```

[Senate Hearing 108-217]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 108-217

                    CONSTITUTIONALISM, HUMAN RIGHTS,
                      AND THE RULE OF LAW IN IRAQ

=======================================================================

                             JOINT HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON NEAR EASTERN
                        AND SOUTH ASIAN AFFAIRS

                                 OF THE

                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                                AND THE

                SUBCOMMITTEE ON THE CONSTITUTION, CIVIL
                       RIGHTS AND PROPERTY RIGHTS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 25, 2003

                               __________

       Printed for the use of the Committee on Foreign Relations

 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 senate

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                            WASHINGTON : 2003
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                     COMMITTEE ON FOREIGN RELATIONS

                  RICHARD G. LUGAR, Indiana, Chairman
CHUCK HAGEL, Nebraska                JOSEPH R. BIDEN, Jr., Delaware
LINCOLN CHAFEE, Rhode Island         PAUL S. SARBANES, Maryland
GEORGE ALLEN, Virginia               CHRISTOPHER J. DODD, Connecticut
SAM BROWNBACK, Kansas                JOHN F. KERRY, Massachusetts
MICHAEL B. ENZI, Wyoming             RUSSELL D. FEINGOLD, Wisconsin
GEORGE V. VOINOVICH, Ohio            BARBARA BOXER, California
LAMAR ALEXANDER, Tennessee           BILL NELSON, Florida
NORM COLEMAN, Minnesota              JOHN D. ROCKEFELLER IV, West 
JOHN E. SUNUNU, New Hampshire            Virginia
                                     JON S. CORZINE, New Jersey
                 Kenneth A. Myers, Jr., Staff Director
              Antony J. Blinken, Democratic Staff Director
                                 ------                                

                      SUBCOMMITTEE ON NEAR EASTERN
                        AND SOUTH ASIAN AFFAIRS

                 LINCOLN CHAFEE, Rhode Island, Chairman
CHUCK HAGEL, Nebraska                BARBARA BOXER, California
SAM BROWNBACK, Kansas                JON S. CORZINE, New Jersey
GEORGE V. VOINOVICH, Ohio            JOHN D. ROCKEFELLER IV, West 
NORM COLEMAN, Minnesota                  Virginia
                                     PAUL S. SARBANES, Maryland
                                 ------                                

                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
            Makan Delrahim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                 ------                                

   Subcommittee on the Constitution, Civil Rights and Property Rights

                      JOHN CORNYN, Texas, Chairman
JON KYL, Arizona                     RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina    EDWARD M. KENNEDY, Massachusetts
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
                  James C. Ho, Majority Chief Counsel
               Robert F. Schiff, Democratic Chief Counsel

                                  (ii)

                            C O N T E N T S

                              ----------                              
                                                                   Page

                           Hearing Transcript

Agawa, Naoyuki, minister and director of the Japan Information 
  and Culture Center, Embassy of Japan...........................    57
    Prepared statement...........................................    59

Boxer, Hon. Barbara, U.S. Senator from California, prepared 
  statement......................................................     3

Chafee, Hon. Lincoln D., U.S. Senator from Rhode Island, opening 
  statement......................................................     2

Cornyn, Hon. John, U.S. Senator from Texas, opening statement....     1

El Fadl, Khaled Abou, professor of law, UCLA School of Law.......    17
    Prepared statement...........................................    18

Feingold, Hon. Russell D., U.S. Senator from Wisconsin, opening 
  statement......................................................     4

Haykel, Bernard, professor, Department of Middle Eastern Studies, 
  New York University............................................    13
    Prepared statement...........................................    15

Howard, A.E. Dick, White Burkett Miller Professor of Law and 
  Public Affairs, University of Virginia Law School..............    68
    Prepared statement...........................................    70

Kennedy, Hon. Edward M., U.S. Senator from Massachusetts, 
  prepared statement.............................................    38

Kommers, Donald, Joseph and Robbie Professor of Political Science 
  and Professor of Law, Notre Dame School of Law.................    64
    Prepared statement...........................................    67

Kritz, Neil, director, Rule of Law Program, U.S. Institute of 
  Peace; accompanied by Louis Aucoin.............................    75
    Prepared statement...........................................    77

Pollack, Kenneth M., senior fellow, Saban Center for Middle East 
  Policy, Brookings Institution..................................     7
    Prepared statement...........................................     9

Salbi, Zainab, president and founder, Women for Women 
  International..................................................    32
    Prepared statement...........................................    35

Al-Sarraf, Sermid, member, Board of Directors, Iraqi Jurists' 
  Association....................................................    27
    Prepared statement...........................................    30

Yoo, John, visiting fellow, American Enterprise Institute........    48
    Prepared statement...........................................    49

                                Appendix

Transitional Justice in Post-Saddam Iraq: The Road to Re-
  establishing Rule of Law and Restoring Civil Society, a report 
  of the Working Group on Transitional Justice in Iraq and the 
  Iraqi Jurists' Association.....................................    91

Material submitted by the United States Institute of Peace:

Conclusions of USIP Roundtable on Lessons learned From Prior 
  Vetting Processes..............................................   109

Project on Constitution-Making, Peace Building, and National 
  Reconciliation.................................................   111

                                 (iii)

  

 
                    CONSTITUTIONALISM, HUMAN RIGHTS,
                      AND THE RULE OF LAW IN IRAQ

                              ----------                              

                        Wednesday, June 25, 2003

                               U.S. Senate,
                   Subcommittee on Near Eastern and
                                       South Asian Affairs,
                                     Committee on Foreign Relations

                  Subcommittee on the Constitution,
                          Civil Rights and Property Rights,
                                        Committee on the Judiciary,
                                                   Washington, D.C.
    The subcommittees met, pursuant to notice, at 2:13 p.m. in 
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn, 
chairman of the Subcommittee on the Constitution, Civil Rights 
and Property Rights, Committee on the Judiciary, and Hon. 
Lincoln Chafee, chairman of the Subcommittee on Near Eastern 
and South Asian Affairs, Committee on Foreign Relations, 
presiding.
    Present: Senators Cornyn, Chafee, and Feingold.

             OPENING STATEMENT OF HON. JOHN CORNYN,
                    U.S. SENATOR FROM TEXAS

    Senator Cornyn.  This joint hearing of the Senate Judiciary 
Subcommittee on the Constitution, Civil Rights and Property 
Rights and the Senate Foreign Relations Subcommittee on Near 
Eastern and South Asian Affairs shall come to order.
    In a moment I want to begin my opening statement and then 
turn the floor over to Senator Chafee, the chairman of the 
Foreign Relations subcommittee, and then to my ranking member, 
Senator Feingold, and Senator Boxer, the ranking minority 
Member of Senator Chafee's committee, but I want to first 
express my appreciation to Chairman Hatch and also to Chairman 
Lugar, who is the chairman of the Senate Foreign Relations 
Committee, as well as Senators Biden, obviously Senators Chafee 
and Boxer for all the hard work that they've done and their 
staffs have done to make sure that this hearing could proceed 
today.
    It is my honor to join Chairman Chafee in opening our joint 
subcommittee hearing this afternoon on the issue of 
constitutionalism, human rights, and the rule of law in Iraq.
    Today, the lights are back on in Baghdad. The sound of 
gunfire is still there, but not quite so loud as before. The 
climate in Iraq can best be described as cautious unease. The 
Iraqi people today are free of Saddam, but they are not yet 
free of fear. We've seen progress when it comes to ensuring the 
basic security of the Iraqi people, the recruitment of a new 
police force, the continued elimination of Ba'athist party 
remnants, and the capture of armed gangs of militants, all of 
which are positive signs, but clearly there is a lot more that 
needs to be done.
    We must end the looting and the street violence and restore 
the rights of the Iraqi people. The foundation of a peaceful, 
just, and prosperous society cannot be constructed while 
lawlessness reigns. The current unstable situation is at least 
in part, I believe, an unintended by-product of the swiftness 
and efficiency of our own military forces and coalition forces. 
Never before has the world witnessed such a marvel of 
technology, training, dedication, and leadership in war, and I 
am enormously proud of our heroic men and women in uniform who 
bravely put themselves at risk for the cause of freedom.
    Yet currently, the only thing that prevents the mass 
outbreak of conflict by Iraq's rival ethnic and religious 
groups is the authority of coalition military forces. This stop 
gap is clearly no substitute for long-term solutions. The Iraqi 
people must relearn how to govern themselves and police 
themselves.
    We can harbor no illusions about the reconstruction of 
Iraq. The current occupation will not and perhaps should not be 
brief. While the administration understandably wants to return 
Iraq to the Iraqi people as soon as possible, this well-
intentioned desire could backfire. Iraq looks a lot like the 
Old West right now, and we need lawmen to restore peace and to 
protect the populace. In my State, the Texas Rangers have a 
saying, ``One Ranger, One Riot,'' but Iraq will need more than 
just one police officer, one Ranger. It will need a substantial 
professional and civilian police force untainted by Saddam's 
enforcers.
    I am delighted to be able to co-chair this hearing with 
Senator Chafee, and I want to make sure we have plenty of time 
to hear from my colleagues here during their opening 
statements, and so I'm going to submit the rest of my opening 
statement for the record, but one of the things that I hope we 
achieve here today is that we have intelligent discourse and 
exchange on what post-war reconstruction looks like in Iraq 
from people who are really world-recognized experts in various 
aspects of, either that of geographical location and the 
culture and the history of the Iraqi people, or others who are 
experts in the law, who can help illuminate, I think, a civil 
discourse on what it will take to establish the rule of law in 
Iraq, and hopefully help the Iraqi people nurture a democratic, 
representative government in that nation.
    With that, let me please turn the floor over to my co-chair 
for the purposes of this hearing, Senator Lincoln Chafee.

              STATEMENT OF HON. LINCOLN D. CHAFEE,
                 U.S. SENATOR FROM RHODE ISLAND

    Senator Chafee. Thank you very much, Senator Cornyn. It's a 
pleasure to co-chair this hearing with you this afternoon, and 
welcome the distinguished panelists who have taken their 
valuable time to be here with us also this afternoon.
    A few weeks ago, May 22 in particular, Deputy Secretary of 
Defense Paul Wolfowitz appeared before the Foreign Relations 
Committee and I asked him, what are the effects of what we have 
done in Iraq, and he said three things in particular. The first 
is, he thought it would have a positive impact on the Israeli-
Palestinian peace process. Second, he thought it would improve 
the strategic position of Saudi Arabia and other moderate Arab 
countries in the region, and third, he said it would bring us 
to a point where Iraq could be a model of democracy in the Arab 
world, and that's why we're here this afternoon, to see that 
process started which, of course, the first step is to have a 
constitution, and I look forward to hearing from the 
distinguished people who will advise us on the process to go 
forward in establishing a constitution for Iraq as the first 
step to democracy.
    I did notice from Dr. El Fadl's submitted written testimony 
I think something that's very true, and he said, the worst 
thing that the Government of the United States could possibly 
do while acting as an occupying power in Iraq is to impose upon 
the Iraqi people a political condition that is so artificial, 
that is so alien to the collective consciousness of the Iraqis, 
that it is at odds with the historical experience and 
aspirations, that it appears that the United States is, in 
fact, acting like a power of occupation and domination, not 
persuasion and liberation.
    The danger is that if the United States appears hostile or 
insensitive to the religious sentiments of the Iraqis, this 
will invite resistance. It would be a real tragedy if the 
democratic experiment in Iraq fails, not because the Iraqis do 
not believe in democracy but because democracy is seen as part 
of an ideological package of an aggressive or imperialistic 
occupying force, and I think that's the most important thing.
    What a tragedy it would be if democracy fails because we 
didn't do it right, and of course the first step is to get a 
good constitution, and I look forward to the testimony as we go 
forward.
    Senator Cornyn. Thank you, Senator Chafee, and now I'd like 
to turn the floor over to the ranking member of the 
Constitution Subcommittee, Senator Russ Feingold, who has 
worked with us, he and his staff, to prepare this hearing 
today, and Senator Feingold, I'll turn it over to you.
    Senator Feingold. Thank you, Mr. Chairman. First let me 
ask, Senator Boxer has asked that her statement be submitted 
for the record.
    Senator Cornyn. Without objection.
    [The prepared statement of Senator Boxer follows:]

              Statement Submitted by Senator Barbara Boxer

    Chairman Chafee, Chairman Cornyn, thank you for holding this 
hearing today on Constitutionalism, Human Rights and the Rule of Law in 
the Nation of Iraq.
    The Senate Foreign Relations Committee has held several hearings on 
Iraq since last July, beginning under the leadership of Chairman Biden 
and then under Chairman Lugar. In February, prior to U.S. military 
action against Iraq, the committee held a hearing on post-Saddam Iraq. 
Representatives of both the State Department and Department of Defense 
testified.
    The committee asked several questions:

   Who will rule Iraq?

   Who will provide security?

   How long will U.S. troops have to say?

   What will be the role of the U.N.?

   What allies will share the burden of reconstructing Iraq?

    During this hearing, the committee failed to get clear answers--
only rosy scenarios. As Chairman Lugar recently said, ``We were unable 
in this committee to find very much from the administration about what 
they were going to do.'' The administration--in the Chairman's own 
words--was not ``well prepared.''
    In my view, the number one priority in Iraq is to provide basic law 
and order. It is unfortunate that we were not better prepared to stop 
the looting and lawlessness that took place after the fall of Baghdad.
    Now, our military men and women, who so ably fought to rid Iraq of 
Saddam Hussein, are frustrated that they have not been given the tools 
or training to act as peacekeepers.
    According to the Washington Post, ``soldiers complain that they 
have been insufficiently equipped for peacekeeping and too thinly 
deployed in areas where they are under attack from fighters evidently 
loyal to deposed president Saddam Hussein.''
    Because of the Bush administration's insistence on a unilateral 
policy toward Iraq, the task of keeping peace falls almost exclusively 
to the United States. Right now, the U.S. has 146,000 troops in Iraq--
non-U.S. coalition forces number 12,000. U.S. forces make up 92 percent 
of the total. To compare, after hostilities ended in Bosnia, the 
security force was about one-third American; in Kosovo, about one-
fifth. It is imperative that we do more to involve other nations in 
maintaining law and order in Iraq.
    A second issue we face is how to establish a viable transitional 
government of Iraq. It is clear that the administration's initial plans 
have failed. General Gamer has been recalled and replaced by a civilian 
administrator. The Pentagon's plan to give power to Mr. Chalabi and the 
Iraqi National Congress has apparently been scrapped.
    Unlike Afghanistan where a Loya Jirga allowed Hamid Karzai to take 
control relatively soon after the fall of the Taliban, no such 
mechanism to produce a viable Iraqi leader has emerged.
    Finally, I want to highlight the need to ensure that our initial 
missteps in Iraq do not lead to a rise in religious fundamentalism. In 
yesterday's New York Times, Nicolas Kristof writes that, ``An iron 
curtain of fundamentalism risks falling over Iraq, with particularly 
grievous implications for girls and women. President Bush hopes that 
Iraq will turn into a shining model of democracy, and that could still 
happen. But for now it's the Shiite fundamentalists who are gaining 
ground.''
    Concerns about women and girls led me to offer an amendment to the 
Foreign Assistance Authorization bill to make it U.S. policy to ensure 
the full and active participation of women in the reconstruction of 
Iraq by promoting the involvement of women in the Iraqi government, the 
planning and distribution of assistance, and job promotion and training 
programs. I am pleased this amendment was unanimously adopted by the 
Foreign Relations Committee.
    In addition, a report is being released today by Women Waging Peace 
in conjunction with the Woodrow Wilson Center on the role of women in 
post-conflict Iraq. The findings contained in this report are the 
result of a two-day conference involving 26 Iraqi women leaders. Zainab 
Salbi, who will testify as part of our first panel of witnesses this 
afternoon, played a key role in the development of this report.
    We must ensure the full and active participation of women in the 
rebuilding of Iraq. It is necessary for long-term stability and the 
success of a democratic transition.
    Thank you.

             STATEMENT OF HON. RUSSELL D. FEINGOLD,
                  U.S. SENATOR FROM WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Chafee and Chairman Cornyn, as you know, not only 
am I fortunate to be the ranking member of the Constitution 
Subcommittee, but I'm also a member of the Foreign Relations 
Committee. In that capacity, I've attended every Foreign 
Relations Committee hearing on Iraq over the past year, going 
all the way back to Chairman Biden's first hearings on Iraq in 
late July and early August of 2002.
    Those hearings which were held before, during, and now 
after the war with Iraq have explored a wide variety of issues, 
including a series of hearings focused on aspects of 
stabilization and reconstruction from the regional 
repercussions of changes in Iraq to international contributions 
to this post-conflict effort.
    While the Foreign Relations Committee is very active in 
overseeing assistance designed to strengthen the rule of law 
and legal institutions around the world, one issue it has not 
yet explored in depth is the issue we will discuss today, 
establishing the rule of law in Iraq, so I commend the chairmen 
of the two subcommittees, Senators Chafee and Cornyn, for their 
leadership in calling this hearing. I'd also like to thank the 
chairman, as well as Senators Lugar, Biden, and Boxer and their 
staffs for their cooperation and collaboration in organizing 
this hearing.
    The purpose of this hearing is to explore some of the 
challenges the Iraqi people will face in reaching their goal of 
a stable and just society that respects basic human rights, 
including the rights of women and all Iraqis, regardless of 
religion or ethnicity. This hearing will explore some of the 
lessons learned from the experiences of other post-war nations 
and emerging democracies that have struggled to shape a 
constitution and rebuild legal institutions that promote 
principles of justice, freedom, and equality. I would like to 
briefly emphasize just a few points.
    First, establishing security and the rule of law is an 
obligation of the United States under the Fourth Geneva 
Convention as an occupying power, and as our responsibility 
also to the people of Iraq, but I think it's extremely 
important to make clear that this hearing should not be 
construed as an attempt by the Senate or the U.S. Government to 
draft the next constitution of Iraq or reform its legal system. 
I believe that Senator Chafee's remarks were in that spirit.
    The Iraqi people must decide their course. Drafting a 
constitution and reforming legal institutions must be a 
representative and consultative process, not a process imposed 
by the occupiers. It won't be easy, as past experiences with 
emerging democracies have shown, but it's absolutely necessary 
that this part of the effort succeed. The Iraqi people must be 
the authors of their own constitution and their own destiny.
    Second, as we discuss the need for a revised Iraqi 
constitution, we should remember that the constitution, while 
important as a legal framework, is only one part of what must 
be a broader legal reform effort. Let's remember that Iraq 
actually had a constitution under Saddam Hussein, so in 
addition to redrafting Iraq's constitution, efforts must be 
made to rebuild institutions like the police, prisons, and the 
judiciary.
    The Iraqi people also must consider what kind of mechanism 
they want to establish to account for and address past 
injustices by Saddam Hussein's regime. We should support Iraqis 
in developing just such a constitution, but also a functioning 
and reliable legal system to enforce it, or else we risk doing 
them a great disservice. I look forward to learning more about 
these issues from our witnesses today as well.
    Finally, I recognize that the United States had great 
success in drafting the constitutions of post-World War II 
Japan and Germany, and we'll hear today from some experts about 
those experiences, but I believe it's important to note that 
some of our recent legal reform initiatives have been 
challenging, and have sometimes had mixed success. There is no 
one-size-fits-all approach to drafting a constitution or 
rebuilding a legal system in a post war country, and I hope the 
hearing this afternoon will explore some of the lessons learned 
from other legal reform efforts, from South Africa to East 
Timor.
    We have a number of more recent examples of constitutional 
reform available to consider. We know that genuine consultation 
and civic participation are not easy to achieve, and that the 
most effective mechanisms for ensuring legitimacy are sometimes 
culturally and historically specific to a given society.
    So I thank the two chairmen for convening this hearing, and 
I look forward to hearing from our witnesses.
    Senator Cornyn. Thank you, Senator Feingold. I couldn't 
agree with you and Senator Chafee more about the way you 
characterize this challenge. We must help in every way possible 
to assist the Iraqis to establish the rule of law and a system 
of self-government. The challenge, though, comes in dealing 
with the basic security needs that are so obviously pressing 
upon us at this time, and to allow security to then give way to 
the constitution-making by the Iraqi people and then self-
government under the rule of law. How we do that, how we assist 
without imposing ourselves I guess is the great challenge that 
confronts our Nation at this time.
    I'd like to ask the members of the first panel to come up 
and have a seat at the witness table, and I will introduce them 
as they assume their places. Our first panel is comprised of 
experts who can speak both to the history of and the present 
situation in Iraq. Their testimony will be critical to 
understanding the needs and present conditions of the Iraqi 
people, and in drafting an Iraqi constitution that will 
actually work to preserve their freedoms.
    First, we are pleased to have Dr. Kenneth Pollack on the 
panel. Dr. Pollack is a senior fellow in foreign policy studies 
at the Brookings Institution and director of research of the 
Saban Center for Middle East Policy at Brookings. During the 
Clinton administration, Dr. Pollack served in the National 
Security Council first as Director for Near East and South 
Asian Affairs, and later as Director for Persian Gulf Affairs. 
He is the author of The Threatening Storm: The Case for 
Invading Iraq, a book he published in 2002.
    Professor Bernard Haykel is assistant professor of Middle 
Eastern studies and history at New York University. His 
academic career has focused on Islamic law and political and 
social history. In 2002, he published Revival and Reform in 
Early Modern Islam. He received a Ph.D. from Oxford University 
in Islamic studies in 1998.
    Professor Khaled Abou El Fadl is the Omar and Esmeralda 
Alfi distinguished fellow in Islamic law at UCLA Law School. He 
was born in Kuwait, and grew up in Egypt and Kuwait. He is the 
author of numerous books on Islamic law, and has practiced law 
in both the United States and the Middle East. He received his 
Ph.D. in Islamic studies from Princeton in 1999, and has served 
on the UCLA law faculty since 1998.
    Mr. Sermid Al-Sarraf is an Iraqi-American lawyer currently 
practicing in Los Angeles, California. He testifies today in 
his capacity as a member of the Iraqi Jurists' Association and 
the Working Group on Transitional Justice of the State 
Department's Future of Iraq project.
    I notice that in his written remarks he quotes from a 
speech which I gave earlier this month at the American 
Enterprise Institute, so naturally I'm particularly interested 
in hearing his testimony today. That's very gracious of you.
    Ms. Zainab Salbi is also a native of Iraq, and I must say, 
please accept my apologies if I mispronounce your name in any 
way. With a name like mine, I'm particularly sensitive to 
people mispronouncing your name, and I apologize.
    She's the founder and president of Women for Women 
International, which matches U.S. women with foreign women in 
desperate circumstances. Over 40,000 people worldwide have been 
connected by Women for Women International. Now in eight 
countries, the organization has distributed more than $6 
million in direct aid and micro-credit loans, and trained 
thousands of women in rights awareness.
    So as you can see, we have a number of excellent panelists 
today on both the first and second panels. In order to ensure 
we have an opportunity to hear from each of them, and ensure we 
have ample time for members to ask questions, I will ask each 
witness to keep their opening statements to 5 minutes or less 
each. Of course, your longer written remarks will be submitted 
for the record so we will have an opportunity to understand all 
of your views in proper context.
    I will take the opportunity to mention that without 
objection we will leave the record open until 5 p.m. next 
Wednesday, July 2, for members to submit additional documents 
into the record and for members to ask questions in writing of 
any of the panelists.
    And with that, we will first hear from Dr. Pollack. 
Welcome.

 STATEMENT OF KENNETH M. POLLACK, SENIOR FELLOW, SABAN CENTER 
         FOR MIDDLE EAST POLICY, BROOKINGS INSTITUTION

    Dr. Pollack. Thank you very much, Mr. Chairman.
    Mr. Chairman, these are extremely important hearings that 
you are holding. They are important because I think it's 
important to start by remembering our own history. The United 
States started off with a constitution that was called the 
Articles of Confederation. I think it's fair to say that the 
Articles of Confederation were not a very good constitution, 
and as a result, they led to paralysis, revolts, and could have 
provoked civil war, perhaps even a dissolution of this country, 
so it is from that lesson of our own country's history that we 
should keep in mind what may happen in Iraq.
    Constitutions matter. They have a tremendous impact, a 
profound impact on the future of a country; and I think that it 
is fair to say that had the United States stuck with the 
Articles of Confederation, we almost certainly would not have 
lived to enjoy the strength and prosperity that we have today. 
Indeed, we might not still be a single Nation, had we lived 
under that constitution, and there are countless other examples 
throughout history.
    Now, that said, the position of the United States with 
regard to Iraq's constitution is going to be a very delicate 
issue, as all of you have suggested in your opening remarks. In 
fact, I would suggest that the United States must walk a 
proverbial tightrope with regard to Iraq's constitution. On the 
one hand, the United States cannot dictate a constitution to 
the Iraqis. Iraqis must believe that this is their own 
constitution, reflective of their own values and their own 
traditions, and not one dictated by a foreign power.
    But by the same token, Iraqis would not be the first 
country to get it wrong if left entirely to their own devices. 
As I've just mentioned, the United States got it wrong, and 
plenty of other countries have gotten it wrong over the course 
of time. Weimar, Germany is another that got it wrong with 
disastrous consequences. Iraq is too important a country and 
too important a part of the world for the rest of the world to 
simply take a hands-off approach and say to the Iraqis, we'll 
throw you in the water and see if you can sink or swim.
    So the trick for the United States and for any other 
country out there in the world with an interest in seeing the 
success of a stable and prosperous new Iraqi society is to find 
ways to help guide the Iraqi constitutional progress without 
actually directing it. With this in mind, it's important to 
remember that we will be embarking on, in some ways, a new 
project. We will be helping the Iraqi people to create the 
first true Arab democracy.
    Now, there have been examples of Arab democracies in the 
past. Lebanon is a particularly good example. But what the 
Iraqis seem to have in mind, what we certainly have in mind, 
and what others in the United Nations and elsewhere around the 
world seem to have in mind for Iraqis is something very 
different. It will be very important to allow Iraqis to 
determine what that new Arab Iraqi democracy looks like. We 
should keep in mind the examples of other countries around the 
world, Japan, Italy, so many other countries around the world 
which have democracies, but democracies that look very 
different from that of the United States. As someone said, we 
should keep in mind the broad parameters of democracy, and not 
so much the specifics.
    With regard to Iraq, the goals for a constitution for Iraq 
should be broad, fairly basic. A constitution for Iraq should 
try to hold the country together by giving all of the members 
of Iraqi society a stake in the success of that new government, 
that new enterprise, and so therefore the values of fairness 
and egalitarianism have to be critical elements of any new 
Iraqi constitution.
    In addition, because of Iraq's well-known ethnic, 
religious, tribal and other fractures, it will be critical that 
such a new constitution avoids the pitfall of a tyranny of the 
majority. This is another problem that we have seen throughout 
the history of democracies that can be particularly pernicious, 
especially in a situation like Iraq's, where so many members of 
the Iraqi community have been oppressed at various points in 
time by other members of the community. If the Iraqis believe 
that one group will be able to grab power and use the power of 
the central government to oppress the rest of the country, this 
constitution will be bound to fail.
    And finally, a new constitution for Iraq must be one that 
creates incentives for compromise across the entire spectrum of 
Iraq. Too often in Iraqi history over the last 80 years, the 
system of government has fomented divisions, has encouraged the 
fissures already inherent in Iraqi society, pried them open 
rather than trying to help bring them together, and therefore 
creating these compromises will be critical.
    How to do that? Again, I think the details need to be left 
to the Iraqis, but I think that some things can be pointed to. 
First, I think that Americans and others might suggest to the 
Iraqis that they look hard at the American system of government 
and the American Constitution. I say that not necessarily as an 
American chauvinist, because I think while our system worked 
for us, it may not have worked for others around the world, but 
in the case of Iraq, I think that there are real advantages to 
be found in the American system of government, advantages which 
would work well for the kinds of problems that the Iraqi people 
will have to overcome.
    The focus on individual rights, on ensuring that the 
central government's powers are limited in terms of their 
ability to impose upon the individual are critical elements of 
our Constitution that would be extremely helpful in the Iraqi 
context.
    A system of checks and balances is another extremely 
important issue, whereby the Iraqi people can become much more 
comfortable, much more confident in the system of government if 
it had a similar set of checks and balances to our own.
    And finally, our system of geographic representation, which 
encourages compromise, as I've suggested before, which is 
critical. While it is true that the north is largely Kurdish-
Sunni, while it is true that the south is a majority Shi'ah-
Arab, and that the northwest of Iraq is a majority Sunni-Arab, 
so it is also true that there are very important areas of 
overlap inside Iraq, and a geographically based system would 
create mixed constituencies, the representatives of which would 
have inherent justifications for trying to reach compromise 
solutions, rather than trying to push things to extremes. These 
are the kinds of broad concepts that I think the United States 
and other countries with long histories of democracies could 
bring to the Iraqis as they try to frame their constitution, 
and suggest to them might be models, might be ways to think 
about crafting their own constitution that might be helpful in 
creating a constitution that can deliver a strong, stable, 
prosperous, and pluralist Iraq for the future. Thank you.
    [The prepared statement of Dr. Pollack follows:]

                Prepared Statement of Kenneth M. Pollack

                       BUILDING A DEMOCRATIC IRAQ

    As the people of the United States of America learned over 200 
years ago, building a stable, functional democracy isn't easy. Our own 
first effort, the Articles of Confederation, were a dismal failure that 
produced paralysis and rebellion. It is safe to say that had the 
government of the United States remained as constructed by that initial 
constitution, our nation would never have achieved the strength or the 
prosperity that it has today. Indeed, it is an open question whether we 
would even be a single nation today.
    The example of the Articles of Confederation is an important lesson 
that the course of a nation will be shaped, even determined by its 
constitution. Machiavelli knew this and it is why he--a philosopher 
whose name is axiomatically associated with autocracy--believed that a 
vibrant Republic was the best form of government.
    Thus, there is little doubt that if a pluralist form of government 
is to succeed in Iraq, the question of the specific composition of the 
state is critical. Especially given Iraq's well-known ethnic, religious 
and tribal fractures, building a state that can assuage popular fears 
and address the specific problems of the country will be essential to 
seal these divisions and produce a unified, peaceful and prosperous new 
Iraqi nation.
    For better or worse, the United States must me part of this 
process. This will be a very difficult task. We must walk a proverbial 
tight-rope.
    On the one hand, the more that the United States can leave the 
process of constituting a new Iraqi government to the Iraqi people 
themselves, the better for all involved. Iraqis are fiercely 
nationalistic. What's more, their unhappy experience with British 
colonialism creates the potential for heavy-handed U.S. involvement to 
resonate in a very negative manner, possibly sparking visceral 
resistance to what otherwise might be perfectly reasonable and even 
beneficial actions. Over the long term, the more that Iraqis believe 
that their constitution really is their constitution--written by Iraqis 
for Iraqis--the greater the likelihood that such a constitution will be 
accepted, respected, and obeyed.
    On the other hand, it is just not clear that the Iraqi people know 
what is best for them yet. Certainly, Iraq does not have a history of 
good government which the average Iraqi might use as a reference point. 
Iraqis would not be the first people to devise a faulty new 
constitution because they simply had never done it before. Indeed, as I 
have already noted, the American people did the same, even though we 
had the helpful example of a reasonably benevolent and republican (for 
that era) government in England. Across the world, there are too many 
examples of failed new constitutions to list. In recent years, Bosnia 
is, example enough of how even the best intentioned people can set up a 
government but out of inexperience, make mistakes that can prove 
crippling politically, economically, and socially.
    Thus, left to their own devices, the Iraqis may not make the best 
choices. But Iraq is too important a country in too important a part of 
the world for the United States to simply ``throw them in the water and 
see if they can swim.'' In addition, because of the rather severe 
divisions among the Iraqi people, if a new Iraqi constitution proved as 
unworkable as the Articles of Confederation, to continue with that 
example, it could quickly produce a slide into chaos, secession, and 
civil war. The United States arid the international community could not 
abide that, nor should we contribute to a process by which the Iraqi 
people are likely to suffer another tragedy having endured 34 years of 
Ba'athist tyranny already.
    The trick will be for the United States to guide the presence 
without directing it. Here, the role of the United Nations and other 
international institutions could be extremely helpful if only because 
Iraqis do not suspect the UN of colonial ambitions. So too might other 
allies prove helpful. The Scandinavians are widely seen as sympathetic, 
humanitarian and disinterested, for example, and they might be able to 
help guide the Iraqis in ways that Washington cannot directly. Other 
non-Western democracies might also play useful roles. So too might a 
country like Bangladesh, which has enjoyed a reasonable progress on the 
path toward democracy without losing its Islamic identity.
Islam and Democracy
    The example of Bangladesh raises an important issue with regard to 
Iraq: the question of Islam and Democracy. There is simply no reason 
that the Islamic character of a country should prevent it from adopting 
a democratic system of government. Bangladesh is proof of that. In 
Turkey, over the past few months, we have seen stunning changes in 
which an Islamist party is bringing true democracy--sure proof that 
Islam and democracy are not mutually exclusive.
    Islam is one of the world's great religions. One that is meant to 
be meaningful for all time and in all places. As such, while it does 
contain numerous injunctions as to how believers are to live their 
lives--what they should and should not do--there is nothing to suggest 
that the religion of Islam is compatible with only one form of 
governance. (As an aside, given the early, egalitarian and 
consociational method of rule employed by the first leaders of the 
Islamic state, an argument can be made that Islam is more compatible 
with democracy than autocracy).
    Islam is a religion of infinite variety. There is not only the 
well-known Sunni-Shi'ite split, but also varying schools of 
jurispnidence within each, a range of Sufi sects, and numerous regional 
varieties. Indeed, Clifford Geertz, the great Western scholar of Islam, 
has observed that Islam in Morocco (the western end of the Islamic 
world) and Islam in Indonesia (the eastern end of the Islamic world) 
are very different religions, heavily influenced by the cultural 
traditions of each nation and more like them than each other. In Iran, 
the Ayatollah Khomeini had to develop a completely new doctrine--the 
notion of velayat-e faqih or rule by the jurisprudent--one completely 
at odds with traditional Shi'ite beliefs, to justify his rule over the 
Iranian state.
    While this is clearly an extreme example--certainly not one the 
United States should encourage Iraq to emulate, it does make clear that 
Islam is neither fixed nor immutable. Indeed, this ``Orientalist'' 
interpretation of Islam has long since been discredited and should not 
be allowed to creep back into real world considerations of the future 
of Iraq which hold such importance for the Iraqi people and the entire 
world.

An Iraqi Democracy
    If it is important to remember that Islam is not a ``one-note'' 
religion, so too is it important to remember that the same is true of 
democracy. When we speak of democracy, too often we allow our own 
cultural or individual associations to obscure the meaning of the word. 
Democracy is rule by the people. In practical terms, it means a 
political system in which the actions of the government reflect the 
will of the people, in which those actions are transparent to the 
population, and the officials charged with executing its policies are 
accountable to the people. While it is hard to imagine a truly 
democratic system without elections, elections are not synonymous with 
democracy. They are just one element of it and not necessarily the 
defining element.
    Many governments around the world have met these conditions while 
adopting very different models of democracy. Japan, Italy, and the 
United States are all democracies yet the workings of their political 
processes are as different as they are similar.
    It will be important to keep this in mind when fostering the 
process of democracy in Iraq. We should think in broad terms. One of 
the great challenges for an Iraqi democracy is that it will be the 
first real Arab democracy. Thus one of the challenges will be helping 
Arab Iraqis develop a democratic system that is suited to their Arab 
culture just as Japanese democracy is harmonious with Japanese culture 
and Italian democracy is attuned to Italian culture.
    (Indeed, this is where the success of democracy in Iraq could have 
important ramifications in the Middle East beyond Iraq. Part of the 
problem with current efforts to democratize the Arab world is that the 
Arabs have never seen a nation that was both truly democratic and Arab. 
But just as the success of Japanese democracy made it possible for 
other East Asians to imagine what democracy might look like in their 
country, so too might an Iraqi democracy allow other Arabs to 
understand and desire the same for their countries.)
    Ultimately, building democracy in Iraq is not going to be easy. In 
particular there is the real possibility that Iraq's considerable 
problems would pervert elections, freedom of speech, or other 
democratic building blocks and produce illiberal results. Since the 
fall of the Ottoman Empire, Iraq has been badly governed. In large 
measure this is because of Iraq's well-known cleavages, and because the 
Iraqis are famously ungovernable--and had a wide reputation for such 
even under the Ottomans. This is why Iraq's experiences after 
independence were so unhappy, and why it took the bloodthirsty tyranny 
of Saddam Hussein to impose a terrible order on the country. These very 
features of Iraqi society that make it so hard to govern also demand a 
democratic system capable of dealing with its serious internal 
contradictions.
    The greatest internal problem for democracy is the potential for 
one group, particularly Iraq's majority Shi'ah community, to dominate 
the country. Iraq's Shi'ah community, which comprises over 60 percent 
of the total population, might use free elections to transform its 
current exclusion from power to one of total dominance--and knowing 
this, Sunni Arabs, and perhaps the Kurds, might attempt to preemptively 
subvert a majority rule-based system. Thus the key for an Iraqi 
democracy will be to fashion a system that addresses the potential 
problem of a ``tyranny of the majority.''
    A parliamentary form of democracy would probably be inappropriate 
for Iraq's political needs because it would exacerbate these problems. 
A parliamentary form of government--in which the majority party 
controls both the executive and legislative branches--would reinforce 
the tyranny of the majority, terrify Iraq's minorities, and probably 
cause them to try to undermine or circumvent the system to protect 
themselves from the authority of the central government. Worst of all 
would be a parliamentary system of proportional representation, which 
would simply reinforce identification and affiliation along these 
sectarian lines. Proportional representation in Iraq would harden 
Iraq's Kurds to vote as Kurds, its Shi'ah to vote as Shi'ah and its 
Sunni Arabs to vote as Sunni Arabs with no deviation or room for middle 
ground positions.
    Nevertheless, it is possible to envision a form of democracy that 
should be able to cope with Iraq's political problems. Perhaps 
surprisingly, a democratic system with some similarities to the 
American system would appear to best fit the bill. Iraq needs a 
democratic system that ensures minority rights, limits the ability of 
the central government to impose its will on its citizens, includes 
checks and balances to ensure that control of one part of the 
government does not translate into a form of dictatorship of the 
majority, and encourages compromise and cooperation among members of 
otherwise well-defined groupings. Features of Iraq's democracy should 
include:

   Defining the rights of every individual and limiting the 
        trespasses of the central government;

   Declaring that all powers not reserved to the federal 
        government are instead vested in local governments to further 
        limit central government authorities. In particular, rights to 
        language and religious expression should be expressly noted;

   Creating a further series of checks and balances within the 
        federal system to limit the powers of the government and 
        particularly the ability of any group to employ the power of 
        the central government to repress other members of Iraqi 
        society;

   Electing a President indirectly, in order to ensure that 
        different communities have a say in who is chosen. in 
        particular, Iraq should look to other systems (like that of 
        Malaysia) that work to ensure that candidates are acceptable to 
        multiple constituencies and are not simply imposed by the 
        largest group on the rest of the country; and

   Employing a system of representation in the legislature that 
        is determined by geography--not pure party affiliation as in 
        many parliamentary systems--to encourage cooperation across 
        ethnic and religious lines.

    This last point is an important one in thinking about Iraqi 
democracy. Although there is a fair degree of communal correlation with 
geography (i.e., the Kurds live in the north, the Shi'ah in the south, 
and the Sunnis in the west) there are also important regions of 
overlap. In Baghdad, and large chunks of central Iraq, Sunni, Shi'ah, 
and Kurds are well mixed. By insisting on a system of geographically 
determined representation, Iraqi legislators elected from these mixed 
districts would have an incentive to find compromise solutions to 
national problems to try to please their mixed constituencies. This 
will be crucial to the success of an Iraqi democracy because it is 
vital to create a constituency for compromise within the Iraqi central 
government.
    Indeed, this points out one of the great problems of a 
parliamentary system (particularly proportional representation) for 
Iraq, because by emphasizing party membership in determining 
legislative elections, the legislators themselves have less incentive 
to try to reach compromises across party lines and much more incentive 
to slavishly follow party ideology. It is a system that tends to push 
legislators to extremes. What is needed in Iraq is a system that 
instead encourages them to move toward the center and reach 
compromises. The American system has become almost infamous for this 
tendency, so much so that on election day it is often impossible to 
tell the candidates apart because they all cling so desperately to the 
middle ground.
    One technique that might be applicable in Iraq would be to require 
candidates to receive a certain percentage of votes from different 
communities. Thus, a legislator from Kirkuk (a mixed Sunni Arab and 
Kurdish area) would be required to receive at least one third of the 
votes of both the Arab and Kurdish communities. In such a system, a 
demagogue or sectarian extremist would be unlikely to garner sufficient 
backing to win, while moderates and those amenable to compromise would. 
This approach could be applied at other levels as well. For example, a 
candidate for Chief Executive would have to receive a similar 
percentage from different communities, again discouraging chauvinism.
No Other Alternatives
    Building a democracy in Iraq is not going to be quick or easy, nor 
is there any guarantee that the effort will succeed. However, it is a 
necessary course for the United States, the international community, 
and the people of Iraq to follow. I speak not as an expert on 
democracy, nor as an advocate for democratic systems, but purely as a 
specialist on Iraqi affairs. Although there can be no guarantee that 
democracy will succeed in Iraq, I think it a near certainty that any 
other system of government will fail there.
    The problems of Iraq are so great that any other system is bound to 
fail. Indeed, the history of Iraq is that they all have failed. 
Monarchy, oligarchy, and autocracy have all failed to produced 
stability, prosperity, and tranquility. Both the monarchy and the 
savage brutality of Saddam's reign produced stability without 
prosperity or tranquility. The pre-Saddam revolving dictatorships 
produced none of these ends. In the future, any resort to these or 
other approaches--theocracy, tribal rule, consociational oligarchy--
would doubtless produce more of the same. If the United States and our 
international partners are not going to see Iraq slip into chaos and 
civil war, we are going to have to ensure that the Iraqis are able to 
build a stable democracy. That could be very difficult, but it is also 
not impossible.

    Senator Cornyn. Thank you, Dr. Pollack.
    Professor Haykel.

 STATEMENT OF BERNARD HAYKEL, PROFESSOR, DEPARTMENT OF MIDDLE 
              EASTERN STUDIES, NEW YORK UNIVERSITY

    Dr. Haykel. Thank you, Mr. Chairman. I would like to submit 
the statement for the record, and I will summarize it here in a 
set of points, keeping them brief, and keeping the overlap with 
my colleague to a minimum.
    Clearly, the process that the United States has embarked on 
is complicated and fraught with great difficulties. The 
difficulties have to do with the nature of Iraqi society, its 
violent past, its authoritarian past as well, in addition to 
the regional pressures that countries around Iraq are exerting.
    The U.S., in redevising or recreating this constitution, 
should pursue a proscriptive rather than prescriptive role, or 
policy. This is a fancy way of basically saying that we should 
just establish the broad parameters of what this constitution 
has to look like, or ought to look like--it should be 
democratic, it should be pluralist--but we should not get into 
the details of what this constitution will involve. This is for 
the Iraqis to do.
    One thing that should be borne in mind is that Iraqis, 
whether exiles or Iraqis who have stayed in Iraq throughout 
this period, are an extremely talented group of people. They 
are very, very well-educated. The jurists both outside and 
inside are extremely talented, and it should be left to them to 
make these kinds of decisions.
    Now, I have surveyed the various proposals that the 
different groups have made or offered so far, and all seem to 
favor a federal structure for Iraq, and the advantage of that--
and if they wish to keep the federal structure, we should by 
all means support this, and it seems to be going and headed in 
that direction, and the advantage of that is that it would 
accommodate the three major groups that constitute the Iraqi 
population, and will prevent any one of the groups from taking 
over or dominating the others.
    These three groups--the Sunni Kurds, the Sunni Arabs, and 
the Shiite Arabs--are really the major groups that form the 
Iraqi population and will have to come to an accommodation with 
each other over the form of rule that Iraq will have.
    The one crucial thing that the United States should not, 
again in establishing this parameter, should not insist on is 
that the constitution of Iraq should not have specific roles 
for these various groups embedded in the constitution. The 
example of Lebanon is extremely crucial to bear in mind here. 
In Lebanon, the constitution as set up has the various 
confessions in the country playing set roles politically. What 
this means is that it cements the differences along sectarian 
religious lines, it prevents groups from creating alliances 
across these sectarian religious lines, and it prevents a 
genuine sense of nationalism and citizenry from being formed.
    So this is another thing to bear in mind, and it seems to 
me, like Dr. Pollack said, one good way in which Iraqis can 
create alliances across the religious divide is to have the 
districts that are formed in Iraq to be based on territorial 
considerations, rather than religious or ethnic considerations. 
In other words, geography, demography, economic viability 
should be the bases for the division of Iraq, for the 
constituent units of Iraq, rather than religion or ethnic 
identity.
    In this regard, I think the United States should, as soon 
as possible, establish a census for the population of Iraq, so 
that we have a baseline to know exactly what the Iraqi 
population looks like in ethnic, religious, linguistic, 
socioeconomic terms.
    I would like to raise now the issue of Islam. One unifying 
factor for the Iraqi population is Islam. Ninety-five percent 
of all Iraqis are Muslim, and they clearly want Islam to play a 
role in whatever constitutional setup they decide on. This 
should be something that the United States should encourage, 
and not discourage. If Islam is given a role at a symbolic 
level where, let's say, one article of the constitution states 
that Islam is the official religion of the State of Iraq, this 
should be perfectly acceptable to us.
    Many countries in the Muslim and Arab world have this. 
Malaysia is one, Yemen is one, and there is no threat from 
giving Islam this symbolic role. There is no threat of a 
theocracy emerging if Islam is given symbolic representation in 
the constitution.
    Iraq is not likely to turn into a theocracy, either Shiite 
or Sunni, because of the way the population is broken up and 
because of its history. I don't want to go into the details. My 
statement states why this is the case. We should not fear a 
theocracy emerging in Iraq at all. It would not work, and the 
Iraqis themselves don't seem to want it. The majority of Iraqis 
don't seem to want it.
    The other issue that we should bear in mind is: whatever we 
do in Iraq has wider policy implications in the Middle East; 
what we do there is crucially important because Arabs at the 
moment are looking at us, and there is an equivalency being 
established between our occupation in the country and what the 
Israelis are doing to the Palestinians.
    This is how Arabs outside Iraq seem to be making this sort 
of equation between our role and the Israeli role, and this is 
a very bad thing. We should break that linkage as quickly and 
as effectively, as efficiently as possible, and our allowing 
Islam to play a role in the constitution framework of Iraq is 
one way of doing that.
    If Arab Muslims see that the United States is not against 
Islam but is allowing Iraqis to express their Islamic identity, 
this would again play a very important role in our fight 
against people like the bin Laden, who are arguing that the 
United States is at war with Islam.
    There are secular forces in Iraq as well, and we should let 
them play a role, but not overemphasize the role that they will 
be playing, nor underemphasize it. Religion will certainly have 
a role to play in the constitution, and I think we should look 
favorably upon that.
    Finally, Iraq did have a period of political pluralism, 
which was limited under the Hashimite monarchy. They did write 
a constitution in 1925, which was not a bad model, actually, to 
base oneself on for this constitution, the forthcoming 
constitution.
    I think it's important for us, that is, for the United 
States, to invoke and revise that period in Iraqi history. At 
the very least, it will make our efforts seem more legitimate 
against this historical backdrop and also make the efforts that 
we're engaged in seem less contrived and artificial.
    If I may, just one last, last point. The United States at 
the moment is engaged in a process of de-Ba'athification in 
Iraq. I've calculated the numbers of Ba'athists who will be 
excluded from all offices. It comes to somewhere around 220,000 
people. Now, these 220,000 individuals have families that 
depend on them. A very conservative estimate would mean that at 
least 1 million Iraqis would be out of jobs, maybe even up to 5 
million Iraqis. That's 20 percent of the population. I think we 
ought to reconsider also our policy of de-Ba'athification to 
make the number of people in the Ba'ath who are excluded from 
office the smallest and lowest number possible in order not to 
exclude such a large number of people from State office.
