Constitutionalism, Human Rights, and the Rule of Law in Iraq

S. HRG. 108–217 CONSTITUTIONALISM, HUMAN RIGHTS, AND THE RULE OF LAW IN IRAQ JOINT HEARING BEFORE THE SUBCOMMITTEE ON NEAR EASTERN AND SOUTH ASIAN AFFAIRS OF THE COMMITTEE ON FOREIGN RELATIONS UNITED STATES SENATE AND THE SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED EIGHTH CONGRESS FIRST SESSION JUNE 25, 2003 Printed for the use of the Committee on Foreign Relations ( Available via the World Wide Web: http://www.access.gpo.gov/congress/senate U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 90–493 PDF 2003 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 90493 SFRELA2 PsN: SFRELA2 COMMITTEE ON FOREIGN RELATIONS RICHARD G. LUGAR, Indiana, Chairman CHUCK HAGEL, Nebraska JOSEPH R. BIDEN, JR., Delaware LINCOLN CHAFEE, Rhode Island PAUL S. SARBANES, Maryland GEORGE ALLEN, Virginia CHRISTOPHER J. DODD, Connecticut SAM BROWNBACK, Kansas JOHN F. KERRY, Massachusetts MICHAEL B. ENZI, Wyoming RUSSELL D. FEINGOLD, Wisconsin GEORGE V. VOINOVICH, Ohio BARBARA BOXER, California LAMAR ALEXANDER, Tennessee BILL NELSON, Florida NORM COLEMAN, Minnesota JOHN D. ROCKEFELLER IV, West Virginia JOHN E. SUNUNU, New Hampshire JON S. CORZINE, New Jersey KENNETH A. MYERS, JR., Staff Director ANTONY J. BLINKEN, Democratic Staff Director SUBCOMMITTEE ON NEAR EASTERN AND SOUTH ASIAN AFFAIRS CHUCK HAGEL, Nebraska SAM BROWNBACK, Kansas GEORGE V. VOINOVICH, Ohio NORM COLEMAN, Minnesota LINCOLN CHAFEE, Rhode Island, Chairman BARBARA BOXER, California JON S. CORZINE, New Jersey JOHN D. ROCKEFELLER IV, West Virginia PAUL S. SARBANES, Maryland COMMITTEE ON THE JUDICIARY ORRIN G. HATCH, Utah, Chairman CHARLES E. GRASSLEY, Iowa ARLEN SPECTER, Pennsylvania JON KYL, Arizona MIKE DEWINE, Ohio JEFF SESSIONS, Alabama LINDSEY O. GRAHAM, South Carolina LARRY E. CRAIG, Idaho SAXBY CHAMBLISS, Georgia JOHN CORNYN, Texas PATRICK J. LEAHY, Vermont EDWARD M. KENNEDY, Massachusetts JOSEPH R. BIDEN, JR., Delaware HERBERT KOHL, Wisconsin DIANNE FEINSTEIN, California RUSSELL D. FEINGOLD, Wisconsin CHARLES E. SCHUMER, New York RICHARD J. DURBIN, Illinois JOHN EDWARDS, North Carolina MAKAN DELRAHIM, Chief Counsel and Staff Director BRUCE A. COHEN, Democratic Chief Counsel and Staff Director SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS JON KYL, Arizona LINDSEY O. GRAHAM, South Carolina LARRY E. CRAIG, Idaho SAXBY CHAMBLISS, Georgia JOHN CORNYN, Texas, Chairman RUSSELL D. FEINGOLD, Wisconsin EDWARD M. KENNEDY, Massachusetts CHARLES E. SCHUMER, New York RICHARD J. DURBIN, Illinois JAMES C. HO, Majority Chief Counsel ROBERT F. SCHIFF, Democratic Chief Counsel (II) VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 90493 SFRELA2 PsN: SFRELA2 C O N T E N T S Page HEARING TRANSCRIPT Agawa, Naoyuki, minister and director of the Japan Information and Culture Center, Embassy of Japan ................................................................................... 57 Prepared statement .......................................................................................... 59 Boxer, Hon. Barbara, U.S. Senator from California, prepared statement .......... 3 Chafee, Hon. Lincoln D., U.S. Senator from Rhode Island, opening statement . 2 Cornyn, Hon. John, U.S. Senator from Texas, opening statement ...................... 1 El Fadl, Khaled Abou, professor of law, UCLA School of Law ............................ 17 Prepared statement .......................................................................................... 18 Feingold, Hon. Russell D., U.S. Senator from Wisconsin, opening statement ... 4 Haykel, Bernard, professor, Department of Middle Eastern Studies, New York University ............................................................................................................. 13 Prepared statement .......................................................................................... 15 Howard, A.E. Dick, White Burkett Miller Professor of Law and Public Affairs, University of Virginia Law School ...................................................................... 68 Prepared statement .......................................................................................... 70 Kennedy, Hon. Edward M., U.S. Senator from Massachusetts, prepared state- ment ...................................................................................................................... 38 Kommers, Donald, Joseph and Robbie Professor of Political Science and Pro- fessor of Law, Notre Dame School of Law ......................................................... 64 Prepared statement .......................................................................................... 67 Kritz, Neil, director, Rule of Law Program, U.S. Institute of Peace; accom- panied by Louis Aucoin ....................................................................................... 75 Prepared statement .......................................................................................... 77 Pollack, Kenneth M., senior fellow, Saban Center for Middle East Policy, Brookings Institution ........................................................................................... 7 Prepared statement .......................................................................................... 9 Salbi, Zainab, president and founder, Women for Women International ........... 32 Prepared statement .......................................................................................... 35 Al-Sarraf, Sermid, member, Board of Directors, Iraqi Jurists’ Association ........ 27 Prepared statement .......................................................................................... 30 Yoo, John, visiting fellow, American Enterprise Institute ................................... 48 Prepared statement .......................................................................................... 49 APPENDIX Transitional Justice in Post-Saddam Iraq: The Road to Re-establishing Rule of Law and Restoring Civil Society, a report of the Working Group on Transitional Justice in Iraq and the Iraqi Jurists’ Association ....................... 91 Material submitted by the United States Institute of Peace: Conclusions of USIP Roundtable on Lessons learned From Prior Vetting Processes ............................................................................................................... 109 Project on Constitution-Making, Peace Building, and National Reconciliation . 111 (III) VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 90493 SFRELA2 PsN: SFRELA2 VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 90493 SFRELA2 PsN: SFRELA2 CONSTITUTIONALISM, HUMAN RIGHTS, AND THE RULE OF LAW IN IRAQ Wednesday, June 25, 2003 U.S. SENATE, SUBCOMMITTEE ON NEAR EASTERN AND SOUTH ASIAN AFFAIRS, Committee on Foreign Relations SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS, Committee on the Judiciary, Washington, D.C. The subcommittees met, pursuant to notice, at 2:13 p.m. in room SD–226, Dirksen Senate Office Building, Hon. John Cornyn, chair- man of the Subcommittee on the Constitution, Civil Rights and Property Rights, Committee on the Judiciary, and Hon. Lincoln Chafee, chairman of the Subcommittee on Near Eastern and South Asian Affairs, Committee on Foreign Relations, presiding. Present: Senators Cornyn, Chafee, and Feingold. OPENING STATEMENT OF HON. JOHN CORNYN, U.S. SENATOR FROM TEXAS Senator CORNYN. This joint hearing of the Senate Judiciary Sub- committee on the Constitution, Civil Rights and Property Rights and the Senate Foreign Relations Subcommittee on Near Eastern and South Asian Affairs shall come to order. In a moment I want to begin my opening statement and then turn the floor over to Senator Chafee, the chairman of the Foreign Relations subcommittee, and then to my ranking member, Senator Feingold, and Senator Boxer, the ranking minority Member of Sen- ator Chafee’s committee, but I want to first express my apprecia- tion to Chairman Hatch and also to Chairman Lugar, who is the chairman of the Senate Foreign Relations Committee, as well as Senators Biden, obviously Senators Chafee and Boxer for all the hard work that they’ve done and their staffs have done to make sure that this hearing could proceed today. It is my honor to join Chairman Chafee in opening our joint sub- committee hearing this afternoon on the issue of constitutionalism, human rights, and the rule of law in Iraq. Today, the lights are back on in Baghdad. The sound of gunfire is still there, but not quite so loud as before. The climate in Iraq can best be described as cautious unease. The Iraqi people today are free of Saddam, but they are not yet free of fear. We’ve seen progress when it comes to ensuring the basic security of the Iraqi (1) VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 90493 SFRELA2 PsN: SFRELA2 2 people, the recruitment of a new police force, the continued elimi- nation of Ba’athist party remnants, and the capture of armed gangs of militants, all of which are positive signs, but clearly there is a lot more that needs to be done. We must end the looting and the street violence and restore the rights of the Iraqi people. The foundation of a peaceful, just, and prosperous society cannot be constructed while lawlessness reigns. The current unstable situation is at least in part, I believe, an un- intended by-product of the swiftness and efficiency of our own mili- tary forces and coalition forces. Never before has the world wit- nessed such a marvel of technology, training, dedication, and lead- ership in war, and I am enormously proud of our heroic men and women in uniform who bravely put themselves at risk for the cause of freedom. Yet currently, the only thing that prevents the mass outbreak of conflict by Iraq’s rival ethnic and religious groups is the authority of coalition military forces. This stop gap is clearly no substitute for long-term solutions. The Iraqi people must relearn how to govern themselves and police themselves. We can harbor no illusions about the reconstruction of Iraq. The current occupation will not and perhaps should not be brief. While the administration understandably wants to return Iraq to the Iraqi people as soon as possible, this well-intentioned desire could backfire. Iraq looks a lot like the Old West right now, and we need lawmen to restore peace and to protect the populace. In my State, the Texas Rangers have a saying, ‘‘One Ranger, One Riot,’’ but Iraq will need more than just one police officer, one Ranger. It will need a substantial professional and civilian police force untainted by Saddam’s enforcers. I am delighted to be able to co-chair this hearing with Senator Chafee, and I want to make sure we have plenty of time to hear from my colleagues here during their opening statements, and so I’m going to submit the rest of my opening statement for the record, but one of the things that I hope we achieve here today is that we have intelligent discourse and exchange on what post-war reconstruction looks like in Iraq from people who are really world- recognized experts in various aspects of, either that of geographical location and the culture and the history of the Iraqi people, or oth- ers who are experts in the law, who can help illuminate, I think, a civil discourse on what it will take to establish the rule of law in Iraq, and hopefully help the Iraqi people nurture a democratic, representative government in that nation. With that, let me please turn the floor over to my co-chair for the purposes of this hearing, Senator Lincoln Chafee. STATEMENT OF HON. LINCOLN D. CHAFEE, U.S. SENATOR FROM RHODE ISLAND Senator CHAFEE. Thank you very much, Senator Cornyn. It’s a pleasure to co-chair this hearing with you this afternoon, and wel- come the distinguished panelists who have taken their valuable time to be here with us also this afternoon. A few weeks ago, May 22 in particular, Deputy Secretary of De- fense Paul Wolfowitz appeared before the Foreign Relations Com- mittee and I asked him, what are the effects of what we have done VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 90493 SFRELA2 PsN: SFRELA2 3 in Iraq, and he said three things in particular. The first is, he thought it would have a positive impact on the Israeli-Palestinian peace process. Second, he thought it would improve the strategic position of Saudi Arabia and other moderate Arab countries in the region, and third, he said it would bring us to a point where Iraq could be a model of democracy in the Arab world, and that’s why we’re here this afternoon, to see that process started which, of course, the first step is to have a constitution, and I look forward to hearing from the distinguished people who will advise us on the process to go forward in establishing a constitution for Iraq as the first step to democracy. I did notice from Dr. El Fadl’s submitted written testimony I think something that’s very true, and he said, the worst thing that the Government of the United States could possibly do while acting as an occupying power in Iraq is to impose upon the Iraqi people a political condition that is so artificial, that is so alien to the col- lective consciousness of the Iraqis, that it is at odds with the his- torical experience and aspirations, that it appears that the United States is, in fact, acting like a power of occupation and domination, not persuasion and liberation. The danger is that if the United States appears hostile or insen- sitive to the religious sentiments of the Iraqis, this will invite re- sistance. It would be a real tragedy if the democratic experiment in Iraq fails, not because the Iraqis do not believe in democracy but because democracy is seen as part of an ideological package of an aggressive or imperialistic occupying force, and I think that’s the most important thing. What a tragedy it would be if democracy fails because we didn’t do it right, and of course the first step is to get a good constitution, and I look forward to the testimony as we go forward. Senator CORNYN. Thank you, Senator Chafee, and now I’d like to turn the floor over to the ranking member of the Constitution Sub- committee, Senator Russ Feingold, who has worked with us, he and his staff, to prepare this hearing today, and Senator Feingold, I’ll turn it over to you. Senator FEINGOLD. Thank you, Mr. Chairman. First let me ask, Senator Boxer has asked that her statement be submitted for the record. Senator CORNYN. Without objection. [The prepared statement of Senator Boxer follows:] STATEMENT SUBMITTED BY SENATOR BARBARA BOXER Chairman Chafee, Chairman Cornyn, thank you for holding this hearing today on Constitutionalism, Human Rights and the Rule of Law in the Nation of Iraq. The Senate Foreign Relations Committee has held several hearings on Iraq since last July, beginning under the leadership of Chairman Biden and then under Chair- man Lugar. In February, prior to U.S. military action against Iraq, the committee held a hearing on post-Saddam Iraq. Representatives of both the State Department and Department of Defense testified. The committee asked several questions: • Who will rule Iraq? • Who will provide security? • How long will U.S. troops have to say? • What will be the role of the U.N.? • What allies will share the burden of reconstructing Iraq? VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 4 During this hearing, the committee failed to get clear answers—only rosy sce- narios. As Chairman Lugar recently said, ‘‘We were unable in this committee to find very much from the administration about what they were going to do.’’ The adminis- tration—in the Chairman’s own words—was not ‘‘well prepared.’’ In my view, the number one priority in Iraq is to provide basic law and order. It is unfortunate that we were not better prepared to stop the looting and lawless- ness that took place after the fall of Baghdad. Now, our military men and women, who so ably fought to rid Iraq of Saddam Hussein, are frustrated that they have not been given the tools or training to act as peacekeepers. According to the Washington Post, ‘‘soldiers complain that they have been insuffi- ciently equipped for peacekeeping and too thinly deployed in areas where they are under attack from fighters evidently loyal to deposed president Saddam Hussein.’’ Because of the Bush administration’s insistence on a unilateral policy toward Iraq, the task of keeping peace falls almost exclusively to the United States. Right now, the U.S. has 146,000 troops in Iraq—non-U.S. coalition forces number 12,000. U.S. forces make up 92 percent of the total. To compare, after hostilities ended in Bosnia, the security force was about one-third American; in Kosovo, about one-fifth. It is imperative that we do more to involve other nations in maintaining law and order in Iraq. A second issue we face is how to establish a viable transitional government of Iraq. It is clear that the administration’s initial plans have failed. General Gamer has been recalled and replaced by a civilian administrator. The Pentagon’s plan to give power to Mr. Chalabi and the Iraqi National Congress has apparently been scrapped. Unlike Afghanistan where a Loya Jirga allowed Hamid Karzai to take control rel- atively soon after the fall of the Taliban, no such mechanism to produce a viable Iraqi leader has emerged. Finally, I want to highlight the need to ensure that our initial missteps in Iraq do not lead to a rise in religious fundamentalism. In yesterday’s New York Times, Nicolas Kristof writes that, ‘‘An iron curtain of fundamentalism risks falling over Iraq, with particularly grievous implications for girls and women. President Bush hopes that Iraq will turn into a shining model of democracy, and that could still happen. But for now it’s the Shiite fundamentalists who are gaining ground.’’ Concerns about women and girls led me to offer an amendment to the Foreign Assistance Authorization bill to make it U.S. policy to ensure the full and active participation of women in the reconstruction of Iraq by promoting the involvement of women in the Iraqi government, the planning and distribution of assistance, and job promotion and training programs. I am pleased this amendment was unani- mously adopted by the Foreign Relations Committee. In addition, a report is being released today by Women Waging Peace in conjunc- tion with the Woodrow Wilson Center on the role of women in post-conflict Iraq. The findings contained in this report are the result of a two-day conference involving 26 Iraqi women leaders. Zainab Salbi, who will testify as part of our first panel of wit- nesses this afternoon, played a key role in the development of this report. We must ensure the full and active participation of women in the rebuilding of Iraq. It is necessary for long-term stability and the success of a democratic transi- tion. Thank you. STATEMENT OF HON. RUSSELL D. FEINGOLD, U.S. SENATOR FROM WISCONSIN Senator FEINGOLD. Thank you, Mr. Chairman. Chairman Chafee and Chairman Cornyn, as you know, not only am I fortunate to be the ranking member of the Constitution Sub- committee, but I’m also a member of the Foreign Relations Com- mittee. In that capacity, I’ve attended every Foreign Relations Committee hearing on Iraq over the past year, going all the way back to Chairman Biden’s first hearings on Iraq in late July and early August of 2002. Those hearings which were held before, during, and now after the war with Iraq have explored a wide variety of issues, including a series of hearings focused on aspects of stabilization and recon- VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 5 struction from the regional repercussions of changes in Iraq to international contributions to this post-conflict effort. While the Foreign Relations Committee is very active in over- seeing assistance designed to strengthen the rule of law and legal institutions around the world, one issue it has not yet explored in depth is the issue we will discuss today, establishing the rule of law in Iraq, so I commend the chairmen of the two subcommittees, Senators Chafee and Cornyn, for their leadership in calling this hearing. I’d also like to thank the chairman, as well as Senators Lugar, Biden, and Boxer and their staffs for their cooperation and collaboration in organizing this hearing. The purpose of this hearing is to explore some of the challenges the Iraqi people will face in reaching their goal of a stable and just society that respects basic human rights, including the rights of women and all Iraqis, regardless of religion or ethnicity. This hear- ing will explore some of the lessons learned from the experiences of other post-war nations and emerging democracies that have struggled to shape a constitution and rebuild legal institutions that promote principles of justice, freedom, and equality. I would like to briefly emphasize just a few points. First, establishing security and the rule of law is an obligation of the United States under the Fourth Geneva Convention as an occupying power, and as our responsibility also to the people of Iraq, but I think it’s extremely important to make clear that this hearing should not be construed as an attempt by the Senate or the U.S. Government to draft the next constitution of Iraq or reform its legal system. I believe that Senator Chafee’s remarks were in that spirit. The Iraqi people must decide their course. Drafting a constitution and reforming legal institutions must be a representative and con- sultative process, not a process imposed by the occupiers. It won’t be easy, as past experiences with emerging democracies have shown, but it’s absolutely necessary that this part of the effort suc- ceed. The Iraqi people must be the authors of their own constitu- tion and their own destiny. Second, as we discuss the need for a revised Iraqi constitution, we should remember that the constitution, while important as a legal framework, is only one part of what must be a broader legal reform effort. Let’s remember that Iraq actually had a constitution under Saddam Hussein, so in addition to redrafting Iraq’s constitu- tion, efforts must be made to rebuild institutions like the police, prisons, and the judiciary. The Iraqi people also must consider what kind of mechanism they want to establish to account for and address past injustices by Saddam Hussein’s regime. We should support Iraqis in developing just such a constitution, but also a functioning and reliable legal system to enforce it, or else we risk doing them a great disservice. I look forward to learning more about these issues from our wit- nesses today as well. Finally, I recognize that the United States had great success in drafting the constitutions of post-World War II Japan and Ger- many, and we’ll hear today from some experts about those experi- ences, but I believe it’s important to note that some of our recent legal reform initiatives have been challenging, and have sometimes VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 6 had mixed success. There is no one-size-fits-all approach to drafting a constitution or rebuilding a legal system in a post war country, and I hope the hearing this afternoon will explore some of the les- sons learned from other legal reform efforts, from South Africa to East Timor. We have a number of more recent examples of constitutional re- form available to consider. We know that genuine consultation and civic participation are not easy to achieve, and that the most effec- tive mechanisms for ensuring legitimacy are sometimes culturally and historically specific to a given society. So I thank the two chairmen for convening this hearing, and I look forward to hearing from our witnesses. Senator CORNYN. Thank you, Senator Feingold. I couldn’t agree with you and Senator Chafee more about the way you characterize this challenge. We must help in every way possible to assist the Iraqis to establish the rule of law and a system of self-government. The challenge, though, comes in dealing with the basic security needs that are so obviously pressing upon us at this time, and to allow security to then give way to the constitution-making by the Iraqi people and then self-government under the rule of law. How we do that, how we assist without imposing ourselves I guess is the great challenge that confronts our Nation at this time. I’d like to ask the members of the first panel to come up and have a seat at the witness table, and I will introduce them as they assume their places. Our first panel is comprised of experts who can speak both to the history of and the present situation in Iraq. Their testimony will be critical to understanding the needs and present conditions of the Iraqi people, and in drafting an Iraqi con- stitution that will actually work to preserve their freedoms. First, we are pleased to have Dr. Kenneth Pollack on the panel. Dr. Pollack is a senior fellow in foreign policy studies at the Brook- ings Institution and director of research of the Saban Center for Middle East Policy at Brookings. During the Clinton administra- tion, Dr. Pollack served in the National Security Council first as Director for Near East and South Asian Affairs, and later as Direc- tor for Persian Gulf Affairs. He is the author of The Threatening Storm: The Case for Invading Iraq, a book he published in 2002. Professor Bernard Haykel is assistant professor of Middle East- ern studies and history at New York University. His academic ca- reer has focused on Islamic law and political and social history. In 2002, he published Revival and Reform in Early Modern Islam. He received a Ph.D. from Oxford University in Islamic studies in 1998. Professor Khaled Abou El Fadl is the Omar and Esmeralda Alfi distinguished fellow in Islamic law at UCLA Law School. He was born in Kuwait, and grew up in Egypt and Kuwait. He is the au- thor of numerous books on Islamic law, and has practiced law in both the United States and the Middle East. He received his Ph.D. in Islamic studies from Princeton in 1999, and has served on the UCLA law faculty since 1998. Mr. Sermid Al-Sarraf is an Iraqi-American lawyer currently prac- ticing in Los Angeles, California. He testifies today in his capacity as a member of the Iraqi Jurists’ Association and the Working Group on Transitional Justice of the State Department’s Future of Iraq project. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 7 I notice that in his written remarks he quotes from a speech which I gave earlier this month at the American Enterprise Insti- tute, so naturally I’m particularly interested in hearing his testi- mony today. That’s very gracious of you. Ms. Zainab Salbi is also a native of Iraq, and I must say, please accept my apologies if I mispronounce your name in any way. With a name like mine, I’m particularly sensitive to people mispro- nouncing your name, and I apologize. She’s the founder and president of Women for Women Inter- national, which matches U.S. women with foreign women in des- perate circumstances. Over 40,000 people worldwide have been con- nected by Women for Women International. Now in eight countries, the organization has distributed more than $6 million in direct aid and micro-credit loans, and trained thousands of women in rights awareness. So as you can see, we have a number of excellent panelists today on both the first and second panels. In order to ensure we have an opportunity to hear from each of them, and ensure we have ample time for members to ask questions, I will ask each witness to keep their opening statements to 5 minutes or less each. Of course, your longer written remarks will be submitted for the record so we will have an opportunity to understand all of your views in proper con- text. I will take the opportunity to mention that without objection we will leave the record open until 5 p.m. next Wednesday, July 2, for members to submit additional documents into the record and for members to ask questions in writing of any of the panelists. And with that, we will first hear from Dr. Pollack. Welcome. STATEMENT OF KENNETH M. POLLACK, SENIOR FELLOW, SABAN CENTER FOR MIDDLE EAST POLICY, BROOKINGS IN- STITUTION Dr. POLLACK. Thank you very much, Mr. Chairman. Mr. Chairman, these are extremely important hearings that you are holding. They are important because I think it’s important to start by remembering our own history. The United States started off with a constitution that was called the Articles of Confed- eration. I think it’s fair to say that the Articles of Confederation were not a very good constitution, and as a result, they led to pa- ralysis, revolts, and could have provoked civil war, perhaps even a dissolution of this country, so it is from that lesson of our own country’s history that we should keep in mind what may happen in Iraq. Constitutions matter. They have a tremendous impact, a pro- found impact on the future of a country; and I think that it is fair to say that had the United States stuck with the Articles of Con- federation, we almost certainly would not have lived to enjoy the strength and prosperity that we have today. Indeed, we might not still be a single Nation, had we lived under that constitution, and there are countless other examples throughout history. Now, that said, the position of the United States with regard to Iraq’s constitution is going to be a very delicate issue, as all of you have suggested in your opening remarks. In fact, I would suggest that the United States must walk a proverbial tightrope with re- VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 8 gard to Iraq’s constitution. On the one hand, the United States can- not dictate a constitution to the Iraqis. Iraqis must believe that this is their own constitution, reflective of their own values and their own traditions, and not one dictated by a foreign power. But by the same token, Iraqis would not be the first country to get it wrong if left entirely to their own devices. As I’ve just men- tioned, the United States got it wrong, and plenty of other coun- tries have gotten it wrong over the course of time. Weimar, Ger- many is another that got it wrong with disastrous consequences. Iraq is too important a country and too important a part of the world for the rest of the world to simply take a hands-off approach and say to the Iraqis, we’ll throw you in the water and see if you can sink or swim. So the trick for the United States and for any other country out there in the world with an interest in seeing the success of a stable and prosperous new Iraqi society is to find ways to help guide the Iraqi constitutional progress without actually directing it. With this in mind, it’s important to remember that we will be embarking on, in some ways, a new project. We will be helping the Iraqi people to create the first true Arab democracy. Now, there have been examples of Arab democracies in the past. Lebanon is a particularly good example. But what the Iraqis seem to have in mind, what we certainly have in mind, and what others in the United Nations and elsewhere around the world seem to have in mind for Iraqis is something very different. It will be very important to allow Iraqis to determine what that new Arab Iraqi democracy looks like. We should keep in mind the examples of other countries around the world, Japan, Italy, so many other countries around the world which have democracies, but democ- racies that look very different from that of the United States. As someone said, we should keep in mind the broad parameters of de- mocracy, and not so much the specifics. With regard to Iraq, the goals for a constitution for Iraq should be broad, fairly basic. A constitution for Iraq should try to hold the country together by giving all of the members of Iraqi society a stake in the success of that new government, that new enterprise, and so therefore the values of fairness and egalitarianism have to be critical elements of any new Iraqi constitution. In addition, because of Iraq’s well-known ethnic, religious, tribal and other fractures, it will be critical that such a new constitution avoids the pitfall of a tyranny of the majority. This is another prob- lem that we have seen throughout the history of democracies that can be particularly pernicious, especially in a situation like Iraq’s, where so many members of the Iraqi community have been op- pressed at various points in time by other members of the commu- nity. If the Iraqis believe that one group will be able to grab power and use the power of the central government to oppress the rest of the country, this constitution will be bound to fail. And finally, a new constitution for Iraq must be one that creates incentives for compromise across the entire spectrum of Iraq. Too often in Iraqi history over the last 80 years, the system of govern- ment has fomented divisions, has encouraged the fissures already inherent in Iraqi society, pried them open rather than trying to VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 9 help bring them together, and therefore creating these com- promises will be critical. How to do that? Again, I think the details need to be left to the Iraqis, but I think that some things can be pointed to. First, I think that Americans and others might suggest to the Iraqis that they look hard at the American system of government and the American Constitution. I say that not necessarily as an American chauvinist, because I think while our system worked for us, it may not have worked for others around the world, but in the case of Iraq, I think that there are real advantages to be found in the American system of government, advantages which would work well for the kinds of problems that the Iraqi people will have to overcome. The focus on individual rights, on ensuring that the central gov- ernment’s powers are limited in terms of their ability to impose upon the individual are critical elements of our Constitution that would be extremely helpful in the Iraqi context. A system of checks and balances is another extremely important issue, whereby the Iraqi people can become much more com- fortable, much more confident in the system of government if it had a similar set of checks and balances to our own. And finally, our system of geographic representation, which en- courages compromise, as I’ve suggested before, which is critical. While it is true that the north is largely Kurdish-Sunni, while it is true that the south is a majority Shi’ah-Arab, and that the northwest of Iraq is a majority Sunni-Arab, so it is also true that there are very important areas of overlap inside Iraq, and a geo- graphically based system would create mixed constituencies, the representatives of which would have inherent justifications for try- ing to reach compromise solutions, rather than trying to push things to extremes. These are the kinds of broad concepts that I think the United States and other countries with long histories of democracies could bring to the Iraqis as they try to frame their con- stitution, and suggest to them might be models, might be ways to think about crafting their own constitution that might be helpful in creating a constitution that can deliver a strong, stable, pros- perous, and pluralist Iraq for the future. Thank you. [The prepared statement of Dr. Pollack follows:] PREPARED STATEMENT OF KENNETH M. POLLACK BUILDING A DEMOCRATIC IRAQ As the people of the United States of America learned over 200 years ago, build- ing a stable, functional democracy isn’t easy. Our own first effort, the Articles of Confederation, were a dismal failure that produced paralysis and rebellion. It is safe to say that had the government of the United States remained as constructed by that initial constitution, our nation would never have achieved the strength or the prosperity that it has today. Indeed, it is an open question whether we would even be a single nation today. The example of the Articles of Confederation is an important lesson that the course of a nation will be shaped, even determined by its constitution. Machiavelli knew this and it is why he—a philosopher whose name is axiomatically associated with autocracy—believed that a vibrant Republic was the best form of government. Thus, there is little doubt that if a pluralist form of government is to succeed in Iraq, the question of the specific composition of the state is critical. Especially given Iraq’s well-known ethnic, religious and tribal fractures, building a state that can as- suage popular fears and address the specific problems of the country will be essen- tial to seal these divisions and produce a unified, peaceful and prosperous new Iraqi nation. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 10 For better or worse, the United States must me part of this process. This will be a very difficult task. We must walk a proverbial tight-rope. On the one hand, the more that the United States can leave the process of consti- tuting a new Iraqi government to the Iraqi people themselves, the better for all in- volved. Iraqis are fiercely nationalistic. What’s more, their unhappy experience with British colonialism creates the potential for heavy-handed U.S. involvement to reso- nate in a very negative manner, possibly sparking visceral resistance to what other- wise might be perfectly reasonable and even beneficial actions. Over the long term, the more that Iraqis believe that their constitution really is their constitution—writ- ten by Iraqis for Iraqis—the greater the likelihood that such a constitution will be accepted, respected, and obeyed. On the other hand, it is just not clear that the Iraqi people know what is best for them yet. Certainly, Iraq does not have a history of good government which the average Iraqi might use as a reference point. Iraqis would not be the first people to devise a faulty new constitution because they simply had never done it before. Indeed, as I have already noted, the American people did the same, even though we had the helpful example of a reasonably benevolent and republican (for that era) government in England. Across the world, there are too many examples of failed new constitutions to list. In recent years, Bosnia is, example enough of how even the best intentioned people can set up a government but out of inexperience, make mistakes that can prove crippling politically, economically, and socially. Thus, left to their own devices, the Iraqis may not make the best choices. But Iraq is too important a country in too important a part of the world for the United States to simply ‘‘throw them in the water and see if they can swim.’’ In addition, because of the rather severe divisions among the Iraqi people, if a new Iraqi constitution proved as unworkable as the Articles of Confederation, to continue with that exam- ple, it could quickly produce a slide into chaos, secession, and civil war. The United States arid the international community could not abide that, nor should we con- tribute to a process by which the Iraqi people are likely to suffer another tragedy having endured 34 years of Ba’athist tyranny already. The trick will be for the United States to guide the presence without directing it. Here, the role of the United Nations and other international institutions could be extremely helpful if only because Iraqis do not suspect the UN of colonial ambi- tions. So too might other allies prove helpful. The Scandinavians are widely seen as sympathetic, humanitarian and disinterested, for example, and they might be able to help guide the Iraqis in ways that Washington cannot directly. Other non- Western democracies might also play useful roles. So too might a country like Ban- gladesh, which has enjoyed a reasonable progress on the path toward democracy without losing its Islamic identity. Islam and Democracy The example of Bangladesh raises an important issue with regard to Iraq: the question of Islam and Democracy. There is simply no reason that the Islamic char- acter of a country should prevent it from adopting a democratic system of govern- ment. Bangladesh is proof of that. In Turkey, over the past few months, we have seen stunning changes in which an Islamist party is bringing true democracy—sure proof that Islam and democracy are not mutually exclusive. Islam is one of the world’s great religions. One that is meant to be meaningful for all time and in all places. As such, while it does contain numerous injunctions as to how believers are to live their lives—what they should and should not do— there is nothing to suggest that the religion of Islam is compatible with only one form of governance. (As an aside, given the early, egalitarian and consociational method of rule employed by the first leaders of the Islamic state, an argument can be made that Islam is more compatible with democracy than autocracy). Islam is a religion of infinite variety. There is not only the well-known Sunni-Shi ’ite split, but also varying schools of jurispnidence within each, a range of Sufi sects, and numerous regional varieties. Indeed, Clifford Geertz, the great Western scholar of Islam, has observed that Islam in Morocco (the western end of the Islamic world) and Islam in Indonesia (the eastern end of the Islamic world) are very different reli- gions, heavily influenced by the cultural traditions of each nation and more like them than each other. In Iran, the Ayatollah Khomeini had to develop a completely new doctrine—the notion of velayat-e faqih or rule by the jurisprudent—one com- pletely at odds with traditional Shi’ite beliefs, to justify his rule over the Iranian state. While this is clearly an extreme example—certainly not one the United States should encourage Iraq to emulate, it does make clear that Islam is neither fixed nor immutable. Indeed, this ‘‘Orientalist’’ interpretation of Islam has long since been discredited and should not be allowed to creep back into real world considerations VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 11 of the future of Iraq which hold such importance for the Iraqi people and the entire world. An Iraqi Democracy If it is important to remember that Islam is not a ‘‘one-note’’ religion, so too is it important to remember that the same is true of democracy. When we speak of democracy, too often we allow our own cultural or individual associations to obscure the meaning of the word. Democracy is rule by the people. In practical terms, it means a political system in which the actions of the government reflect the will of the people, in which those actions are transparent to the population, and the offi- cials charged with executing its policies are accountable to the people. While it is hard to imagine a truly democratic system without elections, elections are not syn- onymous with democracy. They are just one element of it and not necessarily the defining element. Many governments around the world have met these conditions while adopting very different models of democracy. Japan, Italy, and the United States are all de- mocracies yet the workings of their political processes are as different as they are similar. It will be important to keep this in mind when fostering the process of democracy in Iraq. We should think in broad terms. One of the great challenges for an Iraqi democracy is that it will be the first real Arab democracy. Thus one of the chal- lenges will be helping Arab Iraqis develop a democratic system that is suited to their Arab culture just as Japanese democracy is harmonious with Japanese culture and Italian democracy is attuned to Italian culture. (Indeed, this is where the success of democracy in Iraq could have important ramifications in the Middle East beyond Iraq. Part of the problem with current ef- forts to democratize the Arab world is that the Arabs have never seen a nation that was both truly democratic and Arab. But just as the success of Japanese democracy made it possible for other East Asians to imagine what democracy might look like in their country, so too might an Iraqi democracy allow other Arabs to understand and desire the same for their countries.) Ultimately, building democracy in Iraq is not going to be easy. In particular there is the real possibility that Iraq’s considerable problems would pervert elections, free- dom of speech, or other democratic building blocks and produce illiberal results. Since the fall of the Ottoman Empire, Iraq has been badly governed. In large meas- ure this is because of Iraq’s well-known cleavages, and because the Iraqis are fa- mously ungovernable—and had a wide reputation for such even under the Otto- mans. This is why Iraq’s experiences after independence were so unhappy, and why it took the bloodthirsty tyranny of Saddam Hussein to impose a terrible order on the country. These very features of Iraqi society that make it so hard to govern also demand a democratic system capable of dealing with its serious internal contradic- tions. The greatest internal problem for democracy is the potential for one group, par- ticularly Iraq’s majority Shi’ah community, to dominate the country. Iraq’s Shi’ah community, which comprises over 60 percent of the total population, might use free elections to transform its current exclusion from power to one of total dominance— and knowing this, Sunni Arabs, and perhaps the Kurds, might attempt to preemp- tively subvert a majority rule-based system. Thus the key for an Iraqi democracy will be to fashion a system that addresses the potential problem of a ‘‘tyranny of the majority.’’ A parliamentary form of democracy would probably be inappropriate for Iraq’s po- litical needs because it would exacerbate these problems. A parliamentary form of government—in which the majority party controls both the executive and legislative branches—would reinforce the tyranny of the majority, terrify Iraq’s minorities, and probably cause them to try to undermine or circumvent the system to protect them- selves from the authority of the central government. Worst of all would be a par- liamentary system of proportional representation, which would simply reinforce identification and affiliation along these sectarian lines. Proportional representation in Iraq would harden Iraq’s Kurds to vote as Kurds, its Shi’ah to vote as Shi’ah and its Sunni Arabs to vote as Sunni Arabs with no deviation or room for middle ground positions. Nevertheless, it is possible to envision a form of democracy that should be able to cope with Iraq’s political problems. Perhaps surprisingly, a democratic system with some similarities to the American system would appear to best fit the bill. Iraq needs a democratic system that ensures minority rights, limits the ability of the cen- tral government to impose its will on its citizens, includes checks and balances to ensure that control of one part of the government does not translate into a form of dictatorship of the majority, and encourages compromise and cooperation among VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 12 members of otherwise well-defined groupings. Features of Iraq’s democracy should include: • Defining the rights of every individual and limiting the trespasses of the central government; • Declaring that all powers not reserved to the federal government are instead vested in local governments to further limit central government authorities. In particular, rights to language and religious expression should be expressly noted; • Creating a further series of checks and balances within the federal system to limit the powers of the government and particularly the ability of any group to employ the power of the central government to repress other members of Iraqi society; • Electing a President indirectly, in order to ensure that different communities have a say in who is chosen. in particular, Iraq should look to other systems (like that of Malaysia) that work to ensure that candidates are acceptable to multiple constituencies and are not simply imposed by the largest group on the rest of the country; and • Employing a system of representation in the legislature that is determined by geography—not pure party affiliation as in many parliamentary systems—to en- courage cooperation across ethnic and religious lines. This last point is an important one in thinking about Iraqi democracy. Although there is a fair degree of communal correlation with geography (i.e., the Kurds live in the north, the Shi’ah in the south, and the Sunnis in the west) there are also important regions of overlap. In Baghdad, and large chunks of central Iraq, Sunni, Shi’ah, and Kurds are well mixed. By insisting on a system of geographically deter- mined representation, Iraqi legislators elected from these mixed districts would have an incentive to find compromise solutions to national problems to try to please their mixed constituencies. This will be crucial to the success of an Iraqi democracy because it is vital to create a constituency for compromise within the Iraqi central government. Indeed, this points out one of the great problems of a parliamentary system (par- ticularly proportional representation) for Iraq, because by emphasizing party mem- bership in determining legislative elections, the legislators themselves have less in- centive to try to reach compromises across party lines and much more incentive to slavishly follow party ideology. It is a system that tends to push legislators to ex- tremes. What is needed in Iraq is a system that instead encourages them to move toward the center and reach compromises. The American system has become almost infamous for this tendency, so much so that on election day it is often impossible to tell the candidates apart because they all cling so desperately to the middle ground. One technique that might be applicable in Iraq would be to require candidates to receive a certain percentage of votes from different communities. Thus, a legis- lator from Kirkuk (a mixed Sunni Arab and Kurdish area) would be required to re- ceive at least one third of the votes of both the Arab and Kurdish communities. In such a system, a demagogue or sectarian extremist would be unlikely to garner suf- ficient backing to win, while moderates and those amenable to compromise would. This approach could be applied at other levels as well. For example, a candidate for Chief Executive would have to receive a similar percentage from different commu- nities, again discouraging chauvinism. No Other Alternatives Building a democracy in Iraq is not going to be quick or easy, nor is there any guarantee that the effort will succeed. However, it is a necessary course for the United States, the international community, and the people of Iraq to follow. I speak not as an expert on democracy, nor as an advocate for democratic systems, but purely as a specialist on Iraqi affairs. Although there can be no guarantee that democracy will succeed in Iraq, I think it a near certainty that any other system of government will fail there. The problems of Iraq are so great that any other system is bound to fail. Indeed, the history of Iraq is that they all have failed. Monarchy, oligarchy, and autocracy have all failed to produced stability, prosperity, and tranquility. Both the monarchy and the savage brutality of Saddam’s reign produced stability without prosperity or tranquility. The pre-Saddam revolving dictatorships produced none of these ends. In the future, any resort to these or other approaches—theocracy, tribal rule, consociational oligarchy—would doubtless produce more of the same. If the United States and our international partners are not going to see Iraq slip into chaos and VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 13 civil war, we are going to have to ensure that the Iraqis are able to build a stable democracy. That could be very difficult, but it is also not impossible. Senator CORNYN. Thank you, Dr. Pollack. Professor Haykel. STATEMENT OF BERNARD HAYKEL, PROFESSOR, DEPART- MENT OF MIDDLE EASTERN STUDIES, NEW YORK UNIVER- SITY Dr. HAYKEL. Thank you, Mr. Chairman. I would like to submit the statement for the record, and I will summarize it here in a set of points, keeping them brief, and keeping the overlap with my col- league to a minimum. Clearly, the process that the United States has embarked on is complicated and fraught with great difficulties. The difficulties have to do with the nature of Iraqi society, its violent past, its au- thoritarian past as well, in addition to the regional pressures that countries around Iraq are exerting. The U.S., in redevising or recreating this constitution, should pursue a proscriptive rather than prescriptive role, or policy. This is a fancy way of basically saying that we should just establish the broad parameters of what this constitution has to look like, or ought to look like—it should be democratic, it should be pluralist— but we should not get into the details of what this constitution will involve. This is for the Iraqis to do. One thing that should be borne in mind is that Iraqis, whether exiles or Iraqis who have stayed in Iraq throughout this period, are an extremely talented group of people. They are very, very well- educated. The jurists both outside and inside are extremely tal- ented, and it should be left to them to make these kinds of deci- sions. Now, I have surveyed the various proposals that the different groups have made or offered so far, and all seem to favor a federal structure for Iraq, and the advantage of that—and if they wish to keep the federal structure, we should by all means support this, and it seems to be going and headed in that direction, and the ad- vantage of that is that it would accommodate the three major groups that constitute the Iraqi population, and will prevent any one of the groups from taking over or dominating the others. These three groups—the Sunni Kurds, the Sunni Arabs, and the Shiite Arabs—are really the major groups that form the Iraqi popu- lation and will have to come to an accommodation with each other over the form of rule that Iraq will have. The one crucial thing that the United States should not, again in establishing this parameter, should not insist on is that the con- stitution of Iraq should not have specific roles for these various groups embedded in the constitution. The example of Lebanon is extremely crucial to bear in mind here. In Lebanon, the constitu- tion as set up has the various confessions in the country playing set roles politically. What this means is that it cements the dif- ferences along sectarian religious lines, it prevents groups from cre- ating alliances across these sectarian religious lines, and it pre- vents a genuine sense of nationalism and citizenry from being formed. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 14 So this is another thing to bear in mind, and it seems to me, like Dr. Pollack said, one good way in which Iraqis can create alliances across the religious divide is to have the districts that are formed in Iraq to be based on territorial considerations, rather than reli- gious or ethnic considerations. In other words, geography, demog- raphy, economic viability should be the bases for the division of Iraq, for the constituent units of Iraq, rather than religion or ethnic identity. In this regard, I think the United States should, as soon as pos- sible, establish a census for the population of Iraq, so that we have a baseline to know exactly what the Iraqi population looks like in ethnic, religious, linguistic, socioeconomic terms. I would like to raise now the issue of Islam. One unifying factor for the Iraqi population is Islam. Ninety-five percent of all Iraqis are Muslim, and they clearly want Islam to play a role in whatever constitutional setup they decide on. This should be something that the United States should encourage, and not discourage. If Islam is given a role at a symbolic level where, let’s say, one article of the constitution states that Islam is the official religion of the State of Iraq, this should be perfectly acceptable to us. Many countries in the Muslim and Arab world have this. Malay- sia is one, Yemen is one, and there is no threat from giving Islam this symbolic role. There is no threat of a theocracy emerging if Islam is given symbolic representation in the constitution. Iraq is not likely to turn into a theocracy, either Shiite or Sunni, because of the way the population is broken up and because of its history. I don’t want to go into the details. My statement states why this is the case. We should not fear a theocracy emerging in Iraq at all. It would not work, and the Iraqis themselves don’t seem to want it. The majority of Iraqis don’t seem to want it. The other issue that we should bear in mind is: whatever we do in Iraq has wider policy implications in the Middle East; what we do there is crucially important because Arabs at the moment are looking at us, and there is an equivalency being established be- tween our occupation in the country and what the Israelis are doing to the Palestinians. This is how Arabs outside Iraq seem to be making this sort of equation between our role and the Israeli role, and this is a very bad thing. We should break that linkage as quickly and as effec- tively, as efficiently as possible, and our allowing Islam to play a role in the constitution framework of Iraq is one way of doing that. If Arab Muslims see that the United States is not against Islam but is allowing Iraqis to express their Islamic identity, this would again play a very important role in our fight against people like the bin Laden, who are arguing that the United States is at war with Islam. There are secular forces in Iraq as well, and we should let them play a role, but not overemphasize the role that they will be play- ing, nor underemphasize it. Religion will certainly have a role to play in the constitution, and I think we should look favorably upon that. Finally, Iraq did have a period of political pluralism, which was limited under the Hashimite monarchy. They did write a constitu- VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 15 tion in 1925, which was not a bad model, actually, to base oneself on for this constitution, the forthcoming constitution. I think it’s important for us, that is, for the United States, to in- voke and revise that period in Iraqi history. At the very least, it will make our efforts seem more legitimate against this historical backdrop and also make the efforts that we’re engaged in seem less contrived and artificial. If I may, just one last, last point. The United States at the mo- ment is engaged in a process of de-Ba’athification in Iraq. I’ve cal- culated the numbers of Ba’athists who will be excluded from all of- fices. It comes to somewhere around 220,000 people. Now, these 220,000 individuals have families that depend on them. A very con- servative estimate would mean that at least 1 million Iraqis would be out of jobs, maybe even up to 5 million Iraqis. That’s 20 percent of the population. I think we ought to reconsider also our policy of de-Ba’athification to make the number of people in the Ba’ath who are excluded from office the smallest and lowest number possible in order not to exclude such a large number of people from State office. Thank you very much. [The prepared statement of Dr. Haykel follows:] PREPARED STATEMENT OF BERNARD HAYKEL The process of establishing a constitution for Iraq is complicated and fraught with difficulties. This is because of the divided and fractious nature of Iraqi society, its violent and authoritarian past and regional pressures exerted by neighboring coun- tries. The process the United States has embarked on in rebuilding Iraq is unprece- dented in the region and there is no model from the Arab or Islamic worlds that can be emulated. In what follows, I will present some of the broad guidelines that should inform the policy of the United States in this process. The U.S. should pursue a proscriptive rather than a prescriptive policy. In other words, we should delineate the parameters within which the constitution should be formulated and not dictate the specific details of the Iraqi constitution. The U.S., for example, must insist that Iraq be a democratic country, but it should not delve into such detailed issues as to whether the form of governance ought to be federal or unitary or the executive be presidential or parliamentarian. Such questions should be resolved by the Iraqis themselves in a constitutional convention. Iraq has a very talented pool of individuals (jurists, academics and politicians), among the exiles and those who never left Iraq, and delineating the specifics of the constitution should devolve on them as they will be responsible ultimately for its success as well as its failure. The various political groups that are now competing for a say in the future of Iraq are advocating a federal structure, one that would accommodate, in particular, the non-Arab Kurds (approximately 20% of the population), but also the Shiite Arabs (approx. 60% of the population) in the south and the Sunni Arabs (approx. 20% of the population). Federalism is an appealing formula because it would prevent one group dominating the others, a real prospect given Iraq’s history and demographic realities. A constitutional parameter that must be established by the United States is that no one of the three dominant groups should be allowed to dominate the oth- ers, as the Sunni Arabs have done until the defeat of Saddam Hussein’s regime. By the same token, however, the United States must endeavor to prevent the constitu- tion from enshrining Iraqi politics along ethnic (Kurd vs. Arab) and/or confessional (Sunni vs. Shiite) lines. The example of Lebanon is important to keep in mind in this regard. Here the constitutional setup cements confessional rule, and this has prevented the emergence of secular political formations and allegiances that cut across religious divides. As a result, Lebanese nationalism and institutions have re- mained weak and all politics is confessional—a sure recipe for future strife. Clearly there is a tension between establishing a power sharing arrangement among the three major groups in Iraq and allowing the system to function and evolve on a non- ethnic and non-confessional basis. There is no ready formula for resolving this ten- sion but below are some ideas about how one can think about accomplishing this. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 16 There are a number of ways to mitigate the political effects of the ethnic and con- fessional divisions in Iraq. The first is to prevent the electoral districts from being drawn purely on the basis of ethnic/confessional lines. The country should ideally be divided in accordance with territorial considerations (geography, demography, economic viability) and not ethnic or confessional ones. This would amalgamate dif- ferent groups of Iraqis together, forcing them to make compromises and allegiances that cut across their divisions. Despite the commonly accepted tri-partite division of Iraq into a Shi’i south, a Sunni Arab middle and west and a Kurdish north, the country’s population is more mixed ethnically and in terms of religion. Therefore, it would be possible to create some constituent units that have a mixed population. In this regard, it would prove beneficial for all the parties concerned, the United States as well as the Iraqis, to organize a population census in order to obtain a real sense of the demographics. Another unifying factor in Iraq is Islam, the religion of some 95% of all Iraqis. All the emerging signals from the Iraqis appear to indicate that they wish Islam to play a role in the future political framework of the country. The United States should not prevent this, especially if reference to Islam remains at the symbolic level such as an article in the constitution declaring Islam to be the official religion of Iraq or another that states that the Shari’a (i.e., Islamic law) is a source of law in the country. Both Malaysia and Yemen are good examples of countries in which Islam is accorded this symbolic role and yet both remain firmly anti-theocratic. The U.S. should not fret about Iraq becoming a theocracy in the Iranian or Saudi mold— this is not going to happen. Except for a minority, the Shi’is of Iraq do not think of Iran as a model to be emulated, and more importantly they could never realisti- cally impose such a model on the remaining Sunni population. Furthermore, the Shi’is of Iraq have a different history from those in Iran: in social and political terms they are organized differently and their clerics have traditionally competed with those in Qom in Iran. In addition, some of the dominant figures among the Iraqi Shi’is (e.g., Ayatollah Sistani) are arguing for a quietist position, one in which the clerics remain formally outside all political institutions. As in the case of the Shi’is, the Sunnis of Iraq cannot impose a Sunni Islamist regime on the majority Shi’is. The Sunnis are divided ethnically and are demo- graphically in the minority. More importantly, and unlike the Iranian-backed Shi’is, the Sunni islamists have no ideological framework for ruling the country other than an ill-defined system of theocratic despotism. Only recently have Sunni Islamists (e.g., Muslim Brothers, Wahhabi-Salafis) emerged on the Iraqi political scene, and as such they remain an unknown quantity, except for al-Qaeda. Those who advocate violence must be fought militarily, whereas those who agree to participate through the peaceful means of electoral politics should be permitted to compete in the polit- ical process. The United States should proscribe all forms of theocratic rule, be it Sunni or Shi’i, but we should not deny Iraqis the desire to make appeal to Islam at the level of political symbolism and as a vague guideline for a just order. Permit- ting this will serve an important foreign policy goal. We should bear in mind that the U.S. project of rebuilding a democratic Iraq is being undertaken in the context of our wider policy aims in the Arab and Muslim worlds. This endeavor is being closely monitored by the Arabs in the region, many of whom are arguing for seeing an equivalence between the Israeli occupation in the Palestinian territories and the U.S. occupation of Iraq. We must attempt to break this linkage whenever possible. Allowing Iraqis to make appeal to Islam in their constitution is one way of doing this, because it undermines Osama Bin Laden’s false claim that the United States is at war with Islam. It is important to bear in mind that there are secular political forces in Iraq and these should neither be sidelined nor for that matter be unduly privileged. The Kurds, for instance, are represented by secular parties and many of the Iraqi exiles are secular. Furthermore, the dominant ideology of Iraq since the early 1960s, the Ba’ath, had been nationalist and secular in orientation and this is bound to have left some impression on the political consciousness of the Iraqi people. It remains to be seen what weight the secularist forces will have in the country once matters have settled down further. Nonetheless, it is unlikely that any radical secular pro- gram will take hold in Iraq. A majority of Muslim Iraqis will not agree to abandon the Shari’a in matters relating to personal status law (i.e., marriage, divorce, inher- itance). Nor will non-Muslim Iraqis (Assyrians, Chaldeans, Armenians) abandon their religious courts in the same areas of the law. Religion therefore will remain a political factor, hopefully one relegated to the personal or private realm; a feature that should not prove unfamiliar to us in the United States. Finally, Iraq has had a period of political pluralism (albeit limited) under the Hashimite monarchy—during which a constitution was written, in 1925. This docu- ment as well as the historical memories and practices of the pre-Ba’ath period must VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 17 be invoked and revived at the present moment. At the very least, this would give the efforts of the United States a legitimizing historical backdrop and would make the attempt of reforming and rebuilding Iraq appear less contrived. Senator CORNYN. Thank you, Professor. Dr. El Fadl. STATEMENT OF KHALED ABOU EL FADL, PROFESSOR OF LAW, UCLA SCHOOL OF LAW Dr. EL FADL. Thank you very much. I’ll start out by a comment about the nature of constitutions. I think it is important, as we go about playing the supportive role vis-a-vis Iraq, to remember that constitutions are documents that memorialize structural and proce- dural commitments, but that also, and even more importantly, con- stitutions are instruments for making ethical and moral commit- ments. In that sense, it is important to remember that a constitution must reflect prevailing normativities, prevailing ethical and moral commitments within a social structure. But they also must be in- struments capable of educating and sponsoring an evolving dialog within society. Constitutions that are static, that are closed the minute they are drafted, have an awfully terrible habit of failing. Now, I think that it is crucial from the start that there be no di- lution and no wavering on the ethical commitment made toward one significant moral issue, that is the issue of individual rights. I think that needs an honest and committed discourse, and one in which individual rights become the centerpoint and the core for a constitutionalism that would start the process of evolution and edu- cation in Iraq. A constitution in Iraq will fail if the constitutional document, in- stead of being an expression of the moral commitments of the Iraqi people, becomes a symbol of denial of sociopolitical autonomy. If the constitution is associated with such a denial, it will be, like many other constitutions in the Middle East propagated by an elite— whether the elite is pro-Western or anti-Western, it hardly makes a difference. They become only paper and largely irrelevant and marginal to what happens in society. The second situation where a constitution in Iraq will fail, is if the constitution becomes a symbol for losing religious authenticity, or what the Iraqis might consider as a religious truth. Here, it is important to remember that contrary to popular understandings or stereotypes, the Ba’ath regime, the regime of Saddam Hussein, one of the ways that it has traumatized the Iraqi people is by excluding the possibility of free, authentic, and genuine religious expression in Iraq. The regime of Saddam, or the Ba’ath party, which was partially secular, narrowly defined legitimate religion and severely restricted what religious manifestations might take place in society. There- fore, we should not be alarmed or threatened or go into some sort of Doomsday scenario if Iraqis, as a reaction to that trauma of sup- pressing their religiosity, wish in the form of a constitution to make some type of affirmation of their religiosity, and of their reli- gious commitments. In fact, I agree with Bernard Haykel that we should welcome that and see it as a positive thing. As a matter of foreign policy VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 18 it can only work to our advantage, as long as whatever commit- ments are made vis-a-vis Islam are made in light of the commit- ments made vis-a-vis individual human rights. Thank you. [The prepared statement of Dr. El Fadl follows:] PREPARED STATEMENT OF KHALED ABOU EL FADL Introduction to Islamic Concepts of the State The relationship of Islam to the state, both in theory and practice, has been com- plex and multifaceted. Islam, as a system of beliefs embodying a multitude of moral and ethical principles, has inspired a wide range of social and political practices, and a diverse set of legal interpretations and determinations known collectively as the Shari’a. Muslims believe the Shari’a to be divine law, in the sense that the Shari’a is based on the human interpretations and extrapolations upon the revealed holy book, the Qur’an, and the authentic precedents of the Prophet, known as the Sunna. Therefore, the Shari’a (which literally means the way to God or the fountain and spring source of goodness) is the sum total of the various efforts of Muslim scholars to interpret and search for the Divine Will as derived from the Qur’an and Sunna. Importantly, through the course of fourteen centuries, Muslim scholars em- phasized that the main objective of Shari’a law is to serve the interests and well being, as well as protect the honor and dignity, of human beings. There is no single code of law or particular set of positive commandments that represent Shari’a law. Rather, Shari’a law is constituted of several schools of jurisprudential thought that are considered equally orthodox and authoritative. In the Sunni world there are four dominant schools of thought: the Shafi’is, Hanafis, Malikis and