JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that the likely outcome of the withdrawal of coalition forces from Iraq is a backslide into sectarian violence resulting in the split into smaller states based on ethnoreligious geography…

The official drawdown of US forces in Iraq yesterday, December 15, 2011, marked a time for reflection. It marked a time for reconciliation. It also marked the opening of the third act in the tragedy of the US-Iraq fiasco that welcomed the second millennium with a decade of turmoil and death. Neither the first act — the illegal invasion, nor the second act — the frustrating occupation, will measure up to the chaos of the third act — the ensuing break-up of the country and destabilization of the entire Middle East. And yet, the third act could have been largely avoided had the US worked to build stronger legal and constitutional structures during its long stay in the Mesopotamian desert.

ACT 1

The invasion of Iraq by US-led forces in spring 2003 was illegal under international law. President George W. Bush had secured the necessary authorization for war from Congress, but he could not convince the UN Security Council to issue the other necessary use of force authorization. Despite strong pleas by the UK and US, the French, Russians and Germans remained skeptical that Saddam Hussein possessed weapons of mass destruction and was ready to use them.

Denied the legal go-ahead, Bush remained resolute in his determination to topple Saddam Hussein. White House and Defense Department lawyers reverse engineered the self-defense provisions of the UN Charter. Article 51 states, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” The president’s lawyers argued the word “inherent” was a pass-through provision that allowed all the old pre-Charter, pre-1945, customary laws of war to survive.

One such law was the pre-emptive strike doctrine — allowing a state to attack first if it was under threat of imminent attack, thereby relieving it of the obligation to absorb the first blow. The problem here was the breaking mechanism. A state availing itself of this doctrine had to be responding to an imminent attack. Saddam was no such threat. So the president’s lawyers watered down that evidentiary showing from “imminent” to “emerging” in the 2002 National Security Strategy. Iraq certainly could be considered an emerging threat. So the US lawyered its way into the second Iraq War in 2003 despite widespread condemnation.

ACT 2

The occupation of Iraq was a long and bloody affair. Shortly after routing Saddam’s forces and capturing the leader himself, US-led occupation forces stridently de-Baathified all units of the government and security structures across the country. Unlike the de-Nazification program undertaken in occupied Germany, which targeted true believers and left well-qualified people in charge of running the machinery of the state, the program unleashed by Paul Bremer in Iraq wiped out the careers of those most able to stabilize the country.

Giving way at the seams, Iraq then tipped into civil war — dividing along sectarian lines and foreshadowing what is to come in Act 3. Sunni Arabs, recently deposed, lashed out against the resurgent Shia Arab majority and Baghdad became a war zone once again with American forces caught in the cross-fire. The Kurds to the north stayed out of the fracas, but continued to wait for the right moment to make a play for independence — a dream long-harbored since the founding of Iraq in 1921.

Bloodletting and political convulsions continued until a surge of US troops in early 2007 brought the situation under control. But by 2008, when much of the violence in Iraq had been quelled, the US presidential election was in full swing and key government policy planning officials in the Bush State and Defense departments were departing. Consequently, very little planning for the future of Iraq was underway. A constitution had been written for Iraq creating a federation. Informal power-sharing arrangements had been implemented with a Kurd as ceremonial president, a Shia Arab as prime minister, and a Sunni Arab as parliamentary speaker. Short-term political stability was the goal and it had been achieved.

What had not been achieved was putting the legal structures in place to maintain that stability once the US departed. This can partially be explained by two themes: transition in Washington, DC, and political immaturity in Baghdad. Washington was consumed in 2009 with Bush’s people leaving and President Barack Obama’s people coming in. Aside from obvious holdovers like Defense Secretary Robert Gates, very few of the Obama crew were clued into the relationships required to interface with Iraq in a positive way and suggest the long-term structures they needed: stable and independent courts, the rule of law, new law schools, civil and criminal code revisions, constitutional frameworks for the regions, accommodation for minority rights, settlement of sectarian hot-buttons (like who controls Kirkuk and its oil), and so on. Then Baghdad was consumed in 2010 with a 9-month stand-off between the first and second-place finishers in parliamentary elections where no government could be formed to make the deals necessary to negotiate those structures. Thus, two years were lost.

