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Sunday, January 22, 2012
The Challenges of Repatriation for Iraqi Refugees
3:01 PM ET
JURIST Guest Columnist Perveen Ali, Ph.D. candidate in the Department of Law at the London School of Economics and Political Science, is currently researching issues of international refugee and human rights law. Here she discusses the challenges Iraqi refugees face in returning home safely and with dignity...
The 2003 war in Iraq and subsequent internal security crisis led to the forced displacement of four million Iraqis. Insurgents, counter-insurgency operations and sectarian militias targeted persons for their religious, ethnic and political affiliations, subjecting them to kidnappings, rapes, murders, torture, lootings and evictions. Nearly two million Iraqis sought refuge in Syria, Jordan and Lebanon, where they found themselves living in legally precarious situations. Often having no long-term residence or work permits and limited access to public services, they live in fear of arrest, detention and deportation to the violence they escaped in Iraq. Following the 2011 withdrawal of US forces from Iraq, more than 1.6 million Iraqi refugees remain in the region in search of a solution to their plight.
Within the framework of the international refugee protection regime, the traditional "durable solutions" sought for refugees include local integration in their country of asylum, resettlement to a third country or voluntary repatriation to their country of origin. In the Iraqi refugee crisis, local integration seems an unlikely prospect as asylum states in the Middle East claim that they are overburdened. Resettlement to third countries, such as the US, will provide protection for more than 100,000 Iraqis having specific vulnerabilities, such as those who worked with the Multinational Forces or US government contractors in Iraq. The question then is, what is the future for the vast majority of Iraqi refugees remaining? Absent the political willingness of states to allow for local integration or to increase their resettlement quotas, the only other solution under consideration is voluntary repatriation to Iraq.
The right to return to one's country of origin is enshrined in international human rights instruments, including the Universal Declaration of Human Rights, Article 13(2), and the International Covenant on Civil and Political Rights (ICCPR), Article 12. However, repatriation must be voluntary, and refugees must be able to "return in safety and with dignity." The core components of safe and dignified return are identified in the UN's 2002 Global Consultations on International Protection [PDF] and are elaborated further in the Office of the UN High Commissioner for Refugees' (UNHCR) 2004 Handbook for Repatriation and Reintegration Activities [PDF]. They include physical, legal and material safety and reconciliation. Given the ongoing security crisis, political instability, fragile infrastructure and human rights violations that plague the new Iraqi government, each of these components presents particular challenges to successful repatriation.
Securing the legal, material and physical safety of Iraqi refugees will foremost require determining where they will live upon their repatriation to Iraq. The right to return has been interpreted to include the right to return to one's home in Article 12 of the ICCPR, Principle 28 of the Guiding Principles on Internal Displacement and by the former Sub-Commission on Prevention of Discrimination and Protection of Minorities. This right was also recognised in Annex VII of the Dayton Peace Agreement in the case of Bosnian refugees. However, the prospect of many Iraqis returning to their original homes will be difficult to realise in practice. The ethnic cleansing of their former neighbourhoods and the appropriation of their homes by violent militias has left many Iraqi refugees with no place to which they can return. Some refugees also had to sell their property in Iraq to cover their living expenses in their countries of asylum. Iraqis who attempt to return to Iraq may find their homes looted, destroyed or occupied. This places them at risk of further displacement to squatter settlements inside Iraq, where they would join the nation's currently 1.3 million internally displaced persons living in destitution, lacking access to basic services and fearing eviction. The successful repatriation of Iraqi refugees will require the creation of relocation and housing schemes, and effective property restitution mechanisms that will be able to accommodate returnees without exacerbating the precarious political, economic and security situation in the nation.
