[Senate Hearing 108-217]
[From the U.S. Government Publishing Office]
S. Hrg. 108-217
CONSTITUTIONALISM, HUMAN RIGHTS,
AND THE RULE OF LAW IN IRAQ
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON NEAR EASTERN
AND SOUTH ASIAN AFFAIRS
OF THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
AND THE
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL
RIGHTS AND PROPERTY RIGHTS
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
JUNE 25, 2003
__________
Printed for the use of the Committee on Foreign Relations
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COMMITTEE ON FOREIGN RELATIONS
RICHARD G. LUGAR, Indiana, Chairman
CHUCK HAGEL, Nebraska JOSEPH R. BIDEN, Jr., Delaware
LINCOLN CHAFEE, Rhode Island PAUL S. SARBANES, Maryland
GEORGE ALLEN, Virginia CHRISTOPHER J. DODD, Connecticut
SAM BROWNBACK, Kansas JOHN F. KERRY, Massachusetts
MICHAEL B. ENZI, Wyoming RUSSELL D. FEINGOLD, Wisconsin
GEORGE V. VOINOVICH, Ohio BARBARA BOXER, California
LAMAR ALEXANDER, Tennessee BILL NELSON, Florida
NORM COLEMAN, Minnesota JOHN D. ROCKEFELLER IV, West
JOHN E. SUNUNU, New Hampshire Virginia
JON S. CORZINE, New Jersey
Kenneth A. Myers, Jr., Staff Director
Antony J. Blinken, Democratic Staff Director
------
SUBCOMMITTEE ON NEAR EASTERN
AND SOUTH ASIAN AFFAIRS
LINCOLN CHAFEE, Rhode Island, Chairman
CHUCK HAGEL, Nebraska BARBARA BOXER, California
SAM BROWNBACK, Kansas JON S. CORZINE, New Jersey
GEORGE V. VOINOVICH, Ohio JOHN D. ROCKEFELLER IV, West
NORM COLEMAN, Minnesota Virginia
PAUL S. SARBANES, Maryland
------
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Makan Delrahim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on the Constitution, Civil Rights and Property Rights
JOHN CORNYN, Texas, Chairman
JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina EDWARD M. KENNEDY, Massachusetts
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
James C. Ho, Majority Chief Counsel
Robert F. Schiff, Democratic Chief Counsel
(ii)
C O N T E N T S
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Page
Hearing Transcript
Agawa, Naoyuki, minister and director of the Japan Information
and Culture Center, Embassy of Japan........................... 57
Prepared statement........................................... 59
Boxer, Hon. Barbara, U.S. Senator from California, prepared
statement...................................................... 3
Chafee, Hon. Lincoln D., U.S. Senator from Rhode Island, opening
statement...................................................... 2
Cornyn, Hon. John, U.S. Senator from Texas, opening statement.... 1
El Fadl, Khaled Abou, professor of law, UCLA School of Law....... 17
Prepared statement........................................... 18
Feingold, Hon. Russell D., U.S. Senator from Wisconsin, opening
statement...................................................... 4
Haykel, Bernard, professor, Department of Middle Eastern Studies,
New York University............................................ 13
Prepared statement........................................... 15
Howard, A.E. Dick, White Burkett Miller Professor of Law and
Public Affairs, University of Virginia Law School.............. 68
Prepared statement........................................... 70
Kennedy, Hon. Edward M., U.S. Senator from Massachusetts,
prepared statement............................................. 38
Kommers, Donald, Joseph and Robbie Professor of Political Science
and Professor of Law, Notre Dame School of Law................. 64
Prepared statement........................................... 67
Kritz, Neil, director, Rule of Law Program, U.S. Institute of
Peace; accompanied by Louis Aucoin............................. 75
Prepared statement........................................... 77
Pollack, Kenneth M., senior fellow, Saban Center for Middle East
Policy, Brookings Institution.................................. 7
Prepared statement........................................... 9
Salbi, Zainab, president and founder, Women for Women
International.................................................. 32
Prepared statement........................................... 35
Al-Sarraf, Sermid, member, Board of Directors, Iraqi Jurists'
Association.................................................... 27
Prepared statement........................................... 30
Yoo, John, visiting fellow, American Enterprise Institute........ 48
Prepared statement........................................... 49
Appendix
Transitional Justice in Post-Saddam Iraq: The Road to Re-
establishing Rule of Law and Restoring Civil Society, a report
of the Working Group on Transitional Justice in Iraq and the
Iraqi Jurists' Association..................................... 91
Material submitted by the United States Institute of Peace:
Conclusions of USIP Roundtable on Lessons learned From Prior
Vetting Processes.............................................. 109
Project on Constitution-Making, Peace Building, and National
Reconciliation................................................. 111
(iii)
CONSTITUTIONALISM, HUMAN RIGHTS,
AND THE RULE OF LAW IN IRAQ
----------
Wednesday, June 25, 2003
U.S. Senate,
Subcommittee on Near Eastern and
South Asian Affairs,
Committee on Foreign Relations
Subcommittee on the Constitution,
Civil Rights and Property Rights,
Committee on the Judiciary,
Washington, D.C.
The subcommittees met, pursuant to notice, at 2:13 p.m. in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
chairman of the Subcommittee on the Constitution, Civil Rights
and Property Rights, Committee on the Judiciary, and Hon.
Lincoln Chafee, chairman of the Subcommittee on Near Eastern
and South Asian Affairs, Committee on Foreign Relations,
presiding.
Present: Senators Cornyn, Chafee, and Feingold.
OPENING STATEMENT OF HON. JOHN CORNYN,
U.S. SENATOR FROM TEXAS
Senator Cornyn. This joint hearing of the Senate Judiciary
Subcommittee on the Constitution, Civil Rights and Property
Rights and the Senate Foreign Relations Subcommittee on Near
Eastern and South Asian Affairs shall come to order.
In a moment I want to begin my opening statement and then
turn the floor over to Senator Chafee, the chairman of the
Foreign Relations subcommittee, and then to my ranking member,
Senator Feingold, and Senator Boxer, the ranking minority
Member of Senator Chafee's committee, but I want to first
express my appreciation to Chairman Hatch and also to Chairman
Lugar, who is the chairman of the Senate Foreign Relations
Committee, as well as Senators Biden, obviously Senators Chafee
and Boxer for all the hard work that they've done and their
staffs have done to make sure that this hearing could proceed
today.
It is my honor to join Chairman Chafee in opening our joint
subcommittee hearing this afternoon on the issue of
constitutionalism, human rights, and the rule of law in Iraq.
Today, the lights are back on in Baghdad. The sound of
gunfire is still there, but not quite so loud as before. The
climate in Iraq can best be described as cautious unease. The
Iraqi people today are free of Saddam, but they are not yet
free of fear. We've seen progress when it comes to ensuring the
basic security of the Iraqi people, the recruitment of a new
police force, the continued elimination of Ba'athist party
remnants, and the capture of armed gangs of militants, all of
which are positive signs, but clearly there is a lot more that
needs to be done.
We must end the looting and the street violence and restore
the rights of the Iraqi people. The foundation of a peaceful,
just, and prosperous society cannot be constructed while
lawlessness reigns. The current unstable situation is at least
in part, I believe, an unintended by-product of the swiftness
and efficiency of our own military forces and coalition forces.
Never before has the world witnessed such a marvel of
technology, training, dedication, and leadership in war, and I
am enormously proud of our heroic men and women in uniform who
bravely put themselves at risk for the cause of freedom.
Yet currently, the only thing that prevents the mass
outbreak of conflict by Iraq's rival ethnic and religious
groups is the authority of coalition military forces. This stop
gap is clearly no substitute for long-term solutions. The Iraqi
people must relearn how to govern themselves and police
themselves.
We can harbor no illusions about the reconstruction of
Iraq. The current occupation will not and perhaps should not be
brief. While the administration understandably wants to return
Iraq to the Iraqi people as soon as possible, this well-
intentioned desire could backfire. Iraq looks a lot like the
Old West right now, and we need lawmen to restore peace and to
protect the populace. In my State, the Texas Rangers have a
saying, ``One Ranger, One Riot,'' but Iraq will need more than
just one police officer, one Ranger. It will need a substantial
professional and civilian police force untainted by Saddam's
enforcers.
I am delighted to be able to co-chair this hearing with
Senator Chafee, and I want to make sure we have plenty of time
to hear from my colleagues here during their opening
statements, and so I'm going to submit the rest of my opening
statement for the record, but one of the things that I hope we
achieve here today is that we have intelligent discourse and
exchange on what post-war reconstruction looks like in Iraq
from people who are really world-recognized experts in various
aspects of, either that of geographical location and the
culture and the history of the Iraqi people, or others who are
experts in the law, who can help illuminate, I think, a civil
discourse on what it will take to establish the rule of law in
Iraq, and hopefully help the Iraqi people nurture a democratic,
representative government in that nation.
With that, let me please turn the floor over to my co-chair
for the purposes of this hearing, Senator Lincoln Chafee.
STATEMENT OF HON. LINCOLN D. CHAFEE,
U.S. SENATOR FROM RHODE ISLAND
Senator Chafee. Thank you very much, Senator Cornyn. It's a
pleasure to co-chair this hearing with you this afternoon, and
welcome the distinguished panelists who have taken their
valuable time to be here with us also this afternoon.
A few weeks ago, May 22 in particular, Deputy Secretary of
Defense Paul Wolfowitz appeared before the Foreign Relations
Committee and I asked him, what are the effects of what we have
done in Iraq, and he said three things in particular. The first
is, he thought it would have a positive impact on the Israeli-
Palestinian peace process. Second, he thought it would improve
the strategic position of Saudi Arabia and other moderate Arab
countries in the region, and third, he said it would bring us
to a point where Iraq could be a model of democracy in the Arab
world, and that's why we're here this afternoon, to see that
process started which, of course, the first step is to have a
constitution, and I look forward to hearing from the
distinguished people who will advise us on the process to go
forward in establishing a constitution for Iraq as the first
step to democracy.
I did notice from Dr. El Fadl's submitted written testimony
I think something that's very true, and he said, the worst
thing that the Government of the United States could possibly
do while acting as an occupying power in Iraq is to impose upon
the Iraqi people a political condition that is so artificial,
that is so alien to the collective consciousness of the Iraqis,
that it is at odds with the historical experience and
aspirations, that it appears that the United States is, in
fact, acting like a power of occupation and domination, not
persuasion and liberation.
The danger is that if the United States appears hostile or
insensitive to the religious sentiments of the Iraqis, this
will invite resistance. It would be a real tragedy if the
democratic experiment in Iraq fails, not because the Iraqis do
not believe in democracy but because democracy is seen as part
of an ideological package of an aggressive or imperialistic
occupying force, and I think that's the most important thing.
What a tragedy it would be if democracy fails because we
didn't do it right, and of course the first step is to get a
good constitution, and I look forward to the testimony as we go
forward.
Senator Cornyn. Thank you, Senator Chafee, and now I'd like
to turn the floor over to the ranking member of the
Constitution Subcommittee, Senator Russ Feingold, who has
worked with us, he and his staff, to prepare this hearing
today, and Senator Feingold, I'll turn it over to you.
Senator Feingold. Thank you, Mr. Chairman. First let me
ask, Senator Boxer has asked that her statement be submitted
for the record.
Senator Cornyn. Without objection.
[The prepared statement of Senator Boxer follows:]
Statement Submitted by Senator Barbara Boxer
Chairman Chafee, Chairman Cornyn, thank you for holding this
hearing today on Constitutionalism, Human Rights and the Rule of Law in
the Nation of Iraq.
The Senate Foreign Relations Committee has held several hearings on
Iraq since last July, beginning under the leadership of Chairman Biden
and then under Chairman Lugar. In February, prior to U.S. military
action against Iraq, the committee held a hearing on post-Saddam Iraq.
Representatives of both the State Department and Department of Defense
testified.
The committee asked several questions:
Who will rule Iraq?
Who will provide security?
How long will U.S. troops have to say?
What will be the role of the U.N.?
What allies will share the burden of reconstructing Iraq?
During this hearing, the committee failed to get clear answers--
only rosy scenarios. As Chairman Lugar recently said, ``We were unable
in this committee to find very much from the administration about what
they were going to do.'' The administration--in the Chairman's own
words--was not ``well prepared.''
In my view, the number one priority in Iraq is to provide basic law
and order. It is unfortunate that we were not better prepared to stop
the looting and lawlessness that took place after the fall of Baghdad.
Now, our military men and women, who so ably fought to rid Iraq of
Saddam Hussein, are frustrated that they have not been given the tools
or training to act as peacekeepers.
According to the Washington Post, ``soldiers complain that they
have been insufficiently equipped for peacekeeping and too thinly
deployed in areas where they are under attack from fighters evidently
loyal to deposed president Saddam Hussein.''
Because of the Bush administration's insistence on a unilateral
policy toward Iraq, the task of keeping peace falls almost exclusively
to the United States. Right now, the U.S. has 146,000 troops in Iraq--
non-U.S. coalition forces number 12,000. U.S. forces make up 92 percent
of the total. To compare, after hostilities ended in Bosnia, the
security force was about one-third American; in Kosovo, about one-
fifth. It is imperative that we do more to involve other nations in
maintaining law and order in Iraq.
A second issue we face is how to establish a viable transitional
government of Iraq. It is clear that the administration's initial plans
have failed. General Gamer has been recalled and replaced by a civilian
administrator. The Pentagon's plan to give power to Mr. Chalabi and the
Iraqi National Congress has apparently been scrapped.
Unlike Afghanistan where a Loya Jirga allowed Hamid Karzai to take
control relatively soon after the fall of the Taliban, no such
mechanism to produce a viable Iraqi leader has emerged.
Finally, I want to highlight the need to ensure that our initial
missteps in Iraq do not lead to a rise in religious fundamentalism. In
yesterday's New York Times, Nicolas Kristof writes that, ``An iron
curtain of fundamentalism risks falling over Iraq, with particularly
grievous implications for girls and women. President Bush hopes that
Iraq will turn into a shining model of democracy, and that could still
happen. But for now it's the Shiite fundamentalists who are gaining
ground.''
Concerns about women and girls led me to offer an amendment to the
Foreign Assistance Authorization bill to make it U.S. policy to ensure
the full and active participation of women in the reconstruction of
Iraq by promoting the involvement of women in the Iraqi government, the
planning and distribution of assistance, and job promotion and training
programs. I am pleased this amendment was unanimously adopted by the
Foreign Relations Committee.
In addition, a report is being released today by Women Waging Peace
in conjunction with the Woodrow Wilson Center on the role of women in
post-conflict Iraq. The findings contained in this report are the
result of a two-day conference involving 26 Iraqi women leaders. Zainab
Salbi, who will testify as part of our first panel of witnesses this
afternoon, played a key role in the development of this report.
We must ensure the full and active participation of women in the
rebuilding of Iraq. It is necessary for long-term stability and the
success of a democratic transition.
Thank you.
STATEMENT OF HON. RUSSELL D. FEINGOLD,
U.S. SENATOR FROM WISCONSIN
Senator Feingold. Thank you, Mr. Chairman.
Chairman Chafee and Chairman Cornyn, as you know, not only
am I fortunate to be the ranking member of the Constitution
Subcommittee, but I'm also a member of the Foreign Relations
Committee. In that capacity, I've attended every Foreign
Relations Committee hearing on Iraq over the past year, going
all the way back to Chairman Biden's first hearings on Iraq in
late July and early August of 2002.
Those hearings which were held before, during, and now
after the war with Iraq have explored a wide variety of issues,
including a series of hearings focused on aspects of
stabilization and reconstruction from the regional
repercussions of changes in Iraq to international contributions
to this post-conflict effort.
While the Foreign Relations Committee is very active in
overseeing assistance designed to strengthen the rule of law
and legal institutions around the world, one issue it has not
yet explored in depth is the issue we will discuss today,
establishing the rule of law in Iraq, so I commend the chairmen
of the two subcommittees, Senators Chafee and Cornyn, for their
leadership in calling this hearing. I'd also like to thank the
chairman, as well as Senators Lugar, Biden, and Boxer and their
staffs for their cooperation and collaboration in organizing
this hearing.
The purpose of this hearing is to explore some of the
challenges the Iraqi people will face in reaching their goal of
a stable and just society that respects basic human rights,
including the rights of women and all Iraqis, regardless of
religion or ethnicity. This hearing will explore some of the
lessons learned from the experiences of other post-war nations
and emerging democracies that have struggled to shape a
constitution and rebuild legal institutions that promote
principles of justice, freedom, and equality. I would like to
briefly emphasize just a few points.
First, establishing security and the rule of law is an
obligation of the United States under the Fourth Geneva
Convention as an occupying power, and as our responsibility
also to the people of Iraq, but I think it's extremely
important to make clear that this hearing should not be
construed as an attempt by the Senate or the U.S. Government to
draft the next constitution of Iraq or reform its legal system.
I believe that Senator Chafee's remarks were in that spirit.
The Iraqi people must decide their course. Drafting a
constitution and reforming legal institutions must be a
representative and consultative process, not a process imposed
by the occupiers. It won't be easy, as past experiences with
emerging democracies have shown, but it's absolutely necessary
that this part of the effort succeed. The Iraqi people must be
the authors of their own constitution and their own destiny.
Second, as we discuss the need for a revised Iraqi
constitution, we should remember that the constitution, while
important as a legal framework, is only one part of what must
be a broader legal reform effort. Let's remember that Iraq
actually had a constitution under Saddam Hussein, so in
addition to redrafting Iraq's constitution, efforts must be
made to rebuild institutions like the police, prisons, and the
judiciary.
The Iraqi people also must consider what kind of mechanism
they want to establish to account for and address past
injustices by Saddam Hussein's regime. We should support Iraqis
in developing just such a constitution, but also a functioning
and reliable legal system to enforce it, or else we risk doing
them a great disservice. I look forward to learning more about
these issues from our witnesses today as well.
Finally, I recognize that the United States had great
success in drafting the constitutions of post-World War II
Japan and Germany, and we'll hear today from some experts about
those experiences, but I believe it's important to note that
some of our recent legal reform initiatives have been
challenging, and have sometimes had mixed success. There is no
one-size-fits-all approach to drafting a constitution or
rebuilding a legal system in a post war country, and I hope the
hearing this afternoon will explore some of the lessons learned
from other legal reform efforts, from South Africa to East
Timor.
We have a number of more recent examples of constitutional
reform available to consider. We know that genuine consultation
and civic participation are not easy to achieve, and that the
most effective mechanisms for ensuring legitimacy are sometimes
culturally and historically specific to a given society.
So I thank the two chairmen for convening this hearing, and
I look forward to hearing from our witnesses.
Senator Cornyn. Thank you, Senator Feingold. I couldn't
agree with you and Senator Chafee more about the way you
characterize this challenge. We must help in every way possible
to assist the Iraqis to establish the rule of law and a system
of self-government. The challenge, though, comes in dealing
with the basic security needs that are so obviously pressing
upon us at this time, and to allow security to then give way to
the constitution-making by the Iraqi people and then self-
government under the rule of law. How we do that, how we assist
without imposing ourselves I guess is the great challenge that
confronts our Nation at this time.
I'd like to ask the members of the first panel to come up
and have a seat at the witness table, and I will introduce them
as they assume their places. Our first panel is comprised of
experts who can speak both to the history of and the present
situation in Iraq. Their testimony will be critical to
understanding the needs and present conditions of the Iraqi
people, and in drafting an Iraqi constitution that will
actually work to preserve their freedoms.
First, we are pleased to have Dr. Kenneth Pollack on the
panel. Dr. Pollack is a senior fellow in foreign policy studies
at the Brookings Institution and director of research of the
Saban Center for Middle East Policy at Brookings. During the
Clinton administration, Dr. Pollack served in the National
Security Council first as Director for Near East and South
Asian Affairs, and later as Director for Persian Gulf Affairs.
He is the author of The Threatening Storm: The Case for
Invading Iraq, a book he published in 2002.
Professor Bernard Haykel is assistant professor of Middle
Eastern studies and history at New York University. His
academic career has focused on Islamic law and political and
social history. In 2002, he published Revival and Reform in
Early Modern Islam. He received a Ph.D. from Oxford University
in Islamic studies in 1998.
Professor Khaled Abou El Fadl is the Omar and Esmeralda
Alfi distinguished fellow in Islamic law at UCLA Law School. He
was born in Kuwait, and grew up in Egypt and Kuwait. He is the
author of numerous books on Islamic law, and has practiced law
in both the United States and the Middle East. He received his
Ph.D. in Islamic studies from Princeton in 1999, and has served
on the UCLA law faculty since 1998.
Mr. Sermid Al-Sarraf is an Iraqi-American lawyer currently
practicing in Los Angeles, California. He testifies today in
his capacity as a member of the Iraqi Jurists' Association and
the Working Group on Transitional Justice of the State
Department's Future of Iraq project.
I notice that in his written remarks he quotes from a
speech which I gave earlier this month at the American
Enterprise Institute, so naturally I'm particularly interested
in hearing his testimony today. That's very gracious of you.
Ms. Zainab Salbi is also a native of Iraq, and I must say,
please accept my apologies if I mispronounce your name in any
way. With a name like mine, I'm particularly sensitive to
people mispronouncing your name, and I apologize.
She's the founder and president of Women for Women
International, which matches U.S. women with foreign women in
desperate circumstances. Over 40,000 people worldwide have been
connected by Women for Women International. Now in eight
countries, the organization has distributed more than $6
million in direct aid and micro-credit loans, and trained
thousands of women in rights awareness.
So as you can see, we have a number of excellent panelists
today on both the first and second panels. In order to ensure
we have an opportunity to hear from each of them, and ensure we
have ample time for members to ask questions, I will ask each
witness to keep their opening statements to 5 minutes or less
each. Of course, your longer written remarks will be submitted
for the record so we will have an opportunity to understand all
of your views in proper context.
I will take the opportunity to mention that without
objection we will leave the record open until 5 p.m. next
Wednesday, July 2, for members to submit additional documents
into the record and for members to ask questions in writing of
any of the panelists.
And with that, we will first hear from Dr. Pollack.
Welcome.
STATEMENT OF KENNETH M. POLLACK, SENIOR FELLOW, SABAN CENTER
FOR MIDDLE EAST POLICY, BROOKINGS INSTITUTION
Dr. Pollack. Thank you very much, Mr. Chairman.
Mr. Chairman, these are extremely important hearings that
you are holding. They are important because I think it's
important to start by remembering our own history. The United
States started off with a constitution that was called the
Articles of Confederation. I think it's fair to say that the
Articles of Confederation were not a very good constitution,
and as a result, they led to paralysis, revolts, and could have
provoked civil war, perhaps even a dissolution of this country,
so it is from that lesson of our own country's history that we
should keep in mind what may happen in Iraq.
Constitutions matter. They have a tremendous impact, a
profound impact on the future of a country; and I think that it
is fair to say that had the United States stuck with the
Articles of Confederation, we almost certainly would not have
lived to enjoy the strength and prosperity that we have today.
Indeed, we might not still be a single Nation, had we lived
under that constitution, and there are countless other examples
throughout history.
Now, that said, the position of the United States with
regard to Iraq's constitution is going to be a very delicate
issue, as all of you have suggested in your opening remarks. In
fact, I would suggest that the United States must walk a
proverbial tightrope with regard to Iraq's constitution. On the
one hand, the United States cannot dictate a constitution to
the Iraqis. Iraqis must believe that this is their own
constitution, reflective of their own values and their own
traditions, and not one dictated by a foreign power.
But by the same token, Iraqis would not be the first
country to get it wrong if left entirely to their own devices.
As I've just mentioned, the United States got it wrong, and
plenty of other countries have gotten it wrong over the course
of time. Weimar, Germany is another that got it wrong with
disastrous consequences. Iraq is too important a country and
too important a part of the world for the rest of the world to
simply take a hands-off approach and say to the Iraqis, we'll
throw you in the water and see if you can sink or swim.
So the trick for the United States and for any other
country out there in the world with an interest in seeing the
success of a stable and prosperous new Iraqi society is to find
ways to help guide the Iraqi constitutional progress without
actually directing it. With this in mind, it's important to
remember that we will be embarking on, in some ways, a new
project. We will be helping the Iraqi people to create the
first true Arab democracy.
Now, there have been examples of Arab democracies in the
past. Lebanon is a particularly good example. But what the
Iraqis seem to have in mind, what we certainly have in mind,
and what others in the United Nations and elsewhere around the
world seem to have in mind for Iraqis is something very
different. It will be very important to allow Iraqis to
determine what that new Arab Iraqi democracy looks like. We
should keep in mind the examples of other countries around the
world, Japan, Italy, so many other countries around the world
which have democracies, but democracies that look very
different from that of the United States. As someone said, we
should keep in mind the broad parameters of democracy, and not
so much the specifics.
With regard to Iraq, the goals for a constitution for Iraq
should be broad, fairly basic. A constitution for Iraq should
try to hold the country together by giving all of the members
of Iraqi society a stake in the success of that new government,
that new enterprise, and so therefore the values of fairness
and egalitarianism have to be critical elements of any new
Iraqi constitution.
In addition, because of Iraq's well-known ethnic,
religious, tribal and other fractures, it will be critical that
such a new constitution avoids the pitfall of a tyranny of the
majority. This is another problem that we have seen throughout
the history of democracies that can be particularly pernicious,
especially in a situation like Iraq's, where so many members of
the Iraqi community have been oppressed at various points in
time by other members of the community. If the Iraqis believe
that one group will be able to grab power and use the power of
the central government to oppress the rest of the country, this
constitution will be bound to fail.
And finally, a new constitution for Iraq must be one that
creates incentives for compromise across the entire spectrum of
Iraq. Too often in Iraqi history over the last 80 years, the
system of government has fomented divisions, has encouraged the
fissures already inherent in Iraqi society, pried them open
rather than trying to help bring them together, and therefore
creating these compromises will be critical.
How to do that? Again, I think the details need to be left
to the Iraqis, but I think that some things can be pointed to.
First, I think that Americans and others might suggest to the
Iraqis that they look hard at the American system of government
and the American Constitution. I say that not necessarily as an
American chauvinist, because I think while our system worked
for us, it may not have worked for others around the world, but
in the case of Iraq, I think that there are real advantages to
be found in the American system of government, advantages which
would work well for the kinds of problems that the Iraqi people
will have to overcome.
The focus on individual rights, on ensuring that the
central government's powers are limited in terms of their
ability to impose upon the individual are critical elements of
our Constitution that would be extremely helpful in the Iraqi
context.
A system of checks and balances is another extremely
important issue, whereby the Iraqi people can become much more
comfortable, much more confident in the system of government if
it had a similar set of checks and balances to our own.
And finally, our system of geographic representation, which
encourages compromise, as I've suggested before, which is
critical. While it is true that the north is largely Kurdish-
Sunni, while it is true that the south is a majority Shi'ah-
Arab, and that the northwest of Iraq is a majority Sunni-Arab,
so it is also true that there are very important areas of
overlap inside Iraq, and a geographically based system would
create mixed constituencies, the representatives of which would
have inherent justifications for trying to reach compromise
solutions, rather than trying to push things to extremes. These
are the kinds of broad concepts that I think the United States
and other countries with long histories of democracies could
bring to the Iraqis as they try to frame their constitution,
and suggest to them might be models, might be ways to think
about crafting their own constitution that might be helpful in
creating a constitution that can deliver a strong, stable,
prosperous, and pluralist Iraq for the future. Thank you.
[The prepared statement of Dr. Pollack follows:]
Prepared Statement of Kenneth M. Pollack
BUILDING A DEMOCRATIC IRAQ
As the people of the United States of America learned over 200
years ago, building a stable, functional democracy isn't easy. Our own
first effort, the Articles of Confederation, were a dismal failure that
produced paralysis and rebellion. It is safe to say that had the
government of the United States remained as constructed by that initial
constitution, our nation would never have achieved the strength or the
prosperity that it has today. Indeed, it is an open question whether we
would even be a single nation today.
The example of the Articles of Confederation is an important lesson
that the course of a nation will be shaped, even determined by its
constitution. Machiavelli knew this and it is why he--a philosopher
whose name is axiomatically associated with autocracy--believed that a
vibrant Republic was the best form of government.
Thus, there is little doubt that if a pluralist form of government
is to succeed in Iraq, the question of the specific composition of the
state is critical. Especially given Iraq's well-known ethnic, religious
and tribal fractures, building a state that can assuage popular fears
and address the specific problems of the country will be essential to
seal these divisions and produce a unified, peaceful and prosperous new
Iraqi nation.
For better or worse, the United States must me part of this
process. This will be a very difficult task. We must walk a proverbial
tight-rope.
On the one hand, the more that the United States can leave the
process of constituting a new Iraqi government to the Iraqi people
themselves, the better for all involved. Iraqis are fiercely
nationalistic. What's more, their unhappy experience with British
colonialism creates the potential for heavy-handed U.S. involvement to
resonate in a very negative manner, possibly sparking visceral
resistance to what otherwise might be perfectly reasonable and even
beneficial actions. Over the long term, the more that Iraqis believe
that their constitution really is their constitution--written by Iraqis
for Iraqis--the greater the likelihood that such a constitution will be
accepted, respected, and obeyed.
On the other hand, it is just not clear that the Iraqi people know
what is best for them yet. Certainly, Iraq does not have a history of
good government which the average Iraqi might use as a reference point.
Iraqis would not be the first people to devise a faulty new
constitution because they simply had never done it before. Indeed, as I
have already noted, the American people did the same, even though we
had the helpful example of a reasonably benevolent and republican (for
that era) government in England. Across the world, there are too many
examples of failed new constitutions to list. In recent years, Bosnia
is, example enough of how even the best intentioned people can set up a
government but out of inexperience, make mistakes that can prove
crippling politically, economically, and socially.
Thus, left to their own devices, the Iraqis may not make the best
choices. But Iraq is too important a country in too important a part of
the world for the United States to simply ``throw them in the water and
see if they can swim.'' In addition, because of the rather severe
divisions among the Iraqi people, if a new Iraqi constitution proved as
unworkable as the Articles of Confederation, to continue with that
example, it could quickly produce a slide into chaos, secession, and
civil war. The United States arid the international community could not
abide that, nor should we contribute to a process by which the Iraqi
people are likely to suffer another tragedy having endured 34 years of
Ba'athist tyranny already.
The trick will be for the United States to guide the presence
without directing it. Here, the role of the United Nations and other
international institutions could be extremely helpful if only because
Iraqis do not suspect the UN of colonial ambitions. So too might other
allies prove helpful. The Scandinavians are widely seen as sympathetic,
humanitarian and disinterested, for example, and they might be able to
help guide the Iraqis in ways that Washington cannot directly. Other
non-Western democracies might also play useful roles. So too might a
country like Bangladesh, which has enjoyed a reasonable progress on the
path toward democracy without losing its Islamic identity.
Islam and Democracy
The example of Bangladesh raises an important issue with regard to
Iraq: the question of Islam and Democracy. There is simply no reason
that the Islamic character of a country should prevent it from adopting
a democratic system of government. Bangladesh is proof of that. In
Turkey, over the past few months, we have seen stunning changes in
which an Islamist party is bringing true democracy--sure proof that
Islam and democracy are not mutually exclusive.
Islam is one of the world's great religions. One that is meant to
be meaningful for all time and in all places. As such, while it does
contain numerous injunctions as to how believers are to live their
lives--what they should and should not do--there is nothing to suggest
that the religion of Islam is compatible with only one form of
governance. (As an aside, given the early, egalitarian and
consociational method of rule employed by the first leaders of the
Islamic state, an argument can be made that Islam is more compatible
with democracy than autocracy).
Islam is a religion of infinite variety. There is not only the
well-known Sunni-Shi'ite split, but also varying schools of
jurispnidence within each, a range of Sufi sects, and numerous regional
varieties. Indeed, Clifford Geertz, the great Western scholar of Islam,
has observed that Islam in Morocco (the western end of the Islamic
world) and Islam in Indonesia (the eastern end of the Islamic world)
are very different religions, heavily influenced by the cultural
traditions of each nation and more like them than each other. In Iran,
the Ayatollah Khomeini had to develop a completely new doctrine--the
notion of velayat-e faqih or rule by the jurisprudent--one completely
at odds with traditional Shi'ite beliefs, to justify his rule over the
Iranian state.
While this is clearly an extreme example--certainly not one the
United States should encourage Iraq to emulate, it does make clear that
Islam is neither fixed nor immutable. Indeed, this ``Orientalist''
interpretation of Islam has long since been discredited and should not
be allowed to creep back into real world considerations of the future
of Iraq which hold such importance for the Iraqi people and the entire
world.
An Iraqi Democracy
If it is important to remember that Islam is not a ``one-note''
religion, so too is it important to remember that the same is true of
democracy. When we speak of democracy, too often we allow our own
cultural or individual associations to obscure the meaning of the word.
Democracy is rule by the people. In practical terms, it means a
political system in which the actions of the government reflect the
will of the people, in which those actions are transparent to the
population, and the officials charged with executing its policies are
accountable to the people. While it is hard to imagine a truly
democratic system without elections, elections are not synonymous with
democracy. They are just one element of it and not necessarily the
defining element.
Many governments around the world have met these conditions while
adopting very different models of democracy. Japan, Italy, and the
United States are all democracies yet the workings of their political
processes are as different as they are similar.
It will be important to keep this in mind when fostering the
process of democracy in Iraq. We should think in broad terms. One of
the great challenges for an Iraqi democracy is that it will be the
first real Arab democracy. Thus one of the challenges will be helping
Arab Iraqis develop a democratic system that is suited to their Arab
culture just as Japanese democracy is harmonious with Japanese culture
and Italian democracy is attuned to Italian culture.
(Indeed, this is where the success of democracy in Iraq could have
important ramifications in the Middle East beyond Iraq. Part of the
problem with current efforts to democratize the Arab world is that the
Arabs have never seen a nation that was both truly democratic and Arab.
But just as the success of Japanese democracy made it possible for
other East Asians to imagine what democracy might look like in their
country, so too might an Iraqi democracy allow other Arabs to
understand and desire the same for their countries.)
Ultimately, building democracy in Iraq is not going to be easy. In
particular there is the real possibility that Iraq's considerable
problems would pervert elections, freedom of speech, or other
democratic building blocks and produce illiberal results. Since the
fall of the Ottoman Empire, Iraq has been badly governed. In large
measure this is because of Iraq's well-known cleavages, and because the
Iraqis are famously ungovernable--and had a wide reputation for such
even under the Ottomans. This is why Iraq's experiences after
independence were so unhappy, and why it took the bloodthirsty tyranny
of Saddam Hussein to impose a terrible order on the country. These very
features of Iraqi society that make it so hard to govern also demand a
democratic system capable of dealing with its serious internal
contradictions.
The greatest internal problem for democracy is the potential for
one group, particularly Iraq's majority Shi'ah community, to dominate
the country. Iraq's Shi'ah community, which comprises over 60 percent
of the total population, might use free elections to transform its
current exclusion from power to one of total dominance--and knowing
this, Sunni Arabs, and perhaps the Kurds, might attempt to preemptively
subvert a majority rule-based system. Thus the key for an Iraqi
democracy will be to fashion a system that addresses the potential
problem of a ``tyranny of the majority.''
A parliamentary form of democracy would probably be inappropriate
for Iraq's political needs because it would exacerbate these problems.
A parliamentary form of government--in which the majority party
controls both the executive and legislative branches--would reinforce
the tyranny of the majority, terrify Iraq's minorities, and probably
cause them to try to undermine or circumvent the system to protect
themselves from the authority of the central government. Worst of all
would be a parliamentary system of proportional representation, which
would simply reinforce identification and affiliation along these
sectarian lines. Proportional representation in Iraq would harden
Iraq's Kurds to vote as Kurds, its Shi'ah to vote as Shi'ah and its
Sunni Arabs to vote as Sunni Arabs with no deviation or room for middle
ground positions.
Nevertheless, it is possible to envision a form of democracy that
should be able to cope with Iraq's political problems. Perhaps
surprisingly, a democratic system with some similarities to the
American system would appear to best fit the bill. Iraq needs a
democratic system that ensures minority rights, limits the ability of
the central government to impose its will on its citizens, includes
checks and balances to ensure that control of one part of the
government does not translate into a form of dictatorship of the
majority, and encourages compromise and cooperation among members of
otherwise well-defined groupings. Features of Iraq's democracy should
include:
Defining the rights of every individual and limiting the
trespasses of the central government;
Declaring that all powers not reserved to the federal
government are instead vested in local governments to further
limit central government authorities. In particular, rights to
language and religious expression should be expressly noted;
Creating a further series of checks and balances within the
federal system to limit the powers of the government and
particularly the ability of any group to employ the power of
the central government to repress other members of Iraqi
society;
Electing a President indirectly, in order to ensure that
different communities have a say in who is chosen. in
particular, Iraq should look to other systems (like that of
Malaysia) that work to ensure that candidates are acceptable to
multiple constituencies and are not simply imposed by the
largest group on the rest of the country; and
Employing a system of representation in the legislature that
is determined by geography--not pure party affiliation as in
many parliamentary systems--to encourage cooperation across
ethnic and religious lines.
This last point is an important one in thinking about Iraqi
democracy. Although there is a fair degree of communal correlation with
geography (i.e., the Kurds live in the north, the Shi'ah in the south,
and the Sunnis in the west) there are also important regions of
overlap. In Baghdad, and large chunks of central Iraq, Sunni, Shi'ah,
and Kurds are well mixed. By insisting on a system of geographically
determined representation, Iraqi legislators elected from these mixed
districts would have an incentive to find compromise solutions to
national problems to try to please their mixed constituencies. This
will be crucial to the success of an Iraqi democracy because it is
vital to create a constituency for compromise within the Iraqi central
government.
Indeed, this points out one of the great problems of a
parliamentary system (particularly proportional representation) for
Iraq, because by emphasizing party membership in determining
legislative elections, the legislators themselves have less incentive
to try to reach compromises across party lines and much more incentive
to slavishly follow party ideology. It is a system that tends to push
legislators to extremes. What is needed in Iraq is a system that
instead encourages them to move toward the center and reach
compromises. The American system has become almost infamous for this
tendency, so much so that on election day it is often impossible to
tell the candidates apart because they all cling so desperately to the
middle ground.
One technique that might be applicable in Iraq would be to require
candidates to receive a certain percentage of votes from different
communities. Thus, a legislator from Kirkuk (a mixed Sunni Arab and
Kurdish area) would be required to receive at least one third of the
votes of both the Arab and Kurdish communities. In such a system, a
demagogue or sectarian extremist would be unlikely to garner sufficient
backing to win, while moderates and those amenable to compromise would.
This approach could be applied at other levels as well. For example, a
candidate for Chief Executive would have to receive a similar
percentage from different communities, again discouraging chauvinism.
No Other Alternatives
Building a democracy in Iraq is not going to be quick or easy, nor
is there any guarantee that the effort will succeed. However, it is a
necessary course for the United States, the international community,
and the people of Iraq to follow. I speak not as an expert on
democracy, nor as an advocate for democratic systems, but purely as a
specialist on Iraqi affairs. Although there can be no guarantee that
democracy will succeed in Iraq, I think it a near certainty that any
other system of government will fail there.
The problems of Iraq are so great that any other system is bound to
fail. Indeed, the history of Iraq is that they all have failed.
Monarchy, oligarchy, and autocracy have all failed to produced
stability, prosperity, and tranquility. Both the monarchy and the
savage brutality of Saddam's reign produced stability without
prosperity or tranquility. The pre-Saddam revolving dictatorships
produced none of these ends. In the future, any resort to these or
other approaches--theocracy, tribal rule, consociational oligarchy--
would doubtless produce more of the same. If the United States and our
international partners are not going to see Iraq slip into chaos and
civil war, we are going to have to ensure that the Iraqis are able to
build a stable democracy. That could be very difficult, but it is also
not impossible.
Senator Cornyn. Thank you, Dr. Pollack.
Professor Haykel.
STATEMENT OF BERNARD HAYKEL, PROFESSOR, DEPARTMENT OF MIDDLE
EASTERN STUDIES, NEW YORK UNIVERSITY
Dr. Haykel. Thank you, Mr. Chairman. I would like to submit
the statement for the record, and I will summarize it here in a
set of points, keeping them brief, and keeping the overlap with
my colleague to a minimum.
Clearly, the process that the United States has embarked on
is complicated and fraught with great difficulties. The
difficulties have to do with the nature of Iraqi society, its
violent past, its authoritarian past as well, in addition to
the regional pressures that countries around Iraq are exerting.
The U.S., in redevising or recreating this constitution,
should pursue a proscriptive rather than prescriptive role, or
policy. This is a fancy way of basically saying that we should
just establish the broad parameters of what this constitution
has to look like, or ought to look like--it should be
democratic, it should be pluralist--but we should not get into
the details of what this constitution will involve. This is for
the Iraqis to do.
One thing that should be borne in mind is that Iraqis,
whether exiles or Iraqis who have stayed in Iraq throughout
this period, are an extremely talented group of people. They
are very, very well-educated. The jurists both outside and
inside are extremely talented, and it should be left to them to
make these kinds of decisions.
Now, I have surveyed the various proposals that the
different groups have made or offered so far, and all seem to
favor a federal structure for Iraq, and the advantage of that--
and if they wish to keep the federal structure, we should by
all means support this, and it seems to be going and headed in
that direction, and the advantage of that is that it would
accommodate the three major groups that constitute the Iraqi
population, and will prevent any one of the groups from taking
over or dominating the others.
These three groups--the Sunni Kurds, the Sunni Arabs, and
the Shiite Arabs--are really the major groups that form the
Iraqi population and will have to come to an accommodation with
each other over the form of rule that Iraq will have.
The one crucial thing that the United States should not,
again in establishing this parameter, should not insist on is
that the constitution of Iraq should not have specific roles
for these various groups embedded in the constitution. The
example of Lebanon is extremely crucial to bear in mind here.
In Lebanon, the constitution as set up has the various
confessions in the country playing set roles politically. What
this means is that it cements the differences along sectarian
religious lines, it prevents groups from creating alliances
across these sectarian religious lines, and it prevents a
genuine sense of nationalism and citizenry from being formed.
So this is another thing to bear in mind, and it seems to
me, like Dr. Pollack said, one good way in which Iraqis can
create alliances across the religious divide is to have the
districts that are formed in Iraq to be based on territorial
considerations, rather than religious or ethnic considerations.
In other words, geography, demography, economic viability
should be the bases for the division of Iraq, for the
constituent units of Iraq, rather than religion or ethnic
identity.
In this regard, I think the United States should, as soon
as possible, establish a census for the population of Iraq, so
that we have a baseline to know exactly what the Iraqi
population looks like in ethnic, religious, linguistic,
socioeconomic terms.
I would like to raise now the issue of Islam. One unifying
factor for the Iraqi population is Islam. Ninety-five percent
of all Iraqis are Muslim, and they clearly want Islam to play a
role in whatever constitutional setup they decide on. This
should be something that the United States should encourage,
and not discourage. If Islam is given a role at a symbolic
level where, let's say, one article of the constitution states
that Islam is the official religion of the State of Iraq, this
should be perfectly acceptable to us.
Many countries in the Muslim and Arab world have this.
Malaysia is one, Yemen is one, and there is no threat from
giving Islam this symbolic role. There is no threat of a
theocracy emerging if Islam is given symbolic representation in
the constitution.
Iraq is not likely to turn into a theocracy, either Shiite
or Sunni, because of the way the population is broken up and
because of its history. I don't want to go into the details. My
statement states why this is the case. We should not fear a
theocracy emerging in Iraq at all. It would not work, and the
Iraqis themselves don't seem to want it. The majority of Iraqis
don't seem to want it.
The other issue that we should bear in mind is: whatever we
do in Iraq has wider policy implications in the Middle East;
what we do there is crucially important because Arabs at the
moment are looking at us, and there is an equivalency being
established between our occupation in the country and what the
Israelis are doing to the Palestinians.
This is how Arabs outside Iraq seem to be making this sort
of equation between our role and the Israeli role, and this is
a very bad thing. We should break that linkage as quickly and
as effectively, as efficiently as possible, and our allowing
Islam to play a role in the constitution framework of Iraq is
one way of doing that.
If Arab Muslims see that the United States is not against
Islam but is allowing Iraqis to express their Islamic identity,
this would again play a very important role in our fight
against people like the bin Laden, who are arguing that the
United States is at war with Islam.
There are secular forces in Iraq as well, and we should let
them play a role, but not overemphasize the role that they will
be playing, nor underemphasize it. Religion will certainly have
a role to play in the constitution, and I think we should look
favorably upon that.
Finally, Iraq did have a period of political pluralism,
which was limited under the Hashimite monarchy. They did write
a constitution in 1925, which was not a bad model, actually, to
base oneself on for this constitution, the forthcoming
constitution.
I think it's important for us, that is, for the United
States, to invoke and revise that period in Iraqi history. At
the very least, it will make our efforts seem more legitimate
against this historical backdrop and also make the efforts that
we're engaged in seem less contrived and artificial.
If I may, just one last, last point. The United States at
the moment is engaged in a process of de-Ba'athification in
Iraq. I've calculated the numbers of Ba'athists who will be
excluded from all offices. It comes to somewhere around 220,000
people. Now, these 220,000 individuals have families that
depend on them. A very conservative estimate would mean that at
least 1 million Iraqis would be out of jobs, maybe even up to 5
million Iraqis. That's 20 percent of the population. I think we
ought to reconsider also our policy of de-Ba'athification to
make the number of people in the Ba'ath who are excluded from
office the smallest and lowest number possible in order not to
exclude such a large number of people from State office.
