De-Baathification and Criminal Charges: Patterns of Candidate Exclusion in Iraq’s Parliamentary Elections, 2014

Unlike previous years – and in particular the parliament elections of March 2010 and the provincial elections of January 2013 – the dispute about candidate exclusion ahead of elections has been somewhat limited with respect to Iraq’s upcoming parliamentary poll on 30 April. And to the extent that there has been a debate, it has focused on the question of whether candidates are of “good reputation” – a candidacy requirement enumerated in the Iraqi elections law – rather than on de-Baathification. Accordingly, whereas heated debates about the legacy of the former Iraqi ruling party made its mark on the past two elections (and especially so ahead of the vote in 2010), the focus this year has been on a dispute between parliament and the Iraqi elections commission regarding the interpretation of the requirement that candidates be of “good reputation “ – a dispute in which IHEC ultimately prevailed over parliament’s suggestion for a more restrictive interpretation.

The dual focus on de-Baathification and “good reputation” reflects the fact that legally speaking, apart from the basic age and educational requirements, there are two ways in which an election candidate can be  delisted from an Iraqi election. Either the candidate is excluded because he is subject to de-Baathification according to the de-Baathification law from 2008, or the candidate does not meet the “good reputation” requirement – something that in practice has been operationalized as the existence of multiple legal charges against an individual. This year, around 400-500 candidates were initially excluded because of de-Baathification, whereas around 70 were delisted because of a failure to fulfill the good reputation requirement.

Unfortunately, the source situation for analyzing how pre-election disqualification plays out in Iraq this year is far more problematic than previously. This is so because IHEC has departed from its past procedure of first publishing a provisional and then a final candidate list – a practice that allowed for statistical analyses of lacunae in the candidate lists resulting from procedures of exclusion. This year, only the final list has been published, meaning that the electoral blocs in many cases will have replaced excluded candidates with new ones, thereby effectively covering over the lacunae that enabled quantitative analysis in the earlier elections. Even though there are some lacunae also in the final list as well, it does not provide the same insights in the processes of exclusion that the combination of provisional and final lists did in the parliament elections in 2010 and the provincial ones in 2013.

Instead, the available material for 2014 consists of three things. Firstly there are lists of those excluded, around 400 names, which appeared in four separate batches released by the de-Baathification committee in early February . Second, there is a list of those excluded with reference to criminal charges (the first three batches along with the criminal  charges list is here; the separate fourth list is here). Thirdly, there is a list of those who were reinstated from the first two batches of de-Baathification subsequent to the appeals process (in some sources this has erroneously been described as a fifth exclusion batch). Importantly, the lists of those subject to de-Baathification give candidate names only, not list affiliation. It is therefore very difficult to pin down their party affiliation, especially so since many of them are not very prominent figures. Advanced name searches on them on Google in Arabic will rarely return any hits at all, even if a liberal number of name combinations is attempted. However, there remains a key to establishing some links between individual candidates and lists for at least a part of the material. This relates to the 52 reinstated candidates, who appear in the final list of election candidates and can therefore be identified by party affiliation.  Also, although no list of those reinstated in cases not relating to de-Baathification has been published, for the smaller number of reinstated candidates who were initially excluded with reference to the “good reputation” requirement it is possible to search through the final candidate list with the names of everyone who had been reported as excluded. It is noteworthy though, that in both categories – de-Baathification and “good reputation” – a large number of reinstated candidates appear to have opted to remain off the list, despite having regained the right to stand as candidates. One possible explanation, especially for candidate far down on the list, is that their lists may have deemed them to be more of a burden than an asset following the suspicions unleashed by their initial disqualifications.

Although these numbers are too small to conduct any kind of meaningful statistical analysis, they can at least provide a glimpse of the process. Specifically, the data relates to candidates who were attempted excluded by the de-Baathification committee or IHEC (which deals with the “good reputation” requirement in the first instance), and subsequently reinstated during the appeals process before the special appeals board for de-Baathification and the electoral judicial penal respectively. These cases of reinstatement highlight cases where the attempt to legally exclude candidates were found to be unfounded during the appeals process, making them particularly interesting for studying the question of political influences over administrative and judicial processes in the “new Iraq”.

Another general point worth noting is that, with respect to the “good reputation” requirement, the figures of reinstatement are much higher than for de-Baathificaton, with official judiciary reports saying that eventually only 15 out of around 70 exclusions were upheld by the electoral judicial panel. This group also seems less easy to predict according to sectarian variables, with cases arising as often in Shiite as in Sunni areas, and with some of the most prominent exclusions – such as the Sadrist Jawad al-Shuhayli – being of Shiite sectarian identity. Firstly, it should be remarked that exactly like in previous years, the general picture defies the easy, black and white classification schemes prevailing in Western media whereby de-Baathification is seen as something that almost exclusively affects the Sunni Arab minority because of its ties to the Saddam Hussein regime.  In fact, de-Baathification strikes across geographical, sectarian and party lines. As does reinstatement, with which this material deals.  To the extent that some parties stand out for being targeted disproportionately, it is true that the Sunni-secular parties continue to be most preponderant. Note, however,  that this material relates to ultimate reinstatement. It is therefore clear that Sunni-secular politicians in many cases manage to seek legal redress for what is perceived as political targeting by Shiite Islamist circles.

Looking at individual de-Baathification cases, it is interesting to see that some of the cases of reinstatement relate to persons who were excluded in 2010. For example, Saadi Faysal Abdallah al-Jibburi was excluded and his entire bloc struck from the ballot in 2010 because of de-Baathification allegations. Since the de-Baathification process relates exclusively to the judicial interpretation of pre-2003 events in Iraq, his reinstatement this year as a candidate on the list of Saleh al-Mutlak effectively means the Iraqi judiciary has overruled the 2010 decision to exclude him.

