Will Iraq Ever Have Reconciliation?

As Prime Minister Nouri al-Maliki visited the United States in July 2009 President Obama repeated the common refrain that he hoped that there would eventually be reconciliation in Iraq. The Washington Institute for Near East Policy issued a report on this very topic on July 17 entitled, “How This Ends: Iraq’s Uncertain Path toward National Reconciliation.” In it, authors Michael Eisenstadt and Ahmed Ali document the steps that the American and Iraqi governments have followed to try to achieve this goal, and find their efforts lacking, and the prospects of making amends unlikely.

Reconciliation is important in countries that have recently gone through armed conflict. It provides greater stability and lessons the chances of a return to chaos. Successful reconciliation processes in Argentina, Chile, El Salvador, Honduras, Mozambique, South Africa, and Uruguay all shared the following steps:

1. Some form of truth telling
2. Recognition that all groups in the country are fellow citizens
3. Compensation programs and trials for some
4. Public peace events

Iraq has had some of these, but also gone against others. A major problem is that the United States and various Iraqi groups do not have a shared vision of what reconciliation means.

America’s policies have changed over time, and been a mixed bag. At first, U.S. efforts were focused upon making up for their own early mistakes. This included integrating Sunnis into the security forces and politics after the Coalition Provisional Authority disbanded the Iraqi Army and initiated deBaathification, and paying compensation to families that were harmed by the military. The U.S. has also stressed ethnosectarian power sharing through the passage of laws, and mediation between Sunnis, Shiites, and Kurds. Norwegian Iraq expert Reidar Visser has argued that this is a misreading of Iraqi politics and maintains differences in the country rather than helps heal them. Not only that, but the results of these early strategies were very poor. Few laws pushed by the U.S. have been passed for example, and the ones that were have not been implemented as planned. During the Surge, the American forces began working with insurgents and militiamen that were willing to give up fighting in a bottom-up approach. This was much more successful, and directly led to the decrease in violence. At the same time, the U.S. has not been able to link many of the groups they worked with to the Iraqi government such as the Sons of Iraq.

Many of Baghdad’s policies on the other hand, have been interpreted as retribution or done for political gain. Examples of the former were deBaathification and the trial and execution of Saddam Hussein, and cases of the latter were the moves by Prime Minister Nouri al-Maliki. In June 2006 Maliki announced a 24-point plan that included amnesty, conferences, changes in deBaathification and the constitution, compensation, punishment for war criminals and terrorists, and the creation of a national dialogue council. Baghdad did compensate victims of the former regime, and passed an Amnesty Law and Accountability and Justice Act, which replaced the old deBaathification process created by the Americans. The Amnesty Law has only freed a few thousand prisoners, and has mostly been used for public relations purposes, while the Accountability Act has never been implemented. Baghdad created the Supreme Committee for Dialogue and National Reconciliation, which works with tribes, civil groups, political parties and religious leaders, but it has no staff, and parliament cancelled its funding. There is also the much more important Follow-Up Committee for National Reconciliation that vets former officials and soldiers to be re-integrated, and works with the Sons of Iraq, Tribal Support Councils, and the displaced. Both are headed by Maliki confidants, and have been accused of supporting the Prime Minister’s personal agenda. Sunnis in parliament also set up the National Reconciliation Committee to follow their vision. It mostly works to free Sunni prisoners. The government has integrated several thousand former soldiers and officers into the security forces or pays them pensions. There have also been examples of local reconciliation. The rest of Baghdad’s goals have been largely unmet, and led to accusations about the government’s intentions rather than helped heal wounds.

