INTRODUCTION: 21^st CENTURY HUMAN RIGHTS

Of the reasons for invading Iraq in 2003 it has been that of regime change which has proved the most defining in Iraq’s recent history. With no evidence of weapons of mass destruction (WMDs) found and links between the Iraqi regime and al-Qaeda largely dismissed before the war, regime change has become paramount in the continued justification for the 2003 invasion and more crucially provided the basis for Iraq’s now failed post-war reconstruction.

While claiming to be in the interests of international peace and security, forceful regime change was also presented as a humanitarian intervention to save the Iraqi people from a despotic regime that had committed massive human rights abuses against its own people. As such, the United States and its allies (The Coalition of the Willing) presented a case for war that superseded the internationally legal recognised reasons for the use of force under the doctrine of the Responsibility to Protect – a doctrine that puts forward moral and political justifications to act outside the realm of international positive law (Byers 2005: 103).

The use of force on humanitarian grounds is consistent with a human rights discourse that has become apparent in the twenty-first century in which the global community is the primary protector and enforcer of human rights in response to abuse committed at a local level (Meister 2011: 6). This now dominant conception of human rights views the twentieth-century as one of genocide representing an evil that “transcended cultural, religious and ideological difference” and thus a crime against the whole of humanity (Meister 2011: 1). Underscored by the sentiment “Never Again” the current human rights discourse is based on the belief that such evil should not be repeated and that the victims of such abuse should be rescued (Meister 2011: 3). It was this conception of human rights and the interaction of the ‘global’ with the ‘local’ along with the accompanying rescuer-victim dynamic that came to define the failed post-war reconstruction of Iraq.

DEMOCRACY: THE EXPERT OPINION

When operations to remove Saddam Hussein and his government from power were over the self-proclaimed ‘leaders of the free world’ embarked upon a democratising mission aimed at establishing not only a politics, but also a society based upon Western liberal democratic principles – both for the good of the Iraqi people and the world. This was founded upon an idea first expressed by Tony Blair during a speech given in Kosovo in 1999 in which the ex-British Prime Minister proclaimed that:

“Acts of genocide can never be a purely internal matter. If we can establish and spread the values of liberty, the rule of law, human rights and an open society then that is in our national interest too. The spread of our values makes us indeed safer. Does anyone believe that Serbia or Iraq would be nations that originate conflict if they were democracies?” (Adam Curtis: 2015)

Arising from the perception that Iraq’s history was characterised by an all pervasive authoritarianism, Iraqi political culture was seen as “singularly inhospitable to democratic values” and the Iraqi people as suffering from an “immutable democratic deficit” (Dawisha 2005: 11-12). The upshot of this view was that:

“The standard prognosis of Iraq’s future has been that either democracy was untenable in Iraq, or that the democratic road was so full of potholes and dangerous curves that it would take many years, even decades, for democracy to be implanted into the fabric of Iraqi society” (Dawisha 2005: 11) ^[1].

However, analysing the period from 1921 to 1958, Adeed Dawisha (2005: 12) presents a counter narrative to this view, detailing “traditions of political pluralism and experience with representative political institutions” in Iraq’s history.

In 1914 the British army entered southern Iraq as part of their World War One campaign against the Ottomans. By 1917 the British had captured Baghdad and in 1918 signed an armistice with the defeated Ottomans. Upon entering Iraq, and during their occupation, the British received a mixed reception from the local population being accepted by some and opposed and confronted by others. While these confrontations were initially sporadic, by 1920 the British faced a full on nationalist revolution^[2]. In his 2012 work Reclaiming Iraq: The 1920 Revolution and the Founding of the Modern State, Abbas Kadhim (2012: 162) posits that the Revolution was a natural reaction of a people that had a desire to self-rule in the face of an occupation that had become increasingly hostile and insatiable. In fact the British could have done nothing to avoid the revolution, their oppressive policies towards many Iraqis and failure to grant the country a long promised independence only hastened it (Kadhim 2012: 163).

The revolt was ultimately unsuccessful and ended on in late October with victory for the British. However, some temporary successes in the Shia cities of Karbala and Najaf saw the “establishment of civil organisations approximating to temporary governments to maintain law and order as well as provide essential services” (Dawisha 2005: 13). Furthermore, the administration in Karbala “enjoyed the full authority to administer justice, collect taxes, keep the peace, and perform all of the functions of an independent government.” (Kadhim 2012: 12) Moreover, according to Dawisha (2005: 13) “much of the administrative structure, fashioned by the Iraqis, was kept in place when the British retook the cities.”