Other cases, however, do not inspire confidence as far as the integrity of the process is concerned, especially with respect to the actions of the de-Baathification committee as the initial screening centre for potential candidates. When he was disqualified in February, former Unity of Iraq deputy Shaalan abd al-Jabbar Ali al-Karim (currently a candidate of Ayyad Allawi’s Wataniyya) protested that  he had never been a member of the Baath and never formed part of the Iraqi security apparatus. He said he graduated in Islamic studies in 1991-1992 and subsequently worked in agriculture and commerce until the fall of the regime in 2003. His appeal was upheld by the appeals court, suggesting that the de-Baathification committee may once more have attempted to reach beyond the legal criteria for de-Baathification exclusion, based on a combination of Baath party membership rank (shaaba or higher), rank in the Iraqi bureaucracy  (DG or higher) and sector (for security -related backgrounds there are stricter requirements).

Again other cases are more mysterious and raise the possibility of simple name mix-ups, which has happened before. Many would be surprised that the number 2 candidate of State of Law in Basra, Hasan al-Rashid – a veteran of the Badr corps who spent a long time in exile in Iran – was included in the first list of de-Baathificatons. One possible explanation is that the way his name appears in the official lists – with names of himself, his father, his grandfather and great grandfather (Hassan Kazim Hassan Ali) – makes him identical to  an individual from Babel who has been de-Baathified previously. It is mystifying though, that IHEC should overlook such a basic error with such a prominent politician, but similar problems of name mix-ups have actually been reported in the past.

All in all, after looking at this material it is more tempting to conclude that corruption, capriciousness and the absence of due process are universal in Iraq  and do not discriminate between sects in the ways many outsiders claim. Recent reports of partisans of Ahmad Chalabi being targeted by Maliki-controlled security forces would only serve to underline this point.

Anti-Maliki Forces in the Iraqi Parliament Reach Another Milestone

In many ways, the approval by the Iraqi parliament this week of a Sadrist nominee as head of the country’s de-Baathification board is significant also as an indicator of the shrinking parliamentary support base of Prime Minister Nuri al-Maliki.

Ever since his accession to the Iraqi premiership in 2006, Maliki’s strength has been the ability to avoid outright showdowns with the Iraqi parliament despite persistent and growing frictions. In some cases, this has been done simply by letting parliament quarrel among themselves regarding key legislation whereas Maliki governs based on Baath-era laws: The oil and gas law is a case in point. In other cases of problematic legislation, Maliki has relied on the judiciary to strong-arm the national assembly into obedience. This approach proved itself successful in a number of cases – and perhaps most spectacularly so when the supreme court struck down early attempts to decentralize the provincial powers law in 2010, as well as in Maliki’s moves to attach the independent commissions administratively to the executive and to limit the right to question ministers. And again other potential conflicts have been defused in the last minute by the resuscitation of sectarian alliances, sometimes with reported Iranian support. First, there was of course the last-minute détente with the Sadrists that largely helped save Maliki’s premiership in early summer 2012 when things almost reached a critical level. As late as January this year, only months before the provincial elections, Shiite parties similarly sided with Maliki and failed to attend an emergency session of parliament intended as a show of support for growing political unrest in Iraq’s provinces. In sum, whereas Maliki is dreaming a lot about rather unrealistic visions of a “political majority” government, he has actually been quite successful in surviving with what is often not the “power-sharing” he posits as the lamentable reality, but rather a “political minority” government.

There have of course been exceptions, i.e. votes that were lost for Maliki or turned out in ways that were antithetical to his vision for Iraq. At the first such vote, the October 2006 law on the formation of federalism, one could argue that the Daawa had not consolidated its parliamentary base in any shape or form, and incongruously ended up supporting legislation which it would later bitterly oppose. Perhaps the most serious losses was the ascendancy of Ayyad al-Samaraie to the speakerhip in 2009, which was vigorously contested by Maliki but to no avail. More recently, Maliki twice tried to influence the formation of the Iraqi electoral commission – first by prematurely attempting to sack the incumbent one in July 2011, then by a failed attempt at inflating the number of commissioners in 2012. This was a harbinger of more serious things to come: Term limits on the premiership in January 2013, and provincial powers law revisions in June. There are reports Maliki allies are challenging some of these laws before the supreme court (and he may potentially have some success with the limitation of the premiership terms) but so far no clear decision has emerged.

Earlier this week, on 22 July, another such milestone for the critics of Maliki was reached. In a parliament session attended by no less than 243 deputies, a proposal to confirm the Sadrist Falah Hasan al-Shanshal as de-Baathification head was approved. Details on the vote are few, with some sources claiming “unanimity” and others suggesting some Maliki allies rejected it. Whatever the actual voting patterns, Maliki supporters have already indicated that they may once more complain to the federal supreme court.

The really important point though is that according to the accountability and justice law, the decision on the head of the de-Baathification committee must be made by an absolute majority, i.e. 163 out of the 325 parliament members. We must assume the decision was made in this way, and that an absolute-majority opposition to Maliki is beginning to consolidate in the Iraqi parliament. That is a threatening proposition even to a prime minister who has expertly sidelined the assembly in the past. Going forward to the parliamentary elections of 2014, he must especially be wary of the burgeoning coalition of Shiite Islamists (Sadrists and ISCI) and Sunnis/secularists (the Nujayfi bloc in particular) that reportedly pushed forward Shanshal’s approval.

Beyond the numbers, there is the strong symbolism of the personalities involved. Shanshal, of course, was sidelined by Maliki earlier this year after having attempted to remove Midhat Mahmud – the supreme court chief and a key Maliki ally in his efforts to keep the Iraqi parliament at an arm’s length. Now Shanshal is being reinstated, suggesting more criticism of Maliki’s regime of the deeper kind focusing on his relations with the judiciary could be coming up.