Eisenstadt and Ali finish by saying that reconciliation in Iraq will take years, and may never occur in a meaningful fashion. The problems are large and many. First, the major Iraqi political parties are based upon ethnosectarian politics, and could lose power if they give that up. Second, there is still fighting in Iraq, and a World Bank study on conflicts found that almost 50% of countries coming out of civil wars fall back into them within five years. Third, there is little consensus in Baghdad on major issues such as oil, and politics are fragmented, which makes it hard to conduct negotiations or find partners. Fourth, there is a lack of accountability as many militants are involved in politics and security with no regret for their past deeds. Fifth, many conflicts and fighting took place within communities, not just between them, which has never been resolved. Sixth, many groups still talk about revenge, and see things in zero-sum terms. Seventh Iraq has been in the throes of elections since 2008, which makes compromising more difficult. Last, Iraq’s neighbors have all interfered in its internal affairs, and continue to do so to this day such as Iran. These problems may never be overcome, which is why the authors are so pessimistic about the country’s future. Iraq’s government will continue, but without resolving some of these large and pressing concerns, it’s unlikely that major changes or legislation will be implemented, which are a necessity to pull the country out of its current predicament.

SOURCES

Biddle, Stephen, “Reversal in Iraq,” Center for Preventative Action Council on Foreign Relations, May 2009

DeYoung, Karen, “Obama Calls on Iraq to Foster National Unity,” Washington Post, 7/23/09

Eisenstadt, Michael and Ali, Ahmed, “’How This Ends’: Iraq’s Uncertain Path toward National Reconciliation,” Washington Institute for Near East Policy, 7/17/09

Visser, Reidar, “Biden, US Policy in Iraq and the Concept of Muhasasa,” Historiae.org, 7/6/09

Baghdad Responds To Renewed Violence Pt. II: Baghdad Re-Arresting Prisoners Released By Americans

The recent spate of bombings and violence in Iraq has led the authorities to blame prisoners released by the Americans as one major cause. Under the Status of Forces Agreement (SOFA) the U.S. is to either release all detainees or turn them over to the government. In December 2008 American forces held over 15,000 Iraqis. Even before the SOFA was signed the U.S. had been stepping up its process of releasing them, letting 16,000 out in the first ten months of 2008. In 2007 the commander of U.S. detention facilities set up an extensive program to rehabilitate the Iraqis held by giving them religious, educational, and vocational classes. Now about 50 Iraqis are being released a day. By the summer of 2009 the American military plans to close down their main prisons, and release all but 2,500-5,000 that are considered the worst prisoners by the end of the year.

When the U.S. began releasing prisoners in 2007 it raised concerns of American commanders, and it now has become an issue with Iraq’s politicians. In February 2008, U.S. officers told the Christian Science Monitor that they were worried that the ex-detainees might jeopardize security. In October, the police chief in Ramadi said that he was keeping a close eye on former prisoners, and paying some of them to be spies. As more were released, an Iraqi police colonel in a town in Anbar said he was being overwhelmed by ex-prisoners, and had arrested 70 of them. The deputy police commander in Fallujah said they were looking for 10% of the detainees, while an intelligence officer at the Interior Ministry was worried about Shiite militants regrouping as Special Groups in Basra and Baghdad. He claimed 60% of the prisoners were returning to militancy. These were all local officials expressing their concerns.

When a spate of mass casualty bombings occurred in Baghdad however, the issue became a national one. Prime Minister Nouri al-Maliki gave an interview with the BBC at the end of April 2009 where he blamed the attacks on the Americans’ release program. It was then announced in May that the government was beginning a program to re-capture many of the people let go by the Americans. Later in the month the Prime Minister said that he wanted to amend the Amnesty Law passed in February 2008, claiming that it released too many prisoners. While Baghdad has announced that 132,838 people had been amnestied as of May 18, 2009 only around 6,300 were actual prisoners that were released. The rest were people on bail, parole or had warrants on them.

Freeing prisoners held by the U.S. was a major concern of the Iraqis during the negotiations over the SOFA. 85% were said to be Sunnis, and the main Sunni party the Iraqi Accordance Front and its leader Vice President Tariq Hashemi had been pushing for their release for years. The handover of prisoners by the Americans was also a sign of Iraq’s sovereignty. That symbolic gesture may now be coming to an end. It’s likely that some of these former prisoners are returning to their insurgent and militia pasts now that they are free. At the same time, Baghdad is searching for scapegoats to divert attention away from the increase in attacks and deaths. Together they give a powerful incentive for the government to begin rounding people up, at least for the time being, to show that the security forces are doing something to counter the rash of violence.