Thank you very much.
[The prepared statement of Dr. Haykel follows:]
Prepared Statement of Bernard Haykel
The process of establishing a constitution for Iraq is complicated
and fraught with difficulties. This is because of the divided and
fractious nature of Iraqi society, its violent and authoritarian past
and regional pressures exerted by neighboring countries. The process
the United States has embarked on in rebuilding Iraq is unprecedented
in the region and there is no model from the Arab or Islamic worlds
that can be emulated. In what follows, I will present some of the broad
guidelines that should inform the policy of the United States in this
process.
The U.S. should pursue a proscriptive rather than a prescriptive
policy. In other words, we should delineate the parameters within which
the constitution should be formulated and not dictate the specific
details of the Iraqi constitution. The U.S., for example, must insist
that Iraq be a democratic country, but it should not delve into such
detailed issues as to whether the form of governance ought to be
federal or unitary or the executive be presidential or parliamentarian.
Such questions should be resolved by the Iraqis themselves in a
constitutional convention. Iraq has a very talented pool of individuals
(jurists, academics and politicians), among the exiles and those who
never left Iraq, and delineating the specifics of the constitution
should devolve on them as they will be responsible ultimately for its
success as well as its failure.
The various political groups that are now competing for a say in
the future of Iraq are advocating a federal structure, one that would
accommodate, in particular, the non-Arab Kurds (approximately 20% of
the population), but also the Shiite Arabs (approx. 60% of the
population) in the south and the Sunni Arabs (approx. 20% of the
population). Federalism is an appealing formula because it would
prevent one group dominating the others, a real prospect given Iraq's
history and demographic realities. A constitutional parameter that must
be established by the United States is that no one of the three
dominant groups should be allowed to dominate the others, as the Sunni
Arabs have done until the defeat of Saddam Hussein's regime. By the
same token, however, the United States must endeavor to prevent the
constitution from enshrining Iraqi politics along ethnic (Kurd vs.
Arab) and/or confessional (Sunni vs. Shiite) lines. The example of
Lebanon is important to keep in mind in this regard. Here the
constitutional setup cements confessional rule, and this has prevented
the emergence of secular political formations and allegiances that cut
across religious divides. As a result, Lebanese nationalism and
institutions have remained weak and all politics is confessional--a
sure recipe for future strife. Clearly there is a tension between
establishing a power sharing arrangement among the three major groups
in Iraq and allowing the system to function and evolve on a non-ethnic
and non-confessional basis. There is no ready formula for resolving
this tension but below are some ideas about how one can think about
accomplishing this.
There are a number of ways to mitigate the political effects of the
ethnic and confessional divisions in Iraq. The first is to prevent the
electoral districts from being drawn purely on the basis of ethnic/
confessional lines. The country should ideally be divided in accordance
with territorial considerations (geography, demography, economic
viability) and not ethnic or confessional ones. This would amalgamate
different groups of Iraqis together, forcing them to make compromises
and allegiances that cut across their divisions. Despite the commonly
accepted tri-partite division of Iraq into a Shi'i south, a Sunni Arab
middle and west and a Kurdish north, the country's population is more
mixed ethnically and in terms of religion. Therefore, it would be
possible to create some constituent units that have a mixed population.
In this regard, it would prove beneficial for all the parties
concerned, the United States as well as the Iraqis, to organize a
population census in order to obtain a real sense of the demographics.
Another unifying factor in Iraq is Islam, the religion of some 95%
of all Iraqis. All the emerging signals from the Iraqis appear to
indicate that they wish Islam to play a role in the future political
framework of the country. The United States should not prevent this,
especially if reference to Islam remains at the symbolic level such as
an article in the constitution declaring Islam to be the official
religion of Iraq or another that states that the Shari'a (i.e., Islamic
law) is a source of law in the country. Both Malaysia and Yemen are
good examples of countries in which Islam is accorded this symbolic
role and yet both remain firmly anti-theocratic. The U.S. should not
fret about Iraq becoming a theocracy in the Iranian or Saudi mold--this
is not going to happen. Except for a minority, the Shi'is of Iraq do
not think of Iran as a model to be emulated, and more importantly they
could never realistically impose such a model on the remaining Sunni
population. Furthermore, the Shi'is of Iraq have a different history
from those in Iran: in social and political terms they are organized
differently and their clerics have traditionally competed with those in
Qom in Iran. In addition, some of the dominant figures among the Iraqi
Shi'is (e.g., Ayatollah Sistani) are arguing for a quietist position,
one in which the clerics remain formally outside all political
institutions.
As in the case of the Shi'is, the Sunnis of Iraq cannot impose a
Sunni Islamist regime on the majority Shi'is. The Sunnis are divided
ethnically and are demographically in the minority. More importantly,
and unlike the Iranian-backed Shi'is, the Sunni islamists have no
ideological framework for ruling the country other than an ill-defined
system of theocratic despotism. Only recently have Sunni Islamists
(e.g., Muslim Brothers, Wahhabi-Salafis) emerged on the Iraqi political
scene, and as such they remain an unknown quantity, except for al-
Qaeda. Those who advocate violence must be fought militarily, whereas
those who agree to participate through the peaceful means of electoral
politics should be permitted to compete in the political process. The
United States should proscribe all forms of theocratic rule, be it
Sunni or Shi'i, but we should not deny Iraqis the desire to make appeal
to Islam at the level of political symbolism and as a vague guideline
for a just order. Permitting this will serve an important foreign
policy goal.
We should bear in mind that the U.S. project of rebuilding a
democratic Iraq is being undertaken in the context of our wider policy
aims in the Arab and Muslim worlds. This endeavor is being closely
monitored by the Arabs in the region, many of whom are arguing for
seeing an equivalence between the Israeli occupation in the Palestinian
territories and the U.S. occupation of Iraq. We must attempt to break
this linkage whenever possible. Allowing Iraqis to make appeal to Islam
in their constitution is one way of doing this, because it undermines
Osama Bin Laden's false claim that the United States is at war with
Islam.
It is important to bear in mind that there are secular political
forces in Iraq and these should neither be sidelined nor for that
matter be unduly privileged. The Kurds, for instance, are represented
by secular parties and many of the Iraqi exiles are secular.
Furthermore, the dominant ideology of Iraq since the early 1960s, the
Ba'ath, had been nationalist and secular in orientation and this is
bound to have left some impression on the political consciousness of
the Iraqi people. It remains to be seen what weight the secularist
forces will have in the country once matters have settled down further.
Nonetheless, it is unlikely that any radical secular program will take
hold in Iraq. A majority of Muslim Iraqis will not agree to abandon the
Shari'a in matters relating to personal status law (i.e., marriage,
divorce, inheritance). Nor will non-Muslim Iraqis (Assyrians,
Chaldeans, Armenians) abandon their religious courts in the same areas
of the law. Religion therefore will remain a political factor,
hopefully one relegated to the personal or private realm; a feature
that should not prove unfamiliar to us in the United States.
Finally, Iraq has had a period of political pluralism (albeit
limited) under the Hashimite monarchy--during which a constitution was
written, in 1925. This document as well as the historical memories and
practices of the pre-Ba'ath period must be invoked and revived at the
present moment. At the very least, this would give the efforts of the
United States a legitimizing historical backdrop and would make the
attempt of reforming and rebuilding Iraq appear less contrived.
Senator Cornyn. Thank you, Professor.
Dr. El Fadl.
STATEMENT OF KHALED ABOU EL FADL, PROFESSOR OF LAW, UCLA SCHOOL
OF LAW
Dr. El Fadl. Thank you very much. I'll start out by a
comment about the nature of constitutions. I think it is
important, as we go about playing the supportive role vis-a-vis
Iraq, to remember that constitutions are documents that
memorialize structural and procedural commitments, but that
also, and even more importantly, constitutions are instruments
for making ethical and moral commitments.
In that sense, it is important to remember that a
constitution must reflect prevailing normativities, prevailing
ethical and moral commitments within a social structure. But
they also must be instruments capable of educating and
sponsoring an evolving dialog within society. Constitutions
that are static, that are closed the minute they are drafted,
have an awfully terrible habit of failing.
Now, I think that it is crucial from the start that there
be no dilution and no wavering on the ethical commitment made
toward one significant moral issue, that is the issue of
individual rights. I think that needs an honest and committed
discourse, and one in which individual rights become the
centerpoint and the core for a constitutionalism that would
start the process of evolution and education in Iraq.
A constitution in Iraq will fail if the constitutional
document, instead of being an expression of the moral
commitments of the Iraqi people, becomes a symbol of denial of
sociopolitical autonomy. If the constitution is associated with
such a denial, it will be, like many other constitutions in the
Middle East propagated by an elite--whether the elite is pro-
Western or anti-Western, it hardly makes a difference. They
become only paper and largely irrelevant and marginal to what
happens in society.
The second situation where a constitution in Iraq will
fail, is if the constitution becomes a symbol for losing
religious authenticity, or what the Iraqis might consider as a
religious truth. Here, it is important to remember that
contrary to popular understandings or stereotypes, the Ba'ath
regime, the regime of Saddam Hussein, one of the ways that it
has traumatized the Iraqi people is by excluding the
possibility of free, authentic, and genuine religious
expression in Iraq.
The regime of Saddam, or the Ba'ath party, which was
partially secular, narrowly defined legitimate religion and
severely restricted what religious manifestations might take
place in society. Therefore, we should not be alarmed or
threatened or go into some sort of Doomsday scenario if Iraqis,
as a reaction to that trauma of suppressing their religiosity,
wish in the form of a constitution to make some type of
affirmation of their religiosity, and of their religious
commitments.
In fact, I agree with Bernard Haykel that we should welcome
that and see it as a positive thing. As a matter of foreign
policy it can only work to our advantage, as long as whatever
commitments are made vis-a-vis Islam are made in light of the
commitments made vis-a-vis individual human rights.
Thank you.
[The prepared statement of Dr. El Fadl follows:]
Prepared Statement of Khaled Abou El Fadl
Introduction to Islamic Concepts of the State
The relationship of Islam to the state, both in theory and
practice, has been complex and multifaceted. Islam, as a system of
beliefs embodying a multitude of moral and ethical principles, has
inspired a wide range of social and political practices, and a diverse
set of legal interpretations and determinations known collectively as
the Shari'a. Muslims believe the Shari'a to be divine law, in the sense
that the Shari'a is based on the human interpretations and
extrapolations upon the revealed holy book, the Qur'an, and the
authentic precedents of the Prophet, known as the Sunna. Therefore, the
Shari'a (which literally means the way to God or the fountain and
spring source of goodness) is the sum total of the various efforts of
Muslim scholars to interpret and search for the Divine Will as derived
from the Qur'an and Sunna. Importantly, through the course of fourteen
centuries, Muslim scholars emphasized that the main objective of
Shari'a law is to serve the interests and well being, as well as
protect the honor and dignity, of human beings. There is no single code
of law or particular set of positive commandments that represent
Shari'a law. Rather, Shari'a law is constituted of several schools of
jurisprudential thought that are considered equally orthodox and
authoritative. In the Sunni world there are four dominant schools of
thought: the Shafi'is, Hanafis, Malikis and Hanbalis. In the Shi'i
world, the dominant schools are the Ja'faris and Zaydis. The Sunni
population of Iraq is predominately Hanafi, while the Shi'i population
is predominantly Ja'fari.
The Historical Background of Muslim States
The first Muslim polity was the city-state led by the Prophet
Muhammad in Medina. But after the Prophet Muhammad died, no human being
or institution was deemed to inherit his legislative, executive, or
moral power. In Islamic theology, there is no church or priestly class
that is empowered to speak for God or represent His Will. There is a
class of Shari'a specialists (jurists) known as the `ulama' or
`fuqaha', who are distinguished by virtue of their learning and
scholarship, but there is no formal procedure for ordination or
investiture. These jurists are not thought to embody the Divine Will
nor treated as the exclusive representatives of God's law. The
authoritativeness that a particular jurist might enjoy is a function of
his formal and informal education, and his social and scholastic
popularity. As to their political and institutional role, in classical
Islamic theory, jurists are supposed to play an advisory and
consultative role, and to assume judicial positions in the
administration of justice. It is an interesting historical fact that
until the modern age, jurists never assumed direct political power.
Although, historically, the jurists played important social and civil
roles and often served as judges implementing Shari'a law and executive
ordinances, for the most part, government in Islam remained secular.
Until the modern age, a theocratic system of government in which a
church or clergy rule in God's name was virtually unknown in Islam.
Institutionally, Islam does not dictate a particular system of
government, and in theory, there is no inconsistency or fundamental
clash between Islam and democracy. The Qur'an dictates only that
governance ought not be autocratic, and that the affairs of government
should be conducted through consultation (shura). According to the
classical jurisprudential theory, governance should be pursuant to a
civil contract ('aqd) between the governor and the governed, and the
ruler should obtain a pledge of support (bay'a) from the influential
members of society as well as the majority of his constituency. In
theory, rulers are supposed to consult with jurists, as well as other
representative elements in society, and then, after concluding the
consultative process, act upon the best interests of the people. In
classical Islam, the consultative body was known as ahl al-hal wa al-
aqd, and this body was supposed to be representative to the extent that
it included the authoritative and popular jurists, and other
influential members of society. There is substantial disagreement in
the classical sources, however, on whether upon concluding the
consultative process, the ruler is duty bound to adhere to the judgment
of the majority, or whether he may act upon his own discretion, even if
his opinion is contrary to the view expressed by the majority. This
doctrine was known as ilzamiyvat al-shura. There was a strong consensus
among the classical scholars that in principle, consultation itself is
mandatory, but they disagreed on the extent to which a ruler is free to
act in contradiction to the will of the majority as expressed in the
consultative process.
Outside this basic framework, the state was supposed to respect
Shari'a, and strive to fulfill Shari'a's ultimate objectives in
society. Historically, the prevailing form of government in Islam was
known as the Caliphate, which in reality was dynastic and
authoritarian. For about thirty years after the death of the Prophet,
Muslims succeeded in establishing a form of government with a strong
democratic orientation, but upon the rise of the Umayyad Dynasty, the
democratic experiment came to an end, and power became concentrated in
the hands of particular families or military forces. In pre-modern
practice, to the extent that rulers adhered to the process of
consultation at all, the consultative body was usually not
representative of the governed, and membership in such a body was
typically the product of political patronage and not the outcome of a
democratic elective process.
The Adoption of European Laws by Muslim Countries in the Modern Age
In the post-Colonial era, after most Muslim nation states achieved
independence, the relationship between Islam and the state gained a new
sense of urgency. At issue were the extent to which Shari'a law would
play a role in the legal systems of the new-found nation-states, and
the extent to which Islam would play a role in affairs of governance.
In the period between the 1940's and 1960's, most Muslim countries
opted for a nationalist, republican, secular model in which there is a
very strong executive power, supported by weaker legislative and
judicial branches of government. Some countries, such as Saudi Arabia,
continued to be governed by a strong royal family, a consultative
branch of limited powers, and a judiciary that implemented a mixture of
customary law and Shari'a-based law. Most Muslim countries, such as
Egypt, Iraq, and Kuwait imported the French Civil and Criminal Codes,
and organized their legal systems according to the Civil Law legal
tradition. A few countries such as Pakistan, Indonesia, and Malaysia
were influenced by the British Common Law system, which they
supplemented by various statutory laws enacted in specific fields. The
extent to which the Islamic legal tradition was integrated into modern
legal systems varied widely from one country to another, and also
varied in accordance with the particular field of law in question. More
specifically, in commercial and civil legal matters, most Muslim
countries generated a synchronistic system, which was predominantly
French, Swiss, or British, amended by various concepts and doctrines
inspired by the Islamic legal tradition. In criminal matters, most
countries adopted the French or British systems of criminal justice.
Countries such as Saudi Arabia and post-revolutionary Iran rejected
Western influences, and claimed to base their criminal laws on the
Islamic tradition. Most of the countries of the Arabian Peninsula, some
African nations, and Iran continued to adhere to the Islamic tradition
in matters of personal injury and tort law. This was manifested
primarily by the incorporation of blood money (diya), and strict caps
on financial liability in cases of personal injury. Personal and family
law remained the field most susceptible to Islamic influence. Most
Muslim countries created courts of separate jurisdiction to handle
matters related to inheritance, divorce, and marriage. In these fields,
judges typically implement statutory laws, which were enacted as
codifications of Islamic laws.
The Iraqi Legal Experience in the Modern Age
It is often said that Iraq was the cradle of civilization. This is
definitely true as far as Iraq's long and rich jurisprudential
experience. Before Saddam came to power, Iraq, in addition to Egypt,
was one of the most influential countries in the development of the
legal institutions and substantive laws of the Arabic speaking world.
This was in part due to the high level of education enjoyed by the
Iraqi elite, and the rich cultural experiences and cosmopolitan nature
of Iraqi urban centers, such as Baghdad and Basra. Geographically, Iraq
was at the central point where Arab, Persian, Kurdish, and Turkish
cultures meet and interact. As noted above, Iraq was also home to both
Shi'i and Sunni major centers of religious study. The rich and diverse
makeup of Iraqi society itself allowed Iraq to be the beneficiary of
ethnic, linguistic, religious, and sectarian cultural exchanges. This
in turn was reflected in the fact that Iraqi legal thought was
characterized by a distinctive synchronistic quality, open-mindedness,
and a lack of xenophobic nativism.
Historically, the urban centers of Iraq, Baghdad, Basra, and Kufa,
played central roles in the birth of Islamic jurisprudence, and they
continued, over the span of a thousand years, to play a leading role in
the development and evolution of the institutions and doctrines of
Islamic law. In fact, the Hanafi and Ja'fari schools of Islamic
jurisprudence, in particular, developed primarily in Kufa, Basra, and
Baghdad in the first few centuries of Islam. Furthermore, Baghdad was
the capital of the Abbasid Empire, the second major dynasty in Islam.
As such, Iraq's intellectual heritage, especially as it relates to
Islam's divine law, continued to carry considerable moral weight within
the Muslim world.
After gaining independence from Britain in 1930, like most Arab
countries, Iraq eventually adopted Civil Law and Criminal Law Codes,
which were adapted from the French and Germanic legal systems. Iraq's
personal law, however, continued to be based primarily on Islamic law.
Like most Muslim countries, the continuing tension, and at times
conflict, were between Iraq's Islamic legal heritage, and the legal
system borrowed from Europe at the end of the Colonial era. Many
aspects of the classical tradition of Islamic law conflicted with the
newly adopted European-based Civil and Criminal laws, and as in the
case of many other Muslim countries, there were considerable
sociopolitical pressures, both internal and external, to simultaneously
Islamize and modernize.
In the 1950's Iraq was at the forefront of the creative and
demanding effort to adopt a system of law that was efficient, modern,
and at the same time, Islamically legitimate. In this regard, the Iraqi
Civil Code of 1953 was one of the most innovative and meticulously
systematic codes of the Middle East. Iraqi jurists, working with the
assistance of the famous Egyptian jurist Al-Sarihuri, drafted a code
that balanced and merged elements of Islamic and French law in one of
the most successful attempts to preserve the best of both legal
systems. Furthermore, in 1959 Iraq promulgated the Code of Personal
Status, which on the issues of family and testamentary law was at the
time the most progressive Muslim code of law. Importantly, this Code
merged elements of Sunni and Shi'i law to grant women greater rights as
to marriage, divorce, and inheritance.
The Iraqi Ba'ath, a staunchly nationalist and secular party, came
to power in 1968, and Saddam formally ascended to the presidency in
1979. It is fair to say that especially after Saddam rose to power, all
creative and inspiring legal activity came to an end. Since coming to
power, Saddam involved Iraq in a series of wars that enabled him to
declare a constant state of national emergency and to rule mostly by
executive order. The centralization of power in the hands of the Ba'ath
and Saddam meant that legal institutions lost all vestiges of
independence, and civil society became thoroughly co-opted by the
ruling party. Increasingly, Iraqi law could no longer be described as
either Islamic or French, but as distinctly and uniquely Saddamian. The
death sentence was prescribed for a large variety of offenses including
usurpation of public money, corruption, insulting the Presidency, and
treason, which was defined very widely. The implementation of these
laws was highly whimsical and largely contingent on the will of the
party and President. Even foreign investments became largely dependent
on having the proper connections to the ruling elite, and tapping into
a network of businessmen who were sanctioned and protected by a clique
that was close to Saddam and his family.
The Islamization of Laws in Modern Muslim Countries
The period between the 1960's and 1970's witnessed the emergence of
fundamentalist Islamic movements that materially impacted the
constitutional place of Islam in the various Muslim states. Building
upon the positions of some pre-modern theological orientations, most
fundamentalist groups, but not all, contended that sovereignty belongs
only to God (al-hakimiyya li'llah), that governments ought to represent
and give effect to the Divine Will, and that there ought to be a strict
adherence to the detailed determinations of religious scholars. The
fundamentalist orientations of that period are most accurately
understood as oppositional nationalistic movements dissatisfied with
the status quo, and utilizing religious symbolisms as a means of
claiming authenticity and legitimacy. The problem, however, is that
fundamentalists tended to treat Shari'a as a code of law containing
unitary and uncontested specific legal determinations, and also tended
to ignore the highly contextual socio-historical nature of most of
Islamic jurisprudence. The Islamic legal tradition is too diverse,
diffuse, and amorphous to yield to the type of narrow treatment
afforded to it by fundamentalists. In addition, taken out of its socio-
historical context, parts of Islamic legal tradition become problematic
in terms of contemporary international human rights standards.
Although fundamentalist movements did not achieve direct power in
most Muslim countries, they generated political pressure towards what
might be described as greater symbolic Islamization. As a part of their
Islamization efforts, a large number of Muslim countries drafted in
their constitutions articles that either stated: ``Shari'a is the main
source of legislation,'' or ``Shari'a law is a main source of
legislation.'' The former version made Islamic law the near exclusive
source of law for the nation, while the latter version mandated that
Islamic law be only one of the several sources of law making in the
country. Importantly, however, especially for countries that adopted
the former version, the Shari'a clause was deemed not to be self-
executing. This meant that the Shari'a clause was deemed to be
addressed to the legislative and executive powers in the country, and
not the judiciary. Accordingly, the judiciary would not, on its own
initiative, give effect to Islamic law. Rather, Shari'a law needed to
be implemented or executed by statutory law, and only upon the
enactment of such statutory laws would the judiciary be bound to give
it effect. Effectively, this meant that in most instances the Shari'a
constitutional clause would remain dormant until made effective by
statutory law. Nevertheless, at the political level, Shari'a clauses
played an important symbolic role. In addition, Shari'a clauses were
often cited by courts in resolving possible ambiguities in statutory
law by referring to the principles of Islamic jurisprudence.
Other than the Shari'a clauses found in the constitutions of many
Muslim nations, a large number of countries incorporated Islamic law in
their civil codes as one of the sources of legal construction.
Typically, there is a clause written into the civil code instructing
judges to interpret a statute by referring to the explicit meaning of
the words of the statute. In cases of ambiguity, a judge is instructed
to refer first to the established principles of Islamic law, and second
to the prevailing customary practices in the country. In several Muslim
countries, in cases of statutory ambiguity, judges are instructed to
refer to custom first, and then to Shari'a law. Such civil code Shari'a
clauses have their biggest impact upon the commercial practices of
Muslim countries, depending, for the most part, on the clarity and
specificity of the statute being interpreted by a court.
The Purported Islamization of Laws in Iraq
After the Gulf War of 1991, and especially after the rebellions in
the South and North, Saddam announced that he would implement Islamic
law in Iraq, but he did so primarily as a legitimacy and popularity
ploy. Saddam had systematically obliterated all Islamic, Sunni and
Shi'i opposition, and especially after quelling the rebellions that
plagued the country at the conclusion of the first Gulf War, Saddam had
achieved notoriety for executing more Muslim scholars and jurists than
any other leader in the modern history of Islam. Suddenly, the
staunchly secular Saddam discovered religion and made a point of
getting himself filmed performing his prayers, or would interrupt media
interviews, announcing that he must pause for prayers. Saddam's
implementation of Islamic law was equally theatrical. On occasion, he
would announce that a group of individuals will have their hands cut
off for theft, or will be executed for adultery. The carrying out of
these punishments were something of public spectacle, in which people
would be forced to watch the gruesome affair at the risk of being shot.
Since the charges and trials, and often even the names and identities
of the suspects were not made public, strong suspicions persisted that
those being punished were actually people accused of being opponents of
the regime. It is not an exaggeration to conclude that since the late
1970's the Iraqi legal experience can be summed up as the following:
There was no rule of law in Iraq, but only the rule of fear.
Comparative Models Regarding the Role of Islam in the Constitutions of
Modern Muslim States and a Cost and Benefit Analysis of Each
Model
Considering the wide range of technical and symbolic roles that
Islam, in general, and Islamic law, in particular, have come to play in
the world, it is useful to summarize the dynamics between Islam and the
modern state in four basic models. These models will help place the
various constitutional experiences, as far as Islam is concerned, in
comparative perspective. In the process of explaining the four models,
I will also analyze some of the costs and benefits associated with
each. This will enable us to better assess the risks associated with
any particular policy implemented in modern day Iraq.
Number One: The Strict-Separationist Model
According to this model, there is strict separation between Islam
and the state. The state represents purely secular interests, and
religion is not formally integrated in the political or legal system.
Although the country in question might be predominately Muslim, there
is no reference to Islam in the constitution or civil code, and
personal laws are not based on nor inspired by Shari'a law. In this
model, religious scholars and institutions may exist as a part of civil
society, and they may even receive limited subsidies from the state,
but they do not play an institutional role in the power structure, and
they do not formally participate in formulating policy or the
production of law.
This model, however, has not been widely adopted in Muslim
countries. The prime examples of such a model are Turkey, Mauritania,
Albania, and some of the former Soviet republics. Usually this model
engenders wide opposition, and therefore, it tends to require heavy-
handed repression by the state. Alternatively, as is the case with
Turkey, it requires the dissemination of a widely popular civic
ideology, such as Attaturkism, which thoroughly revises and reinvents
the inherited cultural and religious convictions and practices. In the
case of the former Soviet republics and Albania, this ideological role
was played by Communism.
It is debatable whether this model is necessary for the existence
of a liberal democracy. While all democracies generally recognize the
necessity of separation between religion and state, according to this
model, the separation is strict, dogmatic, and unwavering. Religion is
not accommodated in any facet of public life, and the state has no
religious identity whatsoever--it is not Muslim, Christian, or Jewish.
The state does not fund religious institutions, and does not
participate in any public displays of religion. But not all democracies
have found it necessary to maintain a rigidly separationist policy as
far as religion is concerned. Poland, Israel, India, and even England
cannot be considered strict separationists, although they have managed
to establish strong democratic systems. These four countries, and many
others, have a very complex dynamic, where the government does not rule
in God's name, but it does accommodate various aspects of religious
practice and identity. In these countries, although the government
guarantees the rights of all religious minorities, the government is
not entirely impartial towards all religions. Even more, the countries,
these governments represent, might even have a certain religious
identity, such as Jewish, Catholic, or Protestant.
While the strict separationist model can guarantee absolute
equality of religious freedom, its uncompromising secularism often puts
it at odds with the religiously based sentiments of the majority of
citizens. If the majority of the citizenry has a strong sense of
religious identity, often the state is forced to clash with the
sentiments of the majority, and as a result, the state ends up using
heavy-handed tactics, largely at the expense of human rights.
Consequently, the state becomes alienated from its citizenry, and the
country exists in a perpetual condition of political turmoil and
instability.
Number Two: The Accommodationist Model
This is the model adopted by a large number of Muslim countries
including nations such as Syria, Algeria, Tunisia, and Iraq. In
general, the institutions of the state are separated from religion, and
Shari'a is excluded as a formal source of law. The personal and family
law codes, however, are based on Islamic law, and are implemented by
Shari'a courts. Although the constitution may assert the Muslim
character of the nation, Shari'a is not indicated as a source or the
source of legislation. In addition, the impact of Islamic legal
precepts or precedents upon the commercial and civil codes is very
limited. The most distinctive aspect of this model is that except for
the personal and family law fields, Islamic law is not integrated in
the mechanisms of the state, and Islam does not provide the guiding
principles for the polity. Islam is accommodated in the sense that it
dominates the field of inheritance, marriage, and divorce, and Islamic
religious practices are permitted to exist, and often thrive, as a part
of civil society, but the state does not actively promote the precepts
of the religion, and does not give religious parties or interests a
formal role in governance. In the Accommodationist Model, the religious
endowments, usually inherited from previous eras, are allowed to exist,
but they are placed under state control, and are permitted a very
limited degree of autonomy. Mosques are often licensed and administered
by the state, and imams (preachers who perform the call for prayer and
lead prayer) are typically appointed by the state as well. Usually, the
state will determine the appropriate subjects and content of the Friday
sermons given in these mosques.
At the official and formal levels, this model keeps religion at a
considerable arms length. But there are two distinctive risks in this
model. Like the strict separationist model, it could generate
considerable amount of religious opposition, and lead to a polarizing
confrontation with Islamist forces. The other risk, and the more subtle
one, is that unwittingly it could lead to considerable involvement with
religion. Often in an effort to limit the popularistic and charismatic
potential of the religion, the state is forced to involve itself with
the regulation of religious expression, which, in turn, could invite
greater repressive powers by the state.
Number Three: The Integrationist Model
In this model, there is greater formal involvement by the state
with religion, but the political institutions continue to maintain
their autonomy and separate existence from the religious institutions.
Particularly in the decade of the 1970's, this model became more
widespread and influential. Currently, examples of the integrationist
model may be found in Egypt, the United Arab Emirates, Kuwait, Oman,
Pakistan, Bangladesh, and Indonesia. The distinctive paradigm of this
model is that while the state does not seek to implement all the
technical prescriptions of Islamic law, and the state does not pretend
to be the enforcer of canonical Islam, Islam and the Shari'ah are
recognized as formal sources of moral and ethical inspiration.
Furthermore, within the contextual limits of each country, there is an
effort to integrate Islamic legal principles not just in the civil and
commercial law fields, but also as they pertain to social justice, and
public ethical norms. As mentioned above, Islamic law is identified as
one of the main sources of legislation in the constitutional framework
of the country, and the jurisprudential tradition of Islam could be
referenced in order to resolve possible ambiguities in statutory law.
Pursuant to this model, however, Islamic law is not self-executing, and
Shari'a is considered a second frame of reference after statutory law.
Therefore, only in the absence of statutory law on point will courts
resort to Shari'a law or customary law, and in most countries judges
are given guidance on which of the two, Shari'a or custom, is to take
priority. Considering the vastness of the Islamic legal tradition, some
countries instruct judges to apply a particular school of thought, for
instance, the Hanafi School, or even to refer to a particular text, for
instance, the Hidayah and/or the Majalla. In principle, it is possible
for this instruction to vary from one province to another, within a
single country, in order to accommodate the demographic differences
within the country. For instance, in the absence of statutory law
judges in one province may refer to Hanafi jurisprudence, while in a
different province judges may refer to Ja'fari jurisprudence. Because
Islamic law is applicable only in the absence of statutory law, and
possibly in the absence of customary law as well, at the national
level, the differences in legal application will be minor and
technical.
There are many potential institutional frameworks that make it
possible to formally integrate the ethical and moral principles of
Islam without creating a theocratic state in which a group of religion
experts override the will and choice of the people. For instance, a
group of religious scholars may contribute input to proposed
legislation, but without having veto power over such law making
efforts. Such a group of religious scholars may be elected or appointed
to the legislative or parliamentary body, and may constitute a
percentage of such body. In this fashion, the religious scholars may
comment directly on proposed legislation, and their view of what is
Islamically acceptable or mandated may be given due consideration. In
several countries, especially if appointed by the executive, this group
of religious scholars does not have the power to vote on legislation,
but are given an opportunity to comment or advocate a particular point
of view. In some countries, instead of reserving a place for religious
scholars in the legislative branch, there is a separate body, often at
the level of ministry, which is regularly consulted by the legislative
body and asked to comment on proposed legislation. The comments of this
religious consultative body are either read or distributed in the
legislature or parliament, and are often printed and published as well.
The earmark of the integrationist model is that, on principle, it
does not seek to exclude Islam from the public manifestations of life.
However, the Integrationist Model formally recognizes Islam's leading
ethical and social educational role, and it allows Islam to manifest
itself in public life through the personal convictions and commitments
of lawmakers. Importantly, the Integrationist Model's consistent with
the historical experience of Islam, and the traditional role of
Shari'a. The Qur'an itself asserts that there can be no coercion or
duress in religion, and the Integrationist Model attempts to avoid
transforming religion into the coercive instrument of the state. It
also attempts to avoid institutionalizing a particular group of
spokesmen as the enforcers of the Divine Will. In addition, the
Integrationist Model tends to respect the enormous diversity and
richness of the Islamic jurisprudential tradition by refusing to
enforce one particular view to the exclusion of all others.
The main shortcoming of the Integrationist Model is that at the
level of political symbolism, this model is not always capable of
leveraging itself politically in order to emphasize its consistency
with Islamic paradigms. In other words, because the state does not
position itself as the strict enforcer of the Divine law, at times, it
is challenging for the state to avail itself of the perception of
Islamic authenticity and legitimacy. However, this model is not as
vulnerable to accusations of being disconnected from its Islamic
heritage, or accusations of excluding Islam from public life, as the
previous two models.
Number Four: The Requisitionist Model
This model is the closest to a theocratic government, except for
the fact that there is no consecrated church in Islam. The state
selects the canonical doctrine, which the state believes represents the
correct Islamic position, and enforces it both as the will of the state
and God. This model has been adopted by a few countries, which include
Saudi Arabia, Iran, and for a period of time, Sudan. The Requisitionist
Model has taken different shapes and forms, some of which are able to
achieve a greater degree of democratic practices than others. For
instance, Iran gives a council of jurist-consuls and other high-ranking
clergymen a near absolute veto power over legislation and policy. In
Saudi Arabia, the executive empowers the judiciary to implement Islamic
law, assisted by executive orders or regulations that dictate policy or
particular limits. The important element in this model is that
depending upon one's perspective, the state is requisitioned in the
service of religion, or religion is requisitioned in the service of
state. In all cases, there is an institutional body that determines the
Will of God, and enforces it as such. As such, typically in this model,
all courts are considered Shari'a courts charged with the enforcement
of Islamic law, as defined by the state. Courts follow the instructions
of the state as to what constitutes Islamic law, and in some cases and
in particular fields, courts are granted wide law making powers.
The difficulty with this model is two-fold: One, an institution or
group of institutions becomes empowered with the gloss of divinity, and
therefore, it is very difficult to reconcile this model with democracy.
Second, this model tends to narrowly define orthodoxy because it favors
one particular Islamic perspective over all others. Arguably, this has
the serious potential of undermining the richness and diversity of the
Islamic tradition.
The Spectrum of Models
It is important to note that the four models identified here are
approximations of the earmarks of actual practices of modern Muslim
states. However, there is a spectrum that exists within each model and
between one model and the other. Therefore, it is possible that an
Accommodationist state borders on being Integrationist, and it is also
possible that an Integrationist state would act as Requisitionist over
some issues and under certain circumstances. For example, Egypt, over
most issues, is Integrationist, but at times, acting upon the
instructions of the Azhar University, it bans certain books that it
considers religiously offensive. In those instants, it is acting
pursuant to the Requisitionist model. Furthermore, some countries, such
as Jordan, have experimented with the Integrationist model but of
lately have drifted towards the Accommodationist model. On the other
hand, for example, Sudan has drifted from a Requisitionist orientation
to a more integrationist stance.
The Case of Iraq and the Iraqi Constitution
There is little doubt that many Iraqis are aspiring for a
democratic order that would guard against the kind of abuses that they
for long have had to endure. The formidable challenges confronting
Iraqis include how to overcome the absolute jurisprudential
impoverishment that they suffered under the Ba'ath, while reclaiming
their creative legacy; how to find justice in post-Saddam Iraq, while
avoiding the destructiveness of vengeance; and how to make the law a
shield and tool in the hands of the people; and not an oppressive sword
in the hands of the state. On the legal front, the challenge will be
how to establish order and stability, while still allowing the law to
be an agent of progressive change. It is important in this regard to
note that the rule of law is a necessary condition for a democracy to
exist, but it is not enough. Democracy is not just about the
objectivity and fairness of process or the division and separation of
power between various branches of the government. Democracy is also not
just about giving effect to will of the majority, or accountability to
the people. Democracy is about a moral commitment to the fundamental
and basic worth and dignity of each and every member of the citizenry,
and the conscientious engineering of government and society so as to
make human beings secure in their rights.
Importantly, this moral commitment can be expressed through law,
but it cannot be not created or invented by legal command. Democracy is
not secured by drafting good laws alone, but it must be made a part of
one's cultural and ethical view. Considering Iraq's rich civilizational
heritage, there is no doubt that Iraqis will be looking, and rightly
so, into their pre-Ba'th legal and moral history for inspiration and
guidance on how to make the moral commitment and develop the ethical
worldview necessary for a democracy. In this context, it is important
for American policy makers to understand that Iraq's legal and ethical
history did not start with the overthrow of Saddam. A major component
of the Iraqi heritage is the Islamic faith, and the leading role that
Iraq played in the development of Islamic law. But here is where Iraq's
creative legacy is most needed. A dual commitment to Islamic law and
democracy is possible, but only if Muslims understand Islamic law to
reinforce the same commitments made by democracy to individual human
rights and dignities. This is exactly where Iraq might be able to
reclaim its leading educative and inspirational role towards the rest
of the Muslim world. It will be a revolutionary step if Iraqi legal
minds are able to reinterpret and rethink the Islamic classical
tradition in a way that upholds the basic individual rights necessary
for a democratic order.
Opting for either the Strict-Separationist or Requisitionist
(theocratic) Models in Iraq will be nothing short of a disaster for the
Iraqi people, Muslims, in general, and the West. The establishment of a
theocracy in Iraq will inevitably lead to a denial of human rights, the
marginalization and exclusion of Iraq from the world community, and
considerable sectarian tensions between Shi'i and Sunni Muslims. But
even more, a theocracy is an affront to the wisdom of Islam, the
diversity and richness of Shari'a, and to the historical legacy and
established precedent of Muslims around the world. But the forcible
exclusion of Islam from public life, state sponsorship, and all legal
and constitutional documents will be a disaster of equal proportions.
The worse thing that the government of the United States can possibly
do, while acting as an occupying power in Iraq, is to impose upon the
Iraqi people a political condition that is so artificial--that is so
alien to the collective consciousness of the Iraqis, and that is at
odds with their historical experience and aspirations--that it appears
that the United States is, in fact, acting like a power of occupation
and domination, not persuasion and liberation. The danger is that if
the United States appears hostile or insensitive to the religious
sentiments of the Iraqis, this will invite resistance. It will be a
real tragedy if the democratic experiment in Iraq fails, not because
the Iraqis do not believe in democracy, but because democracy is seen
as part of the ideological package of an aggressive or imperialistic
occupying force.
The United States government must successfully communicate to the
Iraqi people its desire to help them to practice their religion, if
they so desire, more fully and freely, not force upon them a situation
that they will view as hostile, deprecating, or insensitive towards
their faith based commitments and beliefs. More concretely, the United
States government should not resist, and, in fact, should tolerate and
support, any efforts by the Iraqis to (1) define the religious identity
of their country; (2) preserve the sanctity and inviolability of
Islamic law in certain areas of legal practice that the Iraqis define
as highly personal and intimate to their identity and will as a people;
and (3) define Islam in such a way that it is consistent with democracy
and human rights. For instance, if the Iraqis wish to proclaim a bill
of individual rights, in their constitutional document, and further
wish to assert that this bill of rights is derived from their Islamic
commitments and understandings, the United States should encourage such
a move. The United States government ought not be suspicious of any
effort by the Iraqis to anchor their human rights and democratic
commitments in novel or original interpretations of the Islamic
tradition. It should be noted that I am not advocating that the
government of the United States dictate any Islamic positions or
establish any religious doctrine. The key here is that whatever efforts
are made on behalf of Islam must be driven by Iraqis themselves. I am
only addressing possible responses or reactions by our government to
anticipated Iraqi initiatives on behalf of their religious identity and
faith. If the Iraqis are able to articulate their democratic and human
rights choices in terms of Islamically compelling positions, this will
have the long-term advantage of transforming the Iraqi experience into
a normative precedent for all Muslim nations. If Iraqis can
successfully establish that it is their Islamic faith that inspired
them to commit to democracy and human rights, this is bound to have a
far reaching impact upon Muslim countries and nations around the globe,
and United States would have played the role of partnership and
sponsorship in generating this pivotal development in Muslim history.
The Japanese and German Post World War II Model and the Democratic
Challenge in Iraq
When evaluating the chances of democracy in Iraq, in many ways, the
establishment of capitalist democracies in Germany and Japan in the
Post World War II period becomes an encouraging precedent. One can
rightly take pride in the transformation of these two countries into
democratic world powers under American sponsorship. The precedent of
both these countries does indicate that democracy can be taught and
transplanted, and that it does not necessarily have to emerge through
the natural socio-political processes within a particular country.
There are, however, several elements that counsel against assuming that
whatever worked in Germany and Japan will necessarily work in Iraq. The
following are some of these elements of difference and distinction:
1. Both countries before their democratic transformation were
heavily industrialized countries with advanced economies
and very high productivity. The United States was able to
inject capital into the war torn, but developed, economies
of both countries, and by doing so, the United States was
able to re-set both nations on their path of economic
progress. Although highly despotic governments dominated
both Germany and Japan, there were strong, developed, and
sophisticated entrepreneurial classes ready and set to
share power once these despotic governments fell. In this
regard, the situation in Iraq is markedly different. Iraq
is not an industrialized or technologically advanced
country. Furthermore, Saddam had severely weakened the
entrepreneurial class and forced them into a symbiotic
relationship with the state in which they were more like
economic leeches heavily dependent on a very corrupt
government for their survival. This is bound to make the
distribution of economic base and power in Iraq more
challenging, and will require a much heavier investment of
venture capital in order to create a productive economic
system that can support a democracy.
2. Levels of literacy, education, and technological development were
already very high at the time of the American occupation of
Japan and West Germany. Democracy is much better secure and
supported in societies enjoying a high level of literacy
and education. Literacy and education contribute to the
creation of sophisticated civil societies and are conducive
to the development of civic virtues, such as social and
political responsibility, accountability, compromise, and
the sharing of power, which are importing for nourishing
and guarding a democracy. Literacy and education levels in
Iraq, although higher than some of the countries in the
region, are low when compared to West German and Japanese
standards.
3. Historically, both Germany and Japan were colonizing, not
colonized, nations. Unlike Iraq, Germany and Japan did not
have to deal with a collective historical memory that
labors under the trauma of colonialism. This meant that
both countries were relatively more receptive to the influx
of ideas and influences coming from the United States,
specifically, and the West, more generally. Unlike Iraq,
there was no national trauma induced by long periods of
occupation and domination, and a deeply ingrained sense of
distrust and suspicion focused on the West.
4. Before the war, Germany and Japan followed a particular ideology
that had become utterly undermined and discredited after
World War II. The ideological defeat was complete and
thorough, and the German's and Japanese were ready for an
ideological transformation. In the case of Iraq, even if
one asserts that the defeat of Ba'athism, the secular
nationalist ideology of Saddam and the ruling government of
Syria, is complete, Ba'athism is not the issue. The issue
is the inclusion or exclusion of Islam in the
constitutional document of Iraq. Not only is Islam not a
discredited ideology, it is not an ideology at all. As a
religious faith, it has its own set of demands on its
followers. If the United States forces Iraqis into a
position in which they have to choose between the demands
of their religion and demands of their constitution, the
constitutional document will not penetrate deeply into the
socio-political fabric of Iraq, and these competing demands
are bound to generate tensions and strong resistance.
5. Iraqis, as Arabs and Muslims, are firmly situated within a
particular socio-historical context. Iraq does not only
influence the countries and people situated within its
region, but is also, in turn, influenced by them. It is
important that the United States not contribute to a
situation in which Iraq becomes, by our decree,
artificially alienated from its context. If Iraq's
distinctive Muslim and Arab character is artificially
diluted, and its policies become a replica of American
preferences and policies, this will only confirm the status
of Iraq as a country occupied by an alien power. Put
differently, it is important to avoid giving the impression
that Iraq is a mirror of the United States, and no longer
authentically Iraqi. Such an impression is bound to further
radicalize and polarize the region, and will in the long
term, inevitably, backfire. The regional contexts of
Germany and Japan were completely different. Any possible
German or Japanese opposition to American policies could
not gain inspiration or support from its regional
surroundings. Obviously, the situation in Iraq is
decisively different. It is important that in the process
of saving Iraq, the United States does not end up losing
the region.
Respecting the Iraqi Choice
These material differences, among many others, between Japan and
Germany, on the one hand, and Iraq, on the other, are mentioned here to
emphasize the distinctiveness and particularity of the challenge in
Iraq. In my view, we cannot afford to deal with Iraq as the vanquishing
victors, and expect the Iraqis to mold themselves after our image. It
is important that the United States displays a considerable amount of
sensitivity and respect for the Iraqi history, civilization, and
religion. Therefore, it would be a serious mistake to deny Iraqis the
opportunity to define themselves--even if this self-definition would
include choices regarding the public role of religion that would not be
our own.
Senator Cornyn. Thank you very much, Doctor.
Mr. Al-Sarraf.