    Thank you very much.
    [The prepared statement of Dr. Haykel follows:]

                  Prepared Statement of Bernard Haykel

    The process of establishing a constitution for Iraq is complicated 
and fraught with difficulties. This is because of the divided and 
fractious nature of Iraqi society, its violent and authoritarian past 
and regional pressures exerted by neighboring countries. The process 
the United States has embarked on in rebuilding Iraq is unprecedented 
in the region and there is no model from the Arab or Islamic worlds 
that can be emulated. In what follows, I will present some of the broad 
guidelines that should inform the policy of the United States in this 
process.
    The U.S. should pursue a proscriptive rather than a prescriptive 
policy. In other words, we should delineate the parameters within which 
the constitution should be formulated and not dictate the specific 
details of the Iraqi constitution. The U.S., for example, must insist 
that Iraq be a democratic country, but it should not delve into such 
detailed issues as to whether the form of governance ought to be 
federal or unitary or the executive be presidential or parliamentarian. 
Such questions should be resolved by the Iraqis themselves in a 
constitutional convention. Iraq has a very talented pool of individuals 
(jurists, academics and politicians), among the exiles and those who 
never left Iraq, and delineating the specifics of the constitution 
should devolve on them as they will be responsible ultimately for its 
success as well as its failure.
    The various political groups that are now competing for a say in 
the future of Iraq are advocating a federal structure, one that would 
accommodate, in particular, the non-Arab Kurds (approximately 20% of 
the population), but also the Shiite Arabs (approx. 60% of the 
population) in the south and the Sunni Arabs (approx. 20% of the 
population). Federalism is an appealing formula because it would 
prevent one group dominating the others, a real prospect given Iraq's 
history and demographic realities. A constitutional parameter that must 
be established by the United States is that no one of the three 
dominant groups should be allowed to dominate the others, as the Sunni 
Arabs have done until the defeat of Saddam Hussein's regime. By the 
same token, however, the United States must endeavor to prevent the 
constitution from enshrining Iraqi politics along ethnic (Kurd vs. 
Arab) and/or confessional (Sunni vs. Shiite) lines. The example of 
Lebanon is important to keep in mind in this regard. Here the 
constitutional setup cements confessional rule, and this has prevented 
the emergence of secular political formations and allegiances that cut 
across religious divides. As a result, Lebanese nationalism and 
institutions have remained weak and all politics is confessional--a 
sure recipe for future strife. Clearly there is a tension between 
establishing a power sharing arrangement among the three major groups 
in Iraq and allowing the system to function and evolve on a non-ethnic 
and non-confessional basis. There is no ready formula for resolving 
this tension but below are some ideas about how one can think about 
accomplishing this.
    There are a number of ways to mitigate the political effects of the 
ethnic and confessional divisions in Iraq. The first is to prevent the 
electoral districts from being drawn purely on the basis of ethnic/
confessional lines. The country should ideally be divided in accordance 
with territorial considerations (geography, demography, economic 
viability) and not ethnic or confessional ones. This would amalgamate 
different groups of Iraqis together, forcing them to make compromises 
and allegiances that cut across their divisions. Despite the commonly 
accepted tri-partite division of Iraq into a Shi'i south, a Sunni Arab 
middle and west and a Kurdish north, the country's population is more 
mixed ethnically and in terms of religion. Therefore, it would be 
possible to create some constituent units that have a mixed population. 
In this regard, it would prove beneficial for all the parties 
concerned, the United States as well as the Iraqis, to organize a 
population census in order to obtain a real sense of the demographics.
    Another unifying factor in Iraq is Islam, the religion of some 95% 
of all Iraqis. All the emerging signals from the Iraqis appear to 
indicate that they wish Islam to play a role in the future political 
framework of the country. The United States should not prevent this, 
especially if reference to Islam remains at the symbolic level such as 
an article in the constitution declaring Islam to be the official 
religion of Iraq or another that states that the Shari'a (i.e., Islamic 
law) is a source of law in the country. Both Malaysia and Yemen are 
good examples of countries in which Islam is accorded this symbolic 
role and yet both remain firmly anti-theocratic. The U.S. should not 
fret about Iraq becoming a theocracy in the Iranian or Saudi mold--this 
is not going to happen. Except for a minority, the Shi'is of Iraq do 
not think of Iran as a model to be emulated, and more importantly they 
could never realistically impose such a model on the remaining Sunni 
population. Furthermore, the Shi'is of Iraq have a different history 
from those in Iran: in social and political terms they are organized 
differently and their clerics have traditionally competed with those in 
Qom in Iran. In addition, some of the dominant figures among the Iraqi 
Shi'is (e.g., Ayatollah Sistani) are arguing for a quietist position, 
one in which the clerics remain formally outside all political 
institutions.
    As in the case of the Shi'is, the Sunnis of Iraq cannot impose a 
Sunni Islamist regime on the majority Shi'is. The Sunnis are divided 
ethnically and are demographically in the minority. More importantly, 
and unlike the Iranian-backed Shi'is, the Sunni islamists have no 
ideological framework for ruling the country other than an ill-defined 
system of theocratic despotism. Only recently have Sunni Islamists 
(e.g., Muslim Brothers, Wahhabi-Salafis) emerged on the Iraqi political 
scene, and as such they remain an unknown quantity, except for al-
Qaeda. Those who advocate violence must be fought militarily, whereas 
those who agree to participate through the peaceful means of electoral 
politics should be permitted to compete in the political process. The 
United States should proscribe all forms of theocratic rule, be it 
Sunni or Shi'i, but we should not deny Iraqis the desire to make appeal 
to Islam at the level of political symbolism and as a vague guideline 
for a just order. Permitting this will serve an important foreign 
policy goal.
    We should bear in mind that the U.S. project of rebuilding a 
democratic Iraq is being undertaken in the context of our wider policy 
aims in the Arab and Muslim worlds. This endeavor is being closely 
monitored by the Arabs in the region, many of whom are arguing for 
seeing an equivalence between the Israeli occupation in the Palestinian 
territories and the U.S. occupation of Iraq. We must attempt to break 
this linkage whenever possible. Allowing Iraqis to make appeal to Islam 
in their constitution is one way of doing this, because it undermines 
Osama Bin Laden's false claim that the United States is at war with 
Islam.
    It is important to bear in mind that there are secular political 
forces in Iraq and these should neither be sidelined nor for that 
matter be unduly privileged. The Kurds, for instance, are represented 
by secular parties and many of the Iraqi exiles are secular. 
Furthermore, the dominant ideology of Iraq since the early 1960s, the 
Ba'ath, had been nationalist and secular in orientation and this is 
bound to have left some impression on the political consciousness of 
the Iraqi people. It remains to be seen what weight the secularist 
forces will have in the country once matters have settled down further. 
Nonetheless, it is unlikely that any radical secular program will take 
hold in Iraq. A majority of Muslim Iraqis will not agree to abandon the 
Shari'a in matters relating to personal status law (i.e., marriage, 
divorce, inheritance). Nor will non-Muslim Iraqis (Assyrians, 
Chaldeans, Armenians) abandon their religious courts in the same areas 
of the law. Religion therefore will remain a political factor, 
hopefully one relegated to the personal or private realm; a feature 
that should not prove unfamiliar to us in the United States.
    Finally, Iraq has had a period of political pluralism (albeit 
limited) under the Hashimite monarchy--during which a constitution was 
written, in 1925. This document as well as the historical memories and 
practices of the pre-Ba'ath period must be invoked and revived at the 
present moment. At the very least, this would give the efforts of the 
United States a legitimizing historical backdrop and would make the 
attempt of reforming and rebuilding Iraq appear less contrived.

    Senator Cornyn. Thank you, Professor.
    Dr. El Fadl.

STATEMENT OF KHALED ABOU EL FADL, PROFESSOR OF LAW, UCLA SCHOOL 
                             OF LAW

    Dr. El Fadl. Thank you very much. I'll start out by a 
comment about the nature of constitutions. I think it is 
important, as we go about playing the supportive role vis-a-vis 
Iraq, to remember that constitutions are documents that 
memorialize structural and procedural commitments, but that 
also, and even more importantly, constitutions are instruments 
for making ethical and moral commitments.
    In that sense, it is important to remember that a 
constitution must reflect prevailing normativities, prevailing 
ethical and moral commitments within a social structure. But 
they also must be instruments capable of educating and 
sponsoring an evolving dialog within society. Constitutions 
that are static, that are closed the minute they are drafted, 
have an awfully terrible habit of failing.
    Now, I think that it is crucial from the start that there 
be no dilution and no wavering on the ethical commitment made 
toward one significant moral issue, that is the issue of 
individual rights. I think that needs an honest and committed 
discourse, and one in which individual rights become the 
centerpoint and the core for a constitutionalism that would 
start the process of evolution and education in Iraq.
    A constitution in Iraq will fail if the constitutional 
document, instead of being an expression of the moral 
commitments of the Iraqi people, becomes a symbol of denial of 
sociopolitical autonomy. If the constitution is associated with 
such a denial, it will be, like many other constitutions in the 
Middle East propagated by an elite--whether the elite is pro-
Western or anti-Western, it hardly makes a difference. They 
become only paper and largely irrelevant and marginal to what 
happens in society.
    The second situation where a constitution in Iraq will 
fail, is if the constitution becomes a symbol for losing 
religious authenticity, or what the Iraqis might consider as a 
religious truth. Here, it is important to remember that 
contrary to popular understandings or stereotypes, the Ba'ath 
regime, the regime of Saddam Hussein, one of the ways that it 
has traumatized the Iraqi people is by excluding the 
possibility of free, authentic, and genuine religious 
expression in Iraq.
    The regime of Saddam, or the Ba'ath party, which was 
partially secular, narrowly defined legitimate religion and 
severely restricted what religious manifestations might take 
place in society. Therefore, we should not be alarmed or 
threatened or go into some sort of Doomsday scenario if Iraqis, 
as a reaction to that trauma of suppressing their religiosity, 
wish in the form of a constitution to make some type of 
affirmation of their religiosity, and of their religious 
commitments.
    In fact, I agree with Bernard Haykel that we should welcome 
that and see it as a positive thing. As a matter of foreign 
policy it can only work to our advantage, as long as whatever 
commitments are made vis-a-vis Islam are made in light of the 
commitments made vis-a-vis individual human rights.
    Thank you.
    [The prepared statement of Dr. El Fadl follows:]

               Prepared Statement of Khaled Abou El Fadl

Introduction to Islamic Concepts of the State
    The relationship of Islam to the state, both in theory and 
practice, has been complex and multifaceted. Islam, as a system of 
beliefs embodying a multitude of moral and ethical principles, has 
inspired a wide range of social and political practices, and a diverse 
set of legal interpretations and determinations known collectively as 
the Shari'a. Muslims believe the Shari'a to be divine law, in the sense 
that the Shari'a is based on the human interpretations and 
extrapolations upon the revealed holy book, the Qur'an, and the 
authentic precedents of the Prophet, known as the Sunna. Therefore, the 
Shari'a (which literally means the way to God or the fountain and 
spring source of goodness) is the sum total of the various efforts of 
Muslim scholars to interpret and search for the Divine Will as derived 
from the Qur'an and Sunna. Importantly, through the course of fourteen 
centuries, Muslim scholars emphasized that the main objective of 
Shari'a law is to serve the interests and well being, as well as 
protect the honor and dignity, of human beings. There is no single code 
of law or particular set of positive commandments that represent 
Shari'a law. Rather, Shari'a law is constituted of several schools of 
jurisprudential thought that are considered equally orthodox and 
authoritative. In the Sunni world there are four dominant schools of 
thought: the Shafi'is, Hanafis, Malikis and Hanbalis. In the Shi'i 
world, the dominant schools are the Ja'faris and Zaydis. The Sunni 
population of Iraq is predominately Hanafi, while the Shi'i population 
is predominantly Ja'fari.

The Historical Background of Muslim States
    The first Muslim polity was the city-state led by the Prophet 
Muhammad in Medina. But after the Prophet Muhammad died, no human being 
or institution was deemed to inherit his legislative, executive, or 
moral power. In Islamic theology, there is no church or priestly class 
that is empowered to speak for God or represent His Will. There is a 
class of Shari'a specialists (jurists) known as the `ulama' or 
`fuqaha', who are distinguished by virtue of their learning and 
scholarship, but there is no formal procedure for ordination or 
investiture. These jurists are not thought to embody the Divine Will 
nor treated as the exclusive representatives of God's law. The 
authoritativeness that a particular jurist might enjoy is a function of 
his formal and informal education, and his social and scholastic 
popularity. As to their political and institutional role, in classical 
Islamic theory, jurists are supposed to play an advisory and 
consultative role, and to assume judicial positions in the 
administration of justice. It is an interesting historical fact that 
until the modern age, jurists never assumed direct political power. 
Although, historically, the jurists played important social and civil 
roles and often served as judges implementing Shari'a law and executive 
ordinances, for the most part, government in Islam remained secular. 
Until the modern age, a theocratic system of government in which a 
church or clergy rule in God's name was virtually unknown in Islam. 
Institutionally, Islam does not dictate a particular system of 
government, and in theory, there is no inconsistency or fundamental 
clash between Islam and democracy. The Qur'an dictates only that 
governance ought not be autocratic, and that the affairs of government 
should be conducted through consultation (shura). According to the 
classical jurisprudential theory, governance should be pursuant to a 
civil contract ('aqd) between the governor and the governed, and the 
ruler should obtain a pledge of support (bay'a) from the influential 
members of society as well as the majority of his constituency. In 
theory, rulers are supposed to consult with jurists, as well as other 
representative elements in society, and then, after concluding the 
consultative process, act upon the best interests of the people. In 
classical Islam, the consultative body was known as ahl al-hal wa al-
aqd, and this body was supposed to be representative to the extent that 
it included the authoritative and popular jurists, and other 
influential members of society. There is substantial disagreement in 
the classical sources, however, on whether upon concluding the 
consultative process, the ruler is duty bound to adhere to the judgment 
of the majority, or whether he may act upon his own discretion, even if 
his opinion is contrary to the view expressed by the majority. This 
doctrine was known as ilzamiyvat al-shura. There was a strong consensus 
among the classical scholars that in principle, consultation itself is 
mandatory, but they disagreed on the extent to which a ruler is free to 
act in contradiction to the will of the majority as expressed in the 
consultative process.
    Outside this basic framework, the state was supposed to respect 
Shari'a, and strive to fulfill Shari'a's ultimate objectives in 
society. Historically, the prevailing form of government in Islam was 
known as the Caliphate, which in reality was dynastic and 
authoritarian. For about thirty years after the death of the Prophet, 
Muslims succeeded in establishing a form of government with a strong 
democratic orientation, but upon the rise of the Umayyad Dynasty, the 
democratic experiment came to an end, and power became concentrated in 
the hands of particular families or military forces. In pre-modern 
practice, to the extent that rulers adhered to the process of 
consultation at all, the consultative body was usually not 
representative of the governed, and membership in such a body was 
typically the product of political patronage and not the outcome of a 
democratic elective process.

The Adoption of European Laws by Muslim Countries in the Modern Age
    In the post-Colonial era, after most Muslim nation states achieved 
independence, the relationship between Islam and the state gained a new 
sense of urgency. At issue were the extent to which Shari'a law would 
play a role in the legal systems of the new-found nation-states, and 
the extent to which Islam would play a role in affairs of governance. 
In the period between the 1940's and 1960's, most Muslim countries 
opted for a nationalist, republican, secular model in which there is a 
very strong executive power, supported by weaker legislative and 
judicial branches of government. Some countries, such as Saudi Arabia, 
continued to be governed by a strong royal family, a consultative 
branch of limited powers, and a judiciary that implemented a mixture of 
customary law and Shari'a-based law. Most Muslim countries, such as 
Egypt, Iraq, and Kuwait imported the French Civil and Criminal Codes, 
and organized their legal systems according to the Civil Law legal 
tradition. A few countries such as Pakistan, Indonesia, and Malaysia 
were influenced by the British Common Law system, which they 
supplemented by various statutory laws enacted in specific fields. The 
extent to which the Islamic legal tradition was integrated into modern 
legal systems varied widely from one country to another, and also 
varied in accordance with the particular field of law in question. More 
specifically, in commercial and civil legal matters, most Muslim 
countries generated a synchronistic system, which was predominantly 
French, Swiss, or British, amended by various concepts and doctrines 
inspired by the Islamic legal tradition. In criminal matters, most 
countries adopted the French or British systems of criminal justice. 
Countries such as Saudi Arabia and post-revolutionary Iran rejected 
Western influences, and claimed to base their criminal laws on the 
Islamic tradition. Most of the countries of the Arabian Peninsula, some 
African nations, and Iran continued to adhere to the Islamic tradition 
in matters of personal injury and tort law. This was manifested 
primarily by the incorporation of blood money (diya), and strict caps 
on financial liability in cases of personal injury. Personal and family 
law remained the field most susceptible to Islamic influence. Most 
Muslim countries created courts of separate jurisdiction to handle 
matters related to inheritance, divorce, and marriage. In these fields, 
judges typically implement statutory laws, which were enacted as 
codifications of Islamic laws.

The Iraqi Legal Experience in the Modern Age
    It is often said that Iraq was the cradle of civilization. This is 
definitely true as far as Iraq's long and rich jurisprudential 
experience. Before Saddam came to power, Iraq, in addition to Egypt, 
was one of the most influential countries in the development of the 
legal institutions and substantive laws of the Arabic speaking world. 
This was in part due to the high level of education enjoyed by the 
Iraqi elite, and the rich cultural experiences and cosmopolitan nature 
of Iraqi urban centers, such as Baghdad and Basra. Geographically, Iraq 
was at the central point where Arab, Persian, Kurdish, and Turkish 
cultures meet and interact. As noted above, Iraq was also home to both 
Shi'i and Sunni major centers of religious study. The rich and diverse 
makeup of Iraqi society itself allowed Iraq to be the beneficiary of 
ethnic, linguistic, religious, and sectarian cultural exchanges. This 
in turn was reflected in the fact that Iraqi legal thought was 
characterized by a distinctive synchronistic quality, open-mindedness, 
and a lack of xenophobic nativism.
    Historically, the urban centers of Iraq, Baghdad, Basra, and Kufa, 
played central roles in the birth of Islamic jurisprudence, and they 
continued, over the span of a thousand years, to play a leading role in 
the development and evolution of the institutions and doctrines of 
Islamic law. In fact, the Hanafi and Ja'fari schools of Islamic 
jurisprudence, in particular, developed primarily in Kufa, Basra, and 
Baghdad in the first few centuries of Islam. Furthermore, Baghdad was 
the capital of the Abbasid Empire, the second major dynasty in Islam. 
As such, Iraq's intellectual heritage, especially as it relates to 
Islam's divine law, continued to carry considerable moral weight within 
the Muslim world.
    After gaining independence from Britain in 1930, like most Arab 
countries, Iraq eventually adopted Civil Law and Criminal Law Codes, 
which were adapted from the French and Germanic legal systems. Iraq's 
personal law, however, continued to be based primarily on Islamic law. 
Like most Muslim countries, the continuing tension, and at times 
conflict, were between Iraq's Islamic legal heritage, and the legal 
system borrowed from Europe at the end of the Colonial era. Many 
aspects of the classical tradition of Islamic law conflicted with the 
newly adopted European-based Civil and Criminal laws, and as in the 
case of many other Muslim countries, there were considerable 
sociopolitical pressures, both internal and external, to simultaneously 
Islamize and modernize.
    In the 1950's Iraq was at the forefront of the creative and 
demanding effort to adopt a system of law that was efficient, modern, 
and at the same time, Islamically legitimate. In this regard, the Iraqi 
Civil Code of 1953 was one of the most innovative and meticulously 
systematic codes of the Middle East. Iraqi jurists, working with the 
assistance of the famous Egyptian jurist Al-Sarihuri, drafted a code 
that balanced and merged elements of Islamic and French law in one of 
the most successful attempts to preserve the best of both legal 
systems. Furthermore, in 1959 Iraq promulgated the Code of Personal 
Status, which on the issues of family and testamentary law was at the 
time the most progressive Muslim code of law. Importantly, this Code 
merged elements of Sunni and Shi'i law to grant women greater rights as 
to marriage, divorce, and inheritance.
    The Iraqi Ba'ath, a staunchly nationalist and secular party, came 
to power in 1968, and Saddam formally ascended to the presidency in 
1979. It is fair to say that especially after Saddam rose to power, all 
creative and inspiring legal activity came to an end. Since coming to 
power, Saddam involved Iraq in a series of wars that enabled him to 
declare a constant state of national emergency and to rule mostly by 
executive order. The centralization of power in the hands of the Ba'ath 
and Saddam meant that legal institutions lost all vestiges of 
independence, and civil society became thoroughly co-opted by the 
ruling party. Increasingly, Iraqi law could no longer be described as 
either Islamic or French, but as distinctly and uniquely Saddamian. The 
death sentence was prescribed for a large variety of offenses including 
usurpation of public money, corruption, insulting the Presidency, and 
treason, which was defined very widely. The implementation of these 
laws was highly whimsical and largely contingent on the will of the 
party and President. Even foreign investments became largely dependent 
on having the proper connections to the ruling elite, and tapping into 
a network of businessmen who were sanctioned and protected by a clique 
that was close to Saddam and his family.

The Islamization of Laws in Modern Muslim Countries
    The period between the 1960's and 1970's witnessed the emergence of 
fundamentalist Islamic movements that materially impacted the 
constitutional place of Islam in the various Muslim states. Building 
upon the positions of some pre-modern theological orientations, most 
fundamentalist groups, but not all, contended that sovereignty belongs 
only to God (al-hakimiyya li'llah), that governments ought to represent 
and give effect to the Divine Will, and that there ought to be a strict 
adherence to the detailed determinations of religious scholars. The 
fundamentalist orientations of that period are most accurately 
understood as oppositional nationalistic movements dissatisfied with 
the status quo, and utilizing religious symbolisms as a means of 
claiming authenticity and legitimacy. The problem, however, is that 
fundamentalists tended to treat Shari'a as a code of law containing 
unitary and uncontested specific legal determinations, and also tended 
to ignore the highly contextual socio-historical nature of most of 
Islamic jurisprudence. The Islamic legal tradition is too diverse, 
diffuse, and amorphous to yield to the type of narrow treatment 
afforded to it by fundamentalists. In addition, taken out of its socio-
historical context, parts of Islamic legal tradition become problematic 
in terms of contemporary international human rights standards.
    Although fundamentalist movements did not achieve direct power in 
most Muslim countries, they generated political pressure towards what 
might be described as greater symbolic Islamization. As a part of their 
Islamization efforts, a large number of Muslim countries drafted in 
their constitutions articles that either stated: ``Shari'a is the main 
source of legislation,'' or ``Shari'a law is a main source of 
legislation.'' The former version made Islamic law the near exclusive 
source of law for the nation, while the latter version mandated that 
Islamic law be only one of the several sources of law making in the 
country. Importantly, however, especially for countries that adopted 
the former version, the Shari'a clause was deemed not to be self-
executing. This meant that the Shari'a clause was deemed to be 
addressed to the legislative and executive powers in the country, and 
not the judiciary. Accordingly, the judiciary would not, on its own 
initiative, give effect to Islamic law. Rather, Shari'a law needed to 
be implemented or executed by statutory law, and only upon the 
enactment of such statutory laws would the judiciary be bound to give 
it effect. Effectively, this meant that in most instances the Shari'a 
constitutional clause would remain dormant until made effective by 
statutory law. Nevertheless, at the political level, Shari'a clauses 
played an important symbolic role. In addition, Shari'a clauses were 
often cited by courts in resolving possible ambiguities in statutory 
law by referring to the principles of Islamic jurisprudence.
    Other than the Shari'a clauses found in the constitutions of many 
Muslim nations, a large number of countries incorporated Islamic law in 
their civil codes as one of the sources of legal construction. 
Typically, there is a clause written into the civil code instructing 
judges to interpret a statute by referring to the explicit meaning of 
the words of the statute. In cases of ambiguity, a judge is instructed 
to refer first to the established principles of Islamic law, and second 
to the prevailing customary practices in the country. In several Muslim 
countries, in cases of statutory ambiguity, judges are instructed to 
refer to custom first, and then to Shari'a law. Such civil code Shari'a 
clauses have their biggest impact upon the commercial practices of 
Muslim countries, depending, for the most part, on the clarity and 
specificity of the statute being interpreted by a court.

The Purported Islamization of Laws in Iraq
    After the Gulf War of 1991, and especially after the rebellions in 
the South and North, Saddam announced that he would implement Islamic 
law in Iraq, but he did so primarily as a legitimacy and popularity 
ploy. Saddam had systematically obliterated all Islamic, Sunni and 
Shi'i opposition, and especially after quelling the rebellions that 
plagued the country at the conclusion of the first Gulf War, Saddam had 
achieved notoriety for executing more Muslim scholars and jurists than 
any other leader in the modern history of Islam. Suddenly, the 
staunchly secular Saddam discovered religion and made a point of 
getting himself filmed performing his prayers, or would interrupt media 
interviews, announcing that he must pause for prayers. Saddam's 
implementation of Islamic law was equally theatrical. On occasion, he 
would announce that a group of individuals will have their hands cut 
off for theft, or will be executed for adultery. The carrying out of 
these punishments were something of public spectacle, in which people 
would be forced to watch the gruesome affair at the risk of being shot. 
Since the charges and trials, and often even the names and identities 
of the suspects were not made public, strong suspicions persisted that 
those being punished were actually people accused of being opponents of 
the regime. It is not an exaggeration to conclude that since the late 
1970's the Iraqi legal experience can be summed up as the following: 
There was no rule of law in Iraq, but only the rule of fear.

Comparative Models Regarding the Role of Islam in the Constitutions of 
        Modern Muslim States and a Cost and Benefit Analysis of Each 
        Model
    Considering the wide range of technical and symbolic roles that 
Islam, in general, and Islamic law, in particular, have come to play in 
the world, it is useful to summarize the dynamics between Islam and the 
modern state in four basic models. These models will help place the 
various constitutional experiences, as far as Islam is concerned, in 
comparative perspective. In the process of explaining the four models, 
I will also analyze some of the costs and benefits associated with 
each. This will enable us to better assess the risks associated with 
any particular policy implemented in modern day Iraq.

            Number One: The Strict-Separationist Model
    According to this model, there is strict separation between Islam 
and the state. The state represents purely secular interests, and 
religion is not formally integrated in the political or legal system. 
Although the country in question might be predominately Muslim, there 
is no reference to Islam in the constitution or civil code, and 
personal laws are not based on nor inspired by Shari'a law. In this 
model, religious scholars and institutions may exist as a part of civil 
society, and they may even receive limited subsidies from the state, 
but they do not play an institutional role in the power structure, and 
they do not formally participate in formulating policy or the 
production of law.
    This model, however, has not been widely adopted in Muslim 
countries. The prime examples of such a model are Turkey, Mauritania, 
Albania, and some of the former Soviet republics. Usually this model 
engenders wide opposition, and therefore, it tends to require heavy-
handed repression by the state. Alternatively, as is the case with 
Turkey, it requires the dissemination of a widely popular civic 
ideology, such as Attaturkism, which thoroughly revises and reinvents 
the inherited cultural and religious convictions and practices. In the 
case of the former Soviet republics and Albania, this ideological role 
was played by Communism.
    It is debatable whether this model is necessary for the existence 
of a liberal democracy. While all democracies generally recognize the 
necessity of separation between religion and state, according to this 
model, the separation is strict, dogmatic, and unwavering. Religion is 
not accommodated in any facet of public life, and the state has no 
religious identity whatsoever--it is not Muslim, Christian, or Jewish. 
The state does not fund religious institutions, and does not 
participate in any public displays of religion. But not all democracies 
have found it necessary to maintain a rigidly separationist policy as 
far as religion is concerned. Poland, Israel, India, and even England 
cannot be considered strict separationists, although they have managed 
to establish strong democratic systems. These four countries, and many 
others, have a very complex dynamic, where the government does not rule 
in God's name, but it does accommodate various aspects of religious 
practice and identity. In these countries, although the government 
guarantees the rights of all religious minorities, the government is 
not entirely impartial towards all religions. Even more, the countries, 
these governments represent, might even have a certain religious 
identity, such as Jewish, Catholic, or Protestant.
    While the strict separationist model can guarantee absolute 
equality of religious freedom, its uncompromising secularism often puts 
it at odds with the religiously based sentiments of the majority of 
citizens. If the majority of the citizenry has a strong sense of 
religious identity, often the state is forced to clash with the 
sentiments of the majority, and as a result, the state ends up using 
heavy-handed tactics, largely at the expense of human rights. 
Consequently, the state becomes alienated from its citizenry, and the 
country exists in a perpetual condition of political turmoil and 
instability.

            Number Two: The Accommodationist Model
    This is the model adopted by a large number of Muslim countries 
including nations such as Syria, Algeria, Tunisia, and Iraq. In 
general, the institutions of the state are separated from religion, and 
Shari'a is excluded as a formal source of law. The personal and family 
law codes, however, are based on Islamic law, and are implemented by 
Shari'a courts. Although the constitution may assert the Muslim 
character of the nation, Shari'a is not indicated as a source or the 
source of legislation. In addition, the impact of Islamic legal 
precepts or precedents upon the commercial and civil codes is very 
limited. The most distinctive aspect of this model is that except for 
the personal and family law fields, Islamic law is not integrated in 
the mechanisms of the state, and Islam does not provide the guiding 
principles for the polity. Islam is accommodated in the sense that it 
dominates the field of inheritance, marriage, and divorce, and Islamic 
religious practices are permitted to exist, and often thrive, as a part 
of civil society, but the state does not actively promote the precepts 
of the religion, and does not give religious parties or interests a 
formal role in governance. In the Accommodationist Model, the religious 
endowments, usually inherited from previous eras, are allowed to exist, 
but they are placed under state control, and are permitted a very 
limited degree of autonomy. Mosques are often licensed and administered 
by the state, and imams (preachers who perform the call for prayer and 
lead prayer) are typically appointed by the state as well. Usually, the 
state will determine the appropriate subjects and content of the Friday 
sermons given in these mosques.
    At the official and formal levels, this model keeps religion at a 
considerable arms length. But there are two distinctive risks in this 
model. Like the strict separationist model, it could generate 
considerable amount of religious opposition, and lead to a polarizing 
confrontation with Islamist forces. The other risk, and the more subtle 
one, is that unwittingly it could lead to considerable involvement with 
religion. Often in an effort to limit the popularistic and charismatic 
potential of the religion, the state is forced to involve itself with 
the regulation of religious expression, which, in turn, could invite 
greater repressive powers by the state.

            Number Three: The Integrationist Model
    In this model, there is greater formal involvement by the state 
with religion, but the political institutions continue to maintain 
their autonomy and separate existence from the religious institutions. 
Particularly in the decade of the 1970's, this model became more 
widespread and influential. Currently, examples of the integrationist 
model may be found in Egypt, the United Arab Emirates, Kuwait, Oman, 
Pakistan, Bangladesh, and Indonesia. The distinctive paradigm of this 
model is that while the state does not seek to implement all the 
technical prescriptions of Islamic law, and the state does not pretend 
to be the enforcer of canonical Islam, Islam and the Shari'ah are 
recognized as formal sources of moral and ethical inspiration. 
Furthermore, within the contextual limits of each country, there is an 
effort to integrate Islamic legal principles not just in the civil and 
commercial law fields, but also as they pertain to social justice, and 
public ethical norms. As mentioned above, Islamic law is identified as 
one of the main sources of legislation in the constitutional framework 
of the country, and the jurisprudential tradition of Islam could be 
referenced in order to resolve possible ambiguities in statutory law. 
Pursuant to this model, however, Islamic law is not self-executing, and 
Shari'a is considered a second frame of reference after statutory law. 
Therefore, only in the absence of statutory law on point will courts 
resort to Shari'a law or customary law, and in most countries judges 
are given guidance on which of the two, Shari'a or custom, is to take 
priority. Considering the vastness of the Islamic legal tradition, some 
countries instruct judges to apply a particular school of thought, for 
instance, the Hanafi School, or even to refer to a particular text, for 
instance, the Hidayah and/or the Majalla. In principle, it is possible 
for this instruction to vary from one province to another, within a 
single country, in order to accommodate the demographic differences 
within the country. For instance, in the absence of statutory law 
judges in one province may refer to Hanafi jurisprudence, while in a 
different province judges may refer to Ja'fari jurisprudence. Because 
Islamic law is applicable only in the absence of statutory law, and 
possibly in the absence of customary law as well, at the national 
level, the differences in legal application will be minor and 
technical.
    There are many potential institutional frameworks that make it 
possible to formally integrate the ethical and moral principles of 
Islam without creating a theocratic state in which a group of religion 
experts override the will and choice of the people. For instance, a 
group of religious scholars may contribute input to proposed 
legislation, but without having veto power over such law making 
efforts. Such a group of religious scholars may be elected or appointed 
to the legislative or parliamentary body, and may constitute a 
percentage of such body. In this fashion, the religious scholars may 
comment directly on proposed legislation, and their view of what is 
Islamically acceptable or mandated may be given due consideration. In 
several countries, especially if appointed by the executive, this group 
of religious scholars does not have the power to vote on legislation, 
but are given an opportunity to comment or advocate a particular point 
of view. In some countries, instead of reserving a place for religious 
scholars in the legislative branch, there is a separate body, often at 
the level of ministry, which is regularly consulted by the legislative 
body and asked to comment on proposed legislation. The comments of this 
religious consultative body are either read or distributed in the 
legislature or parliament, and are often printed and published as well.
    The earmark of the integrationist model is that, on principle, it 
does not seek to exclude Islam from the public manifestations of life. 
However, the Integrationist Model formally recognizes Islam's leading 
ethical and social educational role, and it allows Islam to manifest 
itself in public life through the personal convictions and commitments 
of lawmakers. Importantly, the Integrationist Model's consistent with 
the historical experience of Islam, and the traditional role of 
Shari'a. The Qur'an itself asserts that there can be no coercion or 
duress in religion, and the Integrationist Model attempts to avoid 
transforming religion into the coercive instrument of the state. It 
also attempts to avoid institutionalizing a particular group of 
spokesmen as the enforcers of the Divine Will. In addition, the 
Integrationist Model tends to respect the enormous diversity and 
richness of the Islamic jurisprudential tradition by refusing to 
enforce one particular view to the exclusion of all others.
    The main shortcoming of the Integrationist Model is that at the 
level of political symbolism, this model is not always capable of 
leveraging itself politically in order to emphasize its consistency 
with Islamic paradigms. In other words, because the state does not 
position itself as the strict enforcer of the Divine law, at times, it 
is challenging for the state to avail itself of the perception of 
Islamic authenticity and legitimacy. However, this model is not as 
vulnerable to accusations of being disconnected from its Islamic 
heritage, or accusations of excluding Islam from public life, as the 
previous two models.

            Number Four: The Requisitionist Model
    This model is the closest to a theocratic government, except for 
the fact that there is no consecrated church in Islam. The state 
selects the canonical doctrine, which the state believes represents the 
correct Islamic position, and enforces it both as the will of the state 
and God. This model has been adopted by a few countries, which include 
Saudi Arabia, Iran, and for a period of time, Sudan. The Requisitionist 
Model has taken different shapes and forms, some of which are able to 
achieve a greater degree of democratic practices than others. For 
instance, Iran gives a council of jurist-consuls and other high-ranking 
clergymen a near absolute veto power over legislation and policy. In 
Saudi Arabia, the executive empowers the judiciary to implement Islamic 
law, assisted by executive orders or regulations that dictate policy or 
particular limits. The important element in this model is that 
depending upon one's perspective, the state is requisitioned in the 
service of religion, or religion is requisitioned in the service of 
state. In all cases, there is an institutional body that determines the 
Will of God, and enforces it as such. As such, typically in this model, 
all courts are considered Shari'a courts charged with the enforcement 
of Islamic law, as defined by the state. Courts follow the instructions 
of the state as to what constitutes Islamic law, and in some cases and 
in particular fields, courts are granted wide law making powers.
    The difficulty with this model is two-fold: One, an institution or 
group of institutions becomes empowered with the gloss of divinity, and 
therefore, it is very difficult to reconcile this model with democracy. 
Second, this model tends to narrowly define orthodoxy because it favors 
one particular Islamic perspective over all others. Arguably, this has 
the serious potential of undermining the richness and diversity of the 
Islamic tradition.

The Spectrum of Models
    It is important to note that the four models identified here are 
approximations of the earmarks of actual practices of modern Muslim 
states. However, there is a spectrum that exists within each model and 
between one model and the other. Therefore, it is possible that an 
Accommodationist state borders on being Integrationist, and it is also 
possible that an Integrationist state would act as Requisitionist over 
some issues and under certain circumstances. For example, Egypt, over 
most issues, is Integrationist, but at times, acting upon the 
instructions of the Azhar University, it bans certain books that it 
considers religiously offensive. In those instants, it is acting 
pursuant to the Requisitionist model. Furthermore, some countries, such 
as Jordan, have experimented with the Integrationist model but of 
lately have drifted towards the Accommodationist model. On the other 
hand, for example, Sudan has drifted from a Requisitionist orientation 
to a more integrationist stance.

The Case of Iraq and the Iraqi Constitution
    There is little doubt that many Iraqis are aspiring for a 
democratic order that would guard against the kind of abuses that they 
for long have had to endure. The formidable challenges confronting 
Iraqis include how to overcome the absolute jurisprudential 
impoverishment that they suffered under the Ba'ath, while reclaiming 
their creative legacy; how to find justice in post-Saddam Iraq, while 
avoiding the destructiveness of vengeance; and how to make the law a 
shield and tool in the hands of the people; and not an oppressive sword 
in the hands of the state. On the legal front, the challenge will be 
how to establish order and stability, while still allowing the law to 
be an agent of progressive change. It is important in this regard to 
note that the rule of law is a necessary condition for a democracy to 
exist, but it is not enough. Democracy is not just about the 
objectivity and fairness of process or the division and separation of 
power between various branches of the government. Democracy is also not 
just about giving effect to will of the majority, or accountability to 
the people. Democracy is about a moral commitment to the fundamental 
and basic worth and dignity of each and every member of the citizenry, 
and the conscientious engineering of government and society so as to 
make human beings secure in their rights.
    Importantly, this moral commitment can be expressed through law, 
but it cannot be not created or invented by legal command. Democracy is 
not secured by drafting good laws alone, but it must be made a part of 
one's cultural and ethical view. Considering Iraq's rich civilizational 
heritage, there is no doubt that Iraqis will be looking, and rightly 
so, into their pre-Ba'th legal and moral history for inspiration and 
guidance on how to make the moral commitment and develop the ethical 
worldview necessary for a democracy. In this context, it is important 
for American policy makers to understand that Iraq's legal and ethical 
history did not start with the overthrow of Saddam. A major component 
of the Iraqi heritage is the Islamic faith, and the leading role that 
Iraq played in the development of Islamic law. But here is where Iraq's 
creative legacy is most needed. A dual commitment to Islamic law and 
democracy is possible, but only if Muslims understand Islamic law to 
reinforce the same commitments made by democracy to individual human 
rights and dignities. This is exactly where Iraq might be able to 
reclaim its leading educative and inspirational role towards the rest 
of the Muslim world. It will be a revolutionary step if Iraqi legal 
minds are able to reinterpret and rethink the Islamic classical 
tradition in a way that upholds the basic individual rights necessary 
for a democratic order.
    Opting for either the Strict-Separationist or Requisitionist 
(theocratic) Models in Iraq will be nothing short of a disaster for the 
Iraqi people, Muslims, in general, and the West. The establishment of a 
theocracy in Iraq will inevitably lead to a denial of human rights, the 
marginalization and exclusion of Iraq from the world community, and 
considerable sectarian tensions between Shi'i and Sunni Muslims. But 
even more, a theocracy is an affront to the wisdom of Islam, the 
diversity and richness of Shari'a, and to the historical legacy and 
established precedent of Muslims around the world. But the forcible 
exclusion of Islam from public life, state sponsorship, and all legal 
and constitutional documents will be a disaster of equal proportions. 
The worse thing that the government of the United States can possibly 
do, while acting as an occupying power in Iraq, is to impose upon the 
Iraqi people a political condition that is so artificial--that is so 
alien to the collective consciousness of the Iraqis, and that is at 
odds with their historical experience and aspirations--that it appears 
that the United States is, in fact, acting like a power of occupation 
and domination, not persuasion and liberation. The danger is that if 
the United States appears hostile or insensitive to the religious 
sentiments of the Iraqis, this will invite resistance. It will be a 
real tragedy if the democratic experiment in Iraq fails, not because 
the Iraqis do not believe in democracy, but because democracy is seen 
as part of the ideological package of an aggressive or imperialistic 
occupying force.
    The United States government must successfully communicate to the 
Iraqi people its desire to help them to practice their religion, if 
they so desire, more fully and freely, not force upon them a situation 
that they will view as hostile, deprecating, or insensitive towards 
their faith based commitments and beliefs. More concretely, the United 
States government should not resist, and, in fact, should tolerate and 
support, any efforts by the Iraqis to (1) define the religious identity 
of their country; (2) preserve the sanctity and inviolability of 
Islamic law in certain areas of legal practice that the Iraqis define 
as highly personal and intimate to their identity and will as a people; 
and (3) define Islam in such a way that it is consistent with democracy 
and human rights. For instance, if the Iraqis wish to proclaim a bill 
of individual rights, in their constitutional document, and further 
wish to assert that this bill of rights is derived from their Islamic 
commitments and understandings, the United States should encourage such 
a move. The United States government ought not be suspicious of any 
effort by the Iraqis to anchor their human rights and democratic 
commitments in novel or original interpretations of the Islamic 
tradition. It should be noted that I am not advocating that the 
government of the United States dictate any Islamic positions or 
establish any religious doctrine. The key here is that whatever efforts 
are made on behalf of Islam must be driven by Iraqis themselves. I am 
only addressing possible responses or reactions by our government to 
anticipated Iraqi initiatives on behalf of their religious identity and 
faith. If the Iraqis are able to articulate their democratic and human 
rights choices in terms of Islamically compelling positions, this will 
have the long-term advantage of transforming the Iraqi experience into 
a normative precedent for all Muslim nations. If Iraqis can 
successfully establish that it is their Islamic faith that inspired 
them to commit to democracy and human rights, this is bound to have a 
far reaching impact upon Muslim countries and nations around the globe, 
and United States would have played the role of partnership and 
sponsorship in generating this pivotal development in Muslim history.

The Japanese and German Post World War II Model and the Democratic 
        Challenge in Iraq
    When evaluating the chances of democracy in Iraq, in many ways, the 
establishment of capitalist democracies in Germany and Japan in the 
Post World War II period becomes an encouraging precedent. One can 
rightly take pride in the transformation of these two countries into 
democratic world powers under American sponsorship. The precedent of 
both these countries does indicate that democracy can be taught and 
transplanted, and that it does not necessarily have to emerge through 
the natural socio-political processes within a particular country. 
There are, however, several elements that counsel against assuming that 
whatever worked in Germany and Japan will necessarily work in Iraq. The 
following are some of these elements of difference and distinction:

   1. Both countries before their democratic transformation were 
            heavily industrialized countries with advanced economies 
            and very high productivity. The United States was able to 
            inject capital into the war torn, but developed, economies 
            of both countries, and by doing so, the United States was 
            able to re-set both nations on their path of economic 
            progress. Although highly despotic governments dominated 
            both Germany and Japan, there were strong, developed, and 
            sophisticated entrepreneurial classes ready and set to 
            share power once these despotic governments fell. In this 
            regard, the situation in Iraq is markedly different. Iraq 
            is not an industrialized or technologically advanced 
            country. Furthermore, Saddam had severely weakened the 
            entrepreneurial class and forced them into a symbiotic 
            relationship with the state in which they were more like 
            economic leeches heavily dependent on a very corrupt 
            government for their survival. This is bound to make the 
            distribution of economic base and power in Iraq more 
            challenging, and will require a much heavier investment of 
            venture capital in order to create a productive economic 
            system that can support a democracy.

   2. Levels of literacy, education, and technological development were 
            already very high at the time of the American occupation of 
            Japan and West Germany. Democracy is much better secure and 
            supported in societies enjoying a high level of literacy 
            and education. Literacy and education contribute to the 
            creation of sophisticated civil societies and are conducive 
            to the development of civic virtues, such as social and 
            political responsibility, accountability, compromise, and 
            the sharing of power, which are importing for nourishing 
            and guarding a democracy. Literacy and education levels in 
            Iraq, although higher than some of the countries in the 
            region, are low when compared to West German and Japanese 
            standards.

   3. Historically, both Germany and Japan were colonizing, not 
            colonized, nations. Unlike Iraq, Germany and Japan did not 
            have to deal with a collective historical memory that 
            labors under the trauma of colonialism. This meant that 
            both countries were relatively more receptive to the influx 
            of ideas and influences coming from the United States, 
            specifically, and the West, more generally. Unlike Iraq, 
            there was no national trauma induced by long periods of 
            occupation and domination, and a deeply ingrained sense of 
            distrust and suspicion focused on the West.

   4. Before the war, Germany and Japan followed a particular ideology 
            that had become utterly undermined and discredited after 
            World War II. The ideological defeat was complete and 
            thorough, and the German's and Japanese were ready for an 
            ideological transformation. In the case of Iraq, even if 
            one asserts that the defeat of Ba'athism, the secular 
            nationalist ideology of Saddam and the ruling government of 
            Syria, is complete, Ba'athism is not the issue. The issue 
            is the inclusion or exclusion of Islam in the 
            constitutional document of Iraq. Not only is Islam not a 
            discredited ideology, it is not an ideology at all. As a 
            religious faith, it has its own set of demands on its 
            followers. If the United States forces Iraqis into a 
            position in which they have to choose between the demands 
            of their religion and demands of their constitution, the 
            constitutional document will not penetrate deeply into the 
            socio-political fabric of Iraq, and these competing demands 
            are bound to generate tensions and strong resistance.

   5. Iraqis, as Arabs and Muslims, are firmly situated within a 
            particular socio-historical context. Iraq does not only 
            influence the countries and people situated within its 
            region, but is also, in turn, influenced by them. It is 
            important that the United States not contribute to a 
            situation in which Iraq becomes, by our decree, 
            artificially alienated from its context. If Iraq's 
            distinctive Muslim and Arab character is artificially 
            diluted, and its policies become a replica of American 
            preferences and policies, this will only confirm the status 
            of Iraq as a country occupied by an alien power. Put 
            differently, it is important to avoid giving the impression 
            that Iraq is a mirror of the United States, and no longer 
            authentically Iraqi. Such an impression is bound to further 
            radicalize and polarize the region, and will in the long 
            term, inevitably, backfire. The regional contexts of 
            Germany and Japan were completely different. Any possible 
            German or Japanese opposition to American policies could 
            not gain inspiration or support from its regional 
            surroundings. Obviously, the situation in Iraq is 
            decisively different. It is important that in the process 
            of saving Iraq, the United States does not end up losing 
            the region.

Respecting the Iraqi Choice
    These material differences, among many others, between Japan and 
Germany, on the one hand, and Iraq, on the other, are mentioned here to 
emphasize the distinctiveness and particularity of the challenge in 
Iraq. In my view, we cannot afford to deal with Iraq as the vanquishing 
victors, and expect the Iraqis to mold themselves after our image. It 
is important that the United States displays a considerable amount of 
sensitivity and respect for the Iraqi history, civilization, and 
religion. Therefore, it would be a serious mistake to deny Iraqis the 
opportunity to define themselves--even if this self-definition would 
include choices regarding the public role of religion that would not be 
our own.

    Senator Cornyn. Thank you very much, Doctor.
    Mr. Al-Sarraf.

  STATEMENT OF SERMID AL-SARRAF, MEMBER, BOARD OF DIRECTORS, 
                   IRAQI JURISTS' ASSOCIATION

    Mr. Al-Sarraf. Thank you, Chairman Cornyn, Chairman Chafee, 
Senator Feingold. I am pleased to be here today as a member of 
the Iraqi Jurists' Association, the Working Group on 
Transitional Justice with the State Department's Future of Iraq 
project, and as a Muslim-American attorney from California, to 
discuss the challenges which face Iraq and the Coalition 
Provisional Authority, the CPA, with regard to reestablishing 
the rule of law in this post-Saddam era.
