Seminar on Practical federalism in Iraq

Erbil, 10-16 July 2007

Speakers noted that the new political system of Iraq is premised on a clear separation of powers and a strong and independent judiciary. This was presented as a necessary and indispensable component of a strong and stable democracy where the individual can feel confident in the protection of their human rights.
Many contributors noted however that Iraq’s new legal institutions ought also to play a greater role in safeguarding the rights of women, children, youth, the elderly, and the family. Law 188 was in particular presented as in need of refinement, as was the treatment afforded to the families of deserters and prisoners. Worrying was also to many the vagueness with which rights for women and children are presented in the Iraqi Constitution, with particular concern expressed for the status of the growing number of Iraqi widows as conflict continues.
Religious rights were also afforded particular importance in discussions, with contributors underlining the need to recognise and respect Iraq’s diversity in all its laws. Several speakers noted the importance of differentiating between group rights and individual rights, suggesting both ought to be given a place within the new Iraq. The greatest risk was presented as a system in which certain groups do not feel welcome or included, potentially undermining judicial institutions by forcing them to seek justice through other means.
Discussions of how best to unite Iraq through inclusive legislation prompted some disagreement, though all participants were willing to look internationally for experience of possible interest. Many recognised the difficulty of balancing legislative reform against preserving valuable tradition, with article 41 proving particularly controversial in terms of whether it serves to unite or divide the Iraqi people.
The greatest problem was however frequently identified as the relative weakness of Iraq’s institutions, consequently leaving them unable to guarantee many of the basic rights enshrined in legal texts. It was noted for example that arbitrary arrest, torture, and lengthy detentions continue, with the prevalence of armed militias still driving many Iraqi’s abroad in search of refuge.
In terms of foreign guidance, the distinction between substantive and procedural law was brought to the attention of all participants. Substantive law, it was suggested, is best suited to Iraqi decision makers, whilst international experience might make a valuable addition to the consideration of procedural matters and the role that institutions might best play in enforcing and safeguarding the rule of law.
Participants were in particular warned not to underestimate the importance of the Courts, even if the Parliaments are at present the primary forums for legal discussion. International experience has frequently demonstrated how weak Courts can become instruments of political conflict, greatly undermining their capacity to safeguard the rule of law. It was advised therefore that efforts be made to strengthen Iraqi Courts, ensuring they remain independent and are given the powers needed to remain detached from political disputes.
The specific role that Courts play within a federal system was also given attention, with speakers reminded of the need to consider also the relationship between regional and national Courts in Iraq. This is a relationship, it was suggested, that has not yet been well defined, but which should be clarified as a matter of urgency in order to avoid future conflict. It was suggested a future meeting, with this as the main topic of discussion, should aim to draft a law in which authority is clearly demarcated and defined.
On the subject of criminal law, participants were reminded of the increasing complexity of criminal activity, and so the need for equally advanced legislation and investigation. A clear and modern conception of evidence, including forensic evidence, was suggested also as an important component of safeguarding and protecting the rights of particularly vulnerable groups, including women and children.
Reconciliation was an overarching issue during discussions, with several international examples demonstrating the need confront problems of the past before the process of reconciliation can be considered complete. The importance of ensuring that those guilty of crimes confess to these was presented by many speakers as an issue of particular concern, though many noted that this did not equate to a desire for revenge. The next generation, it was agreed, should be the primary focus for Iraq’s leaders.