H.F 76/2:S.HRG.108-217
S. HRG. 108–217
CONSTITUTIONALISM, HUMAN RIGHTS,
AND THE RULE OF LAW IN IRAQ
I
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON NEAR EASTERN
AND SOUTH ASIAN AFFAIRS
OF THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
AND THE
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL
RIGHTS AND PROPERTY RIGHTS
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
Libranes ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
FEB 1 7 2004
JUNE 25, 2003
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COMMITTEE ON FOREIGN RELATIONS
RICHARD G. LUGAR, Indiana, Chairman
CHUCK HAGEL, Nebraska
JOSEPH R. BIDEN, JR., Delaware
LINCOLN CHAFEE, Rhode Island
PAUL S. SARBANES, Maryland
GEORGE ALLEN, Virginia
CHRISTOPHER J. DODD, Connecticut
SAM BROWNBACK, Kansas
JOHN F. KERRY, Massachusetts
MICHAEL B. ENZI, Wyoming
RUSSELL D. FEINGOLD, Wisconsin
GEORGE V. VOINOVICH, Ohio
BARBARA BOXER, California
LAMAR ALEXANDER, Tennessee
BILL NELSON, Florida
NORM COLEMAN, Minnesota
JOHN D. ROCKEFELLER IV, West Virginia
JOHN E. SUNUNU, New Hampshire
JON S. CORZINE, New Jersey
KENNETH A. MYERS, JR., Staff Director
ANTONY J. BLINKEN, Democratic Staff Director
SUBCOMMITTEE ON NEAR EASTERN
AND SOUTH ASIAN AFFAIRS
LINCOLN CHAFEE, Rhode Island, Chairman
CHUCK HAGEL, Nebraska
BARBARA BOXER, California
SAM BROWNBACK, Kansas
JON S. CORZINE, New Jersey
GEORGE V. VOINOVICH, Ohio
JOHN D. ROCKEFELLER IV, West Virginia
NORM COLEMAN, Minnesota
PAUL S. SARBANES, Maryland
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa
PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania
EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona
JOSEPH R. BIDEN, JR., Delaware
MIKE DEWINE, Ohio
HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho
CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia
RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas
JOHN EDWARDS, North Carolina
MAKAN DELRAHIM, Chief Counsel and Staff Director
BRUCE A. COHEN, Democratic Chief Counsel and Staff Director
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS
JOHN CORNYN, Texas, Chairman
JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina EDWARD M. KENNEDY, Massachusetts
LARRY E. CRAIG, Idaho
CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia
RICHARD J. DURBIN, Illinois
JAMES C. Ho, Majority Chief Counsel
ROBERT F. SCHIFF, Democratic Chief Counsel
(II)


CONTENTS
Page
HEARING TRANSCRIPT
Agawa, Naoyuki, minister and director of the Japan Information and Culture
Center, Embassy of Japan ........
Prepared statement
...........
Boxer, Hon. Barbara, U.S. Senator from California, prepared statement ..........
Chafee, Hon. Lincoln D., U.S. Senator from Rhode Island, opening statement .
Cornyn, Hon. John, U.S. Senator from Texas, opening statement .........
El Fadl, Khaled Abou, professor of law, UCLA School of Law ....
Prepared statement .......
.............
Feingold, Hon. Russell D., U.S. Senator from Wisconsin, opening statement ...
Haykel, Bernard, professor, Department of Middle Eastern Studies, New York
University ............
Prepared statement .
Howard, A.E. Dick, White Burkett Miller Professor of Law and Public Affairs,
University of Virginia Law School ..
Prepared statement ...........
Kennedy, Hon. Edward M., U.S. Senator from Massachusetts, prepared state-
ment ........................
Kommers, Donald, Joseph and Robbie Professor of Political Science and Pro-
fessor of Law, Notre Dame School of Law
Prepared statement .......
Kritz, Neil, director, Rule of Law Program, U.S. Institute of Peace; accom-
panied by Louis Aucoin ...
Prepared statement .........
Pollack, Kenneth M., senior fellow, Saban Center for Middle East Policy,
Brookings Institution ...
Prepared statement ........................
Salbi, Zainab, president and founder, Women for Women International .........
Prepared statement .......
Al-Sarraf, Sermid, member, Board of Directors, Iraqi Jurists' Association ........
Prepared statement ...
Yoo, John, visiting fellow, American Enterprise Institute
Prepared statement .........
........
Justice in Post; Jil Society, a
Jurists' !
91
APPENDIX
Transitional Justice in Post-Saddam Iraq: The Road to Re-establishing Rule
of Law and Restoring Civil Society, a report of the Working Groupon
Transitional Justice in Iraq and the Iraqi Jurists' Association .....
Material submitted by the United States Institute of Peace:
Conclusions of USIP Roundtable on Lessons learned From Prior Vetting
Processes .......
........
Project on Constitution-Making, Peace Building, and National Reconciliation .
109
111
(III)





in Iraq, and he said three things in particular. The first is, he
thought it would have a positive impact on the Israeli-Palestinian
peace process. Second, he thought it would improve the strategic
position of Saudi Arabia and other moderate Arab countries in the
region, and third, he said it would bring us to a point where Iraq
could be a model of democracy in the Arab world, and that's why
we're here this afternoon, to see that process started which, of
course, the first step is to have a constitution, and I look forward
to hearing from the distinguished people who will advise us on the
process to go forward in establishing a constitution for Iraq as the
first step to democracy.
I did notice from Dr. El Fadl's submitted written testimony I
think something that's very true, and he said, the worst thing that
the Government of the United States could possibly do while acting
as an occupying power in Iraq is to impose upon the Iraqi people
a political condition that is so artificial, that is so alien to the col-
lective consciousness of the Iraqis, that it is at odds with the his-
torical experience and aspirations, that it appears that the United
States is, in fact, acting like a power of occupation and domination,
not persuasion and liberation.
The danger is that if the United States appears hostile or insen-
sitive to the religious sentiments of the Iraqis, this will invite re-
sistance. It would be a real tragedy if the democratic experiment
in Iraq fails, not because the Iraqis do not believe in democracy but
because democracy is seen as part of an ideological package of an
aggressive or imperialistic occupying force, and I think that's the
most important thing.
What a tragedy it would be if democracy fails because we didn't
do it right, and of course the first step is to get a good
and I look forward to the testimony as we go forward.
Senator CORNYN. Thank you, Senator Chafee, and now I'd like to
turn the floor over to the ranking member of the Constitution Sub-
committee, Senator Russ Feingold, who has worked with us, he and
his staff, to prepare this hearing today, and Senator Feingold, I'll
turn it over to you.
Senator FEINGOLD. Thank you, Mr. Chairman. First let me ask,
Senator Boxer has asked that her statement be submitted for the
record.
Senator CORNYN. Without objection.
[The prepared statement of Senator Boxer follows:]
STATEMENT SUBMITTED BY SENATOR BARBARA BOXER
Chairman Chafee, Chairman Cornyn, thank you for holding this hearing today on
Constitutionalism, Human Rights and the Rule of Law in the Nation of Iraq.
The Senate Foreign Relations Committee has held several hearings on Iraq since
last July, beginning under the leadership of Chairman Biden and then under Chair-
man Lugar. In February, prior to U.S. military action against Iraq, the committee
held a hearing on post-Saddam Iraq. Representatives of both the State Department
and Department of Defense testified.
The committee asked several questions:
Who will rule Iraq?
Who will provide security?
How long will U.S. troops have to say?
What will be the role of the U.N.?
What allies will share the burden of reconstructing Iraq?


During this hearing, the committee failed to get clear answers—only rosy sce-
narios. As Chairman Lugar recently said, “We were unable in this committee to find
very much from the administration about what they were going to do.” The adminis-
tration in the Chairman's own words—was not "well prepared."
In my view, the number one priority in Iraq is to provide basic law and order.
It is unfortunate that we were not better prepared to stop the looting and lawless-
ness that took place after the fall of Baghdad.
Now, our military men and women, who so ably fought to rid Iraq of Saddam
Hussein, are frustrated that they have not been given the tools or training to act
as peacekeepers.
According to the Washington Post, “soldiers complain that they have been insuffi-
ciently equipped for peacekeeping and too thinly deployed in areas where they are
under attack from fighters evidently loyal to deposed president Saddam Hussein.”
Because of the Bush administration's insistence on a unilateral policy toward
Iraq, the task of keeping peace falls almost exclusively to the United States. Right
now, the U.S. has 146,000 troops in Iraq-non-U.S. coalition forces number 12,000.
U.S. forces make up 92 percent of the total. To compare, after hostilities ended in
Bosnia, the security force was about one-third American; in Kosovo, about one-fifth.
It is imperative that we do more to involve other nations in maintaining law and
order in Iraq.
A second issue we face is how to establish a viable transitional government of
Iraq. It is clear that the administration's initial plans have failed. General Gamer
has been recalled and replaced by a civilian administrator. The Pentagon's plan to
give power to Mr. Chalabi and the Iraqi National Congress has apparently been
scrapped.
Unlike Afghanistan where a Loya Jirga allowed Hamid Karzai to take control rel-
atively soon after the fall of the Taliban, no such mechanism to produce a viable
Iraqi leader has emerged.
Finally, I want to highlight the need to ensure that our initial missteps in Iraq
do not lead to a rise in religious fundamentalism. In yesterday's New York Times,
Nicolas Kristof writes that, “An iron curtain of fundamentalism risks falling over
Iraq, with particularly grievous implications for girls and women. President Bush
hopes that Iraq will turn into a shining model of democracy, and that could still
happen. But for now it's the Shiite fundamentalists who are gaining ground.”
Concerns about women and girls led me to offer an amendment to the Foreign
Assistance Authorization bill to make it U.S. policy to ensure the full and active
participation of women in the reconstruction of Iraq by promoting the involvement
of women in the Iraqi government, the planning and distribution of assistance, and
job promotion and training programs. I am pleased this amendment was unani-
mously adopted by the Foreign Relations Committee.
In addition, a report is being released today by Women Waging Peace in conjunc-
tion with the Woodrow Wilson Center on the role of women in post-conflict Iraq. The
findings contained in this report are the result of a two-day conference involving 26
Iraqi women leaders. Zainab Salbi, who will testify as part of our first panel of wit-
nesses this afternoon, played a key role in the development of this report.
We must ensure the full and active participation of women in the rebuilding of
Iraq. It is necessary for long-term stability and the success of a democratic transi-
tion.
Thank you.
ort is reign Relams. Iaming and by promo
STATEMENT OF HON. RUSSELL D. FEINGOLD,
U.S. SENATOR FROM WISCONSIN
Senator FEINGOLD. Thank you, Mr. Chairman.
Chairman Chafee and Chairman Cornyn, as you know, not only
am I fortunate to be the ranking member of the Constitution Sub-
committee, but I'm also a member of the Foreign Relations Com-
mittee. In that capacity, I've attended every Foreign Relations
Committee hearing on Iraq over the past year, going all the way
back to Chairman Biden's first hearings on Iraq in late July and
early August of 2002.
Those hearings which were held before, during, and now after
the war with Iraq have explored a wide variety of issues, including
a series of hearings focused on aspects of stabilization and recon-


6
• main
ak
had mixed success. There is no one-size-fits-all approach to drafting
a constitution or rebuilding a legal system in a post war country,
and I hope the hearing this afternoon will explore some of the les-
sons learned from other legal reform efforts, from South Africa to
East Timor.
We have a number of more recent examples of constitutional re-
form available to consider. We know that genuine consultation and
civic participation are not easy to achieve, and that the most effec-
tive mechanisms for ensuring legitimacy are sometimes culturally
and historically specific to a given society.
So I thank the two chairmen for convening this hearing, and I
look forward to hearing from our witnesses.
Senator CORNYN. Thank you, Senator Feingold. I couldn't agree
with you and Senator Chafee more about the way you characterize
this challenge. We must help in every way possible to assist the
Iraqis to establish the rule of law and a system of self-government.
The challenge, though, comes in dealing with the basic security
needs that are so obviously pressing upon us at this time,
allow security to then give way to the constitution-m ng by the
Iraqi people and then self-government under the rule of law. How
we do that, how we assist without imposing ourselves I guess is the
great challenge that confronts our Nation at this time.
I'd like to ask the members of the first panel to come up and
have a seat at the witness table, and I will introduce them as they
assume their places. Our first panel is comprised of experts who
can speak both to the history of and the present situation in Iraq.
Their testimony will be critical to understanding the needs and
present conditions of the Iraqi people, and in drafting an Iraqi con-
stitution that will actually work to preserve their freedoms.
First, we are pleased to have Dr. Kenneth Pollack on the panel.
Dr. Pollack is a senior fellow in foreign policy studies at the Brook-
ings Institution and director of research of the Saban Center for
Middle East Policy at Brookings. During the Clinton administra-
tion, Dr. Pollack served in the National Security Council first as
Director for Near East and South Asian Affairs, and later as Direc-
tor for Persian Gulf Affairs. He is the author of The Threatening
Storm: The Case for Invading Iraq, a book he published in 2002.
Professor Bernard Haykel is assistant professor of Middle East-
ern studies and history at New York University. His academic ca-
reer has focused on Islamic law and political and social his
2002, he published Revival and Reform in Early Modern Islam. He
received a Ph.D. from Oxford University in Islamic studies in 1998.
Professor Khaled Abou El Fadl is the Omar and Esmeralda Alfi
distinguished fellow in Islamic law at UCLA Law School. He was
born in Kuwait, and grew up in Egypt and Kuwait. He is the au-
thor of numerous books on Islamic law, and has practiced law in
both the United States and the Middle East. He received his Ph.D.
in Islamic studies from Princeton in 1999, and has served on the
UCLA law faculty since 1998.
Mr. Sermid Al-Sarraf is an Iraqi-American lawyer currently prac-
ticing in Los Angeles, California. He testifies today in his capacity
as a member of the Iraqi Jurists' Association and the Working
Group on Transitional Justice of the State Department's Future of
Iraq project.


I notice that in his written remarks he quotes from a speech
which I gave earlier this month at the American Enterprise Insti-
tute, so naturally I'm particularly interested in hearing his testi-
mony today. That's very gracious of you.
Ms. Zainab Salbi is also a native of Iraq, and I must say, please
accept my apologies if I mispronounce your name in any way. With
a name like mine, I'm particularly sensitive to people mispro-
nouncing your name, and I apologize.
She's the founder and president of Women for Women Inter-
national, which matches U.S. women with foreign women in des-
perate circumstances. Over 40,000 people worldwide have been con-
nected by Women for Women International. Now in eight countries,
the organization has distributed more than $6 million in direct aid
and micro-credit loans, and trained thousands of women in rights
awareness.
So as you can see, we have a number of excellent panelists today
n both the first and second panels. In order to ensure we have an
opportunity to hear from each of them, and ensure we have ample
time for members to ask questions, I will ask each witness to keep
their opening statements to 5 minutes or less each. Of course, your
longer written remarks will be submitted for the record so we will
have an opportunity to understand all of your views in proper con-
text.
I will take the opportunity to mention that without objection we
will leave the record open until 5 p.m. next Wednesday, July 2, for
members to submit additional documents into the record and for
members to ask questions in writing of any of the panelists.
And with that, we will first hear from Dr. Pollack. Welcome.
STATEMENT OF KENNETH M. POLLACK, SENIOR FELLOW,
SABAN CENTER FOR MIDDLE EAST POLICY, BROOKINGS IN-
STITUTION
Dr. POLLACK. Thank you very much, Mr. Chairman.
Mr. Chairman, these are extremely important hearings that you
are holding. They are important because I think it's important to
start by remembering our own history. The United States started
off with a constitution that was called the Articles of Confed-
eration. I think it's fair to say that the Articles of Confederation
were not a very good constitution, and as a result, they led to pa-
ralysis, revolts, and could have provoked civil war, perhaps even a
dissolution of this country, so it is from that lesson of our own
country's history that we should keep in mind what may happen
in Iraq.
Constitutions matter. They have a tremendous impact, a pro-
found impact on the future of a country; and I think that it is fair
to say that had the United States stuck with the Articles of Con-
federation, we almost certainly would not have lived to enjoy the
strength and prosperity that we have today. Indeed, we might not
still be a single Nation, had we lived under that constitution, and
there are countless other examples throughout history.
Now, that said, the position of the United States with regard to
Iraq's constitution is going to be a very delicate issue, as all of you
have suggested in your opening remarks. In fact, I would suggest
that the United States must walk a proverbial tightrope with re-


gard to Iraq's constitution. On the one hand, the United States can-
not dictate a constitution to the Iraqis. Iraqis must believe that
this is their own constitution, reflective of their own values and
their own traditions, and not one dictated by a foreign power.
But by the same token, Iraqis would not be the first country to
get it wrong if left entirely to their own devices. As I've just men-
tioned, the United States got it wrong, and plenty of other coun-
tries have gotten it wrong over the course of time. Weimar, Ger-
many is another that got it wrong with disastrous consequences.
Iraq is too important a country and too important a part of the
world for the rest of the world to simply take a hands-off approach
and say to the Iraqis, we'll throw you in the water and see if you
can sink or swim.
So the trick for the United States and for any other country out
there in the world with an interest in seeing the success of a stable
and prosperous new Iraqi society is to find ways to help guide the
Iraqi constitutional progress without actually directing it. With this
in mind, it's important to remember that we will be embarking on,
in some ways, a new project. We will be helping the Iraqi people
to create the first true Arab democracy.
Now, there have been examples of Arab democracies in the past.
Lebanon is a particularly good example. But what the Iraqis seem
to have in mind, what we certainly have in mind, and what others
in the United Nations and elsewhere around the world seem to
have in mind for Iraqis is something very different. It will be very
important to allow Iraqis to determine what that new Arab Iraqi
democracy looks like. We should keep in mind the examples of
other countries around the world, Japan, Italy, so many other
countries around the world which have democracies, but democ-
racies that look very different from that of the United States. As
someone said, we should keep in mind the broad parameters of de-
mocracy, and not so much the specifics.
With regard to Iraq, the goals for a constitution for Traa should
be broad, fairly basic. A constitution for Iraq should try to hold the
country together by giving all of the members of Iraqi society a
stake in the success of that new government, that new enterprise,
and so therefore the values of fairness and egalitarianism have to
be critical elements of any new Iraqi constitution.
In addition, because of Iraq's well-known ethnic, religious, tribal
and other fractures, it will be critical that such a new constitution
avoids the pitfall of a tyranny of the majority. This is another prob-
lem that we have seen throughout the history of democracies that
can be particularly pernicious, especially in a situation like Iraq's,
where so many members of the Iraqi community have been op-
pressed at various points in time by other members of the commu-
If the Iraqis believe that one group will be able to grab power
and use the power of the central government to oppress the rest
of the country, this constitution will be bound to fail.
And finally, a new constitution for Iraq must be one that creates
incentives for compromise across the entire spectrum of Ir
often in Iraqi history over the last 80 years, the system of govern-
ment has fomented divisions, has encouraged the fissures already
inherent in Iraqi society, pried them open rather than trying to


9
help bring them together, and therefore creating these com-
promises will be critical.
How to do that? Again, I think the details need to be left to the
Iraqis, but I think that some things can be pointed to. First, I think
that Americans and others might suggest to the Iraqis that they
look hard at the American system of government and the American
Constitution. I say that not necessarily as an American chauvinist,
because I think while our system worked for us, it may not have
worked for others around the world, but in the case of Iraq, I think
that there are real advantages to be found in the American system
of government, advantages which would work well for the kinds of
problems that the Iraqi people will have to overcome.
The focus on individual rights, on ensuring that the central gov-
ernment's powers are limited in terms of their ability to impose
upon the individual are critical elements of our Constitution that
would be extremely helpful in the Iraqi context.
A system of checks and balances is another extremely important
issue, whereby the Iraqi people can become much more com-
fortable, much more confident in the system of government if it had
a similar set of checks and balances to our own.
nd finally, our system of geographic representation, which en-
courages compromise, as I've suggested before, which is critical.
While it is true that the north is largely Kurdish-Sunni, while it
is true that the south is a majority Shi'ah-Arab, and that the
northwest of Iraq is a majority Sunni-Arab, so it is also true that
there are very important areas of overlap inside Iraq, and a geo-
graphically based system would create mixed constituencies, the
representatives of which would have inherent justifications for try-
ing to reach compromise solutions, rather than trying to push
things to extremes. These are the kinds of broad concepts that I
think the United States and other countries with long histories of
democracies could bring to the Iraqis as they try to frame their con-
stitution, and suggest to them might be models, might be ways to
think about crafting their own constitution that might be helpful
ng a constitution that can deliver a strong, stable, pros-
perous, and pluralist Iraq for the future. Thank you.
[The prepared statement of Dr. Pollack follows:]
PREPARED STATEMENT OF KENNETH M. POLLACK
BUILDING A DEMOCRATIC IRAQ
As the people of the United States of America learned over 200 years ago, build-
ing a stable, functional democracy isn't easy. Our own first effort, the Articles of
Confederation, were a dismal failure that produced paralysis and rebellion. It is safe
to say that had the government of the United States remained as constructed by
that initial constitution, our nation would never have achieved the strength or the
prosperity that it has today. Indeed, it is an open question whether we would even
be a single nation today.
The example of the Articles of Confederation is an important lesson that the
course of a nation will be shaped, even determined by its constitution. Machiavelli
knew this and it is why hea philosopher whose name is axiomatically associated
with autocracy-believed that a vibrant Republic was the best form of government.
Thus, there is little doubt that if a pluralist form of government is to succeed in
Iraq, the question of the specific composition of the state is critical. Especially given
Iraq's well-known ethnic, religious and tribal fractures, building a state that can as-
suage popular fears and address the specific problems of the country will be essen-
tial to seal these divisions and produce a unified, peaceful and prosperous new Iraqi
nation.
be The example on will be shaped, ilosopher whose nas the best form of


11
of the future of Iraq which hold such importance for the Iraqi people and the entire
world.
An Iraqi Democracy
If it is important to remember that Islam is not a "one-note” religion, so too is
it important to remember that the same is true of democracy. When we speak of
democracy, too often we allow our own cultural or individual associations to obscure
the meaning of the word. Democracy is rule by the people. In practical terms, it
means a political system in which the actions of the government reflect the will of
the people, in which those actions are transparent to the population, and the offi-
cials charged with executing its policies are accountable to the people. While it is
hard to imagine a truly democratic system without elections, elections are not syn-
onymous with democracy. They are just one element of it and not necessarily the
defining element.
Many governments around the world have met these conditions while adopting
very different models of democracy. Japan, Italy, and the United States are all de-
mocracies yet the workings of their political processes are as different as they are
similar.
It will be important to keep this in mind when fostering the process of democracy
in Iraq. We should think in broad terms. One of the great challenges for an Iraqi
democracy is that it will be the first real Arab democracy. Thus one of the chal-
lenges will be helping Arab Iraqis develop a democratic system that is suited to
their Arab culture just as Japanese democracy is harmonious with Japanese culture
and Italian democracy is attuned to Italian culture.
(Indeed, this is where the success of democracy in Iraq could have important
ramifications in the Middle East beyond Iraq. Part of the problem with current ef-
forts to democratize the Arab world is that the Arabs have never seen a nation that
was both truly democratic and Arab. But just as the success of Japanese democracy
made it possible for other East Asians to imagine what democracy might look like
in their country, so too might an Iraqi democracy allow other Arabs to understand
and desire the same for their countries.)
Ultimately, building democracy in Iraq is not going to be easy. In particular there
is the real possibility that Iraq's considerable problems would pervert elections, free-
dom of speech, or other democratic building blocks and produce illiberal results.
Since the fall of the Ottoman Empire, Iraq has been badly governed. In large meas-
ure this is because of Iraq's well-known cleavages, and because the Iraqis are fa-
mously ungovernable—and had a wide reputation for such even under the Otto-
mans. This is why Iraq's experiences after independence were so unhappy, and why
it took the bloodthirsty tyranny of Saddam Hussein to impose a terrible order on
the country. These very features of Iraqi society that make it so hard to govern also
demand a democratic system capable of dealing with its serious internal contradic-
tions.
The greatest internal problem for democracy is the potential for one group, par-
ticularly Iraq's majority Shi'ah community, to dominate the country. Iraq's Shi'ah
community, which comprises over 60 percent of the total population, might use free
elections to transform its current exclusion from power to one of total dominance-
and knowing this, Sunni Arabs, and perhaps the Kurds, might attempt to preemp-
tively subvert a majority rule-based system. Thus the key for an Iraqi democracy
will be to fashion a system that addresses the potential problem of a “tyranny of
the majority.”
A parliamentary form of democracy would probably be inappropriate for Iraq's po-
litical needs because it would exacerbate these problems. A parliamentary form of
government-in which the majority party controls both the executive and legislative
branches-would reinforce the tyranny of the majority, terrify Iraq's minorities, and
probably cause them to try to undermine or circumvent the system to protect them-
selves from the authority of the central government. Worst of all would be a par-
liamentary system of proportional representation, which would simply reinforce
identification and affiliation along these sectarian lines. Proportional representation
in Iraq would harden Iraq's Kurds to vote as Kurds, its Shi’ah to vote as Shi'ah and
its Sunni Arabs to vote as Sunni Arabs with no deviation or room for middle ground
positions.
Nevertheless, it is possible to envision a form of democracy that should be able
to cope with Iraq's political problems. Perhaps surprisingly, a democratic system
with some similarities to the American system would appear to best fit the bill. Iraq
needs a democratic system that ensures minority rights, limits the ability of the cen-
tral government to impose its will on its citizens, includes checks and balances to
ensure that control of one part of the government does not translate into a form
of dictatorship of the majority, and encourages compromise and cooperation among
of Iraq's had a wide er independin to impose hard to gocont


12
members of otherwise well-defined groupings. Features of Iraq's democracy should
include:
Defining the rights of every individual and limiting the trespasses of the central
government;
Declaring that all powers not reserved to the federal government are instead
vested in local governments to further limit central government authorities. In
particular, rights to language and religious expression should be expressly
noted;
Creating a further series of checks and balances within the federal system to
limit the powers of the government and particularly the ability of any group to
employ the power of the central government to repress other members of Iraqi
society;
Electing a President indirectly, in order to ensure that different communities
have a say in who is chosen. in particular, Iraq should look to other systems
(like that of Malaysia) that work to ensure that candidates are acceptable to
multiple constituencies and are not simply imposed by the largest group on the
rest of the country; and
Employing a system of representation in the legislature that is determined by
geography—not pure party affiliation as in many parliamentary systems—to en-
courage cooperation across ethnic and religious lines.
This last point is an important one in thinking about Iraqi democracy. Although
there is a fair degree of communal correlation with geography (i.e., the Kurds live
in the north, the Shi'ah in the south, and the Sunnis in the west) there are also
important regions of overlap. In Baghdad, and large chunks of central Iraq, Sunni,
Shi'ah, and Kurds are well mixed. By insisting on a system of geographically deter-
mined representation, Iraqi legislators elected from these mixed districts would
have an incentive to find compromise solutions to national problems to try to please
their mixed constituencies. This will be crucial to the success of an Iraqi democracy
because it is vital to create a constituency for compromise within the Iraqi central
government.
Indeed, this points out one of the great problems of a parliamentary system (par-
ticularly proportional representation) for Iraq, because by emphasizing party mem-
bership in determining legislative elections, the legislators themselves have less in-
centive to try to reach compromises across party lines and much more incentive to
slavishly follow party ideology. It is a system that tends to push legislators to ex-
tremes. What is needed in Iraq is a system that instead encourages them to move
toward the center and reach compromises. The American system has become almost
infamous for this tendency, so much so that on election day it is often impossible
to tell the candidates apart because they all cling so desperately to the middle
ground.
One technique that might be applicable in Iraq would be to require candidates
to receive a certain percentage of votes from different communities. Thus, a legis-
lator from Kirkuk (a mixed Sunni Arab and Kurdish area) would be required to re-
ceive at least one third of the votes of both the Arab and Kurdish communities. In
such a system, a demagogue or sectarian extremist would be unlikely to garner suf-
ficient backing to win, while moderates and those amenable to compromise would.
This approach could be applied at other levels as well. For example, a candidate for
Chief Executive would have to receive a similar percentage from different commu-
nities, again discouraging chauvinism.
No Other Alternatives
Building a democracy in Iraq is not going to be quick or easy, nor is there any
guarantee that the effort will succeed. However, it is a necessary course for the
United States, the international community, and the people of Iraq to follow. I
speak not as an expert on democracy, nor as an advocate for democratic systems,
but purely as a specialist on Iraqi affairs. Although there can be no guarantee that
democracy will succeed in Iraq, I think it a near certainty that any other system
of government will fail there.
The problems of Iraq are so great that any other system is bound to fail. Indeed,
the history of Iraq is that they all have failed. Monarchy, oligarchy, and autocracy
have all failed to produced stability, prosperity, and tranquility. Both the monarchy
and the savage brutality of Saddam's reign produced stability without prosperity or
tranquility. The pre-Saddam revolving dictatorships produced none of these ends. In
the future, any resort to these or other approaches—theocracy, tribal rule,
consociational oligarchy—would doubtless produce more of the same. If the United
States and our international partners are not going to see Iraq slip into chãos and
Ha mixed Sunni votes from diraq would be
uarantee thes, the interna democracy, nor Although there


13
civil war, we are going to have to ensure that the Iraqis are able to build a stable
democracy. That could be very difficult, but it is also not impossible.
Senator CORNYN. Thank you, Dr. Pollack.
Professor Haykel.
STATEMENT OF BERNARD HAYKEL, PROFESSOR, DEPART-
MENT OF MIDDLE EASTERN STUDIES, NEW YORK UNIVER-
SITY
Dr. HAYKEL. Thank you, Mr. Chairman. I would like to submit
the statement for the record, and I will summarize it here in a set
of points, keeping them brief, and keeping the overlap with my col-
league to a minimum.
Clearly, the process that the United States has embarked on is
complicated and fraught with great difficulties. The difficulties
have to do with the nature of Iraqi society, its violent past, its au-
thoritarian past as well, in addition to the regional pressures that
countries around Iraq are exerting.
The U.S., in redevising or recreating this constitution, should
pursue a proscriptive rather than prescriptive role, or policy. This
is a fancy way of basically saying that we should just establish the
broad parameters of what this constitution has to look like, or
ought to look like-it should be democratic, it should be pluralist-
but we should not get into the details of what this constitution will
involve. This is for the Iraqis to do.
One thing that should be borne in mind is that Iraqis, whether
exiles or Iraqis who have stayed in Iraq throughout this period, are
an extremely talented group of people. They are very, very well-
educated. The jurists both outside and inside are extremely tal-
ented, and it should be left to them to make these kinds of deci-
sions.
Now, I have surveyed the various proposals that the different
groups have made or offered so far, and all seem to favor a federal
structure for Iraq, and the advantage of that—and if they wish to
keep the federal structure, we should by all means support this,
and it seems to be going and headed in that direction, and the ad-
vantage of that is that it would accommodate the three major
groups that constitute the Iraqi population, and will prevent any
one of the groups from taking over or dominating the others.
These three groups--the Sunni Kurds, the Sunni Arabs, and the
Shiite Arabs—are really the major groups that form the Iraqi popu-
lation and will have to come to an accommodation with each other
over the form of rule that Iraq will have.
The one crucial thing that the United States should not, again
in establishing this parameter, should not insist on is that the con-
stitution of Iraq should not have specific roles for these various
groups embedded in the constitution. The example of Lebanon is
extremely crucial to bear in mind here. In Lebanon, the constitu-
tion as set up has the various confessions in the country play
set roles politically. What this means is that it cements the dif-
ferences along sectarian religious lines, it prevents groups from cre-
ating alliances across these sectarian religious lines, and it pre-
vents a genuine sense of nationalism and citizenry from being
formed.
ng