On a more humoristic note, the abnormally high attendance rates in the Iraqi parliament in July, in the middle of Ramadan, raise some questions about what is going on. Could it be related to superior provision of air condition at a time when most other Iraqis suffer in the 50 degrees Celsius heat? Surely, if the trend continues like this, the assembly might actually get things done, which would be a welcome change from the recent past in Iraqi politics.

10 Years after the Fall of the Baath, De-Baathification Remains Centre-Stage in Iraqi Politics

Whereas 20 March was a suitable date for reflecting on the background of the Iraq War and the role of the United States, 9 April – the date when the Baathist regime fell in 2003 – is above all about the legacy of the war and the nature of the new political regime that emerged in the post-2003 period. News from the Iraqi cabinet and parliament during the past week provides an interesting window on the state of play in democratic politics in “the new Iraq”.

On the one hand, there are certainly signs of a degree of normalcy within a political framework that must be described as competitive, if perhaps not as splendidly democratic as some enthusiasts for the war had in mind. Iraqi oil income is on the rise, parliament recently agreed on the distribution of revenue through the annual budget, and Iraq is beginning to resume contacts with the rest of the Arab and international world after decades of isolation under Saddam Hussein.

On the other hand, there are also indications about the limits of progress. An increasing number of  ministers in the Iraqi cabinet are acting ministers that do not enjoy parliamentary approval. This includes not only the all-important security portfolios, which were never agreed in the first place when the second government of Prime Minister Nuri al-Maliki was formed in December 2010. More recently, critics of Maliki including parts of the secularist Iraqiyya, Kurds and Sadrists have temporarily withdrawn ministers from cabinet meetings without resigning from their ministries, prompting the appointment of more acting ministers by Maliki and turf wars over ministerial influence.

And these are not the only problems. Maliki was recently summoned to parliament to be held accountable for the latest spate of serious security incidents; he responded by excusing himself, insisting he was too busy running the affairs of the state to indulge in conversation with the Iraqi national assembly. Similarly, in another move unlikely to inspire confidence in the security situation in the country, local elections scheduled for 20 April were postponed, probably in an illegal way, in two Sunni-dominated provinces bordering on Syria.

Look closer at some of the stories dominating Iraqi political news and a similar picture of a democracy that is just muddling through emerges. For example, in an interesting move, Qutayba al-Jibburi – a deputy who broke away from the secular and Sunni-dominated Iraqiyya to pursue dialogue with Maliki in 2012 – recently reported the full reinstatement of de-Baathified workers at the Bayji refinery thanks to his own personal efforts. Whereas the announcement was a positive indication that dialogue between Maliki and secular and Sunni leaders still remains possible, it was also a reminder about the extent to which processes that are supposed to be judicial are subject to political pressures and horsetrading in the “new, democratic Iraq”.

Similarly, this week, the Iraqi cabinet agreed on proposed revisions to the de-Baathification law, which in theory could provide a more enduring framework for national reconciliation. But the law, agreed by a cabinet full of acting ministers and with key blocs not represented, remains hostage to parliamentary approval. For the moment, the main problem in parliament is to get deputies to actually attend, with a series of cancelled meetings recently due to a lack of quorum.

What are we supposed to make of this? Factions that squabble but ultimately muddle through? Or just the same authoritarian politics of the past, with a higher number of Saddams in control?

The answer is, that question is still not settled. It is impossible to paint a truthful picture of Iraq today in black and white.

Perhaps the best way of illustrating this is to look at the latest developments regarding the cabinet proposals of changes to Iraq’s de-Baathification legislation. The reported changes to the existing bill from 2008, if adopted by parliament, would mean a somewhat more liberal approach to the question of what to do with high officials of the Saddam Hussein regime. Specifically, it is being proposed that former Baath party members of the firqa level – who have hitherto been considered disqualified for continued state service if they held positions as director generals or worked in the security, finance or foreign ministries – will be able to continue to serve in government.

The political background for this somewhat more permissive arrangement for ex-Baathists is rapprochement between Prime Minister Nuri al-Maliki and parts of the secular and Sunni-dominated Iraqiyya headed by Saleh al-Mutlak. Whereas  much of Iraqiyya has been boycotting both parliament and cabinet lately in protest against what they see as undue centralisation of power by Maliki, Mutlak has opted to return to cabinet alongside a few other ministers who disagree with the hardline stances of Iraqiyya leader Ayyad Allawi as well as Rafi al-Eisawi and Tareq al-Hashemi.

It is important to stress that a softening of the de-Baathification legislation is not something that uniquely benefits Sunnis or other secular Iraqiyya supporters. Maliki has himself relied on large numbers of Shiites who served Saddam, and the fact that their pasts were often brushed under the carpet created a major inconsistency in the way de-Baathification was applied. By way of example, embattled supreme court chief Midhat al-Mahmud is accused precisely of having been a firqa member of the Baath in Baghdad; the proposed changes of the law would make him eligible to continue to serve regardless of those accusations.

The key question, then, is whether the bill will be passed by parliament. When the debate gets going, it should serve as a good opportunity for Maliki to reach out to much-needed potential supporters among Sunnis and secularists and making his constant references to a “political majority” to something more than rhetoric. Already there are interesting signs that whereas the Sadrists are attacking the bill (as are members of the Badr), Maliki allies in parliament are defending it. For their part, Iraqiyya MPs would thoroughly stultify themselves if they reject the bill (which will benefit many members of their constituencies) out of sheer personal opposition to Maliki. Accordingly, with the Kurds currently boycotting parliament and often uncommitted in de-Baathification questions, Maliki now has the chance to cast himself as a moderate after he failed to play that role when de-Baathification came on the agenda during the months leading up to parliamentary elections in March 2010.

