Posted on | December 11, 2009
From October 2001 until early 2003 over 200 international experts and exiled Iraqi engineers, lawyers, businesspeople, doctors and others, spearheaded by the US State Department, met to discuss and advise on public health and humanitarian needs, transparency and anti-corruption, oil and energy, defense policy and institutions, transitional justice, democratic principles and procedures, local government, civil society capacity building, education, free media, water, agriculture and environment and economy and infrastructure in a post Saddam Hussein Iraq. Twelve reports were released. They are clearly well intentioned, intelligently written and informed documents. Although they betray some lack of recent knowledge of daily life in the Iraq of the early 21st Century (which was inevitable given the unavoidable selection of experts from the Iraqi exile community, some of whom had left Iraq in the 1970s or 1980s) they were prescient in warning against the immediate disbanding of the Iraqi Army and the danger of looting in the immediate aftermath of an invasion. Although many of the recommendations and warnings were not immediately headed, the subsequent actions of the Coalition Provisional Authority, particularly in the field of law reform, are clearly influenced by the ‘Future of Iraq’ project.
The 248 page report on Transitional Justice, compiled by over forty Iraqi judges, law professors and legal experts, contains draft laws and recommendations on transitional justice, amnesty and compensation; criminal law reform; judicial structure; institutional reform; nationality; human rights; and civil and property law reform.
The report recommends the reversion of both the Penal Code No. 111 of 1969 and the Criminal Procedure Code No. 23 of 1971 to their original versions, as enacted and published in the Official Gazette – repealing all amendments. The intention was to delete the perversions to the criminal justice system introduced by the Baathist regime but a wholesale reversion would have had the unhelpful effect of deleting the good along with the bad. Many of the amendments to these laws, particularly in the 1970s and 1980s, were clearly apolitical and well intentioned responses to inadequacies in the original texts or changing circumstances. After the 2003 invasion, the Coalition Provisional Authority in fact reverted the Penal Code to the version extant at the beginning of 1985 and made a number of other amendments to both the Penal Code and Criminal Procedure Code.
The recommendations relating to the abolition of special courts, the independence of the judiciary, the re-establishment of the Judicial Council and the establishment of a constitutional court closely correlate in broad outline and in detail to the measures put in place by the Coalition Provisional Authority.
A transitional authority comprised of Iraqis was recommended with the interesting proviso that in order to prevent a conflict of interest, none of those involved in this transitional phase of government leading up to elections should be permitted to stand as candidates in the first elections.