Iraq and Gulf Analysis

Archive for February, 2010

The Backlash from the Hardliners

Posted by Reidar Visser on Thursday, 4 February 2010 18:19

Perhaps the most surprising aspect about yesterday’s developments in Iraq was that the whole thing was allowed to proceed quite far before a reaction materialised. However, when it came – towards the end of the evening, when many Western newspapers were already in print – it was just as ferocious as one would expect.

Part of this confusion may have to do with the fragmented character of the communications from the Iraqi elections commission (IHEC) on the issue. For once, we heard a lot from Amal al-Biraqdar, who is thought to be the only commissioner with ties to Iraqiyya. She said the appeals court had “cancelled” the decision by the accountability and justice board to exclude more than 500 candidates. Hamdiya al-Husayni, who is considered to be close to Nuri al-Maliki, also conveyed the decision of the appeals board mostly as a fait accompli, although she did present it as a postponement rather than as an outright annulment. The head of the commission, Faraj al-Haydari who has a past in the KDP, went further then Biraqdar and Husayni in expressing doubt about the decision; none of the commissioners with ties to the Shiite-led alliance known as the Iraqi National Alliance – including Qasim al-Abbudi, who is the most prominent of them – made any public comment at all.

Since the IHEC on many occasions has followed the diktats of the accountability and justice board rather robotically, its apparent recognition of the reinstatements for some hours yesterday could conceivably have been interpreted as a signal from powerful figures in the Iraqi government (Kurds? Pro-American Daawa figures??) that enough was enough and that there had to be limits to a de-Baathification process that has been spinning out of control. And for a while, the Daawa was silent whereas the Iraqi National Alliance including Chalabi, Lami and their partners in ISCI and the Sadrists took the lead in condemning the decision and branding it “unconstitutional”. However, towards the end of the evening, Maliki, too, joined this chorus, and even some of his more pro-American advisers like Sadiq al-Rikabi went on record with criticism of the decision to reinstate candidates. It was, in other words, becoming clear that the Shiite Islamists were singing from the same sheet, probably to the satisfaction of the forces behind the de-Baathification drive.

Symptomatically, not one but two possible ways forwards have been sketched out today. Maliki has called for an extraordinary session of parliament (which had adjourned for the last time after passing the budget), to take place on Sunday. That means that even more politics will be injected into this affair, and it cannot escape notice that Maliki was already working on a rapprochement with some of the Shiites in the “other” alliance that would involve either a presidential veto of the budget or precisely an extraordinary session of parliament to put in place the special committee that will confirm some 115,000 positions in the state bureaucracy which Maliki had hoped would be taken care of prior to the elections (but which the other Shiites have continued to deny him as “penalty” for not joining their alliance).

Additionally, the IHEC says it will seek the opinion of the federal supreme court on the legal implications of the decision by the appeals court. Crucially, according to a statement by Faraj al-Haydari, it will only ask whether the decision is “binding” or not (figures in the accountability and justice board like Ali al-Lami and Khalid al-Shami have already expressed the view that it is not). Since the wording of the decision by the appeals board is not in the public domain, it is a little difficult to predict how the supreme court will react to this kind of query. However, if it is indeed correct that the board has tried to rule on the right of the banned candidates to take part in the elections (i.e. by stipulating a procedure for postponement until after the elections instead of simply ruling on their de-Baathification status) there is a danger that this may be seen as overreach with respect to the prerogatives defined in articles 15 to 17 of the accountability and justice act of January 2008. On the one hand, there is no doubt that the appeals court has the right to reverse decisions by the accountability and justice board, and that its decisions are “final”. It can clearly trump the accountability and justice board and the IHEC on the question of whether someone is subject to de-Baathification (in Arabic mashmul versus ghayr al-mashmul), and it would be scandalous if either of them tried to overturn the decision of the appeals court in this respect. But if the court has gone further than that in its decision by prescribing modalities for participation in the elections and for a post-election reassessment of the cases (as reported by Husayni), then things become more complicated and the decision may be more vulnerable to an attack on purely procedural grounds. It has to be remembered that whereas the federal supreme court is often referred to with optimism by secular Iraqis, it did produce a rather weak ruling last December when it had the opportunity to strike harder against the accountability and justice board and the IHEC. That said, it would be throroughly shameful if the court simply opted to describe the latest ruling as “non-binding” on procedural grounds while turning the blind eye to the many procedural infractions by the accountability and justice board itself, including most flagrantly the abrupt and unexplained reduction of the appeals period stipulated in the accountability and justice law from 30 to 3 days.

Meanwhile, the IHEC has announced that the start of campaigning, previously scheduled for 7 February, has been postponed until 12 February.

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Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues | 5 Comments »

Reinstated, for the Time Being

Posted by Reidar Visser on Wednesday, 3 February 2010 19:14

In an increasingly messy process, all the 500 plus politicians that initially had been banned from standing as candidates in the 7 March elections have reportedly today been given the green light to take part unless their names have already been changed unilaterally by the political entities affected by the ban.