14
So this is another thing to bear in mind, and it seems to me, like
Dr. Pollack said, one good way in which Iraqis can create alliances
across the religious divide is to have the districts that are formed
in Iraq to be based on territorial considerations, rather than reli-
gious or ethnic considerations. In other words, geography, demog-
raphy, economic viability should be the bases for the division of
Iraq, for the constituent units of Iraq, rather than religion or ethnic
identity.
In this regard, I think the United States should, as soon as pos-
sible, establish a census for the population of Iraq, so that we have
a baseline to know exactly what the Iraqi population looks like in
ethnic, religious, linguistic, socioeconomic terms.
I would like to raise now the issue of Islam. One unifying factor
for the Iraqi population is Islam. Ninety-five percent of all Iraqis
are Muslim, and they clearly want Islam to play a role in whatever
constitutional setup they decide on. This should be something that
the United States should encourage, and not discourage. If Islam
is given a role at a symbolic level where, let's say, one article of
the constitution states that Islam is the official religion of the State
of Iraq, this should be perfectly acceptable to us.
Many countries in the Muslim and Arab world have this. Malay-
sia is one, Yemen is one, and there is no threat from giving Islam
this symbolic role. There is no threat of a theocracy emerging if
Islam is given symbolic representation in the constitution.
[rag is not likely to turn into a theocracy, either Shiite or Sunni.
because of the way the population is broken up and because of its
history. I don't want to go into the details. My statement states
why this is the case. We should not fear a theocracy emerging in
Iraq at all. It would not work, and the Iraqis themselves don't seem
to want it. The majority of Iraqis don't seem to want it.
The other issue that we should bear in mind is: whatever we do
in Iraq has wider policy implications in the Middle East; what we
do there is crucially important because Arabs at the moment are
looking at us, and there is an equivalency being established be-
tween our occupation in the country and what the Israelis are
doing to the Palestinians.
This is how Arabs outside Iraq seem to be making this sort of
equation between our role and the Israeli role, and this is a very
bad thing. We should break that linkage as quickly and as effec-
tively, as efficiently as possible, and our allowing Islam to play a
role in the constitution framework of Iraq is one way of doing that.
If Arab Muslims see that the United States is not against Islam
but is allowing Iraqis to express their Islamic identity, this would
again play a very important role in our fight against people like the
bin Laden, who are arguing that the United States is at war with
Islam.
There are secular forces in Iraq as well, and we should let them
play a role, but not overemphasize the role that they will be play-
ing, nor underemphasize it. Religion will certainly have a role to
play in the constitution, and I think we should look favorably upon
that.
Finally, Iraq did have a period of political pluralism, which was
limited under the Hashimite monarchy. They did write a constitu-


15
tion in 1925, which was not a bad model, actually, to base oneself
on for this constitution, the forthcoming constitution.
I think it's important for us, that is, for the United States, to in-
voke and revise that period in Iraqi history. At the very least, it
will make our efforts seem more legitimate against this historical
backdrop and also make the efforts that we're engaged in seem less
contrived and artificial.
If I may, just one last, last point. The United States at the mo-
ment is engaged in a process of de-Ba’athification in Iraq. I've cal-
culated the numbers of Ba'athists who will be excluded from all of-
fices. It comes to somewhere around 220,000 people. Now, these
220,000 individuals have families that depend on them. A very con-
servative estimate would mean that at least 1 million Iraqis would
be out of jobs, maybe even up to 5 million Iraqis. That's 20 percent
of the population. I think we ought to reconsider also our policy of
de-Ba'athification to make the number of people in the Ba'ath who
are excluded from office the smallest and lowest number possible
in order not to exclude such a large number of people from State
office,
Thank you very much.
[The prepared statement of Dr. Haykel follows:]
PREPARED STATEMENT OF BERNARD HAYKEL
The process of establishing a constitution for Iraq is complicated and fraught with
difficulties. This is because of the divided and fractious nature of Iraqi society, its
violent and authoritarian past and regional pressures exerted by neighboring coun-
tries. The process the United States has embarked on in rebuilding Iraq is unprece-
dented in the region and there is no model from the Arab or Islamic worlds that
can be emulated. In what follows, I will present some of the broad guidelines that
should inform the policy of the United States in this process.
The U.S. should pursue a proscriptive rather than a prescriptive policy. In other
words, we should delineate the parameters within which the constitution should be
formulated and not dictate the specific details of the Iraqi constitution. The U.S.,
for example, must insist that Iraq be a democratic country, but it should not delve
into such detailed issues as to whether the form of governance ought to be federal
or unitary or the executive be presidential or parliamentarian. Such questions
should be resolved by the Iraqis themselves in a constitutional convention. Iraq has
a very talented pool of individuals (jurists, academics and politicians), among the
exiles and those who never left Iraq, and delineating the specifics of the constitution
should devolve on them as they will be responsible ultimately for its success as well
as its failure.
The various political groups that are now competing for a say in the future of Iraq
are advocating a federal structure, one that would accommodate, in particular, the
non-Arab Kurds (approximately 20% of the population), but also the Shiite Arabs
(approx. 60% of the population) in the south and the Sunni Arabs (approx. 20% of
the population). Federalism is an appealing formula because it would prevent one
group dominating the others, a real prospect given Iraq's history and demographic
realities. A constitutional parameter that must be established by the United States
is that no one of the three dominant groups should be allowed to dominate the oth-
ers, as the Sunni Arabs have done until the defeat of Saddam Hussein's regime. By
the same token, however, the United States must endeavor to prevent the constitu-
tion from enshrining Iraqi politics along ethnic (Kurd vs. Arab) and/or confessional
(Sunni vs. Shiite) lines. The example of Lebanon is important to keep in mind in
this regard. Here the constitutional setup cements confessional rule, and this has
prevented the emergence of secular political formations and allegiances that cut
across religious divides. As a result, Lebanese nationalism and institutions have re-
mained weak and all politics is confessional-a sure recipe for future strife. Clearly
there is a tension between establishing a power sharing arrangement among the
three major groups in Iraq and allowing the system to function and evolve on a non-
ethnic and non-confessional basis. There is no ready formula for resolving this ten-
sion but below are some ideas about how one can think about accomplishing this.


18
it can only work to our advantage, as long as whatever commit-
ments are made vis-a-vis Islam are made in light of the commit-
ments made vis-a-vis individual human rights.
Thank you.
[The prepared statement of Dr. El Fadl follows:]
Imhat the main objectonor and dignity, odments that represent thought that
or particular set off pod of several schools the Sunni world t!
after the his legislatives that is cialists (jurists, and schola are not the law,
PREPARED STATEMENT OF KHALED ABOU EL FADL
Introduction to Islamic Concepts of the State
The relationship of Islam to the state, both in theory and practice, has been com-
plex and multifaceted. Islam, as a system of beliefs embodying a multitude of moral
and ethical principles, has inspired a wide range of social and political practices,
and a diverse set of legal interpretations and determinations known collectively as
the Shari'a. Muslims believe the Shari'a to be divine law, in the sense that the
Shari'a is based on the human interpretations and extrapolations upon the revealed
holy book, the Qur'an, and the authentic precedents of the Prophet, known as the
Sunna. Therefore, the Shari'a (which literally means the way to God or the fountain
and spring source of goodness) is the sum total of the various efforts of Muslim
scholars to interpret and search for the Divine Will as derived from the Qur'an and
Sunna. Importantly, through the course of fourteen centuries, Muslim scholars em-
phasized that the main objective of Shari'a law is to serve the interests and well
being, as well as protect the honor and dignity, of human beings. There is no single
code of law or particular set of positive commandments that represent Shari'a law.
Rather, Shari'a law is constituted of several schools of jurisprudential thought that
are considered equally orthodox and authoritative. In the Sunni world there are four
dominant schools of thought: the Shafi'is, Hanafis, Malikis and Hanbalis. In the
Shi’i world, the dominant schools are the Ja'faris and Zaydis. The Sunni population
of Iraq is predominately Hanafi, while the Shi’i population is predominantly Ja'fari.
The Historical Background of Muslim States
The first Muslim polity was the city-state led by the Prophet Muhammad in Me-
dina. But after the Prophet Muhammad died, no human being or institution was
deemed to inherit his legislative, executive, or moral power. În Islamic theology,
there is no church or priestly class that is empowered to speak for God or represent
His Will. There is a class of Shari'a specialists (jurists) known as the ‘ulama' or
'fuqaha', who are distinguished by virtue of their learning and scholarship, but there
is no formal procedure for ordination or investiture. These jurists are not thought
to embody the Divine Will nor treated as the exclusive representatives of God's law.
The authoritativeness that a particular jurist might enjoy is a function of his formal
and informal education, and his social and scholastic popularity. As to their political
and institutional role, in classical Islamic theory, jurists are supposed to play an ad-
visory and consultative role, and to assume judicial positions in the administration
of justice. It is an interesting historical fact that until the modern age, jurists never
assumed direct political power. Although, historically, the jurists played important
social and civil roles and often served as judges implementing Shari'a law and exec-
utive ordinances, for the most part, government in Islam remained secular. Until
the modern age, a theocratic system of government in which a church or clergy rule
in God's name was virtually unknown in Islam. Institutionally, Islam does not dic-
tate a particular system of government, and in theory, there is no inconsistency or
fundamental clash between Islam and democracy. The Qur'an dictates only that
governance ought not be autocratic, and that the affairs of government should be
conducted through consultation (shura). According to the classical jurisprudential
theory, governance should be pursuant to a civil contract ('aqd) between the gov-
ernor and the governed, and the ruler should obtain a pledge of support (bay'a) from
the influential members of society as well as the majority of his constituency. In the-
ory, rulers are supposed to consult with jurists, as well as other representative ele-
ments in society, and then, after concluding the consultative process, act upon the
best interests of the people. In classical Islam, the consultative body was known as
ahl al-hal wa al-aqd, and this body was supposed to be representative to the extent
that it included the authoritative and popular jurists, and other influential members
of society. There is substantial disagreement in the classical sources, however, on
whether upon concluding the consultative process, the ruler is duty bound to adhere
to the judgment of the majority, or whether he may act upon his own discretion,
even if his opinion is contrary to the view expressed by the majority. This doctrine
was known as ilzamiyvat al-shura. There was a strong consensus among the clas-
sical scholars that in principle, consultation itself is mandatory, but they disagreed
young nistorical fact that until the mode
es, for the often served asjuhistorically, the modern ag
to the judgmoinion is contrarshura. There Watself is mar


19
on the extent to which a ruler is free to act in contradiction to the will of the major-
ity as expressed in the consultative process.
Outside this basic framework, the state was supposed to respect Shari'a, and
strive to fulfill Shari'a's ultimate objectives in society. Historically, the prevailing
form of government in Islam was known as the Caliphate, which in reality was dy-
nastic and authoritarian. For about thirty years after the death of the Prophet,
Muslims succeeded in establishing a form of government with a strong democratic
orientation, but upon the rise of the Umayyad Dynasty, the democratic experiment
came to an end, and power became concentrated in the hands of particular families
or military forces. In pre-modern practice, to the extent that rulers adhered to the
process of consultation at all, the consultative body was usually not representative
of the governed, and membership in such a body was typically the product of polit-
ical patronage and not the outcome of a democratic elective process.
The Adoption of European Laws by Muslim Countries in the Modern Age
In the post-Colonial era, after most Muslim nation states achieved independence,
the relationship between Islam and the state gained a new sense of urgency. At
issue were the extent to which Shari'a law would play a role in the legal systems
of the new-found nation-states, and the extent to which Islam would play a role in
affairs of governance. In the period between the 1940's and 1960's, most Muslim
countries opted for a nationalist, republican, secular model in which there is a very
strong executive power, supported by weaker legislative and judicial branches of
government. Some countries, such as Saudi Arabia, continued to be governed by a
strong royal family, a consultative branch of limited powers, and a judiciary that
implemented a mixture of customary law and Shari'a-based law. Most Muslim coun-
tries, such as Egypt, Iraq, and Kuwait imported the French Civil and Criminal
Codes, and organized their legal systems according to the Civil Law legal tradition.
A few countries such as Pakistan, Indonesia, and Malaysia were influenced by the
British Common Law system, which they supplemented by various statutory laws
enacted in specific fields. The extent to which the Islamic legal tradition was inte-
grated into modern legal systems varied widely from one country to another, and
also varied in accordance with the particular field of law in question. More specifi-
cally, in commercial and civil legal matters, most Muslim countries generated a syn-
chronistic system, which was predominantly French, Swiss, or British, amended by
various concepts and doctrines inspired by the Islamic legal tradition. In criminal
matters, most countries adopted the French or British systems of criminal justice.
Countries such as Saudi Arabia and post-revolutionary Iran rejected Western influ-
ences, and claimed to base their criminal laws on the Islamic tradition. Most of the
countries of the Arabian Peninsula, some African nations, and Iran continued to ad-
here to the Islamic tradition in matters of personal injury and tort law. This was
manifested primarily by the incorporation of blood money (diya), and strict caps on
financial liability in cases of personal injury. Personal and family law remained the
field most susceptible to Islamic influence. Most Muslim countries created courts of
separate jurisdiction to handle matters related to inheritance, divorce, and mar-
riage. In these fields, judges typically implement statutory laws, which were enacted
as codifications of Islamic laws.
The Iraqi Legal Experience in the Modern Age
It is often said that Iraq was the cradle of civilization. This is definitely true as
far as Iraq's long and rich jurisprudential experience. Before Saddam came to
power, Iraq, in addition to Egypt, was one of the most influential countries in the
development of the legal institutions and substantive laws of the Arabic speaking
world. This was in part due to the high level of education enjoyed by the Iraqi elite,
and the rich cultural experiences and cosmopolitan nature of Iraqi urban centers,
such as Baghdad and Basra. Geographically, Iraq was at the central point where
Arab, Persian, Kurdish, and Turkish cultures meet and interact. As noted above,
Iraq was also home to both Shi'i and Sunni major centers of religious study. The
rich and diverse makeup of Iraqi society itself allowed Iraq to be the beneficiary of
ethnic, linguistic, religious, and sectarian cultural exchanges. This in turn was re-
flected in the fact that Iraqi legal thought was characterized by a distinctive syn-
chronistic quality, open-mindedness, and a lack of xenophobic nativism.
Historically, the urban centers of Iraq, Baghdad, Basra, and Kufa, played central
roles in the birth of Islamic jurisprudence, and they continued, over the span of a
thousand years, to play a leading role in the development and evolution of the insti-
tutions and doctrines of Islamic law. In fact, the Hanafi and Ja'fari schools of Is-
lamic jurisprudence, in particular, developed primarily in Kufa, Basra, and Baghdad
in the first few centuries of Islam. Furthermore, Baghdad was the capital of the
Abbasid Empire, the second major dynasty in Islam. As such, Iraq's intellectual her-


20
itage, especially as it relates to Islam's divine law, continued to carry considerable
moral weight within the Muslim world.
After gaining independence from Britain in 1930, like most Arab countries, Iraq
eventually adopted Civil Law and Criminal Law Codes, which were adapted from
the French and Germanic legal systems. Iraq's personal law, however, continued to
be based primarily on Islamic law. Like most Muslim countries, the continuing ten-
sion, and at times conflict, were between Iraq's Islamic legal heritage, and the legal
system borrowed from Europe at the end of the Colonial era. Many aspects of the
classical tradition of Islamic law conflicted with the newly adopted European-based
Civil and Criminal laws, and as in the case of many other Muslim countries, there
were considerable sociopolitical pressures, both internal and external, to simulta-
neously Islamize and modernize.
In the 1950's Iraq was at the forefront of the creative and demanding effort to
adopt a system of law that was efficient, modern, and at the same time, Islamically
legitimate. In this regard, the Iraqi Civil Code of 1953 was one of the most innova-
tive and meticulously systematic codes of the Middle East. Iraqi jurists, working
with the assistance of the famous Egyptian jurist Al-Sarihuri, drafted a code that
balanced and merged elements of Islamic and French law in one of the most suc-
cessful attempts to preserve the best of both legal systems. Furthermore, in 1959
Iraq promulgated the Code of Personal Status, which on the issues of family and
testamentary law was at the time the most progressive Muslim code of law. Impor-
tantly, this Code merged elements of Sunni and Shi’i law to grant women greater
rights as to marriage, divorce, and inheritance.
The Iraqi Ba'ath, a staunchly nationalist and secular party, came to power in
1968, and Saddam formally ascended to the presidency in 1979. It is fair to say that
especially after Saddam rose to power, all creative and inspiring legal activity came
to an end. Since coming to power, Saddam involved Iraq in a series of wars that
enabled him to declare a constant state of national emergency and to rule mostly
by executive order. The centralization of power in the hands of the Ba'ath and Sad-
dam meant that legal institutions lost all vestiges of independence, and civil society
became thoroughly co-opted by the ruling party. Increasingly, Iraqi law could no
longer be described as either Islamic or French, but as distinctly and uniquely
Saddamian. The death sentence was prescribed for a large variety of offenses includ-
ing usurpation of public money, corruption, insulting the Presidency, and treason,
which was defined very widely. The implementation of these laws was highly whim-
sical and largely contingent on the will of the party and President. Even foreign in-
vestments became largely dependent on having the proper connections to the ruling -
elite, and tapping into a network of businessmen who were sanctioned and protected
by a clique that was close to Saddam and his family.
The Islamization of Laws in Modern Muslim Countries
The period between the 1960's and 1970's witnessed the emergence of fundamen-
talist Islamic movements that materially impacted the constitutional place of Islam
in the various Muslim states. Building upon the positions of some pre-modern theo-
logical orientations, most fundamentalist groups, but not all, contended that sov-
ereignty belongs only to God (al-hakimiyya li’llah), that governments ought to rep-
resent and give effect to the Divine Will, and that there ought to be a strict adher-
ence to the detailed determinations of religious scholars. The fundamentalist ori-
entations of that period are most accurately understood as oppositional nationalistic
movements dissatisfied with the status quo, and utilizing religious symbolisms as
a means of claiming authenticity and legitimacy. The problem, however, is that fun-
damentalists tended to treat Shari'a as a code of law containing unitary and
uncontested specific legal determinations, and also tended to ignore the highly con-
textual socio-historical nature of most of Islamic jurisprudence. The Islamic legal
tradition is too diverse, diffuse, and amorphous to yield to the type of narrow treat-
ment afforded to it by fundamentalists. In addition, taken out of its socio-historical
context, parts of Islamic legal tradition become problematic in terms of contem-
porary international human rights standards.
Although fundamentalist movements did not achieve direct power in most Muslim
countries, they generated political pressure towards what might be described as
greater symbolic Islamization. As a part of their Islamization efforts, a large num-
ber of Muslim countries drafted in their constitutions articles that either stated:
“Shari'a is the main source of legislation," or "Shari'a law is a main source of legisla-
tion.” The former version made Islamic law the near exclusive source of law for the
nation, while the latter version mandated that Islamic law be only one of the sev-
eral sources of law making in the country. Importantly, however, especially for coun-
tries that adopted the former version, the Shari'a clause was deemed not to be self-
executing. This meant that the Shari'a clause was deemed to be addressed to the


21
and misted to refer to custom first, and when w
civil codes
are instructed tseveral Muslimand second se ishinstructed':
e
na trauses have their biggest impact. unon the
legislative and executive powers in the country, and not the judiciary. Accordingly,
the judiciary would not, on its own initiative, give effect to Islamic law. Rather,
Shari'a law needed to be implemented or executed by statutory law, and only upon
the enactment of such statutory laws would the judiciary be bound to give it effect.
Effectively, this meant that in most instances the Shari'a constitutional clause
would remain dormant until made effective by statutory law. Nevertheless, at the
political level, Shari'a clauses played an important symbolic role. In addition,
Shari'a clauses were often cited by courts in resolving possible ambiguities in statu-
tory law by referring to the principles of Islamic jurisprudence.
Other than the Shari'a clauses found in the constitutions of many Muslim nations,
a large number of countries incorporated Islamic law in their civil codes as one of
the sources of legal construction. Typically, there is a clause written into the civil
code instructing judges to interpret a statute by referring to the explicit meaning
of the words of the statute. In cases of ambiguity, a judge is instructed to refer first
to the established principles of Islamic law, and second to the prevailing customary
practices in the country. In several Muslim countries, in cases of statutory ambi-
guity, judges are instructed to refer to custom first, and then to Shari'a law. Such
civil code Shari'a clauses have their biggest impact upon the commercial practices
of Muslim countries, depending, for the most part, on the clarity and specificity of
the statute being interpreted by a court.
The Purported Islamization of Laws in Iraq
After the Gulf War of 1991, and especially after the rebellions in the South and
North, Saddam announced that he would implement Islamic law in Iraq, but he did
so primarily as a legitimacy and popularity ploy. Saddam had systematically obliter-
ated all Islamic, Sunni and Shi'i opposition, and especially after quelling the rebel-
lions that plagued the country at the conclusion of the first Gulf War, Saddam had
achieved notoriety for executing more Muslim scholars and jurists than any other
leader in the modern history of Islam. Suddenly, the staunchly secular Saddam dis-
covered religion and made a point of getting himself filmed performing his prayers,
or would interrupt media interviews, announcing that he must pause for prayers.
Saddam's implementation of Islamic law was equally theatrical. On occasion, he
would announce that a group of individuals will have their hands cut off for theft,
or will be executed for adultery. The carrying out of these punishments were some-
thing of public spectacle, in which people would be forced to watch the gruesome
affair at the risk of being shot. Since the charges and trials, and often even the
names and identities of the suspects were not made public, strong suspicions per-
sisted that those being punished were actually people accused of being opponents
of the regime. It is not an exaggeration to conclude that since the late 1970's the
Iraqi legal experience can be summed up as the following: There was no rule of law
in Iraq, but only the rule of fear.
Comparative Models Regarding the Role of Islam in the Constitutions of Modern
Muslim States and a Cost and Benefit Analysis of Each Model
Considering the wide range of technical and symbolic roles that Islam, in general,
and Islamic law, in particular, have come to play in the world, it is useful to sum-
marize the dynamics between Islam and the modern state in four basic models.
These models will help place the various constitutional experiences, as far as Islam
is concerned, in comparative perspective. In the process of explaining the four mod-
els, I will also analyze some of the costs and benefits associated with each. This will
enable us to better assess the risks associated with any particular policy imple-
mented in modern day Iraq.
Number One: The Strict-Separationist Model
According to this model, there is strict separation between Islam and the state.
The state represents purely secular interests, and religion is not formally integrated
in the political or legal system. Although the country in question might be predomi-
nately Muslim, there is no reference to Islam in the constitution or civil code, and
personal laws are not based on nor inspired by Shari'a law. In this model, religious
scholars and institutions may exist as a part of civil society, and they may even re-
ceive limited subsidies from the state, but they do not play an institutional role in
the power structure, and they do not formally participate in formulating policy or
the production of law.
This model, however, has not been widely adopted in Muslim countries. The prime
examples of such a model are Turkey, Mauritania, Albania, and some of the former
Soviet republics. Usually this model engenders wide opposition, and therefore, it
tends to require heavy-handed repression by the state. Alternatively, as is the case
with Turkey, it requires the dissemination of a widely popular civic ideology, such
as Attaturkism, which thoroughly revises and reinvents the inherited cultural and


22
religious convictions and practices. In the case of the former Soviet republics and
Albania, this ideological role was played by Communism.
It is debatable whether this model is necessary for the existence of a liberal de-
mocracy. While all democracies generally recognize the necessity of separation be-
tween religion and state, according to this model, the separation is strict, dogmatic,
and unwavering. Religion is not accommodated in any facet of public life, and the
state has no religious identity whatsoever—it is not Muslim, Christian, or Jewish.
The state does not fund religious institutions, and does not participate in any public
displays of religion. But not all democracies have found it necessary to maintain a
rigidly separationist policy as far as religion is concerned. Poland, Israel, India, and
even England cannot be considered strict separationists, although they have man-
aged to establish strong democratic systems. These four countries, and many others,
have a very complex dynamic, where the government does not rule in God's name,
but it does accommodate various aspects of religious practice and identity. In these
countries, although the government guarantees the rights of all religious minorities,
the government is not entirely impartial towards all religions. Even more, the coun-
tries, these governments represent, might even have a certain religious identity,
such as Jewish, Catholic, or Protestant.
While the strict separationist model can guarantee absolute equality of religious
freedom, its uncompromising secularism often puts it at odds with the religiously
based sentiments of the majority of citizens. If the majority of the citizenry has a
strong sense of religious identity, often the state is forced to clash with the senti-
ments of the majority, and as a result, the state ends up using heavy-handed tac-
tics, largely at the expense of human rights. Consequently, the state becomes alien-
ated from its citizenry, and the country exists in a perpetual condition of political
turmoil and instability.
Number Two: The Accommodationist Model
This is the model adopted by a large number of Muslim countries including na-
tions such as Syria, Algeria, Tunisia, and Iraq. In general, the institutions of the
state are separated from religion, and Shari'a is excluded as a formal source of law.
The personal and family law codes, however, are based on Islamic law, and are im-
plemented by Shari'a courts. Although the constitution may assert the Muslim char-
acter of the nation, Shari'a is not indicated as a source or the source of legislation.
In addition, the impact of Islamic legal precepts or precedents upon the commercial
and civil codes is very limited. The most distinctive aspect of this model is that ex-
cept for the personal and family law fields, Islamic law is not integrated in the
mechanisms of the state, and Islam does not provide the guiding principles for the
polity. Islam is accommodated in the sense that it dominates the field of inherit-
ance, marriage, and divorce, and Islamic religious practices are permitted to exist,
and often thrive, as a part of civil society, but the state does not actively promote
the precepts of the religion, and does not give religious parties or interests a formal
role in governance. In the Accommodationist Model, the religious endowments, usu-
ally inherited from previous eras, are allowed to exist, but they are placed under
state control, and are permitted a very limited degree of autonomy. Mosques are
often licensed and administered by the state, and imams (preachers who perform
the call for prayer and lead prayer) are typically appointed by the state as well.
Usually, the state will determine the appropriate subjects and content of the Friday
sermons given in these mosques.
At the official and formal levels, this model keeps religion at a considerable arms
length. But there are two distinctive risks in this model. Like the strict separa-
tionist model, it could generate considerable amount of religious opposition, and lead
to a polarizing confrontation with Islamist forces. The other risk, and the more sub-
tle one, is that unwittingly it could lead to considerable involvement with religion.
Often in an effort to limit the popularistic and charismatic potential of the religion,
the state is forced to involve itself with the regulation of religious expression, which,
in turn, could invite greater repressive powers by the state.
Number Three: The Integrationist Model
In this model, there is greater formal involvement by the state with religion, but
the political institutions continue to maintain their autonomy and separate exist-
ence from the religious institutions. Particularly in the decade of the 1970's, this
model became more widespread and influential. Currently, examples of the integra-
tionist model may be found in Egypt, the United Arab Emirates, Kuwait, Oman,
Pakistan, Bangladesh, and Indonesia. The distinctive paradigm of this model is that
while the state does not seek to implement all the technical prescriptions of Islamic
law, and the state does not pretend to be the enforcer of canonical Islam, Islam and
the Shari'ah are recognized as formal sources of moral and ethical inspiration. Fur-
cha Islam is and divort of civil so not give fedel, the rhut they are Mosques
cole precepts of th as a part of civi Islamic religiosoit dominates the principles for the


24
mitor itbans certain books that it consumer modal Turther
plement Islamic law, assisted by executive orders or regulations that dictate policy
or particular limits. The important element in this model is that depending upon
one's perspective, the state is requisitioned in the service of religion, or religion is
requisitioned in the service of state. In all cases, there is an institutional body that
determines the Will of God, and enforces it as such. As such, typically in this model,
all courts are considered Shari'a courts charged with the enforcement of Islamic law,
as defined by the state. Courts follow the instructions of the state as to what con-
stitutes Islamic law, and in some cases and in particular fields, courts are granted
wide law making powers.
The difficulty with this model is two-fold: One, an institution or group of institu-
tions becomes empowered with the gloss of divinity, and therefore, it is very difficult
to reconcile this model with democracy. Second, this model tends to narrowly define
orthodoxy because it favors one particular Islamic perspective over all others. Argu-
ably, this has the serious potential of undermining the richness and diversity of the
Islamic tradition.
The Spectrum of Models
It is important to note that the four models identified here are approximations
of the earmarks of actual practices of modern Muslim states. However, there is a
spectrum that exists within each model and between one model and the other.
Therefore, it is possible that an Accommodationist state borders on being Integra-
tionist, and it is also possible that an Integrationist state would act as
Requisitionist over some issues and under certain circumstances. For example,
Egypt, over most issues, is Integrationist, but at times, acting upon the instructions
of the Azhar University, it bans certain books that it considers religiously offensive.
In those instants, it is acting pursuant to the Requisitionist model. Furthermore,
some countries, such as Jordan, have experimented with the Integrationist model
but of lately have drifted towards the Accommodationist model. On the other hand,
for example, Sudan has drifted from a Requisitionist orientation to a more integra-
tionist stance.
The Case of Iraq and the Iraqi Constitution
There is little doubt that many Iraqis are aspiring for a democratic order that
would guard against the kind of abuses that they for long have had to endure. The
formidable challenges confronting Iraqis include how to overcome the absolute juris-
prudential impoverishment that they suffered under the Ba'ath, while reclaiming
their creative legacy; how to find justice in post-Saddam Iraq, while avoiding the
destructiveness of vengeance; and how to make the law a shield and tool in the
hands of the people; and not an oppressive sword in the hands of the state. On the
legal front, the challenge will be how to establish order and stability, while still al-
lowing the law to be an agent of progressive change. It is important in this regard
to note that the rule of law is a necessary condition for a democracy to exist, but
it is not enough. Democracy is not just about the objectivity and fairness of process
or the division and separation of power between various branches of the govern-
ment. Democracy is also not just about giving effect to will of the majority, or ac-
countability to the people. Democracy is about a moral commitment to the funda-
mental and basic worth and dignity of each and every member of the citizenry, and
the conscientious engineering of government and society so as to make human
beings secure in their rights.
Importantly, this moral commitment can be expressed through law, but it cannot
be not created or invented by legal command. Democracy is not secured by drafting
good laws alone, but it must be made a part of one's cultural and ethical view. Con-
sidering Iraq's rich civilizational heritage, there is no doubt that Iraqis will be look-
ing, and rightly so, into their pre-Ba'th legal and moral history for inspiration and
guidance on how to make the moral commitment and develop the ethical worldview
necessary for a democracy. In this context, it is important for American policy mak-
ers to understand that Iraq's legal and ethical history did not start with the over-
throw of Saddam. A major component of the Iraqi heritage is the Islamic faith, and
the leading role that Iraq played in the development of Islamic law. But here is
where Iraq's creative legacy is most needed. A dual commitment to Islamic law and
democracy is possible, but only if Muslims understand Islamic law to reinforce the
same commitments made by democracy to individual human rights and dignities.
This is exactly where Iraq might be able to reclaim its leading educative and inspi-
rational role towards the rest of the Muslim world. It will be a revolutionary step
if Iraqi legal minds are able to reinterpret and rethink the Islamic classical tradi-
tion in a way that upholds the basic individual rights necessary for a democratic
order.
countal and baous enginehts.
itment can be
but by democracy, to reclaim its heill be a revolutssical tradi-