    Senator Cornyn. Could I ask you to pull the microphone a 
little closer to you so we can hear you a little better? I 
appreciate it.
    Mr. Al-Sarraf. I'm not going to repeat the description of 
the IJA and its history. It's recorded in my written statement, 
which I will include with the record.
    The challenges on the road to restoring the rule of law in 
Iraq can be broken down into two categories, those facing the 
Iraqi people, and those facing the Coalition Provisional 
Authority, or the CPA, and in particular, the role of the 
United States. The working group report, which was submitted to 
the committee and is fairly extensive in English and much more 
extensive in Arabic, roughly 750 pages, goes into great detail 
as to the challenges facing the Iraqi people, so I'll focus my 
time here today on those challenges that face the Coalition 
Provisional Authority and, in particular, the United States.
    The three major challenges, as I see them, are: (1) 
delivering on promises, (2) applying appropriate resources to 
the task, and (3) understanding Iraqi society and enfranchising 
and empowering Iraqis themselves.
    On delivering on promises, the U.S. has a small window of 
opportunity to make good on its promises before the situation 
in Iraq spirals out of control. A definitive success in Iraq 
may be the key to restoring our image as a Nation that stands 
for liberty, democracy, and respect for human rights both at 
home and abroad.
    In the eyes of Iraqis inside Iraq, prior U.S. foreign 
policies were marked by broken promises, the most prominent of 
which was the one made immediately after the first Gulf War, 
which promised U.S. support for the Iraqi people if they were 
to rise up against Saddam. When they did, in overwhelming 
numbers, 14 of 18 provinces were liberated from Ba'ath party 
rule. The U.S. and other allied forces stood by and watched as 
Saddam Hussein brutally massacred tens of thousands of 
civilians to maintain his grip on power.
    Now, while Iraqis are, on the whole, relieved and genuinely 
appreciative that Saddam was removed, they are also 
simultaneously wary of the coalition forces' true intentions. 
They ask the question, after supporting Saddam during the Iran-
Iraq war, defeating him in Kuwait while tacitly supporting his 
efforts to stay in power and forcing devastating sanctions 
which ultimately strengthened his rule and punished the Iraqi 
people, what has changed?
    It is critical that the CPA understand this backdrop and 
the environment in which it operates. The initial objective of 
moving in quickly with civilian and humanitarian assistance to 
effect an immediate improvement in the day-to-day living 
conditions was unquestionably the correct policy. 
Unfortunately, and without regard to root causes, in the areas 
of security, lack of electricity, telephones, and other basic 
services, this policy has not been fully achieved.
    Because of this backdrop, there is very little room for 
delays and mistakes, which the Iraqi people perceive in the 
context of a continuum of past policies. In terms of applying 
the appropriate resources to the task, I'd like to describe 
this challenge by way of a specific example taken from the 
front page of the Washington Post on May 21, 2003, in an 
article entitled, ``Ad-Libbing Iraq's Infrastructure.''
    One of the examples of this ad-libbing was the case of the 
courts in the southern city of Najaf. A recent law school 
student, an Army reservist from Wisconsin, without deference to 
the State of Wisconsin, with 1 year of training in Arabic, was 
tasked with reestablishing the courts in the city. One of the 
first actions that was taken was to have all of the lawyers 
vote on the judges, whether they would keep their positions. 
For perspective, if this was done in L.A. Superior Court, I can 
guarantee you that many of the lawyers would not be voting for 
the most qualified or most impartial judges.
    This is not a knock on the service person. In fact, she 
made significant advances in involving women jurists, to her 
credit. She is simply executing her orders to the best of her 
ability. This is a critique of the policy, however, that fails 
to understand and appreciate the needs and apply the 
appropriate resources to the task.
    This is not an isolated incident. In early May, the 
Department of Justice sent a judicial assessment team to Iraq. 
Not one of the roughly 11 members of this team were Iraqi legal 
professionals, or even native Iraqi Arabic speakers, despite 
the fact that the DOJ conducted a 2-week training program on 
international humanitarian law just a few weeks prior to 25 to 
30 prominent Iraqi jurists.
    Today, you saw in the Washington Post, I'm sure, the 
article about the military versus the civilian reconstruction 
and the problems that the military was having in rising to the 
occasion, and this is not a plug for the Washington Post, by 
the way, but if I were a jurist inside Iraq witnessing these 
events, I would think to myself that the CPA and the U.S. are 
not taking this task seriously, and this is not for lack of 
expertise.
    The U.S. has access to, particularly in the State 
Department and the Future of Iraq project, many, many experts, 
and unfortunately the rifts between the various departments 
within the U.S. Government have stymied these efforts.
    The third challenge, understanding Iraqi society and 
enfranchising Iraqis, part of the problem with assessing the 
appropriate resources is a fundamental lack of understanding of 
Iraqi society, its history, and its people. Many assumptions 
are made based on experiences of other countries, such as 
Afghanistan, post-World War II Germany, and Japan.
    Iraqi is a country with a legal tradition which predates 
Saddam Hussein and the Ba'ath Party. Its legal system is based 
on a combination of Shari'ah law derived from the Ottoman era 
and civil law derived from the French legal code. Among its 
people are highly qualified legal professionals, judges, 
lawyers, prosecutors and law professors both inside and outside 
the country.
    Piecing together a legal framework for this transition 
period is not as complex as the example of Afghanistan and, 
unlike Germany and Japan of the World War II era, Iraqis did 
not elect nor freely accept the Ba'ath Party nor Saddam's 
regime. The main victims of Saddam's regime were his own 
people, and they sacrificed greatly in numerous attempts to rid 
themselves of this regime. The vast majority of lower level 
members of the Ba'ath Party joined not out of loyalty or 
belief, but out of dire necessity or fear of death.
    How did this understanding change the CPA's approach? 
First, most Iraqis are more than happy and willing to 
participate and take the lead in the de-Ba'athification 
process. The Iraqi people do not need to be convinced about the 
evils of the prior regime. They know it, they lived it, and 
many died because of it. It is critical not to disenfranchise 
those who would otherwise be supporters. This has happened with 
the disbanding of the military, with hundreds of thousands of 
people dependent upon their salaries for their basic survival.
    Second, among Iraqis themselves are qualified 
professionals, with sound reputations both inside and outside 
Iraq. It is critical that the CPA tap into this important 
resource. I know that this effort has begun in certain 
ministries, but it needs to continue and expand. Iraqis in 
particular in the legal field are very sensitive about outside 
involvement in the Arab world, especially if they are from 
countries perceived to have benefited or cooperated with the 
prior regime. Even for exiled Iraqis, their role should be 
limited to advising, consulting, and assisting, and not include 
positions of authority unless specifically elected by the 
people themselves in free and open elections.
    Based on my conversations with trusted exiles, trusted 
sources in-country, Iraqis are feeling like strangers in their 
own country. Either through neglect, lack of understanding, or 
for the sake of expediency, current efforts seem to be avoiding 
direct Iraqi involvement and their opinions in important 
decisions.
    Disbanding the military in such a manner is one such 
example, and I'd like to just respond to one of the comments 
about reducing the number of Ba'ath Party members in the 
exclusion from or lustration from government service. While I 
agree that their families need to be supported, and the 
measures should be looked at to extend their benefits and their 
salaries, I think there should be no wavering on the principle 
of excluding Ba'ath Party members from public office.
    Senator Cornyn. We want to make sure we get a chance to ask 
questions and so forth. Could I ask you, please, to wrap up 
your original comments?
    Mr. Al-Sarraf. Yes.
    Senator Cornyn. And then we will, of course, be able to 
allow you to expand on that as we ask questions.
    Mr. Al-Sarraf. I'll wrap up with the quote that I made from 
your prior speech.
    Senator Cornyn. Please.
    Mr. Al-Sarraf. These are not insurmountable challenges. I 
am optimistic for one simple reason, and that is, to echo your 
words, after defeating our enemies in World War II, we left 
behind constitutions and representative government, not 
permanent military authority, and we can do the same in Iraq.
    Because of this tradition, the U.S. is uniquely positioned 
to succeed in this important undertaking. Any failures in Iraq 
reflect on all of us and will have a long-lasting negative 
impact on U.S. interests in Iraq, the region, and the rest of 
the world. Iraqis do not make distinctions between the Pentagon 
and the State Department, Democrats or Republicans. This is a 
massive undertaking which requires the best talents of all.
    Thank you.
    [The prepared statement of Mr. Al-Sarraf follows:]

              Prepared Statement of Sermid Al-Sarraf, Esq.

    Chairman Cornyn, Chairman Chafee, Senator Feingold, Senator Boxer 
and, Members of the joint Subcommittees, I am pleased to be here today 
as a member of the Iraqi Jurists' Association, the Working Group on 
Transitional Justice of the State Department's Future of Iraq project, 
and a Muslim American attorney from California, to discuss the 
challenges which face Iraq and the Coalition Provisional Authority 
(CPA) with regard to re-establishing the Rule of Law in this post-
Saddam era.
    The Iraqi Jurists' Association (IJA) was formed almost 3 years ago 
and was the largest consortium of Iraqi judges, lawyers, prosecutors 
and law professors outside Iraq. Last year, IJA teamed up with the 
State Department's Future of Iraq project to form the Working Group on 
Transitional Justice which, in turn, prepared a 750 page report 
entitled ``The Road to Re-establishing Rule of Law and Restoring Civil 
Society--A Blueprint.'' This report, originally in the Arabic language, 
was finalized and adopted on March 23, 2003. A summary of this report 
in English was also prepared. The Working Group and the report itself 
benefited from internationally recognized experts in the area of 
Transitional Justice such as Professor Cherif Bassiouni, President of 
the International Human Rights Law Institute at DePaul University; 
Professor Alex Boraine, President of the International Transitional 
Justice Center, former deputy chair of the Truth and Reconciliation 
Commission in South Africa; Mr. Neil Kritz, Director of the Rule of Law 
Program at the U.S. Institute of Peace; and many others.
    Now, with more than 80 prominent legal personalities and after a 
recent trip to Iraq by the IJA chairman, Dr. Tariq Ali Al-Saleh, the 
organization is in the process of transferring its headquarters from 
London to Baghdad where it is expected that Iraqi jurists from inside 
the country will take the lead in transforming the IJA into an 
effective civic institution with a mission to help create, educate and 
defend an independent judiciary.
    The challenges on the road to restoring the Rule of Law in Iraq can 
be broken down into two categories: (1) those facing the Iraqi people 
and (2) those facing the Coalition Provisional Authority (CPA), in 
particular the role of the United States. The Working Group report goes 
into great detail as to the challenges facing the Iraqi people. I will 
spend my time here today, addressing what I believe are the challenges 
to the CPA and the U.S. in particular.
    The three major challenges I see are:

  1. Delivering on Promises

  2. Applying Appropriate Resources to the Task

  3. Understanding Iraqi Society and Enfranchising Iraqis

1. Delivering on Promises
    The U.S. has a small window of opportunity to make good on its 
promises before the situation in Iraq spirals out of control. A 
definitive success in Iraq may be the key to restoring our image as a 
nation that stands for liberty, democracy and respect for human rights, 
both at home and abroad.
    In the eyes of Iraqis inside Iraq, prior U.S. foreign policy was 
marked by broken promises, the most prominent of which was the one made 
immediately after the first Gulf war, which promised U.S. support for 
the Iraqi people if they were to rise up against Saddam. When they did 
in overwhelming numbers (14 of 18 provinces were liberated from Ba'ath 
party rule), the U.S. and other allied forces watched by as Saddam 
brutally massacred tens of thousands of civilians to maintain his grip 
on power.
    Now, while Iraqis are on the whole relieved and genuinely 
appreciative that Saddam was removed, they are also simultaneously wary 
about the coalition forces' ``true'' intentions behind this action. 
They ask the question, after supporting Saddam during the Iran-Iraq 
war, defeating him in Kuwait but tacitly supporting his efforts to stay 
in power, enforcing devastating sanctions which ultimately strengthened 
his rule and punished the Iraqi people, what has changed?
    It is critical that the CPA understand this backdrop and the 
environment in which it operates. The initial objective of moving in 
quickly with civilian and humanitarian assistance to effect an 
immediate improvement in the day to day living conditions was 
unquestionably the correct policy. Unfortunately, and without regard to 
root causes, in the areas of security, lack of electricity, telephones 
and other basic services this policy has not been fully achieved. 
Because of this backdrop, there is very little room for delays and 
mistakes, which the Iraqi people perceive in the context of a continuum 
of past policies.

2. Applying Appropriate Resources to the Task
    I'd like to describe this challenge by way of a specific example 
taken from the front page of the Washington Post on May 21, 2003, in an 
article entitled, Ad-Libbing Iraq's Infrastructure. One of the examples 
of this ``Ad-Libbing'' was the case of the courts in the southern city 
of Najaf. A recent law school student and Army reservist from Wisconsin 
with 1 year of training in Arabic was tasked with re-establishing the 
courts in this city. One of the first actions was to have all of the 
lawyers vote on which judges would keep their positions. For 
perspective, if this were done in Los Angeles Superior Court, I can 
guarantee you that many lawyers would not be voting for the best 
qualified, most impartial judges. This is not a knock on this service 
person, she is executing her orders to the best of her ability. This is 
a critique of the policy that fails to understand and appreciate the 
needs and apply the appropriate resources to the task.
    This is not an isolated incident. In early May, the Department of 
Justice sent a judicial assessment team to Iraq. Not one of the roughly 
11 members of the team were Iraqi legal professionals (or even native 
Iraqi-Arabic speakers), despite the fact that the DOJ conducted a 2-
week training program on international humanitarian law for 25-30 
prominent Iraqi jurists in late March.
    If I were a jurist inside Iraq, witnessing these events, I would 
think to myself that the CPA and/or the U.S. are not taking this task 
seriously.

3. Understanding Iraqi Society and Enfranchising Iraqis
    Part of the problem with assessing the appropriate resources is a 
fundamental lack of understanding of Iraqi society, its history and its 
people. Many assumptions are made based on experiences in other 
countries, such as Afghanistan, post World War II Germany, and Japan, 
etc.
    Iraq is a country with a legal tradition which predates Saddam 
Hussein and the Ba'ath party. Its legal system is based on a 
combination of Shari'ah law (derived from the Ottoman era) and Civil 
law (derived from the French legal code). Among its people are highly 
qualified legal professionals: judges, lawyers, prosecutors and law 
professors, both inside and outside the country. Piecing together a 
legal framework for this transitional period is not as complex as in 
the example of Afghanistan.
    And, unlike Germany and Japan of the WWII era, Iraqis did not elect 
nor freely accept the Ba'ath party nor Saddam's regime. The main 
victims of Saddam's regime were his own people and they sacrificed 
greatly in numerous attempts to rid themselves of this regime. The vast 
majority of lower level members of the Ba'ath party joined not out of 
belief or loyalty but out of dire necessity or fear of death.
    How does this understanding change the CPA's approach? First, most 
Iraqis are more than happy and willing to participate in and take the 
lead in the de-ba'athification process. The Iraqi people do not need to 
be convinced about the evils of the prior regime: they know it, they 
lived it, and many died because of it. It is critical not to 
disenfranchise those who would otherwise be supporters. This has 
happened with the disbanding of the military, with hundreds of 
thousands of people dependent upon their salaries for their basic 
survival.
    Second, among Iraqis themselves there are qualified professionals 
with sound reputations both inside and outside Iraq. It is critical 
that the CPA tap into this important resource. I know that this effort 
has begun in certain Ministries, but it needs to continue and expand. 
Iraqis, in particular in the legal field, are very sensitive about 
outside involvement, including from the Arab world especially if they 
are from countries perceived to have benefited or cooperated with the 
prior regime. Even for exiled Iraqis, their role should be limited to 
advising, consulting and assisting and not include positions of 
authority unless specifically elected by the people themselves in free 
and open elections.
    Based on my conversations with trusted sources in-country, Iraqis 
are feeling like strangers in their own country. Either through 
neglect, lack of understanding, or for the sake of expediency, current 
efforts seem to be avoiding direct Iraqi involvement and their opinions 
in important decisions. Disbanding the military in such a manner is one 
such example.
    This must not happen with the formation of the constitution. To 
ensure maximum participation in this process, some jurists in the IJA 
recommend a multi-phased process. The first phase would be to hold a 
national referendum on the form of government (as an example, whether 
it would be a republic, parliamentary or presidential system, 
constitutional monarchy, etc.) and once that decision is made by the 
Iraqi people, a group of elected representatives could be formed to 
draft the constitution with the assistance of international and 
domestic legal experts. To protect the long term stability of a 
democratic Iraq, there would need to be a strong and independent 
judiciary with a mandate to review the constitutionality of actions of 
the other two branches of government.
Conclusion
    These are not insurmountable challenges. I am optimistic for one 
simple reason and that is, if I may echo the words of Chairman Cornyn 
in one of his recent speeches:

          After defeating our enemies in World War II, we left behind 
        constitutions and representative government, not permanent 
        military authorities--and we can do the same in Iraq.--from a 
        speech to the American Enterprise Institute, 6/10/2003

    Because of this tradition, the U.S. is uniquely positioned to 
succeed in this important undertaking. Any failures in Iraq reflect on 
all of us and will have a long-lasting, negative impact on U.S. 
interests in Iraq, the region and the rest of the world. Iraqis do not 
make distinctions between the Pentagon or the State Department, 
Democrats or Republicans. This is a massive undertaking which requires 
the best talents of all. The consequences of success and/or failure 
will also be shared by all.

    Senator Cornyn. Thank you very much.
    Ms. Salbi.

  STATEMENT OF ZAINAB SALBI, PRESIDENT AND FOUNDER, WOMEN FOR 
                      WOMEN INTERNATIONAL

    Ms. Salbi. Yes, thank you very much for this opportunity. 
It is indeed an honor and a privilege to be here. I am speaking 
here not only in my capacity as president of Women for Women 
International, or as an Iraqi-American, but as someone who 
recently came back from Iraq. I had been there both in January 
to get an assessment of pre-war Iraq and what Iraqis are 
saying, and then I recently came from Iraq in May, where I got 
an assessment and interviews of different socioeconomic 
classes, ethnic and religious backgrounds all over Iraq, mostly 
in central and southern Iraq.
    So what I'm trying to say is, I'm trying to convey what the 
Iraqis are saying, including those who I talked to up until 2 
days ago from Baghdad.
    I called my original report, Please Tell Mr. Bush, because 
a lot of people were following and telling me, ``please tell 
Mr. Bush thank you for liberating us from Saddam, for getting 
rid of Saddam once and for all,'' so there is a great level of 
appreciation that Iraqis have finally been liberated from 35 
years of oppression.
    Having said that, they will always continue the sentence 
and say, ``and we need more.'' Iraqis had and still have high 
expectations from America, and some of these expectations may 
be too much. There are expectations that there is a Marshall 
Plan going to be in Iraq, and the impact of the plan will be 
seen in a couple of months' period, and that is obviously, some 
of them are not realistic. What we need here is to address 
these expectations and do something about them.
    Economically, although I do have to acknowledge Ambassador 
Bremer's accomplishments in terms of reinstating the salaries, 
including to former military personnel, that has a huge 
economic impact on the Iraqis. However, small- and middle- and 
medium-sized businesses have not been operating for 4 months 
now, and they do have a huge impact on those who are dependent 
on daily wages. The economy is switching from local production 
to export dependence, and that is impacting the long-term 
economic sustainability of Iraq.
    A lot of people are complaining that the American and 
coalition forces started by talking about democracy rather than 
talking about economic reconstruction. I'll summarize what one 
man told me in a small alley in Najaf, a very conservative 
province in southern Iraq, who said, we need food and security 
before democracy. When you save someone from death, his first 
wish is not a car, but basic needs to regain his energy. 
Americans, God bless them, are more concerned with democracy 
than they are with addressing our basic needs.
    He continues and says, we need economic stability as a 
prerequisite for democracy. We need to be able to breathe so we 
can talk about how we can build our democratic process. He 
wasn't denying the importance of democracy, as much as saying, 
I need a break now.
    There is a huge impact on women in post-war Iraq. The 
security situation, which continues to be very chaotic, to say 
the least, is having particular impact on women, who are being 
targeted for kidnapping. Rumors in Iraq, and confirmed by 
actually an article in The Economist, there's a market now 
where women are being sold and trafficked in Baghdad itself. 
This is impeding the women's movement outside the house, and 
this is critical, especially when we have such a high 
percentage of single heads of households after 20 years of 
wars.
    Political participation for women is very limited. While a 
lot of the local political parties, as well as those from 
exile, have very few, if any, women's representation in their 
parties, when they address this issue they don't seem to have 
an ideological opposition to it as much as, this didn't occur 
to them.
    A lot of Iraqi women, though, are very adamant about their 
participation in the political and reconstruction process. A 
40-year-old woman, as one of the middle-class women who wears 
the traditional head scarves, was telling me, I want Iraqi 
women to be part of every process of building the country, in 
the army, in sport, in every single sector. Women need to have 
50 percent representation in the country. I wish this could 
happen. We deserve that, and we have the credibility to do that 
as well as men.
    We have to incorporate women's participation in the 
constitutional discussion and the political discussion as well 
as in the economic reconstruction in Iraq, without which we 
will not have sustainable economic development or political 
development in Iraq.
    As to political parties, there is a sense--well, I'll 
summarize what one man told me. He said, ``before we had one 
Saddam, and now we have many, many Saddams who use power in 
similar ways of Saddam Hussein.'' A lot of the political 
parties who came from exile are known to have, or are perceived 
to have a monopoly of discussions and dialog with the CPA and 
with coalition forces.
    There is no sense of transparency. There is no sense of 
people knowing even what is happening, and the lack of 
information, I would say, is at the core of the problem. People 
need to know what is happening, and there is no medium of 
communication with the average person in Iraq, and this is 
again a lot of the complaints. I summarize again what one 
person told me. He said, we need to know what is going on, we 
need a public relations campaign that can speak to the concerns 
of the average Iraqi.
    Another person said the same thing. We need to know what is 
going on. We don't want to see soldiers killing two people 
every day, or American soldiers being killed for that matter. 
America needs to focus its communication to the average Iraqi, 
the real Iraqi, by helping them resume their daily work and 
daily lives to a normal stage. Real people need to get a sense 
that America is communicating with them and addressing their 
concerns. If you lose the average person, you will lose peace 
in Iraq.
    This is what an Iraqi just told me, actually a businessman, 
2 days ago. He said we are at the risk at this point of not 
only losing the average person in Iraq, we are at the risk of 
losing the elite of Iraq. When everyone's business is being 
impacted, when the economy is being impacted, and when there is 
no sense of communication and transparency of what is 
happening, we are at the risk of losing these people, the 
Iraqis, and when we lose the Iraqis, we will lose peace in 
Iraq.
    There is a strong sense by the Iraqis themselves, 
communicate, communicate, communicate to us. There are only 2 
hours of TV over there. This is not enough. They need to hear 
from the coalition forces what is going on. A PR campaign would 
be a critical one.
    We also need to make sure that we have a transparent 
process. We need to include the expertise of Iraqis internally. 
I completely agree with my colleagues in here. Those of us who 
are in exile can only be advisors. Those Iraqis who are in 
Iraqi are the only legitimate people to run the country. They 
have suffered, and they need to have a say in what's going on.
    Senator Cornyn. Ms. Salbi, let me ask you please, if you 
would, wind up your opening statement so we can get some 
questions. I regret to say that we do have a very large 
Medicare bill making its way through the Senate, so we will 
have to stop for some votes and come back in a little bit, but 
please, if you will conclude, and then we will go to questions 
until it's necessary for us to go.
    Ms. Salbi. The last thing is, we need to do an awe and 
shock campaign in economic development in Iraq. This is the 
only way we can win peace and security not only in Iraq, but 
throughout the whole Middle East, and women have to be at the 
core of that.
    [The prepared statement of Ms. Salbi follows:]

                   Prepared Statement of Zainab Salbi

    Thank you for the opportunity to testify before the Congress at 
such a critical moment with respect to the current situation in Iraq 
and our attempts to build a lasting peace in the country. My remarks 
reflect more than 10 years of work in post conflict societies including 
Bosnia and Herzegovina, Kosova, Afghanistan and elsewhere, with a 
particular focus on women. In the case of Iraq, my remarks are informed 
by my own national origin, as I was born and raised in Iraq, and by two 
fact finding trips I have recently taken to Iraq on behalf of Women for 
Women International--one trip took place in January of this year to get 
a sense of the conditions and attitudes in pre-war Iraq. A more recent 
trip took place in May of this year as I prepared an assessment report 
on the current situation in Iraq as we work to open an office to help 
the women of Iraq through Women for Women International. In both trips, 
I interviewed women and men from different socio-economic backgrounds, 
ethnic groups and religious tendencies in both central and southern 
Iraq. Since then, I have maintained almost daily contacts with Iraqis, 
primarily in Baghdad. My ultimate goal for the report that follows is 
to convey an accurate image of what is going on in the hearts and minds 
of Iraqis, and particularly women. Only by having a clear understanding 
of what the actual conditions on the ground are can we work on our 
common goal of building a lasting peace, economic prosperity and a 
sustainable democracy in Iraq.
    I will conclude by making recommendations that address the concerns 
of the Iraqis with whom I have met and who must be the new constituency 
as we move forward--the new constituency for American and international 
non-governmental organizations, international organizations such as the 
United Nations, and the Coalition Provisional Authority.
    Regardless of how Iraqis felt about the war, one can safely argue 
that the vast majority of Iraqis welcomed the opportunity to get rid of 
Saddam Hussein's regime and are thankful for the Coalition's role and 
America's leadership in freeing Iraq. However, while Iraqis may have 
different visions for the future of Iraq, everyone with whom I spoke, 
without exception, is surprised at what is perceived to be the lack of 
any organization or preparation for post-war Iraq. This was most 
evidenced by the chaos and anarchy that spread across Iraq in the days 
and weeks after the war, and in the continuing inability of Coalition 
forces to fully restore basic services or provide physical security for 
the overwhelming majority of Iraqis.
    The looting and burning of ministries, universities and other 
public properties, the limited electricity, lack of phone systems, 
extensive delay in resuming food delivery, the mass possession of guns 
and machine guns--among even children--all are contributing to a high 
level of frustration among the public as their daily lives and 
practices have been stalled without a clear idea about the future. A 
driver is vulnerable at any moment to a gunman forcing him or her out 
of the car. People are witnessing killings in public streets and in the 
middle of the day. Women are afraid to leave their houses for fear of 
rape and kidnapping. Mothers are afraid to let their kids walk to 
school on their own.

Impact on the Economy
    Ambassador Paul Bremer's recent policy decree reinstating the 
distribution of salaries, including a great proportion of the former 
military's, is warmly welcomed by many Iraqis. Such steps are helpful 
to calm the immediate economic needs by those who were employed by the 
former government. The question now needs to extend to the private 
sector, including micro-, small- and medium-size enterprises. Such 
businesses have not been able to operate for more than 4 months now due 
to the lack of electricity and security. Small- and micro-businesses 
have been hardest hit, along with their employees who represent the 
most marginalized sectors of the population including women and single 
heads of households and others who are 100% dependent on these 
enterprises for their daily wages. Medium-size business losses are also 
impacting the business elite whose public support for Coalition forces 
is decreasing daily as their economic well being is further threatened.
    The economy in general is veering from reliance on local 
production, particularly in areas related to food production, to an 
economy dependent more on processed and imported food. Addressing the 
revitalization of the local economy and local production is of the 
utmost importance in creating long term economic sustainability in 
Iraq. Lastly, most Iraqis, especially those who are poor and dependent 
on aid rations, constantly emphasized to me the need for economic 
security. A man who lives in a poor and old neighborhood of the Al 
Najef province, reflected to me on the current situation by saying: 
``We need food and security before democracy. When you save someone 
from death, his first wish is not a car but basic needs to regain his 
energy. The Americans, God bless them, are more concerned with 
democracy then they are addressing our basic needs.'' He continued, 
``We are a hungry population. Our need for food is more important than 
democracy at this point in our lives. That does not mean we don't want 
democracy. Rather, we need economic liberty as a prerequisite for 
democracy.''

Impact on Women
    Iraqi women are falling prey to the chaos and anarchy in Iraq. 
Women and girls are now targeted for kidnapping, with some women 
kidnapped from their own homes. Rumor, confirmed by coverage in The 
Economist, has it that there is now a market to sell women and girls in 
Baghdad. Women single heads of households are particularly vulnerable 
as movement outside of the home is becoming a risk for women because of 
the lack of security in the streets.
    Politically, women's participation in discussions related to the 
national political agenda has been limited at best. Most local 
political parties do not actively encourage womens' participation. When 
this issue is addressed to local politicians, there seems to be no 
clear political agenda to exclude women as much as a lack of attention 
for the importance of women's participation in the political process.
    Iraqi women, on the other hand, have been adamant about the 
importance of their political participation in the reconstruction of 
Iraq. Regardless of their socioeconomic class, ethnic background, or 
religious or secular tendencies, all Iraqi women I met exhibited strong 
opinions on what is going on in today's Iraq and the need to 
incorporate them in the political process. Isma, a 40-year-old, woman 
who wears the traditional headscarf expressed her views on women to me 
by insisting that ``I want Iraqi women to be part of every process of 
rebuilding the country . . . in the army, in sport, in every single 
sector. Women need to have 50% representation in the country. I wish 
this could happen. We deserve that and we have the credibility to do 
that as well.''
    Addressing gender issues in the process of policy making, from the 
delivery of services to the establishment of a transitional governing 
body, is critical at this stage. Discussions related to promoting 
women's participation should not, however, be limited to one sector or 
channeled through one ministry. Rather, gender issues must be at the 
core of all reconstruction plans in Iraq. That includes but is not 
limited to strategies related to food distribution, police retraining, 
women's membership in political parties, and women's security in the 
public sphere. Otherwise, women will once again be marginalized in both 
the short and long term in Iraqi society. Women are also at risk from 
religious extremists. Some women who work with the UN have been 
threatened with death if they don't wear the traditional headscarf or 
quit working with ``foreigners.''

Political Parties
    Local political parties, especially those who were based in exile, 
are showing no concrete efforts to address the concerns of the average 
citizen. ``We have plenty of political parties but we don't have rule 
of law and we don't have work. So what is the use?'' commented Ahmed 
who lives in Sadr City, a poor neighborhood in Baghdad.
    There is a growing sense of a new political monopoly with economic 
overtones that is controlled by some of the parties that were based in 
exile and came in with the coalition forces and even those who were 
based in Iraqi Kurdistan. ``Before we had one Saddam but now we have 
many mini Saddams who use power in similar ways as Saddam Hussein 
did,'' commented Ali, a businessman who describes himself as peace 
loving and a frustrated Iraqi. Now Iraqis feel that they must have an 
inside connection to those parties in order to gain access to 
information or services.
    Most of these political parties, as well as the Coalition 
Provisional Authority, risk losing and alienating the average citizen 
by their lack of communication, transparency and clear political 
strategy. In commenting on this issue, Nashwan, a pharmacist who works 
in a public clinic in a poor neighborhood of Baghdad, said, ``We want a 
leader with ethics, not a Ph.D.'' The Ph.D. is not the question here as 
much as a perceived lack of ethical and viable leadership from many of 
the political parties.

Lack of Information
    Despite serious progress in addressing particular frustrations 
among Iraqis, including reinstating the distribution of salaries and 
food deliveries among others, there is a growing sense of anxiety 
regarding the future of Iraq. ``We need to know what is going on. We 
need a public relations campaign that can speak to the concerns of the 
average Iraqi,'' comments Ahmed, a local Iraqi businessman who has not 
been able to run his business for four months now due to the lack of 
electricity.
    The lack of information regarding not only the reinstallation of 
basic services but also the future of Iraq is creating a gap that is 
being filled by former Ba'athist officials on the one hand and 
religious extremists on the other. Former Ba'athist officials are 
taking advantage of the lack of information and services by spreading 
rumors that America doesn't care about Iraqis and the lack of services 
are intentional to keep Iraqis from contributing to the reformation 
process. There is a sense that former Ba'athist officials are regaining 
their ability to mobilize the public and spread anti-American 
sentiments. This can be seen in many ways including comments made by at 
least some in the police force about the greatness of the former regime 
in their daily communications with the public.
    Religious extremists, on the other hand, are claiming that the lack 
of services is due to an imperial/Zionist conspiracy designed to 
destroy Iraq. The danger of these rumors is that they are speaking to 
the average Iraqi, especially male youth who have military training, 
are now unemployed, and are feeling a great level of frustration at the 
lack of stability in the country.
    There are many ways to combat these rumors that are impacting the 
peace process in Iraq. Iraqis want to know what is happening in their 
country. A strong and consistent public relations campaign can keep 
Iraqis informed of future plans and engage them in the rebuilding 
process. ``Iraqi public opinion is very very important. . . . Give us 
timelines so we know what is happening. Tell us what is the expected 
date for the complete reinstallation of the electricity and phone 
systems, when will there be a transitional Iraqi government, and how 
long the troops will stay here. We need information so at least we are 
not manipulated and frustrated by rumors,'' comments Dafir, a former 
government employee.
    Ahmed, a businessman, reiterates the hunger for information by 
saying, ``We need to know what is going on. We don't want to see 
soldiers killing two people every day or American soldiers being killed 
either. America needs to focus its communication to the average Iraqi . 
. . the real Iraqi . . . by helping them resume their daily work and 
daily life to a normal stage. Real people need to get a sense that 
America is communicating with them and addressing their concerns. If 
you lose the average person, you will lose the peace.''

Conclusion
    Iraqis are not only dealing with today's frustration, but also with 
the trauma caused by the oppression they have faced for 35 years during 
Ba'athist rule and particularly Saddam Hussein's regime. There is an 
outpouring of emotions in Iraq now which veer between frustration at 
the current chaos on the one hand and confronting the trauma and misery 
of the past for the first time in a public way--even within families--
on the other. These emotions can be summarized by what one woman told 
me, as she described her life, ``Every minute that passes, I die over 
and over again. I have already suffered a lot. I can't endure more 
suffering again.'' Iraqis are grateful to America for liberating them 
from Saddam Hussein, frustrated at America for not dealing with running 
the country the day after Saddam Hussein's collapse, and are now angry, 
tired, grateful, happy, and sad all at the same time. In other 
countries transitioning from a brutal period of civil strife, 
totalitarianism, or apartheid, truth and reconciliation commissions 
have gone a long way in acknowledging the pain and suffering caused to 
so many and allowed blame for crimes to be placed squarely on 
individuals and not ethnic groups, classes, or sects. There may be an 
opportunity here to not only allow Iraqis to heal many wounds but 
understand recent history, including the role played by organized 
violence against women.
    One can also say that Iraqis have tremendous expectations from 
America, some that may be unrealistic in the time frame Iraqis are 
expecting. Many expect a Marshall Plan which will have an immediate 
impact within a few short months. Many are shocked at what is perceived 
to be limited preparation on how to manage a free Iraq. One Iraqi 
complained to me, questioning ``How could the two most powerful 
countries in the world (the United States and the United Kingdom--who 
were able to win the war in one month) not have been prepared to deal 
with the day after the fall of Saddam Hussein's regime?''. Others are 
now talking about starting think tanks to give advice to the Coalition 
Provisional Authority on how to run the country.
    The frustrations that Iraqis are feeling today have many roots. 
Some stem from the perception that Iraqis are not being consulted in 
the process of policy formation on how to govern a free Iraq. Others 
feel that the lack of communication by coalition forces has left them 
vulnerable to rumors that only serve to increase their sense of anxiety 
about the future. And others feel that formerly exiled political 
parties are monopolizing all communication with the Coalition forces, 
reminding Iraqis of the former political structure known for its lack 
of transparency and corruption.
    There are many ways in which Coalition forces under America's 
leadership can address frustrations at a grassroots level, building 
upon Amb. Bremer's accomplishments since his arrival in Iraq. First, 
and most important, there is a need for a massive public relations and 
communication campaign that goes beyond the two hours of Iraqi public 
TV that is running at the moment. Average Iraqis need to have their 
current challenges acknowledged, not whitewashed, and know that there 
is a public plan for dealing with these challenges. This will be the 
best way to directly combat the rumors being spread by forces opposed 
to the Coalition's role.
    There is also a need to address the issue of expectations. 
Providing a timeline regarding the reinstallation of basic services, 
transitional government, and even economic plans can help in calming 
the situation down. There is a strong need to reach out to the hearts 
and minds of the average Iraqi by addressing real and immediate 
concerns he/she are facing and their anxiety about the future. Last but 
not least, we can win the peace in the Middle East in general, by 
adopting a policy of ``Shock and Awe'' for economic development in Iraq 
to match the overwhelming military superiority we brought to bear on 
the former regime. Such a policy will not only win the hearts and minds 
of the average Iraqi, it can also build credibility and support in 
neighboring countries and in the Middle East at large. I cannot 
conclude this testimony without emphasizing the importance of 
incorporating women throughout all governmental and non-governmental 
sectors and not limiting their participation to a single ministry or a 
single sector. Women are core participants in not only making peace but 
also in sustaining it.

    Senator Cornyn. Thank you very much.
    Senator Feingold. Mr. Chairman, I just have a couple of 
unanimous consent----
    Senator Cornyn. Sure. Senator Feingold.
    Senator Feingold. Mr. Chairman, Senator Kennedy asked that 
his statement be included in the record.
    Senator Cornyn. Without objection.

             Statement Submitted by Senator Edward Kennedy

    Mr. Chairman, I commend you for arranging this joint hearing to 
consider the challenges we face in Iraq.
    The major problem is that the war is supposed to be over, but it 
obviously isn't completely over. The daily attacks on our troops are 
very disturbing. Since President Bush landed on the aircraft carrier on 
May 1 and said ``the war is over,'' our troops have continued to be 
killed at approximately half the rate as before.
    The doubts that so many of us had about taking this road to war has 
only been strengthened by the failure so far to find the weapons of 
mass destruction that were the administration's principal justification 
for the war. And we are especially concerned by the suggestions that 
CIA intelligence reports were intentionally distorted by the White 
House or the Pentagon and turned into weapons of mass deceit.
    Throughout this difficult period, all of us in Congress are united 
in support of the men and women of our Armed Forces, and we are 
committed to doing all we can to support them.
    As the soldiers themselves have said, however, they aren't trained 
as police officers. We need to solve that problem as soon as possible. 
From past experience in Kosovo, Bosnia, and Afghanistan, we knew going 
into Iraq that we had to be prepared for the shift from war-fighting to 
peace-keeping to reconstruction and nation-building.
    We rushed into this war, but it's obvious that winning the peace is 
much more challenging than the administration was prepared for. The 
``liberator'' label has faded, and the ``occupier'' label is beginning 
to stick. The last thing we need is to alienate the Iraqi people after 
all we did to free them. The consequences would be ominous for the 
ongoing war against terrorism.
    It's clear that we should do more to involve the United Nations and 
our allies in the reconstruction effort and in working with the Iraqi 
people to develop a new government. If we go it alone in creating a new 
government, the Iraqi people and nations around the world will see it 
as an American puppet government instead of a legitimate Iraqi 
government.
    The bright spot is that the United Nations is carrying out its 
vital and historic role in meeting the humanitarian needs of the Iraqi 
people. The UN should be involved as well in the establishment of 
government institutions and civilian administration functions.
    Above all, many of us are concerned about the ominous decline in 
respect for the United States in the eyes of so many other peoples and 
so many other nations caused, in large part, by our ``shoot first and 
ask questions later'' foreign policy. The breeding grounds of terrorism 
around the world are the only beneficiary of that decline. Unless we 
start getting it right in Iraq, we may well pay a very heavy cost for 
our failures.
    So I look forward to this hearing and to working with our 
colleagues to do all we can to set a wiser course.

    Senator Feingold. And I ask unanimous consent that two 
documents be entered into the record as well: a report 
entitled, ``Transitional Justice in Post-Saddam Iraq: The Road 
to Reestablishing Rule of Law and Restoring Civil Society,'' by 
the State Department Working Group on Transitional Justice and 
the Iraqi Jurists' Association; and a second document, ``Iraq: 
Post-Conflict Justice, a Proposed Plan,'' by Professor M. 
Cherif Bassiouni, professor of law at the DePaul University 
College of Law.
    Senator Cornyn. Without objection, those will be 
included.\1\
---------------------------------------------------------------------------
    \1\ The report ``Transitional Justice in Post-Saddam Iraq: The Road 
to Reestablishing Rule of Law and Restoring Civil Society'' appears in 
the appendix to this hearing; ``Iraq: Post-Conflict Justice, a Proposed 
Plan,'' by Professor M. Cherif Bassiouni, can be found on the internet 
at http://www.law.depaul.edu/institutes_centers/ihrli/pdf/iraq.pdf
---------------------------------------------------------------------------
    On May 22, the United Nations Security Council unanimously 
adopted a resolution, Number 1483, calling for the 
establishment of, ``a representative government based on the 
rule of law that affords equal rights and justice to all Iraqi 
citizens without regard to ethnicity, religion, or gender.''
    It's been amazing to me really to see the number of people 
who have written and spoken expressing the view that there is 
somehow something inconsistent or incompatible about a nation 
where 95 percent of the people are Islamic, and democracy. I 
wonder if, Dr. Pollack, you could please start and just explain 
your view on that subject, whether you agree with that, or, as 
I suspect, you may disagree with that. Then what?
    Dr. Pollack. Thank you, Mr. Chairman. I will start. I think 
others on the panel would be equally if not more competent to 
deal with that question.
    Let me start by saying first that there is nothing about 
any religion, as far as I am concerned, that has prohibition or 
injunction that would make it impossible to have a democratic 
form of government.
    Too often when we start talking about democracy we allow 
our own individual associations, our own cultural associations 
with democracy to creep into that thought. I think when many 
Americans think about democracy, we have in mind American 
democracy. As someone who as traveled to many democratic 
countries over the course of my career, I'm always struck by 
how democracy looks very different in very different parts of 
the world.
    As I mentioned in my opening remarks, Japan and Italy, to 
take only two examples, are also democracies, but Italian 
democracy and Japanese democracy are very different from our 
own. In fact, dealing with both of those systems, I sometimes 
wonder which is actually the democratic system. The fact of the 
matter is that democracy is rule by the people. That is its 
essence. If you go back to the Greek philosophers, if you go 
back to ancient Athens, that is the principle ingredient.
    When we talk about democracy in the modern sense, and when 
we talk about constitutions that are based on democracy, we're 
talking about some very basic principles. We're talking about a 
government that is reflective of the will of its people. We're 
talking about a government that is transparent, so that the 
people can monitor the actions of government officials to 
ensure that their actions are consistent with the will of the 
people, and we're talking about a system that is accountable in 
the sense that the officials themselves are ultimately 
accountable to the people for the actions that they take.
    Those are really the heart of the democratic system and, in 
fact, the idea of the rule of law is embedded within that 
larger concept, because the idea of the rule of law is that the 
government should be of the people, it should not be oppressing 
any of the people, oppressing that which is ultimately the 
source of its legitimacy and its authority and power. There is 
nothing in Islam, as I read it and as I've read the work of my 
colleagues and of other colleagues, to indicate that there is 
anything in Islam that is incompatible with any of these basic 
precepts.
    An Islamic democracy, an Arab democracy may look very 
different from ours, it may look very different from Japan's. 
It may look very different from Italy's, but there is nothing 
about the Koran, there is nothing about the Hadiths, there is 
nothing about Islam as it is practiced anywhere in the world 
that should make it incompatible with those basic fundamental 
premises.
    Senator Cornyn. Thank you very much.
    Professor Haykel and Dr. El Fadl, you both alluded to your 
belief that there should be an acknowledgement of Islam in the 
founding documents, the constitution of Iraq.
    I found that to be interesting, in light of the fact that, 
as we may all recall, even in our Declaration of Independence 
there is an allusion to the Creator, and as my crack staff 
reminds me, even in the U.S. Constitution there is a reference 
to Our Lord, yet we do not seem to have too tough a problem 
separating our religious beliefs and practices from the secular 
work of government, but can you expand a little bit more on 
your belief of how the Iraqi people can address this notion of 
self-government and democracy and at the same time identify 
themselves as an Islamic nation, but not risk theocracy?
    Professor Haykel, perhaps you'd like to start?
    Dr. Haykel. You know, the question that you asked just 
earlier, Mr. Chairman, about the compatibility of Islamic 
democracy was asked at an earlier period in our own Nation's 
history about Catholics, with their allegiance to the Pope, and 
yet being Americans.
    The thing to bear in mind about Islam, as in all religions, 
is that it's not a monolith. There are many different 
interpretations. There are many different ways of living and 
practicing Islam, and certainly there are strains within Islam 
that are theocratic and that would be anti-democratic, and we 
see them in bin Laden, we see them in certain strains of the 
Iranian clergy, but that's not to say that Islam cannot be 
lived in a democratic fashion, and we have good examples of 
that. Turkey is a perfect example of just that.
    Even if we have allusion to religion and to Islam, Iraq is 
particularly a good example, I think, of a place where 
democracy can take root in a very strong way, because you have 
different types of Muslims in the country, as a result of which 
they would have to make accommodations to each other's 
differences and be cognizant of the fact that Islam is not a 
monolith and cannot impose their version on the others.
    Senator Cornyn. Dr. El Fadl, do you agree or disagree?
    Dr. El Fadl. No, I largely agree. I think the important 
distinction here is that I am not in a position to call upon 
the Iraqi people to mention Islam in the constitution. Rather, 
the distinction I make is that if the Iraqi people want to 
self-identify as Muslims, or make some mention of Islam in 
their foundational document, the U.S. Government should not 
oppose that and, more importantly, should not be threatened by 
that.
    There are two things to keep in mind. One is that it is 
absolutely true that people, for all types of mischievous 
purposes and objectives, are trying to make it look as if what 
is going on now is a return of the colonial era, the era of 
imperialism, and that this is some type of war against Islam. I 
think it is essential that we do not make it easy for those 
people to win their dogmatic and propagandist war, and opposing 
all form of religious mention, or any form of Islamic self-
identification would serve them well.
    Second is that Bernard Haykel is absolutely right, there 
are many forms of Islam, some forms that are fundamentally 
inconsistent with democracy, but the core is as long as there 
is a commitment to individual rights, to the rights of an 
individual as an individual, and as long as the affirmation of 
an Islamic identity and the affirmation of Islamic 
preferences--we'd rather do X rather than Y because we believe 
one is closer to the Koran--as long as it's done in the context 
of honoring the basic truth of individual rights, it is 
reconcilable with democracy.
    Senator Cornyn. Let me ask, Professor Haykel, I believe it 
was you that mentioned the concern about, during the de-
Ba'athification process that there may be something in excess 
of 200,000 people in Iraq who, if forbidden to hold public 
jobs, would basically have very little option other than to 
create mischief for any nascent democracy. What do you propose, 
or what do you think should be our approach?
    Dr. Haykel. Mr. Chairman, you know, government employment 
in the Middle East, whether it's in Iraq or elsewhere, is 
really--the governments are the main employers in the Middle 
East.
    People look to government not in the way we do here, 
necessarily, because it is a major source of jobs, and in the 
Ba'ath period you have people who are committed Ba'athists who 
joined the party out of commitment, but most, or many did not. 
They joined it because that was how you got a job, and to 
penalize these people in some categorical fashion would mean 
penalizing not just them, but penalizing many, many members of 
their families who are dependent on them and on their 
connections with the government for jobs.
    My fear really is that we would exclude 20 percent of the 
population from its source of revenue and livelihood, and that 
would cause tremendous social dislocation and political 
problems for us in the country.
    Senator Cornyn. My time has expired.
    Senator Chafee.
    Senator Chafee. Thank you, Senator Cornyn. I'll follow-up 
on your questions about the possibility of a theocracy, and 
Professor Haykel, you doubted that that could happen. How do 
you base your confidence that a theocracy could not rise even 
if we allowed Islam into the constitution? Maybe just expand on 
that premise that you stated in your opening statement.
    Dr. Haykel. It is alleged that 60 percent of the Iraqi 
population are Shiites. Now, the dominant theocratic model in 
Iran for the Shiites is that advocated by the late Imam 
Khomeini. Now, most Shiites, certainly in Iraq but also, it 
seems, in Iran don't support that constitutional model, the 
constitutional model he advocated.
