2003)
- regulates introduction of new Dinar
- Bank Law (Order 40, 24 September
2003)
- The bulk of the order, a detailed set of banking regulations,
is set out in Annex A
- Foreign
investment (Order 39, 21 September 2003)
- allows foreign investors great scope for investment in Iraq
- restrictions are imposed on foreign investment in the oil and
financial sectors, and on foreign ownership of real estate
- Trade
Bank of Iraq (Order 20, 17 July 2003)
- Establishes a bank, underwritten by and distributing profits to
the Development Fund for Iraq, to facilitate import and export of
goods and services
- See also this CPA
press release
- Trade liberalization
policy (Order 12, 8 June 2003)
- Suspends customs duties on almost all goods. The exceptions are:
- Export of some foods and animals, of many basic materials
(wood, water pipes, etc) is prohibited
- Import of weapons is prohibited. Ministry of Trade may levy
some import duties
- Licening
telecommunications services and equipment (Order 11, 9 June 2003)
Government Finance
- Reconstruction
Levy (Order 38, 21 September 2003)
- 5% import tariff will be imposed from 2004-2006, with proceeds
going to reconstruction and assistance to Iraq
- exemptions for humanitarian goods (books, medicine, food, clothing,
etc) and for the CPA, coalition forces, foreign governments and
NGOs
- Tax
Strategy for 2003 (Order 37, 21 September 2003)
- Most taxes (including income tax and property rent tax) are suspended
from April-December 2003, with the exceptions of:
- hotel and restaurant tax
- property transfer tax
- car sale fee
- petrol excise duties
- Coalition forces, the CPA, international organisations and governments
are exempt from taxation
- Future tax rates will not exceed 15%
- Measures
to insure the independence of the Central Bank of Iraq (Order 18,
7 July 2003)
- Authorises the Central Bank of Iraq to lend to government ministries,
and to set monetary policy without the approval of the Ministry
of Finance
De-Baathification and seizure of Baath assets
- Establishment
of an Iraqi Special Tribunal (Order 48, 10 Dec 2003) Devolves to
the Governing Council authority to "establish an Iraqi Special
Tribunal to try Iraqi nationals or residents of Iraq accused of genocide,
crimes against humanity, war crimes or violations of certain Iraqi laws".
In the event of any dispute between the CPA and the Governing Council
or Tribunal, the decision of the CPA shall prevail. Although dated December
10, 2003, this order was only promulgated (via the CPA website) on January
10, 2004 Note that Appendix A, which contains details of the tribunal,
is not yet publicly available.
- Establishment of the Iraqi
De-Baathification Council (Order 5, 25 May 2003)
- Establishes council to locate Baath party property and personnel,
and collate reports of criminal activity by Baath members
- Council to be composed of Iraqi citizens, appointed and subject
to dismissal by the head of the CPA
- forbids discrimination by race, sex, religion, etc.
