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Legal Quandaries in Iraq

Prepared by: Lionel Beehner
August 29, 2006

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As much as paving roads and rebuilding schools and hospitals, the post-conflict reconstruction of Iraq requires strengthening the country's wobbly legal foundations and establishing the rule of law. In fact, the Fourth Geneva Convention obligates the United States, as the occupying power, to do just that.

Shortly after the overthrow of Saddam Hussein, the Coalition Provisional Authority (CPA) essentially decreed that Iraqi law, barring a few exceptions, would be the law of the land. For criminal matters, the primary body of law drawn from was the Iraqi Criminal Code of 1971. But establishing a system of independent judges and undoing the corrupt legal system in place under Saddam has proven difficult, not least because of the poor security and rising sectarian conflict outside of Iraq's courtrooms.

To overcome these obstacles, Robert Perito of the U.S. Institute of Peace proposed in April 2003 the creation of a U.S.-led civilian reserve team, numbering up to 3,000 members and composed of police, legal prosecutors, and judges. The plan was based on post-conflict operations in the Balkans. "[P]eacekeeping missions need to arrive with a law-and-order kit made up of trained police, judges and prosecutors, and a set of draconian security laws," Bernard Kouchner, senior UN official in Kosovo, told the Washington Post back in 2000. But as Michael R. Gordon and General Bernard E. Trainor document in their book Cobra II, no "stability force" was ordered to Iraq. "Congress has not provided the money," Perito told CFR.org.

Moreover, to get the country's legal system off the ground, the CPA decided—hastily, by some accounts—to allow Iraqis to try Saddam Hussein and his henchmen under Iraqi law before Iraqi judges. This, proponents argued, would give Iraqis valuable legal experience, put them in charge of their own judicial system, and provide them with closure to an unsettling chapter in their history (The latest case takes up the so-called "Anfal" campaign, involving the wholesale killing of tens of thousands of Kurds, many by chemical gas attacks, in 1988).

But poor security, alleged incompetence from the bench, and charges of American meddling have marred the Iraqi court's proceedings to date. Human Rights Watch finds "a number of serious shortcomings in the institutional functioning of the court." And many Arabs in Iraq perceive it to be "an American-made kangaroo court," David M. Crane of Syracuse University tells CFR.org. This new Backgrounder explores the pros and cons of trying Saddam in a domestic versus an international tribunal, while this debate on Case Western Reserve School of Law's Grotian Moment blog examines the issue of moving the court abroad.

Legal questions also clouded the establishment of Iraq's constitution last fall. Debates raged over the rightful role of women and religion in politics, and whether sharia—or Islamic law—should trump secular court rulings. In the end, a constitution was cobbled together, but the divisive process alienated many ethnic and religious minorities. Experts anticipate any future efforts to amend the document will create even more fissures in Iraq's already-fragmented parliament. The Iraqi government also still has to form a constitutional court, which will serve as Iraq's top legal authority. "Because the court is significantly powerful, I would expect the political battle over it to be particularly severe," says Nathan Brown, an expert on Islamic law at the Carnegie Endowment for International Peace, in this Backgrounder.

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