25
its des not force wards their faitshould not ine the religiau
racy and nus, in their constitue their Islamic co The United Statean rights and dem at
Opting for either the Strict-Separationist or Requisitionist (theocratic) Models in
Iraq will be nothing short of a disaster for the Iraqi people, Muslims, in general,
and the West. The establishment of a theocracy in Iraq will inevitably lead to a de-
nial of human rights, the marginalization and exclusion of Iraq from the world com-
munity, and considerable sectarian tensions between Shi’i and Sunni Muslims. But
even more, a theocracy is an affront to the wisdom of Islam, the diversity and rich-
ness of Shari'a, and to the historical legacy and established precedent of Muslims
around the world. But the forcible exclusion of Islam from public life, state sponsor-
ship, and all legal and constitutional documents will be a disaster of equal propor-
tions. The worse thing that the government of the United States can possibly do,
while acting as an occupying power in Iraq, is to impose upon the Iraqi people a
political condition that is so artificial—that is so alien to the collective consciousness
of the Iraqis, and that is at odds with their historical experience and aspirations-
that it appears that the United States is, in fact, acting like a power of occupation
and domination, not persuasion and liberation. The danger is that if the United
States appears hostile or insensitive to the religious sentiments of the Iraqis, this
will invite resistance. It will be a real tragedy if the democratic experiment in Iraq
fails, not because the Iraqis do not believe in democracy, but because democracy is
seen as part of the ideological package of an aggressive or imperialistic occupying
force.
The United States government must successfully communicate to the Iraqi people
its desire to help them to practice their religion, if they so desire, more fully and
freely, not force upon them a situation that they will view as hostile, deprecating,
or insensitive towards their faith based commitments and beliefs. More concretely,
the United States government should not resist, and, in fact, should tolerate and
support, any efforts by the Iraqis to (1) define the religious identity of their country;
(2) preserve the sanctity and inviolability of Islamic law in certain areas of legal
practice that the Iraqis define as highly personal and intimate to their identity and
will as a people; and (3) define Islam in such a way that it is consistent with democ-
racy and human rights. For instance, if the Iraqis wish to proclaim a bill of indi-
vidual rights, in their constitutional document, and further wish to assert that this
bill of rights is derived from their Islamic commitments and understandings, the
United States should encourage such a move. The United States government ought
not be suspicious of any effort by the Iraqis to anchor their human rights and demo-
cratic commitments in novel or original interpretations of the Islamic tradition. It
should be noted that I am not advocating that the government of the United States
dictate any Islamic positions or establish any religious doctrine. The key here is that
whatever efforts are made on behalf of Islam must be driven by Iraqis themselves.
I am only addressing possible responses or reactions by our government to antici-
pated Iraqi initiatives on behalf of their religious identity and faith. If the Iraqis
are able to articulate their democratic and human rights choices in terms of
Islamically compelling positions, this will have the long-term advantage of trans-
forming the Iraqi experience into a normative precedent for all Muslim nations. If
Iraqis can successfully establish that it is their Islamic faith that inspired them to
commit to democracy and human rights, this is bound to have a far reaching impact
upon Muslim countries and nations around the globe, and United States would have
played the role of partnership and sponsorship in generating this pivotal develop-
ment in Muslim history.
The Japanese and German Post World War II Model and the Democratic Challenge
in Iraq
When evaluating the chances of democracy in Iraq, in many ways, the establish-
ment of capitalist democracies in Germany and Japan in the Post World War II pe-
riod becomes an encouraging precedent. One can rightly take pride in the trans-
formation of these two countries into democratic world powers under American
sponsorship. The precedent of both these countries does indicate that democracy can
be taught and transplanted, and that it does not necessarily have to emerge through
the natural socio-political processes within a particular country. There are, however,
several elements that counsel against assuming that whatever worked in Germany
and Japan will necessarily work in Iraq. The following are some of these elements
of difference and distinction:
1. Both countries before their democratic transformation were heavily industri-
alized countries with advanced economies and very high productivity. The
United States was able to inject capital into the war torn, but developed,
economies of both countries, and by doing so, the United States was able to
re-set both nations on their path of economic progress. Although highly des-
potic governments dominated both Germany and Japan, there were strong,
developed, and sophisticated entrepreneurial classes ready and set to share
.. mvurage such a move. The United Statas
uments in novel or original internetad m an nem


26
power once these despotic governments fell. In this regard, the situation in
İraq is markedly different. Iraq is not an industrialized or technologically ad-
vanced country. Furthermore, Saddam had severely weakened the entrepre-
neurial class and forced them into a symbiotic relationship with the state in
which they were more like economic leeches heavily dependent on a very cor-
rupt government for their survival. This is bound to make the distribution of
economic base and power in Iraq more challenging, and will require a much
heavier investment of venture capital in order to create a productive economic
system that can support a democracy.
2. Levels of literacy, education, and technological development were already very
high at the time of the American occupation of Japan and West Germany. De-
mocracy is much better secure and supported in societies enjoying a high level
of literacy and education. Literacy and education contribute to the creation
of sophisticated civil societies and are conducive to the development of civic
virtues, such as social and political responsibility, accountability, compromise,
and the sharing of power, which are importing for nourishing and guarding
a democracy. Literacy and education levels in Iraq, although higher than
some of the countries in the region, are low when compared to West German
and Japanese standards.
3. Historically, both Germany and Japan were colonizing, not colonized, nations.
Unlike Iraq, Germany and Japan did not have to deal with a collective histor-
ical memory that labors under the trauma of colonialism. This meant that
both countries were relatively more receptive to the influx of ideas and influ-
ences coming from the United States, specifically, and the West, more gen-
erally. Unlike Iraq, there was no national trauma induced by long periods of
occupation and domination, and a deeply ingrained sense of distrust and sus-
picion focused on the West.
4. Before the war, Germany and Japan followed a particular ideology that had
become utterly undermined and discredited after World War II. The ideolog-
ical defeat was complete and thorough, and the German's and Japanese were
ready for an ideological transformation. In the case of Iraq, even if one asserts
that the defeat of Ba'athism, the secular nationalist ideology of Saddam and
the ruling government of Syria, is complete, Ba'athism is not the issue. The
issue is the inclusion or exclusion of Islam in the constitutional document of
Iraq. Not only is Islam not a discredited ideology, it is not an ideology at all.
As a religious faith, it has its own set of demands on its followers. If the
United States forces Iraqis into a position in which they have to choose be-
tween the demands of their religion and demands of their constitution, the
constitutional document will not penetrate deeply into the socio-political fab-
ric of Iraq, and these competing demands are bound to generate tensions and
strong resistance.
5. Iraqis, as Arabs and Muslims, are firmly situated within a particular socio-
historical context. Iraq does not only influence the countries and people situ-
ated within its region, but is also, in turn, influenced by them. It is important
that the United States not contribute to a situation in which Iraq becomes,
by our decree, artificially alienated from its context. If Iraq's distinctive Mus-
lim and Arab character is artificially diluted, and its policies become a replica
of American preferences and policies, this will only confirm the status of Iraq
as a country occupied by an alien power. Put differently, it is important to
avoid giving the impression that Iraq is a mirror of the United States, and
no longer authentically Iraqi. Such an impression is bound to further
radicalize and polarize the region, and will in the long term, inevitably, back-
fire. The regional contexts of Germany and Japan were completely different.
Any possible German or Japanese opposition to American policies could not
gain inspiration or support from its regional surroundings. Obviously, the sit-
uation in Iraq is decisively different. It is important that in the process of
saving Iraq, the United States does not end up losing the region.
is decipport from ite opposition
Respecting the Iraqi Choice
These material differences, among many others, between Japan and Germany, on
the one hand, and Iraq, on the other, are mentioned here to emphasize the distinc-
tiveness and particularity of the challenge in Iraq. In my view, we cannot afford to
deal with Iraq as the vanquishing victors, and expect the Iraqis to mold themselves
after our image. It is important that the United States displays a considerable
amount of sensitivity and respect for the Iraqi history, civilization, and religion.
Therefore, it would be a serious mistake to deny Iraqis the opportunity to define


28
Vca.
It is critical that the CPA understand this backdrop and the en-
vironment in which it operates. The initial objective of moving in
quickly with civilian and humanitarian assistance to effect an im-
mediate improvement in the day-to-day living conditions was un-
questionably the correct policy. Unfortunately, and without regard
to root causes, in the areas of security, lack of electricity, tele-
phones, and other basic services, this policy has not been fully
achieved.
Because of this backdrop, there is very little room for delays and
mistakes, which the Iraqi people perceive in the context of a con-
tinuum of past policies. In terms of applying the ar
te re-
sources to the task, I'd like to describe this challenge by way of a
specific example taken from the front page of the Washington Post
on May 21, 2003, in an article entitled, “Ad-Libbing Iraq's Infra-
structure.”
One of the examples of this ad-libbing was the case of the courts
in the southern city of Najaf. A recent law school student, an Army
reservist from Wisconsin, without deference to the State of Wis-
consin, with 1 year of training in Arabic, was tasked with reestab-
lishing the courts in the city. One of the first actions that was
taken was to have all of the lawyers vote on the judges, whether
they would keep their positions. For perspective, if this was done
in L.A. Superior Court, I can guarantee you that many of the law-
yers would not be voting for the most qualified or most impartial
judges.
This is not a knock on the service person. In fact, she made sig-
nificant advances in involving women jurists, to her credit. She is
simply executing her orders to the best of her ability. This is a cri-
tique of the policy, however, that fails to understand and appre-
ciate the needs and apply the appropriate resources to the task.
This is not an isolated incident. In early May, the Department
of Justice sent a judicial assessment team to Iraq. Not one of the
roughly 11 members of this team were Iraqi legal professionals, or
even native Iraqi Arabic speakers, despite the fact that the DOJ
conducted a 2-week training program on international humani-
tarian law just a few weeks prior to 25 to 30 prominent Iraqi ju-
rists.
Today, you saw in the Washington Post, I'm sure, the article
about the military versus the civilian reconstruction and the prob-
lems that the military was having in rising to the occasion, and
this is not a plug for the Washington Post, by the way, but if I were
a jurist inside Iraq witnessing these events, I would think to myself
that the CPA and the U.S. are not taking this task seriously, and
this is not for lack of expertise.
The U.S. has access to, particularly in the State Department and
the Future of Iraq project, many, many experts, and unfortunately
the rifts between the various departments within the U.S. Govern-
ment have stymied these efforts.
The third challenge, understanding Iraqi society and
enfranchising Iraqis, part of the problem with assessing the appro-
e resources is a fundamental lack of understanding of Iraqi so-
ciety, its history, and its people. Many assumptions are made based
on experiences of other countries, such as Afghanistan, post-World
War II Germany, and Japan.


33
Having said that, they will always continue the sentence and
say, “and we need more.” Iraqis had and still have high expecta-
tions from America, and some of these expectations may be too
much. There are expectations that there is a Marshall Plan going
to be in Iraq, and the impact of the plan will be seen in a couple
of months' period, and that is obviously, some of them are not real-
istic. What we need here is to address these expectations and do
something about them.
Economically, although I do have to acknowledge Ambassador
Bremer's accomplishments in terms of reinstating the salaries, in-
cluding to former military personnel, that has a huge economic im-
pact on the Iraqis. However, small- and middle- and medium-sized
businesses have not been operating for 4 months now, and they do
have a huge impact on those who are dependent on daily wages.
The economy is switching from local production to export depend-
ence, and that is impacting the long-term economic sustainability
of Iraq.
A lot of people are complaining that the American and coalition
forces started by talking about democracy rather than talking
about economic reconstruction. I'll summarize what one man told
me in a small alley in Najaf, a very conservative province in south-
ern Iraq, who said, we need food and security before democracy.
When you save someone from death, his first wish is not a car, but
basic needs to regain his energy. Americans, God bless them, are
more concerned with democracy than they are with addressing our
basic needs.
He continues and says, we need economic stability as a pre-
requisite for democracy. We need to be able to breathe so we can
talk about how we can build our democratic process. He wasn't de-
nying the importance of democracy, as much as saying, I need a
break now.
There is a huge impact on women in post-war Iraq. The security
situation, which continues to be very chaotic, to say the least, is
having particular impact on women, who are being targeted for
kidnapping. Rumors in Iraq, and confirmed by actually an article
in The Economist, there's a market now where women are being
sold and trafficked in Baghdad itself. This is impeding the women's
movement outside the house, and this is critical, especially when
we have such a high percentage of single heads of households after
20 years of wars.
Political participation for women is very limited. While a lot of
the local political parties, as well as those from exile, have very
few, if any, women's representation in their parties, when they ad-
dress this issue they don't seem to have an ideological opposition
to it as much as, this didn't occur to them.
A lot of Iraqi women, though, are very adamant about their par-
ticipation in the political and reconstruction process. A 40-year-old
woman, as one of the middle-class women who wears the tradi-
tional head scarves, was telling me, I want Iraqi women to be part
of every process of building the country, in the army, in sport, in
every single sector. Women need to have 50 percent representation
in the country. I wish this could happen. We deserve that, and we
have the credibility to do that as well as men.


34
We have to incorporate women's participation in the constitu-
tional discussion and the political discussion as well as in the eco-
nomic reconstruction in Iraq, without which we will not have sus-
tainable economic development or political development in Iraq.
As to political parties, there is a sense—well, I'll summarize
what one man told me. He said, “before we had one Saddam, and
now we have many, many Saddams who use power in similar ways
of Saddam Hussein.” A lot of the political parties who
exile are known to have, or are perceived to have a monopoly of
discussions and dialog with the CPA and with coalition forces.
There is no sense of transparency. There is no sense of people
knowing even what is happening, and the lack of information, I
would say, is at the core of the problem. People need to know what
is happening, and there is no medium of communication with the
average person in Iraq, and this is again a lot of the complaints.
I summarize again what one person told me. He said, we need to
know what is going on, we need a public relations campaign that
can speak to the concerns of the average Iraqi.
Another person said the same thing. We need to know what is
going on. We don't want to see soldiers killing two people every
day, or American soldiers being killed for that matter. America
needs to focus its communication to the average Iraqi, the real
Iraqi, by helping them resume their daily work and daily lives to
a normal stage. Real people need to get a sense that America is
communicating with them and addressing their concerns. If you
lose the average person, you will lose peace in Iraq.
This is what an Iraqi just told me, actually a businessman, 2
days ago. He said we are at the risk at this point of not only losing
the average person in Iraq, we are at the risk of losing the elite
of Iraq. When everyone's business is being impacted, when the
economy is being impacted, and when there is no sense of commu-
nication and transparency of what is happening, we are at the risk
of losing these people, the Iraqis, and when we lose the Iraqis, we
will lose peace in Iraq.
There is a strong sense by the Iraqis themselves, communicate,
communicate, communicate to us. There are only 2 hours of TV
over there. This is not enough. They need to hear from the coalition
forces what is going on. A PŘ campaign would be a critical one.
We also need to make sure that we have a transparent process.
We need to include the expertise of Iraqis internally. I completely
agree with my colleagues in here. Those of us who are in exile can
only be advisors. Those Iraqis who are in Iraqi are the only legiti-
mate people to run the country. They have suffered, and they need
to have a say in what's going on.
Senator CORNYN. Ms. Salbi, let me ask you please, if you would,
wind up your opening statement so we can get some questions. I
o say that we do have a very large Medicare bill making
its way through the Senate, so we will have to stop for some votes
and come back in a little bit, but please, if you will conclude, and
then we will go to questions until it's necessary for us to go.
Ms. SALBI. The last thing is, we need to do an awe and shock
campaign in economic development in Iraq. This is the only way we
can win peace and security not only in Iraq, but throughout the
whole Middle East, and women have to be at the core of that.


35
[The prepared statement of Ms. Salbi follows:]
organizatithe new constie met and whendations the
and are thwhile Iraqis thout exception
PREPARED STATEMENT OF ZAINAB SALBI
Thank you for the opportunity to testify before the Congress at such a critical mo-
ment with respect to the current situation in Iraq and our attempts to build a last-
ing peace in the country. My remarks reflect more than 10 years of work in post
conflict societies including Bosnia and Herzegovina, Kosova, Afghanistan and else-
where, with a particular focus on women. In the case of Iraq, my remarks are in-
formed by my own national origin, as I was born and raised in Iraq, and by two
fact finding trips I have recently taken to Iraq on behalf of Women for Women Inter-
national-one trip took place in January of this year to get a sense of the conditions
and attitudes in pre-war Iraq. A more recent trip took place in May of this year
as I prepared an assessment report on the current situation in Iraq as we work to
open an office to help the women of Iraq through Women for Women International.
In both trips, I interviewed women and men from different socio-economic back-
grounds, ethnic groups and religious tendencies in both central and southern Iraq.
Since then, I have maintained almost daily contacts with Iraqis, primarily in Bagh-
dad. My ultimate goal for the report that follows is to convey an accurate image of
what is going on in the hearts and minds of Iraqis, and particularly women. Only
by having a clear understanding of what the actual conditions on the ground are
can we work on our common goal of building a lasting peace, economic prosperity
and a sustainable democracy in Iraq.
I will conclude by making recommendations that address the concerns of the
Iraqis with whom I have met and who must be the new constituency as we move
forward--the new constituency for American and international non-governmental
organizations, international organizations such as the United Nations, and the Coa-
lition Provisional Authority.
Regardless of how Iraqis felt about the war, one can safely argue that the vast
majority of Iraqis welcomed the opportunity to get rid of Saddam Hussein's regime
and are thankful for the Coalition's role and America's leadership in freeing Iraq.
However, while Iraqis may have different visions for the future of Iraq, everyone
with whom I spoke, without exception, is surprised at what is perceived to be the
lack of any organization or preparation for post-war Iraq. This was most evidenced
by the chaos and anarchy that spread across Iraq in the days and weeks after the
war, and in the continuing inability of Coalition forces to fully restore basic services
or provide physical security for the overwhelming majority of Iraqis.
The looting and burning of ministries, universities and other public properties, the
limited electricity, lack of phone systems, extensive delay in resuming food delivery,
the mass possession of guns and machine guns-among even children-all are con-
tributing to a high level of frustration among the public as their daily lives and
practices have been stalled without a clear idea about the future. A driver is vulner-
able at any moment to a gunman forcing him or her out of the car. People are wit-
nessing killings in public streets and in the middle of the day. Women are afraid
to leave their houses for fear of rape and kidnapping. Mothers are afraid to let their
kids walk to school on their own.
Impact on the Economy
Ambassador Paul Bremer's recent policy decree reinstating the distribution of sal-
aries, including a great proportion of the former military's, is warmly welcomed by
many Iraqis. Such steps are helpful to calm the immediate economic needs by those
who were employed by the former government. The question now needs to extend
to the private sector, including micro-, small- and medium-size enterprises. Such
businesses have not been able to operate for more than 4 months now due to the
lack of electricity and security. Small- and micro-businesses have been hardest hit,
along with their employees who represent the most marginalized sectors of the pop-
ulation including women and single heads of households and others who are 100%
dependent on these enterprises for their daily wages. Medium-size business losses
are also impacting the business elite whose public support for Coalition forces is de-
creasing daily as their economic well being is further threatened.
The economy in general is veering from reliance on local production, particularly
in areas related to food production, to an economy dependent more on processed and
imported food. Addressing the revitalization of the local economy and local produc-
tion is of the utmost importance in creating long term economic sustainability in
Iraq. Lastly, most Iraqis, especially those who are poor and dependent on aid ra-
tions, constantly emphasized to me the need for economic security. A man who lives
in a poor and old neighborhood of the Al Najef province, reflected to me on the cur-
rent situation by saying: “We need food and security before democracy. When you
Lastly, my emphaporhood oeed foo


36
save someone from death, his first wish is not a car but basic needs to regain his
energy. The Americans, God bless them, are more concerned with democracy then
they are addressing our basic needs.” He continued, “We are a hungry population.
Our need for food is more important than democracy at this point in our lives. That
does not mean we don't want democracy. Rather, we need economic liberty as a pre-
requisite for democracy.”
Impact on Women
Iraqi women are falling prey to the chaos and anarchy in Iraq. Women and girls
are now targeted for kidnapping, with some women kidnapped from their own
homes. Rumor, confirmed by coverage in The Economist, has it that there is now
a market to sell women and girls in Baghdad. Women single heads of households
are particularly vulnerable as movement outside of the home is becoming a risk for
women because of the lack of security in the streets.
Politically, women's participation in discussions related to the national political
agenda has been limited at best. Most local political parties do not actively encour-
age womens' participation. When this issue is addressed to local politicians, there
seems to be no clear political agenda to exclude women as much as a lack of atten-
tion for the importance of women's participation in the political process.
Iraqi women, on the other hand, have been adamant about the importance of their
political participation in the reconstruction of Iraq. Regardless of their socio-
economic class, ethnic background, or religious or secular tendencies, all Iraqi
women I met exhibited strong opinions on what is going on in today's Iraq and the
need to incorporate them in the political process. Isma, a 40-year-old, woman who
wears the traditional headscarf expressed her views on women to me by insisting
that “I want Iraqi women to be part of every process of rebuilding the country ...
in the army, in sport, in every single sector. Women need to have 50% representa-
tion in the country. I wish this could happen. We deserve that and we have the
credibility to do that as well.”
Addressing gender issues in the process of policy making, from the delivery of
services to the establishment of a transitional governing body, is critical at this
stage. Discussions related to promoting women's participation should not, however,
be limited to one sector or channeled through one ministry. Rather, gender issues
must be at the core of all reconstruction plans in Iraq. That includes but is not lim-
ited to strategies related to food distribution, police retraining, women's membership
in political parties, and women's security in the public sphere. Otherwise, women
will once again be marginalized in both the short and long term in Iraqi society.
Women are also at risk from religious extremists. Some women who work with the
UN have been threatened with death if they don't wear the traditional headscarf
or quit working with “foreigners.”
Political Parties
Local political parties, especially those who were based in exile, are showing no
concrete efforts to address the concerns of the average citizen. “We have plenty of
political parties but we don't have rule of law and we don't have work. So what is
the use?” commented Ahmed who lives in Sadr City, a poor neighborhood in Bagh-
dad.
There is a growing sense of a new political monopoly with economic overtones that
is controlled by some of the parties that were based in exile and came in with the
coalition forces and even those who were based in Iraqi Kurdistan. “Before we had
one Saddam but now we have many mini Saddams who use power in similar ways
as Saddam Hussein did,” commented Ali, a businessman who describes himself as
peace loving and a frustrated Iraqi. Now Iraqis feel that they must have an inside
connection to those parties in order to gain access to information or services.
Most of these political parties, as well as the Coalition Provisional Authority, risk
losing and alienating the average citizen by their lack of communication, trans-
parency and clear political strategy. In commenting on this issue, Nashwan, a phar-
macist who works in a public clinic in a poor neighborhood of Baghdad, said, “We
want a leader with ethics, not a Ph.D.” The Ph.D. is not the question here as much
as a perceived lack of ethical and viable leadership from many of the political par-
ties.
Lack of Information
Despite serious progress in addressing particular frustrations among Iraqis, in-
cluding reinstating the distribution of salaries and food deliveries among others,
there is a growing sense of anxiety regarding the future of Iraq. “We need to know
what is going on. We need a public relations campaign that can speak to the con-
cerns of the average Iraqi,” comments Ahmed, a local Iraqi businessman who has
not been able to run his business for four months now due to the lack of electricity.


37
humors an imperemistoommunicate the poor can be abilite process. sopvicemo spre
ansitional Iradilation of the eleppening. Tell us why Very impor
The lack of information regarding not only the reinstallation of basic services but
also the future of Iraq is creating a gap that is being filled by former Ba'athist offi-
cials on the one hand and religious extremists on the other. Former Ba'athist offi-
cials are taking advantage of the lack of information and services by spreading ru-
mors that America doesn't care about Iraqis and the lack of services are intentional
to keep Iraqis from contributing to the reformation process. There is a sense that
former Ba'athist officials are regaining their ability to mobilize the public and
spread anti-American sentiments. This can be seen in many ways including com-
ments made by at least some in the police force about the greatness of the former
regime in their daily communications with the public.
Religious extremists, on the other hand, are claiming that the lack of services is
due to an imperial/Zionist conspiracy designed to destroy Iraq. The danger of these
rumors is that they are speaking to the average Iraqi, especially male youth who
have military training, are now unemployed, and are feeling a great level of frustra-
tion at the lack of stability in the country.
There are many ways to combat these rumors that are impacting the peace proc-
ess in Iraq. Iraqis want to know what is happening in their country. A strong and
consistent public relations campaign can keep Iraqis informed of future plans and
engage them in the rebuilding process. “Iraqi public opinion is very very important.
... Give us timelines so we know what is happening. Tell us what is the expected
date for the complete reinstallation of the electricity and phone systems, when will
there be a transitional Iraqi government, and how long the troops will stay here.
We need information so at least we are not manipulated and frustrated by rumors,"
comments Dafir, a former government employee.
Ahmed, a businessman, reiterates the hunger for information by saying, “We need
to know what is going on. We don't want to see soldiers killing two people every
day or American soldiers being killed either. America needs to focus its communica-
tion to the average Iraqi ... the real Iraqi ... by helping them resume their daily
work and daily life to a normal stage. Real people need to get a sense that America
is communicating with them and addressing their concerns. If you lose the average
person, you will lose the peace.”
Conclusion
Iraqis are not only dealing with today's frustration, but also with the trauma
caused by the oppression they have faced for 35 years during Ba'athist rule and par-
ticularly Saddam Hussein's regime. There is an outpouring of emotions in Iraq now
which veer between frustration at the current chaos on the one hand and con-
fronting the trauma and misery of the past for the first time in a public way—even
within families-on the other. These emotions can be summarized by what one
woman told me, as she described her life, “Every minute that passes, I die over and
over again. I have already suffered a lot. I can't endure more suffering again.” Iraqis
are grateful to America for liberating them from Saddam Hussein, frustrated at
America for not dealing with running the country the day after Saddam Hussein's
collapse, and are now angry, tired, grateful, happy, and sad all at the same time.
In other countries transitioning from a brutal period of civil strife, totalitarianism,
or apartheid, truth and reconciliation commissions have gone a long way in ac-
knowledging the pain and suffering caused to so many and allowed blame for crimes
to be placed squarely on individuals and not ethnic groups, classes, or sects. There
may be an opportunity here to not only allow Iraqis to heal many wounds but un-
derstand recent history, including the role played by organized violence against
women.
One can also say that Iraqis have tremendous expectations from America, some
that may be unrealistic in the time frame Iraqis are expecting. Many expect a Mar-
shall Plan which will have an immediate impact within a few short months. Many
are shocked at what is perceived to be limited preparation on how to manage a free
Iraq. One Iraqi complained to me, questioning “How could the two most powerful
countries in the world (the United States and the United Kingdom—who were able
to win the war in one month) not have been prepared to deal with the day after
the fall of Saddam Hussein's regime?”. Others are now talking about starting think
tanks to give advice to the Coalition Provisional Authority on how to run the coun-
try.
The frustrations that Iraqis are feeling today have many roots. Some stem from
the perception that Iraqis are not being consulted in the process of policy formation
on how to govern a free Iraq. Others feel that the lack of communication by coalition
forces has left them vulnerable to rumors that only serve to increase their sense of
anxiety about the future. And others feel that formerly exiled political parties are
monopolizing all communication with the Coalition forces, reminding Iraqis of the
former political structure known for its lack of transparency and corruption.
to prove them vulnerable others feel that lition forces, and corrup


38
S
in Traa. First, and most importanı, uvaren
..
There are many ways in which Coalition forces under America's leadership can
address frustrations at a grassroots level, building upon Amb. Bremer's accomplish-
ments since his arrival in Iraq. First, and most important, there is a need for a mas-
sive public relations and communication campaign that goes beyond the two hours
of Iraqi public TV that is running at the moment. Average Iraqis need to have their
current challenges acknowledged, not whitewashed, and know that there is a public
plan for dealing with these challenges. This will be the best way to directly combat
the rumors being spread by forces opposed to the Coalition's role.
There is also a need to address the issue of expectations. Providing a timeline re-
garding the reinstallation of basic services, transitional government, and even eco-
nomic plans can help in calming the situation down. There is a strong need to reach
out to the hearts and minds of the average Iraqi by addressing real and immediate
concerns he/she are facing and their anxiety about the future. Last but not least,
we can win the peace in the Middle East in general, by adopting a policy of "Shock
and Awe” for economic development in Iraq to match the overwhelming military su-
periority we brought to bear on the former regime. Such a policy will not only win
the hearts and minds of the average Iraqi, it can also build credibility and support
in neighboring countries and in the Middle East at large. I cannot conclude this tes-
timony without emphasizing the importance of incorporating women throughout all
governmental and non-governmental sectors and not limiting their participation to
a single ministry or a single sector. Women are core participants in not only making
peace but also in sustaining it.
Senator CORNYN. Thank you very much.
Senator FEINGOLD. Mr. Chairman, I just have a couple of unani-
mous consent-
Senator CORNYN. Sure. Senator Feingold.
Senator FEINGOLD. Mr. Chairman, Senator Kennedy asked that
his statement be included in the record.
Senator CORNYN. Without objection.
e
ndinimo maqi, it can also build credibilitu
iwe face in Italihat the war our troops are in the warcie.
chalhe major problhe daily attackier on May half the rate asad to war
Bush landed on the killed at app had about taking th of mass destru
STATEMENT SUBMITTED BY SENATOR EDWARD KENNEDY
Mr. Chairman, I commend you for arranging this joint hearing to consider the
challenges we face in Iraq.
The major problem is that the war is supposed to be over, but it obviously isn't
completely over. The daily attacks on our troops are very disturbing. Since President
Bush landed on the aircraft carrier on May 1 and said “the war is over,” our troops
have continued to be killed at approximately half the rate as before.
The doubts that so many of us had about taking this road to war has only been
strengthened by the failure so far to find the weapons of mass destruction that were
the administration's principal justification for the war. And we are especially con-
cerned by the suggestions that CIA intelligence reports were intentionally distorted
by the White House or the Pentagon and turned into weapons of mass deceit.
Throughout this difficult period, all of us in Congress are united in support of the
men and women of our Armed Forces, and we are committed to doing all we can
to support them.
As the soldiers themselves have said, however, they aren't trained as police offi-
cers. We need to solve that problem as soon as possible. From past experience in
Kosovo, Bosnia, and Afghanistan, we knew going into Iraq that we had to be pre-
pared for the shift from war-fighting to peace-keeping to reconstruction and nation-
building.
We rushed into this war, but it's obvious that winning the peace is much more
challenging than the administration was prepared for. The “liberator” label has
faded, and the “occupier” label is beginning to stick. The last thing we need is to
alienate the Iraqi people after all we did to free them. The consequences would be
ominous for the ongoing war against terrorism.
It's clear that we should do more to involve the United Nations and our allies in
the reconstruction effort and in working with the Iraqi people to develop a new gov-
ernment. If we go it alone in creating a new government, the Iraqi people and na-
tions around the world will see it as an American puppet government instead of a
legitimate Iraqi government.
The bright spot is that the United Nations is carrying out its vital and historic
role in meeting the humanitarian needs of the Iraqi people. The UN should be in-
volved as well in the establishment of government institutions and civilian adminis-
tration functions.


