Long Path Ahead for Establishing Rule of Law in Iraq

By Ori Nir

Published April 18, 2003, issue of April 18, 2003.
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WASHINGTON — Looting, vandalism and murderous retribution — the visible expressions of lawlessness that immediately followed the fall of Saddam Hussein’s regime — do not even begin “to touch the tip of the iceberg” of the legal challenge that America and its allies face in Iraq, says Neil Kritz, one of the nation’s leading experts on international legal reform.

Kritz, who has helped in establishing reformed legal systems in politically transformed countries such as Afghanistan, Bosnia and Sierra Leone, is now advising the Bush administration on the legal de-Baathification of Iraq.

Interviewed last week at his Washington office in the government-funded United States Institute of Peace, where he directs the Rule of Law Program, Kritz seemed less than impressed with the way the administration has prepared itself for maintaining law and order in occupied Iraq. He was cautiously critical, too, of the way the administration has begun handling the establishment of a new legal system, including new laws and a procedure for seeking justice for crimes committed by members of Saddam’s Baath regime.

Pressed on his evaluations, however, he was not eager to second-guess the administration. “I would rather not comment on my own evaluation of the administration’s preparations,” Kritz said. “Suffice to say that this is hard stuff to do, and it takes a good deal of preparation and a good deal of organization.” He did point out, however, that the American occupation forces in Iraq, which are required under international law to enforce the law of the land, had armed themselves with little advance knowledge of Iraqi law before invading. Even now, there is no English translation of Iraq’s legal code available to the American government. Only recently has a group of exiled Iraqi jurists in London issued a full Arabic-language text of these laws, for the first time in the West.

Kritz says he is mainly concerned with the process of bringing a sense of justice, integrity and accountability to Iraqi society, as a key ingredient for healing and rebuilding it. As such, he said, he was disturbed by the scenes of unrestrained looting that followed the collapse of Hussein’s regime. “These images, of coalition forces standing aside while massive looting takes place, convey very much the wrong message,” he said. “It makes it so much easier for criminals under the regime — and we have seen it happen in other places — to simply convert their deeds into organized crime, in ways that if not controlled early on can become a much more serious problem to deal with later.”

The larger process of rebuilding Iraq’s law and its rule of law will take years, Kritz said: “You may be looking at something of a similar scale to the purge processes of European countries after World War II.”

Kritz, an Orthodox Jew and a member of Kemp Mill Synagogue in suburban Maryland, expects to leave for Iraq as the situation there stabilizes, where he will work in his capacity as an advisor to the American government to help remake Iraq’s legal and judicial systems.

The strategy for rebuilding the country’s legal system should involve several simultaneous processes, he said. Parallel to the establishment of a law-enforcement authority, a transitional legal code should be adopted. Coalition forces will have to assume responsibility for effective law enforcement until a local police force can take over these responsibilities. This could happen sooner than is commonly believed, Kritz said, because Iraq’s civilian police were largely uninvolved in the regime’s atrocities, and therefore should not be viewed by either the occupation forces or by Iraqis as suspect or hostile.

As order is established, he said, the current repressive Baathist legal code should be revised. The occupying powers have the legal authority to do that by decree. They could use recommendations of a team of exiled Iraqi jurists, who have extensively reviewed current and pre-Baath Iraqi laws in cooperation with the State Department. Later on, the transitional authority in Iraq could adopt a universal transitional legal code that was recently devised by a multinational group of experts and is soon to be ratified in an international conference of jurists in Geneva. Once an elected government takes over, it could devise a new code of law or use the universal transitional one as a basis for a new national legal code for Iraq. Meanwhile, judges, lawyers, law-enforcement personnel and other legal professionals would have to be retrained.

Kritz said one of the most monumental tasks ahead would be the establishment of a legal mechanism to try Iraqi officials implicated in atrocities. There is a debate over the desired format of such a system, both inside Washington and between America and its allies.

The Bush administration last week indicated that it favors establishing Iraqi war-crimes tribunals over international United Nations-sponsored courts. “For the past crimes, it’s an Iraqi-led process. They’re going to be out front. It’s a matter of us offering assistance so that this will be fair,” American war crimes ambassador Pierre-Richard Prosper told reporters at a Pentagon briefing last week. He did concede, however, that Iraq’s legal system may not be able to handle such a challenge, which is why American participation could be “substantial, depending what the needs are.” The administration is willing to provide money, logistical support and staff, he said.

America’s European allies, as well as human rights activists in the United States and some Democratic legislators on Capitol Hill, criticized the administration’s approach. They cautioned that an American-dominated procedure would lack credibility and create the impression of a “victor’s justice,” in which the Iraqi jurists running the trials would be dismissed as American-manipulated marionettes.

As a compromise, Kritz favors the creation of an Arab court, in Baghdad, with prosecutors, lawyers and judges drawn from the Arab world, “so that the entire proceeding is conducted in Baghdad, in Arabic, without the need for translation. Potentially that could be very significant as the first instance where there would essentially be a pan-Arab approach to deal with accountability for atrocities and punity” in an Arab country, Kritz said.

Such a tribunal, however, “would be able to handle a small amount of the thousands of potential cases,” Kritz said. “So separate from that, you would then have trials taking place in the regular Iraqi courts for crimes under Iraqi law.”

That would involve many thousands of potential suspects, Kritz said, because of the vast involvement of Iraqi citizens in the apparatus of the Baath establishment. Prosecuting such suspects, therefore, would require an extensive vetting process. Kritz recently prepared a short memo for President Bush’s National Security Council explaining the importance and suggesting modalities of such a vetting process. A special commission would have to be established for that purpose, comprising mainly credible Iraqi citizens, with the possible addition of representatives of the occupation authorities and the international community. The process would have to balance “the need to purge with the necessity of ‘keeping the trains running,’” the memo says. First, it should focus on removing “unsuitable personnel” from the security forces. Then, it would need to involve secondary and tertiary tiers of the judiciary, the education and financial systems, the media and more. Such a process, followed by prosecution and trials, would take years, Kritz said.

“This is a long process,” Kritz said. “On the other hand, you can’t postpone it. People [in Iraq] need to feel that there is a change and that these issues are addressed.”






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