The hard facts of this sudden reversal appear to be as follows. The seven-member appeals board that was abruptly appointed by parliament some weeks ago in an attempt at approximating the legal modalities set out in the January 2008 accountability and justice act has today issued a decision that all the appealed cases will be dealt with after the elections. It was the elections commission (IHEC) through two of its commissioners, Hamdiya al-Husayni and Amal al-Biraqdar, that transmitted this breaking news. The IHEC thereby seemed to imply its own approval, but at least in the statement by Biraqdar also seemed to ascribe responsibility for the decision to let the candidates take part to the appeals court (i.e. rather than to the IHEC itself; at least some sources talk of a straightforward “annulment” of the ban on participation by the appeals board.)

Of course it is good news that the elections will be more inclusive. It should however be stressed that several judicial aspects concerning the reinstatement process remain murky. Under the accountability and justice legislation, the appeals board has the final say with regard to the de-Baathification status of an individual. However, that piece of legislation was basically crafted to deal with de-Baathification in the state bureaucracy and has in principle nothing to do with the elections. The link to the elections is the election law, which in turn excludes candidates that are covered by the de-Baathification procedures. Accordingly, the ultimate decision on participation in this case probably rests with the IHEC and/or the federal supreme court. Although one would expect those institutions to mechanically follow the recommendation of the appeals board as regards the de-Baathification status of an individual (or muster exceedingly convincing arguments for overriding the board), it seems inappropriate for the latter to venture an opinion about participation in the elections as such. In this way, the rebuke by the appeals commission seems as legally ambiguous as the exclusions it was meant to deal with, at least if press reports out of Iraq today are anything to go by (it is Arbain holiday season so reporting may be substandard for that reason).

Predictably, the hardliner accountability and justice board has already made this point about the supposedly “independent” role of the IHEC in deciding on participation, and it also repeated that position just hours after the latest news on reinstatement of the banned candidates broke. The problem for the board is of course that it is itself so legally questionable both in its origins and its behaviour that it long ago lost the moral authority to employ such lofty concepts as “constitutionalism” and “legalism”. As for the IHEC, as late as yesterday it was busy implementing the orders of the accountability and justice board. More generally, in recent weeks it has increasingly appealed to CPA order 97 as a basis for virtually unlimited authority to restrict participation in the elections.

The apparent success of the appeals board in pushing through a move that in strict legal terms may be partially outside its jurisdiction suggests that the latest decision on reinstatement may have been taken elsewhere. Inevitably commentators will see certain parallels between today’s news and the initial American reaction when the ban was first announced some weeks ago. Back then, the idea in Washington was precisely to have the decision on de-Baathification postponed until after the elections. Accordingly, reactions by hardliner Shiite media such as Buratha news (which today described the latest development as a diktat by Joe Biden) should be unsurprising.

Nonetheless, Iraqi politics has for many months played out as an ugly wrestling match where no holds are barred and claims of “legality” and “constitutionality” are entirely fictional. Forces seen as supported by Iran launched its attack using the de-Baathification weapon; the hand of the United States is now seen by many in the recent move to reverse the exclusions. This could possibly reflect some continued American leverage in Kurdish circles and among some of the Shiite Islamists, but of course it also refers to the fact that the movers behind the exclusions have already achieved their main aim which was never exclusions per se but rather to have de-Baathification as a defining issue at the time of the elections.

At any rate, dirty tricks are being used on both sides. Still, in terms of the overall atmosphere of the elections this latest development will at least serve to create a greater sense of balance of power. The de-Baathification board tried to create an air of intimidation and the impression that they controlled the system; with the abrupt postponement of the de-Baathification process their opponents will now feel that the international community has intervened, albeit covertly and indirectly, and therefore somehow remains capable both of diagnosing systemic problems in Iraq and of responding to gross irregularities in the electoral process. Husam al-Azzawi of Iraqiyya today welcomed the latest development and went on to propose an even better solution: An emergency session of parliament that would simply get rid of the current de-Baathification board. That sort of catharsis is probably a too optimistic scenario, but today’s developments, despite their ambiguities in legal terms  – and maybe because of those ambiguities, which after all seem to reflect that the de-Baathification board still has some competition – may at least be a step in the right direction. Not least, they may go some way towards motivating Iraqis that are critical of the current system of government to at least try to change the system from within through taking part in the 7 March elections.

Posted in Iranian influence in Iraq, Iraq's 2010 parliamentary election, Iraqi constitutional issues, US policy in Iraq: Leverage issues | 25 Comments »

The Reign of Terror Continues in Iraq

Posted by Reidar Visser on Tuesday, 2 February 2010 17:12

It is not only suicide bombers that make up the problem of terror in today’s Iraq. Also the new republic itself is looking more Jacobin by the day.

After the French revolution, Maximilien de Robespierre in 1793 famously concentrated almost all power in a committee called Comité de salut public or the committee of public safety. Until its dissolution in 1794, this body fought a relentless war against real and imagined enemies of internal and external origin. Its preferred method for dealing with dissent was the guillotine; its year in power became known as “the reign of terror”.

