Introduction
Most theories of the constitution require that the judiciary be separate and independent from the government so as to ensure the rule of law. This implies that the law is enforced consistently and impartially without undue influence from internal and external forces and no matter who is in power.[1] The central principle in Iraqi judicial system holds that judges should reach their decisions without any political pressure. The experts who framed the constitution of Iraq shared a commitment to independence of the judiciary, and they structured the government to ensure that the court judges would have appropriate measure of independence from the legislative and executive branches of the government composed of politicians. Post war in Iraq saw many political pressures on the judiciary from different political bearings.[2] This section of the thesis will discuss politicization of the judiciary, how and why the politicians exercise pressure on the judiciary in general and also particularly in Iraq. Furthermore, this section will discuss what is wrong with the laws and with the constitution of Iraq. The ways the politicians exercise their pressure will also be elaborated in addition to how bad the situation is in Iraq. Moreover, how the situation affect the judicial independence and the rule of law in Iraq will be discussed deeply as well as how the courts work under the pressure, and how they try stopping the pressure. Lastly, the thesis will propose a solution to the politicization of the judiciary in Iraq before summarizing with a conclusion.
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1.0 The meaning of Politicization of the judiciary
The politics role in the decision making of the judiciary, and the political influence on the judiciary has been a subject of debate for many decades. There are various forms of political influence on the judiciary and they vary considerably. Mallat[3] noted that the question about judicial politics are interwoven often with the question about the court’s role in any government. For example, does the responsiveness of the decision of the judiciary to different political pressures undermine the core functions of the courts? That is to uphold at all times the rule of law? And if the decisions of the judiciary are shaped by the personal political views of the judges, from where do the courts get the legitimacy of overturning policy judgements of the institutions that are elected such as the parliament, president and the regional or state governments. According to International Crisis Group,[4] most people agree generally that politics plays some role in shaping the decision making of the judiciary. However, this general consensus masks the broad diversity of conceptions, views, and theories of how the politics influence the behaviour of the judiciary. Simply put, the nature of the political forces that affect the courts and the ways in which these political forces are brought to bear.
Defining politics is quite capacious. David Easton[5] defined and described politics as the allocation of values authoritatively for a society, while Harold Lasswell defined it as who gets what, how and when.[6] In other words, politics can be described as the fights over whose values and views should prevail in the scarce resources allocation of the society, the struggle over who received different social benefits and also who bears the costs. Never the less, multiple conception of the meaning of politicization of the judiciary, and how it affects the judiciary differ markedly. Therefore, what follows will be a rough map of several possible meanings politicization of the judiciary.
Politics as a discretion of the judiciary
Judicial discretion perhaps is the broadest conception of how politics applies to the courts. Based on this, decisions of the judiciary are political if they are not dictated strictly by the accepted legal authority sources such as relevant precedent, tradition, history or test. That is, when a court judge exercises their personal judgement, they had resorted to a criteria that is outside the law and hence rendered a political decision. For instance, Richard[7] observed that the Supreme Court is political when deciding the constitutional cases in the sense of exercising and having discretionary powers as capacious as that of the legislature
Middle East Watch (Organization)[8] stated that as an empirical matter, it is undeniable that the judges in reaching their decisions enjoy significant discretion. The law by its nature is incapable of providing objectively correct answers to several legal disputes, therefore, providing judges with a fair measure of an open space to operate despite the fact that different norms set acceptability boundaries around the ways in which the judges exercise their judgement, the discretion idea entails their personal choice
Despite this basic empirical validity, this politics conceptions seem too broad in advancing the understanding of the meaning of politicization of the judiciary in meaningful ways. Everyone are in agreement that the authoritative sources of law are typically of often indeterminate in many litigant cases. Therefore, judges exercise personal judgement routinely. As can be seen in many court cases, judges of equal training, commitments and intelligence to uphold the rule of law reach different conclusions in the same case[9]
Fact specific adjudication, case-by-case politics
A second possible meaning of politicization of the judiciary involves the common practice in judiciary that arguably enhance the discretion of the judges and hence is political for the similar reasons to those the thesis discussed in section one. The primary idea is that the judges politicize the judiciary when they fail in deciding the cases in accordance to the bright line and clear rules, bur rather use case specific narrow criteria.[10]
Such kind of judges’ behaviour might be viewed as politicizing the judiciary in two reasons, first, when the courts decline embracing the clear legal principles, it provides the courts with the leeway of reaching the outcome they find genial without themselves committing to any specific rule of law. On this view, United States [11] asserted that weighing all the circumstances and facts then rendering a judgement that is highly contingent is more legislative in nature than judicial. Minimalist, case-by-case decision making inevitably leads to political, results-oriented, unprincipled jurisprudence.