ACT 3

Now, at the close of 2011, the final act of this three-part tragedy is set to unfold. History has shown that when a unifying force is removed from a disparate political system unbuttressed by strong legal structures, the parts of that system tend to fly apart. The breakup of the Soviet Union upon the collapse of communism and the similar breakup of Yugoslavia are but recent examples. Older ones like the fall of the Austro-Hungarian and Ottoman Empires exist as well. Indeed, the only thing holding ethnically and linguistically diverse China together today is the Han dictatorship.

Iraq was cobbled together by the British after World War I by melding three Ottoman provinces together: Mosul (with the Kurds), Baghdad (with the Sunni Arabs), and Basra (with the Shia Arabs). None of the three groups necessarily wanted to share a state, but that was dictated from London and the office of Winston Churchill — then colonial secretary. Historians might argue that past is prologue. The other post-World War I amalgamations (Czechoslovakia and Yugoslavia) have also dissolved and it is likely, absent a strong central figure like Saddam or equally strong national and legal institutions, Iraq will share the same fate once the centralizing force of the US departs.

Unresolved political landmines dot the constitutional landscape of this country like oil-sharing arrangements among the government and its regions and the lingering Kirkuk issue — the Kurds claim it, but the Iraqi federal government will not let it go. Add to this the increasing and unchecked influence of Iran over the Shia-dominated government, cross-border strikes by Turkish military into Iraqi Kurdistan in pursuit of terrorists, destabilization along the Sunni regional border in neighboring Syria, and still depressingly low petroleum production. Such macro forces combine quickly with micro forces frustrating the population (continual power outages, no legal recourse, lack of civil society, political instability, corrupt police and courts) and the recipe for disaster is clear.

Departing American troops will be replaced with a 15,000-strong contingent of civilian contractors and diplomats hiding behind the walls of the Green Zone in Baghdad. Their mission: to do what should have been done from 2008 to 2011 — stabilize the country by training Iraqis how to actually govern themselves on a daily basis, negotiate compromises, mediate disputes, work the levers of democracy and the privileges of freedom within the context of something approaching regional and federal governing structures with durable and trustworthy institutions and develop the civic religion of the country that could help bring it a national identity. This mission will fail because the groundwork was not laid for it to succeed.

Soon the Saudi royal house will begin reasserting its influence over Iraq’s Sunni Arabs to counter the influence of Iran’s Mullahs over Iraq’s Shia Arabs. The twin tensions funded by those two contentious outsiders that gave us the 2005-2008 Iraq civil war will be at it again. But no surge of American troops will arrive this time to bail them out. A weak national government with a population that does not trust it will not be able to withstand such forces. If Iraq crumbles and three new states emerge they will be problematic from the outset.

The Shia Arab state will clearly be the client state of their Persian Shia cousins. The Sunni Arab state will be devoid of oil and, therefore, broke upon birth. The Kurdish state will activate restive Kurdish populations in Turkey, Iran and Syria to join it — destabilizing all three major regional powers. Baghdad will implode. Israel will watch with trepidation and foreboding but, hopefully, do nothing to exacerbate the situation. Where the violence will end would be anyone’s guess, but the Americans would be loath to return and helicopters lifting off the roofs of embassy installations may ensue — Saigon-style.

Act 3 of this tragedy need not have occurred. But short-term accommodations, lack of long-term vision, and the failure to adequately build up this country on the civil side of the equation make it almost inevitable. True, overly creative lawyering for ill purposes can lead to bad consequences, as in Act 1. But lawyers tend to bring some level of stability if they operate within the rule of law and agree on the basic social contract of the country underlying their legal framework. Iraq does not have this. Fights are resolved with guns, not words. Their constitutionalism has not developed to the point of self-government yet, as seen in Act 2. We shall see by the end of 2013 which path Iraq takes in Act 3. I hope it is one of peace and stability. I fear this will not be the case.

Michael Kelly is a Professor of Law and Associate Dean for Faculty Research & International Programs at Creighton University School of Law. He consulted with the Kurdish regional government on the drafting of their regional constitution; his conclusions can be read in his recent article, The Kurdish Regional Constitution within the Framework of the Iraqi Federal Constitution: A Struggle for Sovereignty, Oil, Ethnic Identity, and the Prospects for a Reverse Supremacy Clause.

Suggested citation: Michael Kelly, Iraq 2003 to 2013: A Tragedy in Three Acts, JURIST – Forum, Dec. 16, 2011, http://jurist.org/forum/2011/12/michael-kelly-iraq-retrospective.php.