39
Above all, many of us are concerned about the ominous decline in respect for the
United States in the eyes of so many other peoples and so many other nations
caused, in large part, by our "shoot first and ask questions later” foreign policy. The
breeding grounds of terrorism around the world are the only beneficiary of that de-
cline. Unless we start getting it right in Iraq, we may well pay a very heavy cost
for our failures.
So I look forward to this hearing and to working with our colleagues to do all we
can to set a wiser course.
Senator FEINGOLD. And I ask unanimous consent that two docu-
ments be entered into the record as well: a report entitled, “Transi-
tional Justice in Post-Saddam Iraq: The Road to Reestablishing
Rule of Law and Restoring Civil Society,” by the State Department
Working Group on Transitional Justice and the Iraqi Jurists' Asso-
ciation; and a second document, "Iraq: Post-Conflict Justice, a Pro-
posed Plan,” by Professor M. Cherif Bassiouni, professor of law at
the DePaul University College of Law.
Senator CORNYN. Without objection, those will be included. 1
On May 22, the United Nations Security Council unanimously
adopted a resolution, Number 1483, calling for the establishment
of, “a representative government based on the rule of law that af-
fords equal rights and justice to all Iraqi citizens without regard
to ethnicity, religion, or gender.”
It's been amazing to me really to see the number of people who
have written and spoken expressing the view that there is some-
how something inconsistent or incompatible about a nation where
95 percent of the people are Islamic, and democracy. I wonder if,
Dr. Pollack, you could please start and just explain your view on
that subject, whether you agree with that, or, as I suspect, you may
disagree with that. Then what?
Dr. POLLACK. Thank you, Mr. Chairman. I will start. I think oth-
ers on the panel would be equally if not more competent to deal
with that question.
Let me start by saying first that there is nothing about any reli-
gion, as far as I am concerned, that has prohibition or injunction
that would make it impossible to have a democratic form of govern-
ment.
Too often when we start talking about democracy we allow our
own individual associations, our own cultural associations with de-
mocracy to creep into that thought. I think when many Americans
think about democracy, we have in mind American democracy. As
someone who as traveled to many democratic countries over the
e of my career, I'm always struck by how democracy looks
very different in very different parts of the world. -
As I mentioned in my opening remarks, Japan and Italy, to take
only two examples, are also democracies, but Italian democracy and
Japanese democracy are very different from our own. In fact, deal-
ing with both of those systems, I sometimes wonder which is actu-
ally the democratic system. The fact of the matter is that democ-
racy is rule by the people. That is its essence. If you go back to the
Greek philosophers, if you go back to ancient Athens, that is the
principle ingredient.
1 The report “Transitional Justice in Post-Saddam Iraq: The Road to Reestablishing Rule of
Law and Restoring Civil Society” appears in the appendix to this hearing; “Iraq: Post-Conflict
Justice, a Proposed Plan,” by Professor M. Cherif Bassiouni, can be found on the internet at
http://www.law.depaul.edu/institutes centers/ihrli/pdf/iraq.pdf


40
When we talk about democracy in the modern sense, and when
we talk about constitutions that are based on democracy, we're
talking about some very basic principles. We're talking about a gov-
nment that is reflective of the will of its people. We're talking
about a government that is transparent, so that the people can
monitor the actions of government officials to ensure that their ac-
tions are consistent with the will of the people, and we're talking
t a system that is accountable in the sense that the officials
themselves are ultimately accountable to the people for the actions
that they take.
hose are really the heart of the democratic system and, in fact,
the idea of the rule of law is embedded within that larger concept,
because the idea of the rule of law is that the government should
be of the people, it should not be oppressing any of the people, op-
pressing that which is ultimately the source of its legitimacy and
its authority and power. There is nothing in Islam, as I read it and
as I've read the work of my colleagues and of other colleagues, to
indicate that there is anything in Islam that is incompatible with
any of these basic precepts.
Ăn Islamic democracy, an Arab democracy may look very dif-
ferent from ours, it may look very different from Japan's. It may
look very different from Italy's, but there is nothing about the
Koran, there is nothing about the Hadiths, there is nothing about
Islam as it is practiced anywhere in the world that should make
it incompatible with those basic fundamental premises.
Senator CORNYN. Thank you very much.
Professor Haykel and Dr. El Fadl, you both alluded to your belief
that there should be an acknowledgement of Islam in the founding
documents, the constitution of Iraq.
I found that to be interesting, in light of the fact that, as we may
all recall, even in our Declaration of Independence there is an allu-
sion to the Creator, and as my crack staff reminds me, even in the
U.S. Constitution there is a reference to Our Lord, yet we do not
seem to have too tough a problem separating our religious beliefs
and practices from the secular work of government, but can you ex-
pand a little bit more on your belief of how the Iraqi people can
address this notion of self-government and democracy and at the
same time identify themselves as an Islamic nation, but not risk
theocracy?
Professor Haykel, perhaps you'd like to start?
Dr. HAYKEL. You know, the question that you asked just earlier,
Mr. Chairman, about the compatibility of Islamic democracy was
asked at an earlier period in our own Nation's history about Čatho-
lics, with their allegiance to the Pope, and yet being Americans.
The thing to bear in mind about Islam, as in all religions, is that
it's not a monolith. There are many different interpretations. There
are many different ways of living and practicing Islam, and cer-
tainly there are strains within Islam that are theocratic and that
would be anti-democratic, and we see them in bin Laden, we see
them in certain strains of the Iranian clergy, but that's not to say
that Islam cannot be lived in a democratic fashion, and we have
good examples of that. Turkey is a perfect example of just that.
Even if we have allusion to religion and to Islam, Iraq is particu-
larly a good example, I think, of a place where democracy can take


41
root in a very strong way, because you have different types of Mus-
lims in the country, as a result of which they would have to make
accommodations to each other's differences and be cognizant of the
fact that Islam is not a monolith and cannot impose their version
on the others.
Senator CORNYN. Dr. El Fadl, do you agree or disagree?
Dr. EL FADL. No, I largely agree. I think the important distinc-
tion here is that I am not in a position to call upon the Iraqi people
to mention Islam in the constitution. Rather, the distinction I make
is that if the Iraqi people want to self-identify as Muslims, or make
some mention of Islam in their foundational document, the U.S.
Government should not oppose that and, more importantly, should
not be threatened by that.
There are two things to keep in mind. One is that it is absolutely
true that people, for all types of mischievous purposes and objec-
tives, are trying to make it look as if what is going on now is a
return of the colonial era, the era of imperialism, and that this is
some type of war against Islam. I think it is essential that we do
not make it easy for those people to win their dogmatic and propa-
gandist war, and opposing all form of religious mention, or any
form of Islamic self-identification would serve them well.
Second is that Bernard Haykel is absolutely right, there are
many forms of Islam, some forms that are fundamentally incon-
sistent with democracy, but the core is as long as there is a com-
mitment to individual rights, to the rights of an individual as an
individual, and as long as the affirmation of an Islamic identity
and the affirmation of Islamic preferences—we'd rather do X rather
than Y because we believe one is closer to the Koran-as long as
it's done in the context of honoring the basic truth of individual
rights, it is reconcilable with democracy.
Senator CORNYN. Let me ask, Professor Haykel, I believe it was
you that mentioned the concern about during the de-
Ba'athification process that there may be something in excess of
200,000 people in Iraq who, if forbidden to hold public jobs, would
basically have very little option other than to create mischief for
any nascent democracy. What do you propose, or what do you think
should be our approach?
Dr. HAYKEL. Mr. Chairman, you know, government employment
East, whether it's in Iraq or elsewhere, is really-
the governments are the main employers in the Middle East.
People look to government not in the way we do here, nec-
essarily, because it is a major source of jobs, and in the Ba'ath pe-
riod you have people who are committed Ba'athists who joined the
party out of commitment, but most, or many did not. They joined
it because that was how you got a job, and to penalize these people
in some categorical fashion would mean penalizing not just them,
but penalizing many, many members of their families who are de-
pendent on them and on their connections with the government for
jobs.
My fear really is that we would exclude 20 percent of the popu-
lation from its source of revenue and livelihood, and that would
cause tremendous social dislocation and political problems for us in
the country.
Senator CORNYN. My time has expired.


Senator Chafee.
Senator CHAFEE. Thank you, Senator Cornyn. I'll follow-up on
your questions about the possibility of a theocracy, and Professor
Haykel, you doubted that that could happen. How do you base your
confidence that a theocracy could not rise even if we allowed Islam
into the constitution? Maybe just expand on that premise that you
stated in your opening statement.
Dr. HAYKEL. It is alleged that 60 percent of the Iraqi population
are Shiites. Now, the dominant theocratic model in Iran for the
Shiites is that advocated by the late Imam Khomeini. Now, most
Shiites, certainly in Iraq but also, it seems, in Iran don't support
that constitutional model, the constitutional model he advocated.
My assertion is based on knowledge that the Shiites of Iraq are
very different from those in Iran, that the Iranian model is not nec-
essarily applicable and is not accepted by a great number of the
clerics in Iraq, who tend to be more quietist in their political posi-
tion.
Senator CHAFEE. And Ms. Salbi, you've just returned from Iraq,
and I see you nodding your head. Do you agree with that, that-
it was a couple of weeks ago I believe there were some clerics who
I believe issued a declaration of Jihad against the occupying forces.
Is this taking hold with the population?
Ms. SALBI. First, I have to reiterate what Professor Haykel said.
The premise of Shiism is the separation of religion from the state.
Khomeini was the only person in Shiite history who combined the
state with religion. Iraq Shias so very much believe in the separa-
tion of the State and religion.
The fear is not from the learned unama, because they're
learned—I mean, they descended over 15 to 20 years on religious
jurisprudence and all of that. The fear is from the younger ones,
young men in their twenties who have religious tendencies, like
Moktar el Sadr, who is approaching other men who are released
army, former Republican Guard, and then mobilizing
their anger and frustration at the current economic situation for re-
ligious reasons. That's the fear.
That's still a minority group. They're still approaching the youth.
They're not approaching the middle-aged people, or the learned
people, but that could be a gap that could be widened if we do not
address the immediate economic needs right now, so that's one
thing that you can see the beginning of it.
In general, when you talk to all the Iraqis, whether in the south
or in the center, they do want a secular government. They do not
say we want a secular government per se, but they say, we want
a civil government that respects Islam as a religion, we want civil
law that regulates the country, and that is people from conserv-
ative to secular people, and they're all saying that. It's a very emo-
tional feeling that we need to respect Islam, and a very emotional
feeling that we need a civil law to regulate our country.
Senator CHAFEE. With this catching on with the younger people,
is it directed at Americans, or is it the coalition, British-would it
be better if the United Nations were more involved in this process
and remove the prospect that it's an American issue here?
Ms. SALBI. I have to say, there is no public sentiment that sym-
pathizes with the U.N. in Iraq. The U.N. was accused of being part


43
of the previous regime's corruption scandals and scams, and so the
U.N. is not necessarily viewed in the best way.
These religious sentiments, having said that, they are directing
that anger at the Americans. I wrote in my report, a lot of the reli-
gious sentiments is trying to approach, again to deal with that eco-
nomic urgent gap by saying, this is an American-Zionist conspiracy
aimed at destroying Iraq, while the Ba'athists are also trying to fill
that gap by saying America is intending to keep the Iraqis frus-
trated, to keep them away from the political process.
So we are vulnerable now to these groups, again, taking advan-
tage of these gaps and in my opinion, my assessment by talking to
people is that we can actually win that easy if we just address the
immediate and urgent needs by the Iraqis and stabilize the eco-
nomic and security conditions right now.
Senator CHAFEE. Thank you. You do have a prescription for suc-
cess, and that's relevant to a Marshall Plan-type of restoration of
the country.
Thank you, Mr. Chairman.
Senator CORNYN. Senator Feingold.
Senator FEINGOLD. Thank you, Mr. Chairman.
Dr. El Fadl, Professor Haykel, and Mr. Al-Sarraf, we've heard
testimony today about the strong legacy of legal thought and legal
institutions that existed before the Ba'ath Party took power in 1968
and then, of course, the damage done under Saddam's regime.
I'd like each of you to comment on whether that legacy survived
in any form, to what extent will the Iraqi people be able to look
back on their own legal traditions and effectively draw upon that
experience as they reconstruct their nation and its institutions.
Let's start with Dr. El Fadl again.
Dr. EL FADL. Well, I think it's important here to keep in mind
the complexity and nuance of law, because if you take, for instance,
the civil law code, which was derived from the French civil code,
and in fact borrowed extensively from the Egyptian work on the
French civil code and, in the view of some, even improved upon
from the Egyptian version, you take the Iraqi civil code and the ju-
risprudence that formed around the civil code in Iraq, similarly if
you exclude the literal, the shameful displays committed by Sad-
dam in order to get attention and so on, if you take the criminal
law code, exclude all the Saddam exceptional laws and emergency
laws and special laws and just take the criminal code and the juris-
prudence formed around the criminal code, what you find is actu-
ally something that from a legal perspective is quite sophisticated,
belongs in the best of the tradition of the civil law system based
on the French legal system, something in which, for instance, in
the civil law field and in the criminal law field some of the works
of Egyptian jurists like Sanhouri, one of the most prominent jurists
who is dead now-he was cited extensively and worked with and
developed upon and so on—you actually find, a lot of commonality
between the technical jurisprudence of Iraq and the jurisprudence
of particularly countries like Egypt, to a lesser extent countries like
Kuwait.
Second is that you find a large degree of technical sophistication,
and in fact, in working with Iraqi lawyers, the complaint was con-
sistently that the Saddam regime ruined the practice of law, that


44
unlike their Egyptian counterparts, for instance, they could not say
that they follow X school of thought as to personal injuries because
they were always scared that Saddam was going to come in with
some exceptional law, some special regulation and so on.
The best way that I think the issue can be approached is to real-
ize that we have a substantial amount of very sophisticated juris-
prudence, that it is possible, in my opinion, to peel off the Saddam
special laws, special regulations, special this and that, and to work
from that, rather than reinvent the wheel, and try to create some
type of revolutionary law which is fraught with possibilities of fail-
ure.
Senator FEINGOLD. Thank you very much. Professor Haykel.
HAYKEL. I would like to reiterate and second what Professor
Abou El Fadl just said. As someone who actually has followed the
production, the legal, intellectual production from Iraqi universities
even through the Saddam period, the University in Baghdad, for
example, had a couple of legal journals, one from the university,
one from the ministry of justice, and they consistently had very
high quality legal thought and legal academic production.
With respect to the period before Saddam Hussein, I mean, there
are documents, legal documents that still exist and that can be
drawn upon, and also in the collective memory, I think, of Iraqis,
especially the period in the twenties, when there was a very vi-
brant Jewish community in Iraq, perhaps the most vibrant Jewish
community in the Arab world, that period again is something that
Iraqis remember as a time when Iraq really was the center of the
Arab world, and where you had pluralism and a great degree of tol-
erance.
I think that period can be revised very quickly, because you have
a very high technical cadre of people in Iraq who are middle class
but also very educated, I think for whom this period really is some-
thing they hark back to and wish to recreate today.
Senator FEINGOLD. Thank you. Mr. Al-Sarraf.
Mr. AL-SARRAF. Thank you. It's important to note how Saddam
subordinated the judiciary. The judiciary basically used to report to
an independent judicial authority. That judicial authority was then
placed under the Ministry of Justice and became part of the execu-
tive.
Then what Saddam did is, he created special courts in the Min-
istry of Information, the Ministry of the Interior under the security
forces, the military had their own courts, the police had their own
courts, so basically every court system reported to an executive who
had the final say.
The Ministry of Justice, however, dealt primarily with just civil
and criminal affairs and was left largely intact, except for when
Ba'ath Party members were involved, so what you have are individ-
uals that work in the Ministry of Justice, and I had the oppor-
tunity in the last few days to meet with the interim Minister of
Justice who arrived in New York a few days ago and is addressing
the United Nations, and it's individuals like him who understand
from the inside—he's been with the judiciary for 43 years, under-
stands it inside and out, and has an idea of how to reform, and it
requires a vetting process. It's a long-term process.


45
There's also a cadre of forcibly retired jurists, those who would
not go along with the Ba'ath Party rule, who also represent a con-
stituency or a resource within the country, so the first premise is
that it has to be rebuilt from the inside, and the second is that
there can be international assistance, but we have to be very care-
t who those international experts are, because there is sen-
sitivity inside the country about who they will work with.
Senator FEINGOLD. Thank you.
Dr. Pollack, you suggested that international involvement might
be helpful in giving legitimacy to the constitutional proce
do you see as the role of the United Nations and the international
community in drafting an Iraqi constitution? Would you suggest,
for example, that the United States ask the United Nations, or a
third country, to take over leadership of the constitutional process?
Dr. POLLACK. Thank you, Senator. No, I would not suggest that.
I think that the constitutional process must be led by Iraqis. That
said, I think that all of these international organizations, and I
think that all the members of the coalition, the increasingly ex-
panding coalition, have important roles to play within that.
First, the transitional authority itself will have a role in literally
setting up a constitutional commission of some sort. They will have
to take care of the administrative side of things. On that issue, as
on all matters, as far as I'm concerned, the more the United States
can work in conjunction with the United Nations, now that we
have Sergio de Mello as the new Special Representative of the Sec-
retary General, someone who's very skilled in these kind of oper-
ations, a good partner for Paul Bremer, I think that it is incumbent
upon us to work in conjunction with them to indicate that this is
not a U.S.-only operation.
Senator FEINGOLD. The thrust of my question was, wouldn't it
better, or arguable that we should turn over this responsibility of
helping, the leadership role, to another country, rather than doing
it ourselves?
Dr. POLLACK. Again, I would not suggest that we necessarily
turn it over to another country. I certainly think that we should
be involving as many countries as we possibly can. I think that the
United States at the end of the day has a responsibility to make
sure that Iraq is a stable, functional society when the international
occupation has ended. We're the ones who started this. We're the
ones who have got to make sure that it succeeds.
That said, I also don't think that the United States should nec-
essarily be directing the Iraqis to do this, that or the other thing.
I just think it ought to be a joint effort, not any one country.
Senator FEINGOLD. I'm going to take this to Ms. Salbi now, be-
cause I want to know her thoughts on the issue of international in-
volvement with regard to my question to Dr. Pollack, but also
ur experience in other post-conflict societies like Af-
ghanistan and Kosovo.
Ms. SALBI. Two things. One is, we need to acknowledge the high
level of frustration that has been built in Iraq for 35 years. What
the Iraqis are going through is that for the first time in their his-
tory, or in 35 years, they can talk about Saddam's oppression, so
a Truth and Reconciliation Committee would be something that
would be very helpful in just at least processing these frustrations


47
When you ask the police force if they are happy now Saddam is
out, some say no, they wish Saddam were back. A lot of former em-
ployees are returning, and they should return because they need
the jobs and we need to stabilize the economy, but we really need
to reeducate them and retrain them as to what the former regime
has done and what their role should be in the future.
Senator CHAFEE. Very good. Thank you.
Senator CORNYN. Thank you, Senator Chafee, and thanks to each
of you on the first panel. I'll just remind everybody that we're going
to leave the record open until July 2 in case any other member of
the joint subcommittees would like to submit any further ques-
ns, or if there any other documents that you'd like to offer in
support of your testimony in this record, we would invite you to do
so. Thank you very much.
Now I'd like to invite the members of the second panel to come
forward, a panel of distinguished constitutional legal experts; while
they take their seats I will introduce them.
First, we're happy to have Professor John Yoo here. Professor
Yoo served as Deputy Attorney General for the Office of Legal
Counsel at the U.S. Department of Justice from 2001 until just last
month. In that role, he served in the Bush administration as one
of its top legal advisors in the war on terrorism and the war on
Iraq. He's a nationally recognized expert in international law, U.S.
constitutional law, and national security and foreign relations law.
Professor Naoyuki Agawa is a recognized expert on both the Jap-
anese and the United States constitutions. He served as a professor
at the University of Virginia Law School, Georgetown Law School
and Keio University. He holds bar memberships in both the United
States and Japan, and has practiced law in both Washington, D.C.
and Tokyo.
Dr. Donald Kommers is a recognized expert on the German con-
stitution. He is both the Joseph and Elizabeth Robbie professor of
Political Studies at Notre Dame and a law professor at Notre Dame
Law School. He's authored 10 books and 67 articles primarily in
the area of American, German and comparative law and German
politics.
Our fifth panel member is Professor Dick Howard, who is the
White Burkett Miller Professor of Law and Public Affairs at the
University of Virginia Law School, where he and I first had an op-
portunity to meet. Professor Howard is an expert in constitutional
law and comparative constitutionalism. Numerous countries have
sought his counsel in the process of drafting their constitutions, in-
cluding Brazil, Hong Kong, the Philippines, Hungary, Czecho-
slovakia, Poland, Romania, Russia, Albania, South Africa, and
India, quite an impressive list.
I know we have Mr. Neil Kritz, who is director of the Rule of
Law program at the United States Institute of Peace. That pro-
gram focuses on advancing peace through the development of
democratic, legal, and governmental systems, precisely the topic we
have before us here today. He is the editor of a three-volume work
called “Transitional Justice: How Emerging Democracies Reckon
with Former Regimes,” and I imagine has quite a bit to offer on
the subject before us today.


I want to thank each one of you for being here, and your pa-
tience. Now we'd like to hear from each of you, if we might, and
if you would please keep your opening statement to 5 minutes,
then we'll proceed to questions.
Professor Yoo.
STATEMENT OF JOHN YOO, VISITING FELLOW, AMERICAN
ENTERPRISE INSTITUTE
Mr. Yoo. Thank you, Mr. Chairman, Chairman Chafee, thank
you for inviting me to appear, and I'd like to compliment you and
your committee on your leadership in holding hearings on this im-
portant topic, which I think will be central to guaranteeing the fu-
ture and long-term stability of Iraq.
I would also just like to make clear that the views expressed here
are my own, and not those of the American Enterprise Institute or
the University of California, Berkeley.
I think my point of view here is that of a lawyer, in that I can
tell you what you can do, but I can't tell you what you should do,
and in that capacity I'd like to point to three sources of law that
give the United States the authority, as the occupying power in
Iraq, to establish a constitution that guarantees basic, individual
human rights and that operates within a rule of law with demo-
cratic representative institutions.
The first is our own domestic constitution. Iraq is not the first
country that the United States has occupied, and the Supreme
Court in several cases has examined the question of occupation and
has stated quite clearly that occupation includes the power to
change laws and constitutions of the territory that is occupied be-
cause it is part of the war power.
We're still in a state where legally the state of armed conflict
continues to exist in Iraq and does not terminate until a peace
treaty has been signed, and as part of the effort to wage a success-
ful campaign that may include eliminating aspects of the local gov-
ernmental system that pose a threat, continue to pose a threat to
peace and stability and to the United States and the region.
• Here in Iraq, the second major source of authority comes from
the United Nations. There are two separate resolutions that bear
on the question of occupation. First is the resolution passed in
1991, Resolution 678, which originally authorized all member na-
tions to use all necessary means, quote-unquote, to remove Iraq
from Kuwait, to enforce other relevant resolutions, and to restore
international peace and security to the region.
One of those significant resolutions was to eliminate WMD in
Iraq. Another resolution is to prevent Iraq's regime from terror-
izing its own civilian population. That resolution, number 678, ulti-
mately was one of the sources of authority for the war in Iraq.
Also, by requiring that member nations restore international peace
and security, to the extent that the Iraqi constitution as it was, and
the Saddam Hussein regime encouraged or enabled a specific re-
gime to continue to pose a threat to that region, then obviously
Resolution 678 could be used also to eliminate the legal aspects of
that threat.
The second and more recent actions of the Security Council came,
as you mentioned in your opening statement, in Resolution 1483,


50
plement you and the committee for convening today's hearings on this important
subject, which will be critical to providing for Iraq's long-term stability and ensuring
that Iraq will become a law-abiding member of the international community. Rather
than discuss any specific element of a proposed Iraqi constitution, I appear before
you today to discuss the authority of the United States, under domestic and inter-
national law, to make fundamental changes to the constitutional law and govern-
ment institutions of Iraq. I conclude that United Nations Security Council resolu-
tions and the international law of occupation provide the United States with broad
discretion to establish a new Iraq constitution, one that guarantees fundamental
human rights protected by democratic institutions that limit government power.
I have studied these issues for much of my career. I recently left the Department
of Justice, where I served as Deputy Assistant Attorney General in the Office of
Legal Counsel (OLC). OLC advises the executive branch on all legal questions, in-
cluding those involving treaties and international law. I am currently a visiting fel-
low at the American Enterprise Institute, and a professor of law at the University
of California at Berkeley School of Law (Boalt Hall), where I have taught foreign
affairs law, international law, and constitutional law, since 1993. It was also my
great honor to have served as General Counsel of the Senate Judiciary Committee
under Chairman Hatch from 1995–96. I wish to make clear that the views expressed
here are my own, and do not represent those of the American Enterprise Institute
or the University of California.
I. DOMESTIC LAW AND OCCUPATION
Under our domestic law, occupation of a nation is merely the continuation of hos-
tilities, and thus the reconstruction of Iraq falls within the war powers of the fed-
eral government. Occupying foreign territory during the transition period between
an armed conflict and a declaration of peace, and establishing fundamental institu-
tional changes to the government of an enemy nation, may be essential to reaching
a successful conclusion to war. If allowed to remain in existence, the institutions of
an occupied nation may continue to pose a threat to the safety of U.S. troops or the
national security. Or the government institutions of the defeated enemy have been
so degraded or destroyed that they cannot provide security and basic services to the
local population. If left to suffer, a local population may become hostile to the
United States. To be fully successful, military operations in an occupied territory
may have to continue even as the immediate need for force has subsided.
In several previous armed conflicts, the United States has exercised its authority
to occupy and govern a foreign nation after a successful military campaign. The Su-
preme Court has clearly upheld this authority. In MacLeod v. United States, for ex-
ample, which arose during the U.S. military occupation of the Philippines during
the Spanish-American War, a unanimous Supreme Court explained that
[t]he right to ... occupy an enemy's country and temporarily provide for its
government has been recognized by previous action of the executive author-
ity, and sanctioned by frequent decisions of this court. The local govern-
ment being destroyed, the conqueror may set up its own authority, and
make rules and regulations for the conduct of temporary government, and
to that end may collect taxes and duties to support the military authority
and carry on operations incident to the occupation.1
The Court similarly stated with respect to the U.S. occupation of Puerto Rico that
[u]pon the occupation of the country by the military forces of the United
States, the authority of the Spanish Government was superseded ... The
government must be carried on, and there was no one left to administer its
functions but the military forces of the United States. ... The right of one
belligerent to occupy and govern the territory of the enemy while in its mili-
tary possession, is one of the incidents of war, and flows directly from the
right to conquer. We, therefore, do not look to the Constitution or political
institutions of the conqueror, for authority to establish a government for the
territory of the enemy in his possession, during its military occupation, nor
for the rules by which the powers of such government are regulated and
limited. Such authority and such rules are derived directly from the laws
of war, as established by the usage of the world, and confirmed by the
writings of publicists and decisions of courts—in fine, from the law of the
nations. 2
ned by recognizemy's com
1229 U.S. 416, 425 (1913).
2 Dooley, 182 Ú.S. at 230-31 (quoting 2 Halleck, International Law, 444).


52
ustalen
t nySuch a development would not rule.
breach of its obligations under relevant resolutions, including resolution 687" as a
result of its failure to comply with its disarmament obligations.6 in the same resolu-
tion, the Security Council also recalled that those obligations imposed upon Iraq
under UNSCR 687 constituted “a necessary step for achievement of UNSCR 687's
stated objective of restoring international peace and security in the area.”
The Security Council's authorization to "use all necessary means” to disarm Iraq
and to restore international peace and security in the area includes not only the use
of force but also the subsequent occupation. An occupation of Iraq is necessary to
locate, catalog, dismantle, and destroy all Iraqi WMD programs and thus ensure
that Iraq is in compliance with UNSCŘ 687. Given the lengths to which the Hussein
regime has gone to conceal its WMD programs and the years it has had to hide its
arms, the United States cannot rid Iraq of its WMD programs during the course
of major combat operations. In addition, were the United States and its coalition
partners to depart from Iraq immediately following the end of combat, the peace and
security of the region might be threatened. Violence could erupt among Iraq's var-
ious ethnic and religious groups that could spill beyond Iraq's borders. Iraq could
descend into a state of anarchy. Such a development would not only threaten Iraq's
neighbors but also could turn Iraq into a haven for terrorist organizations. A hu-
manitarian crisis could also result from political turmoil, leading to a flood of refu-
gees entering and destabilizing Iraq's neighbors. Remnants of the current Iraq re-
gime could seek to reconstitute themselves, which would pose a threat to Iraq's
neighbors. To fulfill the goals of U.N. Security Council Resolution 678, the United
States must occupy Iraq, establish an interim administration, and construct stable
Iraqi government institutions that will help to restore peace and security to the re-
gion.
The U.S.'s authority to occupy Iraq is confirmed by Resolution 1483, which was
adopted by the Security Council on May 22, 2003 by a unanimous vote (with Syria
not voting). in that resolution, the Security Council recognized the United States
and Great Britain as the “occupying powers” in Iraq, and it encouraged "efforts by
the people of Iraq to form a representative government based on the rule of law that
affords equal rights and justice to all Iraqi citizens without regard to ethnicity, reli-
gion, or gender.” The Security Council resolved "that the United Nations should play
a vital role in humanitarian relief, the reconstruction of Iraq, and the restoration
and establishment of national and local institutions for representative governance.”
It also called upon the United States and Great Britain “consistent with the Charter
of the United Nations and other relevant international law, to promote the welfare
of the Iraqi people through the effective administration of the territory, including
in particular working toward the restoration of conditions of security and stability
and the creation of conditions in which the Iraqi people can freely determine their
own political future.” In addition to approving the financial arrangements for the
sale of Iraqi oil and the use of the proceeds, Resolution 1483 "calls upon all con-
cerned to comply fully with their obligations under international law including in
particular the Geneva Conventions of 1949 and the Hague Regulations of 1907.”
I will review the authority provided by the Geneva Conventions and the Hague
Regulations shortly. It is important, however, to understand that by making clear
that the two treaties apply to the occupation of Iraq, the Security Council has ex-
plicitly recognized that the United States may exercise the broad authorities grant-
ed by those conventions. Further, Resolution 1483 expresses the Security Council's
hope that Iraq will reform its government in order to establish representative insti-
tutions subject to the rule of law and protection for human rights. The Security
Council, however, did not detail the specific authorities that would empower the
United States and its allies to move Iraq toward a constitution with democratic in-
stitutions. Therefore, the power to achieve these goals must flow from the existing
international law of occupation, as expressed in state practice and applicable trea-
ties. These sources allow the occupying powers, here the United States and Great
Britain, to alter the domestic laws, including the constitution and government insti-
tutions, in order to provide for stability and security in Iraq, to protect the basic
human rights of Iraqis, and to restore international peace and security in the re-
gion.
Customary Law and the Hague Regulations
The laws of war govern the conduct of warfare by and between states. This body
of law is both reflected in the customary practice of nations and codified in various
texts, including the Hague Convention (IV) Respecting the Laws and Customs of
War on Land, Oct. 18, 1907, 36 Stat. 2277 (“Hague Convention”) and the Geneva
6 S.C. Res. 1441, 11 (2002). See also S.C. Res. 707, 11 (1991); S.C. Res. 1137, 11 (1997); S.C.
Res. 1205, 11 (1998).