Secondly, by the courts failing to articulate rules that are clear, the judges expand or even preserve the discretion courts will enjoy in the future cases. By this, the understanding is that the critical norm of making decisions in courts is that they must justify publicly their rulings with rationales that in future cases will bind them through stare decisis force.[12] When the courts in their decisions fail to articulate such principles, they leave wider legal questions for another future day, which implies more discretion on the judiciary, and hence more decision making in the future that are result oriented.
1.3 Individual policy preferences as politics
The most common meaning of politicisation of the judiciary perhaps concerns the judges tendency in voting the policy results they find in the immediate cases before them to be most attractive.[13] Courts act politically because or when the judges cast their votes in line with their short term political ideologies of policy preferences. This meaning makes an assumption that judges exercise discretion because without it, there will be no room for pursuing of their policy goals. Just like the other government officials, judges employ their power in cementing their personal views of public policy into law. The judges who are politically conservative would vote consistently vote for conservative results, and the judges who are politically liberal vote consistently for liberal results.[14]
This conception of politicization of the judiciary is associated generally with attitudinalism, a school of thought prominently championed by Spaeth and Segal.[15] The duo together with other scholars have empirically demonstrated that, in certain cases at least, there is a significant association between the pre-existing political views of the judges and their votes. Ricchiardi[16] observed that at all federal judiciary levels, especially the Supreme Court, the variance of voting patterns of the judges correlated with their political ideologies. For instance, in United States, the republican judges vote ore frequently for conservative results whereas the democratic judges vote more frequently for the liberal results.
According to Sullivan[17], it is unclear that the tendency of the judges in voting in ways reflecting their political ideologies is detrimental to the judicial systems or to the legitimacy of the government. Mallat[18] argued that when the judges’ vote in ways reflecting political ideologies of the power holders who were responsible for their appointment such as the voters, parliament or the president, at least to some degree, they are acting in a representative fashion.[19]
Politics as a response to the external power holders
Another way in which the judges might politicize the judicial system is by altering the views so as to accommodate the wishes or the desires of the power holders who are external to the court.[20] This concepts is in contrast to the concept in which the judges promote the judicial institutional interest. According to Middle East Watch (Organization)[21], for the judges to respond to the power holders outside the court, it is majorly because the judicial system is dependent. Largely court are impotent in the face of a determined political opposition from the executive, president or the parliaments.[22] Without the tacit cooperation of these other organs, the decisions of the judiciary are irrelevant largely.[23]
Politics as a response to the public opinion
Another politicization of the judiciary is the concern is the courts responsiveness to the public opinions. In most courts, they are institutionally designed to the judges to consider the opinion of the public when rendering their decisions.[24] Similarly, other courts are buffered institutionally from majoritarian pressures. United States[25] asserted that in some circumstance, the public can exert pressure to the judiciary independently. For instance the public might defy or ignore judicial decisions hence making the courts look powerless. Additionally, the curt judges might care about their public opinions for different reason because it is important to their self-esteem especially the judges of the highest courts inland, the supreme court.[26]
The judges of the courts are appointees of either political parties or the executive. According to Richard [27], many people expect the judges to be competent and fair regardless of their political leanings. Richard[28] further indicated that many judicial rulings in family disputes, traffic cases, personal injury, petty theft and damage and most disputes in business are rarely affected by the judge’s political leanings. Where the philosophical and political views of the judge do affect the rulings are mostly in cases that involve economic freedoms and basic civil liberties. According to Richard,[29] most studies indicate that judges whether thy lean to the left or right side with the government of the day, the majority of the cases which make news often are those where the courts go against the position of the government.