- Management of Property
& Assets of the Baath Party (Order 4, 25 May 2003)
- Elaborates on Order 2 by requiring all persons to provide on request
information about government and Baath party assets
- All use of seized assets by the CPA will be subject to external
audit
- Appeal tribunal will deal with claims of unjust seizures
- Dissolution of Entities
(Order 2, 23 May 2003)
- Dissolves major government and Baath party institutions, and gives
the CPA control over their assets
- Dismisses government and military employees
- Media coverage here
(Guardian)
- Order
34 (21 September 2003) reinstates the Board of Supreme Audit,
dissolved under Order 2
- De-Baathification of Iraqi
Society (Order 1, 16 May 2003)
- removes "senior party members" (those of the highest
three ranks, and also senior managers determined by interview to
be Ba'athists) from current positions and bans them from public
sector employment
- bans images of Saddam Hussein from public places
- Offers rewards for the information leading to the capture of senior
Baath party officials
- Implementation is governed by Memorandum
1 (3 June 2003)
Government administration
- Ministry
of Displacement and Migration (Order 50, 11 Jan 2004) Establishes
the Ministry of Displacement and Migration (MODM), and transfers responsibility
for Palestinian refugees to it from the Ministry of Labor and Social
Affairs. This ratifies Governing Council Resolution Number 30. Although
Bremer mistakenly dates the order '1/11/03', the correct date is almost
certainly 11 Jan 2004
- Reform
of Salaries and Employment (Order 30, 9 September 2003)
- Renaming of Government Ministries
- Order 44 (26 November
2003) creates the Ministry of the Environment
- Order
33 (9 September 2003) renames the Ministry of Public Works as
the Ministry of Municipalities and Public Works
- Order
24 (1 September 2003) replaces the Ministry of Atomic Energy
with a new Ministry of Science and Technology
- Management
of detention and prison facilities (Order 10, 8 June 2003)
- Transfers responsibility for prisons to Ministry of Justice (from
Ministry of Labour and Social Affairs and Minisry of Interior)
- Implementation is governed by Memorandum
2 (8 June 2003)
- Management
and Use of Iraqi Public Property (Order 9, 8 June 2003)
- Establishes procedures for letting and government use of public
property
- Eviction
of persons illegally occupying Public Buildings (Order 6, 8 June
2003)
Regulations governing principal bodies
- International
Advisory and Monitoring Board terms of reference (11 October 2003)
- This body was established, as required in paragraph 12 of UN
security council resolution 1483 to audit use of the Development
Fund for Iraq.
- The IAMB website contains minutes
of meetings and other information
- A draft of the terms of reference,
dated 11 June 2003, shows some differences from the final version.
This draft, apparently proposed by the US administration of Iraq,
envisages the CPA appointing the first chair and 5 non-voting members).
Unlike the final draft, it does not propose the creation of a secretariat
for the IAMB, an omission which would have made it reliant on the
CPA for administrative support. Iraq Revenue Watch has a brief
commentary and another
copy of the draft (same text, but more legible)
- France and Germany emphasised the importance of founding the IAMB
in a set of proposed
amendments to a draft UN resolution in September 2003.
- Regulation
8: Delegation of authority regarding establishment of a property claims
commission (16 January 2004). An appendix
(23 January 2004) establishes an Iraqi property claims commission.
- Regulation
7: International Donor Assistance (5 December 2003). Substantially
rearranges planning and financial administration.
- Regulation
6: Governing Council of Iraq (13 July 2003)Recognizes the Governing
Council "as the principal body of the Iraqi interim administration,
pending the establishment of an internationally recognized, representative
government of the people of Iraq, consistent with Resolution
1483".
- Regulation 5: Council for International
Coordination (18 June 2003)
- Regulation
4: Property Reconciliation Fund (25 June 2003)
- Regulation 3: Program Review Board
(15 June 2003)
- Regulation
2: The Development Fund for Iraq (15 June 2003)
- draft version, dated June 10th.
- Commentary
from Iraq Revenue Watch (10 June 2003)
- UN Security Council Resolution
1483 allowed for the creation of the fund, and imposed restrictions
on its use. This requires that:
- The Development Fund for Iraq "be audited by independent
public accountants approved by the International
Advisory and Monitoring Board" (para 12)
- "the Development Fund for Iraq shall be used in a
transparent manner"
- the purposes of the Fund are "to meet the humanitarian
needs of the Iraqi people, for the economic reconstruction and
repair of Iraq’s infrastructure, for the continued disarmament
of Iraq, and for the costs of Iraqi civilian administration,
and for other purposes benefiting the people of Iraq"
- Regulation
1: The Coalition Provisional Authority (16 May 2003?)
- CPA will act as the temporary government of Iraq
- Existing laws will continue to operate until superceded by CPA
orders (though note that Order 7 made the 1969 penal code the basis
of criminal law
- Gives the CPA Administrator sole power to issue regulations and
orders
- Note that there is some confusion about the date of this regulation.
Although dated 16 May, it refers to UN Security Council resolution
1483, which was not passed until 22 May
- Interim
Exercise of Baghdad Mayoral Authority (Order 21, 5 August 2003)
- Powers of Mayor of Baghdad will be exercised by three Deputy Mayors.
The agreement of 2 Deputy Mayors is needed for any decision.