    My assertion is based on knowledge that the Shiites of Iraq 
are very different from those in Iran, that the Iranian model 
is not necessarily applicable and is not accepted by a great 
number of the clerics in Iraq, who tend to be more quietist in 
their political position.
    Senator Chafee. And Ms. Salbi, you've just returned from 
Iraq, and I see you nodding your head. Do you agree with that, 
that--it was a couple of weeks ago I believe there were some 
clerics who I believe issued a declaration of Jihad against the 
occupying forces. Is this taking hold with the population?
    Ms. Salbi. First, I have to reiterate what Professor Haykel 
said. The premise of Shiism is the separation of religion from 
the state. Khomeini was the only person in Shiite history who 
combined the state with religion. Iraq Shias so very much 
believe in the separation of the State and religion.
    The fear is not from the learned unama, because they're 
learned--I mean, they descended over 15 to 20 years on 
religious jurisprudence and all of that. The fear is from the 
younger ones, young men in their twenties who have religious 
tendencies, like Moktar el Sadr, who is approaching other men 
who are released from the army, former Republican Guard, and 
then mobilizing their anger and frustration at the current 
economic situation for religious reasons. That's the fear.
    That's still a minority group. They're still approaching 
the youth. They're not approaching the middle-aged people, or 
the learned people, but that could be a gap that could be 
widened if we do not address the immediate economic needs right 
now, so that's one thing that you can see the beginning of it.
    In general, when you talk to all the Iraqis, whether in the 
south or in the center, they do want a secular government. They 
do not say we want a secular government per se, but they say, 
we want a civil government that respects Islam as a religion, 
we want civil law that regulates the country, and that is 
people from conservative to secular people, and they're all 
saying that. It's a very emotional feeling that we need to 
respect Islam, and a very emotional feeling that we need a 
civil law to regulate our country.
    Senator Chafee. With this catching on with the younger 
people, is it directed at Americans, or is it the coalition, 
British--would it be better if the United Nations were more 
involved in this process and remove the prospect that it's an 
American issue here?
    Ms. Salbi. I have to say, there is no public sentiment that 
sympathizes with the U.N. in Iraq. The U.N. was accused of 
being part of the previous regime's corruption scandals and 
scams, and so the U.N. is not necessarily viewed in the best 
way.
    These religious sentiments, having said that, they are 
directing that anger at the Americans. I wrote in my report, a 
lot of the religious sentiments is trying to approach, again to 
deal with that economic urgent gap by saying, this is an 
American-Zionist conspiracy aimed at destroying Iraq, while the 
Ba'athists are also trying to fill that gap by saying America 
is intending to keep the Iraqis frustrated, to keep them away 
from the political process.
    So we are vulnerable now to these groups, again, taking 
advantage of these gaps and in my opinion, my assessment by 
talking to people is that we can actually win that easy if we 
just address the immediate and urgent needs by the Iraqis and 
stabilize the economic and security conditions right now.
    Senator Chafee. Thank you. You do have a prescription for 
success, and that's relevant to a Marshall Plan-type of 
restoration of the country.
    Thank you, Mr. Chairman.
    Senator Cornyn. Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Dr. El Fadl, Professor Haykel, and Mr. Al-Sarraf, we've 
heard testimony today about the strong legacy of legal thought 
and legal institutions that existed before the Ba'ath Party 
took power in 1968 and then, of course, the damage done under 
Saddam's regime.
    I'd like each of you to comment on whether that legacy 
survived in any form, to what extent will the Iraqi people be 
able to look back on their own legal traditions and effectively 
draw upon that experience as they reconstruct their nation and 
its institutions.
    Let's start with Dr. El Fadl again.
    Dr. El Fadl. Well, I think it's important here to keep in 
mind the complexity and nuance of law, because if you take, for 
instance, the civil law code, which was derived from the French 
civil code, and in fact borrowed extensively from the Egyptian 
work on the French civil code and, in the view of some, even 
improved upon from the Egyptian version, you take the Iraqi 
civil code and the jurisprudence that formed around the civil 
code in Iraq, similarly if you exclude the literal, the 
shameful displays committed by Saddam in order to get attention 
and so on, if you take the criminal law code, exclude all the 
Saddam exceptional laws and emergency laws and special laws and 
just take the criminal code and the jurisprudence formed around 
the criminal code, what you find is actually something that 
from a legal perspective is quite sophisticated, belongs in the 
best of the tradition of the civil law system based on the 
French legal system, something in which, for instance, in the 
civil law field and in the criminal law field some of the works 
of Egyptian jurists like Sanhouri, one of the most prominent 
jurists who is dead now--he was cited extensively and worked 
with and developed upon and so on--you actually find, a lot of 
commonality between the technical jurisprudence of Iraq and the 
jurisprudence of particularly countries like Egypt, to a lesser 
extent countries like Kuwait.
    Second is that you find a large degree of technical 
sophistication, and in fact, in working with Iraqi lawyers, the 
complaint was consistently that the Saddam regime ruined the 
practice of law, that unlike their Egyptian counterparts, for 
instance, they could not say that they follow X school of 
thought as to personal injuries because they were always scared 
that Saddam was going to come in with some exceptional law, 
some special regulation and so on.
    The best way that I think the issue can be approached is to 
realize that we have a substantial amount of very sophisticated 
jurisprudence, that it is possible, in my opinion, to peel off 
the Saddam special laws, special regulations, special this and 
that, and to work from that, rather than reinvent the wheel, 
and try to create some type of revolutionary law which is 
fraught with possibilities of failure.
    Senator Feingold. Thank you very much. Professor Haykel.
    Dr. Haykel. I would like to reiterate and second what 
Professor Abou El Fadl just said. As someone who actually has 
followed the production, the legal, intellectual production 
from Iraqi universities even through the Saddam period, the 
University in Baghdad, for example, had a couple of legal 
journals, one from the university, one from the ministry of 
justice, and they consistently had very high quality legal 
thought and legal academic production.
    With respect to the period before Saddam Hussein, I mean, 
there are documents, legal documents that still exist and that 
can be drawn upon, and also in the collective memory, I think, 
of Iraqis, especially the period in the twenties, when there 
was a very vibrant Jewish community in Iraq, perhaps the most 
vibrant Jewish community in the Arab world, that period again 
is something that Iraqis remember as a time when Iraq really 
was the center of the Arab world, and where you had pluralism 
and a great degree of tolerance.
    I think that period can be revised very quickly, because 
you have a very high technical cadre of people in Iraq who are 
middle class but also very educated, I think for whom this 
period really is something they hark back to and wish to 
recreate today.
    Senator Feingold. Thank you. Mr. Al-Sarraf.
    Mr. Al-Sarraf. Thank you. It's important to note how Saddam 
subordinated the judiciary. The judiciary basically used to 
report to an independent judicial authority. That judicial 
authority was then placed under the Ministry of Justice and 
became part of the executive.
    Then what Saddam did is, he created special courts in the 
Ministry of Information, the Ministry of the Interior under the 
security forces, the military had their own courts, the police 
had their own courts, so basically every court system reported 
to an executive who had the final say.
    The Ministry of Justice, however, dealt primarily with just 
civil and criminal affairs and was left largely intact, except 
for when Ba'ath Party members were involved, so what you have 
are individuals that work in the Ministry of Justice, and I had 
the opportunity in the last few days to meet with the interim 
Minister of Justice who arrived in New York a few days ago and 
is addressing the United Nations, and it's individuals like him 
who understand from the inside--he's been with the judiciary 
for 43 years, understands it inside and out, and has an idea of 
how to reform, and it requires a vetting process. It's a long-
term process.
    There's also a cadre of forcibly retired jurists, those who 
would not go along with the Ba'ath Party rule, who also 
represent a constituency or a resource within the country, so 
the first premise is that it has to be rebuilt from the inside, 
and the second is that there can be international assistance, 
but we have to be very careful about who those international 
experts are, because there is sensitivity inside the country 
about who they will work with.
    Senator Feingold. Thank you.
    Dr. Pollack, you suggested that international involvement 
might be helpful in giving legitimacy to the constitutional 
process. What do you see as the role of the United Nations and 
the international community in drafting an Iraqi constitution? 
Would you suggest, for example, that the United States ask the 
United Nations, or a third country, to take over leadership of 
the constitutional process?
    Dr. Pollack. Thank you, Senator. No, I would not suggest 
that. I think that the constitutional process must be led by 
Iraqis. That said, I think that all of these international 
organizations, and I think that all the members of the 
coalition, the increasingly expanding coalition, have important 
roles to play within that.
    First, the transitional authority itself will have a role 
in literally setting up a constitutional commission of some 
sort. They will have to take care of the administrative side of 
things. On that issue, as on all matters, as far as I'm 
concerned, the more the United States can work in conjunction 
with the United Nations, now that we have Sergio de Mello as 
the new Special Representative of the Secretary General, 
someone who's very skilled in these kind of operations, a good 
partner for Paul Bremer, I think that it is incumbent upon us 
to work in conjunction with them to indicate that this is not a 
U.S.-only operation.
    Senator Feingold. The thrust of my question was, wouldn't 
it better, or arguable that we should turn over this 
responsibility of helping, the leadership role, to another 
country, rather than doing it ourselves?
    Dr. Pollack. Again, I would not suggest that we necessarily 
turn it over to another country. I certainly think that we 
should be involving as many countries as we possibly can. I 
think that the United States at the end of the day has a 
responsibility to make sure that Iraq is a stable, functional 
society when the international occupation has ended. We're the 
ones who started this. We're the ones who have got to make sure 
that it succeeds.
    That said, I also don't think that the United States should 
necessarily be directing the Iraqis to do this, that or the 
other thing. I just think it ought to be a joint effort, not 
any one country.
    Senator Feingold. I'm going to take this to Ms. Salbi now, 
because I want to know her thoughts on the issue of 
international involvement with regard to my question to Dr. 
Pollack, but also based on your experience in other post-
conflict societies like Afghanistan and Kosovo.
    Ms. Salbi. Two things. One is, we need to acknowledge the 
high level of frustration that has been built in Iraq for 35 
years. What the Iraqis are going through is that for the first 
time in their history, or in 35 years, they can talk about 
Saddam's oppression, so a Truth and Reconciliation Committee 
would be something that would be very helpful in just at least 
processing these frustrations and the injustices that they have 
been through, and acknowledging them at a minimum.
    The second thing, when I talked to local political parties 
over there, and I was talking to them about different models 
and different experiences, from Afghanistan to South Africa, 
there was a hunger for information. Remember, Iraqis have been 
blocked from any information outside of Iraq, and everyone was 
eager to know, what is the South African constitution, what are 
the pros and cons of the Afghan reconstruction process, and so 
I do think that it has to have a local ownership, but that 
process needs to inform them and to share information from 
different countries.
    South Africa is a great model, Afghanistan is a good model 
to look at, with Iraqi leadership, with our support, making 
sure that we're feeding the Iraqis all in the information in 
the process.
    Senator Feingold. But is it better for the United States to 
be perceived as taking the lead outside role, or would it be 
better if the United Nations--and I know you expressed strong 
reservations about the United Nations--or a third country were 
in that role in that context?
    Ms. Salbi. I personally don't have reservations about the 
United States as much as the Iraqis do. I think the Iraqis are 
looking for America's leadership, but they are looking also at 
America's communication, and they want to be incorporated in 
the process, and there is a sense that they are cutoff from 
whatever process that is going on in dealing with Iraq.
    So the majority of the sentiments is still, people are 
looking for America. It's just that they are frustrated, that 
they don't think America is reaching out to them.
    Senator Feingold. Thank you very much.
    Thank you, Mr. Chairman.
    Senator Cornyn. Thank you, Senator Feingold. I'd like to 
express my gratitude, and I know I speak for all of us here, at 
your participation, the members of the first panel.
    Oh, I beg your pardon. Senator Chafee has another question 
or two.
    Senator Chafee. Just before we give our thanks to this 
panel, Ms. Salbi, since you were just in Iraq, do the Iraqi 
people think that Saddam Hussein is still alive? Do they think 
that, and is that significant?
    Ms. Salbi. I am glad you asked this question. Yes, they do 
think that he is alive. His family members are moving very 
freely, actually in the streets of Iraq, not only female family 
members, which we could argue it's safer for them, but male 
family members, his cousins, his nephews, who are notorious for 
their oppression and violence during this regime, so there is 
not only a sentiment that he is still in Iraq, but the 
Ba'athists are also being relaxed about the security issue, 
that they are feeling comfortable to walk the streets of Iraq, 
especially in the evenings and at nights.
    Senator Chafee. And how big an issue is that as we go 
forward?
    Ms. Salbi. Again, we can contain that because what's 
happening is that there are gaps of information and the 
Ba'athists are taking advantage of these gaps, as are the 
religious extremists, but particularly the Ba'athists by 
saying, look, Saddam was better for us than the Americans.
    When you ask the police force if they are happy now Saddam 
is out, some say no, they wish Saddam were back. A lot of 
former employees are returning, and they should return because 
they need the jobs and we need to stabilize the economy, but we 
really need to reeducate them and retrain them as to what the 
former regime has done and what their role should be in the 
future.
    Senator Chafee. Very good. Thank you.
    Senator Cornyn. Thank you, Senator Chafee, and thanks to 
each of you on the first panel. I'll just remind everybody that 
we're going to leave the record open until July 2 in case any 
other member of the joint subcommittees would like to submit 
any further questions, or if there any other documents that 
you'd like to offer in support of your testimony in this 
record, we would invite you to do so. Thank you very much.
    Now I'd like to invite the members of the second panel to 
come forward, a panel of distinguished constitutional legal 
experts; while they take their seats I will introduce them.
    First, we're happy to have Professor John Yoo here. 
Professor Yoo served as Deputy Attorney General for the Office 
of Legal Counsel at the U.S. Department of Justice from 2001 
until just last month. In that role, he served in the Bush 
administration as one of its top legal advisors in the war on 
terrorism and the war on Iraq. He's a nationally recognized 
expert in international law, U.S. constitutional law, and 
national security and foreign relations law.
    Professor Naoyuki Agawa is a recognized expert on both the 
Japanese and the United States constitutions. He served as a 
professor at the University of Virginia Law School, Georgetown 
Law School and Keio University. He holds bar memberships in 
both the United States and Japan, and has practiced law in both 
Washington, D.C. and Tokyo.
    Dr. Donald Kommers is a recognized expert on the German 
constitution. He is both the Joseph and Elizabeth Robbie 
professor of Political Studies at Notre Dame and a law 
professor at Notre Dame Law School. He's authored 10 books and 
67 articles primarily in the area of American, German and 
comparative law and German politics.
    Our fifth panel member is Professor Dick Howard, who is the 
White Burkett Miller Professor of Law and Public Affairs at the 
University of Virginia Law School, where he and I first had an 
opportunity to meet. Professor Howard is an expert in 
constitutional law and comparative constitutionalism. Numerous 
countries have sought his counsel in the process of drafting 
their constitutions, including Brazil, Hong Kong, the 
Philippines, Hungary, Czechoslovakia, Poland, Romania, Russia, 
Albania, South Africa, and India, quite an impressive list.
    I know we have Mr. Neil Kritz, who is director of the Rule 
of Law program at the United States Institute of Peace. That 
program focuses on advancing peace through the development of 
democratic, legal, and governmental systems, precisely the 
topic we have before us here today. He is the editor of a 
three-volume work called ``Transitional Justice: How Emerging 
Democracies Reckon with Former Regimes,'' and I imagine has 
quite a bit to offer on the subject before us today.
    I want to thank each one of you for being here, and your 
patience. Now we'd like to hear from each of you, if we might, 
and if you would please keep your opening statement to 5 
minutes, then we'll proceed to questions.
    Professor Yoo.

  STATEMENT OF JOHN YOO, VISITING FELLOW, AMERICAN ENTERPRISE 
                           INSTITUTE

    Mr. Yoo. Thank you, Mr. Chairman, Chairman Chafee, thank 
you for inviting me to appear, and I'd like to compliment you 
and your committee on your leadership in holding hearings on 
this important topic, which I think will be central to 
guaranteeing the future and long-term stability of Iraq.
    I would also just like to make clear that the views 
expressed here are my own, and not those of the American 
Enterprise Institute or the University of California, Berkeley.
    I think my point of view here is that of a lawyer, in that 
I can tell you what you can do, but I can't tell you what you 
should do, and in that capacity I'd like to point to three 
sources of law that give the United States the authority, as 
the occupying power in Iraq, to establish a constitution that 
guarantees basic, individual human rights and that operates 
within a rule of law with democratic representative 
institutions.
    The first is our own domestic constitution. Iraq is not the 
first country that the United States has occupied, and the 
Supreme Court in several cases has examined the question of 
occupation and has stated quite clearly that occupation 
includes the power to change laws and constitutions of the 
territory that is occupied because it is part of the war power.
    We're still in a state where legally the state of armed 
conflict continues to exist in Iraq and does not terminate 
until a peace treaty has been signed, and as part of the effort 
to wage a successful campaign that may include eliminating 
aspects of the local governmental system that pose a threat, 
continue to pose a threat to peace and stability and to the 
United States and the region.
    Here in Iraq, the second major source of authority comes 
from the United Nations. There are two separate resolutions 
that bear on the question of occupation. First is the 
resolution passed in 1991, Resolution 678, which originally 
authorized all member nations to use all necessary means, 
quote-unquote, to remove Iraq from Kuwait, to enforce other 
relevant resolutions, and to restore international peace and 
security to the region.
    One of those significant resolutions was to eliminate WMD 
in Iraq. Another resolution is to prevent Iraq's regime from 
terrorizing its own civilian population. That resolution, 
number 678, ultimately was one of the sources of authority for 
the war in Iraq. Also, by requiring that member nations restore 
international peace and security, to the extent that the Iraqi 
constitution as it was, and the Saddam Hussein regime 
encouraged or enabled a specific regime to continue to pose a 
threat to that region, then obviously Resolution 678 could be 
used also to eliminate the legal aspects of that threat.
    The second and more recent actions of the Security Council 
came, as you mentioned in your opening statement, in Resolution 
1483, which was passed just a few weeks ago. In that 
resolution, the United Nations Security Council recognized the 
United States and Great Britain as occupying powers in Iraq. It 
expressed its hope that the Iraqis would be encouraged to 
establish a representative government with protection for human 
rights and the rule of law, and also stated that the United 
States and Great Britain would be subject to their obligations 
under what's known as the Hague Regulations and the Geneva 
Conventions, which are primary treaties in the area of 
occupation.
    Just to turn to that last point, then, the third source of 
authority for America's ability to establish a constitution for 
Iraq that is based on the rule of law and democratic 
institutions comes from those two basic treaties, the Hague 
Regulations of 1907, and the Fourth Geneva Convention of 1949.
    The Hague Regulation of 1907, Article 43, allows an 
occupying power to change the domestic laws of the country that 
is occupied if it is necessary to restore public order and 
safety, so again in this case, as I think the first panel 
discussed, a lot of the negative aspects of Saddam Hussein's 
regime were actually incorporated and codified into the legal 
system and into the constitution, so to the extent that the 
Hussein regime and its instruments were the basic threat to 
order and security in its own country, removal of those 
constitutional provisions and those statutes would be justified 
under the Hague Regulations.
    The second point is, Iraq isn't even a signatory to the 
Hague Regulations, so to the extent the Hague Regulations are 
more of a customary international law, then the interpretations 
that countries have put up on it in their State practice would 
be more important, and here I defer to my other panel members, 
but the experiences in Germany and Japan in particular show how 
States have interpreted Article 43 of the Hague Regulation. In 
both of those examples, obviously, the United States exercised 
a great deal of discretion and authority in encouraging a 
certain kind of constitution for Germany and Japan.
    And just a last point, the last source of authority is the 
Fourth Geneva Convention, which is much more liberal, I suppose 
you could say, in its grant of authority to an occupying power. 
Article 64 of the Fourth Geneva Convention says that the 
occupying power may subject the population of the occupied 
territory to provisions which are essential to enable the 
occupying power to fulfill its obligations under the present 
convention, by which it means basic human rights, to maintain 
the orderly government of the territory, and to assure the 
security of the occupying power.
    Article 64 of the Geneva Convention, therefore, would 
provide a legal basis for the United States in Iraq to 
institute and establish changes to the Iraqi constitution and 
its legal system consistent with achieving basic human rights, 
protecting safety and security, and protecting the United 
States' own security interests.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Yoo follows:]

                     Prepared Statement of John Yoo

    Mr. Chairman, thank you for the opportunity to appear before your 
committee today to discuss the reconstruction of Iraq and its 
constitution. I wish to complement you and the committee for convening 
today's hearings on this important subject, which will be critical to 
providing for Iraq's long-term stability and ensuring that Iraq will 
become a law-abiding member of the international community. Rather than 
discuss any specific element of a proposed Iraqi constitution, I appear 
before you today to discuss the authority of the United States, under 
domestic and international law, to make fundamental changes to the 
constitutional law and government institutions of Iraq. I conclude that 
United Nations Security Council resolutions and the international law 
of occupation provide the United States with broad discretion to 
establish a new Iraq constitution, one that guarantees fundamental 
human rights protected by democratic institutions that limit government 
power.
    I have studied these issues for much of my career. I recently left 
the Department of Justice, where I served as Deputy Assistant Attorney 
General in the Office of Legal Counsel (OLC). OLC advises the executive 
branch on all legal questions, including those involving treaties and 
international law. I am currently a visiting fellow at the American 
Enterprise Institute, and a professor of law at the University of 
California at Berkeley School of Law (Boalt Hall), where I have taught 
foreign affairs law, international law, and constitutional law, since 
1993. It was also my great honor to have served as General Counsel of 
the Senate Judiciary Committee under Chairman Hatch from 1995-96. I 
wish to make clear that the views expressed here are my own, and do not 
represent those of the American Enterprise Institute or the University 
of California.

                     I. DOMESTIC LAW AND OCCUPATION

    Under our domestic law, occupation of a nation is merely the 
continuation of hostilities, and thus the reconstruction of Iraq falls 
within the war powers of the federal government. Occupying foreign 
territory during the transition period between an armed conflict and a 
declaration of peace, and establishing fundamental institutional 
changes to the government of an enemy nation, may be essential to 
reaching a successful conclusion to war. If allowed to remain in 
existence, the institutions of an occupied nation may continue to pose 
a threat to the safety of U.S. troops or the national security. Or the 
government institutions of the defeated enemy have been so degraded or 
destroyed that they cannot provide security and basic services to the 
local population. If left to suffer, a local population may become 
hostile to the United States. To be fully successful, military 
operations in an occupied territory may have to continue even as the 
immediate need for force has subsided.
    In several previous armed conflicts, the United States has 
exercised its authority to occupy and govern a foreign nation after a 
successful military campaign. The Supreme Court has clearly upheld this 
authority. In MacLeod v. United States, for example, which arose during 
the U.S. military occupation of the Philippines during the Spanish-
American War, a unanimous Supreme Court explained that

        [t]he right to . . . occupy an enemy's country and temporarily 
        provide for its government has been recognized by previous 
        action of the executive authority, and sanctioned by frequent 
        decisions of this court. The local government being destroyed, 
        the conqueror may set up its own authority, and make rules and 
        regulations for the conduct of temporary government, and to 
        that end may collect taxes and duties to support the military 
        authority and carry on operations incident to the 
        occupation.\1\
---------------------------------------------------------------------------
    \1\ 229 U.S. 416, 425 (1913).

The Court similarly stated with respect to the U.S. occupation of 
---------------------------------------------------------------------------
Puerto Rico that

        [u]pon the occupation of the country by the military forces of 
        the United States, the authority of the Spanish Government was 
        superseded . . . The government must be carried on, and there 
        was no one left to administer its functions but the military 
        forces of the United States. . . . The right of one belligerent 
        to occupy and govern the territory of the enemy while in its 
        military possession, is one of the incidents of war, and flows 
        directly from the right to conquer. We, therefore, do not look 
        to the Constitution or political institutions of the conqueror, 
        for authority to establish a government for the territory of 
        the enemy in his possession, during its military occupation, 
        nor for the rules by which the powers of such government are 
        regulated and limited. Such authority and such rules are 
        derived directly from the laws of war, as established by the 
        usage of the world, and confirmed by the writings of publicists 
        and decisions of courts--in fine, from the law of the 
        nations.\2\
---------------------------------------------------------------------------
    \2\ Dooley, 182 U.S. at 230-31 (quoting 2 Halleck, International 
Law, 444).

As the Supreme Court has further made clear, the power to establish an 
occupation government and to make decisions concerning reconstruction 
flow directly from the President's Commander-in-Chief power.\3\
---------------------------------------------------------------------------
    \3\ See, e.g., Madsen v. Kinsella, 343 U.S. 341, 348 (1952) 
(``[t]he President has the urgent and infinite responsibility not only 
of combating the enemy but of governing any territory occupied by the 
United States by force of arms.''); Fleming v. Page, 50 U.S. (9 How.) 
603 (1850) (power to occupy captured territory is ``simply that of a 
military commander prosecuting a war waged against a public enemy by 
the authority of his government.''); Hirota v. MacArthur, 338 U.S. 197, 
208 (1948) (Douglas, J., concurring) (``[The President's] power as 
Commander in Chief is vastly greater than that of troop commander. He 
not only has full power to repel and defeat the enemy; he has the power 
to occupy the conquered country . . . '').
---------------------------------------------------------------------------
    It is not difficult to see why occupation and reconstruction of a 
defeated enemy may be an important aspect of the war power. Eliminating 
a threat to the national security or achieving U.S. foreign policy 
goals may not only require the occupation of an enemy nation until its 
capacity to attack the United States has ended, but also the extensive 
reordering of an occupied nation's domestic institutions. Replacing a 
hostile government with new institutions may make the defeated nation 
less of a threat to the United States, both now and in the future, and 
may end human rights abuses. At the end of World War H, the United 
States not only occupied part of Germany, it completely refashioned, 
along with the other Allied powers, German government institutions. The 
United States believed that preventing Germany from ``ever again 
becoming a threat to the peace of the world'' would require ``the 
elimination of Nazism and militarism in all their forms, the immediate 
apprehension of war criminals for punishment, the industrial 
disarmament and demilitarization of Germany, with continuing control 
over Germany's capacity to make war, and the preparation for an 
eventual reconstruction of German political life on a democratic 
basis.'' \4\ Similarly, the United States also reordered the Government 
of Japan following the conclusion of World War II, although these 
changes, unlike those in Germany, were carried out with the consent of 
the Japanese Government. Again, the rationale underlying this 
fundamental government reform was to guarantee that Japan would not 
again become a military threat to the United States or the world.\5\
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    \4\ Directive to Commander in Chief of United States Forces of 
Occupation Regarding the Military Government of Germany, (Apr. 1945), 
reprinted in ``The Axis in Defeat: A Collection of Documents on 
American Policy Toward Germany and Japan,'' 43-44, (1945).
    \5\ See U.S. Initial Post-Surrender Policy for Japan, (Aug. 29, 
1945), reprinted in ``The Axis in Defeat: A Collection of Documents on 
American Policy Toward Germany and Japan,'' (setting forth objectives 
for post-World War II occupation of Japan), 107, (1945).
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                  II. INTERNATIONAL LAW AND OCCUPATION

    International law authorizes a victorious nation both to establish 
its own temporary occupation government and to make changes in the laws 
of the defeated nation prior to the conclusion of a treaty of peace. 
This authority includes the power to make fundamental institutional 
changes to the government of an occupied nation. Here, I will address 
the sources of law that establish the authority of the United States, 
as an occupying power, to replace the forms of the previous Hussein 
regime with new governmental institutions and a new constitution. These 
sources include Security Council Resolutions under Chapter VII of the 
United Nations Charter, which gives the Council the authority to bind 
member nations, and the international law of occupation as expressed in 
treaties and state practice.
United Nations Authorization
    The United States has been authorized by the Security Council to 
occupy Iraq and, as a consequence, to establish a constitution and form 
of government that will end the threat posed by the Hussein regime to 
international peace and security. This authority comes from two 
sources, the original 1991 authorization to use force against Iraq 
(S.C. Res 678), and the recent May, 2003 Security Council resolution 
approving the occupation of Iraq at the end of major combat operations 
in Iraq (S.C. Res. 1483).
    In 1991, the Security Council enacted a resolution that recognized 
the legitimacy of the U.S.-led international coalition's use of 
military force against Iraq. Security Council resolution 678 explicitly 
recognized that member states could ``use all necessary means'' (1) to 
respond to the Iraqi regime's substantial violations of the terms of 
the cease-fire set forth in UNSCR 687 that suspended hostilities 
between Iraq and a U.S.-led international coalition in 1991; and (2) to 
restore international peace and security in the area. In particular, 
Iraq had flagrantly breached its various obligations under UNSCR 687 
regarding the destruction and dismantling, under international 
supervision, of its weapons of mass destruction (``WMD'') programs. The 
Security Council itself decided last year that Iraq ``has been and 
remains in material breach of its obligations under relevant 
resolutions, including resolution 687'' as a result of its failure to 
comply with its disarmament obligations.\6\ in the same resolution, the 
Security Council also recalled that those obligations imposed upon Iraq 
under UNSCR 687 constituted ``a necessary step for achievement of UNSCR 
687's stated objective of restoring international peace and security in 
the area.''
---------------------------------------------------------------------------
    \6\ S.C. Res. 1441, para. 1 (2002). See also S.C. Res. 707, para. 1 
(1991); S.C. Res. 1137, para. 1 (1997); S.C. Res. 1205, para. 1 (1998).
---------------------------------------------------------------------------
    The Security Council's authorization to ``use all necessary means'' 
to disarm Iraq and to restore international peace and security in the 
area includes not only the use of force but also the subsequent 
occupation. An occupation of Iraq is necessary to locate, catalog, 
dismantle, and destroy all Iraqi WMD programs and thus ensure that Iraq 
is in compliance with UNSCR 687. Given the lengths to which the Hussein 
regime has gone to conceal its WMD programs and the years it has had to 
hide its arms, the United States cannot rid Iraq of its WMD programs 
during the course of major combat operations. In addition, were the 
United States and its coalition partners to depart from Iraq 
immediately following the end of combat, the peace and security of the 
region might be threatened. Violence could erupt among Iraq's various 
ethnic and religious groups that could spill beyond Iraq's borders. 
Iraq could descend into a state of anarchy. Such a development would 
not only threaten Iraq's neighbors but also could turn Iraq into a 
haven for terrorist organizations. A humanitarian crisis could also 
result from political turmoil, leading to a flood of refugees entering 
and destabilizing Iraq's neighbors. Remnants of the current Iraq regime 
could seek to reconstitute themselves, which would pose a threat to 
Iraq's neighbors. To fulfill the goals of U.N. Security Council 
Resolution 678, the United States must occupy Iraq, establish an 
interim administration, and construct stable Iraqi government 
institutions that will help to restore peace and security to the 
region.
    The U.S.'s authority to occupy Iraq is confirmed by Resolution 
1483, which was adopted by the Security Council on May 22, 2003 by a 
unanimous vote (with Syria not voting). in that resolution, the 
Security Council recognized the United States and Great Britain as the 
``occupying powers'' in Iraq, and it encouraged ``efforts by the people 
of Iraq to form a representative government based on the rule of law 
that affords equal rights and justice to all Iraqi citizens without 
regard to ethnicity, religion, or gender.'' The Security Council 
resolved ``that the United Nations should play a vital role in 
humanitarian relief, the reconstruction of Iraq, and the restoration 
and establishment of national and local institutions for representative 
governance.'' It also called upon the United States and Great Britain 
``consistent with the Charter of the United Nations and other relevant 
international law, to promote the welfare of the Iraqi people through 
the effective administration of the territory, including in particular 
working toward the restoration of conditions of security and stability 
and the creation of conditions in which the Iraqi people can freely 
determine their own political future.'' In addition to approving the 
financial arrangements for the sale of Iraqi oil and the use of the 
proceeds, Resolution 1483 ``calls upon all concerned to comply fully 
with their obligations under international law including in particular 
the Geneva Conventions of 1949 and the Hague Regulations of 1907.''
    I will review the authority provided by the Geneva Conventions and 
the Hague Regulations shortly. It is important, however, to understand 
that by making clear that the two treaties apply to the occupation of 
Iraq, the Security Council has explicitly recognized that the United 
States may exercise the broad authorities granted by those conventions. 
Further, Resolution 1483 expresses the Security Council's hope that 
Iraq will reform its government in order to establish representative 
institutions subject to the rule of law and protection for human 
rights. The Security Council, however, did not detail the specific 
authorities that would empower the United States and its allies to move 
Iraq toward a constitution with democratic institutions. Therefore, the 
power to achieve these goals must flow from the existing international 
law of occupation, as expressed in state practice and applicable 
treaties. These sources allow the occupying powers, here the United 
States and Great Britain, to alter the domestic laws, including the 
constitution and government institutions, in order to provide for 
stability and security in Iraq, to protect the basic human rights of 
Iraqis, and to restore international peace and security in the region.
Customary Law and the Hague Regulations
    The laws of war govern the conduct of warfare by and between 
states. This body of law is both reflected in the customary practice of 
nations and codified in various texts, including the Hague Convention 
(IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 
Stat. 2277 (``Hague Convention'') and the Geneva Conventions. The laws 
of war recognize that, as the result of armed conflict, any surviving 
elements of the enemy nation may be incapable of providing public 
services and maintaining security. Additionally, victorious armies have 
sought to control enemy territory in order to deprive the enemy of 
valuable resources and to produce surrender. The laws of war thus 
include a specific set of rules to govern the conduct of military 
occupations and the operation of military government. This 
international law of occupation not only authorizes a victorious nation 
to occupy enemy territory and establish a military government; it also 
recognizes the authority of an occupant to change the local laws, 
including government institutions.
    Because the international law of occupation is partially formed, by 
custom and practice, and, as will be explained below, the central 
treaty on occupation does not apply to Iraq, it is important to review 
the historical development of the legal rules in this area. 
Historically, an occupying army enjoyed wide discretion in 
administering the territory of a defeated enemy.\7\ An occupant was 
generally considered the permanent and absolute owner of occupied 
territory. Since the nineteenth century, however, the law has 
understood the occupying authority to exercise only temporary control 
over territory. Permanent control would result only from a treaty of 
peace concluded at the end of a military conflict or the complete 
subjugation of an enemy.\8\ The first efforts to codify the laws of 
war, and more specifically the law of occupation, began in the United 
States during the Civil War. In 1862, the War Department commissioned 
the drafting of a set of basic instructions for Union soldiers on the 
law of war. Approximately one-third of the resulting General Order No. 
100, also known as the ``Lieber Code,'' addressed rules relating to 
occupation. The Lieber Code explained that ``[a] place, district, or 
country occupied by an enemy stands, in consequence of the occupation, 
under the martial law of the invading or occupying army, whether any 
proclamation declaring martial law, or any public warning to the 
inhabitants has been issued or not.'' \9\
---------------------------------------------------------------------------
    \7\ See Doris A. Graber, The Development of the Law of Belligerent 
Occupation 1863-1914, at 13, (1949).
    \8\ See 3 Emmerich de Vattel, The Law of Nations or The Principles 
of Natural Law, Applied to the Conduct and to the Affairs of Nations 
and of Sovereigns, 308, (Charles G. Fenwick, trans., 1916), (1758) 
(``Real property--lands, towns, provinces--become the property of the 
enemy who takes possession of them; but it is only by the treaty of 
peace; or by the entire subjection and extinction of the State to which 
those towns and provinces belong, that the acquisition is completed and 
ownership rendered permanent and absolute.''); American Ins. Co. v. 
Canter, 26 U.S. (1 Pet.) 511, 542 (1828) (``[T]he usage of the world 
is, if a nation be not entirely subdued, to consider the holding of 
conquered territory as a mere military occupation, until its fate shall 
be determined at the treaty of peace.'').
    \9\ General Order No. 100, section I, para. 1.
---------------------------------------------------------------------------
    The institution of martial law, in turn, provided an occupant with 
the authority both to suspend the laws of an occupied nation and to 
subject the population of an occupied nation to new laws. The Lieber 
Code provided, ``Martial law in a hostile country consists in the 
suspension by the occupying military authority of the criminal and 
civil law, and of the domestic administration and government in the 
occupied place or territory, and in the substitution of military rule 
and force for the same, as well as in the dictation of general laws, as 
far as military necessity requires this suspension, substitution, or 
dictation.'' \10\ The scope of the occupant's authority to suspend, 
substitute, or dictate the law of the occupied territory was quite 
broad, due to the Lieber Code's broad definition of the concept of 
military necessity.'' \11\
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    \10\ General Order No. 100, section I, para. 3.
    \11\ General Order No. 100, section I, para. 14 (defining 
``[m]ilitary necessity'' as ``consist[ing] in the necessity of those 
measures which are indispensable for securing the ends of the war, and 
which are lawful according to the modern law and usages of war'').
---------------------------------------------------------------------------
    International efforts to codify the laws of war followed. The 1874 
Brussels Declaration, although not a legally binding agreement, 
specifically authorized the conduct of military occupation, stating 
that ``[t]he authority of the legitimate power being suspended and 
having in fact passed into the hands of the occupant, the latter shall 
take all the measures in his power to restore and ensure, as far as 
possible, public order and safety.'' \12\ Like the Lieber Code, the 
Brussels Declaration expressly recognized the authority of occupants to 
change the laws of the indigenous government in certain situations: 
``With this object he shall maintain the laws which were in force in 
the country in time of peace and shall not modify, suspend or replace 
them by others unless necessary.'' \13\ Although the Brussels 
Declaration established a presumption in favor of ``maintain[ing] the 
laws which were in force in the country in time of peace,'' it also 
allowed the occupant to ``modify, suspend or replace'' those laws when 
necessity required.
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    \12\ Draft of an International Declaration concerning the Laws and 
Customs of War adopted by the Conference of Brussels, August, 27, 1874, 
art. 2.
    \13\ Id. art. 3.
---------------------------------------------------------------------------
    The Brussels Declaration became the basis for the Hague Conventions 
of 1899 and 1907. The Hague Conventions acknowledged both the legality 
of military occupation and the authority of occupants to change 
indigenous laws and institutions. Article 42 of the Hague Convention of 
1907, known as the ``Hague Regulations,'' states that ``[t]erritory is 
considered occupied when it is actually placed under the authority of 
the hostile army. The occupation extends only to the territory where 
such authority has been established and can be exercised.'' \14\ 
Article 43 of the Hague Regulations sets forth one of the primary legal 
duties of an occupying power. Because ``[t]he authority of the 
legitimate power [has] in fact passed into the hands of the occupant,'' 
the occupant ``shall take all the measures in his power to restore, and 
ensure, as far as possible, public order and safety, while respecting, 
unless absolutely prevented, the laws in force in the country.'' \15\
---------------------------------------------------------------------------
    \14\ Hague Convention, Annex, art. 42, 36 Stat. 2306.
    \15\ Hague Convention, Annex, art. 43, 36 Stat. 2306 (emphasis 
added).
---------------------------------------------------------------------------
    The text of article 43 of the Hague Regulations provides ample 
authority to the United States to change Iraqi law, including the 
fundamental change of Iraqi government institutions. Article 43 
empowers an occupant to modify an occupied nation's laws if it is 
necessary to restore and ensure ``public order and safety.'' Given the 
nature of the current Iraqi regime, the United States may need to make 
extensive changes to Iraqi laws, including a substantial overhaul of 
Iraqi government institutions, in order to ensure public order and 
safety.
    Further, it is important to emphasize that even if the Hague 
Regulations were read to impose a stricter standard upon United States 
conduct, it would not legally bind our military occupation in Iraq. The 
Hague Regulations do not govern the U.S. conflict with Iraq because 
Iraq is not a party to Hague. Article 2 of Hague makes clear that its 
provisions apply only to armed conflicts between parties. Thus, the 
international law that applies to the United States is actually that 
created by custom and state practice, and to the extent that the text 
of article 43 and state practice deviate, the latter would control 
rather than the former. In any event, state practice would be relevant 
even if the Hague Regulations applied of their own force because it 
would illustrate how nations have interpreted article 43 over time.
    In the period between the Hague Regulations and the signing of the 
Geneva Conventions of 1949, occupying nations often instituted changes 
in the laws and governmental institutions of the occupied territory. 
During World War I, for example, when Germany occupied Belgium, it 
supplanted the Belgian court system and divided Belgium into separate 
administrative regions. Germany also enacted new legislation governing 
trade, commerce, banking, and welfare, and raised taxes.\16\ When Great 
Britain occupied French and Italian colonies in North Africa during 
World War II, it replaced the colonial governments with administrative 
divisions. \17\ It also established new government systems, including a 
new judicial system, when the local administrative system in Somalia 
collapsed. \18\ During the Allied occupation of Fascist Italy, the 
United States and Great Britain established an Allied Military 
Government of Occupied Territories that eliminated all Fascist 
institutions in Italy, removed Fascists from power, and repealed laws 
that discriminated on the basis of race, creed, or color. These 
developments were probably inevitable due to article 43's ambiguity. 
Nothing in the text of the phrase ``unless absolutely prevented'' 
establishes any substantive standard for what grounds must exist to 
overcome the presumption in favor of the status quo.\19\ And in 
interpreting this vague text, occupying nations generally will have 
powerful motives for interpreting article 43 as broadly as possible. By 
the end of World War II, state practice had established the authority 
of an occupying power to implement fundamental changes in the laws and 
government of an occupied country.
---------------------------------------------------------------------------
    \16\ Eyal Benvenisti, The International Law of Occupation, 40, 
(1993).
    \17\ See id. at 73.
    \18\ See id. at 73-74.
    \19\ See id. at 13 (``[T]he meaning of `unless absolutely 
prevented' remained conveniently vague. . . . The requirement to 
`respect' the existing laws `unless absolutely prevented' has no 
meaning of its own, since the occupant is almost never absolutely 
prevented, in the technical sense, from respecting them.'').
---------------------------------------------------------------------------
The Fourth Geneva Convention
    In response to Axis atrocities during World War II, an attempt was 
made in the Fourth Geneva Convention (``Geneva IV'') to clarify the 
laws of occupation.\20\ Geneva IV formally recognized the authority of 
an occupying nation to alter local laws. Unlike the case with the Hague 
Regulations, both the United States and Iraq are parties to Geneva IV. 
The terms of the Convention apply to any military conflict between the 
two countries and to the U.S. occupation of Iraq.
---------------------------------------------------------------------------
    \20\ Convention (IV) Relative to the Protection of Civilian Persons 
in Time of War, Aug. 12, 1949, 6 U.S.T. 3516.
---------------------------------------------------------------------------
    Article 64 of Geneva IV gives the United States significant 
authority to alter the laws of Iraq during the occupation. Article 64 
provides that `` the penal laws of the occupied territory shall remain 
in force, with the exception that they may be repealed or suspended by 
the Occupying Power in cases where they constitute a threat to its 
security or an obstacle to the application of the present Convention.'' 
\21\ Article 64 then states:
---------------------------------------------------------------------------
    \21\ Geneva Convention (IV) Relative to the Protection of Civilian 
Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 3558.

        [T]he Occupying Power may . . . subject the population of the 
        occupied territory to provisions which are essential to enable 
        the Occupying Power to fulfill its obligations under the 
        present Convention, to maintain the orderly government of the 
        territory, and to ensure the security of the Occupying Power, 
        of the members and property of the occupying forces or 
        administration, and likewise of the establishments and lines of 
---------------------------------------------------------------------------
        communication used by them.

    The Red Cross commentary to Geneva IV states that article 64 of the 
Convention ``expresses, in a more precise and detailed form, the terms 
of Article 43 of the Hague Regulations, which lays down that the 
Occupying Power is to respect the laws in force in the country ``unless 
absolutely prevented.'' \22\ Article 64, however, contains two 
important differences from Article 43. First, article 64 establishes a 
much weaker presumption in favor of the status quo, and it applies it 
only to the criminal laws. Second, article 64 does not limit to 
criminal laws the ``provisions'' to which the occupied territory may be 
subject. We may infer from this language that an occupying power may 
take measures under article 64 that include constitutional, civil, or 
administrative law as well as criminal.
---------------------------------------------------------------------------
    \22\ Jean S. Pictet, ed., Commentary, IV Geneva Convention Relative 
to the Protection of Civilian Persons in Time of War, 335, (1958) 
(``Commentary on Fourth Geneva Convention'').
---------------------------------------------------------------------------
    Article 64 and customary international law empower the United 
States to impose ``provisions'' for a variety of enumerated purposes, 
without regard to whether such provisions can or cannot be reconciled 
with current law, and absent any strong presumption in favor of the 
status quo ante. For instance, article 64 explicitly empowers an 
occupant to institute those measures essential ``to maintain[ing] the 
orderly government of the territory, and to ensur[ing] the security of 
the Occupying Power, of the members and property of the occupying 
forces or administration, and likewise of the establishments and lines 
of communication used by them.'' \23\ In this respect, Geneva IV 
memorialized state practice under the Hague Regulations, which 
recognized an occupant's expansive authority to alter laws, including 
government institutions, in order to maintain the security of its 
military forces, preserve its military gains, and maintain domestic 
order. Occupying nations possess the authority to dismantle 
institutions that pose a threat to domestic or international peace and 
order, such as the Nazi regime in Germany. Commentators have also 
construed state practice to include all of the legitimate purposes of 
war, such as the promotion of democracy and the protection of 
fundamental human rights. \24\
---------------------------------------------------------------------------
    \23\ 6 U.S.T. at 3558.
    \24\ See e.g., Davis P. Goodman, The Need for Fundamental Change in 
the Law of Belligerent Occupation, 37 Stan. L. Rev. 1573, 1585-86 
(1985) (``occupiers consider themselves absolutely prevented 
fromrespecting local law whenever it hinders the realization of the 
legitimate purpose of occupation''); id. at 1590 (``If the purpose of 
the conflict is to rid the occupied territory of a form of government 
objectionable to the belligerent occupier, the occupier will not 
respect the existing political structure while waiting for the final 
determination of the conflict.'').
---------------------------------------------------------------------------
    The United States may reasonably conclude that institutions of the 
former Hussein regime pose a substantial threat to the security of the 
Armed Forces during the occupation of Iraq. Consequently, in order to 
protect the safety of the U.S. Armed Forces during an occupation of 
Iraq, it would almost certainly be necessary for Iraqi law to be 
changed so that these government institutions are dismantled. The 
preservation of the forms of the Hussein regime could also represent a 
danger to the national security of the United States. As Congress has 
found, the Iraqi government has generally demonstrated a continuing 
hostility to the United States. The Iraqi government has harbored and 
aided international terrorist organizations that threaten the lives and 
safety of American citizens. Just last year, Congress found that the 
current Iraqi regime posed a continuing threat to the national security 
of the United States, due to its possessions of chemical and biological 
weapons, pursuit of nuclear weapons capability, and support for 
terrorist organizations.\25\ Congress specifically noted Iraq's 
capability and willingness to use weapons of mass destruction and the 
risk that the current Iraqi regime would employ those weapons in an 
attack upon the United States or provide them to terrorists who would 
do so.\26\ Iraq has also been a danger to the region. It has twice 
invaded its neighbors without provocation.
---------------------------------------------------------------------------
    \25\ Pub. L. No. 107-243, 116 Stat. 1498 (2002); see also Pub. L. 
No. 105-235, 112 Stat. 1538, 1540 (1998) (declaring that ``Iraq's 
continuing weapons of mass destruction programs threaten vital United 
States interests and international peace and security'').
    \26\ See Pub. L. No. 107-243, 116 Stat. 1498 (2002).
---------------------------------------------------------------------------
    The historical record shows that the maintaining current Iraqi 
government institutions would constitute a threat to the national 
security of the United States and the safety of the U.S. Armed Forces 
in Iraq. Geneva IV and customary international law permit the United 
States to replace those institutions with others that would endanger 
neither the national security of the United States nor the safety of 
the U.S. Armed Forces. Given the Iraqi government's past behavior, the 
retention of the current Iraqi regime would be inimical to the 
establishment of peace and security in the Middle East.