Iraqi refugees' legal and material safety is further compromised by limited employment opportunities, and continuing problems accessing public services, such as electricity, sanitation and potable water in Iraq. A 2011 report by the International Rescue Committee (IRC) noted that these problems are compounded by the frequent lack of documents necessary for enrolling in public schools, reclaiming confiscated property, accessing medical care, qualifying for food rations and applying for jobs. Undergirding these obstacles is a deep lack of trust in Iraqi governmental institutions, which are still in their formative stages and face allegations of corruption, political manipulation and lack of transparency. Legal assistance, such as that provided by the IRC and UNHCR, can provide critical help in navigating the complexities of these new bureaucracies to returning Iraqis.
Reconciliation is perhaps the most tenuous component of effective repatriation. Both the sectarianisation of Iraq and debates over the country's political future, as either a unified or federal state, have significant implications for reconciliation. Prospects for reconciliation are also impacted by the profound trauma that many Iraqis endured both under the former regime and in the aftermath of the war. Some refugees may find it too psychologically onerous to return to Iraq and participate in reconciliation processes in light of the extreme violence that forced them to flee. In such cases, should country conditions in Iraq change and be deemed stable in the future, these persons should continue to receive protection in accordance with Article 1C(5) of the 1951 Convention Relating to the Status of Refugees [PDF]. Asylum states should refrain from their deportation, and the international community should secure alternative solutions for them.
In the face of such serious obstacles to return, Iraqi refugees have been slow to take advantage of repatriation programs, primarily only doing so when facing severe economic hardships or having expired visas in their countries of asylum. The UN documented that by 2008, 220,000 refugees had returned to Iraq. But in a 2009 report [PDF], the International Organization for Migration noted that rather than returning permanently, many Iraqi refugees in Syria and Jordan travelled back and forth from Iraq, sometimes voluntarily and other times due to repeated forcible displacements. Numerous reasons necessitated these temporary returns, including going to assess the security situation, seeing elderly parents, attending funerals, collecting pensions, borrowing money and selling property. A 2010 survey by the UNHCR revealed that the majority of Iraqis who did attempt to repatriate permanently reported having insufficient resources to meet their families' needs in Iraq and being subjected to bomb explosions, kidnappings and harassment in the areas to which they had returned.
The government of Iraq is developing a plan of action to facilitate the effective return and reintegration of refugees. In 2008, it allocated USD 213 million to support these efforts, and subsequently provided financial and transportation assistance to returnees. In a 2009 report [PDF], the Brookings-Bern Project on Internal Displacement concluded that the effective repatriation of refugees will also require building peace and security, governmental institutions and law and policy frameworks supporting displaced persons in keeping with the International Compact with Iraq [PDF] and Iraq's National Policy on Displacement [PDF]. It further recommended including displacement issues in national development strategies and providing continued humanitarian support for refugees in asylum states. More specific activities critical to return should include creating mechanisms for property restitution; allocating housing and land; increasing access to public assistance, education, infrastructure and livelihoods; and developing meaningful transitional justice mechanisms. Ultimately, the success of such strategies will turn on the willingness of the international community and the government of Iraq to acknowledge and grapple with the formidable challenges of repatriation. And central to any durable solutions framework that results, the right of Iraqi refugees to live in safety and with dignity must always be paramount.
Perveen Ali is writing her Ph.D. dissertation on the refugee crisis in the aftermath of the 2003 war in Iraq. She has been a practitioner in the field of refugee protection for the past ten years and has worked for both the UNHCR and refugee legal aid NGOs, primarily in the Middle East and Africa. She received her J.D. from the University of Washington.
Suggested citation: Perveen Ali, The Challenges of Repatriation for Iraqi Refugees, JURIST - Dateline, Jan. 22, 2011, http://jurist.org/dateline/2012/01/perveen-ali-iraq-refugees.php.
This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any comments or questions to her at firstname.lastname@example.org
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Friday, January 13, 2012
Uncertainty for Iraqis as Troops Withdrawal and Private Contractors Remain
2:01 PM ET
JURIST Guest Columnist Leila Sayed-Taha, DePaul University College of Law Class of 2012, currently works as a translator for Ace Languages Centre, where she aids asylum seekers at the Immigration Advisory Service. Here she discusses the ongoing issue of immunity as troops withdrawal and private contractors remain, and she examines the circumstances in which Iraqi citizens previously employed by the US military have been left...