Legal Reform
- Public
Defender Fees (Order 53, 16 January 2004)
- Pensions
for Judges (Order 52, 14 January 2004)
- Notification of Criminal Offences
(Order 41, 24 September 2003)
- Confirms and extends the provisions of paragraph 219 of the 1969
Penal Code, which makes it an offence not to inform the authorities
of offences against the security of the state. The order:
- confirms the applicability of the law to knowledge of attacks
on public property or oil pipelines
- Penalties for failing to inform the CPA of offences will be
extended to allow for deportation of foreigners, and fines of
up to $5 million for foreigners
- Confirms applicability of several other paragraphs of the 1969
Penal Code, dealing with armed forces, attacks on public property,
and conspiracies aimed at attacks on the government. In many cases,
these offences are punishable by life inprisonment.
- Note that under Order
7, the written permission of the CPA administrator is needed
to bring charges under these laws, and the death penalty is suspended.
- Re-establishment
of the Council of Judges (Order 35, 18 September 2003)
- The Council of Judges will nominate promote and transfer judges,
investigate allegations of judicial misconduct, and provide independent
oversight of justice below the Supreme Court level
- Legal
Department of the Ministry of Justice (Order 32, 9 September 2003)
- Responsibility for international litigation on behalf of Government
of Iraq is transferred to the Ministry of Justice (from the Office
of the Council of Ministers). Personnel, authorities and responsibilities
remain unchanged.
- Freedom
of Assembly (Order 19, 9 July 2003)
- Prohibits public protests:
- Without the CPA being given 24 hours notice
- Within 500 metres of a CPA or Coalition Force facility
- Held by the same groups or individuals more than once in a
day
- Lasting more than four hours
- CPA may limit numbers allowed in demonstrations on roads
- Removes limits on freedom of assembly contained in 1969 Penal
Code
- CPA explanatory note may be found here
- Status
of the coalition, foreign liaison missions, their personnel and contractors
(Order 17, 28 June 2003)
- Gives legal immunity to coalition forces, CPA officials, foreign
CPA contractors, and foreign liaison mission personnel. Crimes committed
by them will be tried by their parent states, although the CPA may
request a trial under Iraqi law.
- Temporary
control of Iraqi borders, ports and airports (Order 16, 27 June
2003)
- Clarifies validity of passports
- Prevents senior Baath officials, and those suspected of terrorism,
WMD research or criminal offernces from leaving Iraq
- Sets criteria for granting and revoking entry permits, and for
searching and seizing property at borders
- Order is dated 26 June in the footer, 28 June in the note on the
first page, and 27 June in Paul Bremer's signature.
- Establishment
of the judicial review committee (Order 15, 23 June 2003)
- Establishes committee to remove and appoint judges and prosecutors,
and to invesigate their suitability to hold office.
- Committee will consist of 3 Iraqi and 3 foreign lawyers, appointed
by the Administrator of the CPA, each serving for 3 months.
- Prohibited
media activity (Order 14, 10 June 2003)
- prohibits broadcasts which:
- incite violence or civil disorder
- advocate alterations to Iraq's borders by violent means
- claim to represent the Ba'ath Party, or advocate its return
to power
- Allows the CPA to conduct unannounced investigations of media
organisations, and to confiscate their property and close their
premises without compensation
- The Central
Criminal Court of Iraq (Order 13, 18 June 2003)
- Traveling
Abroad for Academic Purposes (Order 8, 7 June 2003)
- rescinds all restrictions on foreign travel for students and academics
- Penal Code
(Order 7, 10 June 2003)
- Establishes 1969
penal code (3rd edition, with alterations) as basis for law
in Iraq. The text of the code is available in English
and Arabic.
- Abolishes torture and capital punishment
- Details of implementation are contained in Memorandum
3 (8 June 2003)
- An internal memo (word),
written by the CPA senior advisor to the Ministry of Justice on
26 June 2003, contains guidelines to the interpretation of the legal
system for judicial officials. The appendices are in separate files:
1
3
4
5
6.
Further Resources
page last updated: 18 February 2004
|
|
|