    Article 64 also expressly authorizes occupants to make alterations 
to laws of the indigenous government in order to protect rights 
guaranteed by Geneva IV. The rights afforded by Geneva IV sweep 
broadly. For example, article 27 provides that ``[p]rotected persons 
are entitled, in all circumstances, to respect for their persons, their 
honour, their family rights, their religious convictions and practices, 
and their manners and customs.'' It establishes that ``[t]hey shall at 
all times be humanely treated, and shall be protected especially 
against all acts of violence or threats thereof and against insults and 
public curiosity.'' It declares that ``[w]omen shall be especially 
protected against any attack on their honour, in particular against 
rape, enforced prostitution, or any form of indecent assault.'' And it 
finds that ``all protected persons shall be treated with the same 
consideration by the Party to the conflict in whose power they are, 
without any adverse distinction based, in particular, on race, religion 
or political opinion.'' All of these rights are subject to the 
qualification that ``the Parties to the conflict may take such measures 
of control and security in regard to protected persons as may be 
necessary as a result of the war.'' \27\
---------------------------------------------------------------------------
    \27\ An occupying power also must respect a number of rights 
provided to civilians charged with committing a criminal act during an 
occupation. Those prosecuted must be ``promptly informed, in writing, 
in a language which they understand, of the particulars of the charges 
preferred against them, and shall be brought to trial as rapidly as 
possible.'' Art. 71, 6 U.S.T. at 3562. Additionally, those accused of 
crimes are guaranteed ``the right to present evidence necessary to 
their defence and may, in particular, call witnesses.'' Id. Art. 72. 
Defendants also ``have the right to be assisted by a qualified advocate 
or counsel of their own choice, who shall be able to visit them freely 
and shall enjoy the necessary facilities for preparing the defence.'' 
Id. Once convicted, protected persons continue to enjoy a range of 
rights under the Fourth Geneva Convention, including the right to 
``enjoy conditions of food and hygiene which will be sufficient to keep 
them in good health, and which will be at least equal to those 
obtaining in prisons in the occupied country,'' the right to ``receive 
the medical attention required by their state of health,'' and ``the 
right to receive any spiritual assistance which they may require.'' 
Art. 76, 6 U.S.T. at 3566.
---------------------------------------------------------------------------
    Other provisions of Geneva IV require an occupying power to care 
for the population of an occupied country. Article 50 provides that 
``[t]he Occupying Power shall, with the cooperation of the national and 
local authorities, facilitate the proper working of all institutions 
devoted to the care and education of children.'' Under articles 55 and 
56, the occupying power must, ``[t]o the fullest extent of the means 
available to it,'' provide for ``the food and medical supplies of the 
population,'' and ``in particular, bring in the necessary foodstuffs, 
medical stores and other articles if the resources of the occupied 
territory are inadequate,'' as well as ensure and maintain, ``with the 
cooperation of national and local authorities, the medical and hospital 
establishments and services, public health and hygiene in the occupied 
territory, with particular reference to the adoption and application of 
the prophylactic and preventive measures necessary to combat the spread 
of contagious diseases and epidemics.''
    Given the Iraqi government's abysmal record in the area of human 
rights, the United States cannot fulfill its obligations under Geneva 
IV without replacing the institutions of the Hussein regime. The regime 
maintained its hold on power only by brutally repressing the Iraqi 
people. It systematically murdered those perceived to be a threat to 
the regime. Hussein's security forces routinely tortured Iraqis, with 
beatings, rape, the breaking of limbs, and the denial of food, water, 
and medical treatment being commonplace. Needless to say, the regime 
did not tolerate political dissent, other political parties, or freedom 
of religion. It also displayed an utter disregard for the welfare of 
Iraqi women and children. Given the barbaric nature of the Hussein 
regime, the United States must eliminate the institutions of the 
Hussein government to carry out all of the duties placed upon it by 
Geneva IV and to protect the basic human rights given to the Iraqi 
people. Clearly, this will require the United States to establish a new 
Iraqi constitution and representative government institutions.
    Although the drafters of Geneva IV formally recognized the 
expansive authority of an occupying nation to change the laws of an 
occupied nation, they did establish one significant substantive 
limitation. Article 47 forbids the introduction of any changes to the 
status quo that would deprive the population of Geneva IV rights. 
Article 47 states:

        Protected persons who are in occupied territory shall not be 
        deprived, in any case or in any manner whatsoever, of the 
        benefits of the present Convention by any change introduced, as 
        the result of the occupation of a territory, into the 
        institutions or government of the said territory, nor by any 
        agreement concluded between the authorities of the occupied 
        territories and the Occupying Power, nor by any annexation by 
        the latter of the whole or part of the occupied territory.\28\
---------------------------------------------------------------------------
    \28\ 6 U.S.T. at 3548.

Therefore, the United States cannot alter the laws, including the 
government institutions of Iraq, in a manner that is inconsistent with 
the basic rights recognized by Geneva IV.
    Some may argue that article 64 limits the occupying nation's 
authority to those changes that would last only during the occupation. 
While an occupying nation would possess the power to enact temporary 
measures necessary to fulfill its obligations under Geneva W, maintain 
order and security, and ensure its national security along with the 
security of its armed forces, article 64 and customary international 
law would not grant an occupying power the authority to make permanent 
changes in governmental institutions or constitutional law. To be sure, 
there will be circumstances in which an occupying power will need to 
suspend or modify the laws of an occupied nation only on a temporary 
basis. For example, in the midst of civil disorder, an occupant may 
resort to interim emergency measures, such as a curfew. In other 
situations, however, temporary measures will be plainly inadequate for 
an occupant to accomplish the legitimate purposes of occupation. In 
order for the United States to fulfill its obligations, maintain an 
orderly government, and protect its national security as well as the 
security of its armed forces while occupying Iraq, it almost certainly 
will be necessary for the United States to change Iraqi law to 
dismantle current Iraqi government institutions and create new ones to 
take their place.

                               CONCLUSION

    International law provides the United States with ample authority 
to establish a new Iraqi constitution and democratic governmental 
institutions as part of its duty to secure public safety in Iraq, 
protect the basic human rights of Iraqis, and to restore international 
peace and security to the region.

    Senator Cornyn. Thank you very much, Professor Yoo.
    Professor Agawa.

STATEMENT OF NAOYUKI AGAWA, MINISTER AND DIRECTOR OF THE JAPAN 
        INFORMATION AND CULTURE CENTER, EMBASSY OF JAPAN

    Mr. Agawa. Chairman Cornyn, Chairman Chafee, it is a 
distinct honor to testify before your subcommittee. I have 
submitted my written statement for the record, but I would like 
to briefly inform you of the making of the Japanese 
constitution in 1946, one instance in which the Americans were 
deeply involved in the making of somebody else's constitution, 
in the hope that that extraordinary story may assist you in 
thinking about how the United States wants to guide the 
constitution and the future of Iraq.
    Please note that the views that I express today before your 
subcommittees are strictly my own, and do not in any way 
reflect the views of the Government of Japan, for which I 
currently work.
    In order to grasp the time, place, and manner in which the 
new Japanese constitution was written, one needs to know the 
history surrounding that event in chronological order. Because 
my time is limited, I would just point out that the original 
draft of the 1946 constitution was prepared in English by a 
group of Americans without any Japanese participation, that the 
drafting was completed in a matter of a week in total secrecy 
in February 1946.
    Professor Yoo just mentioned the fact that there are some 
legal bases for that kind of act, and I think that General 
MacArthur took care of that legal basis. Nevertheless, that's 
the fact.
    The American occupation authority, known as GHQ, actually 
wanted to wait for the Japanese side to come up with a new 
constitutional draft, but for a variety of reasons decided to 
prepare the initial draft themselves, and handed it to the 
Japanese. The Japanese were certainly given opportunities to 
comment on and revise this GHQ draft after it was handed to 
them. Nevertheless, the American original has determined the 
character of the 1946 constitution to a large extent.
    Well, having said that, I believe that the 1946 
constitution has been largely successful. First and foremost, 
the 1946 constitution has functioned as the basic law of the 
land for the past 57 years. Its pacifist and democratic 
character, together with its emphasis on fundamental human 
rights, suited the mood of the Japanese people, who were tired 
of years of war and military control. Therefore, the 1946 
constitution set the cornerstone for Japan's post-war 
democratization.
    There are several specific examples of success.
    Article 1 declared the Emperor to be the symbol of the 
State and of the unity of the people. It secured the Emperor's 
position constitutionally, while democratizing it by depriving 
him of all political powers, and by adding the new notion that 
his position is derived from the will of the people, with whom 
resides sovereign power. It ensured the gradual and peaceful 
democratization of Japan both during and after the occupation.
    Article 9 proclaimed Japan's renunciation of war and its 
decision not to maintain armed forces, this helped to alleviate 
the fear of the resurgence of Japan's adventurous militarism.
    Chapter III lists a variety of human rights, fundamental 
human rights. Many of these human rights provisions have 
functioned as a goal of the nation.
    Chapters IV and V set forth provisions of the parliamentary 
system without substantial changes made to the 1890 
constitution. This assured the continuity of government.
    Chapter VI sets forth the provisions for the judiciary, 
that retained the basic structure of the pre-war judicial 
system, and that the Japanese judiciary continued to be base 
largely on the civil law tradition.
    Article 96, last, sets forth a procedure for the revision 
of the 1946 constitution, and thus has given the Japanese 
people the option and freedom to change it in the future, 
although we have never changed the constitution so far.
    Several aspects of the 1946 constitution have been less 
successful, however. First, some Japanese, because the initial 
draft was made by Americans, continue to believe that the 1946 
constitution was imposed by the Americans on the Japanese 
people. Also, some believe that the Japanese Government's 
exceedingly restrictive interpretation of Article 9 has 
prevented Japan from becoming a full-fledged ally of the United 
States and from fully participating in international military 
action, that involvement of force necessary to maintain peace 
such as the first gulf war.
    Some of the fundamental human rights provisions 
incorporated in Chapter III seem to reflect too many American 
legal ideas of the 1930's, i.e., the bigger the government, the 
better. For example, the right to maintain the minimum 
standards of wholesome and cultured living, and the State's 
obligation to promote social welfare, security and public 
health in Article 25. These things have been difficult to 
enforce.
    There are some other examples, but I am running out of 
time, so in conclusion, the American attempts to democratize 
Japan after World War II has been remarkably successful. The 
1946 constitution was a major factor in that attempt. One must 
remember however, that the Japanese had experienced a healthy 
democracy in the 1920's, and that the post-war democracy was 
based on and grew from that experience.
    As noted above, however, not every American-inspired 
measure worked successfully in post-war Japan, but no 
constitution is perfect, and it is now up to the Japanese 
people to fix it if and when necessary in accordance, again, 
with the freely expressed will of the people.
    Thank you very much.
    [The prepared statement of Mr. Agawa follows:]

                  Prepared Statement of Naoyuki Agawa

Introduction
    Chairman Cornyn, and Chairman Chafee, and members of the 
subcommittees. It is a distinct honor to testify before your 
subcommittees on the making of the Japanese Constitution in 1946.
    On August 15, 1945, Japan announced the acceptance of the Potsdam 
Declaration. That ended three and a half years of war between the 
United States and Japan. General MacArthur stepped onto Japanese soil 
15 days later. Thus the occupation of Japan started and lasted 
approximately seven years. During that time, the United States together 
with other members of the Allied Powers undertook many measures to do 
away with the country's military control and revive Japan's democracy. 
Among them was the making of the new Japanese Constitution.
    Almost 60 years later, the United States and its coalition partners 
are again finding themselves in charge of the occupation and 
democratization of Iraq. Among the tasks to be undertaken there in due 
course, I understand, is the making of the new Iraqi Constitution.
    I would like to inform you of the making of the new Japanese 
Constitution in 1946 in the hope that that extraordinary story may 
assist you in thinking about how the United States wants to guide the 
constitutional future of Iraq. More specifically, I would like to give 
you examples of the American ideas incorporated into the Japanese 
Constitution, how they were incorporated, and which of these proved to 
be successful and which were not.
    Please note that the views I express today before your 
subcommittees are strictly my own and do not in any way reflect the 
views of the government of Japan. I am testifying before your 
subcommittees strictly in the capacity of a constitutional scholar who 
has taught this subject at Keio University in Japan, the University of 
Virginia Law School and Georgetown University Law Center; therefore, I 
do not appear today sharing my views as a minister of the Embassy of 
Japan.

The History of the Making of the Japanese Constitution
    In order to grasp the time, place and manner in which the new 
Japanese Constitution of 1946 (the ``1946 Constitution'') was written, 
it is perhaps useful briefly to narrate the history surrounding that 
event in chronological order.
    Many believe that the writing of the 1946 Constitution started with 
the acceptance of the Potsdam Declaration, which presented the 
conditions for Japan's ``unconditional surrender'' to the Allied 
Powers. The Declaration, among other things, stated that ``until there 
is convincing proof that Japan's war-making power is destroyed, [Japan] 
shall be occupied . . .'' Further, it stated that ``the Japanese 
government shall remove all obstacles to the revival and 
strengthen[ing] of democratic tendencies among the Japanese people'' 
and that ``freedom of speech, of religion, and of thought, as well as 
respect for the fundamental human rights shall be established.'' 
Lastly, the declaration stated that ``the occupying forces of the 
Allies shall be withdrawn from Japan as soon as these objectives have 
been accomplished and there has been established in accordance with the 
freely expressed will of the Japanese people a peacefully inclined and 
responsible government.'' Thus the Potsdam Declaration not only set 
Japan's surrender terms, but it also set the condition for the 
termination of the occupation, i.e., the demilitarization and 
democratization of Japan.
    The General Headquarters of the Allied Powers (the ``GHQ''), the 
occupation authority headed by General MacArthur, the Supreme Commander 
of the Allied Powers, did not initially embark on the making of a new 
Japanese Constitution. It was initially busy physically disarming the 
Japanese military establishment, arresting war criminals, freeing 
political prisoners and taking care of other such pressing matters. In 
fact, it was only in October 1945 that General MacArthur first 
suggested to then Prime Minister Kijuro Shidehara that the Japanese 
government consider necessary constitutional changes. Please note that 
the GHQ ruled Japan indirectly through the existing Japanese cabinet 
and the bureaucracy.
    The Shidehara cabinet thereupon formed a committee to study the 
constitutional matters. This committee became known as the Matsumoto 
Committee, because it was headed by Dr. Matsumoto, a member of the 
cabinet who was also a noted legal scholar. The Matsumoto Committee was 
of the impression that (1) the GHQ was not in a particular hurry to 
make the constitutional changes and (2) the committee could deliberate 
the necessary constitutional changes free from the influence of the 
GHQ. Thus, The Matsumoto Committee began to study possible revisions to 
the existing Constitution promulgated in 1890 (the ``1890 
Constitution'') in order to make it more democratic and accountable to 
the people without determining any concrete timetable for the actual 
revisions to take place.
    This situation suddenly changed during the first week of February 
1946. The Matsumoto Committee's drafts of the revised 1890 Constitution 
were leaked to and reported by a Japanese newspaper. General 
MacArthur's staff read these newspaper articles and found these 
proposed revisions to be inadequate for Japan's democratization. The 
principle of popular sovereignty, for instance, was not clearly set 
forth. Upon learning of these facts from his staff, General MacArthur 
asked the Government Section of the GHQ itself to start drafting a new 
Japanese Constitution. On February 3, the General gave the Government 
Section lawyers and others a one page note outlining a few of the most 
important principles to be included in the draft Constitution. This 
famous ``MacArthur Note'' included, among other things, a provision to 
retain the Emperor and another provision for the abolishment of war and 
armed forces, even for self-defense purposes. The Government Section 
secretly started its draft on February 4 and finished the task on 
February 10. This draft was approved by General MacArthur and 
officially became the GHQ Draft on February 12. The GHQ Draft was in 
English.
    The GHQ Draft was shown to Dr. Matsumoto and a few other 
representatives of the Japanese government on February 13. Assuming 
that the American side intended to comment on the Committee's own draft 
Constitution that had been submitted to the GHQ a few days earlier, the 
Japanese delegation was stunned at the liberal tone of the GHQ Draft 
and declared that they were not ready to accept it. General Whitney, 
General MacArthur's deputy, stated in return that the acceptance of the 
GHQ Draft might be the only way for the Emperor to survive and for the 
current Japanese government to remain in control.
    After several rounds of exchanges between the GHQ and the Japanese 
government, including a meeting between Prime Minister Shidehara and 
General MacArthur, the Japanese cabinet reluctantly agreed to prepare a 
new draft in Japanese, based on the GHQ Draft. This new round of 
drafting started on February 27 and was completed on March 2. The 
Japanese government lawyers submitted this new draft to the GHQ on 
March 4. The GHQ found this new draft was still inadequate. An all-
night session to conform it to the GHQ Draft pursued, and this task was 
completed on March 5 with MacArthur's approval. On March 6, the 
Japanese cabinet approved this new draft and publicly released it as 
the Government Draft.
    The Government Draft was submitted to the Diet and the Privy 
Council, the Emperor's advisory body, in accordance with the revision 
procedures of the 1890 Constitution as set forth therein. After lively 
debates and a fair number of revisions, the final Government Draft was 
adopted and proclaimed as the 1946 Constitution on November 3, 1946, 
effective May 3, 1947.
    On September 8, 1951, Japan concluded a peace treaty in San 
Francisco with the United States and other Allied Powers. The peace 
treaty became effective on April 28, 1952 after its ratification by a 
majority of the signatories to the treaty. Thus Japan's occupation 
ended and the country regained its full independence.

Has the 1946 Constitution Been Successful?
    I believe that the 1946 Constitution has been largely successful. 
This assessment is based on several factors.
    First and foremost, despite initial opposition to some of the new 
ideas incorporated in the GHQ Draft and the Government Draft, the 1946 
Constitution has functioned as the basic law of the land for the past 
57 years. In fact, when the Government Draft was made public on March 
6, 1946, the majority of the Japanese people favorably received it. Its 
pacifist and democratic character together with its emphasis on 
fundamental human rights suited the mood of the Japanese people who 
were tired of years of war and military control. It is fair to say, 
therefore, that the 1946 Constitution set the cornerstone for Japan's 
post-war democratization.
    More specifically, Article I of the 1946 Constitution incorporated 
the revolutionary notion of the Emperor as the ``symbol of the State 
and of the unity of the people.'' This provision has worked remarkably 
well. On the one hand, it secured the Emperor's position 
constitutionally, thus allowing the ancient tradition to survive the 
post-war turmoil. On the other hand, it democratized the Emperor by 
depriving him of all political powers and by adding the new notion that 
his position is derived from the ``will of the people with whom resides 
sovereign power.'' Under the 1890 Constitution, in theory the Emperor 
retained all the rights of sovereign and reigned over and governed the 
Empire of Japan. Although the conservatives in Japan strongly resisted 
the idea of turning the Emperor into a mere figurehead, the Emperor as 
the spiritual symbol of the nation and not a political power actually 
conformed well to Japan's age-old political tradition and thus has 
functioned well. In my view, maintaining the Emperor tradition in Japan 
is MacArthur's greatest achievement in connection with the 1946 
Constitution. It assured the peaceful and gradual democratization of 
Japan both during and after the occupation.
    Article 9 of the 1946 Constitution incorporated another 
revolutionary notion of the renunciation of war. This provision also 
served its purposes particularly well for Japan's first 30 to 40 
postwar years. In order to smoothly return to the international 
community, the Japan that was perceived in the 1930's as an aggressor 
in the Asia-Pacific region had to project the image of a born-again, 
peace-loving country. Article 9 proclaimed Japan's renunciation of war 
and its decision not to maintain armed forces. This helped to alleviate 
the fear of the resurgence of Japan's adventurous militarism, a feeling 
shared at the time by many countries and peoples surrounding Japan. It 
also made the Japanese sincerely aspire to become a truly peace-loving 
nation. The result is a Japan today that promotes peace worldwide 
largely through non-military means.
    Also, importantly, Chapter III of the 1946 Constitution lists a 
variety of fundamental human rights. As a matter of concrete policy, 
the Japanese found some of them difficult to implement immediately 
because they were so idealistic and because the Japanese government had 
little resources to realize them. However, many of these ``rights'' 
provisions have functioned as the goals of the nation. The Japanese 
aspired to achieve these goals and to rebuild a country that is based 
upon and respects these fundamental human rights. For instance, Article 
24 of the 1946 Constitution promulgated the equality of the sexes. 
Japanese women had not been treated as equals to men for historical and 
cultural reasons throughout most of Japanese history, and were inspired 
by this provision. Since then, they have significantly improved their 
social standing in Japan. It is perhaps fair to say that post-war Japan 
has respected people's ``life, liberty and pursuit of happiness'' and 
``equal[ity] under the law'' to the greatest extent possible as 
provided in Articles 13 and 14 of the 1946 Constitution.
    In addition, the 1946 Constitution maintained the parliamentary 
(the Diet) system without substantial changes made to the one under the 
1890 Constitution. This assured the continuity of government. There 
were some important changes in this area, too. For instance, the 1946 
Constitution specifically made the Cabinet directly responsible to the 
Diet, thus reviving and strengthening the 1920's democratic tradition 
that thrived in Japan before the military took control of the country. 
The 1890 Constitution had no express provision for the Cabinet's 
accountability to the Diet although by the 1920's it had become 
customary for the Cabinet to resign at the displeasure of the Diet. 
Also, the Prime Minister was given the authority to appoint and remove 
members of his cabinet. Nevertheless, the parliamentary system as a 
whole was not materially changed from the pre-war model. The drafters 
of the GHQ draft could have tried to institute a more American style of 
government by establishing clearer separations of power and creating a 
more independent executive branch of the government. However, these 
Americans knew and respected the Japanese' pre-war democratic 
experiences and traditions. Therefore, these drafters left the existing 
system intact. That worked well for Japan's needs.
    Similarly, while the 1946 Constitution made the Japanese judiciary 
more independent and encouraged it to be more ``rule of law'' oriented 
in order to protect the fundamental human rights of the Japanese 
people, it respected and retained the basic structure of the pre-war 
judiciary system. Thus, the Japanese judiciary continued to be based 
largely upon the civil law tradition that was originally introduced 
from Germany and France. In fact, the person who worked on the reform 
of the Japanese judiciary system within the GHQ was Judge Opler, a 
naturalized American citizen who was a former judge in pre-Nazi 
Germany. He advised the GHQ not to introduce too much of the American 
judicial system, such as the election of judges. This suggestion has 
also worked well for Japan.
    Lastly, the American drafters provided for the procedures for the 
revisions of the 1946 Constitution in Article 96. Some of the American 
drafters maintained that the provisions for fundamental human rights in 
Chapter III should be made non-amendable lest the Japanese people be 
deprived of these rights after the Americans left Japan. However, 
others argued and prevailed that the American drafters should not bind 
the future generations of the Japanese to what the Americans thought to 
be the most important constitutional principles. Thus, the Japanese 
have retained the freedom to amend the 1946 Constitution partly or in 
its entirety in accordance with the procedures set forth in Article 96. 
Interestingly, the 1946 Constitution has never been amended. 
Constitutional scholars have debated why the Japanese are so reluctant 
to amend the Constitution. Nevertheless, the insertion of the amendment 
procedures has given the Japanese people the option and freedom to 
change it in the future. It therefore weakens the argument that this 
Constitution was imposed on the Japanese by the Americans.

Certain Aspects of the 1946 Constitution That Are Less Successful
    Several aspects of the 1946 Constitution have been less successful 
or totally unsuccessful.
    First, some Japanese continue to believe that the 1946 Constitution 
was ``imposed'' by the Americans on the Japanese people and that it 
therefore lacks legitimacy. They still find offensive that the first 
draft of the 1946 Constitution was prepared in English by a group of 
Americans, and furthermore that it was done in an extremely short 
period of time and in complete secrecy. Those Japanese do not recall 
themselves ``proclaim[ing] that sovereign power resides with the 
people'' and ``firmly establish[ing] this Constitution'' as the 
Preamble to the 1946 Constitution states. Some believe that the 1946 
Constitution is badly written as a matter of Japanese prose because the 
original draft was in English. In fact, a top secret directive from 
Washington to General MacArthur issued on January 7, 1946 entitled 
SWNCC 228 (the State-War Navy Coordinating Subcommittee for the Far 
East directive number 228) specifically stated that ``[o]nly as a last 
resort should the Supreme Commander order the Japanese Government to 
effect the constitutional changes], as the knowledge that they had been 
imposed by the Allies would materially reduce the possibility of their 
acceptance and support by the Japanese people for the future.'' 
However, some Japanese had strong counter-arguments to this position. 
For instance, some scholars argue that because the Diet debated and 
amended the Government Draft in a relatively free fashion in the latter 
half of 1946, the Japanese people did have an opportunity to express 
their will in the making of the 1946 Constitution through their 
representatives. Scholars also argue that the Japanese have so far 
chosen not to amend the 1946 Constitution, indicating that the nation 
as a whole has approved of it and liked it. Also, the GHQ Draft was 
prepared in haste for several good reasons, for example, among other 
things, General MacArthur's wish to avoid Soviet Russia's intervention 
in his occupation policy, in order to prevent communist-led insurgency 
in Japan and to protect the Emperor from indictment as a war criminal. 
Nevertheless, because the first draft of the 1946 Constitution was 
prepared by a group of Americans without participation of any Japanese, 
I believe that this factor has harmed the legitimacy of the 1946 
Constitution to a certain degree.
    In addition, certain substantive ideas incorporated into the 1946 
Constitution by the American drafters tended not to function well or 
became outdated after a while. The foremost of this example is in 
Article 9. General MacArthur was perhaps very keen on demilitarizing 
Japan and perhaps sincerely believed in a harmonious post-war 
international order. As a result, he was adamant that the Japanese 
people forever renounce war and do away with all armed forces. Given 
the impracticality of rebuilding its war potential at the time, the 
Japanese obliged. The American policy makers, including General 
MacArthur, quickly regretted inserting this provision in the 1946 
Constitution and tried to persuade the Japanese to rearm when the Cold 
War heated up and the Korean War began. However, the Japanese refused 
to rearm, quickly citing Article 9 and pointing out that it was the 
United States that originally insisted on the insertion of this 
provision. The Japanese people have liked Article 9 and post-war Japan 
has become a pacifist country. This is all good and well. However, some 
believe that the Japanese government's exceedingly restrictive 
interpretation of Article 9 has prevented Japan from becoming a full-
fledged ally of the United States and from fully participating in 
international military actions involving use of force necessary to 
maintain peace, such as the first Gulf War. In addition, the lack of 
any provision in the 1946 Constitution setting forth the war and 
emergency power of the government has hindered Japan from preparing for 
any war or other emergencies, such as terrorist attacks. Here lies a 
lesson, perhaps, that a radical, substantive constitutional provision 
may, in the long run, not work.
    Similarly, some of the fundamental human rights provisions 
incorporated in Chapter 111 of the 1946 Constitution seem to reflect 
too many of American liberal ideas of the 193O's. It is a known fact 
that the three American drafters of Chapter III were liberally-oriented 
non-lawyers and that they were eager to add everything that the United 
States Constitution did not have. (For that matter, only one member of 
the American drafting team was Republican.) The ideas included by the 
drafters are: the freedom to choose residence and occupation, and to 
divest nationality (Article 22); academic freedom (Article 23); 
marriage based only on the mutual consent of both sexes and the 
essential equality of the sexes pertaining to marriage and family 
(Article 24); the right to maintain the minimum standards of wholesome 
and cultured living and the State's obligation to promote social 
welfare, security and public health (Article 25); the right to receive 
an equal education (Article 26); the right and obligation to work 
(Article 27); and the right of workers to collectively organize, 
bargain, and act (Article 28). While these provisions are all for good 
causes, some of them proved to be difficult to implement as a matter of 
concrete policy and have functioned more as desirable standards. Also, 
some have criticized these provisions as too strongly oriented towards 
rights, freedom and individualism (individual liberty). The dissenters 
believe that the American drafters failed to incorporate some of the 
more traditional Japanese values such as family, community, seniority, 
and the nation, therefore allowing the post-war Japanese generation to 
become more selfish and less public-minded.
    Chapter VI of the 1946 Constitution, concerning the judiciary, is 
another area in which some of the American ideas did not work 
particularly well. While the 1946 Constitution strengthened the 
Japanese judiciary and made it more independent, the American drafters 
were concerned about the possibility of judicial tyranny because of 
their recent experiences with the ``old horsemen'' of the United States 
Supreme Court during the New Deal Era. Accordingly, in the 1946 
Constitution the drafters added measures such as term limits for the 
judges (Article 80); the mandatory retirement ages for the judges of 
the Supreme Court as well as of lower courts (Articles 79 and 80); and 
even the performance review and recall of the Supreme Court judges by 
the people through ballots every ten years (Article 80). Also, the 
American drafters omitted the word ``property'' after ``life and 
liberty'' from Article 31 of the 1946 Constitution, setting forth the 
due process principle lest the property rights be abused by the Supreme 
Court as was the case in the United States in the late 19th and early 
20th centuries. These provisions proved to be more or less irrelevant. 
For historical and other reasons, the Japanese judiciary never became 
as powerful as the American judiciary. No Japanese Supreme Court judge 
has ever been removed by the ballot because the average age of their 
appointment to the Supreme Court is 64, their mandatory retirement age 
is 70, and therefore no one remains on the bench at the next round of 
review ten years later. For that matter, the Japanese Supreme Court has 
exercised its judicial review power very sparingly. The American 
drafters incorporated the doctrine of Marbury v. Madison in Article 81 
of the 1946 Constitution in the hope that the Supreme Court would 
function as a check against the Diet and the Cabinet nullifying the 
laws, orders and regulations it finds to be unconstitutional. The 
Japanese Supreme Court has, however, held the statutes unconstitutional 
only about five times in the past 55 years. It has a tendency to defer 
to the legislative will of the Diet, which is defined as the ``highest 
organ of state power'' in Article 41. This is not necessarily a bad 
result. Some scholars in the United States may envy the judicial 
restraint exhibited by the Japanese courts. It is simply that the 
Japanese judiciary did not behave as the American drafters hoped or 
feared. All in all, provisions for the judiciary in the 1946 
Constitution have had mixed results. The provisions have created a more 
independent judiciary, but did not create as strong and influential a 
system as the United States judiciary.

Conclusion
    In summary, the American attempt to democratize Japan after WWII 
has been remarkably successful. The 1946 Constitution was a major 
factor in that attempt. More than anything else, it set the benchmark 
against which the progress of the Japanese democratization was 
measured. Today, Japan is a thriving free market democracy where basic 
human rights are protected and the political system accountable to the 
people is functioning. The Potsdam Declaration's desire to see the 
establishment of a ``peacefully inclined and responsible government'' 
in accordance with the ``freely expressed will of the Japanese people'' 
has been fulfilled. The Japanese people owe a lot of this success to 
the American ideas, including those of the American drafters of the 
1946 Constitution. One must also remember, however, that the Japanese 
had experienced a healthy democracy in the 1920's and that the post-war 
democracy was based on and grew from that experience.
    As noted above, however, not every American-inspired measure worked 
successfully in post-war Japan. Certain provisions of the 1946 
Constitution did not work as expected or became obsolete over time. 
Many of them were provisions that reflected American constitutional 
experiences that did not take root in the Japanese soil. Others were 
the currently popular substantive ideas that were bound to become 
obsolete over time. It was also unfortunate that the initial drafting 
of the 1946 Constitution did not allow for any Japanese participation 
and had to be completed in such a short time.
    Nevertheless, the American-drafted 1946 Constitution sowed seeds of 
democracy in Japan, and the Japanese people have lived with (and some 
have put up with) this Constitution for more than half a century. No 
constitution is perfect, and it is now up to the Japanese people to fix 
it if and when necessary in accordance again with the freely expressed 
will of the people.
    Chairman Cornyn, Chairman Chafee, and subcommittee members, thank 
you for your time. I appreciate the honor and privilege of being 
allowed to express my views today.

    Senator Cornyn. Thank you very much, Professor; and now for 
a view of the German example. Dr. Kommers, thank you for 
joining us today. Please give us your opening statement.

  STATEMENT OF DONALD KOMMERS, JOSEPH AND ROBBIE PROFESSOR OF 
 POLITICAL SCIENCE AND PROFESSOR OF LAW, NOTRE DAME SCHOOL OF 
                              LAW

    Dr. Kommers. Senator Cornyn, I also want to thank you for 
the subcommittee's invitation, but with your indulgence I may 
have to leave a little earlier since I have a plane to catch 
back to South Bend, Indiana at 7 this evening, and I know the 
rush hour gets pretty terrific around 5 in the afternoon.
    My statement is very short, really less than 4 minutes. As 
I understand my task, it's not to lay out a blueprint for 
rebuilding constitutional government in Iraq, but rather to 
indicate what lessons we Americans might draw from the allied 
effort to restart constitutionalism in Germany after World War 
II.
    My written statement lists many of the differences between 
occupied Germany in 1945 and occupied Iraq in 2003. The German 
experience may nevertheless be relevant in several respects. 
The German experience confirms, I think, much of what has 
already been said here today on this panel and on the previous 
panel and what Senator Feingold had to say earlier in his 
remarks.
    In what respects? First, the German experience shows that 
reestablishing constitutional government can only begin when 
the occupying power is fully in control, and only when law and 
order is fully restored. Second, rebuilding democracy must be 
the first responsibility of the occupied country.
    Third, a spirit of trust and cooperation must define the 
relationship between the occupiers and the occupied. In 
addition, the educated classes and a critical mass of 
democratically inclined citizens must be willing and able to 
cooperate with the occupation.
    Finally, and perhaps the most important lesson of all, 
given the German experience, is that the restoration of 
democratic constitutionalism must be a bottom-up, rather than a 
top-down affair, and it must reflect indigenous values and 
traditions.
    Consider how the process worked in Germany. Already, in 
late 1945, the military Governors authorized Germans to rebuild 
their local and state governments, in some cases in 
artificially created territorial units. They initially selected 
the prime ministers of those territorial units, the top German 
officials charged with this task of rebuilding, but thereafter, 
these officials acted on their own, save for certain functions 
related to internal security and foreign trade. These local 
units evolved, interestingly enough, into dynamic working 
governmental systems jealous of their power and autonomy, and 
pretty much based on the German tradition of statecraft.
    By mid-1946, elected State Parliaments and Prime Ministers 
were functioning under written constitutions, at least in the 
four states within the American zone. Local representatives of 
political parties licensed by American military authorities 
drafted these constitutions, and they did so on their own. They 
didn't have all that much American or any other allied help at 
the time. Although requiring the approval of the allies, these 
constitutions, as suggested, were home-made products rooted in 
Germany's democratic tradition.
    With this foundation in place, then, at both local and 
regional levels, the allies turned their attention to West 
Germany as a whole, almost 3 years Germany's military defeat. 
Of course, the establishment of a national government would 
probably have taken much longer had it not been for the 
American determination to bring Germany into the Atlantic 
alliance, given the cold war in the background.
    At any rate, in mid-1948, 3 years after Germany's defeat, 
the military Governors commissioned the Prime Ministers of the 
11 reorganized states to convene a national assembly to write a 
new constitution for Germany. They specified that the new 
constitution must establish a Federal form of government, 
protect the rights of the respective states, and provide for 
the protection of individual rights and freedoms, and within 
the framework of these broad principles, Germans were free--
subject to allied approval--to draft a constitution of their 
own choosing.
    The Prime Ministers moved at once. They appointed a 
committee of experts, constitutional experts and international 
experts, all Germans, to prepare a draft constitution for the 
consideration of a national assembly. Twenty-five persons, all 
Germans, accomplished this task in 14 days. No Americans were 
present during the writing of this draft constitution.
    The initiative then shifted to the state legislatures. They 
elected a constitutional convention composed of 65 delegates. 
The Allies did not interfere in these elections. All 65 
delegates were members of political parties represented in the 
state legislatures. These parties, each of which was licensed 
by the occupation authorities, represented the main segments of 
German public opinion opposed to the Nazi state. Forty-four of 
these political party delegates were members of their 
respective state legislatures.
    Over the next 10 months the assembly, known as the 
Parliamentary Council, produced the Basic Law which, in the 
course of time, would become one of the world's great 
constitutions. The military Governors monitored the making of 
the Basic Law, but they did not participate in its proceedings.
    On some issues, such as the status of Berlin and the 
preservation of internal security, allied demands did prevail, 
but these decisions were driven by the experience of the cold 
war, a condition which has no relevance to Iraq.
    Conflicts arose between the convention and the military 
Governors, particularly over the taxing power of the national 
government, but this and other conflicts were resolved by 
compromise, and generally to the satisfaction of the Germans. 
In fact, the military governors made a number of concessions. 
For example, they originally insisted on the popular 
ratification of the constitution, but gave way to the German 
view that the state legislatures should perform this function. 
They, the military governors, also agreed to more 
centralization of Federal authority than they were originally 
prepared to accept.
    I conclude. Germany's Basic Law became one of the great 
success stories of the occupation. The basis of the success 
seems clear. The German people were allowed to create 
institutions of their own choosing, and founded on their own 
political, social, and even religious traditions. I want to 
suggest at the end that the Germans would not have accepted the 
basic law had they believed it was imposed from above or from 
outside, and I believe that the Iraqis must believe that any 
new government or constitution is also one of their own making.
    I would suggest, finally, that in reconstructing or 
recreating a constitutional government, the Iraqis might find 
some guidance in Germany's Constitution, better known as the 
Basic Law. Interestingly, Germany's Basic Law has come to 
replace the United States Constitution as the main model of 
constitutional governance around the world. It's just amazing 
to note how many countries out there, at least 50 or 60, have 
patterned their constitutions on the German Basic Law.
    Let me say why I think this is the case. First, Germany's 
Basic Law speaks in the language of duties as well as rights. 
Second, it promotes solidarity as well as individualism. Third, 
it includes a system of political representation, combing 
proportional representation with a single-member district 
system, which most observers see as fairer and more effective 
than the first-past-the-post system in the United States. 
Finally, and importantly, it recognizes the public role of 
religion while ensuring its free exercise. Each of these 
features seems well suited to the future of constitutional 
government in Iraq.
    [The prepared statement of Dr. Kommers follows:]

                Prepared Statement of Donald P. Kommers

    As I understand my task, it is not to lay out a blueprint for 
rebuilding constitutional government in Iraq, but rather to indicate 
what lessons Americans might draw from the Allied effort to restart 
constitutionalism in Germany after World War II. This committee should 
bear in mind, however, that Occupied Germany of 1945 is not the 
occupied Iraq of 2003. The two situations are entirely different, 
although the German experience may provide guidelines for political 
reconstruction in Iraq.
    Allow me to list the main differences in the two situations: First, 
we invaded Iraq to remove its rulers and thereby to liberate its 
people; we invaded Germany to smash an enemy nation and to overpower 
its people. Second, Germany in 1945 was disgraced, disspirited, and 
dismembered; Iraq in 2003 survives with most of its infra-structure 
intact, its territory unified, and its people aroused. Third, the 
Germans mounted no armed opposition to the Occupation; Hussein 
loyalists, by contrast, are fighting back and killing Americans. 
Fourth, Iraq is pockmarked by tribalism, ethnic division, and religious 
radicalism, blotches on the polity conspicuous for their absence in 
occupied Germany. Finally, Germany's unconditional surrender validated 
the Allied Occupation, even in the eyes of most Germans, a legal 
reality far from clear in the case of Iraq's occupation.
    Nevertheless, the German experience may be relevant to Iraq in 
these respects: First, reestablishing constitutional government can 
only begin when the occupying power is fully in control and only when 
law and order have been fully restored. Second, rebuilding democracy 
must be the first responsibility of the Iraquis. Third, a spirit of 
trust and cooperation must define the relationship between the 
occupiers and the occupied. Finally, the educated classes and a 
critical mass of democratically-inclined citizens must be willing and 
able to cooperate with the Occupation.
    Perhaps the most important lesson of all is that the restoration of 
democratic constitutionalism must be a bottom-up rather than a top-down 
affair, and it must reflect indigenous values and traditions. (The top-
down model worked in Japan because of that country's compliant 
political culture and the desire of its people to imitate American 
``know-how.'') Top-down would not have worked in Germany, and is 
unlikely to work in Iraq.
    Consider how the process worked in Germany. Already in late 1945, 
the Military Governors authorized Germans to rebuild their local and 
state governments. They selected the top German officials charged with 
this task, but thereafter these officials acted on their own save for 
certain functions related to internal security and trade relations 
beyond their respective zones of occupation. By mid-1946, elected 
parliaments and prime ministers were functioning under written 
constitutions, at least in the four states of the American Zone. Local 
representatives of political parties licensed by American military 
authorities drafted these constitutions. Although requiring the 
approval of the Allies, the constitutions were home-made products 
rooted in Germany's democratic tradition, and they were largely 
duplicates of the state constitutions in force during the Weimar 
Republic. Successful parliamentary democracies emerged from this 
bottom-up process of reconstruction.
    With this foundation in place at both local and regional levels, 
the Allies turned their attention to the national level. (The 
reestablishment of the national government would probably have taken 
much longer had it not been for the American determination to 
incorporate West Germany into the Anti-Soviet Atlantic Alliance.) In 
mid-1948--three years after Germany's defeat--the Military Governors 
commissioned the prime ministers of the eleven reorganized states to 
convene a national assembly to write a new constitution for Germany. 
They specified that the new constitution must establish a federal form 
of government, protect the rights of the respective states, and provide 
for the protection of individual rights and freedoms. Within the 
framework of these broad principles, Germans were free, subject to 
Allied approval, to draft a constitution of their own making.
    The prime ministers moved at once. They appointed a committee of 
experts to prepare a draft constitution for the assembly's 
consideration. Twenty-five persons--all Germans--accomplished this task 
in 14 days. No Americans were present during this period. The 
initiative then shifted to the state legislatures. They elected the 
assembly's 65 delegates. There was no Allied interference in these 
elections. All 65 delegates were members of political parties 
represented in the state legislatures. Fifty-four of the delegates--
again all Germans--were members of these legislatures. Over the next 
ten months, the assembly--known as the Parliamentary Council--produced 
the Basic Law, which in time would become one of the world great 
constitutions. The Military Governors monitored the making of the Basic 
Law, but they did not participate in its proceedings.
    Conflicts arose between the convention and the Military Governors, 
particularly over the taxing power of the national government. But this 
and other conflicts were resolved by compromise and generally to the 
satisfaction of the Germans. In fact, the Military Governors made a 
number of concessions. For example, they originally insisted on the 
popular ratification of the Constitution, but gave way to the German 
view that the state legislatures should perform this function. They--
the Military Governors--also agreed to more centralization of federal 
authority than they were originally prepared to accept.
    Germany's Basic Law became one of the great success stories of the 
Allied Occupation. The basis of the success seems clear: The German 
people were allowed to create institutions of their own choosing and 
founded on their own political, social, and even religious traditions. 
Yet the Basic Law marked out a new beginning by its codification and 
promotion of a constitutional morality that rejected the political 
pathologies of the past. The Occupation experience shows that in the 
right set of circumstances, which may or may not exist in Iraq, 
military authorities can transform a once-outlaw nation into a 
promising constitutional democracy.

    Senator Cornyn. Thank you very much, Dr. Kommers.
    Professor Howard, I welcome you to this panel and I 
mentioned when, I believe, you were out of the room that we 
first met, and I have to say that you are at least in part a 
reason why I am interested in this subject, during my time at 
the University of Virginia and my participation in the master's 
of law program at the University of Virginia Law School and the 
thesis that I ended up writing on the creation of the Texas 
constitution of 1845, but enough of that.
    We'd be pleased to hear your opening statement.

 STATEMENT OF A.E. DICK HOWARD, WHITE BURKETT MILLER PROFESSOR 
  OF LAW AND PUBLIC AFFAIRS, UNIVERSITY OF VIRGINIA LAW SCHOOL

    Mr. Howard. Mr. Chairman, we will agree that the Texas 
constitution of 1845 was one of the great constitutional 
documents of all time.
    May the record show that.
    Mr. Chairman, thank you for inviting me. I suspect that my 
chief credentials for being here are that I teach 
constitutional law at the University of Virginia. Our founder 
was Thomas Jefferson, our first rector was James Madison. As 
constitutional credentials go, those aren't bad, I suppose.
    I cut my teeth, in constitutional terms, in working on the 
present Virginia constitution. In more recent years, I've had 
the privilege of sitting at the elbows of drafters of 
constitutions in a number of other countries, especially post-
Communist countries in Central and Eastern Europe. This has 
sparked in me an interest in comparative constitutionalism and, 
in particular, the question of how constitutional ideas travel, 
how they get from one place to another, what takes, what 
doesn't take, whether there are universals which drafters ought 
to be concerned with, or ultimately whether constitutions are a 
product of culture, tradition, history, and circumstance.
    A subset of that question for an American audience and, I 
think, for all of us is whether there is some instructive value 
in the American experience, though it may now be nudged aside, 
my colleague insists, by the German experience.
    I have submitted a written paper, so I will only summarize 
the points I made there. I undertake in that paper a case study 
of post-Communist, post-1989 Central and Eastern Europe. There 
one finds an interesting eclecticism where the drafters in 
those countries drew where they could on their own experience, 
which was often very mixed and checkered and broken, then drew 
to some extent on Western Europe's experience, to no one's 
surprise, since they felt themselves rejoining the family of 
Europe.
    They didn't, at least in obvious terms, draw on the 
American experience. They were much closer to Western Europe. 
They drew as well on international documents, very much part of 
the world since World War II. These offer another source for 
drafters--U.N. covenants, OSCE documents like the Helsinki and 
Copenhagen documents, and others.
    I won't take the time here to rehearse the history of how 
American ideas have, in fact, influenced other places. Again, I 
have it in my paper. There have been a number of historical 
chapters--France in the revolutionary period, liberal Europe in 
1848, the Philippines as our colony after 1900, the Wilsonian 
period after World War I (making the world safe for democracy, 
as Wilson put it), Japan and Germany after World War II (two 
quite important and very instructive stories for our purposes), 
and then, finally, the successive waves of democracy, the 
Mediterranean in the 1970's (Spain's 1978 constitution is an 
important point of reference), the South American countries in 
the 1980's, Central and Eastern Europe after 1989, and, of 
course, South Africa at about the same time.
    It's interesting to hear people debate the relevance, if 
any, for other countries of the American constitutional 
experience. Some of my scholarly colleagues argue that it 
really has no place in the drafting of other constitutions. For 
one thing, an 18th century document doesn't look like much of a 
model for people drafting constitutions in the 21st century. 
Moreover, some scholars would argue that the American 
experience has been so exceptional, so unlike the rest of the 
world, that the conditions that gave rise to constitutionalism 
here simply cannot be replicated elsewhere.
    I understand those arguments. But I think they miss the 
point that the value of the American experience lies not in 
taking the actual document as a template and trying to copy 
something out of it, but rather in plumbing it to its depths 
for the underlying core values that it represents--values such 
as federalism. Around the world, federalism has been put to 
service in a number of ways. It doesn't have to be American-
style formal constitutional federalism, but it can be other 
kinds of devolutionary arrangements. In addition to federalism, 
separation of powers, checks and balances, judicial review--all 
of these are principles in which the American experience has 
been very important, though they don't exhaust their various 
possibilities.
    I think, finally, I would suggest that one would like to 
test the prospects for constitutional democracy, in Iraq or in 
any other place, by several observations. I would like to 
define the search, not simply being for our Constitution, but 
being a search for constitutional liberal democracy. By this I 
mean democracy accountable to the people, liberalism, i.e., the 
protection of the individual, and constitutionalism, enforcing 
the Constitution.
    In my paper, I've suggested several factors that might be 
held up as ways of thinking about whether a constitutional 
enterprise may be successful or not. These include protection 
from foreign aggression, economic prosperity, a constitutional 
culture, an open society, the existence of a civil society, and 
a State based finally on civic and not ethnic or national 
principles. I think most of those concepts are fairly well-
known.
    Ultimately I agree with what I've heard at both panels this 
morning, that the Iraqi people must themselves do the job. They 
must understand that they are the proprietors of the new 
constitution. But I think they are well-informed if they take 
stock of what has happened in other countries like Japan and 
Germany, what's happened here in America, what the teachings of 
the modern constitutional period are.
    Mr. Chairman, thank you.
    [The prepared statement of Mr. Howard follows:]

                Prepared Statement of A. E. Dick Howard

    In recent years I have had the privilege of sitting at the elbows 
of constitution-makers in countries seeking to lay the foundations of 
constitutional liberal democracies in those countries. Some years 
earlier, I cut my teeth in the art of constitution-making when I was 
involved in the drafting of Virginia's present state constitution. I 
have also consulted with other states seeking to revise their 
constitutions. But no experience has been so instructive as watching 
constitutions take shape in the context of other lands and cultures.
