Race for order in Iraq

By , Staff writer of The Christian Science Monitor

As an attorney in Saddam Hussein's Iraq, Moniem al-Khatib says he practiced law in a lawless land subject to a dictator's whim. He arrived in court each day unsure what new decree Mr. Hussein might announce. He saw powerless citizens falsely condemned, he says, while ruling Baath Party bosses drove through stoplights or tortured enemies at will.

This month, Mr. Khatib watched on television from exile in London as Hussein's regime collapsed and looters stripped Baghdad of everything from bathroom fixtures to the animals at the city zoo.

Out of these tatters, exiles such as Khatib, jurists who stayed behind, and their new American occupiers face the daunting task of rebuilding the rule of law in Iraq.

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They must restore judicial independence and citizens' confidence, cleanse the Iraqi legal code of Hussein's egregious decrees, and prosecute former leaders who committed crimes against their people.

But most crucial of all is the need to move rapidly: Other nation- building experiences have shown it may be only weeks before Iraqis lose faith in a new government that can't maintain order and fairly punish those who commit crimes.

Slow progress in Haiti and Kosovo taught nation-builders the vital role the rule of law plays in reestablishing stability. "Without that there is no conducive environment for reconstruction," says Jamal Benomar, a UN official who has helped rebuild legal systems around the world.

In Iraq, at least, jurists won't have to start from scratch. The country has no shortage of good laws on the books, with a strong legal tradition dating back to Hammurabi's ancient code of justice - one of the earliest known bodies of law.

Modern Iraqi law, last overhauled in the late 1960s, is an amalgamation of the Napoleonic codes and Islamic sharia with hints of the Ottomans and British who once ruled there. The result resembles the Egyptian legal code: It contains some concepts familiar to Westerners such as presumption of innocence, while sharia governs family relations.

Exiled Iraqi lawyers say Hussein gradually perverted this justice system during three decades in power, adding decrees to the criminal code that banned most forms of publishing, legalized torture, and sentenced army deserters to death.

More problematic, Khatib says, was the signal Iraqi leaders sent that the law didn't apply to them. "The whole Iraqi people were divided into two kinds: the rulers above the law and the underdogs," says Khatib, who was working in Europe when Iraq invaded Kuwait in 1990 and decided not to return.

In the absence of justice under Hussein, Iraqi citizens looked for informal ways of resolving disputes, turning to Baathist officials to take their sides. "It's like the mafia," says Charles Forrest of the US-funded International Campaign to Indict Iraqi War Criminals. "The godfather helps and asks you to return the favor one day."

Regaining lost confidence in the courts and police will be the most pressing task, experts say. Someone must weed out Hussein's most flagrant decrees as well as lawyers and judges tainted by their association with the Baath Party. Iraqi exiles and international observers estimate half of the judges now in office should stay.

But many of the best legal minds retired early or fled the country.

Take Fuad Jawad Ridha, a judge who oversaw supervision of other judges for the Ministry of Justice. "I couldn't sustain this regime," says Mr. Ridha, who fled Iraq in 1990 rather than accept government bribes, and eventually obtained asylum in the United States. "I served justice as much as I could."

Of those who remained, a recent US Army study found, few judges were willing to take risks or suggest improvements as government minders waited to slap down signs of independent thought.

Who does the winnowing?

Exiled attorneys say having Iraqi lawyers cut out the rotten parts of the judiciary is a vital part of restoring its independence.

"Given the history of subordination of the judiciary to the office of the president under Saddam Hussein, it's critical that separation happens as early as possible," says Sermid al-Sarraf, a Los Angeles attorney who serves on a State Department committee of exiled attorneys. He argues that a convention of jurists should be formed from exiles and lawyers who remained in Iraq with the responsibility to appoint judges.

A more pressing concern is how those caught looting or committing other crimes during this early phase of occupation should be punished. According to the Geneva Convention, Iraqi law governs during the occupation except where it would endanger the occupier. But Iraqi exiles say American military commanders on the ground are not familiar with the Iraqi laws they're supposed to be enforcing.

And civil disorder hasn't spared Iraqi courthouses. A US Army assessment in the southern city of Nasiriyah found courts looted and gutted, stripping justice of a home from which to operate.

Once the courts are functioning again, the job will shift to reforming the legal codes. One area of law likely up for change, says Ridha, is the discriminatory nationality law that favors Arabs. But what other laws may be changed is a decision that can wait, say exiled attorneys, who emphasize it must be the Iraqi people who decide what reforms to adopt.

That hasn't always been the case in countries such as Haiti and Bosnia, where bright young lawyers from abroad started drafting new laws without learning each country's unique legal history, Mr. Benomar says.

"They wind up alienating all the progressive reform-minded lawyers from Day 1," says Benomar. As in Afghanistan, outsiders may quickly learn that the country's formal legal system handles only a fraction of disputes. The remainder are resolved informally by clan leaders or other authority figures outside the judicial system.

Prosecuting Iraqi leaders

The third and potentially lengthiest process will be bringing to trial Iraqi military officers and Baath Party leaders who committed crimes against the Iraqi people, US soldiers, and other foreigners during the Iran-Iraq War and the invasion of Kuwait.

Exiled attorneys, US officials, and international human rights groups disagree whether Iraqi courts or an international tribunal like those created in Yugoslavia and Sierra Leone should handle perpetrators.

US officials have pledged that Iraqis will take the lead in bringing their own to justice. But the US has reserved the right to punish those responsible for crimes against its troops during both Gulf wars - a category that could swallow up many of the most wanted.

Exiled Iraqi attorneys have proposed a three-pronged process that would treat separately crimes of varying severity.

High-ranking Baath Party and military officials charged with crimes against humanity and genocide would be tried by a special Iraqi court. Lower-level offenders would be tried before Iraqi criminal courts for offenses, including murder.

A separate forgiveness and reconciliation commission, modeled on the one used in South Africa, would handle lesser crimes. Both perpetrators and victims would be able to approach the commission. After a full declaration by the perpetrator, the commission would decide whether an apology is sufficient or restitution and compensation are necessary.

Some international groups, including Human Rights Watch and Amnesty International, are calling for Iraq's top war criminals to be tried in an international forum presided over by foreign judges or a mix of foreign and Iraqi judges.

Iraqi lawyers stress that Iraqi citizens must pass judgment on their own. "People ... don't like to see their own citizens tried by an invading army," says Khatib, who hopes to return to Iraq and restart his law practice advising multinational companies. "Let the people who were victimized by the regime be present to see justice done by Iraqis against Iraqis."

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