Victory in Iraq vs. order in Iraq
The frenzy of civil disorder we have been witnessing in Iraq's cities suggests at the outset just how hard it will be to win the peace in that devastated country.
But managing chaos under law will surely be a prerequisite to delivering adequate quantities of humanitarian aid, beginning recovery operations, and achieving normalcy. The tasks involved are similar to those faced in a variety of settings over the past decade in places like Haiti and Afghanistan.
How, then, can the rule of law be achieved in Iraq?
To start working that out, the Justice Department will send the first members of a 26-person judicial assessment team to Iraq Thursday. When the team - including representatives from Canada, Denmark, and Britain - returns in two weeks, it will surely report that the needs are immense and the tasks daunting. But this is the current system - a group of smart people improvising furiously.
Of course, experience dictates that at the outset the military must impose basic security, suppressing hostile forces and ensuring crowd control and basic public order. While lawlessness in the wake of the US victory in Iraq has trained much of the public debate on the need for police, this is only a threshold issue.
If persons suspected of committing serious crimes are arrested, where will they be incarcerated? Who would prosecute, defend, and judge them? Under what law? (For example, the former head of theft investigations for the Baghdad police said in a Monitor interview Tuesday that officials released criminal suspects Sunday because "we were not sure what to do with them."
Initially, prison and judicial functions must be undertaken directly by the military. But this would not be a durable arrangement where even the appearance of a military occupation will have negative political consequences. So, as soon as feasible the relevant functions - including police, prison officials, and the judiciary - must be transferred to predesigned civilian structures, such as a justice ministry or courts.
Iraq had a highly developed judicial system with lower criminal and civil courts, appeals tribunals, and special security structures. Judicial independence and legal integrity, however, were badly eroded over the past decade by the Baath Party. Nonetheless this group cannot be completely excluded from a new system - not every person was corrupt.
Therefore careful efforts by the US-led military administrationwill be needed to screen a cadre of indigenous police, prison administrators, prosecutors, defense lawyers, and judges. Where government offices and local personnel still function, foreign personnel would have a monitoring and local capacity-building role.
The basic problem is that neither the US government nor anyone else has a formula for quickly achieving the rule of law in post-conflict settings. But reality dictates a response now.
As a first step, the external actors - the US and other like-minded governments and international organizations - should prepare as soon as feasible a comprehensive plan with benchmarks and timetables to rebuild Iraq's legal institutions.
Priorities should be assigned to meting out justice for past atrocities and rebuilding the justice system. A careful inventory of the many constituent sources of law and legal traditions, including Islamic law, will be needed. This transitional exercise should address such questions as what law applies, an issue that vexed UN peace-building missions in Kosovo and East Timor.
A transitional development plan for a return to the rule of law would have to be implemented in an open-ended manner, reflecting both the elusive nature of the concept, and the patience and resolve required to invest capacity in such endeavors. International action here would connect with broader ongoing efforts undertaken by a wide array of donor governments and institutions such as the UN Development Group and the World Bank. This would be done with a view toward reforming and restructuring Iraq's legal system relating to criminal proceedings, and through civil matters such as private investment.
International efforts to promote the rule of law in Iraq will inevitably reinforce a sobering lesson: The US and its allies enjoy a decisive advantage in war-fighting; no one has a decisive advantage in nation-building.
• Arthur C. Helton, a lawyer and senior fellow at the Council on Foreign Relations, is the author of 'The Price of Indifference: Refugees and Humanitarian Action in the New Century.'