SOURCES

Agence France Presse, “Iraqi detainees refusing to go home: US general,” 3/23/08

Alsumaria, “US Army releases about 3000 Iraqi detainees,” 3/18/08

Associated Press, “US military says number of detainees falling,” 3/3/09

Aswat al-Iraq, “132,838 inmates released so far under Amnesty Law,” 5/18/09
- “Some inmates released by U.S. are wanted by Iraqi authorities – official,” 4/24/09

Boot, Max, “We Are Winning. We Haven’t Won,” Weekly Standard, 1/28/08

Cordesman, Anthony, “Iraq’s Insurgency and Civil Violence,” Center for Strategic and International Studies, 8/22/07

DPA, “US to transfer Iraqi prisoners to local authorities,” 12/11/08

Eisenstadt, Michael, “Populism, Authoritarianism, and National Security in al-Maliki’s Iraq,” Washington Institute for Near East Studies, 5/12/09

Haynes, Deborah, “US risks fanning violence as it opens gates of Iraqi detention camps,” Times of London, 4/20/09

IRIN, “IRAQ: Lawyers accuse government of concealing information about detainees’ UN Office For The Coordination of Humanitarian Affairs, 9/19/07

Kingsbury, Alex, “In Iraq, U.S. Marines Rely on Allies Like a Hatchet-Wielding Colonel to Keep the Peace,” U.S. News & World Report, 10/30/08

Lubold, Gordon, “A new U.S. push to release more detainees in Iraq,” Christian Science Monitor, 2/22/08
- “Do U.S. prisons in Iraq breed insurgency?” Christian Science Monitor, 12/20/07

Muir, John, “’No Delay’ in US withdrawal from Iraq,” BBC News, 4/27/09

Peter, Tom, “Iraqi courts to decide fate of America’s detainees,” Christian Science Monitor, 1/29/09

Pincus, Walter, “U.S. Working to Reshape Iraqi Detainees,” Washington Post, 9/19/07

Pincus, Walter and Greenwell, Megan, “U.S. Releases 260 Iraqi Detainees,” Washington Post, 9/23/07

Reilly, Corinne, “As clock ticks, U.S. letting thousands of Iraqi prisoners go,” McClatchy Newspapers, 10/27/08

Reuters, “Iraq PM slams law pardoning mainly Sunni prisoners,” 5/23/09

San Francisco Chronicle, “U.S. military divided on troop withdrawal,” 8/25/07

Special Inspector General for Iraq Reconstruction, “Quarterly Report to the United States Congress,” 4/30/09

Stone, Andrea, “Some worried about detainee transfer to Iraq,” USA Today, 1/26/09

United Nations Office for the Coordination of Humanitarian Affairs, “Humanitarian Update Iraq February 2009,” 2/28/09

Zair, Kareem, “Iraq to re-detain released prisoners,” Azzaman, 5/16/09

Iraq’s Anti-Corruption Agencies

Iraq’s anti-corruption agencies continue to struggle with their job. The Minister of Planning Ali Baban told the Special Inspector General for Iraq Reconstruction (SIGIR) that he thought corruption was worse now than under Saddam. He said that corruption was rampant throughout the government, and that Baghdad had failed to stop it. The investigative group Transparency International supports Baban’s claims. They look into corruption in governments across the world. In 2003 they ranked Iraq 113 out of 133 governments on its annual corruption index with one being the best and 133 the worst. By 2008 Iraq was tied as the second most corrupt government in the world out of 180 nations. According to SIGIR’s evaluation, of Iraq’s three anti-corruption agencies only one was doing its job.