In sum, the progress in the Iraqi cabinet on the de-Baathification bill indicates an atmosphere very different from the visions of partition and regional conflagration that dominate media commentary on Iraq at the anniversary of the fall of Baghdad. Ironically, 10 years on, it seems that the pragmatic nuts and bolts of reinstating officials of the hated Baath may serve as a bridge-builder towards national unity as much as a source of conflict for Iraqis.

Patterns of Reinstatement in the Final Version of Iraq’s Local Elections Lists

Whereas the previous list of candidates for Iraq’s 20 April local elections had 8,099 names, the updated list published today has 8,138 names, meaning 39 more candidates have been approved following appeals processes, including de-Baathification appeals.

The changes are too small for elaborate statistical analysis similar to the one that was possible for the initial list, but the revised table of excluded candidates does show the same tendencies as regards conflicts between political entities and the elections commission IHEC as before the appeals process. The Sunni-majority governorates have been subjected to most exclusion of candidates, and the Iraqiyya list is also the main casualty. It is noteworthy, though, that both Saleh al-Mutlak and Usama al-Nujayfi have been somewhat more successful with their appeals than Ayyad Allawi’s mainline Iraqiyya list. Some symbolically important appeals successes include the reinstatement of the top candidate of the Mutlak list in Baghdad and number 3 of Nujayfi in Nineveh. Conversely the top candidate of Iraqiyya in Anbar and its number 5 in Nineveh and number 6 in Karbala remain excluded. Maliki had only problem with a single candidate (in Basra); he was reinstated.

Since Mutlak and Nujayfi had relatively few candidates excluded in the first place, it is perhaps not worthwhile to push this finding too far. Politically, of course, Mutlak is at the moment engaging with Prime Minister Nuri al-Maliki by returning to cabinet (alongside the Hall faction), whreas Nujayfi remains in opposition to Maliki (Iraqiyya has reportedly brought the delay of local elections in Nineveh and Anbar to the attention of the federal supreme court). Nonetheless, Mutlak’s relative success in the reinstatement round along with his return to cabinet yesterday following his role in the recent passage of the annual budget in parliament with Maliki’s first “political majority” triumph of significance (the slim majority of 168 reportedly also included Free Iraqiyya and White among the Iraqiyya breakaway factions) are indicators of the continuing potential for cooperation between him and Maliki. Whereas many voices in Washington are critical of the recent passage of the budget in parliament because it was done in opposition to the Kurds, the fact that Mutlak now returns to cabinet in the middle of a crisis between Maliki and the Sadrists is actually not the worst thing that could happen in Iraqi politics.

Still, with the decision by Maliki to run all-Shiite lists in the northern governorates, the chances for there to be much positive bridge-building towards people like Mutlak in the aftermath of the elections, as to some extent happened in 2009, remain limited. That in turn means that Maliki remains faced with the challenge of brining Sunni and secular partners more decisively into his on coalition if he wishes to persevere with the political majority project he so often likes to mention.

De-Baathification in the Iraqi Provincial Elections by Governorate and Political Entity

Exactly as in the 2010 parliamentary elections, the release of official candidate lists for the 20 April local elections is a two-tiered process. An initial batch of approved candidates – the majority of 8,099 vetted candidates – has been released first. Candidates that have been struck from the lists due to problems with their candidature have their names suppressed in the first list, but they can appeal. If they succeed, they will appear in an addendum to the official candidate lists, to be published by IHEC separately.

Also like in 2010, it is possible to use the statistics of omitted candidates from the released lists of candidates as an indication of de-Baathification issues and how they affect different political entities and geographical regions of Iraq. True, omitted candidates also include a minority of people whose exclusion may relate to other factors, such as criminal charges or forged documents. There are also a host of other methodological issues to keep in mind. Nonetheless, since the majority of the omissions appear to relate to de-Baathification, these statistics do offer a sufficiently distinctive picture to say something about how people’s relationship with the old Baathist regime are still having an impact across Iraq .

The picture that emerges from a tabulation of this data is quite clear, and very similar to 2010. In terms of party allegiances, the Shiite Islamists and Kurds generally have few problems with de-Baathifications. It is noteworthy that whereas Prime Minister Nuri al-Maliki did have some de-Baathification issues in 2010, this time his lists have been mostly untouched by the de-Baathification committee. On the other hand, the secular and Sunni-dominated parties are represented disproportionately among the entities targeted for de-Baathification. Iraqiyya stands out, accounting for the lion’s share of all likely de-Baathification cases. A similar fate has befallen some (but not all) of the Iraqiyya splinter groups, a case in point being Free Iraqiyya. (Conversely, White, the mainly Shiite breakaway group from Iraqiyya has apparently not experienced any nomination trouble at all.) The unwavering cross-sectarian partisans of Nadim al-Jabiri and Mahmud al-Mashaddani have only managed to put up a list in Baghdad; it too seems to have a few cases of de-Baathification. Three interesting but far less known entities are 429, 492 and 517. All of them stand out for making an attempt at running in several provinces, and all of them figure disproportionately among the likely de-Baathification cases. They include Wasfi Asi Hussein, the leader of list 517 who ran with Maliki in 2010; he is now contesting Baghdad and Anbar. Other local (i.e. one-governorate) lists with notable nomination trouble include 401 and 435.

Geographically, it is also a well known story we are dealing with. South of Baghdad, there is now hardly any de-Baathification at all after an extra-judicial witch hunt of anyone with ties to the Baath blossomed during the months prior to the March 2010 parliamentary elections.  The majority of de-Baathification cases are from the Sunni-majority areas as well as the capital Baghdad, with Nineveh taking the biggest share of the total. It is noteworthy though that the generally close ties between the northern regions and the regime affect even candidates on the Shiite and Kurdish lists. The few cases of Shiite de-Baathification issues that can be found arise in the north, and even Kurds in Nineveh appear to have problems getting some of their candidates approved.

