Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (44 page)

Vetting to remove abusive officials from positions of authority, if carried out fairly, properly, and prudently, can be a legitimate part of a larger process of institutional reform in periods of transition. It can also play an important role in ensuring that past abuses are not repeated. History of the last 50 years shows that countries trying to make transitions to democracy must inevitably bring back some members of the ousted regime. After World War II, for example, the American occupiers in Germany implemented a broad de‐Nazification program, but came to realize that they lacked the necessary knowledge of German society to rebuild its institutions and that the country would not become a functioning liberal democracy without the cooperation and expertise of many of those tainted by the previous regime.
[29]
When Paul Bremer
arrived in Baghdad in May 2003 he set into motion a vetting and de‐Ba'athification process (later adopted by the Iraqi Governing Council) that would have a profoundly destabilizing effect on Iraqi society. Indeed,
Bremer and other
CPA officials made the same mistakes as their World War II predecessors: they saw the former Ba'ath members only as villains and troublemakers. They did not consider, as difficult as it might be, that the Ba'athists' skills and experience, and their political power, made them indispensable in the effort to rebuild post‐war Iraq.

The Ba'ath Party –
ba'ath
means “renaissance” in Arabic – was founded in Syria in 1947, as a political vehicle to promote Pan‐Arabism. In the 1950s, Syrian exiles and Iraqi students brought Ba'athism to Iraq, which was then ruled by a military government. The Ba'athists came to power in 1963, in a coup that was followed by a bloodbath during which Ba'athists arrested, tortured, and killed their rivals. In 1968, in another coup, Saddam
Hussein's wing of the Ba'ath Party took control of the country, and in 1979 Saddam declared himself president. By the time of the US occupation of Iraq, the Party, which kept its operations secret, was estimated to have had between a million and two and a half million members, most of them Sunnis, like Saddam. The Party had been virtually synonymous with
Saddam Hussein's regime and the brutality it unleashed over its thirty‐five years in power. Ba'athists were required to inform on their neighbors, their co‐workers, and on one another. At the same time, party members filled jobs at every level of society and anchored the middle class.

For many Iraqi Shiites and
Kurds, de‐Ba'athification was an absolute necessity for a peaceful transition to democracy in Iraq. But the US‐led coalition also needed to address the fears of the newly disenfranchised Sunnis, and, on a basic level, to keep the country functioning. In the end, Bremer opted to appease the
Shiites and Kurds and issued a sweeping ban of Iraq's Ba'ath Party: all senior party members were barred from public life; lower‐level members were also barred, but some could appeal.
[30]
A week later, he disbanded the Iraqi Army.

Bremer's order removed the top four ranks of Ba'ath party members from their positions and banned them from future employment in state jobs. Other party members, regardless of rank, were sacked from the top three layers of management in all national government ministries, affiliated corporations, and other government institutions. The order, Bremer said, would apply to 15,000 to 25,000 individuals, roughly one percent of the party's 2 million members.
[31]
Yet, over the next eighteen months, an estimated 30,000 party members, including some 6,000 to 12,000 educators, were summarily sacked from their posts.

Bremer declared from the outset that Iraq's de‐Ba'athifciaton program would be Iraqi‐led. In late May 2004, he established an
Iraqi De‐Ba'athification Council (IDC)
[32]
to investigate the identity and whereabouts of Ba'ath party officials and members involved in violations of human rights.
[33]
The IDC, whose members were appointed by Bremer, was mandated to investigate and gather information on the “extent, nature, location and current status of all Iraqi Ba'ath Party property.”
[34]
Individuals adversely affected by the decisions of the Council could appeal in writing to Bremer for a reversal and he retained the authority to grant exceptions on a case‐by‐case basis.