STATEMENT OF SERMID AL-SARRAF, MEMBER, BOARD OF DIRECTORS,
IRAQI JURISTS' ASSOCIATION
Mr. Al-Sarraf. Thank you, Chairman Cornyn, Chairman Chafee,
Senator Feingold. I am pleased to be here today as a member of
the Iraqi Jurists' Association, the Working Group on
Transitional Justice with the State Department's Future of Iraq
project, and as a Muslim-American attorney from California, to
discuss the challenges which face Iraq and the Coalition
Provisional Authority, the CPA, with regard to reestablishing
the rule of law in this post-Saddam era.
Senator Cornyn. Could I ask you to pull the microphone a
little closer to you so we can hear you a little better? I
appreciate it.
Mr. Al-Sarraf. I'm not going to repeat the description of
the IJA and its history. It's recorded in my written statement,
which I will include with the record.
The challenges on the road to restoring the rule of law in
Iraq can be broken down into two categories, those facing the
Iraqi people, and those facing the Coalition Provisional
Authority, or the CPA, and in particular, the role of the
United States. The working group report, which was submitted to
the committee and is fairly extensive in English and much more
extensive in Arabic, roughly 750 pages, goes into great detail
as to the challenges facing the Iraqi people, so I'll focus my
time here today on those challenges that face the Coalition
Provisional Authority and, in particular, the United States.
The three major challenges, as I see them, are: (1)
delivering on promises, (2) applying appropriate resources to
the task, and (3) understanding Iraqi society and enfranchising
and empowering Iraqis themselves.
On delivering on promises, the U.S. has a small window of
opportunity to make good on its promises before the situation
in Iraq spirals out of control. A definitive success in Iraq
may be the key to restoring our image as a Nation that stands
for liberty, democracy, and respect for human rights both at
home and abroad.
In the eyes of Iraqis inside Iraq, prior U.S. foreign
policies were marked by broken promises, the most prominent of
which was the one made immediately after the first Gulf War,
which promised U.S. support for the Iraqi people if they were
to rise up against Saddam. When they did, in overwhelming
numbers, 14 of 18 provinces were liberated from Ba'ath party
rule. The U.S. and other allied forces stood by and watched as
Saddam Hussein brutally massacred tens of thousands of
civilians to maintain his grip on power.
Now, while Iraqis are, on the whole, relieved and genuinely
appreciative that Saddam was removed, they are also
simultaneously wary of the coalition forces' true intentions.
They ask the question, after supporting Saddam during the Iran-
Iraq war, defeating him in Kuwait while tacitly supporting his
efforts to stay in power and forcing devastating sanctions
which ultimately strengthened his rule and punished the Iraqi
people, what has changed?
It is critical that the CPA understand this backdrop and
the environment in which it operates. The initial objective of
moving in quickly with civilian and humanitarian assistance to
effect an immediate improvement in the day-to-day living
conditions was unquestionably the correct policy.
Unfortunately, and without regard to root causes, in the areas
of security, lack of electricity, telephones, and other basic
services, this policy has not been fully achieved.
Because of this backdrop, there is very little room for
delays and mistakes, which the Iraqi people perceive in the
context of a continuum of past policies. In terms of applying
the appropriate resources to the task, I'd like to describe
this challenge by way of a specific example taken from the
front page of the Washington Post on May 21, 2003, in an
article entitled, ``Ad-Libbing Iraq's Infrastructure.''
One of the examples of this ad-libbing was the case of the
courts in the southern city of Najaf. A recent law school
student, an Army reservist from Wisconsin, without deference to
the State of Wisconsin, with 1 year of training in Arabic, was
tasked with reestablishing the courts in the city. One of the
first actions that was taken was to have all of the lawyers
vote on the judges, whether they would keep their positions.
For perspective, if this was done in L.A. Superior Court, I can
guarantee you that many of the lawyers would not be voting for
the most qualified or most impartial judges.
This is not a knock on the service person. In fact, she
made significant advances in involving women jurists, to her
credit. She is simply executing her orders to the best of her
ability. This is a critique of the policy, however, that fails
to understand and appreciate the needs and apply the
appropriate resources to the task.
This is not an isolated incident. In early May, the
Department of Justice sent a judicial assessment team to Iraq.
Not one of the roughly 11 members of this team were Iraqi legal
professionals, or even native Iraqi Arabic speakers, despite
the fact that the DOJ conducted a 2-week training program on
international humanitarian law just a few weeks prior to 25 to
30 prominent Iraqi jurists.
Today, you saw in the Washington Post, I'm sure, the
article about the military versus the civilian reconstruction
and the problems that the military was having in rising to the
occasion, and this is not a plug for the Washington Post, by
the way, but if I were a jurist inside Iraq witnessing these
events, I would think to myself that the CPA and the U.S. are
not taking this task seriously, and this is not for lack of
expertise.
The U.S. has access to, particularly in the State
Department and the Future of Iraq project, many, many experts,
and unfortunately the rifts between the various departments
within the U.S. Government have stymied these efforts.
The third challenge, understanding Iraqi society and
enfranchising Iraqis, part of the problem with assessing the
appropriate resources is a fundamental lack of understanding of
Iraqi society, its history, and its people. Many assumptions
are made based on experiences of other countries, such as
Afghanistan, post-World War II Germany, and Japan.
Iraqi is a country with a legal tradition which predates
Saddam Hussein and the Ba'ath Party. Its legal system is based
on a combination of Shari'ah law derived from the Ottoman era
and civil law derived from the French legal code. Among its
people are highly qualified legal professionals, judges,
lawyers, prosecutors and law professors both inside and outside
the country.
Piecing together a legal framework for this transition
period is not as complex as the example of Afghanistan and,
unlike Germany and Japan of the World War II era, Iraqis did
not elect nor freely accept the Ba'ath Party nor Saddam's
regime. The main victims of Saddam's regime were his own
people, and they sacrificed greatly in numerous attempts to rid
themselves of this regime. The vast majority of lower level
members of the Ba'ath Party joined not out of loyalty or
belief, but out of dire necessity or fear of death.
How did this understanding change the CPA's approach?
First, most Iraqis are more than happy and willing to
participate and take the lead in the de-Ba'athification
process. The Iraqi people do not need to be convinced about the
evils of the prior regime. They know it, they lived it, and
many died because of it. It is critical not to disenfranchise
those who would otherwise be supporters. This has happened with
the disbanding of the military, with hundreds of thousands of
people dependent upon their salaries for their basic survival.
Second, among Iraqis themselves are qualified
professionals, with sound reputations both inside and outside
Iraq. It is critical that the CPA tap into this important
resource. I know that this effort has begun in certain
ministries, but it needs to continue and expand. Iraqis in
particular in the legal field are very sensitive about outside
involvement in the Arab world, especially if they are from
countries perceived to have benefited or cooperated with the
prior regime. Even for exiled Iraqis, their role should be
limited to advising, consulting, and assisting, and not include
positions of authority unless specifically elected by the
people themselves in free and open elections.
Based on my conversations with trusted exiles, trusted
sources in-country, Iraqis are feeling like strangers in their
own country. Either through neglect, lack of understanding, or
for the sake of expediency, current efforts seem to be avoiding
direct Iraqi involvement and their opinions in important
decisions.
Disbanding the military in such a manner is one such
example, and I'd like to just respond to one of the comments
about reducing the number of Ba'ath Party members in the
exclusion from or lustration from government service. While I
agree that their families need to be supported, and the
measures should be looked at to extend their benefits and their
salaries, I think there should be no wavering on the principle
of excluding Ba'ath Party members from public office.
Senator Cornyn. We want to make sure we get a chance to ask
questions and so forth. Could I ask you, please, to wrap up
your original comments?
Mr. Al-Sarraf. Yes.
Senator Cornyn. And then we will, of course, be able to
allow you to expand on that as we ask questions.
Mr. Al-Sarraf. I'll wrap up with the quote that I made from
your prior speech.
Senator Cornyn. Please.
Mr. Al-Sarraf. These are not insurmountable challenges. I
am optimistic for one simple reason, and that is, to echo your
words, after defeating our enemies in World War II, we left
behind constitutions and representative government, not
permanent military authority, and we can do the same in Iraq.
Because of this tradition, the U.S. is uniquely positioned
to succeed in this important undertaking. Any failures in Iraq
reflect on all of us and will have a long-lasting negative
impact on U.S. interests in Iraq, the region, and the rest of
the world. Iraqis do not make distinctions between the Pentagon
and the State Department, Democrats or Republicans. This is a
massive undertaking which requires the best talents of all.
Thank you.
[The prepared statement of Mr. Al-Sarraf follows:]
Prepared Statement of Sermid Al-Sarraf, Esq.
Chairman Cornyn, Chairman Chafee, Senator Feingold, Senator Boxer
and, Members of the joint Subcommittees, I am pleased to be here today
as a member of the Iraqi Jurists' Association, the Working Group on
Transitional Justice of the State Department's Future of Iraq project,
and a Muslim American attorney from California, to discuss the
challenges which face Iraq and the Coalition Provisional Authority
(CPA) with regard to re-establishing the Rule of Law in this post-
Saddam era.
The Iraqi Jurists' Association (IJA) was formed almost 3 years ago
and was the largest consortium of Iraqi judges, lawyers, prosecutors
and law professors outside Iraq. Last year, IJA teamed up with the
State Department's Future of Iraq project to form the Working Group on
Transitional Justice which, in turn, prepared a 750 page report
entitled ``The Road to Re-establishing Rule of Law and Restoring Civil
Society--A Blueprint.'' This report, originally in the Arabic language,
was finalized and adopted on March 23, 2003. A summary of this report
in English was also prepared. The Working Group and the report itself
benefited from internationally recognized experts in the area of
Transitional Justice such as Professor Cherif Bassiouni, President of
the International Human Rights Law Institute at DePaul University;
Professor Alex Boraine, President of the International Transitional
Justice Center, former deputy chair of the Truth and Reconciliation
Commission in South Africa; Mr. Neil Kritz, Director of the Rule of Law
Program at the U.S. Institute of Peace; and many others.
Now, with more than 80 prominent legal personalities and after a
recent trip to Iraq by the IJA chairman, Dr. Tariq Ali Al-Saleh, the
organization is in the process of transferring its headquarters from
London to Baghdad where it is expected that Iraqi jurists from inside
the country will take the lead in transforming the IJA into an
effective civic institution with a mission to help create, educate and
defend an independent judiciary.
The challenges on the road to restoring the Rule of Law in Iraq can
be broken down into two categories: (1) those facing the Iraqi people
and (2) those facing the Coalition Provisional Authority (CPA), in
particular the role of the United States. The Working Group report goes
into great detail as to the challenges facing the Iraqi people. I will
spend my time here today, addressing what I believe are the challenges
to the CPA and the U.S. in particular.
The three major challenges I see are:
1. Delivering on Promises
2. Applying Appropriate Resources to the Task
3. Understanding Iraqi Society and Enfranchising Iraqis
1. Delivering on Promises
The U.S. has a small window of opportunity to make good on its
promises before the situation in Iraq spirals out of control. A
definitive success in Iraq may be the key to restoring our image as a
nation that stands for liberty, democracy and respect for human rights,
both at home and abroad.
In the eyes of Iraqis inside Iraq, prior U.S. foreign policy was
marked by broken promises, the most prominent of which was the one made
immediately after the first Gulf war, which promised U.S. support for
the Iraqi people if they were to rise up against Saddam. When they did
in overwhelming numbers (14 of 18 provinces were liberated from Ba'ath
party rule), the U.S. and other allied forces watched by as Saddam
brutally massacred tens of thousands of civilians to maintain his grip
on power.
Now, while Iraqis are on the whole relieved and genuinely
appreciative that Saddam was removed, they are also simultaneously wary
about the coalition forces' ``true'' intentions behind this action.
They ask the question, after supporting Saddam during the Iran-Iraq
war, defeating him in Kuwait but tacitly supporting his efforts to stay
in power, enforcing devastating sanctions which ultimately strengthened
his rule and punished the Iraqi people, what has changed?
It is critical that the CPA understand this backdrop and the
environment in which it operates. The initial objective of moving in
quickly with civilian and humanitarian assistance to effect an
immediate improvement in the day to day living conditions was
unquestionably the correct policy. Unfortunately, and without regard to
root causes, in the areas of security, lack of electricity, telephones
and other basic services this policy has not been fully achieved.
Because of this backdrop, there is very little room for delays and
mistakes, which the Iraqi people perceive in the context of a continuum
of past policies.
2. Applying Appropriate Resources to the Task
I'd like to describe this challenge by way of a specific example
taken from the front page of the Washington Post on May 21, 2003, in an
article entitled, Ad-Libbing Iraq's Infrastructure. One of the examples
of this ``Ad-Libbing'' was the case of the courts in the southern city
of Najaf. A recent law school student and Army reservist from Wisconsin
with 1 year of training in Arabic was tasked with re-establishing the
courts in this city. One of the first actions was to have all of the
lawyers vote on which judges would keep their positions. For
perspective, if this were done in Los Angeles Superior Court, I can
guarantee you that many lawyers would not be voting for the best
qualified, most impartial judges. This is not a knock on this service
person, she is executing her orders to the best of her ability. This is
a critique of the policy that fails to understand and appreciate the
needs and apply the appropriate resources to the task.
This is not an isolated incident. In early May, the Department of
Justice sent a judicial assessment team to Iraq. Not one of the roughly
11 members of the team were Iraqi legal professionals (or even native
Iraqi-Arabic speakers), despite the fact that the DOJ conducted a 2-
week training program on international humanitarian law for 25-30
prominent Iraqi jurists in late March.
If I were a jurist inside Iraq, witnessing these events, I would
think to myself that the CPA and/or the U.S. are not taking this task
seriously.
3. Understanding Iraqi Society and Enfranchising Iraqis
Part of the problem with assessing the appropriate resources is a
fundamental lack of understanding of Iraqi society, its history and its
people. Many assumptions are made based on experiences in other
countries, such as Afghanistan, post World War II Germany, and Japan,
etc.
Iraq is a country with a legal tradition which predates Saddam
Hussein and the Ba'ath party. Its legal system is based on a
combination of Shari'ah law (derived from the Ottoman era) and Civil
law (derived from the French legal code). Among its people are highly
qualified legal professionals: judges, lawyers, prosecutors and law
professors, both inside and outside the country. Piecing together a
legal framework for this transitional period is not as complex as in
the example of Afghanistan.
And, unlike Germany and Japan of the WWII era, Iraqis did not elect
nor freely accept the Ba'ath party nor Saddam's regime. The main
victims of Saddam's regime were his own people and they sacrificed
greatly in numerous attempts to rid themselves of this regime. The vast
majority of lower level members of the Ba'ath party joined not out of
belief or loyalty but out of dire necessity or fear of death.
How does this understanding change the CPA's approach? First, most
Iraqis are more than happy and willing to participate in and take the
lead in the de-ba'athification process. The Iraqi people do not need to
be convinced about the evils of the prior regime: they know it, they
lived it, and many died because of it. It is critical not to
disenfranchise those who would otherwise be supporters. This has
happened with the disbanding of the military, with hundreds of
thousands of people dependent upon their salaries for their basic
survival.
Second, among Iraqis themselves there are qualified professionals
with sound reputations both inside and outside Iraq. It is critical
that the CPA tap into this important resource. I know that this effort
has begun in certain Ministries, but it needs to continue and expand.
Iraqis, in particular in the legal field, are very sensitive about
outside involvement, including from the Arab world especially if they
are from countries perceived to have benefited or cooperated with the
prior regime. Even for exiled Iraqis, their role should be limited to
advising, consulting and assisting and not include positions of
authority unless specifically elected by the people themselves in free
and open elections.
Based on my conversations with trusted sources in-country, Iraqis
are feeling like strangers in their own country. Either through
neglect, lack of understanding, or for the sake of expediency, current
efforts seem to be avoiding direct Iraqi involvement and their opinions
in important decisions. Disbanding the military in such a manner is one
such example.
This must not happen with the formation of the constitution. To
ensure maximum participation in this process, some jurists in the IJA
recommend a multi-phased process. The first phase would be to hold a
national referendum on the form of government (as an example, whether
it would be a republic, parliamentary or presidential system,
constitutional monarchy, etc.) and once that decision is made by the
Iraqi people, a group of elected representatives could be formed to
draft the constitution with the assistance of international and
domestic legal experts. To protect the long term stability of a
democratic Iraq, there would need to be a strong and independent
judiciary with a mandate to review the constitutionality of actions of
the other two branches of government.
Conclusion
These are not insurmountable challenges. I am optimistic for one
simple reason and that is, if I may echo the words of Chairman Cornyn
in one of his recent speeches:
After defeating our enemies in World War II, we left behind
constitutions and representative government, not permanent
military authorities--and we can do the same in Iraq.--from a
speech to the American Enterprise Institute, 6/10/2003
Because of this tradition, the U.S. is uniquely positioned to
succeed in this important undertaking. Any failures in Iraq reflect on
all of us and will have a long-lasting, negative impact on U.S.
interests in Iraq, the region and the rest of the world. Iraqis do not
make distinctions between the Pentagon or the State Department,
Democrats or Republicans. This is a massive undertaking which requires
the best talents of all. The consequences of success and/or failure
will also be shared by all.
Senator Cornyn. Thank you very much.
Ms. Salbi.
STATEMENT OF ZAINAB SALBI, PRESIDENT AND FOUNDER, WOMEN FOR
WOMEN INTERNATIONAL
Ms. Salbi. Yes, thank you very much for this opportunity.
It is indeed an honor and a privilege to be here. I am speaking
here not only in my capacity as president of Women for Women
International, or as an Iraqi-American, but as someone who
recently came back from Iraq. I had been there both in January
to get an assessment of pre-war Iraq and what Iraqis are
saying, and then I recently came from Iraq in May, where I got
an assessment and interviews of different socioeconomic
classes, ethnic and religious backgrounds all over Iraq, mostly
in central and southern Iraq.
So what I'm trying to say is, I'm trying to convey what the
Iraqis are saying, including those who I talked to up until 2
days ago from Baghdad.
I called my original report, Please Tell Mr. Bush, because
a lot of people were following and telling me, ``please tell
Mr. Bush thank you for liberating us from Saddam, for getting
rid of Saddam once and for all,'' so there is a great level of
appreciation that Iraqis have finally been liberated from 35
years of oppression.
Having said that, they will always continue the sentence
and say, ``and we need more.'' Iraqis had and still have high
expectations from America, and some of these expectations may
be too much. There are expectations that there is a Marshall
Plan going to be in Iraq, and the impact of the plan will be
seen in a couple of months' period, and that is obviously, some
of them are not realistic. What we need here is to address
these expectations and do something about them.
Economically, although I do have to acknowledge Ambassador
Bremer's accomplishments in terms of reinstating the salaries,
including to former military personnel, that has a huge
economic impact on the Iraqis. However, small- and middle- and
medium-sized businesses have not been operating for 4 months
now, and they do have a huge impact on those who are dependent
on daily wages. The economy is switching from local production
to export dependence, and that is impacting the long-term
economic sustainability of Iraq.
A lot of people are complaining that the American and
coalition forces started by talking about democracy rather than
talking about economic reconstruction. I'll summarize what one
man told me in a small alley in Najaf, a very conservative
province in southern Iraq, who said, we need food and security
before democracy. When you save someone from death, his first
wish is not a car, but basic needs to regain his energy.
Americans, God bless them, are more concerned with democracy
than they are with addressing our basic needs.
He continues and says, we need economic stability as a
prerequisite for democracy. We need to be able to breathe so we
can talk about how we can build our democratic process. He
wasn't denying the importance of democracy, as much as saying,
I need a break now.
There is a huge impact on women in post-war Iraq. The
security situation, which continues to be very chaotic, to say
the least, is having particular impact on women, who are being
targeted for kidnapping. Rumors in Iraq, and confirmed by
actually an article in The Economist, there's a market now
where women are being sold and trafficked in Baghdad itself.
This is impeding the women's movement outside the house, and
this is critical, especially when we have such a high
percentage of single heads of households after 20 years of
wars.
Political participation for women is very limited. While a
lot of the local political parties, as well as those from
exile, have very few, if any, women's representation in their
parties, when they address this issue they don't seem to have
an ideological opposition to it as much as, this didn't occur
to them.
A lot of Iraqi women, though, are very adamant about their
participation in the political and reconstruction process. A
40-year-old woman, as one of the middle-class women who wears
the traditional head scarves, was telling me, I want Iraqi
women to be part of every process of building the country, in
the army, in sport, in every single sector. Women need to have
50 percent representation in the country. I wish this could
happen. We deserve that, and we have the credibility to do that
as well as men.
We have to incorporate women's participation in the
constitutional discussion and the political discussion as well
as in the economic reconstruction in Iraq, without which we
will not have sustainable economic development or political
development in Iraq.
As to political parties, there is a sense--well, I'll
summarize what one man told me. He said, ``before we had one
Saddam, and now we have many, many Saddams who use power in
similar ways of Saddam Hussein.'' A lot of the political
parties who came from exile are known to have, or are perceived
to have a monopoly of discussions and dialog with the CPA and
with coalition forces.
There is no sense of transparency. There is no sense of
people knowing even what is happening, and the lack of
information, I would say, is at the core of the problem. People
need to know what is happening, and there is no medium of
communication with the average person in Iraq, and this is
again a lot of the complaints. I summarize again what one
person told me. He said, we need to know what is going on, we
need a public relations campaign that can speak to the concerns
of the average Iraqi.
Another person said the same thing. We need to know what is
going on. We don't want to see soldiers killing two people
every day, or American soldiers being killed for that matter.
America needs to focus its communication to the average Iraqi,
the real Iraqi, by helping them resume their daily work and
daily lives to a normal stage. Real people need to get a sense
that America is communicating with them and addressing their
concerns. If you lose the average person, you will lose peace
in Iraq.
This is what an Iraqi just told me, actually a businessman,
2 days ago. He said we are at the risk at this point of not
only losing the average person in Iraq, we are at the risk of
losing the elite of Iraq. When everyone's business is being
impacted, when the economy is being impacted, and when there is
no sense of communication and transparency of what is
happening, we are at the risk of losing these people, the
Iraqis, and when we lose the Iraqis, we will lose peace in
Iraq.
There is a strong sense by the Iraqis themselves,
communicate, communicate, communicate to us. There are only 2
hours of TV over there. This is not enough. They need to hear
from the coalition forces what is going on. A PR campaign would
be a critical one.
We also need to make sure that we have a transparent
process. We need to include the expertise of Iraqis internally.
I completely agree with my colleagues in here. Those of us who
are in exile can only be advisors. Those Iraqis who are in
Iraqi are the only legitimate people to run the country. They
have suffered, and they need to have a say in what's going on.
Senator Cornyn. Ms. Salbi, let me ask you please, if you
would, wind up your opening statement so we can get some
questions. I regret to say that we do have a very large
Medicare bill making its way through the Senate, so we will
have to stop for some votes and come back in a little bit, but
please, if you will conclude, and then we will go to questions
until it's necessary for us to go.
Ms. Salbi. The last thing is, we need to do an awe and
shock campaign in economic development in Iraq. This is the
only way we can win peace and security not only in Iraq, but
throughout the whole Middle East, and women have to be at the
core of that.
[The prepared statement of Ms. Salbi follows:]
Prepared Statement of Zainab Salbi
Thank you for the opportunity to testify before the Congress at
such a critical moment with respect to the current situation in Iraq
and our attempts to build a lasting peace in the country. My remarks
reflect more than 10 years of work in post conflict societies including
Bosnia and Herzegovina, Kosova, Afghanistan and elsewhere, with a
particular focus on women. In the case of Iraq, my remarks are informed
by my own national origin, as I was born and raised in Iraq, and by two
fact finding trips I have recently taken to Iraq on behalf of Women for
Women International--one trip took place in January of this year to get
a sense of the conditions and attitudes in pre-war Iraq. A more recent
trip took place in May of this year as I prepared an assessment report
on the current situation in Iraq as we work to open an office to help
the women of Iraq through Women for Women International. In both trips,
I interviewed women and men from different socio-economic backgrounds,
ethnic groups and religious tendencies in both central and southern
Iraq. Since then, I have maintained almost daily contacts with Iraqis,
primarily in Baghdad. My ultimate goal for the report that follows is
to convey an accurate image of what is going on in the hearts and minds
of Iraqis, and particularly women. Only by having a clear understanding
of what the actual conditions on the ground are can we work on our
common goal of building a lasting peace, economic prosperity and a
sustainable democracy in Iraq.
I will conclude by making recommendations that address the concerns
of the Iraqis with whom I have met and who must be the new constituency
as we move forward--the new constituency for American and international
non-governmental organizations, international organizations such as the
United Nations, and the Coalition Provisional Authority.
Regardless of how Iraqis felt about the war, one can safely argue
that the vast majority of Iraqis welcomed the opportunity to get rid of
Saddam Hussein's regime and are thankful for the Coalition's role and
America's leadership in freeing Iraq. However, while Iraqis may have
different visions for the future of Iraq, everyone with whom I spoke,
without exception, is surprised at what is perceived to be the lack of
any organization or preparation for post-war Iraq. This was most
evidenced by the chaos and anarchy that spread across Iraq in the days
and weeks after the war, and in the continuing inability of Coalition
forces to fully restore basic services or provide physical security for
the overwhelming majority of Iraqis.
The looting and burning of ministries, universities and other
public properties, the limited electricity, lack of phone systems,
extensive delay in resuming food delivery, the mass possession of guns
and machine guns--among even children--all are contributing to a high
level of frustration among the public as their daily lives and
practices have been stalled without a clear idea about the future. A
driver is vulnerable at any moment to a gunman forcing him or her out
of the car. People are witnessing killings in public streets and in the
middle of the day. Women are afraid to leave their houses for fear of
rape and kidnapping. Mothers are afraid to let their kids walk to
school on their own.
Impact on the Economy
Ambassador Paul Bremer's recent policy decree reinstating the
distribution of salaries, including a great proportion of the former
military's, is warmly welcomed by many Iraqis. Such steps are helpful
to calm the immediate economic needs by those who were employed by the
former government. The question now needs to extend to the private
sector, including micro-, small- and medium-size enterprises. Such
businesses have not been able to operate for more than 4 months now due
to the lack of electricity and security. Small- and micro-businesses
have been hardest hit, along with their employees who represent the
most marginalized sectors of the population including women and single
heads of households and others who are 100% dependent on these
enterprises for their daily wages. Medium-size business losses are also
impacting the business elite whose public support for Coalition forces
is decreasing daily as their economic well being is further threatened.
The economy in general is veering from reliance on local
production, particularly in areas related to food production, to an
economy dependent more on processed and imported food. Addressing the
revitalization of the local economy and local production is of the
utmost importance in creating long term economic sustainability in
Iraq. Lastly, most Iraqis, especially those who are poor and dependent
on aid rations, constantly emphasized to me the need for economic
security. A man who lives in a poor and old neighborhood of the Al
Najef province, reflected to me on the current situation by saying:
``We need food and security before democracy. When you save someone
from death, his first wish is not a car but basic needs to regain his
energy. The Americans, God bless them, are more concerned with
democracy then they are addressing our basic needs.'' He continued,
``We are a hungry population. Our need for food is more important than
democracy at this point in our lives. That does not mean we don't want
democracy. Rather, we need economic liberty as a prerequisite for
democracy.''
Impact on Women
Iraqi women are falling prey to the chaos and anarchy in Iraq.
Women and girls are now targeted for kidnapping, with some women
kidnapped from their own homes. Rumor, confirmed by coverage in The
Economist, has it that there is now a market to sell women and girls in
Baghdad. Women single heads of households are particularly vulnerable
as movement outside of the home is becoming a risk for women because of
the lack of security in the streets.
Politically, women's participation in discussions related to the
national political agenda has been limited at best. Most local
political parties do not actively encourage womens' participation. When
this issue is addressed to local politicians, there seems to be no
clear political agenda to exclude women as much as a lack of attention
for the importance of women's participation in the political process.
Iraqi women, on the other hand, have been adamant about the
importance of their political participation in the reconstruction of
Iraq. Regardless of their socioeconomic class, ethnic background, or
religious or secular tendencies, all Iraqi women I met exhibited strong
opinions on what is going on in today's Iraq and the need to
incorporate them in the political process. Isma, a 40-year-old, woman
who wears the traditional headscarf expressed her views on women to me
by insisting that ``I want Iraqi women to be part of every process of
rebuilding the country . . . in the army, in sport, in every single
sector. Women need to have 50% representation in the country. I wish
this could happen. We deserve that and we have the credibility to do
that as well.''
Addressing gender issues in the process of policy making, from the
delivery of services to the establishment of a transitional governing
body, is critical at this stage. Discussions related to promoting
women's participation should not, however, be limited to one sector or
channeled through one ministry. Rather, gender issues must be at the
core of all reconstruction plans in Iraq. That includes but is not
limited to strategies related to food distribution, police retraining,
women's membership in political parties, and women's security in the
public sphere. Otherwise, women will once again be marginalized in both
the short and long term in Iraqi society. Women are also at risk from
religious extremists. Some women who work with the UN have been
threatened with death if they don't wear the traditional headscarf or
quit working with ``foreigners.''
Political Parties
Local political parties, especially those who were based in exile,
are showing no concrete efforts to address the concerns of the average
citizen. ``We have plenty of political parties but we don't have rule
of law and we don't have work. So what is the use?'' commented Ahmed
who lives in Sadr City, a poor neighborhood in Baghdad.
There is a growing sense of a new political monopoly with economic
overtones that is controlled by some of the parties that were based in
exile and came in with the coalition forces and even those who were
based in Iraqi Kurdistan. ``Before we had one Saddam but now we have
many mini Saddams who use power in similar ways as Saddam Hussein
did,'' commented Ali, a businessman who describes himself as peace
loving and a frustrated Iraqi. Now Iraqis feel that they must have an
inside connection to those parties in order to gain access to
information or services.
Most of these political parties, as well as the Coalition
Provisional Authority, risk losing and alienating the average citizen
by their lack of communication, transparency and clear political
strategy. In commenting on this issue, Nashwan, a pharmacist who works
in a public clinic in a poor neighborhood of Baghdad, said, ``We want a
leader with ethics, not a Ph.D.'' The Ph.D. is not the question here as
much as a perceived lack of ethical and viable leadership from many of
the political parties.
Lack of Information
Despite serious progress in addressing particular frustrations
among Iraqis, including reinstating the distribution of salaries and
food deliveries among others, there is a growing sense of anxiety
regarding the future of Iraq. ``We need to know what is going on. We
need a public relations campaign that can speak to the concerns of the
average Iraqi,'' comments Ahmed, a local Iraqi businessman who has not
been able to run his business for four months now due to the lack of
electricity.
The lack of information regarding not only the reinstallation of
basic services but also the future of Iraq is creating a gap that is
being filled by former Ba'athist officials on the one hand and
religious extremists on the other. Former Ba'athist officials are
taking advantage of the lack of information and services by spreading
rumors that America doesn't care about Iraqis and the lack of services
are intentional to keep Iraqis from contributing to the reformation
process. There is a sense that former Ba'athist officials are regaining
their ability to mobilize the public and spread anti-American
sentiments. This can be seen in many ways including comments made by at
least some in the police force about the greatness of the former regime
in their daily communications with the public.
Religious extremists, on the other hand, are claiming that the lack
of services is due to an imperial/Zionist conspiracy designed to
destroy Iraq. The danger of these rumors is that they are speaking to
the average Iraqi, especially male youth who have military training,
are now unemployed, and are feeling a great level of frustration at the
lack of stability in the country.
There are many ways to combat these rumors that are impacting the
peace process in Iraq. Iraqis want to know what is happening in their
country. A strong and consistent public relations campaign can keep
Iraqis informed of future plans and engage them in the rebuilding
process. ``Iraqi public opinion is very very important. . . . Give us
timelines so we know what is happening. Tell us what is the expected
date for the complete reinstallation of the electricity and phone
systems, when will there be a transitional Iraqi government, and how
long the troops will stay here. We need information so at least we are
not manipulated and frustrated by rumors,'' comments Dafir, a former
government employee.
Ahmed, a businessman, reiterates the hunger for information by
saying, ``We need to know what is going on. We don't want to see
soldiers killing two people every day or American soldiers being killed
either. America needs to focus its communication to the average Iraqi .
. . the real Iraqi . . . by helping them resume their daily work and
daily life to a normal stage. Real people need to get a sense that
America is communicating with them and addressing their concerns. If
you lose the average person, you will lose the peace.''
Conclusion
Iraqis are not only dealing with today's frustration, but also with
the trauma caused by the oppression they have faced for 35 years during
Ba'athist rule and particularly Saddam Hussein's regime. There is an
outpouring of emotions in Iraq now which veer between frustration at
the current chaos on the one hand and confronting the trauma and misery
of the past for the first time in a public way--even within families--
on the other. These emotions can be summarized by what one woman told
me, as she described her life, ``Every minute that passes, I die over
and over again. I have already suffered a lot. I can't endure more
suffering again.'' Iraqis are grateful to America for liberating them
from Saddam Hussein, frustrated at America for not dealing with running
the country the day after Saddam Hussein's collapse, and are now angry,
tired, grateful, happy, and sad all at the same time. In other
countries transitioning from a brutal period of civil strife,
totalitarianism, or apartheid, truth and reconciliation commissions
have gone a long way in acknowledging the pain and suffering caused to
so many and allowed blame for crimes to be placed squarely on
individuals and not ethnic groups, classes, or sects. There may be an
opportunity here to not only allow Iraqis to heal many wounds but
understand recent history, including the role played by organized
violence against women.
One can also say that Iraqis have tremendous expectations from
America, some that may be unrealistic in the time frame Iraqis are
expecting. Many expect a Marshall Plan which will have an immediate
impact within a few short months. Many are shocked at what is perceived
to be limited preparation on how to manage a free Iraq. One Iraqi
complained to me, questioning ``How could the two most powerful
countries in the world (the United States and the United Kingdom--who
were able to win the war in one month) not have been prepared to deal
with the day after the fall of Saddam Hussein's regime?''. Others are
now talking about starting think tanks to give advice to the Coalition
Provisional Authority on how to run the country.
The frustrations that Iraqis are feeling today have many roots.
Some stem from the perception that Iraqis are not being consulted in
the process of policy formation on how to govern a free Iraq. Others
feel that the lack of communication by coalition forces has left them
vulnerable to rumors that only serve to increase their sense of anxiety
about the future. And others feel that formerly exiled political
parties are monopolizing all communication with the Coalition forces,
reminding Iraqis of the former political structure known for its lack
of transparency and corruption.
There are many ways in which Coalition forces under America's
leadership can address frustrations at a grassroots level, building
upon Amb. Bremer's accomplishments since his arrival in Iraq. First,
and most important, there is a need for a massive public relations and
communication campaign that goes beyond the two hours of Iraqi public
TV that is running at the moment. Average Iraqis need to have their
current challenges acknowledged, not whitewashed, and know that there
is a public plan for dealing with these challenges. This will be the
best way to directly combat the rumors being spread by forces opposed
to the Coalition's role.
There is also a need to address the issue of expectations.
Providing a timeline regarding the reinstallation of basic services,
transitional government, and even economic plans can help in calming
the situation down. There is a strong need to reach out to the hearts
and minds of the average Iraqi by addressing real and immediate
concerns he/she are facing and their anxiety about the future. Last but
not least, we can win the peace in the Middle East in general, by
adopting a policy of ``Shock and Awe'' for economic development in Iraq
to match the overwhelming military superiority we brought to bear on
the former regime. Such a policy will not only win the hearts and minds
of the average Iraqi, it can also build credibility and support in
neighboring countries and in the Middle East at large. I cannot
conclude this testimony without emphasizing the importance of
incorporating women throughout all governmental and non-governmental
sectors and not limiting their participation to a single ministry or a
single sector. Women are core participants in not only making peace but
also in sustaining it.
Senator Cornyn. Thank you very much.
Senator Feingold. Mr. Chairman, I just have a couple of
unanimous consent----
Senator Cornyn. Sure. Senator Feingold.
Senator Feingold. Mr. Chairman, Senator Kennedy asked that
his statement be included in the record.
Senator Cornyn. Without objection.
Statement Submitted by Senator Edward Kennedy
Mr. Chairman, I commend you for arranging this joint hearing to
consider the challenges we face in Iraq.
The major problem is that the war is supposed to be over, but it
obviously isn't completely over. The daily attacks on our troops are
very disturbing. Since President Bush landed on the aircraft carrier on
May 1 and said ``the war is over,'' our troops have continued to be
killed at approximately half the rate as before.
The doubts that so many of us had about taking this road to war has
only been strengthened by the failure so far to find the weapons of
mass destruction that were the administration's principal justification
for the war. And we are especially concerned by the suggestions that
CIA intelligence reports were intentionally distorted by the White
House or the Pentagon and turned into weapons of mass deceit.
Throughout this difficult period, all of us in Congress are united
in support of the men and women of our Armed Forces, and we are
committed to doing all we can to support them.
As the soldiers themselves have said, however, they aren't trained
as police officers. We need to solve that problem as soon as possible.
From past experience in Kosovo, Bosnia, and Afghanistan, we knew going
into Iraq that we had to be prepared for the shift from war-fighting to
peace-keeping to reconstruction and nation-building.
We rushed into this war, but it's obvious that winning the peace is
much more challenging than the administration was prepared for. The
``liberator'' label has faded, and the ``occupier'' label is beginning
to stick. The last thing we need is to alienate the Iraqi people after
all we did to free them. The consequences would be ominous for the
ongoing war against terrorism.
It's clear that we should do more to involve the United Nations and
our allies in the reconstruction effort and in working with the Iraqi
people to develop a new government. If we go it alone in creating a new
government, the Iraqi people and nations around the world will see it
as an American puppet government instead of a legitimate Iraqi
government.
The bright spot is that the United Nations is carrying out its
vital and historic role in meeting the humanitarian needs of the Iraqi
people. The UN should be involved as well in the establishment of
government institutions and civilian administration functions.
Above all, many of us are concerned about the ominous decline in
respect for the United States in the eyes of so many other peoples and
so many other nations caused, in large part, by our ``shoot first and
ask questions later'' foreign policy. The breeding grounds of terrorism
around the world are the only beneficiary of that decline. Unless we
start getting it right in Iraq, we may well pay a very heavy cost for
our failures.
So I look forward to this hearing and to working with our
colleagues to do all we can to set a wiser course.
Senator Feingold. And I ask unanimous consent that two
documents be entered into the record as well: a report
entitled, ``Transitional Justice in Post-Saddam Iraq: The Road
to Reestablishing Rule of Law and Restoring Civil Society,'' by
the State Department Working Group on Transitional Justice and
the Iraqi Jurists' Association; and a second document, ``Iraq:
Post-Conflict Justice, a Proposed Plan,'' by Professor M.
Cherif Bassiouni, professor of law at the DePaul University
College of Law.
Senator Cornyn. Without objection, those will be
included.\1\
---------------------------------------------------------------------------
\1\ The report ``Transitional Justice in Post-Saddam Iraq: The Road
to Reestablishing Rule of Law and Restoring Civil Society'' appears in
the appendix to this hearing; ``Iraq: Post-Conflict Justice, a Proposed
Plan,'' by Professor M. Cherif Bassiouni, can be found on the internet
at http://www.law.depaul.edu/institutes_centers/ihrli/pdf/iraq.pdf
---------------------------------------------------------------------------
On May 22, the United Nations Security Council unanimously
adopted a resolution, Number 1483, calling for the
establishment of, ``a representative government based on the
rule of law that affords equal rights and justice to all Iraqi
citizens without regard to ethnicity, religion, or gender.''
It's been amazing to me really to see the number of people
who have written and spoken expressing the view that there is
somehow something inconsistent or incompatible about a nation
where 95 percent of the people are Islamic, and democracy. I
wonder if, Dr. Pollack, you could please start and just explain
your view on that subject, whether you agree with that, or, as
I suspect, you may disagree with that. Then what?
Dr. Pollack. Thank you, Mr. Chairman. I will start. I think
others on the panel would be equally if not more competent to
deal with that question.
Let me start by saying first that there is nothing about
any religion, as far as I am concerned, that has prohibition or
injunction that would make it impossible to have a democratic
form of government.
Too often when we start talking about democracy we allow
our own individual associations, our own cultural associations
with democracy to creep into that thought. I think when many
Americans think about democracy, we have in mind American
democracy. As someone who as traveled to many democratic
countries over the course of my career, I'm always struck by
how democracy looks very different in very different parts of
the world.
As I mentioned in my opening remarks, Japan and Italy, to
take only two examples, are also democracies, but Italian
democracy and Japanese democracy are very different from our
own. In fact, dealing with both of those systems, I sometimes
wonder which is actually the democratic system. The fact of the
matter is that democracy is rule by the people. That is its
essence. If you go back to the Greek philosophers, if you go
back to ancient Athens, that is the principle ingredient.
When we talk about democracy in the modern sense, and when
we talk about constitutions that are based on democracy, we're
talking about some very basic principles. We're talking about a
government that is reflective of the will of its people. We're
talking about a government that is transparent, so that the
people can monitor the actions of government officials to
ensure that their actions are consistent with the will of the
people, and we're talking about a system that is accountable in
the sense that the officials themselves are ultimately
accountable to the people for the actions that they take.
Those are really the heart of the democratic system and, in
fact, the idea of the rule of law is embedded within that
larger concept, because the idea of the rule of law is that the
government should be of the people, it should not be oppressing
any of the people, oppressing that which is ultimately the
source of its legitimacy and its authority and power. There is
nothing in Islam, as I read it and as I've read the work of my
colleagues and of other colleagues, to indicate that there is
anything in Islam that is incompatible with any of these basic
precepts.
An Islamic democracy, an Arab democracy may look very
different from ours, it may look very different from Japan's.
It may look very different from Italy's, but there is nothing
about the Koran, there is nothing about the Hadiths, there is
nothing about Islam as it is practiced anywhere in the world
that should make it incompatible with those basic fundamental
premises.
Senator Cornyn. Thank you very much.
Professor Haykel and Dr. El Fadl, you both alluded to your
belief that there should be an acknowledgement of Islam in the
founding documents, the constitution of Iraq.
I found that to be interesting, in light of the fact that,
as we may all recall, even in our Declaration of Independence
there is an allusion to the Creator, and as my crack staff
reminds me, even in the U.S. Constitution there is a reference
to Our Lord, yet we do not seem to have too tough a problem
separating our religious beliefs and practices from the secular
work of government, but can you expand a little bit more on
your belief of how the Iraqi people can address this notion of
self-government and democracy and at the same time identify
themselves as an Islamic nation, but not risk theocracy?
Professor Haykel, perhaps you'd like to start?
Dr. Haykel. You know, the question that you asked just
earlier, Mr. Chairman, about the compatibility of Islamic
democracy was asked at an earlier period in our own Nation's
history about Catholics, with their allegiance to the Pope, and
yet being Americans.
The thing to bear in mind about Islam, as in all religions,
is that it's not a monolith. There are many different
interpretations. There are many different ways of living and
practicing Islam, and certainly there are strains within Islam
that are theocratic and that would be anti-democratic, and we
see them in bin Laden, we see them in certain strains of the
Iranian clergy, but that's not to say that Islam cannot be
lived in a democratic fashion, and we have good examples of
that. Turkey is a perfect example of just that.
Even if we have allusion to religion and to Islam, Iraq is
particularly a good example, I think, of a place where
democracy can take root in a very strong way, because you have
different types of Muslims in the country, as a result of which
they would have to make accommodations to each other's
differences and be cognizant of the fact that Islam is not a
monolith and cannot impose their version on the others.
Senator Cornyn. Dr. El Fadl, do you agree or disagree?
Dr. El Fadl. No, I largely agree. I think the important
distinction here is that I am not in a position to call upon
the Iraqi people to mention Islam in the constitution. Rather,
the distinction I make is that if the Iraqi people want to
self-identify as Muslims, or make some mention of Islam in
their foundational document, the U.S. Government should not
oppose that and, more importantly, should not be threatened by
that.
There are two things to keep in mind. One is that it is
absolutely true that people, for all types of mischievous
purposes and objectives, are trying to make it look as if what
is going on now is a return of the colonial era, the era of
imperialism, and that this is some type of war against Islam. I
think it is essential that we do not make it easy for those
people to win their dogmatic and propagandist war, and opposing
all form of religious mention, or any form of Islamic self-
identification would serve them well.
Second is that Bernard Haykel is absolutely right, there
are many forms of Islam, some forms that are fundamentally
inconsistent with democracy, but the core is as long as there
is a commitment to individual rights, to the rights of an
individual as an individual, and as long as the affirmation of
an Islamic identity and the affirmation of Islamic
preferences--we'd rather do X rather than Y because we believe
one is closer to the Koran--as long as it's done in the context
of honoring the basic truth of individual rights, it is
reconcilable with democracy.
Senator Cornyn. Let me ask, Professor Haykel, I believe it
was you that mentioned the concern about, during the de-
Ba'athification process that there may be something in excess
of 200,000 people in Iraq who, if forbidden to hold public
jobs, would basically have very little option other than to
create mischief for any nascent democracy. What do you propose,
or what do you think should be our approach?
Dr. Haykel. Mr. Chairman, you know, government employment
in the Middle East, whether it's in Iraq or elsewhere, is
really--the governments are the main employers in the Middle
East.
People look to government not in the way we do here,
necessarily, because it is a major source of jobs, and in the
Ba'ath period you have people who are committed Ba'athists who
joined the party out of commitment, but most, or many did not.