In October, the Iraqi Parliament refused to grant immunity to American servicewomen and men serving in Iraq after the initially agreed upon withdrawal date. This withdrawal date had been established by the Bush administration in 2008. After almost nine years of US military engagement in Iraq, Operation New Dawn has come to an end. Regardless of whether this is to be considered a mission accomplished or the prelude to a sectarian war, the fact remains that nothing is certain. The current debate concerning whether withdrawal was a wise move on behalf of President Barack Obama, a popular criticism made by the current presidential candidates, fails to illustrate a clear picture of the reasoning behind the withdrawal. This failure is misleading both politically and legally. The current administration clearly prioritized troop legal protection over military presence in Iraq. After the events that took place at Abu Ghraib and in Haditha, and the legal complexities caused by Blackwater, one cannot blame the Iraqi people for choosing to refuse legal immunity. Ironically, hundreds of private military contractors, a major source of mistrust for many Iraqis, have remained in Iraq after the military withdrawal.
The US-Iraq Status of Forces Agreement [PDF] (SOFA) explicitly states that all US forces stationed in Iraq would be completely withdrawn by December 31, 2011. The implementation of the agreement caused much controversy because the Bush administration withheld the English version of the agreement until after the vote on its legislative enactment by the Iraqi Parliament. Disagreements concerning the interpretation and meaning of some provisions caused the Iraqi government to initially proclaim the agreement to be deadlocked. Areas of dispute included legal jurisdiction over US servicewomen and men responsible for the deaths of Iraqi citizens that occur as a result of operations while on duty. Whilst the Iraqi government in declaring its sovereignty wished to opt for Iraqi legal jurisdiction in such matters, the US preferred all its forces to be legally subject to the Uniform Code of Military Justice. Despite such areas of disagreement, Article 12 of the agreement stipulated that the US would have primary jurisdiction over its members of the armed forces and Iraq shall have primary jurisdiction over US contractors that commit crimes in Iraq in addition to crimes committed by US armed forces in Iraq that do not have active duty status. The latter stipulation was considered a controversial construct, as basing legal jurisdiction on the duty status of the service member is not clear-cut or straightforward. The agreement further stipulated that the US would determine whether or not an alleged offense arose during active duty. According to Army Regulation, duty status has numerous and complex categories, and even if killed or kidnapped a soldier is still considered to have active duty status. The authors of SOFA failed to provide an explicit definition of the term "duty," and its transliteration in the Arabic version of the agreement was argued to be vague and misleading. Without a definitive meaning given to the term, it has been speculated that SOFA failed to establish a common understanding of the word in both the Arabic and English versions of the agreement, and thus the Obama administration was not capable of extending the agreement, specifically in relation to immunity, with the administration of Iraqi Prime Minister Nouri al-Maliki beyond the stipulated expiration date.
Prior to the enactment of SOFA, private contractors were considered to be immune to prosecution under Iraqi law for criminal acts as stated in Order 17 [PDF] of the Coalition Provisional Authority. After the events in Nassour and Haditha and the controversy caused by Blackwater, SOFA was considered to be a means to prevent such a reoccurrence. With the expiration of SOFA, the legal status in terms of jurisdiction and immunity of such contractors remains to be seen. It was reported in October that after the withdrawal of the troops from Iraq, as many as 5,000 private contractors would be employed in order to ensure security of US diplomats. The US Department of State, rather than the military, will be in charge of monitoring the specified roles and contractual duties to be carried out by these private security agents. Currently, the State Department has not released information on the exact nature of the contracts or duties to be carried out by these private contractors aside from providing diplomatic protection.