53
diers on tht commissionethe United Statlaws of war, the complete
Conventions. The laws of war recognize that, as the result of armed conflict, any
surviving elements of the enemy nation may be incapable of providing public serv-
ices and maintaining security. Additionally, victorious armies have sought to control
enemy territory in order to deprive the enemy of valuable resources and to produce
surrender. The laws of war thus include a specific set of rules to govern the conduct
of military occupations and the operation of military government. This international
law of occupation not only authorizes a victorious nation to occupy enemy territory
and establish a military government; it also recognizes the authority of an occupant
to change the local laws, including government institutions.
Because the international law of occupation is partially formed, by custom and
practice, and, as will be explained below, the central treaty on occupation does not
apply to Iraq, it is important to review the historical development of the legal rules
in this area. Historically, an occupying army enjoyed wide discretion in admin-
istering the territory of a defeated enemy.? An occupant was generally considered
the permanent and absolute owner of occupied territory. Since the nineteenth cen-
tury, however, the law has understood the occupying authority to exercise only tem-
porary control over territory. Permanent control would result only from a treaty of
peace concluded at the end of a military conflict or the complete subjugation of an
enemy.8 The first efforts to codify the laws of war, and more specifically the law
of occupation, began in the United States during the Civil War. In 1862, the War
Department commissioned the drafting of a set of basic instructions for Union sol-
diers on the law of war. Approximately one-third of the resulting General Order No.
100, also known as the “Lieber Code,” addressed rules relating to occupation. The
Lieber Code explained that “[a] place, district, or country occupied by an enemy
stands, in consequence of the occupation, under the martial law of the invading or
occupying army, whether any proclamation declaring martial law, or any public
warning to the inhabitants has been issued or not.”9
The institution of martial law, in turn, provided an occupant with the authority
both to suspend the laws of an occupied nation and to subject the population of an
occupied nation to new laws. The Lieber Code provided, "Martial law in a hostile
country consists in the suspension by the occupying military authority of the crimi-
nal and civil law, and of the domestic administration and government in the occu-
pied place or territory, and in the substitution of military rule and force for the
same, as well as in the dictation of general laws, as far as military necessity re-
quires this suspension, substitution, or dictation.” 10 The scope of the occupant's au-
thority to suspend, substitute, or dictate the law of the occupied territory was quite
broad, due to the Lieber Code's broad definition of the concept of military neces-
sity.” 11
International efforts to codify the laws of war followed. The 1874 Brussels Dec-
laration, although not a legally binding agreement, specifically authorized the con-
duct of military occupation, stating that "[t]he authority of the legitimate power
being suspended and having in fact passed into the hands of the occupant, the latter
shall take all the measures in his power to restore and ensure, as far as possible,
public order and safety.” 12 Like the Lieber Code, the Brussels Declaration expressly
recognized the authority of occupants to change the laws of the indigenous govern-
ment in certain situations: “With this object he shall maintain the laws which were
in force in the country in time of peace and shall not modify, suspend or replace
them by others unless necessary.” 13 Although the Brussels Declaration established
a presumption in favor of “maintain[ing] the laws which were in force in the country
7 See Doris A. Graber, The Development of the Law of Belligerent Occupation 1863–1914, at
13, (1949).
8 See 3 Emmerich de Vattel, The Law of Nations or The Principles of Natural Law, Applied
to the Conduct and to the Affairs of Nations and of Sovereigns, 308, (Charles G. Fenwick, trans.,
1916), (1758) (“Real property--lands, towns, provinces—become the property of the enemy who
takes possession of them; but it is only by the treaty of peace; or by the entire subjection and
extinction of the State to which those towns and provinces belong, that the acquisition is com-
pleted and ownership rendered permanent and absolute."); American Ins. Co. v. Canter, 26 U.S.
(1 Pet.) 511, 542 (1828) (“[T]he usage of the world is, if a nation be not entirely subdued, to
consider the holding of conquered territory as a mere military occupation, until its fate shall
be determined at the treaty of peace.”).
9 General Order No. 100, section I, 11.
10 General Order No. 100, section 1, 13.
11 General Order No. 100, section 1, 1 14 (defining “[m]ilitary necessity” as “consist[ing] in the
necessity of those measures which are indispensable for securing the ends of the war, and which
are lawful according to the modern law and usages of war").
12 Draft of an International Declaration concerning the Laws and Customs of War adopted by
the Conference of Brussels, August, 27, 1874, art. 2.
13 Id. art. 3.


54
in time of peace,” it also allowed the occupant to “modify, suspend or replace” those
laws when necessity required.
The Brussels Declaration became the basis for the Hague Conventions of 1899
and 1907. The Hague Conventions acknowledged both the legality of military occu-
pation and the authority of occupants to change indigenous laws and institutions.
Article 42 of the Hague Convention of 1907, known as the “Hague Regulations,”
states that "[t]erritory is considered occupied when it is actually placed under the
authority of the hostile army. The occupation extends only to the territory where
such authority has been established and can be exercised.” 14 Article 43 of the
Hague Regulations sets forth one of the primary legal duties of an occupying power.
Because "[t]he authority of the legitimate power [has] in fact passed into the hands
of the occupant,” the occupant “shall take all the measures in his power to restore,
and ensure, as far as possible, public order and safety, while respecting, unless ab-
solutely prevented, the laws in force in the country.” 15
The text of article 43 of the Hague Regulations provides ample authority to the
United States to change Iraqi law, including the fundamental change of Iraqi gov-
ernment institutions. Article 43 empowers an occupant to modify an occupied na-
tion's laws if it is necessary to restore and ensure “public order and safety.” Given
the nature of the current Iraqi regime, the United States may need to make exten-
sive changes to Iraqi laws, including a substantial overhaul of Iraqi government in-
stitutions, in order to ensure public order and safety.
Further, it is important to emphasize that even if the Hague Regulations were
read to impose a stricter standard upon United States conduct, it would not legally
bind our military occupation in Iraq. The Hague Regulations do not govern the U.S.
conflict with Iraq because Iraq is not a party to Hague. Article 2 of Hague makes
clear that its provisions apply only to armed conflicts between parties. Thus, the
international law that applies to the United States is actually that created by cus-
tom and state practice, and to the extent that the text of article 43 and state prac-
tice deviate, the latter would control rather than the former. In any event, state
practice would be relevant even if the Hague Regulations applied of their own force
because it would illustrate how nations have interpreted article 43 over time.
In the period between the Hague Regulations and the signing of the Geneva Con-
ventions of 1949, occupying nations often instituted changes in the laws and govern-
mental institutions of the occupied territory. During World War I, for example,
when Germany occupied Belgium, it supplanted the Belgian court system and di-
vided Belgium into separate administrative regions. Germany also enacted new leg-
islation governing trade, commerce, banking, and welfare, and raised taxes. 16 When
Great Britain occupied French and Italian colonies in North Africa during World
War II, it replaced the colonial governments with administrative divisions. 17 It also
established new government systems, including a new judicial system, when the
local administrative system in Somalia collapsed. 18 During the Allied occupation of
Fascist Italy, the United States and Great Britain established an Allied Military
Government of Occupied Territories that eliminated all Fascist institutions in Italy,
removed Fascists from power, and repealed laws that discriminated on the basis of
race, creed, or color. These developments were probably inevitable due to article 43's
ambiguity. Nothing in the text of the phrase “unless absolutely prevented” estab-
lishes any substantive standard for what grounds must exist to overcome the pre-
sumption in favor of the status quo.19 And in interpreting this vague text, occupying
nations generally will have powerful motives for interpreting article 43 as broadly
as possible. By the end of World War II, state practice had established the authority
of an occupying power to implement fundamental changes in the laws and govern-
ment of an occupied country.
The Fourth Geneva Convention
In response to Axis atrocities during World War II, an attempt was made in the
Fourth Ĝeneva Convention (“Geneva IV”) to clarify the laws of occupation.20 Geneva
IV formally recognized the authority of an occupying nation to alter local laws. Un-
Britain est fascist insti on the bas 23's
14 Hague Convention, Annex, art. 42, 36 Stat. 2306.
15 Hague Convention, Annex, art. 43, 36 Stat. 2306 (emphasis added).
16 Eyal Benvenisti, The International Law of Occupation, 40, (1993).
17 See id. at 73.
18 See id. at 73–74.
19 See id. at 13 (“[T]he meaning of 'unless absolutely prevented' remained conveniently vague.
... The requirement to ‘respect the existing laws 'unless absolutely prevented' has no meaning
of its own, since the occupant is almost never absolutely prevented, in the technical sense, from
respecting them.”).
20 Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12,
1949, 6 U.S.T. 3516.


55
semain in force, with the exception that it
like the case with the Hague Regulations, both the United States and Iraq are par-
ties to Geneva IV. The terms of the Convention apply to any military conflict be-
tween the two countries and to the U.S. occupation of Iraq.
Article 64 of Geneva IV gives the United States significant authority to alter the
laws of Iraq during the occupation. Article 64 provides that “ the penal laws of the
occupied territory shall remain in force, with the exception that they may be re-
pealed or suspended by the Occupying Power in cases where they constitute a threat
to its security or an obstacle to the application of the present Convention.” 21 Article
64 then states:
[T]he Occupying Power may ... subject the population of the occupied terri-
tory to provisions which are essential to enable the Occupying Power to ful-
fill its obligations under the present Convention, to maintain the orderly
government of the territory, and to ensure the security of the Occupying
Power, of the members and property of the occupying forces or administra-
tion, and likewise of the establishments and lines of communication used
by them.
The Red Cross commentary to Geneva IV states that article 64 of the Convention
“expresses, in a more precise and detailed form, the terms of Article 43 of the Hague
Regulations, which lays down that the Occupying Power is to respect the laws in
force in the country "unless absolutely prevented.” 22 Article 64, however, contains
two important differences from Article 43. First, article 64 establishes a much weak-
er presumption in favor of the status quo, and it applies it only to the criminal laws.
Second, article 64 does not limit to criminal laws the “provisions” to which the occu-
pied territory may be subject. We may infer from this language that an occupying
power may take measures under article 64 that include constitutional, civil, or ad-
ministrative law as well as criminal.
Article 64 and customary international law empower the United States to impose
“provisions” for a variety of enumerated purposes, without regard to whether such
provisions can or cannot be reconciled with current law, and absent any strong pre-
sumption in favor of the status quo ante. For instance, article 64 explicitly empow-
ers an occupant to institute those measures essential “to maintain[ing] the orderly
government of the territory, and to ensur[ing] the security of the Occupying Power,
of the members and property of the occupying forces or administration, and likewise
of the establishments and lines of communication used by them.” 23 In this respect,
Geneva IV memorialized state practice under the Hague Regulations, which recog-
nized an occupant's expansive authority to alter laws, including government institu-
tions, in order to maintain the security of its military forces, preserve its military
gains, and maintain domestic order. Occupying nations possess the authority to dis-
mantle institutions that pose a threat to domestic or international peace and order,
such as the Nazi regime in Germany. Commentators have also construed state prac-
tice to include all of the legitimate purposes of war, such as the promotion of democ-
racy and the protection of fundamental human rights. 24
The United States may reasonably conclude that institutions of the former Hus-
sein regime pose a substantial threat to the security of the Armed Forces during
the occupation of Iraq. Consequently, in order to protect the safety of the U.S.
Armed Forces during an occupation of Iraq, it would almost certainly be necessary
for Iraqi law to be changed so that these government institutions are dismantled.
The preservation of the forms of the Hussein regime could also represent a danger
to the national security of the United States. As Congress has found, the Iraqi gov-
ernment has generally demonstrated a continuing hostility to the United States.
The Iraqi government has harbored and aided international terrorist organizations
that threaten the lives and safety of American citizens. Just last year, Congress
found that the current Iraqi regime posed a continuing threat to the national secu-
rity of the United States, due to its possessions of chemical and biological weapons,
themed Forces during hanged so that thesesein regime co
21 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug.
12, 1949, 6 U.S.T. 3516, 3558.
22 Jean S. Pictet, ed., Commentary, IV Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, 335, (1958) (“Commentary on Fourth Geneva Convention”).
236 U.S.T. at 3558.
24 See e.g., Davis P. Goodman, The Need for Fundamental Change in the Law of Belligerent
Occupation, 37 Stan. L. Rev. 1573, 1585-86 (1985) (“occupiers consider themselves absolutely
prevented fromrespecting local law whenever it hinders the realization of the legitimate purpose
of occupation”); id. at 1590 (“If the purpose of the conflict is to rid the occupied territory of a
form of government objectionable to the belligerent occupier, the occupier will not respect the
existing political structure while waiting for the final determination of the conflict.").


56
nger to the regio provide theme would empt weapon
pursuit of nuclear weapons capability, and support for terrorist organizations.25
Congress specifically noted Iraq's capability and willingness to use weapons of mass
destruction and the risk that the current Iraqi regime would employ those weapons
in an attack upon the United States or provide them to terrorists who would do so. 26
Iraq has also been a danger to the region. It has twice invaded its neighbors without
provocation.
The historical record shows that the maintaining current Iraqi government insti-
tutions would constitute a threat to the national security of the United States and
the safety of the U.S. Armed Forces in Iraq. Geneva IV and customary international
law permit the United States to replace those institutions with others that would
endanger neither the national security of the United States nor the safety of the
U.S. Armed Forces. Given the Iraqi government's past behavior, the retention of the
current Iraqi regime would be inimical to the establishment of peace and security
in the Middle East.
Article 64 also expressly authorizes occupants to make alterations to laws of the
indigenous government in order to protect rights guaranteed by Geneva IV. The
rights afforded by Geneva IV sweep broadly. For example, article 27 provides that
"[p]rotected persons are entitled, in all circumstances, to respect for their persons,
their honour, their family rights, their religious convictions and practices, and their
manners and customs.” It establishes that “[t]hey shall at all times be humanely
treated, and shall be protected especially against all acts of violence or threats
thereof and against insults and public curiosity.” It declares that "[w]omen shall be
especially protected against any attack on their honour, in particular against rape,
enforced prostitution, or any form of indecent assault.” And it finds that “all pro-
tected persons shall be treated with the same consideration by the Party to the con-
flict in whose power they are, without any adverse distinction based, in particular,
on race, religion or political opinion.” All of these rights are subject to the qualifica-
tion that "the Parties to the conflict may take such measures of control and security
in regard to protected persons as may be necessary as a result of the war.” 27
Other provisions of Geneva IV require an occupying power to care for the popu-
lation of an occupied country. Article 50 provides that “[+]he Occupying Power shall,
with the cooperation of the national and local authorities, facilitate the proper work-
ing of all institutions devoted to the care and education of children.” Under articles
55 and 56, the occupying power must, "[t]o the fullest extent of the means available
to it,” provide for “the food and medical supplies of the population,” and “in par-
ticular, bring in the necessary foodstuffs, medical stores and other articles if the re-
sources of the occupied territory are inadequate,” as well as ensure and maintain,
“with the cooperation of national and local authorities, the medical and hospital es-
tablishments and services, public health and hygiene in the occupied territory, with
particular reference to the adoption and application of the prophylactic and preven-
tive measures necessary to combat the spread of contagious diseases and epidemics."
Given the Iraqi government's abysmal record in the area of human rights, the
United States cannot fulfill its obligations under Geneva IV without replacing the
institutions of the Hussein regime. The regime maintained its hold on power only
by brutally repressing the Iraqi people. It systematically murdered those perceived
to be a threat to the regime. Hussein's security forces routinely tortured Iraqis, with
beatings, rape, the breaking of limbs, and the denial of food, water, and medical
treatment being commonplace. Needless to say, the regime did not tolerate political
dissent, other political parties, or freedom of religion. It also displayed an utter dis-
regard for the welfare of Iraqi women and children. Given the barbaric nature of
the Hussein regime, the United States must eliminate the institutions of the Hus-
her provisionsted persons as it may take suchights are subjected, in particular
Ficular, bringe occupied national and lth and hygien of the propeases and epi
25 Pub. L. No. 107–243, 116 Stat. 1498 (2002); see also Pub. L. No. 105–235, 112 Stat. 1538,
1540 (1998) (declaring that “Iraq's continuing weapons of mass destruction programs threaten
vital United States interests and international peace and security”).
26 See Pub. L. No. 107–243, 116 Stat. 1498 (2002).
27 An occupying power also must respect a number of rights provided to civilians charged with
committing a criminal act during an occupation. Those prosecuted must be “promptly informed,
in writing, in a language which they understand, of the particulars of the charges preferred
against them, and shall be brought to trial as rapidly as possible.” Art. 71, 6 U.S.T. at 3562.
Additionally, those accused of crimes are guaranteed "the right to present evidence necessary
to their defence and may, in particular, call witnesses.” Id. Art. 72. Defendants also “have the
right to be assisted by a qualified advocate or counsel of their own choice, who shall be able
to visit them freely and shall enjoy the necessary facilities for preparing the defence.” Id. Once
convicted, protected persons continue to enjoy a range of rights under the Fourth Geneva Con-
vention, including the right to “enjoy conditions of food and hygiene which will be sufficient to
keep them in good health, and which will be at least equal to those obtaining in prisons in the
occupied country," the right to “receive the medical attention required by their state of health,"
and “the right to receive any spiritual assistance which they may require.” Art. 76, 6 U.S.T.
at 3566.


57
sein government to carry out all of the duties placed upon it by Geneva IV and to
protect the basic human rights given to the Iraqi people. Clearly, this will require
the United States to establish a new Iraqi constitution and representative govern-
ment institutions.
Although the drafters of Geneva IV formally recognized the expansive authority
of an occupying nation to change the laws of an occupied nation, they did establish
one significant substantive limitation. Article 47 forbids the introduction of any
changes to the status quo that would deprive the population of Geneva IV rights.
Article 47 states:
Protected persons who are in occupied territory shall not be deprived, in
any case or in any manner whatsoever, of the benefits of the present Con-
vention by any change introduced, as the result of the occupation of a terri-
tory, into the institutions or government of the said territory, nor by any
agreement concluded between the authorities of the occupied territories and
the Occupying Power, nor by any annexation by the latter of the whole or
part of the occupied territory.28
Therefore, the United States cannot alter the laws, including the government insti-
tutions of Iraq, in a manner that is inconsistent with the basic rights recognized
by Geneva IV.
Some may argue that article 64 limits the occupying nation's authority to those
changes that would last only during the occupation. While an occupying nation
would possess the power to enact temporary measures necessary to fulfill its obliga-
tions under Geneva W, maintain order and security, and ensure its national security
along with the security of its armed forces, article 64 and customary international
law would not grant an occupying power the authority to make permanent changes
in governmental institutions or constitutional law. To be sure, there will be cir-
cumstances in which an occupying power will need to suspend or modify the laws
of an occupied nation only on a temporary basis. For example, in the midst of civil
disorder, an occupant may resort to interim emergency measures, such as a curfew.
In other situations, however, temporary measures will be plainly inadequate for an
occupant to accomplish the legitimate purposes of occupation. In order for the
United States to fulfill its obligations, maintain an orderly government, and protect
its national security as well as the security of its armed forces while occupying Iraq,
it almost certainly will be necessary for the United States to change Iraqi law to
dismantle current Iraqi government institutions and create new ones to take their
place.
CONCLUSION
International law provides the United States with ample authority to establish a
new Iraqi constitution and democratic governmental institutions as part of its duty
to secure public safety in Iraq, protect the basic human rights of Iraqis, and to re-
store international peace and security to the region.
Senator CORNYN. Thank you very much, Professor Yoo.
Professor Agawa.
STATEMENT OF NAOYUKI AGAWA, MINISTER AND DIRECTOR
OF THE JAPAN INFORMATION AND CULTURE CENTER, EM-
BASSY OF JAPAN
Mr. AGAWA. Chairman Cornyn, Chairman Chafee, it is a distinct
honor to testify before your subcommittee. I have submitted my
written statement for the record, but I would like to briefly inform
you of the making of the Japanese constitution in 1946, one in-
stance in which the Americans were deeply involved in the making
of somebody else's constitution, in the hope that that extraordinary
story may assist you in thinking about how the United States
wants to guide the constitution and the future of Iraq.
Please note that the views that I express today before your sub-
committees are strictly my own, and do not in any way reflect the
views of the Government of Japan, for which I currently work.
286 U.S.T. at 3548.


58
.
In order to grasp the time, place, and manner in which the new
Japanese constitution was written, one needs to know the history
surrounding that event in chronological order. Because my time is
limited, I would just point out that the original draft of
constitution was prepared in English by a group of Americans
without any Japanese participation, that the drafting was com-
pleted in a matter of a week in total secrecy in February 1946.
Professor Yoo just mentioned the fact that there are some legal
bases for that kind of act, and I think that General MacArthur took
care of that legal basis. Nevertheless, that's the fact. .
The American occupation authority, known as GHQ, actually
wanted to wait for the Japanese side to come up with a new con-
stitutional draft, but for a variety of reasons decided to prepare the
initial draft themselves, and handed it to the Japanese. The Japa-
nese were certainly given opportunities to comment on and revise
this GHQ draft after it was handed to them. Nevertheless, the
American original has determined the character of the 1946 con-
stitution to a large extent.
Well, having said that, I believe that the 1946 constitution has
been largely successful. First and foremost, the 1946 constitution
has functioned as the basic law of the land for the past 57 years.
Its pacifist and democratic character, together with its emphasis on
fundamental human rights, suited the mood of the Japanese peo-
ple, who were tired of years of war and military control. Therefore,
the 1946 constitution set the cornerstone for Japan's post-war de-
mocratization.
There are several specific examples of success.
Article 1 declared the Emperor to be the symbol of the State and
of the unity of the people. It secured the Emperor's position con-
stitutionally, while democratizing it by depriving him of all political
powers, and by adding the new notion that his position is derived
from the will of the people, with whom resides sovereign power. It
ensured the gradual and peaceful democratization of Japan both
during and after the occupation.
Article 9 proclaimed Japan's renunciation of war and its decision
not to maintain armed forces, this helped to alleviate the fear of
the resurgence of Japan's adventurous militarism.
Chapter III lists a variety of human rights, fundamental human
rights. Many of these human rights provisions have functioned as
a goal of the nation.
Chapters IV and V set forth provisions of the parliamentary sys-
tem without substantial changes made to the 1890 constitution.
This assured the continuity of government.
Chapter VI sets forth the provisions for the judiciary, that re-
tained the basic structure of the pre-war judicial system, and that
the Japanese judiciary continued to be base largely on the civil law
tradition.
Article 96, last, sets forth a procedure for the revision of the 1946
constitution, and thus has given the Japanese people the option
and freedom to change it in the future, although we have never
changed the constitution so far.
Several aspects of the 1946 constitution have been less success-
ful, however. First, some Japanese, because the initial draft was
made by Americans, continue to believe that the 1946 constitution


59
was imposed by the Americans on the Japanese people. Also, some
believe that the Japanese Government's exceedingly restrictive in-
terpretation of Article 9 has prevented Japan from becoming a full-
fledged ally of the United States and from fully participating in
international military action, that involvement of force necessary to
maintain peace such as the first gulf war.
Some of the fundamental human rights provisions incorporated
in Chapter III seem to reflect too many American legal ideas of the
1930's, i.e., the bigger the government, the better. For example, the
right to maintain the minimum standards of wholesome and cul-
tured living, and the State's obligation to promote social welfare,
security and public health in Article 25. These things have been
difficult to enforce.
There are some other examples, but I am running out of time,
so in conclusion, the American attempts to democratize Japan after
World War II has been remarkably successful. The 1946 constitu-
tion was a major factor in that attempt. One must remember how-
ever, that the Japanese had experienced a healthy democracy in
the 1920's, and that the post-war democracy was based on and
grew from that experience.
As noted above, however, not every American-inspired measure
worked successfully in post-war Japan, but no constitution is per-
fect, and it is now up to the Japanese people to fix it if and when
necessary in accordance, again, with the freely expressed will of the
people.
Thank you very much.
[The prepared statement of Mr. Agawa follows:]
PREPARED STATEMENT OF NAOYUKI AGAWA
Introduction
Chairman Cornyn, and Chairman Chafee, and members of the subcommittees. It
is a distinct honor to testify before your subcommittees on the making of the Japa-
nese Constitution in 1946.
On August 15, 1945, Japan announced the acceptance of the Potsdam Declaration.
That ended three and a half years of war between the United States and Japan.
General MacArthur stepped onto Japanese soil 15 days later. Thus the occupation
of Japan started and lasted approximately seven years. During that time, the
United States together with other members of the Allied Powers undertook many
measures to do away with the country's military control and revive Japan's democ-
racy. Among them was the making of the new Japanese Constitution.
Almost 60 years later, the United States and its coalition partners are again find-
ing themselves in charge of the occupation and democratization of Iraq. Among the
tasks to be undertaken there in due course, I understand, is the making of the new
Iraqi Constitution.
I would like to inform you of the making of the new Japanese Constitution in
1946 in the hope that that extraordinary story may assist you in thinking about
how the United States wants to guide the constitutional future of Iraq. More specifi-
cally, I would like to give you examples of the American ideas incorporated into the
Japanese Constitution, how they were incorporated, and which of these proved to
be successful and which were not.
Please note that the views I express today before your subcommittees are strictly
my own and do not in any way reflect the views of the government of Japan. I am
testifying before your subcommittees strictly in the capacity of a constitutional
scholar who has taught this subject at Keio University in Japan, the University of
Virginia Law School and Georgetown University Law Center; therefore, I do not ap-
pear today sharing my views as a minister of the Embassy of Japan.
any waymittees streio Univeaw Cent


61
the Emperor retained sovereign powis position is riving him of
pleted on March 5 with MacArthur's approval. On March 6, the Japanese cabinet
approved this new draft and publicly released it as the Government Draft.
The Government Draft was submitted to the Diet and the Privy Council, the Em-
peror's advisory body, in accordance with the revision procedures of the 1890 Con-
stitution as set forth therein. After lively debates and a fair number of revisions,
the final Government Draft was adopted and proclaimed as the 1946 Constitution
on November 3, 1946, effective May 3, 1947.
On September 8, 1951, Japan concluded a peace treaty in San Francisco with the
United States and other Allied Powers. The peace treaty became effective on April
28, 1952 after its ratification by a majority of the signatories to the treaty. Thus
Japan's occupation ended and the country regained its full independence.
Has the 1946 Constitution Been Successful?
I believe that the 1946 Constitution has been largely successful. This assessment
is based on several factors.
First and foremost, despite initial opposition to some of the new ideas incor-
porated in the GHQ Draft and the Government Draft, the 1946 Constitution has
functioned as the basic law of the land for the past 57 years. In fact, when the Gov-
ernment Draft was made public on March 6, 1946, the majority of the Japanese peo-
ple favorably received it. Its pacifist and democratic character together with its em-
phasis on fundamental human rights suited the mood of the Japanese people who
were tired of years of war and military control. It is fair to say, therefore, that the
1946 Constitution set the cornerstone for Japan's post-war democratization.
More specifically, Article I of the 1946 Constitution incorporated the revolutionary
notion of the Emperor as the “symbol of the State and of the unity of the people.”
This provision has worked remarkably well. On the one hand, it secured the Emper-
or's position constitutionally, thus allowing the ancient tradition to survive the post-
war turmoil. On the other hand, it democratized the Emperor by depriving him of
all political powers and by adding the new notion that his position is derived from
the “will of the people with whom resides sovereign power.” Under the 1890 Con-
stitution, in theory the Emperor retained all the rights of sovereign and reigned
over and governed the Empire of Japan. Although the conservatives in Japan
strongly resisted the idea of turning the Emperor into a mere figurehead, the Em-
peror as the spiritual symbol of the nation and not a political power actually con-
formed well to Japan's age-old political tradition and thus has functioned well. In
my view, maintaining the Emperor tradition in Japan is MacArthur's greatest
achievement in connection with the 1946 Constitution. It assured the peaceful and
gradual democratization of Japan both during and after the occupation.
Article 9 of the 1946 Constitution incorporated another revolutionary notion of the
renunciation of war. This provision also served its purposes particularly well for Ja-
pan's first 30 to 40 postwar years. In order to smoothly return to the international
community, the Japan that was perceived in the 1930's as an aggressor in the Asia-
Pacific region had to project the image of a born-again, peace-loving country. Article
9 proclaimed Japan's renunciation of war and its decision not to maintain armed
forces. This helped to alleviate the fear of the resurgence of Japan's adventurous
militarism, a feeling shared at the time by many countries and peoples surrounding
Japan. It also made the Japanese sincerely aspire to become a truly peace-loving
nation. The result is a Japan today that promotes peace worldwide largely through
non-military means.
Also, importantly, Chapter III of the 1946 Constitution lists a variety of funda-
mental human rights. As a matter of concrete policy, the Japanese found some of
them difficult to implement immediately because they were so idealistic and because
the Japanese government had little resources to realize them. However, many of
these “rights” provisions have functioned as the goals of the nation. The Japanese
aspired to achieve these goals and to rebuild a country that is based upon and re-
spects these fundamental human rights. For instance, Article 24 of the 1946 Con-
stitution promulgated the equality of the sexes. Japanese women had not been
treated as equals to men for historical and cultural reasons throughout most of Jap-
anese history, and were inspired by this provision. Since then, they have signifi-
cantly improved their social standing in Japan. It is perhaps fair to say that post-
war Japan has respected people's “life, liberty and pursuit of happiness” and
"equalſity) under the law” to the greatest extent possible as provided in Articles 13
and 14 of the 1946 Constitution.
In addition, the 1946 Constitution maintained the parliamentary (the Diet) sys-
tem without substantial changes made to the one under the 1890 Constitution. This
assured the continuity of government. There were some important changes in this
area, too. For instance, the 1946 Constitution specifically made the Cabinet directly
responsible to the Diet, thus reviving and strengthening the 1920's democratic tradi-


62
se peopled and prevanese tohws, the Japirety in aution
bind most important he 1946 Constit. Interestinglyed why the James
on. Neople the that thi
tion that thrived in Japan before the military took control of the country. The 1890
Constitution had no express provision for the Cabinet's accountability to the Diet
although by the 1920's it had become customary for the Cabinet to resign at the
displeasure of the Diet. Also, the Prime Minister was given the authority to appoint
and remove members of his cabinet. Nevertheless, the parliamentary system as a
whole was not materially changed from the pre-war model. The drafters of the GHQ
draft could have tried to institute a more American style of government by estab-
lishing clearer separations of power and creating a more independent executive
branch of the government. However, these Americans knew and respected the Japa-
nese' pre-war democratic experiences and traditions. Therefore, these drafters left
the existing system intact. That worked well for Japan's needs.
Similarly, while the 1946 Constitution made the Japanese judiciary more inde-
pendent and encouraged it to be more “rule of law” oriented in order to protect the
fundamental human rights of the Japanese people, it respected and retained the
basic structure of the pre-war judiciary system. Thus, the Japanese judiciary contin-
ued to be based largely upon the civil law tradition that was originally introduced
from Germany and France. In fact, the person who worked on the reform of the Jap-
anese judiciary system within the GHQ was Judge Opler, a naturalized American
citizen who was a former judge in pre-Nazi Germany. He advised the GHQ not to
introduce too much of the American judicial system, such as the election of judges.
This suggestion has also worked well for Japan.
Lastly, the American drafters provided for the procedures for the revisions of the
1946 Constitution in Article 96. Some of the American drafters maintained that the
provisions for fundamental human rights in Chapter III should be made non-amend-
able lest the Japanese people be deprived of these rights after the Americans left
Japan. However, others argued and prevailed that the American drafters should not
bind the future generations of the Japanese to what the Americans thought to be
the most important constitutional principles. Thus, the Japanese have retained the
freedom to amend the 1946 Constitution partly or in its entirety in accordance with
the procedures set forth in Article 96. Interestingly, the 1946 Constitution has never
been amended. Constitutional scholars have debated why the Japanese are so reluc-
tant to amend the Constitution. Nevertheless, the insertion of the amendment pro-
cedures has given the Japanese people the option and freedom to change it in the
future. It therefore weakens the argument that this Constitution was imposed on
the Japanese by the Americans.
Certain Aspects of the 1946 Constitution That Are Less Successful
Several aspects of the 1946 Constitution have been less successful or totally un-
successful.
First, some Japanese continue to believe that the 1946 Constitution was "im-
posed” by the Americans on the Japanese people and that it therefore lacks legit-
imacy. They still find offensive that the first draft of the 1946 Constitution was pre-
pared in English by a group of Americans, and furthermore that it was done in an
extremely short period of time and in complete secrecy. Those Japanese do not recall
themselves “proclaim[ing] that sovereign power resides with the people” and “firmly
establish[ing] this Constitution” as the Preamble to the 1946 Constitution states.
Some believe that the 1946 Constitution is badly written as a matter of Japanese
prose because the original draft was in English. In fact, a top secret directive from
Washington to General MacArthur issued on January 7, 1946 entitled SWNCC 228
(the State-War Navy Coordinating Subcommittee for the Far East directive number
228) specifically stated that “[o]nly as a last resort should the Supreme Commander
order the Japanese Government to effect the constitutional changes), as the knowl-
edge that they had been imposed by the Allies would materially reduce the possi-
bility of their acceptance and support by the Japanese people for the future.” How-
ever, some Japanese had strong counter-arguments to this position. For instance,
some scholars argue that because the Diet debated and amended the Government
Draft in a relatively free fashion in the latter half of 1946, the Japanese people did
have an opportunity to express their will in the making of the 1946 Constitution
through their representatives. Scholars also argue that the Japanese have so far
chosen not to amend the 1946 Constitution, indicating that the nation as a whole
has approved of it and liked it. Also, the GHQ Draft was prepared in haste for sev-
eral good reasons, for example, among other things, General MacArthur's wish to
avoid Soviet Russia's intervention in his occupation policy, in order to prevent com-
munist-led insurgency in Japan and to protect the Emperor from indictment as a
war criminal. Nevertheless, because the first draft of the 1946 Constitution was pre-
pared by a group of Americans without participation of any Japanese, I believe that
this factor has harmed the legitimacy of the 1946 Constitution to a certain degree.
has appro reasons, for examintion in his occupa the Emperor frometitution was pre.
fired by anal. Nevency in Tuntion inong other? Draft us that the
the ans wise the protupatio
caps without parti draft of the near from indicrevent com


65
In what respects? First, the German experience shows that rees-
tablishing constitutional government can only begin when the occu-
pying power is fully in control, and only when law and order is
fully restored. Second, rebuilding democracy must be the first re-
sponsibility of the occupied country.
Third, a spirit of trust and cooperation must define the relation-
ship between the occupiers and the occupied. In addition, the edu-
cated classes and a critical mass of democratically inclined citizens
must be willing and able to cooperate with the occupation.
Finally, and perhaps the most important lesson of all, given the
German experience, is that the restoration of democratic constitu-
tionalism must be a bottom-up, rather than a top-down affair, and
it must reflect indig enous values and traditions.
Consider how the process worked in Germany. Already, in late
1945, the military Governors authorized Germans to rebuild their
local and state governments, in some cases in artificially created
territorial units. They initially selected the prime ministers of
those territorial units, the top German officials charged with this
task of rebuilding, but thereafter, these officials acted on their own,
save for certain functions related to internal security and foreign
trade. These local units evolved, interestingly enough, into dyna
working governmental systems jealous of their power and auton-
omy, and pretty much based on the German tradition of statecraft.
By mid-1946, elected State Parliaments and Prime Ministers
were functioning under written constitutions, at least in the four
states within the American zone. Local representatives of political
parties licensed by American military authorities drafted these con-
stitutions, and they did so on their own. They didn't have all that
much American or any other allied help at the time. Although re-
quiring the approval of the allies, these constitutions, as suggested,
were home-made products rooted in Germany's democratic tradi-
tion.
With this foundation in place, then, at both local and regional
levels, the allies turned their attention to West Germany as a
whole, almost 3 years Germany's military defeat. Of course, the es-
tablishment of a national government would probably have
much longer had it not been for the American determination to
bring Germany into the Atlantic alliance, given the cold war in the
background.
At any rate, in mid-1948, 3 years after Germany's defeat, the
military Governors commissioned the Prime Ministers of the 11 re-
organized states to convene a national assembly to write a new
constitution for Germany. They specified that the new constitution
must establish a Federal form of government, protect the rights of
the respective states, and provide for the protection of individual
rights and freedoms, and within the framework of these broad prin-
ciples, Germans were free—subject to allied approval—to draft a
constitution of their own choosing.
The Prime Ministers moved at once. They appointed a committee
of experts, constitutional experts and international experts, all (
mans, to prepare a draft constitution for the consideration of a na-
tional assembly. Twenty-five persons, all Germans, accomplished
this task in 14 days. No Americans were present during the writing
of this draft constitution.