They joined it because that was how you got a job, and to
penalize these people in some categorical fashion would mean
penalizing not just them, but penalizing many, many members of
their families who are dependent on them and on their
connections with the government for jobs.
My fear really is that we would exclude 20 percent of the
population from its source of revenue and livelihood, and that
would cause tremendous social dislocation and political
problems for us in the country.
Senator Cornyn. My time has expired.
Senator Chafee.
Senator Chafee. Thank you, Senator Cornyn. I'll follow-up
on your questions about the possibility of a theocracy, and
Professor Haykel, you doubted that that could happen. How do
you base your confidence that a theocracy could not rise even
if we allowed Islam into the constitution? Maybe just expand on
that premise that you stated in your opening statement.
Dr. Haykel. It is alleged that 60 percent of the Iraqi
population are Shiites. Now, the dominant theocratic model in
Iran for the Shiites is that advocated by the late Imam
Khomeini. Now, most Shiites, certainly in Iraq but also, it
seems, in Iran don't support that constitutional model, the
constitutional model he advocated.
My assertion is based on knowledge that the Shiites of Iraq
are very different from those in Iran, that the Iranian model
is not necessarily applicable and is not accepted by a great
number of the clerics in Iraq, who tend to be more quietist in
their political position.
Senator Chafee. And Ms. Salbi, you've just returned from
Iraq, and I see you nodding your head. Do you agree with that,
that--it was a couple of weeks ago I believe there were some
clerics who I believe issued a declaration of Jihad against the
occupying forces. Is this taking hold with the population?
Ms. Salbi. First, I have to reiterate what Professor Haykel
said. The premise of Shiism is the separation of religion from
the state. Khomeini was the only person in Shiite history who
combined the state with religion. Iraq Shias so very much
believe in the separation of the State and religion.
The fear is not from the learned unama, because they're
learned--I mean, they descended over 15 to 20 years on
religious jurisprudence and all of that. The fear is from the
younger ones, young men in their twenties who have religious
tendencies, like Moktar el Sadr, who is approaching other men
who are released from the army, former Republican Guard, and
then mobilizing their anger and frustration at the current
economic situation for religious reasons. That's the fear.
That's still a minority group. They're still approaching
the youth. They're not approaching the middle-aged people, or
the learned people, but that could be a gap that could be
widened if we do not address the immediate economic needs right
now, so that's one thing that you can see the beginning of it.
In general, when you talk to all the Iraqis, whether in the
south or in the center, they do want a secular government. They
do not say we want a secular government per se, but they say,
we want a civil government that respects Islam as a religion,
we want civil law that regulates the country, and that is
people from conservative to secular people, and they're all
saying that. It's a very emotional feeling that we need to
respect Islam, and a very emotional feeling that we need a
civil law to regulate our country.
Senator Chafee. With this catching on with the younger
people, is it directed at Americans, or is it the coalition,
British--would it be better if the United Nations were more
involved in this process and remove the prospect that it's an
American issue here?
Ms. Salbi. I have to say, there is no public sentiment that
sympathizes with the U.N. in Iraq. The U.N. was accused of
being part of the previous regime's corruption scandals and
scams, and so the U.N. is not necessarily viewed in the best
way.
These religious sentiments, having said that, they are
directing that anger at the Americans. I wrote in my report, a
lot of the religious sentiments is trying to approach, again to
deal with that economic urgent gap by saying, this is an
American-Zionist conspiracy aimed at destroying Iraq, while the
Ba'athists are also trying to fill that gap by saying America
is intending to keep the Iraqis frustrated, to keep them away
from the political process.
So we are vulnerable now to these groups, again, taking
advantage of these gaps and in my opinion, my assessment by
talking to people is that we can actually win that easy if we
just address the immediate and urgent needs by the Iraqis and
stabilize the economic and security conditions right now.
Senator Chafee. Thank you. You do have a prescription for
success, and that's relevant to a Marshall Plan-type of
restoration of the country.
Thank you, Mr. Chairman.
Senator Cornyn. Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Dr. El Fadl, Professor Haykel, and Mr. Al-Sarraf, we've
heard testimony today about the strong legacy of legal thought
and legal institutions that existed before the Ba'ath Party
took power in 1968 and then, of course, the damage done under
Saddam's regime.
I'd like each of you to comment on whether that legacy
survived in any form, to what extent will the Iraqi people be
able to look back on their own legal traditions and effectively
draw upon that experience as they reconstruct their nation and
its institutions.
Let's start with Dr. El Fadl again.
Dr. El Fadl. Well, I think it's important here to keep in
mind the complexity and nuance of law, because if you take, for
instance, the civil law code, which was derived from the French
civil code, and in fact borrowed extensively from the Egyptian
work on the French civil code and, in the view of some, even
improved upon from the Egyptian version, you take the Iraqi
civil code and the jurisprudence that formed around the civil
code in Iraq, similarly if you exclude the literal, the
shameful displays committed by Saddam in order to get attention
and so on, if you take the criminal law code, exclude all the
Saddam exceptional laws and emergency laws and special laws and
just take the criminal code and the jurisprudence formed around
the criminal code, what you find is actually something that
from a legal perspective is quite sophisticated, belongs in the
best of the tradition of the civil law system based on the
French legal system, something in which, for instance, in the
civil law field and in the criminal law field some of the works
of Egyptian jurists like Sanhouri, one of the most prominent
jurists who is dead now--he was cited extensively and worked
with and developed upon and so on--you actually find, a lot of
commonality between the technical jurisprudence of Iraq and the
jurisprudence of particularly countries like Egypt, to a lesser
extent countries like Kuwait.
Second is that you find a large degree of technical
sophistication, and in fact, in working with Iraqi lawyers, the
complaint was consistently that the Saddam regime ruined the
practice of law, that unlike their Egyptian counterparts, for
instance, they could not say that they follow X school of
thought as to personal injuries because they were always scared
that Saddam was going to come in with some exceptional law,
some special regulation and so on.
The best way that I think the issue can be approached is to
realize that we have a substantial amount of very sophisticated
jurisprudence, that it is possible, in my opinion, to peel off
the Saddam special laws, special regulations, special this and
that, and to work from that, rather than reinvent the wheel,
and try to create some type of revolutionary law which is
fraught with possibilities of failure.
Senator Feingold. Thank you very much. Professor Haykel.
Dr. Haykel. I would like to reiterate and second what
Professor Abou El Fadl just said. As someone who actually has
followed the production, the legal, intellectual production
from Iraqi universities even through the Saddam period, the
University in Baghdad, for example, had a couple of legal
journals, one from the university, one from the ministry of
justice, and they consistently had very high quality legal
thought and legal academic production.
With respect to the period before Saddam Hussein, I mean,
there are documents, legal documents that still exist and that
can be drawn upon, and also in the collective memory, I think,
of Iraqis, especially the period in the twenties, when there
was a very vibrant Jewish community in Iraq, perhaps the most
vibrant Jewish community in the Arab world, that period again
is something that Iraqis remember as a time when Iraq really
was the center of the Arab world, and where you had pluralism
and a great degree of tolerance.
I think that period can be revised very quickly, because
you have a very high technical cadre of people in Iraq who are
middle class but also very educated, I think for whom this
period really is something they hark back to and wish to
recreate today.
Senator Feingold. Thank you. Mr. Al-Sarraf.
Mr. Al-Sarraf. Thank you. It's important to note how Saddam
subordinated the judiciary. The judiciary basically used to
report to an independent judicial authority. That judicial
authority was then placed under the Ministry of Justice and
became part of the executive.
Then what Saddam did is, he created special courts in the
Ministry of Information, the Ministry of the Interior under the
security forces, the military had their own courts, the police
had their own courts, so basically every court system reported
to an executive who had the final say.
The Ministry of Justice, however, dealt primarily with just
civil and criminal affairs and was left largely intact, except
for when Ba'ath Party members were involved, so what you have
are individuals that work in the Ministry of Justice, and I had
the opportunity in the last few days to meet with the interim
Minister of Justice who arrived in New York a few days ago and
is addressing the United Nations, and it's individuals like him
who understand from the inside--he's been with the judiciary
for 43 years, understands it inside and out, and has an idea of
how to reform, and it requires a vetting process. It's a long-
term process.
There's also a cadre of forcibly retired jurists, those who
would not go along with the Ba'ath Party rule, who also
represent a constituency or a resource within the country, so
the first premise is that it has to be rebuilt from the inside,
and the second is that there can be international assistance,
but we have to be very careful about who those international
experts are, because there is sensitivity inside the country
about who they will work with.
Senator Feingold. Thank you.
Dr. Pollack, you suggested that international involvement
might be helpful in giving legitimacy to the constitutional
process. What do you see as the role of the United Nations and
the international community in drafting an Iraqi constitution?
Would you suggest, for example, that the United States ask the
United Nations, or a third country, to take over leadership of
the constitutional process?
Dr. Pollack. Thank you, Senator. No, I would not suggest
that. I think that the constitutional process must be led by
Iraqis. That said, I think that all of these international
organizations, and I think that all the members of the
coalition, the increasingly expanding coalition, have important
roles to play within that.
First, the transitional authority itself will have a role
in literally setting up a constitutional commission of some
sort. They will have to take care of the administrative side of
things. On that issue, as on all matters, as far as I'm
concerned, the more the United States can work in conjunction
with the United Nations, now that we have Sergio de Mello as
the new Special Representative of the Secretary General,
someone who's very skilled in these kind of operations, a good
partner for Paul Bremer, I think that it is incumbent upon us
to work in conjunction with them to indicate that this is not a
U.S.-only operation.
Senator Feingold. The thrust of my question was, wouldn't
it better, or arguable that we should turn over this
responsibility of helping, the leadership role, to another
country, rather than doing it ourselves?
Dr. Pollack. Again, I would not suggest that we necessarily
turn it over to another country. I certainly think that we
should be involving as many countries as we possibly can. I
think that the United States at the end of the day has a
responsibility to make sure that Iraq is a stable, functional
society when the international occupation has ended. We're the
ones who started this. We're the ones who have got to make sure
that it succeeds.
That said, I also don't think that the United States should
necessarily be directing the Iraqis to do this, that or the
other thing. I just think it ought to be a joint effort, not
any one country.
Senator Feingold. I'm going to take this to Ms. Salbi now,
because I want to know her thoughts on the issue of
international involvement with regard to my question to Dr.
Pollack, but also based on your experience in other post-
conflict societies like Afghanistan and Kosovo.
Ms. Salbi. Two things. One is, we need to acknowledge the
high level of frustration that has been built in Iraq for 35
years. What the Iraqis are going through is that for the first
time in their history, or in 35 years, they can talk about
Saddam's oppression, so a Truth and Reconciliation Committee
would be something that would be very helpful in just at least
processing these frustrations and the injustices that they have
been through, and acknowledging them at a minimum.
The second thing, when I talked to local political parties
over there, and I was talking to them about different models
and different experiences, from Afghanistan to South Africa,
there was a hunger for information. Remember, Iraqis have been
blocked from any information outside of Iraq, and everyone was
eager to know, what is the South African constitution, what are
the pros and cons of the Afghan reconstruction process, and so
I do think that it has to have a local ownership, but that
process needs to inform them and to share information from
different countries.
South Africa is a great model, Afghanistan is a good model
to look at, with Iraqi leadership, with our support, making
sure that we're feeding the Iraqis all in the information in
the process.
Senator Feingold. But is it better for the United States to
be perceived as taking the lead outside role, or would it be
better if the United Nations--and I know you expressed strong
reservations about the United Nations--or a third country were
in that role in that context?
Ms. Salbi. I personally don't have reservations about the
United States as much as the Iraqis do. I think the Iraqis are
looking for America's leadership, but they are looking also at
America's communication, and they want to be incorporated in
the process, and there is a sense that they are cutoff from
whatever process that is going on in dealing with Iraq.
So the majority of the sentiments is still, people are
looking for America. It's just that they are frustrated, that
they don't think America is reaching out to them.
Senator Feingold. Thank you very much.
Thank you, Mr. Chairman.
Senator Cornyn. Thank you, Senator Feingold. I'd like to
express my gratitude, and I know I speak for all of us here, at
your participation, the members of the first panel.
Oh, I beg your pardon. Senator Chafee has another question
or two.
Senator Chafee. Just before we give our thanks to this
panel, Ms. Salbi, since you were just in Iraq, do the Iraqi
people think that Saddam Hussein is still alive? Do they think
that, and is that significant?
Ms. Salbi. I am glad you asked this question. Yes, they do
think that he is alive. His family members are moving very
freely, actually in the streets of Iraq, not only female family
members, which we could argue it's safer for them, but male
family members, his cousins, his nephews, who are notorious for
their oppression and violence during this regime, so there is
not only a sentiment that he is still in Iraq, but the
Ba'athists are also being relaxed about the security issue,
that they are feeling comfortable to walk the streets of Iraq,
especially in the evenings and at nights.
Senator Chafee. And how big an issue is that as we go
forward?
Ms. Salbi. Again, we can contain that because what's
happening is that there are gaps of information and the
Ba'athists are taking advantage of these gaps, as are the
religious extremists, but particularly the Ba'athists by
saying, look, Saddam was better for us than the Americans.
When you ask the police force if they are happy now Saddam
is out, some say no, they wish Saddam were back. A lot of
former employees are returning, and they should return because
they need the jobs and we need to stabilize the economy, but we
really need to reeducate them and retrain them as to what the
former regime has done and what their role should be in the
future.
Senator Chafee. Very good. Thank you.
Senator Cornyn. Thank you, Senator Chafee, and thanks to
each of you on the first panel. I'll just remind everybody that
we're going to leave the record open until July 2 in case any
other member of the joint subcommittees would like to submit
any further questions, or if there any other documents that
you'd like to offer in support of your testimony in this
record, we would invite you to do so. Thank you very much.
Now I'd like to invite the members of the second panel to
come forward, a panel of distinguished constitutional legal
experts; while they take their seats I will introduce them.
First, we're happy to have Professor John Yoo here.
Professor Yoo served as Deputy Attorney General for the Office
of Legal Counsel at the U.S. Department of Justice from 2001
until just last month. In that role, he served in the Bush
administration as one of its top legal advisors in the war on
terrorism and the war on Iraq. He's a nationally recognized
expert in international law, U.S. constitutional law, and
national security and foreign relations law.
Professor Naoyuki Agawa is a recognized expert on both the
Japanese and the United States constitutions. He served as a
professor at the University of Virginia Law School, Georgetown
Law School and Keio University. He holds bar memberships in
both the United States and Japan, and has practiced law in both
Washington, D.C. and Tokyo.
Dr. Donald Kommers is a recognized expert on the German
constitution. He is both the Joseph and Elizabeth Robbie
professor of Political Studies at Notre Dame and a law
professor at Notre Dame Law School. He's authored 10 books and
67 articles primarily in the area of American, German and
comparative law and German politics.
Our fifth panel member is Professor Dick Howard, who is the
White Burkett Miller Professor of Law and Public Affairs at the
University of Virginia Law School, where he and I first had an
opportunity to meet. Professor Howard is an expert in
constitutional law and comparative constitutionalism. Numerous
countries have sought his counsel in the process of drafting
their constitutions, including Brazil, Hong Kong, the
Philippines, Hungary, Czechoslovakia, Poland, Romania, Russia,
Albania, South Africa, and India, quite an impressive list.
I know we have Mr. Neil Kritz, who is director of the Rule
of Law program at the United States Institute of Peace. That
program focuses on advancing peace through the development of
democratic, legal, and governmental systems, precisely the
topic we have before us here today. He is the editor of a
three-volume work called ``Transitional Justice: How Emerging
Democracies Reckon with Former Regimes,'' and I imagine has
quite a bit to offer on the subject before us today.
I want to thank each one of you for being here, and your
patience. Now we'd like to hear from each of you, if we might,
and if you would please keep your opening statement to 5
minutes, then we'll proceed to questions.
Professor Yoo.
STATEMENT OF JOHN YOO, VISITING FELLOW, AMERICAN ENTERPRISE
INSTITUTE
Mr. Yoo. Thank you, Mr. Chairman, Chairman Chafee, thank
you for inviting me to appear, and I'd like to compliment you
and your committee on your leadership in holding hearings on
this important topic, which I think will be central to
guaranteeing the future and long-term stability of Iraq.
I would also just like to make clear that the views
expressed here are my own, and not those of the American
Enterprise Institute or the University of California, Berkeley.
I think my point of view here is that of a lawyer, in that
I can tell you what you can do, but I can't tell you what you
should do, and in that capacity I'd like to point to three
sources of law that give the United States the authority, as
the occupying power in Iraq, to establish a constitution that
guarantees basic, individual human rights and that operates
within a rule of law with democratic representative
institutions.
The first is our own domestic constitution. Iraq is not the
first country that the United States has occupied, and the
Supreme Court in several cases has examined the question of
occupation and has stated quite clearly that occupation
includes the power to change laws and constitutions of the
territory that is occupied because it is part of the war power.
We're still in a state where legally the state of armed
conflict continues to exist in Iraq and does not terminate
until a peace treaty has been signed, and as part of the effort
to wage a successful campaign that may include eliminating
aspects of the local governmental system that pose a threat,
continue to pose a threat to peace and stability and to the
United States and the region.
Here in Iraq, the second major source of authority comes
from the United Nations. There are two separate resolutions
that bear on the question of occupation. First is the
resolution passed in 1991, Resolution 678, which originally
authorized all member nations to use all necessary means,
quote-unquote, to remove Iraq from Kuwait, to enforce other
relevant resolutions, and to restore international peace and
security to the region.
One of those significant resolutions was to eliminate WMD
in Iraq. Another resolution is to prevent Iraq's regime from
terrorizing its own civilian population. That resolution,
number 678, ultimately was one of the sources of authority for
the war in Iraq. Also, by requiring that member nations restore
international peace and security, to the extent that the Iraqi
constitution as it was, and the Saddam Hussein regime
encouraged or enabled a specific regime to continue to pose a
threat to that region, then obviously Resolution 678 could be
used also to eliminate the legal aspects of that threat.
The second and more recent actions of the Security Council
came, as you mentioned in your opening statement, in Resolution
1483, which was passed just a few weeks ago. In that
resolution, the United Nations Security Council recognized the
United States and Great Britain as occupying powers in Iraq. It
expressed its hope that the Iraqis would be encouraged to
establish a representative government with protection for human
rights and the rule of law, and also stated that the United
States and Great Britain would be subject to their obligations
under what's known as the Hague Regulations and the Geneva
Conventions, which are primary treaties in the area of
occupation.
Just to turn to that last point, then, the third source of
authority for America's ability to establish a constitution for
Iraq that is based on the rule of law and democratic
institutions comes from those two basic treaties, the Hague
Regulations of 1907, and the Fourth Geneva Convention of 1949.
The Hague Regulation of 1907, Article 43, allows an
occupying power to change the domestic laws of the country that
is occupied if it is necessary to restore public order and
safety, so again in this case, as I think the first panel
discussed, a lot of the negative aspects of Saddam Hussein's
regime were actually incorporated and codified into the legal
system and into the constitution, so to the extent that the
Hussein regime and its instruments were the basic threat to
order and security in its own country, removal of those
constitutional provisions and those statutes would be justified
under the Hague Regulations.
The second point is, Iraq isn't even a signatory to the
Hague Regulations, so to the extent the Hague Regulations are
more of a customary international law, then the interpretations
that countries have put up on it in their State practice would
be more important, and here I defer to my other panel members,
but the experiences in Germany and Japan in particular show how
States have interpreted Article 43 of the Hague Regulation. In
both of those examples, obviously, the United States exercised
a great deal of discretion and authority in encouraging a
certain kind of constitution for Germany and Japan.
And just a last point, the last source of authority is the
Fourth Geneva Convention, which is much more liberal, I suppose
you could say, in its grant of authority to an occupying power.
Article 64 of the Fourth Geneva Convention says that the
occupying power may subject the population of the occupied
territory to provisions which are essential to enable the
occupying power to fulfill its obligations under the present
convention, by which it means basic human rights, to maintain
the orderly government of the territory, and to assure the
security of the occupying power.
Article 64 of the Geneva Convention, therefore, would
provide a legal basis for the United States in Iraq to
institute and establish changes to the Iraqi constitution and
its legal system consistent with achieving basic human rights,
protecting safety and security, and protecting the United
States' own security interests.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Yoo follows:]
Prepared Statement of John Yoo
Mr. Chairman, thank you for the opportunity to appear before your
committee today to discuss the reconstruction of Iraq and its
constitution. I wish to complement you and the committee for convening
today's hearings on this important subject, which will be critical to
providing for Iraq's long-term stability and ensuring that Iraq will
become a law-abiding member of the international community. Rather than
discuss any specific element of a proposed Iraqi constitution, I appear
before you today to discuss the authority of the United States, under
domestic and international law, to make fundamental changes to the
constitutional law and government institutions of Iraq. I conclude that
United Nations Security Council resolutions and the international law
of occupation provide the United States with broad discretion to
establish a new Iraq constitution, one that guarantees fundamental
human rights protected by democratic institutions that limit government
power.
I have studied these issues for much of my career. I recently left
the Department of Justice, where I served as Deputy Assistant Attorney
General in the Office of Legal Counsel (OLC). OLC advises the executive
branch on all legal questions, including those involving treaties and
international law. I am currently a visiting fellow at the American
Enterprise Institute, and a professor of law at the University of
California at Berkeley School of Law (Boalt Hall), where I have taught
foreign affairs law, international law, and constitutional law, since
1993. It was also my great honor to have served as General Counsel of
the Senate Judiciary Committee under Chairman Hatch from 1995-96. I
wish to make clear that the views expressed here are my own, and do not
represent those of the American Enterprise Institute or the University
of California.
I. DOMESTIC LAW AND OCCUPATION
Under our domestic law, occupation of a nation is merely the
continuation of hostilities, and thus the reconstruction of Iraq falls
within the war powers of the federal government. Occupying foreign
territory during the transition period between an armed conflict and a
declaration of peace, and establishing fundamental institutional
changes to the government of an enemy nation, may be essential to
reaching a successful conclusion to war. If allowed to remain in
existence, the institutions of an occupied nation may continue to pose
a threat to the safety of U.S. troops or the national security. Or the
government institutions of the defeated enemy have been so degraded or
destroyed that they cannot provide security and basic services to the
local population. If left to suffer, a local population may become
hostile to the United States. To be fully successful, military
operations in an occupied territory may have to continue even as the
immediate need for force has subsided.
In several previous armed conflicts, the United States has
exercised its authority to occupy and govern a foreign nation after a
successful military campaign. The Supreme Court has clearly upheld this
authority. In MacLeod v. United States, for example, which arose during
the U.S. military occupation of the Philippines during the Spanish-
American War, a unanimous Supreme Court explained that
[t]he right to . . . occupy an enemy's country and temporarily
provide for its government has been recognized by previous
action of the executive authority, and sanctioned by frequent
decisions of this court. The local government being destroyed,
the conqueror may set up its own authority, and make rules and
regulations for the conduct of temporary government, and to
that end may collect taxes and duties to support the military
authority and carry on operations incident to the
occupation.\1\
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\1\ 229 U.S. 416, 425 (1913).
The Court similarly stated with respect to the U.S. occupation of
---------------------------------------------------------------------------
Puerto Rico that
[u]pon the occupation of the country by the military forces of
the United States, the authority of the Spanish Government was
superseded . . . The government must be carried on, and there
was no one left to administer its functions but the military
forces of the United States. . . . The right of one belligerent
to occupy and govern the territory of the enemy while in its
military possession, is one of the incidents of war, and flows
directly from the right to conquer. We, therefore, do not look
to the Constitution or political institutions of the conqueror,
for authority to establish a government for the territory of
the enemy in his possession, during its military occupation,
nor for the rules by which the powers of such government are
regulated and limited. Such authority and such rules are
derived directly from the laws of war, as established by the
usage of the world, and confirmed by the writings of publicists
and decisions of courts--in fine, from the law of the
nations.\2\
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\2\ Dooley, 182 U.S. at 230-31 (quoting 2 Halleck, International
Law, 444).
As the Supreme Court has further made clear, the power to establish an
occupation government and to make decisions concerning reconstruction
flow directly from the President's Commander-in-Chief power.\3\
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\3\ See, e.g., Madsen v. Kinsella, 343 U.S. 341, 348 (1952)
(``[t]he President has the urgent and infinite responsibility not only
of combating the enemy but of governing any territory occupied by the
United States by force of arms.''); Fleming v. Page, 50 U.S. (9 How.)
603 (1850) (power to occupy captured territory is ``simply that of a
military commander prosecuting a war waged against a public enemy by
the authority of his government.''); Hirota v. MacArthur, 338 U.S. 197,
208 (1948) (Douglas, J., concurring) (``[The President's] power as
Commander in Chief is vastly greater than that of troop commander. He
not only has full power to repel and defeat the enemy; he has the power
to occupy the conquered country . . . '').
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It is not difficult to see why occupation and reconstruction of a
defeated enemy may be an important aspect of the war power. Eliminating
a threat to the national security or achieving U.S. foreign policy
goals may not only require the occupation of an enemy nation until its
capacity to attack the United States has ended, but also the extensive
reordering of an occupied nation's domestic institutions. Replacing a
hostile government with new institutions may make the defeated nation
less of a threat to the United States, both now and in the future, and
may end human rights abuses. At the end of World War H, the United
States not only occupied part of Germany, it completely refashioned,
along with the other Allied powers, German government institutions. The
United States believed that preventing Germany from ``ever again
becoming a threat to the peace of the world'' would require ``the
elimination of Nazism and militarism in all their forms, the immediate
apprehension of war criminals for punishment, the industrial
disarmament and demilitarization of Germany, with continuing control
over Germany's capacity to make war, and the preparation for an
eventual reconstruction of German political life on a democratic
basis.'' \4\ Similarly, the United States also reordered the Government
of Japan following the conclusion of World War II, although these
changes, unlike those in Germany, were carried out with the consent of
the Japanese Government. Again, the rationale underlying this
fundamental government reform was to guarantee that Japan would not
again become a military threat to the United States or the world.\5\
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\4\ Directive to Commander in Chief of United States Forces of
Occupation Regarding the Military Government of Germany, (Apr. 1945),
reprinted in ``The Axis in Defeat: A Collection of Documents on
American Policy Toward Germany and Japan,'' 43-44, (1945).
\5\ See U.S. Initial Post-Surrender Policy for Japan, (Aug. 29,
1945), reprinted in ``The Axis in Defeat: A Collection of Documents on
American Policy Toward Germany and Japan,'' (setting forth objectives
for post-World War II occupation of Japan), 107, (1945).
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II. INTERNATIONAL LAW AND OCCUPATION
International law authorizes a victorious nation both to establish
its own temporary occupation government and to make changes in the laws
of the defeated nation prior to the conclusion of a treaty of peace.
This authority includes the power to make fundamental institutional
changes to the government of an occupied nation. Here, I will address
the sources of law that establish the authority of the United States,
as an occupying power, to replace the forms of the previous Hussein
regime with new governmental institutions and a new constitution. These
sources include Security Council Resolutions under Chapter VII of the
United Nations Charter, which gives the Council the authority to bind
member nations, and the international law of occupation as expressed in
treaties and state practice.
United Nations Authorization
The United States has been authorized by the Security Council to
occupy Iraq and, as a consequence, to establish a constitution and form
of government that will end the threat posed by the Hussein regime to
international peace and security. This authority comes from two
sources, the original 1991 authorization to use force against Iraq
(S.C. Res 678), and the recent May, 2003 Security Council resolution
approving the occupation of Iraq at the end of major combat operations
in Iraq (S.C. Res. 1483).
In 1991, the Security Council enacted a resolution that recognized
the legitimacy of the U.S.-led international coalition's use of
military force against Iraq. Security Council resolution 678 explicitly
recognized that member states could ``use all necessary means'' (1) to
respond to the Iraqi regime's substantial violations of the terms of
the cease-fire set forth in UNSCR 687 that suspended hostilities
between Iraq and a U.S.-led international coalition in 1991; and (2) to
restore international peace and security in the area. In particular,
Iraq had flagrantly breached its various obligations under UNSCR 687
regarding the destruction and dismantling, under international
supervision, of its weapons of mass destruction (``WMD'') programs. The
Security Council itself decided last year that Iraq ``has been and
remains in material breach of its obligations under relevant
resolutions, including resolution 687'' as a result of its failure to
comply with its disarmament obligations.\6\ in the same resolution, the
Security Council also recalled that those obligations imposed upon Iraq
under UNSCR 687 constituted ``a necessary step for achievement of UNSCR
687's stated objective of restoring international peace and security in
the area.''
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\6\ S.C. Res. 1441, para. 1 (2002). See also S.C. Res. 707, para. 1
(1991); S.C. Res. 1137, para. 1 (1997); S.C. Res. 1205, para. 1 (1998).
---------------------------------------------------------------------------
The Security Council's authorization to ``use all necessary means''
to disarm Iraq and to restore international peace and security in the
area includes not only the use of force but also the subsequent
occupation. An occupation of Iraq is necessary to locate, catalog,
dismantle, and destroy all Iraqi WMD programs and thus ensure that Iraq
is in compliance with UNSCR 687. Given the lengths to which the Hussein
regime has gone to conceal its WMD programs and the years it has had to
hide its arms, the United States cannot rid Iraq of its WMD programs
during the course of major combat operations. In addition, were the
United States and its coalition partners to depart from Iraq
immediately following the end of combat, the peace and security of the
region might be threatened. Violence could erupt among Iraq's various
ethnic and religious groups that could spill beyond Iraq's borders.
Iraq could descend into a state of anarchy. Such a development would
not only threaten Iraq's neighbors but also could turn Iraq into a
haven for terrorist organizations. A humanitarian crisis could also
result from political turmoil, leading to a flood of refugees entering
and destabilizing Iraq's neighbors. Remnants of the current Iraq regime
could seek to reconstitute themselves, which would pose a threat to
Iraq's neighbors. To fulfill the goals of U.N. Security Council
Resolution 678, the United States must occupy Iraq, establish an
interim administration, and construct stable Iraqi government
institutions that will help to restore peace and security to the
region.
The U.S.'s authority to occupy Iraq is confirmed by Resolution
1483, which was adopted by the Security Council on May 22, 2003 by a
unanimous vote (with Syria not voting). in that resolution, the
Security Council recognized the United States and Great Britain as the
``occupying powers'' in Iraq, and it encouraged ``efforts by the people
of Iraq to form a representative government based on the rule of law
that affords equal rights and justice to all Iraqi citizens without
regard to ethnicity, religion, or gender.'' The Security Council
resolved ``that the United Nations should play a vital role in
humanitarian relief, the reconstruction of Iraq, and the restoration
and establishment of national and local institutions for representative
governance.'' It also called upon the United States and Great Britain
``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 toward 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.'' In addition to approving the
financial arrangements for the sale of Iraqi oil and the use of the
proceeds, Resolution 1483 ``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.''
I will review the authority provided by the Geneva Conventions and
the Hague Regulations shortly. It is important, however, to understand
that by making clear that the two treaties apply to the occupation of
Iraq, the Security Council has explicitly recognized that the United
States may exercise the broad authorities granted by those conventions.
Further, Resolution 1483 expresses the Security Council's hope that
Iraq will reform its government in order to establish representative
institutions subject to the rule of law and protection for human
rights. The Security Council, however, did not detail the specific
authorities that would empower the United States and its allies to move
Iraq toward a constitution with democratic institutions. Therefore, the
power to achieve these goals must flow from the existing international
law of occupation, as expressed in state practice and applicable
treaties. These sources allow the occupying powers, here the United
States and Great Britain, to alter the domestic laws, including the
constitution and government institutions, in order to provide for
stability and security in Iraq, to protect the basic human rights of
Iraqis, and to restore international peace and security in the region.
Customary Law and the Hague Regulations
The laws of war govern the conduct of warfare by and between
states. This body of law is both reflected in the customary practice of
nations and codified in various texts, including the Hague Convention
(IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36
Stat. 2277 (``Hague Convention'') and the Geneva Conventions. The laws
of war recognize that, as the result of armed conflict, any surviving
elements of the enemy nation may be incapable of providing public
services and maintaining security. Additionally, victorious armies have
sought to control enemy territory in order to deprive the enemy of
valuable resources and to produce surrender. The laws of war thus
include a specific set of rules to govern the conduct of military
occupations and the operation of military government. This
international law of occupation not only authorizes a victorious nation
to occupy enemy territory and establish a military government; it also
recognizes the authority of an occupant to change the local laws,
including government institutions.
Because the international law of occupation is partially formed, by
custom and practice, and, as will be explained below, the central
treaty on occupation does not apply to Iraq, it is important to review
the historical development of the legal rules in this area.
Historically, an occupying army enjoyed wide discretion in
administering the territory of a defeated enemy.\7\ An occupant was
generally considered the permanent and absolute owner of occupied
territory. Since the nineteenth century, however, the law has
understood the occupying authority to exercise only temporary control
over territory. Permanent control would result only from a treaty of
peace concluded at the end of a military conflict or the complete
subjugation of an enemy.\8\ The first efforts to codify the laws of
war, and more specifically the law of occupation, began in the United
States during the Civil War. In 1862, the War Department commissioned
the drafting of a set of basic instructions for Union soldiers on the
law of war. Approximately one-third of the resulting General Order No.
100, also known as the ``Lieber Code,'' addressed rules relating to
occupation. The Lieber Code explained that ``[a] place, district, or
country occupied by an enemy stands, in consequence of the occupation,
under the martial law of the invading or occupying army, whether any
proclamation declaring martial law, or any public warning to the
inhabitants has been issued or not.'' \9\
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\7\ See Doris A. Graber, The Development of the Law of Belligerent
Occupation 1863-1914, at 13, (1949).
\8\ See 3 Emmerich de Vattel, The Law of Nations or The Principles
of Natural Law, Applied to the Conduct and to the Affairs of Nations
and of Sovereigns, 308, (Charles G. Fenwick, trans., 1916), (1758)
(``Real property--lands, towns, provinces--become the property of the
enemy who takes possession of them; but it is only by the treaty of
peace; or by the entire subjection and extinction of the State to which
those towns and provinces belong, that the acquisition is completed and
ownership rendered permanent and absolute.''); American Ins. Co. v.
Canter, 26 U.S. (1 Pet.) 511, 542 (1828) (``[T]he usage of the world
is, if a nation be not entirely subdued, to consider the holding of
conquered territory as a mere military occupation, until its fate shall
be determined at the treaty of peace.'').
\9\ General Order No. 100, section I, para. 1.
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The institution of martial law, in turn, provided an occupant with
the authority both to suspend the laws of an occupied nation and to
subject the population of an occupied nation to new laws. The Lieber
Code provided, ``Martial law in a hostile country consists in the
suspension by the occupying military authority of the criminal and
civil law, and of the domestic administration and government in the
occupied place or territory, and in the substitution of military rule
and force for the same, as well as in the dictation of general laws, as
far as military necessity requires this suspension, substitution, or
dictation.'' \10\ The scope of the occupant's authority to suspend,
substitute, or dictate the law of the occupied territory was quite
broad, due to the Lieber Code's broad definition of the concept of
military necessity.'' \11\
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\10\ General Order No. 100, section I, para. 3.
\11\ General Order No. 100, section I, para. 14 (defining
``[m]ilitary necessity'' as ``consist[ing] in the necessity of those
measures which are indispensable for securing the ends of the war, and
which are lawful according to the modern law and usages of war'').
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International efforts to codify the laws of war followed. The 1874
Brussels Declaration, although not a legally binding agreement,
specifically authorized the conduct of military occupation, stating
that ``[t]he authority of the legitimate power being suspended and
having in fact passed into the hands of the occupant, the latter shall
take all the measures in his power to restore and ensure, as far as
possible, public order and safety.'' \12\ Like the Lieber Code, the
Brussels Declaration expressly recognized the authority of occupants to
change the laws of the indigenous government in certain situations:
``With this object he shall maintain the laws which were in force in
the country in time of peace and shall not modify, suspend or replace
them by others unless necessary.'' \13\ Although the Brussels
Declaration established a presumption in favor of ``maintain[ing] the
laws which were in force in the country in time of peace,'' it also
allowed the occupant to ``modify, suspend or replace'' those laws when
necessity required.
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\12\ Draft of an International Declaration concerning the Laws and
Customs of War adopted by the Conference of Brussels, August, 27, 1874,
art. 2.
\13\ Id. art. 3.
---------------------------------------------------------------------------
The Brussels Declaration became the basis for the Hague Conventions
of 1899 and 1907. The Hague Conventions acknowledged both the legality
of military occupation and the authority of occupants to change
indigenous laws and institutions. Article 42 of the Hague Convention of
1907, known as the ``Hague Regulations,'' states that ``[t]erritory is
considered occupied when it is actually placed under the authority of
the hostile army. The occupation extends only to the territory where
such authority has been established and can be exercised.'' \14\
Article 43 of the Hague Regulations sets forth one of the primary legal
duties of an occupying power. Because ``[t]he authority of the
legitimate power [has] in fact passed into the hands of the occupant,''
the occupant ``shall take all the measures in his power to restore, and
ensure, as far as possible, public order and safety, while respecting,
unless absolutely prevented, the laws in force in the country.'' \15\
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\14\ Hague Convention, Annex, art. 42, 36 Stat. 2306.
\15\ Hague Convention, Annex, art. 43, 36 Stat. 2306 (emphasis
added).
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The text of article 43 of the Hague Regulations provides ample
authority to the United States to change Iraqi law, including the
fundamental change of Iraqi government institutions. Article 43
empowers an occupant to modify an occupied nation's laws if it is
necessary to restore and ensure ``public order and safety.'' Given the
nature of the current Iraqi regime, the United States may need to make
extensive changes to Iraqi laws, including a substantial overhaul of
Iraqi government institutions, in order to ensure public order and
safety.
Further, it is important to emphasize that even if the Hague
Regulations were read to impose a stricter standard upon United States
conduct, it would not legally bind our military occupation in Iraq. The
Hague Regulations do not govern the U.S. conflict with Iraq because
Iraq is not a party to Hague. Article 2 of Hague makes clear that its
provisions apply only to armed conflicts between parties. Thus, the
international law that applies to the United States is actually that
created by custom and state practice, and to the extent that the text
of article 43 and state practice deviate, the latter would control
rather than the former. In any event, state practice would be relevant
even if the Hague Regulations applied of their own force because it
would illustrate how nations have interpreted article 43 over time.
In the period between the Hague Regulations and the signing of the
Geneva Conventions of 1949, occupying nations often instituted changes
in the laws and governmental institutions of the occupied territory.
During World War I, for example, when Germany occupied Belgium, it
supplanted the Belgian court system and divided Belgium into separate
administrative regions. Germany also enacted new legislation governing
trade, commerce, banking, and welfare, and raised taxes.\16\ When Great
Britain occupied French and Italian colonies in North Africa during
World War II, it replaced the colonial governments with administrative
divisions. \17\ It also established new government systems, including a
new judicial system, when the local administrative system in Somalia
collapsed. \18\ During the Allied occupation of Fascist Italy, the
United States and Great Britain established an Allied Military
Government of Occupied Territories that eliminated all Fascist
institutions in Italy, removed Fascists from power, and repealed laws
that discriminated on the basis of race, creed, or color. These
developments were probably inevitable due to article 43's ambiguity.
Nothing in the text of the phrase ``unless absolutely prevented''
establishes any substantive standard for what grounds must exist to
overcome the presumption in favor of the status quo.\19\ And in
interpreting this vague text, occupying nations generally will have
powerful motives for interpreting article 43 as broadly as possible. By
the end of World War II, state practice had established the authority
of an occupying power to implement fundamental changes in the laws and
government of an occupied country.
---------------------------------------------------------------------------
\16\ Eyal Benvenisti, The International Law of Occupation, 40,
(1993).
\17\ See id. at 73.
\18\ See id. at 73-74.
\19\ See id. at 13 (``[T]he meaning of `unless absolutely
prevented' remained conveniently vague. . . . The requirement to
`respect' the existing laws `unless absolutely prevented' has no
meaning of its own, since the occupant is almost never absolutely
prevented, in the technical sense, from respecting them.'').
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The Fourth Geneva Convention
In response to Axis atrocities during World War II, an attempt was
made in the Fourth Geneva Convention (``Geneva IV'') to clarify the
laws of occupation.\20\ Geneva IV formally recognized the authority of
an occupying nation to alter local laws. Unlike the case with the Hague
Regulations, both the United States and Iraq are parties to Geneva IV.
The terms of the Convention apply to any military conflict between the
two countries and to the U.S. occupation of Iraq.
---------------------------------------------------------------------------
\20\ Convention (IV) Relative to the Protection of Civilian Persons
in Time of War, Aug. 12, 1949, 6 U.S.T. 3516.
---------------------------------------------------------------------------
Article 64 of Geneva IV gives the United States significant
authority to alter the laws of Iraq during the occupation. Article 64
provides that `` the penal laws of the occupied territory shall remain
in force, with the exception that they may be repealed or suspended by
the Occupying Power in cases where they constitute a threat to its
security or an obstacle to the application of the present Convention.''
\21\ Article 64 then states:
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\21\ Geneva Convention (IV) Relative to the Protection of Civilian
Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 3558.
[T]he Occupying Power may . . . subject the population of the
occupied territory to provisions which are essential to enable
the Occupying Power to fulfill its obligations under the
present Convention, to maintain the orderly government of the
territory, and to ensure the security of the Occupying Power,
of the members and property of the occupying forces or
administration, and likewise of the establishments and lines of
---------------------------------------------------------------------------
communication used by them.
The Red Cross commentary to Geneva IV states that article 64 of the
Convention ``expresses, in a more precise and detailed form, the terms
of Article 43 of the Hague Regulations, which lays down that the
Occupying Power is to respect the laws in force in the country ``unless
absolutely prevented.'' \22\ Article 64, however, contains two
important differences from Article 43. First, article 64 establishes a
much weaker presumption in favor of the status quo, and it applies it
only to the criminal laws. Second, article 64 does not limit to
criminal laws the ``provisions'' to which the occupied territory may be
subject. We may infer from this language that an occupying power may
take measures under article 64 that include constitutional, civil, or
administrative law as well as criminal.
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\22\ Jean S. Pictet, ed., Commentary, IV Geneva Convention Relative
to the Protection of Civilian Persons in Time of War, 335, (1958)
(``Commentary on Fourth Geneva Convention'').
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Article 64 and customary international law empower the United
States to impose ``provisions'' for a variety of enumerated purposes,
without regard to whether such provisions can or cannot be reconciled
with current law, and absent any strong presumption in favor of the
status quo ante. For instance, article 64 explicitly empowers an
occupant to institute those measures essential ``to maintain[ing] the
orderly government of the territory, and to ensur[ing] the security of
the Occupying Power, of the members and property of the occupying
forces or administration, and likewise of the establishments and lines
of communication used by them.'' \23\ In this respect, Geneva IV
memorialized state practice under the Hague Regulations, which
recognized an occupant's expansive authority to alter laws, including
government institutions, in order to maintain the security of its
military forces, preserve its military gains, and maintain domestic
order. Occupying nations possess the authority to dismantle
institutions that pose a threat to domestic or international peace and
order, such as the Nazi regime in Germany. Commentators have also
construed state practice to include all of the legitimate purposes of
war, such as the promotion of democracy and the protection of
fundamental human rights. \24\
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\23\ 6 U.S.T. at 3558.
\24\ See e.g., Davis P. Goodman, The Need for Fundamental Change in
the Law of Belligerent Occupation, 37 Stan. L. Rev. 1573, 1585-86
(1985) (``occupiers consider themselves absolutely prevented
fromrespecting local law whenever it hinders the realization of the
legitimate purpose of occupation''); id. at 1590 (``If the purpose of
the conflict is to rid the occupied territory of a form of government
objectionable to the belligerent occupier, the occupier will not
respect the existing political structure while waiting for the final
determination of the conflict.'').
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The United States may reasonably conclude that institutions of the
former Hussein regime pose a substantial threat to the security of the
Armed Forces during the occupation of Iraq. Consequently, in order to
protect the safety of the U.S. Armed Forces during an occupation of
Iraq, it would almost certainly be necessary for Iraqi law to be
changed so that these government institutions are dismantled. The
preservation of the forms of the Hussein regime could also represent a
danger to the national security of the United States. As Congress has
found, the Iraqi government has generally demonstrated a continuing
hostility to the United States. The Iraqi government has harbored and
aided international terrorist organizations that threaten the lives and
safety of American citizens. Just last year, Congress found that the
current Iraqi regime posed a continuing threat to the national security
of the United States, due to its possessions of chemical and biological
weapons, pursuit of nuclear weapons capability, and support for
terrorist organizations.\25\ Congress specifically noted Iraq's
capability and willingness to use weapons of mass destruction and the
risk that the current Iraqi regime would employ those weapons in an
attack upon the United States or provide them to terrorists who would
do so.\26\ Iraq has also been a danger to the region. It has twice
invaded its neighbors without provocation.
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\25\ Pub. L. No. 107-243, 116 Stat. 1498 (2002); see also Pub. L.
No. 105-235, 112 Stat. 1538, 1540 (1998) (declaring that ``Iraq's
continuing weapons of mass destruction programs threaten vital United
States interests and international peace and security'').
\26\ See Pub. L. No. 107-243, 116 Stat. 1498 (2002).
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The historical record shows that the maintaining current Iraqi
government institutions would constitute a threat to the national
security of the United States and the safety of the U.S. Armed Forces
in Iraq. Geneva IV and customary international law permit the United
States to replace those institutions with others that would endanger
neither the national security of the United States nor the safety of
the U.S. Armed Forces. Given the Iraqi government's past behavior, the
retention of the current Iraqi regime would be inimical to the
establishment of peace and security in the Middle East.
