Robert Shrader

Sorting Out the Court System after Saddam: A Look at the Establishment of the Rule of Law in Iraq Focusing on Legal Reform

The United States can learn from its experience in Iraq, particularly in the development of the judicial system.  Initially, policy makers depended too much on Iraqi exiles that were out of touch with the state of affairs at the time of the overthrow of Saddam Hussein’s regime.  After an ineffective Department of Defense effort to stabilize the country, the U.S. had to quickly change its approach, transferring authority over to a coalition nation-led group, the Coalition Provisional Authority.  The new coalition repaired not just the physical structure of the society but also restored the institutions and mindset of Iraqi citizens.  The CPA’s challenge was to help the citizens’ transition from a ruthless dictator to a free democratic society.  The CPA served in an advisory capacity, using the existing framework to make the government as familiar as possible to Iraqis.  Consistency helped to gain Iraqi confidence and convince the people that the U.S. was not imposing an American system.  Few changes were made to the existing system, which was fairly self-sufficient and effective even under Saddam Hussein’s regime.  One of the most significant changes was the implementation of a federal court system called the Central Criminal Court of Iraq.  Also, the coalition partners tried to instill modern judicial practices such as legal due process and judicial independence.  The reform process was not without mistakes; the CPA implemented an overly-broad vetting process which paralyzed the system, eliminating too many judges from the past regime.  As the United States continues to advise Iraqi jurists, they need to most of all encourage activist judges to exercise judicial restraint so they will not tamper too much with laws created by the people through the legislative process.  Hopefully with a strong federalist governmental structure in place, a free democratic society will take hold in the country.  Everything depends on the Iraqi citizens.  New constitutional provisions and modifications of the court system have left the future up to the will of the Iraqi people.  Iraqis may allow another dangerous regime to take hold similar to the radical theocratic government in Iran; a free democratic society may form; or something in between may develop.