Following World War One the state of Iraq (encompassing the previous Ottoman provinces of Baghdad, Basra and Mosul) was founded and put under British administration as part of the League of Nations Mandate System, a system which sought to develop the former colonies of the Ottoman Empire into independent self-determining nation-states. However, during their tenure the British administrators, to serve their own self-interests (namely, securing the region’s oil, and a route to the jewel in their imperial crown, India), acted in contra to the ideals of democracy that they were charged with instilling in the newly founded state of Iraq. Such measures included banning political parties opposed to their rule and closing down their newspapers and expelling their leaders. The British also indulged in the weakening of Parliament to achieve their aims and organising a rigged referendum (Kadhim 2012: 13) to install a leader favourable to their aims in the region, King Faysal I in 1920.

The upshot of the British Mandate in Iraq was a country divided along sectarian lines, one that had seen some unification in the admittedly Shia-dominated 1920 Revolution. Despite constituting less than twenty per cent of the population, government ministers, senior state officials and the officer corps of the armed forces were drawn almost exclusively from the minority Sunni Arab community (Tripp 2007: 31). One reason for this was the Sunni Arab experience of state like responsibilities as part of the Ottoman Empire. However, the British also actively excluded the country’s Shia population and their tribal following from matters of statehood viewing them as a “reactionary and obscurantist” (Tripp 2007: 39) and therefore not fit for government, in spite of, and because of their performance in the 1920 Revolution.

*****

In May 2003, it was the United States that took the lead role in ‘bringing’ democracy to Iraq.  With the view of Iraq’s immutable historical democratic deficit the early post-war reconstruction of Iraq was characterised by an invasion of experts charged with the task of instilling Western democratic principles and values into Iraqi society. In May 2003 Paul Bremer III took control of the Coalition Provisional Authority (CPA), a newly established transitional government, created and funded as a division of the United States Department of Defence. As Administrator of the CPA Bremer exercised supreme executive, legislative and judicial authority in Iraq.  The CPA was headed by its own sub-administrators, each of whom were all former exiles that had returned to Iraq following the 2003 War. This immediately brought about tension with Iraqis that had stayed in the country throughout the years of oppression who thought that they had the same, if not more of a, right than the returning exiles in determining the future of Iraq (Tripp 2007: 280), not to mention a degree of expertise.

While not claiming that Iraq in 2003 was a fertile ground, ready to seamlessly embrace democracy, what Dawisha (2005: 12) highlights is how “historical memory is often the subject of reinterpretation by those searching for a ‘usable past’ [in order] to legitimize public policy.”, in this case regime change and a transition to democracy dominated by the US. Moreover, it was the use of historical memory that influenced not only the act of establishing a democracy in Iraq, but also the act of bringing any kind of justice to the Iraqi people.  

TRANSITIONAL JUSTICE

Coming from a past characterised by physical atrocity, the rescued victims of the twenty-first human rights discourse are thought to be in need of some kind of justice. The attainment of justice is viewed as a necessary step for victims of abuse in overcoming a violent past and becoming capable of running their own affairs in the future. This is hoped to be achieved through the process of transitional justice – a set of judicial and non-judicial measures aimed at redressing the legacies of massive human rights abuses with the aim of producing a functioning democratic society by bringing together former enemies through processes of reconciliation (Neocosmos 2011: 362). According to the International Centre for Transitional Justice (ICTJ), measures of transitional justice include criminal prosecutions, reparations, institutional reforms and truth commissions.

However, implicit in the discourse of the twenty-first century human rights regime, which views the international community as the rescuers of victims of abuse committed a local level, is the belief that any damage or injustice committed by the rescuers along the way pales into insignificance. The implications of such a view are clear, that the conception of a “crime against humanity” (first introduced at Nuremberg) supersedes the prior notion of a “war crime” – that the unilateral bombing of the civilian population of another country, for example, is no longer a prima facie war crime when it is done to stop a crime against humanity occurring on the ground (Meister 2011: 4). The most recent case in Iraq’s history being the 2003 invasion, initiated with a campaign of shock and awe aimed at causing “the perception and anticipation of certain defeat and the threat and fear of action that may shut down all or part of the adversary’s society or render his ability to fight useless short of complete physical destruction” (Ullman and Wade 2003: 82). What resulted was the decimation of much of Baghdad’s infrastructure and the deaths of up to 7,000 civilians (an average of 320 per day), which according to some statistics may have been the same amount of combatants killed by the invading forces (Hourani: 2013: 473).

