Student Brief: Iraq Panel Discussion

Student Blogger Mark Berardi

On September 24, the Federalist Society hosted a panel discussion on the development of a fair legal system in Iraq. The panel members were Ilya Shapiro from the Cato Institute, Daniel Rothenberg from the International Human Rights Law Institute at DePaul University College of Law and Professor Henry Perritt, Jr. from Chicago-Kent College of Law.  Each was asked about their thoughts regarding the rebuilding of the Iraqi legal system and what is necessary to ensure rule of law in the country.

 Ilya Shapiro spent 2 months in Iraq during the summer of 2007 with American military forces in order to help develop the rule of law in Iraq. He stated that it is important for a uniform, legitimate rule of law because without it, there will not be a full recovery in Iraq. The three systems: the court, the police and the prison system, must be established as well as a civil law system that will ensure contracts will be enforced and personal injuries compensated in order for rebuilding and a full recovery to occur. There is a long tradition of law in Iraq and the people want a strong legal system. Even under Hussein's rule, the legal system was one of the least corrupt in the Middle East. The challenge now is not to create law from scratch, but rather, to exercise the "atrophied muscle" of rule of law. The role of everyone trying to rebuild the rule of law was to show the Iraqis how to apply their law, not supplant their law with Western law. Additionally, he observed that many of the prosecutors are women. Despite the fact that the Middle East is not known for its fair treatment of women, many women had gone to law school in Iraq and there are many females attorneys in the country. Therefore, Iraq is primed to become one of the most progressive Middle Eastern countries once political stability and foreign business return.

Daniel Rothenberg's International Human Rights Law Institute has worked in Iraq for the last five years on a variety of projects. He said that "rule of law" is a catchphrase that helps to respond to a need for social order in a context in which social order is highly contested. Rule of law references something that is hard to define because it covers a lot of ground. He mentioned that there were three phases of rule of law in Iraq: the period of time in which the Ba'ath Party ruled 1968-2003, the period of time when the country was under the control of an occupying force, and finally the meaningful transfer to Iraqi sovereign control.  Iraq in the 1970s was the nation that people went to for education and was a country full of effective state institutions, such as licensing and purchasing of property. There has been a long history of functioning legal institutions. Law was a key to state legitimacy. They cared a lot about legal mechanisms and this led to an effective rule of law. At the end of the day, at some basic level, all a functioning state is some political structure that has enough level of functioning rule of law and legitimacy that it can argue for its existence to enough people that it can exist. The reason that rule of law is so important in the discussion of nation building and the reason it is so central to the case of Iraq and American involvement is that it captures something that is a challenge for all of us and people do not know how to build rule of law.

Professor Henry Perritt, Jr. of Chicago-Kent College of Law is planning a trip to Iraq with Chicago-Kent's International Law Society in the next few weeks. Though he has not yet visited Iraq, he has had years of experience studying and visiting Kosovo. He explained that the series of events that Kosovo has endured over the last twenty years were unprecedented and provide an excellent learning opportunity for the world trying to rebuild the rule of law in Iraq. He argued that one of the main lessons learned in Kosovo was to respect the local systems that evolve over time. For example, he found that even though Albanians had no legal standing and were the subject of an ethnic cleansing, they still established rule of law and a rudimentary systems of courts for themselves. Thus, Professor Perritt concluded, there is no reason to create something that is already present and works. In Iraq, before, during and after the fall of Saddam Hussein, there was a working court system. Despite the horrid regime Hussein ran, there was a working civil law system. The main objective in rebuilding Iraq should not be to impose Western law on Iraqis, but rather, to take what is already present and build on that. He postulated that once there was a sufficient rule of law present, that international business will return to Iraq and with it jobs and stability for the country. He maintained that there is a long road ahead for Iraq because it has been so long since there was a working legal system but that the fundamentals are present in Iraq which gave him hope that rule of law will succeed there.

All of the panelists agreed that one of the most important milestones of rebuilding Iraq is the establishment of rule of law. State legitimacy, political stability and wealth of the nation are all long terms goals that depend on a strong rule of law. It was mentioned that in most criminal trials, the accused does not have the fundamental right of seeing his accuser. That is, Iraq allows anonymous witnesses. An audience member was surprised that this was allowed despite the American law influence in Iraq since American law places such a high value on the right to face the accuser. The panelists argued that though it seems outrageous to Americans, anonymous witnesses are of vital importance to criminal law in Iraq due to active terrorist networks that are willing to threaten or kill witnesses. The payoff of the hard work of rebuilding the rule of law is that over time and as the citizens of Iraq have faith in the rule of law, there will be an opportunity to develop and better protect human rights in Iraq.