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Iraq Report: August 1, 2005

1 August 2005, Volume 8, Number 25
IRAQI DE-BA'ATHIFICATION COMMISSION BACKS AWAY FROM TRIBUNAL PURGE. The Iraqi de-Ba'athification commission appeared to back away from its attempts at purging more members of the Iraqi Special Tribunal this week after nine judges senior staff members of the tribunal were fired on the grounds that they were former members of Saddam Hussein's Ba'ath Party. Nineteen other tribunal judges had been threatened with dismissal by the commission headed by Iraqi Deputy Prime Minister Ahmad Chalabi.

Sources close to the tribunal claimed that U.S. officials have grown frustrated with what they interpret as disruptions to the court's work, and one official reportedly threatened to take the former regime's cases to The Hague if the tribunal's work was further disrupted by the de-Ba'athification commission.

Iraqi President Jalal Talabani met with Iraqi tribunal judge Ra'id al-Juhi on 28 July and voiced his support for the tribunal's work in trying former members of the Hussein regime, saying: "I would like to express my full backing and support to the interrogation panel. I will do my best to ensure that they will be respected by the other parties in the Iraqi government, particularly the de-Ba'athification commission, for the services they are offering" (see "RFE/RL Newsline," 29 July 2005).

Had the commission succeeded in removing all 28 members it identified as Ba'athists on the tribunal, the work of the tribunal would have likely been set back months, if not years. The judges targeted included the chief investigative judge, Ra'id al-Juhi, as well as the head of the witness-protection program and the head of the tribunal, "The New York Times" reporter John Burns told U.S.-based National Public Radio (NPR) in an interview broadcast on 20 July. The 400-member tribunal is staffed by about 65 judges and prosecutors.

Chalabi's spokesman Entifadh Qanbar told RFE/RL on 27 July that there is currently no attempt to expel any of the judges. "We don't want to do that because we don't want to delay the process [of the tribunal's work]," Qanbar said. "There are investigations, however, and these investigations are in regard to all members of the Iraqi state, including this court. These are not for political purposes or political vendettas as some people [think]."

Asked about specific allegations that the tribunal's investigative judge Ra'id al-Juhi was a Ba'ath Party member, Qanbar said: "I don't have detailed [or] specific information on these investigations -- especially because these investigations [are held to] very high scrutiny and very intensive investigations. And the people doing these investigations, they don't reveal what they are investigating. These things are kept in very safe places, not out for leakage, so that they can't be used to haunt people."

While the dismissals would be legal according to Article 33 of Coalition Provisional Authority (CPA) Order No. 48 that established the de-Ba'athification commission, they would severely disrupt the work of the tribunal, which intends to begin trying former regime members as early as next month. The article states, "No officer, prosecutor, investigative judge, judge, or other personnel of the tribunal shall have been a member of the Ba'ath Party."

Burns told NPR that all of the judges on the tribunal attended Iraqi universities where the condition for admission to study was membership in the Ba'ath Party.

Moreover, all of the judges on the tribunal underwent an extensive vetting process before their appointment. Former tribunal administrator Salem Chalabi told in a 15 August 2004 e-mail interview: "I and other Governing Council members and deputies reviewed their backgrounds and vetted them. We consulted closely with the Council of Judges, which has extensive records on judges and judicial nominees. In cases where retired judges applied, we reviewed their history with the Council of Judges and also consulted their records in the bar association."

It appears however, that some Ba'athists with ties to the regime may have made it onto the commission. Zakia Hakki, a Justice Ministry adviser, said that al-Juhi and other tribunal officials met with politicians informally in mid-July to request three changes to the tribunal's mandate that would allow tribunal judges who slipped through the vetting process to be dismissed, reported on 19 July. Al-Juhi and others were reportedly concerned about possible procedural slipups foiling Hussein's prosecution, Hakki added. One judge in particular -- a former provincial governor -- was reportedly under suspicion for his ties to the former regime, the website reported.