While the immunity of soldiers and military contractors alike is certainly a serious and ongoing issue, the precarious situation in which Iraqi citizens, formerly employed by the US military, have been left should not be forgotten. Particularly impacted by the withdrawal are those Iraqis who were employed by the US military as interpreters. Many of them, considered to be traitors in their own society, are now targets of Islamic militias, even more so in the face of the present instability. While the 2008 Refugee Crisis in Iraq Act contains provisions that grant fast-track refugee status to those Iraqis employed by US forces, particularly those facing an ongoing threat to their livelihood, the implementation of this legislation has fallen short. Unfortunately, the limitations of the system failed to efficiently provide visas for such individuals, resulting in many applying separately for asylum in European countries out of desperation. In many situations, after waiting for months for their application to be screened, asylum seekers are rejected without any explicit explanation and are not granted any opportunity to appeal. The special visa process, as provided by the statute, allows 5,000 visas per year beginning in 2008. As of October 2011, only 3,415 visas have been granted in the past five years.
Regardless of the supposed justifications for initiating US intervention in Iraq, the justifications for ending this intervention are of a completely different nature. Some may call it a matter of convenience, an ending very far from a stabilized, democratic and peaceful society as proponents of the intervention envisioned. In early December, Vice President Joe Biden declared that Iraq's violence reached an all-time low whilst on a diplomatic trip to the country. However, on January 5, 78 Iraqis were killed near a Shia shrine in Sadr City, the worst attack to hit the country in more than a year. Al-Maliki declared December 31 to be Iraq Day, a symbol of national sovereignty, independence and social unity. Yet the US leaves behind the largest US embassy in the world, twice the size of the White House compound, with a speculated 17,000 employees. Private contracting companies are moving quickly to gain licenses in order to function in Iraq. Even Blackwater (now known as Academi) seeks a license despite being banned from the country. In the face of all this, the plight of those Iraqis who assisted the very forces that sought to liberate them are currently living in fear for their lives, as the legislation put in place some five years ago has failed to fulfill its goal of providing protection. The future of the independent Iraq is anything but certain.
Leila Sayed-Taha is currently an LL.M. candidate at DePaul University College of Law and is focusing her studies on international law with a particular emphasis on human rights law. She works as an intern at Black Association of Women Step Out, where she carries out policy and legal research, and has also volunteered at Bristol Refugee Center, Asylum Justice and Amnesty International Wales. She received her LL.B. from Cardiff University in Wales.
Suggested citation: Leila Sayed-Taha, Uncertainty for Iraqis as Troops Withdrawal and Private Contractors Remain, JURIST - Dateline, Jan. 13, 2012, http://jurist.org/dateline/2012/01/leila-sayed-taha-iraq.php.
This article was prepared for publication by Elizabeth Imbarlina, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at email@example.com
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Tuesday, December 13, 2011
Iraq War: Mission Accomplished or Mission Impossible?
11:12 AM ET
JURIST Guest Columnist Dominic Hoerauf, Columbia Law School Class of 2012, is a Staff Editor on the Columbia Human Rights Law Review. He argues that the Obama administration's decision to withdraw troops from Iraq by December 31 is misguided as the goals embodied in the authorization for the war have not yet been achieved...
Admittedly, Saddam Hussein is no longer causing trouble, nor is Osama Bin Laden. Weapons of mass destruction are certainly more out of reach for the Iraqi government than they were in 2003, assuming that it even seeks to acquire weapons of mass destruction. And yet, the question arises whether the mission has been accomplished, whether this is what victory looks like? Although traditional combat action is no longer taking place, deadly bombings and shootings still occur daily, inducing a constant state of fear and terror. Just a few days ago, 43 civilians were killed in bomb attacks, increasing the number of casualties in December to 111. Is this truly what victory looks like? Is this a situation in which we would like to leave the Iraqi people on their own, abandoning a highly volatile state of affairs that could easily turn into another pre-September 11, 2001 Afghanistan? Well, I guess nobody seriously thinks so. The Obama administration, of course, is well aware of that. Yet, it withdraws the troops despite the AUMF promises to make sure that "the just demands of peace and security will be met." It is withdrawing its troops because this war was and still is costly. An incredibly sad amount of blood has been shed and an enormous sum of money has been spent. In the end, a decision to discontinue military engagement is always subject to a cost-benefit calculation. Since the benefit, not only to the US, but also to its Western allies, is not as tangible and predictable as their costs in terms of lives, money and votes, that ratio has now probably led the Obama administration to conclude that this is as good as it gets.
