Nearly 10 years after regime change, seven years since the first democratic elections and despite several billion dollars worth of targeted aid, the rule of law in Iraq ranges from fragile to non-existent. In one of the first tests of Europe’s Common Security and Defence Policy, a small and little-known mission, EUJUST LEX-Iraq, is braving the precarious security situation to try to strengthen Iraqi institutions, such as the judiciary, police and prison services.
Seven years since its creation in 2005, EUJUST LEX-Iraq is still in ‘crisis management’ mode and its mandate - just extended to the end of 2013 - is running out.
The EU’s first integrated rule of law mission had a controversial start. An assessment by the European Union Institute for Security Studies in 2009 said it was effectively ‘hobbled at birth’ by political disagreements, with several member states, including France and Spain, refusing to allow the mission an in-country role. The current head of mission, László Huszár, a softly spoken Hungarian with the rank of brigadier general in his country’s prison service, admits that EUJUST LEX took time to find its feet: ‘At the beginning the idea was to provide strategy, but it is difficult to define strategy if you’re in a reactive mode.’ Security risks meant that for the first five years EUJUST’s work was confined mainly to running training courses in Europe and safer countries in the region.
Since 2010, however, it has worked almost entirely in-country. Today, the Baghdad headquarters rents accommodation from the British Embassy, inside the international or green zone. In the northern city of Erbil, its regional office and staff quarters occupies a corridor of a securely guarded out-of-town hotel. There is also an outpost in Basra, operating from a hardened aircraft hangar. Huszár says that the only tasks carried out in Europe are those where location is essential, such as training in European high-security prison management.
Of the mission’s budget, €27m in the 18 months to 31 December 2013, about half goes on security. Huszár says this is a ‘reasonable’ figure, given that the mission operates from three centres and has to carry out training ‘not just meetings’ with institutions that are insurgency targets. Even in relatively safe areas such as Erbil, security precautions involve pre-approval for every journey off-base, and travelling in pairs of armoured 4x4s, accompanied by armed security contractors. The final stage of the mission is focusing on transferring knowledge to Iraqi institutions.
‘It is important to remember that Iraq has never been a country without a rule of law, even though the rule might have been quite different to what we expect today,’ Huszár says. It is ‘a mistake to see them as a people with no legal knowledge and traditions’. Iraq’s current legal system dates from the Ottoman empire: it was modelled on the Egyptian system, which in turn was based on the French Napoleonic code. However, while the government has signed up to most recent international human rights protocols, implementation of both civil and criminal justice remains flawed on the ground.
One of the mission’s priorities is to strengthen the judicial system by improving the training and institutional independence of judges and public prosecutors.
The Gazette last week attended a flagship initiative, the opening of the first judicial training institute for the semi-autonomous region of Kurdistan. The institute will put 42 candidates, each with at least eight years’ legal practice experience, through a two-year course. The first intake was chosen from 790 applicants. EUJUST’s involvement is in helping to write the curriculum. ‘There is a need to make explicit the core values that should be the basis of performance of a judge,’ says Jan Hansen, a Norwegian expert (funded by his own non-EU government) who is working with Jan Van Wijland, a judge from the Netherlands. Courses include lessons on ‘corruption, judicial ethics, integrity and independence’, ‘Basic principles for a functional judiciary’ and ‘The chain of evidence in criminal cases’.
A big challenge is to ensure that judicial appointments are free of political interference. The institute’s head, Ramiz Namiq Aldawde, vice-president of the Court of Cassation, says: ‘The most important condition is that candidates are not affiliated to any political party.’
Iraq’s criminal justice system is the subject of widespread international concern. Most investigations are based on confessions. While in theory every defendant who needs one is assisted by a publicly funded lawyer, the average throughput of 20 cases a day in the Court of First Instance (according to one judge) tells its own story. Efforts by EUJUST LEX to make prosecutions more evidence-based include training for police and prosecutors, and assistance setting up forensics facilities. Today, notes Huszár, ‘they don’t even look for fingerprints’.
Judge Ahmad Zuber, chairman of the judiciary in the Kurdish region, puts such efforts in context: ‘The confession-based interview is part of Iraqi procedures, but not in 100% of cases. Judges don’t accept confessions every time.’ Proceedings can be based on witnesses’ evidence ‘but a problem of our society is that people do not come forward as witnesses’. A more urgent concern is capital punishment. After a brief period of abolition under the provisional government set up by occupying forces, the current Shia-dominated administration in Baghdad is carrying out executions at a rate exceeded only by China, Iran and Saudi Arabia.
Even though his own jurisdiction has not carried out an execution since 2007, Zuber defends the death penalty: ‘Our position is that capital punishment is a very harsh measure, but given the harsh challenges we face a less harsh punishment would not deter, so it is necessary here.’
EUJUST LEX can have little influence on the issue, Huszár says. ‘The knowhow we transfer is focusing on other matters, on what we think are the topics they want to hear about. Of course we convey the European message, but we are not a political mission. We do not focus on politically charged matters; as long as the chief justice says capital punishment is OK, we can’t start the debate.’