70
the people, liberalism, i.e., the protection of the individual, and con-
stitutionalism, enforcing the Constitution.
In my paper, I've suggested several factors that might be held up
as ways of thinking about whether a constitutional enterprise may
be successful or not. These include protection from foreign aggres-
sion, economic prosperity, a constitutional culture, an open society,
the existence of a civil society, and a State based finally on civic
and not ethnic or national principles. I think most of those concepts
are fairly well-known.
Ultimately I agree with what I've heard at both panels this
morning, that the Iraqi people must themselves do the job. They
must understand that they are the proprietors of the new constitu-
tion. But I think they are well-informed if they take stock of what
has happened in other countries like Japan and Germany, what's
happened here in America, what the teachings of the modern con-
stitutional period are.
Mr. Chairman, thank you.
[The prepared statement of Mr. Howard follows:]
PREPARED STATEMENT OF A. E. DICK HOWARD
In recent years I have had the privilege of sitting at the elbows of constitution-
makers in countries seeking to lay the foundations of constitutional liberal democ-
racies in those countries. Some years earlier, I cut my teeth in the art of constitu-
tion-making when I was involved in the drafting of Virginia's present state constitu-
tion. I have also consulted with other states seeking to revise their constitutions.
But no experience has been so instructive as watching constitutions take shape in
the context of other lands and cultures.
This experience in comparative constitutionalism has drawn me to ask questions
about the extent to which one country can assist in, or make judgments about, an-
other country's constitutional journey. How well do constitutional ideas travel, espe-
cially across the boundaries of different cultures or legal systems? Are there uni-
versal values by which the relative success of a constitutional system may be meas-
ured? Or, as some people argue, must constitutions ultimately be grounded in a
country's culture, history, traditions, and circumstances? For Americans, there is
the specific question: what relevance does the American constitutional experience
have for other countries?
THE EXPERIENCE OF CENTRAL AND EASTERN EUROPE
To sharpen these questions, consider the experience of the countries of Central
and Eastern Europe. After the collapse of communism, each of those countries set
out to write new constitutions and to design institutions thought to promote con-
stitutional liberal democracy. Drafters in those countries ( Poland, Hungary, etc.)
had several sources on which they could draw in devising new constitutions.
1. In some cases they could look back to their own indigenous sources and expe-
rience. For example, Poles recall the traditions of constitutionalism associated
with the memorable Constitution of May 3, 1791. Hungarians have a strong
tradition of the rule of law, having its roots as early as the Golden Bull of
1222. But such traditions are often fragmentary and remote, Few countries
in Central and Eastern had any extended experience with either constitu-
tionalism, democracy, or the rule of law before 1989 (Czechoslovakia's vibrant
democracy between the world wars was a notable exception).
2. Countries in Central and Eastern Europe have been able to look-and have
looked—to the experience of Western Europe. Western Europe is, of course,
the seat of much of the core of modern constitutional democracy (such as the
teachings of the Enlightenment), but also the sources of many of our basic
constitutional principles (such as the separation of powers). Moreover, con-
stitutionalism, democracy, and the rule of law have taken hold in manifest
ways in Western Europe since World War II. Germany, rising from the ashes
of World War II, has become a admirable example of constitutional democ-
racy. Spain, moving beyond the legacy of Franco, has become in every respect
a modern European state. With these and other examples to study, drafters
thech of the core of estern Europe ve been able to


73
med the existe, an incomplete states). Also, the
the Unitede usefulneative const,
1. Constitutionalism must be understood as an expression of culture. Few would
argue with this proposal if it is advanced as a caveat, namely, that one should
always take culture into account in thinking about constitutions and constitu-
tionalism. But some observers take the argument further, contending that
there are no “universal” elements of constitutionalism. For example, by this
view, community or group rights could be valued above individual rights.
2. American constitutionalism was the result of Enlightenment assumptions,
steeped in British constitutionalism, and shaped in the historical settings of
America. Some argue, therefore, that the teachings of American constitu-
tionalism cannot be exported to other cultures. Such arguments often cite the
failure of Latin American constitutions based on the US model and more re-
cent problems in places such as the Philippines.
3. Even those who think the American experience is relevant and useful find
limits in the United States Constitution as a model for foreign drafters. The
document was written in the eighteenth century, reflects the insights of that
era, and has required formal amendment (notably the post-Civil War amend-
ments) and extensive judicial interpretation and gloss. Much of the American
jurisprudence of rights results from judicial gloss rather than from the ex-
plicit constitutional text (for example, the process of “incorporation” doctrine
by which guarantees of the Bill of Rights are applied to the states). Also, the
United States Constitution is, in a sense, an incomplete document, in the
sense that its framers assumed the existence and function of the states and
therefore of state constitutions (documents which in many ways are rather
more like constitutions in other countries).
. All of these observations have force and ought to be taken into account, especially
before assuming that what has worked well in America must surely work for other
peoples as well. But the problems of comparative constitutionalism ought not to be
turned into categorical barriers. The usefulness of the American experience does not
lie in the formal text of the United States Constitution. It is to be found in the gen-
eral principles which are reflected in American constitutionalism and, further, in
the practical experience of making constitutional democracy work.
Many of the most basic ideas in American constitutionalism reflect norms that
furnish at least presumptive value elsewhere. Examples include the following:
1. Federalism. Formal federalism, as charted by the Constitution, may or may
not be appropriate in other countries. Federalism, however, is a system which
has many variants and is found in one form or another around the world.
Federalism and its cousins (such as devolution) is associated with values of
pluralism, diversity, and local choices about local problems. Such arrange-
ments may be especially important to defuse conflicts of nationality or eth-
nicity.
2. Separation of powers. This principle, celebrated by Montesquieu and refined
by Madison, is a way of achieving limited government-one of the ultimate
guarantees of individual rights. In its historical uses, it has been used to
counter the tendency of such doctrines as popular sovereignty and legislative
supremacy to become arbitrary or tyrannical.
3. Judicial review. Various devices have been used in an effort to keep a con-
stitution's promises. These include popular will, separation of powers, and
legislation. In the modern world, however, constitutions increasingly look to
judicial review as a key means to enforce constitutional norms. John Mar-
shall's insights in Marbury v. Madison have become a familiar part of con-
stitutionalism around the world. One may well suggest that no American con-
tribution to constitutionalism has been more pervasive or important than this
one.
These ideas and principles are complemented by the practical experience of mak-
ing American democracy work. Many countries have entered the age of constitu-
tional democracy with little or no experience with such concepts as constitu-
tionalism, democracy, and the rule of law. For example, for a half century the coun-
tries within the sphere of Soviet domination lived in a domain cut off from any such
concepts. Thus American or other advisors can bring the fruits of hands-on experi-
ence in organizing political parties, conducting free and fair elections, nurturing a
free and responsible press, creating an independent judiciary, and instilling the val-
ues of citizenship through civic education.
Trines hist Sovern


74
Cold War resources. A trength need noression and to ma
upport in the many democracies a properly look to its solely from the cona
FACTORS BEARING ON THE PROSPECTS FOR CONSTITUTIONAL LIBERAL DEMOCRACY
It is not enough that a society be democratic. It must also be liberal and constitu-
tional. Democracy seeks to assure that government is based upon the consent of the
governed and is accountable to the people. But democracies should also be liberal,
that is, committed to individual rights and freedoms, to the Lockean principle that
the state depends on the individual, not the other way around. And democracies
must also be constitutional, that is, there must be means to assure the enforcement
of constitutional norms, even when that means negating a majoritarian judgment.
What are some of the factors bearing upon the prospects for the success of con-
stitutional liberal democracy? Each person might draw up his or her own list, and
one might debate the relative place and weight of each factor. But a list of factors
would likely include at least the following. Note that the list goes well beyond those
factors which can be incorporated into the text of a constitution.
1. A country should have sufficient military strength, as well as social and eco-
nomic stability, to counter foreign aggression and to guard against internal
subversion or unrest. Strength need not come, of course, solely from the coun-
try's own resources. A country may properly look to its allies, as, during the
Cold War, so many democracies (not just weak ones) counted on American
support in the event of Soviet aggression.
2. A vibrant constitutional culture often goes hand in hand with a healthy econ-
omy. I do not contend that, because countries are rich, they will necessarily
be constitutional democracies. There are countries rich in oil, for example,
which one would be slow to characterize as constitutional, liberal, or demo-
cratic. But it does seem fair to say that poor economic conditions often work
to undermine any hope for constitutional democracy.
mocracy.
3. There should be a political culture I would call it a constitutional culture -
which encourages the values of constitutionalism, liberalism, democracy, and
the rule of law. This implies a high level of literacy. But it also implies cir-
cumstances in which citizens have practiced the norms of cooperation, tolera-
tion, and forbearance associated with the fluctuating fortunes of causes, can-
didates, and parties. It means that those who lose an election turn the reigns
of power over to the winners. It means that those who find that a victory in
the legislative process is overturned on constitutional grounds by a court ac-
cept the principle of constitutional limits on government.
4. An open society, including free and responsible press and media, is the
handmaiden of constitutionalism and democracy. There should be the means
for open and effective communication both among the people and between
them and their government.
5. Civil society should flourish. Private organizations-political parties, trade
unions, interest groups, clubs, etc.—create an important buffer between the
individual and the state. Such organizations offer a place of refuge for those
who think that the politics of the moment are not in their favor. They offer
training grounds for the qualities which make for effective citizenship and
make possible the kind of collective voice and action which precludes the
state's monopoly of power.
6. States should be based on the civic, rather than ethnic or national, principle.
That is, all citizens should have equal standing in the society. There should
not be “insiders” and “outsiders.” If the state is not largely homogeneous in
terms of religion, language, ethnicity, or culture, then there needs to be a
widely felt commitment to toleration. To make constitutional liberal democ-
racy work, the people must have a level of mutual trust, and ability to cooper-
ate, rather than fragmenting into camps of hate and hostility.
Ultimately, history, culture, and circumstance will tell us much about the pros-
pects for constitutionalism, democracy, and the rule of law in any country. Those
who hope to see these values prosper in Iraq must understand Iraq itself—its peo-
ple, its history, its culture, Some factors characterize the region, for example, the
argument over the extent to which Islam is, or is not, ultimately compatible with
constitutional liberal democracy. Other factors flow from Iraq's own history, for ex-
ample, the question whether the parliamentary experience of he Hashemite years
before 1958 has any useful legacy, or whether the middle class has been sturdy
enough to survive the years of Saddani's repressions. Experts on Iraq will help in-
form these judgments. But those who would shape events in Iraq should also consult
the lessons to be learned from transitions from totalitarian or authoritarian regimes
elsewhere. The road to constitutionalism, democracy, and the rule of law takes one
through many lands.


75
Senator CORNYN. Thank you, Professor Howard.
Mr. Kritz.
STATEMENT OF NEIL KRITZ, DIRECTOR, RULE OF LAW PRO-
GRAM, U.S. INSTITUTE OF PEACE; ACCOMPANIED BY LOUIS
AUCOIN
Mr. KRITZ. Thank you, Mr. Chairman. Thank you for the invita-
tion. I am also obliged to note that the comments that I will give
are my own, and don't represent the views of the U.S. Government
or the U.S. Institute of Peace.
There are three vital and interrelated issues that are essential
to establishment of the rule of law in Iraq, one being the constitu-
tion-making process that we're focused on primarily today, a second
being the question of transitional justice, of how Iraqi society is
going to deal with questions of accountability and the legacy of the
crimes of the past regime, and the third being the broader chal-
lenge of legal reform within Iraq.
Each of these have the potential of being transformational for
Iraqi society in very fundamental ways. They each share in com-
mon as well the fact that they need to be started immediately, but
with the recognition that they are not short-term processes, and
adequate time needs to be allocated to allow them to move forward
properly.
Rushing or short-circuiting any of these exercises will be done
only to the detriment of the ultimate result. That relates to the
length of time that we need to remain committed to the process,
the overall costs, and the period of time that we maintain boots on
the ground in post-conflict societies like Iraq.
I would point as an example to our recent experience in Bosnia,
where 7 years after the Dayton Accords former British MP Paddy
Ashdown entered as High Representative in charge of moving the
process forward. His first comment was that the international com-
munity finally had to get serious about the rule of law in Bosnia,
or else the Dayton process could collapse like a house of cards. We
still have troops on the ground more than 8 years later, in part be-
cause we have not paid enough attention to these fundamental
processes we're discussing here today, and so I commend your at-
tention to this issue.
My comments with respect to the constitution-making process
emerge primarily from a 2-year study that the U.S. Institute of
Peace has undertaken on post-conflict constitution-making proc-
esses. Through case studies of some 17 countries over the last 25
years, the study has attempted to examine the ways that the con-
stitution-making process can be a means to advance national rec-
onciliation and the building of peace, or alternatively may become
an obstacle to not moving forward properly.
I'm accompanied here today by Professor Louis Aucoin of the In-
stitute staff, who has been coordinating the project at the Institute.
Major powerholders and elite factions are inevitably going to play
a major role in many post-conflict constitution-making process.
Part of the challenge is to constrain their ability to monopolize that
process. The final document should be more than simply a deal cut
to divide the spoils between powerful factions on the ground today.


76
There are two tools that I would point to in particular in that
regard. One is the notion of allowing adequate time for the process.
A rapid rough-shod process is going to be nothing more than that
simple deal between those who currently hold all the power. A
more extended and open process that allows a variety of other fac-
tions to evolve and participate can facilitate lively challenge and
debate within this exercise and be one important way of con-
straining the power of the few.
Another will be the adoption at the outset of the constitutional
process of a set of basic rules that will govern both the process as
well as at least the broad outlines of the substance of the ultimate
document. This would be the place to initially enshrine basic rec-
ognition of principles of tolerance, pluralism, gender equality, reli-
gious and ethnic equality, possibly certain limitations on the future
role of the military, and other basics, without predetermining the
constitutional document.
If done properly, this process can be a potent tool for the em-
powerment and enfranchisement of a broader base within society,
allowing a diverse variety of groups within civil society to emerge
and to develop their own capacity to play a role in the debate on
the future of Iraqi society. It would result in a diffusion of power
from the few to the many. It can provide, as well, an important
forum for various groups, particularly aggrieved groups within soci-
rticulate their visions and their concerns about the future
distribution of power.
It would provide opportunities through a basic framework that
creates a political space. One option in this regard is the use of an
interim constitution. I'm reminded always of sitting in the South
African constituent assembly, where an interim constitutional ar-
rangement provided the political space to allow everyone from the
Freedom Front on the far right to the Pan-African Congress on the
far left to sit and debate the emergency powers under the new con-
stitution in ways that they all told me afterwards would not have
been possible without this kind of an interim process, which we're
seeing emerge in an increasing number of cases.
A constitutional commission would be established that would -
have three basic functions. First, public education. This provides an
important opportunity to educate the public on these broad prin-
ciples noted earlier that should govern society in the future.
Second, and in a subsequent phase, a process of consultation of
the public on specific questions that need to be addressed in the
context of the constitution. This can provide various groups in soci-
ety with a sense of ownership and can contribute to subsequent
sustainability of the final product, as well as the potential for pres-
sure on the part of those owners if and when those who subse-
quently hold power fail to implement and uphold the constitution.
From Rwanda to Albania, we've seen this process taking hold in
important ways—in ways that, I would note, in some cases have
transformed even the members of the constitutional commissions
as they engage the public. They've changed their own opinions and
transformed from representatives of their own factions to a more
cohesive unit, looking at what makes sense for the future of the
country.


77
Last, I would point to the role of the international community in
this process. I would simply reiterate what has been said before.
There is an appropriate role for the international community, in-
cluding the United States, to play, but that's to provide neutral re-
sources with respect to experiences in other countries with respect
to basic constitutional principles without favoring any particular
faction and without, as we've seen in some instances, having inter-
national experts serve as hired guns for one faction or another, en-
hancing only their capacity.
This can be formalized. In the case of Eritrea, the constitutional
commission process included an international advisory committee
of experts that helped to inform the process. It will be important
that this include not only the U.S., but also those from other coun-
tries, because there is a rich body of experience that has emerged
from many of them in recent years, and it will be important for
Iraqis to be able to take advantage of that as well.
With that, thank you.
[The prepared statement of Mr. Kritz follows:)
PREPARED STATEMENT OF NEIL J. KRITZ
Introduction
In countries such as Iraq, a successful outcome requires a focus not only on the
final document which emerges, but on the path to producing and adopting it. In-
deed, the constitution-making process can be a transformational one for societies,
if properly organized and given adequate attention and resources. These are among
the lessons that emerge from an ongoing study that has been conducted over the
past two years by the United States Institute of Peace on “Constitution-Making,
Peace Building, and National Reconciliation,” Through an examination of seventeen
case studies of constitution-making processes around the world which have occurred
over the course of the last twenty five years, focusing primarily on post-conflict tran-
sitions, the study is attempting to assess the constitution-making process for its po-
tential for conflict resolution and prevention and for the maintenance of stable
peace. To date, this review by a wide range of experts strongly suggest a basic mes-
sage: perhaps more so than at any previous time in history, the process by which
constitutions are made matters.
Interim Arrangements
The constitutional process is often facilitated by the establishment of interim ar-
rangements. While this has taken a variety of forms, the essential characteristics
are the following: (1) the clarification of basic legal rules and governmental struc-
tures during the interim period, allowing society to move forward with a minimum
of disorder; (2) an interim framework that embodies sufficient changes from the
prior system to clearly demarcate a break from the past and to immediately remove
those elements that are clearly objectionable or repressive. The result can be an in-
terim constitutional framework that opens adequate political space to enable all par-
ties to participate and debate even hotly contentious constitutional issues in an at-
mosphere that guarantees their rights and interests pending the development of a
final constitution.
Most of the cases included in the USIP study have involved some type of interim
arrangement which has provided for some degree of stability during the period of
the constitution-making process. In some cases, (Rwanda, and Cambodia, e.g.), basic
stability was provided through a peace agreement. In other cases (Ethiopia and Eri-
trea), stability was created through a National Charter which provided for a basic
structure of government and the guarantee of human rights which would govern the
interim period while the Constitution was being created. In Eritrea, the Charter
also had the advantage of providing considerable detail of how the process was to
be conducted ruling on such questions as the creation of a Constitutional Commis-
sion and the election of a Constituent Assembly. In Poland a series of constitutional
amendments served this purpose, and the most important among them—that of Oc-
tober 17, 1992 was referred to as the small constitution. The process in Hungary
was similar in that interim arrangements were provided through constitutional
amendment. An alternative model would provide for adoption of the constitution,
sorder; 25 interim period, cation of basic leorms, the es


78
land exercise of intelative functionovided for somrs of public
with a constitutionally mandated review process—complete with the public partici-
pation component discussed below4following an interim period of three to five
years.
South Africa enacted a formal Interim Constitution which served these purposes
and set out a series of constitutional principles which were to guide the process. The
structure of the Constitution-making process was determined by the South Africans
themselves with minimal input from the international community. Prior to 1993,
private negotiations amongst the various political factions in South Africa were im-
portant. But by 1993, the parties had negotiated an Interim Constitution which set
out the basic ground rules for the process of adopting a permanent constitution and
provided for the basic functioning of a Government of National Unity throughout
the constitution-making period. Under the Interim Constitution, the final constitu-
tion was to be adopted by a Constituent Assembly on the basis of a two-thirds vote
and no constitutional commission was created. Election to the Assembly was super-
vised by an Independent Electoral Commission and governed by a proportional rep-
resentation list system laid out in the Interim Constitution. The Constituent Assem-
bly, in addition to drafting a permanent constitution for the country, would also
function as a parliament in the interim period. In addition, the Interim Constitution
in South Africa set out 32 substantive principles which had to be followed in the
drafting of the permanent constitution. Once the Constituent Assembly began to un-
dertake the process of constitution-making, it determined that a comprehensive pro-
gram of public participation was necessary. Public participation included publication
of debates, consultations at the village level, radio broadcasts of public education
material as well as key issues and large numbers of public submissions.
Most of these arrangements provided for some basic measures for the exercise of
executive and legislative functions. In a few of the cases, there was provision for
the exercise of interim judicial power to oversee the process. In South Africa, Po-
land, and Hungary, for example, the constitutional courts in those countries played
this kind of an oversight role in connection with the constitution-making process.
This role was particularly important in the South African context where the Interim
Constitution also endowed the Constitutional Court with the jurisdiction to deter-
mine whether the final draft of the permanent constitution complied with the prin-
ciples set out in the Interim Agreement. One draft was actually rejected by the Con-
stitutional Court as inconsistent with the constitutional principles which had been
established.
The interim arrangements are usually agreements formed amongst a broadly rep-
resentative group of elites and do not involve public participation. In the South Afri-
can case, the negotiations and settlement of the issues surrounding this initial stage
of the process at that stage were closed and secretive, apparently due to concern
over the high risk of violence at that stage. The constitution-making process has
generally tended to be more closed and elite driven in those cases where the risk
of violence is high; Cambodia serves as another example of this phenomenon.
Reducing the Monopoly of Power and Influence
While powerful elite factions will play a major role in any post-conflict constitu-
tion-making process, it is essential to reduce their monopolization of that process,
and to avoid a final constitution that simply reflects division of the spoils between
such factions. If the constitution and the process of its adoption are to play a role
in transforming society, then constraints on such monopoly of power need to be built
into the process.
One tool in this regard is allowing adequate time for the constitutional process.
A rapidly adopted constitution will generally only reflect a deal between the power-
ful. A more open and extended process provides an opportunity for other groups and
civil society in general to challenge and debate and influence the process: A second
element is the adoption at the outset of a set of basic rules that will govern both
the process of constitution-making and the substance of the ultimate document.
These may include, for example, tolerance, pluralism, human rights, the rule of law,
limited government, the role of the military constitutionally limited to defensive
functions, and gender, religious and ethnic equality. 1 Both of these steps serve to
1 Related to the notion of cardinal rules, there is a trend in modem constitutions to include
certain substantive features which are considered so sacrosanct as to be impossible to amend
under the terms of the Constitution. These features are sometimes referred to as “immutable
principles.” There does not seem to be as yet any consistency with respect to which principles
are thus considered to be immutable. In Germany, human rights and the federal nature of the
system are immutable, and in France, the republican form of government is immutable. In those
countries which have constitutional courts with jurisdiction to resolve disputes over issues of
constitutionality, the existence of these immutable principles raises the possibility that the court
may be called upon to rule on the constitutionality of a proposed constitutional amendment.


79
are vital to the r national diathe political rtunity for them and en
Which tes to beaking pralled up
constrain the ability of current power centers to drive the constitutional process in
the wrong direction, and would be advisable in the case of Iraq.
Public Participation and Ownership
There is a clearly emerging trend toward providing for more direct participation
by the population in the constitution-making process, in the form of civic education
and popular consultation. Some scholars are referring to this as “new constitu-
tionalism.” This trend seems to have begun and emerged particularly in Africa al-
though at this point in time it has also been employed in Latin America (Brazil and
Nicaragua) and Asia (East Timor and Fiji.) Rather than being crafted completely be-
hind closed doors by a small number of elites and handed down from on high, this
model enables the broader public to be engaged in the process. It can serve to em-
power a broader range of groups, including women and emerging civil society
groups, as examples, providing an opportunity for them to impact on the constitu-
tional process as well as on the political process. The constitutional process can pro-
vide a forum for national dialogue and education regarding issues and decisions that
are vital to the future direction of the country.
This model has typically involved the establishment of a Constitutional Commis-
sion as it did in Eritrea, Ethiopia, Ugandan, Kenya, Rwanda, Nicaragua, Brazil, and
Fiji. Typically the Constitutional Commission has three functions although the de-
lineation of those functions has not always been clear, and the lack of delineation
has contributed to the weakness of the process in some cases, see below.
In general, Commissions have been called upon to conduct civic education in con-
nection with the constitution-making process, to consult the population on the ques-
tions which it determines to be key to the process, and then to compile a draft of
the Constitution which takes that consultation into account and which also synthe-
sizes other drafts and submissions from political parties, individuals, and NGO's.
This tends to diffuse the focus on individual drafts which can otherwise detract from
the democracy of the process when ready-made drafts are submitted in the early
stages of the process by powerful parties or individuals.
These Constitutional Commissions have usually been appointed by the executive
or elected or appointed by a Constituent Assembly. In this new emerging model for
constitution-making, it is important that such bodies, while relatively small in size,
be fairly representative of the various political parties and religious, racial and eth-
nic groups within the society. Where the constitution-making process has been suffi-
ciently deliberative and has entailed broad public consultation, an intriguing result
has repeatedly been the transformation of the members of a Constitutional Commis-
sion from serving primarily as advocates for their respective interest group into a
more cohesive group with a greater focus on the needs of the whole society.
Constitution-making is a deliberative process, and especially when integrating the
public participation model, needs to be given adequate time. It is a mistake to at-
tempt to short-circuit this process. For example, in some cases, Commissions have
tried to conduct civic education and popular consultation all in one phase. It is
strongly urged that these generally be treated as two distinct phases of the process.
The public education phase provides an important vehicle to broadly disseminate to
the public information regarding the constitution and the constitutional process, and
information on the basic themes—that should inform the new constitutional frame-
work. In various places, this has served as a stimulus to civil society groups to orga-
nize public discussions on these issues. Through this process, long before adoption
of any final constitution, the process can begin to diffuse power within the society
and facilitate democratization, rather than leaving it all in the hands of those few
with their hands on the levers of power.
In East Timor and Fiji, the public education and consultation phases were essen-
tially conflated, arguably weakening the effectiveness of each. South Africa, Eritrea,
and Rwanda are more successful examples of this aspect of the process. In those
processes, a carefully planned program of civic education was conducted so as to
educate the population on the role of a constitution in society generally and as to
their role in the process. Also, it was during the program of civic education that the
determination was made as to what questions were the most important for the pop-
ulation. In Rwanda and Eritrea, the population was then consulted for their re-
sponse on these questions. Over the course of the Rwandan constitutional process,
it is worth noting, the opinions of the Constitutional Commission were revised in
light of the popular consultations. Albania also provides a very useful model of a
robust and well-organized public education and consultation process, which has ar-
guably strengthened the drive toward democratization in that country.
During the public consultation phase, the Constitutional Commission should
present to the population a series of specific key questions and issues regarding the
constitution. An adequate budget and resources are needed to enable the Commis-
nds on thFiji, the pubing the effecti" this
nda are more planned programa constitu
am ofety gen
were