One final indicator worthy of consideration relates to the list rank of the de-Baathified and disapproved candidates. With respect to some entities – again often the Shiite parties – the few cases of excluded candidates that appear are far down the list and may relate to sloppy documentation and oversight by the party leadership who may not care that much what happens to bottom-of-the-list candidates. However, certain lists have seen their top candidates slashed in what amounts to highly symbolic moves against their leaderships. One example is the list of Iraqiyya politician Saleh al-Mutlak in Baghdad, which has yet to get its top candidate approved. (Maybe Mutlak’s reported support for Maliki recently in settling the budget against the wishes of the Kurds will help him once again.) Other such entities include list 429, which seems to be the personal creation of one Rushdi Saidi who is presumably the top candidate in Baghdad for whom approval remains lacking. Same story with 468 in Karbala and 505 in Diyala. These are lists and figures worth keeping an eye on simply for the fact that the de-Baathification committee finds it worthwhile to target them at the top.

Of course, this year’s de-Baathification purge comes against the backdrop of the big controversy relating to Midhat al-Mahmud, the supreme court chief. Mahmud was recently himself subjected to de-Baathification, although the de-Baathification appeals board subsequently approved his appeal and reinstated him, saying they found no trace of any connection to the Baath. That is somewhat hard to believe given Mahmud’s elaborate CV of achievements in the judicial system of Iraq since the 1990s, but then again it would be an exaggeration to say that the de-Baathification law has been applied to the letter since it was passed in 2008. The political context of the reinstatement of Mahmud suggests the Sadrists caved in to Prime Minister Nuri al-Maliki in this case by letting the prime minister replace the Sadrist head of the de-Baathification board – and perhaps with the message that de-Baathification needs not be applied quite so strictly when it comes to Shiites. Recent Sadrist alignment with Maliki to get the budget passed despite the demands of the Kurds and the boycott of Iraqiyya is an indication of the same trend. Judge Midhat has quickly moved to reassert himself by sacking the court spokesperson and striking down a piece of legislation passed by the Iraqi parliament without consulting the government; the recent attempt to limit the term limits of the prime minister will likely suffer the same fate.

Regarding this latest act of mass de-Baathification, the statistics speak for themselves as regards who is being hit. It should be added, though, that if the law had been applied evenly and if the appointment of the de-Baathification board had been less politicised there would probably have been greater numbers of disqualifications on both sides, among Sunnis and Shiites alike. Many ex-Baathists of either sect are probably able to run simply thanks to wasta (informal patronage) rather than fulfilment of the judicial requirements – consider for example how unscathed the list of parliament speaker Nujayfi is.

A “state of law” it certainly isn’t.

The Political Dynamics behind the Downfall of Midhat al-Mahmud, Iraq’s Supreme Court Chief

News out of Iraq indicates that the country’s de-Baathification committee has decided to remove the supreme court chief, Midhat al-Mahmud, because of his ties to the previous Baath regime.

In some ways, the ruling is not really controversial: It is widely agreed that Mahmud’s leading positions under the former regime are in conflict with the requirements of the de-Baathification law from 2008 which are particularly strict when it comes to leadership of judicial institutions. Everyone knew that Mahmud had those ties to the former regime; his tenure at the supreme court was simply seen as one of many exceptions to the rule in the new Iraq whereby some Baathists were granted permission to stay on if they proved useful to people in positions of power – and in particular to Prime Minister Nuri al-Maliki. Additionally, Mahmud’s continued tenure as an octogenarian seems to be a conflict with a law still in force stipulating age limits for retirement of Iraqi judges at 68.

Thus, rather than reflecting new legal realities or path-breaking judicial interpretations, the new situation regarding Mahmud has to do with a changing political dynamic in Iraq. Ever since the Shiite Islamist Sadrists and ISCI with Iranian support pushed the de-Baathification issue to the forefront in Iraqi politics ahead of the March 2010 parliamentary elections, there has been a shift of power towards Sadrist dominance of appointments to the de-Baathification committee and other legal institutions involved in the de-Baathification process. This was seen not only in the appointment of a new de-Baathification committee in May 2012. Also the composition of the appeals court for de-Baathification cases (to which Judge Midhat may now appeal) was influenced by Sadrist pressure in parliament. Finally, the recent passage by the Iraqi parliament of the law for the higher judicial council, which to some extent prepared the ground for the elimination of Judge Midhat, was seen as a bid by the Sadrists along with the Kurds and the secular and Sunni-dominated Iraqiyya to put pressure on Maliki.

It is hard to overestimate the significance of this move against Prime Minister Maliki. Since 2008, the Iraqi federal supreme court has increasingly been seen as an ally of Maliki, often issuing rulings that strengthened the executive in ways that seemed in conflict with the constitution or even the court’s own past decisions.  Tareq Harb, a lawyer close to Maliki, often prevailed with his arguments before the supreme court. Maliki, emboldened by judicial support, appeared to pay ever less attention to the fact that his parliamentary support base is in fact very limited. During the no confidence crisis of spring 2012 he failed to build bridges to disaffected factions of Iraqiyya and had to rely on support from Iran and the Sadrists to avoid getting unseated. To some extent then, this latest move is parliament paying back for Maliki’s arrogant approach to them.

For these reasons, some will no doubt construe the de-Baathification of Mahmud as a welcome check on Maliki’s authoritarian tendencies. Still, those who celebrate this move should take into account the fact that the campaign against Midhat has been spearheaded by Shiite Islamist hardliners in the Sadrist camp. We can now ask the question of who the Sadrists will attack next using de-Baathification as a tool. For example, many of Maliki’s generals are also due for retirement if the de-Baathification law were to be followed to the letter. Some of these generals are part of the backbone of the system of relative security that has emerged in Iraq since 2008.

