WELCOME TO IWPR'S IRAQI CRISIS REPORT, No. 12, April 9, 2003

SHIAS DANCE FOR IRAQ Shias have special reason to celebrate the downfall
of Saddam, but will remain loyal to a sovereign Iraq as long as their
basic rights are respected. By Mowaffak al Rubaie in London.

JUSTICE AND THE DAY AFTER - THE TRIALS The US is likely to insist on
Iraqi courts under its authority, or US-based trials, but an international
court remains the best option. By Chibli Mallat in Beirut.

FROM DICTATORSHIP TO DEMOCRACY The real work of building a new Iraq
begins today, and their strong sense of patriotism may be the force that
helps Iraqis overcome their tragic recent past. By Peter Sluglett in
Oxford.

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SHIAS DANCE FOR IRAQ

Shias have special reason to celebrate the downfall of Saddam, but will
remain loyal to a sovereign Iraq as long as their basic rights are
respected.

By Mowaffak al Rubaie in London

In the last two decades, the level of state repression against the Shia in
Iraq has reached unprecedented heights, with mass expulsions,
expropriations, destruction of schools and colleges, and wholesale murder
and assassinations of the Shia leadership. Iraq is at a critical juncture
in its history. The tyranny that has been inflicted on Iraq will pass, but
the conditions that have allowed dictatorship to flourish must be removed
once and for all if we are not to fall back into another form of misrule
and oppression.

The airing in public of the sectarian issues facing Iraq does not subject
Iraq's unity to any serious threat. Ignoring the problem, or sweeping it
under the carpet because of some ill-defined "threat" to national unity,
only compounds the issue and is an affront to the memory of the multitudes
that have perished or suffered hardships and indignities because of their
sectarian identity.

The lessons drawn from Iraq's history are clear: the Shia have at no point
sought to establish their own state or unique political entity. Rather,
whenever the opportunity was afforded to them, they participated
enthusiastically in nationwide political movements and organisations. The
Shia, both in their Islamist and non-Islamist manifestations, have avoided
being dragged into separatist schemes and have been steadfast in their
commitment to a unitary Iraqi state.

Even today, where state anti-Shi'ism has reached unprecedented levels of
violence, the Shia have not raised the banner of withdrawal from the body
politic of Iraq.

The Shia's disillusioning experience with the circumstances that
underpinned the formation of the first Iraqi government in 1920 was the
defining factor in their political evolution. Although the Shia played a
pivotal role in establishing the conditions for an independent Iraq, being
the main actors in the Iraqi Uprising of 1920, the Iraqi state was
designed within clear sectarian boundaries, with the intention of
distancing the Shia and their leadership from decision-making structures.
The state never ceased to remind Sunnis of the alleged Shia menace and the
threat that the Shia allegedly posed to their rights and privileges.

The authorities' insistence on the continuing isolation of the Shia from
any meaningful exercise of power helped transform the Iraqi Shia into a
recognisable social entity with its own peculiarities, far from any
specific ideological and religious considerations. The Shia's opposition
to the state in Iraq is based on political rather than sectarian
considerations. In spite of the policies of sectarian discrimination, Iraq
has not witnessed social discrimination in terms of one community, the
Sunnis, consciously oppressing another, the Shia. The discrimination with
which the Shia have been afflicted is entirely the work of the state.

While the Shia in Iraq subscribe to numerous political and intellectual
groupings, it is the Islamist movement that acts today as the main
political drive for the Shia. Yet the Islamist parties in Iraq have an
explicitly Islamic, rather than sectarian, orientation. The condition of
the Shia in Iraq is such that they can owe allegiances to a variety of
political and cultural currents that are not necessarily Islamic in
direction.

Today the Shia demand the abolition of dictatorship and its replacement
with a democratic parliamentary constitutional order that carefully avoids
the hegemony of one sect or ethnic group over the others; the adoption of
federal structures with a high degree of decentralisation and devolution
of powers; the elimination of official sectarianism through the adoption
of specific political and civil rights that would eliminate the
disadvantage of the Shia; and the protection of the Islamic identity of
Iraqi society.

Iraq's federal structure would not be based on a sectarian division, but
rather on administrative and demographic criteria. This would avoid the
formation of sectarian-based entities that could be the prelude for
partition or separation. Ideally, a federal system would legislate for the
maintenance of Iraq's unitary nature while recognising the need to fully
accommodate Iraq's diversity.

In order to eliminate the accumulation of sectarian policies employed over
decades, a federal authority would be established with a remit to combat
sectarianism. This authority would examine closely the principles employed
for filling all senior governmental posts and would be charged with
adjudicating all complaints and cases of sectarianism.

A fund would be established to compensate all those who have been harmed
as a result of sectarian and ethnic discrimination and policies. A set of
laws would be introduced to abolish sectarianism and criminalize sectarian
conduct. A new nationality law would be introduced, based on a notion of
citizenship that would emphasise loyalty to Iraq rather than to any
sectarian, national or religious affiliation.