    This experience in comparative constitutionalism has drawn me to 
ask questions about the extent to which one country can assist in, or 
make judgments about, another country's constitutional journey. How 
well do constitutional ideas travel, especially across the boundaries 
of different cultures or legal systems? Are there universal values by 
which the relative success of a constitutional system may be measured? 
Or, as some people argue, must constitutions ultimately be grounded in 
a country's culture, history, traditions, and circumstances? For 
Americans, there is the specific question: what relevance does the 
American constitutional experience have for other countries?

              THE EXPERIENCE OF CENTRAL AND EASTERN EUROPE

    To sharpen these questions, consider the experience of the 
countries of Central and Eastern Europe. After the collapse of 
communism, each of those countries set out to write new constitutions 
and to design institutions thought to promote constitutional liberal 
democracy. Drafters in those countries ( Poland, Hungary, etc.) had 
several sources on which they could draw in devising new constitutions.

   1. In some cases they could look back to their own indigenous 
            sources and experience. For example, Poles recall the 
            traditions of constitutionalism associated with the 
            memorable Constitution of May 3, 1791. Hungarians have a 
            strong tradition of the rule of law, having its roots as 
            early as the Golden Bull of 1222. But such traditions are 
            often fragmentary and remote, Few countries in Central and 
            Eastern had any extended experience with either 
            constitutionalism, democracy, or the rule of law before 
            1989 (Czechoslovakia's vibrant democracy between the world 
            wars was a notable exception).

   2. Countries in Central and Eastern Europe have been able to look--
            and have looked--to the experience of Western Europe. 
            Western Europe is, of course, the seat of much of the core 
            of modern constitutional democracy (such as the teachings 
            of the Enlightenment), but also the sources of many of our 
            basic constitutional principles (such as the separation of 
            powers). Moreover, constitutionalism, democracy, and the 
            rule of law have taken hold in manifest ways in Western 
            Europe since World War II. Germany, rising from the ashes 
            of World War II, has become a admirable example of 
            constitutional democracy. Spain, moving beyond the legacy 
            of Franco, has become in every respect a modern European 
            state. With these and other examples to study, drafters in 
            Central and Eastern Europe have fashioned constitutional 
            systems which in many obvious ways are modeled upon Western 
            Europe. For example, Germany's Constitutional Court has 
            proved the inspiration for the creation of constitutional 
            courts throughout Central and Eastern Europe.

   3. International norms and documents are an important source for 
            constitution-makers in post-communist Europe, just as they 
            are in other parts of the world. Especially is this true in 
            giving shape and protection to human rights. Thus drafters 
            look to such international documents as United Nations 
            conventions and to regional arrangements such as the 
            European Convention on Human Rights and OSCE's Helsinki and 
            Copenhagen documents. Also, it is common for post-communist 
            constitutions to state that international law and 
            agreements shall be domestic law within a country.

   4. One would suppose that constitution-makers in Central and Eastern 
            Europe would study the experience of their neighbors in the 
            region. Especially might this seem helpful when these 
            countries have shared many of the problems of the post-
            communist world, such as the destruction of civil society 
            during the communist era, the stultifying effects of 
            command economies, and the cynicism about public life which 
            was spawned by those years. It is my impression, however, 
            that drafters in the region have not cared much to study 
            their nearest neighbors' experience. This may partly be a 
            consequence of historic enmities in the region. But it may 
            also underscore the powerful pull of western models, 
            especially in light of the pervasive wish of countries in 
            Central and Eastern Europe to ``rejoin'' the family of 
            Europe, in particular, to become members of the European 
            Union.

   5. Has the post-communist world looked to the American experience 
            and to American ideas and models? A superficial look at new 
            constitutions in the region might suggest that American 
            influence has been slight. Throughout Central and Eastern 
            Europe, one sees, for example, parliamentary systems rather 
            than an American-style congressional system, presidential 
            systems which look more to Western Europe (such as France) 
            rather than to the United States, and constitutional courts 
            resembling that of Germany rather than an American-style 
            Supreme Court. The question of American influence--whether 
            in post-communist Europe or in other countries (such as 
            Iraq)--requires, however, a deeper enquiry than this 
            superficial survey might suggest.

 THE INFLUENCE OF AMERICAN CONSTITUTIONALISM: AN HISTORICAL PERSPECTIVE

    The American revolutionary period was a time of remarkable 
innovation and accomplishment. Aware of their special place in history, 
the founders shaped such ideas as federalism, separation of powers, 
judicial review, and other concepts which have proved to be among the 
core principles of modern constitutionalism. not only in the United 
States, but in many other countries as well. American society differed 
in important ways from that of Europe; there was, for example, no 
monarchy and no legally entrenched social order. Even so, Europeans 
followed with fascination the evolution of American constitutionalism 
from the revolution, through the making of the Constitution, and 
beyond.
    For two centuries and more, there has been intense traffic in 
constitutional ideas between America and other lands. Highlights of 
those exchanges include the following.

The Founding Era in France and America
    The French Revolution, in 1789, brought close French attention to 
American ideas. Benjamin Franklin, immensely popular in Paris, 
undertook to spread news of what was happening in America, as did his 
successor, Thomas Jefferson. The Virginia Declaration of Rights (1776) 
influenced the drafting of France's Declaration of Rights of Man and 
the Citizen (1789). When the French National Assembly debated France's 
first constitution, moderate and radical factions invoked examples 
drawn from the experience with American state constitutions, especially 
Massachusetts and Pennsylvania. Ultimately, French constitutional 
development took a markedly different course from that of America, but 
it is instructive that in many ways it was America's founding documents 
that helped frame the debates in France.

Liberalism in the Nineteenth Century
    In the early decades of the nineteenth century, liberal reformers 
in Europe and in South America invoked the United States as proof that 
liberal democracy could survive and flourish. When the revolutions of 
1848 broke out in Europe, conventions meeting in France and Germany 
frequently dissected American institutions in deciding what a liberal 
constitution might look like in Europe. By this time, Toqueville's 
Democracy in America had heightened interest in the American 
experience, especially federalism and judicial review. Germany's 
Paulskirche Constitution, drafted in Frankfort, was not in fact 
implemented, but its principles, building in part on American ideas 
(e.g., federalism and constitutional review), have reappeared in 
Germany's Basic Law of 1949. In South America, the age of Bolivar 
brought constitutions which were often modeled heavily on the United 
States Constitution. South American soil was, however, not yet fertile 
for such transplants, and these experiments were largely failures.

Political Evangelism in the Early Twentieth Century
    When the United States acquired the Philippines as a result of the 
Spanish-American War, President McKinley described American policy as 
``benevolent assimilation.'' These plans included gradual development 
of self-government, the creation of a system of public education, and 
the transfer of American legal ideas. The Constitution adopted in 1935 
owed much to American influence but drew upon other traditions as well. 
In 1946 the Philippines became independent.
    The most famous effort to export American ideas in the early 
twentieth century was, of course, President Woodrow Wilson's aim, with 
the allied victory in World War I, to ``make the world safe for 
democracy.'' Wilson did not think that other countries had to adopt an 
American-style constitution. But he did emphasize self-determination, 
free elections, the rule of law, individual rights, and an independent 
judiciary. The most successful democracy to rise from the ashes of 
World War I was Czechoslovakia, whose leading founder, Thomas Masaryk, 
had spent part of the war in the United States, working hard to 
influence American policy.

Japan and Germany After World War II
    After the Japanese surrender in 1945, General Douglas MacArthur 
moved promptly to secure the drafting of a new constitution. Concerned 
that the Japanese elite, left to their own devices, would make little 
substantial change from the status quo, MacArthur instructed his 
military government to draft a constitution, which they did in a matter 
of days. Debate still continues, especially among Japanese politicians 
and scholars, over the extent to which the Constitution of Japan was 
imposed or has become in fact Japanese.
    By the time drafting got underway on what became Germany's Basic 
Law of 1949, the Cold War was beginning to dominate American foreign 
policy. The occupying allied powers had a say, of course, in shaping 
German post-war policy. But, with the Americans and their allies seeing 
the Soviet Union as the greater threat, the Germans had a freer hand in 
the Basic Law's drafting. There are important ways in which the Basic 
Law has principles familiar to Americans, such as federalism and 
judicial review,. But the 1949 document owes much to Germany's own 
constitutional tradition, including the Paulskirche Constitution of 
1949.

Waves of Democratization in the Latter Decades of the Twentieth Century
    The spread of constitutionalism, democracy, and the rule of law 
came in waves in the closing decades of the twentieth century. The 
1970s saw autocratic governments yield to democracy in Mediterranean 
countries--Greece, Portugal, and Spain. Spain's 1978 Constitution is 
especially important as a model for other post-authoritarian countries. 
Attention shifted to South America in the 1980s, notably to Argentina 
and Chile. The great year was 1989--the year the Berlin Wall came down 
and communism collapsed all over Central and Eastern Europe. The shock 
waves also hit South Africa, where the apartheid regime fell, and a new 
constitution came into effect in 1997.
    American assistance to constitution-making and democratization in 
such places as post-communist countries has been undertaken both by 
public and private bodies. Typically the aid has taken the form of 
technical assistance, such as helping parliaments to update their 
processes, nurturing an independent judiciary, and assisting in the 
drafting of new constitutions and laws. An especially effective program 
is the American Bar Association's Central and Eastern European Law 
Initiative (now the Central European and Eurasian Law Initiative), 
which has sent hundreds of experts to work in scores of countries. 
Often the efforts of American advisors has been paralleled by advice 
and assistance from European governments and bodies, such as the 
Council of Europe's Venice Commission.

   THE PLACE AND RELEVANCE OF THE AMERICAN CONSTITUTIONAL EXPERIENCE

    When other countries write constitutions and set out to shape a 
constitutional regime, of what relevance is the American constitutional 
experience? What follows are arguments which lead some to conclude that 
the American experience is of limited value in other countries and 
cultures.

   1. Constitutionalism must be understood as an expression of culture. 
            Few would argue with this proposal if it is advanced as a 
            caveat, namely, that one should always take culture into 
            account in thinking about constitutions and 
            constitutionalism. But some observers take the argument 
            further, contending that there are no ``universal'' 
            elements of constitutionalism. For example, by this view, 
            community or group rights could be valued above individual 
            rights.

   2. American constitutionalism was the result of Enlightenment 
            assumptions, steeped in British constitutionalism, and 
            shaped in the historical settings of America. Some argue, 
            therefore, that the teachings of American constitutionalism 
            cannot be exported to other cultures. Such arguments often 
            cite the failure of Latin American constitutions based on 
            the US model and more recent problems in places such as the 
            Philippines.

   3. Even those who think the American experience is relevant and 
            useful find limits in the United States Constitution as a 
            model for foreign drafters. The document was written in the 
            eighteenth century, reflects the insights of that era, and 
            has required formal amendment (notably the post-Civil War 
            amendments) and extensive judicial interpretation and 
            gloss. Much of the American jurisprudence of rights results 
            from judicial gloss rather than from the explicit 
            constitutional text (for example, the process of 
            ``incorporation'' doctrine by which guarantees of the Bill 
            of Rights are applied to the states). Also, the United 
            States Constitution is, in a sense, an incomplete document, 
            in the sense that its framers assumed the existence and 
            function of the states and therefore of state constitutions 
            (documents which in many ways are rather more like 
            constitutions in other countries).

    All of these observations have force and ought to be taken into 
account, especially before assuming that what has worked well in 
America must surely work for other peoples as well. But the problems of 
comparative constitutionalism ought not to be turned into categorical 
barriers. The usefulness of the American experience does not lie in the 
formal text of the United States Constitution. It is to be found in the 
general principles which are reflected in American constitutionalism 
and, further, in the practical experience of making constitutional 
democracy work.
    Many of the most basic ideas in American constitutionalism reflect 
norms that furnish at least presumptive value elsewhere. Examples 
include the following:

   1. Federalism. Formal federalism, as charted by the Constitution, 
            may or may not be appropriate in other countries. 
            Federalism, however, is a system which has many variants 
            and is found in one form or another around the world. 
            Federalism and its cousins (such as devolution) is 
            associated with values of pluralism, diversity, and local 
            choices about local problems. Such arrangements may be 
            especially important to defuse conflicts of nationality or 
            ethnicity.

   2. Separation of powers. This principle, celebrated by Montesquieu 
            and refined by Madison, is a way of achieving limited 
            government--one of the ultimate guarantees of individual 
            rights. In its historical uses, it has been used to counter 
            the tendency of such doctrines as popular sovereignty and 
            legislative supremacy to become arbitrary or tyrannical.

   3. Judicial review. Various devices have been used in an effort to 
            keep a constitution's promises. These include popular will, 
            separation of powers, and legislation. In the modern world, 
            however, constitutions increasingly look to judicial review 
            as a key means to enforce constitutional norms. John 
            Marshall's insights in Marbury v. Madison have become a 
            familiar part of constitutionalism around the world. One 
            may well suggest that no American contribution to 
            constitutionalism has been more pervasive or important than 
            this one.

    These ideas and principles are complemented by the practical 
experience of making American democracy work. Many countries have 
entered the age of constitutional democracy with little or no 
experience with such concepts as constitutionalism, democracy, and the 
rule of law. For example, for a half century the countries within the 
sphere of Soviet domination lived in a domain cut off from any such 
concepts. Thus American or other advisors can bring the fruits of 
hands-on experience in organizing political parties, conducting free 
and fair elections, nurturing a free and responsible press, creating an 
independent judiciary, and instilling the values of citizenship through 
civic education.

 FACTORS BEARING ON THE PROSPECTS FOR CONSTITUTIONAL LIBERAL DEMOCRACY

    It is not enough that a society be democratic. It must also be 
liberal and constitutional. Democracy seeks to assure that government 
is based upon the consent of the governed and is accountable to the 
people. But democracies should also be liberal, that is, committed to 
individual rights and freedoms, to the Lockean principle that the state 
depends on the individual, not the other way around. And democracies 
must also be constitutional, that is, there must be means to assure the 
enforcement of constitutional norms, even when that means negating a 
majoritarian judgment.
    What are some of the factors bearing upon the prospects for the 
success of constitutional liberal democracy? Each person might draw up 
his or her own list, and one might debate the relative place and weight 
of each factor. But a list of factors would likely include at least the 
following. Note that the list goes well beyond those factors which can 
be incorporated into the text of a constitution.

   1. A country should have sufficient military strength, as well as 
            social and economic stability, to counter foreign 
            aggression and to guard against internal subversion or 
            unrest. Strength need not come, of course, solely from the 
            country's own resources. A country may properly look to its 
            allies, as, during the Cold War, so many democracies (not 
            just weak ones) counted on American support in the event of 
            Soviet aggression.

   2. A vibrant constitutional culture often goes hand in hand with a 
            healthy economy. I do not contend that, because countries 
            are rich, they will necessarily be constitutional 
            democracies. There are countries rich in oil, for example, 
            which one would be slow to characterize as constitutional, 
            liberal, or democratic. But it does seem fair to say that 
            poor economic conditions often work to undermine any hope 
            for constitutional democracy.

   3. There should be a political culture--I would call it a 
            constitutional culture--which encourages the values of 
            constitutionalism, liberalism, democracy, and the rule of 
            law. This implies a high level of literacy. But it also 
            implies circumstances in which citizens have practiced the 
            norms of cooperation, toleration, and forbearance 
            associated with the fluctuating fortunes of causes, 
            candidates, and parties. It means that those who lose an 
            election turn the reigns of power over to the winners. It 
            means that those who find that a victory in the legislative 
            process is overturned on constitutional grounds by a court 
            accept the principle of constitutional limits on 
            government.

   4. An open society, including free and responsible press and media, 
            is the handmaiden of constitutionalism and democracy. There 
            should be the means for open and effective communication 
            both among the people and between them and their 
            government.

   5. Civil society should flourish. Private organizations--political 
            parties, trade unions, interest groups, clubs, etc.--create 
            an important buffer between the individual and the state. 
            Such organizations offer a place of refuge for those who 
            think that the politics of the moment are not in their 
            favor. They offer training grounds for the qualities which 
            make for effective citizenship and make possible the kind 
            of collective voice and action which precludes the state's 
            monopoly of power.

   6. States should be based on the civic, rather than ethnic or 
            national, principle. That is, all citizens should have 
            equal standing in the society. There should not be 
            ``insiders'' and ``outsiders.'' If the state is not largely 
            homogeneous in terms of religion, language, ethnicity, or 
            culture, then there needs to be a widely felt commitment to 
            toleration. To make constitutional liberal democracy work, 
            the people must have a level of mutual trust, and ability 
            to cooperate, rather than fragmenting into camps of hate 
            and hostility.

    Ultimately, history, culture, and circumstance will tell us much 
about the prospects for constitutionalism, democracy, and the rule of 
law in any country. Those who hope to see these values prosper in Iraq 
must understand Iraq itself--its people, its history, its culture, Some 
factors characterize the region, for example, the argument over the 
extent to which Islam is, or is not, ultimately compatible with 
constitutional liberal democracy. Other factors flow from Iraq's own 
history, for example, the question whether the parliamentary experience 
of he Hashemite years before 1958 has any useful legacy, or whether the 
middle class has been sturdy enough to survive the years of Saddani's 
repressions. Experts on Iraq will help inform these judgments. But 
those who would shape events in Iraq should also consult the lessons to 
be learned from transitions from totalitarian or authoritarian regimes 
elsewhere. The road to constitutionalism, democracy, and the rule of 
law takes one through many lands.

    Senator Cornyn. Thank you, Professor Howard.
    Mr. Kritz.

 STATEMENT OF NEIL KRITZ, DIRECTOR, RULE OF LAW PROGRAM, U.S. 
        INSTITUTE OF PEACE; ACCOMPANIED BY LOUIS AUCOIN

    Mr. Kritz. Thank you, Mr. Chairman. Thank you for the 
invitation. I am also obliged to note that the comments that I 
will give are my own, and don't represent the views of the U.S. 
Government or the U.S. Institute of Peace.
    There are three vital and interrelated issues that are 
essential to establishment of the rule of law in Iraq, one 
being the constitution-making process that we're focused on 
primarily today, a second being the question of transitional 
justice, of how Iraqi society is going to deal with questions 
of accountability and the legacy of the crimes of the past 
regime, and the third being the broader challenge of legal 
reform within Iraq.
    Each of these have the potential of being transformational 
for Iraqi society in very fundamental ways. They each share in 
common as well the fact that they need to be started 
immediately, but with the recognition that they are not short-
term processes, and adequate time needs to be allocated to 
allow them to move forward properly.
    Rushing or short-circuiting any of these exercises will be 
done only to the detriment of the ultimate result. That relates 
to the length of time that we need to remain committed to the 
process, the overall costs, and the period of time that we 
maintain boots on the ground in post-conflict societies like 
Iraq.
    I would point as an example to our recent experience in 
Bosnia, where 7 years after the Dayton Accords former British 
MP Paddy Ashdown entered as High Representative in charge of 
moving the process forward. His first comment was that the 
international community finally had to get serious about the 
rule of law in Bosnia, or else the Dayton process could 
collapse like a house of cards. We still have troops on the 
ground more than 8 years later, in part because we have not 
paid enough attention to these fundamental processes we're 
discussing here today, and so I commend your attention to this 
issue.
    My comments with respect to the constitution-making process 
emerge primarily from a 2-year study that the U.S. Institute of 
Peace has undertaken on post-conflict constitution-making 
processes. Through case studies of some 17 countries over the 
last 25 years, the study has attempted to examine the ways that 
the constitution-making process can be a means to advance 
national reconciliation and the building of peace, or 
alternatively may become an obstacle to not moving forward 
properly.
    I'm accompanied here today by Professor Louis Aucoin of the 
Institute staff, who has been coordinating the project at the 
Institute.
    Major powerholders and elite factions are inevitably going 
to play a major role in many post-conflict constitution-making 
process. Part of the challenge is to constrain their ability to 
monopolize that process. The final document should be more than 
simply a deal cut to divide the spoils between powerful 
factions on the ground today.
    There are two tools that I would point to in particular in 
that regard. One is the notion of allowing adequate time for 
the process. A rapid rough-shod process is going to be nothing 
more than that simple deal between those who currently hold all 
the power. A more extended and open process that allows a 
variety of other factions to evolve and participate can 
facilitate lively challenge and debate within this exercise and 
be one important way of constraining the power of the few.
    Another will be the adoption at the outset of the 
constitutional process of a set of basic rules that will govern 
both the process as well as at least the broad outlines of the 
substance of the ultimate document. This would be the place to 
initially enshrine basic recognition of principles of 
tolerance, pluralism, gender equality, religious and ethnic 
equality, possibly certain limitations on the future role of 
the military, and other basics, without predetermining the 
constitutional document.
    If done properly, this process can be a potent tool for the 
empowerment and enfranchisement of a broader base within 
society, allowing a diverse variety of groups within civil 
society to emerge and to develop their own capacity to play a 
role in the debate on the future of Iraqi society. It would 
result in a diffusion of power from the few to the many. It can 
provide, as well, an important forum for various groups, 
particularly aggrieved groups within society, to articulate 
their visions and their concerns about the future distribution 
of power.
    It would provide opportunities through a basic framework 
that creates a political space. One option in this regard is 
the use of an interim constitution. I'm reminded always of 
sitting in the South African constituent assembly, where an 
interim constitutional arrangement provided the political space 
to allow everyone from the Freedom Front on the far right to 
the Pan-African Congress on the far left to sit and debate the 
emergency powers under the new constitution in ways that they 
all told me afterwards would not have been possible without 
this kind of an interim process, which we're seeing emerge in 
an increasing number of cases.
    A constitutional commission would be established that would 
have three basic functions. First, public education. This 
provides an important opportunity to educate the public on 
these broad principles noted earlier that should govern society 
in the future.
    Second, and in a subsequent phase, a process of 
consultation of the public on specific questions that need to 
be addressed in the context of the constitution. This can 
provide various groups in society with a sense of ownership and 
can contribute to subsequent sustainability of the final 
product, as well as the potential for pressure on the part of 
those owners if and when those who subsequently hold power fail 
to implement and uphold the constitution.
    From Rwanda to Albania, we've seen this process taking hold 
in important ways--in ways that, I would note, in some cases 
have transformed even the members of the constitutional 
commissions as they engage the public. They've changed their 
own opinions and transformed from representatives of their own 
factions to a more cohesive unit, looking at what makes sense 
for the future of the country.
    Last, I would point to the role of the international 
community in this process. I would simply reiterate what has 
been said before. There is an appropriate role for the 
international community, including the United States, to play, 
but that's to provide neutral resources with respect to 
experiences in other countries with respect to basic 
constitutional principles without favoring any particular 
faction and without, as we've seen in some instances, having 
international experts serve as hired guns for one faction or 
another, enhancing only their capacity.
    This can be formalized. In the case of Eritrea, the 
constitutional commission process included an international 
advisory committee of experts that helped to inform the 
process. It will be important that this include not only the 
U.S., but also those from other countries, because there is a 
rich body of experience that has emerged from many of them in 
recent years, and it will be important for Iraqis to be able to 
take advantage of that as well.
    With that, thank you.
    [The prepared statement of Mr. Kritz follows:]

                  Prepared Statement of Neil J. Kritz

Introduction
    In countries such as Iraq, a successful outcome requires a focus 
not only on the final document which emerges, but on the path to 
producing and adopting it. Indeed, the constitution-making process can 
be a transformational one for societies, if properly organized and 
given adequate attention and resources. These are among the lessons 
that emerge from an ongoing study that has been conducted over the past 
two years by the United States Institute of Peace on ``Constitution-
Making, Peace Building, and National Reconciliation,'' Through an 
examination of seventeen case studies of constitution-making processes 
around the world which have occurred over the course of the last twenty 
five years, focusing primarily on post-conflict transitions, the study 
is attempting to assess the constitution-making process for its 
potential for conflict resolution and prevention and for the 
maintenance of stable peace. To date, this review by a wide range of 
experts strongly suggest a basic message: perhaps more so than at any 
previous time in history, the process by which constitutions are made 
matters.

Interim Arrangements
    The constitutional process is often facilitated by the 
establishment of interim arrangements. While this has taken a variety 
of forms, the essential characteristics are the following: (1) the 
clarification of basic legal rules and governmental structures during 
the interim period, allowing society to move forward with a minimum of 
disorder; (2) an interim framework that embodies sufficient changes 
from the prior system to clearly demarcate a break from the past and to 
immediately remove those elements that are clearly objectionable or 
repressive. The result can be an interim constitutional framework that 
opens adequate political space to enable all parties to participate and 
debate even hotly contentious constitutional issues in an atmosphere 
that guarantees their rights and interests pending the development of a 
final constitution.
    Most of the cases included in the USIP study have involved some 
type of interim arrangement which has provided for some degree of 
stability during the period of the constitution-making process. In some 
cases, (Rwanda, and Cambodia, e.g.), basic stability was provided 
through a peace agreement. In other cases (Ethiopia and Eritrea), 
stability was created through a National Charter which provided for a 
basic structure of government and the guarantee of human rights which 
would govern the interim period while the Constitution was being 
created. In Eritrea, the Charter also had the advantage of providing 
considerable detail of how the process was to be conducted ruling on 
such questions as the creation of a Constitutional Commission and the 
election of a Constituent Assembly. In Poland a series of 
constitutional amendments served this purpose, and the most important 
among them--that of October 17, 1992 was referred to as the small 
constitution. The process in Hungary was similar in that interim 
arrangements were provided through constitutional amendment. An 
alternative model would provide for adoption of the constitution, with 
a constitutionally mandated review process--complete with the public 
participation component discussed below--following an interim period of 
three to five years.
    South Africa enacted a formal Interim Constitution which served 
these purposes and set out a series of constitutional principles which 
were to guide the process. The structure of the Constitution-making 
process was determined by the South Africans themselves with minimal 
input from the international community. Prior to 1993, private 
negotiations amongst the various political factions in South Africa 
were important. But by 1993, the parties had negotiated an Interim 
Constitution which set out the basic ground rules for the process of 
adopting a permanent constitution and provided for the basic 
functioning of a Government of National Unity throughout the 
constitution-making period. Under the Interim Constitution, the final 
constitution was to be adopted by a Constituent Assembly on the basis 
of a two-thirds vote and no constitutional commission was created. 
Election to the Assembly was supervised by an Independent Electoral 
Commission and governed by a proportional representation list system 
laid out in the Interim Constitution. The Constituent Assembly, in 
addition to drafting a permanent constitution for the country, would 
also function as a parliament in the interim period. In addition, the 
Interim Constitution in South Africa set out 32 substantive principles 
which had to be followed in the drafting of the permanent constitution. 
Once the Constituent Assembly began to undertake the process of 
constitution-making, it determined that a comprehensive program of 
public participation was necessary. Public participation included 
publication of debates, consultations at the village level, radio 
broadcasts of public education material as well as key issues and large 
numbers of public submissions.
    Most of these arrangements provided for some basic measures for the 
exercise of executive and legislative functions. In a few of the cases, 
there was provision for the exercise of interim judicial power to 
oversee the process. In South Africa, Poland, and Hungary, for example, 
the constitutional courts in those countries played this kind of an 
oversight role in connection with the constitution-making process. This 
role was particularly important in the South African context where the 
Interim Constitution also endowed the Constitutional Court with the 
jurisdiction to determine whether the final draft of the permanent 
constitution complied with the principles set out in the Interim 
Agreement. One draft was actually rejected by the Constitutional Court 
as inconsistent with the constitutional principles which had been 
established.
    The interim arrangements are usually agreements formed amongst a 
broadly representative group of elites and do not involve public 
participation. In the South African case, the negotiations and 
settlement of the issues surrounding this initial stage of the process 
at that stage were closed and secretive, apparently due to concern over 
the high risk of violence at that stage. The constitution-making 
process has generally tended to be more closed and elite driven in 
those cases where the risk of violence is high; Cambodia serves as 
another example of this phenomenon.

Reducing the Monopoly of Power and Influence
    While powerful elite factions will play a major role in any post-
conflict constitution-making process, it is essential to reduce their 
monopolization of that process, and to avoid a final constitution that 
simply reflects division of the spoils between such factions. If the 
constitution and the process of its adoption are to play a role in 
transforming society, then constraints on such monopoly of power need 
to be built into the process.
    One tool in this regard is allowing adequate time for the 
constitutional process. A rapidly adopted constitution will generally 
only reflect a deal between the powerful. A more open and extended 
process provides an opportunity for other groups and civil society in 
general to challenge and debate and influence the process: A second 
element is the adoption at the outset of a set of basic rules that will 
govern both the process of constitution-making and the substance of the 
ultimate document. These may include, for example, tolerance, 
pluralism, human rights, the rule of law, limited government, the role 
of the military constitutionally limited to defensive functions, and 
gender, religious and ethnic equality. \1\ Both of these steps serve to 
constrain the ability of current power centers to drive the 
constitutional process in the wrong direction, and would be advisable 
in the case of Iraq.
---------------------------------------------------------------------------
    \1\ Related to the notion of cardinal rules, there is a trend in 
modem constitutions to include certain substantive features which are 
considered so sacrosanct as to be impossible to amend under the terms 
of the Constitution. These features are sometimes referred to as 
``immutable principles.'' There does not seem to be as yet any 
consistency with respect to which principles are thus considered to be 
immutable. In Germany, human rights and the federal nature of the 
system are immutable, and in France, the republican form of government 
is immutable. In those countries which have constitutional courts with 
jurisdiction to resolve disputes over issues of constitutionality, the 
existence of these immutable principles raises the possibility that the 
court may be called upon to rule on the constitutionality of a proposed 
constitutional amendment.
---------------------------------------------------------------------------
Public Participation and Ownership
    There is a clearly emerging trend toward providing for more direct 
participation by the population in the constitution-making process, in 
the form of civic education and popular consultation. Some scholars are 
referring to this as ``new constitutionalism.'' This trend seems to 
have begun and emerged particularly in Africa although at this point in 
time it has also been employed in Latin America (Brazil and Nicaragua) 
and Asia (East Timor and Fiji.) Rather than being crafted completely 
behind closed doors by a small number of elites and handed down from on 
high, this model enables the broader public to be engaged in the 
process. It can serve to empower a broader range of groups, including 
women and emerging civil society groups, as examples, providing an 
opportunity for them to impact on the constitutional process as well as 
on the political process. The constitutional process can provide a 
forum for national dialogue and education regarding issues and 
decisions that are vital to the future direction of the country.
    This model has typically involved the establishment of a 
Constitutional Commission as it did in Eritrea, Ethiopia, Ugandan, 
Kenya, Rwanda, Nicaragua, Brazil, and Fiji. Typically the 
Constitutional Commission has three functions although the delineation 
of those functions has not always been clear, and the lack of 
delineation has contributed to the weakness of the process in some 
cases, see below.
    In general, Commissions have been called upon to conduct civic 
education in connection with the constitution-making process, to 
consult the population on the questions which it determines to be key 
to the process, and then to compile a draft of the Constitution which 
takes that consultation into account and which also synthesizes other 
drafts and submissions from political parties, individuals, and NGO's. 
This tends to diffuse the focus on individual drafts which can 
otherwise detract from the democracy of the process when ready-made 
drafts are submitted in the early stages of the process by powerful 
parties or individuals.
    These Constitutional Commissions have usually been appointed by the 
executive or elected or appointed by a Constituent Assembly. In this 
new emerging model for constitution-making, it is important that such 
bodies, while relatively small in size, be fairly representative of the 
various political parties and religious, racial and ethnic groups 
within the society. Where the constitution-making process has been 
sufficiently deliberative and has entailed broad public consultation, 
an intriguing result has repeatedly been the transformation of the 
members of a Constitutional Commission from serving primarily as 
advocates for their respective interest group into a more cohesive 
group with a greater focus on the needs of the whole society.
    Constitution-making is a deliberative process, and especially when 
integrating the public participation model, needs to be given adequate 
time. It is a mistake to attempt to short-circuit this process. For 
example, in some cases, Commissions have tried to conduct civic 
education and popular consultation all in one phase. It is strongly 
urged that these generally be treated as two distinct phases of the 
process. The public education phase provides an important vehicle to 
broadly disseminate to the public information regarding the 
constitution and the constitutional process, and information on the 
basic themes--that should inform the new constitutional framework. In 
various places, this has served as a stimulus to civil society groups 
to organize public discussions on these issues. Through this process, 
long before adoption of any final constitution, the process can begin 
to diffuse power within the society and facilitate democratization, 
rather than leaving it all in the hands of those few with their hands 
on the levers of power.
    In East Timor and Fiji, the public education and consultation 
phases were essentially conflated, arguably weakening the effectiveness 
of each. South Africa, Eritrea, and Rwanda are more successful examples 
of this aspect of the process. In those processes, a carefully planned 
program of civic education was conducted so as to educate the 
population on the role of a constitution in society generally and as to 
their role in the process. Also, it was during the program of civic 
education that the determination was made as to what questions were the 
most important for the population. In Rwanda and Eritrea, the 
population was then consulted for their response on these questions. 
Over the course of the Rwandan constitutional process, it is worth 
noting, the opinions of the Constitutional Commission were revised in 
light of the popular consultations. Albania also provides a very useful 
model of a robust and well-organized public education and consultation 
process, which has arguably strengthened the drive toward 
democratization in that country.
    During the public consultation phase, the Constitutional Commission 
should present to the population a series of specific key questions and 
issues regarding the constitution. An adequate budget and resources are 
needed to enable the Commission to hold sessions throughout the 
country, elicit the views of the public and compile and receive 
responses. This process not only provides the public with a sense of 
ownership over the future constitution; it also often provides ideas 
and insights to the Commission that may prove extremely valuable to the 
subsequent drafting of the constitutional text.
    The case studies have clearly shown that the challenge of 
conducting these processes in the context of a high rate of illiteracy 
has proven to be much less significant than some would imagine. Members 
of constitutional commissions have been frequently amazed at the 
sophistication of the views expressed by their illiterate population 
once they understood the issues and were able to form their own 
opinions about them. In addition, a great deal has been learned about 
how to conduct these processes with art illiterate population. The 
message has been passed in several of these societies through the use 
of radio, cartoons, traveling theatrical presentations, etc.
    The synthesis of the results of the popular consultation into the 
constitutional draft has been a challenge in certain cases, and 
requires proper planning. In East Timor, for example, the Constituent 
Assembly focused on a draft prepared by the dominant political party 
that ignored the results of the popular consultation. Brazil is another 
example where the popular consultation failed at this stage. In that 
case the popular consultation had been massive but poorly organized. 
The task of synthesizing the results was then assigned to one man. 
Consequently, he was ultimately unable to absorb and synthesize the 
results of the popular contribution in the development of the final 
draft.
    It is also important to note that the process of civic education 
and popular consultation takes time. Some countries conducting these 
processes have tried to rush them. This was the case in East Timor, 
where the process was to take one month; a year later when the process 
was seen to have failed, the Constituent Assembly launched a second 
effort at public consultation, but allocated only one week for the 
exercise. This is currently a potential problem in Afghanistan is well. 
An effective public education and consultation process will take at 
least a year, and some countries have spent as much as three years on 
this aspect of the process.

Democratic Representation
    In addition to public participation, an important factor for the 
ultimate legitimacy of the constitution and the stability of the system 
it establishes is democratic representation in the body that receives 
the Commission draft. This is often a Constituent Assembly that debates 
and revises the Commission draft and adopts the Constitution.
    The case studies suggest that a broadly representative Constituent 
Assembly is more likely to adopt a constitution which is characterized 
as legitimate and to establish a political system which will prove to 
be stable. When there is broad democratic representation, there is a 
greater likelihood that all aggrieved parties will have an opportunity 
to express their views on key constitutional issues of importance to 
them, and perhaps more importantly, there is a greater likelihood that 
their views will be taken into consideration in the drafting of the 
final document. Where this is the case, the Constitution can serve to 
resolve conflict and provide mechanisms and reliable institutions for 
peaceful resolution of conflicts in the future.
    The biggest problem that arises in this connection is the dominance 
of a single political party, and this problem has been encountered in 
many of the cases studied. It is a factor which frequently detracts 
from the democracy of the process and serves to block the resolution of 
issues which are important to minority groups who have historically 
felt aggrieved.
    For this reason, frequently a great deal of thought is given to the 
choice of the electoral systems which will govern democratic 
representation, and very often an Electoral Commission is established 
to oversee the elections of the Constituent Assembly and to resolve 
conflicts which may arise in this connection.
    A problem which frequently occurs in connection with the dominance 
of a particular party is the establishment of a constitutional draft 
early in the process which becomes the focus of all debate and 
discussion. This problem was observed recently in East Timor, for 
example, where the Fretilin party developed a proposed draft even 
before the constitution-making process was formally initiated. The 
disadvantage which stems from the early establishment of drafts by 
powerful parties or individuals is that debate then tends to focus on 
the power to be accorded to that group or individual rather than on the 
issues that the draft addresses. This phenomenon serves to make the 
process generally less democratic.
    One way to combat this problem is to establish a Constitutional 
Commission charged with the functions described above in the section on 
the right to participate. In that case, the Commission can serve as the 
recipient of all drafts and other submissions from all parties and 
individuals. The Commission can then take those drafts and submissions 
into consideration along with the results of the popular consultation. 
They can then synthesize all of the elements in the final draft which 
they then prepare for submission to the Constituent Assembly for 
debate. This kind of a system can diffuse the power associated with any 
particular individual or group and provide an opportunity to all of the 
various groups in the society to express their views on constitutional 
issues.

Ratification
    The case studies have not revealed any particularly uniform method 
for ratification of a Constitution. In many of the cases studied, the 
Constitution has been ratified by a Constituent Assembly elected for 
that purpose, and in several cases the Constitution had to be adopted 
by a \2/3\ vote of that body. South Africa, Cambodia, and East Timor 
are examples. In other cases, the Constitution has been ratified simply 
by the parliament (Fiji, for example), in one case, Columbia, the 
Constitution was ratified by Presidential decree, and in Rwanda, the 
Constitution was ratified by popular referendum. It is interesting to 
note that there is a tradition of ratification by popular referendum in 
those countries, like Rwanda and earlier Iraq, which are influenced by 
the French Constitutional tradition.
    However, none of the case studies has suggested any problems 
relating to legitimacy of the Constitution that can be traced to the 
method chosen for ratification. They suggest that questions of 
legitimacy appear to be more related to the education of the population 
and their participation in the process, as discussed above.

The Role of the International Community
    At the outset, it is important to note that the role of the 
international community has been essential in many constitution-making 
exercises. For example, some of the programs of civic education and 
popular consultation which are described above could not have been 
conducted without the contribution of valuable resources from the 
international community. In addition, in virtually all of the cases 
studied, international constitutional experts have served as a valuable 
human resource to locals who have developed and drafted constitutions. 
The international community can play a role which is beneficial, and in 
some cases, crucial to the process.
    The international community's involvement in constitutional 
processes has not always been without problems. For example, the role 
of the international community has been criticized in some cases for 
favoring one political party over others. When one party is allowed to 
dominate the process, there is a significant risk that aggrieved 
parties in a conflict will not have the opportunity to air their 
grievances and secure concessions in the constitution-making process 
which could serve to reduce the potential for future conflict. The 
problem is exacerbated when the international community lends its 
support to such a party.
    The international community often engages in this kind of 
favoritism out of practical and temporal concerns. In general, their 
view is that it is perhaps most expedient to develop good working 
relations with the party which will obviously hold the power once the 
process is completed. In addition, there is the view that support of 
that party could shorten the process by accelerating an outcome which 
is seen as a forgone conclusion. This approach could, however, prove to 
be very short sighted in that, it could, as noted leave the embers of 
conflict smoldering.
    This concern is related to another potential problem associated 
with the role of the international community in constitution-making 
processes--the issue of its influence on the timing of the process. The 
assistance of the international community to constitution-making is 
usually part of a larger program of rule of law assistance which is 
very demanding in terms of both human and financial resources. For this 
reason, the international community has frequently sought to expedite 
the process, and some have taken the view that this time pressure has 
served to short circuit the process in some cases. In Cambodia, for 
example, the Paris Peace Accords of 1991 provided that the 
constitution-making process should be completed in a period of ninety 
days. Analysts of this process have unanimously taken the view that 
this period was clearly too short, particularly given the lack of human 
resources resulting from the Cambodian genocide and the impossibility 
generally of conducting an effective process under such time 
constraints in the most ideal of circumstances. Some authorities have 
suggested that the rushed nature of the process contributed to the 
weakness of the system created under the Constitution of 1993, and the 
coup d'etat of 1997 has lent credence to that view.
    Finally, while, as noted, the role of the international experts has 
been by and large extremely beneficial to the constitution-making 
processes studied, there have been instances where the contribution of 
certain individual experts has served to make the process less 
democratic. For example, in Cambodia while the process was unfolding in 
1993 King Sihanouk commissioned a French expert to prepare his draft of 
the constitution. From the moment that draft was prepared, it then 
became more difficult for others participating in the process to make 
their views heard or to propose alternatives since from then on there 
was a tendency to reduce all issues to the question of whether the 
alternatives were consistent with the King's draft. (The problem 
associated with the development of drafts early in the process is more 
fully discussed earlier.) The study has shown that the role of foreign 
experts has been most constructive when they have served as a neutral 
resource offering guidance to locals by elucidating the pros and cons 
of particular substantive issues, frequently through comparative 
analysis of how constitutional issues have been handled in other 
countries. This kind of a role encourages debate of issues amongst the 
locals who will ultimately be the ones who will make the substantive 
choices. The making of informed choices by locals will serve to 
increase their sense of ownership of the constitution and contribute to 
its legitimacy in the long run. In Eritrea, an advisory body composed 
of foreign experts was created to assist the Eritrearts in this way.

Summary and Recommendations
   The international community should encourage the Iraqis to 
        take the time which is needed to conduct the process taking 
        into consideration the time which will be required to engage in 
        meaningful civic education and popular consultation.

   Basic rules governing the constitution-making process and 
        the drafting of the final constitutional document should be 
        established at the outset of the process. These rules should 
        mandate a robust process of public engagement and should 
        enshrine fundamental rights in the new Iraqi society.

   The case studies suggest that Iraq should follow the new 
        model of constitutionalism which is emerging in recent 
        constitution-making exercises by taking steps to ensure that 
        meaningful civic education and popular consultation are 
        conducted. In order to accomplish this goal, a Constitutional 
        Commission should be appointed which is broadly representative 
        of all of the political, religious, and ethnic factions within 
        the society. This Commission could be appointed by the interim 
        authority in Iraq as long as it is thus broadly representative 
        of the society.

   The Constitutional Commission should conduct its work in 
        three separate phases. It should first engage in a program of 
        civic education which informs the population of the role of the 
        constitution in the society and lets its people know what will 
        be expected of them during the popular consultation phase. 
        During this phase, the Commission should be taking note of the 
        values and issues which the society considers to be of 
        paramount importance and should be compiling a list of specific 
        questions which should be put to the population during the 
        popular consultation phase.

   In the second phase, the Commission should conduct 
        consultations based upon specific questions, and these 
        consultations should take place in every area of the country in 
        both rural and urban settings. The Commission should also 
        receive submissions and proposed drafts from political parties, 
        individuals and NGO's.

   In the third phase of its work, the Commission should 
        develop a draft which synthesizes the results of the popular 
        consultation and the other submissions.

   The interim authority should develop an electoral law which 
        should establish the electoral system which should be used in 
        the election of a Constituent Assembly and which will provide 
        for the establishment of a broadly representative Electoral 
        Commission which will supervise the election and resolve 
        disputes which arise during the election.

   The Constituent Assembly should carefully consider and 
        debate every article in the draft proposed by the 
        Constitutional Commission. It should be empowered in the 
        electoral law to adopt the Constitution by a two thirds vote of 
        the Assembly.

   It would be useful for the international community to 
        provide detailed advice to the Iraqis on the development of the 
        constitution-making process. As noted above, in the past 
        foreign experts have focused almost exclusively on issues of 
        substance. In a place like Iraq, locals could greatly benefit 
        from an analysis of lessons learned from other processes which 
        could serve to ensure the legitimacy of the Constitution and 
        the stability of the political system it creates.

   International experts should serve as a resource and should 
        avoid acting as a ``hired gun'' for particular parties or 
        groups within Iraq. They should offer comparative observations 
        based on their knowledge of how particular constitutional 
        issues have been dealt with in other countries.

   The international community should avoid supporting one 
        group or political party over another.

    Senator Cornyn. Thank you very much. I just have a couple 
of questions. To start with, Dr. Kommers, the issue of de-
Ba'athification arose with the first panel, and I know after 
World War II in Germany there was a de-Nazification effort. Can 
you perhaps tell us whether you think that experience should 
enlighten us today on the de-Ba'athification process, and 
specifically if people are excluded from society, or from 
holding government jobs, what that portends for a successful 
democracy?
    Dr. Kommers. Yes, there was a major de-Nazification program 
in Germany. However, as I think somebody suggested from the 
previous panel, the members of the Nazi Party came in various 
stripes. At the worst end, of course, you had the criminals, 
and those who had been guilty of criminal activity for the most 
part were barred from public office and from all positions of 
responsibility in post war Germany.
    As was said before in connection with the Ba'ath Party 
there were thousands of people who belonged to the Nazi Party, 
but who joined the party simply, for example, to retain their 
jobs in the government bureaucracy, which of course was 
extremely large, as it is today, and by the way, the same 
process took place in East Germany.
    Almost all East German communists who were high in the 
echelons of the Socialist Unity Party, the Communist Party were 
discharged or removed from office. These included political 
officials, teachers, judges, and civil servants. But those 
people who could show that they were not associated with the 
crimes of the regime were allowed to retain or reclaim their 
positions. This was a good policy because it contributed to 
some degree of trust and it also contributed to the stability, 
such as it was, in East Germany immediately after 
reunification, in the 2 or 3 years after reunification, and I 
think the same was true of the post-Nazi period.
    The lower level Nazi officials who really were not 
ideologically committed to the regime, and there were many, 
although that's disputed, if they had been left out of account, 
I think it would have created a good deal of unhappiness and 
distrust in Germany, and then finally the Americans, as well as 
the British and the French, realized that many of these 
officials were absolutely necessary if the government was to be 
adequately staffed and reconstructed.
    Senator Cornyn. Thank you.
    Professor Agawa, when your people question where democracy 
and Islam can coexist, I think about the seismic cultural 
change in Japan post-World War II, particularly with regard to 
the role of the Emperor, and I wonder if you might enlighten us 
a little bit in terms of the role of the Emperor in Japan pre-
World War II and through the war, and how that changed during 
the course of the constitution of Japan.
    Mr. Agawa. In talking about the Japanese constitution in 
1946, as I said, the question as to how to treat the Emperor in 
that constitution was a major issue at the time. We have to 
remember that the Emperor tradition goes back to the third 
century or fourth century, and the Emperor is much older than 
any constitutional system we know, and when the Americans 
proposed that the Emperor be just a mere symbol of the unity of 
the people, the sovereignty resides with the people, and that 
any power that the Emperor has is derived from the people's 
sovereignty, the Japanese people, particularly the conservative 
government element really strongly resisted that.
    However, actually, then they later found out that the 
tradition of the Emperor, going back to the 9th, 17th, and even 
oldest period, the Emperor was really just a spiritual symbol, 
and the Emperor being a militaristic superpower was only an 
adaption of the so-called Prussian German notion of Kaiser 
during the late 19th century, and particularly during the 
thirties.
    So therefore in a very interesting way the notion of a 
democratic Emperor suited the older tradition of Japanese 
history, and I think that in that way the 1946 constitutional 
notion of spiritual symbol of Japan has worked remarkably well, 
so I think in that respect General MacArthur was very wise in 
bringing up that notion, and modeled after that partly on I 
think the British way of reigning but not ruling monarchy.
    Senator Cornyn. Professor Howard, I was interested in your 
comments in this vein. We are very cognizant, and there is 
almost universal agreement that the coalition should not impose 
our views on the Iraqi people, it must be something of their 
choosing, yet you talked about the importation of values, and 
indeed it seems to me that the failure of any Iraqi 
constitution to respect certain basic values would be dangerous 
to the Iraqi people, in other words, if there is not respect 
for freedom of the press, free exercise of religion, 
sovereignty of the people and those sorts of things. Could you 
address that?