Hanbalis. In the Shi’i world, the dominant schools are the Ja’faris and Zaydis. The Sunni population of Iraq is predominately Hanafi, while the Shi’i population is predominantly Ja’fari. The Historical Background of Muslim States The first Muslim polity was the city-state led by the Prophet Muhammad in Me- dina. But after the Prophet Muhammad died, no human being or institution was deemed to inherit his legislative, executive, or moral power. In Islamic theology, there is no church or priestly class that is empowered to speak for God or represent His Will. There is a class of Shari’a specialists (jurists) known as the ‘ulama’ or ‘fuqaha’, who are distinguished by virtue of their learning and scholarship, but there is no formal procedure for ordination or investiture. These jurists are not thought to embody the Divine Will nor treated as the exclusive representatives of God’s law. The authoritativeness that a particular jurist might enjoy is a function of his formal and informal education, and his social and scholastic popularity. As to their political and institutional role, in classical Islamic theory, jurists are supposed to play an ad- visory and consultative role, and to assume judicial positions in the administration of justice. It is an interesting historical fact that until the modern age, jurists never assumed direct political power. Although, historically, the jurists played important social and civil roles and often served as judges implementing Shari’a law and exec- utive ordinances, for the most part, government in Islam remained secular. Until the modern age, a theocratic system of government in which a church or clergy rule in God’s name was virtually unknown in Islam. Institutionally, Islam does not dic- tate a particular system of government, and in theory, there is no inconsistency or fundamental clash between Islam and democracy. The Qur’an dictates only that governance ought not be autocratic, and that the affairs of government should be conducted through consultation (shura). According to the classical jurisprudential theory, governance should be pursuant to a civil contract (’aqd) between the gov- ernor and the governed, and the ruler should obtain a pledge of support (bay’a) from the influential members of society as well as the majority of his constituency. In the- ory, rulers are supposed to consult with jurists, as well as other representative ele- ments in society, and then, after concluding the consultative process, act upon the best interests of the people. In classical Islam, the consultative body was known as ahl al-hal wa al-aqd, and this body was supposed to be representative to the extent that it included the authoritative and popular jurists, and other influential members of society. There is substantial disagreement in the classical sources, however, on whether upon concluding the consultative process, the ruler is duty bound to adhere to the judgment of the majority, or whether he may act upon his own discretion, even if his opinion is contrary to the view expressed by the majority. This doctrine was known as ilzamiyvat al-shura. There was a strong consensus among the clas- sical scholars that in principle, consultation itself is mandatory, but they disagreed VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 19 on the extent to which a ruler is free to act in contradiction to the will of the major- ity as expressed in the consultative process. Outside this basic framework, the state was supposed to respect Shari’a, and strive to fulfill Shari’a’s ultimate objectives in society. Historically, the prevailing form of government in Islam was known as the Caliphate, which in reality was dy- nastic and authoritarian. For about thirty years after the death of the Prophet, Muslims succeeded in establishing a form of government with a strong democratic orientation, but upon the rise of the Umayyad Dynasty, the democratic experiment came to an end, and power became concentrated in the hands of particular families or military forces. In pre-modern practice, to the extent that rulers adhered to the process of consultation at all, the consultative body was usually not representative of the governed, and membership in such a body was typically the product of polit- ical patronage and not the outcome of a democratic elective process. The Adoption of European Laws by Muslim Countries in the Modern Age In the post-Colonial era, after most Muslim nation states achieved independence, the relationship between Islam and the state gained a new sense of urgency. At issue were the extent to which Shari’a law would play a role in the legal systems of the new-found nation-states, and the extent to which Islam would play a role in affairs of governance. In the period between the 1940’s and 1960’s, most Muslim countries opted for a nationalist, republican, secular model in which there is a very strong executive power, supported by weaker legislative and judicial branches of government. Some countries, such as Saudi Arabia, continued to be governed by a strong royal family, a consultative branch of limited powers, and a judiciary that implemented a mixture of customary law and Shari’a-based law. Most Muslim coun- tries, such as Egypt, Iraq, and Kuwait imported the French Civil and Criminal Codes, and organized their legal systems according to the Civil Law legal tradition. A few countries such as Pakistan, Indonesia, and Malaysia were influenced by the British Common Law system, which they supplemented by various statutory laws enacted in specific fields. The extent to which the Islamic legal tradition was inte- grated into modern legal systems varied widely from one country to another, and also varied in accordance with the particular field of law in question. More specifi- cally, in commercial and civil legal matters, most Muslim countries generated a syn- chronistic system, which was predominantly French, Swiss, or British, amended by various concepts and doctrines inspired by the Islamic legal tradition. In criminal matters, most countries adopted the French or British systems of criminal justice. Countries such as Saudi Arabia and post-revolutionary Iran rejected Western influ- ences, and claimed to base their criminal laws on the Islamic tradition. Most of the countries of the Arabian Peninsula, some African nations, and Iran continued to ad- here to the Islamic tradition in matters of personal injury and tort law. This was manifested primarily by the incorporation of blood money (diya), and strict caps on financial liability in cases of personal injury. Personal and family law remained the field most susceptible to Islamic influence. Most Muslim countries created courts of separate jurisdiction to handle matters related to inheritance, divorce, and mar- riage. In these fields, judges typically implement statutory laws, which were enacted as codifications of Islamic laws. The Iraqi Legal Experience in the Modern Age It is often said that Iraq was the cradle of civilization. This is definitely true as far as Iraq’s long and rich jurisprudential experience. Before Saddam came to power, Iraq, in addition to Egypt, was one of the most influential countries in the development of the legal institutions and substantive laws of the Arabic speaking world. This was in part due to the high level of education enjoyed by the Iraqi elite, and the rich cultural experiences and cosmopolitan nature of Iraqi urban centers, such as Baghdad and Basra. Geographically, Iraq was at the central point where Arab, Persian, Kurdish, and Turkish cultures meet and interact. As noted above, Iraq was also home to both Shi’i and Sunni major centers of religious study. The rich and diverse makeup of Iraqi society itself allowed Iraq to be the beneficiary of ethnic, linguistic, religious, and sectarian cultural exchanges. This in turn was re- flected in the fact that Iraqi legal thought was characterized by a distinctive syn- chronistic quality, open-mindedness, and a lack of xenophobic nativism. Historically, the urban centers of Iraq, Baghdad, Basra, and Kufa, played central roles in the birth of Islamic jurisprudence, and they continued, over the span of a thousand years, to play a leading role in the development and evolution of the insti- tutions and doctrines of Islamic law. In fact, the Hanafi and Ja’fari schools of Is- lamic jurisprudence, in particular, developed primarily in Kufa, Basra, and Baghdad in the first few centuries of Islam. Furthermore, Baghdad was the capital of the Abbasid Empire, the second major dynasty in Islam. As such, Iraq’s intellectual her- VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 20 itage, especially as it relates to Islam’s divine law, continued to carry considerable moral weight within the Muslim world. After gaining independence from Britain in 1930, like most Arab countries, Iraq eventually adopted Civil Law and Criminal Law Codes, which were adapted from the French and Germanic legal systems. Iraq’s personal law, however, continued to be based primarily on Islamic law. Like most Muslim countries, the continuing ten- sion, and at times conflict, were between Iraq’s Islamic legal heritage, and the legal system borrowed from Europe at the end of the Colonial era. Many aspects of the classical tradition of Islamic law conflicted with the newly adopted European-based Civil and Criminal laws, and as in the case of many other Muslim countries, there were considerable sociopolitical pressures, both internal and external, to simulta- neously Islamize and modernize. In the 1950’s Iraq was at the forefront of the creative and demanding effort to adopt a system of law that was efficient, modern, and at the same time, Islamically legitimate. In this regard, the Iraqi Civil Code of 1953 was one of the most innova- tive and meticulously systematic codes of the Middle East. Iraqi jurists, working with the assistance of the famous Egyptian jurist Al-Sarihuri, drafted a code that balanced and merged elements of Islamic and French law in one of the most suc- cessful attempts to preserve the best of both legal systems. Furthermore, in 1959 Iraq promulgated the Code of Personal Status, which on the issues of family and testamentary law was at the time the most progressive Muslim code of law. Impor- tantly, this Code merged elements of Sunni and Shi’i law to grant women greater rights as to marriage, divorce, and inheritance. The Iraqi Ba’ath, a staunchly nationalist and secular party, came to power in 1968, and Saddam formally ascended to the presidency in 1979. It is fair to say that especially after Saddam rose to power, all creative and inspiring legal activity came to an end. Since coming to power, Saddam involved Iraq in a series of wars that enabled him to declare a constant state of national emergency and to rule mostly by executive order. The centralization of power in the hands of the Ba’ath and Sad- dam meant that legal institutions lost all vestiges of independence, and civil society became thoroughly co-opted by the ruling party. Increasingly, Iraqi law could no longer be described as either Islamic or French, but as distinctly and uniquely Saddamian. The death sentence was prescribed for a large variety of offenses includ- ing usurpation of public money, corruption, insulting the Presidency, and treason, which was defined very widely. The implementation of these laws was highly whim- sical and largely contingent on the will of the party and President. Even foreign in- vestments became largely dependent on having the proper connections to the ruling elite, and tapping into a network of businessmen who were sanctioned and protected by a clique that was close to Saddam and his family. The Islamization of Laws in Modern Muslim Countries The period between the 1960’s and 1970’s witnessed the emergence of fundamen- talist Islamic movements that materially impacted the constitutional place of Islam in the various Muslim states. Building upon the positions of some pre-modern theo- logical orientations, most fundamentalist groups, but not all, contended that sov- ereignty belongs only to God (al-hakimiyya li’llah), that governments ought to rep- resent and give effect to the Divine Will, and that there ought to be a strict adher- ence to the detailed determinations of religious scholars. The fundamentalist ori- entations of that period are most accurately understood as oppositional nationalistic movements dissatisfied with the status quo, and utilizing religious symbolisms as a means of claiming authenticity and legitimacy. The problem, however, is that fun- damentalists tended to treat Shari’a as a code of law containing unitary and uncontested specific legal determinations, and also tended to ignore the highly con- textual socio-historical nature of most of Islamic jurisprudence. The Islamic legal tradition is too diverse, diffuse, and amorphous to yield to the type of narrow treat- ment afforded to it by fundamentalists. In addition, taken out of its socio-historical context, parts of Islamic legal tradition become problematic in terms of contem- porary international human rights standards. Although fundamentalist movements did not achieve direct power in most Muslim countries, they generated political pressure towards what might be described as greater symbolic Islamization. As a part of their Islamization efforts, a large num- ber of Muslim countries drafted in their constitutions articles that either stated: ‘‘Shari’a is the main source of legislation,’’ or ‘‘Shari’a law is a main source of legisla- tion.’’ The former version made Islamic law the near exclusive source of law for the nation, while the latter version mandated that Islamic law be only one of the sev- eral sources of law making in the country. Importantly, however, especially for coun- tries that adopted the former version, the Shari’a clause was deemed not to be self- executing. This meant that the Shari’a clause was deemed to be addressed to the VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 21 legislative and executive powers in the country, and not the judiciary. Accordingly, the judiciary would not, on its own initiative, give effect to Islamic law. Rather, Shari’a law needed to be implemented or executed by statutory law, and only upon the enactment of such statutory laws would the judiciary be bound to give it effect. Effectively, this meant that in most instances the Shari’a constitutional clause would remain dormant until made effective by statutory law. Nevertheless, at the political level, Shari’a clauses played an important symbolic role. In addition, Shari’a clauses were often cited by courts in resolving possible ambiguities in statu- tory law by referring to the principles of Islamic jurisprudence. Other than the Shari’a clauses found in the constitutions of many Muslim nations, a large number of countries incorporated Islamic law in their civil codes as one of the sources of legal construction. Typically, there is a clause written into the civil code instructing judges to interpret a statute by referring to the explicit meaning of the words of the statute. In cases of ambiguity, a judge is instructed to refer first to the established principles of Islamic law, and second to the prevailing customary practices in the country. In several Muslim countries, in cases of statutory ambi- guity, judges are instructed to refer to custom first, and then to Shari’a law. Such civil code Shari’a clauses have their biggest impact upon the commercial practices of Muslim countries, depending, for the most part, on the clarity and specificity of the statute being interpreted by a court. The Purported Islamization of Laws in Iraq After the Gulf War of 1991, and especially after the rebellions in the South and North, Saddam announced that he would implement Islamic law in Iraq, but he did so primarily as a legitimacy and popularity ploy. Saddam had systematically obliter- ated all Islamic, Sunni and Shi’i opposition, and especially after quelling the rebel- lions that plagued the country at the conclusion of the first Gulf War, Saddam had achieved notoriety for executing more Muslim scholars and jurists than any other leader in the modern history of Islam. Suddenly, the staunchly secular Saddam dis- covered religion and made a point of getting himself filmed performing his prayers, or would interrupt media interviews, announcing that he must pause for prayers. Saddam’s implementation of Islamic law was equally theatrical. On occasion, he would announce that a group of individuals will have their hands cut off for theft, or will be executed for adultery. The carrying out of these punishments were some- thing of public spectacle, in which people would be forced to watch the gruesome affair at the risk of being shot. Since the charges and trials, and often even the names and identities of the suspects were not made public, strong suspicions per- sisted that those being punished were actually people accused of being opponents of the regime. It is not an exaggeration to conclude that since the late 1970’s the Iraqi legal experience can be summed up as the following: There was no rule of law in Iraq, but only the rule of fear. Comparative Models Regarding the Role of Islam in the Constitutions of Modern Muslim States and a Cost and Benefit Analysis of Each Model Considering the wide range of technical and symbolic roles that Islam, in general, and Islamic law, in particular, have come to play in the world, it is useful to sum- marize the dynamics between Islam and the modern state in four basic models. These models will help place the various constitutional experiences, as far as Islam is concerned, in comparative perspective. In the process of explaining the four mod- els, I will also analyze some of the costs and benefits associated with each. This will enable us to better assess the risks associated with any particular policy imple- mented in modern day Iraq. Number One: The Strict-Separationist Model According to this model, there is strict separation between Islam and the state. The state represents purely secular interests, and religion is not formally integrated in the political or legal system. Although the country in question might be predomi- nately Muslim, there is no reference to Islam in the constitution or civil code, and personal laws are not based on nor inspired by Shari’a law. In this model, religious scholars and institutions may exist as a part of civil society, and they may even re- ceive limited subsidies from the state, but they do not play an institutional role in the power structure, and they do not formally participate in formulating policy or the production of law. This model, however, has not been widely adopted in Muslim countries. The prime examples of such a model are Turkey, Mauritania, Albania, and some of the former Soviet republics. Usually this model engenders wide opposition, and therefore, it tends to require heavy-handed repression by the state. Alternatively, as is the case with Turkey, it requires the dissemination of a widely popular civic ideology, such as Attaturkism, which thoroughly revises and reinvents the inherited cultural and VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 22 religious convictions and practices. In the case of the former Soviet republics and Albania, this ideological role was played by Communism. It is debatable whether this model is necessary for the existence of a liberal de- mocracy. While all democracies generally recognize the necessity of separation be- tween religion and state, according to this model, the separation is strict, dogmatic, and unwavering. Religion is not accommodated in any facet of public life, and the state has no religious identity whatsoever—it is not Muslim, Christian, or Jewish. The state does not fund religious institutions, and does not participate in any public displays of religion. But not all democracies have found it necessary to maintain a rigidly separationist policy as far as religion is concerned. Poland, Israel, India, and even England cannot be considered strict separationists, although they have man- aged to establish strong democratic systems. These four countries, and many others, have a very complex dynamic, where the government does not rule in God’s name, but it does accommodate various aspects of religious practice and identity. In these countries, although the government guarantees the rights of all religious minorities, the government is not entirely impartial towards all religions. Even more, the coun- tries, these governments represent, might even have a certain religious identity, such as Jewish, Catholic, or Protestant. While the strict separationist model can guarantee absolute equality of religious freedom, its uncompromising secularism often puts it at odds with the religiously based sentiments of the majority of citizens. If the majority of the citizenry has a strong sense of religious identity, often the state is forced to clash with the senti- ments of the majority, and as a result, the state ends up using heavy-handed tac- tics, largely at the expense of human rights. Consequently, the state becomes alien- ated from its citizenry, and the country exists in a perpetual condition of political turmoil and instability. Number Two: The Accommodationist Model This is the model adopted by a large number of Muslim countries including na- tions such as Syria, Algeria, Tunisia, and Iraq. In general, the institutions of the state are separated from religion, and Shari’a is excluded as a formal source of law. The personal and family law codes, however, are based on Islamic law, and are im- plemented by Shari’a courts. Although the constitution may assert the Muslim char- acter of the nation, Shari’a is not indicated as a source or the source of legislation. In addition, the impact of Islamic legal precepts or precedents upon the commercial and civil codes is very limited. The most distinctive aspect of this model is that ex- cept for the personal and family law fields, Islamic law is not integrated in the mechanisms of the state, and Islam does not provide the guiding principles for the polity. Islam is accommodated in the sense that it dominates the field of inherit- ance, marriage, and divorce, and Islamic religious practices are permitted to exist, and often thrive, as a part of civil society, but the state does not actively promote the precepts of the religion, and does not give religious parties or interests a formal role in governance. In the Accommodationist Model, the religious endowments, usu- ally inherited from previous eras, are allowed to exist, but they are placed under state control, and are permitted a very limited degree of autonomy. Mosques are often licensed and administered by the state, and imams (preachers who perform the call for prayer and lead prayer) are typically appointed by the state as well. Usually, the state will determine the appropriate subjects and content of the Friday sermons given in these mosques. At the official and formal levels, this model keeps religion at a considerable arms length. But there are two distinctive risks in this model. Like the strict separa- tionist model, it could generate considerable amount of religious opposition, and lead to a polarizing confrontation with Islamist forces. The other risk, and the more sub- tle one, is that unwittingly it could lead to considerable involvement with religion. Often in an effort to limit the popularistic and charismatic potential of the religion, the state is forced to involve itself with the regulation of religious expression, which, in turn, could invite greater repressive powers by the state. Number Three: The Integrationist Model In this model, there is greater formal involvement by the state with religion, but the political institutions continue to maintain their autonomy and separate exist- ence from the religious institutions. Particularly in the decade of the 1970’s, this model became more widespread and influential. Currently, examples of the integra- tionist model may be found in Egypt, the United Arab Emirates, Kuwait, Oman, Pakistan, Bangladesh, and Indonesia. The distinctive paradigm of this model is that while the state does not seek to implement all the technical prescriptions of Islamic law, and the state does not pretend to be the enforcer of canonical Islam, Islam and the Shari’ah are recognized as formal sources of moral and ethical inspiration. Fur- VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 23 thermore, within the contextual limits of each country, there is an effort to integrate Islamic legal principles not just in the civil and commercial law fields, but also as they pertain to social justice, and public ethical norms. As mentioned above, Islamic law is identified as one of the main sources of legislation in the constitutional framework of the country, and the jurisprudential tradition of Islam could be ref- erenced in order to resolve possible ambiguities in statutory law. Pursuant to this model, however, Islamic law is not self-executing, and Shari’a is considered a second frame of reference after statutory law. Therefore, only in the absence of statutory law on point will courts resort to Shari’a law or customary law, and in most coun- tries judges are given guidance on which of the two, Shari’a or custom, is to take priority. Considering the vastness of the Islamic legal tradition, some countries in- struct judges to apply a particular school of thought, for instance, the Hanafi School, or even to refer to a particular text, for instance, the Hidayah and/or the Majalla. In principle, it is possible for this instruction to vary from one province to another, within a single country, in order to accommodate the demographic differences within the country. For instance, in the absence of statutory law judges in one province may refer to Hanafi jurisprudence, while in a different province judges may refer to Ja’fari jurisprudence. Because Islamic law is applicable only in the absence of statutory law, and possibly in the absence of customary law as well, at the national level, the differences in legal application will be minor and technical. There are many potential institutional frameworks that make it possible to for- mally integrate the ethical and moral principles of Islam without creating a theo- cratic state in which a group of religion experts override the will and choice of the people. For instance, a group of religious scholars may contribute input to proposed legislation, but without having veto power over such law making efforts. Such a group of religious scholars may be elected or appointed to the legislative or par- liamentary body, and may constitute a percentage of such body. In this fashion, the religious scholars may comment directly on proposed legislation, and their view of what is Islamically acceptable or mandated may be given due consideration. In sev- eral countries, especially if appointed by the executive, this group of religious schol- ars does not have the power to vote on legislation, but are given an opportunity to comment or advocate a particular point of view. In some countries, instead of reserv- ing a place for religious scholars in the legislative branch, there is a separate body, often at the level of ministry, which is regularly consulted by the legislative body and asked to comment on proposed legislation. The comments of this religious con- sultative body are either read or distributed in the legislature or parliament, and are often printed and published as well. The earmark of the integrationist model is that, on principle, it does not seek to exclude Islam from the public manifestations of life. However, the Integrationist Model formally recognizes Islam’s leading ethical and social educational role, and it allows Islam to manifest itself in public life through the personal convictions and commitments of lawmakers. Importantly, the Integrationist Model’s consistent with the historical experience of Islam, and the traditional role of Shari’a. The Qur’an itself asserts that there can be no coercion or duress in religion, and the Integra- tionist Model attempts to avoid transforming religion into the coercive instrument of the state. It also attempts to avoid institutionalizing a particular group of spokes- men as the enforcers of the Divine Will. In addition, the Integrationist Model tends to respect the enormous diversity and richness of the Islamic jurisprudential tradi- tion by refusing to enforce one particular view to the exclusion of all others. The main shortcoming of the Integrationist Model is that at the level of political symbolism, this model is not always capable of leveraging itself politically in order to emphasize its consistency with Islamic paradigms. In other words, because the state does not position itself as the strict enforcer of the Divine law, at times, it is challenging for the state to avail itself of the perception of Islamic authenticity and legitimacy. However, this model is not as vulnerable to accusations of being dis- connected from its Islamic heritage, or accusations of excluding Islam from public life, as the previous two models. Number Four: The Requisitionist Model This model is the closest to a theocratic government, except for the fact that there is no consecrated church in Islam. The state selects the canonical doctrine, which the state believes represents the correct Islamic position, and enforces it both as the will of the state and God. This model has been adopted by a few countries, which include Saudi Arabia, Iran, and for a period of time, Sudan. The Requisitionist Model has taken different shapes and forms, some of which are able to achieve a greater degree of democratic practices than others. For instance, Iran gives a council of jurist-consuls and other high-ranking clergymen a near absolute veto power over legislation and policy. In Saudi Arabia, the executive empowers the judiciary to im- VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 24 plement Islamic law, assisted by executive orders or regulations that dictate policy or particular limits. The important element in this model is that depending upon one’s perspective, the state is requisitioned in the service of religion, or religion is requisitioned in the service of state. In all cases, there is an institutional body that determines the Will of God, and enforces it as such. As such, typically in this model, all courts are considered Shari’a courts charged with the enforcement of Islamic law, as defined by the state. Courts follow the instructions of the state as to what con- stitutes Islamic law, and in some cases and in particular fields, courts are granted wide law making powers. The difficulty with this model is two-fold: One, an institution or group of institu- tions becomes empowered with the gloss of divinity, and therefore, it is very difficult to reconcile this model with democracy. Second, this model tends to narrowly define orthodoxy because it favors one particular Islamic perspective over all others. Argu- ably, this has the serious potential of undermining the richness and diversity of the Islamic tradition. The Spectrum of Models It is important to note that the four models identified here are approximations of the earmarks of actual practices of modern Muslim states. However, there is a spectrum that exists within each model and between one model and the other. Therefore, it is possible that an Accommodationist state borders on being Integra- tionist, and it is also possible that an Integrationist state would act as Requisitionist over some issues and under certain circumstances. For example, Egypt, over most issues, is Integrationist, but at times, acting upon the instructions of the Azhar University, it bans certain books that it considers religiously offensive. In those instants, it is acting pursuant to the Requisitionist model. Furthermore, some countries, such as Jordan, have experimented with the Integrationist model but of lately have drifted towards the Accommodationist model. On the other hand, for example, Sudan has drifted from a Requisitionist orientation to a more integra- tionist stance. The Case of Iraq and the Iraqi Constitution There is little doubt that many Iraqis are aspiring for a democratic order that would guard against the kind of abuses that they for long have had to endure. The formidable challenges confronting Iraqis include how to overcome the absolute juris- prudential impoverishment that they suffered under the Ba’ath, while reclaiming their creative legacy; how to find justice in post-Saddam Iraq, while avoiding the destructiveness of vengeance; and how to make the law a shield and tool in the hands of the people; and not an oppressive sword in the hands of the state. On the legal front, the challenge will be how to establish order and stability, while still al- lowing the law to be an agent of progressive change. It is important in this regard to note that the rule of law is a necessary condition for a democracy to exist, but it is not enough. Democracy is not just about the objectivity and fairness of process or the division and separation of power between various branches of the govern- ment. Democracy is also not just about giving effect to will of the majority, or ac- countability to the people. Democracy is about a moral commitment to the funda- mental and basic worth and dignity of each and every member of the citizenry, and the conscientious engineering of government and society so as to make human beings secure in their rights. Importantly, this moral commitment can be expressed through law, but it cannot be not created or invented by legal command. Democracy is not secured by drafting good laws alone, but it must be made a part of one’s cultural and ethical view. Con- sidering Iraq’s rich civilizational heritage, there is no doubt that Iraqis will be look- ing, and rightly so, into their pre-Ba’th legal and moral history for inspiration and guidance on how to make the moral commitment and develop the ethical worldview necessary for a democracy. In this context, it is important for American policy mak- ers to understand that Iraq’s legal and ethical history did not start with the over- throw of Saddam. A major component of the Iraqi heritage is the Islamic faith, and the leading role that Iraq played in the development of Islamic law. But here is where Iraq’s creative legacy is most needed. A dual commitment to Islamic law and democracy is possible, but only if Muslims understand Islamic law to reinforce the same commitments made by democracy to individual human rights and dignities. This is exactly where Iraq might be able to reclaim its leading educative and inspi- rational role towards the rest of the Muslim world. It will be a revolutionary step if Iraqi legal minds are able to reinterpret and rethink the Islamic classical tradi- tion in a way that upholds the basic individual rights necessary for a democratic order. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 25 Opting for either the Strict-Separationist or Requisitionist (theocratic) Models in Iraq will be nothing short of a disaster for the Iraqi people, Muslims, in general, and the West. The establishment of a theocracy in Iraq will inevitably lead to a de- nial of human rights, the marginalization and exclusion of Iraq from the world com- munity, and considerable sectarian tensions between Shi’i and Sunni Muslims. But even more, a theocracy is an affront to the wisdom of Islam, the diversity and rich- ness of Shari’a, and to the historical legacy and established precedent of Muslims around the world. But the forcible exclusion of Islam from public life, state sponsor- ship, and all legal and constitutional documents will be a disaster of equal propor- tions. The worse thing that the government of the United States can possibly do, while acting as an occupying power in Iraq, is to impose upon the Iraqi people a political condition that is so artificial—that is so alien to the collective consciousness of the Iraqis, and that is at odds with their historical experience and aspirations— that it appears that the United States is, in fact, acting like a power of occupation and domination, not persuasion and liberation. The danger is that if the United States appears hostile or insensitive to the religious sentiments of the Iraqis, this will invite resistance. It will be a real tragedy if the democratic experiment in Iraq fails, not because the Iraqis do not believe in democracy, but because democracy is seen as part of the ideological package of an aggressive or imperialistic occupying force. The United States government must successfully communicate to the Iraqi people its desire to help them to practice their religion, if they so desire, more fully and freely, not force upon them a situation that they will view as hostile, deprecating, or insensitive towards their faith based commitments and beliefs. More concretely, the United States government should not resist, and, in fact, should tolerate and support, any efforts by the Iraqis to (1) define the religious identity of their country; (2) preserve the sanctity and inviolability of Islamic law in certain areas of legal practice that the Iraqis define as highly personal and intimate to their identity and will as a people; and (3) define Islam in such a way that it is consistent with democ- racy and human rights. For instance, if the Iraqis wish to proclaim a bill of indi- vidual rights, in their constitutional document, and further wish to assert that this bill of rights is derived from their Islamic commitments and understandings, the United States should encourage such a move. The United States government ought not be suspicious of any effort by the Iraqis to anchor their human rights and demo- cratic commitments in novel or original interpretations of the Islamic tradition. It should be noted that I am not advocating that the government of the United States dictate any Islamic positions or establish any religious doctrine. The key here is that whatever efforts are made on behalf of Islam must be driven by Iraqis themselves. I am only addressing possible responses or reactions by our government to antici- pated Iraqi initiatives on behalf of their religious identity and faith. If the Iraqis are able to articulate their democratic and human rights choices in terms of Islamically compelling positions, this will have the long-term advantage of trans- forming the Iraqi experience into a normative precedent for all Muslim nations. If Iraqis can successfully establish that it is their Islamic faith that inspired them to commit to democracy and human rights, this is bound to have a far reaching impact upon Muslim countries and nations around the globe, and United States would have played the role of partnership and sponsorship in generating this pivotal develop- ment in Muslim history. The Japanese and German Post World War II Model and the Democratic Challenge in Iraq When evaluating the chances of democracy in Iraq, in many ways, the establish- ment of capitalist democracies in Germany and Japan in the Post World War II pe- riod becomes an encouraging precedent. One can rightly take pride in the trans- formation of these two countries into democratic world powers under American sponsorship. The precedent of both these countries does indicate that democracy can be taught and transplanted, and that it does not necessarily have to emerge through the natural socio-political processes within a particular country. There are, however, several elements that counsel against assuming that whatever worked in Germany and Japan will necessarily work in Iraq. The following are some of these elements of difference and distinction: 1. Both countries before their democratic transformation were heavily industri- alized countries with advanced economies and very high productivity. The United States was able to inject capital into the war torn, but developed, economies of both countries, and by doing so, the United States was able to re-set both nations on their path of economic progress. Although highly des- potic governments dominated both Germany and Japan, there were strong, developed, and sophisticated entrepreneurial classes ready and set to share VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 26 power once these despotic governments fell. In this regard, the situation in Iraq is markedly different. Iraq is not an industrialized or technologically ad- vanced country. Furthermore, Saddam had severely weakened the entrepre- neurial class and forced them into a symbiotic relationship with the state in which they were more like economic leeches heavily dependent on a very cor- rupt government for their survival. This is bound to make the distribution of economic base and power in Iraq more challenging, and will require a much heavier investment of venture capital in order to create a productive economic system that can support a democracy. 2. Levels of literacy, education, and technological development were already very high at the time of the American occupation of Japan and West Germany. De- mocracy is much better secure and supported in societies enjoying a high level of literacy and education. Literacy and education contribute to the creation of sophisticated civil societies and are conducive to the development of civic virtues, such as social and political responsibility, accountability, compromise, and the sharing of power, which are importing for nourishing and guarding a democracy. Literacy and education levels in Iraq, although higher than some of the countries in the region, are low when compared to West German and Japanese standards. 3. Historically, both Germany and Japan were colonizing, not colonized, nations. Unlike Iraq, Germany and Japan did not have to deal with a collective histor- ical memory that labors under the trauma of colonialism. This meant that both countries were relatively more receptive to the influx of ideas and influ- ences coming from the United States, specifically, and the West, more gen- erally. Unlike Iraq, there was no national trauma induced by long periods of occupation and domination, and a deeply ingrained sense of distrust and sus- picion focused on the West. 4. Before the war, Germany and Japan followed a particular ideology that had become utterly undermined and discredited after World War II. The ideolog- ical defeat was complete and thorough, and the German’s and Japanese were ready for an ideological transformation. In the case of Iraq, even if one asserts that the defeat of Ba’athism, the secular nationalist ideology of Saddam and the ruling government of Syria, is complete, Ba’athism is not the issue. The issue is the inclusion or exclusion of Islam in the constitutional document of Iraq. Not only is Islam not a discredited ideology, it is not an ideology at all. As a religious faith, it has its own set of demands on its followers. If the United States forces Iraqis into a position in which they have to choose be- tween the demands of their religion and demands of their constitution, the constitutional document will not penetrate deeply into the socio-political fab- ric of Iraq, and these competing demands are bound to generate tensions and strong resistance. 5. Iraqis, as Arabs and Muslims, are firmly situated within a particular socio- historical context. Iraq does not only influence the countries and people situ- ated within its region, but is also, in turn, influenced by them. It is important that the United States not contribute to a situation in which Iraq becomes, by our decree, artificially alienated from its context. If Iraq’s distinctive Mus- lim and Arab character is artificially diluted, and its policies become a replica of American preferences and policies, this will only confirm the status of Iraq as a country occupied by an alien power. Put differently, it is important to avoid giving the impression that Iraq is a mirror of the United States, and no longer authentically Iraqi. Such an impression is bound to further radicalize and polarize the region, and will in the long term, inevitably, back- fire. The regional contexts of Germany and Japan were completely different. Any possible German or Japanese opposition to American policies could not gain inspiration or support from its regional surroundings. Obviously, the sit- uation in Iraq is decisively different. It is important that in the process of saving Iraq, the United States does not end up losing the region. Respecting the Iraqi Choice These material differences, among many others, between Japan and Germany, on the one hand, and Iraq, on the other, are mentioned here to emphasize the distinc- tiveness and particularity of the challenge in Iraq. In my view, we cannot afford to deal with Iraq as the vanquishing victors, and expect the Iraqis to mold themselves after our image. It is important that the United States displays a considerable amount of sensitivity and respect for the Iraqi history, civilization, and religion. Therefore, it would be a serious mistake to deny Iraqis the opportunity to define VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 27 themselves—even if this self-definition would include choices regarding the public role of religion that would not be our own. Senator CORNYN. Thank you very much, Doctor. Mr. Al-Sarraf. STATEMENT OF SERMID AL-SARRAF, MEMBER, BOARD OF DIRECTORS, IRAQI JURISTS’ ASSOCIATION Mr. AL-SARRAF. Thank you, Chairman Cornyn, Chairman Chafee, Senator Feingold. I am pleased to be here today as a mem- ber of the Iraqi Jurists’ Association, the Working Group on Transi- tional Justice with the State Department’s Future of Iraq project, and as a Muslim-American attorney from California, to discuss the challenges which face Iraq and the Coalition Provisional Authority, the CPA, with regard to reestablishing the rule of law in this post- Saddam era. Senator CORNYN. Could I ask you to pull the microphone a little closer to you so we can hear you a little better? I appreciate it. Mr. AL-SARRAF. I’m not going to repeat the description of the IJA and its history. It’s recorded in my written statement, which I will include with the record. The challenges on the road to restoring the rule of law in Iraq can be broken down into two categories, those facing the Iraqi peo- ple, and those facing the Coalition Provisional Authority, or the CPA, and in particular, the role of the United States. The working group report, which was submitted to the committee and is fairly extensive in English and much more extensive in Arabic, roughly 750 pages, goes into great detail as to the challenges facing the Iraqi people, so I’ll focus my time here today on those challenges that face the Coalition Provisional Authority and, in particular, the United States. The three major challenges, as I see them, are: (1) delivering on promises, (2) applying appropriate resources to the task, and (3) understanding Iraqi society and enfranchising and empowering Iraqis themselves. On delivering on promises, the U.S. has a small window of oppor- tunity to make good on its promises before the situation in Iraq spirals out of control. A definitive success in Iraq may be the key to restoring our image as a Nation that stands for liberty, democ- racy, and respect for human rights both at home and abroad. In the eyes of Iraqis inside Iraq, prior U.S. foreign policies were marked by broken promises, the most prominent of which was the one made immediately after the first Gulf War, which promised U.S. support for the Iraqi people if they were to rise up against Saddam. When they did, in overwhelming numbers, 14 of 18 prov- inces were liberated from Ba’ath party rule. The U.S. and other al- lied forces stood by and watched as Saddam Hussein brutally mas- sacred tens of thousands of civilians to maintain his grip on power. Now, while Iraqis are, on the whole, relieved and genuinely ap- preciative that Saddam was removed, they are also simultaneously wary of the coalition forces’ true intentions. They ask the question, after supporting Saddam during the Iran-Iraq war, defeating him in Kuwait while tacitly supporting his efforts to stay in power and forcing devastating sanctions which ultimately strengthened his rule and punished the Iraqi people, what has changed? VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 28 It is critical that the CPA understand this backdrop and the en- vironment in which it operates. The initial objective of moving in quickly with civilian and humanitarian assistance to effect an im- mediate improvement in the day-to-day living conditions was un- questionably the correct policy. Unfortunately, and without regard to root causes, in the areas of security, lack of electricity, tele- phones, and other basic services, this policy has not been fully achieved. Because of this backdrop, there is very little room for delays and mistakes, which the Iraqi people perceive in the context of a con- tinuum of past policies. In terms of applying the appropriate re- sources to the task, I’d like to describe this challenge by way of a specific example taken from the front page of the Washington Post on May 21, 2003, in an article entitled, ‘‘Ad-Libbing Iraq’s Infra- structure.’’ One of the examples of this ad-libbing was the case of the courts in the southern city of Najaf. A recent law school student, an Army reservist from Wisconsin, without deference to the State of Wis- consin, with 1 year of training in Arabic, was tasked with reestab- lishing the courts in the city. One of the first actions that was taken was to have all of the lawyers vote on the judges, whether they would keep their positions. For perspective, if this was done in L.A. Superior Court, I can guarantee you that many of the law- yers would not be voting for the most qualified or most impartial judges. This is not a knock on the service person. In fact, she made sig- nificant advances in involving women jurists, to her credit. She is simply executing her orders to the best of her ability. This is a cri- tique of the policy, however, that fails to understand and appre- ciate the needs and apply the appropriate resources to the task. This is not an isolated incident. In early May, the Department of Justice sent a judicial assessment team to Iraq. Not one of the roughly 11 members of this team were Iraqi legal professionals, or even native Iraqi Arabic speakers, despite the fact that the DOJ conducted a 2-week training program on international humani- tarian law just a few weeks prior to 25 to 30 prominent Iraqi ju- rists. Today, you saw in the Washington Post, I’m sure, the article about the military versus the civilian reconstruction and the prob- lems that the military was having in rising to the occasion, and this is not a plug for the Washington Post, by the way, but if I were a jurist inside Iraq witnessing these events, I would think to myself that the CPA and the U.S. are not taking this task seriously, and this is not for lack of expertise. The U.S. has access to, particularly in the State Department and the Future of Iraq project, many, many experts, and unfortunately the rifts between the various departments within the U.S. Govern- ment have stymied these efforts. The third challenge, understanding Iraqi society and enfranchising Iraqis, part of the problem with assessing the appro- priate resources is a fundamental lack of understanding of Iraqi so- ciety, its history, and its people. Many assumptions are made based on experiences of other countries, such as Afghanistan, post-World War II Germany, and Japan. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 29 Iraqi is a country with a legal tradition which predates Saddam Hussein and the Ba’ath Party. Its legal system is based on a com- bination of Shari’ah law derived from the Ottoman era and civil law derived from the French legal code. Among its people are high- ly qualified legal professionals, judges, lawyers, prosecutors and law professors both inside and outside the country. Piecing together a legal framework for this transition period is not as complex as the example of Afghanistan and, unlike Germany and Japan of the World War II era, Iraqis did not elect nor freely accept the Ba’ath Party nor Saddam’s regime. The main victims of Saddam’s regime were his own people, and they sacrificed greatly in numerous attempts to rid themselves of this regime. The vast majority of lower level members of the Ba’ath Party joined not out of loyalty or belief, but out of dire necessity or fear of death. How did this understanding change the CPA’s approach? First, most Iraqis are more than happy and willing to participate and take the lead in the de-Ba’athification process. The Iraqi people do not need to be convinced about the evils of the prior regime. They know it, they lived it, and many died because of it. It is critical not to disenfranchise those who would otherwise be supporters. This has happened with the disbanding of the military, with hundreds of thousands of people dependent upon their salaries for their basic survival. Second, among Iraqis themselves are qualified professionals, with sound reputations both inside and outside Iraq. It is critical that the CPA tap into this important resource. I know that this ef- fort has begun in certain ministries, but it needs to continue and expand. Iraqis in particular in the legal field are very sensitive about outside involvement in the Arab world, especially if they are from countries perceived to have benefited or cooperated with the prior regime. Even for exiled Iraqis, their role should be limited to advising, consulting, and assisting, and not include positions of au- thority unless specifically elected by the people themselves in free and open elections. Based on my conversations with trusted exiles, trusted sources in-country, Iraqis are feeling like strangers in their own country. Either through neglect, lack of understanding, or for the sake of ex- pediency, current efforts seem to be avoiding direct Iraqi involve- ment and their opinions in important decisions. Disbanding the military in such a manner is one such example, and I’d like to just respond to one of the comments about reducing the number of Ba’ath Party members in the exclusion from or lustration from government service. While I agree that their fami- lies need to be supported, and the measures should be looked at to extend their benefits and their salaries, I think there should be no wavering on the principle of excluding Ba’ath Party members from public office. Senator CORNYN. We want to make sure we get a chance to ask questions and so forth. Could I ask you, please, to wrap up your original comments? Mr. AL-SARRAF. Yes. Senator CORNYN. And then we will, of course, be able to allow you to expand on that as we ask questions. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 30 Mr. AL-SARRAF. I’ll wrap up with the quote that I made from your prior speech. Senator CORNYN. Please. Mr. AL-SARRAF. These are not insurmountable challenges. I am optimistic for one simple reason, and that is, to echo your words, after defeating our enemies in World War II, we left behind con- stitutions and representative government, not permanent military authority, and we can do the same in Iraq. Because of this tradition, the U.S. is uniquely positioned to suc- ceed in this important undertaking. Any failures in Iraq reflect on all of us and will have a long-lasting negative impact on U.S. inter- ests in Iraq, the region, and the rest of the world. Iraqis do not make distinctions between the Pentagon and the State Depart- ment, Democrats or Republicans. This is a massive undertaking which requires the best talents of all. Thank you. [The prepared statement of Mr. Al-Sarraf follows:] PREPARED STATEMENT OF SERMID AL-SARRAF, ESQ. Chairman Cornyn, Chairman Chafee, Senator Feingold, Senator Boxer and, Mem- bers of the joint Subcommittees, I am pleased to be here today as a member of the Iraqi Jurists’ Association, the Working Group on Transitional Justice of the State Department’s Future of Iraq project, and a Muslim American attorney from Cali- fornia, to discuss the challenges which face Iraq and the Coalition Provisional Au- thority (CPA) with regard to re-establishing the Rule of Law in this post-Saddam era. The Iraqi Jurists’ Association (IJA) was formed almost 3 years ago and was the largest consortium of Iraqi judges, lawyers, prosecutors and law professors outside Iraq. Last year, IJA teamed up with the State Department’s Future of Iraq project to form the Working Group on Transitional Justice which, in turn, prepared a 750 page report entitled ‘‘The Road to Re-establishing Rule of Law and Restoring Civil Society—A Blueprint.’’ This report, originally in the Arabic language, was finalized and adopted on March 23, 2003. A summary of this report in English was also pre- pared. The Working Group and the report itself benefited from internationally rec- ognized experts in the area of Transitional Justice such as Professor Cherif Bassiouni, President of the International Human Rights Law Institute at DePaul University; Professor Alex Boraine, President of the International Transitional Jus- tice Center, former deputy chair of the Truth and Reconciliation Commission in South Africa; Mr. Neil Kritz, Director of the Rule of Law Program at the U.S. Insti- tute of Peace; and many others. Now, with more than 80 prominent legal personalities and after a recent trip to Iraq by the IJA chairman, Dr. Tariq Ali Al-Saleh, the organization is in the process of transferring its headquarters from London to Baghdad where it is expected that Iraqi jurists from inside the country will take the lead in transforming the IJA into an effective civic institution with a mission to help create, educate and defend an independent judiciary. The challenges on the road to restoring the Rule of Law in Iraq can be broken down into two categories: (1) those facing the Iraqi people and (2) those facing the Coalition Provisional Authority (CPA), in particular the role of the United States. The Working Group report goes into great detail as to the challenges facing the Iraqi people. I will spend my time here today, addressing what I believe are the challenges to the CPA and the U.S. in particular. The three major challenges I see are: 1. Delivering on Promises 2. Applying Appropriate Resources to the Task 3. Understanding Iraqi Society and Enfranchising Iraqis 1. Delivering on Promises The U.S. has a small window of opportunity to make good on its promises before the situation in Iraq spirals out of control. A definitive success in Iraq may be the VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 31 key to restoring our image as a nation that stands for liberty, democracy and re- spect for human rights, both at home and abroad. In the eyes of Iraqis inside Iraq, prior U.S. foreign policy was marked by broken promises, the most prominent of which was the one made immediately after the first Gulf war, which promised U.S. support for the Iraqi people if they were to rise up against Saddam. When they did in overwhelming numbers (14 of 18 provinces were liberated from Ba’ath party rule), the U.S. and other allied forces watched by as Saddam brutally massacred tens of thousands of civilians to maintain his grip on power. Now, while Iraqis are on the whole relieved and genuinely appreciative that Sad- dam was removed, they are also simultaneously wary about the coalition forces’ ‘‘true’’ intentions behind this action. They ask the question, after supporting Sad- dam during the Iran-Iraq war, defeating him in Kuwait but tacitly supporting his efforts to stay in power, enforcing devastating sanctions which ultimately strength- ened his rule and punished the Iraqi people, what has changed? It is critical that the CPA understand this backdrop and the environment in which it operates. The initial objective of moving in quickly with civilian and hu- manitarian assistance to effect an immediate improvement in the day to day living conditions was unquestionably the correct policy. Unfortunately, and without regard to root causes, in the areas of security, lack of electricity, telephones and other basic services this policy has not been fully achieved. Because of this backdrop, there is very little room for delays and mistakes, which the Iraqi people perceive in the con- text of a continuum of past policies. 2. Applying Appropriate Resources to the Task I’d like to describe this challenge by way of a specific example taken from the front page of the Washington Post on May 21, 2003, in an article entitled, Ad- Libbing Iraq’s Infrastructure. One of the examples of this ‘‘Ad-Libbing’’ was the case of the courts in the southern city of Najaf. A recent law school student and Army reservist from Wisconsin with 1 year of training in Arabic was tasked with re-estab- lishing the courts in this city. One of the first actions was to have all of the lawyers vote on which judges would keep their positions. For perspective, if this were done in Los Angeles Superior Court, I can guarantee you that many lawyers would not be voting for the best qualified, most impartial judges. This is not a knock on this service person, she is executing her orders to the best of her ability. This is a cri- tique of the policy that fails to understand and appreciate the needs and apply the appropriate resources to the task. This is not an isolated incident. In early May, the Department of Justice sent a judicial assessment team to Iraq. Not one of the roughly 11 members of the team were Iraqi legal professionals (or even native Iraqi-Arabic speakers), despite the fact that the DOJ conducted a 2-week training program on international humanitarian law for 25–30 prominent Iraqi jurists in late March. If I were a jurist inside Iraq, witnessing these events, I would think to myself that the CPA and/or the U.S. are not taking this task seriously. 3. Understanding Iraqi Society and Enfranchising Iraqis Part of the problem with assessing the appropriate resources is a fundamental lack of understanding of Iraqi society, its history and its people. Many assumptions are made based on experiences in other countries, such as Afghanistan, post World War II Germany, and Japan, etc. Iraq is a country with a legal tradition which predates Saddam Hussein and the Ba’ath party. Its legal system is based on a combination of Shari’ah law (derived from the Ottoman era) and Civil law (derived from the French legal code). Among its people are highly qualified legal professionals: judges, lawyers, prosecutors and law professors, both inside and outside the country. Piecing together a legal frame- work for this transitional period is not as complex as in the example of Afghanistan. And, unlike Germany and Japan of the WWII era, Iraqis did not elect nor freely accept the Ba’ath party nor Saddam’s regime. The main victims of Saddam’s regime were his own people and they sacrificed greatly in numerous attempts to rid them- selves of this regime. The vast majority of lower level members of the Ba’ath party joined not out of belief or loyalty but out of dire necessity or fear of death. How does this understanding change the CPA’s approach? First, most Iraqis are more than happy and willing to participate in and take the lead in the de- ba’athification process. The Iraqi people do not need to be convinced about the evils of the prior regime: they know it, they lived it, and many died because of it. It is critical not to disenfranchise those who would otherwise be supporters. This has happened with the disbanding of the military, with hundreds of thousands of people dependent upon their salaries for their basic survival. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 32 Second, among Iraqis themselves there are qualified professionals with sound rep- utations both inside and outside Iraq. It is critical that the CPA tap into this impor- tant resource. I know that this effort has begun in certain Ministries, but it needs to continue and expand. Iraqis, in particular in the legal field, are very sensitive about outside involvement, including from the Arab world especially if they are from countries perceived to have benefited or cooperated with the prior regime. Even for exiled Iraqis, their role should be limited to advising, consulting and assisting and not include positions of authority unless specifically elected by the people them- selves in free and open elections. Based on my conversations with trusted sources in-country, Iraqis are feeling like strangers in their own country. Either through neglect, lack of understanding, or for the sake of expediency, current efforts seem to be avoiding direct Iraqi involvement and their opinions in important decisions. Disbanding the military in such a manner is one such example. This must not happen with the formation of the constitution. To ensure maximum participation in this process, some jurists in the IJA recommend a multi-phased process. The first phase would be to hold a national referendum on the form of gov- ernment (as an example, whether it would be a republic, parliamentary or presi- dential system, constitutional monarchy, etc.) and once that decision is made by the Iraqi people, a group of elected representatives could be formed to draft the constitu- tion with the assistance of international and domestic legal experts. To protect the long term stability of a democratic Iraq, there would need to be a strong and inde- pendent judiciary with a mandate to review the constitutionality of actions of the other two branches of government. Conclusion These are not insurmountable challenges. I am optimistic for one simple reason and that is, if I may echo the words of Chairman Cornyn in one of his recent speech- es: After defeating our enemies in World War II, we left behind constitutions and representative government, not permanent military authorities—and we can do the same in Iraq.—from a speech to the American Enterprise In- stitute, 6/10/2003 Because of this tradition, the U.S. is uniquely positioned to succeed in this impor- tant undertaking. Any failures in Iraq reflect on all of us and will have a long-last- ing, negative impact on U.S. interests in Iraq, the region and the rest of the world. Iraqis do not make distinctions between the Pentagon or the State Department, Democrats or Republicans. This is a massive undertaking which requires the best talents of all. The consequences of success and/or failure will also be shared by all. Senator CORNYN. Thank you very much. Ms. Salbi. STATEMENT OF ZAINAB SALBI, PRESIDENT AND FOUNDER, WOMEN FOR WOMEN INTERNATIONAL Ms. SALBI. Yes, thank you very much for this opportunity. It is indeed an honor and a privilege to be here. I am speaking here not only in my capacity as president of Women for Women Inter- national, or as an Iraqi-American, but as someone who recently came back from Iraq. I had been there both in January to get an assessment of pre-war Iraq and what Iraqis are saying, and then I recently came from Iraq in May, where I got an assessment and interviews of different socioeconomic classes, ethnic and religious backgrounds all over Iraq, mostly in central and southern Iraq. So what I’m trying to say is, I’m trying to convey what the Iraqis are saying, including those who I talked to up until 2 days ago from Baghdad. I called my original report, Please Tell Mr. Bush, because a lot of people were following and telling me, ‘‘please tell Mr. Bush thank you for liberating us from Saddam, for getting rid of Saddam once and for all,’’ so there is a great level of appreciation that Iraqis have finally been liberated from 35 years of oppression. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 33 Having said that, they will always continue the sentence and say, ‘‘and we need more.’’ Iraqis had and still have high expecta- tions from America, and some of these expectations may be too much. There are expectations that there is a Marshall Plan going to be in Iraq, and the impact of the plan will be seen in a couple of months’ period, and that is obviously, some of them are not real- istic. What we need here is to address these expectations and do something about them. Economically, although I do have to acknowledge Ambassador Bremer’s accomplishments in terms of reinstating the salaries, in- cluding to former military personnel, that has a huge economic im- pact on the Iraqis. However, small- and middle- and medium-sized businesses have not been operating for 4 months now, and they do have a huge impact on those who are dependent on daily wages. The economy is switching from local production to export depend- ence, and that is impacting the long-term economic sustainability of Iraq. A lot of people are complaining that the American and coalition forces started by talking about democracy rather than talking about economic reconstruction. I’ll summarize what one man told me in a small alley in Najaf, a very conservative province in south- ern Iraq, who said, we need food and security before democracy. When you save someone from death, his first wish is not a car, but basic needs to regain his energy. Americans, God bless them, are more concerned with democracy than they are with addressing our basic needs. He continues and says, we need economic stability as a pre- requisite for democracy. We need to be able to breathe so we can talk about how we can build our democratic process. He wasn’t de- nying the importance of democracy, as much as saying, I need a break now. There is a huge impact on women in post-war Iraq. The security situation, which continues to be very chaotic, to say the least, is having particular impact on women, who are being targeted for kidnapping. Rumors in Iraq, and confirmed by actually an article in The Economist, there’s a market now where women are being sold and trafficked in Baghdad itself. This is impeding the women’s movement outside the house, and this is critical, especially when we have such a high percentage of single heads of households after 20 years of wars. Political participation for women is very limited. While a lot of the local political parties, as well as those from exile, have very few, if any, women’s representation in their parties, when they ad- dress this issue they don’t seem to have an ideological opposition to it as much as, this didn’t occur to them. A lot of Iraqi women, though, are very adamant about their par- ticipation in the political and reconstruction process. A 40-year-old woman, as one of the middle-class women who wears the tradi- tional head scarves, was telling me, I want Iraqi women to be part of every process of building the country, in the army, in sport, in every single sector. Women need to have 50 percent representation in the country. I wish this could happen. We deserve that, and we have the credibility to do that as well as men. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 34 We have to incorporate women’s participation in the constitu- tional discussion and the political discussion as well as in the eco- nomic reconstruction in Iraq, without which we will not have sus- tainable economic development or political development in Iraq. As to political parties, there is a sense—well, I’ll summarize what one man told me. He said, ‘‘before we had one Saddam, and now we have many, many Saddams who use power in similar ways of Saddam Hussein.’’ A lot of the political parties who came from exile are known to have, or are perceived to have a monopoly of discussions and dialog with the CPA and with coalition forces. There is no sense of transparency. There is no sense of people knowing even what is happening, and the lack of information, I would say, is at the core of the problem. People need to know what is happening, and there is no medium of communication with the average person in Iraq, and this is again a lot of the complaints. I summarize again what one person told me. He said, we need to know what is going on, we need a public relations campaign that can speak to the concerns of the average Iraqi. Another person said the same thing. We need to know what is going on. We don’t want to see soldiers killing two people every day, or American soldiers being killed for that matter. America needs to focus its communication to the average Iraqi, the real Iraqi, by helping them resume their daily work and daily lives to a normal stage. Real people need to get a sense that America is communicating with them and addressing their concerns. If you lose the average person, you will lose peace in Iraq. This is what an Iraqi just told me, actually a businessman, 2 days ago. He said we are at the risk at this point of not only losing the average person in Iraq, we are at the risk of losing the elite of Iraq. When everyone’s business is being impacted, when the economy is being impacted, and when there is no sense of commu- nication and transparency of what is happening, we are at the risk of losing these people, the Iraqis, and when we lose the Iraqis, we will lose peace in Iraq. There is a strong sense by the Iraqis themselves, communicate, communicate, communicate to us. There are only 2 hours of TV over there. This is not enough. They need to hear from the coalition forces what is going on. A PR campaign would be a critical one. We also need to make sure that we have a transparent process. We need to include the expertise of Iraqis internally. I completely agree with my colleagues in here. Those of us who are in exile can only be advisors. Those Iraqis who are in Iraqi are the only legiti- mate people to run the country. They have suffered, and they need to have a say in what’s going on. Senator CORNYN. Ms. Salbi, let me ask you please, if you would, wind up your opening statement so we can get some questions. I regret to say that we do have a very large Medicare bill making its way through the Senate, so we will have to stop for some votes and come back in a little bit, but please, if you will conclude, and then we will go to questions until it’s necessary for us to go. Ms. SALBI. The last thing is, we need to do an awe and shock campaign in economic development in Iraq. This is the only way we can win peace and security not only in Iraq, but throughout the whole Middle East, and women have to be at the core of that. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 35 [The prepared statement of Ms. Salbi follows:] PREPARED STATEMENT OF ZAINAB SALBI Thank you for the opportunity to testify before the Congress at such a critical mo- ment with respect to the current situation in Iraq and our attempts to build a last- ing peace in the country. My remarks reflect more than 10 years of work in post conflict societies including Bosnia and Herzegovina, Kosova, Afghanistan and else- where, with a particular focus on women. In the case of Iraq, my remarks are in- formed by my own national origin, as I was born and raised in Iraq, and by two fact finding trips I have recently taken to Iraq on behalf of Women for Women Inter- national—one trip took place in January of this year to get a sense of the conditions and attitudes in pre-war Iraq. A more recent trip took place in May of this year as I prepared an assessment report on the current situation in Iraq as we work to open an office to help the women of Iraq through Women for Women International. In both trips, I interviewed women and men from different socio-economic back- grounds, ethnic groups and religious tendencies in both central and southern Iraq. Since then, I have maintained almost daily contacts with Iraqis, primarily in Bagh- dad. My ultimate goal for the report that follows is to convey an accurate image of what is going on in the hearts and minds of Iraqis, and particularly women. Only by having a clear understanding of what the actual conditions on the ground are can we work on our common goal of building a lasting peace, economic prosperity and a sustainable democracy in Iraq. I will conclude by making recommendations that address the concerns of the Iraqis with whom I have met and who must be the new constituency as we move forward—the new constituency for American and international non-governmental organizations, international organizations such as the United Nations, and the Coa- lition Provisional Authority. Regardless of how Iraqis felt about the war, one can safely argue that the vast majority of Iraqis welcomed the opportunity to get rid of Saddam Hussein’s regime and are thankful for the Coalition’s role and America’s leadership in freeing Iraq. However, while Iraqis may have different visions for the future of Iraq, everyone with whom I spoke, without exception, is surprised at what is perceived to be the lack of any organization or preparation for post-war Iraq. This was most evidenced by the chaos and anarchy that spread across Iraq in the days and weeks after the war, and in the continuing inability of Coalition forces to fully restore basic services or provide physical security for the overwhelming majority of Iraqis. The looting and burning of ministries, universities and other public properties, the limited electricity, lack of phone systems, extensive delay in resuming food delivery, the mass possession of guns and machine guns—among even children—all are con- tributing to a high level of frustration among the public as their daily lives and practices have been stalled without a clear idea about the future. A driver is vulner- able at any moment to a gunman forcing him or her out of the car. People are wit- nessing killings in public streets and in the middle of the day. Women are afraid to leave their houses for fear of rape and kidnapping. Mothers are afraid to let their kids walk to school on their own. Impact on the Economy Ambassador Paul Bremer’s recent policy decree reinstating the distribution of sal- aries, including a great proportion of the former military’s, is warmly welcomed by many Iraqis. Such steps are helpful to calm the immediate economic needs by those who were employed by the former government. The question now needs to extend to the private sector, including micro-, small- and medium-size enterprises. Such businesses have not been able to operate for more than 4 months now due to the lack of electricity and security. Small- and micro-businesses have been hardest hit, along with their employees who represent the most marginalized sectors of the pop- ulation including women and single heads of households and others who are 100% dependent on these enterprises for their daily wages. Medium-size business losses are also impacting the business elite whose public support for Coalition forces is de- creasing daily as their economic well being is further threatened. The economy in general is veering from reliance on local production, particularly in areas related to food production, to an economy dependent more on processed and imported food. Addressing the revitalization of the local economy and local produc- tion is of the utmost importance in creating long term economic sustainability in Iraq. Lastly, most Iraqis, especially those who are poor and dependent on aid ra- tions, constantly emphasized to me the need for economic security. A man who lives in a poor and old neighborhood of the Al Najef province, reflected to me on the cur- rent situation by saying: ‘‘We need food and security before democracy. When you VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 36 save someone from death, his first wish is not a car but basic needs to regain his energy. The Americans, God bless them, are more concerned with democracy then they are addressing our basic needs.’’ He continued, ‘‘We are a hungry population. Our need for food is more important than democracy at this point in our lives. That does not mean we don’t want democracy. Rather, we need economic liberty as a pre- requisite for democracy.’’ Impact on Women Iraqi women are falling prey to the chaos and anarchy in Iraq. Women and girls are now targeted for kidnapping, with some women kidnapped from their own homes. Rumor, confirmed by coverage in The Economist, has it that there is now a market to sell women and girls in Baghdad. Women single heads of households are particularly vulnerable as movement outside of the home is becoming a risk for women because of the lack of security in the streets. Politically, women’s participation in discussions related to the national political agenda has been limited at best. Most local political parties do not actively encour- age womens’ participation. When this issue is addressed to local politicians, there seems to be no clear political agenda to exclude women as much as a lack of atten- tion for the importance of women’s participation in the political process. Iraqi women, on the other hand, have been adamant about the importance of their political participation in the reconstruction of Iraq. Regardless of their socio- economic class, ethnic background, or religious or secular tendencies, all Iraqi women I met exhibited strong opinions on what is going on in today’s Iraq and the need to incorporate them in the political process. Isma, a 40-year-old, woman who wears the traditional headscarf expressed her views on women to me by insisting that ‘‘I want Iraqi women to be part of every process of rebuilding the country . . . in the army, in sport, in every single sector. Women need to have 50% representa- tion in the country. I wish this could happen. We deserve that and we have the credibility to do that as well.’’ Addressing gender issues in the process of policy making, from the delivery of services to the establishment of a transitional governing body, is critical at this stage. Discussions related to promoting women’s participation should not, however, be limited to one sector or channeled through one ministry. Rather, gender issues must be at the core of all reconstruction plans in Iraq. That includes but is not lim- ited to strategies related to food distribution, police retraining, women’s membership in political parties, and women’s security in the public sphere. Otherwise, women will once again be marginalized in both the short and long term in Iraqi society. Women are also at risk from religious extremists. Some women who work with the UN have been threatened with death if they don’t wear the traditional headscarf or quit working with ‘‘foreigners.’’ Political Parties Local political parties, especially those who were based in exile, are showing no concrete efforts to address the concerns of the average citizen. ‘‘We have plenty of political parties but we don’t have rule of law and we don’t have work. So what is the use?’’ commented Ahmed who lives in Sadr City, a poor neighborhood in Bagh- dad. There is a growing sense of a new political monopoly with economic overtones that is controlled by some of the parties that were based in exile and came in with the coalition forces and even those who were based in Iraqi Kurdistan. ‘‘Before we had one Saddam but now we have many mini Saddams who use power in similar ways as Saddam Hussein did,’’ commented Ali, a businessman who describes himself as peace loving and a frustrated Iraqi. Now Iraqis feel that they must have an inside connection to those parties in order to gain access to information or services. Most of these political parties, as well as the Coalition Provisional Authority, risk losing and alienating the average citizen by their lack of communication, trans- parency and clear political strategy. In commenting on this issue, Nashwan, a phar- macist who works in a public clinic in a poor neighborhood of Baghdad, said, ‘‘We want a leader with ethics, not a Ph.D.’’ The Ph.D. is not the question here as much as a perceived lack of ethical and viable leadership from many of the political par- ties. Lack of Information Despite serious progress in addressing particular frustrations among Iraqis, in- cluding reinstating the distribution of salaries and food deliveries among others, there is a growing sense of anxiety regarding the future of Iraq. ‘‘We need to know what is going on. We need a public relations campaign that can speak to the con- cerns of the average Iraqi,’’ comments Ahmed, a local Iraqi businessman who has not been able to run his business for four months now due to the lack of electricity. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 37 The lack of information regarding not only the reinstallation of basic services but also the future of Iraq is creating a gap that is being filled by former Ba’athist offi- cials on the one hand and religious extremists on the other. Former Ba’athist offi- cials are taking advantage of the lack of information and services by spreading ru- mors that America doesn’t care about Iraqis and the lack of services are intentional to keep Iraqis from contributing to the reformation process. There is a sense that former Ba’athist officials are regaining their ability to mobilize the public and spread anti-American sentiments. This can be seen in many ways including com- ments made by at least some in the police force about the greatness of the former regime in their daily communications with the public. Religious extremists, on the other hand, are claiming that the lack of services is due to an imperial/Zionist conspiracy designed to destroy Iraq. The danger of these rumors is that they are speaking to the average Iraqi, especially male youth who have military training, are now unemployed, and are feeling a great level of frustra- tion at the lack of stability in the country. There are many ways to combat these rumors that are impacting the peace proc- ess in Iraq. Iraqis want to know what is happening in their country. A strong and consistent public relations campaign can keep Iraqis informed of future plans and engage them in the rebuilding process. ‘‘Iraqi public opinion is very very important. . . . Give us timelines so we know what is happening. Tell us what is the expected date for the complete reinstallation of the electricity and phone systems, when will there be a transitional Iraqi government, and how long the troops will stay here. We need information so at least we are not manipulated and frustrated by rumors,’’ comments Dafir, a former government employee. Ahmed, a businessman, reiterates the hunger for information by saying, ‘‘We need to know what is going on. We don’t want to see soldiers killing two people every day or American soldiers being killed either. America needs to focus its communica- tion to the average Iraqi . . . the real Iraqi . . . by helping them resume their daily work and daily life to a normal stage. Real people need to get a sense that America is communicating with them and addressing their concerns. If you lose the average person, you will lose the peace.’’ Conclusion Iraqis are not only dealing with today’s frustration, but also with the trauma caused by the oppression they have faced for 35 years during Ba’athist rule and par- ticularly Saddam Hussein’s regime. There is an outpouring of emotions in Iraq now which veer between frustration at the current chaos on the one hand and con- fronting the trauma and misery of the past for the first time in a public way—even within families—on the other. These emotions can be summarized by what one woman told me, as she described her life, ‘‘Every minute that passes, I die over and over again. I have already suffered a lot. I can’t endure more suffering again.’’ Iraqis are grateful to America for liberating them from Saddam Hussein, frustrated at America for not dealing with running the country the day after Saddam Hussein’s collapse, and are now angry, tired, grateful, happy, and sad all at the same time. In other countries transitioning from a brutal period of civil strife, totalitarianism, or apartheid, truth and reconciliation commissions have gone a long way in ac- knowledging the pain and suffering caused to so many and allowed blame for crimes to be placed squarely on individuals and not ethnic groups, classes, or sects. There may be an opportunity here to not only allow Iraqis to heal many wounds but un- derstand recent history, including the role played by organized violence against women. One can also say that Iraqis have tremendous expectations from America, some that may be unrealistic in the time frame Iraqis are expecting. Many expect a Mar- shall Plan which will have an immediate impact within a few short months. Many are shocked at what is perceived to be limited preparation on how to manage a free Iraq. One Iraqi complained to me, questioning ‘‘How could the two most powerful countries in the world (the United States and the United Kingdom—who were able to win the war in one month) not have been prepared to deal with the day after the fall of Saddam Hussein’s regime?’’. Others are now talking about starting think tanks to give advice to the Coalition Provisional Authority on how to run the coun- try. The frustrations that Iraqis are feeling today have many roots. Some stem from the perception that Iraqis are not being consulted in the process of policy formation on how to govern a free Iraq. Others feel that the lack of communication by coalition forces has left them vulnerable to rumors that only serve to increase their sense of anxiety about the future. And others feel that formerly exiled political parties are monopolizing all communication with the Coalition forces, reminding Iraqis of the former political structure known for its lack of transparency and corruption. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 38 There are many ways in which Coalition forces under America’s leadership can address frustrations at a grassroots level, building upon Amb. Bremer’s accomplish- ments since his arrival in Iraq. First, and most important, there is a need for a mas- sive public relations and communication campaign that goes beyond the two hours of Iraqi public TV that is running at the moment. Average Iraqis need to have their current challenges acknowledged, not whitewashed, and know that there is a public plan for dealing with these challenges. This will be the best way to directly combat the rumors being spread by forces opposed to the Coalition’s role. There is also a need to address the issue of expectations. Providing a timeline re- garding the reinstallation of basic services, transitional government, and even eco- nomic plans can help in calming the situation down. There is a strong need to reach out to the hearts and minds of the average Iraqi by addressing real and immediate concerns he/she are facing and their anxiety about the future. Last but not least, we can win the peace in the Middle East in general, by adopting a policy of ‘‘Shock and Awe’’ for economic development in Iraq to match the overwhelming military su- periority we brought to bear on the former regime. Such a policy will not only win the hearts and minds of the average Iraqi, it can also build credibility and support in neighboring countries and in the Middle East at large. I cannot conclude this tes- timony without emphasizing the importance of incorporating women throughout all governmental and non-governmental sectors and not limiting their participation to a single ministry or a single sector. Women are core participants in not only making peace but also in sustaining it. Senator CORNYN. Thank you very much. Senator FEINGOLD. Mr. Chairman, I just have a couple of unani- mous consent—— Senator CORNYN. Sure. Senator Feingold. Senator FEINGOLD. Mr. Chairman, Senator Kennedy asked that his statement be included in the record. Senator CORNYN. Without objection. STATEMENT SUBMITTED BY SENATOR EDWARD KENNEDY Mr. Chairman, I commend you for arranging this joint hearing to consider the challenges we face in Iraq. The major problem is that the war is supposed to be over, but it obviously isn’t completely over. The daily attacks on our troops are very disturbing. Since President Bush landed on the aircraft carrier on May 1 and said ‘‘the war is over,’’ our troops have continued to be killed at approximately half the rate as before. The doubts that so many of us had about taking this road to war has only been strengthened by the failure so far to find the weapons of mass destruction that were the administration’s principal justification for the war. And we are especially con- cerned by the suggestions that CIA intelligence reports were intentionally distorted by the White House or the Pentagon and turned into weapons of mass deceit. Throughout this difficult period, all of us in Congress are united in support of the men and women of our Armed Forces, and we are committed to doing all we can to support them. As the soldiers themselves have said, however, they aren’t trained as police offi- cers. We need to solve that problem as soon as possible. From past experience in Kosovo, Bosnia, and Afghanistan, we knew going into Iraq that we had to be pre- pared for the shift from war-fighting to peace-keeping to reconstruction and nation- building. We rushed into this war, but it’s obvious that winning the peace is much more challenging than the administration was prepared for. The ‘‘liberator’’ label has faded, and the ‘‘occupier’’ label is beginning to stick. The last thing we need is to alienate the Iraqi people after all we did to free them. The consequences would be ominous for the ongoing war against terrorism. It’s clear that we should do more to involve the United Nations and our allies in the reconstruction effort and in working with the Iraqi people to develop a new gov- ernment. If we go it alone in creating a new government, the Iraqi people and na- tions around the world will see it as an American puppet government instead of a legitimate Iraqi government. The bright spot is that the United Nations is carrying out its vital and historic role in meeting the humanitarian needs of the Iraqi people. The UN should be in- volved as well in the establishment of government institutions and civilian adminis- tration functions. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 39 Above all, many of us are concerned about the ominous decline in respect for the United States in the eyes of so many other peoples and so many other nations caused, in large part, by our ‘‘shoot first and ask questions later’’ foreign policy. The breeding grounds of terrorism around the world are the only beneficiary of that de- cline. Unless we start getting it right in Iraq, we may well pay a very heavy cost for our failures. So I look forward to this hearing and to working with our colleagues to do all we can to set a wiser course. Senator FEINGOLD. And I ask unanimous consent that two docu- ments be entered into the record as well: a report entitled, ‘‘Transi- tional Justice in Post-Saddam Iraq: The Road to Reestablishing Rule of Law and Restoring Civil Society,’’ by the State Department Working Group on Transitional Justice and the Iraqi Jurists’ Asso- ciation; and a second document, ‘‘Iraq: Post-Conflict Justice, a Pro- posed Plan,’’ by Professor M. Cherif Bassiouni, professor of law at the DePaul University College of Law. Senator CORNYN. Without objection, those will be included.1 On May 22, the United Nations Security Council unanimously adopted a resolution, Number 1483, calling for the establishment of, ‘‘a representative government based on the rule of law that af- fords equal rights and justice to all Iraqi citizens without regard to ethnicity, religion, or gender.’’ It’s been amazing to me really to see the number of people who have written and spoken expressing the view that there is some- how something inconsistent or incompatible about a nation where 95 percent of the people are Islamic, and democracy. I wonder if, Dr. Pollack, you could please start and just explain your view on that subject, whether you agree with that, or, as I suspect, you may disagree with that. Then what? Dr. POLLACK. Thank you, Mr. Chairman. I will start. I think oth- ers on the panel would be equally if not more competent to deal with that question. Let me start by saying first that there is nothing about any reli- gion, as far as I am concerned, that has prohibition or injunction that would make it impossible to have a democratic form of govern- ment. Too often when we start talking about democracy we allow our own individual associations, our own cultural associations with de- mocracy to creep into that thought. I think when many Americans think about democracy, we have in mind American democracy. As someone who as traveled to many democratic countries over the course of my career, I’m always struck by how democracy looks very different in very different parts of the world. As I mentioned in my opening remarks, Japan and Italy, to take only two examples, are also democracies, but Italian democracy and Japanese democracy are very different from our own. In fact, deal- ing with both of those systems, I sometimes wonder which is actu- ally the democratic system. The fact of the matter is that democ- racy is rule by the people. That is its essence. If you go back to the Greek philosophers, if you go back to ancient Athens, that is the principle ingredient. 1 The report ‘‘Transitional Justice in Post-Saddam Iraq: The Road to Reestablishing Rule of Law and Restoring Civil Society’’ appears in the appendix to this hearing; ‘‘Iraq: Post-Conflict Justice, a Proposed Plan,’’ by Professor M. Cherif Bassiouni, can be found on the internet at http://www.law.depaul.edu/institutes_centers/ihrli/pdf/iraq.pdf VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 40 When we talk about democracy in the modern sense, and when we talk about constitutions that are based on democracy, we’re talking about some very basic principles. We’re talking about a gov- ernment that is reflective of the will of its people. We’re talking about a government that is transparent, so that the people can monitor the actions of government officials to ensure that their ac- tions are consistent with the will of the people, and we’re talking about a system that is accountable in the sense that the officials themselves are ultimately accountable to the people for the actions that they take. Those are really the heart of the democratic system and, in fact, the idea of the rule of law is embedded within that larger concept, because the idea of the rule of law is that the government should be of the people, it should not be oppressing any of the people, op- pressing that which is ultimately the source of its legitimacy and its authority and power. There is nothing in Islam, as I read it and as I’ve read the work of my colleagues and of other colleagues, to indicate that there is anything in Islam that is incompatible with any of these basic precepts. An Islamic democracy, an Arab democracy may look very dif- ferent from ours, it may look very different from Japan’s. It may look very different from Italy’s, but there is nothing about the Koran, there is nothing about the Hadiths, there is nothing about Islam as it is practiced anywhere in the world that should make it incompatible with those basic fundamental premises. Senator CORNYN. Thank you very much. Professor Haykel and Dr. El Fadl, you both alluded to your belief that there should be an acknowledgement of Islam in the founding documents, the constitution of Iraq. I found that to be interesting, in light of the fact that, as we may all recall, even in our Declaration of Independence there is an allu- sion to the Creator, and as my crack staff reminds me, even in the U.S. Constitution there is a reference to Our Lord, yet we do not seem to have too tough a problem separating our religious beliefs and practices from the secular work of government, but can you ex- pand a little bit more on your belief of how the Iraqi people can address this notion of self-government and democracy and at the same time identify themselves as an Islamic nation, but not risk theocracy? Professor Haykel, perhaps you’d like to start? Dr. HAYKEL. You know, the question that you asked just earlier, Mr. Chairman, about the compatibility of Islamic democracy was asked at an earlier period in our own Nation’s history about Catho- lics, with their allegiance to the Pope, and yet being Americans. The thing to bear in mind about Islam, as in all religions, is that it’s not a monolith. There are many different interpretations. There are many different ways of living and practicing Islam, and cer- tainly there are strains within Islam that are theocratic and that would be anti-democratic, and we see them in bin Laden, we see them in certain strains of the Iranian clergy, but that’s not to say that Islam cannot be lived in a democratic fashion, and we have good examples of that. Turkey is a perfect example of just that. Even if we have allusion to religion and to Islam, Iraq is particu- larly a good example, I think, of a place where democracy can take VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 41 root in a very strong way, because you have different types of Mus- lims in the country, as a result of which they would have to make accommodations to each other’s differences and be cognizant of the fact that Islam is not a monolith and cannot impose their version on the others. Senator CORNYN. Dr. El Fadl, do you agree or disagree? Dr. EL FADL. No, I largely agree. I think the important distinc- tion here is that I am not in a position to call upon the Iraqi people to mention Islam in the constitution. Rather, the distinction I make is that if the Iraqi people want to self-identify as Muslims, or make some mention of Islam in their foundational document, the U.S. Government should not oppose that and, more importantly, should not be threatened by that. There are two things to keep in mind. One is that it is absolutely true that people, for all types of mischievous purposes and objec- tives, are trying to make it look as if what is going on now is a return of the colonial era, the era of imperialism, and that this is some type of war against Islam. I think it is essential that we do not make it easy for those people to win their dogmatic and propa- gandist war, and opposing all form of religious mention, or any form of Islamic self-identification would serve them well. Second is that Bernard Haykel is absolutely right, there are many forms of Islam, some forms that are fundamentally incon- sistent with democracy, but the core is as long as there is a com- mitment to individual rights, to the rights of an individual as an individual, and as long as the affirmation of an Islamic identity and the affirmation of Islamic preferences—we’d rather do X rather than Y because we believe one is closer to the Koran—as long as it’s done in the context of honoring the basic truth of individual rights, it is reconcilable with democracy. Senator CORNYN. Let me ask, Professor Haykel, I believe it was you that mentioned the concern about, during the de- Ba’athification process that there may be something in excess of 200,000 people in Iraq who, if forbidden to hold public jobs, would basically have very little option other than to create mischief for any nascent democracy. What do you propose, or what do you think should be our approach? Dr. HAYKEL. Mr. Chairman, you know, government employment in the Middle East, whether it’s in Iraq or elsewhere, is really— the governments are the main employers in the Middle East. People look to government not in the way we do here, nec- essarily, because it is a major source of jobs, and in the Ba’ath pe- riod you have people who are committed Ba’athists who joined the party out of commitment, but most, or many did not. They joined it because that was how you got a job, and to penalize these people in some categorical fashion would mean penalizing not just them, but penalizing many, many members of their families who are de- pendent on them and on their connections with the government for jobs. My fear really is that we would exclude 20 percent of the popu- lation from its source of revenue and livelihood, and that would cause tremendous social dislocation and political problems for us in the country. Senator CORNYN. My time has expired. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 42 Senator Chafee. Senator CHAFEE. Thank you, Senator Cornyn. I’ll follow-up on your questions about the possibility of a theocracy, and Professor Haykel, you doubted that that could happen. How do you base your confidence that a theocracy could not rise even if we allowed Islam into the constitution? Maybe just expand on that premise that you stated in your opening statement. Dr. HAYKEL. It is alleged that 60 percent of the Iraqi population are Shiites. Now, the dominant theocratic model in Iran for the Shiites is that advocated by the late Imam Khomeini. Now, most Shiites, certainly in Iraq but also, it seems, in Iran don’t support that constitutional model, the constitutional model he advocated. My assertion is based on knowledge that the Shiites of Iraq are very different from those in Iran, that the Iranian model is not nec- essarily applicable and is not accepted by a great number of the clerics in Iraq, who tend to be more quietist in their political posi- tion. Senator CHAFEE. And Ms. Salbi, you’ve just returned from Iraq, and I see you nodding your head. Do you agree with that, that— it was a couple of weeks ago I believe there were some clerics who I believe issued a declaration of Jihad against the occupying forces. Is this taking hold with the population? Ms. SALBI. First, I have to reiterate what Professor Haykel said. The premise of Shiism is the separation of religion from the state. Khomeini was the only person in Shiite history who combined the state with religion. Iraq Shias so very much believe in the separa- tion of the State and religion. The fear is not from the learned unama, because they’re learned—I mean, they descended over 15 to 20 years on religious jurisprudence and all of that. The fear is from the younger ones, young men in their twenties who have religious tendencies, like Moktar el Sadr, who is approaching other men who are released from the army, former Republican Guard, and then mobilizing their anger and frustration at the current economic situation for re- ligious reasons. That’s the fear. That’s still a minority group. They’re still approaching the youth. They’re not approaching the middle-aged people, or the learned people, but that could be a gap that could be widened if we do not address the immediate economic needs right now, so that’s one thing that you can see the beginning of it. In general, when you talk to all the Iraqis, whether in the south or in the center, they do want a secular government. They do not say we want a secular government per se, but they say, we want a civil government that respects Islam as a religion, we want civil law that regulates the country, and that is people from conserv- ative to secular people, and they’re all saying that. It’s a very emo- tional feeling that we need to respect Islam, and a very emotional feeling that we need a civil law to regulate our country. Senator CHAFEE. With this catching on with the younger people, is it directed at Americans, or is it the coalition, British—would it be better if the United Nations were more involved in this process and remove the prospect that it’s an American issue here? Ms. SALBI. I have to say, there is no public sentiment that sym- pathizes with the U.N. in Iraq. The U.N. was accused of being part VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 43 of the previous regime’s corruption scandals and scams, and so the U.N. is not necessarily viewed in the best way. These religious sentiments, having said that, they are directing that anger at the Americans. I wrote in my report, a lot of the reli- gious sentiments is trying to approach, again to deal with that eco- nomic urgent gap by saying, this is an American-Zionist conspiracy aimed at destroying Iraq, while the Ba’athists are also trying to fill that gap by saying America is intending to keep the Iraqis frus- trated, to keep them away from the political process. So we are vulnerable now to these groups, again, taking advan- tage of these gaps and in my opinion, my assessment by talking to people is that we can actually win that easy if we just address the immediate and urgent needs by the Iraqis and stabilize the eco- nomic and security conditions right now. Senator CHAFEE. Thank you. You do have a prescription for suc- cess, and that’s relevant to a Marshall Plan-type of restoration of the country. Thank you, Mr. Chairman. Senator CORNYN. Senator Feingold. Senator FEINGOLD. Thank you, Mr. Chairman. Dr. El Fadl, Professor Haykel, and Mr. Al-Sarraf, we’ve heard testimony today about the strong legacy of legal thought and legal institutions that existed before the Ba’ath Party took power in 1968 and then, of course, the damage done under Saddam’s regime. I’d like each of you to comment on whether that legacy survived in any form, to what extent will the Iraqi people be able to look back on their own legal traditions and effectively draw upon that experience as they reconstruct their nation and its institutions. Let’s start with Dr. El Fadl again. Dr. EL FADL. Well, I think it’s important here to keep in mind the complexity and nuance of law, because if you take, for instance, the civil law code, which was derived from the French civil code, and in fact borrowed extensively from the Egyptian work on the French civil code and, in the view of some, even improved upon from the Egyptian version, you take the Iraqi civil code and the ju- risprudence that formed around the civil code in Iraq, similarly if you exclude the literal, the shameful displays committed by Sad- dam in order to get attention and so on, if you take the criminal law code, exclude all the Saddam exceptional laws and emergency laws and special laws and just take the criminal code and the juris- prudence formed around the criminal code, what you find is actu- ally something that from a legal perspective is quite sophisticated, belongs in the best of the tradition of the civil law system based on the French legal system, something in which, for instance, in the civil law field and in the criminal law field some of the works of Egyptian jurists like Sanhouri, one of the most prominent jurists who is dead now—he was cited extensively and worked with and developed upon and so on—you actually find, a lot of commonality between the technical jurisprudence of Iraq and the jurisprudence of particularly countries like Egypt, to a lesser extent countries like Kuwait. Second is that you find a large degree of technical sophistication, and in fact, in working with Iraqi lawyers, the complaint was con- sistently that the Saddam regime ruined the practice of law, that VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 44 unlike their Egyptian counterparts, for instance, they could not say that they follow X school of thought as to personal injuries because they were always scared that Saddam was going to come in with some exceptional law, some special regulation and so on. The best way that I think the issue can be approached is to real- ize that we have a substantial amount of very sophisticated juris- prudence, that it is possible, in my opinion, to peel off the Saddam special laws, special regulations, special this and that, and to work from that, rather than reinvent the wheel, and try to create some type of revolutionary law which is fraught with possibilities of fail- ure. Senator FEINGOLD. Thank you very much. Professor Haykel. Dr. HAYKEL. I would like to reiterate and second what Professor Abou El Fadl just said. As someone who actually has followed the production, the legal, intellectual production from Iraqi universities even through the Saddam period, the University in Baghdad, for example, had a couple of legal journals, one from the university, one from the ministry of justice, and they consistently had very high quality legal thought and legal academic production. With respect to the period before Saddam Hussein, I mean, there are documents, legal documents that still exist and that can be drawn upon, and also in the collective memory, I think, of Iraqis, especially the period in the twenties, when there was a very vi- brant Jewish community in Iraq, perhaps the most vibrant Jewish community in the Arab world, that period again is something that Iraqis remember as a time when Iraq really was the center of the Arab world, and where you had pluralism and a great degree of tol- erance. I think that period can be revised very quickly, because you have a very high technical cadre of people in Iraq who are middle class but also very educated, I think for whom this period really is some- thing they hark back to and wish to recreate today. Senator FEINGOLD. Thank you. Mr. Al-Sarraf. Mr. AL-SARRAF. Thank you. It’s important to note how Saddam subordinated the judiciary. The judiciary basically used to report to an independent judicial authority. That judicial authority was then placed under the Ministry of Justice and became part of the execu- tive. Then what Saddam did is, he created special courts in the Min- istry of Information, the Ministry of the Interior under the security forces, the military had their own courts, the police had their own courts, so basically every court system reported to an executive who had the final say. The Ministry of Justice, however, dealt primarily with just civil and criminal affairs and was left largely intact, except for when Ba’ath Party members were involved, so what you have are individ- uals that work in the Ministry of Justice, and I had the oppor- tunity in the last few days to meet with the interim Minister of Justice who arrived in New York a few days ago and is addressing the United Nations, and it’s individuals like him who understand from the inside—he’s been with the judiciary for 43 years, under- stands it inside and out, and has an idea of how to reform, and it requires a vetting process. It’s a long-term process. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 45 There’s also a cadre of forcibly retired jurists, those who would not go along with the Ba’ath Party rule, who also represent a con- stituency or a resource within the country, so the first premise is that it has to be rebuilt from the inside, and the second is that there can be international assistance, but we have to be very care- ful about who those international experts are, because there is sen- sitivity inside the country about who they will work with. Senator FEINGOLD. Thank you. Dr. Pollack, you suggested that international involvement might be helpful in giving legitimacy to the constitutional process. What do you see as the role of the United Nations and the international community in drafting an Iraqi constitution? Would you suggest, for example, that the United States ask the United Nations, or a third country, to take over leadership of the constitutional process? Dr. POLLACK. Thank you, Senator. No, I would not suggest that. I think that the constitutional process must be led by Iraqis. That said, I think that all of these international organizations, and I think that all the members of the coalition, the increasingly ex- panding coalition, have important roles to play within that. First, the transitional authority itself will have a role in literally setting up a constitutional commission of some sort. They will have to take care of the administrative side of things. On that issue, as on all matters, as far as I’m concerned, the more the United States can work in conjunction with the United Nations, now that we have Sergio de Mello as the new Special Representative of the Sec- retary General, someone who’s very skilled in these kind of oper- ations, a good partner for Paul Bremer, I think that it is incumbent upon us to work in conjunction with them to indicate that this is not a U.S.-only operation. Senator FEINGOLD. The thrust of my question was, wouldn’t it better, or arguable that we should turn over this responsibility of helping, the leadership role, to another country, rather than doing it ourselves? Dr. POLLACK. Again, I would not suggest that we necessarily turn it over to another country. I certainly think that we should be involving as many countries as we possibly can. I think that the United States at the end of the day has a responsibility to make sure that Iraq is a stable, functional society when the international occupation has ended. We’re the ones who started this. We’re the ones who have got to make sure that it succeeds. That said, I also don’t think that the United States should nec- essarily be directing the Iraqis to do this, that or the other thing. I just think it ought to be a joint effort, not any one country. Senator FEINGOLD. I’m going to take this to Ms. Salbi now, be- cause I want to know her thoughts on the issue of international in- volvement with regard to my question to Dr. Pollack, but also based on your experience in other post-conflict societies like Af- ghanistan and Kosovo. Ms. SALBI. Two things. One is, we need to acknowledge the high level of frustration that has been built in Iraq for 35 years. What the Iraqis are going through is that for the first time in their his- tory, or in 35 years, they can talk about Saddam’s oppression, so a Truth and Reconciliation Committee would be something that would be very helpful in just at least processing these frustrations VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 46 and the injustices that they have been through, and acknowledging them at a minimum. The second thing, when I talked to local political parties over there, and I was talking to them about different models and dif- ferent experiences, from Afghanistan to South Africa, there was a hunger for information. Remember, Iraqis have been blocked from any information outside of Iraq, and everyone was eager to know, what is the South African constitution, what are the pros and cons of the Afghan reconstruction process, and so I do think that it has to have a local ownership, but that process needs to inform them and to share information from different countries. South Africa is a great model, Afghanistan is a good model to look at, with Iraqi leadership, with our support, making sure that we’re feeding the Iraqis all in the information in the process. Senator FEINGOLD. But is it better for the United States to be perceived as taking the lead outside role, or would it be better if the United Nations—and I know you expressed strong reservations about the United Nations—or a third country were in that role in that context? Ms. SALBI. I personally don’t have reservations about the United States as much as the Iraqis do. I think the Iraqis are looking for America’s leadership, but they are looking also at America’s com- munication, and they want to be incorporated in the process, and there is a sense that they are cutoff from whatever process that is going on in dealing with Iraq. So the majority of the sentiments is still, people are looking for America. It’s just that they are frustrated, that they don’t think America is reaching out to them. Senator FEINGOLD. Thank you very much. Thank you, Mr. Chairman. Senator CORNYN. Thank you, Senator Feingold. I’d like to ex- press my gratitude, and I know I speak for all of us here, at your participation, the members of the first panel. Oh, I beg your pardon. Senator Chafee has another question or two. Senator CHAFEE. Just before we give our thanks to this panel, Ms. Salbi, since you were just in Iraq, do the Iraqi people think that Saddam Hussein is still alive? Do they think that, and is that significant? Ms. SALBI. I am glad you asked this question. Yes, they do think that he is alive. His family members are moving very freely, actu- ally in the streets of Iraq, not only female family members, which we could argue it’s safer for them, but male family members, his cousins, his nephews, who are notorious for their oppression and violence during this regime, so there is not only a sentiment that he is still in Iraq, but the Ba’athists are also being relaxed about the security issue, that they are feeling comfortable to walk the streets of Iraq, especially in the evenings and at nights. Senator CHAFEE. And how big an issue is that as we go forward? Ms. SALBI. Again, we can contain that because what’s happening is that there are gaps of information and the Ba’athists are taking advantage of these gaps, as are the religious extremists, but par- ticularly the Ba’athists by saying, look, Saddam was better for us than the Americans. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 47 When you ask the police force if they are happy now Saddam is out, some say no, they wish Saddam were back. A lot of former em- ployees are returning, and they should return because they need the jobs and we need to stabilize the economy, but we really need to reeducate them and retrain them as to what the former regime has done and what their role should be in the future. Senator CHAFEE. Very good. Thank you. Senator CORNYN. Thank you, Senator Chafee, and thanks to each of you on the first panel. I’ll just remind everybody that we’re going to leave the record open until July 2 in case any other member of the joint subcommittees would like to submit any further ques- tions, or if there any other documents that you’d like to offer in support of your testimony in this record, we would invite you to do so. Thank you very much. Now I’d like to invite the members of the second panel to come forward, a panel of distinguished constitutional legal experts; while they take their seats I will introduce them. First, we’re happy to have Professor John Yoo here. Professor Yoo served as Deputy Attorney General for the Office of Legal Counsel at the U.S. Department of Justice from 2001 until just last month. In that role, he served in the Bush administration as one of its top legal advisors in the war on terrorism and the war on Iraq. He’s a nationally recognized expert in international law, U.S. constitutional law, and national security and foreign relations law. Professor Naoyuki Agawa is a recognized expert on both the Jap- anese and the United States constitutions. He served as a professor at the University of Virginia Law School, Georgetown Law School and Keio University. He holds bar memberships in both the United States and Japan, and has practiced law in both Washington, D.C. and Tokyo. Dr. Donald Kommers is a recognized expert on the German con- stitution. He is both the Joseph and Elizabeth Robbie professor of Political Studies at Notre Dame and a law professor at Notre Dame Law School. He’s authored 10 books and 67 articles primarily in the area of American, German and comparative law and German politics. Our fifth panel member is Professor Dick Howard, who is the White Burkett Miller Professor of Law and Public Affairs at the University of Virginia Law School, where he and I first had an op- portunity to meet. Professor Howard is an expert in constitutional law and comparative constitutionalism. Numerous countries have sought his counsel in the process of drafting their constitutions, in- cluding Brazil, Hong Kong, the Philippines, Hungary, Czecho- slovakia, Poland, Romania, Russia, Albania, South Africa, and India, quite an impressive list. I know we have Mr. Neil Kritz, who is director of the Rule of Law program at the United States Institute of Peace. That pro- gram focuses on advancing peace through the development of democratic, legal, and governmental systems, precisely the topic we have before us here today. He is the editor of a three-volume work called ‘‘Transitional Justice: How Emerging Democracies Reckon with Former Regimes,’’ and I imagine has quite a bit to offer on the subject before us today. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 48 I want to thank each one of you for being here, and your pa- tience. Now we’d like to hear from each of you, if we might, and if you would please keep your opening statement to 5 minutes, then we’ll proceed to questions. Professor Yoo. STATEMENT OF JOHN YOO, VISITING FELLOW, AMERICAN ENTERPRISE INSTITUTE Mr. YOO. Thank you, Mr. Chairman, Chairman Chafee, thank you for inviting me to appear, and I’d like to compliment you and your committee on your leadership in holding hearings on this im- portant topic, which I think will be central to guaranteeing the fu- ture and long-term stability of Iraq. I would also just like to make clear that the views expressed here are my own, and not those of the American Enterprise Institute or the University of California, Berkeley. I think my point of view here is that of a lawyer, in that I can tell you what you can do, but I can’t tell you what you should do, and in that capacity I’d like to point to three sources of law that give the United States the authority, as the occupying power in Iraq, to establish a constitution that guarantees basic, individual human rights and that operates within a rule of law with demo- cratic representative institutions. The first is our own domestic constitution. Iraq is not the first country that the United States has occupied, and the Supreme Court in several cases has examined the question of occupation and has stated quite clearly that occupation includes the power to change laws and constitutions of the territory that is occupied be- cause it is part of the war power. We’re still in a state where legally the state of armed conflict continues to exist in Iraq and does not terminate until a peace treaty has been signed, and as part of the effort to wage a success- ful campaign that may include eliminating aspects of the local gov- ernmental system that pose a threat, continue to pose a threat to peace and stability and to the United States and the region. Here in Iraq, the second major source of authority comes from the United Nations. There are two separate resolutions that bear on the question of occupation. First is the resolution passed in 1991, Resolution 678, which originally authorized all member na- tions to use all necessary means, quote-unquote, to remove Iraq from Kuwait, to enforce other relevant resolutions, and to restore international peace and security to the region. One of those significant resolutions was to eliminate WMD in Iraq. Another resolution is to prevent Iraq’s regime from terror- izing its own civilian population. That resolution, number 678, ulti- mately was one of the sources of authority for the war in Iraq. Also, by requiring that member nations restore international peace and security, to the extent that the Iraqi constitution as it was, and the Saddam Hussein regime encouraged or enabled a specific re- gime to continue to pose a threat to that region, then obviously Resolution 678 could be used also to eliminate the legal aspects of that threat. The second and more recent actions of the Security Council came, as you mentioned in your opening statement, in Resolution 1483, VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 49 which was passed just a few weeks ago. In that resolution, the United Nations Security Council recognized the United States and Great Britain as occupying powers in Iraq. It expressed its hope that the Iraqis would be encouraged to establish a representative government with protection for human rights and the rule of law, and also stated that the United States and Great Britain would be subject to their obligations under what’s known as the Hague Reg- ulations and the Geneva Conventions, which are primary treaties in the area of occupation. Just to turn to that last point, then, the third source of authority for America’s ability to establish a constitution for Iraq that is based on the rule of law and democratic institutions comes from those two basic treaties, the Hague Regulations of 1907, and the Fourth Geneva Convention of 1949. The Hague Regulation of 1907, Article 43, allows an occupying power to change the domestic laws of the country that is occupied if it is necessary to restore public order and safety, so again in this case, as I think the first panel discussed, a lot of the negative as- pects of Saddam Hussein’s regime were actually incorporated and codified into the legal system and into the constitution, so to the extent that the Hussein regime and its instruments were the basic threat to order and security in its own country, removal of those constitutional provisions and those statutes would be justified under the Hague Regulations. The second point is, Iraq isn’t even a signatory to the Hague Reg- ulations, so to the extent the Hague Regulations are more of a cus- tomary international law, then the interpretations that countries have put up on it in their State practice would be more important, and here I defer to my other panel members, but the experiences in Germany and Japan in particular show how States have inter- preted Article 43 of the Hague Regulation. In both of those exam- ples, obviously, the United States exercised a great deal of discre- tion and authority in encouraging a certain kind of constitution for Germany and Japan. And just a last point, the last source of authority is the Fourth Geneva Convention, which is much more liberal, I suppose you could say, in its grant of authority to an occupying power. Article 64 of the Fourth Geneva Convention says that the occupying power may subject the population of the occupied territory to provisions which are essential to enable the occupying power to fulfill its obli- gations under the present convention, by which it means basic human rights, to maintain the orderly government of the territory, and to assure the security of the occupying power. Article 64 of the Geneva Convention, therefore, would provide a legal basis for the United States in Iraq to institute and establish changes to the Iraqi constitution and its legal system consistent with achieving basic human rights, protecting safety and security, and protecting the United States’ own security interests. Thank you, Mr. Chairman. [The prepared statement of Mr. Yoo follows:] PREPARED STATEMENT OF JOHN YOO Mr. Chairman, thank you for the opportunity to appear before your committee today to discuss the reconstruction of Iraq and its constitution. I wish to com- VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 50 plement you and the committee for convening today’s hearings on this important subject, which will be critical to providing for Iraq’s long-term stability and ensuring that Iraq will become a law-abiding member of the international community. Rather than discuss any specific element of a proposed Iraqi constitution, I appear before you today to discuss the authority of the United States, under domestic and inter- national law, to make fundamental changes to the constitutional law and govern- ment institutions of Iraq. I conclude that United Nations Security Council resolu- tions and the international law of occupation provide the United States with broad discretion to establish a new Iraq constitution, one that guarantees fundamental human rights protected by democratic institutions that limit government power. I have studied these issues for much of my career. I recently left the Department of Justice, where I served as Deputy Assistant Attorney General in the Office of Legal Counsel (OLC). OLC advises the executive branch on all legal questions, in- cluding those involving treaties and international law. I am currently a visiting fel- low at the American Enterprise Institute, and a professor of law at the University of California at Berkeley School of Law (Boalt Hall), where I have taught foreign affairs law, international law, and constitutional law, since 1993. It was also my great honor to have served as General Counsel of the Senate Judiciary Committee under Chairman Hatch from 1995–96. I wish to make clear that the views expressed here are my own, and do not represent those of the American Enterprise Institute or the University of California. I. DOMESTIC LAW AND OCCUPATION Under our domestic law, occupation of a nation is merely the continuation of hos- tilities, and thus the reconstruction of Iraq falls within the war powers of the fed- eral government. Occupying foreign territory during the transition period between an armed conflict and a declaration of peace, and establishing fundamental institu- tional changes to the government of an enemy nation, may be essential to reaching a successful conclusion to war. If allowed to remain in existence, the institutions of an occupied nation may continue to pose a threat to the safety of U.S. troops or the national security. Or the government institutions of the defeated enemy have been so degraded or destroyed that they cannot provide security and basic services to the local population. If left to suffer, a local population may become hostile to the United States. To be fully successful, military operations in an occupied territory may have to continue even as the immediate need for force has subsided. In several previous armed conflicts, the United States has exercised its authority to occupy and govern a foreign nation after a successful military campaign. The Su- preme Court has clearly upheld this authority. In MacLeod v. United States, for ex- ample, which arose during the U.S. military occupation of the Philippines during the Spanish-American War, a unanimous Supreme Court explained that [t]he right to . . . occupy an enemy’s country and temporarily provide for its government has been recognized by previous action of the executive author- ity, and sanctioned by frequent decisions of this court. The local govern- ment being destroyed, the conqueror may set up its own authority, and make rules and regulations for the conduct of temporary government, and to that end may collect taxes and duties to support the military authority and carry on operations incident to the occupation.1 The Court similarly stated with respect to the U.S. occupation of Puerto Rico that [u]pon the occupation of the country by the military forces of the United States, the authority of the Spanish Government was superseded . . . The government must be carried on, and there was no one left to administer its functions but the military forces of the United States. . . . The right of one belligerent to occupy and govern the territory of the enemy while in its mili- tary possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do not look to the Constitution or political institutions of the conqueror, for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws of war, as established by the usage of the world, and confirmed by the writings of publicists and decisions of courts—in fine, from the law of the nations.2 1 229 U.S. 416, 425 (1913). 2 Dooley, 182 U.S. at 230–31 (quoting 2 Halleck, International Law, 444). VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 51 As the Supreme Court has further made clear, the power to establish an occupation government and to make decisions concerning reconstruction flow directly from the President’s Commander-in-Chief power.3 It is not difficult to see why occupation and reconstruction of a defeated enemy may be an important aspect of the war power. Eliminating a threat to the national security or achieving U.S. foreign policy goals may not only require the occupation of an enemy nation until its capacity to attack the United States has ended, but also the extensive reordering of an occupied nation’s domestic institutions. Replacing a hostile government with new institutions may make the defeated nation less of a threat to the United States, both now and in the future, and may end human rights abuses. At the end of World War H, the United States not only occupied part of Germany, it completely refashioned, along with the other Allied powers, German government institutions. The United States believed that preventing Germany from ‘‘ever again becoming a threat to the peace of the world’’ would require ‘‘the elimi- nation of Nazism and militarism in all their forms, the immediate apprehension of war criminals for punishment, the industrial disarmament and demilitarization of Germany, with continuing control over Germany’s capacity to make war, and the preparation for an eventual reconstruction of German political life on a democratic basis.’’ 4 Similarly, the United States also reordered the Government of Japan fol- lowing the conclusion of World War II, although these changes, unlike those in Ger- many, were carried out with the consent of the Japanese Government. Again, the rationale underlying this fundamental government reform was to guarantee that Japan would not again become a military threat to the United States or the world.5 II. INTERNATIONAL LAW AND OCCUPATION International law authorizes a victorious nation both to establish its own tem- porary occupation government and to make changes in the laws of the defeated na- tion prior to the conclusion of a treaty of peace. This authority includes the power to make fundamental institutional changes to the government of an occupied nation. Here, I will address the sources of law that establish the authority of the United States, as an occupying power, to replace the forms of the previous Hussein regime with new governmental institutions and a new constitution. These sources include Security Council Resolutions under Chapter VII of the United Nations Charter, which gives the Council the authority to bind member nations, and the international law of occupation as expressed in treaties and state practice. United Nations Authorization The United States has been authorized by the Security Council to occupy Iraq and, as a consequence, to establish a constitution and form of government that will end the threat posed by the Hussein regime to international peace and security. This authority comes from two sources, the original 1991 authorization to use force against Iraq (S.C. Res 678), and the recent May, 2003 Security Council resolution approving the occupation of Iraq at the end of major combat operations in Iraq (S.C. Res. 1483). In 1991, the Security Council enacted a resolution that recognized the legitimacy of the U.S.-led international coalition’s use of military force against Iraq. Security Council resolution 678 explicitly recognized that member states could ‘‘use all nec- essary means’’ (1) to respond to the Iraqi regime’s substantial violations of the terms of the cease-fire set forth in UNSCR 687 that suspended hostilities between Iraq and a U.S.-led international coalition in 1991; and (2) to restore international peace and security in the area. In particular, Iraq had flagrantly breached its various obli- gations under UNSCR 687 regarding the destruction and dismantling, under inter- national supervision, of its weapons of mass destruction (‘‘WMD’’) programs. The Se- curity Council itself decided last year that Iraq ‘‘has been and remains in material 3 See, e.g., Madsen v. Kinsella, 343 U.S. 341, 348 (1952) (‘‘[t]he President has the urgent and infinite responsibility not only of combating the enemy but of governing any territory occupied by the United States by force of arms.’’); Fleming v. Page, 50 U.S. (9 How.) 603 (1850) (power to occupy captured territory is ‘‘simply that of a military commander prosecuting a war waged against a public enemy by the authority of his government.’’); Hirota v. MacArthur, 338 U.S. 197, 208 (1948) (Douglas, J., concurring) (‘‘[The President’s] power as Commander in Chief is vastly greater than that of troop commander. He not only has full power to repel and defeat the enemy; he has the power to occupy the conquered country . . . ’’). 4 Directive to Commander in Chief of United States Forces of Occupation Regarding the Mili- tary Government of Germany, (Apr. 1945), reprinted in ‘‘The Axis in Defeat: A Collection of Doc- uments on American Policy Toward Germany and Japan,’’ 43–44, (1945). 5 See U.S. Initial Post-Surrender Policy for Japan, (Aug. 29, 1945), reprinted in ‘‘The Axis in Defeat: A Collection of Documents on American Policy Toward Germany and Japan,’’ (setting forth objectives for post-World War II occupation of Japan), 107, (1945). VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 52 breach of its obligations under relevant resolutions, including resolution 687’’ as a result of its failure to comply with its disarmament obligations.6 in the same resolu- tion, the Security Council also recalled that those obligations imposed upon Iraq under UNSCR 687 constituted ‘‘a necessary step for achievement of UNSCR 687’s stated objective of restoring international peace and security in the area.’’ The Security Council’s authorization to ‘‘use all necessary means’’ to disarm Iraq and to restore international peace and security in the area includes not only the use of force but also the subsequent occupation. An occupation of Iraq is necessary to locate, catalog, dismantle, and destroy all Iraqi WMD programs and thus ensure that Iraq is in compliance with UNSCR 687. Given the lengths to which the Hussein regime has gone to conceal its WMD programs and the years it has had to hide its arms, the United States cannot rid Iraq of its WMD programs during the course of major combat operations. In addition, were the United States and its coalition partners to depart from Iraq immediately following the end of combat, the peace and security of the region might be threatened. Violence could erupt among Iraq’s var- ious ethnic and religious groups that could spill beyond Iraq’s borders. Iraq could descend into a state of anarchy. Such a development would not only threaten Iraq’s neighbors but also could turn Iraq into a haven for terrorist organizations. A hu- manitarian crisis could also result from political turmoil, leading to a flood of refu- gees entering and destabilizing Iraq’s neighbors. Remnants of the current Iraq re- gime could seek to reconstitute themselves, which would pose a threat to Iraq’s neighbors. To fulfill the goals of U.N. Security Council Resolution 678, the United States must occupy Iraq, establish an interim administration, and construct stable Iraqi government institutions that will help to restore peace and security to the re- gion. The U.S.’s authority to occupy Iraq is confirmed by Resolution 1483, which was adopted by the Security Council on May 22, 2003 by a unanimous vote (with Syria not voting). in that resolution, the Security Council recognized the United States and Great Britain as the ‘‘occupying powers’’ in Iraq, and it encouraged ‘‘efforts by the people of Iraq to form a representative government based on the rule of law that affords equal rights and justice to all Iraqi citizens without regard to ethnicity, reli- gion, or gender.’’ The Security Council resolved ‘‘that the United Nations should play a vital role in humanitarian relief, the reconstruction of Iraq, and the restoration and establishment of national and local institutions for representative governance.’’ It also called upon the United States and Great Britain ‘‘consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working toward the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future.’’ In addition to approving the financial arrangements for the sale of Iraqi oil and the use of the proceeds, Resolution 1483 ‘‘calls upon all con- cerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907.’’ I will review the authority provided by the Geneva Conventions and the Hague Regulations shortly. It is important, however, to understand that by making clear that the two treaties apply to the occupation of Iraq, the Security Council has ex- plicitly recognized that the United States may exercise the broad authorities grant- ed by those conventions. Further, Resolution 1483 expresses the Security Council’s hope that Iraq will reform its government in order to establish representative insti- tutions subject to the rule of law and protection for human rights. The Security Council, however, did not detail the specific authorities that would empower the United States and its allies to move Iraq toward a constitution with democratic in- stitutions. Therefore, the power to achieve these goals must flow from the existing international law of occupation, as expressed in state practice and applicable trea- ties. These sources allow the occupying powers, here the United States and Great Britain, to alter the domestic laws, including the constitution and government insti- tutions, in order to provide for stability and security in Iraq, to protect the basic human rights of Iraqis, and to restore international peace and security in the re- gion. Customary Law and the Hague Regulations The laws of war govern the conduct of warfare by and between states. This body of law is both reflected in the customary practice of nations and codified in various texts, including the Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277 (‘‘Hague Convention’’) and the Geneva 6 S.C. Res. 1441, ¶ 1 (2002). See also S.C. Res. 707, ¶ 1 (1991); S.C. Res. 1137, ¶ 1 (1997); S.C. Res. 1205, ¶ 1 (1998). VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 53 Conventions. The laws of war recognize that, as the result of armed conflict, any surviving elements of the enemy nation may be incapable of providing public serv- ices and maintaining security. Additionally, victorious armies have sought to control enemy territory in order to deprive the enemy of valuable resources and to produce surrender. The laws of war thus include a specific set of rules to govern the conduct of military occupations and the operation of military government. This international law of occupation not only authorizes a victorious nation to occupy enemy territory and establish a military government; it also recognizes the authority of an occupant to change the local laws, including government institutions. Because the international law of occupation is partially formed, by custom and practice, and, as will be explained below, the central treaty on occupation does not apply to Iraq, it is important to review the historical development of the legal rules in this area. Historically, an occupying army enjoyed wide discretion in admin- istering the territory of a defeated enemy.7 An occupant was generally considered the permanent and absolute owner of occupied territory. Since the nineteenth cen- tury, however, the law has understood the occupying authority to exercise only tem- porary control over territory. Permanent control would result only from a treaty of peace concluded at the end of a military conflict or the complete subjugation of an enemy.8 The first efforts to codify the laws of war, and more specifically the law of occupation, began in the United States during the Civil War. In 1862, the War Department commissioned the drafting of a set of basic instructions for Union sol- diers on the law of war. Approximately one-third of the resulting General Order No. 100, also known as the ‘‘Lieber Code,’’ addressed rules relating to occupation. The Lieber Code explained that ‘‘[a] place, district, or country occupied by an enemy stands, in consequence of the occupation, under the martial law of the invading or occupying army, whether any proclamation declaring martial law, or any public warning to the inhabitants has been issued or not.’’ 9 The institution of martial law, in turn, provided an occupant with the authority both to suspend the laws of an occupied nation and to subject the population of an occupied nation to new laws. The Lieber Code provided, ‘‘Martial law in a hostile country consists in the suspension by the occupying military authority of the crimi- nal and civil law, and of the domestic administration and government in the occu- pied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity re- quires this suspension, substitution, or dictation.’’ 