It soon became obvious that the IDC was serving largely at the whim of the
CPA.
[35]
In June, Bremer directed the Commander of Coalition Forces to establish several
Accreditation Review Committees (ARCs) composed of two civilians and one military member (one of whom would be an Iraqi nominated by the Council) to undertake the functions previously vested in the Council. Bremer gave the US commander the power to use “military investigative resources” to compile information concerning possible Ba'ath Party affiliations of employees at all ministries. In addition, the commander could augment or replace these resources with “US civilian investigators” and, whenever possible, “include professional Iraqis.”
[36]
Bremer noted that as the Council “demonstrates sufficient capability, the Administrator will task [it] to assume increasing and ultimately full responsibility for the process, subject to the authority, direction and control of the administrator. The ARCs shall remain in operation until the people of
Iraq adopt a representative form of self‐government.”
[37]

In implementing its de‐Ba'athification program, the
CPA failed to consult the Iraqi people about the desirability of such a sweeping and often arbitrary process. A survey of a broad cross‐section of the Iraqi population conducted by the International
Center for Transitional Justice (ICTJ) and the Human Rights Center at the University of California, Berkeley in July and August 2003 found that while the majority of respondents blamed the Ba'ath Party for past crimes and felt that those responsible should be dismissed, they also felt it was unfair to penalize individuals solely on the basis of their party membership and sough to draw distinctions between members of the Party, whom they referred to as Ba'athists, and ardent supporters of Saddam
Hussein, whom they termed Saddamists. While respondents in northern Iraq generally supported a purging of the Ba'ath Party from government institutions, many respondents in central or southern regions expressed concern about the impact of wide‐scale de‐Ba'athification on the need for human resources to rebuild the country.

As the vetting and lustration process got underway in Iraq, Bremer's aim of gradually handing over responsibility to the Council was soon overtaken by events on the ground. In the face of international criticism of Bremer's de‐Ba'athification process, the Iraqi Governing Council set up the
Higher National De‐Ba'athification Commission (HNDC) in August 2003. The following month, Ahmed
Chalabi, an extremely vocal proponent of de‐Ba'athification and a leading voice in support of the war to topple Saddam, was appointed chairman of the commission. Chalabi, in turn, appointed a protégé, Mithal al‐Alusi, as its director. The commission occupied two floors of a concrete office block inside the Green Zone. A poster on one wall
bore the message: “Ba'athists=Nazis.”

The HNDC established an appeals process (which was retroactively ratified by CPA Memorandum No. 7 of November 14, 2003) to replace the one in place under the occupying authority's Armed Forces Commander. Under the
HNDC procedures Director Generals (in the case of Ministries) or their equivalent (in the case of other public institutions) could issue advance notification explaining reasons for dismissals and providing details of the appeals process. Only individuals who held the rank of “group member” (
Udw Firqa
) or below, or officials who held positions in the top three ranks of management in the public sector could appeal. No one of the rank of section member (
Udw Shu'bah
) or above had the right to appeal. In addition, would‐be appellants were given the blatantly unenviable choice of receiving their pensions if they accepted their dismissal notice or forgoing their pensions if they appealed.

According to a two‐tiered appeals process, appellants could appeal to a local de‐Ba'athification committee within two weeks of receiving their notice of dismissal and expect to hear within six weeks of their appeal. If denied, they could then appeal, within two weeks, to the HNDC itself and expect to hear within a further six weeks. The HNDC, acting as a higher appeals board, would include two judges appointed by the Judicial Council sitting alongside it. The signature of one of the two judges would be needed to ratify the decision of the HNDC.
[38]
At least that was the theory.

On September 14, 2003, Chalabi issued two decisions confirming the removal from public office of all full members who comprised the top four ranks of the Ba'ath Party and banning the nomination to the public sector, the political sphere, organizations of civil society, the media and broadcasting of anyone who had held the rank of group member (
Udw Firqa
) or above.
[39]
Chalabi's directives made it clear that the appeals process was increasingly more fiction than fact and could backfire by making disgruntled Ba'ath Party officials easy fodder for the insurgency. In response,
the IGC sought to undo the damage by establishing central
committees within the Ministries, aimed at reviewing individual cases and bringing back officials dismissed through the de‐Ba'athification process and, secondly, enabling all those dismissed from the public sphere to apply for retirement pensions.
[40]
In November, in what seemed like trying to catch a train that had already left the station,
the CPA rescinded its original order establishing a de‐Ba'athification council and empowered the Iraqi Governing Council, through the
HNDC, to carry out the de‐Ba'athification process.
[41]
It also tried to wrest back control by calling on the HNDC to provide monthly reports to Bremer and to the IGC, including the names and positions of Iraqis dismissed from positions of employment, as well as the names of any Iraqi citizens hired to replace a dismissed employee.
[42]