Article 64 also expressly authorizes occupants to make alterations
to laws of the indigenous government in order to protect rights
guaranteed by Geneva IV. The rights afforded by Geneva IV sweep
broadly. For example, article 27 provides that ``[p]rotected persons
are entitled, in all circumstances, to respect for their persons, their
honour, their family rights, their religious convictions and practices,
and their manners and customs.'' It establishes that ``[t]hey shall at
all times be humanely treated, and shall be protected especially
against all acts of violence or threats thereof and against insults and
public curiosity.'' It declares that ``[w]omen shall be especially
protected against any attack on their honour, in particular against
rape, enforced prostitution, or any form of indecent assault.'' And it
finds that ``all protected persons shall be treated with the same
consideration by the Party to the conflict in whose power they are,
without any adverse distinction based, in particular, on race, religion
or political opinion.'' All of these rights are subject to the
qualification that ``the Parties to the conflict may take such measures
of control and security in regard to protected persons as may be
necessary as a result of the war.'' \27\
---------------------------------------------------------------------------
\27\ An occupying power also must respect a number of rights
provided to civilians charged with committing a criminal act during an
occupation. Those prosecuted must be ``promptly informed, in writing,
in a language which they understand, of the particulars of the charges
preferred against them, and shall be brought to trial as rapidly as
possible.'' Art. 71, 6 U.S.T. at 3562. Additionally, those accused of
crimes are guaranteed ``the right to present evidence necessary to
their defence and may, in particular, call witnesses.'' Id. Art. 72.
Defendants also ``have the right to be assisted by a qualified advocate
or counsel of their own choice, who shall be able to visit them freely
and shall enjoy the necessary facilities for preparing the defence.''
Id. Once convicted, protected persons continue to enjoy a range of
rights under the Fourth Geneva Convention, including the right to
``enjoy conditions of food and hygiene which will be sufficient to keep
them in good health, and which will be at least equal to those
obtaining in prisons in the occupied country,'' the right to ``receive
the medical attention required by their state of health,'' and ``the
right to receive any spiritual assistance which they may require.''
Art. 76, 6 U.S.T. at 3566.
---------------------------------------------------------------------------
Other provisions of Geneva IV require an occupying power to care
for the population of an occupied country. Article 50 provides that
``[t]he Occupying Power shall, with the cooperation of the national and
local authorities, facilitate the proper working of all institutions
devoted to the care and education of children.'' Under articles 55 and
56, the occupying power must, ``[t]o the fullest extent of the means
available to it,'' provide for ``the food and medical supplies of the
population,'' and ``in particular, bring in the necessary foodstuffs,
medical stores and other articles if the resources of the occupied
territory are inadequate,'' as well as ensure and maintain, ``with the
cooperation of national and local authorities, the medical and hospital
establishments and services, public health and hygiene in the occupied
territory, with particular reference to the adoption and application of
the prophylactic and preventive measures necessary to combat the spread
of contagious diseases and epidemics.''
Given the Iraqi government's abysmal record in the area of human
rights, the United States cannot fulfill its obligations under Geneva
IV without replacing the institutions of the Hussein regime. The regime
maintained its hold on power only by brutally repressing the Iraqi
people. It systematically murdered those perceived to be a threat to
the regime. Hussein's security forces routinely tortured Iraqis, with
beatings, rape, the breaking of limbs, and the denial of food, water,
and medical treatment being commonplace. Needless to say, the regime
did not tolerate political dissent, other political parties, or freedom
of religion. It also displayed an utter disregard for the welfare of
Iraqi women and children. Given the barbaric nature of the Hussein
regime, the United States must eliminate the institutions of the
Hussein government to carry out all of the duties placed upon it by
Geneva IV and to protect the basic human rights given to the Iraqi
people. Clearly, this will require the United States to establish a new
Iraqi constitution and representative government institutions.
Although the drafters of Geneva IV formally recognized the
expansive authority of an occupying nation to change the laws of an
occupied nation, they did establish one significant substantive
limitation. Article 47 forbids the introduction of any changes to the
status quo that would deprive the population of Geneva IV rights.
Article 47 states:
Protected persons who are in occupied territory shall not be
deprived, in any case or in any manner whatsoever, of the
benefits of the present Convention by any change introduced, as
the result of the occupation of a territory, into the
institutions or government of the said territory, nor by any
agreement concluded between the authorities of the occupied
territories and the Occupying Power, nor by any annexation by
the latter of the whole or part of the occupied territory.\28\
---------------------------------------------------------------------------
\28\ 6 U.S.T. at 3548.
Therefore, the United States cannot alter the laws, including the
government institutions of Iraq, in a manner that is inconsistent with
the basic rights recognized by Geneva IV.
Some may argue that article 64 limits the occupying nation's
authority to those changes that would last only during the occupation.
While an occupying nation would possess the power to enact temporary
measures necessary to fulfill its obligations under Geneva W, maintain
order and security, and ensure its national security along with the
security of its armed forces, article 64 and customary international
law would not grant an occupying power the authority to make permanent
changes in governmental institutions or constitutional law. To be sure,
there will be circumstances in which an occupying power will need to
suspend or modify the laws of an occupied nation only on a temporary
basis. For example, in the midst of civil disorder, an occupant may
resort to interim emergency measures, such as a curfew. In other
situations, however, temporary measures will be plainly inadequate for
an occupant to accomplish the legitimate purposes of occupation. In
order for the United States to fulfill its obligations, maintain an
orderly government, and protect its national security as well as the
security of its armed forces while occupying Iraq, it almost certainly
will be necessary for the United States to change Iraqi law to
dismantle current Iraqi government institutions and create new ones to
take their place.
CONCLUSION
International law provides the United States with ample authority
to establish a new Iraqi constitution and democratic governmental
institutions as part of its duty to secure public safety in Iraq,
protect the basic human rights of Iraqis, and to restore international
peace and security to the region.
Senator Cornyn. Thank you very much, Professor Yoo.
Professor Agawa.
STATEMENT OF NAOYUKI AGAWA, MINISTER AND DIRECTOR OF THE JAPAN
INFORMATION AND CULTURE CENTER, EMBASSY OF JAPAN
Mr. Agawa. Chairman Cornyn, Chairman Chafee, it is a
distinct honor to testify before your subcommittee. I have
submitted my written statement for the record, but I would like
to briefly inform you of the making of the Japanese
constitution in 1946, one instance in which the Americans were
deeply involved in the making of somebody else's constitution,
in the hope that that extraordinary story may assist you in
thinking about how the United States wants to guide the
constitution and the future of Iraq.
Please note that the views that I express today before your
subcommittees are strictly my own, and do not in any way
reflect the views of the Government of Japan, for which I
currently work.
In order to grasp the time, place, and manner in which the
new Japanese constitution was written, one needs to know the
history surrounding that event in chronological order. Because
my time is limited, I would just point out that the original
draft of the 1946 constitution was prepared in English by a
group of Americans without any Japanese participation, that the
drafting was completed in a matter of a week in total secrecy
in February 1946.
Professor Yoo just mentioned the fact that there are some
legal bases for that kind of act, and I think that General
MacArthur took care of that legal basis. Nevertheless, that's
the fact.
The American occupation authority, known as GHQ, actually
wanted to wait for the Japanese side to come up with a new
constitutional draft, but for a variety of reasons decided to
prepare the initial draft themselves, and handed it to the
Japanese. The Japanese were certainly given opportunities to
comment on and revise this GHQ draft after it was handed to
them. Nevertheless, the American original has determined the
character of the 1946 constitution to a large extent.
Well, having said that, I believe that the 1946
constitution has been largely successful. First and foremost,
the 1946 constitution has functioned as the basic law of the
land for the past 57 years. Its pacifist and democratic
character, together with its emphasis on fundamental human
rights, suited the mood of the Japanese people, who were tired
of years of war and military control. Therefore, the 1946
constitution set the cornerstone for Japan's post-war
democratization.
There are several specific examples of success.
Article 1 declared the Emperor to be the symbol of the
State and of the unity of the people. It secured the Emperor's
position constitutionally, while democratizing it by depriving
him of all political powers, and by adding the new notion that
his position is derived from the will of the people, with whom
resides sovereign power. It ensured the gradual and peaceful
democratization of Japan both during and after the occupation.
Article 9 proclaimed Japan's renunciation of war and its
decision not to maintain armed forces, this helped to alleviate
the fear of the resurgence of Japan's adventurous militarism.
Chapter III lists a variety of human rights, fundamental
human rights. Many of these human rights provisions have
functioned as a goal of the nation.
Chapters IV and V set forth provisions of the parliamentary
system without substantial changes made to the 1890
constitution. This assured the continuity of government.
Chapter VI sets forth the provisions for the judiciary,
that retained the basic structure of the pre-war judicial
system, and that the Japanese judiciary continued to be base
largely on the civil law tradition.
Article 96, last, sets forth a procedure for the revision
of the 1946 constitution, and thus has given the Japanese
people the option and freedom to change it in the future,
although we have never changed the constitution so far.
Several aspects of the 1946 constitution have been less
successful, however. First, some Japanese, because the initial
draft was made by Americans, continue to believe that the 1946
constitution was imposed by the Americans on the Japanese
people. Also, some believe that the Japanese Government's
exceedingly restrictive interpretation of Article 9 has
prevented Japan from becoming a full-fledged ally of the United
States and from fully participating in international military
action, that involvement of force necessary to maintain peace
such as the first gulf war.
Some of the fundamental human rights provisions
incorporated in Chapter III seem to reflect too many American
legal ideas of the 1930's, i.e., the bigger the government, the
better. For example, the right to maintain the minimum
standards of wholesome and cultured living, and the State's
obligation to promote social welfare, security and public
health in Article 25. These things have been difficult to
enforce.
There are some other examples, but I am running out of
time, so in conclusion, the American attempts to democratize
Japan after World War II has been remarkably successful. The
1946 constitution was a major factor in that attempt. One must
remember however, that the Japanese had experienced a healthy
democracy in the 1920's, and that the post-war democracy was
based on and grew from that experience.
As noted above, however, not every American-inspired
measure worked successfully in post-war Japan, but no
constitution is perfect, and it is now up to the Japanese
people to fix it if and when necessary in accordance, again,
with the freely expressed will of the people.
Thank you very much.
[The prepared statement of Mr. Agawa follows:]
Prepared Statement of Naoyuki Agawa
Introduction
Chairman Cornyn, and Chairman Chafee, and members of the
subcommittees. It is a distinct honor to testify before your
subcommittees on the making of the Japanese Constitution in 1946.
On August 15, 1945, Japan announced the acceptance of the Potsdam
Declaration. That ended three and a half years of war between the
United States and Japan. General MacArthur stepped onto Japanese soil
15 days later. Thus the occupation of Japan started and lasted
approximately seven years. During that time, the United States together
with other members of the Allied Powers undertook many measures to do
away with the country's military control and revive Japan's democracy.
Among them was the making of the new Japanese Constitution.
Almost 60 years later, the United States and its coalition partners
are again finding themselves in charge of the occupation and
democratization of Iraq. Among the tasks to be undertaken there in due
course, I understand, is the making of the new Iraqi Constitution.
I would like to inform you of the making of the new Japanese
Constitution in 1946 in the hope that that extraordinary story may
assist you in thinking about how the United States wants to guide the
constitutional future of Iraq. More specifically, I would like to give
you examples of the American ideas incorporated into the Japanese
Constitution, how they were incorporated, and which of these proved to
be successful and which were not.
Please note that the views I express today before your
subcommittees are strictly my own and do not in any way reflect the
views of the government of Japan. I am testifying before your
subcommittees strictly in the capacity of a constitutional scholar who
has taught this subject at Keio University in Japan, the University of
Virginia Law School and Georgetown University Law Center; therefore, I
do not appear today sharing my views as a minister of the Embassy of
Japan.
The History of the Making of the Japanese Constitution
In order to grasp the time, place and manner in which the new
Japanese Constitution of 1946 (the ``1946 Constitution'') was written,
it is perhaps useful briefly to narrate the history surrounding that
event in chronological order.
Many believe that the writing of the 1946 Constitution started with
the acceptance of the Potsdam Declaration, which presented the
conditions for Japan's ``unconditional surrender'' to the Allied
Powers. The Declaration, among other things, stated that ``until there
is convincing proof that Japan's war-making power is destroyed, [Japan]
shall be occupied . . .'' Further, it stated that ``the Japanese
government shall remove all obstacles to the revival and
strengthen[ing] of democratic tendencies among the Japanese people''
and that ``freedom of speech, of religion, and of thought, as well as
respect for the fundamental human rights shall be established.''
Lastly, the declaration stated that ``the occupying forces of the
Allies shall be withdrawn from Japan as soon as these objectives have
been accomplished and there has been established in accordance with the
freely expressed will of the Japanese people a peacefully inclined and
responsible government.'' Thus the Potsdam Declaration not only set
Japan's surrender terms, but it also set the condition for the
termination of the occupation, i.e., the demilitarization and
democratization of Japan.
The General Headquarters of the Allied Powers (the ``GHQ''), the
occupation authority headed by General MacArthur, the Supreme Commander
of the Allied Powers, did not initially embark on the making of a new
Japanese Constitution. It was initially busy physically disarming the
Japanese military establishment, arresting war criminals, freeing
political prisoners and taking care of other such pressing matters. In
fact, it was only in October 1945 that General MacArthur first
suggested to then Prime Minister Kijuro Shidehara that the Japanese
government consider necessary constitutional changes. Please note that
the GHQ ruled Japan indirectly through the existing Japanese cabinet
and the bureaucracy.
The Shidehara cabinet thereupon formed a committee to study the
constitutional matters. This committee became known as the Matsumoto
Committee, because it was headed by Dr. Matsumoto, a member of the
cabinet who was also a noted legal scholar. The Matsumoto Committee was
of the impression that (1) the GHQ was not in a particular hurry to
make the constitutional changes and (2) the committee could deliberate
the necessary constitutional changes free from the influence of the
GHQ. Thus, The Matsumoto Committee began to study possible revisions to
the existing Constitution promulgated in 1890 (the ``1890
Constitution'') in order to make it more democratic and accountable to
the people without determining any concrete timetable for the actual
revisions to take place.
This situation suddenly changed during the first week of February
1946. The Matsumoto Committee's drafts of the revised 1890 Constitution
were leaked to and reported by a Japanese newspaper. General
MacArthur's staff read these newspaper articles and found these
proposed revisions to be inadequate for Japan's democratization. The
principle of popular sovereignty, for instance, was not clearly set
forth. Upon learning of these facts from his staff, General MacArthur
asked the Government Section of the GHQ itself to start drafting a new
Japanese Constitution. On February 3, the General gave the Government
Section lawyers and others a one page note outlining a few of the most
important principles to be included in the draft Constitution. This
famous ``MacArthur Note'' included, among other things, a provision to
retain the Emperor and another provision for the abolishment of war and
armed forces, even for self-defense purposes. The Government Section
secretly started its draft on February 4 and finished the task on
February 10. This draft was approved by General MacArthur and
officially became the GHQ Draft on February 12. The GHQ Draft was in
English.
The GHQ Draft was shown to Dr. Matsumoto and a few other
representatives of the Japanese government on February 13. Assuming
that the American side intended to comment on the Committee's own draft
Constitution that had been submitted to the GHQ a few days earlier, the
Japanese delegation was stunned at the liberal tone of the GHQ Draft
and declared that they were not ready to accept it. General Whitney,
General MacArthur's deputy, stated in return that the acceptance of the
GHQ Draft might be the only way for the Emperor to survive and for the
current Japanese government to remain in control.
After several rounds of exchanges between the GHQ and the Japanese
government, including a meeting between Prime Minister Shidehara and
General MacArthur, the Japanese cabinet reluctantly agreed to prepare a
new draft in Japanese, based on the GHQ Draft. This new round of
drafting started on February 27 and was completed on March 2. The
Japanese government lawyers submitted this new draft to the GHQ on
March 4. The GHQ found this new draft was still inadequate. An all-
night session to conform it to the GHQ Draft pursued, and this task was
completed on March 5 with MacArthur's approval. On March 6, the
Japanese cabinet approved this new draft and publicly released it as
the Government Draft.
The Government Draft was submitted to the Diet and the Privy
Council, the Emperor's advisory body, in accordance with the revision
procedures of the 1890 Constitution as set forth therein. After lively
debates and a fair number of revisions, the final Government Draft was
adopted and proclaimed as the 1946 Constitution on November 3, 1946,
effective May 3, 1947.
On September 8, 1951, Japan concluded a peace treaty in San
Francisco with the United States and other Allied Powers. The peace
treaty became effective on April 28, 1952 after its ratification by a
majority of the signatories to the treaty. Thus Japan's occupation
ended and the country regained its full independence.
Has the 1946 Constitution Been Successful?
I believe that the 1946 Constitution has been largely successful.
This assessment is based on several factors.
First and foremost, despite initial opposition to some of the new
ideas incorporated in the GHQ Draft and the Government Draft, the 1946
Constitution has functioned as the basic law of the land for the past
57 years. In fact, when the Government Draft was made public on March
6, 1946, the majority of the Japanese people favorably received it. Its
pacifist and democratic character together with its emphasis on
fundamental human rights suited the mood of the Japanese people who
were tired of years of war and military control. It is fair to say,
therefore, that the 1946 Constitution set the cornerstone for Japan's
post-war democratization.
More specifically, Article I of the 1946 Constitution incorporated
the revolutionary notion of the Emperor as the ``symbol of the State
and of the unity of the people.'' This provision has worked remarkably
well. On the one hand, it secured the Emperor's position
constitutionally, thus allowing the ancient tradition to survive the
post-war turmoil. On the other hand, it democratized the Emperor by
depriving him of all political powers and by adding the new notion that
his position is derived from the ``will of the people with whom resides
sovereign power.'' Under the 1890 Constitution, in theory the Emperor
retained all the rights of sovereign and reigned over and governed the
Empire of Japan. Although the conservatives in Japan strongly resisted
the idea of turning the Emperor into a mere figurehead, the Emperor as
the spiritual symbol of the nation and not a political power actually
conformed well to Japan's age-old political tradition and thus has
functioned well. In my view, maintaining the Emperor tradition in Japan
is MacArthur's greatest achievement in connection with the 1946
Constitution. It assured the peaceful and gradual democratization of
Japan both during and after the occupation.
Article 9 of the 1946 Constitution incorporated another
revolutionary notion of the renunciation of war. This provision also
served its purposes particularly well for Japan's first 30 to 40
postwar years. In order to smoothly return to the international
community, the Japan that was perceived in the 1930's as an aggressor
in the Asia-Pacific region had to project the image of a born-again,
peace-loving country. Article 9 proclaimed Japan's renunciation of war
and its decision not to maintain armed forces. This helped to alleviate
the fear of the resurgence of Japan's adventurous militarism, a feeling
shared at the time by many countries and peoples surrounding Japan. It
also made the Japanese sincerely aspire to become a truly peace-loving
nation. The result is a Japan today that promotes peace worldwide
largely through non-military means.
Also, importantly, Chapter III of the 1946 Constitution lists a
variety of fundamental human rights. As a matter of concrete policy,
the Japanese found some of them difficult to implement immediately
because they were so idealistic and because the Japanese government had
little resources to realize them. However, many of these ``rights''
provisions have functioned as the goals of the nation. The Japanese
aspired to achieve these goals and to rebuild a country that is based
upon and respects these fundamental human rights. For instance, Article
24 of the 1946 Constitution promulgated the equality of the sexes.
Japanese women had not been treated as equals to men for historical and
cultural reasons throughout most of Japanese history, and were inspired
by this provision. Since then, they have significantly improved their
social standing in Japan. It is perhaps fair to say that post-war Japan
has respected people's ``life, liberty and pursuit of happiness'' and
``equal[ity] under the law'' to the greatest extent possible as
provided in Articles 13 and 14 of the 1946 Constitution.
In addition, the 1946 Constitution maintained the parliamentary
(the Diet) system without substantial changes made to the one under the
1890 Constitution. This assured the continuity of government. There
were some important changes in this area, too. For instance, the 1946
Constitution specifically made the Cabinet directly responsible to the
Diet, thus reviving and strengthening the 1920's democratic tradition
that thrived in Japan before the military took control of the country.
The 1890 Constitution had no express provision for the Cabinet's
accountability to the Diet although by the 1920's it had become
customary for the Cabinet to resign at the displeasure of the Diet.
Also, the Prime Minister was given the authority to appoint and remove
members of his cabinet. Nevertheless, the parliamentary system as a
whole was not materially changed from the pre-war model. The drafters
of the GHQ draft could have tried to institute a more American style of
government by establishing clearer separations of power and creating a
more independent executive branch of the government. However, these
Americans knew and respected the Japanese' pre-war democratic
experiences and traditions. Therefore, these drafters left the existing
system intact. That worked well for Japan's needs.
Similarly, while the 1946 Constitution made the Japanese judiciary
more independent and encouraged it to be more ``rule of law'' oriented
in order to protect the fundamental human rights of the Japanese
people, it respected and retained the basic structure of the pre-war
judiciary system. Thus, the Japanese judiciary continued to be based
largely upon the civil law tradition that was originally introduced
from Germany and France. In fact, the person who worked on the reform
of the Japanese judiciary system within the GHQ was Judge Opler, a
naturalized American citizen who was a former judge in pre-Nazi
Germany. He advised the GHQ not to introduce too much of the American
judicial system, such as the election of judges. This suggestion has
also worked well for Japan.
Lastly, the American drafters provided for the procedures for the
revisions of the 1946 Constitution in Article 96. Some of the American
drafters maintained that the provisions for fundamental human rights in
Chapter III should be made non-amendable lest the Japanese people be
deprived of these rights after the Americans left Japan. However,
others argued and prevailed that the American drafters should not bind
the future generations of the Japanese to what the Americans thought to
be the most important constitutional principles. Thus, the Japanese
have retained the freedom to amend the 1946 Constitution partly or in
its entirety in accordance with the procedures set forth in Article 96.
Interestingly, the 1946 Constitution has never been amended.
Constitutional scholars have debated why the Japanese are so reluctant
to amend the Constitution. Nevertheless, the insertion of the amendment
procedures has given the Japanese people the option and freedom to
change it in the future. It therefore weakens the argument that this
Constitution was imposed on the Japanese by the Americans.
Certain Aspects of the 1946 Constitution That Are Less Successful
Several aspects of the 1946 Constitution have been less successful
or totally unsuccessful.
First, some Japanese continue to believe that the 1946 Constitution
was ``imposed'' by the Americans on the Japanese people and that it
therefore lacks legitimacy. They still find offensive that the first
draft of the 1946 Constitution was prepared in English by a group of
Americans, and furthermore that it was done in an extremely short
period of time and in complete secrecy. Those Japanese do not recall
themselves ``proclaim[ing] that sovereign power resides with the
people'' and ``firmly establish[ing] this Constitution'' as the
Preamble to the 1946 Constitution states. Some believe that the 1946
Constitution is badly written as a matter of Japanese prose because the
original draft was in English. In fact, a top secret directive from
Washington to General MacArthur issued on January 7, 1946 entitled
SWNCC 228 (the State-War Navy Coordinating Subcommittee for the Far
East directive number 228) specifically stated that ``[o]nly as a last
resort should the Supreme Commander order the Japanese Government to
effect the constitutional changes], as the knowledge that they had been
imposed by the Allies would materially reduce the possibility of their
acceptance and support by the Japanese people for the future.''
However, some Japanese had strong counter-arguments to this position.
For instance, some scholars argue that because the Diet debated and
amended the Government Draft in a relatively free fashion in the latter
half of 1946, the Japanese people did have an opportunity to express
their will in the making of the 1946 Constitution through their
representatives. Scholars also argue that the Japanese have so far
chosen not to amend the 1946 Constitution, indicating that the nation
as a whole has approved of it and liked it. Also, the GHQ Draft was
prepared in haste for several good reasons, for example, among other
things, General MacArthur's wish to avoid Soviet Russia's intervention
in his occupation policy, in order to prevent communist-led insurgency
in Japan and to protect the Emperor from indictment as a war criminal.
Nevertheless, because the first draft of the 1946 Constitution was
prepared by a group of Americans without participation of any Japanese,
I believe that this factor has harmed the legitimacy of the 1946
Constitution to a certain degree.
In addition, certain substantive ideas incorporated into the 1946
Constitution by the American drafters tended not to function well or
became outdated after a while. The foremost of this example is in
Article 9. General MacArthur was perhaps very keen on demilitarizing
Japan and perhaps sincerely believed in a harmonious post-war
international order. As a result, he was adamant that the Japanese
people forever renounce war and do away with all armed forces. Given
the impracticality of rebuilding its war potential at the time, the
Japanese obliged. The American policy makers, including General
MacArthur, quickly regretted inserting this provision in the 1946
Constitution and tried to persuade the Japanese to rearm when the Cold
War heated up and the Korean War began. However, the Japanese refused
to rearm, quickly citing Article 9 and pointing out that it was the
United States that originally insisted on the insertion of this
provision. The Japanese people have liked Article 9 and post-war Japan
has become a pacifist country. This is all good and well. However, some
believe that the Japanese government's exceedingly restrictive
interpretation of Article 9 has prevented Japan from becoming a full-
fledged ally of the United States and from fully participating in
international military actions involving use of force necessary to
maintain peace, such as the first Gulf War. In addition, the lack of
any provision in the 1946 Constitution setting forth the war and
emergency power of the government has hindered Japan from preparing for
any war or other emergencies, such as terrorist attacks. Here lies a
lesson, perhaps, that a radical, substantive constitutional provision
may, in the long run, not work.
Similarly, some of the fundamental human rights provisions
incorporated in Chapter 111 of the 1946 Constitution seem to reflect
too many of American liberal ideas of the 193O's. It is a known fact
that the three American drafters of Chapter III were liberally-oriented
non-lawyers and that they were eager to add everything that the United
States Constitution did not have. (For that matter, only one member of
the American drafting team was Republican.) The ideas included by the
drafters are: the freedom to choose residence and occupation, and to
divest nationality (Article 22); academic freedom (Article 23);
marriage based only on the mutual consent of both sexes and the
essential equality of the sexes pertaining to marriage and family
(Article 24); the right to maintain the minimum standards of wholesome
and cultured living and the State's obligation to promote social
welfare, security and public health (Article 25); the right to receive
an equal education (Article 26); the right and obligation to work
(Article 27); and the right of workers to collectively organize,
bargain, and act (Article 28). While these provisions are all for good
causes, some of them proved to be difficult to implement as a matter of
concrete policy and have functioned more as desirable standards. Also,
some have criticized these provisions as too strongly oriented towards
rights, freedom and individualism (individual liberty). The dissenters
believe that the American drafters failed to incorporate some of the
more traditional Japanese values such as family, community, seniority,
and the nation, therefore allowing the post-war Japanese generation to
become more selfish and less public-minded.
Chapter VI of the 1946 Constitution, concerning the judiciary, is
another area in which some of the American ideas did not work
particularly well. While the 1946 Constitution strengthened the
Japanese judiciary and made it more independent, the American drafters
were concerned about the possibility of judicial tyranny because of
their recent experiences with the ``old horsemen'' of the United States
Supreme Court during the New Deal Era. Accordingly, in the 1946
Constitution the drafters added measures such as term limits for the
judges (Article 80); the mandatory retirement ages for the judges of
the Supreme Court as well as of lower courts (Articles 79 and 80); and
even the performance review and recall of the Supreme Court judges by
the people through ballots every ten years (Article 80). Also, the
American drafters omitted the word ``property'' after ``life and
liberty'' from Article 31 of the 1946 Constitution, setting forth the
due process principle lest the property rights be abused by the Supreme
Court as was the case in the United States in the late 19th and early
20th centuries. These provisions proved to be more or less irrelevant.
For historical and other reasons, the Japanese judiciary never became
as powerful as the American judiciary. No Japanese Supreme Court judge
has ever been removed by the ballot because the average age of their
appointment to the Supreme Court is 64, their mandatory retirement age
is 70, and therefore no one remains on the bench at the next round of
review ten years later. For that matter, the Japanese Supreme Court has
exercised its judicial review power very sparingly. The American
drafters incorporated the doctrine of Marbury v. Madison in Article 81
of the 1946 Constitution in the hope that the Supreme Court would
function as a check against the Diet and the Cabinet nullifying the
laws, orders and regulations it finds to be unconstitutional. The
Japanese Supreme Court has, however, held the statutes unconstitutional
only about five times in the past 55 years. It has a tendency to defer
to the legislative will of the Diet, which is defined as the ``highest
organ of state power'' in Article 41. This is not necessarily a bad
result. Some scholars in the United States may envy the judicial
restraint exhibited by the Japanese courts. It is simply that the
Japanese judiciary did not behave as the American drafters hoped or
feared. All in all, provisions for the judiciary in the 1946
Constitution have had mixed results. The provisions have created a more
independent judiciary, but did not create as strong and influential a
system as the United States judiciary.
Conclusion
In summary, the American attempt to democratize Japan after WWII
has been remarkably successful. The 1946 Constitution was a major
factor in that attempt. More than anything else, it set the benchmark
against which the progress of the Japanese democratization was
measured. Today, Japan is a thriving free market democracy where basic
human rights are protected and the political system accountable to the
people is functioning. The Potsdam Declaration's desire to see the
establishment of a ``peacefully inclined and responsible government''
in accordance with the ``freely expressed will of the Japanese people''
has been fulfilled. The Japanese people owe a lot of this success to
the American ideas, including those of the American drafters of the
1946 Constitution. One must also remember, however, that the Japanese
had experienced a healthy democracy in the 1920's and that the post-war
democracy was based on and grew from that experience.
As noted above, however, not every American-inspired measure worked
successfully in post-war Japan. Certain provisions of the 1946
Constitution did not work as expected or became obsolete over time.
Many of them were provisions that reflected American constitutional
experiences that did not take root in the Japanese soil. Others were
the currently popular substantive ideas that were bound to become
obsolete over time. It was also unfortunate that the initial drafting
of the 1946 Constitution did not allow for any Japanese participation
and had to be completed in such a short time.
Nevertheless, the American-drafted 1946 Constitution sowed seeds of
democracy in Japan, and the Japanese people have lived with (and some
have put up with) this Constitution for more than half a century. No
constitution is perfect, and it is now up to the Japanese people to fix
it if and when necessary in accordance again with the freely expressed
will of the people.
Chairman Cornyn, Chairman Chafee, and subcommittee members, thank
you for your time. I appreciate the honor and privilege of being
allowed to express my views today.
Senator Cornyn. Thank you very much, Professor; and now for
a view of the German example. Dr. Kommers, thank you for
joining us today. Please give us your opening statement.
STATEMENT OF DONALD KOMMERS, JOSEPH AND ROBBIE PROFESSOR OF
POLITICAL SCIENCE AND PROFESSOR OF LAW, NOTRE DAME SCHOOL OF
LAW
Dr. Kommers. Senator Cornyn, I also want to thank you for
the subcommittee's invitation, but with your indulgence I may
have to leave a little earlier since I have a plane to catch
back to South Bend, Indiana at 7 this evening, and I know the
rush hour gets pretty terrific around 5 in the afternoon.
My statement is very short, really less than 4 minutes. As
I understand my task, it's not to lay out a blueprint for
rebuilding constitutional government in Iraq, but rather to
indicate what lessons we Americans might draw from the allied
effort to restart constitutionalism in Germany after World War
II.
My written statement lists many of the differences between
occupied Germany in 1945 and occupied Iraq in 2003. The German
experience may nevertheless be relevant in several respects.
The German experience confirms, I think, much of what has
already been said here today on this panel and on the previous
panel and what Senator Feingold had to say earlier in his
remarks.
In what respects? First, the German experience shows that
reestablishing constitutional government can only begin when
the occupying power is fully in control, and only when law and
order is fully restored. Second, rebuilding democracy must be
the first responsibility of the occupied country.
Third, a spirit of trust and cooperation must define the
relationship between the occupiers and the occupied. In
addition, the educated classes and a critical mass of
democratically inclined citizens must be willing and able to
cooperate with the occupation.
Finally, and perhaps the most important lesson of all,
given the German experience, is that the restoration of
democratic constitutionalism must be a bottom-up, rather than a
top-down affair, and it must reflect indigenous values and
traditions.
Consider how the process worked in Germany. Already, in
late 1945, the military Governors authorized Germans to rebuild
their local and state governments, in some cases in
artificially created territorial units. They initially selected
the prime ministers of those territorial units, the top German
officials charged with this task of rebuilding, but thereafter,
these officials acted on their own, save for certain functions
related to internal security and foreign trade. These local
units evolved, interestingly enough, into dynamic working
governmental systems jealous of their power and autonomy, and
pretty much based on the German tradition of statecraft.
By mid-1946, elected State Parliaments and Prime Ministers
were functioning under written constitutions, at least in the
four states within the American zone. Local representatives of
political parties licensed by American military authorities
drafted these constitutions, and they did so on their own. They
didn't have all that much American or any other allied help at
the time. Although requiring the approval of the allies, these
constitutions, as suggested, were home-made products rooted in
Germany's democratic tradition.
With this foundation in place, then, at both local and
regional levels, the allies turned their attention to West
Germany as a whole, almost 3 years Germany's military defeat.
Of course, the establishment of a national government would
probably have taken much longer had it not been for the
American determination to bring Germany into the Atlantic
alliance, given the cold war in the background.
At any rate, in mid-1948, 3 years after Germany's defeat,
the military Governors commissioned the Prime Ministers of the
11 reorganized states to convene a national assembly to write a
new constitution for Germany. They specified that the new
constitution must establish a Federal form of government,
protect the rights of the respective states, and provide for
the protection of individual rights and freedoms, and within
the framework of these broad principles, Germans were free--
subject to allied approval--to draft a constitution of their
own choosing.
The Prime Ministers moved at once. They appointed a
committee of experts, constitutional experts and international
experts, all Germans, to prepare a draft constitution for the
consideration of a national assembly. Twenty-five persons, all
Germans, accomplished this task in 14 days. No Americans were
present during the writing of this draft constitution.
The initiative then shifted to the state legislatures. They
elected a constitutional convention composed of 65 delegates.
The Allies did not interfere in these elections. All 65
delegates were members of political parties represented in the
state legislatures. These parties, each of which was licensed
by the occupation authorities, represented the main segments of
German public opinion opposed to the Nazi state. Forty-four of
these political party delegates were members of their
respective state legislatures.
Over the next 10 months the assembly, known as the
Parliamentary Council, produced the Basic Law which, in the
course of time, would become one of the world's great
constitutions. The military Governors monitored the making of
the Basic Law, but they did not participate in its proceedings.
On some issues, such as the status of Berlin and the
preservation of internal security, allied demands did prevail,
but these decisions were driven by the experience of the cold
war, a condition which has no relevance to Iraq.
Conflicts arose between the convention and the military
Governors, particularly over the taxing power of the national
government, but this and other conflicts were resolved by
compromise, and generally to the satisfaction of the Germans.
In fact, the military governors made a number of concessions.
For example, they originally insisted on the popular
ratification of the constitution, but gave way to the German
view that the state legislatures should perform this function.
They, the military governors, also agreed to more
centralization of Federal authority than they were originally
prepared to accept.
I conclude. Germany's Basic Law became one of the great
success stories of the occupation. The basis of the success
seems clear. The German people were allowed to create
institutions of their own choosing, and founded on their own
political, social, and even religious traditions. I want to
suggest at the end that the Germans would not have accepted the
basic law had they believed it was imposed from above or from
outside, and I believe that the Iraqis must believe that any
new government or constitution is also one of their own making.
I would suggest, finally, that in reconstructing or
recreating a constitutional government, the Iraqis might find
some guidance in Germany's Constitution, better known as the
Basic Law. Interestingly, Germany's Basic Law has come to
replace the United States Constitution as the main model of
constitutional governance around the world. It's just amazing
to note how many countries out there, at least 50 or 60, have
patterned their constitutions on the German Basic Law.
Let me say why I think this is the case. First, Germany's
Basic Law speaks in the language of duties as well as rights.
Second, it promotes solidarity as well as individualism. Third,
it includes a system of political representation, combing
proportional representation with a single-member district
system, which most observers see as fairer and more effective
than the first-past-the-post system in the United States.
Finally, and importantly, it recognizes the public role of
religion while ensuring its free exercise. Each of these
features seems well suited to the future of constitutional
government in Iraq.
[The prepared statement of Dr. Kommers follows:]
Prepared Statement of Donald P. Kommers
As I understand my task, it is not to lay out a blueprint for
rebuilding constitutional government in Iraq, but rather to indicate
what lessons Americans might draw from the Allied effort to restart
constitutionalism in Germany after World War II. This committee should
bear in mind, however, that Occupied Germany of 1945 is not the
occupied Iraq of 2003. The two situations are entirely different,
although the German experience may provide guidelines for political
reconstruction in Iraq.
Allow me to list the main differences in the two situations: First,
we invaded Iraq to remove its rulers and thereby to liberate its
people; we invaded Germany to smash an enemy nation and to overpower
its people. Second, Germany in 1945 was disgraced, disspirited, and
dismembered; Iraq in 2003 survives with most of its infra-structure
intact, its territory unified, and its people aroused. Third, the
Germans mounted no armed opposition to the Occupation; Hussein
loyalists, by contrast, are fighting back and killing Americans.
Fourth, Iraq is pockmarked by tribalism, ethnic division, and religious
radicalism, blotches on the polity conspicuous for their absence in
occupied Germany. Finally, Germany's unconditional surrender validated
the Allied Occupation, even in the eyes of most Germans, a legal
reality far from clear in the case of Iraq's occupation.
Nevertheless, the German experience may be relevant to Iraq in
these respects: First, reestablishing constitutional government can
only begin when the occupying power is fully in control and only when
law and order have been fully restored. Second, rebuilding democracy
must be the first responsibility of the Iraquis. Third, a spirit of
trust and cooperation must define the relationship between the
occupiers and the occupied. Finally, the educated classes and a
critical mass of democratically-inclined citizens must be willing and
able to cooperate with the Occupation.
Perhaps the most important lesson of all is that the restoration of
democratic constitutionalism must be a bottom-up rather than a top-down
affair, and it must reflect indigenous values and traditions. (The top-
down model worked in Japan because of that country's compliant
political culture and the desire of its people to imitate American
``know-how.'') Top-down would not have worked in Germany, and is
unlikely to work in Iraq.
Consider how the process worked in Germany. Already in late 1945,
the Military Governors authorized Germans to rebuild their local and
state governments. They selected the top German officials charged with
this task, but thereafter these officials acted on their own save for
certain functions related to internal security and trade relations
beyond their respective zones of occupation. By mid-1946, elected
parliaments and prime ministers were functioning under written
constitutions, at least in the four states of the American Zone. Local
representatives of political parties licensed by American military
authorities drafted these constitutions. Although requiring the
approval of the Allies, the constitutions were home-made products
rooted in Germany's democratic tradition, and they were largely
duplicates of the state constitutions in force during the Weimar
Republic. Successful parliamentary democracies emerged from this
bottom-up process of reconstruction.
With this foundation in place at both local and regional levels,
the Allies turned their attention to the national level. (The
reestablishment of the national government would probably have taken
much longer had it not been for the American determination to
incorporate West Germany into the Anti-Soviet Atlantic Alliance.) In
mid-1948--three years after Germany's defeat--the Military Governors
commissioned the prime ministers of the eleven reorganized states to
convene a national assembly to write a new constitution for Germany.
They specified that the new constitution must establish a federal form
of government, protect the rights of the respective states, and provide
for the protection of individual rights and freedoms. Within the
framework of these broad principles, Germans were free, subject to
Allied approval, to draft a constitution of their own making.
The prime ministers moved at once. They appointed a committee of
experts to prepare a draft constitution for the assembly's
consideration. Twenty-five persons--all Germans--accomplished this task
in 14 days. No Americans were present during this period. The
initiative then shifted to the state legislatures. They elected the
assembly's 65 delegates. There was no Allied interference in these
elections. All 65 delegates were members of political parties
represented in the state legislatures. Fifty-four of the delegates--
again all Germans--were members of these legislatures. Over the next
ten months, the assembly--known as the Parliamentary Council--produced
the Basic Law, which in time would become one of the world great
constitutions. The Military Governors monitored the making of the Basic
Law, but they did not participate in its proceedings.
Conflicts arose between the convention and the Military Governors,
particularly over the taxing power of the national government. But this
and other conflicts were resolved by compromise and generally to the
satisfaction of the Germans. In fact, the Military Governors made a
number of concessions. For example, they originally insisted on the
popular ratification of the Constitution, but gave way to the German
view that the state legislatures should perform this function. They--
the Military Governors--also agreed to more centralization of federal
authority than they were originally prepared to accept.
Germany's Basic Law became one of the great success stories of the
Allied Occupation. The basis of the success seems clear: The German
people were allowed to create institutions of their own choosing and
founded on their own political, social, and even religious traditions.
Yet the Basic Law marked out a new beginning by its codification and
promotion of a constitutional morality that rejected the political
pathologies of the past. The Occupation experience shows that in the
right set of circumstances, which may or may not exist in Iraq,
military authorities can transform a once-outlaw nation into a
promising constitutional democracy.
Senator Cornyn. Thank you very much, Dr. Kommers.
Professor Howard, I welcome you to this panel and I
mentioned when, I believe, you were out of the room that we
first met, and I have to say that you are at least in part a
reason why I am interested in this subject, during my time at
the University of Virginia and my participation in the master's
of law program at the University of Virginia Law School and the
thesis that I ended up writing on the creation of the Texas
constitution of 1845, but enough of that.
We'd be pleased to hear your opening statement.
STATEMENT OF A.E. DICK HOWARD, WHITE BURKETT MILLER PROFESSOR
OF LAW AND PUBLIC AFFAIRS, UNIVERSITY OF VIRGINIA LAW SCHOOL
Mr. Howard. Mr. Chairman, we will agree that the Texas
constitution of 1845 was one of the great constitutional
documents of all time.
May the record show that.
Mr. Chairman, thank you for inviting me. I suspect that my
chief credentials for being here are that I teach
constitutional law at the University of Virginia. Our founder
was Thomas Jefferson, our first rector was James Madison. As
constitutional credentials go, those aren't bad, I suppose.
I cut my teeth, in constitutional terms, in working on the
present Virginia constitution. In more recent years, I've had
the privilege of sitting at the elbows of drafters of
constitutions in a number of other countries, especially post-
Communist countries in Central and Eastern Europe. This has
sparked in me an interest in comparative constitutionalism and,
in particular, the question of how constitutional ideas travel,
how they get from one place to another, what takes, what
doesn't take, whether there are universals which drafters ought
to be concerned with, or ultimately whether constitutions are a
product of culture, tradition, history, and circumstance.
A subset of that question for an American audience and, I
think, for all of us is whether there is some instructive value
in the American experience, though it may now be nudged aside,
my colleague insists, by the German experience.
I have submitted a written paper, so I will only summarize
the points I made there. I undertake in that paper a case study
of post-Communist, post-1989 Central and Eastern Europe. There
one finds an interesting eclecticism where the drafters in
those countries drew where they could on their own experience,
which was often very mixed and checkered and broken, then drew
to some extent on Western Europe's experience, to no one's
surprise, since they felt themselves rejoining the family of
Europe.
They didn't, at least in obvious terms, draw on the
American experience. They were much closer to Western Europe.
They drew as well on international documents, very much part of
the world since World War II. These offer another source for
drafters--U.N. covenants, OSCE documents like the Helsinki and
Copenhagen documents, and others.
I won't take the time here to rehearse the history of how
American ideas have, in fact, influenced other places. Again, I
have it in my paper. There have been a number of historical
chapters--France in the revolutionary period, liberal Europe in
1848, the Philippines as our colony after 1900, the Wilsonian
period after World War I (making the world safe for democracy,
as Wilson put it), Japan and Germany after World War II (two
quite important and very instructive stories for our purposes),
and then, finally, the successive waves of democracy, the
Mediterranean in the 1970's (Spain's 1978 constitution is an
important point of reference), the South American countries in
the 1980's, Central and Eastern Europe after 1989, and, of
course, South Africa at about the same time.
It's interesting to hear people debate the relevance, if
any, for other countries of the American constitutional
experience. Some of my scholarly colleagues argue that it
really has no place in the drafting of other constitutions. For
one thing, an 18th century document doesn't look like much of a
model for people drafting constitutions in the 21st century.
Moreover, some scholars would argue that the American
experience has been so exceptional, so unlike the rest of the
world, that the conditions that gave rise to constitutionalism
here simply cannot be replicated elsewhere.
I understand those arguments. But I think they miss the
point that the value of the American experience lies not in
taking the actual document as a template and trying to copy
something out of it, but rather in plumbing it to its depths
for the underlying core values that it represents--values such
as federalism. Around the world, federalism has been put to
service in a number of ways. It doesn't have to be American-
style formal constitutional federalism, but it can be other
kinds of devolutionary arrangements. In addition to federalism,
separation of powers, checks and balances, judicial review--all
of these are principles in which the American experience has
been very important, though they don't exhaust their various
possibilities.
I think, finally, I would suggest that one would like to
test the prospects for constitutional democracy, in Iraq or in
any other place, by several observations. I would like to
define the search, not simply being for our Constitution, but
being a search for constitutional liberal democracy. By this I
mean democracy accountable to the people, liberalism, i.e., the
protection of the individual, and constitutionalism, enforcing
the Constitution.