    It seems to me like we are defensive in not wanting to 
impose something, and yet if they don't embrace some of those 
certain values which I think are pretty universal in a 
civilized world now, not just America, it could indeed 
perpetuate a police state, or set up a situation where another 
Saddam could rise to power. Do you have thoughts?
    Mr. Howard. I think that's a core question. It seems to me 
that we must accept the proposition, which has been widely 
accepted at these two panels, that of course the Iraqi people 
must be at the core of the enterprise. I mean, they must be the 
ones who make, devise, institute, implement the constitution. 
We all understand that, but I think one need not be defensive 
about saying that there are certain values which transcend 
national boundaries.
    We've had so much experience--Neil Kritz and his associates 
and a number of other people have studied much of this 
experience, especially in the years since World War II. I would 
hazard that a majority of the constitutions of the world have 
been written in the last 25 or 30 years. There's really been no 
period like it since the American founding period, or perhaps 
the period after World Wars I and II. There is ample 
opportunity for seeing whether, indeed, there is common ground 
among constitution-makers.
    This approach is not unlike the effort of Enlightenment 
thinkers in the 18th century, Voltaire, Condorcet, Turgot, and 
others, who argued that there was what Condorcet called a 
``common core of human happiness.'' One should take account of 
national differences; no two peoples are alike. Yet when one 
strips away those national differences, there are certain human 
aspirations and appetites, pains and pleasures, which make us 
all human beings. That, it seems to me, is the heart and soul 
of the modern human rights movement.
    In Vienna, a few years ago, there was a meeting at the 
United Nations that came together to talk about the meaning of 
human rights. There was a handful of nations who objected to 
the enterprise, nations like China and Burma. I had the 
impression that those nations had not consulted their people as 
to whether there was such a thing as human rights.
    So I, for one, am willing to begin with a certain a priori 
assumption that there are certain rights that people ought to 
have as a matter of principle, and that constitution-makers, no 
matter who they are, ought to address those rights.
    I would perhaps distinguish between what we call bills of 
rights, where you lay out the rights of individuals, and the 
structural side of government, the frame of government. Surely 
there's a much wider room for debate--shall the system be 
parliamentary or Presidential, shall we have an American-style 
Supreme Court or a German-style constitutional court? If 
there's a president, shall he or she be a figurehead or a 
president with some power like France or the United States?
    There are many models from which to choose from, it seems 
to me. Even as to structure, however, there are some 
presumptive basic qualities. I mentioned them in my remarks--
norms like separation of powers, checks and balances, judicial 
review or other enforceability of the constitution. All of 
these are working models. What one does then is take stock of 
how different countries have used them and hope that, perhaps 
doing a little nudging, that the Iraqis, when they finally 
write their constitution, will properly have taken stock of 
that experience.
    Senator Cornyn. Thank you. Senator Chafee.
    Senator Chafee. Thank you very much, Senator.
    Professor Kommers, you mentioned that the German 
constitutional basic law has been a model, if I heard you 
right, for 60 or 65 countries, and rather strong on that as 
perhaps applicable to Iraq. Are any of those 60 or 65 countries 
that have any similarity to Iraq? I don't know which 60 or 65, 
if I heard you right, they are.
    Dr. Kommers. Well, most of the Eastern European 
constitutions were revised at last partially on the German 
model. The same is true of South Africa's constitution, and the 
Spanish constitution, the Portuguese constitution, a couple of 
the new constitutions in Latin America, but I can't think of--
well, maybe Bosnia, Bosnia-Herzegovina, where you have 
tribalism and religious radicalism being present pretty much as 
in the case of Iraq, and I'm really not sure how well those 
constitutions are working. I suspect that they are not working 
as well as the drafters of those constitutions wanted them to 
work.
    Maybe along the same lines, Mr. Chafee, I might mention 
another reason why I think the German constitution has been so 
successful which may have lessons for Iraq, and that is this. 
The main parties in the German constitutional convention 
represented the three major democratic traditions in the 
history of Germany. There was the Christian Democratic, the 
socialist tradition, and the liberal tradition, represented 
respectively by the Christian Democratic Union, the Social 
Democratic Party, and the Free Democratic Party. These 
represent the major historical and philosophical movements that 
are part of Germany's liberal democratic tradition.
    These parties had their differences, and they fought out 
those differences bitterly at the convention, but in the end 
they suppressed those differences, and took the best of the 
three traditions and incorporated those things into the basic 
law, so if you look at that basic law, it represents something 
of a confluence of these three traditions in German history.
    Then finally, the last point, Adenauer. Adenauer was 
elected the president of the constitutional convention. He was 
Germany's Washington. He was a towering figure, highly 
respected not only by the Germans but by the allies, and I'm 
just wondering, if a constitutional convention of that kind is 
established in Iraq, that convention should probably represent 
the three or four major democratic traditions, if they exist in 
Iraq, and be governed, or ruled, or directed by people of 
reputation and prestige, it seems to me, and then maybe the 
Americans can direct that process, at least to some extent.
    Senator Chafee. Thank you very much, and thank you very 
much, panelists, for your generous time here this afternoon.
    Senator Cornyn. Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Professor Yoo, you and many of the other witnesses have 
suggested, in order to create a stable, lasting order in Iraqi, 
the Iraqi people have to be the primary authors of their own 
constitution and political order. You apparently believe we 
have the legal authority to impose a constitution on the Iraqi 
people. Are you suggesting it would be a good idea for us to do 
so?
    Mr. Yoo. Thank you for that question.
    No, I'm not. I'm just stating that the law would allow you 
to do that, but I think the German and Japanese models actually 
show where, even though the United States had such broad legal 
authority they used domestic processes to help develop a 
constitution that would be acceptable to their own populations, 
but you know, especially with the Japanese example there was a 
very strong American hand. It was sort of based on this theory 
of international law of occupation that I discussed before. 
They just weren't so open about what they did.
    Senator Feingold. OK. Mr. Kritz, Mr. Yoo has testified that 
he believes the United States has the legal authority to impose 
a constitution on the Iraqi people. Do you agree?
    Mr. Kritz. Well, Senator, I think that current-day 
interpretation of the Hague Convention and Fourth Geneva 
Convention obligations, at least according to many scholars, 
would raise questions with respect to that. There is at a 
minimum a healthy controversy on the issue.
    More importantly, I would suggest that on a practical 
basis, as Mr. Yoo has said as well, it wouldn't be a good move, 
simply because, in the context of Iraq, it would not provide 
for a product or a process that would move Iraq to the place 
where we want it to be at the end of this process.
    Senator Feingold. Let me followup with you. I think one of 
the themes emerging from this hearing is that when we're 
talking about drafting a constitution, process is just as 
important as content. We've heard a bit about the historical 
experiences of Japan and Germany, which are obviously 
important, but as you've mentioned, you've had experience with 
the more recent transitions in Bosnia, Cambodia, Rwanda, Sierra 
Leone, Guatemala and elsewhere. Based on your experience with 
these other countries, what would you say were the most 
important process issues we should be keeping in mind?
    Mr. Kritz. Well, as I indicated, Senator, one of the most 
important issues with respect to process is the guarantee of 
public participation and ownership of the process. The 
constitutional process, if it's going to be viable and create a 
reconciled and stable Iraq for the future, can't be a process 
of a few elites crafting a constitution behind closed doors and 
handing it down like tablets from Sinai.
    This needs to be a process that really engages the people. 
It needs to be a process that includes several stages, 
including the initial process of articulation of basic 
principles. I would suggest, by the way, Senator Cornyn, that 
that notion of essential values is ensconced in several recent 
constitutional processes in the context of international human 
rights. This has been done recently in Afghanistan, as it has 
been done in other cases, and establishes a commitment that the 
country in its transition and its constitutional process is 
obliged to adhere to current international human rights norms. 
This helps ensure that the kinds of values and the protection 
of rights that we're talking about are obligatory on that 
process.
    A constitutional commission should ideally be a 
representative body that would include respected and credible 
scholars from various key groups within society. It would 
engage first in public education on these principles, in 
consultation with respect to the public's ideas on basic 
questions, allowing them to engage in the debate, and only then 
in the drafting of a document.
    One of the things that we've seen in a handful of cases is 
the immediate tabling of a document, frequently one that's been 
drafted by one dominant party in the process, and that 
immediately skews the entire constitutional process which 
follows. We've seen that in Cambodia; we've seen it to some 
extent in East Timor more recently. It makes it harder for that 
fuller democratic process to ensue. It makes more sense later 
on for the constitutional commission, based on its 
consultations and based on its input both from outside and 
inside the country to begin that process of crafting a 
document, which would then be submitted either to a popular 
referendum and/or to a constituent assembly for final revisions 
and adoption.
    Senator Feingold. Finally, Mr. Kritz, one of the biggest 
concerns in Iraq will be the creation of a criminal justice 
system that the Iraqi people perceive is fair and evenhanded. 
What are some of the problems that you see in places like East 
Timor and Kosovo with establishing new courts and police 
forces, where many of the people employed in the new criminal 
justice system are the same people who held the position before 
the change in government took place?
    Mr. Kritz. Senator, there would, of course, initially need 
to be, as has been discussed, this process of vetting those 
personnel who may populate the new system. I would mention, by 
the way, that the Institute of Peace, based on experience in a 
number of prior transitions, provided to the NSC Working Group 
on Iraq back in January a set of guidelines for the vetting 
process. I'd be pleased to provide a copy of that memo for the 
record, if you desire.
    It will be necessary, as I say, initially to screen out 
many of the people who are currently in the system. That 
doesn't mean, in the Iraqi context, that everyone is 
discredited. Far from it. Within the police force, as the Iraqi 
Special Forces, Interior and others assumed greater power over 
the years under Saddam, the regular police forces actually 
became increasingly isolated, and that meant that they were not 
playing the dominant role in day-to-day abuses of the regime.
    As a consequence, as I think the coalition forces have 
recognized, many of those police officers actually can be 
retrained and placed on the force. They will, however, need 
significant international assistance. One of the things that 
we're seeing today is the difficulty and the time-consuming 
process for the coalition forces of recruiting civilian police 
advisors from various allied countries in significant enough 
numbers to actually spread around a country of this size, and 
to reestablish the police forces.
    Within the courts as well, many of the judges need 
retraining, but again, to the extent that they were not part of 
the security court apparatus, have the ability and the 
credibility to remain on the bench, with that retraining.
    One of the lessons that has emerged from many of the cases 
of prior transitions over the last couple of decades is simply 
the need to recognize that this is going to take a long time. 
Recreating a legal culture, changing the way courts and police 
and prison officials function is not going to happen in 6 
months or a year. It's going to take a number of years.
    It's going to take substantial resources for training. It's 
going to take substantial resources for oversight and 
monitoring. It will probably require the insertion of 
international advisors, if not in an executive authority 
fashion as we've seen in Kosovo and East Timor, then at a 
minimum at the courts, at the police stations, at the prisons, 
with the ability to oversee and keep an eye and inform the 
process as it goes forward.
    The last point that I would mention is the imperative of 
dealing with the question of the major crimes of the past 
regime. The entire process of re-standing up their criminal 
justice system won't have credibility in the eyes of the Iraqi 
people if this issue isn't addressed as well, and on this last 
point, it will require several tiers of activity.
    The major war crimes cases, I would submit, can only be 
undertaken with substantial international involvement and 
participation in a special tribunal for major crimes. Whether 
that's a hybrid tribunal that includes both Iraqis and 
outsiders--and I would advocate that over any kind of a wholly 
internationalized process, again for the reasons of ownership 
we've discussed--that will only touch the tip of the iceberg. 
Separate from major crimes under international law, like crimes 
against humanity, there will be large numbers of cases that 
will be heard for regular crimes in the Iraqi criminal courts, 
and those will need to be monitored carefully.
    Last, in addition to the vetting and trials, there is 
arguably a role for the truth and reconciliation process that 
was mentioned in the prior panel. This can allow a larger 
number of Iraqis to deal with these abuses in ways that the 
courts will never be able to, and to come together, as was done 
in South Africa and elsewhere, to examine how these things 
happened, and to develop a blueprint for what kinds of 
responses are appropriate--both in terms of penalizing and 
memorializing the past as well as in terms of steps for the 
future to build a structure in which these abuses cannot recur.
    Senator Feingold. I thank the panel. I thank both the 
chairmen very much.
    Senator Cornyn. Thank you, Senator Feingold. Senator 
Chafee, do you have any further questions?
    Miraculously we were able to complete our second panel 
without being interrupted for votes. That probably means a late 
night for us, but that's all right. At least we were able to 
get through the testimony of the witnesses.
    I want to thank the members of the second panel, as I did 
the first, for your testimony both oral and in writing, your 
written statements. I think today's hearing has helped fill a 
very significant void, and hopefully we'll begin a certain 
conversation that I think needs to take place about this very 
important subject, one that will hopefully give democracy an 
opportunity to begin, once we secure the countryside and 
establish the rule of law and some independent judiciary, but 
this has been a very important contribution to that effort. I 
want to congratulate and thank each one of you.
    I want to thank certainly the chairman of my full 
committee, Senator Hatch, and obviously the chairman of the 
Senate Foreign Relations Committee, on which both Senator 
Feingold and Senator Chafee serve, for their help. I want to 
tell Senator Chafee and Senator Feingold how much I appreciate 
their cooperation, as well as that of their staff. As always, 
it's the staff that does all the heavy lifting, and I want to 
express publicly my appreciation to all of our staff for the 
good work that they've done to make today's hearing possible.
    Finally, let me just close by saying that again, if there's 
any other documents that anyone would like to make part of the 
record, we'll leave the record open till July 2, and it could 
be that members of the panel, even those who were not able to 
be here physically today, would like to submit additional 
questions in writing, and I hope you would be open to that.
    With that, let me say thank you very much, and the hearing 
is now adjourned.

    [Whereupon, at 4:39 p.m., the hearing was adjourned.]

                            A P P E N D I X

                              ----------                              

                Transitional Justice in Post-Saddam Iraq

  The Road to Re-establishing Rule of Law and Restoring Civil Society

                            A Blueprint \1\
---------------------------------------------------------------------------

    \1\ Report of the Working Group on Transitional Justice in Iraq, 
and Iraqi Jurists' Association (March 2003). A complete copy of the 
report, which contains appended material not printed as part of this 
hearing transcript, has been placed in the committee's permanent files.
---------------------------------------------------------------------------
                              ----------                              

                         I. Executive Overview

                               BACKGROUND

    The Working Group on Transitional Justice of the Future of Iraq 
Project (Working Group), in cooperation with the Iraqi Jurists' 
Association, commenced the development of this Transitional Justice 
Project in meetings starting in July of 2002.
    Comprised primarily of prominent former Iraqi judges, lawyers and 
law professors, the Working Group embarked on this project in 
consultation with international experts in the areas of international 
criminal law, truth and reconciliation, post-conflict justice and 
military reform.
    These jurists came together with a common purpose and a singular 
objective. The common purpose was to assert that in order to achieve 
civil society in a future post-Saddam Iraq, it must be founded on the 
principle of respect for the rule of law. Their singular objective has 
been to identify and document the necessary procedures, mechanisms, 
rules and laws to initiate the transformation of Iraq to a society 
governed by the rule of law.

                                PREMISE

    There are two primary aspects for the concept of the rule of law. 
The first is that all persons are accountable under the law regardless 
of their rank or position in the country, including the head of state. 
The second is to provide the citizens a credible means to address 
legitimate grievances and to avoid self-help justice characterized by 
acts of vengeance.
    At the outset, it was universally recognized that the foundation 
for a society governed by the rule of law is an independent judiciary. 
By contrast, the government of Saddam Hussein went to great lengths to 
subvert each of the major powers of state (ie. legislative, judiciary 
and executive) to the central authority of the president through the 
Ba'ath party apparatus.
    The role of an independent judiciary cannot be over-emphasized, 
particularly in a society where individual rights and freedoms have 
been trampled upon so comprehensively as they have been in Iraq under 
Saddam Hussein.

                         VISION FOR THE FUTURE

    The vision of the Working Group for a future Iraq is one founded on 
the notion that the laws and institutions of state must be restructured 
and reformed to serve and protect the interests of its citizens. This 
is in stark contrast to Saddam's practice of manipulating every 
instrument and agency of state to protect and serve his regime. In 
order to re-establish civil society in Iraq, there must be a clear 
departure from the past and a clear focus placed on the welfare of the 
Iraqi people.

                     II. Transitional Justice Plan

    This Transitional Justice Plan is aimed at transforming an unstable 
and chaotic state, caused by a dictatorship with a legacy of gross 
human rights abuses, to a democratic pluralistic system which respects 
the rule of law.
    Transitional justice in the context of Iraq today demands sincere 
efforts to create the environment of trust and confidence in a new 
system, particularly a judicial system which establishes the rule of 
law in all of its meanings. This includes the general public's respect 
and confidence in the legal system to resolve disputes, prosecute 
crimes and also the important task of holding all people accountable 
regardless of rank or position.
    In the case of Saddam Hussein's regime, the prolonged, widespread 
use of terror and violence against the Iraqi people requires a 
systematic and comprehensive approach to transitional justice. Such an 
approach will necessarily have to deal with the past crimes of the 
regime as well as to proactively create the environment for a future 
which respects the rights of all Iraqi citizens with coherent laws and 
reformed institutions.
    Addressing the regime's crimes through open and fair trials for 
those suspected of war crimes, crimes against humanity and other 
serious abuses is a cornerstone of this plan. In addition, Truth 
Committees with a mandate to discover the truth, establish a record and 
disseminate this information on the national and international levels 
are proposed. Victims' compensation mechanisms are recommended as a key 
element in the effort to inhibit potential public demands for 
vengeance.
    Building a future on the basis of respect for the rule of law 
requires a thorough review of the system of laws left behind by this 
regime to identify, remove and/or replace those provisions which 
violate internationally recognized basic human, civil and political 
rights. Beyond reforming the laws, major reforms are also required for 
key institutions to re-establish their roles to protect and serve the 
public in contrast to their current capacity to protect and serve the 
regime of Saddam Hussein.
    In parallel with these reforms and the truth, accountability and 
reconciliation processes, a far-reaching program to educate and re-
train professionals in various fields is needed to promote basic values 
of public service and protection of individual rights. An additional 
component to the education program is to raise public awareness of the 
essential rights and responsibilities of citizens building a civil 
society in all spheres of life, including schools, colleges, the media 
and other public forums for the long-term transformation of the 
institutions and society in general.
    The following sections are concrete recommendations and draft laws 
in each of these important areas:

A. DEALING WITH THE PAST
    It may be impossible for Iraqis to confidently and boldly face the 
challenges of an uncertain future, without first taking a hard, sober 
look at the past decades under Saddam's rule and thereafter directly 
addressing the fallout from the widespread crimes and repressive 
policies which are the hallmark of his regime. Re-establishing the rule 
of law and preventing individuals or groups from resorting to mob-
justice requires a genuine, meaningful process to identify, prosecute 
and hold perpetrators of crimes accountable for their actions.
    Beyond the major crimes, an active truth and reconciliation process 
is required to identify, record and disseminate information about what 
transpired under this regime. Additional remedies other than 
deprivation of liberty such as personal payment of victims' 
compensation, community service and lustration mechanisms are available 
for those offenses which do not rise to the level of major crimes.

1. Truth, Accountability and Reconciliation

a. Prosecution v. Truth Committees
    The Iraqi regime's crimes against humanity are some of the worst in 
world history. Although, they have been amply recorded, they are 
extremely difficult to quantify with any precision.
    Having established this fact, it remains necessary to give hope 
even to some of the perpetrators of less serious abuses. This may be 
done by a plea bargain offering amnesty for those who defect, or expose 
the regime's crimes and the persons involved. Such an offer can be made 
pursuant to law No. 23 of 1971 of the Criminal Procedure Code. (Note--
all code references refer to the Iraqi legal codes unless specifically 
indicated otherwise) Article 29 of this law states:

   1. The investigative judge may offer amnesty with the approval of 
            the criminal court for reasons set forth on the record in 
            the case against any person accused of wrong doing with a 
            view to obtaining their testimony against other 
            perpetrators provided said accused presents a complete, 
            truthful account. If the offer is accepted, the testimony 
            shall be heard and the accused shall retain his/her status 
            until a verdict is reached in the case.

   2. If the accused does not present a complete, truthful account, he/
            she shall lose his/her right to amnesty by decision of the 
            criminal court.

   3. If the court finds that the account presented by the accused 
            offered the amnesty is complete and truthful, it will cease 
            all criminal proceedings and release said accused pursuant 
            to the terms of the amnesty.

    Tenets of the Islamic law may also be used in this connection, 
especially those that allow the victim or the victim's relatives to 
forfeit their rights against the perpetrator upon reconciliation, in an 
act of Forgiveness.
    However, it must be made clear to all Iraqis that the law shall be 
firmly and severely applied against those who resort to score-settling 
or vengeful acts irrespective of their status. The point must be 
emphasized that the principles of transitional justice shall be 
uniformly enforced against offenders in fair trials where the deserving 
parties shall be justly compensated for damages.

b. Truth Committees
    There is a strong link between truth and reconciliation committees 
and the qualified amnesty of certain crimes to be later defined.
    The truth and reconciliation committees are set up and their 
functions are defined by order of a judicial council. They are to do 
everything necessary to reveal the truth with regard to abuses that do 
not amount to international or major crimes. These lesser abuses may be 
so numerous that they cannot be prosecuted by courts of law. (A case in 
point is Rwanda where more than 400,000 people were implicated in such 
abuses, and their prosecution would have taken hundreds of years.) The 
measures in question would involve admission of guilt. That is why the 
aim of these committees is to arrive at the truth and consequently at 
the higher objective of reconciliation.
    For the truth committees to attain their goals, they need to do the 
following:

   1. Investigate claims formally and publicly reveal the truth about 
            past human rights violations and the individuals involved.

   2. Contribute to justice by imposing sentences other than 
            deprivation of liberty, including amnesty for crimes 
            covered by such a move, compensation for damages. In the 
            event the case involves crimes beyond its jurisdiction or 
            there is a breach of amnesty conditions, it shall refer the 
            case to the criminal investigation committees which in turn 
            may send the accused to a court of competent jurisdiction.

   3. Induce confessions of responsibility and guilt. Reconciliation 
            and amnesty is thus not tantamount to acquittal.

   4. Involve and satisfy the concerns of victims, achieve 
            reconciliation and renounce vengeance, vendettas and 
            violence.

   5. Link amnesty to the work of truth committees in bringing about 
            reconciliation. Amnesty shall not extend to those who do 
            not confess responsibility for abuses and publicly 
            apologize for their misdeeds. This is similar to what 
            occurred in South Africa.

    Decisions of these committees must be subject to appeal. The truth 
committees should also have the power to take such decisions in 
addition to imposing sentences not involving imprisonment.
    In each Appeals Court District, one or more truth and 
reconciliation committees may be set up as required. They are to 
comprise three members headed by a judicial officer. The members must 
be qualified and known for their integrity and good reputation in the 
community.

c. Reconciliation Mechanisms
    To bring about reconciliation and to encourage people toward 
acceptance, tolerance and compassion rather than vengeance, structures 
must be in place that are in accord with local traditions, customs and 
norms.
    The reconciliation project is important and its objective is to 
promote a favourable climate for normal life in a society that has been 
stunted by dictatorship. It is designed to help society move forward 
towards stability and democratic transformation.
    A large number of people will likely be implicated in abuses due to 
the nature of Saddam's contradictory and complex policies which 
required individuals to demonstrate their loyalty to the regime by 
transgressing on the rights of others. To punish this huge number of 
abuses, assuming the necessary possibilities are available to do that, 
is to risk undermining the existing social and economic set-up 
threatening the state itself. This is why the work undertaken in 
implementing the transitional justice and reconciliation project is so 
essential. It, therefore, requires technically oriented individuals who 
are committed to a pluralistic, democratic society which respects the 
rule of law.
    The main objectives in a reconciliation process that can assure the 
uniform dispensation of justice and set the foundation for the rule of 
law are:

   1. Build confidence in the new administration and cooperation with 
            it. This may be realized through the following:

                   Granting special priority to the issue of 
                compensation. Fair and just compensation should be 
                granted to victims without discrimination. Failing to 
                do so will invite resentment, protest and eventually 
                rebellion if the issue is manipulated by opponents of 
                the new administration. Moreover, a fair settlement of 
                this issue will help victims overcome their vengeful 
                impulses towards the perpetrators and their relatives. 
                Compensation is a pivotal element of reconciliation.

                   Raising the standard of living for civil 
                servants. Conditions for living a decent life have been 
                denied Iraqis under Saddam's regime. A nation-wide 
                drive will be required to raise the standard of living, 
                particularly of civil servants, as a guard against 
                social corruption, thereby attacking its economic 
                causes. This will help maintain self-interests within 
                the accepted moral norms and remove any contradiction 
                between private and public interests.

                   Establishing legal safeguards to deter the 
                new administration from imposing restrictions on 
                individual freedoms. To rule out any form of 
                authoritarianism in a post-Saddam Iraq, institutions 
                and structures with appropriate checks and balances 
                must be in place. Above all is the requirement for an 
                independent judiciary. The more independent the 
                judiciary is, the more just and effective it will be.

   2. Highlight those tenets of Islamic law (Shari'a) that emphasize 
            virtue, tolerance and forgiveness. Use may be made of early 
            Islamic experiences which applied the principles of piety, 
            justice, honesty, tolerance and respect for differences 
            rather than ethnic, sectarian, religious, class or clan 
            discrimination as practiced by Saddam's regime and the 
            Ba'ath party. People need to be reminded that Islam could 
            not have built a vast empire in its heyday if it had not 
            espoused justice and virtue as its foundation. This policy 
            will effectively contribute to preventing score-settling 
            and vendettas in the wake of regime change.

   3. Make use of traditional conventions and structures like tribal 
            values to maintain order and ward off anarchy in the 
            interests of reconciliation. This is despite the fact that 
            these tribal values were encouraged by prior repressive 
            regimes, nonetheless, they need to be acknowledged in the 
            transition to a pluralist system and may even be a useful 
            vehicle for enfranchisement of otherwise disenfranchised 
            individuals or groups.

d. Prosecution
    Holding Saddam Hussein and his cohorts responsible for their crimes 
against the Iraqi people requires prosecution under Iraqi penal codes. 
The salient issues in this regard are:

    (i) Legal Basis for Prosecution

         How to serve out arrest warrants.

         How to conduct the investigation and file charges.

         How to address the question of immunity granted to 
        Iraqi officials under the existing constitution.

    (ii) Court Structure

                 Which courts shall hear which types of cases?

        (i) Legal Basis for Prosecution

    Iraqi law No. 23, 1971 of the Criminal Procedure Code sets forth 
the nature of the proceedings relevant to criminal cases. Article 1 
states that it is permissible to set a criminal case in motion by an 
oral or written complaint presented to an investigative judge, a 
prosecutor or a competent official at a police station. Such a case can 
also be initiated by an ``Information'' presented to the public 
prosecutor. On the basis of this Information, an investigation is 
opened. The investigative judge shall take such necessary steps as 
issuing a summons, search warrants and arrest warrants against the 
suspect(s). In the case of arrest warrants, the accused shall be 
described in detail by name, title, identification (card/number), 
physical description, place of residence, occupation, the type of 
alleged offense, the relevant penal code and date of the warrant.
    The question then becomes, in the event there is no complaint filed 
against an official, particularly in the event there is a coup or an 
occupation by outside forces, can the investigative judge serve an 
arrest warrant and determine the nature of the suspect's custody/
detention based merely on suspicion?
    The answer is yes. Article 103 of the Criminal Procedure Code 
allows the arrest of any person suspected on reasonable grounds of 
having committed a major crime or an intentional felony without the 
need for a formal complaint. Precedent shows such suspects have been 
put under arrest by investigative judges pending inquiry into their 
alleged crime or involvement in a criminal act. Investigative judges 
can invoke this provision to arrest and question state officials 
without an initial summons or complaint being formally lodged against 
them.
    As for the legal mechanism required to serve these arrest warrants, 
it is proposed that a Judicial Council be established, comprised of at 
least 9 members selected from judges forcibly retired in Iraq, those in 
exile and others presently in the Kurdish region. This Council can 
serve as a nucleus of the judiciary in a post-Saddam Iraq, expanding to 
include judges of integrity inside Iraq, after regime change. The 
Council shall have all the powers of the judiciary as defined in the 
future interim constitution or basic law.
    The Judicial Council shall select a presiding judge who may be the 
same person as the presiding judge of the Cassation Court. The Council 
shall appoint investigative judges to investigate alleged crimes by 
officials of Saddam's regime under the Iraqi penal code. The Council 
shall also serve to vet members of the judiciary with authority to 
retire judges with questionable political backgrounds or integrity. 
Vacancies created by such actions may be filled by recalling retired 
judges of sound character and lawyers known for their competence. The 
Judicial Council may assume its constitutional and legal duties in the 
interests of justice during the transitional period.
    It is proposed to initially confine all arrest warrants to top 
officials of the regime, including its head, his immediate associates, 
deputies, Revolutionary Command Council (RCC) members, ministers, 
regional leadership members, heads of security agencies, army chief of 
staff and corps commanders.

        (ii) Court Structure

          Special Courts for International and Major Crimes

    Criminal trials by no means imply automatic conviction of the 
accused. They are legal proceedings designed to arrive at the truth. 
The accused is innocent until proven guilty. These trials shall be 
instrumental in revealing the truth and eliminating the impulses for 
vengeance and violence. In this sense they are an effective 
contribution to transitional justice. The truth will lead either to 
conviction of the accused when proven guilty or to acquittal or to 
dismissal for lack of evidence.
    Before holding criminal trials competent investigative teams, 
presided over by investigative judges, should be in place. They are to 
investigate officials suspected of war crimes, genocide, torture and 
crimes against humanity. There is no statute of limitations for the 
prosecution of these crimes, nor are they covered by any amnesty. The 
investigation teams should be supported by international experts while 
making use of facilities offered by specialized institutes to uncover 
and preserve incriminating evidence and other areas of expertise.
    The measures taken by these teams are governed by provisions of the 
1971 Criminal Procedure Code in line with all subsequent procedures by 
courts applying the same law. The investigation teams may present the 
respective cases to investigative judges for the issuance of arrest 
warrants, summons, and search warrants pursuant to the above-mentioned 
law. Alternatively, investigative judges may preside over these teams 
to facilitate the task of issuing the appropriate court orders.
    Crimes not falling in the international crimes category specified 
above but covered under Iraqi penal codes may be investigated in the 
typical manner with magistrates. There may be a pressing need to 
increase the number of competent prosecutors to investigate these 
crimes due to their large number.
    Criminal courts in Iraq are classified according to the nature and 
gravity of the crime. There are criminal courts dealing with offences 
punishable by more than five years in prison. There are misdemeanor 
courts that deal with offences carrying a maximum penalty of five-year 
imprisonment.
    Saddam Hussein and his top officials will be tried for crimes that 
do not fall under either of the above two categories. Theirs are grave 
international acts involving war crimes, genocide, torture and crimes 
against humanity. There is neither a statute of limitation nor amnesty 
for these crimes.
    Saddam Hussein and other officials at the highest echelons are to 
be indicted for three types of crimes:

   1. The first are grave international crimes that come under 
            international criminal law.

   2. The second are major crimes codified in the Iraqi penal code.

   3. The third are lesser crimes and offenses covered by Iraqi penal 
            code.

    (The third type is addressed in the section on truth and 
reconciliation committees.)
    As for the first type, they are crimes that can be dealt with by 
one of the following:

          An ad hoc international criminal court like those set up for 
        former Yugoslavia and Rwanda. The maximum penalty that can be 
        meted out by these courts is life imprisonment. They are formed 
        by a resolution of the UN Security Council. (Note: the newly 
        created International Criminal Court is unfortunately not an 
        appropriate venue to prosecute these crimes as its mandate is 
        limited to crimes committed after July 2002. The vast majority 
        of crimes committed in Iraq occurred well before this date.)

          A hybrid criminal court consisting of Iraqi and international 
        judges. This court, too, would be set up by a UN Security 
        Council resolution, and it may also be barred from passing 
        sentences involving the death penalty in accordance with the 
        provisions of the UN resolution. Such a resolution is likely to 
        be consistent with the provisions of international criminal 
        law, which was the case with the Yugoslavia and Rwanda courts.

          A special national criminal court comprised of Iraqi judges 
        according to law No 23 of 1971 on Criminal Procedure Code. It 
        may be made up of a presiding judge and two associates who can 
        seek counsel from international experts or have international 
        judges acting as experts. The overwhelming majority of Iraqi 
        jurists are in favour of this kind of court as it will ensure 
        that the trials have a national character and forestall any 
        criticism from local, Arab and regional quarters. The 
        difficulty this court might encounter is related to the fact 
        that under the most recent applications of international 
        criminal law, the maximum penalty for these crimes has been 
        life-imprisonment. The maximum sentence under the Iraqi penal 
        code, however, is death for major crimes such as pre-meditated 
        murder. It would be gravely unjust to prosecute murderers with 
        the possibility of a death sentence, while war criminals and 
        persons accused of crimes against humanity face only a life-
        sentence. One solution to this dilemma would be to allow for 
        the use of the death penalty for those convicted of one or more 
        of the four major international crimes. Another solution would 
        be to have the appropriate/legitimate legislative body abolish 
        capital punishment in the Iraqi penal code to be consistent 
        with the recent applications of international law.

          Domestic Criminal Courts

    The second type of crimes is covered under the Iraqi penal code. 
With over 34 years of Ba'ath rule in Iraq, numerous and heinous crimes 
have been perpetrated. The number of perpetrators may run into the tens 
of thousands. These crimes come under the jurisdiction of Iraqi 
criminal courts. These courts are limited in number and may not be able 
to cope with all of the potential cases, without taking an unreasonably 
long time to resolve. Such delays may be a disservice to justice. That 
is why additional criminal courts will need to be set up in the 
respective Appellate Court districts, even if they are provisional and 
last only until the major caseload is handled.
    A flow chart is attached which depicts a sample organization for 
these courts and commissions. (See Appendix A1/12)

e. Defenses: The Problem of Immunity Against Prosecution
    Under Iraqi law, immunity does not pardon or annul a crime. It 
merely suspends legal proceedings for specific and special reasons. 
Lifting this immunity implies that the special reason for the 
restriction is removed and things are back to normal. In other words, 
the person enjoying immunity shall be subject to legal proceedings like 
any other person.
    The 1970 interim constitution grants this immunity to the 
president, RCC members, ministers and Ba'ath party regional leadership 
members. Abolishing this constitution by the competent authority after 
regime change will automatically lift this immunity and restore 
normality. The question of military immunity is addressed in the 
section on institutional reform, where it is proposed that immunity for 
members of the military be lifted and that they be treated as 
civilians.

f. Amnesty
    There are two kinds of amnesty. There is a general amnesty covering 
all perpetrators of crimes irrespective of their gravity and the 
persons involved. Such an amnesty has been applied in certain countries 
like Sierra Leone in 1999 and before it Argentina in 1983. It was 
unsuccessful as it had failed to restrain people's vengeful impulses 
and bring about the desired sense of justice. A general amnesty will 
not contribute to reconciliation in Iraq where the situation is much 
more complex. Objective conditions rule out this kind of amnesty in 
favour of other more relevant world experiences.
    The amnesty deemed suitable for Iraq would be a qualified amnesty 
covering only specified abuses. It has been suggested that it should 
cover lesser offenses and infractions specified in the Iraqi criminal 
law. In other words, amnesty should be extended to crimes punishable by 
a maximum of five-year imprisonment. Other crimes, including criminal 
acts with international implications, should not be covered by the 
envisaged amnesty unless all of the victims or the victims' relatives 
settle for reconciliation, restitution according to local customs, or 
compensation for damages.
    For the amnesty law to serve the purpose of reconciliation it 
should be contingent upon:

   1. The persons amnestied turning themselves in within a specified 
            time period.

   2. The persons amnestied cooperating with the truth committees and 
            fully and completely confessing their crimes.

   3. The persons amnestied giving a public apology to the victims and 
            the community as a whole.

   4. The persons amnestied pledging not to repeat their misdeeds in 
            the future.

    This kind of amnesty has proved to be a success in South Africa. 
The essence of the amnesty is to acknowledge responsibility for 
previous abuses and cooperate with the truth committee investigators. 
On the basis of the findings, the committee will decide whether the 
perpetrator will be amnestied or not for reasons to be recorded in the 
investigation file.

2. Victim's Compensation and Reparations
    Compensation to the victims of the Ba'ath regime since 1968 is a 
major component of the reconciliation process. It will soothe the 
victims' sense of having been unjustly treated and restrain their 
vengeful impulses while promoting trust between them and the new 
administration.
    The regime's victims include those who lost loved ones in its 
prisons, were arbitrarily detained and tortured, lost their jobs, were 
expelled or forced into exile, had their property confiscated, were 
physically or psychologically scarred or have suffered significant 
injury; all deserve to be compensated for damages. (See Appendix B/21 
for Draft Law enabling victim's compensation)
    The two main kinds of compensation are:

   1. Monetary compensation which may take two forms:

          a. Monetary compensation for confiscated real or personal 
        property as a consequence of displacement, exile or unjust 
        decrees.

          b. Monetary compensation for damages sustained as a 
        consequence of the regime's actions, including persecution, 
        murder, torture, imprisonment and detention on false charges.

   2. Non-tangible compensation which may also be of two types:

          a. A formal apology to the victim or their relatives by the 
        perpetrators if their abuses are covered by the amnesty or if 
        the victim or their relatives accept such a gesture.

          b. A public registry listing of the victims to remind future 
        generations of the regime's crimes and observing a certain day 
        to commemorate the victims.

3. Recovery of Misappropriated Public Funds
    The former regime consistently dispersed and dissipated public 
funds and deposited them in accounts and entities belonging to persons 
and private companies in order to conduct illegal businesses which 
serve the illegitimate purposes of this regime, unconcerned about the 
fate of this money so long as the persons in possession of these funds 
and property obey the orders of the regime.
    As public funds are part and parcel of a nation's wealth and 
therefore all means and international contacts should be made to 
recover it, specific laws are recommended to criminalize the acts of 
persons in possession of this money and those who have failed to return 
it in the legally specified time to do so.
    The laws call for all those in possession of misappropriated public 
funds/assets to return those funds/assets within 3 months from the 
issuance of this law. It is proposed that those who do return the 
funds/assets within this timeframe will be entitled to a 10% reward (of 
the value of the property). Those who do not return the property within 
this timeframe will be subject to prosecution. (See Appendix C/22 for 
Draft Law)
    In addition, it is recommended that a commission be established to 
research and identify all companies who profited from doing business 
with the prior regime. This list should be published, and it would be 
up to the Iraqi electorate to determine what to do with these 
companies: whether to prosecute, blacklist, disgorge their ill-gotten 
profits or any other measures deemed appropriate. For the sake of 
posterity, it should be well known which businesses profited from their 
association with the prior regime.

4. De-Ba'athification

a. Revocation of Ba'ath Party Privileges
    Since it seized power in 1968, the Baghdad regime has been granting 
privileges and lavish perks to members of the Ba'ath party from the 
public treasury without regard to the public's welfare. These 
privileges have been granted under laws passed by the regime, as 
handouts from Saddam Hussein himself or by arbitrary expropriation of 
public as well as personal funds and property.
    There are ample examples of these excesses such as the confiscation 
of property belonging to deported or exiled individuals, distribution 
of housing plots, large financial rewards, houses, luxury cars, and 
other special prerogatives.
    A draft law was drafted abolishing these privileges. (See Appendix 
D/31)

b. Memorialize Dark Ba'ath Era for Future Generations
    The legacy of Saddam and his regime must not be lost on future 
generations of Iraqis. It is proposed that a monument for the regime's 
victims be built in every Iraqi city with a national museum of the 
regime's inhumane practices with a chronicle of the brutal methods used 
by its security agencies. Notorious prisons and torture chambers should 
be preserved as perpetual memorials for the victims of Saddam's crimes.

B. BUILDING THE FUTURE

1. Legal Reform
    Laws affecting human rights and freedoms have been turned upside 
down and radically amended to assist the regime's violation of these 
very rights. It is, therefore, imperative to review major laws with the 
aim of restoring people's rights and dignity, including their right to 
a decent, secure life in their own country. Iraqi jurists in 
conjunction with international legal and human rights experts, have 
embarked on this project and make the following recommendations:

a. Criminal Law
    The objective of criminal legislation is to maintain social order 
and protect public safety consistently and uniformly. By contrast, the 
Iraqi regime introduced amendments to the Iraqi penal code No 111 of 
1969 in a manner contrary to human rights in order to secure its own 
survival.
    In both its legislation and its actions the Iraqi regime has 
violated (and continues to violate) every aspect of humanitarian law as 
set forth in international covenants and the Universal Declaration of 
Human Rights. This includes imposing or increasing sentences with the 
death penalty without regard to the well-established legal principles 
that:

   There is no crime and therefore no punishment without a 
        specific text in the penal code.

   Criminal laws cannot be retroactively applied.

   The accused is innocent until proven guilty.

   Sentencing decisions should be made specific to the 
        individual defendant.

   There should be no more than one punishment for the same 
        crime.

    The regime has also violated the basic rights of the accused, 
including the ban on torture and arbitrary detention, the right to 
compensation for damages, and freedom of speech.
    The general consensus of the commentators is that the original 
Iraqi penal code and Criminal Procedure Code were drafted by a 
distinguished group of jurists, legal experts and judges. However, 
successive amendments were introduced by Saddam's regime which violate 
basic human rights and social norms. The main purpose for these 
amendments was to ensure the survival of the regime.
    Nonetheless, the entire criminal code needs to be overhauled under 
a legitimate process that is in keeping with the times and 
technological advances. However, this process should be the result of a 
thorough study and examination by legal experts who should undertake 
this task in a stable environment with a functioning parliament 
(legislative body) under favourable conditions for enacting a modern 
criminal code.
    In the meantime, the offensive amendments which violate basic human 
rights should be dealt with in the interim period. The majority of the 
commentators are in favour of keeping the existing penal code and 
Criminal Procedure Code after repealing all amendments and 
modifications by the authority empowered to enact laws during the 
transitional period.
    Specifically, it is proposed to repeal all provisions regarding 
political offences in articles 20, 21 and 22 of the penal code.
    It is also proposed to amend the Criminal Procedure Code to give 
defense lawyers the absolute right to be present and to see all papers 
related to the case at every phase, and to visit their clients in 
custody without interference by any state authority.
    In culmination, a bill has been drafted repealing all amendments in 
question. (See Appendix E/28)

b. Military Penal Codes
    Military penal codes are marked by two main characteristics:

   1. Immunity and extensive powers.

          Law No 106 of 1960 on Service of Process has turned members 
        of the military into a privileged class. It grants them 
        immunity against summons and legal proceedings by civil courts. 
        Indeed, it almost absolves them of all liability. A member of 
        the military can be apprehended only when committing a 
        witnessed crime. Even in this case the accused shall be handed 
        over to the nearest military authority. The accused can be 
        brought before a civil court only with approval of the minister 
        of defense or an official authorized by him. Also, military 
        courts have extensive jurisdiction. (See Appendix F/8)

   2. Severity of punishment.

          The military penal code is also marked by its harsh penalties 
        in matters related to security of the regime or its military 
        and repressive agencies. Military courts have been granted 
        extensive powers although their member judges generally lack 
        the necessary legal qualifications to decide cases referred to 
        their courts.
          The military penal code provides for severe penalties that 
        are out of tune with modern criminal practice. Iraqi military 
        penal codes are a fairly realistic reflection of the ``carrot 
        and stick'' policy pursued by the regime. Members of the 
        military enjoy extensive privileges and immunity against 
        prosecution for crimes committed against civilians. On the 
        other hand, they are subject to extremely harsh penalties for 
        offences related to security of the regime and its military 
        institutions.

            Recommendation

   1. The jurisdiction of military courts is dealt with under 
            Institutional Reform-Judiciary.

   2. With regard to immunity, there is no justification whatsoever for 
            members of the military to be more privileged than others 
            or be elevated to a distinct class from the rest of the 
            people. This immunity must be revoked.

c. Nationality law
    Since the coup of 8 February 1963, Iraqi citizenship matters are 
governed by law No. 43 of 1963 repealing law No. 42 of 1924 and its 
amendments.
    The general consensus is that the existing law has introduced 
unjust provisions that have resulted in the tragic deportation of tens 
of thousands of Iraqis after revoking their citizenship. That is why 
this law constitutes a flagrant violation of human rights pursuant to 
international covenants and the Universal Declaration of Human Rights. 
Article 15 of the latter states that every individual has the right to 
citizenship. It also states that a person cannot be arbitrarily denied 
citizenship or the right to change it.
    It is agreed that this law and its amendments cannot remain 
effective after a regime change as hundreds of thousands have been 
victimized by it. It should be repealed in its entirety while 
recognizing the naturalization decisions taken under it.
    A review should be undertaken to compensate victims and restore 
Iraqi citizenship to those who have unjustly lost it. There should also 
be a watchdog entity established to oversee implementation of the new 
law with a view to guaranteeing people's rights.
    Work in this connection has culminated in drafting a new 
citizenship law taking into account the problems caused by previous 
laws as much as possible until a new, well-considered citizenship law 
is adopted by the prospective Iraqi parliament. It should be noted 
that, unlike most other nationality laws in the region, this proposed 
law is gender neutral. (See Appendix G/29)

d. Administrative law
    The Baghdad regime's policy since it seized power has resulted in 
rife corruption in the state apparatus. The main causes for the corrupt 
bureaucracy may be summed up in the following:

   1. Politicization of administration.

   2. The economic squeeze and low wages.

   3. Absence of administrative, legal, parliamentary and public 
            controls over the bureaucracy.

   4. Militarization of the administration.

            Recommendation

    To uplift the state bureaucracy to the level of democratic 
transformation in Iraq during the transition period, a host of reforms 
must be carried out, including:

   Repealing all laws and decrees that have politicized 
        administrative functions and terminating control of state 
        institutions by the ruling party;

   Reviewing civil service and employment laws with incentives 
        encouraging honesty and integrity with an emphasis on the 
        concept of the ``public trust'' for civil servants;

   Establishing administrative, judicial, public and 
        parliamentary oversight over civil servants;

   Preparing a development plan for the administration of the 
        bureaucracy;

   Identifying and dismissing all employees found to be 
        redundant, corrupt, or grossly negligent in their duties;

   Selecting top civil servants who are highly qualified people 
        of unquestionable integrity to set an example for their staff; 
        and

   Developing intensive plans to train civil servants at 
        various levels such as:

           Introducing modern technology in administrative 
        work.

           Promoting courteous interaction at all levels of the 
        system and renouncing condescending attitudes within the system 
        or towards the public.

           Disbanding all state functions or positions related 
        to the Ba'ath party--including those of security officers and 
        operations run by that party in the state bureaucracy.

           Reviewing all other laws governing the bureaucratic 
        function for further reform in line with the new democratic 
        era.

    Considering the crucial nature of the transitional phase and the 
fact that the Ba'ath party is primarily responsible for politicizing 
and therefore crippling the bureaucracy, a bill has been drafted 
repealing the ``leading party law'' No. 142 of 1974 and banning the 
Ba'ath party itself. (See Appendix H/30)

e. Civil Law
    The general consensus of the commentators is that the existing 
civil law of 1951 has not experienced any radical change in 
contravention of human rights. Maintaining this law will not be 
detrimental to these rights, at least and until specialized legal 
authorities are in place to re-examine the law and present relevant 
recommendations.

f. Interim laws
    These are laws expected to be required during the transitional 
period to deal with immediate situations and needs. A body of legal 
experts should be set up to examine these needs, which may be called 
``Ad hoc Legal Committee for Drafting Interim Laws.'' The Judicial 
Council may assist with this task during the transitional period.