Of course, the United States, as self-appointed representatives of the international community, in implementing the process of transitional justice were hardly going to implicate themselves in the suffering of the Iraqi people. Suffering that the Iraqi people themselves were all too and rightly aware of and which wasn’t only confined to alleged war crimes. The ICTJ, in a 2004 published paper entitled Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction, note the mal effects of the ten years of US enforced sanctions and the associated Oil-for-Food programme provided a source of anger and mistrust toward the international community (ICTJ 2004: ii). Furthermore, a degree of responsibility for the violations in Iraq over the past few decades was laid at the doorstep of the international community, most notably the United States, for their prior support given to the Ba’athist regime of Saddam Hussein (ICTJ: 2004: 49).

Nevertheless, the regime of Saddam Hussein had committed crimes against its own people and it was only right that some form of justice for the Iraqi people be sought. However, as implemented by the US and the experts they had selected, this process did not prove constructive precisely for its ignorance of the Iraqi people.

DE-BA’ATHIFICATION: JUSTICE MISMEASURED

During his tenure Paul Bremer issued several decrees that would shape Iraqi politics and how Iraqis would confront the legacy of their past for years to come. The most notable of which was the program of de-Ba’athification which was concerned with the removal of members of the Ba’ath Party from their positions of power and banning from future employment in the public sector. However, rather than assessing individual party members on the basis of their participation in human rights violations, individuals were dismissed on the presumption of guilt based on the rank they held within the Party. CPA Order 1, issued on 12 May 2003, stated that all Ba’ath Party members holding one of the top four ranks would be dismissed from their job and excluded from employment in any public administration position. According to the ICTJ in their critical evaluation of the policy of de-Ba’athification published in 2013:

The key assumption was that any member of the top four ranks of the party must have been ideologically committed to Ba’athism or had committed acts that seriously violated either international human rights standards or other key social norms (Sissons and Al-Saiedi 2013: 9).

The implications of such a myopic policy were two-fold. Firstly, many people would have been dismissed who were not guilty of any human rights violations, while some who were guilty would have remained. Giving the innocents dismissed a legitimate axe to grind against the US administrators in Iraq. Secondly, by the arbitrary dismissal of so many people, Bremer and the CPA missed out on the skill, experience and political power that would have made them indispensable in rebuilding Iraq. Rather than a policy based on actual human rights abuse, which would have served as some kind of justice for the Iraqi people, the policy of de-Ba’athification took the form of ethnocentrism on the part of the United States.

If the experts had taken into account the views of the victims (the Iraqi people) that they were trying to help then they would have found an opinion more constructive and informed coming from the actual society they were attempting to reconstruct. In a survey conducted by the ICTJ and the University of Berkley in July and August 2003, a majority of the respondents blamed the Ba’ath party for past crimes and believed that those responsible should be dismissed. However, they also felt that it was unfair to punish people based on their party membership, making a distinction between members of the party, whom they termed Ba’athists, and the most devoted supporters of Saddam Hussein, whom they termed Saddamists. Many respondents also expressed their concern about the impact of a large scale de-Ba’athification program in relation to human resources needed to rebuild Iraq (Stover, Megally and Mufti 2005: 846-847).

The significance of the policy of de-Ba’athification cannot be overstated. With the stroke of a pen Paul Bremer made around 400,000 people, the vast majority of them Sunni Muslims, unemployed (Sisson and Saiedi 2013: 21). By banning these people from future employment Bremer effectively made them unemployable in the new Iraq and as a result they were drawn to the insurgency against the United States and the Iraqi government in one form or another (Weiss and Hassan 2014: 38). What was named de-Ba’athification was perceived as a policy of ‘de-Sunnification’ of Iraq, accelerating the drift towards sectarian conflict and civil war (Hourani 1991: 473), when in reality what would have sufficed would have been a process of ‘de-Saddamification’.

In evaluating South Africa’s post-apartheid transition to democracy, Michael Neocosmos (2011: 360) notes how democratisation “sooner or later becomes systematically accompanied by an invasion of experts on ‘good governance’, ‘democracy’, ‘empowerment’, ‘civil society’ and ‘transitional justice’ inter alia.” And, stemming from the foundation of today’s human rights discourse of rescuing victims, the invading experts only see the people they rescue as victims and not as “collective subjects of their own liberation” (Neocosmos 2011: 360).