The Chalabi-led campaign to dismiss tribunal staffers has been interpreted by some as revenge against the body following the removal of Chalabi's nephew, former tribunal executive director Salem Chalabi, from his position by interim President Iyad Allawi. Salem Chalabi was dismissed following the issue of an arrest warrant against him in early August 2004 for his alleged role in the assassination of a senior Finance Ministry official (see "RFE/RL Iraq Report," 12 August 2004). A separate arrest warrant was issued at the same time for Ahmad Chalabi on counterfeiting charges. The charges against both men were later dropped.

Ahmad Chalabi's party, the Iraqi National Congress, issued a statement on 27 July stating that Chalabi "holds the view that all laws in Iraq must be obeyed and there must be no exceptions to this principle." The statement criticized "The New York Times" for reports alleging that Chalabi was carrying out a vendetta against individual judges and seeking to compromise the judicial system for political advantage. "These charges are false and unfounded and unsubstantiated since they are made on the bases of anonymous sources," the statement said, adding that "The New York Times" "continues to further this pernicious agenda in casting doubts on the constitutional process in Iraq." The statement also accused the newspaper of being "colored by [its] antiwar position." (Kathleen Ridolfo)

DRAFT CONSTITUTIONS SIGNAL LOSS OF RIGHTS. At least two unofficial versions of Iraq's draft constitution have been leaked to the press in recent days, leaving many to speculate on what the future holds for Iraqi citizens in terms of individual and minority rights.

Iraqis close to the constitutional committee claim that many issues remain unresolved and that many drafts are floating around Baghdad, adding that those drafts do not represent the final version. However, those versions circulating in the media, including a draft bill of rights, have raised questions as to the direction the future Iraqi state will take -- particularly with regard to the role of religion, the status of clerics, federalism, and women's rights.

The State Of Religion

One draft, published in Baghdad daily "Al-Mada" (, states that Iraqi citizens, in addition to the rights laid out in the constitution, "shall enjoy the rights stipulated in international treaties, agreements, and international legal long as these do not contradict Islam."

Another draft, published in the daily "Al-Sabah" (, calls for the government to be a parliamentary democracy with a weak executive branch; a single legislative body, elected every four years; and an independent judiciary. Regarding Islam, the draft states: "Islam is the official religion of the state. It is the basic source for legislation. It is forbidden to pass a law that contradicts its fixed rulings."

This status is a marked deviation from that afforded Islam as "a source of legislation" under the Transitional Administrative Law (TAL), Iraq's interim constitution written by the Coalition Provisional Authority (CPA) in Iraq ahead of the 2004 transfer of power (

The stipulation that it is "forbidden to pass a law that contradicts [Islam's] fixed rulings" raises questions as to how the future parliament might go about considering the entire body of Islamic jurisprudence when drafting laws and has already provoked controversy. Iraqi lawyer and journalist Sattar al-Dulaymi told RFE/RL's Radio Free Iraq (RFI) in an interview broadcast on 25 July that the "Al-Sabah" draft "if approved, would be a day of national mourning over common freedoms." "Islamic law does not speak about rights. Islamic law is a system of orders and prohibitions. For this reason, I cannot speak about rights. All the new constitution says is that all freedoms and rights are performed in accordance with the law.... We will find ourselves asking: What is allowed? It will not be the other way around.... Islamic law in these affairs is, strictly speaking, an ideological system sufficient just for oppressing a human, wiping off and in the end erasing his or her humaneness."

The "Al-Sabah" draft also indicates that many rights affecting women under the personal status law will be relegated to the jurisdiction of Islamic Shari'a courts instead of civil courts, which have presided over such issues -- including inheritance, marriage, and divorce -- since 1959. Another provision set out in both the "Al-Sabah" and "Al-Mada" drafts calls for a 25 percent quota for women in the National Assembly -- but only for eight years, or two election cycles.