However, maybe this does not adequately take into account the very special nature of conflict this new generation of warfare presents. Other than the nation-states' wars of the twentieth century, these new wars in Afghanistan and Iraq implicate both state and non-state actors. Unlike previous wars, combat action is not confined to troops or a well-defined battlefield. As a result, the target has changed as well as the definition of victory. As can be seen in Iraq, to a remarkable extent, civilians have been the primary target of insurgent and al Qaeda attacks. In an effort to undermine the people's trust in the capacity of the new government to preserve national security, the enemy tries to induce a state of constant fear and terror. Sadly enough, as mentioned earlier, measured under this goal, they are doing quite a good job. Each day, 14 attacks kill 11 Iraqi civilians on average. Therefore, we are far from proclaiming that either the AUMF's goal of ensuring that "the just demands of peace and security" has been met or from restoring "international peace and security" to the region, as Resolution 1441 sought to do.
Against this background, abandoning Iraq to its fate is the wrong thing to do; it would have devastating consequences not only for the Iraqi people, but for international peace and security in the long run. It will ultimately threaten the most apparent and legitimate goal for going to Iraq, the preservation of US national security. Again, the AUMF recognizes this potential domino effect in Section 3(a)(1). Yet, the Obama administration draws the wrong conclusions. The young and vulnerable Iraqi democracy, unfortunately, does not yet have the means to counter infiltration by terrorists and insurgents. Without foreign assistance, Iraq is bound to become another failed state, just as Afghanistan became in the 1990s, in the aftermath of its century-long civil war. In Afghanistan, decades of war left behind a severely wounded state without any effective governmental institutions. This lack of governmental infrastructure resulted in a power vacuum of lawlessness and chaos. This chaos benefitted the strongest and most ruthless actors, not the democratically legitimized statesmen. It was this particular constellation that helped the Taliban to come to power, allowing it to later provide terrorist groups with safe havens to plan and train for attacks against the West.
If that is not supposed to happen with Iraq, than under no circumstances should US troops leave the Iraqi people on their own. Let us not stop halfway down the road. There are achievements we should build on. Even though the democracy is struggling, at this point, at least there is a democracy in place. All we have to do to turn a ticking bomb into a potential model for the Middle East is stick patiently to the goals of the AUMF in order to ensure (self-)sustainability. As difficult as this may be and as long as it will take, it is worthwhile, since starting over in 10 or 15 years will be even more costly.
That, however, requires us to alter our perspectives on warfare. In times of asymmetric conflicts, waging war, and especially waging war successfully, which in the instant case means establishing a self-sustaining democracy capable of defending itself, is no longer only about who has the most effective military and weapons. Rather it is about protecting vulnerabilities, which is to say protecting civilians and closely coordinating the (re)building of effective institutions of good governance. It is about generating and preserving trust between the Iraqi people and their government. Yet, trust requires security, "freedom from fear," as the Preamble to the Universal Declaration of Human Rights states. In this respect, the US and its allies have failed. They have failed due to a misconception of warfare. They failed to appreciate that warfare has changed; their weapons are no longer fully up to the task given by the AUMF. Peace and security in Iraq cannot be achieved solely by shooting or detaining the enemy with state-of-the-art weapons. Trust in the domestic government necessitates strong domestic institutions. This is best achieved by peacekeeping forces with an emphasis on institution building, implementing the rule of law and advocating good governance.