80
sion to hold sessions throughout the country, elicit the views of the public and com-
pile and receive responses. This process not only provides the public with a sense
of ownership over the future constitution; it also often provides ideas and insights
to the Commission that may prove extremely valuable to the subsequent drafting
of the constitutions have clearly showilliteracy has prove.commission
at the sophistication of the views expressum
The case studies have clearly shown that the challenge of conducting these proc-
esses in the context of a high rate of illiteracy has proven to be much less significant
than some would imagine. Members of constitutional commissions have been fre-
quently amazed at the sophistication of the views expressed by their illiterate popu-
lation once they understood the issues and were able to form their own opinions
about them. In addition, a great deal has been learned about how to conduct these
processes with art illiterate population. The message has been passed in several of
these societies through the use of radio, cartoons, traveling theatrical presentations,
etc.
The synthesis of the results of the popular consultation into the constitutional
draft has been a challenge in certain cases, and requires proper planning. In East
Timor, for example, the Constituent Assembly focused on a draft prepared by the
dominant political party that ignored the results of the popular consultation. Brazil
is another example where the popular consultation failed at this stage. In that case
the popular consultation had been massive but poorly organized. The task of synthe-
sizing the results was then assigned to one man. Consequently, he was ultimately
unable to absorb and synthesize the results of the popular contribution in the devel-
opment of the final draft.
It is also important to note that the process of civic education and popular con-
sultation takes time. Some countries conducting these processes have tried to rush
them. This was the case in East Timor, where the process was to take one month;
a year later when the process was seen to have failed, the Constituent Assembly
launched a second effort at public consultation, but allocated only one week for the
exercise. This is currently a potential problem in Afghanistan is well. An effective
public education and consultation process will take at least a year, and some coun-
tries have spent as much as three years on this aspect of the process.
Democratic Representation
In addition to public participation, an important factor for the ultimate legitimacy
of the constitution and the stability of the system it establishes is democratic rep-
resentation in the body that receives the Commission draft. This is often a Con-
stituent Assembly that debates and revises the Commission draft and adopts the
Constitution.
The case studies suggest that a broadly representative Constituent Assembly is
more likely to adopt a constitution which is characterized as legitimate and to estab-
lish a political system which will prove to be stable. When there is broad democratic
representation, there is a greater likelihood that all aggrieved parties will have an
opportunity to express their views on key constitutional issues of importance to
them, and perhaps more importantly, there is a greater likelihood that their views
will be taken into consideration in the drafting of the final document. Where this
is the case, the Constitution can serve to resolve conflict and provide mechanisms
and reliable institutions for peaceful resolution of conflicts in the future.
The biggest problem that arises in this connection is the dominance of a single
political party, and this problem has been encountered in many of the cases studied.
It is a factor which frequently detracts from the democracy of the process and serves
to block the resolution of issues which are important to minority groups who have
historically felt aggrieved.
For this reason, frequently a great deal of thought is given to the choice of the
electoral systems which will govern democratic representation, and very often an
Electoral Commission is established to oversee the elections of the Constituent As-
sembly and to resolve conflicts which may arise in this connection.
A problem which frequently occurs in connection with the dominance of a par-
ticular party is the establishment of a constitutional draft early in the process which
becomes the focus of all debate and discussion. This problem was observed recently
in East Timor, for example, where the Fretilin party developed a proposed draft
even before the constitution-making process was formally initiated. The disadvan-
tage which stems from the early establishment of drafts by powerful parties or indi-
viduals is that debate then tends to focus on the power to be accorded to that group
or individual rather than on the issues that the draft addresses. This phenomenon
serves to make the process generally less democratic.
One way to combat this problem is to establish a Constitutional Commission
charged with the functions described above in the section on the right to participate.
In that case, the Commission can serve as the recipient of all drafts and other sub-
contation expa more derati can see res


81
revealed anyes studied, these, and in sevica, Cambodied
sivas ratifar referreferentench studiere traceppear
mave dere
haneficial, and in some cases, crucial w
The role which is meand drafted ve served as a
missions from all parties and individuals. The Commission can then take those
drafts and submissions into consideration along with the results of the popular con-
sultation. They can then synthesize all of the elements in the final draft which they
then prepare for submission to the Constituent Assembly for debate. This kind of
a system can diffuse the power associated with any particular individual or group
and provide an opportunity to all of the various groups in the society to express
their views on constitutional issues.
Ratification
The case studies have not revealed any particularly uniform method for ratifica-
tion of a Constitution. In many of the cases studied, the Constitution has been rati-
fied by a Constituent Assembly elected for that purpose, and in several cases the
Constitution had to be adopted by a 43 vote of that body. South Africa, Cambodia,
and East Timor are examples. In other cases, the Constitution has been ratified
simply by the parliament (Fiji, for example), in one case, Columbia, the Constitution
was ratified by Presidential decree, and in Rwanda, the Constitution was ratified
by popular referendum. It is interesting to note that there is a tradition of ratifica-
tion by popular referendum in those countries, like Rwanda and earlier Iraq, which
are influenced by the French Constitutional tradition.
However, none of the case studies has suggested any problems relating to legit-
imacy of the Constitution that can be traced to the method chosen for ratification.
They suggest that questions of legitimacy appear to be more related to the education
of the population and their participation in the process, as discussed above.
The Role of the International Community
At the outset, it is important to note that the role of the international community
has been essential in many constitution-making exercises. For example, some of the
programs of civic education and popular consultation which are described above
could not have been conducted without the contribution of valuable resources from
the international community. In addition, in virtually all of the cases studied, inter-
national constitutional experts have served as a valuable human resource to locals
who have developed and drafted constitutions. The international community can
play a role which is beneficial, and in some cases, crucial to the process.
The international community's involvement in constitutional processes has not al-
ways been without problems. For example, the role of the international community
has been criticized in some cases for favoring one political party over others. When
one party is allowed to dominate the process, there is a significant risk that ag-
grieved parties in a conflict will not have the opportunity to air their grievances and
secure concessions in the constitution-making process which could serve to reduce
the potential for future conflict. The problem is exacerbated when the international
community lends its support to such a party.
The international community often engages in this kind of favoritism out of prac-
tical and temporal concerns. In general, their view is that it is perhaps most expe-
dient to develop good working relations with the party which will obviously hold the
power once the process is completed. In addition, there is the view that support of
that party could shorten the process by accelerating an outcome which is seen as
a forgone conclusion. This approach could, however, prove to be very short sighted
in that, it could, as noted leave the embers of conflict smoldering.
This concern is related to another potential problem associated with the role of
the international community in constitution-making processes—the issue of its in-
fluence on the timing of the process. The assistance of the international community
to constitution-making is usually part of a larger program of rule of law assistance
which is very demanding in terms of both human and financial resources. For this
reason, the international community has frequently sought to expedite the process,
and some have taken the view that this time pressure has served to short circuit
the process in some cases. In Cambodia, for example, the Paris Peace Accords of
1991 provided that the constitution-making process should be completed in a period
of ninety days. Analysts of this process have unanimously taken the view that this
period was clearly too short, particularly given the lack of human resources result-
ing from the Cambodian genocide and the impossibility generally of conducting an
effective process under such time constraints in the most ideal of circumstances.
Some authorities have suggested that the rushed nature of the process contributed
to the weakness of the system created under the Constitution of 1993, and the coup
d'etat of 1997 has lent credence to that view.
Finally, while, as noted, the role of the international experts has been by and
large extremely beneficial to the constitution-making processes studied, there have
been instances where the contribution of certain individual experts has served to
make the process less democratic. For example, in Cambodia while the process was
eb
d'etat of 1997 has ithe system created the rushed nature of the


82
stheent shoobust PF Iraqi
unfolding in 1993 King Sihanouk commissioned a French expert to prepare his draft
of the constitution. From the moment that draft was prepared, it then became more
difficult for others participating in the process to make their views heard or to pro-
pose alternatives since from then on there was a tendency to reduce all issues to
the question of whether the alternatives were consistent with the King's draft. (The
problem associated with the development of drafts early in the process is more fully
discussed earlier.) The study has shown that the role of foreign experts has been
most constructive when they have served as a neutral resource offering guidance to
locals by elucidating the pros and cons of particular substantive issues, frequently
through comparative analysis of how constitutional issues have been handled in
other countries. This kind of a role encourages debate of issues amongst the locals
who will ultimately be the ones who will make the substantive choices. The making
of informed choices by locals will serve to increase their sense of ownership of the
constitution and contribute to its legitimacy in the long run. In Eritrea, an advisory
body composed of foreign experts was created to assist the Eritrearts in this way.
Summary and Recommendations
The international community should encourage the Iraqis to take the time
which is needed to conduct the process taking into consideration the time which
will be required to engage in meaningful civic education and popular consulta-
tion.
Basic rules governing the constitution-making process and the drafting of the
final constitutional document should be established at the outset of the process.
These rules should mandate a robust process of public engagement and should
enshrine fundamental rights in the new Iraqi society.
The case studies suggest that Iraq should follow the new model of constitu-
tionalism which is emerging in recent constitution-making exercises by taking
steps to ensure that meaningful civic education and popular consultation are
conducted. In order to accomplish this goal, a Constitutional Commission should
be appointed which is broadly representative of all of the political, religious, and
ethnic factions within the society. This Commission could be appointed by the
interim authority in Iraq as long as it is thus broadly representative of the soci-
ety.
The Constitutional Commission should conduct its work in three separate
phases. It should first engage in a program of civic education which informs the
population of the role of the constitution in the society and lets its people know
what will be expected of them during the popular consultation phase. During
this phase, the Commission should be taking note of the values and issues
which the society considers to be of paramount importance and should be com-
piling a list of specific questions which should be put to the population during
the popular consultation phase.
In the second phase, the Commission should conduct consultations based upon
specific questions, and these consultations should take place in every area of the
country in both rural and urban settings. The Commission should also receive
submissions and proposed drafts from political parties, individuals and NGO's.
In the third phase of its work, the Commission should develop. a draft which
synthesizes the results of the popular consultation and the other submissions.
The interim authority should develop an electoral law which should establish
the electoral system which should be used in the election of a Constituent As-
sembly and which will provide for the establishment of a broadly representative
Electoral Commission which will supervise the election and resolve disputes
which arise during the election.
The Constituent Assembly should carefully consider and debate every article in
the draft proposed by the Constitutional Commission. It should be empowered
in the electoral law to adopt the Constitution by a two thirds vote of the Assem-
bly.
It would be useful for the international community to provide detailed advice
to the Iraqis on the development of the constitution-making process. As noted
above, in the past foreign experts have focused almost exclusively on issues of
substance. In a place like Iraq, locals could greatly benefit from an analysis of
lessons learned from other processes which could serve to ensure the legitimacy
of the Constitution and the stability of the political system it creates.
International experts should serve as a resource and should avoid acting as a
"hired gun” for particular parties or groups within Iraq. They should offer com-
parative observations based on their knowledge of how particular constitutional
issues have been dealt with in other countries.


83
The international community should avoid supporting one group or political
party over another.
Senator CORNYN. Thank you very much. I just have a couple of
questions. To start with, Dr. Kommers, the issue of de-
Ba'athification arose with the first panel, and I know after World
War II in Germany there was a de-Nazification effort. Can yo
haps tell us whether you think that experience should enlighten us
today on the de-Ba'athification process, and specifically if people
are excluded from society, or from holding government jobs, what
that portends for a successful democracy?
Dr. KOMMERS. Yes, there was a major de-Nazification program in
Germany. However, as I think somebody suggested from the pre-
vious panel, the members of the Nazi Party came in various
stripes. At the worst end, of course, you had the criminals, and
those who had been guilty of criminal activity for the most part
were barred from public office and from all positions of responsi-
bility in post war Germany.
As was said before in connection with the Ba'ath Party there
were thousands of people who belonged to the Nazi Party, but who
joined the party simply, for example, to retain their jobs in the gov-
ernment bureaucracy, which of course was extremely large, as it is
today, and by the way, the same process took place in East Ger-
many.
Almost all East German communists who were high in the eche-
lons of the Socialist Unity Party, the Communist Party
charged or removed from office. These included political officials,
teachers, judges, and civil servants. But those people who could
show that they were not associated with the crimes of the regime
were allowed to retain or reclaim their positions. This was a good
policy because it contributed to some degree of trust and it also
contributed to the stability, such as it was, in East Germany imme-
diately after reunification, in the 2 or 3 years after reunification,
and I think the same was true of the post-Nazi period.
The lower level Nazi officials who really were not ideologically
committed to the regime, and there were many, although that's dis-
puted, if they had been left out of account, I think it would have
created a good deal of unhappiness and distrust in Germany, and
then finally the Americans, as well as the British and the French,
realized that many of these officials were absolutely necessary if
the government was to be adequately staffed and reconstructed.
Senator CORNYN. Thank you.
Professor Agawa, when your people question where democracy
and Islam can coexist, I think about the seismic cultural change in
Japan post-World War II, particularly with regard to the role of the
Emperor, and I wonder if you might enlighten us a little bit in
terms of the role of the Emperor in Japan pre-World War II and
through the war, and how that changed during the course of the
constitution of Japan.
Mr. AGAWA. In talking about the Japanese constitution in 1946,
as I said, the question as to how to treat the Emperor in that con-
stitution was a major issue at the time. We have to remember that
the Emperor tradition goes back to the third century or fourth cen-
tury, and the Emperor is much older than any constitutional sys-
tem we know, and when the Americans proposed that the Emperor
ation, in the
post-Nazi period; ideologically


84
be just a mere symbol of the unity of the people, the sovereignty
resides with the people, and that any power that the Emperor has
is derived from the people's sovereignty, the Japanese people, par-
ticularly the conservative government element really strongly re-
sisted that.
However, actually, then they later found out that the tradition
of the Emperor, going back to the 9th, 17th, and even oldest period,
the Emperor was really just a spiritual symbol, and the Emperor
being a militaristic superpower was only an adaption of the so-
called Prussian German notion of Kaiser during the late 19th cen-
tury, and particularly during the thirties.
So therefore in a very interesting way the notion of a democratic
Emperor suited the older tradition of Japanese history, and I think
that in that way the 1946 constitutional notion of spiritual symbol
of Japan has worked remarkably well, so I think in that respect
General MacArthur was very wise in bringing up that notion, and
modeled after that partly on I think the British way of reigning but
not ruling monarchy.
Senator CORNYN. Professor Howard, I was interested in your
comments in this vein. We are very cognizant, and there is almost
universal agreement that the coalition should not impose our views
on the Iraqi people, it must be something of their choosing, yet you
talked about the importation of values, and indeed it seems to me
that the failure of any Iraqi constitution to respect certain basic
values would be dangerous to the Iraqi people, in other words, if
there is not respect for freedom of the press, free exercise of reli-
gion, sovereignty of the people and those sorts of things. Could you
address that?
It seems to me like we are defensive in not wanting to impose
something, and yet if they don't embrace some of those certain val-
ues which I think are pretty universal in a civilized world now, not
just America, it could indeed perpetuate a police state, or set up
a situation where another Saddam could rise to power.
have thoughts?
Mr. HOWARD. I think that's a core question. It seems to me that
we must accept the proposition, which has been widely accepted at
these two panels, that of course the Iraqi people must be at the
core of the enterprise. I mean, they must be the ones who make,
devise, institute, implement the constitution. We all understand
that, but I think one need not be defensive about saying that there
are certain values which transcend national boundaries.
We've had so much experience-Neil Kritz and his associates and
a number of other people have stu
e have studied much of this experience, es-
pecially in the years since World War II. I would hazard that a ma-
jority of the constitutions of the world have been written in the last
25 or 30 years. There's really been no period like it since the Amer-
ican founding period, or perhaps the period after World Wars I and
II. There is ample opportunity for seeing whether, indeed, there is
common ground among constitution-makers.
This approach is not unlike the effort of Enlightenment thinkers
in the 18th century, Voltaire, Condorcet, Turgot, and others, who
argued that there was what Condorcet called a “common core of
human happiness.” One should take account of national dif-
ferences; no two peoples are alike. Yet when one strips away those


85
national differences, there are certain human aspirations and appe-
tites, pains and pleasures, which make us all human beings. That,
it seems to me, is the heart and soul of the modern human rights
movement.
In Vienna, a few years ago, there was a meeting at the United
Nations that came together to talk about the meaning of human
rights. There was a handful of nations who objected to the enter-
prise, nations like China and Burma. I had the impression that
those nations had not consulted their people as to whether there
was such a thing as human rights.
So I, for one, am willing to begin with a certain a priori assump-
tion that there are certain rights that people ought to have as a
matter of principle, and that constitution-makers, no matter who
they are, ought to address those rights.
I would perhaps distinguish between what we call bills of rights,
where you lay out the rights of individuals, and the structural side
of government, the frame of government. Surely there's a much
wider room for debate shall the system be parliamentary or Presi-
dential, shall we have an American-style Supreme Court or a Ger-
man-style constitutional court? If there's a president, shall he or
she be a figurehead or a president with some power like France or
the United States?
There are many models from which to choose from, it seems to
me. Even as to structure, however, there are some presumptive
basic qualities. I mentioned them in my remarks-norms like sepa-
ration of powers, checks and balances, judicial review or other en-
forceability of the constitution. All of these are working models.
What one does then is take stock of how different countries have
used them and hope that, perhaps doing a little nudging, that the
Iraqis, when they finally write their constitution, will properly
have taken stock of that experience.
Senator CORNYN. Thank you. Senator Chafee.
Senator CHAFEE. Thank you very much, Senator.
Professor Kommers, you mentioned that the German constitu-
tional basic law has been a model, if I heard you right, for 60 or
65 countries, and rather strong on that as perhaps applicable to
Iraq. Are any of those 60 or 65 countries that have any similarity
to Iraq? I don't know which 60 or 65, if I heard you right, they are.
Dr. KOMMERS. Well, most of the Eastern European constitutions
were revised at last partially on the German model. The same is
true of South Africa's constitution, and the Spanish constitution,
the Portuguese constitution, a couple of the new constitutions in
Latin America, but I can't think of—well, maybe Bosnia, Bosnia-
Herzegovina, where you have tribalism and religious radicalism
being present pretty much as in the case of Iraq, and I'm really not
sure how well those constitutions are working. I suspect that they
are not working as well as the drafters of those constitutions want-
ed them to work.
Maybe along the same lines, Mr. Chafee, I might mention an-
other reason why I think the German constitution has been so suc-
cessful which may have lessons for Iraq, and that is this. The main
parties in the German constitutional convention represented the
three major democratic traditions in the history of Germany. There
was the Christian Democratic, the socialist tradition, and the lib-


87
Senator FEINGOLD. Let me followup with you. I think one of the
themes emerging from this hearing is that when we're talking
about drafting a constitution, process is just as important as con-
tent. We've heard a bit about the historical experiences of Japan
and Germany, which are obviously important, but as you've men-
tioned, you've had experience with the more recent transitions in
Bosnia, Cambodia, Rwanda, Sierra Leone, Guatemala and else-
where. Based on your experience with these other countries, what
would you say were the most important process issues we should
be keeping in mind?
Mr. KRITZ. Well, as I indicated, Senator, one of the most impor-
tant issues with respect to process is the guarantee of public par-
ticipation and ownership of the process. The constitutional process,
if it's going to be viable and create a reconciled and stable Iraq for
the future, can't be a process of a few elites crafting a constitution
behind closed doors and handing it down like tablets from Sinai.
This needs to be a process that really engages the people. It
needs to be a process that includes several stages, including the
initial process of articulation of basic principles. I would suggest,
by the way, Senator Cornyn, that that notion of essential values is
ensconced in several recent constitutional processes in the context
of international human rights. This has been done recently in Af-
ghanistan, as it has been done in other cases, and establishes a
commitment that the country in its transition and its constitutional
process is obliged to adhere to current international human rights
norms. This helps ensure that the kinds of values and the protec-
tion of rights that we're talking about are obligatory on that proc-
ess.
A constitutional commission should ideally be a representative
body that would include respected and credible scholars from var-
ious key groups within society. It would engage first in public edu-
cation on these principles, in consultation with respect to the
public's ideas on basic questions, allowing them to engage in the
debate, and only then in the drafting of a document.
One of the things that we've seen in a handful of cases is the im-
mediate tabling of a document, frequently one that's been drafted
by one dominant party in the process, and that immediately skews
the entire constitutional process which follows. We've seen that in
Cambodia; we've seen it to some extent in East Timor more re-
cently. It makes it harder for that fuller democratic process to
ensue. It makes more sense later on for the constitutional commis-
sion, based on its consultations and based on its input both from
outside and inside the country to begin that process of crafting a
document, which would then be submitted either to a popular ref-
erendum and/or to a constituent assembly for final revisions and
adoption.
Senator FEINGOLD. Finally, Mr. Kritz, one of the biggest concerns
in Iraq will be the creation of a criminal justice system that the
Iraqi people perceive is fair and evenhanded. What are some of the
problems that you see in places like East Timor and Kosovo with
establishing new courts and police forces, where many of the people
employed in the new criminal justice system are the same people
who held the position before the change in government took place?


88
Mr. KRITZ. Senator, there would, of course, initially need to be,
as has been discussed, this process of vetting those personnel who
may populate the new system. I would mention, by the way, that
the Institute of Peace, based on experience in a number of prior
transitions, provided to the NSC Working Group on Iraq back in
January a set of guidelines for the vetting process. I'd be pleased
to provide a copy of that memo for the record, if you desire.
It will be necessary, as I say, initially to screen out many of the
people who are currently in the system. That doesn't mean, in the
Iraqi context, that everyone is discredited. Far from it. Within the
police force, as the Iraqi Special Forces, Interior and others as-
sumed greater power over the years under Saddam, the regular po-
lice forces actually became increasingly isolated, and that meant
that they were not playing the dominant role in day-to-day abuses
of the regime.
As a consequence, as I think the coalition forces have recognized,
many of those police officers actually can be retrained and placed
on the force. They will, however, need significant international as-
sistance. One of the things that we're seeing today is the difficulty
and the time-consuming process for the coalition forces of recruit-
ing civilian police advisors from various allied countries in signifi-
cant enough numbers to actually spread around a country of this
size, and to reestablish the police forces.
Within the courts as well, many of the judges need retraining,
but again, to the extent that they were not part of the security
court apparatus, have the ability and the credibility to remain on
the bench, with that retraining.
One of the lessons that has emerged from many of the cases of
prior transitions over the last couple of decades is simply the need
to recognize that this is going to take a long time. Recreating a
legal culture, changing the way courts and police and prison offi-
cials function is not going to happen in 6 months or a year. It's
going to take a number of years.
It's going to take substantial resources for training. It's going to
take substantial resources for oversight and monitoring. It will
probably require the insertion of international advisors, if not in an
executive authority fashion as we've seen in Kosovo and East
Timor, then at a minimum at the courts, at the police stations, at
the prisons, with the ability to oversee and keep an eye and inform
the process as it goes forward.
The last point that I would mention is the imperative of dealing
with the question of the major crimes of the past regime. The en-
tire process of re-standing up their criminal justice system won't
have credibility in the eyes of the Iraqi people if this issue isn't ad-
dressed as well, and on this last point, it will require several tiers
of activity:
The major war crimes cases, I would submit, can only be under-
taken with substantial international involvement and participation
in a special tribunal for major crimes. Whether that's a hybrid tri-
bunal that includes both Iraqis and outsiders—and I would advo-
cate that over any kind of a wholly internationalized process, again
for the reasons of ownership we've discussed—that will only touch
the tip of the iceberg. Separate from major crimes under inter-
national law, like crimes against humanity, there will be large


89
numbers of cases that will be heard for regular crimes in the Iraqi
ninal courts, and those will need to be monitored carefully.
Last, in addition to the vetting and trials, there is arguably a
role for the truth and reconciliation process that was mentioned in
the prior panel. This can allow a larger number of Iraqis to deal
with these abuses in ways that the courts will never be able to, and
to come together, as was done in South Africa and elsewhere, to ex-
amine how these things happened, and to develop a blueprint for
what kinds of responses are appropriate—both in terms of penal-
izing and memorializing the past as well as in terms of steps for
the future to build a structure in which these abuses cannot recur.
Senator FEINGOLD. I thank the panel. I thank both the chairmen
very much.
Senator CORNYN. Thank you, Senator Feingold. Senator Chafee,
do you have any further questions?
Miraculously we were able to complete our second panel without
being interrupted for votes. That probably means a late night for
us, but that's all right. At least we were able to get through the
testimony of the witnesses.
I want to thank the members of the second panel, as I did the
first, for your testimony both oral and in writing, your written
statements. I think today's hearing has helped fill a very signifi-
cant void, and hopefully we'll begin a certain conversation that I
think needs to take place about this very important subject, one
that will hopefully give democracy an opportunity to begin, once we
secure the countryside and establish the rule of law and some inde-
pendent judiciary, but this has been a very important contribution
to that effort. I want to congratulate and thank each one of you.
I want to thank certainly the chairman of my full committee,
Senator Hatch, and obviously the chairman of the Senate Foreign
Relations Committee, on which both Senator Feingold and Senator
Chafee serve, for their help. I want to tell Senator Chafee and Sen-
ator Feingold how much I appreciate their cooperation, as well as
that of their staff. As always, it's the staff that does all the heavy
lifting, and I want to express publicly my appreciation to all of our
staff for the good work that they've done to make today's hearing
possible.
Finally, let me just close by saying that again, if there's any
other documents that anyone would like to make part of the record,
we'll leave the record open till July 2, and it could be that members
of the panel, even those who were not able to be here physically
today, would like to submit additional questions in writing, and I
hope you would be open to that.
With that, let me say thank you very much, and the hearing is
now adjourned.
[Whereupon, at 4:39 p.m., the hearing was adjourned.]





93
invengeful acts irrespective
bice shall be uniformly enfonst be emphasized that the
the offer is accepted, the testimony shall be heard and the accused shall re-
tain his/her status until a verdict is reached in the case.
2. If the accused does not present a complete, truthful account, he/she shall lose
his/her right to amnesty by decision of the criminal court.
3. If the court finds that the account presented by the accused offered the am-
nesty is complete and truthful, it will cease all criminal proceedings and re-
lease said accused pursuant to the terms of the amnesty.
Tenets of the Islamic law may also be used in this connection, especially those
that allow the victim or the victim's relatives to forfeit their rights against the per-
petrator upon reconciliation, in an act of Forgiveness.
However, it must be made clear to all Iraqis that the law shall be firmly and se-
verely applied against those who resort to score-settling or vengeful acts irrespective
of their status. The point must be emphasized that the principles of transitional jus-
tice shall be uniformly enforced against offenders in fair trials where the deserving
parties shall be justly compensated for damages.
b. Truth Committees
There is a strong link between truth and reconciliation committees and the quali-
fied amnesty of certain crimes to be later defined.
The truth and reconciliation committees are set up and their functions are defined
by order of a judicial council. They are to do everything necessary to reveal the
truth with regard to abuses that do not amount to international or major crimes.
These lesser abuses may be so numerous that they cannot be prosecuted by courts
of law. (A case in point is Rwanda where more than 400,000 people were implicated
in such abuses, and their prosecution would have taken hundreds of years.) The
measures in question would involve admission of guilt. That is why the aim of these
committees is to arrive at the truth and consequently at the higher objective of rec-
onciliation.
For the truth committees to attain their goals, they need to do the following:
1. Investigate claims formally and publicly reveal the truth about past human
rights violations and the individuals involved.
2. Contribute to justice by imposing sentences other than deprivation of liberty,
including amnesty for crimes covered by such a move, compensation for dam-
ages. In the event the case involves crimes beyond its jurisdiction or there is
a breach of amnesty conditions, it shall refer the case to the criminal inves-
tigation committees which in turn may send the accused to a court of com-
petent jurisdiction.
3. Induce confessions of responsibility and guilt. Reconciliation and amnesty is
thus not tantamount to acquittal.
4. Involve and satisfy the concerns of victims, achieve reconciliation and re-
nounce vengeance, vendettas and violence.
5. Link amnesty to the work of truth committees in bringing about reconcili-
ation. Amnesty shall not extend to those who do not confess responsibility for
abuses and publicly apologize for their misdeeds. This is similar to what oc-
curred in South African
Decisions of these committees must be subject to appeal. The truth committees
should also have the power to take such decisions in addition to imposing sentences
not involving imprisonment.
In each Appeals Court District, one or more truth and reconciliation committees
may be set up as required. They are to comprise three members headed by a judicial
officer. The members must be qualified and known for their integrity and good rep-
utation in the community.
c. Reconciliation Mechanisms
To bring about reconciliation and to encourage people toward acceptance, toler-
ance and compassion rather than vengeance, structures must be in place that are
in accord with local traditions, customs and norms.
The reconciliation project is important and its objective is to promote a favourable
climate for normal life in a society that has been stunted by dictatorship. It is de-
signed to help society move forward towards stability and democratic trans-
formation.
A large number of people will likely be implicated in abuses due to the nature
of Saddam's contradictory and complex policies which required individuals to dem-
onstrate their loyalty to the regime by transgressing on the rights of others. To pun-
ish this huge number of abuses, assuming the necessary possibilities are available


94
to do that, is to risk undermining the existing social and economic set-up threat-
ening the state itself. This is why the work undertaken in implementing the transi-
tional justice and reconciliation project is so essential. It, therefore, requires tech-
nically oriented individuals who are committed to a pluralistic, democratic society
which respects the rule of law.
The main objectives in a reconciliation process that can assure the uniform dis-
pensation of justice and set the foundation for the rule of law are:
1. Build confidence in the new administration and cooperation with it. This may
be realized through the following:
Granting special priority to the issue of compensation. Fair and just
compensation should be granted to victims without discrimination. Failing
to do so will invite resentment, protest and eventually rebellion if the issue
is manipulated by opponents of the new administration. Moreover, a fair
settlement of this issue will help victims overcome their vengeful impulses
towards the perpetrators and their relatives. Compensation is a pivotal ele-
ment of reconciliation.
Raising the standard of living for civil servants. Conditions for living
a decent life have been denied Iraqis under Saddam's regime. A nation-wide
drive will be required to raise the standard of living, particularly of civil
servants, as a guard against social corruption, thereby attacking its eco-
nomic causes. This will help maintain self-interests within the accepted
moral norms and remove any contradiction between private and public in-
terests.
Establishing legal safeguards to deter the new administration from im-
posing restrictions on individual freedoms. To rule out any form of
authoritarianism in a post-Saddam Iraq, institutions and structures with
appropriate checks and balances must be in place. Above all is the require-
ment for an independent judiciary. The more independent the judiciary is,
the more just and effective it will be.
2. Highlight those tenets of Islamic law (Shari'a) that emphasize virtue, toler-
ance and forgiveness. Use may be made of early Islamic experiences which
applied the principles of piety, justice, honesty, tolerance and respect for dif-
ferences rather than ethnic, sectarian, religious, class or clan discrimination
as practiced by Saddam's regime and the Ba'ath party. People need to be re-
minded that Islam could not have built a vast empire in its heyday if it had
not espoused justice and virtue as its foundation. This policy will effectively
contribute to preventing score-settling and vendettas in the wake of regime
change.
3. Make use of traditional conventions and structures like tribal values to main-
tain order and ward off anarchy in the interests of reconciliation. This is de-
spite the fact that these tribal values were encouraged by prior repressive re-
gimes, nonetheless, they need to be acknowledged in the transition to a plu-
ralist system and may even be a useful vehicle for enfranchisement of other-
wise disenfranchised individuals or groups.
d. Prosecution
Holding Saddam Hussein and his cohorts responsible for their crimes against the
Iraqi people requires prosecution under Iraqi penal codes. The salient issues in this
regard are:
(i) Legal Basis for Prosecution
How to serve out arrest warrants.
How to conduct the investigation and file charges.
How to address the question of immunity granted to Iraqi officials under the
existing constitution.
(ii) Court Structure
Which courts shall hear which types of cases?
(i) Legal Basis for Prosecution
Iraqi law No. 23, 1971 of the Criminal Procedure Code sets forth the nature of
the proceedings relevant to criminal cases. Article 1 states that it is permissible to
set a criminal case in motion by an oral or written complaint presented to an inves-
tigative judge, a prosecutor or a competent official at a police station. Such a case
can also be initiated by an “Information” presented to the public prosecutor. On the
basis of this Information, an investigation is opened. The investigative judge shall
heless, tay eve duals


