Bremer's "Gordian Knot": Transitional justice and the US occupation of Iraq

Human Rights Quarterly

Volumn 27, Issue 3, 2005, Pages 830-857

  Stover, Eric ^a,b   Megally, Hanny ^c,d   Mufti, Hania ^e  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b Public Health Consultant   (United States)

^c International Centre for Transitional Justice   (United States)

^d AMNESTY INTERNATIONAL   (United Kingdom)

^e Middle East and North Africa   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

POLITICAL CONFLICT; WAR;

ASIA; EASTERN HEMISPHERE; EURASIA; IRAQ; MIDDLE EAST; WORLD;

EID: 27644545959     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2005.0044     Document Type: Article

References (90)

1. See Michael R. Gordon, Faulty Intelligence Misled Troops at War's Start, N.Y. Times, 20 Oct. 2004, at A1.
2. Larry Diamond, What Went Wrong in Iraq, 83 For. Aff. 34, 36 (2004).
3. Reflecting on the Allied occupation on Germany after World War II, the British historian Geoffrey Best captured the conundrum the American occupiers faced in Iraq: "International law expects of decent occupiers a sort of juggling act. They are expected to maintain as much as they can of the normal character amenities of life in the occupied territories, at the same time as they must be allowed to maintain their own presence and security there." See Geoffrey Best, War and Law Since 1945 118 (1994).
4. For a discussion of the obligations of an "occupying power," also see Caryle Murphy, Occupation of Territory, in Crimes of War: What the Public Should Know 263-64 (Roy Gutman & David Rieff eds., 1999).
5. The Coalition Provision Authority Orders are available at www.cpa.gov/ government/governingcouncil.html. Several orders deal with transitional justice measures, including Coalition Provision Authority Order No. 1, De-Ba'thification of Iraqi Society, CPA/ORD/16 May 2003/01;
6. Coalition Provision Authority Order No. 2, Dissolution of Entities, CPA/ ORD/23 May 2003/02;
7. Coalition Provision Authority Order No. 7, Penal Code, CPA/ORD/10 June 2003/07;
8. Coalition Provision Authority Order No. 13 (Revised), The Central Criminal Court of Iraq, CPA/ORD/18 June 2003/13;
9. Coalition Provision Authority Order No. 15, Establishment of the Judicial Review Committee, CPA/ORD/23 June 2003/15;
10. Coalition Provision Authority Order No. 35, Re-establishment of the Council of Judges, CPA/ORD/21 Sept 2003/35.
11. The jurisdiction of the Iraqi Special Tribunal covers the crimes mentioned above as well as violations of stipulated Iraqi laws committed from 17 July 1968 to 1 May 2003. CPA Order No. 48, Delegation of Authority Regarding an Iraqi Special Tribunal, available at www.iraqcoalition.org/regulations/ 20031210_CPAORD_48_IST_and_Appendix_A.pdf. Article 14 of the statute provides: The Tribunal shall have the power to prosecute persons who have committed the following crimes under Iraqi law: a) For those outside the Judiciary, the attempt to manipulate the judiciary or involvement in the functions of the judiciary, in violation, inter alia, of the Iraqi interim constitution of 1970, as amended; b) The wastage of national resources and the squandering of public assets and funds, pursuant to, inter alia, Article 2(g) of Law Number 7 of 1958, as amended; and c) The abuse of position and the pursuit of policies that may lead to the threat of war or the use of the armed forces of Iraq against an Arab country, in accordance with Article 1 of Law Number 7 of 1958, as amended.
12. Id. at 14-5.
13. Early in 1959 the government of Iraq, a military dictatorship, signed the Convention on the Prevention and Punishment of the Crime of Genocide. See Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9 Dec. 1948, 78 U.N.T.S. 277 (entered into force 12 Jan. 1951) (entered into force for U.S. 23 Feb. 1989).
14. See Human Rights Watch, Iraq: State of the Evidence (2004), available at http://www.hrw.org/reports/2004/iraq1104/iraq1104text.pdf.
15. International Center for Transitional Justice (ICTJ) & Human Rights Center, University of California, Berkeley (HRC Berkeley), Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction (2004) [hereinafter ICTJ, Iraqi Voices], available at www.ictj.org/downloads/ IraqDesigned.pdf. A total of 395 people were surveyed through thirty-eight key informant interviews and forty-nine focus group discussions, between 18 July and 13 August 2003.
16. Diamond, supra note 2, at 39.
17. For a description of the range of transitional justice mechanisms, see generally Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (1998);
18. ICTJ, Iraqi Voices, supra note 8.