Despite the several talks about the autonomy of the Iraqi judiciary, and the exerted efforts by the legislatures to take resource in the various constitutions to confirm some of the general principles on the judicial systems autonomy, and also to assure that the Iraqi judiciary is not subjected to any other authority other than that of the law and also that the litigation right is guaranteed to all Iraqi citizens. However, from several studies,[30] it is evident that the rule in post war Iraq is practically becoming more restrictive
The regression in Iraqi judiciary pre-war was massive with respect to practice, organization and orientation and one of its major indicators was the judiciary council suppression and transferring the judges affairs and prosecution of the members of the public to the justice council, a body which placed the interest of the government before the autonomy, impartiality and criteria of justice of the judiciary. However, upon judiciary council reinstitution in 2003, opening statement of the preamble read”… the manner in which to impose the rule of law is a judiciary comprised of a free, competent staff that is independent and free from external influences. There is no constitution that is true despite all the freedoms and rights include in it without the judiciary that is autonomous. The Iraqi constitution needs a constitutional judiciary which protects individual rights and not only the rights of small groups, and this is the path to democracy”[31]
The impact of the Iraq occupation by united states on 9th April 2003 raise a number of intellectual, jurisprudence, political and legal problems on the legality on the implemented procedure by the occupation forces, especially those which led to constitutional;, structural, judicial and legal changes.[32] Scharf[33] pointed out that these same changes were rejected in 1949 by the Geneva conventions and their 1977 addendums, except for the necessary procedures on managing occupied zone matters. Although the issuance of resolution No. 1483 UN Security Council in May 2003 legitimised the occupation of Iraq and regarded the international coalition forces as the occupation forces subjected to the Geneva Convention, the laws, decisions and procedures issued by Paul Bremmer, the American civil governor surpassed the adopted international description of the international law.[34]
2.0 How politicians exercise pressure on judiciary and on Iraqi Judiciary
There are several ways in which politicians can exert pressure on the judiciary. First of all, the politicians can influence the public opinion of the judiciary and this may influence how they make decisions that affect the people.[35] Moreover, the executive and the legislature can exert pressure on judiciary through intimidation of demotion, freezing of their administrative funds, passing bad laws so as to affect the decisions of the judges. Intimidation can also be of the personal lives of judges and their families.[36]
In his Article to Iraq Pulse, an online News Paper in Iraq, Harith Al-Qarawee [37] pointed out how the politicians exercise their reassure on the Iraqi judiciary. Harith Al-Qarawee[38] stated that the opponents of Prime Minister Nouri al-Maliki accuse the judiciary of being influenced strongly by the government. Moreover, the opponents accused Nouri al-Maliki of using the judiciary against his perceived opponents. The accusations first came up during the elections of 2010 where the Iraqi Federal Court adopted Article 76 of the constitution interpretation allowing Nouri al-Maliki to form his government despite the fact that his party did not get the highest number of votes. Furthermore, the accusations further arose in July 2010 when the same Iraqi federal court ruled in a disagreement case between the government and the legislature, favoring the government. The ruling eventually weakened the parliament by stripping them off the power of independently legislating from the government.[39] Jeffrey[40] further highlighted the fear of the speaker of the parliament, Osama Nujaifi, that Maliki could again turn to the judiciary for a ruling in which the legislature will be stripped off one of their core remaining powers, of introducing amendments to draft laws sponsored by the government.
According to Easton[41], many people believe that the judiciary is under political influence in Iraq and the government of Nouri al-Maliki succeeded in political influencing and using the judiciary in targeting his political opponents after indictment in 2011 of former Vice President, Tariq Al-Hashemi on charges on terrorism. Similarly, similar terrorism charges were made against Rafi al-Issawi, former finance minister in December 2010.
Poloitical pressure on the Iraqi judiciary has been also evident months leading to the last legislative elections. The Electoral Judicial Committee barred several would-be candidates who were known to be harshly opposing Maliki. For instance, Lasswell[42] indicated that the committee ruled that Rafi al-Issawi was ineligible because he was facing arresting warrants that stem from terrorism and corruption charges and also because he has refused to defend himself in court. Similarly, Electoral Judicial Committee also banned a parliamentarian, Jawas al-Shahaili from the sadrist movement after a complaint by Hanan al-Fatlawi, a legislature in the Maliki’s coalition. Jawad was being accused of embezzling funds. However, despite barring the opponents of Maliki from contesting, the same Electoral Judicial Committee acquitted Mishan al-Jubouri in charges of financially supporting terrorism and corruption. Jubouri was a former opponent of Maliki and later became his ally then his charges were dropped.