In my paper, I've suggested several factors that might be
held up as ways of thinking about whether a constitutional
enterprise may be successful or not. These include protection
from foreign aggression, economic prosperity, a constitutional
culture, an open society, the existence of a civil society, and
a State based finally on civic and not ethnic or national
principles. I think most of those concepts are fairly well-
known.
Ultimately I agree with what I've heard at both panels this
morning, that the Iraqi people must themselves do the job. They
must understand that they are the proprietors of the new
constitution. But I think they are well-informed if they take
stock of what has happened in other countries like Japan and
Germany, what's happened here in America, what the teachings of
the modern constitutional period are.
Mr. Chairman, thank you.
[The prepared statement of Mr. Howard follows:]
Prepared Statement of A. E. Dick Howard
In recent years I have had the privilege of sitting at the elbows
of constitution-makers in countries seeking to lay the foundations of
constitutional liberal democracies in those countries. Some years
earlier, I cut my teeth in the art of constitution-making when I was
involved in the drafting of Virginia's present state constitution. I
have also consulted with other states seeking to revise their
constitutions. But no experience has been so instructive as watching
constitutions take shape in the context of other lands and cultures.
This experience in comparative constitutionalism has drawn me to
ask questions about the extent to which one country can assist in, or
make judgments about, another country's constitutional journey. How
well do constitutional ideas travel, especially across the boundaries
of different cultures or legal systems? Are there universal values by
which the relative success of a constitutional system may be measured?
Or, as some people argue, must constitutions ultimately be grounded in
a country's culture, history, traditions, and circumstances? For
Americans, there is the specific question: what relevance does the
American constitutional experience have for other countries?
THE EXPERIENCE OF CENTRAL AND EASTERN EUROPE
To sharpen these questions, consider the experience of the
countries of Central and Eastern Europe. After the collapse of
communism, each of those countries set out to write new constitutions
and to design institutions thought to promote constitutional liberal
democracy. Drafters in those countries ( Poland, Hungary, etc.) had
several sources on which they could draw in devising new constitutions.
1. In some cases they could look back to their own indigenous
sources and experience. For example, Poles recall the
traditions of constitutionalism associated with the
memorable Constitution of May 3, 1791. Hungarians have a
strong tradition of the rule of law, having its roots as
early as the Golden Bull of 1222. But such traditions are
often fragmentary and remote, Few countries in Central and
Eastern had any extended experience with either
constitutionalism, democracy, or the rule of law before
1989 (Czechoslovakia's vibrant democracy between the world
wars was a notable exception).
2. Countries in Central and Eastern Europe have been able to look--
and have looked--to the experience of Western Europe.
Western Europe is, of course, the seat of much of the core
of modern constitutional democracy (such as the teachings
of the Enlightenment), but also the sources of many of our
basic constitutional principles (such as the separation of
powers). Moreover, constitutionalism, democracy, and the
rule of law have taken hold in manifest ways in Western
Europe since World War II. Germany, rising from the ashes
of World War II, has become a admirable example of
constitutional democracy. Spain, moving beyond the legacy
of Franco, has become in every respect a modern European
state. With these and other examples to study, drafters in
Central and Eastern Europe have fashioned constitutional
systems which in many obvious ways are modeled upon Western
Europe. For example, Germany's Constitutional Court has
proved the inspiration for the creation of constitutional
courts throughout Central and Eastern Europe.
3. International norms and documents are an important source for
constitution-makers in post-communist Europe, just as they
are in other parts of the world. Especially is this true in
giving shape and protection to human rights. Thus drafters
look to such international documents as United Nations
conventions and to regional arrangements such as the
European Convention on Human Rights and OSCE's Helsinki and
Copenhagen documents. Also, it is common for post-communist
constitutions to state that international law and
agreements shall be domestic law within a country.
4. One would suppose that constitution-makers in Central and Eastern
Europe would study the experience of their neighbors in the
region. Especially might this seem helpful when these
countries have shared many of the problems of the post-
communist world, such as the destruction of civil society
during the communist era, the stultifying effects of
command economies, and the cynicism about public life which
was spawned by those years. It is my impression, however,
that drafters in the region have not cared much to study
their nearest neighbors' experience. This may partly be a
consequence of historic enmities in the region. But it may
also underscore the powerful pull of western models,
especially in light of the pervasive wish of countries in
Central and Eastern Europe to ``rejoin'' the family of
Europe, in particular, to become members of the European
Union.
5. Has the post-communist world looked to the American experience
and to American ideas and models? A superficial look at new
constitutions in the region might suggest that American
influence has been slight. Throughout Central and Eastern
Europe, one sees, for example, parliamentary systems rather
than an American-style congressional system, presidential
systems which look more to Western Europe (such as France)
rather than to the United States, and constitutional courts
resembling that of Germany rather than an American-style
Supreme Court. The question of American influence--whether
in post-communist Europe or in other countries (such as
Iraq)--requires, however, a deeper enquiry than this
superficial survey might suggest.
THE INFLUENCE OF AMERICAN CONSTITUTIONALISM: AN HISTORICAL PERSPECTIVE
The American revolutionary period was a time of remarkable
innovation and accomplishment. Aware of their special place in history,
the founders shaped such ideas as federalism, separation of powers,
judicial review, and other concepts which have proved to be among the
core principles of modern constitutionalism. not only in the United
States, but in many other countries as well. American society differed
in important ways from that of Europe; there was, for example, no
monarchy and no legally entrenched social order. Even so, Europeans
followed with fascination the evolution of American constitutionalism
from the revolution, through the making of the Constitution, and
beyond.
For two centuries and more, there has been intense traffic in
constitutional ideas between America and other lands. Highlights of
those exchanges include the following.
The Founding Era in France and America
The French Revolution, in 1789, brought close French attention to
American ideas. Benjamin Franklin, immensely popular in Paris,
undertook to spread news of what was happening in America, as did his
successor, Thomas Jefferson. The Virginia Declaration of Rights (1776)
influenced the drafting of France's Declaration of Rights of Man and
the Citizen (1789). When the French National Assembly debated France's
first constitution, moderate and radical factions invoked examples
drawn from the experience with American state constitutions, especially
Massachusetts and Pennsylvania. Ultimately, French constitutional
development took a markedly different course from that of America, but
it is instructive that in many ways it was America's founding documents
that helped frame the debates in France.
Liberalism in the Nineteenth Century
In the early decades of the nineteenth century, liberal reformers
in Europe and in South America invoked the United States as proof that
liberal democracy could survive and flourish. When the revolutions of
1848 broke out in Europe, conventions meeting in France and Germany
frequently dissected American institutions in deciding what a liberal
constitution might look like in Europe. By this time, Toqueville's
Democracy in America had heightened interest in the American
experience, especially federalism and judicial review. Germany's
Paulskirche Constitution, drafted in Frankfort, was not in fact
implemented, but its principles, building in part on American ideas
(e.g., federalism and constitutional review), have reappeared in
Germany's Basic Law of 1949. In South America, the age of Bolivar
brought constitutions which were often modeled heavily on the United
States Constitution. South American soil was, however, not yet fertile
for such transplants, and these experiments were largely failures.
Political Evangelism in the Early Twentieth Century
When the United States acquired the Philippines as a result of the
Spanish-American War, President McKinley described American policy as
``benevolent assimilation.'' These plans included gradual development
of self-government, the creation of a system of public education, and
the transfer of American legal ideas. The Constitution adopted in 1935
owed much to American influence but drew upon other traditions as well.
In 1946 the Philippines became independent.
The most famous effort to export American ideas in the early
twentieth century was, of course, President Woodrow Wilson's aim, with
the allied victory in World War I, to ``make the world safe for
democracy.'' Wilson did not think that other countries had to adopt an
American-style constitution. But he did emphasize self-determination,
free elections, the rule of law, individual rights, and an independent
judiciary. The most successful democracy to rise from the ashes of
World War I was Czechoslovakia, whose leading founder, Thomas Masaryk,
had spent part of the war in the United States, working hard to
influence American policy.
Japan and Germany After World War II
After the Japanese surrender in 1945, General Douglas MacArthur
moved promptly to secure the drafting of a new constitution. Concerned
that the Japanese elite, left to their own devices, would make little
substantial change from the status quo, MacArthur instructed his
military government to draft a constitution, which they did in a matter
of days. Debate still continues, especially among Japanese politicians
and scholars, over the extent to which the Constitution of Japan was
imposed or has become in fact Japanese.
By the time drafting got underway on what became Germany's Basic
Law of 1949, the Cold War was beginning to dominate American foreign
policy. The occupying allied powers had a say, of course, in shaping
German post-war policy. But, with the Americans and their allies seeing
the Soviet Union as the greater threat, the Germans had a freer hand in
the Basic Law's drafting. There are important ways in which the Basic
Law has principles familiar to Americans, such as federalism and
judicial review,. But the 1949 document owes much to Germany's own
constitutional tradition, including the Paulskirche Constitution of
1949.
Waves of Democratization in the Latter Decades of the Twentieth Century
The spread of constitutionalism, democracy, and the rule of law
came in waves in the closing decades of the twentieth century. The
1970s saw autocratic governments yield to democracy in Mediterranean
countries--Greece, Portugal, and Spain. Spain's 1978 Constitution is
especially important as a model for other post-authoritarian countries.
Attention shifted to South America in the 1980s, notably to Argentina
and Chile. The great year was 1989--the year the Berlin Wall came down
and communism collapsed all over Central and Eastern Europe. The shock
waves also hit South Africa, where the apartheid regime fell, and a new
constitution came into effect in 1997.
American assistance to constitution-making and democratization in
such places as post-communist countries has been undertaken both by
public and private bodies. Typically the aid has taken the form of
technical assistance, such as helping parliaments to update their
processes, nurturing an independent judiciary, and assisting in the
drafting of new constitutions and laws. An especially effective program
is the American Bar Association's Central and Eastern European Law
Initiative (now the Central European and Eurasian Law Initiative),
which has sent hundreds of experts to work in scores of countries.
Often the efforts of American advisors has been paralleled by advice
and assistance from European governments and bodies, such as the
Council of Europe's Venice Commission.
THE PLACE AND RELEVANCE OF THE AMERICAN CONSTITUTIONAL EXPERIENCE
When other countries write constitutions and set out to shape a
constitutional regime, of what relevance is the American constitutional
experience? What follows are arguments which lead some to conclude that
the American experience is of limited value in other countries and
cultures.
1. Constitutionalism must be understood as an expression of culture.
Few would argue with this proposal if it is advanced as a
caveat, namely, that one should always take culture into
account in thinking about constitutions and
constitutionalism. But some observers take the argument
further, contending that there are no ``universal''
elements of constitutionalism. For example, by this view,
community or group rights could be valued above individual
rights.
2. American constitutionalism was the result of Enlightenment
assumptions, steeped in British constitutionalism, and
shaped in the historical settings of America. Some argue,
therefore, that the teachings of American constitutionalism
cannot be exported to other cultures. Such arguments often
cite the failure of Latin American constitutions based on
the US model and more recent problems in places such as the
Philippines.
3. Even those who think the American experience is relevant and
useful find limits in the United States Constitution as a
model for foreign drafters. The document was written in the
eighteenth century, reflects the insights of that era, and
has required formal amendment (notably the post-Civil War
amendments) and extensive judicial interpretation and
gloss. Much of the American jurisprudence of rights results
from judicial gloss rather than from the explicit
constitutional text (for example, the process of
``incorporation'' doctrine by which guarantees of the Bill
of Rights are applied to the states). Also, the United
States Constitution is, in a sense, an incomplete document,
in the sense that its framers assumed the existence and
function of the states and therefore of state constitutions
(documents which in many ways are rather more like
constitutions in other countries).
All of these observations have force and ought to be taken into
account, especially before assuming that what has worked well in
America must surely work for other peoples as well. But the problems of
comparative constitutionalism ought not to be turned into categorical
barriers. The usefulness of the American experience does not lie in the
formal text of the United States Constitution. It is to be found in the
general principles which are reflected in American constitutionalism
and, further, in the practical experience of making constitutional
democracy work.
Many of the most basic ideas in American constitutionalism reflect
norms that furnish at least presumptive value elsewhere. Examples
include the following:
1. Federalism. Formal federalism, as charted by the Constitution,
may or may not be appropriate in other countries.
Federalism, however, is a system which has many variants
and is found in one form or another around the world.
Federalism and its cousins (such as devolution) is
associated with values of pluralism, diversity, and local
choices about local problems. Such arrangements may be
especially important to defuse conflicts of nationality or
ethnicity.
2. Separation of powers. This principle, celebrated by Montesquieu
and refined by Madison, is a way of achieving limited
government--one of the ultimate guarantees of individual
rights. In its historical uses, it has been used to counter
the tendency of such doctrines as popular sovereignty and
legislative supremacy to become arbitrary or tyrannical.
3. Judicial review. Various devices have been used in an effort to
keep a constitution's promises. These include popular will,
separation of powers, and legislation. In the modern world,
however, constitutions increasingly look to judicial review
as a key means to enforce constitutional norms. John
Marshall's insights in Marbury v. Madison have become a
familiar part of constitutionalism around the world. One
may well suggest that no American contribution to
constitutionalism has been more pervasive or important than
this one.
These ideas and principles are complemented by the practical
experience of making American democracy work. Many countries have
entered the age of constitutional democracy with little or no
experience with such concepts as constitutionalism, democracy, and the
rule of law. For example, for a half century the countries within the
sphere of Soviet domination lived in a domain cut off from any such
concepts. Thus American or other advisors can bring the fruits of
hands-on experience in organizing political parties, conducting free
and fair elections, nurturing a free and responsible press, creating an
independent judiciary, and instilling the values of citizenship through
civic education.
FACTORS BEARING ON THE PROSPECTS FOR CONSTITUTIONAL LIBERAL DEMOCRACY
It is not enough that a society be democratic. It must also be
liberal and constitutional. Democracy seeks to assure that government
is based upon the consent of the governed and is accountable to the
people. But democracies should also be liberal, that is, committed to
individual rights and freedoms, to the Lockean principle that the state
depends on the individual, not the other way around. And democracies
must also be constitutional, that is, there must be means to assure the
enforcement of constitutional norms, even when that means negating a
majoritarian judgment.
What are some of the factors bearing upon the prospects for the
success of constitutional liberal democracy? Each person might draw up
his or her own list, and one might debate the relative place and weight
of each factor. But a list of factors would likely include at least the
following. Note that the list goes well beyond those factors which can
be incorporated into the text of a constitution.
1. A country should have sufficient military strength, as well as
social and economic stability, to counter foreign
aggression and to guard against internal subversion or
unrest. Strength need not come, of course, solely from the
country's own resources. A country may properly look to its
allies, as, during the Cold War, so many democracies (not
just weak ones) counted on American support in the event of
Soviet aggression.
2. A vibrant constitutional culture often goes hand in hand with a
healthy economy. I do not contend that, because countries
are rich, they will necessarily be constitutional
democracies. There are countries rich in oil, for example,
which one would be slow to characterize as constitutional,
liberal, or democratic. But it does seem fair to say that
poor economic conditions often work to undermine any hope
for constitutional democracy.
3. There should be a political culture--I would call it a
constitutional culture--which encourages the values of
constitutionalism, liberalism, democracy, and the rule of
law. This implies a high level of literacy. But it also
implies circumstances in which citizens have practiced the
norms of cooperation, toleration, and forbearance
associated with the fluctuating fortunes of causes,
candidates, and parties. It means that those who lose an
election turn the reigns of power over to the winners. It
means that those who find that a victory in the legislative
process is overturned on constitutional grounds by a court
accept the principle of constitutional limits on
government.
4. An open society, including free and responsible press and media,
is the handmaiden of constitutionalism and democracy. There
should be the means for open and effective communication
both among the people and between them and their
government.
5. Civil society should flourish. Private organizations--political
parties, trade unions, interest groups, clubs, etc.--create
an important buffer between the individual and the state.
Such organizations offer a place of refuge for those who
think that the politics of the moment are not in their
favor. They offer training grounds for the qualities which
make for effective citizenship and make possible the kind
of collective voice and action which precludes the state's
monopoly of power.
6. States should be based on the civic, rather than ethnic or
national, principle. That is, all citizens should have
equal standing in the society. There should not be
``insiders'' and ``outsiders.'' If the state is not largely
homogeneous in terms of religion, language, ethnicity, or
culture, then there needs to be a widely felt commitment to
toleration. To make constitutional liberal democracy work,
the people must have a level of mutual trust, and ability
to cooperate, rather than fragmenting into camps of hate
and hostility.
Ultimately, history, culture, and circumstance will tell us much
about the prospects for constitutionalism, democracy, and the rule of
law in any country. Those who hope to see these values prosper in Iraq
must understand Iraq itself--its people, its history, its culture, Some
factors characterize the region, for example, the argument over the
extent to which Islam is, or is not, ultimately compatible with
constitutional liberal democracy. Other factors flow from Iraq's own
history, for example, the question whether the parliamentary experience
of he Hashemite years before 1958 has any useful legacy, or whether the
middle class has been sturdy enough to survive the years of Saddani's
repressions. Experts on Iraq will help inform these judgments. But
those who would shape events in Iraq should also consult the lessons to
be learned from transitions from totalitarian or authoritarian regimes
elsewhere. The road to constitutionalism, democracy, and the rule of
law takes one through many lands.
Senator Cornyn. Thank you, Professor Howard.
Mr. Kritz.
STATEMENT OF NEIL KRITZ, DIRECTOR, RULE OF LAW PROGRAM, U.S.
INSTITUTE OF PEACE; ACCOMPANIED BY LOUIS AUCOIN
Mr. Kritz. Thank you, Mr. Chairman. Thank you for the
invitation. I am also obliged to note that the comments that I
will give are my own, and don't represent the views of the U.S.
Government or the U.S. Institute of Peace.
There are three vital and interrelated issues that are
essential to establishment of the rule of law in Iraq, one
being the constitution-making process that we're focused on
primarily today, a second being the question of transitional
justice, of how Iraqi society is going to deal with questions
of accountability and the legacy of the crimes of the past
regime, and the third being the broader challenge of legal
reform within Iraq.
Each of these have the potential of being transformational
for Iraqi society in very fundamental ways. They each share in
common as well the fact that they need to be started
immediately, but with the recognition that they are not short-
term processes, and adequate time needs to be allocated to
allow them to move forward properly.
Rushing or short-circuiting any of these exercises will be
done only to the detriment of the ultimate result. That relates
to the length of time that we need to remain committed to the
process, the overall costs, and the period of time that we
maintain boots on the ground in post-conflict societies like
Iraq.
I would point as an example to our recent experience in
Bosnia, where 7 years after the Dayton Accords former British
MP Paddy Ashdown entered as High Representative in charge of
moving the process forward. His first comment was that the
international community finally had to get serious about the
rule of law in Bosnia, or else the Dayton process could
collapse like a house of cards. We still have troops on the
ground more than 8 years later, in part because we have not
paid enough attention to these fundamental processes we're
discussing here today, and so I commend your attention to this
issue.
My comments with respect to the constitution-making process
emerge primarily from a 2-year study that the U.S. Institute of
Peace has undertaken on post-conflict constitution-making
processes. Through case studies of some 17 countries over the
last 25 years, the study has attempted to examine the ways that
the constitution-making process can be a means to advance
national reconciliation and the building of peace, or
alternatively may become an obstacle to not moving forward
properly.
I'm accompanied here today by Professor Louis Aucoin of the
Institute staff, who has been coordinating the project at the
Institute.
Major powerholders and elite factions are inevitably going
to play a major role in many post-conflict constitution-making
process. Part of the challenge is to constrain their ability to
monopolize that process. The final document should be more than
simply a deal cut to divide the spoils between powerful
factions on the ground today.
There are two tools that I would point to in particular in
that regard. One is the notion of allowing adequate time for
the process. A rapid rough-shod process is going to be nothing
more than that simple deal between those who currently hold all
the power. A more extended and open process that allows a
variety of other factions to evolve and participate can
facilitate lively challenge and debate within this exercise and
be one important way of constraining the power of the few.
Another will be the adoption at the outset of the
constitutional process of a set of basic rules that will govern
both the process as well as at least the broad outlines of the
substance of the ultimate document. This would be the place to
initially enshrine basic recognition of principles of
tolerance, pluralism, gender equality, religious and ethnic
equality, possibly certain limitations on the future role of
the military, and other basics, without predetermining the
constitutional document.
If done properly, this process can be a potent tool for the
empowerment and enfranchisement of a broader base within
society, allowing a diverse variety of groups within civil
society to emerge and to develop their own capacity to play a
role in the debate on the future of Iraqi society. It would
result in a diffusion of power from the few to the many. It can
provide, as well, an important forum for various groups,
particularly aggrieved groups within society, to articulate
their visions and their concerns about the future distribution
of power.
It would provide opportunities through a basic framework
that creates a political space. One option in this regard is
the use of an interim constitution. I'm reminded always of
sitting in the South African constituent assembly, where an
interim constitutional arrangement provided the political space
to allow everyone from the Freedom Front on the far right to
the Pan-African Congress on the far left to sit and debate the
emergency powers under the new constitution in ways that they
all told me afterwards would not have been possible without
this kind of an interim process, which we're seeing emerge in
an increasing number of cases.
A constitutional commission would be established that would
have three basic functions. First, public education. This
provides an important opportunity to educate the public on
these broad principles noted earlier that should govern society
in the future.
Second, and in a subsequent phase, a process of
consultation of the public on specific questions that need to
be addressed in the context of the constitution. This can
provide various groups in society with a sense of ownership and
can contribute to subsequent sustainability of the final
product, as well as the potential for pressure on the part of
those owners if and when those who subsequently hold power fail
to implement and uphold the constitution.
From Rwanda to Albania, we've seen this process taking hold
in important ways--in ways that, I would note, in some cases
have transformed even the members of the constitutional
commissions as they engage the public. They've changed their
own opinions and transformed from representatives of their own
factions to a more cohesive unit, looking at what makes sense
for the future of the country.
Last, I would point to the role of the international
community in this process. I would simply reiterate what has
been said before. There is an appropriate role for the
international community, including the United States, to play,
but that's to provide neutral resources with respect to
experiences in other countries with respect to basic
constitutional principles without favoring any particular
faction and without, as we've seen in some instances, having
international experts serve as hired guns for one faction or
another, enhancing only their capacity.
This can be formalized. In the case of Eritrea, the
constitutional commission process included an international
advisory committee of experts that helped to inform the
process. It will be important that this include not only the
U.S., but also those from other countries, because there is a
rich body of experience that has emerged from many of them in
recent years, and it will be important for Iraqis to be able to
take advantage of that as well.
With that, thank you.
[The prepared statement of Mr. Kritz follows:]
Prepared Statement of Neil J. Kritz
Introduction
In countries such as Iraq, a successful outcome requires a focus
not only on the final document which emerges, but on the path to
producing and adopting it. Indeed, the constitution-making process can
be a transformational one for societies, if properly organized and
given adequate attention and resources. These are among the lessons
that emerge from an ongoing study that has been conducted over the past
two years by the United States Institute of Peace on ``Constitution-
Making, Peace Building, and National Reconciliation,'' Through an
examination of seventeen case studies of constitution-making processes
around the world which have occurred over the course of the last twenty
five years, focusing primarily on post-conflict transitions, the study
is attempting to assess the constitution-making process for its
potential for conflict resolution and prevention and for the
maintenance of stable peace. To date, this review by a wide range of
experts strongly suggest a basic message: perhaps more so than at any
previous time in history, the process by which constitutions are made
matters.
Interim Arrangements
The constitutional process is often facilitated by the
establishment of interim arrangements. While this has taken a variety
of forms, the essential characteristics are the following: (1) the
clarification of basic legal rules and governmental structures during
the interim period, allowing society to move forward with a minimum of
disorder; (2) an interim framework that embodies sufficient changes
from the prior system to clearly demarcate a break from the past and to
immediately remove those elements that are clearly objectionable or
repressive. The result can be an interim constitutional framework that
opens adequate political space to enable all parties to participate and
debate even hotly contentious constitutional issues in an atmosphere
that guarantees their rights and interests pending the development of a
final constitution.
Most of the cases included in the USIP study have involved some
type of interim arrangement which has provided for some degree of
stability during the period of the constitution-making process. In some
cases, (Rwanda, and Cambodia, e.g.), basic stability was provided
through a peace agreement. In other cases (Ethiopia and Eritrea),
stability was created through a National Charter which provided for a
basic structure of government and the guarantee of human rights which
would govern the interim period while the Constitution was being
created. In Eritrea, the Charter also had the advantage of providing
considerable detail of how the process was to be conducted ruling on
such questions as the creation of a Constitutional Commission and the
election of a Constituent Assembly. In Poland a series of
constitutional amendments served this purpose, and the most important
among them--that of October 17, 1992 was referred to as the small
constitution. The process in Hungary was similar in that interim
arrangements were provided through constitutional amendment. An
alternative model would provide for adoption of the constitution, with
a constitutionally mandated review process--complete with the public
participation component discussed below--following an interim period of
three to five years.
South Africa enacted a formal Interim Constitution which served
these purposes and set out a series of constitutional principles which
were to guide the process. The structure of the Constitution-making
process was determined by the South Africans themselves with minimal
input from the international community. Prior to 1993, private
negotiations amongst the various political factions in South Africa
were important. But by 1993, the parties had negotiated an Interim
Constitution which set out the basic ground rules for the process of
adopting a permanent constitution and provided for the basic
functioning of a Government of National Unity throughout the
constitution-making period. Under the Interim Constitution, the final
constitution was to be adopted by a Constituent Assembly on the basis
of a two-thirds vote and no constitutional commission was created.
Election to the Assembly was supervised by an Independent Electoral
Commission and governed by a proportional representation list system
laid out in the Interim Constitution. The Constituent Assembly, in
addition to drafting a permanent constitution for the country, would
also function as a parliament in the interim period. In addition, the
Interim Constitution in South Africa set out 32 substantive principles
which had to be followed in the drafting of the permanent constitution.
Once the Constituent Assembly began to undertake the process of
constitution-making, it determined that a comprehensive program of
public participation was necessary. Public participation included
publication of debates, consultations at the village level, radio
broadcasts of public education material as well as key issues and large
numbers of public submissions.
Most of these arrangements provided for some basic measures for the
exercise of executive and legislative functions. In a few of the cases,
there was provision for the exercise of interim judicial power to
oversee the process. In South Africa, Poland, and Hungary, for example,
the constitutional courts in those countries played this kind of an
oversight role in connection with the constitution-making process. This
role was particularly important in the South African context where the
Interim Constitution also endowed the Constitutional Court with the
jurisdiction to determine whether the final draft of the permanent
constitution complied with the principles set out in the Interim
Agreement. One draft was actually rejected by the Constitutional Court
as inconsistent with the constitutional principles which had been
established.
The interim arrangements are usually agreements formed amongst a
broadly representative group of elites and do not involve public
participation. In the South African case, the negotiations and
settlement of the issues surrounding this initial stage of the process
at that stage were closed and secretive, apparently due to concern over
the high risk of violence at that stage. The constitution-making
process has generally tended to be more closed and elite driven in
those cases where the risk of violence is high; Cambodia serves as
another example of this phenomenon.
Reducing the Monopoly of Power and Influence
While powerful elite factions will play a major role in any post-
conflict constitution-making process, it is essential to reduce their
monopolization of that process, and to avoid a final constitution that
simply reflects division of the spoils between such factions. If the
constitution and the process of its adoption are to play a role in
transforming society, then constraints on such monopoly of power need
to be built into the process.
One tool in this regard is allowing adequate time for the
constitutional process. A rapidly adopted constitution will generally
only reflect a deal between the powerful. A more open and extended
process provides an opportunity for other groups and civil society in
general to challenge and debate and influence the process: A second
element is the adoption at the outset of a set of basic rules that will
govern both the process of constitution-making and the substance of the
ultimate document. These may include, for example, tolerance,
pluralism, human rights, the rule of law, limited government, the role
of the military constitutionally limited to defensive functions, and
gender, religious and ethnic equality. \1\ Both of these steps serve to
constrain the ability of current power centers to drive the
constitutional process in the wrong direction, and would be advisable
in the case of Iraq.
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\1\ Related to the notion of cardinal rules, there is a trend in
modem constitutions to include certain substantive features which are
considered so sacrosanct as to be impossible to amend under the terms
of the Constitution. These features are sometimes referred to as
``immutable principles.'' There does not seem to be as yet any
consistency with respect to which principles are thus considered to be
immutable. In Germany, human rights and the federal nature of the
system are immutable, and in France, the republican form of government
is immutable. In those countries which have constitutional courts with
jurisdiction to resolve disputes over issues of constitutionality, the
existence of these immutable principles raises the possibility that the
court may be called upon to rule on the constitutionality of a proposed
constitutional amendment.
---------------------------------------------------------------------------
Public Participation and Ownership
There is a clearly emerging trend toward providing for more direct
participation by the population in the constitution-making process, in
the form of civic education and popular consultation. Some scholars are
referring to this as ``new constitutionalism.'' This trend seems to
have begun and emerged particularly in Africa although at this point in
time it has also been employed in Latin America (Brazil and Nicaragua)
and Asia (East Timor and Fiji.) Rather than being crafted completely
behind closed doors by a small number of elites and handed down from on
high, this model enables the broader public to be engaged in the
process. It can serve to empower a broader range of groups, including
women and emerging civil society groups, as examples, providing an
opportunity for them to impact on the constitutional process as well as
on the political process. The constitutional process can provide a
forum for national dialogue and education regarding issues and
decisions that are vital to the future direction of the country.
This model has typically involved the establishment of a
Constitutional Commission as it did in Eritrea, Ethiopia, Ugandan,
Kenya, Rwanda, Nicaragua, Brazil, and Fiji. Typically the
Constitutional Commission has three functions although the delineation
of those functions has not always been clear, and the lack of
delineation has contributed to the weakness of the process in some
cases, see below.
In general, Commissions have been called upon to conduct civic
education in connection with the constitution-making process, to
consult the population on the questions which it determines to be key
to the process, and then to compile a draft of the Constitution which
takes that consultation into account and which also synthesizes other
drafts and submissions from political parties, individuals, and NGO's.
This tends to diffuse the focus on individual drafts which can
otherwise detract from the democracy of the process when ready-made
drafts are submitted in the early stages of the process by powerful
parties or individuals.
These Constitutional Commissions have usually been appointed by the
executive or elected or appointed by a Constituent Assembly. In this
new emerging model for constitution-making, it is important that such
bodies, while relatively small in size, be fairly representative of the
various political parties and religious, racial and ethnic groups
within the society. Where the constitution-making process has been
sufficiently deliberative and has entailed broad public consultation,
an intriguing result has repeatedly been the transformation of the
members of a Constitutional Commission from serving primarily as
advocates for their respective interest group into a more cohesive
group with a greater focus on the needs of the whole society.
Constitution-making is a deliberative process, and especially when
integrating the public participation model, needs to be given adequate
time. It is a mistake to attempt to short-circuit this process. For
example, in some cases, Commissions have tried to conduct civic
education and popular consultation all in one phase. It is strongly
urged that these generally be treated as two distinct phases of the
process. The public education phase provides an important vehicle to
broadly disseminate to the public information regarding the
constitution and the constitutional process, and information on the
basic themes--that should inform the new constitutional framework. In
various places, this has served as a stimulus to civil society groups
to organize public discussions on these issues. Through this process,
long before adoption of any final constitution, the process can begin
to diffuse power within the society and facilitate democratization,
rather than leaving it all in the hands of those few with their hands
on the levers of power.
In East Timor and Fiji, the public education and consultation
phases were essentially conflated, arguably weakening the effectiveness
of each. South Africa, Eritrea, and Rwanda are more successful examples
of this aspect of the process. In those processes, a carefully planned
program of civic education was conducted so as to educate the
population on the role of a constitution in society generally and as to
their role in the process. Also, it was during the program of civic
education that the determination was made as to what questions were the
most important for the population. In Rwanda and Eritrea, the
population was then consulted for their response on these questions.
Over the course of the Rwandan constitutional process, it is worth
noting, the opinions of the Constitutional Commission were revised in
light of the popular consultations. Albania also provides a very useful
model of a robust and well-organized public education and consultation
process, which has arguably strengthened the drive toward
democratization in that country.
During the public consultation phase, the Constitutional Commission
should present to the population a series of specific key questions and
issues regarding the constitution. An adequate budget and resources are
needed to enable the Commission to hold sessions throughout the
country, elicit the views of the public and compile and receive
responses. This process not only provides the public with a sense of
ownership over the future constitution; it also often provides ideas
and insights to the Commission that may prove extremely valuable to the
subsequent drafting of the constitutional text.
The case studies have clearly shown that the challenge of
conducting these processes in the context of a high rate of illiteracy
has proven to be much less significant than some would imagine. Members
of constitutional commissions have been frequently amazed at the
sophistication of the views expressed by their illiterate population
once they understood the issues and were able to form their own
opinions about them. In addition, a great deal has been learned about
how to conduct these processes with art illiterate population. The
message has been passed in several of these societies through the use
of radio, cartoons, traveling theatrical presentations, etc.
The synthesis of the results of the popular consultation into the
constitutional draft has been a challenge in certain cases, and
requires proper planning. In East Timor, for example, the Constituent
Assembly focused on a draft prepared by the dominant political party
that ignored the results of the popular consultation. Brazil is another
example where the popular consultation failed at this stage. In that
case the popular consultation had been massive but poorly organized.
The task of synthesizing the results was then assigned to one man.
Consequently, he was ultimately unable to absorb and synthesize the
results of the popular contribution in the development of the final
draft.
It is also important to note that the process of civic education
and popular consultation takes time. Some countries conducting these
processes have tried to rush them. This was the case in East Timor,
where the process was to take one month; a year later when the process
was seen to have failed, the Constituent Assembly launched a second
effort at public consultation, but allocated only one week for the
exercise. This is currently a potential problem in Afghanistan is well.
An effective public education and consultation process will take at
least a year, and some countries have spent as much as three years on
this aspect of the process.
Democratic Representation
In addition to public participation, an important factor for the
ultimate legitimacy of the constitution and the stability of the system
it establishes is democratic representation in the body that receives
the Commission draft. This is often a Constituent Assembly that debates
and revises the Commission draft and adopts the Constitution.
The case studies suggest that a broadly representative Constituent
Assembly is more likely to adopt a constitution which is characterized
as legitimate and to establish a political system which will prove to
be stable. When there is broad democratic representation, there is a
greater likelihood that all aggrieved parties will have an opportunity
to express their views on key constitutional issues of importance to
them, and perhaps more importantly, there is a greater likelihood that
their views will be taken into consideration in the drafting of the
final document. Where this is the case, the Constitution can serve to
resolve conflict and provide mechanisms and reliable institutions for
peaceful resolution of conflicts in the future.
The biggest problem that arises in this connection is the dominance
of a single political party, and this problem has been encountered in
many of the cases studied. It is a factor which frequently detracts
from the democracy of the process and serves to block the resolution of
issues which are important to minority groups who have historically
felt aggrieved.
For this reason, frequently a great deal of thought is given to the
choice of the electoral systems which will govern democratic
representation, and very often an Electoral Commission is established
to oversee the elections of the Constituent Assembly and to resolve
conflicts which may arise in this connection.
A problem which frequently occurs in connection with the dominance
of a particular party is the establishment of a constitutional draft
early in the process which becomes the focus of all debate and
discussion. This problem was observed recently in East Timor, for
example, where the Fretilin party developed a proposed draft even
before the constitution-making process was formally initiated. The
disadvantage which stems from the early establishment of drafts by
powerful parties or individuals is that debate then tends to focus on
the power to be accorded to that group or individual rather than on the
issues that the draft addresses. This phenomenon serves to make the
process generally less democratic.
One way to combat this problem is to establish a Constitutional
Commission charged with the functions described above in the section on
the right to participate. In that case, the Commission can serve as the
recipient of all drafts and other submissions from all parties and
individuals. The Commission can then take those drafts and submissions
into consideration along with the results of the popular consultation.
They can then synthesize all of the elements in the final draft which
they then prepare for submission to the Constituent Assembly for
debate. This kind of a system can diffuse the power associated with any
particular individual or group and provide an opportunity to all of the
various groups in the society to express their views on constitutional
issues.
Ratification
The case studies have not revealed any particularly uniform method
for ratification of a Constitution. In many of the cases studied, the
Constitution has been ratified by a Constituent Assembly elected for
that purpose, and in several cases the Constitution had to be adopted
by a \2/3\ vote of that body. South Africa, Cambodia, and East Timor
are examples. In other cases, the Constitution has been ratified simply
by the parliament (Fiji, for example), in one case, Columbia, the
Constitution was ratified by Presidential decree, and in Rwanda, the
Constitution was ratified by popular referendum. It is interesting to
note that there is a tradition of ratification by popular referendum in
those countries, like Rwanda and earlier Iraq, which are influenced by
the French Constitutional tradition.
However, none of the case studies has suggested any problems
relating to legitimacy of the Constitution that can be traced to the
method chosen for ratification. They suggest that questions of
legitimacy appear to be more related to the education of the population
and their participation in the process, as discussed above.
The Role of the International Community
At the outset, it is important to note that the role of the
international community has been essential in many constitution-making
exercises. For example, some of the programs of civic education and
popular consultation which are described above could not have been
conducted without the contribution of valuable resources from the
international community. In addition, in virtually all of the cases
studied, international constitutional experts have served as a valuable
human resource to locals who have developed and drafted constitutions.
The international community can play a role which is beneficial, and in
some cases, crucial to the process.
The international community's involvement in constitutional
processes has not always been without problems. For example, the role
of the international community has been criticized in some cases for
favoring one political party over others. When one party is allowed to
dominate the process, there is a significant risk that aggrieved
parties in a conflict will not have the opportunity to air their
grievances and secure concessions in the constitution-making process
which could serve to reduce the potential for future conflict. The
problem is exacerbated when the international community lends its
support to such a party.
The international community often engages in this kind of
favoritism out of practical and temporal concerns. In general, their
view is that it is perhaps most expedient to develop good working
relations with the party which will obviously hold the power once the
process is completed. In addition, there is the view that support of
that party could shorten the process by accelerating an outcome which
is seen as a forgone conclusion. This approach could, however, prove to
be very short sighted in that, it could, as noted leave the embers of
conflict smoldering.
This concern is related to another potential problem associated
with the role of the international community in constitution-making
processes--the issue of its influence on the timing of the process. The
assistance of the international community to constitution-making is
usually part of a larger program of rule of law assistance which is
very demanding in terms of both human and financial resources. For this
reason, the international community has frequently sought to expedite
the process, and some have taken the view that this time pressure has
served to short circuit the process in some cases. In Cambodia, for
example, the Paris Peace Accords of 1991 provided that the
constitution-making process should be completed in a period of ninety
days. Analysts of this process have unanimously taken the view that
this period was clearly too short, particularly given the lack of human
resources resulting from the Cambodian genocide and the impossibility
generally of conducting an effective process under such time
constraints in the most ideal of circumstances. Some authorities have
suggested that the rushed nature of the process contributed to the
weakness of the system created under the Constitution of 1993, and the
coup d'etat of 1997 has lent credence to that view.
Finally, while, as noted, the role of the international experts has
been by and large extremely beneficial to the constitution-making
processes studied, there have been instances where the contribution of
certain individual experts has served to make the process less
democratic. For example, in Cambodia while the process was unfolding in
1993 King Sihanouk commissioned a French expert to prepare his draft of
the constitution. From the moment that draft was prepared, it then
became more difficult for others participating in the process to make
their views heard or to propose alternatives since from then on there
was a tendency to reduce all issues to the question of whether the
alternatives were consistent with the King's draft. (The problem
associated with the development of drafts early in the process is more
fully discussed earlier.) The study has shown that the role of foreign
experts has been most constructive when they have served as a neutral
resource offering guidance to locals by elucidating the pros and cons
of particular substantive issues, frequently through comparative
analysis of how constitutional issues have been handled in other
countries. This kind of a role encourages debate of issues amongst the
locals who will ultimately be the ones who will make the substantive
choices. The making of informed choices by locals will serve to
increase their sense of ownership of the constitution and contribute to
its legitimacy in the long run. In Eritrea, an advisory body composed
of foreign experts was created to assist the Eritrearts in this way.
Summary and Recommendations
The international community should encourage the Iraqis to
take the time which is needed to conduct the process taking
into consideration the time which will be required to engage in
meaningful civic education and popular consultation.
Basic rules governing the constitution-making process and
the drafting of the final constitutional document should be
established at the outset of the process. These rules should
mandate a robust process of public engagement and should
enshrine fundamental rights in the new Iraqi society.
The case studies suggest that Iraq should follow the new
model of constitutionalism which is emerging in recent
constitution-making exercises by taking steps to ensure that
meaningful civic education and popular consultation are
conducted. In order to accomplish this goal, a Constitutional
Commission should be appointed which is broadly representative
of all of the political, religious, and ethnic factions within
the society. This Commission could be appointed by the interim
authority in Iraq as long as it is thus broadly representative
of the society.
The Constitutional Commission should conduct its work in
three separate phases. It should first engage in a program of
civic education which informs the population of the role of the
constitution in the society and lets its people know what will
be expected of them during the popular consultation phase.
During this phase, the Commission should be taking note of the
values and issues which the society considers to be of
paramount importance and should be compiling a list of specific
questions which should be put to the population during the
popular consultation phase.
In the second phase, the Commission should conduct
consultations based upon specific questions, and these
consultations should take place in every area of the country in
both rural and urban settings. The Commission should also
receive submissions and proposed drafts from political parties,
individuals and NGO's.
In the third phase of its work, the Commission should
develop a draft which synthesizes the results of the popular
consultation and the other submissions.
The interim authority should develop an electoral law which
should establish the electoral system which should be used in
the election of a Constituent Assembly and which will provide
for the establishment of a broadly representative Electoral
Commission which will supervise the election and resolve
disputes which arise during the election.
The Constituent Assembly should carefully consider and
debate every article in the draft proposed by the
Constitutional Commission. It should be empowered in the
electoral law to adopt the Constitution by a two thirds vote of
the Assembly.
It would be useful for the international community to
provide detailed advice to the Iraqis on the development of the
constitution-making process. As noted above, in the past
foreign experts have focused almost exclusively on issues of
substance. In a place like Iraq, locals could greatly benefit
from an analysis of lessons learned from other processes which
could serve to ensure the legitimacy of the Constitution and
the stability of the political system it creates.
International experts should serve as a resource and should
avoid acting as a ``hired gun'' for particular parties or
groups within Iraq. They should offer comparative observations
based on their knowledge of how particular constitutional
issues have been dealt with in other countries.
The international community should avoid supporting one
group or political party over another.
Senator Cornyn. Thank you very much. I just have a couple
of questions. To start with, Dr. Kommers, the issue of de-
Ba'athification arose with the first panel, and I know after
World War II in Germany there was a de-Nazification effort. Can
you perhaps tell us whether you think that experience should
enlighten us today on the de-Ba'athification process, and
specifically if people are excluded from society, or from
holding government jobs, what that portends for a successful
democracy?
Dr. Kommers. Yes, there was a major de-Nazification program
in Germany. However, as I think somebody suggested from the
previous panel, the members of the Nazi Party came in various
stripes. At the worst end, of course, you had the criminals,
and those who had been guilty of criminal activity for the most
part were barred from public office and from all positions of
responsibility in post war Germany.
As was said before in connection with the Ba'ath Party
there were thousands of people who belonged to the Nazi Party,
but who joined the party simply, for example, to retain their
jobs in the government bureaucracy, which of course was
extremely large, as it is today, and by the way, the same
process took place in East Germany.
Almost all East German communists who were high in the
echelons of the Socialist Unity Party, the Communist Party were
discharged or removed from office. These included political
officials, teachers, judges, and civil servants. But those
people who could show that they were not associated with the
crimes of the regime were allowed to retain or reclaim their
positions. This was a good policy because it contributed to
some degree of trust and it also contributed to the stability,
such as it was, in East Germany immediately after
reunification, in the 2 or 3 years after reunification, and I
think the same was true of the post-Nazi period.
The lower level Nazi officials who really were not
ideologically committed to the regime, and there were many,
although that's disputed, if they had been left out of account,
I think it would have created a good deal of unhappiness and
distrust in Germany, and then finally the Americans, as well as
the British and the French, realized that many of these
officials were absolutely necessary if the government was to be
adequately staffed and reconstructed.
Senator Cornyn. Thank you.
Professor Agawa, when your people question where democracy
and Islam can coexist, I think about the seismic cultural
change in Japan post-World War II, particularly with regard to
the role of the Emperor, and I wonder if you might enlighten us
a little bit in terms of the role of the Emperor in Japan pre-
World War II and through the war, and how that changed during
the course of the constitution of Japan.
Mr. Agawa. In talking about the Japanese constitution in
1946, as I said, the question as to how to treat the Emperor in
that constitution was a major issue at the time. We have to
remember that the Emperor tradition goes back to the third
century or fourth century, and the Emperor is much older than
any constitutional system we know, and when the Americans
proposed that the Emperor be just a mere symbol of the unity of
the people, the sovereignty resides with the people, and that
any power that the Emperor has is derived from the people's
sovereignty, the Japanese people, particularly the conservative
government element really strongly resisted that.
However, actually, then they later found out that the
tradition of the Emperor, going back to the 9th, 17th, and even
oldest period, the Emperor was really just a spiritual symbol,
and the Emperor being a militaristic superpower was only an
adaption of the so-called Prussian German notion of Kaiser
during the late 19th century, and particularly during the
thirties.
