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Transitional Justice in Iraq: Learning the Hard Way

Published online by Cambridge University Press:  11 February 2014

Erin Daly
Erin Daly*
Affiliation:
Professor of Law and Vice-Dean, Widener University School of Law, Wilmington, Delaware, United States; [email protected].
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Abstract

The relationship between transitional justice and democracy is fraught and complex, and nowhere more so than in Iraq since the fall of Saddam Hussein. Iraq has experienced a range of transitional justice initiatives, including the trial and execution of its former leader, purges of the civil service and the military, and a series of reconciliation conferences. Yet democracy has not fully taken root and violence continues to plague many parts of the nation on a regular basis. This article argues that initiatives aimed at changing the structure of society – including but not limited to constitutionalism, frequent elections and the development of an independent judiciary – are more likely than purely symbolic efforts to contribute to the consolidation of democracy in the long term. It is these structural developments that have the greatest potential to transform society into a true democracy under the rule of law.

Keywords

transitional justiceIraqreconciliationpost-war politics
Type
Articles
Information
Israel Law Review , Volume 47 , Issue 1 , March 2014 , pp. 63 - 83
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2014 

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References

1 There are countless histories of Iraq, including, for instance, Haddad, Fanar, Sectarianism in Iraq: Antagonistic Visions of Unity (Hurst & Company 2011)Google Scholar; Polk, William R, Understanding Iraq (Harper Perennial 2005)Google Scholar; Tripp, Charles, A History of Iraq (3rd edn, Cambridge University Press 2007)CrossRefGoogle Scholar. For a particularly insightful history of the Kurdish situation, see Randal, Jonathan C, After Such Knowledge, What Forgiveness? My Encounters with Kurdistan (Farrar, Straus, Giroux 1997)Google Scholar.

2 The Pew Forum on Religion and Public Life, ‘Mapping the Global Muslim Population: A Report on the Size and Distribution of the World's Muslim Population’, Pew Research Center, October 2009, 9 http://www.pewforum.org/files/2009/10/Muslimpopulation.pdf.

3 For analysis of the role of the past and the future in reconciliation initiatives, see generally Daly, Erin and Sarkin, Jeremy, Reconciliation in Divided Societies: Finding Common Ground (University of Pennsylvania Press 2006)Google Scholar. See also Skaar, Elin, Gloppen, Siri and Suhrke, Astri (eds), Roads to Reconciliation (Lexington Books 2005)Google Scholar; Roht-Arriaza, Naomi and Mariezcurrena, Javier, Transitional Justice in the Twenty-First Century (Cambridge University Press 2006)CrossRefGoogle Scholar; Tutu, Desmond, No Future Without Forgiveness (Doubleday 1999)Google Scholar; Antohi, Sorin and Tismaneau, Vladimir (eds), Between Past and Future: The Revolutions of 1989 and their Aftermath (Central European University Press 2000)Google Scholar; Rotberg, Robert and Thompson, Dennis (eds), Truth v. Justice: The Morality of Truth Commissions (Princeton University Press 2000)CrossRefGoogle Scholar; Christodoulidis, Emilios and Veitch, Scott (eds), Lethe's Law: Justice, Law and Ethics in Reconciliation (Hart North America 2001)Google Scholar; J Kritz, Neil, Transitional Justice: How Emerging Democracies Reckon with Former Regimes (United States Institute of Peace 1995)Google Scholar.

4 This view emerged very strongly in the South African transition of the late 1990s: see, eg, Villa-Vicencio, Charles with Verwoerd, Wilhelm, Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (University of Cape Town Press 2000)Google Scholar; Villa-Vicencio, Charles (ed), Transcending a Century of Injustice (Institute for Justice and Reconciliation 2000)Google Scholar; Boraine, Alex, A Country Unmasked: Inside South Africa's Truth and Reconciliation Commission (Oxford University Press 2000)Google Scholar. On the other hand, other countries have rejected the amnesty or forward-looking model, and focused their transitional attentions on the past, as illustrated most notably in Rwanda in the aftermath of its 1994 genocide: see, eg, Daly, Erin, ‘Between Punitive and Reconstructive Justice: The Gacaca Courts in Rwanda’ (2002) 34 New York University Journal of International Law and PoliticsGoogle Scholar 355. See also Linz, Juan and Stepan, Alfred, Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe (Johns Hopkins University Press 2011)Google Scholar on similar choices outside of Africa.

