Back on the path to justice

With Saddam gone, Iraq is re-establishing a fair and independent legal system, says Akbar Khan

Since the recent televising of Saddam Hussein's arraignment before an Iraqi judge in Baghdad, hardly a week seems to pass without concerns being raised by various commentators about the ability of the Iraqi judiciary to deliver justice in his trial. What hasn't been appreciated is that, in the past year, the Iraqi legal system has changed radically. Some 180 Iraqi judges have been removed and the remainder subjected to vetting procedures.

Since the recent televising of Saddam Hussein's arraignment before an Iraqi judge in Baghdad, hardly a week seems to pass without concerns being raised by various commentators about the ability of the Iraqi judiciary to deliver justice in his trial. What hasn't been appreciated is that, in the past year, the Iraqi legal system has changed radically. Some 180 Iraqi judges have been removed and the remainder subjected to vetting procedures.

It is quite clear that the Iraqi judiciary has been re-established as a separate branch of government under the supervision of the Council of Judges and is now free from political interference and, hopefully, corruption. Judicial and prosecutorial salaries have also been increased, to minimise the risk of temptation from bribes and to reduce corruption. Efforts have been made to refresh the legal skills and knowledge of the Iraqi judiciary in order to re-equip them with the necessary tools to conduct trials fairly and in accordance with internationally accepted standards.

That the Iraqi people deserve to see the previous regime made accountable for their past crimes is without doubt. Whether the Iraqi judiciary can deliver justice in their trials to the satisfaction of the international community should be judged in hindsight and not before. Giving the Iraqi judiciary the benefit of the doubt, rather than simply airing negative comment and speculation from the sidelines, is the very least the international community can do at this critical time to support Iraq as it seeks to confront the dark crimes of its past.

In August 2003, following a legal needs assessment mission to Iraq, the United Nations Office of the High Commissioner for Human Rights (OHCHR) published a report on the condition of the Iraqi legal system. It noted that the system was "chronically dysfunctional" across all fields, having been progressively and substantially degraded over a period of 30 years. Courts had been looted and severely damaged and legal education and judicial training, like the rest of the legal system, was corrupted and politicised.

The report observed that all legal actors are in need of exposure to legal reform efforts in other jurisdictions as well as intensive training programmes on both international human rights standards and basic legal skills.

On a more positive note, the report stated that "Notwithstanding the long-term degradation of the legal sector, there is strong institutional memory that should form the core base of future legal reform".

Following the tragic bombing of the United Nations Office in late August 2003 and the subsequent withdrawal of the organisation from Iraq, the rehabilitation of the Iraqi justice system fell to the Coalition Provisional Authority (CPA) under its administrator, L Paul Bremer. From the outset, the CPA recognised it was necessary to take steps to ensure fundamental standards of due process and to promote the rule of law through an independent and impartial judiciary. There was also recognition that the Iraqi justice system had been subjected to political interference and corruption over the years of Iraqi Ba'ath Party rule. To address these issues, the CPA embarked on some far-reaching institutional changes aimed at removing corruption, promoting the rule of law and restoring an independent and impartial judiciary.

In May 2003 the CPA promulgated the De-Ba'athification of Iraqi Society Order, which removed from public office and barred from future public office certain classes of high-ranking Ba'ath party members, which also included judges who were senior members of the party. Although the response to the order from some sections of society was critical - on the basis that it had the effect of removing some highly skilled individuals - it was defended by the CPA as an appropriate measure to end the large-scale human rights abuses and deprivations suffered by the Iraqi people at the hands of the Ba'ath Party.

In addition to the De-Ba'athification Order, the CPA also promulgated the Judicial Review Committee Order, which established a committee of equal numbers of Iraqi and coalition legal members to vet all existing 860 judges and prosecutors nationwide for past corruption and to determine their suitability for continued holding of office. The committee was also responsible for appointing and removing individuals. Approximately 180 judges were removed and replaced with new appointments or reappointments of individuals who had been improperly removed under the previous regime.

Prior to Saddam Hussein's regime, the Iraqi judiciary was an independent authority regulated by a High Judicial Council. In 1979, the High Judicial Council was dissolved and the responsibility for the appointment, discipline and removal of judges was brought under the authority of the Minister of Justice, thereby ending the independence of the judiciary. CPA order 35 restored the independence of the judiciary through the re-establishment of the Council of Judges, chaired by the Chief Justice of the Supreme Court.

In addition to the institutional changes that have taken place to ensure an independent judiciary, the CPA and the UK government have separately sought to address the problem of outdated legal skills identified in the OHCHR report. In May 2004, the CPA held an inaugural training course in The Hague for 28 Iraqi judges as part of its Rule of Law training programme.

The Iraqi judicial delegation, led by the Iraqi Chief Justice, met with Lord Woolf, the Lord Chief Justice of England & Wales, US Supreme Court Justices Kennedy and O'Connor and senior national judges from other countries to discuss the importance of the rule of law to a healthy and open society, separation of powers and the role of the judiciary in securing fundamental rights. In addition, our Government is currently funding a programme of justice sector support in Iraq, implemented by the International Legal Assistance Consortium, involving training on independence and international human rights law.

With the dissolution of the CPA on 28 June 2004, some may wonder what prospects exist for the continued independence of the Iraqi judiciary. In principle, it is open to the Iraqi Interim Government to repeal or rescind the CPA orders restoring the independence of the judiciary. However, this seems highly unlikely as the Iraqi Interim Government has agreed to operate under the Transitional Administrative Law (promulgated on 8 March 2004), which enshrines the separation of the judiciary and serves as the supreme law of Iraq until the formation of an elected government.

Prime Minister Allawi has also stated that his government is committed to upholding the independence of the judiciary and affording due process rights to the former regime members who will face trial. Significantly, the due process rights that are to be afforded to Saddam Hussein and his allies are the very rights that the former regime denied to ordinary Iraqis. This shows how Iraq is making a clear break with the past and has rediscovered its respect for the rule of law.

Akbar Khan is an assistant legal adviser at the Foreign & Commonwealth Office. The opinions expressed in this article are those of the author alone and do not necessarily reflect those of the Foreign & Commonwealth Office