JURIST Columnist Haider Ala Hamoudi of the University of Pittsburgh School of Law says that Iraq must not push blindly forward in its goal of de-Ba'athification, but rather consider the harm that such absolute changes pose to fairness and process ...
ast month, a special panel of Iraq's highest appellate court of general jurisdiction the Court of Cassation
reversed an important determination of Iraq's Accountability and Justice Commission (AJC), the body responsible of purging Ba'ath party members from government office. This latest AJC determination concerned the former chief justice of Iraq's Federal Supreme Court, Medhat al-Mahmoud. Specifically, it determined that Medhat was not eligible for public office because of positions he had held during the Saddam era, going so far as to characterize the highly respected judge as being a "Saddamist" who "taught [other judges] to commit offenses against the Iraqi people." The welcome reversal of that determination is not only an object lesson in the value of judicial review, it is also a deep indictment of the entire means by which the "de-Ba'athification" process is conducted. More than any other case, the Medhat saga demonstrates the failures of the de-Ba'athification processes as they are currently conducted.
By way of background, in 2008, Iraq's legislature, the Council of Representatives, enacted the Accountability and Justice Law, [PDF] meant to address the highly divisive issue of de-Ba'athification after the damage initially done by L. Paul Bremer, the head of the US-administered Coalition Provisional Authority. In his first order in 2003, Bremer not only disbanded the entire Iraqi army, but also issued draconian anti-Ba'ath provisions that resulted in large numbers of government employees losing their jobs. As such, de-Ba'athification was long a source of Sunni resentment, and the Accountability and Justice Law sought to curb some of the more obvious excesses of the previous de-Ba'athification processes.
As with much compromise legislation, it was maligned by those on both fringes as being either a plainly insufficient measure or a sellout to Ba'athism, as the case may be. Yet despite suggestions to the contrary, its provisions respecting disqualification of former members of the party are rather clear, limited and set forth in ten separate subsections under Article 6 of the law. Government employees who belonged to the fourth or higher rank of the multi-tiered Ba'ath party hierarchy were to be forcibly retired. Those who were at the third tier or higher could not serve in specified security ministries: the Higher Judicial Council, the presidency or other sensitive positions. Those who stole from the public coffers were disqualified from public employment. Anyone who had been a member of the paramilitary "Saddam Fedayeen" and anyone who was a member of the "persecuting security services" was likely to be stripped of government employment. (This latter provision caused some confusion, as some seemed to think it meant that no Ba'athists could serve in the current security services. In fact the provision prevents all members, not Ba'athists, of the "persecuting security services" from having government employment. The only way that such a provision makes any sense at all is if it refers not to the current security agencies, but rather members of the "persecuting" security services under the Ba'ath, in particular the dreaded "Mukhabarat" responsible for identifying and eliminating regime opponents.)
In addition to narrowing and specifying the grounds on which de-Ba'athification was to proceed, the Law of Accountability and Justice also contained a second, quite important concession. It mandated judicial review of the determinations of the Accountability and Justice Commission, which was created by and until then answerable effectively only to the Council of Representatives. This addition, heavily negotiated by Sunni representatives, was meant to add a measure of due process to the disqualification determinations. By requiring the review of an independent, judicial body, the theory went, witch hunts could be avoided.
Despite the best intentions of the law, the processes have still seemed to show significant failings. Most notably, hundreds of candidates seeking office in the 2010 national elections were removed on the grounds of ties to the Ba'ath party in a process that could only be described as opaque, convoluted and obviously politicized. The candidates initially removed by the AJC were all reinstated on appeal, on the sensible grounds that the evidence against them could not be reviewed in such a short time frame, prior to an election. An uproar among vigorous anti-Ba'athists ensued, a meeting between Prime Minister Nuri al-Maliki and (ironically) Medhat was held, and the panel swiftly reversed itself, upholding many though not all of the disqualification decisions initially made by the AJC.