In today’s Iraq, another committee is becoming increasingly important at the highest level of government: the de-Baathification board. Its procedures are different from those followed by Robespierre and his allies, but their impact is very similar: An atmosphere of fear designed to intimidate political opponents, increasingly on the pattern of what is going on in neighbouring Iran.

Developments over the past days have only underlined the extent to which the whole de-Baathification process has become politicised and devoid of any legal guarantees. After having previously presented a list of 511 banned candidates, Ali al-Lami of the de-Baathification board recently announced that a second batch of some 700 additional names was on its way to the independent election commission (IHEC). He also declared that the outcome of the ongoing appeals process for the banned candidates would not automatically mean reinstatement: That decision was for the IHEC to make, and would not necessarily follow the advice of the seven-member appeals court panel that has recently been put together. Meanwhile, the Iraqi parliamentary committee that supposedly exercises some kind of oversight over the de-Baathification board has suddenly declared that it is looking into the details of some of the appeal cases, after having initially given its stamp of approval for the first round of exclusions. In sum, it appears as if the idea of due process has been merrily abandoned in favour of an impromptu procedure that is being made up as we move along. Under CPA order 97 – the only legal authority to which these forces now bother to make reference – everything seems possible.

Just to underline the capriciousness of what is going on, late last night, Hamdiya al-Husayni, an IHEC commissioner who is close to the Daawa party, announced that a second batch of 57 names of persons that would be banned from running as candidates had been received from the de-Baathification board, incidentally meaning that around 650 names from Lami’s assessment on Sunday apparently had gone lost somewhere along the way. The commission has also announced separately that Zafir al-Ani, a breakaway leader of Tawafuq, has been banned, presumably reflecting the outcome of his appeal (Ani’s case, alongside that of Mutlak, was reportedly due to be reconsidered by the parliamentary sub-committee “today or tomorrow”; that has presumably been called off). Finally, the IHEC has declared that campaigning for the elections is to start on 7 February, thereby leaving no more than 4 weeks to the parties ahead of the vote, and opening the question of what will happen to any appeals related to the most recent batch of exclusions. (The idea has always been that campaigning will start when candidate lists have been printed and one would assume therefore that no campaigning takes place until the appeals process has been duly exhausted; however between today and Sunday, much of Iraq will effectively be closed down due to the Arbain Shiite pilgrimage marking the end of the 40 days mourning period for Imam Hussein.)

These infractions of basic legal principles notwithstanding, key players in the international community appear to be lining up to give their tacit backing to the de-Baathification committee. The latest addition is the head of UNAMI in Iraq, Ad Melkert, who in a recent meeting with Ammar al-Hakim of ISCI described the de-Baathification process as one based on Iraqi constitutional criteria. Previously, Vice-President Joe Biden expressed his support for the Iraqi process, followed by President Barack Obama who voiced general support for the Iraqi government in his State of the Union address. One can get the impression that Washington could end up sitting idly by, simply hoping that a minimum number of reinstatements of banned candidates will be delivered by the Iraqi system itself prior to the elections.

Election propaganda for the Iraqi National Alliance from the Buratha news agency warning about the return of the Baath

Perhaps most dangerous in all of this is the idea, held by a considerable number of influential think tankers in the West, that this is all a case of a misunderstanding and that most of the key players in Iraq in reality do not support the de-Baathification board – an idea that seemed to gain prominence not least after the recent visit to Washington by ISCI’s Adil Abd al-Mahdi. This view is deeply misleading, for two reasons. Firstly, it goes without saying that if the leading parties in Iraq really disapproved of the actions of Messieurs Lami and Chalabi, they could simply have dismissed them by a parliamentary vote. Secondly, when sweet talk by Abd al-Mahdi in Washington is translated as disapproval by ISCI of the de-Baathification process, this is just plain wrong. For one thing, leading ISCI media like the Buratha news agency and the Forat television channel have been pumping out anti-Baathist propaganda for months, creating a sectarian dimension to the issue by associating the potential rise of Salih al-Mutlak and other banned candidates with an upsurge of violence against Shiites and Shiite mosques. But even the polished Adala newspaper that is owned by Abd al-Mahdi himself publishes this stuff up front. For example, it has recently given ample space to Ibrahim al-Jaafari, who is part of their electoral alliance, and his defence of the actions of the de-Baathification committee. When Western commentators focus on reassurances offered in Washington they simply miss the bigger picture and the systematic attempt by the Shiite Islamist parties to have  de-Baathification as a defining issue ahead of the 7 March elections.

From Al-Adala, the newspaper of Adil Abd al-Mahdi

After the Jacobins, can Iraq stomach a Thermidorian reaction, a Directory, and a Bonaparte?  President Barack Obama, a Nobel laureate, should not leave behind a situation with this sort of violent potential.

Posted in Iranian influence in Iraq, Iraq's 2010 parliamentary election, Iraqi constitutional issues | 9 Comments »