Bringing the Rule of Law to Iraq
most attorneys would deny it, one of the major crafts that lawyers learn in
if to make this point, the London-based Iraqi Jurist Association (IJA), in
cooperation with the Working Group on Transitional Justice affiliated with the
U.S. State Department's Future of Iraq Project, recently released a 700-page
tome in which it described the group’s proposals for a transition to the rule
of law in liberated
they like to say in legal circles: The facts speak for themselves.
IJA, which is primarily responsible for this report, is the largest association
of Iraqi attorneys and jurists outside of
* To retain current Iraqi law, with objectionable sections expunged.
* To try Iraqis accused of war crimes in Iraqi courts, by Iraqis.
* To establish a truth and reconciliation commission empowered to grant amnesty to "lesser officials" in return for a "full and complete accounting" for their crimes.
Al-Sarraf is a Los Angeles-based Iraqi-American attorney who has been acting as
a spokesman for IJA. He argues that using existing Iraqi law as a basis for a
the matter of those accused of war crimes, Al-Sarraf argues passionately
"that these crimes be prosecuted in
and reconciliation procedures were very effective in
will require a truth-telling process to make sure that everyone's story gets
out, and that it's recorded for future generations of Iraqis to understand the
misery that the Ba'ath regime brought to the Iraqi people," he said. Tariq
Saleh, who is the IJA chairman and a former Iraqi judge, explained that
"the defendant would have to confess his crime [and] apologize [to] the
victims of his crime and to society" before being eligible for amnesty.
first glance, what’s wrong with these proposals? They appear to represent a
voice of reason, they give right-thinking Iraqis the ability to set straight
their own affairs, and they include a realistic assessment that the cycle of
violence must stop somewhere.
examination raises some questions. Iraqi law in its present form is a haphazard
mix of English Common Law imposed when modern
the context of a democratic society, there certainly is nothing wrong with
English Common Law. It forms the basis of our own legal system, and is honored
throughout the civilized world.
Shari’ah, on the other hand,
defines an Islamic state. An Islamic state is a theocracy
governed by the Shari’ah,
which is analogous to codified law in Western society. It consists of the
Qur’an (which Muslims believe was revealed by Allah to Mohammad during the 7th
century), and the Sunnah (which records the Prophet's life), and a constantly
evolving collection of Fatwas or rulings that deal with every aspect of Islamic
life from ideology to practical daily matters.
Islamic history, Imams and Mullahs have issued Fatwas, which have the force of
law among Muslims, similar to a ruling by a Western court. As in the West, these
rulings can be confirmed or overturned by a higher authority, by issuing an
order known as a Fiqh. In
its worst incarnation, Islamic Shari’ah
gave us the brutal Taliban rule of
When the Ba’athists assumed power back in the 1970s, they had as a main goal the decoupling from Islam of both the Iraqi and Syrian governments. Had they chosen a democratic model for their efforts, life in these two countries today might be significantly better. Unfortunately, they chose a fascist model for their reconstruction efforts. Both governments quickly degenerated into brutal dictatorships, without Islam, to be sure, but minus any sense of freedom or self-determination either.
When Saddam Hussein assumed power, he moved quickly to modify existing Iraqi law so that he could carry out his nefarious plans while seeming to be acting within the law. One of the most egregious examples of his legal restructuring is a law that makes membership in any political party other than the Ba’ath Party punishable by death. This law specifies any party membership, past, present or future.
It might be possible to go through current Iraqi law, code by code, line by line, evaluating each element, retaining only those that make sense within the current context of a free, democratic country. But why do this? It seems like a tremendous amount of work to arrive at a set of laws that already exists in one of several forms in today’s world.
world has a well-accepted, tested framework of international law that addresses
war crimes. It would be shortsighted to modify Iraqi law to cover the war crimes
scenario simply in order to bring Hussein and his cronies to justice inside
truth and reconciliation process appears to have some merit. The
Ba’athists have been in power for over a quarter century. Many otherwise good
people have been caught up in the political process of governing a nation –
not Ba’athists by choice, but out of necessity. They did what was necessary to
keep themselves and their families alive. This was not honorable, not right, but
historical precedent of granting such people amnesty for their full and complete
testimony can lead to the discovery of deliberate perpetrators of torture and
death, and goes a long way towards healing the wounds of a nation that has
suffered too long at the hands of a minority of its citizens.
your guilt, apologize to your victims, relinquish any gains you might have
received from your activities, and live your life henceforth as a law-abiding,
contributing member of society.
seems to work.
summary, while the IJA’s desire to retain current Iraqi law with appropriate
modifications appears to be well-meaning, the
Iraqi man-on-the-street simply wants to live his life and provide for his family
in an environment of peace and freedom. We can accomplish this best by providing
the Iraqis with a governmental structure and a legal framework that are
time-tested, and guaranteeing them a peaceful window of opportunity to put the
machinery in place and work out the inevitable bugs before leaving them to their
IJA’s proposal to allow
We should, however, carefully consider the truth and reconciliation process. It might serve well the Iraqi’s interests, as well as ours and the rest of the world’s.