3.0 Why politicians exercise pressure on judiciary
The politicians tend to exercise pressure on the judiciary for political gains, revenge, settling personal scores or even to get authority to manipulate the judiciary. The underlying reasons why people tend to exert political pressures on the judiciary globally and Iraq are the same.[43] In 2003, a special panel of the highest appellate court in Iraq, the court of Cassation, in their ruling reversed an important determination of the Accountability and Justice Commission (AJC) of Iraq. AJC was the body responsible for and mandated to purge the members of the Baath party from the offices of the government. One of the earliest determination as discussed earlier concerned Medhat al-Mahmoud, the former justice of the federal Supreme Court of Iraq. Specifically, AJC determined that Medhat was not in any way eligible for any public office because of his previous positions he had held during the era of Saddam Hussein. The AJC went as far as to refer the highly respected judge in Iraq as “Saddamist” who during his tenure taught other judges to commit offenses to the people of Iraq. . The reversal of the determination by the Courts of Cassation was a deep indictment of the whole process by which the process of de-Ba’athification was being conducted and how it infringed on the independence of the judiciary.[44]
Some of the suggestions of AJC was disqualifications of the Baath party former members as set for the in ten different subsections under Article 6 of the Iraqi law. The provisions stated that government employees at that time who belonged to the higher ranks from the fourth rank in the hierarchy Ba’ath party were to be retried forcibly. Those who belonged to the third rank or even higher were not to serve in any security ministries specified: the presidency, the Higher Judicial Council and other positions that were sensitive. The influence and authority to determine who serve in the Higher Judicial Council by AJC was seen as contravening the independence of the judiciary and also putting political pressure on the judiciary.[45]
Heavy political influence on the judiciary in Iraq after post war was also evident in the trial of Medhat al-Mahmoud, the former justice of the federal Supreme Court of Iraq. Rather than a clear judicial process, the AJC engaged in politicization and innuendo and name calling than anything that resemble a proper judicial process. Therefore, the AJC indicated only that they rendered their decision in accordance to Article 6 of the law as guided bysection1.[46] The quoted section 1(9) merely defined “supporters of the regime,” and also do not constitute a ground for any disqualification. Additionally, for section 6, the AJC in their submissions did not specify any subsection or even point to anything that seemed fit under any of the subsections applicable. The evidence of AJC was that (1) the chief justice has assisted in appointing of judiciary members to higher positions who later turned out to be regimes’ strong supporters, (2) that justice had been promoted rapidly through the judiciary ranks, including appointment to the court of Cassation in a process that was unusually and involved Saddam intervention, and (3) that the chief justice was awarded different honors and awards during the period.
From the submissions and arguments of AJC, a body entrusted with expedition of the de-Ba’athification process, it is evident that the processes intended to undermine the judiciary, politicize judicial processes and influence its operations. There is nothing in Article 6 which authorized the AJC to disqualify any individual from a government position, on the grounds set forth by AJC. This was the point the panel of the court of Cassation correctly made with some force. Saeed[47] argued that the decision was to such controversial since it was agreed widely that the chief justice was a Ba’athist of a higher rank, the point in the judicial process was not to act on the bases that it is agreed widely, but only that which is proven conclusively.
4.0 What is wrong with the constitution? Laws?
On 18th September 2003, Decree number. 35 was issued and it aimed at reinstituting the judicial council. Therefore, the reinstituted judicial council became the supervisor and in charge of the entire judicial system from the ministry of justice.[48] Sullivan [49] stated that such modus operandi seek to establishing a state of law despite some inherited persisting applications interfering with the affairs of the judiciary. The decree also reiterated suspension of any existing text which opposed the principle of the judicial independence. Theoretically, the members of the public prosecution and the judge are to practice their duties objectively, impartially and without fear of the administrative procedures such as disciplinary procedures like unjust imprisonment, isolation, punishment, and promotion and transfer. However, the continuation of the terrorism phenomenon and the exacerbation and spread of ethnic sectarianism and political confessionalism has influenced greatly the practical implementation of this feasible principle.
