Bringing the Rule of Law to Iraq

Although most attorneys would deny it, one of the major crafts that lawyers learn in Law School is obfuscation. If you doubt this, pick up any article written by any attorney and compare it to the straightforward writing you find in this article.

As 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 Iraq.

Ipso facto, as they like to say in legal circles: The facts speak for themselves.

The IJA, which is primarily responsible for this report, is the largest association of Iraqi attorneys and jurists outside of Iraq. They eagerly await the opportunity to participate in guiding a liberated Iraq towards the rule of law. Distilled to its essence, their report proposes:

* 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.

Sermid 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 new Iraq founded on the rule of law will smooth the way for former Iraqi jurists to resume the practice of law within a familiar framework. He also argues that the Iraqi man-on-the-street will be more comfortable living under a familiar legal system, and therefore less likely to resist its controls.

On the matter of those accused of war crimes, Al-Sarraf argues passionately “that these crimes be prosecuted in Iraq, in Iraqi courts, under Iraqi law, by Iraqi jurists, with the assistance of international experts.” He proposes that this venue is appropriate for Saddam Hussein and his upper-level cronies, and for those specific individuals who are known or suspected to have personally participated in heinous war crimes.

Truth and reconciliation procedures were very effective in South Africa, and have been applied in Latin America and elsewhere following overthrow of harsh dictatorships. In proposing to go this route, Al-Sarraf stressed that truth is just as important as the reconciliation represented by amnesty.

“This 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.

At 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.

Closer examination raises some questions. Iraqi law in its present form is a haphazard mix of English Common Law imposed when modern Iraq was created out of elements of the old Ottoman Empire following World War I, Islamic Shari’ah, and Saddam Hussein’s modifications over the last quarter century.

Within 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.

Islamic 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.

Throughout 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 Afghanistan.

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.

The 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 Iraq.

The 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 often understandable.

The 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.

Acknowledge 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.

It seems to work.

In summary, while the IJA’s desire to retain current Iraqi law with appropriate modifications appears to be well-meaning, the United States and its coalition partners should impose a new legal framework on Iraq, one that is derived directly from the U.S. Constitution, that has stood the test of time.

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 self-directed fate.

The IJA’s proposal to allow Iraq to hold its own war crimes tribunal should be rejected as a bad idea. War crimes need to be judged internationally, by the well-established rules the world already acknowledges.

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.

Robert G. Williscroft is DefenseWatch Navy Editor