CONSTITUTIONAL BREAKDOWN

The above dynamic was also manifested in the writing of the new Iraqi constitution. Contra to the Hague and Geneva conventions, which state that a foreign power does not have the right to impose a constitution on an occupied country, on 28 June 2004 the Bremer led CPA introduced the Transitional Administrative Law (TAL). The TAL was meant to be a provisional constitution, however, in the chaos of post-invasion Iraq, amid a fractious political scene, many of the shortcomings of the draft version of the constitution were present in the final version passed on 28 August 2005. The introduction of a new constitution by the Americans was a way to justify an early-exit from Iraq by showing that democracy had been well and truly established. However, due to the existing situation, what resulted was a rushed, strange in style and unrepresentative document (Jawad: 2013: 18).

In an article published in 2013, London School of Economics Professor Saad Jawad (2013: 24) details how the “deep structural, legal and political failings of the Iraqi Constitution”, for which both US officials and Iraqi politicians bear responsibility, have contributed to the failure of Iraq’s post-war reconstruction. Pertaining to the actual text of the constitution Jawad’s criticism starts at the preamble, noting that rather evoking a feeling of fraternity and unity, it highlights Iraq’s differences. Although beginning with a celebratory paragraph detailing Iraq’s ancient historical achievements, such as “on our land the first law put in place by mankind was written”, the subsequent paragraphs present a summary of Iraq’s more recent tragic and violent history at the hands of “the autocratic clique”. Moreover, these events are referenced in relation to the different ethnic groups of Iraq, with special mention given to the Shias, Kurds, Turkmen and marsh Arab communities.

As such the Iraqi constitution can be understood as a ‘post-traumatic’ one, that as well as enshrining principles of justice, also memorialise particular histories of injustice. Memorialisation being one of the measures of transitional justice to serve as a “bulwark against its recurrence” (Meister 2011: 106). Indeed, in their analysis of the constitution, The Carnegie Endowment for International Peace claimed that the version of Iraq’s history presented in the preamble was titled towards a Shia and Kurdish interpretation (Brown 2005).

The new Iraqi constitution laid the foundation for a ‘civic nation’ made up of the distinct identities of Iraq’s main constituent elements of Arab Shia, Arab Sunni and Kurdish religious and secular populations (Jawad 2013: 5). However, as Mutua (2012: 36) notes, such schemes fail to curtail the problem of ethnicity and reduce the legitimacy of the state in that “ethnic groups retain a consciousness that stubbornly refuses to transfer loyalty from the group to the whole nation.” With Iraq’s authoritarian past in mind the new constitution laid the foundation for a federal state that in theory would not allow for the sectarian oppression of old.  However, the constitution suffered from a lack of clarity on many issues relating to the new federal system meaning that it raised more complications that it meant to solve. While the constitution details the structure of a federal system in Iraq, there is a considerable lack of clarity on exactly how state powers are divided.

For example, the constitution states that the regions (or governorates not part of a region), within Iraq are free to make their own constitutions so long as they do not derogate the main constitution. However, the matter becomes clouded in the case of the Kurds, thus far the only region in Iraq to have its own constitution. Tensions have arisen between the central government of Iraq and the autonomous Kurdish region over the export of oil and investment of revenues due to the lack of clarity in the constitution on the balance of power between the central government and the Kurdish region, which was granted special autonomy in the new constitution (Jawad 2013: 20). The constitution suffers from a lack of clarity in general regarding Iraq’s natural resources and how the proceeds of their exploitation may be distributed leading to fears that people living in areas that do not have oil or gas fields may be excluded from a share in the country’s wealth (Ghai and Cottrill 2005: 5).

It is not only the issue of the federal system and Iraq’s natural resources that the constitution is unclear on. While the constitution sets forth several noble aims designed to safe guard the rights of all Iraqis there is a distinct lack of substance on how some of these aims may be achieved. For example, while the constitution names the High Commission for Human Rights, the Independent Electoral High Commission and the Commission on Public Integrity and Supreme Federal Court, there is little detail given on how these structures will actually operate (Brown 2005: 4 and Ghai and Cottrill 2005: 24).

Other deficiencies present in the constitution include; the procedures for dealing with the resolution of electoral disputes (Ghai and Cottrill 2005: 13); the exact role of the vice-president and whether there is to be one or not, the rules governing the relationship between the Prime Minister and the President (Ghai and Cottrill 2005: 18), the regulatory bodies to oversee the armed forces and intelligence services (Ghai and Cottrill 2005: 22), whom has the authority to explore for oil and gas in yet unexplored areas – the central government or Iraq’s regions and governorates (Ghai and Cottrill 2005: 33).