But it was too late. By March 2004,
Chalabi's aggressive measures had begun to take their toll. Most notable was the dismissal of 12,000 Iraqi teachers who had found their appeals blocked, or endlessly deferred, by the review process. One of
Chalabi's aides later criticized the
HNDC, calling it a “government within a government” for its wide‐ranging mandate and extensive resources.
[43]
Later that month
Bremer intervened, ordering
Chalabi to curb what senior American officials were now calling “overzealousness in the post‐Saddam purge.”
[44]
In April, the
CPA administrator, while still defending his de‐Ba'athification program, acknowledged that it had had a negative effect in Iraq, especially in the country's schools and universities:

 

[M]any Iraqis have complained to me that de‐Ba'athification policy has been applied unevenly and unjustly. I have looked into these complaints and they are legitimate. The de‐Ba'athification policy was and is sound. It does not need to be changed. It is the right policy for Iraq. But it has been poorly implemented . . .Professors who did not use their posts to intimidate others or commit crimes should be allowed to return to work promptly.
[45]

 

He agreed to speed up appeals and facilitate allowing teachers and professors to return to work or obtain pensions.

By late June 2004, when the
CPA dissolved itself, the process of de‐Ba'athification had become a model of how not to do it. Initially, members of the Ba'ath Party were dismissed solely on the basis of belonging to the category of senior party member and without any reference to involvement in wrongdoing. However, to appeal successfully the burden of proof lay on the accused to prove no involvement in wrongdoing. Additionally, individuals were essentially blackmailed into choosing between appealing or receiving pensions and power was concentrated in the hands of one entity making an already non‐transparent process vulnerable to the influence of individual political agendas. As a
result, a significant number of party members were on the streets with no jobs, no way to sustain their families and most importantly no reasonable explanation whatsoever for the situation they found themselves in. Many educated Iraqis were unable to perceive de‐Ba'athification policy as anything but “collective punishment.”
[46]
In seeking to rectify the missteps in this process the
CPA and the
IGC again erred on the side of making sweeping decisions affecting large numbers of Iraqis. The new policies aimed at restoring people, including former members of the Ba'ath Party, to jobs have been more focused on needs for talent and skills than on principle. If an individual is indispensable within a ministry or is highly thought of by the rest of the faculty, they have been reinstated, thus creating a system of favoritism rather than one that upholds due process standards.

By September 2004, Iraq's de‐Ba'athification program had emerged as a hotly contested political and security issue. On one side were several Shiite leaders and members of
Chalabi's Higher National De‐Ba'athification Commission, who argued that while the Commission may have committed errors in the past, former Ba'athists had been returned to their jobs through the appeals process. According to Ali Feisal al‐Hamad, director of implementation
at the HNDC, by November the Council had reviewed, annulled, and provisionally returned 15,000 of the 35,000 individuals dismissed by the CPA to managerial positions. The Council had retired a further 700 senior members, dismissed 3,000 not included in the original
CPA action and was reviewing 8,000 cases.
[47]
On the other side were Iraqi officials like
Prime Minister Ayad Allawi who called for the disbanding of the De‐Ba'athification Commission and replacing it with a more lenient judicial system. The Ba'athist purges, Allawi and other
IGC members argued, were undermining national unity and unwittingly winning the insurgents new recruits, a position shared by some American military commanders in the field.
[48]
Other critics charged that the Commission's purpose was being distorted by some of its members who had business interests in blackballing Ba'athist businessmen who had accumulated wealth under the former regime.
[49]
One day before hastily departing Baghdad, administrator Paul Bremer issued a memorandum paving the way for the disbanding of the HNDC as one of his final acts.
[50]
Under Memorandum 100, revising many of the CPA orders, regulations and provisions,
Bremer withdrew the authority he had given to the
HNDC under Memorandum 7 and authorized the interim Iraqi government to abolish the HNDC and establish a new body in its place. Since then, Allawi appointed a number of Ba'athists to senior positions – most significantly, in the
military and intelligence apparatus – and moved to disband the HNDC.