"We have laid down a formulation that women have equal rights and duties as men in official and political affairs," drafting-committee member Jawad al-Maliki told RFI in a 25 July interview. "Yes, there might be some affairs related rather to the personal status where a man has a different position than that of a woman. There is, however, equality in political affairs."

The Elevation Of Women

Al-Maliki claimed that a provision calling for an election quota for women equates to "an implementation of the rights of women." Asked why the quota will only remain in effect for eight years, he said: "We do not want a permanent women's quota to remain in the constitution; we want [to see] that women develop their competencies, that their level is raised, and that they compete with men on the basis of equality." Those drafting the constitution believe that eight years is "sufficient for women to get ready for an equal competition with men," he said. "But if they build on [the supposition that] they will not be ready for the competition, then it is some deficiency for which only the women are responsible. The quota must not be taken for granted. It is no gift or pittance that men give to women."

Parliamentarian Asma al-Musawi rejected al-Maliki's statements the same day in an interview with RFI in which she called for the proportional participation of women to be "anchored by law." She said she would support a limited time frame for such a quota. "But, should it be set after two, three, four, or five [four-year] election terms?" she asked. "This has been stirring discussions among various women's movements. We have to admit anyway that a deadline must be set so that Iraqi society realizes [after the quota is reached] that Iraqi women have their place not only in the kitchen but also in medicine, industry, agriculture, civil engineering, and other areas of science [and technology], and that they are at the same time able to advance to politics." Asked if she thinks that an eight-year quota would be a sufficient, she said: "I maintain that eight years is not sufficient for changing this wrong social concept. I am ready to support those women who demand a prolongation of this period."

The "Al-Sabah" draft also includes a clause granting clerics a special status in society that would allow them to offer guidance "as religious and patriotic symbols." Again, the ambiguity of the document has led many to question the meaning of the clause, and how it would be applied in reality -- particularly in light of the power and influence that Iranian clerics wield over their government.

Moreover, the designation of Iraq's name as "The Islamic Federal Iraqi Republic," in the "Al-Sabah" draft has raised concerns among non-Muslim Iraqis and even Muslim Kurds, who are generally secular in their outlook. Iraqi President Jalal Talabani told Al-Arabiyah television in a 25 July interview that Kurds do not agree with the proposed state name. "We believe that the name should be as it was -- The Republic of Iraq or the Federal Republic of Iraq. If we say "Islamic republic" this will be a violation of the agreement signed" between the Kurds and the Shi'ite-led United Iraqi Alliance following January's national elections (see "RFE/RL Iraq Report," 14 March 2005).

Talabani predicted, however, that the name will not become a sticking point, "because we all agree with the other party [Shi'ite Arabs] that the constitution should be based on the Transitional Administrative Law. In this law we all agreed that we do not want an Islamic regime in Iraq, but a parliamentary, pluralistic, federal, and democratic regime. Proposing an Islamic name for the republic would be a violation of the agreement reached."

Regional Power

Perhaps the most contentious issue will revolve around federalism and the distribution of power from the center to the regions. The draft published in "Al-Sabah" states that any two governorates could form a region. It also places no limit on the number of governorates that could belong to a given region.

By contrast, the TAL states: "Any group of no more than three governorates outside the Kurdistan region, with the exception of Baghdad and Kirkuk, shall have the right to form regions from amongst themselves." According to, some Shi'ites hope to use the provision to unite the nine Shi'ite-populated governorates south of Baghdad into a Shi'ite mega-state within Iraq. Such a move could lead to a further fragmentation of the country along sectarian lines. It could also have enormous consequences on the distribution of resources in Iraq, as each region would be financed through a "fixed share of natural resources."

Another provision in the "Al-Sabah" draft grants regions the power to make agreements with neighboring states, as long as those agreements do not contravene Iraqi law. The provision appeals to Shi'ites, many of whom seek to strengthen ties to Iran, but would not be supported by Sunni Arabs for that very reason. Kurds would also support the provision since they have been calling in the Kurdistan Regional Government's constitution for the power to make agreements with foreign states. (Kathleen Ridolfo)