Still, it is one thing for the AJC to target potential candidates for office, many of whom were quite obscure. It is another to target the powerful chief justice of the Federal Supreme Court, with his international allies and with his strong domestic backing both within the judiciary and beyond it. If the AJC were to seek to remove Medhat, opacity would not do. It would need to convince a skeptical appellate panel that one of the ten grounds for disqualification set forth in Article 6 was applicable, and it would need to show how it was applicable. For example, documentation showing that Medhat was a member of the third rank of the Ba'ath party would certainly have sufficed.
The AJC did not even attempt to do this, engaging instead in innuendo and name calling more suggestive of McCarthyism than anything resembling a proper judicial process. The AJC thus only indicated that it rendered its decision in accordance with Article 6 "as guided by Section 1(9)." Section 1(9) is merely a definition of "supporters of the regime" and it does not constitute an independent ground for disqualification. The argument was, thus, quite easy for the appellate panel to disregard. As for Section 6, the AJC did not specify a subsection, nor did it point to anything that would seem to fit under any of the applicable subsections. Its "evidence" was: (1) that the chief justice had helped appoint members of the judiciary to high positions who turned out to be strong supporters of the regime, (2) that the chief justice had been promoted with some rapidity through the ranks of the judiciary (including being appointed to the Court of Cassation in an unusual process that involved the intervention of Saddam) and (3) that the chief justice was given various awards and honors during that period. In a particularly farcical exercise, the AJC located newspaper articles from Ba'ath-era papers in which Medhat is quoted as saying something relatively benign, yet broadly supportive, of the ruling Ba'ath regime, and Saddam in particular. If one is disqualified as a Ba'athist for saying nice things about Saddam during Saddam's rule, then virtually every person who lived in Iraq during the Saddam era is a Ba'athist, given the demands made by the totalitarian regime that its citizenry show its support at every opportunity.
Respecting legal process, there is simply not a thing in Article 6 that authorizes the AJC to disqualify a person from a governmental post on the grounds set forth by the AJC a point the panel of the Court of Cassation did not hesitate to make, correctly, and with some force. While some deservedly well-respected Iraq commentators, including Reidar Visser, suggest that the decision was not controversial because it was "widely agreed" that the Chief Justice was a high-ranking Ba'athist, the point of judicial process is not to act on the basis of that which is "widely agreed", but only that which is conclusively proven. That the AJC in this instance, when it surely knew that its decision would be scrutinized, would rely on such highly specious material as its "proof" only causes one to wonder as to the extent to which it has done so in many other instances, in which the proof was not so carefully considered.
In any event, despite a well-meaning law that appears clear, specific and offers a fair measure of due process, it is obvious that the de-Ba'athification processes are beginning to metastasize once again. Even if the correct result was reached in this instance, with a striking reversal of the AJC determination, no body which would even submit charges on such a thin evidentiary basis can be permitted to continue. Though I have not always believed it to be so, this incident has convinced me of this much: de-Ba'athification must end. The sooner, the better.
Haider Ala Hamoudi is an Associate Professor of Law at the University of Pittsburgh School of Law. His scholarship focuses on Middle Eastern and Islamic Law, particularly as it pertains to matters of commerce. Hamoudi spent most of 2009 in Baghdad advising the Constitutional Review Committee of the Iraqi Parliament, responsible for developing amendments to the Iraqi Constitution aimed at national reconciliation, on behalf of the US Embassy in Baghdad. He is currently preparing a book on the drafting and subsequent evolution of the Iraqi Constitution to be published with the University of Chicago Press. He maintains a blog on Islamic Law.
Suggested Citation: Haider Ala Hamoudi, Salem Witch Trials and De-Ba'athification in Baghdad, JURIST - Forum, Mar. 15, 2013, http://jurist.org/forum/2013/03/haider-hamoudi-debaathification.php
This article was prepared for publication by Dan DeRight, assistant editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org