That is not to say that we do not need the military. Quite the contrary. The military remains a crucial factor in times of asymmetric warfare, yet with slightly modified perspectives and tasks. Therefore, it should under no circumstances leave Iraq now. The soldiers are needed to provide for a secure atmosphere in which state and institution-building efforts can take place, for domestic tranquility is the precondition for sustainable development. Thus, withdrawing from Iraq at this point is the wrong call. The international community has invested too much to stop now. In order to achieve true victory in Iraq once and for all, to turn mission impossible into mission accomplished, is to modify our strategy by intensifying peacekeeping and protection efforts.
Dominic Hoerauf is an LL.M. candidate focusing on Human Rights and the War on Terror at Columbia Law School. He holds a law degree and a Ph.D. from Humboldt University.
Suggested citation: Dominic Hoerauf, Iraq War: Mission Accomplished or Mission Impossible?, JURIST - Dateline, Dec. 13, 2011, http://jurist.org/dateline/2011/12/dominic-hoerauf-iraq-war.php.
This article was prepared for publication by Elizabeth Hand, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org
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Saturday, January 30, 2010
IRAQ: Citizenship and Women's Rights under the Iraqi Constitution
12:01 PM ET
Sara Burhan Abdullah, Pitt Law LLM '08 and JD '12, was an observer to the Iraqi Constitutional Review Committee. She shares her experiences with the issue of inheritance of citizenship and women's rights in her home country of Iraq...
Under Saddam Hussein's dictatorial regime, children born of Iraqi women and foreign men could not inherit Iraqi citizenship, whereas children of Iraqi men and foreign women could. Iraqi women were also not allowed to travel outside the country without an escort of a father, brother, husband, or other close male relative, known in Arabic as a mahram. With the overthrow of Saddam Hussein's regime, however, these laws have been changed in favor of Iraqi women, and women's rights have generally increased. Thus, for example, the 2005 Iraqi Constitution clearly provides in Article 18 that a child born to an Iraqi father or an Iraqi mother is considered to be an Iraqi holding original Iraqi citizenship.
As an externship student working in Baghdad on a US State Department grant managed by the University of Utah School of Law, one of my responsibilities was to attend the Constitutional Review Committee (CRC) as an observer. The CRC was responsible for amending the current Constitution and was composed of representatives from each of Iraq's major political blocs, including the Kurd, Sunni, and Shi'a factions, as well as some other secular parties. A contentious issue discussed by the CRC members was Article 18, which proposed granting Iraqi citizenship to children born to only an Iraqi mother. This was opposed by some of the committee's members.
I witnessed one of the committee's most vigorous arguments on this issue. The Kurds, supported by some of the Shi'a Islamists, opposed any amendment to Article 18 that would discriminate against women while the primarily Sunni Islamist members argued that an Iraqi mother should not be able to pass on Iraqi citizenship to her children. While I was technically not allowed to participate in the discussion as a student observer, I could not stay silent, and I asked for permission to give an opinion. I was motivated to speak because a child with an Iraqi mother and Iraqi father believes herself to be as much a citizen of her mother's country as her father's country. The idea that a child belongs solely to the country of her father and has no right to the country of her mother, even if she lives in her mother's country, suggests that her entire heritage devolves from her father alone. This constitutes unfair discrimination against a child born to only an Iraqi mother. Additionally, if a mother cannot pass on citizenship to her child, there is the possibility that her children would be without citizenship where the child lives in the mother's country of citizenship and the father's country requires the child to be resident in the father's country of citizenship in order to be a citizen.
The committee chair nodded his assent, and the members listened to me speak. I asked the members in favor of amending Article 18 to explain the basis of their position. One CRC member stated that his objection stemmed from concerns surrounding dual citizenship. A representative from Kurdish bloc countered this by stating that the Constitution allows dual citizenship. Furthermore, the Kurds argued that if the goal were to reduce dual citizenship, Article 18 should have included children born to foreign women with Iraqi husbands, since Iraqi men marry foreigners in greater numbers than Iraqi women.