In his opening statement at Nuremberg to the international military Tribunal, Robert Jackson [50] in 1945 stated that the wrongs which people seek to punish or condemn have been so calculated, so devastating and malignant that the civilization can no longer tolerate them being ignored since they cannot even survive being repeated. The great nations stung with injury and flushed with victory, stay the hand of vengeance and submit their captives voluntarily to be judged by law is one of the tributes that power has ever paid significantly to reason. The criminal trials in post war in Iraq has been marred by manipulation. The formation of the of the Iraqi High Criminal Court, also known as the Iraqi High Tribunal a component of the Domestic structure of Iraq which is independent was warranted under the international Law structure, and also accorded with highest aspirations of the individuals who purported to believe in the rule of law. Ricchiardi[51] pointed out that IHT was formed with the main goal of bringing personal accountability of the responsible Ba’athist for depriving the Iraqi of their human rights during the Ba’athist regime, and for extinguishing virtually the rule of law for a period of over three decades. Therefore, it was ironic that the mechanisms created by the Iraqi people to address the failings of the human rights in the past became another vehicle of suppressing and denying people of their human rights.
Justice that is genuine cannot be achieved on the wings of external manipulation and vengeance. The mechanics on how to establish a judiciary free from manipulation and political control were the first concern of the jurists who assesse the formation of IHT in 2003. The jurists were committed to a process that would demonstrate the legal rules power and processes, and that would comply with the norms of human rights over personal hatred, tribal animosity and sectarian revenge.[52] The very essence of a trial that is fair is one where the verdict is not based on emotion and innuendo, but on the introduced quantum of evidence in an open court.
According to International Crisis Group[53], the Iraqi High Criminal was built on the concept of truism that the sovereign states retain the major responsibility for adjudicating defined and promulgated crimes violation under international law. Scharf [54] pointed out that in 2003, the process of statue development was opaque to the world outside, prompting the observers to criticize the IHT that it would operate as a puppet court of the USA or the occupying power. Moreover, its forerunner, the Iraqi Special tribunal (IST), was created during United States occupation and its funding came from United States, for a bout US $ 128 million to date.[55] Moreover, the provisional government appointed by United States selected the judges and prosecutors who were to be assisted by advisors from United States. If indeed IST was promulgated as a sham court formed only to accomplish reoccupation authorities bidding, then it violated the basic human rights of the Ba’athist officials of having an adjudication of their offences based on professional judges’ conscience and highest standards of law free of prejudice and bias.[56]
5.0 How bad is the situation in Iraq?
The level of politicization of the Iraqi judiciary has reached an alarming level where the politicians openly insult the judges and the judges openly collaborate with the government in making their rulings. This has in turn influenced the national politics as those opposed to the government accuse the judiciary of biasness, injustice and being a tool of the executive of fighting the perceived opponents.[57]
In 2013, the chief justice Medhat al-Mahmoud was ousted as the chief justice before being reinstate a week later by the Supreme Court. Politicization of the judiciary was evident during this one week period with the opposition factions led by Vice president Tariq Hashimi, who was tried in absentia being vocal and the attacking Medhat that he legalize injustice in Iraq.[58]
The situation turned from bad to worse as the judiciary seems chaotic, at loggerheads with politicians of the rival factions and also seemed to be supportive of the government. Richard[59] pointed out a mundane issue before the Federal Supreme court of Iraq in 2012 in which the parliament of Iraq abolished the ministry of public works and municipalities and Prime Minister Maliki challenged the powers of the parliament to do so. Judge Medhat, in his ruling held that under Article 60 of the constitution of Iraq, the legislature had no independent authority of enacting a legislation unless a legislation draft was first sent to the parliament by the council of ministers. From his ruling, the perception of the rival political factions was that Medhat was being used by the executive as a legal chicanery in supporting Prime Minister Maliki.[60]
The Article 60 decision outraged the opposition political factions and further united them with an aim of targeting Judge Medhat. Harith Al-Qarawee[61] indicated that the rival alliance envisioned that by passing a legislation on term limits which will be specifically directed to prevent Prime Minister Maliki from contesting for the third term in office. However, with the decision of Article 60, any legislation which did not come from the council of ministers of the prime minister would be unconstitutional. Therefore, to pass a legislation on the term limits, they had to first remove the decision of Article 60. Haider Ala Hamoudi[62] also noted that Chief justice Medhat enjoyed the support of the judiciary, prime minister and the quite patriots.