Iraq has three offices that are tasked with stopping corruption. Those are the inspector generals, the Board of Supreme Audit, and the Commission on Public Integrity. The Coalition Provisional Authority (CPA) created the inspector generals in 2004. They were fashioned after the investigative bodies that work in the United States government. There is one inspector general for each Iraqi ministry and agency. The Board of Supreme Audit is run by Dr. Abdul Basit, and looks into the government’s finances. It is similar to the American Government Accountability Office. The third agency is the Commission on Public Integrity led by Judge Raheem al-Ogaili. It was created by the CPA as well, and is an independent group that is tasked with investigating corruption throughout the government.

Prime Minister Nouri al-Maliki declared 2008 the year of fighting corruption, but SIGIR found little evidence of that. SIGIR said that the Board of Audit was the only reliable anti-corruption agency, and provided the best information. The inspector generals are caught in the middle of a controversy. Since 2008 six have been fired, but only a few of those have been replaced, leaving those agencies and ministries with no real oversight. The government claims they were not doing their job, but critics claim Prime Minister Maliki removed them for political reasons. Judge Ogaili of the Public Integrity Commission was definitely a political appointee. He took over from Judge Radhi Hamza al-Radhi who actively pursued corruption cases, but was constantly foiled by ministers, Maliki, and sometimes by the United States. In 2007 Judge Radhi fled Iraq due to threats. His successor was Judge Ogaili. He has been in office for over a year but has never been confirmed by parliament. The judge has said that corruption gives Iraq a bad image. His response has been to keep all the work of the Commission secret. He said his agency would only discuss cases after people have been found guilty. That rarely happens in Iraq. In 2008 only 300 officials were charged with corruption, and out of those 87 were found guilty. All were low-level officers. No high-level officials have ever had to go to court. That’s largely because of Article 136, a hold over from the Saddam period that allows ministers to stop any case from going to trial. This has consistently been used to stop corruption investigations. The Amnesty Law passed in 2008 that was supposed to foster reconciliation between Shiites and Sunnis has also been used to stop hundreds of corruption cases. The Commission on Public Integrity said it had to drop half of its investigations as a result of the law. By the end of 2008 the Prime Minister pardoned 1,023 government workers. Those included a group of Interior Ministry officers that were collecting salaries of 50,000 fake policemen, and Defense Ministry officials that skimmed money off of arms sales to Iraq. Maliki’s position is that corruption is all the result of Saddam Hussein, and would like to have the issue quietly disappear.

The International Monetary Fund (IMF) has also criticized Iraq’s fight with graft and fraud. The IMF has an agreement with Iraq to reduce its debt that includes better accounting of its oil profits. In 2008 the IMF said that Baghdad had not moved forward on this, and did not have a plan on how to create greater transparency. In December the organization said that Iraq had not done enough to fight corruption in the petroleum sector as a result.

The U.S. has often said it is committed to fighting corruption in Iraq, and has several programs to do so, but that appears to be more rhetoric than reality. The U.S. embassy in Baghdad has an anti-corruption coordinator, but there have been ten of those since the office was created. On average they have only served six months in Iraq, with the latest one just arriving in the country. That provides no continuity in effort. In May 2008, two State Department officials who worked in Iraq on this task said that the U.S. was never committed to the fight. The Americans have also stopped some investigations because of political concerns. A U.S. official told Reuters in December 2008 that if the U.S. or Baghdad really went after corruption, it could bring down the government because of the high officials that would be implicated.

Corruption has taken a great toll on Iraq. The former head of the Public Integrity Commission said that $13 billion had been lost in the reconstruction effort. The agency found oil workers in Basra stealing up to 500,000 barrels of oil a day in early 2008. No one of standing has been held accountable for these crimes. Instead, Prime Minister Maliki has attempted to silence the investigations fearing the bad image it creates for his country. That hinders development in a country that has mass unemployment and poverty despite its oil wealth, and undermines the public’s belief in the government. This was seen in the recent January 2009 provincial elections where corruption was a major issue. With no leadership from either the United States or Baghdad, this problem will continue to fester.