The secular and increasingly Sunni-dominated Iraqiyya’s support for the move is particularly ironic since Mahmud in many ways was one of them in the past. Their embrace of the decision (“finally the de-Baathification committee is taking on a Shiite” according to parliament speaker Nujayfi) in some ways goes to underline their own increasingly Sunni sectarian position. It could be argued that what we are seeing in practice here is that Iraqiyya effectively supports Kurdish separatist policies and Sadrist Islamist policies at the same time in order to weaken Maliki. It’s actually not the first instance of this either: Recently Iraqiyya asked the all-Shiite National Alliance and the clergy of Najaf to come up with a candidate to replace Maliki, thus similarly reiterating the idea of sectarian alliances and even a role for the clergy in politics. It is true that Maliki has failed to make political gain from the only remaining issues where he can expect to win some Sunni and secular support – anti-federalism and disputed-boundary conflicts with the Kurds – but Iraqiyya’s actions show that we should not one-sidedly accuse Maliki of being the single factor behind the recent increase in sectarianism in Iraq.

In some ways, Judge Midhat’s continued tenure at the supreme court symbolized the contradictions of the “State of Law” Iraq where the law makes surprising twists and turn and is certainly not applied equally across the board. But the political direction of all of this –  with the Sadrists in an attack position and general sectarian polarization in the region thanks to the Syria conflict – suggests that in the long run, the situation in Iraq may be exacerbated rather than alleviated by these latest developments.

Iraq Gets A New De-Baathification Board but the Supreme Court Becomes a Parody

It’s an indication of why Iraq is not unraveling completely: In the midst of political crisis, the Iraqi parliament today actually managed to approve a new de-Baathification board. The decision on the issue had been stalled since 2009. After the death of former director Ali al-Lami in May 2011 an acting official close to Prime Minister Nuri al-Maliki had taken care of the de-Baathification file.

Of the seven new members who were nominated by the cabinet, two were Kurds. Those were incidentally the same Kurdish candidates that were nominated back in 2009. Today’s official parliament report mentions only one of these two and some press reports say one candidacy was withdrawn by the cabinet. Accordingly, it is quite possible only 6 members were agreed after all, which in itself is legally dubious. At any rate, two other members of the new board are close to the secular Iraqiyya party: Muzahim Darwish al-Jibburi, a former minister of state who lost his job after the cabinet was downsized last summer, and Faris Abd al-Sattar, a lawyer from Mosul who has previously worked for the Nujayfi brothers there. The remaining three commission members are connected with Shiite Islamist circles. Falah Hassan Shanshal is a Sadrist. He is considered a hardliner in de-Baathification issues and is seen as a frontrunner for the presidency of the commission. Like several other members he is a victim of the former regime in the sense that he has been previously imprisoned. Jabbar al-Muhmamadawi is also thought to have ties to the Sadrist milieu whereas Basim Muhammad al-Badri is probably linked to the Daawa.

The commission of 7 members makes its decisions with a simple majority of 4. In other words, the 3 Shiite Islamists will need at least one Kurd on their side to push through their agenda. Reflecting their electoral success in 2010, Iraqiyya is better represented than in the original commission proposed by the Maliki government in 2009. At that time, Maliki had hoped to install Walid al-Hilli, a party ally, as chief of the new commission; conversely the Daawa is less prominent in the current commission line-up. Still, the fact that the board was approved by the Iraqi cabinet suggests Maliki probably considers he can live with it.

It is reported that the vote went ahead in parliament without any major protests. (By way of contrast, Iraqiyya once more successfully obstructed the vote to sack the mayor of Baghdad of ISCI against the wishes of some Maliki allies and possibly the Sadrists as well.) The overall parliamentary attendance figure was given at 195. No split vote was reported nor were any massive walkouts mentioned.  In other words, the de-Baathification board decision does seem to be one of those rare cases in Iraqi politics where every side is satisfied. One possible interpretation of how it succeeded is that Maliki’s Daawa is apparently taking a back seat and is leaving the role of being Baathist hardliner to the Sadrists.

Today’s vote on the de-Baathification commission is interesting also as a possible harbinger of dynamics at an upcoming important vote in the Iraqi parliament: The approval of a new election commission (IHEC). Both these votes can be done legally with a simple majority. However, with respect to IHEC, Maliki is more determined to have the current board replaced since its make-up dating back to 2007 antedates his own rise to power.

Alas, there was also another possible harbinger of future trends in Iraq today. After weeks with pressure on the minister of higher education to appear before parliament for  questioning (and with an apparent ultimatum for him to do so this week) the Iraqi supreme court today produced a very timely ruling, as least as far as the minister’s point of view is concerned. In fact, the request for a constitutional clarification was dated as recently as 30 April, meaning that the court has been unusually effective. It should be added that the minister in question, Ali al-Adib, is from Maliki’s party.

Perhaps it is its effectiveness that has led to what must be described as one of its most scandalous rulings ever, perhaps second only to the Byzantine piece of jurisprudence pertaining to the independent commissions that it produced last year. Basically, the query is about the interpretation of article 61-7-c of the constitution. That article is very simple. It enables 25 deputies to request the questioning of ministers in order to “hold them accountable for matters within their specializations”, with at least seven days between the request to the actual hearing. And that is it.

But the ruling of the supreme court is far more complicated! It appears to say such requests must be accompanied by a specification of alleged constitutional and legal infractions and must define breaches and material damages in terms of criminal procedure. The court goes on to say questioning is the highest form of supervision parliament can exercise and considers it tantamount to withdrawing confidence in the minister.