    Immediately after a regime change, it will be imperative to pass a 
law banning the Ba'ath party and privileges enjoyed by it under the 
``leading party law'' No. 142 of 1974 as it was used as a tool of 
persecution and brutal repression.

2. Institutional Reform
    The vital state institutions have undergone extensive changes in 
their structure and functions dissociating them from the purposes they 
were originally set up to serve. Their function changed from serving 
and protecting the public to solely serving and protecting Saddam and 
his regime.
    This is why it is a critical manifestation of transitional justice 
to reform these institutions and re-establish their basic public 
services. Reform cannot be brought about by merely renaming the 
institutions that supported the dictatorship. Reform demands 
restructuring of these institutions and the laws under which they 
operate to serve the public good rather than the repressive regime. The 
most important institutions are the judiciary, institute of legal 
education, security agencies, military and prison system to name but a 
few.

a. Judiciary
    Before the coup of 17 July 1968, the Iraqi judiciary was marked by 
a measure of integrity, impartiality and commitment to the requirements 
of justice. It enjoyed a certain degree of independence in fulfilling 
its duties and making its rulings, which were characterized by the 
principle of even-handedness, solid substantiation and profound legal 
reasoning. These rulings would serve as precedents to be cited by 
litigants and other courts alike.
    Before the 1968 coup, the Iraqi judiciary ensured a modest level of 
justice in the sphere of social order and individual rights. This was 
the result of concerns by successive governments to uphold the 
integrity of this vital sphere. There is no denying, however, that all 
those governments were undemocratic and opposed to judicial scrutiny of 
their political actions, including the legislative process and the 
actions of the executive.
    After the 1968 coup the Ba'ath regime introduced the notion that 
there are no independent state powers except one political power 
assisted by legislative, executive and judicial agencies to undertake 
its responsibilities. This eliminated any notion of the separation of 
powers (legislative, executive and judiciary) and turned all of these 
powers into institutions controlled by one ultimate political power 
under Saddam Hussein.
    To eliminate any remaining role for an independent judiciary, the 
Baghdad regime dissolved the Judicial Council which was headed by the 
presiding judge of the Iraqi cassation court. It was re-invented as 
``the justice council'' headed by the minister of justice who reported 
to the President.
    As a consequence, the Iraqi judge has become a mere functionary 
following orders from the political power. The breakdown below 
demonstrates the unparalleled fragmented nature of the current Iraqi 
judiciary:

    The Iraqi judiciary is divided into the following sectors:

          i. The Iraq cassation court.

          ii. The military cassation court.

          iii. The internal security agencies cassation court.

          iv. Special judiciary courts, which are divided into four 
        parts:

                  1. The revolutionary court.

                  2. Judiciary of party organizations. (Serious 
                judicial powers have been granted to party 
                organizations.)

                  3. Judiciary of ministries and security agencies. 
                (Many courts have been set up in key ministries and 
                departments like the interior, defense and security 
                agencies--intelligence, public security and special 
                security).

                  4. Judiciary of provisional courts.

          v. Judiciary of the joint cassation court.

          vi. Judiciary of special powers. (Judicial powers granted to 
        state functionaries, police officers and others.)

    Each of the above judicial organs is completely separate from the 
other, and they are in no way connected with each other. Each of them 
is linked to a specific ministry or government agency. Each has its own 
functions defined by its own laws.

            Recommendations

    Justice and human rights have been the first victims of this 
decimation of the Iraqi judiciary. The transitional authority will have 
the urgent task of restoring the authority of the Iraqi judiciary and 
its former uniform structure as much as possible pending a more 
detailed plan to ensure the independence of this branch and its 
jurisdiction over all aspects of the legal system in Iraq. To this end 
the following steps are proposed after a regime change:

   1. Abolishing all special courts and powers granted to police, 
            security and intelligence officers as well as other state 
            functionaries. (See Appendix I/49 for Draft Law)

   2. Keeping for the time being military courts and internal security 
            courts governed by law No 44 of 1941 on military court 
            procedures. These courts will be difficult to dissolve due 
            to the service laws involved and it will take some time to 
            review these laws together with the penal codes. However, 
            the jurisdiction of these courts can be restricted to only 
            enforcing the military penal code. Civilian criminal courts 
            shall have jurisdiction over all other crimes subject to 
            the provisions of any other penal code like crimes 
            committed by a member of the military against another or 
            against a civilian.

   3. Incorporating all lower cassation courts into the Iraq cassation 
            court. A body should be created within its structure to try 
            crimes covered by the military penal code. This body may 
            co-opt an expert on the military penal code such as the 
            head of the legal department at the ministry of defense, 
            his counter-part at the ministry of interior, a legal 
            officer with a minimum of ten-years of experience or any 
            other officer whose participation is deemed necessary for 
            technical reasons.

   4. Setting up a higher constitutional court to serve as a watchdog 
            over the constitutionality of laws, by-laws and decrees and 
            their accord with the provisions of the constitution and 
            international covenants of human rights, including the 
            Universal Declaration of Human Rights.

   5. Setting up a judiciary council comprised of the presiding judge 
            of the Iraq cassation court, his deputies, presiding judges 
            of the lower cassation courts, presiding judges of the 
            appeal courts, presiding judge of the higher constitutional 
            court, his deputies, president of the state consultative 
            council, his deputies, chief of the prosecutor's office and 
            head of the justice department's inspectorate.

   6. Amending the law No. 160 of 1979 on organizing the judiciary in 
            line with the transitional justice project while ensuring 
            total independence of the judiciary. (See Appendix J/50 for 
            Draft law)

b. Internal and Other Security Agencies
    The Baghdad regime relies on special security agencies it created 
which have no relationship to the conventional internal security 
agencies operating in the Iraqi state when it was founded. These 
special security agencies are: the general intelligence (mukhabarat), 
special security, Fyda'een Saddam, the special republican guard, the 
people's army, the emergency forces and the Al-Quds Army.
    All of them are repressive agencies that have extensive powers and 
their own prisons and detention centers. They used torture and 
extrajudicial killing to terrorize the people.
    The regular internal security agencies consist of the police 
general directorate, the security general directorate, the traffic 
police general directorate, the citizenship general directorate and the 
border police general directorate.
    These agencies have been in existence since before the British 
occupation in 1918. After the occupation, the commander of British 
forces issued a police statement No. 72 of 1920 setting out guidelines 
governing police affairs. The internal security agencies developed 
further, and police service and discipline law No 20 of 1943 was later 
enacted to regulate their function. This law was more akin to the civil 
service law than to the military service law; in fact, the civil 
service law was its main source.
    The internal security agencies have been militarized under the 
Ba'ath regime and subjected to service laws similar to those of 
military service and military penal codes. They have been granted 
extraordinary immunity as is the case with military personnel.

            Recommendations

    Recommendations with regard to all of the ``special'' security 
agencies are strongly in favour of disbanding them and liquidating 
their assets immediately after a regime change as they will be 
superfluous and irrelevant.
    A draft resolution has been drawn up disbanding the special 
security agencies. (See Appendix K/37)
    To reform the relationship of the regular security agencies with 
the public, it is proposed that a new motto be established: ``police in 
the service of the people.'' These institutions should be re-built to 
focus solely on the protection of social order, individual rights and 
public safety. The laws governing these agencies should be reviewed and 
transformed into civil laws.
    The training and education of their personnel needs to be 
redesigned to ensure they serve the purpose which they were originally 
designed to serve. To ensure the people's freedoms and rights it is 
equally necessary to abolish the immunity enjoyed by these agencies 
under the Service of Process law No. 106 of 1960.

c. Military Service (The draft)
    The Iraqi people, especially young Iraqis, have suffered tragically 
as a result of the Baghdad regime's misadventures and wars with 
neighbouring countries. Hundreds of thousands of young Iraqis have been 
killed or disabled due to continued compulsory service in the army 
which has consumed the better part of life for this age group.
    An international protection force under the auspices of the United 
Nations, after regime change, will allow Iraqis to use their creative 
potential for building a new Iraq, especially the young people. The new 
Iraq must be at peace with itself, its neighbours and the world 
refraining from destabilizing the region while focusing on democracy 
building. This requires the rejection of any thinking to build a new 
war machine as it will be meaningless and incompatible with the 
aspirations of a new democratic Iraq seeking peace and goodwill.
    Accordingly, the commentators see no need for compulsory military 
service. Instead there should be a professional army of volunteers to 
defend the country against external aggression. A new Iraq belonging to 
the community of democratic states can contribute to international 
efforts to establish the principles of justice and to fight 
international terrorism.

d. Prison System
    Prison law No. 51 of 1969 was apparently passed within the 
framework of a reasonable penal policy to turn the prison system into 
an agency for reform and rehabilitation of its inmates. However, the 
regime's practices, its manner of operating the prisons, and the 
punishments meted out by the regime run counter to the aims of the 
above law. Punishment under Saddam's regime serves as revenge rather 
than reform. Amendments to the Iraqi penal code abound with 
prescriptions for capital punishment for minor offences, albeit 
primarily political offences. Indeed, the regime has introduced such 
inhumane punishment as chopping off ears, branding, amputation of the 
limbs and other prehistoric forms of punishment that are diametrically 
opposed to modern penal policy. Inhumane treatment is widespread 
against prisoners and detainees.

            Recommendation

    The following negative aspects of the prison law need to be 
eliminated:

   1. Solitary confinement as a punitive measure during which the 
            prisoner is denied regular meals.

   2. Section 7 of the prison law dealing with political prisoners and 
            detainees, which grossly contradicts democratic practice 
            under the prospective new government. Self-expression and 
            opposition are by no means a crime punishable by law, and, 
            therefore, there should be no political prisoners. This 
            section must be repealed.

    It is proposed to add the following new provisions:

   1. None of the punitive measures laid down in the prison law may be 
            enforced without an inquiry. In the course of such inquiry 
            the prisoner is faced with the alleged offence and given a 
            hearing with the right to self-defense. There should be a 
            written record of the proceeding.

   2. None of these punitive measures should entail delay of release 
            after serving the sentence passed or the order of remand.

   3. Defense lawyers shall have the right to meet privately with the 
            detained or imprisoned defendant. Foreign detainees or 
            prisoners shall have access to their respective consulates 
            or the mission representing their country's interests.

   4. No staff members of a public authority may contact any detainee 
            or prisoner without a written consent from the general 
            prosecutor.

   5. Any pregnant woman prisoner shall be accorded special treatment 
            and medical care from the date pregnancy has become 
            evident.

   6. Special treatment shall be accorded the mentally ill prisoner. 
            Upon determination of the prisoner's condition, he/she 
            shall be moved to a mental institution.

   7. Release may be obtained for health reasons if it is established 
            that a prisoner has a life-threatening condition or the 
            prisoner's condition poses a threat to the lives of others 
            in prison. Release for health reasons shall be effected by 
            a decision of the general prosecutor with a copy of the 
            decision to the ministry of labour and social affairs.

   8. Prisoner's relatives shall be informed if his/her condition has 
            become sufficiently serious.

   9. Bodies of dead prisoners shall be turned over to their relatives 
            with a detailed report on the history of illness, the 
            nature of work on the day of death, the kind of food, the 
            date the prisoner was committed to hospital, the date when 
            the condition was first diagnosed, the specific nature of 
            illness, the last day a doctor examined the prisoner and 
            the date and time of death.

    For a Draft law implementing these recommendation see Appendix L/
54.

e. Institute for Legal Reform and Training of Lawyers
    There is at present a judicial institute affiliated with the 
ministry of justice. It has two-year courses to graduate judges and 
general practice attorneys. This institute can be developed to offer 
three-year courses, including one or two years for practical training 
in the work of judges and public prosecutors. Also, its curriculum 
should be re-examined to be consistent with Iraq's future development.
    Courses at the institute can be expanded to the training of lawyers 
and legal personnel. As the institute is engaged in the training of 
judicial personnel in general, a body specialized in legal reform at 
the institute will be very relevant. Reform questions can be discussed 
with competent legal personnel at the institute.

3. Proposed Constitutional Principles
    Having universally accepted constitutional principles is important 
at any stage of governance in Iraq. No state function can be fulfilled 
by the various authorities without a constitution as the basic law. 
Serious thought must given to the issue of constitutional principles 
during the transitional period. Without these supreme rules ensuring 
people's rights and defining their duties, transitional justice in Iraq 
will be unthinkable.
    Iraq's multi-ethnic, multi-religious and multi-cultural structure 
has been further compounded by Saddam's sectarian policy. Working out 
constitutional principles for such a country will be a daunting task. A 
permanent constitution at this or any subsequent stage can only 
deliberated with the full involvement of the public as well as all 
political groups and personalities in post-Saddam Iraq.
    The transitional stage will be better served with transitional 
constitutional principles that will serve as a basis for the authority 
of state powers and a guarantee of people's rights. Such principles 
should be drafted by a team of experts--technocrats--specialized in 
law, political science, sociology and economics.

            Recommendation

    It is proposed that the future transitional constitution or basic 
law include the following principles:

   1. Separation of the three branches (legislative, executive and 
            judicial) and defining the character of each branch, its 
            structure, duties and mechanism of discharging its 
            functions.

   2. Recognition of Iraq's multi-ethnic structure comprising Arabs, 
            Kurds, Turkmans and Assyrians among other ethnic groups.

   3. Recognition that Iraq is a multi-religious society, including 
            Islam, Christianity, Judaism, Mandaeim, Yazidism, and 
            religious communities like the Shiites, Sunnis, etc.

   4. Commitment to international covenants ensuring human rights in 
            Iraq, including the Universal Declaration of Human Rights.

   5. Upholding people's basic rights and responsibilities, including 
            safeguarding property and banning unlawful confiscation.

                   Equality in rights and duties and 
                prohibition against all forms of discrimination.

                   The principle that the accused is innocent 
                until proven guilty.

                   The principle of non-retroactivity of 
                criminal and economic laws.

                   Non-interference in people's private affairs 
                like the freedom of thought, faith, etc.

                   Prohibition of torture.

                   Commitment to other related humanitarian 
                principles.

   6. Recognition of cultural rights and languages of all 
            nationalities.

   7. Freedom of worship rites and religious freedom for all 
            communities.

   8. Right of regular courts to oversee constitutionality of laws or 
            assigning this task to a constitutional court.

   9. Maintaining the present administrative provincial divisions until 
            a permanent constitution is adopted, and state 
            constitutional structures are in place in the course of 
            democratic transformation.

  10. Any other basic principles that contribute to stability without 
            controversy with groups inside Iraq.

    It should be pointed out that any attempt to enforce any of Iraq's 
past constitutions since 1925 will antagonize one group or another in 
Iraq and provoke senseless disputes. The republicans refuse to 
recognize the 1925 constitution; the monarchists refuse the republican 
constitutions; and the Kurds do not recognize any constitution that 
does not guarantee their right to federalism.
    It will, therefore, be more practical to adopt a transitional 
constitution drafted by competent experts. Such a constitution should 
ensure the separation of the branches and protect human rights and the 
basic norms of citizenship.

4. Recommendations for Authority in Transitional Phase
    It should be emphasized that the basic principle for a transitional 
authority in Iraq is that it should be comprised of Iraqis. The 
qualifications should be established such that any person serving on a 
transitional authority should have:

   1. A solid track record of service to the country;

   2. Sound moral character and unquestioned integrity;

   3. No prior associations with Saddam's regime which might taint his/
            her reputation; and

   4. No prior involvement or even appearance of involvement with 
            criminal activities or other improprieties.

    Furthermore, it is recommended that anyone with executive authority 
in the transitional phase be ineligible for participating in the first 
round of elections. Since one of the tasks of the transitional 
authority will be to prepare for the first round of elections, it is 
imperative there not be any conflict of interest issues.
    In addition, the affairs of the state should be run by technical 
experts (i.e., technocrats) in key areas. It is proposed that the 
branches at this stage are as follows:

          1. The Executive: Consisting of, first, a presidential 
        council which is proposed to be comprised of 3-5 Iraqi members 
        representing Iraq's diversified structure. Needless to say, 
        members of the presidential council must be people known for 
        their independent thinking, integrity, expertise and good 
        reputation in Iraqi society; and, second, a council of 
        ministers: comprising highly experienced Iraqi technocrats 
        known for their independent thinking and good reputation in 
        Iraqi society.

          2. The Judiciary: Represented by a judicial council of high-
        level judges. The council may be headed by the presiding judge 
        of the Iraq cassation court. Its membership may consist of the 
        presiding judge of the cassation court, of course, his 
        deputies, presiding judges of civil, family, administrative and 
        criminal courts, presiding judge of the higher constitutional 
        court, his deputies, president of the state consultative 
        council, his deputies, head of the judicial inspectorate, head 
        of the law drafting department and presiding judges of appeal 
        courts. The judicial council may be authorized to decide on all 
        matters related to judges like appointment, promotion, 
        allowances, retirement, etc. The presiding judge and members of 
        the judicial council are to have the same grade and privileges 
        as the president and members of the council of ministers. The 
        council is to have its own budget separate from that of the 
        justice ministry to ensure maximum independence of the 
        judiciary in the interests of justice and democracy in post-
        Saddam Iraq. An independent judiciary is a solid guarantee for 
        the establishment of the rule of law.

          3. The Legislative: The transitional period will be without a 
        parliament to pass laws. A safe arrangement on the path to a 
        democratic and just society is for both the executive and the 
        judiciary to jointly pass laws. Legislation at this stage 
        should not be left to the executive alone lest it establish a 
        monopoly in this sphere. In other words, the legislative during 
        the transitional period will be a combination of the 
        presidential council, the council of ministers and the judicial 
        council pending the formal approval of a permanent constitution 
        and development of constitutional institutions.

  Possible Violence and Resistance to Change

    Since it seized power in 1968 the Baghdad regime has surrounded 
itself with different centers designed to tighten its grip on the 
internal situation. These centers are a major part of an array of 
potential factors that may trigger acts of violence and resistance to 
the expected change in Iraq.
    To preempt such potential risks these factors have to be identified 
keeping in mind the situation cannot be totally controlled due to the 
political minefields created by the Saddam regime. Effective action is 
still required to minimize any losses that may be sustained as a 
consequence.

    The main risk factors and how to deal with them:

    A. Sectarianism. Saddam Hussein has used every possible means to 
ensure his survival in power. This has taken a heavy human and material 
toll affecting all components of Iraqi society. Saddam Hussein has 
always been aware how unpopular he is. To find support in the region 
and within Iraq he has played the sectarian card in his policies and 
official propaganda. He has been suggesting to Sunni army officers that 
they are the first to be targeted in the coming change and that is why 
they have to remain on his side for their own survival. His media has 
been working 'round the clock to fuel sectarian discord with a view to 
winning supporters at home and in the region.
    Saddam's ploys to use the sectarian card for winning support at 
home and in the region must be effectively countered by a plan focused 
on exposing the dangers of sectarianism.

    B. Involvement in Saddam's Crimes. To tie the fate of as many state 
officials as possible to his own, Saddam has involved them in his 
crimes as members of the Revolutionary Command Council, ministers, 
security officials, military commanders or party commissars.
    People involved in lesser abuses than war crimes, crimes against 
humanity, torture or genocide under international criminal law, should 
be given hope that they may be amnestied in a general pardon and 
national reconciliation process. It will be also useful to cite article 
129 of law No 23 of 1971 on Criminal Procedure Code concerning the 
possibility of appeal bargains and amnesty to those who admit to their 
abuses and provide information about other suspects in the interests of 
a proper investigation. Such steps will give those people hope and 
encourage them to defect.

    C. Economic Benefits and Bribery. During his years in power Saddam 
has created an army of beneficiaries, whether by perks or privileges to 
officers serving in the republican guard and special republican guard 
and other personnel in the security agencies, his body guards, etc. 
Others are bought off by cash rewards distributed every now and then. 
Contractors are bribed by lucrative deals. Even dissidents and 
expatriates have been stigmatized with salaries, allowances and grants 
to start up businesses. Others have been hired as consultants to 
government oil companies.
    The discourse to be adopted in this regard should be reassuring to 
those who have legitimately benefited from doing business with the 
regime, who have received payments for certain normal services and 
those who have won contracts in clean bidding.

    D. New Class. Saddam has created a new class of tribal chiefs who 
have been given money, arms and limousines in return for controlling 
their tribesmen.
    Those tribal leaders can be won over through contacts they still 
have with Iraqi exiles or by a clear message that they can keep their 
privileges so long as they side with the people against dictatorship.

    E. Score Settling and Vengeful Acts. Saddam Hussein and his cohorts 
are guilty of war crimes, genocide, crimes against humanity, 
extrajudicial killings, plunder, rape, torture, displacement and 
unlawful expropriation of property. These atrocities have created 
entire groups of victims impatient for revenge and score-settling when 
the opportunity presents itself after a regime change with a possible 
breakdown of security structures. That is what happened during the 
March 1991 uprising. Actions by victims or their relatives are bound to 
be accompanied by common criminal acts. After all, crime is a 
phenomenon seen in all societies with various degrees depending on 
economic, political, psychological, social and genetic factors. Iraqi 
society is no different. It has its own criminals who are a product of 
these conditions. Saddam's regime has further aggravated these factors 
by its inhumane policies in all spheres. Indeed, it has released all 
common criminals some of whom are likely to revert to their old habits. 
The period immediately after regime change might offer these criminals 
an opportunity to engage in acts of killing, plunder, looting, etc.
    To foil people seeking revenge and the potential acts of common 
criminals, it is necessary to take a host of decisive measures, 
including:

   1. Impose a 24-hour curfew on the first day to be gradually relaxed 
            according to the extent of security and order established.

   2. Order all police forces to be on their guard and arrest all 
            offenders.

   3. Organize military patrols by coalition forces in all major cities 
            to prevent lawlessness, especially against vital utilities 
            and key government facilities.

   4. Instruct tribal and clan leaders to use their authority to 
            control rural areas.

   5. Propagate the new laws and decrees via all mass media, including 
            the use of airplanes. A stern warning is to be issued 
            against any revenge acts targeting government officials as 
            a crime punishable by law. It should be made clear that 
            law, order and justice are a prime concern and that all 
            criminals against the people will be brought to trials.

   6. Give explicit orders to the border guard and army units stationed 
            on the border to tighten their control and block all escape 
            routes that may be used by wanted criminals or for 
            intervention by other forces to cause disturbances in Iraq.

   7. Make appeals to all hospital, ambulance, civil defense, water, 
            electricity and other utility personnel to immediately 
            report to duty.

   8. Make appeals to all government employees and the public as a 
            whole to maintain law and order and protect state property, 
            including museums, public buildings and other facilities 
            against any acts of sabotage or vandalism.

   9. Assemble investigation teams, truth and reconciliation committees 
            and criminal courts without delay in order to reassure the 
            people that the new administration will safeguard their 
            rights.

5. Public Education and Awareness of Human/Civil Rights
    Legal awareness is lacking even among Iraqi intellectuals. The 
reason is indifference by Iraqi society and disinterest by the state 
towards laws as they have both been in the grip of despotism.
    Awareness of laws and rights will help people shed the despotic, 
dictatorial thinking in favour of tolerance, understanding the need for 
public participation in governance as well as the peaceful transition 
from one administration to another in government. People with good 
legal understanding of their rights will be in a better position to 
identify danger signs which run counter to the rule of law and 
democratic practice. Law, after all, is the outcome of such practice 
when it is enacted by democratically elected legislatures.
    How can public awareness of their rights be promoted? It can only 
be fostered by harnessing all required resources in society towards 
this end. We have to start with the education system and the media as 
well as laws that will give people a sense of security and ensure 
justice for them. For this awareness to be in step with the new 
reality, the laws that are passed must meet people's actual needs.
    Considering the appalling state of culture and media in Iraq due to 
the regime's policy, a forward-looking vision has to be developed for 
Iraqi culture and media in terms of public awareness and methodology. 
The Saddam regime has politicized culture and turned the media into a 
propaganda machine serving its own purposes. That is why it is 
imperative for the future Iraqi media to be independent and unfettered 
promoting freedom of expression and transparency. The media will act as 
a vox populi reflector and a watchdog over government actions and state 
institutions. Another prerequisite of media and cultural work is free 
access to information and educating the young Iraqi generation in a 
spirit of tolerance and multiculturalism.
    That is why it is important to focus on promoting legal awareness 
as well in the curricula of journalism faculties and the media as a 
whole. Teaching legal subjects will contribute to a public culture that 
may serve as a mass education for democracy while excluding the culture 
of violence and personality cult. Saddam's regime has undermined 
rational, humanitarian education, misguided the young generation and 
trampled such values as fair play and equal opportunity. Attention 
should be paid to re-educate the young generation for its members to be 
good, well qualified and scientifically equipped citizens capable of 
safeguarding the people's democratic gains.
    Iraq is the land of great civilizations that prospered in climates 
of inter-cultural coexistence. To revive such positive elements in our 
heritage, publications and mass communications should be free from all 
forms of censorship. The private sector should be enabled to compete 
with state-owned media, and this also goes for the arts in general as 
an essential component of national culture.
    The rule of law will be jeopardized in the absence of legal 
awareness on the part of both government employees and the public. It 
will be absurd for state laws to remain the domain of scholars and 
experts. These laws should be part of the public domain for their 
enforcement to be meaningful. (See Appendix M/66 for Draft Law to 
Create Human Rights Organization in Iraq).

                    UNITED STATES INSTITUTE OF PEACE

           Conclusions of USIP Roundtable on Lessons Learned
                    From Prior Vetting Processes \1\
---------------------------------------------------------------------------

    \1\ With the encouragement of senior NSC staff, the United States 
Institute of Peace organized a roundtable discussion on January 9th, 
2003 involving former U.S. government officials and non-governmental 
experts on the experiences of several countries with efforts to screen 
and purge the security forces and civilian administration during a 
transition from a repressive system to democracy. Prior cases that were 
discussed included post-WWII Germany and France, the purge of the 
military in El Salvador, de-Stasification of various sectors following 
German re-unification, and police vetting programs in the Balkans, 
Haiti and elsewhere.
---------------------------------------------------------------------------

                           (January 24, 2003)

I. Why is vetting critical to the success of a democratic transition?
    Vetting is necessary in order to:

   1. Sanction those who have committed abuses and remove them from 
            positions in which they could continue to do so.

   2. Instill public confidence in the reformed and cleansed 
            institutions of government. The vetting process can serve 
            as a means of inculcating new social norms, promoting 
            government legitimacy, and building a new sense of civic 
            responsibility and national identity. This emphasis is 
            increasingly preferred under international standards to the 
            Point (1)'s focus on patently punitive vetting.

   3. Render the handling of past abuse more manageable. Even if 
            prosecutions occur for abuses of the ousted regime, there 
            will be very few trials relative to the number of potential 
            cases.

   4. Contribute to public order. A hesitant, arbitrary or incomplete 
            vetting process can likewise result in personal vengeance, 
            festering grievances, and lack of public trust in 
            government.

II. Who does the vetting?
    Vetting may be conducted by (1) one centralized government agency 
or specially established commission; (2) separately by each ministry 
and agency; (3) by foreign occupation authorities; or (4) by an 
international interim authority; or (5) by a combination of the above. 
In the last two cases, it will be essential that carefully selected and 
publicly credible locals participate in or advise the process. If local 
authority is to have responsibility for the vetting process, 
international pressure can be important to ensure implementation and 
enforcement of vetting decisions.
    Authority: In most cases, vetting is based on the enactment of a 
law, the imposition of a decree by governing authority, or the 
provision for vetting in a peace accord. Vetting will often be subject 
to charges of arbitrariness and ``victor's justice,'' making it 
important to clarify the standards and procedures to be applied. A 
greater expectation applies in this regard in the vetting of the 
civilian sector than security forces. Whenever possible, make use of 
local laws and legal principles. This legitimates the process in the 
eyes of both accused and surrounding public.

III. Who gets vetted and when?
    Vetting requires balancing the need to purge with the necessity of 
``keeping the trains running.'' The need to have sufficient personnel 
in place to run essential government functions, especially security 
functions, may constrain the thoroughness of an initial purge. Before 
beginning any purge, determine (a) the availability of qualified 
replacements; (b) the time it will take to recruit/train new personnel; 
and (c) the level of disruption that will ensue in any institution 
during a gap between dismissed and new personnel.
    It is essential to determine--and prioritize--which positions in 
which sectors should be vetted lest they pose a threat to immediate 
post-conflict security and undermine public confidence in the 
transition. (In various cases, this has included the military, 
security, intelligence forces, judiciary, teachers, financial 
officials, media, and health professionals.)
    In the initial phase, vetting must focus on removal of unsuitable 
personnel from police and security forces. This serves to enforce 
immediate public order for the interim administration, break up cabals 
of corrupt or criminal officers, and dissuade victims from taking 
private vengeance.
    Vetting of prosecutorial and judicial personnel must keep pace with 
the vetting of security and police forces in order to ensure a 
functioning justice system. Leaving corrupt judges in place can 
undermine efforts to reform police forces and can facilitate a return 
to police abuse.
    Vetting must take place in all areas of government, and often in 
the private sector as well as the public sector, in order for the 
public to feel justice has been served. Private sector vetting may 
follow its own procedures, but should be monitored so as not to violate 
the democratic principles that will govern under the new regime.
    As seen in several prior cases, accusations and purges can easily 
get out of control. Vetting should be thorough, particularly in the 
security forces, police and judiciary, but should be constrained.

IV. What Criteria are applied?
    In previous vetting programs in various countries, the following 
categories of implicated personnel have been excluded from key 
positions on the basis of vetting:

   Senior officers (e.g. from colonels up), except as truly 
        needed;

   War criminals and human rights abusers;

   Secret police informants;

   Senior party officials;

   Drug traffickers/members of criminal syndicates; and

   Those deemed unqualified based on professional history and 
        competence.

V. What sources of information provide the basis for vetting?
    Ideally, vetting should be based on a comprehensive review of as 
many sources of information as possible given the possibility of 
incomplete, missing, and falsified records. It is necessary, therefore, 
to be able to fuse/filter disparate sources of information and to 
account for distorted/politically-based allegations.
    It is imperative to immediately locate, secure and restrict access 
to all relevant personnel records, intelligence files, court and prison 
records, and other relevant databases as quickly as possible. These 
will provide the main basis for vetting. Unsecured, these records will 
be destroyed, falsified, or used for blackmail. In addition to records 
of the new deposed government, vetting can draw on data from publicly 
available news sources, international human rights groups, and foreign 
intelligence sources. Compile as many records and sources of 
information as possible before the transition.
    Elements of vetting review:

   1. Records and data sources as noted above.

   2. Publication of candidate lists (ideally in local papers and in 
            refugee centers abroad), with a request for the public to 
            submit any relevant information regarding candidates.

   3. Applicants should be required to self-report their history and 
            activities, with any falsehood being an immediate 
            disqualifier. Self-reported histories can be crosschecked 
            against available records and witness testimony. 
            Misrepresentations, even impersonations, are common.

   4. Vetting review must not only clear an individual of culpability 
            for abuses of the old regime, but also determine his/her 
            objective qualifications and ability to adapt to the norms 
            and practices of a new, accountable and civilian-led 
            democratic government.

VI. What are the key procedural considerations?
    Fewer cases versus faster processing: Vetting can target and purge 
specific individuals based on past abuses. This is by definition 
retrospective and retributive, and consequently a higher due process 
standard is required. Alternatively, all current holders of the 
designated positions are required to re-apply. In this case, vetting is 
prospective and, like routine civil service screening, a lower due 
process burden can be applied to the program. In the second scenario, 
continuation of the applicants in their jobs is contingent on eventual 
approval in the vetting process--making it possible to more quickly 
remove targeted individuals while review of other cases proceeds more 
slowly.

    Due process: Three due process questions routinely arise: (1) Is 
there a right of the vettee to confront the evidence against him/her? 
(2) Is representation by counsel permitted? (3) Can vetting decisions 
be appealed? Provision for a limited appeals process is helpful, 
particularly for civilian positions, in that a successful appeal by an 
accused abuser vindicates the legitimacy of the vetting process.

    Standardization: Vetting rules may (1) be rigid and uniform, to 
expedite the process and avoid the appearance or reality of 
arbitrariness, or (2) allow for subjective evaluation, taking into 
account such factors as severity of misdeeds, mitigating factors, 
coercion or other reasons for taking the action in question, later 
remorse/change in conduct, or distance in time from the abuse.

    Duration: Dismissal from the security forces may be permanent, 
given concern over renewed abuses. Civilian vetting, on the other hand, 
is usually of temporary duration (typically 5-10 years) to allow 
breathing space for government and society to re-create itself, after 
which they move to a level playing field.

VII. What happens to the purged?
    Types of sanctions which may result from vetting: Those sanctions 
which have been employed in various countries include employment 
dismissal; exclusion from appointed office; exclusion from elected 
office; exclusion from designated private sector positions or 
professions; denial of benefits (including government pension); 
exclusion from suffrage.

    Prevent the purged from becoming spoilers: Those vetted out cannot 
simply be sent home, but must be placed in some sort of organized, 
remunerated activity. This temporarily ensures their livelihood so they 
do not turn to criminal activity, facilitates observation of their 
interactions with former colleagues, and prevents them from organizing 
a troublemaking underground force.

VIII. What happens to those who survive the vetting process?
    Probation: Those retained--particularly in the police and security 
forces--should be retained on a probationary basis. The probationary 
period should be long enough to (1) allow refugees to return and 
provide additional relevant information, and (2) permit monitoring of 
performance to ensure suitability. This may last up to two years. It 
may be useful to put outside personnel in place to closely supervise 
the work of these remaining employees during this period.

                               __________

                    UNITED STATES INSTITUTE OF PEACE

            Project on Constitution-Making, Peace Building,
                      and National Reconciliation

    Since the age of Enlightenment and the revolutions in France and 
the United States, constitutionalism has played an ever-increasing role 
in nation-building and in the establishment of the rule of law. At the 
dawn of the twenty-first century, nations of virtually every region of 
the world recognize the role of constitutionalism in their own 
political and legal systems. The recent and dramatic increase in the 
number of new and transitional nations adopting democratic 
constitutions attests to the significance of constitution-making to 
democracy, national reconciliation, and political development. In many 
countries making the transition from civil war, one of the first tasks 
undertaken is the drafting of a new constitution. Insofar as the 
constitution articulates the vision of a new society, defines the 
fundamental principles by which the country will be reorganized, and 
redistributes power within the country, it can play an important role 
in the consolidation of peace.
    A variety of projects and publications have focused on the 
substance of constitutions in response to conflict, often highlighting 
the role of such concepts as federalism or separation of powers. 
Surprisingly little work has been done, however, to examine the extent 
to which the process of creating a constitution can become a vehicle 
for national dialogue and the consolidation of peace, allowing 
competing perspectives and claims within the post-war society to be 
aired and incorporated. This is the focus of the Project on 
Constitution-Making, Peace Building, and National Reconciliation, co-
sponsored by the United States Institute of Peace and the United 
Nations Development Program.
    Many issues to be confronted in the crafting of a post-conflict 
constitution can accentuate fundamental differences and lead to renewed 
factionalization. Choices made as to the timing of the process could be 
perceived as favoring one group over another. The role and organization 
of political parties in the constitution-making process may reopen old 
wounds or recall ethnic or other rivalries. The choice of electoral 
systems for a constitutional convention could have similar effects. The 
subject of human rights, and the question of participation in the 
constitution-making process of those who recently perpetrated major 
abuses, may be so volatile as to incite renewed accusations and 
conflict. The project is also considering certain substantive issues 
that, while outside the project's primary scope, are potentially 
divisive and impact on questions of process. On the other hand, the 
constitution-making process can be a potent element in the reduction of 
conflict. The more that the constitution-making process develops a 
sense of confidence in parties to the conflict and in the public in 
general that the new constitutional framework will protect their 
interests and will provide them with non-violent avenues for defending 
their rights, for example, the more it will contribute to the building 
of a stable peace. The project seeks to develop guidelines for 
strengthening such positive dynamics in the post-conflict context.
    The project's inter-disciplinary Working Group is chaired by 
Professor Bereket Habte Selassie, formerly chair of the Constitutional 
Commission of Eritrea and currently of the University of North 
Carolina. The membership of the Working Group includes a diverse group 
of experts in comparative constitutionalism, conflict resolution, 
development, political science, and sociology, and members of the donor 
community involved in assisting post-conflict societies.
    A series of case studies papers has been commissioned on the 
constitutional processes of nearly 20 countries around the world. The 
Working Group is joined by relevant country and regional experts for 
its consideration of each case study. It is not anticipated that the 
series of case studies will produce a monolithic model for 
constitution-making. On the contrary, they will likely offer a range of 
different and perhaps even inconsistent approaches, the use of which 
will depend on the various social, cultural, political and economic 
conditions existing in a particular country. Through this process, the 
Working Group is attempting to discern the variables that underlie 
these different approaches, evaluate their respective effects, and, by 
applying a uniform analytical framework across a broad range of cases, 
derive common lessons regarding the complex process of constitution-
making and national reconciliation.
    Begun in 1991, the current phase of the Project on Constitution-
Making and National Reconciliation is anticipated to be completed in 
early 2003. A final report will incorporate an assessment and synthesis 
of lessons learned, the identification of pitfalls to be avoided when 
constitution-making occurs in the aftermath of violent conflict, and 
the articulation of practical guidelines to be considered in the design 
of post-conflict constitution-making processes in the future, to 
maximize the potential of these processes in the consolidation and 
maintenance of peace.
    The project includes an examination of constitution-making 
processes in the following countries:

        Bosnia and Herzegovina; Brazil; Cambodia; Colombia; East Timor; 
        Eritrea; Ethiopia; Fiji; Hungary; Namibia; Nicaragua; Poland; 
        South Africa; Spain; Uganda; Venezuela; Zimbabwe.

    The following is an inventory of the issues to be considered in 
each of the case studies:

I. General Issues Pertaining to Conflict Resolution and Constitution-
        Making
    What ramifications does the nature, duration, and intensity of the 
conflict, and the character of its termination, have for the 
constitution-making process? What are the limitations on using the 
constitution-making process as a means of conflict resolution and peace 
building? How should those involved in the constitution-making process 
evaluate which post-conflict issues are not appropriate for resolution 
through the constitution-making process and are best left to political 
negotiation? Are there circumstances in which constitutional reform 
would be preferable to creating a wholly new constitution? How is that 
determined? To what extent does the constitution-making process need to 
be coordinated with other post-conflict political negotiations that may 
deal with some of the same issues that will arise in the constitutional 
context?
    From the perspective of building a stable peace, are there 
different dynamics between constitution-making in a post-independence 
scenario (i.e., drafting a new country's first constitution) and 
replacement of an existing constitution? How and to what extent have 
previous exercises in constitution-making included the use of 
negotiation techniques? What lessons can be drawn regarding the 
integration of traditional, indigenous methods of conflict resolution 
and public deliberation into the constitution-making process? How 
should those involved in the process determine whether to refer to the 
former constitution as a starting point or to intentionally begin with 
a blank slate? In those cases where a settlement agreement formed the 
basis of the constitutional process, are there steps which were taken 
or procedures followed in the establishment of the settlement agreement 
that recommend themselves for use in future constitutional processes? 
In what types of cases should constitution-making be anticipated and 
incorporated into the peace agreement, in the form of constitutional 
principles, a timetable for constitution-making, or mandating the 
structure of the process? Shaping the constitution-making process as an 
exercise in political negotiation and compromise risks producing a 
short-term accord at the expense of building strong democratic 
institutions and longterm stability. How can this be avoided?

II. Structure of the Process
    Numerous choices need to be made with respect to establishment of a 
constitution-making authority that may impact on its relationship to 
post-conflict peace-building. Should a constitutional commission be 
established to organize the broader constitution-making process, 
including public education and consultation, and the actual drafting of 
the document? Alternatively, should a country move directly to a 
constitutional convention or similar process? Who should determine the 
mandate, timetable and rules of a constitutional commission or 
constituent assembly? Should the process include the election of a 
constituent assembly or a constitutional convention? Are there 
circumstances where an ordinary parliamentary assembly could be used 
for this purpose? Who will actually draft the constitution? Should a 
smaller committee be designated for this task? How will the drafters be 
chosen? To the extent that elections are held for a constitutional 
convention, what electoral systems should be employed, and how will the 
choice of electoral systems in the constitutional process affect the 
choice of future electoral systems? Should there be any provisions for 
judicial or other review of the actions of the constitution-making 
body?

III. Public Participation in the Process
    Some recent constitutional processes which have attempted to 
address societal conflict have placed a fair amount of emphasis on 
public participation. In considering the potential costs and benefits 
of public participation in the constitution-making process, there are a 
number of questions and issues which arise. Should the process, for 
example, include one or more plebiscites which will allow the public to 
decide basic constitutional issues prior to the preparation of the 
draft constitution and/or to approve or reject the final document? 
Should there be public fora and/or formal arrangements for submission 
of comments by members of the public? If there are to be public fora 
for consultation and input, at what stages should they occur (e.g. 
before the beginning of the drafting process, following the completion 
of an initial draft or a draft of basic principles, or during the 
course of the drafting process.)? Should there be a program of public 
education associated with public participation, and, if so, what should 
that program entail? Should it include public education on the 
democratic principles and international human rights norms that need to 
be incorporated into the constitutional framework? Should the process 
of public consultation and participation facilitate the public airing 
of grievances by different groups in order to factor these issues as 
appropriate into constitutional deliberations? As part of the public 
education process, should this include exposure of each group within 
society to the needs and grievances of the others? What unofficial 
function(s) should be played by civil society during the course of the 
constitution-making process? Also, how important is the formal 
inclusion of civil society groups in the official process? Should 
certain sectors or institutions (e.g., the military, the church) be 
formally represented in--or intentionally excluded from--the official 
process?
    On the other hand, the question of public participation raises the 
basic question of its scope and limitations. A balance may need to be 
achieved between the desire for completing the process expeditiously 
and the concern for the democracy of the process since public 
participation and public education may serve to prolong it. Are there 
circumstances in which, to advance the interests of short-term peace-
building or long-term democratization, less public participation in 
(and pressure on) the constitution-making process would be preferable, 
confining the process--or at least certain parts of it--to a more 
restricted group of elites? Under what conditions is a more 
participatory process likely to produce a constitution that is 
democratic and protective of human rights and the rule of law--or less 
so? Are there measures that should be considered to ensure that the 
public participation component does not result in unrealistic public 
expectations or assumptions about the constitution-making process and 
the resulting document? What are the main principles or issues that the 
public should appropriately discuss and decide? Are there some less 
appropriate for this public approach? Should the public be involved in 
the final adoption or ratification process? Who should decide the level 
and structure of public participation? Finally, in connection with all 
of these issues, it is important to consider the extent to which the 
ultimate legitimacy of the constitution will depend upon the scope of 
the public participation in the process.

IV. Democratic Representation
    Just as the scope of public participation raises the question of 
the ultimate legitimacy of the process, so does the issue of designated 
representatives and the method of their selection. Should the 
composition of a post-conflict constituent assembly reflect the 
distribution of power between political parties in parliament, or the 
ethnic, religious, or regional make-up of the country, or simply the 
results of a popular vote for this purpose? What role should political 
parties play in this process? What steps are appropriate to prevent an 
existing or transitional government from dominating or controlling the 
constitution-making process? To what extent, and how, should the 
constitution-making process ensure the representation and protection of 
minority interests? How can the guaranteed participation of specific 
ethnic, religious or political groups in the constitutional commission 
or convention be reconciled with democratic principles or conflict 
reduction, particularly if similar guarantees are not established for 
all in countries that have large numbers of distinct groups? What are 
effective strategies to ensure that the resolution of ethnic conflict 
will not so overshadow other concerns in the process as to compromise 
its legitimacy or undermine the development of sustainable democratic 
institutions? Where the prior conflict has involved serious human 
rights abuses, should participants in the constitution-making process 
be vetted for their involvement in those abuses? If so, how should the 
vetting be conducted? When factions or regions reject the peace 
settlement or the legitimacy of the new government and constitutional 
process, how should the constitution-making process deal with this 
refusal to participate?

V. The Timing and Sequencing of the Constitution-Making Process
    The general issue of the timing and duration of the process may 
relate to the resolution of preexisting conflict. For example, are 
there any conditions precedent in the post-conflict phase for the 
constitution-making process to begin? Are time limits beneficial? A 
prolonged process may give an unfair advantage to a particular dominant 
faction thus leading to renewed conflict. On the other hand, it may 
permit other parties to build their strength and become better 
positioned to engage in constitutional discussions. Are there 
circumstances in which, from a conflict resolution perspective, a fast 
or attenuated constitution-making process is preferable? Do lessons 
emerge from previous cases of transitional constitution-making with 
respect to the sequencing of steps in the process? In addition, if the 
process includes the preparation of one or more drafts of the 
constitution, at what stage(s) in the process should those drafts be 
prepared and presented? If the process will include plebiscites, when 
should the plebiscites occur? If a constituent assembly is used, when 
in the constitutional process should it be elected? If the 
constitutional process is the product of a peace agreement, to what 
extent should the peace agreement determine the sequencing of the 
events in the process? Are there circumstances where it may be 
preferable to adopt a transitional charter which represents the 
establishment of consensus with regard to certain constitutional issues 
while postponing the consideration of more contentious issues to a 
future date?
    In some cases, secessionist or opposition groups initiate a 
constitution-making process prior to independence or a transition, 
i.e., while the conflict is still ongoing. What are the dynamics of 
this process? When is an international role at this stage helpful and 
when can it exacerbate conflict?

VI. The Role of the International Community
    Countries emerging from violent conflict will almost always need to 
depend upon the international community to varying degrees for the 
resources--financial, technical, and human--which will be necessary in 
order to conduct the constitution-making process. In some cases, a role 
for the international community in the constitutional process may 
result from its role in brokering a peace agreement. International 
involvement in the constitutional process may also contribute to 
international recognition of a newly independent state or acceptance of 
a new regime's legitimacy. On the other hand, the legitimacy of the 
constitutional process may be undermined where the international 
community is perceived as attempting to impose the process or result.
    What are the variables that determine the appropriate role for the 
international community in terms of conflict reduction or the 
legitimacy of the process? To avoid the perception of foreign 
domination of the process, how important is it for international 
assistance to incorporate a multi-disciplinary approach that includes 
the consideration of sociological and cultural factors? Should the 
international community play any role in the selection of the 
participants in the process, including the possible vetting of 
participants where appropriate in the aftermath of serious human rights 
abuses? If so, how? What forms and methods of foreign assistance to the 
constitution-making process are most, and least, helpful? In the case 
of secession or the termination of occupation or colonization, is it 
helpful to have constitutional experts from the former ruling country 
involved in the process? What level of coordination is appropriate 
between the often multiple foreign actors who may even be providing 
assistance to different local factions in the constitution-making 
process?
    Where the United Nations has become directly involved in mediating 
or resolving a conflict, the constitutional process may be dictated, at 
least in part, by UN resolutions. Under what circumstances should UN 
resolutions specifically mandate UN involvement in the constitution-
making process? Similarly, are there circumstances in which regional 
inter-governmental organizations should become involved in the 
constitution-making process?

VII. The Role of International Law.
    Are there emerging international norms relating to the 
constitution-making process or relating to the substance of any 
constitution? If so, how should these standards be determined and 
integrated? Several recent constitutions explicitly deal with the 
status of international law relative to domestic law and also directly 
incorporate international human rights standards into the constitution. 
Particularly in a post-conflict context, where concerns regarding the 
rights of various parties and contested international legal claims may 
be crucial to the consolidation of peace, how should these issues be 
addressed in the constitution-making process? Who should decide?
VIII. Essential Issues of Substance
    Certain fundamental issues, such as the power and status to be 
accorded to geographic subdivisions, and the centralization or 
devolution of power, may be so integral to the construction of a stable 
peace as to be inseparable from an examination of the constitution-
making process. When, how and by whom should such basic issues should 
be decided? Some modern constitutions contain certain immutable 
principles that are designed both to preserve the stability of the 
regime and to ensure against the recurrence of past abuses. Should a 
postconflict constitution include such immutable principles? If so, how 
should the constitution-making process determine such principles?

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