From the decision of Article 60, several politicians ganged against the judiciary and particularly chief justice Medhat. The rival political factions developed a strategy for first defusing the judicial powers rather than the near autocratic wielded power by Judge Medhat. Therefore, to accomplish their objective, the political rival factions proposed two new laws: that is the new Supreme Court law and the law of the high Judicial Council (HJC) which was the first proposed legislation.[63] The HJC is responsible for recommending judges appointment including the judges of the Supreme Court ad the court of cassation as well as appointing chief justices. United States[64] noted that since the ouster of Saddam Hussein and the inception of HJC, Judge Medhat has been its chairman. Simultaneously, Judge Medhat has been the chief justice of the Supreme Court as well as chief justice of the court of cassation. Under the new law passes in 2012 December, no judge was to hold more than one position. This clearly indicates the political influence and politicization of the judiciary. As indicated that the law of high Judicial Council was to undercut the powers of chief justice Medhat, its drafters were aware that the law was not sustainable under the decision of Article 60 if judge Medhat was to write the court’s opinion. However, by drafting it the way they did, the drafters created a conflict of interest for chief justice as he was an interested party in the litigation.
The situation of judicial politicization grew even worse when the second legislation piece was proposed by the rival factions to Maliki in the new Supreme Court Law. The proposed law was change the Supreme Court structure among other things by creating a combined judicial/shuria court. However, the proposed legislation never passed the council of representatives
Similarly, the Iraqi judiciary has experienced defamation, character assassination of its judges and political maneuvers to undermine the judiciary. The rivalry between the political class and the judiciary was further evidenced by the politicians questioning the character, personality and past legal dealings of the chief justice with the ousted regime of saddam Hussein. Maḥmūd[65] indicated that the greatest vulnerability of judge Medhat was his past relationship with the ousted Saddam Hussein as a private legal counsel. This is a fact widely known within Iraqi political and legal community and has been ignored for a decade.it is important to note that Judge Medhat also appeared before the De Ba’athification committee but was cleared
Sabah al Saadi, an MP accused chief justice as a supporter of the dictatorship of Maliki and also being a relic of Saddam-era. The MP appealed to the Justice and Accountability Commission (JAC), which was formerly the De-Ba’athification commission to conduct an investigation against the judge since it had already an approved letter (Letter #812) against Medhat on 4th December 2006.[66] However, from the JAC’s initial response, it sided with Medhat by denying that Judge Medhat had ever been through the De’athification process and also refuting letter 812 existence. In contrast to the initial comments of JAC, the commission through its chairman Falah Hassan Shanshal ordered the removal of Judge Medhat from the Supreme Court.[67] As a rejoinder, the office of the Prime Minister Maliki dismissed the acting Chairman of JAC, Falah Hassan Shanshal. As expected, Chief Justice Medhat appealed his arrest warrant and his De-Ba’athification was before a panel of eight judges within the court of Cassation. A week later, the court through its decision exonerated Chief Justice Medhat ad restored him to his position of Chief Justice.[68]
6.0 Does this situation affect judicial independence and the rule of law in Iraq?
The judicial independence of in post war Iraq from the influence of the politicians has been a subject in many forums. Historically, the judiciary in Iraq built a reputation for neutrality, independent thinking, proactive adaptation of the new techniques, learning and methodology, and search for justice.[69] To some extent, Ricchiardi [70] indicated that the historical structure gets credit for this as the civil law system allowed the judges to explore both evidence and the arguments provided or presented in the courts. However, Sullivan [71] pointed out that during certain times, post war Iraqi judiciary faces extreme pressure on the judges where different forces and actors prefer less independent cases review.