5 Daly, Erin, ‘Transformative Justice: Charting a Path to Reconciliation’ (2002) 12 International Legal PerspectivesGoogle Scholar 73.

6 For example, Tim Arango, ‘Clashes in Iraq Carry Worries of a New Civil War’, The New York Times, 23 April 2013, http://www.nytimes.com/2013/04/29/world/middleeast/clashes-in-iraq-carry-worries-of-a-new-civil-war.html?emc=eta1&_r=0.

7 See generally Justice In Perspective, http://www.justiceinperspective.org.za/middleeast/iraq/theiraqihighercriminalcourtformerlytheiraqspecialtribunal.html#iraqupdate.

8 Rory Carroll, ‘Saddam Trial to Open with Village Massacre’, The Guardian, 6 June 2005, http://www.guardian.co.uk/world/2005/jun/07/iraq.rorycarroll.

9 Coalition Provisional Authority Order Number 1, CPA/ORD/16 May 2003/01. For a discussion of the Regulation, see International Center for Transitional Justice, Briefing Paper: Iraq's New Accountability and Justice Law (ICTJ 2008) 4–5.

10 See also Pfiffner, James P, ‘US Blunders in Iraq: De-ba'athification and Disbanding the Army’ (2010) 25 Taylor & Francis Group Intelligence and National SecurityGoogle Scholar 80. See also Balfour, Guy B and Adams, Danny L, ‘Ethical Failings, Incompetence and Administrative Evil: Lessons from Katrina and Iraq’ in Cox, Raymon W (ed), Ethics and Integrity in Public Administration: Concepts and Cases, (ME Sharpe 2009)Google Scholar 57 (estimating that 400,000 conscript members of the regular army were let go).

11 Balfour and Adams, ibid 57; Pfiffner, ibid 79.

12 Tripp (n 1) 282.

13 ibid 304.

14 Kenneth Katzman, ‘Iraq: Politics, Governance, and Human Rights’, Congressional Research Service, 22 August 2012, 15.

15 ibid 12.

16 It is not without irony that Adams and Balfour describe the Bush Administration in this way: ‘[W]e see the egregious misuse of political appointments, with multiple appointments of people who simply had no visible qualifications for the positions they assumed, and who went on to act incompetently. One question that arises is whether the explanation for these appointments was simple corruption (seeing these appointments as the “spoils” of winning political office) or ideology (in this case, the conviction that government is simply not able to do anything well, so that whoever is in any given government position really does not much matter)’: Balfour and Adams (n 10) 60.

17 Coalition Provisional Authority Order Number 5,'Establishment of the Iraqi De-Baathification Council', CPA/ORD/25 May 2003/05, 2.

18 Law No 10 of 2008 (Iraq), arts 3(4) and 3(5). Unofficial translation by GJPI, University of Utah, SJ Quinney College of Law, http://gjpi.org/wp-content/uploads/law-no-10-of-2008-on-accountability-and-justice-eng.doc/.

19 ibid arts 3(1) and 3(2) respectively.

20 ibid art 3(6).

21 Dai Yamao, ‘National Reconciliation as a Tool of Political Struggles: An Inquiry into Nation Building in Post-War Iraq’, presented at the World International Studies Committee: Third Global International Studies Conference, University of Porto (Portugal), 18 August 2011, 12.

22 Human Rights Watch, ‘World Report 2011 – Iraq’, Human Rights Watch, 24 January 2011, http://www.unhcr.org/refworld/docid/4d3e801ed.html. See also http://www.hrw.org/node/88800.

23 Khaled Waleed, ‘No More Ba'aths: Wiping out Saddam or Starting the Next Civil War?’, Niqash, 27 October 2011, http://www.niqash.org/articles/?id=2929.