19. This was the finding of a five-year study of justice and social reconstruction in Rwanda and the former Yugoslavia conducted by the Human Rights Center, University of California, Berkeley. See My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Eric Stover & Harvey M. Weinstein eds., 2005).
20. Id. at 327-39.
21. Eric Stover, William D. Haglund & Margaret Samuels, Exhumation of Mass Graves in Iraq: Considerations for Forensic Investigations, Humanitarian Needs, and the Demands of Justice, 290 J. Am. Med. Assn. 663-66 (2003).
22. Human Rights Watch, The Mass Graves of Al-Mahawil: The Truth Uncovered (May 2003), available at www.hrw.org/reports/2003/iraq0503/.
23. US Office of Reconstruction and Humanitarian Assistance, Mass Graves Action Plan (2003).
24. See Press Release, Human Rights Watch, Iraq: Protect Government Archives from Looting (10Apr. 2003), available at http://www.hrw.org/press/2003/ 04/iraq041003.htm.
25. Human Rights Watch, Iraq: State of the Evidence, supra note 7.
26. See Press Release, Human Rights Watch, Iraq: Justice Needs International Role (15 July 2003), available at www.hrw.org/press/2003/07/ iraq071503.htm.
27. Some Iraqi judges argued that while Iraq's Penal Code does not include genocide in the list of crimes, any defendants facing this charge could be tried under Article 406 of the Code, which deals with murder including mass murder. Law 111 of 1969, art. 406, Iraq Penal Code and Amendments, 6th Edition (2000) (on file with authors).
28. This position had changed somewhat by March 2004 as terrorist and insurgent violence increased and the Bush Administration realized that certain activities, such as elections, would be best managed by the United Nations.
29. Coalition Provisional Authority Order No. 48, supra note 5.
30. Human Rights Watch, Memorandum to the Iraqi Governing Council on 'The Statue of the Iraqi Special Tribunal' (Dec. 2003) [hereinafter Memorandum to the Iraqi Governing Council], available at www.hrw.org/ backgrounder/mena/iraq121703.htm.
31. Human Rights Watch, Iraq: Flawed Tribunal Not Entitled to U.N. Legitimacy (6 Jan. 2004), available at http://hrw.org/english/docs/2004/ 01/15/iraq6942.htm.
32. The death penalty was suspended in Iraq first by General Tommy Franks, the former US Central Command chief, in April 2003 and then by the CPA on 10 June 2003 through order number 7 (section 3(1)). See Coalition Provisional Authority Order No. 7, supra note 4, § 3(1). Under Article 24(a) of the statute of the Special Tribunal, penalties for offenses "shall be those prescribed by Iraqi law. . . ." The death penalty is permissible under Iraqi law for certain offenses in some circumstances. Under Article 24(e), penalties that "do not have a counterpart under Iraqi law shall be determined by the Trial Chambers taking into account such factors as the gravity of the crime, the individual circumstances of the convicted person and relevant international precedents."
33. See Coalition Provisional Authority Order No. 48, supra note 5, art. 24.
34. Coalition Provisional Authority Order No. 7, supra note 4, § 3. Section 3 states: "Capital punishment is suspended. In each case where the death penalty is the only available penalty prescribed for an offense, the court may substitute the lesser penalty of life imprisonment, or such other lesser penalty as provided for in the Penal Code."
35. Some CPA officials told us privately that the death penalty was slowing down the process of gathering and analyzing forensic evidence. Many medicolegal experts, it seemed, wished to have no part in a judicial process that included the death penalty. Yet other CPA officials said it was a non-issue.
36. Human Rights Watch, Memorandum to the Iraqi Governing Council, supra note 22, at 8.
37. The IST Statute provides for the appointment of one or more trial chambers, each comprising five trial judges, and nine judges to sit on the appeals chamber. See Coalition Provisional Authority Order No. 48, supra note 7.
38. See John F. Burns, For Hussein, a Spartan Life at His Former Palace, N.Y. Times, 19 Sept. 2004, at A1.
39. Human Rights Watch, State of the Evidence, supra note 7, at 2.
40. Id. at 20.
41. John F. Burns, US Official Says Early Trials of Huessin and Others Are Unlikely, Despite Allawi's Demand, N.Y. Times, 25 Sept. 2004, at A6.
42. Id.
43. Marlise Simons, Iraqis Not Ready for Trials: U.N. to Withhold Training, N.Y. Times, 22 Oct. 2004, at A11.
44. See David Cohen, Transitional Justice in Divided Germany After 1945, in Retribution and Reparation (Jon Elster ed., 2005).
45. See Phebe Marr, The History of Modern Iraq (1985);