The next day, I provided research to the committee about the number of countries which are signatories to the Convention for the Elimination of all Forms of Discrimination against Women (CEDAW). CEDAW Article 9(2) prohibits the type of sex-based discrimination which the CRC was considering making law in an amendment to Article 18. A few countries, including Iraq, have made reservations to Article 9(2), but most have not. My goal in providing the committee with this research was to encourage it to reconsider its views in light of the international community's position respecting women's rights. This had an effect on some Shi'a Islamist parties, but was ignored by others.
The committee finally agreed to amend the article so that it did not explicitly state the citizenship of child born to only one Iraqi parent. Rather, the CRC agreed that the legislative branch should speak to this issue. I am certain that some parties will attempt to pass legislation which discriminates against Iraqi women who have children with foreign men. However, I would hope that women's rights activists would challenge the law under the separate equal protection clause of the Constitution which prohibits discrimination in the law on the basis of gender. From my perspective, it would appear that they would have an excellent case.
Mentioned in this Article:
Convention on the Elimination of All Forms of Discrimination Against Women
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Monday, February 23, 2009
IRAQ: Bribery and the Rule of Law
9:02 AM ET
Guest commentator Sara Burhan Abdullah, Pitt Law LL.M. '08 and JD '12, writes about an experience in her native Iraq...
While living in Iraq, my husband Haider Hamoudi and I began working for the Iraqi Jessup moot court team. We instructed the team to apply for their passports, so that we could work with the American embassy. After the team began the passport application process in early October, I contacted the passport office every once in a while to ensure that everything was going well and that the team would remain on schedule. I called in November to see whether all the passports were ready. I noticed that some of the students had their passports, while others were still waiting, and was surprised by this result. I wondered why, if all the papers were submitted together, were some passports finished sooner than others?
I questioned the students about how they got their passports so quickly. They openly admitted that they had bribed some of the employees at the passport office. Of course, only the wealthy students could afford to pay the money, so they were the only ones to get their passports back quickly. I told the students it was a crime to bribe a government official or employee; but no one paid any attention to what I said.
Iraqi Penal Code Article 307(1) penalizes anyone who gives or accepts bribes in order to complete a job that is already an obligation of a government employee. The penalty for this crime is up to ten years in prison, and may include a fine. This rule of law presents an interesting contradiction when you talk to people from Iraq. On the one hand, they want the law to be upheld, much like Americans and people from other developed countries. On the other hand, although they want the law to be upheld, most people do not actually personally follow the law.
Although Iraq has a legal system and a long history of legal education, the rule of law is seldom enforced and fails to function in everyday life. Some Iraqi laws are not enforced at all and are completely ignored by the judicial system. Furthermore, Iraq lacks sufficient separation of powers between the judicial system and other branches of government. The absence of both law enforcement and independent judicial power have resulted in a general mistrust of the judicial system among the general public.
Everyone expects that corrupt practices such as bribery are necessary in order to process papers or applications quickly at government offices. Thus, people willingly pay bribes to get their work done, even though this means that work for poor people who are unable to afford bribes will be set aside. Of course, a person cannot go to a government office and openly bribe the official to have a passport completed in a week. There are people who indirectly arrange all the preparation for payment and getting papers processed. Practices such as bribery are not only corrupt, but they infringe on the rights of people who cannot afford to pay. Furthermore, corrupt practices threaten the rights of everyone by placing money above the citizens' rights and liberties.
How can we eliminate practices such as bribery and penalize wrongdoers? The answer is not easy. There are more than just a handful of people involved in paying and receiving bribes - the problem is rooted in the entire governmental system. As long as bribery is socially acceptable, it will be difficult to change the system; it might take several generations to eliminate such entrenched corrupt practices.