The key civil rights that have a special resonance for the Shia would
include their right to practice their own religious rites and rituals and
to autonomously administer their own religious shrines and institutions;
freedom to teach in their religious universities and institutions with no
interference by the central or provincial authorities; the right to
establish independent schools, universities and other teaching
establishments within the framework of a broad and consensual national
education policy; revising the history curriculum to remove all
disparagement of the Shia; official recognition by the state of the key
dates of the Shia calendar; repatriation of all Iraqis who were forcibly
expelled from Iraq, or who felt obliged to leave under duress, and the
full restitution of their constitutional and civil rights.

It is essential that all the elements of Iraq's political spectrum, as
well as the representatives of Iraq's varied communities, become involved
in the process of finding a way out of the terrible situation that Iraq
finds itself in now and which threatens its very survival. All these
groups must participate in the design of a new Iraqi state so that all
have a stake in the outcome and feel themselves true and equal partners.
This is the minimum requirement for rebuilding the Iraqi state on a new
basis.

Mowaffak al Rubaie is a founder of the Iraqi National Congress and
coordinator of its human rights committee.


JUSTICE AND THE DAY AFTER - THE TRIALS

The US is likely to insist on Iraqi courts under its authority, or
US-based trials, but an international court remains the best option.

By Chibli Mallat in Beirut

With the Iraqi regime disappearing into thin air, but none of its leaders
indicted, there is an urgent need to address the problem of what to do
with those responsible for serious violations of humanitarian law when
they are finally arrested. In the United States, the power behind the war
and - inevitably - the post-war, opinion is divided, with some appearing
to favour an international tribunal and others a military court on US
soil.

The oldest model of an international court for a special ad hoc tribunal
for Iraq would be that of the Nuremberg and Tokyo trials, modified by the
International Criminal Tribunal for the former Yugoslavia (ICTY) in the
Balkans. An ICTI seemed a few weeks ago to be favoured by Ari Fleischer,
the White House's spokesman. While Nuremberg and Tokyo were created by the
Allies, the ICTY and its Rwandan counterpart, the ICTR, were established
by the Security Council. This was a blessed but fugitive moment of unity
in the United Nations that has never been seen again.

While miracles cannot be discounted - the United States seeing an ICTI as
a way forward to legitimacy at UN level - the likelihood of the Security
Council acting is slim these days. The other possibility is to reinforce
the current International Criminal Court, but this requires a leap of
faith in Washington, which has so far rejected the new global tribunal.

Because the Security Council route is unlikely at present, justice for the
people of Iraq may well fall back to national, or mixed, tribunals,
established by those who might get hold of persons accused of massive
crimes.

National tribunals are of two sorts: those in a relatively neutral forum,
as in Belgium, and those where the prosecution appears to be on the same
side as the victorious party - whether that victorious party is national,
in this case the "Iraqi opposition", whatever this might mean, or
international, in this case the United States and United Kingdom.

In all cases, another difficult question arises about the number of Iraqi
leaders, Ba'ath party or government officials who might be tried. The
number matters, and is an unsolved problem. The ICTY has tended to
concentrate on the top leaders, leaving "small" and "medium" fish free
from prosecution. Two tribunals were set up for the Rwandan genocide: the
international one, which concentrated on the prime movers of the genocide,
has been notoriously inefficient; the national one, which had a broader
range, has a backlog of several thousand cases.

It is difficult to see how justice can be obtained in Baghdad. A new
government might pursue criminal justice on a wide scale, or it might not
rally enough legitimacy to pursue justice in any convincing manner.
Despite the better efforts of a group within the Iraqi opposition to
address this problem in a long paper on "transition", its report has a
blind point - the tragic record of the Kurdish leadership during
internecine fighting that took some 5,400 lives in northern Iraq in
1994-1996 - sometimes in atrocious circumstances. None of those who
committed these atrocities has been brought to justice. Justice for all,
and not just for victims of Saddam's regime, is imperative if Iraq is to
begin closing the most recent chapter of its tragic history.

Even more problematic would be finding Iraqi judges who would be up to the
task in a country where the rule of law has been undermined for half a
century.

The US could institute a Guantanamo Bay-like process, or even military
courts on US soil or possibly in Iraq, and recent reports have suggested
this is now the preferred way forward of the US State Department. As in
Guantanamo Bay, many questions would be raised. But a British court has
already underlined Guantanamo Bay's violations of international
humanitarian law and one hopes that a British presence would deter the
United States from a course that is universally perceived as failed
justice.

It is possible to conceive of a mixed international tribunal drawn from
the countries belonging to "the coalition of the willing". This would
lessen, but not entirely do away with, the negative image of victors'
justice.

My own preference would be for the United States to reconsider seriously
the value of the International Criminal Court. Despite the
administration's reservations, this is the best way to vindicate its war
in Iraq in the context of "liberating Iraqis from dictatorship". It would
open the files of one of the most brutal regimes of the 20th century to
the widest audience possible, as presently embodied in the ICC.

If an ICC route is not possible, then a special ad hoc tribunal could be
set up on the Yugoslav model for Iraq (or even better, for the Middle East
as a whole), if the UN can be so persuaded. Alternatively, the Belgian
route, to which should be added other jurisdictions capable of trying
those responsible for atrocities, could proceed.

