The party-level statistics of the fallout from the latest round of de-Baathiciation are now beginning to filter through. This information was not obtainable from the accountability and justice board or the IHEC, since the only document leaked from them was a consolidated list of 511 banned candidates without any party affiliations given. However, the individual parties received lists of their de-Baathification “results” in the various provinces.
As expected, it is the secular and nationalist parties that are hardest hit. The biggest of them, Iraqiyya, has reported that altogether 72 candidates across the country are on the banned list, 22 of them in Baghdad. The Ahrar list, a much smaller nationalist party but one that is even more critical of Iran , says 20 of its candidates are on the black lists. We already know that the Unity of Iraq alliance headed by Jawad al-Bulani, the Shiite interior minister, and Ahmad Abu Risha, the Sunni leader of the Anbar awakenings, has been disproportionately hit even at the highest level, with several entity heads banned. It is a fair guess, therefore, that their share of the outlawed candidates may be even bigger than what Iraqiyya has. Finally, the Coalition of National Unity – which defected from Unity of Iraq soon after its inception but is a similar Sunni-Shiite secularist set-up headed by Nehru Abd al-Karim, an Iraqi nationalist of Kurdish origin – is also widely seen as a main casualty. It is therefore likely that these four parties may account for as much as half of the banned candidates, with the rest being made up of independents plus some symbolic cuts in the Shiite-dominated State of Law and Iraqi National Alliance (reportedly in the region of no more than 10-30 each, perhaps a convenient range for removing internal enemies given that the latter party effectively controls the de-Baathification process).
At the same time, remarkable pieces of information about the utter capriciousness of the entire process keep popping up. Perhaps the most brazen one concerns the appeals process. According to the accountability and justice act of January 2008, those covered by the legislation are supposed to have 30 days to appeal. But without any explanation, that has now been reduced to three days! Surely even diehard supporters of the de-Baathification board must realise the flagrantly despotic nature of that kind of approach. Also, as already suspected, it does seem as if the accountability and justice board has tried to exclude former Baathist regardless of rank, since a good deal of members at the firqa level (who are explicitly OKed for public service under the law from 2008) have reportedly been blacklisted.
Unpredictability and imaginative interpretation of the legal framework are not the unique preserves of the accountability and justice commission either. Today, there is a lot of focus on statements by the Iraqi president, Jalal Talabani, to the effect that Salih al-Mutlak should not be subject to de-Baathification, because he was not a “Saddamist Baathist”, meaning he left the party before Saddam became its leader in 1979. The move by Talabani to defend Mutlak is an interesting and positive one, perhaps finally reflecting some second thoughts in the Kurdish camp about the closeness of many of their Shiite Islamist partners to the most repressive corridors of power in Tehran. But again this is not particularly coherent in legal terms. The term “Saddamist Baath” occurs only once in the Iraqi constitution, in relation to the ban on Baathist revivalism (with regard to which it is questionable whether the de-Baathification committee has any mandate at all, since that paragraph is also part of a more general ban on racism and sectarianism). Conversely, the accountability and justice legislation from January 2008 – to which the whole de-Baathification process is supposedly linked – defines the entire period from 1968 to 2003 as Baathist, focusing instead on differentiation between various level of party membership.
Other creative proposals for dealing with the current crisis include a suggestion about public repentance and denunciation of the Baath by the affected candidates! Ali al-Dabbagh of the Daawa, among others, has said things that seem to go in this direction. But once more, this kind of ad hoc public parading of the accused without giving them a chance to explain their past in a wider context would be a contradiction of the general approach to de-Baathification followed by the powers that be in the post-2003 period, where public dialogue and “truth commissions” on the subject have been studiously – and, one suspects, conveniently – avoided. It is generally believed that a more systematic and public approach would show that the Shiite Islamist themselves have silently “un-Baathified” large numbers of former Baathists of their own sect, while publicly maintaining a fierecely anti-Baathist rhetoric.
Particular attention has been given to the alleged existence of a government-level document that declares the current de-Baathification board illegal following the failure by parliament to approve its new board on 12 December last year. This document – which of course only represents a point of view within the government and is not a ruling as such – has reportedly formed the point of departure for a move by Talabani and Tareq al-Hashemi (one of the vice-presidents) to obtain the views of the federal supreme court on the matter. This could be a promising avenue. The accountability and justice board is particularly vulnerable to legal scrutiny because the parliament in practice has cut and pasted those parts of the relevant January 2008 legislation that it liked, i.e. it has kept the old board without electing a new one in accordance with the procedures of the new law, but only weeks ago it super-imposed an appeals court where the procedures defined in January 2008 were adhered to (the old commssion had no appeals mechanism). It is, in other words, a half-finished job, and the inconsistency of the application of the accountability and justice law is therefore perhaps the most promising line of attack that could help solve this entire issue within the Iraqi framework. It would certainly be better to abolish the current de-Baathification board completely than to place much faith in the appeals process at the level of individual candidates. Two caveats, however: The federal supreme court did have a role in putting in place the appeals mechanism (it had already submitted candidates for the court to parliament several months ago and last week asked the council to approve them as a matter of urgency), and, like the current de-Baathification board, the FSC is itself a relic from the CPA area whose constitutionally-mandated replacement has yet to materialise due to the legislative logjam in the Iraqi parliament.