In summation of the new Iraqi constitution, Jawad (2013: 23) states that “given its broad deficiencies, [it] has garnered almost no respect from the government which it is supposed to guide.” Which in itself is as much a danger as a constitution that does not protect the right of all citizens. A concrete example here being the issue of de-Ba’athification. While the constitution refers to the banning of the Saddamist Ba’athist ideology and exempted members of the old Ba’ath party from being held accountable because of their prior membership, both concessions to the Sunnis involved in the drafting process, the implementation of the policy of de-Ba’athifcation ultimately fell under the remit of the Higher Commission for De-Ba’athification, which has received complaints following the alleged unfair disqualification of Sunni members of the al-Iraqia Party (Jawad: 2013: 18). Furthermore, to abolish the Higher Commission for De-Ba’athification would require an absolute majority of parliamentarians, as opposed to a simple majority (Brown 2005: 15). As such, the constitution does little to secure any protection for Iraq’s Sunni population that fell foul to the policy of de-Ba’athification.

The various assessments of the Iraqi Constitution are not to damn the idea of a federal system, which could well be the best option for Iraq going forward, rather the critiques highlight the ways in which the foundations of such a system should be constituted. And, if not done properly, there are clear and present dangers, including a lack of protection for minorities, the break-up of the Iraqi state into various antagonistic regions, and, pertinent to Iraq’s history, the rise of authoritarian rule that infringes on the rights of the people that a democracy is meant to guarantee.

ENDNOTE

The tenth anniversary of the war that brought democracy to Iraq was marked without celebration by the Iraqi people (The National 2013). A little less than a month after the eleventh anniversary in April of 2014 the country held its third national elections, under a Prime Minister whose re-election in 2010 was surrounded by controversy^[3], and who since then assumed the posts of Minister of the Interior and Minister of National Security Affairs, amid accusations of ignoring his partners in the coalition government and attempting to concentrate power in his own hands (Ruhayem 2012); a fugitive vice president sentenced to death in absentia in 2012 after an Iraqi court convicted him of running death squads while in office; and violence rising since the beginning of 2013, committed along sectarian lines with accusations aimed at all quarters; the central government, regional authorities, insurgent groups, local militias, not to mention al-Qaeda linked movements – democracy in Iraq, based on the promotion and protection of human rights, appeared to be not functioning as it should. In June of 2014, the Islamic State in Iraq and the Levant invaded Iraq from their stronghold in Syria and in the face of a deserting Iraqi national army were able to gain control of huge swathes of land in the north of the country, including Iraq’s third largest city Mosul.

PART THREE: THE MANAGEMENT OF VIOLENCE … COMING SOON

FOOTNOTES

1. ^{^} Below are some quotes taken from various ‘experts’, academics and government officials, including Donald Rumsfeld, on the lack of a democratic tradition in Iraq’s history (Dawisha 2005: 11-12):

“There has not been a single day of democracy in Iraq in its history” opined Middle Eastern specialist Murhaf Jouejati. Edward Peck, former American Chief of Mission in Iraq agrees: “Lacking any previous experience with democracy, there is no manual or guide to which the Iraqis can turn.” Further endorsement came from Larry Diamond, the eminent Stanford University expert on democratic transitions: “The social, economic, and political conditions for establishing democracy in Iraq are far from favourable. Unlike Germany, Japan and Italy, Iraq has no prior experience with multiparty democratic, or at least semi-democratic, government.” This was confirmed by another prominent specialist, Thomas Carothers, who wrote in an op-ed, that in Iraq “experience with democracy [was] absent.” Beyond the opinions of independent experts and specialists, this scepticism seems to have prevailed within the government. Indeed, even Secretary of Defence Donald Rumsfeld, a persistent public advocate of Iraqi democratization, had to concede that the country “has no experience of democracy and representative government” and the General Accounting Office in a report to Congress stated categorically more than once that “Iraq lacks a democratic tradition.”

2. ^{^} Although most of the fighting was largely carried out by tribal forces, intellectuals in Baghdad and other major cities “gave the revolution an ideological framing and provided the tribes with a valuable awareness and sense of national direction” (Kadhim 2012: 6). Furthermore, discussions had been had across the country and violent action was only considered when it became apparent that legal demands and peaceful demonstrations failed to get results. (Khadim 2012: 109)

3. ^{^} Despite narrowly coming second to Ayad Allawi in the 2010 elections, four months after the elections took place Nouri al-Maliki was chosen by the Council of Representatives of Iraq to remain in his position as Prime Minister.

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