46. Middle East Watch, Human Rights in Iraq (1990).
47. On May 16 Ambassador Bremer decreed the de-Ba'athification process in Coalition Provisional Order No. 1, supra note 4. This order stated that full members, meaning the ranks of 'Udw Qutriyya (Regional Command Member), 'Udw Far (Branch Member), 'Udw Shu 'bah (Section Member), and 'Udw Firqah (Group Member) were dismissed and banned from future employment. They were also evaluated for criminal conduct and as a security threat to the CPA. Individuals occupying the top three layers of management in every national government, affiliated corporation, or other government institution (universities, hospitals) were interviewed and investigated. Members holding more junior ranks such as 'Udw (Member) and 'Udw 'Amil (Active Member) were also eligible for dismissal. In all cases, the Administrator could grant exception on an individual basis.
48. L. Paul Bremer, Coalition Provisional Authority Press Briefing (25 Nov. 2003) (on file with authors).
49. Coalition Provisional Order No. 5, Establishment of the Iraqi De-Ba' Athification Council, CPA/ORD/25 May 2003/5. Order No. 1, issued by the Commission on 14 September 2004, declared all Ba'ath party members from the rank of 'Udw Firqah (group member) and above as dismissed from their positions and liable to punishment for disobeying this order.
50. See Coalition Provisional Authority Order No. 1, supra note 4.
51. Id. § 3(1)(b).
52. Id. § 3(1)(a).
53. See generally Coalition Provisional Authority Memorandum No. 1, Implementation of De-Baathification Order No. 1, CPA/MEM/3 June 2003/01.
54. Id. § 2(1). In gathering the necessary information the investigators were to rely on sources such as interviews with the individual, public records and announcements, judgments of CPA senior ministry advisors, testimony of Iraqi colleagues, findings of the IDC, assessments of leading Iraqi political figures and government records revealing bonuses or other privileges associated with party membership. An investigator could then make a factual finding about a person's affiliation with the party, inform the individual and advise him/her that they have the right to appeal to the ARCs. The ARCs would not only hear appeals from Iraqis who felt wrongly accused of being Ba'athists but could also review applications prepared by investigators requesting individual exemptions from Order No. 1. The criteria the ARCs would use to grant or deny an exception included requiring the person to denounce the Ba'ath Party and his past association with it, whether the individual was a senior Ba'ath party member or simply a full party member, whether the individual has exceptional educational qualifications, whether the individual left the party before 16 April 2003 (the date of its outlawing by the CPA), whether the individual continues to command the support of colleagues and respect of subordinates, whether the individual is judged to be indispensable to achieving important Coalition interests, and whether the individual can demonstrate he joined the party to hold his job or support his family. In gathering the necessary information the investigators were to rely on sources such as interviews with the individual, public records and announcements, judgments of CPA senior ministry advisors, testimony of Iraqi colleagues, findings of the IDC, assessments of leading Iraqi political figures and government records revealing bonuses or other privileges associated with party membership. An investigator could then make a factual finding about a person's affiliation with the party, inform the individual and advise him/her that they have the right to appeal to the ARCs.
55. Id. § 1(2). In gathering the necessary information the investigators were to rely on sources such as interviews with the individual, public records and announcements, judgments of CPA senior ministry advisors, testimony of Iraqi colleagues, findings of the IDC, assessments of leading Iraqi political figures and government records revealing bonuses or other privileges associated with party membership. An investigator could then make a factual finding about a person's affiliation with the party, inform the individual and advise him/her that they have the right to appeal to the ARCs. The ARCs would not only hear appeals from Iraqis who felt wrongly accused of being Ba'athists but could also review applications prepared by investigators requesting individual exemptions from Order No. 1. The criteria the ARCs would use to grant or deny an exception included requiring the person to denounce the Ba'ath Party and his past association with it, whether the individual was a senior Ba'ath party member or simply a full party m