The Iraqi penal code, dating from 1969, needs updating in several areas such as white collar crime. Local judges interviewed by the Gazette said that specific legislation is badly needed to tackle offences such as cyber crime, money laundering and human trafficking.
There are also shortcomings with infrastructure. Officials of the Kurdish Judges Union, set up in 2007 in an attempt to protect judges from political interference, say the courts system sorely needs modern computer networking. (The Gazette pointed out that Kurdistan is not unique in that respect.)
Another part of EUJUST’s mission is to support efforts to detect and prosecute violence against women. The official agency, the General Directorate of Violence Against Women, is still at an early stage and under criticism from non-governmental organisations for undercounting the scale of atrocities such as self-immolations. The centre is trying to raise awareness among women with leaflets distributed in schools and supermarkets and a hotline number. The centre also runs five shelters in the Kurdish region. Kurdo Abdulla, head of the directorate, admits this is not always successful: ‘In 2008 there were five cases of women being killed after returning to their families, but we cannot stop them.’
While she mentions ‘a misunderstanding of Islam and religion’ as a cause of violence, she becomes more animated when blaming the effect of technology – mobile phones and the internet make it easy for girls to have illicit relationships, and leave an evidence trail for male family members to follow. The final focus of EUJUST LEX’s work, improving Iraq’s prison system, has its own challenges. The Gazette was refused permission to accompany a mission visit to a women’s prison, but Huszár says that a high percentage of women inmates are incarcerated for ‘offending morals’ rather than for crimes that would be recognised in Europe.
Opportunities in Kurdistan
One part of Iraq attracting serious foreign investment, with attendant opportunities for law firms, is the Kurdish autonomous region, known as the KRG (Kurdish Regional Government).
‘This is an amazing place,’ says Hugh Evans, UK consul general for Kurdistan region and northern Iraq, pointing to a prediction of 12% economic growth this year. A glance around the skyline of the capital Erbil, being transformed with high-rise apartments and shopping malls, confirms an economy in boom.
More than 40 oil and gas companies are operating in the region, including the largest such as Exxon Mobil and Russia’s Gazprom, with the bulk of production piped or transported by road to Turkey. Under an agreement with Baghdad, the KRG takes 17% of petroleum revenues.
On the back of these revenues, the government claims to be planning Malaysian-style industrial development. Evans’ message is ‘get in now, get to know the market, get to know the people’.
The government says it is aware of the need to create international confidence in the rule of law.
The Kurdish judicial system is similar to that of the rest of Iraq (laws are written in Arabic rather than Kurdish). Civil courts are divided into courts of first instance, dealing with debts, property disputes and personal status cases, and appeal courts. The Kurdistan Court of Cassation is the final court of appeal, though there is also a Federal Supreme Court in Baghdad to deal with interpretations of the constitution and settlement of disputes arising from the implementation of federal laws.
Foreign lawyers should be aware of local sensitivities. The Kurdish Bar Association says that foreign lawyers may practise in the region only if reciprocal arrangements exist for Kurdish lawyers in their own country – and says it is taking action against UK firms which it accuses of flouting this law.
Those interested in the region should be aware that ‘there is corruption’, says a diplomat familiar with the region. But he adds this is more at the level of needing to be aware of personal connections than explicit bribery.
The current stability in the region follows a truce agreed in 2005 to end a vicious civil war between rival political parties the PDK and PUK, perhaps more properly thought of as followers of two clans, the Barzanis and Talabanis. While both parties, as well as a newly emerging ‘Change’ party are committed to the open market, a return to civil strife cannot be ruled out.
Anti-corruption riots in the PUK-dominated city of Suleimaniyah resulted in 10 deaths last year.
However, Huszár says a Briton would recognise the basic architecture of most Iraqi prisons, ‘a 19th century design’. There, the similarities end. In common with much of Asia, security is confined to the outer perimeter, with prisoners kept in big cells ‘run in a relaxed way’. One disturbing consequence is that prison population numbers are not known. Hence a focus of EUJUST LEX’s training is internal audit - simply knowing what’s going on. The other is crisis management, or containing a riot by means short of calling in a military strike.
With just over a year of EUJUST LEX’s mandate to run, it is clear that much work remains to be done. Huszár says he is confident that 2013 will mark the end of the mission in its current form, with most of its activities taken over by the Iraqis. The feasibility of this goal varies considerably according to what Huszár calls the ‘institutional maturity��� of the Iraqi justice system. The mission makes considerably more progress in Kurdistan and Basra than it does in Baghdad, where central government’s influence is strongest. This is reflected by reaction on the ground, he says: ‘In Kurdistan they say they want us - they don't always say that in Baghdad!’
When asked for a measure of success, Huszár says the mission has trained more than 5,000 Iraqis in the rule of law. But he seems to take more pleasure from another metric, the attrition rate among other agencies that arrived in the country in the mid 2000s. ‘We’re still here and delivering.’
As for Iraqis, the stock answer when trying to pin down facts about any shortcoming in the rule of law, whether it be violence, corruption or procedural delay is: ‘Yes, it happens, but if you compare with the past in Iraq it is a massive improvement.’ Here optimism is a useful habit.
Michael Cross ’s trip to Iraq was organised with the help of EUJUST LEX and paid for by the Gazette
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