The problem is, absolutely none of this can be found in the constitution. Actually, the court also refers to article 58 of the parliament bylaws, but the basis for the new interpretation just isn’t there either and the legality of those bylaws – currently under review – is disputed anyway. Certainly, most cases of Iraqi ministers being questioned in the past seven years have been void of specific accusations of criminality.

What we have here is a very clear case of the Iraqi supreme court producing a ruling that seems politically biased to the point where it apparently overrules the Iraqi constitution and the right of parliament to hold ministers accountable. Hopefully Iraqi politicians will use the specific problems at hand here – rather than the fantasies of the Arbil agreement, which in itself is full of unconstitutional and extra-constitutional ideas – to frame a reasonable debate about the independence of the Iraqi judiciary. They have got plenty of time to do so, because parliament is now on holiday until 14 June.

More Anti-Baath Legislation in Iraq

The Iraqi parliamentary cycle has kicked off again following the Eid al-Adha holiday. Perhaps serving as a harbinger of legislative priorities over the coming months, a bill outlawing the Baath and parties supporting racism, terrorism, takfir and sectarian cleansing was giving its first reading. This represents an attempt at implementing the law called for under article 7 of the constitution that was not ready before the March 2010 parliamentary elections – which instead saw massive attempts at extra-judicial and vigilante de-Baathification.

As usual, the bill itself is not published by parliament when it is merely on the stage of the first reading. Nonetheless, it seems likely that the bill read today was more or less similar to the one that was prepared by cabinet this summer and was leaked in some media. The parliamentary committees charged with handling the bill (security & defence, de-Baathification and legal) may have introduced minor changes along the way.

The draft bill is quite short. To some extent it stays truthful to the constitutional requirements for banning the Baath and parties supporting terrorism, racism, takfir (labelling others as unbelievers) and sectarian cleansing – though it falls short of defining those ideologies it is seeking to outlaw other than the Baath. For good measure, parties that are “against the peaceful transfer of power” or against the constitution itself or the “principles of democracy” are banned as well.

The bill then goes on to ban all possible forms of support and promotion of the Baath party. It further says that these measures also apply to parties promoting the other outlawed ideologies.

Perhaps the most important and potentially controversial aspect of the bill is the creation of a committee that will oversee the law and hand over potential cases to the prosecution. This committee will be headed by the minister of state for parliamentary affairs, with members from the ministries of justice and human rights, the head of the consultative state assembly and two judges. As is well known, the minister of state for parliamentary affairs and the ministries of human rights and justice (which also administers the consultative state assembly) are all dominated by members of the grand Shiite alliance to which Prime Minister Nuri al-Maliki owes his second term. Of course, this all comes at a time when there is already evidence that vague accusations of Baathism are being used to settle political scores.

The law then goes on to stipulate severe prison terms – mostly in the range from five to ten years – for offenders. In this section it also goes beyond the constitutionally mandated focus on political parties to also define punishment for government official discrimination on sectarian or racist grounds. There is also specific mention of the crime of forcing someone to leave his or her home for “sectarian, religious or nationalist” reasons.

The biggest problem with the draft law is the combination of vague criteria (what exactly constitutes “racism”?) and the designation of a supervisory committee that inevitably will be seen as political. For example, some of the claims by the two biggest Kurdish parties to annex to the Kurdish region outlying areas where minorities of Kurds live can hardly be defined as anything other than “racism”. Similarly, the tendency of some parties to define certain governmental posts as belonging to particular ethnicities, be they Kurds or Arabs, would also seem to constitute racism. It is noteworthy that in line with the constitution, sectarianism is not outlawed as such, only sectarian cleansing.

The full details of today’s debate regarding the first reading have yet to be published. It will be interesting to see which Iraqi deputy dares to be the first to demand ethnic quotas for the committee overseeing the anti-racism bill.

The Latest Wave of Arrests: Baathists and Terrorists Are Two Different Things

The full picture is only beginning to emerge after two days of widespread arrests involving hundreds of people across Iraq. Most of those arrested are described as “Baathists”, with vague accusations about plans to subvert the political process in Iraq after the US withdrawal.

The prosecution has yet to speak on these cases, but disturbing language has been employed by those who carried out the arrests: In many cases their choice of words suggests those arrested were not targeted for any specific planned act or terrorism or even for lauding the Baath party, but simply for having been members of the Baath party in the past. In yet other cases, vague accusations of terrorism are coupled with specific information about membership levels in the Baath party. Here are some excerpts from the initial reports:

On 24 October, 28 persons were arrested south of Kirkuk, “among them 12 of the firqa or shaaba membership level” in the Baath party according to local police sources.

On 24 October, police sources in Diyala said 15 persons in Muqdadiyya had been arrested, mostly firqa members of the Baath.

On 24 October, police sources in Babel said 50 persons had been arrested, among them firqa and shaaba members of the Baath.

On 25 October, sources in the security committee in the Basra governorate said 30 persons had been arrested, some of whom were members at the firqa level.

On 25 October, security sources in Diyala said more than 30 persons had been arrested across the governorate, including some firqa level members of the Baath.

Why are these sources so obsessed with membership rank? A terrorist is a terrorist no matter what background he or she has, right? The systematic reference to membership ranks instead of specific accusations of terrorism strongly suggests that a dangerous conflation of the concepts of “Baathists” and “terrorists” has taken place, and that some are being arrested simply for having been a member of the Baath in the past rather than for any specific criminal act.