So therefore in a very interesting way the notion of a
democratic Emperor suited the older tradition of Japanese
history, and I think that in that way the 1946 constitutional
notion of spiritual symbol of Japan has worked remarkably well,
so I think in that respect General MacArthur was very wise in
bringing up that notion, and modeled after that partly on I
think the British way of reigning but not ruling monarchy.
Senator Cornyn. Professor Howard, I was interested in your
comments in this vein. We are very cognizant, and there is
almost universal agreement that the coalition should not impose
our views on the Iraqi people, it must be something of their
choosing, yet you talked about the importation of values, and
indeed it seems to me that the failure of any Iraqi
constitution to respect certain basic values would be dangerous
to the Iraqi people, in other words, if there is not respect
for freedom of the press, free exercise of religion,
sovereignty of the people and those sorts of things. Could you
address that?
It seems to me like we are defensive in not wanting to
impose something, and yet if they don't embrace some of those
certain values which I think are pretty universal in a
civilized world now, not just America, it could indeed
perpetuate a police state, or set up a situation where another
Saddam could rise to power. Do you have thoughts?
Mr. Howard. I think that's a core question. It seems to me
that we must accept the proposition, which has been widely
accepted at these two panels, that of course the Iraqi people
must be at the core of the enterprise. I mean, they must be the
ones who make, devise, institute, implement the constitution.
We all understand that, but I think one need not be defensive
about saying that there are certain values which transcend
national boundaries.
We've had so much experience--Neil Kritz and his associates
and a number of other people have studied much of this
experience, especially in the years since World War II. I would
hazard that a majority of the constitutions of the world have
been written in the last 25 or 30 years. There's really been no
period like it since the American founding period, or perhaps
the period after World Wars I and II. There is ample
opportunity for seeing whether, indeed, there is common ground
among constitution-makers.
This approach is not unlike the effort of Enlightenment
thinkers in the 18th century, Voltaire, Condorcet, Turgot, and
others, who argued that there was what Condorcet called a
``common core of human happiness.'' One should take account of
national differences; no two peoples are alike. Yet when one
strips away those national differences, there are certain human
aspirations and appetites, pains and pleasures, which make us
all human beings. That, it seems to me, is the heart and soul
of the modern human rights movement.
In Vienna, a few years ago, there was a meeting at the
United Nations that came together to talk about the meaning of
human rights. There was a handful of nations who objected to
the enterprise, nations like China and Burma. I had the
impression that those nations had not consulted their people as
to whether there was such a thing as human rights.
So I, for one, am willing to begin with a certain a priori
assumption that there are certain rights that people ought to
have as a matter of principle, and that constitution-makers, no
matter who they are, ought to address those rights.
I would perhaps distinguish between what we call bills of
rights, where you lay out the rights of individuals, and the
structural side of government, the frame of government. Surely
there's a much wider room for debate--shall the system be
parliamentary or Presidential, shall we have an American-style
Supreme Court or a German-style constitutional court? If
there's a president, shall he or she be a figurehead or a
president with some power like France or the United States?
There are many models from which to choose from, it seems
to me. Even as to structure, however, there are some
presumptive basic qualities. I mentioned them in my remarks--
norms like separation of powers, checks and balances, judicial
review or other enforceability of the constitution. All of
these are working models. What one does then is take stock of
how different countries have used them and hope that, perhaps
doing a little nudging, that the Iraqis, when they finally
write their constitution, will properly have taken stock of
that experience.
Senator Cornyn. Thank you. Senator Chafee.
Senator Chafee. Thank you very much, Senator.
Professor Kommers, you mentioned that the German
constitutional basic law has been a model, if I heard you
right, for 60 or 65 countries, and rather strong on that as
perhaps applicable to Iraq. Are any of those 60 or 65 countries
that have any similarity to Iraq? I don't know which 60 or 65,
if I heard you right, they are.
Dr. Kommers. Well, most of the Eastern European
constitutions were revised at last partially on the German
model. The same is true of South Africa's constitution, and the
Spanish constitution, the Portuguese constitution, a couple of
the new constitutions in Latin America, but I can't think of--
well, maybe Bosnia, Bosnia-Herzegovina, where you have
tribalism and religious radicalism being present pretty much as
in the case of Iraq, and I'm really not sure how well those
constitutions are working. I suspect that they are not working
as well as the drafters of those constitutions wanted them to
work.
Maybe along the same lines, Mr. Chafee, I might mention
another reason why I think the German constitution has been so
successful which may have lessons for Iraq, and that is this.
The main parties in the German constitutional convention
represented the three major democratic traditions in the
history of Germany. There was the Christian Democratic, the
socialist tradition, and the liberal tradition, represented
respectively by the Christian Democratic Union, the Social
Democratic Party, and the Free Democratic Party. These
represent the major historical and philosophical movements that
are part of Germany's liberal democratic tradition.
These parties had their differences, and they fought out
those differences bitterly at the convention, but in the end
they suppressed those differences, and took the best of the
three traditions and incorporated those things into the basic
law, so if you look at that basic law, it represents something
of a confluence of these three traditions in German history.
Then finally, the last point, Adenauer. Adenauer was
elected the president of the constitutional convention. He was
Germany's Washington. He was a towering figure, highly
respected not only by the Germans but by the allies, and I'm
just wondering, if a constitutional convention of that kind is
established in Iraq, that convention should probably represent
the three or four major democratic traditions, if they exist in
Iraq, and be governed, or ruled, or directed by people of
reputation and prestige, it seems to me, and then maybe the
Americans can direct that process, at least to some extent.
Senator Chafee. Thank you very much, and thank you very
much, panelists, for your generous time here this afternoon.
Senator Cornyn. Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Professor Yoo, you and many of the other witnesses have
suggested, in order to create a stable, lasting order in Iraqi,
the Iraqi people have to be the primary authors of their own
constitution and political order. You apparently believe we
have the legal authority to impose a constitution on the Iraqi
people. Are you suggesting it would be a good idea for us to do
so?
Mr. Yoo. Thank you for that question.
No, I'm not. I'm just stating that the law would allow you
to do that, but I think the German and Japanese models actually
show where, even though the United States had such broad legal
authority they used domestic processes to help develop a
constitution that would be acceptable to their own populations,
but you know, especially with the Japanese example there was a
very strong American hand. It was sort of based on this theory
of international law of occupation that I discussed before.
They just weren't so open about what they did.
Senator Feingold. OK. Mr. Kritz, Mr. Yoo has testified that
he believes the United States has the legal authority to impose
a constitution on the Iraqi people. Do you agree?
Mr. Kritz. Well, Senator, I think that current-day
interpretation of the Hague Convention and Fourth Geneva
Convention obligations, at least according to many scholars,
would raise questions with respect to that. There is at a
minimum a healthy controversy on the issue.
More importantly, I would suggest that on a practical
basis, as Mr. Yoo has said as well, it wouldn't be a good move,
simply because, in the context of Iraq, it would not provide
for a product or a process that would move Iraq to the place
where we want it to be at the end of this process.
Senator Feingold. Let me followup with you. I think one of
the themes emerging from this hearing is that when we're
talking about drafting a constitution, process is just as
important as content. We've heard a bit about the historical
experiences of Japan and Germany, which are obviously
important, but as you've mentioned, you've had experience with
the more recent transitions in Bosnia, Cambodia, Rwanda, Sierra
Leone, Guatemala and elsewhere. Based on your experience with
these other countries, what would you say were the most
important process issues we should be keeping in mind?
Mr. Kritz. Well, as I indicated, Senator, one of the most
important issues with respect to process is the guarantee of
public participation and ownership of the process. The
constitutional process, if it's going to be viable and create a
reconciled and stable Iraq for the future, can't be a process
of a few elites crafting a constitution behind closed doors and
handing it down like tablets from Sinai.
This needs to be a process that really engages the people.
It needs to be a process that includes several stages,
including the initial process of articulation of basic
principles. I would suggest, by the way, Senator Cornyn, that
that notion of essential values is ensconced in several recent
constitutional processes in the context of international human
rights. This has been done recently in Afghanistan, as it has
been done in other cases, and establishes a commitment that the
country in its transition and its constitutional process is
obliged to adhere to current international human rights norms.
This helps ensure that the kinds of values and the protection
of rights that we're talking about are obligatory on that
process.
A constitutional commission should ideally be a
representative body that would include respected and credible
scholars from various key groups within society. It would
engage first in public education on these principles, in
consultation with respect to the public's ideas on basic
questions, allowing them to engage in the debate, and only then
in the drafting of a document.
One of the things that we've seen in a handful of cases is
the immediate tabling of a document, frequently one that's been
drafted by one dominant party in the process, and that
immediately skews the entire constitutional process which
follows. We've seen that in Cambodia; we've seen it to some
extent in East Timor more recently. It makes it harder for that
fuller democratic process to ensue. It makes more sense later
on for the constitutional commission, based on its
consultations and based on its input both from outside and
inside the country to begin that process of crafting a
document, which would then be submitted either to a popular
referendum and/or to a constituent assembly for final revisions
and adoption.
Senator Feingold. Finally, Mr. Kritz, one of the biggest
concerns in Iraq will be the creation of a criminal justice
system that the Iraqi people perceive is fair and evenhanded.
What are some of the problems that you see in places like East
Timor and Kosovo with establishing new courts and police
forces, where many of the people employed in the new criminal
justice system are the same people who held the position before
the change in government took place?
Mr. Kritz. Senator, there would, of course, initially need
to be, as has been discussed, this process of vetting those
personnel who may populate the new system. I would mention, by
the way, that the Institute of Peace, based on experience in a
number of prior transitions, provided to the NSC Working Group
on Iraq back in January a set of guidelines for the vetting
process. I'd be pleased to provide a copy of that memo for the
record, if you desire.
It will be necessary, as I say, initially to screen out
many of the people who are currently in the system. That
doesn't mean, in the Iraqi context, that everyone is
discredited. Far from it. Within the police force, as the Iraqi
Special Forces, Interior and others assumed greater power over
the years under Saddam, the regular police forces actually
became increasingly isolated, and that meant that they were not
playing the dominant role in day-to-day abuses of the regime.
As a consequence, as I think the coalition forces have
recognized, many of those police officers actually can be
retrained and placed on the force. They will, however, need
significant international assistance. One of the things that
we're seeing today is the difficulty and the time-consuming
process for the coalition forces of recruiting civilian police
advisors from various allied countries in significant enough
numbers to actually spread around a country of this size, and
to reestablish the police forces.
Within the courts as well, many of the judges need
retraining, but again, to the extent that they were not part of
the security court apparatus, have the ability and the
credibility to remain on the bench, with that retraining.
One of the lessons that has emerged from many of the cases
of prior transitions over the last couple of decades is simply
the need to recognize that this is going to take a long time.
Recreating a legal culture, changing the way courts and police
and prison officials function is not going to happen in 6
months or a year. It's going to take a number of years.
It's going to take substantial resources for training. It's
going to take substantial resources for oversight and
monitoring. It will probably require the insertion of
international advisors, if not in an executive authority
fashion as we've seen in Kosovo and East Timor, then at a
minimum at the courts, at the police stations, at the prisons,
with the ability to oversee and keep an eye and inform the
process as it goes forward.
The last point that I would mention is the imperative of
dealing with the question of the major crimes of the past
regime. The entire process of re-standing up their criminal
justice system won't have credibility in the eyes of the Iraqi
people if this issue isn't addressed as well, and on this last
point, it will require several tiers of activity.
The major war crimes cases, I would submit, can only be
undertaken with substantial international involvement and
participation in a special tribunal for major crimes. Whether
that's a hybrid tribunal that includes both Iraqis and
outsiders--and I would advocate that over any kind of a wholly
internationalized process, again for the reasons of ownership
we've discussed--that will only touch the tip of the iceberg.
Separate from major crimes under international law, like crimes
against humanity, there will be large numbers of cases that
will be heard for regular crimes in the Iraqi criminal courts,
and those will need to be monitored carefully.
Last, in addition to the vetting and trials, there is
arguably a role for the truth and reconciliation process that
was mentioned in the prior panel. This can allow a larger
number of Iraqis to deal with these abuses in ways that the
courts will never be able to, and to come together, as was done
in South Africa and elsewhere, to examine how these things
happened, and to develop a blueprint for what kinds of
responses are appropriate--both in terms of penalizing and
memorializing the past as well as in terms of steps for the
future to build a structure in which these abuses cannot recur.
Senator Feingold. I thank the panel. I thank both the
chairmen very much.
Senator Cornyn. Thank you, Senator Feingold. Senator
Chafee, do you have any further questions?
Miraculously we were able to complete our second panel
without being interrupted for votes. That probably means a late
night for us, but that's all right. At least we were able to
get through the testimony of the witnesses.
I want to thank the members of the second panel, as I did
the first, for your testimony both oral and in writing, your
written statements. I think today's hearing has helped fill a
very significant void, and hopefully we'll begin a certain
conversation that I think needs to take place about this very
important subject, one that will hopefully give democracy an
opportunity to begin, once we secure the countryside and
establish the rule of law and some independent judiciary, but
this has been a very important contribution to that effort. I
want to congratulate and thank each one of you.
I want to thank certainly the chairman of my full
committee, Senator Hatch, and obviously the chairman of the
Senate Foreign Relations Committee, on which both Senator
Feingold and Senator Chafee serve, for their help. I want to
tell Senator Chafee and Senator Feingold how much I appreciate
their cooperation, as well as that of their staff. As always,
it's the staff that does all the heavy lifting, and I want to
express publicly my appreciation to all of our staff for the
good work that they've done to make today's hearing possible.
Finally, let me just close by saying that again, if there's
any other documents that anyone would like to make part of the
record, we'll leave the record open till July 2, and it could
be that members of the panel, even those who were not able to
be here physically today, would like to submit additional
questions in writing, and I hope you would be open to that.
With that, let me say thank you very much, and the hearing
is now adjourned.
[Whereupon, at 4:39 p.m., the hearing was adjourned.]
A P P E N D I X
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Transitional Justice in Post-Saddam Iraq
The Road to Re-establishing Rule of Law and Restoring Civil Society
A Blueprint \1\
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\1\ Report of the Working Group on Transitional Justice in Iraq,
and Iraqi Jurists' Association (March 2003). A complete copy of the
report, which contains appended material not printed as part of this
hearing transcript, has been placed in the committee's permanent files.
---------------------------------------------------------------------------
----------
I. Executive Overview
BACKGROUND
The Working Group on Transitional Justice of the Future of Iraq
Project (Working Group), in cooperation with the Iraqi Jurists'
Association, commenced the development of this Transitional Justice
Project in meetings starting in July of 2002.
Comprised primarily of prominent former Iraqi judges, lawyers and
law professors, the Working Group embarked on this project in
consultation with international experts in the areas of international
criminal law, truth and reconciliation, post-conflict justice and
military reform.
These jurists came together with a common purpose and a singular
objective. The common purpose was to assert that in order to achieve
civil society in a future post-Saddam Iraq, it must be founded on the
principle of respect for the rule of law. Their singular objective has
been to identify and document the necessary procedures, mechanisms,
rules and laws to initiate the transformation of Iraq to a society
governed by the rule of law.
PREMISE
There are two primary aspects for the concept of the rule of law.
The first is that all persons are accountable under the law regardless
of their rank or position in the country, including the head of state.
The second is to provide the citizens a credible means to address
legitimate grievances and to avoid self-help justice characterized by
acts of vengeance.
At the outset, it was universally recognized that the foundation
for a society governed by the rule of law is an independent judiciary.
By contrast, the government of Saddam Hussein went to great lengths to
subvert each of the major powers of state (ie. legislative, judiciary
and executive) to the central authority of the president through the
Ba'ath party apparatus.
The role of an independent judiciary cannot be over-emphasized,
particularly in a society where individual rights and freedoms have
been trampled upon so comprehensively as they have been in Iraq under
Saddam Hussein.
VISION FOR THE FUTURE
The vision of the Working Group for a future Iraq is one founded on
the notion that the laws and institutions of state must be restructured
and reformed to serve and protect the interests of its citizens. This
is in stark contrast to Saddam's practice of manipulating every
instrument and agency of state to protect and serve his regime. In
order to re-establish civil society in Iraq, there must be a clear
departure from the past and a clear focus placed on the welfare of the
Iraqi people.
II. Transitional Justice Plan
This Transitional Justice Plan is aimed at transforming an unstable
and chaotic state, caused by a dictatorship with a legacy of gross
human rights abuses, to a democratic pluralistic system which respects
the rule of law.
Transitional justice in the context of Iraq today demands sincere
efforts to create the environment of trust and confidence in a new
system, particularly a judicial system which establishes the rule of
law in all of its meanings. This includes the general public's respect
and confidence in the legal system to resolve disputes, prosecute
crimes and also the important task of holding all people accountable
regardless of rank or position.
In the case of Saddam Hussein's regime, the prolonged, widespread
use of terror and violence against the Iraqi people requires a
systematic and comprehensive approach to transitional justice. Such an
approach will necessarily have to deal with the past crimes of the
regime as well as to proactively create the environment for a future
which respects the rights of all Iraqi citizens with coherent laws and
reformed institutions.
Addressing the regime's crimes through open and fair trials for
those suspected of war crimes, crimes against humanity and other
serious abuses is a cornerstone of this plan. In addition, Truth
Committees with a mandate to discover the truth, establish a record and
disseminate this information on the national and international levels
are proposed. Victims' compensation mechanisms are recommended as a key
element in the effort to inhibit potential public demands for
vengeance.
Building a future on the basis of respect for the rule of law
requires a thorough review of the system of laws left behind by this
regime to identify, remove and/or replace those provisions which
violate internationally recognized basic human, civil and political
rights. Beyond reforming the laws, major reforms are also required for
key institutions to re-establish their roles to protect and serve the
public in contrast to their current capacity to protect and serve the
regime of Saddam Hussein.
In parallel with these reforms and the truth, accountability and
reconciliation processes, a far-reaching program to educate and re-
train professionals in various fields is needed to promote basic values
of public service and protection of individual rights. An additional
component to the education program is to raise public awareness of the
essential rights and responsibilities of citizens building a civil
society in all spheres of life, including schools, colleges, the media
and other public forums for the long-term transformation of the
institutions and society in general.
The following sections are concrete recommendations and draft laws
in each of these important areas:
A. DEALING WITH THE PAST
It may be impossible for Iraqis to confidently and boldly face the
challenges of an uncertain future, without first taking a hard, sober
look at the past decades under Saddam's rule and thereafter directly
addressing the fallout from the widespread crimes and repressive
policies which are the hallmark of his regime. Re-establishing the rule
of law and preventing individuals or groups from resorting to mob-
justice requires a genuine, meaningful process to identify, prosecute
and hold perpetrators of crimes accountable for their actions.
Beyond the major crimes, an active truth and reconciliation process
is required to identify, record and disseminate information about what
transpired under this regime. Additional remedies other than
deprivation of liberty such as personal payment of victims'
compensation, community service and lustration mechanisms are available
for those offenses which do not rise to the level of major crimes.
1. Truth, Accountability and Reconciliation
a. Prosecution v. Truth Committees
The Iraqi regime's crimes against humanity are some of the worst in
world history. Although, they have been amply recorded, they are
extremely difficult to quantify with any precision.
Having established this fact, it remains necessary to give hope
even to some of the perpetrators of less serious abuses. This may be
done by a plea bargain offering amnesty for those who defect, or expose
the regime's crimes and the persons involved. Such an offer can be made
pursuant to law No. 23 of 1971 of the Criminal Procedure Code. (Note--
all code references refer to the Iraqi legal codes unless specifically
indicated otherwise) Article 29 of this law states:
1. The investigative judge may offer amnesty with the approval of
the criminal court for reasons set forth on the record in
the case against any person accused of wrong doing with a
view to obtaining their testimony against other
perpetrators provided said accused presents a complete,
truthful account. If the offer is accepted, the testimony
shall be heard and the accused shall retain his/her status
until a verdict is reached in the case.
2. If the accused does not present a complete, truthful account, he/
she shall lose his/her right to amnesty by decision of the
criminal court.
3. If the court finds that the account presented by the accused
offered the amnesty is complete and truthful, it will cease
all criminal proceedings and release said accused pursuant
to the terms of the amnesty.
Tenets of the Islamic law may also be used in this connection,
especially those that allow the victim or the victim's relatives to
forfeit their rights against the perpetrator upon reconciliation, in an
act of Forgiveness.
However, it must be made clear to all Iraqis that the law shall be
firmly and severely applied against those who resort to score-settling
or vengeful acts irrespective of their status. The point must be
emphasized that the principles of transitional justice shall be
uniformly enforced against offenders in fair trials where the deserving
parties shall be justly compensated for damages.
b. Truth Committees
There is a strong link between truth and reconciliation committees
and the qualified amnesty of certain crimes to be later defined.
The truth and reconciliation committees are set up and their
functions are defined by order of a judicial council. They are to do
everything necessary to reveal the truth with regard to abuses that do
not amount to international or major crimes. These lesser abuses may be
so numerous that they cannot be prosecuted by courts of law. (A case in
point is Rwanda where more than 400,000 people were implicated in such
abuses, and their prosecution would have taken hundreds of years.) The
measures in question would involve admission of guilt. That is why the
aim of these committees is to arrive at the truth and consequently at
the higher objective of reconciliation.
For the truth committees to attain their goals, they need to do the
following:
1. Investigate claims formally and publicly reveal the truth about
past human rights violations and the individuals involved.
2. Contribute to justice by imposing sentences other than
deprivation of liberty, including amnesty for crimes
covered by such a move, compensation for damages. In the
event the case involves crimes beyond its jurisdiction or
there is a breach of amnesty conditions, it shall refer the
case to the criminal investigation committees which in turn
may send the accused to a court of competent jurisdiction.
3. Induce confessions of responsibility and guilt. Reconciliation
and amnesty is thus not tantamount to acquittal.
4. Involve and satisfy the concerns of victims, achieve
reconciliation and renounce vengeance, vendettas and
violence.
5. Link amnesty to the work of truth committees in bringing about
reconciliation. Amnesty shall not extend to those who do
not confess responsibility for abuses and publicly
apologize for their misdeeds. This is similar to what
occurred in South Africa.
Decisions of these committees must be subject to appeal. The truth
committees should also have the power to take such decisions in
addition to imposing sentences not involving imprisonment.
In each Appeals Court District, one or more truth and
reconciliation committees may be set up as required. They are to
comprise three members headed by a judicial officer. The members must
be qualified and known for their integrity and good reputation in the
community.
c. Reconciliation Mechanisms
To bring about reconciliation and to encourage people toward
acceptance, tolerance and compassion rather than vengeance, structures
must be in place that are in accord with local traditions, customs and
norms.
The reconciliation project is important and its objective is to
promote a favourable climate for normal life in a society that has been
stunted by dictatorship. It is designed to help society move forward
towards stability and democratic transformation.
A large number of people will likely be implicated in abuses due to
the nature of Saddam's contradictory and complex policies which
required individuals to demonstrate their loyalty to the regime by
transgressing on the rights of others. To punish this huge number of
abuses, assuming the necessary possibilities are available to do that,
is to risk undermining the existing social and economic set-up
threatening the state itself. This is why the work undertaken in
implementing the transitional justice and reconciliation project is so
essential. It, therefore, requires technically oriented individuals who
are committed to a pluralistic, democratic society which respects the
rule of law.
The main objectives in a reconciliation process that can assure the
uniform dispensation of justice and set the foundation for the rule of
law are:
1. Build confidence in the new administration and cooperation with
it. This may be realized through the following:
Granting special priority to the issue of
compensation. Fair and just compensation should be
granted to victims without discrimination. Failing to
do so will invite resentment, protest and eventually
rebellion if the issue is manipulated by opponents of
the new administration. Moreover, a fair settlement of
this issue will help victims overcome their vengeful
impulses towards the perpetrators and their relatives.
Compensation is a pivotal element of reconciliation.
Raising the standard of living for civil
servants. Conditions for living a decent life have been
denied Iraqis under Saddam's regime. A nation-wide
drive will be required to raise the standard of living,
particularly of civil servants, as a guard against
social corruption, thereby attacking its economic
causes. This will help maintain self-interests within
the accepted moral norms and remove any contradiction
between private and public interests.
Establishing legal safeguards to deter the
new administration from imposing restrictions on
individual freedoms. To rule out any form of
authoritarianism in a post-Saddam Iraq, institutions
and structures with appropriate checks and balances
must be in place. Above all is the requirement for an
independent judiciary. The more independent the
judiciary is, the more just and effective it will be.
2. Highlight those tenets of Islamic law (Shari'a) that emphasize
virtue, tolerance and forgiveness. Use may be made of early
Islamic experiences which applied the principles of piety,
justice, honesty, tolerance and respect for differences
rather than ethnic, sectarian, religious, class or clan
discrimination as practiced by Saddam's regime and the
Ba'ath party. People need to be reminded that Islam could
not have built a vast empire in its heyday if it had not
espoused justice and virtue as its foundation. This policy
will effectively contribute to preventing score-settling
and vendettas in the wake of regime change.
3. Make use of traditional conventions and structures like tribal
values to maintain order and ward off anarchy in the
interests of reconciliation. This is despite the fact that
these tribal values were encouraged by prior repressive
regimes, nonetheless, they need to be acknowledged in the
transition to a pluralist system and may even be a useful
vehicle for enfranchisement of otherwise disenfranchised
individuals or groups.
d. Prosecution
Holding Saddam Hussein and his cohorts responsible for their crimes
against the Iraqi people requires prosecution under Iraqi penal codes.
The salient issues in this regard are:
(i) Legal Basis for Prosecution
How to serve out arrest warrants.
How to conduct the investigation and file charges.
How to address the question of immunity granted to
Iraqi officials under the existing constitution.
(ii) Court Structure
Which courts shall hear which types of cases?
(i) Legal Basis for Prosecution
Iraqi law No. 23, 1971 of the Criminal Procedure Code sets forth
the nature of the proceedings relevant to criminal cases. Article 1
states that it is permissible to set a criminal case in motion by an
oral or written complaint presented to an investigative judge, a
prosecutor or a competent official at a police station. Such a case can
also be initiated by an ``Information'' presented to the public
prosecutor. On the basis of this Information, an investigation is
opened. The investigative judge shall take such necessary steps as
issuing a summons, search warrants and arrest warrants against the
suspect(s). In the case of arrest warrants, the accused shall be
described in detail by name, title, identification (card/number),
physical description, place of residence, occupation, the type of
alleged offense, the relevant penal code and date of the warrant.
The question then becomes, in the event there is no complaint filed
against an official, particularly in the event there is a coup or an
occupation by outside forces, can the investigative judge serve an
arrest warrant and determine the nature of the suspect's custody/
detention based merely on suspicion?
The answer is yes. Article 103 of the Criminal Procedure Code
allows the arrest of any person suspected on reasonable grounds of
having committed a major crime or an intentional felony without the
need for a formal complaint. Precedent shows such suspects have been
put under arrest by investigative judges pending inquiry into their
alleged crime or involvement in a criminal act. Investigative judges
can invoke this provision to arrest and question state officials
without an initial summons or complaint being formally lodged against
them.
As for the legal mechanism required to serve these arrest warrants,
it is proposed that a Judicial Council be established, comprised of at
least 9 members selected from judges forcibly retired in Iraq, those in
exile and others presently in the Kurdish region. This Council can
serve as a nucleus of the judiciary in a post-Saddam Iraq, expanding to
include judges of integrity inside Iraq, after regime change. The
Council shall have all the powers of the judiciary as defined in the
future interim constitution or basic law.
The Judicial Council shall select a presiding judge who may be the
same person as the presiding judge of the Cassation Court. The Council
shall appoint investigative judges to investigate alleged crimes by
officials of Saddam's regime under the Iraqi penal code. The Council
shall also serve to vet members of the judiciary with authority to
retire judges with questionable political backgrounds or integrity.
Vacancies created by such actions may be filled by recalling retired
judges of sound character and lawyers known for their competence. The
Judicial Council may assume its constitutional and legal duties in the
interests of justice during the transitional period.
It is proposed to initially confine all arrest warrants to top
officials of the regime, including its head, his immediate associates,
deputies, Revolutionary Command Council (RCC) members, ministers,
regional leadership members, heads of security agencies, army chief of
staff and corps commanders.
(ii) Court Structure
Special Courts for International and Major Crimes
Criminal trials by no means imply automatic conviction of the
accused. They are legal proceedings designed to arrive at the truth.
The accused is innocent until proven guilty. These trials shall be
instrumental in revealing the truth and eliminating the impulses for
vengeance and violence. In this sense they are an effective
contribution to transitional justice. The truth will lead either to
conviction of the accused when proven guilty or to acquittal or to
dismissal for lack of evidence.
Before holding criminal trials competent investigative teams,
presided over by investigative judges, should be in place. They are to
investigate officials suspected of war crimes, genocide, torture and
crimes against humanity. There is no statute of limitations for the
prosecution of these crimes, nor are they covered by any amnesty. The
investigation teams should be supported by international experts while
making use of facilities offered by specialized institutes to uncover
and preserve incriminating evidence and other areas of expertise.
The measures taken by these teams are governed by provisions of the
1971 Criminal Procedure Code in line with all subsequent procedures by
courts applying the same law. The investigation teams may present the
respective cases to investigative judges for the issuance of arrest
warrants, summons, and search warrants pursuant to the above-mentioned
law. Alternatively, investigative judges may preside over these teams
to facilitate the task of issuing the appropriate court orders.
Crimes not falling in the international crimes category specified
above but covered under Iraqi penal codes may be investigated in the
typical manner with magistrates. There may be a pressing need to
increase the number of competent prosecutors to investigate these
crimes due to their large number.
Criminal courts in Iraq are classified according to the nature and
gravity of the crime. There are criminal courts dealing with offences
punishable by more than five years in prison. There are misdemeanor
courts that deal with offences carrying a maximum penalty of five-year
imprisonment.
Saddam Hussein and his top officials will be tried for crimes that
do not fall under either of the above two categories. Theirs are grave
international acts involving war crimes, genocide, torture and crimes
against humanity. There is neither a statute of limitation nor amnesty
for these crimes.
Saddam Hussein and other officials at the highest echelons are to
be indicted for three types of crimes:
1. The first are grave international crimes that come under
international criminal law.
2. The second are major crimes codified in the Iraqi penal code.
3. The third are lesser crimes and offenses covered by Iraqi penal
code.
(The third type is addressed in the section on truth and
reconciliation committees.)
As for the first type, they are crimes that can be dealt with by
one of the following:
An ad hoc international criminal court like those set up for
former Yugoslavia and Rwanda. The maximum penalty that can be
meted out by these courts is life imprisonment. They are formed
by a resolution of the UN Security Council. (Note: the newly
created International Criminal Court is unfortunately not an
appropriate venue to prosecute these crimes as its mandate is
limited to crimes committed after July 2002. The vast majority
of crimes committed in Iraq occurred well before this date.)
A hybrid criminal court consisting of Iraqi and international
judges. This court, too, would be set up by a UN Security
Council resolution, and it may also be barred from passing
sentences involving the death penalty in accordance with the
provisions of the UN resolution. Such a resolution is likely to
be consistent with the provisions of international criminal
law, which was the case with the Yugoslavia and Rwanda courts.
A special national criminal court comprised of Iraqi judges
according to law No 23 of 1971 on Criminal Procedure Code. It
may be made up of a presiding judge and two associates who can
seek counsel from international experts or have international
judges acting as experts. The overwhelming majority of Iraqi
jurists are in favour of this kind of court as it will ensure
that the trials have a national character and forestall any
criticism from local, Arab and regional quarters. The
difficulty this court might encounter is related to the fact
that under the most recent applications of international
criminal law, the maximum penalty for these crimes has been
life-imprisonment. The maximum sentence under the Iraqi penal
code, however, is death for major crimes such as pre-meditated
murder. It would be gravely unjust to prosecute murderers with
the possibility of a death sentence, while war criminals and
persons accused of crimes against humanity face only a life-
sentence. One solution to this dilemma would be to allow for
the use of the death penalty for those convicted of one or more
of the four major international crimes. Another solution would
be to have the appropriate/legitimate legislative body abolish
capital punishment in the Iraqi penal code to be consistent
with the recent applications of international law.
Domestic Criminal Courts
The second type of crimes is covered under the Iraqi penal code.
With over 34 years of Ba'ath rule in Iraq, numerous and heinous crimes
have been perpetrated. The number of perpetrators may run into the tens
of thousands. These crimes come under the jurisdiction of Iraqi
criminal courts. These courts are limited in number and may not be able
to cope with all of the potential cases, without taking an unreasonably
long time to resolve. Such delays may be a disservice to justice. That
is why additional criminal courts will need to be set up in the
respective Appellate Court districts, even if they are provisional and
last only until the major caseload is handled.
A flow chart is attached which depicts a sample organization for
these courts and commissions. (See Appendix A1/12)
e. Defenses: The Problem of Immunity Against Prosecution
Under Iraqi law, immunity does not pardon or annul a crime. It
merely suspends legal proceedings for specific and special reasons.
Lifting this immunity implies that the special reason for the
restriction is removed and things are back to normal. In other words,
the person enjoying immunity shall be subject to legal proceedings like
any other person.
The 1970 interim constitution grants this immunity to the
president, RCC members, ministers and Ba'ath party regional leadership
members. Abolishing this constitution by the competent authority after
regime change will automatically lift this immunity and restore
normality. The question of military immunity is addressed in the
section on institutional reform, where it is proposed that immunity for
members of the military be lifted and that they be treated as
civilians.
f. Amnesty
There are two kinds of amnesty. There is a general amnesty covering
all perpetrators of crimes irrespective of their gravity and the
persons involved. Such an amnesty has been applied in certain countries
like Sierra Leone in 1999 and before it Argentina in 1983. It was
unsuccessful as it had failed to restrain people's vengeful impulses
and bring about the desired sense of justice. A general amnesty will
not contribute to reconciliation in Iraq where the situation is much
more complex. Objective conditions rule out this kind of amnesty in
favour of other more relevant world experiences.
The amnesty deemed suitable for Iraq would be a qualified amnesty
covering only specified abuses. It has been suggested that it should
cover lesser offenses and infractions specified in the Iraqi criminal
law. In other words, amnesty should be extended to crimes punishable by
a maximum of five-year imprisonment. Other crimes, including criminal
acts with international implications, should not be covered by the
envisaged amnesty unless all of the victims or the victims' relatives
settle for reconciliation, restitution according to local customs, or
compensation for damages.
For the amnesty law to serve the purpose of reconciliation it
should be contingent upon:
1. The persons amnestied turning themselves in within a specified
time period.
2. The persons amnestied cooperating with the truth committees and
fully and completely confessing their crimes.
3. The persons amnestied giving a public apology to the victims and
the community as a whole.
4. The persons amnestied pledging not to repeat their misdeeds in
the future.
This kind of amnesty has proved to be a success in South Africa.
The essence of the amnesty is to acknowledge responsibility for
previous abuses and cooperate with the truth committee investigators.
On the basis of the findings, the committee will decide whether the
perpetrator will be amnestied or not for reasons to be recorded in the
investigation file.
2. Victim's Compensation and Reparations
Compensation to the victims of the Ba'ath regime since 1968 is a
major component of the reconciliation process. It will soothe the
victims' sense of having been unjustly treated and restrain their
vengeful impulses while promoting trust between them and the new
administration.
The regime's victims include those who lost loved ones in its
prisons, were arbitrarily detained and tortured, lost their jobs, were
expelled or forced into exile, had their property confiscated, were
physically or psychologically scarred or have suffered significant
injury; all deserve to be compensated for damages. (See Appendix B/21
for Draft Law enabling victim's compensation)
The two main kinds of compensation are:
1. Monetary compensation which may take two forms:
a. Monetary compensation for confiscated real or personal
property as a consequence of displacement, exile or unjust
decrees.
b. Monetary compensation for damages sustained as a
consequence of the regime's actions, including persecution,
murder, torture, imprisonment and detention on false charges.
2. Non-tangible compensation which may also be of two types:
a. A formal apology to the victim or their relatives by the
perpetrators if their abuses are covered by the amnesty or if
the victim or their relatives accept such a gesture.
b. A public registry listing of the victims to remind future
generations of the regime's crimes and observing a certain day
to commemorate the victims.
3. Recovery of Misappropriated Public Funds
The former regime consistently dispersed and dissipated public
funds and deposited them in accounts and entities belonging to persons
and private companies in order to conduct illegal businesses which
serve the illegitimate purposes of this regime, unconcerned about the
fate of this money so long as the persons in possession of these funds
and property obey the orders of the regime.
As public funds are part and parcel of a nation's wealth and
therefore all means and international contacts should be made to
recover it, specific laws are recommended to criminalize the acts of
persons in possession of this money and those who have failed to return
it in the legally specified time to do so.
The laws call for all those in possession of misappropriated public
funds/assets to return those funds/assets within 3 months from the
issuance of this law. It is proposed that those who do return the
funds/assets within this timeframe will be entitled to a 10% reward (of
the value of the property). Those who do not return the property within
this timeframe will be subject to prosecution. (See Appendix C/22 for
Draft Law)
In addition, it is recommended that a commission be established to
research and identify all companies who profited from doing business
with the prior regime. This list should be published, and it would be
up to the Iraqi electorate to determine what to do with these
companies: whether to prosecute, blacklist, disgorge their ill-gotten
profits or any other measures deemed appropriate. For the sake of
posterity, it should be well known which businesses profited from their
association with the prior regime.
4. De-Ba'athification
a. Revocation of Ba'ath Party Privileges
Since it seized power in 1968, the Baghdad regime has been granting
privileges and lavish perks to members of the Ba'ath party from the
public treasury without regard to the public's welfare. These
privileges have been granted under laws passed by the regime, as
handouts from Saddam Hussein himself or by arbitrary expropriation of
public as well as personal funds and property.
There are ample examples of these excesses such as the confiscation
of property belonging to deported or exiled individuals, distribution
of housing plots, large financial rewards, houses, luxury cars, and
other special prerogatives.
A draft law was drafted abolishing these privileges. (See Appendix
D/31)
b. Memorialize Dark Ba'ath Era for Future Generations
The legacy of Saddam and his regime must not be lost on future
generations of Iraqis. It is proposed that a monument for the regime's
victims be built in every Iraqi city with a national museum of the
regime's inhumane practices with a chronicle of the brutal methods used
by its security agencies. Notorious prisons and torture chambers should
be preserved as perpetual memorials for the victims of Saddam's crimes.
B. BUILDING THE FUTURE
1. Legal Reform
Laws affecting human rights and freedoms have been turned upside
down and radically amended to assist the regime's violation of these
very rights. It is, therefore, imperative to review major laws with the
aim of restoring people's rights and dignity, including their right to
a decent, secure life in their own country. Iraqi jurists in
conjunction with international legal and human rights experts, have
embarked on this project and make the following recommendations:
a. Criminal Law
The objective of criminal legislation is to maintain social order
and protect public safety consistently and uniformly. By contrast, the
Iraqi regime introduced amendments to the Iraqi penal code No 111 of
1969 in a manner contrary to human rights in order to secure its own
survival.
In both its legislation and its actions the Iraqi regime has
violated (and continues to violate) every aspect of humanitarian law as
set forth in international covenants and the Universal Declaration of
Human Rights. This includes imposing or increasing sentences with the
death penalty without regard to the well-established legal principles
that:
There is no crime and therefore no punishment without a
specific text in the penal code.
Criminal laws cannot be retroactively applied.
The accused is innocent until proven guilty.
Sentencing decisions should be made specific to the
individual defendant.
There should be no more than one punishment for the same
crime.
The regime has also violated the basic rights of the accused,
including the ban on torture and arbitrary detention, the right to
compensation for damages, and freedom of speech.
The general consensus of the commentators is that the original
Iraqi penal code and Criminal Procedure Code were drafted by a
distinguished group of jurists, legal experts and judges. However,
successive amendments were introduced by Saddam's regime which violate
basic human rights and social norms. The main purpose for these
amendments was to ensure the survival of the regime.
Nonetheless, the entire criminal code needs to be overhauled under
a legitimate process that is in keeping with the times and
technological advances. However, this process should be the result of a
thorough study and examination by legal experts who should undertake
this task in a stable environment with a functioning parliament
(legislative body) under favourable conditions for enacting a modern
criminal code.
In the meantime, the offensive amendments which violate basic human
rights should be dealt with in the interim period. The majority of the
commentators are in favour of keeping the existing penal code and
Criminal Procedure Code after repealing all amendments and
modifications by the authority empowered to enact laws during the
transitional period.
Specifically, it is proposed to repeal all provisions regarding
political offences in articles 20, 21 and 22 of the penal code.
It is also proposed to amend the Criminal Procedure Code to give
defense lawyers the absolute right to be present and to see all papers
related to the case at every phase, and to visit their clients in
custody without interference by any state authority.
In culmination, a bill has been drafted repealing all amendments in
question. (See Appendix E/28)
b. Military Penal Codes
Military penal codes are marked by two main characteristics:
1. Immunity and extensive powers.
Law No 106 of 1960 on Service of Process has turned members
of the military into a privileged class. It grants them
immunity against summons and legal proceedings by civil courts.
Indeed, it almost absolves them of all liability. A member of
the military can be apprehended only when committing a
witnessed crime. Even in this case the accused shall be handed
over to the nearest military authority. The accused can be
brought before a civil court only with approval of the minister
of defense or an official authorized by him. Also, military
courts have extensive jurisdiction. (See Appendix F/8)
2. Severity of punishment.
The military penal code is also marked by its harsh penalties
in matters related to security of the regime or its military
and repressive agencies. Military courts have been granted
extensive powers although their member judges generally lack
the necessary legal qualifications to decide cases referred to
their courts.
The military penal code provides for severe penalties that
are out of tune with modern criminal practice. Iraqi military
penal codes are a fairly realistic reflection of the ``carrot
and stick'' policy pursued by the regime. Members of the
military enjoy extensive privileges and immunity against
prosecution for crimes committed against civilians. On the
other hand, they are subject to extremely harsh penalties for
offences related to security of the regime and its military
institutions.
Recommendation
1. The jurisdiction of military courts is dealt with under
Institutional Reform-Judiciary.
2. With regard to immunity, there is no justification whatsoever for
members of the military to be more privileged than others
or be elevated to a distinct class from the rest of the
people. This immunity must be revoked.
c. Nationality law
Since the coup of 8 February 1963, Iraqi citizenship matters are
governed by law No. 43 of 1963 repealing law No. 42 of 1924 and its
amendments.
The general consensus is that the existing law has introduced
unjust provisions that have resulted in the tragic deportation of tens
of thousands of Iraqis after revoking their citizenship. That is why
this law constitutes a flagrant violation of human rights pursuant to
international covenants and the Universal Declaration of Human Rights.
Article 15 of the latter states that every individual has the right to
citizenship. It also states that a person cannot be arbitrarily denied
citizenship or the right to change it.
It is agreed that this law and its amendments cannot remain
effective after a regime change as hundreds of thousands have been
victimized by it. It should be repealed in its entirety while
recognizing the naturalization decisions taken under it.
A review should be undertaken to compensate victims and restore
Iraqi citizenship to those who have unjustly lost it. There should also
be a watchdog entity established to oversee implementation of the new
law with a view to guaranteeing people's rights.
Work in this connection has culminated in drafting a new
citizenship law taking into account the problems caused by previous
laws as much as possible until a new, well-considered citizenship law
is adopted by the prospective Iraqi parliament. It should be noted
that, unlike most other nationality laws in the region, this proposed
law is gender neutral. (See Appendix G/29)
d. Administrative law
The Baghdad regime's policy since it seized power has resulted in
rife corruption in the state apparatus. The main causes for the corrupt
bureaucracy may be summed up in the following:
1. Politicization of administration.
2. The economic squeeze and low wages.
3. Absence of administrative, legal, parliamentary and public
controls over the bureaucracy.
4. Militarization of the administration.
Recommendation
To uplift the state bureaucracy to the level of democratic
transformation in Iraq during the transition period, a host of reforms
must be carried out, including:
Repealing all laws and decrees that have politicized
administrative functions and terminating control of state
institutions by the ruling party;
Reviewing civil service and employment laws with incentives
encouraging honesty and integrity with an emphasis on the
concept of the ``public trust'' for civil servants;
Establishing administrative, judicial, public and
parliamentary oversight over civil servants;
Preparing a development plan for the administration of the
bureaucracy;
Identifying and dismissing all employees found to be
redundant, corrupt, or grossly negligent in their duties;
Selecting top civil servants who are highly qualified people
of unquestionable integrity to set an example for their staff;
and
Developing intensive plans to train civil servants at
various levels such as:
Introducing modern technology in administrative
work.
Promoting courteous interaction at all levels of the
system and renouncing condescending attitudes within the system
or towards the public.
Disbanding all state functions or positions related
to the Ba'ath party--including those of security officers and
operations run by that party in the state bureaucracy.
Reviewing all other laws governing the bureaucratic
function for further reform in line with the new democratic
era.
Considering the crucial nature of the transitional phase and the
fact that the Ba'ath party is primarily responsible for politicizing
and therefore crippling the bureaucracy, a bill has been drafted
repealing the ``leading party law'' No. 142 of 1974 and banning the
Ba'ath party itself. (See Appendix H/30)
e. Civil Law
The general consensus of the commentators is that the existing
civil law of 1951 has not experienced any radical change in
contravention of human rights. Maintaining this law will not be
detrimental to these rights, at least and until specialized legal
authorities are in place to re-examine the law and present relevant
recommendations.
f. Interim laws
These are laws expected to be required during the transitional
period to deal with immediate situations and needs. A body of legal
experts should be set up to examine these needs, which may be called
``Ad hoc Legal Committee for Drafting Interim Laws.'' The Judicial
Council may assist with this task during the transitional period.