SOURCES

Adhoob, Salam, “An Inside View of the ‘Second Insurgency’: How Corruption and Waste Are Undermining the U.S. Mission in Iraq,” Senate Democratic Policy Committee Hearing, 9/22/08

Aswat al-Iraq, “Iraq among countries with highest levels of corruption – report,” 9/23/08

Brinkley, Joel, “Iraq quietly tackles rampant corruption,” San Francisco Chronicle, 1/24/09

Flahert, Anne, “Ex-officials: Bush admin. ignored Iraq corruption,” Associated Press, 5/13/08

Glanz, James and Mohammed, Riyadh, “Premier of Iraq Is Quietly Firing Fraud Monitors,” New York Times, 11/18/08

Human Rights Watch, “The Quality of Justice, Failings of Iraq’s Central Criminal Court,” December 2008

O’Hanlon, Michael and Campbell, Jason, “Iraq Index,” Brookings Institution, 11/20/08

Ryan, Missy, “U.S. Says Iraq Fails to Tackle Corrupt High Officials,” Reuters, 12/19/08

Special Inspector General for Iraq Reconstruction, “Quarterly Report to the United States Congress,” 10/30/08
- “Quarterly Report and Semiannual Report to the United States Congress,” 1/30/09

U.S. Embassy, “Review of Anticorruption Efforts in Iraq Working Draft,” 2007

Human Rights Watch Report On Lack Of Due Process In Iraqi Justice System

In December 2008 Human Rights Watch released its review of Iraq’s justice system entitled, “The Quality of Justice, Failings of Iraq’s Central Criminal Court.” The Americans largely created Iraq’s justice system from scratch after the U.S. invasion. The Coalition Provisional Authority (CPA) said that it wanted to create a court system that would follow international and Western norms, and give the Iraqi public confidence in their new government. After having observed several court cases, and interviewed Iraqi and American officials, Human Rights Watch reported that Iraq and the U.S. had failed to achieve these goals. It found abuses of detainees were common, and that the country lacked due process and fair trials.

The Central Criminal Court of Iraq is the highest in the country. The CPA created the Central Court after the U.S. invasion in July 2003. The Court is meant to deal with the most serious criminal cases. It has jurisdiction over the entire country, and priority over all other courts. It has two branches, one is the Karkh Branch in the Green Zone, and the other is the Rusafa Branch in the Rule of Law Complex, both in Baghdad. The Court and the rest of the justice system is based upon old Saddam era legislation, as well as international law and treaties Iraq signed in the past including agreements on human rights, due process, and bans on torture. The 2005 Iraqi Constitution also guarantees a number of rights such as protection from torture, innocence until proven guilty, a hearing within 24 hours of arrest, a fair trial, legal defense, etc. While Iraq has all the fixings of a Western style justice system, in practice, the courts do not follow the rule of law.

One example is the fact that detainees are held for months, sometimes years before they ever have a hearing. In Iraq, detainees have a hearing before a judge to decide whether their case should go to trial or not. Iraqi law says that people can only be held for 24 hours, with a one-day extension, after their arrest. During the Surge, the number of prisoners dramatically shot up. The amount of people held went from 17,000 at the end of March 2007 to 23,000 by the end of the year, not including Kurdistan. This overwhelmed the already fragile system. There are simply not enough judges to deal with the number of cases, which causes a huge delay in hearings. At the Karkh Branch for example, 10 trial judges, 25 investigative judges, and 15 investigators had to deal with 32,084 cases in 2007. The backlog of cases will take years to get through. Despite the huge reduction in violence, new arrests are still being added to the system as well.

In February 2008, Iraq’s parliament passed an Amnesty Law, partially aimed at relieving the crowded prisons. The law applies to anyone that has been held for six months without having seen a judge. The Iraqi Justice Ministry has routinely made claims that tens of thousands have been affected by this act. On December 14, 2008 for instance, the Iraqi Chief Justice Abdelsattar al-Berqadar said that 125,000 people had been given amnesty. Neither the United Nations nor Human Rights Watch however, has noted any real change in the number of detainees since the law was passed. Human Rights watch found that the vast majority of those affected have been suspects on wanted lists or those on bail, rather than people being held or incarcerated. In September 2008 Human Rights Watch noted that only 5,000-8,000 actual prisoners had been released. A member of the Iraqi Islamic Party said that 17,000 had been freed by December. Again, there are not enough judges to review the cases under the Amnesty Law. Iraqi officials have also asked for bribes from families to release prisoners. Like many of the country’s reconciliation acts, the government has simply not implemented the Amnesty Law the way it was supposed to.