56. See ICTJ, Iraqi Voices, supra note 8.
57. The official procedures for carrying out de-Ba'athification in the public sector and within government offices and ministries is available in Arabic at the website of the Higher National DeBa'athification Council, available at www.debaath.org/page/ajr_h/ajw.htm.
58. Decision Numbers 1 & 2 of 14 September 2003, issued by the HNDC, and signed by Ahmed Chalabi in his capacity as head of the HNDC are available at www.debaath.org/page/ka_h/index.htm. The decisions banned from nominations anyone who was a member of Special Security, National Security, the special Presidential protection unit, military intelligence, Feda'yeen Saddam, and General Security services.
59. Id.
60. Available at www.debaath.org/page/ka_h/52_k.htm. The committees would review individual cases and where they reached a two-thirds majority agree to bring back the dismissed official. One of the criteria to be taken into account by the Central committees was the "dire need" for the services of the dismissed person.
61. Coalition Provisional Authority Memorandum No. 7, Delegation of Authority Under De-Ba'Athification Order No. 1, at Section 2(1), CPA/MEM/ 4 Nov. 2003/7.
62. Id. § 2(10).
63. Christopher Dickey, The Master Operator, Newsweek, 8 Mar. 2004, at 32.
64. John F. Burns & Ian Fisher, US Seeking to Stabilize Iraq Casts Ba'athists in Lead Role, N.Y. Times, 3 May 2004, at A1.
65. L. Paul Bremer, III, Coalition Provisional Authority, Turning the Page: Baghdad (23 Apr. 2004) available at www.iraqcoalition.org/transcripts/ 20040423_page_turn.html.
66. Jonathan Steele, Anti-Baathist Ruling may Force Educated Iraqis Abroad, Guardian, 30 Aug. 2003, at 16.
67. E-mail from Ali Feisal al Hamad to Hanny Megally (13 Nov. 2004) (on file with authors). He adds that those reemployed underwent a rehabilitation course of several weeks and their employment would be subject to a review by the HNDC after one year, at which point they could be dismissed or permanently reemployed.
68. See Edward Wong & Erik Eckholm, Allawi Presses Efforts to Bring Back Ba'athists, N.Y. Times, 13 Oct. 2004, at A12.
69. See Coalition Provisional Authority Order No. 100, Transition of Law, Regulations, Orders, and Directives Issued by the Coalition Provisional Authority, CPA/ORD/28 June 2004/100. "Revisions of CPA Memoranda Provisions and CPA Memorandum Number 7, Delegation of Authority Under De-Ba'athification Order Number 1: All authority delegated under this Memorandum shall be withdrawn and the Higher National De-Ba'athification Council, established pursuant to that authority, shall be abolished at such time as the Iraqi Interim Government issues an order establishing the Independent Iraqi De-Ba'athification Council."
70. Id. § 6(7).
71. Editorial, Dangers of the Inquisition: How de-Ba'athfication is Helping the Rebels, Economist, 27 Nov. 2003, at 42.
72. Jon Lee Anderson, Out on the Street, New Yorker, 15 Nov. 2004, at 78.
73. Copy of the draft law on file with authors.
74. For a review of the work of truth commissions over the past twenty years, see Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (2001).
75. See, e.g., the final report of the Working Group on Transitional Justice in Iraq and the Iraqi Jurists Association (Mar. 2003) (on file with the authors).
76. See Toward a Truth Commission for Iraq? A Briefing Paper of the International Center for Transitional Justice, Feb. 2004.
77. ICTJ, Iraqi Voices, supra note 8, at 55-56.
78. Id. at 51.
79. Correspondence between Hanny Megally and the British Foreign and Commonwealth Office, April 2004 (on file with the author).
80. Naomi Roht-Arriaza, Reparations in the aftermath of repression and political violence, in My Neighbor, My Enemy, supra note 11, at 123.
81. ICTJ, Iraqi Voices, supra note 8, at 40.
82. Id. at 42.
83. Press Release, Coalition Provisional Authority, Ambassador Bremer Announces Creation of Special Task Force on Compensation for Victims of the Former Regime (26 May 2004), available at www.iraqcoalition.org/ pressreleases/20040526_compensation.html.
84. Id.
85. Id.
86. Hanny Megally Interview with Members of the Reparations Task Force, Amman (March 2005).
87. John W. Dower, Embracing Defeat: Japan in the Wake of World War II 28 (1999).
88. Diamond, supra note 2, at 43.
89. See Human Rights Watch, Iraq: State of the Evidence, supra note 7, at 2.
90. See Report of the International Committee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment, and Interrogation 8 (2004).