24 Yamao (n 21) 13: ‘Each party used the reconciliation and De-Baathification policy according to its own understanding to criticize its political opponents; thus, the reconciliation policy became a political tool’; Yamao provides an overview of anti-ba'athist lustration policies since 2003, including analysis of governmental structures and comparison of the CPA's 2003 orders and the Supreme National Commission of Justice and Accountability, established under Law 10 of 2008.

25 See above, Section 2; see also, eg, Henri J Barkey, ‘Iraq may be Destined for a Break-Up’, Gulfnews, 28 March 2013, http://gulfnews.com/opinions/columnists/iraq-may-be-destined-for-a-break-up-1.1164084; see also Arango (n 6).

26 Yamao (n 21) 10.

27 Cordesman, Anthony H, Barriers to Reconciliation in Iraq: Tensions between Sunnis, Shi'ites, and Kurds, and the Role of External Powers (Center for Strategic and International Studies 2010)Google Scholar 56.

28 ibid 56. See also International Republican Institute, ‘Survey of Northern Triangle Opinion’, 13–18 April 2011, http://www.iri.org/sites/default/files/2011%20June%2016%20IRI%20Releases%20Survey%20of%20Iraqi%20Public%20Opinion,%20April%2013-18,%202011.pdf.

29 Human Rights Watch (n 22).

30 Institute for Democracy and Electoral Assistance, ‘Voter Turnout Data for Iraq’, http://www.idea.int/vt/country_view.cfm?CountryCode=IQ.

31 Thom File and Sarah Crissey, ‘Voting and Registration in the Election of November 2008: Population Characteristics', United States Census Bureau, July 2012,1, http://www.census.gov/prod/2010pubs/p20-562.pdf.

32 Mary Casey and Jennifer Parker, ‘Iraqis Vote in Provincial Elections’, Foreign Policy Mideast Brief, 22 April 2013, http://mideast.foreignpolicy.com/posts/2013/04/22/iraqis_vote_in_provincial_elections (noting that ‘[a]bout 8,138 candidates are competing for 447 provincial council seats’).

33 Daoud al-Ali, ‘Election Results So Far: Low Voter Turnout, More Compromise Needed’, Niqash, 25 April 2013, http://www.niqash.org/articles/?id=3211.

34 The Iraqi Partners Forum has argued that ‘[n]ot addressing the status of these areas has been one factor in sometimes difficult relations between the central government and the Kurdistan region which, to date, has arguably held up legislation in Baghdad viewed as central to the process of national reconciliation in Iraq. This has included the hydrocarbon package of laws, efforts to promote a constitutional review, and the process of approving provincial and national election laws, among others’: Iraq Partners Forum, The Iraq Briefing Book (2010) 69–70, http://unami.unmissions.org/LinkClick.aspx?fileticket=hSc1EtZQn4k%3D&tabid=3441&language=en-US. See also International Republican Institute (n 28) 72–74.

35 Hamoudi, Haider Ala, ‘Judicial Independence in Times of Crisis: The Will of the (Iraqi) People’ (2011) Utah Law Review 45, 45–46Google Scholar.

36 ibid 53–55.

37 See generally Watson Institute for International Studies, ‘The Costs of War – Education: Universities in Iraq and the US', 2011, http://costsofwar.org/article/education-universities-iraq-and-us.

38 Tutu (n 3) x.

39 See also Mustafa Habib, ‘An Unconstitutional Council? Tensions betwen Iraqi Leaders Deepen over New Political Body’, Niqash, 19 October 2011, http://www.niqash.org/articles/print.php?id=2923&lang=en (describing the negotiation and point-allocation system for parliamentary posts).

40 ‘It took nearly three months for the results of Iraq's parliamentary election on 7 March to be ratified, after numerous complaints and appeals’: David Batty, ‘Iraq Close to Forming a New Government’, The Guardian, 2 October 2010, http://www.guardian.co.uk/world/2010/oct/02/iraq-close-forming-new-government.

41 Yamao (n 21) 12.