Number Of Detainees Held By Iraq (Including Kurdistan) Before And After The Amnesty Law: January to June 2008

January: 26,676
February: 26,854 – Month Amnesty Law Was Passed
March: 32,458
April 28,283
May: 28,028
June 27,366

A second problem is the routine abuse of prisoners in Iraqi jails. Suspects are usually beaten to gain confessions. Iraqi criminal code and international obligations makes this illegal. Human Rights Watch did observe cases where judges dismissed cases because the defendant had been tortured, but it hasn’t stopped the practice.

An added difficulty is the fact that no one has ever been held responsible for this mistreatment. Under Article 136 if torture happens during the line of duty, the minister in charge of the official who committed the act has to permit the case to go to trial. This has never happened. Attempts to overturn Article 136, and create new legislation against torture have all failed.

Human Rights Watch also believes that prisoners don’t get a real defense at their hearings and trials. The Iraqi Constitution says that defendants have the right to legal representation. Most cases that Human Rights Watch observed did have a lawyer present. However this was usually the first and only time that they met their clients. There were also cases where there were no defense lawyers. Prisoners also often don’t get the same lawyer at their trial as they had at their hearing. At both of those proceedings there is also an utter lack of witnesses and evidence. Forensic evidence and investigation is almost unknown in Iraq. Many cases relied upon confessions, often gained from beatings, or secret informants. There are times when this testimony has been dismissed, but one court investigator estimated that 40% of all cases relied upon informants. A judge said that although this allowed abuses, it had to happen due to the security situation in the country. Human Rights Watch believes these two issues severely limits the rights of defendants because they are unable to challenge the claims against them.

Despite the U.S. creating the Iraqi legal system, it has refused to follow it itself. The U.S. has repeatedly said that it will not follow Iraqi laws or court rulings that deal with prisoners they hold. From 2003 to 2007 there were 367 cases in which the Criminal Court either dismissed the charges against a person held by the U.S. or found them innocent, but the Americans refused to let them go. The U.S. does claim that they review cases to see if they can be turned over to Iraqi courts, but that only happens 10% of the time. This undermines the Iraqi justice system as a foreign country holds Iraqis, yet refuses to follow Iraqi law. As reported earlier, this is due to change in February 2009 as the United States begins handing over the roughly 15,000 prisoners it holds to Iraqi authorities. While an important step for Iraqi sovereignty, it will also add thousands more cases to the Iraqi system that already can’t handle what they have.

In conclusion, the U.S. set up the Central Criminal Court and the Iraqi justice system to help create a new Iraqi society based upon the rule of law. While officially, the country has many of the same rights as western countries, it follows few of them. After being arrested, Iraqis wait months or years to have a hearing, at which time they usually see a lawyer for the first time, and can be presented with a confession they gave under duress, or are accused by a secret witness. Until Iraq has enough judges to deal with the high number of cases, this situation is unlikely to change anytime soon. Iraq’s politicians are also unwilling to act on torture or Article 136, because it protects their party members in the government. Implementing laws is also important for reconciliation, but as the Amnesty Act shows, that’s a long way off. Overall, Iraq’s legal system barley works. It lacks personnel, a commitment to the law, and is open to political interference, a series of problems any country would find hard to overcome.

SOURCES

Aswat al-Iraq, “17,000 prisoners freed under amnesty law – MP,” 12/15/08

Human Rights Watch, “The Quality of Justice, Failings of Iraq’s Central Criminal Court,” December 2008

Leinwand, Donna, “Wheels of justice slowly returning to Iraqi court,” USA Today, 2/26/08

UN Assistance Mission for Iraq, “Human Rights Report 1 January – 30 June 2008,” December 2008