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Thursday, August 07, 2008
IRAQ: Women's Rights and the Iraqi Constitution in Practice
10:08 AM ET
Sara Burhan Abdullah, Pitt Law LLM '08, files from Sulaimaniya:
A recent incident showed me that while the Iraqi Constitution has a great deal of material from which a society based on equality of the sexes can be built, there are significant legal and cultural obstacles to obtaining that goal. I left Iraq to go to the US three years ago, so when I arrived in Sulaimaniya on July 13, many of my friends and relatives wanted to come and visit me. One day, some of my friends from law school came to welcome me, and we started talking about the legal and political situation in Iraq. I asked them how difficult it would be to get a passport without going to Baghdad, because my husband and I are helping to organize a project in the United States that we hoped Iraqis could attend.
One of my female friends complained that her father has to grant her permission in order for her to get a passport, while this is not the case for males. Although her father was happy to do it, she understandably found this notion of parental consent offensive and insulting, given that she is not a child but an attorney with a flourishing legal practice who represents dozens of men and travels around the Kurdish region of Iraq to assist them in their cases.
More importantly, this requirement is a clear violation of the Iraqi Constitution. Article 14 makes clear that all Iraqis are equal under the law without respect to gender. The process of obtaining a passport under relevant Ministry regulations is precisely the same for both genders, except for this additional burden of parental consent imposed on females. This situation seems to be a classic case of legal inequality between men and women.
Shockingly, however, my friends and other colleagues, all lawyers, insisted that the Iraqi Constitution requires paternal consent for women. They based their assertion on statements made by a Ministry employee to the female lawyer I mentioned. They were so certain as to cause me to question my own understanding of the Constitution, but I referred to the text of the Constitution and showed my colleagues the gender equality requirement.
Once they were satisfied, I started encouraging my friends to challenge the law. I raised the possibility of a suit in the federal supreme court of Iraq, but I was surprised when my friends said that in their view, challenging the constitutionality of a law or a regulation is not truly practicable in Iraq. Though it has been done, examples are few and it is seen as a waste of time to even try, since the chances of success are so remote. In the end, I could not convince any of them to consider such an opportunity.
On the next day, I decided to meet with some women's organizations and governmental officials to find out whether there are any efforts to challenge the regulation. I visited four different organizations to discuss the matter. Although I could not meet with all of the people I wished, I did get to meet some lawyers, who turned out to be my former classmates from law school. They provided me with documents written by the Kurdish regional government asking Baghdad to revise the regulations because they are in violation of the Constitution. To date, no reply has been received, more than one year after the request was sent. The Kurdish government seems reluctant to pursue the issue, saying it has other priorities. In addition, more than 42 women's organizations have tried to lobby Kurdish and central government officials in Baghdad to change the regulations. By and large, they have been entirely ignored.
This seemed then the perfect time to raise a test case in the courts. The government was in violation of the Constitution, after all, and therefore if persuasion would not work, then it was time for judicial compulsion. This met stiff resistance. I received a series of rather weak excuses from the women's organizations that I visited. Among these were that nobody had time or money to make such a case (even though I promised to work on outside funding), that no test case could be found (impossible to believe) and that the prosecutor's office would have to be involved (not true as a matter of Iraqi law). To date, after extensive efforts, I have been unable to convince anyone to even try to make a case to challenge this patently unconstitutional regulation, though I continue to make efforts in this regard.
It seems that the influence of the former government is still noticeable. No one would have ever thought to challenge laws or to question a Ministry employee about the application of those laws, because someone who did so would never have been seen again. Thus, my friends simply trusted the government official, far less trained in Iraqi law than they as Iraqi lawyers, and assumed he knew something about the Constitution that they did not. They never even thought to check the text. When told that this was a violation, even after complaining about it, they did not think there was any point in pushing the matter.
This sad incident reflects the gap between Iraq's laws and its practice. Much attention has been paid to the the Constitution, and to the fact that regulations can technically be challenged on the basis of it, but this example tends to show that in practice, the culture of the rule of law which is necessary to sustain such challenges is largely absent. Lobbying the government and asking it for assistance are seen as acceptable, but fighting it in court due to violations of its own Constitution is not. I can only hope that this will change and a new generation of Iraqis who have courage to challenge the government will rise from our law schools.
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