JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that the mixed success to date of Iraqi legislative initiatives aimed at rebuilding the country's legal order suggests that true progress and stabilization beyond the mere enactment of laws may require an Iraqi commitment to a long term US troop presence, even though many Iraqi lawmakers would balk at that...
I would like to take the occasion of the anniversary to provide a different, legal perspective, a quintessentially Iraqi one, relating to the American experience in Iraq. I highlight the factors that provide a better gauge of the manner in which Iraqis relate to the American invasion, to show why Iraqis tend to be so confused and of two minds about a continued American presence, and how that might relate to legal process and legislative developments inside of the country.
1.The surge is working. This seems evident. Levels of violence are deeply reduced in nearly all Iraqi cities, shops and restaurants have been reopened, and legislative achievements are being made, even if far more fitfully than the Bush administration has claimed. This naturally tends to lead Iraqis to favor a continued troop presence. If, after all, life on the streets can be improved with more US troops, followed by the enactment of laws in the Parliament, then retaining the status quo appears somewhat attractive.
The hope, of course, is that the Iraqi Parliament would move beyond the laws that it has already passed, concerning de-Ba'athification, amnesty, provincial elections and the budget, to tackle even harder issues, such as constitutional reform and the Oil Law, with a view to re-establishing a sensible legal and economic order.
2. It is not working fast enough. There are problems with this, however. In the first place, the parties appear nowhere near agreement on constitutional reforms or on the Oil Law. The same issues that have divided them for months, and in some cases years, continue to divide them, and no movement has been seen. The Constitutional Reform Committee constantly updates its number of "approved" changes to the Constitution, it is now somewhere in the hundreds, but on the central issues of contentionâthe fate of Kirkuk, the power of the presidency, the creating of federal regionsânothing has happened, it seems. As for the Oil Law, the entire affair seems to have been reduced to a name-calling exercise between Hussein Shahristani, the Oil Minister, and Nechervan Barzani, the head of the Kurdistan Regional Government ("KRG"). What is worse, their dispute is not even about a future Oil Law, but rather a number of contracts already signed by the KRG under its own Oil Law without central government approval.
More importantly, while in the US it is the passage of these laws that seems to provide the only meaningful benchmark, Iraqis tend to look beyond this. Given the rather young and fragile state of Iraq's democracy, mere legislative enactment, while welcome, hardly seems sufficient. Certainly the laws that have already been passed seem to demonstrate this. The provincial elections law has been derailed by the Iraqi Vice President. Sunnis are deeply dissatisfied with the pace of the implementation of the amnesty law. The de-Ba'athification law is a mess. There is no doubt that problems can be worked out, but this requires time, measured in significant numbers of years, to develop trust and to strengthen the institutions and agencies that will be responsible for interpretation and implementation of these laws. Time, however, appears to be in very short supply, and American interest in Iraqi legislation to date does not extend very far beyond enactment.
3. It will be difficult to persuade the Iraqi Parliament to accept a long term presence of American troops in Iraq. The anti-colonial, regional liberation fervor that runs strong in the Middle East is equally powerful in Iraq, making Iraqis, even those who feel that the American presence is necessary to achieve legislative priorities, reluctant to openly endorse the presence of American troops. Political leaders in Iraq use some level of dissembling to mediate this divide between resentment of the United States and a popular recognition that its presence is important. They will thus, for example, criticize the "forces of occupation", while relying on American policymakers to assist in the bridging of significant divides. Even Muqtada al-Sadr, the fiery anti-American cleric, will rail against the forces of occupation while doing nothing substantive, of either a military or legislative sort, to advance their departure. Americans in Iraq seem aware of this incongruity and at least somewhat tolerant of it. There has been talk in Congress in the past to require the Iraqi Parliament to endorse the American troop presence, but the Bush administration, aware of what kind of dilemma that would impose on most parliamentarians, who would prefer to see the United States remain even while they rail against it, has never seriously considered it.
Matters will change soon, however. American troops cannot remain in Iraq forever under the provisions of Chapter VII of the U.N. Charter, which deal with international breaches of the peace. At some point, a long term Status of Forces Agreement will have to be concluded, and every indication is that the Bush administration hopes to complete precisely such an agreement by the summer. While most of the press concerning this has been with respect to whether the Bush Administration will seek Congressional approval for such an agreement, and whether or not Congress will in fact approve, there is an equally serious concern respecting the Iraq Parliament, which Prime Minister Maliki has said must approve any final deal.
If forced to vote, the rhetoric of so many representatives, and the fervor against the "occupier" that they helped stir up, makes it very difficult to vote in favor of a long term Status of Forces Agreement, no matter how much they might prefer a prolonged US presence. One can hardly rail against an army being a "force of occupation" after voting in favor of an agreement that authorized its presence on Iraqi soil. Perhaps Iraqis could be persuaded to do away with the regional liberation language, but this seems difficult, given its broad popularity and the extent to which it has infected the popular imagination in the region. Sadr's ability to tap into this sort of sentiment among disillusioned Shi'a is the basis of his popularity, to abandon it would, it seems, almost finish him. If this is true of Sadr, it is doubly so of the more extreme Sunni parliamentarians, who have made insults against the United States into a daily exercise but who rely on American intervention to keep them relevant.
Taking these factors together, it seems that modest progress is being made, but slowly, and that American endurance is limited. Even assuming that the United States were willing and able to commit to a long term troop presence to enable the types of broad legislative achievements (and their implementation) to rebuild the legal order, it is not clear that the treaty that would enable that - a long term Status of Forces Agreement - would be approved by the Iraq Parliament, as the Prime Minister insists is necessary. Five years on, despite recent improvements, that is hardly cause for celebration.
Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government. He has a blog on Islamic law at http://muslimlawprof.org His new book on his experiences in Iraq, entitled Howling in Mesopotamia (Beaufort Books), is to be released April 2.