With the case against Saddam Hussein and his aides getting tried in
parallel with the case already underway in Belgium, where Israeli Prime
Minister Ariel Sharon is accused of war crimes in Beirut's Palestinian
camps in 1982, the acute double standards which have plagued the Middle
East for a century might start being challenged to see not only that
justice is done - but is seen to be done.

Chibli Mallat, EU Jean Monnet chair in European law at Saint Joseph's
University in Lebanon, founded Indict in 1996 and brought the case against
Ariel Sharon in Belgium in June 2001. (See www.mallat.com) This article is
the second in a two-part series.


FROM DICTATORSHIP TO DEMOCRACY

The real work of building a new Iraq begins today, and their strong sense
of patriotism may be the force that helps Iraqis overcome their tragic
recent past.

By Peter Sluglett in Oxford

With the vanishing of regime, the real work begins. Since the Revolution
of 1958, Iraq has been under increasingly brutal forms of dictatorship,
culminating in that of Saddam Hussein since 1979. If what is happening now
is to have any meaning at all, it is essential that the long-term goal of
the "coalition of the willing" should be the construction of a functioning
democratic system in Iraq which will meet the needs and aspirations of the
country's long-suffering people.

However one views the present conflict, it has always been clear that the
Iraqi people could not overthrow Saddam Hussein and his circle by
themselves. So what will be the future of Iraq after Saddam? It seems
likely that some "acceptable" figurehead - or figureheads - will be put in
charge with the idea of forming a government of national unity. Alas,
there is no Mandela to be released from jail. Some 60 per cent of all
Iraqis have known no other regime than the monsters of Tikrit. Hence, one
of the enormous problems we all face is the daunting task of embarking on
a most colossal task of reconstruction involving a group of people,
Sunnis, Shias, Kurds, leftists and nationalists, who have little, and
maybe no, name recognition.

Sadly, the opposition in exile has not been very successful in getting its
act together - partly because, apart from the Kurds, the various
participants are not very representative of anyone but themselves. It is
perhaps unfortunate, to say the least, that some of the exiled
opposition's leading luminaries should have won so many hearts and minds
on the Potomac. While it is unfair to dismiss as self-seeking charlatans
members of the Iraqi National Congress, the most active US-backed
opposition coalition, is important to say that their names are barely
known inside Iraq.

Yet democracy, like the nation-state, is a given today, a broad political
structure that one is obliged to accept in the modern world. There was
little democracy in pre-1945 Japan and in pre-1945 Germany it had been
largely forgotten. It didn't form a large part of the political heritage
of pre-1947 India. Nevertheless, nearly 60 years later, all three states
can be described as more or less democratic. It will be the same in Iraq.

The political groupings that are present in Iraq today have developed, at
least in part, out of the spectrum of political parties and groupings that
inhabited Iraq between the two world wars. Despite concern about possible
Iranian interference in a post-Saddam Iraq, it is doubtful that religious
parties have ever had much appeal inside Iraq or that they would attract
much support once Iraq is liberated. While a minority of Iraqi Shias may
favour some aspects of recent developments in Iran, the Iranian regime
itself is in a state of great turmoil and can scarcely present an
attractive prospect to a people who have suffered more than 30 years of
the most terrible dictatorship.

Nationalism, especially pan-Arab nationalism in the form of Ba'athism, has
been a highly pernicious influence in the Middle East. It has been used as
a crude battle cry by regimes whose legitimacy is based almost entirely on
the fact that they claim to have inherited its mantle. Hence, as Saddam
Hussein might say: "I make these pan-Arab nationalist noises, and that
gives me legitimacy." But contrary to what is widely stated, Arab
nationalists never had a large following in Iraq. Arab nationalism, as it
manifested itself in Iraq and Syria, was not attractive either to Shia
Arabs or to Kurds, who together comprised about 80 per cent of the
population of Iraq. Hence there will be no role for the Ba'ath party in a
post-Saddam Iraq.

With the fall of Saddam and his henchmen, an initial government of
national unity will be essentially technocratic, trying to put a programme
of reconstruction together. This will inevitably be expensive, although
Iraq has the means to pay for a good deal of it. The task of national
reconciliation is an extremely high priority. So many people have been
killed, so many people brutalised into doing the killing - often, most
probably, to save their own lives. To achieve this, we should encourage
the growth not of nationalism, but of patriotism - the sense of Iraqis
together attempting to create a new national loyalty, preferably a kind of
federal united states of Iraq which would include an autonomous Kurdistan.

Strong states cohere because of the voluntary association of their
citizens in a series of common purposes. Weak states are weak because they
are held together by force rather than by consent. In this sense,
therefore, we should think about the creation of a new kind of Iraqi
nationalism, guided and strengthened by the restoration of democracy,
civil liberty, and the rule of law.

Peter Sluglett, professor of Middle Eastern History at the University of
Utah and visiting research fellow at All Souls College, Oxford, is
co-author of Iraq since 1958: From Revolution to Dictatorship.

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Copyright (c) 2003 The Institute for War & Peace Reporting

IRAQI CRISIS REPORT No. 12