According to Middle East Watch (Organization)[72], the issued provisional constitution in 1970 stipulated that the independence of the judiciary was a fundamental principle in the new constitution. Additionally, it detailed the methods of courts levels and formation, courts jurisdictions, judicial appointments requirements, conditions for transfer, salary increases, accountability standards and retirement guidelines.[73] Similarly, the judicial Oversight Law No 124 of 1979 expanded further this principle since it entrusted the supervisors of the judiciary, who at that time were the judges, with the task of inspecting and overseeing courts and the judicial and administrative work of the judges. This was a major break for the judiciary from the previous practices where the executive and colonial authorities would do their tasks, and in the process creating potential manipulation areas for the judges or even interference with cases. The post war Iraqi judiciary needs a more detailed examination as there are many instances of political or executive interference with the independence and the rule of law.[74]
Before the formation of the Iraqi’s Federal Supreme Court in 2005, the court of Cessation in Iraq was the highest institution of the judiciary. The provisions that governed the work of the federal courts of Cessation were transited from the court of Cessation. The Organization Law gave the Court of Cassation’s Chief justice of the power of managing and organizing the procedures of the courts. Moreover, the law established presidential panel which comprised of the chief justice and his deputies and few select members of the judicial commissions. Despite the fact this was a step towards the independence of the judiciary, the oversight Law had a requirement that the chief Justice submit annual reports to the justice Council and the minister of justice. Moreover, the Organic Law of the Justice Ministry empowered the minister to hold meetings and seminars with the judges, including the judges of the federal Court to ensure the goals of the government are fulfilled. This shows that the executive power which majorly comprises of the politicians could infringe upon the courts independence by allowing direct application channels of policy pressures on courts and on the judges, in addition to influencing their judicial performance.[75]
The chief justice of every Appellate Court District is charged with the duty of overseeing the courts and their duties within an appellate district, including assigning duties to the judges. Moreover, the law established a council in each appellate district to address the challenges and problems facing the courts. The council or the committees were chaired by the chief justice of the appellate courts and also assisted with their deputies. The council was empowered to refine the procedures to be used and also tasked with performance improvement. Despite the fact that the court of Cassation was associated with the executive through the Justice Ministry’s operation, the appellate courts are linked directly to the executive influence and oversight.[76] Cordesman[77] indicated that Article 18 entrusted the minister of Justice with the oversight role over all judges and courts, including reviewing their formal and personal conduct. Give that the executive is majorly comprised of the politicians, political influence into the judiciary is inevitable.
According to Scharf[78], the judicial Organization Law mandated the formation of a committee that consist of Justice Council selected from the members each year at the beginning, and three judges. Moreover, Articles 3 and 4 of the Law No. 101 f 1977 of the Ministry of Justice outlines the procedures on how to initiate a case against a court judge. In summary, the minister of justice initiate a case against a judge or judges by filling a complaint with the committee.[79] After filing the committee would the review the submissions of both the accused judges or judge and the ministry in terms of the set measures by the law. These set measures guarantee defense to the concerned judge and makes the decision of the committee subject to legal challenge (by either the ministry or the accused judge) before a plenary session of Court of Cassation. The principle or the provision that a judge is investigated and even tried by a disciplinary committee in the related matters to his work or profession is against the independence of the judiciary, is politically influenced and very old. Although the judicial Authority Law and the Judicial Organization law intended to offer a judicial oversight, these laws diverged by only empowering the minister of Justice, and not a judicial committee forms to a refer a judge or judges to the committee.[80] Chron[81] argued that some people may view the mechanism as providing a healthy external check on the judiciary, yet the power restriction to review only by the Justice ministry implied that the judiciary itself has no ability of reviewing its member’s neutrality. This limitation was felt heavily in Iraq when the political pressures grew on the judiciary.
From the above discussion and the mentioned provisions on the political influence on the judiciary, it clearly shows that the independence of the judiciary must be given great consideration. Post war Iraq has seen the political authorities coming primarily from the perspective that the judiciary and also to some extent the legislature, should further the aims, policies of the executive. Therefore, the political class di not promote the doctrine of separation of powers.[82] In reality, the authorities have tried in isolating institutions from the societal democratic influence.