Immediately after a regime change, it will be imperative to pass a
law banning the Ba'ath party and privileges enjoyed by it under the
``leading party law'' No. 142 of 1974 as it was used as a tool of
persecution and brutal repression.
2. Institutional Reform
The vital state institutions have undergone extensive changes in
their structure and functions dissociating them from the purposes they
were originally set up to serve. Their function changed from serving
and protecting the public to solely serving and protecting Saddam and
his regime.
This is why it is a critical manifestation of transitional justice
to reform these institutions and re-establish their basic public
services. Reform cannot be brought about by merely renaming the
institutions that supported the dictatorship. Reform demands
restructuring of these institutions and the laws under which they
operate to serve the public good rather than the repressive regime. The
most important institutions are the judiciary, institute of legal
education, security agencies, military and prison system to name but a
few.
a. Judiciary
Before the coup of 17 July 1968, the Iraqi judiciary was marked by
a measure of integrity, impartiality and commitment to the requirements
of justice. It enjoyed a certain degree of independence in fulfilling
its duties and making its rulings, which were characterized by the
principle of even-handedness, solid substantiation and profound legal
reasoning. These rulings would serve as precedents to be cited by
litigants and other courts alike.
Before the 1968 coup, the Iraqi judiciary ensured a modest level of
justice in the sphere of social order and individual rights. This was
the result of concerns by successive governments to uphold the
integrity of this vital sphere. There is no denying, however, that all
those governments were undemocratic and opposed to judicial scrutiny of
their political actions, including the legislative process and the
actions of the executive.
After the 1968 coup the Ba'ath regime introduced the notion that
there are no independent state powers except one political power
assisted by legislative, executive and judicial agencies to undertake
its responsibilities. This eliminated any notion of the separation of
powers (legislative, executive and judiciary) and turned all of these
powers into institutions controlled by one ultimate political power
under Saddam Hussein.
To eliminate any remaining role for an independent judiciary, the
Baghdad regime dissolved the Judicial Council which was headed by the
presiding judge of the Iraqi cassation court. It was re-invented as
``the justice council'' headed by the minister of justice who reported
to the President.
As a consequence, the Iraqi judge has become a mere functionary
following orders from the political power. The breakdown below
demonstrates the unparalleled fragmented nature of the current Iraqi
judiciary:
The Iraqi judiciary is divided into the following sectors:
i. The Iraq cassation court.
ii. The military cassation court.
iii. The internal security agencies cassation court.
iv. Special judiciary courts, which are divided into four
parts:
1. The revolutionary court.
2. Judiciary of party organizations. (Serious
judicial powers have been granted to party
organizations.)
3. Judiciary of ministries and security agencies.
(Many courts have been set up in key ministries and
departments like the interior, defense and security
agencies--intelligence, public security and special
security).
4. Judiciary of provisional courts.
v. Judiciary of the joint cassation court.
vi. Judiciary of special powers. (Judicial powers granted to
state functionaries, police officers and others.)
Each of the above judicial organs is completely separate from the
other, and they are in no way connected with each other. Each of them
is linked to a specific ministry or government agency. Each has its own
functions defined by its own laws.
Recommendations
Justice and human rights have been the first victims of this
decimation of the Iraqi judiciary. The transitional authority will have
the urgent task of restoring the authority of the Iraqi judiciary and
its former uniform structure as much as possible pending a more
detailed plan to ensure the independence of this branch and its
jurisdiction over all aspects of the legal system in Iraq. To this end
the following steps are proposed after a regime change:
1. Abolishing all special courts and powers granted to police,
security and intelligence officers as well as other state
functionaries. (See Appendix I/49 for Draft Law)
2. Keeping for the time being military courts and internal security
courts governed by law No 44 of 1941 on military court
procedures. These courts will be difficult to dissolve due
to the service laws involved and it will take some time to
review these laws together with the penal codes. However,
the jurisdiction of these courts can be restricted to only
enforcing the military penal code. Civilian criminal courts
shall have jurisdiction over all other crimes subject to
the provisions of any other penal code like crimes
committed by a member of the military against another or
against a civilian.
3. Incorporating all lower cassation courts into the Iraq cassation
court. A body should be created within its structure to try
crimes covered by the military penal code. This body may
co-opt an expert on the military penal code such as the
head of the legal department at the ministry of defense,
his counter-part at the ministry of interior, a legal
officer with a minimum of ten-years of experience or any
other officer whose participation is deemed necessary for
technical reasons.
4. Setting up a higher constitutional court to serve as a watchdog
over the constitutionality of laws, by-laws and decrees and
their accord with the provisions of the constitution and
international covenants of human rights, including the
Universal Declaration of Human Rights.
5. Setting up a judiciary council comprised of the presiding judge
of the Iraq cassation court, his deputies, presiding judges
of the lower cassation courts, presiding judges of the
appeal courts, presiding judge of the higher constitutional
court, his deputies, president of the state consultative
council, his deputies, chief of the prosecutor's office and
head of the justice department's inspectorate.
6. Amending the law No. 160 of 1979 on organizing the judiciary in
line with the transitional justice project while ensuring
total independence of the judiciary. (See Appendix J/50 for
Draft law)
b. Internal and Other Security Agencies
The Baghdad regime relies on special security agencies it created
which have no relationship to the conventional internal security
agencies operating in the Iraqi state when it was founded. These
special security agencies are: the general intelligence (mukhabarat),
special security, Fyda'een Saddam, the special republican guard, the
people's army, the emergency forces and the Al-Quds Army.
All of them are repressive agencies that have extensive powers and
their own prisons and detention centers. They used torture and
extrajudicial killing to terrorize the people.
The regular internal security agencies consist of the police
general directorate, the security general directorate, the traffic
police general directorate, the citizenship general directorate and the
border police general directorate.
These agencies have been in existence since before the British
occupation in 1918. After the occupation, the commander of British
forces issued a police statement No. 72 of 1920 setting out guidelines
governing police affairs. The internal security agencies developed
further, and police service and discipline law No 20 of 1943 was later
enacted to regulate their function. This law was more akin to the civil
service law than to the military service law; in fact, the civil
service law was its main source.
The internal security agencies have been militarized under the
Ba'ath regime and subjected to service laws similar to those of
military service and military penal codes. They have been granted
extraordinary immunity as is the case with military personnel.
Recommendations
Recommendations with regard to all of the ``special'' security
agencies are strongly in favour of disbanding them and liquidating
their assets immediately after a regime change as they will be
superfluous and irrelevant.
A draft resolution has been drawn up disbanding the special
security agencies. (See Appendix K/37)
To reform the relationship of the regular security agencies with
the public, it is proposed that a new motto be established: ``police in
the service of the people.'' These institutions should be re-built to
focus solely on the protection of social order, individual rights and
public safety. The laws governing these agencies should be reviewed and
transformed into civil laws.
The training and education of their personnel needs to be
redesigned to ensure they serve the purpose which they were originally
designed to serve. To ensure the people's freedoms and rights it is
equally necessary to abolish the immunity enjoyed by these agencies
under the Service of Process law No. 106 of 1960.
c. Military Service (The draft)
The Iraqi people, especially young Iraqis, have suffered tragically
as a result of the Baghdad regime's misadventures and wars with
neighbouring countries. Hundreds of thousands of young Iraqis have been
killed or disabled due to continued compulsory service in the army
which has consumed the better part of life for this age group.
An international protection force under the auspices of the United
Nations, after regime change, will allow Iraqis to use their creative
potential for building a new Iraq, especially the young people. The new
Iraq must be at peace with itself, its neighbours and the world
refraining from destabilizing the region while focusing on democracy
building. This requires the rejection of any thinking to build a new
war machine as it will be meaningless and incompatible with the
aspirations of a new democratic Iraq seeking peace and goodwill.
Accordingly, the commentators see no need for compulsory military
service. Instead there should be a professional army of volunteers to
defend the country against external aggression. A new Iraq belonging to
the community of democratic states can contribute to international
efforts to establish the principles of justice and to fight
international terrorism.
d. Prison System
Prison law No. 51 of 1969 was apparently passed within the
framework of a reasonable penal policy to turn the prison system into
an agency for reform and rehabilitation of its inmates. However, the
regime's practices, its manner of operating the prisons, and the
punishments meted out by the regime run counter to the aims of the
above law. Punishment under Saddam's regime serves as revenge rather
than reform. Amendments to the Iraqi penal code abound with
prescriptions for capital punishment for minor offences, albeit
primarily political offences. Indeed, the regime has introduced such
inhumane punishment as chopping off ears, branding, amputation of the
limbs and other prehistoric forms of punishment that are diametrically
opposed to modern penal policy. Inhumane treatment is widespread
against prisoners and detainees.
Recommendation
The following negative aspects of the prison law need to be
eliminated:
1. Solitary confinement as a punitive measure during which the
prisoner is denied regular meals.
2. Section 7 of the prison law dealing with political prisoners and
detainees, which grossly contradicts democratic practice
under the prospective new government. Self-expression and
opposition are by no means a crime punishable by law, and,
therefore, there should be no political prisoners. This
section must be repealed.
It is proposed to add the following new provisions:
1. None of the punitive measures laid down in the prison law may be
enforced without an inquiry. In the course of such inquiry
the prisoner is faced with the alleged offence and given a
hearing with the right to self-defense. There should be a
written record of the proceeding.
2. None of these punitive measures should entail delay of release
after serving the sentence passed or the order of remand.
3. Defense lawyers shall have the right to meet privately with the
detained or imprisoned defendant. Foreign detainees or
prisoners shall have access to their respective consulates
or the mission representing their country's interests.
4. No staff members of a public authority may contact any detainee
or prisoner without a written consent from the general
prosecutor.
5. Any pregnant woman prisoner shall be accorded special treatment
and medical care from the date pregnancy has become
evident.
6. Special treatment shall be accorded the mentally ill prisoner.
Upon determination of the prisoner's condition, he/she
shall be moved to a mental institution.
7. Release may be obtained for health reasons if it is established
that a prisoner has a life-threatening condition or the
prisoner's condition poses a threat to the lives of others
in prison. Release for health reasons shall be effected by
a decision of the general prosecutor with a copy of the
decision to the ministry of labour and social affairs.
8. Prisoner's relatives shall be informed if his/her condition has
become sufficiently serious.
9. Bodies of dead prisoners shall be turned over to their relatives
with a detailed report on the history of illness, the
nature of work on the day of death, the kind of food, the
date the prisoner was committed to hospital, the date when
the condition was first diagnosed, the specific nature of
illness, the last day a doctor examined the prisoner and
the date and time of death.
For a Draft law implementing these recommendation see Appendix L/
54.
e. Institute for Legal Reform and Training of Lawyers
There is at present a judicial institute affiliated with the
ministry of justice. It has two-year courses to graduate judges and
general practice attorneys. This institute can be developed to offer
three-year courses, including one or two years for practical training
in the work of judges and public prosecutors. Also, its curriculum
should be re-examined to be consistent with Iraq's future development.
Courses at the institute can be expanded to the training of lawyers
and legal personnel. As the institute is engaged in the training of
judicial personnel in general, a body specialized in legal reform at
the institute will be very relevant. Reform questions can be discussed
with competent legal personnel at the institute.
3. Proposed Constitutional Principles
Having universally accepted constitutional principles is important
at any stage of governance in Iraq. No state function can be fulfilled
by the various authorities without a constitution as the basic law.
Serious thought must given to the issue of constitutional principles
during the transitional period. Without these supreme rules ensuring
people's rights and defining their duties, transitional justice in Iraq
will be unthinkable.
Iraq's multi-ethnic, multi-religious and multi-cultural structure
has been further compounded by Saddam's sectarian policy. Working out
constitutional principles for such a country will be a daunting task. A
permanent constitution at this or any subsequent stage can only
deliberated with the full involvement of the public as well as all
political groups and personalities in post-Saddam Iraq.
The transitional stage will be better served with transitional
constitutional principles that will serve as a basis for the authority
of state powers and a guarantee of people's rights. Such principles
should be drafted by a team of experts--technocrats--specialized in
law, political science, sociology and economics.
Recommendation
It is proposed that the future transitional constitution or basic
law include the following principles:
1. Separation of the three branches (legislative, executive and
judicial) and defining the character of each branch, its
structure, duties and mechanism of discharging its
functions.
2. Recognition of Iraq's multi-ethnic structure comprising Arabs,
Kurds, Turkmans and Assyrians among other ethnic groups.
3. Recognition that Iraq is a multi-religious society, including
Islam, Christianity, Judaism, Mandaeim, Yazidism, and
religious communities like the Shiites, Sunnis, etc.
4. Commitment to international covenants ensuring human rights in
Iraq, including the Universal Declaration of Human Rights.
5. Upholding people's basic rights and responsibilities, including
safeguarding property and banning unlawful confiscation.
Equality in rights and duties and
prohibition against all forms of discrimination.
The principle that the accused is innocent
until proven guilty.
The principle of non-retroactivity of
criminal and economic laws.
Non-interference in people's private affairs
like the freedom of thought, faith, etc.
Prohibition of torture.
Commitment to other related humanitarian
principles.
6. Recognition of cultural rights and languages of all
nationalities.
7. Freedom of worship rites and religious freedom for all
communities.
8. Right of regular courts to oversee constitutionality of laws or
assigning this task to a constitutional court.
9. Maintaining the present administrative provincial divisions until
a permanent constitution is adopted, and state
constitutional structures are in place in the course of
democratic transformation.
10. Any other basic principles that contribute to stability without
controversy with groups inside Iraq.
It should be pointed out that any attempt to enforce any of Iraq's
past constitutions since 1925 will antagonize one group or another in
Iraq and provoke senseless disputes. The republicans refuse to
recognize the 1925 constitution; the monarchists refuse the republican
constitutions; and the Kurds do not recognize any constitution that
does not guarantee their right to federalism.
It will, therefore, be more practical to adopt a transitional
constitution drafted by competent experts. Such a constitution should
ensure the separation of the branches and protect human rights and the
basic norms of citizenship.
4. Recommendations for Authority in Transitional Phase
It should be emphasized that the basic principle for a transitional
authority in Iraq is that it should be comprised of Iraqis. The
qualifications should be established such that any person serving on a
transitional authority should have:
1. A solid track record of service to the country;
2. Sound moral character and unquestioned integrity;
3. No prior associations with Saddam's regime which might taint his/
her reputation; and
4. No prior involvement or even appearance of involvement with
criminal activities or other improprieties.
Furthermore, it is recommended that anyone with executive authority
in the transitional phase be ineligible for participating in the first
round of elections. Since one of the tasks of the transitional
authority will be to prepare for the first round of elections, it is
imperative there not be any conflict of interest issues.
In addition, the affairs of the state should be run by technical
experts (i.e., technocrats) in key areas. It is proposed that the
branches at this stage are as follows:
1. The Executive: Consisting of, first, a presidential
council which is proposed to be comprised of 3-5 Iraqi members
representing Iraq's diversified structure. Needless to say,
members of the presidential council must be people known for
their independent thinking, integrity, expertise and good
reputation in Iraqi society; and, second, a council of
ministers: comprising highly experienced Iraqi technocrats
known for their independent thinking and good reputation in
Iraqi society.
2. The Judiciary: Represented by a judicial council of high-
level judges. The council may be headed by the presiding judge
of the Iraq cassation court. Its membership may consist of the
presiding judge of the cassation court, of course, his
deputies, presiding judges of civil, family, administrative and
criminal courts, presiding judge of the higher constitutional
court, his deputies, president of the state consultative
council, his deputies, head of the judicial inspectorate, head
of the law drafting department and presiding judges of appeal
courts. The judicial council may be authorized to decide on all
matters related to judges like appointment, promotion,
allowances, retirement, etc. The presiding judge and members of
the judicial council are to have the same grade and privileges
as the president and members of the council of ministers. The
council is to have its own budget separate from that of the
justice ministry to ensure maximum independence of the
judiciary in the interests of justice and democracy in post-
Saddam Iraq. An independent judiciary is a solid guarantee for
the establishment of the rule of law.
3. The Legislative: The transitional period will be without a
parliament to pass laws. A safe arrangement on the path to a
democratic and just society is for both the executive and the
judiciary to jointly pass laws. Legislation at this stage
should not be left to the executive alone lest it establish a
monopoly in this sphere. In other words, the legislative during
the transitional period will be a combination of the
presidential council, the council of ministers and the judicial
council pending the formal approval of a permanent constitution
and development of constitutional institutions.
Possible Violence and Resistance to Change
Since it seized power in 1968 the Baghdad regime has surrounded
itself with different centers designed to tighten its grip on the
internal situation. These centers are a major part of an array of
potential factors that may trigger acts of violence and resistance to
the expected change in Iraq.
To preempt such potential risks these factors have to be identified
keeping in mind the situation cannot be totally controlled due to the
political minefields created by the Saddam regime. Effective action is
still required to minimize any losses that may be sustained as a
consequence.
The main risk factors and how to deal with them:
A. Sectarianism. Saddam Hussein has used every possible means to
ensure his survival in power. This has taken a heavy human and material
toll affecting all components of Iraqi society. Saddam Hussein has
always been aware how unpopular he is. To find support in the region
and within Iraq he has played the sectarian card in his policies and
official propaganda. He has been suggesting to Sunni army officers that
they are the first to be targeted in the coming change and that is why
they have to remain on his side for their own survival. His media has
been working 'round the clock to fuel sectarian discord with a view to
winning supporters at home and in the region.
Saddam's ploys to use the sectarian card for winning support at
home and in the region must be effectively countered by a plan focused
on exposing the dangers of sectarianism.
B. Involvement in Saddam's Crimes. To tie the fate of as many state
officials as possible to his own, Saddam has involved them in his
crimes as members of the Revolutionary Command Council, ministers,
security officials, military commanders or party commissars.
People involved in lesser abuses than war crimes, crimes against
humanity, torture or genocide under international criminal law, should
be given hope that they may be amnestied in a general pardon and
national reconciliation process. It will be also useful to cite article
129 of law No 23 of 1971 on Criminal Procedure Code concerning the
possibility of appeal bargains and amnesty to those who admit to their
abuses and provide information about other suspects in the interests of
a proper investigation. Such steps will give those people hope and
encourage them to defect.
C. Economic Benefits and Bribery. During his years in power Saddam
has created an army of beneficiaries, whether by perks or privileges to
officers serving in the republican guard and special republican guard
and other personnel in the security agencies, his body guards, etc.
Others are bought off by cash rewards distributed every now and then.
Contractors are bribed by lucrative deals. Even dissidents and
expatriates have been stigmatized with salaries, allowances and grants
to start up businesses. Others have been hired as consultants to
government oil companies.
The discourse to be adopted in this regard should be reassuring to
those who have legitimately benefited from doing business with the
regime, who have received payments for certain normal services and
those who have won contracts in clean bidding.
D. New Class. Saddam has created a new class of tribal chiefs who
have been given money, arms and limousines in return for controlling
their tribesmen.
Those tribal leaders can be won over through contacts they still
have with Iraqi exiles or by a clear message that they can keep their
privileges so long as they side with the people against dictatorship.
E. Score Settling and Vengeful Acts. Saddam Hussein and his cohorts
are guilty of war crimes, genocide, crimes against humanity,
extrajudicial killings, plunder, rape, torture, displacement and
unlawful expropriation of property. These atrocities have created
entire groups of victims impatient for revenge and score-settling when
the opportunity presents itself after a regime change with a possible
breakdown of security structures. That is what happened during the
March 1991 uprising. Actions by victims or their relatives are bound to
be accompanied by common criminal acts. After all, crime is a
phenomenon seen in all societies with various degrees depending on
economic, political, psychological, social and genetic factors. Iraqi
society is no different. It has its own criminals who are a product of
these conditions. Saddam's regime has further aggravated these factors
by its inhumane policies in all spheres. Indeed, it has released all
common criminals some of whom are likely to revert to their old habits.
The period immediately after regime change might offer these criminals
an opportunity to engage in acts of killing, plunder, looting, etc.
To foil people seeking revenge and the potential acts of common
criminals, it is necessary to take a host of decisive measures,
including:
1. Impose a 24-hour curfew on the first day to be gradually relaxed
according to the extent of security and order established.
2. Order all police forces to be on their guard and arrest all
offenders.
3. Organize military patrols by coalition forces in all major cities
to prevent lawlessness, especially against vital utilities
and key government facilities.
4. Instruct tribal and clan leaders to use their authority to
control rural areas.
5. Propagate the new laws and decrees via all mass media, including
the use of airplanes. A stern warning is to be issued
against any revenge acts targeting government officials as
a crime punishable by law. It should be made clear that
law, order and justice are a prime concern and that all
criminals against the people will be brought to trials.
6. Give explicit orders to the border guard and army units stationed
on the border to tighten their control and block all escape
routes that may be used by wanted criminals or for
intervention by other forces to cause disturbances in Iraq.
7. Make appeals to all hospital, ambulance, civil defense, water,
electricity and other utility personnel to immediately
report to duty.
8. Make appeals to all government employees and the public as a
whole to maintain law and order and protect state property,
including museums, public buildings and other facilities
against any acts of sabotage or vandalism.
9. Assemble investigation teams, truth and reconciliation committees
and criminal courts without delay in order to reassure the
people that the new administration will safeguard their
rights.
5. Public Education and Awareness of Human/Civil Rights
Legal awareness is lacking even among Iraqi intellectuals. The
reason is indifference by Iraqi society and disinterest by the state
towards laws as they have both been in the grip of despotism.
Awareness of laws and rights will help people shed the despotic,
dictatorial thinking in favour of tolerance, understanding the need for
public participation in governance as well as the peaceful transition
from one administration to another in government. People with good
legal understanding of their rights will be in a better position to
identify danger signs which run counter to the rule of law and
democratic practice. Law, after all, is the outcome of such practice
when it is enacted by democratically elected legislatures.
How can public awareness of their rights be promoted? It can only
be fostered by harnessing all required resources in society towards
this end. We have to start with the education system and the media as
well as laws that will give people a sense of security and ensure
justice for them. For this awareness to be in step with the new
reality, the laws that are passed must meet people's actual needs.
Considering the appalling state of culture and media in Iraq due to
the regime's policy, a forward-looking vision has to be developed for
Iraqi culture and media in terms of public awareness and methodology.
The Saddam regime has politicized culture and turned the media into a
propaganda machine serving its own purposes. That is why it is
imperative for the future Iraqi media to be independent and unfettered
promoting freedom of expression and transparency. The media will act as
a vox populi reflector and a watchdog over government actions and state
institutions. Another prerequisite of media and cultural work is free
access to information and educating the young Iraqi generation in a
spirit of tolerance and multiculturalism.
That is why it is important to focus on promoting legal awareness
as well in the curricula of journalism faculties and the media as a
whole. Teaching legal subjects will contribute to a public culture that
may serve as a mass education for democracy while excluding the culture
of violence and personality cult. Saddam's regime has undermined
rational, humanitarian education, misguided the young generation and
trampled such values as fair play and equal opportunity. Attention
should be paid to re-educate the young generation for its members to be
good, well qualified and scientifically equipped citizens capable of
safeguarding the people's democratic gains.
Iraq is the land of great civilizations that prospered in climates
of inter-cultural coexistence. To revive such positive elements in our
heritage, publications and mass communications should be free from all
forms of censorship. The private sector should be enabled to compete
with state-owned media, and this also goes for the arts in general as
an essential component of national culture.
The rule of law will be jeopardized in the absence of legal
awareness on the part of both government employees and the public. It
will be absurd for state laws to remain the domain of scholars and
experts. These laws should be part of the public domain for their
enforcement to be meaningful. (See Appendix M/66 for Draft Law to
Create Human Rights Organization in Iraq).
UNITED STATES INSTITUTE OF PEACE
Conclusions of USIP Roundtable on Lessons Learned
From Prior Vetting Processes \1\
---------------------------------------------------------------------------
\1\ With the encouragement of senior NSC staff, the United States
Institute of Peace organized a roundtable discussion on January 9th,
2003 involving former U.S. government officials and non-governmental
experts on the experiences of several countries with efforts to screen
and purge the security forces and civilian administration during a
transition from a repressive system to democracy. Prior cases that were
discussed included post-WWII Germany and France, the purge of the
military in El Salvador, de-Stasification of various sectors following
German re-unification, and police vetting programs in the Balkans,
Haiti and elsewhere.
---------------------------------------------------------------------------
(January 24, 2003)
I. Why is vetting critical to the success of a democratic transition?
Vetting is necessary in order to:
1. Sanction those who have committed abuses and remove them from
positions in which they could continue to do so.
2. Instill public confidence in the reformed and cleansed
institutions of government. The vetting process can serve
as a means of inculcating new social norms, promoting
government legitimacy, and building a new sense of civic
responsibility and national identity. This emphasis is
increasingly preferred under international standards to the
Point (1)'s focus on patently punitive vetting.
3. Render the handling of past abuse more manageable. Even if
prosecutions occur for abuses of the ousted regime, there
will be very few trials relative to the number of potential
cases.
4. Contribute to public order. A hesitant, arbitrary or incomplete
vetting process can likewise result in personal vengeance,
festering grievances, and lack of public trust in
government.
II. Who does the vetting?
Vetting may be conducted by (1) one centralized government agency
or specially established commission; (2) separately by each ministry
and agency; (3) by foreign occupation authorities; or (4) by an
international interim authority; or (5) by a combination of the above.
In the last two cases, it will be essential that carefully selected and
publicly credible locals participate in or advise the process. If local
authority is to have responsibility for the vetting process,
international pressure can be important to ensure implementation and
enforcement of vetting decisions.
Authority: In most cases, vetting is based on the enactment of a
law, the imposition of a decree by governing authority, or the
provision for vetting in a peace accord. Vetting will often be subject
to charges of arbitrariness and ``victor's justice,'' making it
important to clarify the standards and procedures to be applied. A
greater expectation applies in this regard in the vetting of the
civilian sector than security forces. Whenever possible, make use of
local laws and legal principles. This legitimates the process in the
eyes of both accused and surrounding public.
III. Who gets vetted and when?
Vetting requires balancing the need to purge with the necessity of
``keeping the trains running.'' The need to have sufficient personnel
in place to run essential government functions, especially security
functions, may constrain the thoroughness of an initial purge. Before
beginning any purge, determine (a) the availability of qualified
replacements; (b) the time it will take to recruit/train new personnel;
and (c) the level of disruption that will ensue in any institution
during a gap between dismissed and new personnel.
It is essential to determine--and prioritize--which positions in
which sectors should be vetted lest they pose a threat to immediate
post-conflict security and undermine public confidence in the
transition. (In various cases, this has included the military,
security, intelligence forces, judiciary, teachers, financial
officials, media, and health professionals.)
In the initial phase, vetting must focus on removal of unsuitable
personnel from police and security forces. This serves to enforce
immediate public order for the interim administration, break up cabals
of corrupt or criminal officers, and dissuade victims from taking
private vengeance.
Vetting of prosecutorial and judicial personnel must keep pace with
the vetting of security and police forces in order to ensure a
functioning justice system. Leaving corrupt judges in place can
undermine efforts to reform police forces and can facilitate a return
to police abuse.
Vetting must take place in all areas of government, and often in
the private sector as well as the public sector, in order for the
public to feel justice has been served. Private sector vetting may
follow its own procedures, but should be monitored so as not to violate
the democratic principles that will govern under the new regime.
As seen in several prior cases, accusations and purges can easily
get out of control. Vetting should be thorough, particularly in the
security forces, police and judiciary, but should be constrained.
IV. What Criteria are applied?
In previous vetting programs in various countries, the following
categories of implicated personnel have been excluded from key
positions on the basis of vetting:
Senior officers (e.g. from colonels up), except as truly
needed;
War criminals and human rights abusers;
Secret police informants;
Senior party officials;
Drug traffickers/members of criminal syndicates; and
Those deemed unqualified based on professional history and
competence.
V. What sources of information provide the basis for vetting?
Ideally, vetting should be based on a comprehensive review of as
many sources of information as possible given the possibility of
incomplete, missing, and falsified records. It is necessary, therefore,
to be able to fuse/filter disparate sources of information and to
account for distorted/politically-based allegations.
It is imperative to immediately locate, secure and restrict access
to all relevant personnel records, intelligence files, court and prison
records, and other relevant databases as quickly as possible. These
will provide the main basis for vetting. Unsecured, these records will
be destroyed, falsified, or used for blackmail. In addition to records
of the new deposed government, vetting can draw on data from publicly
available news sources, international human rights groups, and foreign
intelligence sources. Compile as many records and sources of
information as possible before the transition.
Elements of vetting review:
1. Records and data sources as noted above.
2. Publication of candidate lists (ideally in local papers and in
refugee centers abroad), with a request for the public to
submit any relevant information regarding candidates.
3. Applicants should be required to self-report their history and
activities, with any falsehood being an immediate
disqualifier. Self-reported histories can be crosschecked
against available records and witness testimony.
Misrepresentations, even impersonations, are common.
4. Vetting review must not only clear an individual of culpability
for abuses of the old regime, but also determine his/her
objective qualifications and ability to adapt to the norms
and practices of a new, accountable and civilian-led
democratic government.
VI. What are the key procedural considerations?
Fewer cases versus faster processing: Vetting can target and purge
specific individuals based on past abuses. This is by definition
retrospective and retributive, and consequently a higher due process
standard is required. Alternatively, all current holders of the
designated positions are required to re-apply. In this case, vetting is
prospective and, like routine civil service screening, a lower due
process burden can be applied to the program. In the second scenario,
continuation of the applicants in their jobs is contingent on eventual
approval in the vetting process--making it possible to more quickly
remove targeted individuals while review of other cases proceeds more
slowly.
Due process: Three due process questions routinely arise: (1) Is
there a right of the vettee to confront the evidence against him/her?
(2) Is representation by counsel permitted? (3) Can vetting decisions
be appealed? Provision for a limited appeals process is helpful,
particularly for civilian positions, in that a successful appeal by an
accused abuser vindicates the legitimacy of the vetting process.
Standardization: Vetting rules may (1) be rigid and uniform, to
expedite the process and avoid the appearance or reality of
arbitrariness, or (2) allow for subjective evaluation, taking into
account such factors as severity of misdeeds, mitigating factors,
coercion or other reasons for taking the action in question, later
remorse/change in conduct, or distance in time from the abuse.
Duration: Dismissal from the security forces may be permanent,
given concern over renewed abuses. Civilian vetting, on the other hand,
is usually of temporary duration (typically 5-10 years) to allow
breathing space for government and society to re-create itself, after
which they move to a level playing field.
VII. What happens to the purged?
Types of sanctions which may result from vetting: Those sanctions
which have been employed in various countries include employment
dismissal; exclusion from appointed office; exclusion from elected
office; exclusion from designated private sector positions or
professions; denial of benefits (including government pension);
exclusion from suffrage.
Prevent the purged from becoming spoilers: Those vetted out cannot
simply be sent home, but must be placed in some sort of organized,
remunerated activity. This temporarily ensures their livelihood so they
do not turn to criminal activity, facilitates observation of their
interactions with former colleagues, and prevents them from organizing
a troublemaking underground force.
VIII. What happens to those who survive the vetting process?
Probation: Those retained--particularly in the police and security
forces--should be retained on a probationary basis. The probationary
period should be long enough to (1) allow refugees to return and
provide additional relevant information, and (2) permit monitoring of
performance to ensure suitability. This may last up to two years. It
may be useful to put outside personnel in place to closely supervise
the work of these remaining employees during this period.
__________
UNITED STATES INSTITUTE OF PEACE
Project on Constitution-Making, Peace Building,
and National Reconciliation
Since the age of Enlightenment and the revolutions in France and
the United States, constitutionalism has played an ever-increasing role
in nation-building and in the establishment of the rule of law. At the
dawn of the twenty-first century, nations of virtually every region of
the world recognize the role of constitutionalism in their own
political and legal systems. The recent and dramatic increase in the
number of new and transitional nations adopting democratic
constitutions attests to the significance of constitution-making to
democracy, national reconciliation, and political development. In many
countries making the transition from civil war, one of the first tasks
undertaken is the drafting of a new constitution. Insofar as the
constitution articulates the vision of a new society, defines the
fundamental principles by which the country will be reorganized, and
redistributes power within the country, it can play an important role
in the consolidation of peace.
A variety of projects and publications have focused on the
substance of constitutions in response to conflict, often highlighting
the role of such concepts as federalism or separation of powers.
Surprisingly little work has been done, however, to examine the extent
to which the process of creating a constitution can become a vehicle
for national dialogue and the consolidation of peace, allowing
competing perspectives and claims within the post-war society to be
aired and incorporated. This is the focus of the Project on
Constitution-Making, Peace Building, and National Reconciliation, co-
sponsored by the United States Institute of Peace and the United
Nations Development Program.
Many issues to be confronted in the crafting of a post-conflict
constitution can accentuate fundamental differences and lead to renewed
factionalization. Choices made as to the timing of the process could be
perceived as favoring one group over another. The role and organization
of political parties in the constitution-making process may reopen old
wounds or recall ethnic or other rivalries. The choice of electoral
systems for a constitutional convention could have similar effects. The
subject of human rights, and the question of participation in the
constitution-making process of those who recently perpetrated major
abuses, may be so volatile as to incite renewed accusations and
conflict. The project is also considering certain substantive issues
that, while outside the project's primary scope, are potentially
divisive and impact on questions of process. On the other hand, the
constitution-making process can be a potent element in the reduction of
conflict. The more that the constitution-making process develops a
sense of confidence in parties to the conflict and in the public in
general that the new constitutional framework will protect their
interests and will provide them with non-violent avenues for defending
their rights, for example, the more it will contribute to the building
of a stable peace. The project seeks to develop guidelines for
strengthening such positive dynamics in the post-conflict context.
The project's inter-disciplinary Working Group is chaired by
Professor Bereket Habte Selassie, formerly chair of the Constitutional
Commission of Eritrea and currently of the University of North
Carolina. The membership of the Working Group includes a diverse group
of experts in comparative constitutionalism, conflict resolution,
development, political science, and sociology, and members of the donor
community involved in assisting post-conflict societies.
A series of case studies papers has been commissioned on the
constitutional processes of nearly 20 countries around the world. The
Working Group is joined by relevant country and regional experts for
its consideration of each case study. It is not anticipated that the
series of case studies will produce a monolithic model for
constitution-making. On the contrary, they will likely offer a range of
different and perhaps even inconsistent approaches, the use of which
will depend on the various social, cultural, political and economic
conditions existing in a particular country. Through this process, the
Working Group is attempting to discern the variables that underlie
these different approaches, evaluate their respective effects, and, by
applying a uniform analytical framework across a broad range of cases,
derive common lessons regarding the complex process of constitution-
making and national reconciliation.
Begun in 1991, the current phase of the Project on Constitution-
Making and National Reconciliation is anticipated to be completed in
early 2003. A final report will incorporate an assessment and synthesis
of lessons learned, the identification of pitfalls to be avoided when
constitution-making occurs in the aftermath of violent conflict, and
the articulation of practical guidelines to be considered in the design
of post-conflict constitution-making processes in the future, to
maximize the potential of these processes in the consolidation and
maintenance of peace.
The project includes an examination of constitution-making
processes in the following countries:
Bosnia and Herzegovina; Brazil; Cambodia; Colombia; East Timor;
Eritrea; Ethiopia; Fiji; Hungary; Namibia; Nicaragua; Poland;
South Africa; Spain; Uganda; Venezuela; Zimbabwe.
The following is an inventory of the issues to be considered in
each of the case studies:
I. General Issues Pertaining to Conflict Resolution and Constitution-
Making
What ramifications does the nature, duration, and intensity of the
conflict, and the character of its termination, have for the
constitution-making process? What are the limitations on using the
constitution-making process as a means of conflict resolution and peace
building? How should those involved in the constitution-making process
evaluate which post-conflict issues are not appropriate for resolution
through the constitution-making process and are best left to political
negotiation? Are there circumstances in which constitutional reform
would be preferable to creating a wholly new constitution? How is that
determined? To what extent does the constitution-making process need to
be coordinated with other post-conflict political negotiations that may
deal with some of the same issues that will arise in the constitutional
context?
From the perspective of building a stable peace, are there
different dynamics between constitution-making in a post-independence
scenario (i.e., drafting a new country's first constitution) and
replacement of an existing constitution? How and to what extent have
previous exercises in constitution-making included the use of
negotiation techniques? What lessons can be drawn regarding the
integration of traditional, indigenous methods of conflict resolution
and public deliberation into the constitution-making process? How
should those involved in the process determine whether to refer to the
former constitution as a starting point or to intentionally begin with
a blank slate? In those cases where a settlement agreement formed the
basis of the constitutional process, are there steps which were taken
or procedures followed in the establishment of the settlement agreement
that recommend themselves for use in future constitutional processes?
In what types of cases should constitution-making be anticipated and
incorporated into the peace agreement, in the form of constitutional
principles, a timetable for constitution-making, or mandating the
structure of the process? Shaping the constitution-making process as an
exercise in political negotiation and compromise risks producing a
short-term accord at the expense of building strong democratic
institutions and longterm stability. How can this be avoided?
II. Structure of the Process
Numerous choices need to be made with respect to establishment of a
constitution-making authority that may impact on its relationship to
post-conflict peace-building. Should a constitutional commission be
established to organize the broader constitution-making process,
including public education and consultation, and the actual drafting of
the document? Alternatively, should a country move directly to a
constitutional convention or similar process? Who should determine the
mandate, timetable and rules of a constitutional commission or
constituent assembly? Should the process include the election of a
constituent assembly or a constitutional convention? Are there
circumstances where an ordinary parliamentary assembly could be used
for this purpose? Who will actually draft the constitution? Should a
smaller committee be designated for this task? How will the drafters be
chosen? To the extent that elections are held for a constitutional
convention, what electoral systems should be employed, and how will the
choice of electoral systems in the constitutional process affect the
choice of future electoral systems? Should there be any provisions for
judicial or other review of the actions of the constitution-making
body?
III. Public Participation in the Process
Some recent constitutional processes which have attempted to
address societal conflict have placed a fair amount of emphasis on
public participation. In considering the potential costs and benefits
of public participation in the constitution-making process, there are a
number of questions and issues which arise. Should the process, for
example, include one or more plebiscites which will allow the public to
decide basic constitutional issues prior to the preparation of the
draft constitution and/or to approve or reject the final document?
Should there be public fora and/or formal arrangements for submission
of comments by members of the public? If there are to be public fora
for consultation and input, at what stages should they occur (e.g.
before the beginning of the drafting process, following the completion
of an initial draft or a draft of basic principles, or during the
course of the drafting process.)? Should there be a program of public
education associated with public participation, and, if so, what should
that program entail? Should it include public education on the
democratic principles and international human rights norms that need to
be incorporated into the constitutional framework? Should the process
of public consultation and participation facilitate the public airing
of grievances by different groups in order to factor these issues as
appropriate into constitutional deliberations? As part of the public
education process, should this include exposure of each group within
society to the needs and grievances of the others? What unofficial
function(s) should be played by civil society during the course of the
constitution-making process? Also, how important is the formal
inclusion of civil society groups in the official process? Should
certain sectors or institutions (e.g., the military, the church) be
formally represented in--or intentionally excluded from--the official
process?
On the other hand, the question of public participation raises the
basic question of its scope and limitations. A balance may need to be
achieved between the desire for completing the process expeditiously
and the concern for the democracy of the process since public
participation and public education may serve to prolong it. Are there
circumstances in which, to advance the interests of short-term peace-
building or long-term democratization, less public participation in
(and pressure on) the constitution-making process would be preferable,
confining the process--or at least certain parts of it--to a more
restricted group of elites? Under what conditions is a more
participatory process likely to produce a constitution that is
democratic and protective of human rights and the rule of law--or less
so? Are there measures that should be considered to ensure that the
public participation component does not result in unrealistic public
expectations or assumptions about the constitution-making process and
the resulting document? What are the main principles or issues that the
public should appropriately discuss and decide? Are there some less
appropriate for this public approach? Should the public be involved in
the final adoption or ratification process? Who should decide the level
and structure of public participation? Finally, in connection with all
of these issues, it is important to consider the extent to which the
ultimate legitimacy of the constitution will depend upon the scope of
the public participation in the process.
IV. Democratic Representation
Just as the scope of public participation raises the question of
the ultimate legitimacy of the process, so does the issue of designated
representatives and the method of their selection. Should the
composition of a post-conflict constituent assembly reflect the
distribution of power between political parties in parliament, or the
ethnic, religious, or regional make-up of the country, or simply the
results of a popular vote for this purpose? What role should political
parties play in this process? What steps are appropriate to prevent an
existing or transitional government from dominating or controlling the
constitution-making process? To what extent, and how, should the
constitution-making process ensure the representation and protection of
minority interests? How can the guaranteed participation of specific
ethnic, religious or political groups in the constitutional commission
or convention be reconciled with democratic principles or conflict
reduction, particularly if similar guarantees are not established for
all in countries that have large numbers of distinct groups? What are
effective strategies to ensure that the resolution of ethnic conflict
will not so overshadow other concerns in the process as to compromise
its legitimacy or undermine the development of sustainable democratic
institutions? Where the prior conflict has involved serious human
rights abuses, should participants in the constitution-making process
be vetted for their involvement in those abuses? If so, how should the
vetting be conducted? When factions or regions reject the peace
settlement or the legitimacy of the new government and constitutional
process, how should the constitution-making process deal with this
refusal to participate?
V. The Timing and Sequencing of the Constitution-Making Process
The general issue of the timing and duration of the process may
relate to the resolution of preexisting conflict. For example, are
there any conditions precedent in the post-conflict phase for the
constitution-making process to begin? Are time limits beneficial? A
prolonged process may give an unfair advantage to a particular dominant
faction thus leading to renewed conflict. On the other hand, it may
permit other parties to build their strength and become better
positioned to engage in constitutional discussions. Are there
circumstances in which, from a conflict resolution perspective, a fast
or attenuated constitution-making process is preferable? Do lessons
emerge from previous cases of transitional constitution-making with
respect to the sequencing of steps in the process? In addition, if the
process includes the preparation of one or more drafts of the
constitution, at what stage(s) in the process should those drafts be
prepared and presented? If the process will include plebiscites, when
should the plebiscites occur? If a constituent assembly is used, when
in the constitutional process should it be elected? If the
constitutional process is the product of a peace agreement, to what
extent should the peace agreement determine the sequencing of the
events in the process? Are there circumstances where it may be
preferable to adopt a transitional charter which represents the
establishment of consensus with regard to certain constitutional issues
while postponing the consideration of more contentious issues to a
future date?
In some cases, secessionist or opposition groups initiate a
constitution-making process prior to independence or a transition,
i.e., while the conflict is still ongoing. What are the dynamics of
this process? When is an international role at this stage helpful and
when can it exacerbate conflict?
VI. The Role of the International Community
Countries emerging from violent conflict will almost always need to
depend upon the international community to varying degrees for the
resources--financial, technical, and human--which will be necessary in
order to conduct the constitution-making process. In some cases, a role
for the international community in the constitutional process may
result from its role in brokering a peace agreement. International
involvement in the constitutional process may also contribute to
international recognition of a newly independent state or acceptance of
a new regime's legitimacy. On the other hand, the legitimacy of the
constitutional process may be undermined where the international
community is perceived as attempting to impose the process or result.
What are the variables that determine the appropriate role for the
international community in terms of conflict reduction or the
legitimacy of the process? To avoid the perception of foreign
domination of the process, how important is it for international
assistance to incorporate a multi-disciplinary approach that includes
the consideration of sociological and cultural factors? Should the
international community play any role in the selection of the
participants in the process, including the possible vetting of
participants where appropriate in the aftermath of serious human rights
abuses? If so, how? What forms and methods of foreign assistance to the
constitution-making process are most, and least, helpful? In the case
of secession or the termination of occupation or colonization, is it
helpful to have constitutional experts from the former ruling country
involved in the process? What level of coordination is appropriate
between the often multiple foreign actors who may even be providing
assistance to different local factions in the constitution-making
process?
Where the United Nations has become directly involved in mediating
or resolving a conflict, the constitutional process may be dictated, at
least in part, by UN resolutions. Under what circumstances should UN
resolutions specifically mandate UN involvement in the constitution-
making process? Similarly, are there circumstances in which regional
inter-governmental organizations should become involved in the
constitution-making process?
VII. The Role of International Law.
Are there emerging international norms relating to the
constitution-making process or relating to the substance of any
constitution? If so, how should these standards be determined and
integrated? Several recent constitutions explicitly deal with the
status of international law relative to domestic law and also directly
incorporate international human rights standards into the constitution.
Particularly in a post-conflict context, where concerns regarding the
rights of various parties and contested international legal claims may
be crucial to the consolidation of peace, how should these issues be
addressed in the constitution-making process? Who should decide?
VIII. Essential Issues of Substance
Certain fundamental issues, such as the power and status to be
accorded to geographic subdivisions, and the centralization or
devolution of power, may be so integral to the construction of a stable
peace as to be inseparable from an examination of the constitution-
making process. When, how and by whom should such basic issues should
be decided? Some modern constitutions contain certain immutable
principles that are designed both to preserve the stability of the
regime and to ensure against the recurrence of past abuses. Should a
postconflict constitution include such immutable principles? If so, how
should the constitution-making process determine such principles?