Suffice to say in this context that the Iraqi constitution actually offers pro-active protection of former members of the Baath. Article 135-5 explicitly says “mere membership of the Baath party is not a sufficient basis for transfer to the court”. Article 7 of the constitution outlaws propagation of a number of political ideologies where Baathism is mentioned alongside racism, terrorism and ethnic cleansing, but stipulates the passage of a law by parliament to codify this more precisely, which has yet to be done. In other words, there is no basis whatsoever for prosecuting anyone for simply having been a Baathist member – and arguably, at the current time, not even for propagation of Baathism since this is not covered by any specific form of legislation.

The systematic information about membership levels strongly suggests this is an attempt to refer to Iraq’s de-Baathification legislation from 2008. But it is a flawed attempt. The de-Baathification legislation is only interested in membership level as a principle governing the reinstatement of former Baath officials in the public sector. High levels like shaaba members are not allowed to return, but firqa members are specifically allowed to return with the exceptions of security, intelligence and diplomatic services. The de-Baathification act does not in itself offer specific procedures for dealing with allegations of Baathist sympathies.

This is of course not the first time vague accusations of Baathism are being used as a basis for vigilante witch hunts against political opponents in Iraq. The pro-Iranian Shiite Islamist parties made such efforts the centrepiece of their election campaign in 2010, and Prime Minister Nuri al-Maliki eventually jumped on the bandwagon, too. In this most recent case, the wave of arrest was preceded by a campaign of sacking personnel from the higher education sector headed by Maliki ally Ali al-Adib, where again ideas about de-Baathification and allegations of “incompetence” made up an uneasy mix. At the local level, outright attempts by Shiite Islamist parties to actually overrule the de-Baathification legislation were noted both in November 2010 and in June 2011.

The arrests were mostly carried out by the ministry of interior. As is well known, the acting minister of interior is Nuri al-Maliki himself, suggesting this could all be yet another element in his minority-government strategy.

The consequences for the climate of Iraqi politics are palpable. Sunni-Shiite issues over de-Baathification, Sunni interest in federalism… These are certainly good days for the Kurdish leader Masud Barzani to visit Kirkuk! For good measure, some reports also suggest the Iraqi judiciary has now decided to drop charges against Muqtada al-Sadr for his involvement in the murder of Abd al-Majid al-Khoei in 2003. (Today, in turn, Sadr expressed support for what the government is doing with de-Baathication in higher education.)

It was reported yesterday that Izzat Shabandar, the State of Law Alliance strategist in chief for dialogue between Maliki and Sunnis and secularists, did in fact attend a crisis meeting of Iraqiyya. His cause, if it even exists anymore, must now be something of an uphill struggle.

Nomination Trouble for the De-Baathification Appellate Bench

Remember the special appeals court for de-Baathification cases? That’s the Iraqi judicial entity of seven judges that came into existence in January 2010 in a supposed attempt at harmonising the laws in force on de-Baathification with the process of vetting candidates for the March 2010 parliamentary elections. Of course, that attempt failed miserably and resulted in gross miscarriage of justice against hundreds of candidates, including such prominent Iraqiyya figures as Salih al-Mutlak who was barred from participating on the basis of a non-existing law.

While it is true that the Iraqi federal supreme court must shoulder ultimate responsibility for the failure to apply due legal process to the mechanisms of electoral candidate approval back in early  2010, the de-Baathification appeals court also played a certain role. However, after the parliamentary elections the court has been less prominent and the reason is very simple: After two judges were pensioned and one was killed, by September 2010 it no longer had any quorum to make decisions.

Early attempts by the Iraqi parliament to install replacement judges were aborted thanks not least to the efforts of the militantly anti-Baathist Bahaa al-Aaraji of the Sadrist movement. Last week, another attempt was made (the Sadrist are also worried about the lack of quorum on the court, since “Baathists continue to serve in government”), but again the process ran into trouble: Only two new judges were approved, whereas two others were left unconfirmed – ostensibly pending the examination of their curricula vitae by parliament, but with rumours about past Baathist ties swirling around (and with Maliki allies in his  State of Law alliance featuring prominently in the proliferation of those accusations).

The process of filling the appellate bench with new members illustrates the problems of reconciling old Iraq and new Iraq. The two judges that were cleared by parliament last week were Jalil Khalil Shakir and Sulayman al-Qaradaghi. Judge Jalil is a Fayli Kurd and his approval by parliament was loudly celebrated by Fayli Kurd media of a rather ethno-sectarian calibre: They even forgot to mention the outcome of the remaining nomination attempts! As for Judge Sulayman, his family name (Qaradaghi) could be Kurdish and could be an indication that he is a replacement on an ethno-sectarian quota basis for the Kurdish judge of the previous bench that was killed.

But two of the other judges that were also likely nominated on an ethno-sectarian quota basis were not approved by parliament. This applies firstly to Numan al-Bayati, whose family name sounds Turkmen and in fact is the same as one of the retiring judges (Hamid al-Bayati). The second case relates to Yas al-Saadi – was he intended as replacement for the retiring chief of the court, Muhammad Sahib al-Khafaji? In those cases, despite the quota imperatives, legacies of the past were not readily accepted by parliament, once more underlining how the previous regime was so much more than a bunch of relatives of Saddam Hussein from Tikrit. More broadly, this relates to a general problem that has delayed the passage of a new law for the federal supreme court:  In Iraq, it is almost impossible to find qualified judges with decades of experience that do not have any ties to the past regime. That in turn has prompted some of the Shiite Islamist parties to demand changes to the draft law on the new supreme court (which was prepared by the existing court). In particular, they want lower service thresholds for nomination to the new court.

Unless the Iraqi parliament can find pragmatic and consistent solutions for incorporating professionals that served in the previous regime, it is unlikely to be able to pass legislation on a new federal supreme court at all. In that sort of context, the old court and its various appellate institutions will continue to serve – with the legitimacy problems and susceptibility to political pressure that come with its own genesis during the days of Paul Bremer back in 2003–2004.