Color Inside the Lines By Edward Blum and Roger Clegg
By Force of Will By Rosa Ehrenreich Brooks
Equal Effects By Anita Earls
Rhetorical Question By Michael Frost
By Force of Will
Can the rule of law in Iraq come from the barrel of a gun?
WHEN PRESIDENT GEORGE W. BUSH RECAST THE GOAL of the war in Iraq as a fight for "liberation" rather than a search for weapons of mass destruction, he said that the United States would "help the Iraqi people to establish a just and representative government, which respects human rights and adheres to the rule of law." It's a noble project, regardless of the motives that led to it. But on a trip I made to Baghdad in August, there was little evidence of the rule of law, and neither American officials nor Iraqi lawyers and judges were optimistic about its prospects.
"Law? There's no law here," scoffed a young American military policeman when I dropped in unannounced with two other law professors at the police station in Baghdad's al-Mesbah district. We stood swelteringthe temperature outside was over 130 degrees, and there was no electricity to power the air conditionerswhile the lieutenant, his uniform stiff with salt under the arms, tried to figure out what to do with us. In between unsuccessful efforts to reach Division HQ, he kept up a running commentary: We wanted to look at "rule of law" issues? That was a joke. The Iraqi cops were useless; American M.P.s had to teach them everything. "The Iraqi judges are all corrupt," he insisted. "These people don't understand basic concepts of fairness. They lock witnesses up right along with suspects. They think it's okay to beat people to get confessions." The rule of law? Forget it.
A few miles away, at the al-Baia courthouse, we encountered similar skepticism about the rule of law, from a different perspective. The deputy chief judge of the Baghdad regional court wore a dark, heavy suit despite the heat. He reminded us, politely, that Iraq has an ancient legal tradition. Were we by any chance acquainted with the Code of Hammurabi, the Mesopotamian code from the 18th century B.C.? Yes? Good. But most Americans, the judge said, don't understand Iraq's legal heritage. In his account, the trigger-happy forces of the U.S.-led Coalition Provisional Authority aren't able to ensure the basic security of the country. Yet they constantly second-guess Iraqi judges and police, undermining their efforts to restore normalcy. Coalition forces detain people who have been ordered released by Iraqi judges; they release people who have been ordered detained. They won't give detainees access to lawyers. They have declared that they are immune from Iraqi legal process.
The judge was courteous, but his attitude was clear: How can the coalition claim to care about the rule of law when it maintains control only by overwhelming force and when its actions strike many Iraqis as inconsistent and arbitrary? How can the rule of law come from the barrel of a gun?
The rule of law is an elusive concept. Still, at its heart lies the idea that processes based on rules and reasons must trump force, that rights are more important than might. For the rule of law to exist, laws must be fairly, democratically, and legitimately enacted; they must be clear and known in advance; and they must be equally applicable to everyone. Yet the rule of law is as much a culturea set of beliefs and a state of mindas it is a set of rules and institutions. Both ordinary citizens and government officials must believe that they can turn to legal institutions, rather than violence, to resolve disputes fairly and effectively.
In Iraq today, American efforts to create the rule of law encounter an immediate paradox. The United States governs Iraq because its coalition had the military muscle to defeat Saddam's demoralized forces, and because its status as the world's sole superpower kept other nations from interfering. A military invasion of questionable legitimacy is an inauspicious start for convincing a defeated country to believe in law and reason rather than coercion. Since the war's end, the misunderstandings born of that internal contradiction have proliferated.
As the judge at al-Baia complained, for instance, the Coalition Provisional Authority sometimes overrules the decisions of Iraqi judges about whether or not to detain suspects. Coalition officials see that as perfectly consistent with promoting rule-of-law values. The coalition sometimes releases people when they've been detained based on evidence that U.S.-trained lawyers regard as insufficient or tainted, or when officials are convinced that the Iraqi order was based on bias, intimidation, or corruption. Likewise, authority officials say they sometimes order suspects to be detained if they think the judges who released them ignored compelling evidence for similarly illegitimate reasons.
But to many Iraqi lawyers and judges, the coalition's apparent failure to respect the domestic judicial process makes a mockery of the rule of law. To these Iraqis, the coalition's actions seem possible only because it is backed by forceand Iraqi judges are not. Saddam Hussein discredited the law by making it a naked instrument of his own political power; today, some Iraqis are concluding that the rule of law, coalition-style, is little different.
IT IS TEMPTING TO CONCLUDE FROM THIS REACTION that the coalition is simply being too heavy-handed. But that is simplistic. Would it really be better for the coalition to stand by in the face of serious violations of the rights of detainees? Doubtless such violations occur; sophisticated though it may be, the Iraqi legal system has been distorted by decades of corruption and repression, including the systematic use of torture. It does not respect critical norms of human rights, and there is little reason to think that, left to themselves, the Iraqis will make the necessary reforms, at least in the near future.
But the coalition's interventions, however justified, cannot comfortably coexist with the rule of law's need for predictability, procedural regularity, and equal applicability. At times, that insoluble tension makes the United States oscillate from brisk coercion to squeamishness about exercising control.
A prime example of this intermittent squeamishness is the abysmal state of the detention facilities for Iraqi detainees. The coalition now operates interim prisons at military bases that hold both ordinary criminal suspects and "security detainees," some of whom, officials admit, would be released but for a shortage of intelligence officers to vet and clear them.
Although the coalition has issued regulations mandating adequate conditions in detention centersrules closely modeled on U.N. standardsone official dryly described these regulations as "aspirational." The centers are inaccessible to ordinary Iraqis. This means the detainees have no access to family members or lawyers. Speaking privately, authority officials acknowledged that conditions in some places are so inhumane that they probably violate international law. At the detention center in Basra, for instance, temperatures can reach 150 degrees in the shade, with nearly 100 percent humidity. Some detainees have died as a result.
Funds were budgeted for upgrades like air conditioning. Coalition officials say that to respect preexisting Iraqi political institutions, they transferred these funds to the Iraqi Ministry of Finance. The ministry was supposed to distribute the money regionally. But as of mid-August, the hottest time of year, it had failed to do so. Bureaucratic inertia? Political opposition? No one from the authority seemed to know.
After pummeling Iraq with bombs and troops during the war, why has the U.S. become shy about compelling a recalcitrant Iraqi ministry to cough up the money it sent it? From a rule-of-law perspective, the consequence of this uncharacteristic hesitation has been as devastating as excessive heavy-handedness is in other contexts. Iraqi prisonerssome of whom probably should have never been detainedhave suffered, and the coalition's ability to credibly promote the rule of law has suffered along with them.
There is no easy solution to the problems the U.S. faces in Iraq. Two things, however, might improve the situation somewhat.
First, the U.S. should embrace multilateralism. It would increase the credibility of the coalition if civilian officials and troops from other nations worked alongside American soldiers.
Second, it would help to openly acknowledge the paradoxes inherent in trying to pull the rule of law from the barrel of a gun. The coalition would do well to declare that the Iraqi judicial system and police will be required to conform to internationally recognized norms of human rights and due processeven if that means stepping on the toes of Iraqi judges for a time.
Such an outright assertion of control over the police and the courts will anger many Iraqis. But possibly it will anger them less than the apparent inconsistency and hypocrisy that they currently decry. Outright assertions of power are at least consistent, intelligible, and transparent. Unhappy Iraqis will know who to blame, and have some hope that future political developments will make the coalition accountable for errors and wrongs.
The contradictions inherent in imposing the rule of law through force cannot be resolved in the short term. But if the United States cares about creating the rule of law in the long term, being honest about these contradictions would be a good first step.