Opinio Juris

First of all, my thanks are due to Professor Borgen, and to all of the editors of Opinio Juris, my favorite law blog (aside from my own, of course), for giving me the opportunity to discuss these vitally important issues in this extraordinary forum. Just one small correction to Professor Borgen’s very gracious introduction: the name of my book is Howling in Mesopotamia, not Howling in Iraq. I emphasize this only because early on in the writing process, I had to fight rather energetically over this very point, whether to change the word Mesopotamia to Iraq on the theory that more readers would understand the latter. I won the argument and therefore feel compelled to make the correction, even at the expense of pedantry.

Howling in Mespotamia is a memoir, a personal experience of life in Iraq, as an Iraqi, beyond the protected walls of the Green Zone, by one with access to both the American administrators and the Iraqi people, of all sects and backgrounds. It was my purpose (and my editor’s mission in life, or so it seemed to me, to my eternal gratitude) to expunge political diatribes, legal exposition, tiresome exegeses of cultural differences, and to explain events as I saw them in as direct and unambiguous a fashion as I could, to relay a certain sense of humanity to the Iraqi people. How I was nearly shot for a terrorist by an American patrol while returning a generator to a manufacturer, what it was like for an Iraqi to eat at a restaurant at a time when several were bombed nearly every week, who these people were, waving their purple fingers at times, beating their chests at others—these were the questions I sought to address, to give a face, a name, a life, a family to the statistics, the numbers of dead and wounded, we see in the news nearly every day. Who was at fault for what, whether the invasion was a mistake, or what the role of Islamic law would be in the new Iraq were matters dear to my heart, and to my scholarship, but were not really the point of the book.

And yet, at every single forum in which I have participated, or interview I have given, concerning the memoir, these legal and political matters are discussed at some length, almost always in the context of the stories I have told in Howling. When it comes to Iraq, it seems to me, the personal is forever intertwined with the political, and life and law cannot so easily be separated from one another.

To give just one example, just last week I gave a talk at a fairly well known, and I think deservedly well respected, Washington DC based forum of Arab issues, Al Hewar. The Iraqi Ambassador and the cultural attaché were both in attendance, as were a number of prominent Arab Americans—professors, diplomats, doctors and the like. A rather nerve racking experience, given the prominence of the attendees and given that I spoke in Arabic, which presented its own unique set of challenges. Despite my penchant for attaching feminine adjectives to masculine nouns, I managed to convey the subject of the book, and, in that context, the work in which I was engaged in Iraq. These were, specifically, legal education reform through a DePaul University project run by the renowned Cherif Bassiouni and funded by USAID, and service on a Governing Council (GC) committee that was charged with advising on commercial legislation drafted by the American administrators at the time, the Coalition Provisional Authority (CPA).

With one exception, the questions I received were polite, cogent and well informed. They were also largely, though not entirely, adversarial, particularly as concerned my advisory work, where my role in reviewing commercial legislation was in fact quite minor, as I emphasized. I was given a period of hours to review quite often poorly drafted legislation that members of the Governing Council in some cases said quite openly would never be implemented in any significant fashion. I could as a result only correct the most embarrassing and egregious of errors. Had the CPA not dissolved in June of 2004, I am sure I would have quit shortly thereafter, less because I considered the work harmful and more because I found it largely pointless. I spent three hours offering comments on an intellectual property law that is so widely ignored that I needed to send someone to Amman to purchase legal copies of Microsoft to comply with a US government contract. Even the Iraqi government offices I visited did not quite understand what I wanted, until I managed to meet a Minister of Higher Education in Kurdistan who had spent time in France, heard my dilemma and smiled, gently offering Amman as the only solution she could think of.

Nevertheless, harmless as I found this experience, and compelling as I found the stories that arose out of it, the matter did create some controversy at Al Hewar. It also, in the opinion of some, cast some doubt on my ability to tell stories of the Iraqi people as an Iraqi. Hadn’t I in fact worked with the occupier? (I guess so, sort of.) Did they in fact have the right to pass all of this legislation under international law? (Probably not.) And even harder to digest, for me--did Iraq even need new commercial laws? (Absolutely, the laws on security for loans are quite outdated, to name the simplest example.) And couldn’t domestic Iraqi lawyers, real Iraqi lawyers (i.e. not me) make the necessary changes? (Absolutely, with international consultation, nobody had seen a real cross border deal in Iraq for decades.)

What made the matter even more striking however, is how much less controversial the drafting of the Constitution was. Some raised questions, to be sure, one raised a fuss about my supposed role in its drafting and how awful it was. I had no such role, but my uncle was head of the committee that drafted that document and so the document in Arab circles, where kin is king, is often indirectly attributed to me, I am finding. However, for the most part, and despite this attribution, the Constitution was not raised nearly as often as this quite silly and pointless legislation. This is not the first time this has happened, and it should give anyone pause—why is it that nobody asks whether Iraq’s foundational document should have been amended, whether it was necessary, whether it was legal, and yet the questions came concerning issues of far less consequence? Clearly much of the Iraq constitution was influenced by other constitutions, as the CPA orders were influenced by material taken from other jurisdictions. Why then this rather striking difference in treatment?

I think there is a clear enough legal answer as to why this was, and how it came to be that what was in fact a recitation of personal and familial experiences in Iraq led to a rather enlightening example on the nature of law and the legal transplant. The CPA laws were clearly drafted by an occupying authority and approved by a Governing Council that had been selected by that authority. As I have relayed elsewhere, the GC selection was largely competent, the major Iraq players at the time were largely represented, but still, it was an appointed body. The idea of that process leading to anything but disaster remains for many Arabs unpalatable, and examples in my ">scholarship of CPA successes are never kindly met in such fora.

By contrast, the Constitution was written by an elected body, through elections urged by Grand Ayatollah Sistani, no American appointee, and in connection with which the Grand Ayatollah decreed that to vote was an Islamic obligation. (More on this subject later in the week.) The Kurds and the Shi’a both enthusiastically participated. This was not the product of the occupier, it is hard to make a case otherwise. As a result, questions concerning its necessity disappear, and objections as to the necessity of any legal reform are shunted from an entirely rewritten constituent document to subsidiary statutes. In other words, we may have needed a new Iraqi constitution, if the Iraqis think so, but we don’t need new Iraqi commercial law (all the evidence to the contrary notwithstanding), at least not unless the Iraqis say so.

This is not to say that there is no controversy attending the Constitution, but this relates to the sectarian nature of the drafting process, a matter I will turn to in another entry. That fact clearly does detract from the document’s authenticity and leads to Sunni accusations of a different foreign influence, Iran. For now, however, the point is this—a law is not controversial because it has been imported from, or at least influenced by, other jurisdictions. So much of Iraqi law already is. It is the process of importation, and the appearance of domestic legitimacy (ie urged by Sistani, drafted by an elected assembly) that is, I believe, dispositive. That in itself is not surprising, in fact I suppose it might be obvious, but the fact that it became manifest, in this context, not in an academic forum but rather in a presentation that was supposed to be about personal Iraqi lives and experiences was, to my mind, worthy of note. Nothing seems to escape law and politics in Iraq, I think, it is near to the minds of all Iraqis. No matter what else we might want to be thinking about, it looms always near in these difficult and precarious times.

This was by way of introduction, tomorrow I will endeavor to discuss some pressing legal matters in more depth.