95
take such necessary steps as issuing a summons, search warrants and arrest war-
rants against the suspect(s). In the case of arrest warrants, the accused shall be de-
scribed in detail by name, title, identification (card/number), physical description,
place of residence, occupation, the type of alleged offense, the relevant penal code
and date of the warrant.
The question then becomes, in the event there is no complaint filed against an
official, particularly in the event there is a coup or an occupation by outside forces,
can the investigative judge serve an arrest warrant and determine the nature of the
suspect's custody/detention based merely on suspicion?
The answer is yes. Article 103 of the Criminal Procedure Code allows the arrest
of any person suspected on reasonable grounds of having committed a major crime
or an intentional felony without the need for a formal complaint. Precedent shows
such suspects have been put under arrest by investigative judges pending inquiry
into their alleged crime or involvement in a criminal act. Investigative judges can
invoke this provision to arrest and question state officials without an initial sum-
mons or complaint being formally lodged against them.
As for the legal mechanism required to serve these arrest warrants, it is proposed
that a Judicial Council be established, comprised of at least 9 members selected
from judges forcibly retired in Iraq, those in exile and others presently in the Kurd-
ish region. This Council can serve as a nucleus of the judiciary in a post-Saddam
Iraq, expanding to include judges of integrity inside Iraq, after regime change. The
Council shall have all the powers of the judiciary as defined in the future interim
constitution or basic law.
The Judicial Council shall select a presiding judge who may be the same person
as the presiding judge of the Cassation Court. The Council shall appoint investiga-
tive judges to investigate alleged crimes by officials of Saddam's regime under the
Iraqi penal code. The Council shall also serve to vet members of the judiciary with
authority to retire judges with questionable political backgrounds or integrity. Va-
cancies created by such actions may be filled by recalling retired judges of sound
character and lawyers known for their competence. The Judicial Council may as-
sume its constitutional and legal duties in the interests of justice during the transi-
tional period.
It is proposed to initially confine all arrest warrants to top officials of the regime,
including its head, his immediate associates, deputies, Revolutionary Command
Council (RCC) members, ministers, regional leadership members, heads of security
agencies, army chief of staff and corps commanders.
(ii) Court Structure
Special Courts for International and Major Crimes
Criminal trials by no means imply automatic conviction of the accused. They are
legal proceedings designed to arrive at the truth. The accused is innocent until prov-
en guilty. These trials shall be instrumental in revealing the truth and eliminating
the impulses for vengeance and violence. In this sense they are an effective con-
tribution to transitional justice. The truth will lead either to conviction of the ac-
cused when proven guilty or to acquittal or to dismissal for lack of evidence.
Before holding criminal trials competent investigative teams, presided over by in-
vestigative judges, should be in place. They are to investigate officials suspected of
war crimes, genocide, torture and crimes against humanity. There is no statute of
limitations for the prosecution of these crimes, nor are they covered by any amnesty.
The investigation teams should be supported by international experts while making
use of facilities offered by specialized institutes to uncover and preserve incrimi-
nating evidence and other areas of expertise.
The measures taken by these teams are governed by provisions of the 1971 Crimi-
nal Procedure Code in line with all subsequent procedures by courts applying the
same law. The investigation teams may present the respective cases to investigative
judges for the issuance of arrest warrants, summons, and search warrants pursuant
to the above-mentioned law. Alternatively, investigative judges may preside over
these teams to facilitate the task of issuing the appropriate court orders.
Crimes not falling in the international crimes category specified above but covered
under Iraqi penal codes may be investigated in the typical manner with mag-
istrates. There may be a pressing need to increase the number of competent pros-
ecutors to investigate these crimes due to their large number.
Criminal courts in Iraq are classified according to the nature and gravity of the
crime. There are criminal courts dealing with offences punishable by more than five
years in prison. There are misdemeanor courts that deal with offences carrying a
maximum penalty of five-year imprisonment.
Saddam Hussein and his top officials will be tried for crimes that do not fall
under either of the above two categories. Theirs are grave international acts involv-
or the new veams may present the respective raeon t.
--vrv-mentioned law. Alternatively. investim
dar courts bray caurts dealing with offences punisnavie wy -


96
huomal javour acterrace
ing war crimes, genocide, torture and crimes against humanity. There is neither a
statute of limitation nor amnesty for these crimes.
Saddam Hussein and other officials at the highest echelons are to be indicted for
three types of crimes:
1. The first are grave international crimes that come under international crimi-
nal law.
2. The second are major crimes codified in the Iraqi penal code.
3. The third are lesser crimes and offenses covered by Iraqi penal code.
(The third type is addressed in the section on truth and reconciliation commit-
tees.)
As for the first type, they are crimes that can be dealt with by one of the fol-
lowing:
An ad hoc international criminal court like those set up for former Yugo-
slavia and Rwanda. The maximum penalty that can be meted out by these
courts is life imprisonment. They are formed by a resolution of the UN Se-
curity Council. (ÎNote: the newly created International Criminal Court is un-
fortunately not an appropriate venue to prosecute these crimes as its man-
date is limited to crimes committed after July 2002. The vast majority of
crimes committed in Iraq occurred well before this date.)
A hybrid criminal court consisting of Iraqi and international judges. This
court, too, would be set up by a UN Security Council resolution, and it may
also be barred from passing sentences involving the death penalty in ac-
cordance with the provisions of the UN resolution. Such a resolution is like-
ly to be consistent with the provisions of international criminal law, which
was the case with the Yugoslavia and Rwanda courts.
A special national criminal court comprised of Iraqi judges according to
law No 23 of 1971 on Criminal Procedure Code. It may be made up of a
presiding judge and two associates who can seek counsel from international
experts or have international judges acting as experts. The overwhelming
majority of Iraqi jurists are in favour of this kind of court as it will ensure
that the trials have a national character and forestall any criticism from
local, Arab and regional quarters. The difficulty this court might encounter
is related to the fact that under the most recent applications of inter-
national criminal law, the maximum penalty for these crimes has been life-
imprisonment. The maximum sentence under the Iraqi penal code, however,
is death for major crimes such as pre-meditated murder. It would be grave-
ly unjust to prosecute murderers with the possibility of a death sentence,
while war criminals and persons accused of crimes against humanity face
only a life-sentence. One solution to this dilemma would be to allow for the
use of the death penalty for those convicted of one or more of the four major
international crimes. Another solution would be to have the appropriate/le-
gitimate legislative body abolish capital punishment in the Iraqi penal code
to be consistent with the recent applications of international law.
Domestic Criminal Courts
The second type of crimes is covered under the Iraqi penal code. With over 34
years of Ba'ath rule in Iraq, numerous and heinous crimes have been perpetrated.
The number of perpetrators may run into the tens of thousands. These crimes come
under the jurisdiction of Iraqi criminal courts. These courts are limited in number
and may not be able to cope with all of the potential cases, without taking an unrea-
sonably long time to resolve. Such delays may be a disservice to justice. That is why
additional criminal courts will need to be set up in the respective Appellate Court
districts, even if they are provisional and last only until the major caseload is han-
dled.
A flow chart is attached which depicts a sample organization for these courts and
commissions. (See Appendix A1/12)
e. Defenses: The Problem of Immunity Against Prosecution
Under Iraqi law, immunity does not pardon or annul a crime. It merely suspends
legal proceedings for specific and special reasons. Lifting this immunity implies that
the special reason for the restriction is removed and things are back to normal. In
other words, the person enjoying immunity shall be subject to legal proceedings like
any other person.
The 1970 interim constitution grants this immunity to the president, RCC mem-
bers, ministers and Ba'ath party regional leadership members. Abolishing this con-
stitution by the competent authority after regime change will automatically lift this


97
immunity and restore normality. The question of military immunity is addressed in
the section on institutional reform, where it is proposed that immunity for members
of the military be lifted and that they be treated as civilians.
f. Amnesty
There are two kinds of amnesty. There is a general amnesty covering all perpetra-
tors of crimes irrespective of their gravity and the persons involved. Such an am-
nesty has been applied in certain countries like Sierra Leone in 1999 and before it
Argentina in 1983. It was unsuccessful as it had failed to restrain people's vengeful
impulses and bring about the desired sense of justice. A general amnesty will not
contribute to reconciliation in Iraq where the situation is much more complex. Ob-
jective conditions rule out this kind of amnesty in favour of other more relevant
world experiences.
The amnesty deemed suitable for Iraq would be a qualified amnesty covering only
specified abuses. It has been suggested that it should cover lesser offenses and in-
fractions specified in the Iraqi criminal law. In other words, amnesty should be ex-
tended to crimes punishable by a maximum of five-year imprisonment. Other
crimes, including criminal acts with international implications, should not be cov-
ered by the envisaged amnesty unless all of the victims or the victims' relatives set-
tle for reconciliation, restitution according to local customs, or compensation for
damages.
For the amnesty law to serve the purpose of reconciliation it should be contingent
upon:
1. The persons amnestied turning themselves in within a specified time period.
2. The persons amnestied cooperating with the truth committees and fully and
completely confessing their crimes.
3. The persons amnestied giving a public apology to the victims and the commu-
nity as a whole.
4. The persons amnestied pledging not to repeat their misdeeds in the future.
This kind of amnesty has proved to be a success in South Africa. The essence of
the amnesty is to acknowledge responsibility for previous abuses and cooperate with
the truth committee investigators. On the basis of the findings, the committee will
decide whether the perpetrator will be amnestied or not for reasons to be recorded
in the investigation file.
2. Victim's Compensation and Reparations
Compensation to the victims of the Ba'ath regime since 1968 is a major compo-
nent of the reconciliation process. It will soothe the victims' sense of having been
unjustly treated and restrain their vengeful impulses while promoting trust between
them and the new administration.
The regime's victims include those who lost loved ones in its prisons, were arbi-
trarily detained and tortured, lost their jobs, were expelled or forced into exile, had
their property confiscated, were physically or psychologically scarred or have suf-
fered significant injury; all deserve to be compensated for damages. (See Appendix
B/21 for Draft Law enabling victim's compensation)
The two main kinds of compensation are:
1. Monetary compensation which may take two forms:
a. Monetary compensation for confiscated real or personal property as a
consequence of displacement, exile or unjust decrees.
b. Monetary compensation for damages sustained as a consequence of the
regime's actions, including persecution, murder, torture, imprisonment and
detention on false charges.
2. Non-tangible compensation which may also be of two types:
a. A formal apology to the victim or their relatives by the perpetrators
if their abuses are covered by the amnesty or if the victim or their relatives
accept such a gesture.
b. A public registry listing of the victims to remind future generations of
the regime's crimes and observing a certain day to commemorate the vic-
tims.
3. Recovery of Misappropriated Public Funds
The former regime consistently dispersed and dissipated public funds and depos-
ited them in accounts and entities belonging to persons and private companies in
order to conduct illegal businesses which serve the illegitimate purposes of this re-


98
gime, unconcerned about the fate of this money so long as the persons in possession
of these funds and property obey the orders of the regime.
As public funds are part and parcel of a nation's wealth and therefore all means
and international contacts should be made to recover it, specific laws are rec-
ommended to criminalize the acts of persons in possession of this money and those
who have failed to return it in the legally specified time to do so.
The laws call for all those in possession of misappropriated public funds/assets to
return those funds/assets within 3 months from the issuance of this law. It is pro-
posed that those who do return the funds/assets within this timeframe will be enti-
tled to a 10% reward (of the value of the property). Those who do not return the
property within this timeframe will be subject to prosecution. (See Appendix C/22
for Draft Law)
In addition, it is recommended that a commission be established to research and
identify all companies who profited from doing business with the prior regime. This
list should be published, and it would be up to the Iraqi electorate to determine
what to do with these companies: whether to prosecute, blacklist, disgorge their ill-
gotten profits or any other measures deemed appropriate. For the sake of posterity,
it should be well known which businesses profited from their association with the
prior regime.
4. De-Ba'athification
4. De bastion of Ba'ath Party Privileges.chdad regime has been grareasury without
ature Built in chron
Since it seized power in 1968, the Baghdad regime has been granting privileges
and lavish perks to members of the Ba'ath party from the public treasury without
regard to the public's welfare. These privileges have been granted under laws
passed by the regime, as handouts from Saddam Hussein himself or by arbitrary
expropriation of public as well as personal funds and property.
There are ample examples of these excesses such as the confiscation of property
belonging to deported or exiled individuals, distribution of housing plots, large fi-
nancial rewards, houses, luxury cars, and other special prerogatives.
A draft law was drafted abolishing these privileges. (See Appendix D/31)
b. Memorialize Dark Ba'ath Era for Future Generations
The legacy of Saddam and his regime must not be lost on future generations of
Iraqis. It is proposed that a monument for the regime's victims be built in every
Iraqi city with a national museum of the regime's inhumane practices with a chron-
icle of the brutal methods used by its security agencies. Notorious prisons and tor-
ture chambers should be preserved as perpetual memorials for the victims of
Saddam's crimes.
B. BUILDING THE FUTURE
1. Legal Reform
Laws affecting human rights and freedoms have been turned upside down and
radically amended to assist the regime's violation of these very rights. It is, there-
fore, imperative to review major laws with the aim of restoring people's rights and
dignity, including their right to a decent, secure life in their own country. Iraqi ju-
rists in conjunction with international legal and human rights experts, have em-
barked on this project and make the following recommendations:
a. Criminal Law
The objective of criminal legislation is to maintain social order and protect public
safety consistently and uniformly. By contrast, the Iraqi regime introduced amend-
ments to the Iraqi penal code No 111 of 1969 in a manner contrary to human rights
in order to secure its own survival.
In both its legislation and its actions the Iraqi regime has violated (and continues
to violate) every aspect of humanitarian law as set forth in international covenants
and the Universal Declaration of Human Rights. This includes imposing or increas-
ing sentences with the death penalty without regard to the well-established legal
principles that:
There is no crime and therefore no punishment without a specific text in the
penal code.
Criminal laws cannot be retroactively applied.
The accused is innocent until proven guilty.
Sentencing decisions should be made specific to the individual defendant.
There should be no more than one punishment for the same crime.


100
human rights pursuant to international covenants and the Universal Declaration of
Human Rights. Article 15 of the latter states that every individual has the right
to citizenship. It also states that a person cannot be arbitrarily denied citizenship
or the right to change it.
It is agreed that this law and its amendments cannot remain effective after a re-
gime change as hundreds of thousands have been victimized by it. It should be re-
pealed in its entirety while recognizing the naturalization decisions taken under it.
A review should be undertaken to compensate victims and restore Iraqi citizen-
ship to those who have unjustly lost it. There should also be a watchdog entity es-
tablished to oversee implementation of the new law with a view to guaranteeing
people's rights.
Work in this connection has culminated in drafting a new citizenship law taking
into account the problems caused by previous laws as much as possible until a new,
well-considered citizenship law is adopted by the prospective Iraqi parliament. It
should be noted that, unlike most other nationality laws in the region, this proposed
law is gender neutral. (See Appendix G/29)
d. Administrative law
The Baghdad regime's policy since it seized power has resulted in rife corruption
in the state apparatus. The main causes for the corrupt bureaucracy may be
summed up in the following:
1. Politicization of administration.
2. The economic squeeze and low wages.
3. Absence of administrative, legal, parliamentary and public controls over the
bureaucracy.
4. Militarization of the administration.
Recommendation
To uplift the state bureaucracy to the level of democratic transformation in Iraq
during the transition period, a host of reforms must be carried out, including:
Repealing all laws and decrees that have politicized administrative functions
and terminating control of state institutions by the ruling party;
Reviewing civil service and employment laws with incentives encouraging hon-
esty and integrity with an emphasis on the concept of the “public trust” for civil
servants;
Establishing administrative, judicial, public and parliamentary oversight over
civil servants;
Preparing a development plan for the administration of the bureaucracy;
Identifying and dismissing all employees found to be redundant, corrupt, or
grossly negligent in their duties;
Selecting top civil servants who are highly qualified people of unquestionable
integrity to set an example for their staff; and
Developing intensive plans to train civil servants at various levels such as:
Introducing modern technology in administrative work.
Promoting courteous interaction at all levels of the system and renouncing
condescending attitudes within the system or towards the public.
Disbanding all state functions or positions related to the Ba’ath party-in-
cluding those of security officers and operations run by that party in the state
bureaucracy.
Reviewing all other laws governing the bureaucratic function for further re-
form in line with the new democratic era.
Considering the crucial nature of the transitional phase and the fact that the
Ba'ath party is primarily responsible for politicizing and therefore crippling the bu-
reaucracy, a bill has been drafted repealing the “leading party law” No. 142 of 1974
and banning the Ba'ath party itself. (See Appendix H/30)
e. Civil Law
The general consensus of the commentators is that the existing civil law of 1951
has not experienced any radical change in contravention of human rights. Maintain-
ing this law will not be detrimental to these rights, at least and until specialized
legal authorities are in place to re-examine the law and present relevant rec-
ommendations.


101
f. Interim laws
These are laws expected to be required during the transitional period to deal with
immediate situations and needs. A body of legal experts should be set up to examine
these needs, which may be called “Ad hoc Legal Committee for Drafting Interim
Laws." The Judicial Council may assist with this task during the transitional pe-
riod.
Immediately after a regime change, it will be imperative to pass a law banning
the Ba'ath party and privileges enjoyed by it under the “leading party law” No. 142
of 1974 as it was used as a tool of persecution and brutal repression.
2. Institutional Reform
The vital state institutions have undergone extensive changes in their structure
and functions dissociating them from the purposes they were originally set up to
serve. Their function changed from serving and protecting the public to solely serv-
ing and protecting Saddam and his regime.
This is why it is a critical manifestation of transitional justice to reform these in-
stitutions and re-establish their basic public services. Reform cannot be brought
about by merely renaming the institutions that supported the dictatorship. Reform
demands restructuring of these institutions and the laws under which they operate
to serve the public good rather than the repressive regime. The most important in-
stitutions are the judiciary, institute of legal education, security agencies, military
and prison system to name but a few.
a. Judiciary
Before the coup of 17 July 1968, the Iraqi judiciary was marked by a measure
of integrity, impartiality and commitment to the requirements of justice. It enjoyed
a certain degree of independence in fulfilling its duties and making its rulings,
which were characterized by the principle of even-handedness, solid substantiation
and profound legal reasoning. These rulings would serve as precedents to be cited
by litigants and other courts alike.
Before the 1968 coup, the Iraqi judiciary ensured a modest level of justice in the
sphere of social order and individual rights. This was the result of concerns by suc-
cessive governments to uphold the integrity of this vital sphere. There is no deny-
ing, however, that all those governments were undemocratic and opposed to judicial
scrutiny of their political actions, including the legislative process and the actions
of the executive.
After the 1968 coup the Ba'ath regime introduced the notion that there are no
independent state powers except one political power assisted by legislative, execu-
tive and judicial agencies to undertake its responsibilities. This eliminated any no-
tion of the separation of powers (legislative, executive and judiciary) and turned all
of these powers into institutions controlled by one ultimate political power under
Saddam Hussein.
To eliminate any remaining role for an independent judiciary, the Baghdad re-
gime dissolved the Judicial Council which was headed by the presiding judge of the
Iraqi cassation court. It was re-invented as “the justice counciſ” headed by the min-
ister of justice who reported to the President.
As a consequence, the Iraqi judge has become a mere functionary following orders
from the political power. The breakdown below demonstrates the unparalleled frag-
mented nature of the current Iraqi judiciary:
The Iraqi judiciary is divided into the following sectors:
i. The Iraq cassation court.
ii. The military cassation court.
iii. The internal security agencies cassation court.
iv. Special judiciary courts, which are divided into four parts:
1. The revolutionary court.
2. Judiciary of party organizations. (Serious judicial powers have been
granted to party organizations.)
3. Judiciary of ministries and security agencies. (Many courts have been
set up in key ministries and departments like the interior, defense and se-
curity agencies—intelligence, public security and special security).
4. Judiciary of provisional courts.
v. Judiciary of the joint cassation court.
vi. Judiciary of special powers. (Judicial powers granted to state functionaries,
police officers and others.)
burt. It was to the Presi become a


104
it on the the date the ponosed, the date and
their respective consulates or the mission representing their country's inter-
ests.
4. No staff members of a public authority may contact any detainee or prisoner
without a written consent from the general prosecutor.
5. Any pregnant woman prisoner shall be accorded special treatment and med-
ical care from the date pregnancy has become evident.
6. Special treatment shall be accorded the mentally ill prisoner. Upon deter-
mination of the prisoner's condition, he/she shall be moved to a mental insti-
tution.
7. Release may be obtained for health reasons if it is established that a prisoner
has a life-threatening condition or the prisoner's condition poses a threat to
the lives of others in prison. Release for health reasons shall be effected by
a decision of the general prosecutor with a copy of the decision to the ministry
of labour and social affairs.
8. Prisoner's relatives shall be informed if his/her condition has become suffi-
ciently serious.
9. Bodies of dead prisoners shall be turned over to their relatives with a detailed
report on the history of illness, the nature of work on the day of death, the
kind of food, the date the prisoner was committed to hospital, the date when
the condition was first diagnosed, the specific nature of illness, the last day
a doctor examined the prisoner and the date and time of death.
For a Draft law implementing these recommendation see Appendix L/54.
e. Institute for Legal Reform and Training of Lawyers
There is at present a judicial institute affiliated with the ministry of justice. It
has two-year courses to graduate judges and general practice attorneys. This insti-
tute can be developed to offer three-year courses, including one or two years for
practical training in the work of judges and public prosecutors. Also, its curriculum
should be re-examined to be consistent with Iraq's future development.
Courses at the institute can be expanded to the training of lawyers and legal per-
sonnel. As the institute is engaged in the training of judicial personnel in general,
a body specialized in legal reform at the institute will be very relevant. Reform
questions can be discussed with competent legal personnel at the institute.
3. Proposed Constitutional Principles
Having universally accepted constitutional principles is important at any stage of
governance in Iraq. No state function can be fulfilled by the various authorities
without a constitution as the basic law. Serious thought must given to the issue of
constitutional principles during the transitional period. Without these supreme rules
ensuring people's rights and defining their duties, transitional justice in Iraq will
be unthinkable.
Iraq's multi-ethnic, multi-religious and multi-cultural structure has been further
compounded by Saddam's sectarian policy. Working out constitutional principles for
such a country will be a daunting task. A permanent constitution at this or any sub-
sequent stage can only deliberated with the full involvement of the public as well
as all political groups and personalities in post-Saddam Iraq.
The transitional stage will be better served with transitional constitutional prin-
ciples that will serve as a basis for the authority of state powers and a guarantee
of people's rights. Such principles should be drafted by a team of experts--tech-
nocrats--specialized in law, political science, sociology and economics.
Recommendation
It is proposed that the future transitional constitution or basic law include the
following principles:
1. Separation of the three branches (legislative, executive and judicial) and de-
fining the character of each branch, its structure, duties and mechanism of
discharging its functions.
2. Recognition of Iraq's multi-ethnic structure comprising Arabs, Kurds,
Turkmans and Assyrians among other ethnic groups.
3. Recognition that Iraq is a multi-religious society, including Islam, Christi-
anity, Judaism, Mandaeim, Yazidism, and religious communities like the Shi-
ites, Sunnis, etc.
4. Commitment to international covenants ensuring human rights in Iraq, in-
cluding the Universal Declaration of Human Rights.


108
undermined rational, humanitarian education, misguided the young generation and
trampled such values as fair play and equal opportunity. Attention should be paid
to re-educate the young generation for its members to be good, well qualified and
scientifically equipped citizens capable of safeguarding the people's democratic
gains.
Iraq is the land of great civilizations that prospered in climates of inter-cultural
coexistence. To revive such positive elements in our heritage, publications and mass
communications should be free from all forms of censorship. The private sector
should be enabled to compete with state-owned media, and this also goes for the
arts in general as an essential component of national culture.
The rule of law will be jeopardized in the absence of legal awareness on the part
of both government employees and the public. It will be absurd for state laws to
remain the domain of scholars and experts. These laws should be part of the public
domain for their enforcement to be meaningful. (See Appendix M/66 for Draft Law
to Create Human Rights Organization in Iraq).


111
vere renewed abuses. Ci vears) to allow breathine playing field.
tors, coercion or other reasons for taking the action in question, later remorsel
change in conduct, or distance in time from the abuse.
Duration: Dismissal from the security forces may be permanent, given concern
over renewed abuses. Civilian vetting, on the other hand, is usually of temporary
duration (typically 5-10 years) to allow breathing space for government and society
to re-create itself, after which they move to a level playing field.
VII. What happens to the purged?
Types of sanctions which may result from vetting: Those sanctions which have
been employed in various countries include employment dismissal; exclusion from
appointed office; exclusion from elected office; exclusion from designated private sec-
tor positions or professions; denial of benefits (including government pension); exclu-
sion from suffrage.
Prevent the purged from becoming spoilers: Those vetted out cannot simply be sent
home, but must be placed in some sort of organized, remunerated activity. This tem-
porarily ensures their livelihood so they do not turn to criminal activity, facilitates
observation of their interactions with former colleagues, and prevents them from or-
ganizing a troublemaking underground force.
VIII. What happens to those who survive the vetting process?
Probation: Those retained-particularly in the police and security forces-should
be retained on a probationary basis. The probationary period should be long enough
to (1) allow refugees to return and provide additional relevant information, and (2)
permit monitoring of performance to ensure suitability. This may last up to two
years. It may be useful to put outside personnel in place to closely supervise the
work of these remaining employees during this period.
seful to put outsid ensure suitability evant information, angugh
UNITED STATES INSTITUTE OF PEACE
PROJECT ON CONSTITUTION-MAKING, PEACE BUILDING,
AND NATIONAL RECONCILIATION
Since the age of Enlightenment and the revolutions in France and the United
States, constitutionalism has played an ever-increasing role in nation-building and
in the establishment of the rule of law. At the dawn of the twenty-first century, na-
tions of virtually every region of the world recognize the role of constitutionalism
in their own political and legal systems. The recent and dramatic increase in the
number of new and transitional nations adopting democratic constitutions attests to
the significance of constitution-making to democracy, national reconciliation, and po-
litical development. In many countries making the transition from civil war, one of
the first tasks undertaken is the drafting of a new constitution. Insofar as the con-
stitution articulates the vision of a new society, defines the fundamental principles
by which the country will be reorganized, and redistributes power within the coun-
try, it can play an important role in the consolidation of peace.
A variety of projects and publications have focused on the substance of constitu-
tions in response to conflict, often highlighting the role of such concepts as fed-
eralism or separation of powers. Surprisingly little work has been done, however,
to examine the extent to which the process of creating a constitution can become
a vehicle for national dialogue and the consolidation of peace, allowing competing
perspectives and claims within the post-war society to be aired and incorporated.
This is the focus of the Project on Constitution-Making, Peace Building, and Na-
tional Reconciliation, co-sponsored by the United States Institute of Peace and the
United Nations Development Program.
Many issues to be confronted in the crafting of a post-conflict constitution can ac-
centuate fundamental differences and lead to renewed factionalization. Choices
made as to the timing of the process could be perceived as favoring one group over
another. The role and organization of political parties in the constitution-making
process may reopen old wounds or recall ethnic or other rivalries. The choice of elec-
toral systems for a constitutional convention could have similar effects. The subject
of human rights, and the question of participation in the constitution-making proc-
ess of those who recently perpetrated major abuses, may be so volatile as to incite
renewed accusations and conflict. The project is also considering certain substantive
issues that, while outside the project's primary scope, are potentially divisive and
impact on questions of process. On the other hand, the constitution-making process
can be a potent element in the reduction of conflict. The more that the constitution-
making process develops a sense of confidence in parties to the conflict and in the


112
public in general that the new constitutional framework will protect their interests
and will provide them with non-violent avenues for defending their rights, for exam-
ple, the more it will contribute to the building of a stable peace. The project seeks -
to develop guidelines for strengthening such positive dynamics in the post-conflict
context.
The project's inter-disciplinary Working Group is chaired by Professor Bereket
Habte Selassie, formerly chair of the Constitutional Commission of Eritrea and cur-
rently of the University of North Carolina. The membership of the Working Group
includes a diverse group of experts in comparative constitutionalism, conflict resolu-
tion, development, political science, and sociology, and members of the donor com-
munity involved in assisting post-conflict societies.
A series of case studies papers has been commissioned on the constitutional proc-
esses of nearly 20 countries around the world. The Working Group is joined by rel-
evant country and regional experts for its consideration of each case study. It is not
anticipated that the series of case studies will produce a monolithic model for con-
stitution-making. On the contrary, they will likely offer a range of different and per-
haps even inconsistent approaches, the use of which will depend on the various so-
cial, cultural, political and economic conditions existing in a particular country.
Through this process, the Working Group is attempting to discern the variables that
underlie these different approaches, evaluate their respective effects, and, by apply-
ing a uniform analytical framework across a broad range of cases, derive common
lessons regarding the complex process of constitution-making and national reconcili-
ation.
Begun in 1991, the current phase of the Project on Constitution-Making and Na-
tional Reconciliation is anticipated to be completed in early 2003. A final report will
incorporate an assessment and synthesis of lessons learned, the identification of pit-
falls to be avoided when constitution-making occurs in the aftermath of violent con-
flict, and the articulation of practical guidelines to be considered in the design of
post-conflict constitution-making processes in the future, to maximize the potential
of these processes in the consolidation and maintenance of peace.
The project includes an examination of constitution-making processes in the fol-
lowing countries:
Bosnia and Herzegovina; Brazil; Cambodia; Colombia; East Timor; Eritrea;
Ethiopia; Fiji; Hungary; Namibia; Nicaragua; Poland; South Africa; Spain;
Uganda; Venezuela; Zimbabwe.
The following is an inventory of the issues to be considered in each of the case
studies:
I. General Issues Pertaining to Conflict Resolution and Constitution-Making
What ramifications does the nature, duration, and intensity of the conflict, and
the character of its termination, have for the constitution-making process? What are
the limitations on using the constitution-making process as a means of conflict reso-
lution and peace building? How should those involved in the constitution-making
process evaluate which post-conflict issues are not appropriate for resolution
through the constitution-making process and are best left to political negotiation?
Are there circumstances in which constitutional reform would be preferable to cre-
ating a wholly new constitution? How is that determined? To what extent does the
constitution-making process need to be coordinated with other post-conflict political
negotiations that may deal with some of the same issues that will arise in the con-
stitutional context?
From the perspective of building a stable peace, are there different dynamics be-
tween constitution-making in a post-independence scenario (i.e., drafting a new
country's first constitution) and replacement of an existing constitution? How and
to what extent have previous exercises in constitution-making included the use of
negotiation techniques? What lessons can be drawn regarding the integration of tra-
ditional, indigenous methods of conflict resolution and public deliberation into the
constitution-making process? How should those involved in the process determine
whether to refer to the former constitution as a starting point or to intentionally
begin with a blank slate? In those cases where a settlement agreement formed the
basis of the constitutional process, are there steps which were taken or procedures
followed in the establishment of the settlement agreement that recommend them-
selves for use in future constitutional processes? In what types of cases should con-
stitution-making be anticipated and incorporated into the peace agreement, in the
form of constitutional principles, a timetable for constitution-making, or mandating
the structure of the process? Shaping the constitution-making process as an exercise
in political negotiation and compromise risks producing a short-term accord at the
durawn regamaking istitution?"Lion new


115
ess or relating ined and integrated five to domestic la yution. Particul
Where the United Nations has become directly involved in mediating or resolving
a conflict, the constitutional process may be dictated, at least in part, by UN resolu-
tions. Under what circumstances should UN resolutions specifically mandate UN in-
volvement in the constitution-making process? Similarly, are there circumstances in
which regional inter-governmental organizations should become involved in the con-
stitution-making process?
VII. The Role of International Law.
Are there emerging international norms relating to the constitution-making proc-
ess or relating to the substance of any constitution? If so, how should these stand-
ards be determined and integrated? Several recent constitutions explicitly deal with
the status of international law relative to domestic law and also directly incorporate
international human rights standards into the constitution. Particularly in a post-
conflict context, where concerns regarding the rights of various parties and con-
tested international legal claims may be crucial to the consolidation of peace, how
should these issues be addressed in the constitution-making process? Who should
decide?
VIII. Essential Issues of Substance
Certain fundamental issues, such as the power and status to be accorded to geo-
graphic subdivisions, and the centralization or devolution of power, may be so inte-
gral to the construction of a stable peace as to be inseparable from an examination
of the constitution-making process. When, how and by whom should such basic
issues should be decided? Some modern constitutions contain certain immutable
principles that are designed both to preserve the stability of the regime and to en-
sure against the recurrence of past abuses. Should a postconflict constitution include
such immutable principles? If so, how should the constitution-making process deter-
mine such principles?
n of a stables. When, hostitutions for of the reg
are designed bone modern constituand by whom shoan, examin