10 The scope of the occupant’s au- thority to suspend, substitute, or dictate the law of the occupied territory was quite broad, due to the Lieber Code’s broad definition of the concept of military neces- sity.’’ 11 International efforts to codify the laws of war followed. The 1874 Brussels Dec- laration, although not a legally binding agreement, specifically authorized the con- duct of military occupation, stating that ‘‘[t]he authority of the legitimate power being suspended and having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety.’’ 12 Like the Lieber Code, the Brussels Declaration expressly recognized the authority of occupants to change the laws of the indigenous govern- ment in certain situations: ‘‘With this object he shall maintain the laws which were in force in the country in time of peace and shall not modify, suspend or replace them by others unless necessary.’’ 13 Although the Brussels Declaration established a presumption in favor of ‘‘maintain[ing] the laws which were in force in the country 7 See Doris A. Graber, The Development of the Law of Belligerent Occupation 1863–1914, at 13, (1949). 8 See 3 Emmerich de Vattel, The Law of Nations or The Principles of Natural Law, Applied to the Conduct and to the Affairs of Nations and of Sovereigns, 308, (Charles G. Fenwick, trans., 1916), (1758) (‘‘Real property—lands, towns, provinces—become the property of the enemy who takes possession of them; but it is only by the treaty of peace; or by the entire subjection and extinction of the State to which those towns and provinces belong, that the acquisition is com- pleted and ownership rendered permanent and absolute.’’); American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 542 (1828) (‘‘[T]he usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace.’’). 9 General Order No. 100, section I, ¶ 1. 10 General Order No. 100, section I, ¶ 3. 11 General Order No. 100, section I, ¶ 14 (defining ‘‘[m]ilitary necessity’’ as ‘‘consist[ing] in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war’’). 12 Draft of an International Declaration concerning the Laws and Customs of War adopted by the Conference of Brussels, August, 27, 1874, art. 2. 13 Id. art. 3. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 54 in time of peace,’’ it also allowed the occupant to ‘‘modify, suspend or replace’’ those laws when necessity required. The Brussels Declaration became the basis for the Hague Conventions of 1899 and 1907. The Hague Conventions acknowledged both the legality of military occu- pation and the authority of occupants to change indigenous laws and institutions. Article 42 of the Hague Convention of 1907, known as the ‘‘Hague Regulations,’’ states that ‘‘[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.’’ 14 Article 43 of the Hague Regulations sets forth one of the primary legal duties of an occupying power. Because ‘‘[t]he authority of the legitimate power [has] in fact passed into the hands of the occupant,’’ the occupant ‘‘shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless ab- solutely prevented, the laws in force in the country.’’ 15 The text of article 43 of the Hague Regulations provides ample authority to the United States to change Iraqi law, including the fundamental change of Iraqi gov- ernment institutions. Article 43 empowers an occupant to modify an occupied na- tion’s laws if it is necessary to restore and ensure ‘‘public order and safety.’’ Given the nature of the current Iraqi regime, the United States may need to make exten- sive changes to Iraqi laws, including a substantial overhaul of Iraqi government in- stitutions, in order to ensure public order and safety. Further, it is important to emphasize that even if the Hague Regulations were read to impose a stricter standard upon United States conduct, it would not legally bind our military occupation in Iraq. The Hague Regulations do not govern the U.S. conflict with Iraq because Iraq is not a party to Hague. Article 2 of Hague makes clear that its provisions apply only to armed conflicts between parties. Thus, the international law that applies to the United States is actually that created by cus- tom and state practice, and to the extent that the text of article 43 and state prac- tice deviate, the latter would control rather than the former. In any event, state practice would be relevant even if the Hague Regulations applied of their own force because it would illustrate how nations have interpreted article 43 over time. In the period between the Hague Regulations and the signing of the Geneva Con- ventions of 1949, occupying nations often instituted changes in the laws and govern- mental institutions of the occupied territory. During World War I, for example, when Germany occupied Belgium, it supplanted the Belgian court system and di- vided Belgium into separate administrative regions. Germany also enacted new leg- islation governing trade, commerce, banking, and welfare, and raised taxes.16 When Great Britain occupied French and Italian colonies in North Africa during World War II, it replaced the colonial governments with administrative divisions. 17 It also established new government systems, including a new judicial system, when the local administrative system in Somalia collapsed. 18 During the Allied occupation of Fascist Italy, the United States and Great Britain established an Allied Military Government of Occupied Territories that eliminated all Fascist institutions in Italy, removed Fascists from power, and repealed laws that discriminated on the basis of race, creed, or color. These developments were probably inevitable due to article 43’s ambiguity. Nothing in the text of the phrase ‘‘unless absolutely prevented’’ estab- lishes any substantive standard for what grounds must exist to overcome the pre- sumption in favor of the status quo.19 And in interpreting this vague text, occupying nations generally will have powerful motives for interpreting article 43 as broadly as possible. By the end of World War II, state practice had established the authority of an occupying power to implement fundamental changes in the laws and govern- ment of an occupied country. The Fourth Geneva Convention In response to Axis atrocities during World War II, an attempt was made in the Fourth Geneva Convention (‘‘Geneva IV’’) to clarify the laws of occupation.20 Geneva IV formally recognized the authority of an occupying nation to alter local laws. Un- 14 Hague Convention, Annex, art. 42, 36 Stat. 2306. 15 Hague Convention, Annex, art. 43, 36 Stat. 2306 (emphasis added). 16 Eyal Benvenisti, The International Law of Occupation, 40, (1993). 17 See id. at 73. 18 See id. at 73–74. 19 See id. at 13 (‘‘[T]he meaning of ‘unless absolutely prevented’ remained conveniently vague. . . . The requirement to ‘respect’ the existing laws ‘unless absolutely prevented’ has no meaning of its own, since the occupant is almost never absolutely prevented, in the technical sense, from respecting them.’’). 20 Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 55 like the case with the Hague Regulations, both the United States and Iraq are par- ties to Geneva IV. The terms of the Convention apply to any military conflict be- tween the two countries and to the U.S. occupation of Iraq. Article 64 of Geneva IV gives the United States significant authority to alter the laws of Iraq during the occupation. Article 64 provides that ‘‘ the penal laws of the occupied territory shall remain in force, with the exception that they may be re- pealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention.’’ 21 Article 64 then states: [T]he Occupying Power may . . . subject the population of the occupied terri- tory to provisions which are essential to enable the Occupying Power to ful- fill its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administra- tion, and likewise of the establishments and lines of communication used by them. The Red Cross commentary to Geneva IV states that article 64 of the Convention ‘‘expresses, in a more precise and detailed form, the terms of Article 43 of the Hague Regulations, which lays down that the Occupying Power is to respect the laws in force in the country ‘‘unless absolutely prevented.’’ 22 Article 64, however, contains two important differences from Article 43. First, article 64 establishes a much weak- er presumption in favor of the status quo, and it applies it only to the criminal laws. Second, article 64 does not limit to criminal laws the ‘‘provisions’’ to which the occu- pied territory may be subject. We may infer from this language that an occupying power may take measures under article 64 that include constitutional, civil, or ad- ministrative law as well as criminal. Article 64 and customary international law empower the United States to impose ‘‘provisions’’ for a variety of enumerated purposes, without regard to whether such provisions can or cannot be reconciled with current law, and absent any strong pre- sumption in favor of the status quo ante. For instance, article 64 explicitly empow- ers an occupant to institute those measures essential ‘‘to maintain[ing] the orderly government of the territory, and to ensur[ing] the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.’’ 23 In this respect, Geneva IV memorialized state practice under the Hague Regulations, which recog- nized an occupant’s expansive authority to alter laws, including government institu- tions, in order to maintain the security of its military forces, preserve its military gains, and maintain domestic order. Occupying nations possess the authority to dis- mantle institutions that pose a threat to domestic or international peace and order, such as the Nazi regime in Germany. Commentators have also construed state prac- tice to include all of the legitimate purposes of war, such as the promotion of democ- racy and the protection of fundamental human rights. 24 The United States may reasonably conclude that institutions of the former Hus- sein regime pose a substantial threat to the security of the Armed Forces during the occupation of Iraq. Consequently, in order to protect the safety of the U.S. Armed Forces during an occupation of Iraq, it would almost certainly be necessary for Iraqi law to be changed so that these government institutions are dismantled. The preservation of the forms of the Hussein regime could also represent a danger to the national security of the United States. As Congress has found, the Iraqi gov- ernment has generally demonstrated a continuing hostility to the United States. The Iraqi government has harbored and aided international terrorist organizations that threaten the lives and safety of American citizens. Just last year, Congress found that the current Iraqi regime posed a continuing threat to the national secu- rity of the United States, due to its possessions of chemical and biological weapons, 21 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 3558. 22 Jean S. Pictet, ed., Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 335, (1958) (‘‘Commentary on Fourth Geneva Convention’’). 23 6 U.S.T. at 3558. 24 See e.g., Davis P. Goodman, The Need for Fundamental Change in the Law of Belligerent Occupation, 37 Stan. L. Rev. 1573, 1585-86 (1985) (‘‘occupiers consider themselves absolutely prevented fromrespecting local law whenever it hinders the realization of the legitimate purpose of occupation’’); id. at 1590 (‘‘If the purpose of the conflict is to rid the occupied territory of a form of government objectionable to the belligerent occupier, the occupier will not respect the existing political structure while waiting for the final determination of the conflict.’’). VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 56 pursuit of nuclear weapons capability, and support for terrorist organizations.25 Congress specifically noted Iraq’s capability and willingness to use weapons of mass destruction and the risk that the current Iraqi regime would employ those weapons in an attack upon the United States or provide them to terrorists who would do so.26 Iraq has also been a danger to the region. It has twice invaded its neighbors without provocation. The historical record shows that the maintaining current Iraqi government insti- tutions would constitute a threat to the national security of the United States and the safety of the U.S. Armed Forces in Iraq. Geneva IV and customary international law permit the United States to replace those institutions with others that would endanger neither the national security of the United States nor the safety of the U.S. Armed Forces. Given the Iraqi government’s past behavior, the retention of the current Iraqi regime would be inimical to the establishment of peace and security in the Middle East. Article 64 also expressly authorizes occupants to make alterations to laws of the indigenous government in order to protect rights guaranteed by Geneva IV. The rights afforded by Geneva IV sweep broadly. For example, article 27 provides that ‘‘[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs.’’ It establishes that ‘‘[t]hey shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.’’ It declares that ‘‘[w]omen shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.’’ And it finds that ‘‘all pro- tected persons shall be treated with the same consideration by the Party to the con- flict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.’’ All of these rights are subject to the qualifica- tion that ‘‘the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.’’ 27 Other provisions of Geneva IV require an occupying power to care for the popu- lation of an occupied country. Article 50 provides that ‘‘[t]he Occupying Power shall, with the cooperation of the national and local authorities, facilitate the proper work- ing of all institutions devoted to the care and education of children.’’ Under articles 55 and 56, the occupying power must, ‘‘[t]o the fullest extent of the means available to it,’’ provide for ‘‘the food and medical supplies of the population,’’ and ‘‘in par- ticular, bring in the necessary foodstuffs, medical stores and other articles if the re- sources of the occupied territory are inadequate,’’ as well as ensure and maintain, ‘‘with the cooperation of national and local authorities, the medical and hospital es- tablishments and services, public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preven- tive measures necessary to combat the spread of contagious diseases and epidemics.’’ Given the Iraqi government’s abysmal record in the area of human rights, the United States cannot fulfill its obligations under Geneva IV without replacing the institutions of the Hussein regime. The regime maintained its hold on power only by brutally repressing the Iraqi people. It systematically murdered those perceived to be a threat to the regime. Hussein’s security forces routinely tortured Iraqis, with beatings, rape, the breaking of limbs, and the denial of food, water, and medical treatment being commonplace. Needless to say, the regime did not tolerate political dissent, other political parties, or freedom of religion. It also displayed an utter dis- regard for the welfare of Iraqi women and children. Given the barbaric nature of the Hussein regime, the United States must eliminate the institutions of the Hus- 25 Pub. L. No. 107–243, 116 Stat. 1498 (2002); see also Pub. L. No. 105–235, 112 Stat. 1538, 1540 (1998) (declaring that ‘‘Iraq’s continuing weapons of mass destruction programs threaten vital United States interests and international peace and security’’). 26 See Pub. L. No. 107–243, 116 Stat. 1498 (2002). 27 An occupying power also must respect a number of rights provided to civilians charged with committing a criminal act during an occupation. Those prosecuted must be ‘‘promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them, and shall be brought to trial as rapidly as possible.’’ Art. 71, 6 U.S.T. at 3562. Additionally, those accused of crimes are guaranteed ‘‘the right to present evidence necessary to their defence and may, in particular, call witnesses.’’ Id. Art. 72. Defendants also ‘‘have the right to be assisted by a qualified advocate or counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary facilities for preparing the defence.’’ Id. Once convicted, protected persons continue to enjoy a range of rights under the Fourth Geneva Con- vention, including the right to ‘‘enjoy conditions of food and hygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining in prisons in the occupied country,’’ the right to ‘‘receive the medical attention required by their state of health,’’ and ‘‘the right to receive any spiritual assistance which they may require.’’ Art. 76, 6 U.S.T. at 3566. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 57 sein government to carry out all of the duties placed upon it by Geneva IV and to protect the basic human rights given to the Iraqi people. Clearly, this will require the United States to establish a new Iraqi constitution and representative govern- ment institutions. Although the drafters of Geneva IV formally recognized the expansive authority of an occupying nation to change the laws of an occupied nation, they did establish one significant substantive limitation. Article 47 forbids the introduction of any changes to the status quo that would deprive the population of Geneva IV rights. Article 47 states: Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Con- vention by any change introduced, as the result of the occupation of a terri- tory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.28 Therefore, the United States cannot alter the laws, including the government insti- tutions of Iraq, in a manner that is inconsistent with the basic rights recognized by Geneva IV. Some may argue that article 64 limits the occupying nation’s authority to those changes that would last only during the occupation. While an occupying nation would possess the power to enact temporary measures necessary to fulfill its obliga- tions under Geneva W, maintain order and security, and ensure its national security along with the security of its armed forces, article 64 and customary international law would not grant an occupying power the authority to make permanent changes in governmental institutions or constitutional law. To be sure, there will be cir- cumstances in which an occupying power will need to suspend or modify the laws of an occupied nation only on a temporary basis. For example, in the midst of civil disorder, an occupant may resort to interim emergency measures, such as a curfew. In other situations, however, temporary measures will be plainly inadequate for an occupant to accomplish the legitimate purposes of occupation. In order for the United States to fulfill its obligations, maintain an orderly government, and protect its national security as well as the security of its armed forces while occupying Iraq, it almost certainly will be necessary for the United States to change Iraqi law to dismantle current Iraqi government institutions and create new ones to take their place. CONCLUSION International law provides the United States with ample authority to establish a new Iraqi constitution and democratic governmental institutions as part of its duty to secure public safety in Iraq, protect the basic human rights of Iraqis, and to re- store international peace and security to the region. Senator CORNYN. Thank you very much, Professor Yoo. Professor Agawa. STATEMENT OF NAOYUKI AGAWA, MINISTER AND DIRECTOR OF THE JAPAN INFORMATION AND CULTURE CENTER, EM- BASSY OF JAPAN Mr. AGAWA. Chairman Cornyn, Chairman Chafee, it is a distinct honor to testify before your subcommittee. I have submitted my written statement for the record, but I would like to briefly inform you of the making of the Japanese constitution in 1946, one in- stance in which the Americans were deeply involved in the making of somebody else’s constitution, in the hope that that extraordinary story may assist you in thinking about how the United States wants to guide the constitution and the future of Iraq. Please note that the views that I express today before your sub- committees are strictly my own, and do not in any way reflect the views of the Government of Japan, for which I currently work. 28 6 U.S.T. at 3548. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 58 In order to grasp the time, place, and manner in which the new Japanese constitution was written, one needs to know the history surrounding that event in chronological order. Because my time is limited, I would just point out that the original draft of the 1946 constitution was prepared in English by a group of Americans without any Japanese participation, that the drafting was com- pleted in a matter of a week in total secrecy in February 1946. Professor Yoo just mentioned the fact that there are some legal bases for that kind of act, and I think that General MacArthur took care of that legal basis. Nevertheless, that’s the fact. The American occupation authority, known as GHQ, actually wanted to wait for the Japanese side to come up with a new con- stitutional draft, but for a variety of reasons decided to prepare the initial draft themselves, and handed it to the Japanese. The Japa- nese were certainly given opportunities to comment on and revise this GHQ draft after it was handed to them. Nevertheless, the American original has determined the character of the 1946 con- stitution to a large extent. Well, having said that, I believe that the 1946 constitution has been largely successful. First and foremost, the 1946 constitution has functioned as the basic law of the land for the past 57 years. Its pacifist and democratic character, together with its emphasis on fundamental human rights, suited the mood of the Japanese peo- ple, who were tired of years of war and military control. Therefore, the 1946 constitution set the cornerstone for Japan’s post-war de- mocratization. There are several specific examples of success. Article 1 declared the Emperor to be the symbol of the State and of the unity of the people. It secured the Emperor’s position con- stitutionally, while democratizing it by depriving him of all political powers, and by adding the new notion that his position is derived from the will of the people, with whom resides sovereign power. It ensured the gradual and peaceful democratization of Japan both during and after the occupation. Article 9 proclaimed Japan’s renunciation of war and its decision not to maintain armed forces, this helped to alleviate the fear of the resurgence of Japan’s adventurous militarism. Chapter III lists a variety of human rights, fundamental human rights. Many of these human rights provisions have functioned as a goal of the nation. Chapters IV and V set forth provisions of the parliamentary sys- tem without substantial changes made to the 1890 constitution. This assured the continuity of government. Chapter VI sets forth the provisions for the judiciary, that re- tained the basic structure of the pre-war judicial system, and that the Japanese judiciary continued to be base largely on the civil law tradition. Article 96, last, sets forth a procedure for the revision of the 1946 constitution, and thus has given the Japanese people the option and freedom to change it in the future, although we have never changed the constitution so far. Several aspects of the 1946 constitution have been less success- ful, however. First, some Japanese, because the initial draft was made by Americans, continue to believe that the 1946 constitution VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 59 was imposed by the Americans on the Japanese people. Also, some believe that the Japanese Government’s exceedingly restrictive in- terpretation of Article 9 has prevented Japan from becoming a full- fledged ally of the United States and from fully participating in international military action, that involvement of force necessary to maintain peace such as the first gulf war. Some of the fundamental human rights provisions incorporated in Chapter III seem to reflect too many American legal ideas of the 1930’s, i.e., the bigger the government, the better. For example, the right to maintain the minimum standards of wholesome and cul- tured living, and the State’s obligation to promote social welfare, security and public health in Article 25. These things have been difficult to enforce. There are some other examples, but I am running out of time, so in conclusion, the American attempts to democratize Japan after World War II has been remarkably successful. The 1946 constitu- tion was a major factor in that attempt. One must remember how- ever, that the Japanese had experienced a healthy democracy in the 1920’s, and that the post-war democracy was based on and grew from that experience. As noted above, however, not every American-inspired measure worked successfully in post-war Japan, but no constitution is per- fect, and it is now up to the Japanese people to fix it if and when necessary in accordance, again, with the freely expressed will of the people. Thank you very much. [The prepared statement of Mr. Agawa follows:] PREPARED STATEMENT OF NAOYUKI AGAWA Introduction Chairman Cornyn, and Chairman Chafee, and members of the subcommittees. It is a distinct honor to testify before your subcommittees on the making of the Japa- nese Constitution in 1946. On August 15, 1945, Japan announced the acceptance of the Potsdam Declaration. That ended three and a half years of war between the United States and Japan. General MacArthur stepped onto Japanese soil 15 days later. Thus the occupation of Japan started and lasted approximately seven years. During that time, the United States together with other members of the Allied Powers undertook many measures to do away with the country’s military control and revive Japan’s democ- racy. Among them was the making of the new Japanese Constitution. Almost 60 years later, the United States and its coalition partners are again find- ing themselves in charge of the occupation and democratization of Iraq. Among the tasks to be undertaken there in due course, I understand, is the making of the new Iraqi Constitution. I would like to inform you of the making of the new Japanese Constitution in 1946 in the hope that that extraordinary story may assist you in thinking about how the United States wants to guide the constitutional future of Iraq. More specifi- cally, I would like to give you examples of the American ideas incorporated into the Japanese Constitution, how they were incorporated, and which of these proved to be successful and which were not. Please note that the views I express today before your subcommittees are strictly my own and do not in any way reflect the views of the government of Japan. I am testifying before your subcommittees strictly in the capacity of a constitutional scholar who has taught this subject at Keio University in Japan, the University of Virginia Law School and Georgetown University Law Center; therefore, I do not ap- pear today sharing my views as a minister of the Embassy of Japan. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 60 The History of the Making of the Japanese Constitution In order to grasp the time, place and manner in which the new Japanese Con- stitution of 1946 (the ‘‘1946 Constitution’’) was written, it is perhaps useful briefly to narrate the history surrounding that event in chronological order. Many believe that the writing of the 1946 Constitution started with the accept- ance of the Potsdam Declaration, which presented the conditions for Japan’s ‘‘uncon- ditional surrender’’ to the Allied Powers. The Declaration, among other things, stat- ed that ‘‘until there is convincing proof that Japan’s war-making power is destroyed, [Japan] shall be occupied . . .’’ Further, it stated that ‘‘the Japanese government shall remove all obstacles to the revival and strengthen[ing] of democratic ten- dencies among the Japanese people’’ and that ‘‘freedom of speech, of religion, and of thought, as well as respect for the fundamental human rights shall be estab- lished.’’ Lastly, the declaration stated that ‘‘the occupying forces of the Allies shall be withdrawn from Japan as soon as these objectives have been accomplished and there has been established in accordance with the freely expressed will of the Japa- nese people a peacefully inclined and responsible government.’’ Thus the Potsdam Declaration not only set Japan’s surrender terms, but it also set the condition for the termination of the occupation, i.e., the demilitarization and democratization of Japan. The General Headquarters of the Allied Powers (the ‘‘GHQ’’), the occupation au- thority headed by General MacArthur, the Supreme Commander of the Allied Pow- ers, did not initially embark on the making of a new Japanese Constitution. It was initially busy physically disarming the Japanese military establishment, arresting war criminals, freeing political prisoners and taking care of other such pressing matters. In fact, it was only in October 1945 that General MacArthur first sug- gested to then Prime Minister Kijuro Shidehara that the Japanese government con- sider necessary constitutional changes. Please note that the GHQ ruled Japan indi- rectly through the existing Japanese cabinet and the bureaucracy. The Shidehara cabinet thereupon formed a committee to study the constitutional matters. This committee became known as the Matsumoto Committee, because it was headed by Dr. Matsumoto, a member of the cabinet who was also a noted legal scholar. The Matsumoto Committee was of the impression that (1) the GHQ was not in a particular hurry to make the constitutional changes and (2) the committee could deliberate the necessary constitutional changes free from the influence of the GHQ. Thus, The Matsumoto Committee began to study possible revisions to the ex- isting Constitution promulgated in 1890 (the ‘‘1890 Constitution’’) in order to make it more democratic and accountable to the people without determining any concrete timetable for the actual revisions to take place. This situation suddenly changed during the first week of February 1946. The Matsumoto Committee’s drafts of the revised 1890 Constitution were leaked to and reported by a Japanese newspaper. General MacArthur’s staff read these newspaper articles and found these proposed revisions to be inadequate for Japan’s democra- tization. The principle of popular sovereignty, for instance, was not clearly set forth. Upon learning of these facts from his staff, General MacArthur asked the Govern- ment Section of the GHQ itself to start drafting a new Japanese Constitution. On February 3, the General gave the Government Section lawyers and others a one page note outlining a few of the most important principles to be included in the draft Constitution. This famous ‘‘MacArthur Note’’ included, among other things, a provision to retain the Emperor and another provision for the abolishment of war and armed forces, even for self-defense purposes. The Government Section secretly started its draft on February 4 and finished the task on February 10. This draft was approved by General MacArthur and officially became the GHQ Draft on Feb- ruary 12. The GHQ Draft was in English. The GHQ Draft was shown to Dr. Matsumoto and a few other representatives of the Japanese government on February 13. Assuming that the American side in- tended to comment on the Committee’s own draft Constitution that had been sub- mitted to the GHQ a few days earlier, the Japanese delegation was stunned at the liberal tone of the GHQ Draft and declared that they were not ready to accept it. General Whitney, General MacArthur’s deputy, stated in return that the acceptance of the GHQ Draft might be the only way for the Emperor to survive and for the current Japanese government to remain in control. After several rounds of exchanges between the GHQ and the Japanese govern- ment, including a meeting between Prime Minister Shidehara and General Mac- Arthur, the Japanese cabinet reluctantly agreed to prepare a new draft in Japanese, based on the GHQ Draft. This new round of drafting started on February 27 and was completed on March 2. The Japanese government lawyers submitted this new draft to the GHQ on March 4. The GHQ found this new draft was still inadequate. An all-night session to conform it to the GHQ Draft pursued, and this task was com- VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 61 pleted on March 5 with MacArthur’s approval. On March 6, the Japanese cabinet approved this new draft and publicly released it as the Government Draft. The Government Draft was submitted to the Diet and the Privy Council, the Em- peror’s advisory body, in accordance with the revision procedures of the 1890 Con- stitution as set forth therein. After lively debates and a fair number of revisions, the final Government Draft was adopted and proclaimed as the 1946 Constitution on November 3, 1946, effective May 3, 1947. On September 8, 1951, Japan concluded a peace treaty in San Francisco with the United States and other Allied Powers. The peace treaty became effective on April 28, 1952 after its ratification by a majority of the signatories to the treaty. Thus Japan’s occupation ended and the country regained its full independence. Has the 1946 Constitution Been Successful? I believe that the 1946 Constitution has been largely successful. This assessment is based on several factors. First and foremost, despite initial opposition to some of the new ideas incor- porated in the GHQ Draft and the Government Draft, the 1946 Constitution has functioned as the basic law of the land for the past 57 years. In fact, when the Gov- ernment Draft was made public on March 6, 1946, the majority of the Japanese peo- ple favorably received it. Its pacifist and democratic character together with its em- phasis on fundamental human rights suited the mood of the Japanese people who were tired of years of war and military control. It is fair to say, therefore, that the 1946 Constitution set the cornerstone for Japan’s post-war democratization. More specifically, Article I of the 1946 Constitution incorporated the revolutionary notion of the Emperor as the ‘‘symbol of the State and of the unity of the people.’’ This provision has worked remarkably well. On the one hand, it secured the Emper- or’s position constitutionally, thus allowing the ancient tradition to survive the post- war turmoil. On the other hand, it democratized the Emperor by depriving him of all political powers and by adding the new notion that his position is derived from the ‘‘will of the people with whom resides sovereign power.’’ Under the 1890 Con- stitution, in theory the Emperor retained all the rights of sovereign and reigned over and governed the Empire of Japan. Although the conservatives in Japan strongly resisted the idea of turning the Emperor into a mere figurehead, the Em- peror as the spiritual symbol of the nation and not a political power actually con- formed well to Japan’s age-old political tradition and thus has functioned well. In my view, maintaining the Emperor tradition in Japan is MacArthur’s greatest achievement in connection with the 1946 Constitution. It assured the peaceful and gradual democratization of Japan both during and after the occupation. Article 9 of the 1946 Constitution incorporated another revolutionary notion of the renunciation of war. This provision also served its purposes particularly well for Ja- pan’s first 30 to 40 postwar years. In order to smoothly return to the international community, the Japan that was perceived in the 1930’s as an aggressor in the Asia- Pacific region had to project the image of a born-again, peace-loving country. Article 9 proclaimed Japan’s renunciation of war and its decision not to maintain armed forces. This helped to alleviate the fear of the resurgence of Japan’s adventurous militarism, a feeling shared at the time by many countries and peoples surrounding Japan. It also made the Japanese sincerely aspire to become a truly peace-loving nation. The result is a Japan today that promotes peace worldwide largely through non-military means. Also, importantly, Chapter III of the 1946 Constitution lists a variety of funda- mental human rights. As a matter of concrete policy, the Japanese found some of them difficult to implement immediately because they were so idealistic and because the Japanese government had little resources to realize them. However, many of these ‘‘rights’’ provisions have functioned as the goals of the nation. The Japanese aspired to achieve these goals and to rebuild a country that is based upon and re- spects these fundamental human rights. For instance, Article 24 of the 1946 Con- stitution promulgated the equality of the sexes. Japanese women had not been treated as equals to men for historical and cultural reasons throughout most of Jap- anese history, and were inspired by this provision. Since then, they have signifi- cantly improved their social standing in Japan. It is perhaps fair to say that post- war Japan has respected people’s ‘‘life, liberty and pursuit of happiness’’ and ‘‘equal[ity] under the law’’ to the greatest extent possible as provided in Articles 13 and 14 of the 1946 Constitution. In addition, the 1946 Constitution maintained the parliamentary (the Diet) sys- tem without substantial changes made to the one under the 1890 Constitution. This assured the continuity of government. There were some important changes in this area, too. For instance, the 1946 Constitution specifically made the Cabinet directly responsible to the Diet, thus reviving and strengthening the 1920’s democratic tradi- VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 62 tion that thrived in Japan before the military took control of the country. The 1890 Constitution had no express provision for the Cabinet’s accountability to the Diet although by the 1920’s it had become customary for the Cabinet to resign at the displeasure of the Diet. Also, the Prime Minister was given the authority to appoint and remove members of his cabinet. Nevertheless, the parliamentary system as a whole was not materially changed from the pre-war model. The drafters of the GHQ draft could have tried to institute a more American style of government by estab- lishing clearer separations of power and creating a more independent executive branch of the government. However, these Americans knew and respected the Japa- nese’ pre-war democratic experiences and traditions. Therefore, these drafters left the existing system intact. That worked well for Japan’s needs. Similarly, while the 1946 Constitution made the Japanese judiciary more inde- pendent and encouraged it to be more ‘‘rule of law’’ oriented in order to protect the fundamental human rights of the Japanese people, it respected and retained the basic structure of the pre-war judiciary system. Thus, the Japanese judiciary contin- ued to be based largely upon the civil law tradition that was originally introduced from Germany and France. In fact, the person who worked on the reform of the Jap- anese judiciary system within the GHQ was Judge Opler, a naturalized American citizen who was a former judge in pre-Nazi Germany. He advised the GHQ not to introduce too much of the American judicial system, such as the election of judges. This suggestion has also worked well for Japan. Lastly, the American drafters provided for the procedures for the revisions of the 1946 Constitution in Article 96. Some of the American drafters maintained that the provisions for fundamental human rights in Chapter III should be made non-amend- able lest the Japanese people be deprived of these rights after the Americans left Japan. However, others argued and prevailed that the American drafters should not bind the future generations of the Japanese to what the Americans thought to be the most important constitutional principles. Thus, the Japanese have retained the freedom to amend the 1946 Constitution partly or in its entirety in accordance with the procedures set forth in Article 96. Interestingly, the 1946 Constitution has never been amended. Constitutional scholars have debated why the Japanese are so reluc- tant to amend the Constitution. Nevertheless, the insertion of the amendment pro- cedures has given the Japanese people the option and freedom to change it in the future. It therefore weakens the argument that this Constitution was imposed on the Japanese by the Americans. Certain Aspects of the 1946 Constitution That Are Less Successful Several aspects of the 1946 Constitution have been less successful or totally un- successful. First, some Japanese continue to believe that the 1946 Constitution was ‘‘im- posed’’ by the Americans on the Japanese people and that it therefore lacks legit- imacy. They still find offensive that the first draft of the 1946 Constitution was pre- pared in English by a group of Americans, and furthermore that it was done in an extremely short period of time and in complete secrecy. Those Japanese do not recall themselves ‘‘proclaim[ing] that sovereign power resides with the people’’ and ‘‘firmly establish[ing] this Constitution’’ as the Preamble to the 1946 Constitution states. Some believe that the 1946 Constitution is badly written as a matter of Japanese prose because the original draft was in English. In fact, a top secret directive from Washington to General MacArthur issued on January 7, 1946 entitled SWNCC 228 (the State-War Navy Coordinating Subcommittee for the Far East directive number 228) specifically stated that ‘‘[o]nly as a last resort should the Supreme Commander order the Japanese Government to effect the constitutional changes], as the knowl- edge that they had been imposed by the Allies would materially reduce the possi- bility of their acceptance and support by the Japanese people for the future.’’ How- ever, some Japanese had strong counter-arguments to this position. For instance, some scholars argue that because the Diet debated and amended the Government Draft in a relatively free fashion in the latter half of 1946, the Japanese people did have an opportunity to express their will in the making of the 1946 Constitution through their representatives. Scholars also argue that the Japanese have so far chosen not to amend the 1946 Constitution, indicating that the nation as a whole has approved of it and liked it. Also, the GHQ Draft was prepared in haste for sev- eral good reasons, for example, among other things, General MacArthur’s wish to avoid Soviet Russia’s intervention in his occupation policy, in order to prevent com- munist-led insurgency in Japan and to protect the Emperor from indictment as a war criminal. Nevertheless, because the first draft of the 1946 Constitution was pre- pared by a group of Americans without participation of any Japanese, I believe that this factor has harmed the legitimacy of the 1946 Constitution to a certain degree. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 63 In addition, certain substantive ideas incorporated into the 1946 Constitution by the American drafters tended not to function well or became outdated after a while. The foremost of this example is in Article 9. General MacArthur was perhaps very keen on demilitarizing Japan and perhaps sincerely believed in a harmonious post- war international order. As a result, he was adamant that the Japanese people for- ever renounce war and do away with all armed forces. Given the impracticality of rebuilding its war potential at the time, the Japanese obliged. The American policy makers, including General MacArthur, quickly regretted inserting this provision in the 1946 Constitution and tried to persuade the Japanese to rearm when the Cold War heated up and the Korean War began. However, the Japanese refused to rearm, quickly citing Article 9 and pointing out that it was the United States that originally insisted on the insertion of this provision. The Japanese people have liked Article 9 and post-war Japan has become a pacifist country. This is all good and well. However, some believe that the Japanese government’s exceedingly restrictive interpretation of Article 9 has prevented Japan from becoming a full-fledged ally of the United States and from fully participating in international military actions in- volving use of force necessary to maintain peace, such as the first Gulf War. In addi- tion, the lack of any provision in the 1946 Constitution setting forth the war and emergency power of the government has hindered Japan from preparing for any war or other emergencies, such as terrorist attacks. Here lies a lesson, perhaps, that a radical, substantive constitutional provision may, in the long run, not work. Similarly, some of the fundamental human rights provisions incorporated in Chapter 111 of the 1946 Constitution seem to reflect too many of American liberal ideas of the 193O’s. It is a known fact that the three American drafters of Chapter III were liberally-oriented non-lawyers and that they were eager to add everything that the United States Constitution did not have. (For that matter, only one mem- ber of the American drafting team was Republican.) The ideas included by the draft- ers are: the freedom to choose residence and occupation, and to divest nationality (Article 22); academic freedom (Article 23); marriage based only on the mutual con- sent of both sexes and the essential equality of the sexes pertaining to marriage and family (Article 24); the right to maintain the minimum standards of wholesome and cultured living and the State’s obligation to promote social welfare, security and public health (Article 25); the right to receive an equal education (Article 26); the right and obligation to work (Article 27); and the right of workers to collectively or- ganize, bargain, and act (Article 28). While these provisions are all for good causes, some of them proved to be difficult to implement as a matter of concrete policy and have functioned more as desirable standards. Also, some have criticized these provi- sions as too strongly oriented towards rights, freedom and individualism (individual liberty). The dissenters believe that the American drafters failed to incorporate some of the more traditional Japanese values such as family, community, seniority, and the nation, therefore allowing the post-war Japanese generation to become more selfish and less public-minded. Chapter VI of the 1946 Constitution, concerning the judiciary, is another area in which some of the American ideas did not work particularly well. While the 1946 Constitution strengthened the Japanese judiciary and made it more independent, the American drafters were concerned about the possibility of judicial tyranny be- cause of their recent experiences with the ‘‘old horsemen’’ of the United States Su- preme Court during the New Deal Era. Accordingly, in the 1946 Constitution the drafters added measures such as term limits for the judges (Article 80); the manda- tory retirement ages for the judges of the Supreme Court as well as of lower courts (Articles 79 and 80); and even the performance review and recall of the Supreme Court judges by the people through ballots every ten years (Article 80). Also, the American drafters omitted the word ‘‘property’’ after ‘‘life and liberty’’ from Article 31 of the 1946 Constitution, setting forth the due process principle lest the property rights be abused by the Supreme Court as was the case in the United States in the late 19th and early 20th centuries. These provisions proved to be more or less irrele- vant. For historical and other reasons, the Japanese judiciary never became as pow- erful as the American judiciary. No Japanese Supreme Court judge has ever been removed by the ballot because the average age of their appointment to the Supreme Court is 64, their mandatory retirement age is 70, and therefore no one remains on the bench at the next round of review ten years later. For that matter, the Japa- nese Supreme Court has exercised its judicial review power very sparingly. The American drafters incorporated the doctrine of Marbury v. Madison in Article 81 of the 1946 Constitution in the hope that the Supreme Court would function as a check against the Diet and the Cabinet nullifying the laws, orders and regulations it finds to be unconstitutional. The Japanese Supreme Court has, however, held the statutes unconstitutional only about five times in the past 55 years. It has a tend- ency to defer to the legislative will of the Diet, which is defined as the ‘‘highest VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 64 organ of state power’’ in Article 41. This is not necessarily a bad result. Some schol- ars in the United States may envy the judicial restraint exhibited by the Japanese courts. It is simply that the Japanese judiciary did not behave as the American drafters hoped or feared. All in all, provisions for the judiciary in the 1946 Constitu- tion have had mixed results. The provisions have created a more independent judici- ary, but did not create as strong and influential a system as the United States judi- ciary. Conclusion In summary, the American attempt to democratize Japan after WWII has been remarkably successful. The 1946 Constitution was a major factor in that attempt. More than anything else, it set the benchmark against which the progress of the Japanese democratization was measured. Today, Japan is a thriving free market de- mocracy where basic human rights are protected and the political system account- able to the people is functioning. The Potsdam Declaration’s desire to see the estab- lishment of a ‘‘peacefully inclined and responsible government’’ in accordance with the ‘‘freely expressed will of the Japanese people’’ has been fulfilled. The Japanese people owe a lot of this success to the American ideas, including those of the Amer- ican drafters of the 1946 Constitution. One must also remember, however, that the Japanese had experienced a healthy democracy in the 1920’s and that the post-war democracy was based on and grew from that experience. As noted above, however, not every American-inspired measure worked success- fully in post-war Japan. Certain provisions of the 1946 Constitution did not work as expected or became obsolete over time. Many of them were provisions that re- flected American constitutional experiences that did not take root in the Japanese soil. Others were the currently popular substantive ideas that were bound to become obsolete over time. It was also unfortunate that the initial drafting of the 1946 Con- stitution did not allow for any Japanese participation and had to be completed in such a short time. Nevertheless, the American-drafted 1946 Constitution sowed seeds of democracy in Japan, and the Japanese people have lived with (and some have put up with) this Constitution for more than half a century. No constitution is perfect, and it is now up to the Japanese people to fix it if and when necessary in accordance again with the freely expressed will of the people. Chairman Cornyn, Chairman Chafee, and subcommittee members, thank you for your time. I appreciate the honor and privilege of being allowed to express my views today. Senator CORNYN. Thank you very much, Professor; and now for a view of the German example. Dr. Kommers, thank you for joining us today. Please give us your opening statement. STATEMENT OF DONALD KOMMERS, JOSEPH AND ROBBIE PROFESSOR OF POLITICAL SCIENCE AND PROFESSOR OF LAW, NOTRE DAME SCHOOL OF LAW Dr. KOMMERS. Senator Cornyn, I also want to thank you for the subcommittee’s invitation, but with your indulgence I may have to leave a little earlier since I have a plane to catch back to South Bend, Indiana at 7 this evening, and I know the rush hour gets pretty terrific around 5 in the afternoon. My statement is very short, really less than 4 minutes. As I un- derstand my task, it’s not to lay out a blueprint for rebuilding con- stitutional government in Iraq, but rather to indicate what lessons we Americans might draw from the allied effort to restart constitu- tionalism in Germany after World War II. My written statement lists many of the differences between occu- pied Germany in 1945 and occupied Iraq in 2003. The German ex- perience may nevertheless be relevant in several respects. The Ger- man experience confirms, I think, much of what has already been said here today on this panel and on the previous panel and what Senator Feingold had to say earlier in his remarks. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 65 In what respects? First, the German experience shows that rees- tablishing constitutional government can only begin when the occu- pying power is fully in control, and only when law and order is fully restored. Second, rebuilding democracy must be the first re- sponsibility of the occupied country. Third, a spirit of trust and cooperation must define the relation- ship between the occupiers and the occupied. In addition, the edu- cated classes and a critical mass of democratically inclined citizens must be willing and able to cooperate with the occupation. Finally, and perhaps the most important lesson of all, given the German experience, is that the restoration of democratic constitu- tionalism must be a bottom-up, rather than a top-down affair, and it must reflect indigenous values and traditions. Consider how the process worked in Germany. Already, in late 1945, the military Governors authorized Germans to rebuild their local and state governments, in some cases in artificially created territorial units. They initially selected the prime ministers of those territorial units, the top German officials charged with this task of rebuilding, but thereafter, these officials acted on their own, save for certain functions related to internal security and foreign trade. These local units evolved, interestingly enough, into dynamic working governmental systems jealous of their power and auton- omy, and pretty much based on the German tradition of statecraft. By mid-1946, elected State Parliaments and Prime Ministers were functioning under written constitutions, at least in the four states within the American zone. Local representatives of political parties licensed by American military authorities drafted these con- stitutions, and they did so on their own. They didn’t have all that much American or any other allied help at the time. Although re- quiring the approval of the allies, these constitutions, as suggested, were home-made products rooted in Germany’s democratic tradi- tion. With this foundation in place, then, at both local and regional levels, the allies turned their attention to West Germany as a whole, almost 3 years Germany’s military defeat. Of course, the es- tablishment of a national government would probably have taken much longer had it not been for the American determination to bring Germany into the Atlantic alliance, given the cold war in the background. At any rate, in mid-1948, 3 years after Germany’s defeat, the military Governors commissioned the Prime Ministers of the 11 re- organized states to convene a national assembly to write a new constitution for Germany. They specified that the new constitution must establish a Federal form of government, protect the rights of the respective states, and provide for the protection of individual rights and freedoms, and within the framework of these broad prin- ciples, Germans were free—subject to allied approval—to draft a constitution of their own choosing. The Prime Ministers moved at once. They appointed a committee of experts, constitutional experts and international experts, all Ger- mans, to prepare a draft constitution for the consideration of a na- tional assembly. Twenty-five persons, all Germans, accomplished this task in 14 days. No Americans were present during the writing of this draft constitution. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 66 The initiative then shifted to the state legislatures. They elected a constitutional convention composed of 65 delegates. The Allies did not interfere in these elections. All 65 delegates were members of political parties represented in the state legislatures. These par- ties, each of which was licensed by the occupation authorities, rep- resented the main segments of German public opinion opposed to the Nazi state. Forty-four of these political party delegates were members of their respective state legislatures. Over the next 10 months the assembly, known as the Parliamen- tary Council, produced the Basic Law which, in the course of time, would become one of the world’s great constitutions. The military Governors monitored the making of the Basic Law, but they did not participate in its proceedings. On some issues, such as the status of Berlin and the preservation of internal security, allied demands did prevail, but these decisions were driven by the experience of the cold war, a condition which has no relevance to Iraq. Conflicts arose between the convention and the military Gov- ernors, particularly over the taxing power of the national govern- ment, but this and other conflicts were resolved by compromise, and generally to the satisfaction of the Germans. In fact, the mili- tary governors made a number of concessions. For example, they originally insisted on the popular ratification of the constitution, but gave way to the German view that the state legislatures should perform this function. They, the military governors, also agreed to more centralization of Federal authority than they were originally prepared to accept. I conclude. Germany’s Basic Law became one of the great success stories of the occupation. The basis of the success seems clear. The German people were allowed to create institutions of their own choosing, and founded on their own political, social, and even reli- gious traditions. I want to suggest at the end that the Germans would not have accepted the basic law had they believed it was im- posed from above or from outside, and I believe that the Iraqis must believe that any new government or constitution is also one of their own making. I would suggest, finally, that in reconstructing or recreating a constitutional government, the Iraqis might find some guidance in Germany’s Constitution, better known as the Basic Law. Interest- ingly, Germany’s Basic Law has come to replace the United States Constitution as the main model of constitutional governance around the world. It’s just amazing to note how many countries out there, at least 50 or 60, have patterned their constitutions on the German Basic Law. Let me say why I think this is the case. First, Germany’s Basic Law speaks in the language of duties as well as rights. Second, it promotes solidarity as well as individualism. Third, it includes a system of political representation, combing proportional representa- tion with a single-member district system, which most observers see as fairer and more effective than the first-past-the-post system in the United States. Finally, and importantly, it recognizes the public role of religion while ensuring its free exercise. Each of these features seems well suited to the future of constitutional govern- ment in Iraq. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 67 [The prepared statement of Dr. Kommers follows:] PREPARED STATEMENT OF DONALD P. KOMMERS As I understand my task, it is not to lay out a blueprint for rebuilding constitu- tional government in Iraq, but rather to indicate what lessons Americans might draw from the Allied effort to restart constitutionalism in Germany after World War II. This committee should bear in mind, however, that Occupied Germany of 1945 is not the occupied Iraq of 2003. The two situations are entirely different, although the German experience may provide guidelines for political reconstruction in Iraq. Allow me to list the main differences in the two situations: First, we invaded Iraq to remove its rulers and thereby to liberate its people; we invaded Germany to smash an enemy nation and to overpower its people. Second, Germany in 1945 was disgraced, disspirited, and dismembered; Iraq in 2003 survives with most of its infra-structure intact, its territory unified, and its people aroused. Third, the Ger- mans mounted no armed opposition to the Occupation; Hussein loyalists, by con- trast, are fighting back and killing Americans. Fourth, Iraq is pockmarked by trib- alism, ethnic division, and religious radicalism, blotches on the polity conspicuous for their absence in occupied Germany. Finally, Germany’s unconditional surrender validated the Allied Occupation, even in the eyes of most Germans, a legal reality far from clear in the case of Iraq’s occupation. Nevertheless, the German experience may be relevant to Iraq in these respects: First, reestablishing constitutional government can only begin when the occupying power is fully in control and only when law and order have been fully restored. Sec- ond, rebuilding democracy must be the first responsibility of the Iraquis. Third, a spirit of trust and cooperation must define the relationship between the occupiers and the occupied. Finally, the educated classes and a critical mass of democratically- inclined citizens must be willing and able to cooperate with the Occupation. Perhaps the most important lesson of all is that the restoration of democratic con- stitutionalism must be a bottom-up rather than a top-down affair, and it must re- flect indigenous values and traditions. (The top-down model worked in Japan be- cause of that country’s compliant political culture and the desire of its people to imi- tate American ‘‘know-how.’’) Top-down would not have worked in Germany, and is unlikely to work in Iraq. Consider how the process worked in Germany. Already in late 1945, the Military Governors authorized Germans to rebuild their local and state governments. They selected the top German officials charged with this task, but thereafter these offi- cials acted on their own save for certain functions related to internal security and trade relations beyond their respective zones of occupation. By mid-1946, elected parliaments and prime ministers were functioning under written constitutions, at least in the four states of the American Zone. Local representatives of political par- ties licensed by American military authorities drafted these constitutions. Although requiring the approval of the Allies, the constitutions were home-made products rooted in Germany’s democratic tradition, and they were largely duplicates of the state constitutions in force during the Weimar Republic. Successful parliamentary democracies emerged from this bottom-up process of reconstruction. With this foundation in place at both local and regional levels, the Allies turned their attention to the national level. (The reestablishment of the national govern- ment would probably have taken much longer had it not been for the American de- termination to incorporate West Germany into the Anti-Soviet Atlantic Alliance.) In mid-1948—three years after Germany’s defeat—the Military Governors commis- sioned the prime ministers of the eleven reorganized states to convene a national assembly to write a new constitution for Germany. They specified that the new con- stitution must establish a federal form of government, protect the rights of the re- spective states, and provide for the protection of individual rights and freedoms. Within the framework of these broad principles, Germans were free, subject to Al- lied approval, to draft a constitution of their own making. The prime ministers moved at once. They appointed a committee of experts to pre- pare a draft constitution for the assembly’s consideration. Twenty-five persons—all Germans—accomplished this task in 14 days. No Americans were present during this period. The initiative then shifted to the state legislatures. They elected the as- sembly’s 65 delegates. There was no Allied interference in these elections. All 65 delegates were members of political parties represented in the state legislatures. Fifty-four of the delegates—again all Germans—were members of these legislatures. Over the next ten months, the assembly—known as the Parliamentary Council— produced the Basic Law, which in time would become one of the world great con- VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6621 90493 SFRELA2 PsN: SFRELA2 68 stitutions. The Military Governors monitored the making of the Basic Law, but they did not participate in its proceedings. Conflicts arose between the convention and the Military Governors, particularly over the taxing power of the national government. But this and other conflicts were resolved by compromise and generally to the satisfaction of the Germans. In fact, the Military Governors made a number of concessions. For example, they originally insisted on the popular ratification of the Constitution, but gave way to the German view that the state legislatures should perform this function. They—the Military Governors—also agreed to more centralization of federal authority than they were originally prepared to accept. Germany’s Basic Law became one of the great success stories of the Allied Occu- pation. The basis of the success seems clear: The German people were allowed to create institutions of their own choosing and founded on their own political, social, and even religious traditions. Yet the Basic Law marked out a new beginning by its codification and promotion of a constitutional morality that rejected the political pathologies of the past. The Occupation experience shows that in the right set of circumstances, which may or may not exist in Iraq, military authorities can trans- form a once-outlaw nation into a promising constitutional democracy. Senator CORNYN. Thank you very much, Dr. Kommers. Professor Howard, I welcome you to this panel and I mentioned when, I believe, you were out of the room that we first met, and I have to say that you are at least in part a reason why I am inter- ested in this subject, during my time at the University of Virginia and my participation in the master’s of law program at the Univer- sity of Virginia Law School and the thesis that I ended up writing on the creation of the Texas constitution of 1845, but enough of that. We’d be pleased to hear your opening statement. STATEMENT OF A.E. DICK HOWARD, WHITE BURKETT MILLER PROFESSOR OF LAW AND PUBLIC AFFAIRS, UNIVERSITY OF VIRGINIA LAW SCHOOL Mr. HOWARD. Mr. Chairman, we will agree that the Texas con- stitution of 1845 was one of the great constitutional documents of all time. May the record show that. Mr. Chairman, thank you for inviting me. I suspect that my chief credentials for being here are that I teach constitutional law at the University of Virginia. Our founder was Thomas Jefferson, our first rector was James Madison. As constitutional credentials go, those aren’t bad, I suppose. I cut my teeth, in constitutional terms, in working on the present Virginia constitution. In more recent years, I’ve had the privilege of sitting at the elbows of drafters of constitutions in a number of other countries, especially post-Communist countries in Central and Eastern Europe. This has sparked in me an interest in com- parative constitutionalism and, in particular, the question of how constitutional ideas travel, how they get from one place to another, what takes, what doesn’t take, whether there are universals which drafters ought to be concerned with, or ultimately whether con- stitutions are a product of culture, tradition, history, and cir- cumstance. A subset of that question for an American audience and, I think, for all of us is whether there is some instructive value in the Amer- ican experience, though it may now be nudged aside, my colleague insists, by the German experience. VerDate 11-MAY-2000 12:28 Dec 18, 2003 Jkt 000000 PO 00000 Frm 00072 Fmt 6633 Sfmt 6602 90493 SFRELA2 PsN: SFRELA2 69 I have submitted a written paper, so I will only summarize the points I made there. I undertake in that paper a case study of post- Communist, post-1989 Central and Eastern Europe. There one finds an interesting eclecticism where the drafters in those coun- tries drew where they could on their own experience, which was often very mixed and checkered and broken, then drew to some ex- tent on Western Europe’s experience, to no one’s surprise, since they felt themselves rejoining the family of Europe. They didn’t, at least in obvious terms, draw on the American ex- perience. They were much closer to Western Europe. They drew as well on international documents, very much part of the world since World War II. These offer another source for drafters—U.N. cov- enants, OSCE documents like the Helsinki and Copenhagen docu- ments, and others. I won’t take the time here to rehearse the history of how Amer- ican ideas have, in fact, influenced other places. Again, I have it in my paper. There have been a number of historical chapters— France in the revolutionary period, liberal Europe in 1848, the Philippines as our colony after 1900, the Wilsonian period after World War I (making the world safe for democracy, as Wilson put it), Japan and Germany after World War II (two quite important and very instructive stories for our purposes), and then, finally, the successive waves of democracy, the Mediterranean in the 1970’s (Spain’s 1978 constitution is an important point of reference), the South American countries in the 1980’s, Central and Eastern Eu- rope after 1989, and, of course, South Africa at about the same time. It’s interesting to hear people debate the relevance, if any, for other countries of the American constitutional experience. Some of my scholarly colleagues argue that it really has no place in the drafting of other constitutions. For one thing, an 18th century doc- ument doesn’t look like much of a model for people drafting con- stitutions in the 21st century. Moreover, some scholars would argue that the American experience has been so exceptional, so un- like the rest of the world, that the conditions that gave rise to con- stitutionalism here simply cannot be replicated elsewhere. I understand those arguments. But I think they miss the point that the value of the American experience lies not in taking the ac- tual document as a template and trying to copy something out of it, but rather in plumbing it to its depths for the underlying core values that it represents—values such as federalism. Around the world, federalism has been put to service in a number of ways. It doesn’t have to be American-style formal constitutional fe […اقتُطع العرض هنا — النص الكامل في ملف التنزيل]