Harith Al-Qarawee [83] also pointed out that during the period of post war in Iraq after the downfall of Saddam Hussein, judicial judges have suffered a great deal in executing their duties. The harassment has been in different forms, but typically, the harassment and intimidation has applied tools that make the judges fear for their own lives or the wellbeing of their families. Additionally, out of favor, the judges with the executive have faced many unjustified transfers, removal from the judiciary to a job in the civil service, disbarment from the legal professional, dismissal and even imprisonment. Furthermore, the control over the judicial profession by the executive resulted in a scenario where qualified lawyers were not permitted to take up jobs in the judiciary because they did not hold the regimes trust. In contrast, unqualified persons were promoted into the judicial service to effect the desired changes by the ruling political class in the executive. Lastly, the provisions that only allow the minister of Justice to review the judges’ performance had a far reaching consequences during the post war period.
7.0 How the courts work under the pressure
The Iraqi judicial system decayed during the three decades in which Saddam Hussein was in power, just like any other public sector in Iraq. The government of Saddam Hussein directed and controlled judges to serve the interest of the government.
According to Saeed Kudaimati[84], the Iraqi judiciary work under fear. For the past three decades before occupation, one political party controlled the judicial system. However, after occupation, there are many political parties in Iraq especially those having militia and the judiciary are in their hands. The court judges constantly live in fear since from 2006, at least 11 court judges has been killed by militias. This clearly indicates that the judiciary cannot function independently or do their jobs properly since the politicians and the militia openly put pressure on the judiciary.
The judges has also been the subject of inflammatory criticism by the officials of the government and the opposing political parties. The process of removal of the judges or disciplining the Iraqi judicial judges has been done under the court of the public opinion championed by the politicians rather than independent judicial procedures.
As much as the judges in most Iraqi cases make their decisions in accordance to the law, sometimes they make their decisions due to political pressures.[85] The judicial system currently face interference from different political factions and they have to operate with it.
Dealing with the terrorism cases has been the biggest problem for the Iraqi judiciary since the terrorist suspects have the backings of different militant groupings. In a case of terrorism, Peretti[86] indicated that a judge cannot feel safe for himself and for his family. For instance, in northern Iraq, in Mosul, a stronghold of the Sunni in late 2004, the region was overrun but the Sunni insurgents associated with al-Qaeda and also the former Baath party members. The court judges could not work there since they were exposed to danger along with their families. Therefore, the supreme judiciary council of Iraq had to send judges from Baghdad to Mosul periodically to ensure the judges could make their decisions free of being reattributed.
The judges has also been working professional with law since the occupation of Iraq. Therefore, if the security forces also arrest someone with no proper evidence, the judges through the law and the legal processes release the defendants.[87]
8.0 The Attempts stop the political pressure
Chief justice Medhat has been very instrumental and vocal in promising to make Iraqi judicial system become more independent, by making it the sole authority that is responsible in punishing crime and also by increasing its powers.[88]
The international community has also been concerned with the state of the Iraqi judiciary and has tried to stop the political pressure on the judiciary. For instance, the Human Rights Watch, based in New York highly criticized the Iraqi government in the way it handled the court case of the former president, Saddam Hussein by saying that the Iraqi’s High Tribunal was not able to fairly and effectively try Saddam and other accused persons according to the International standards.[89] Similarly, international concern was also evident when the same body condemned the manner in which the government of Iraq removed Judge Adulla al-Amiri who was perceived to be impartial by the officials of the government.[90]
The human rights organizations has also been instrumental in stopping the political pressure to the judiciary. The human rights groups such as The Hope of Iraq, Iraqi al Amal has been advocating for proper trial and justice to the defendants unfairly arrested.[91] Moreover, these human rights organizations are concerned about the ability of the defendants who are wealthy and bribe the judiciary officials or buy the support of the judges hence compromising the whole judiciary.
9.0 The solutions on how to reduce the political pressure
Many legal specialists are in agreement that much still is needed to be done to make the Iraqi judiciary truly independent and free from political pressures. To reduce the political pressures on the judiciary, the government need to protect the judicial system from the influential political parties as well as the any social influences to be able to achieve independence.[92]
Another solution that can prevent the Iraqi judiciary from political pressure is for the government to choose carefully the independent judges. Moreover, it should adopt tougher measures against anybody who tries to influence the judicial system for their own political and personal gain. These include putting in pace tougher laws, enacting stringent laws and procedures for selecting court judges.[93]
Another way to reduce political pressure on Iraqi judiciary for the government to fight corruption in the judicial system. Moreover, the judges who were associated with the ousted Baath party of Saddam should be removed from the judiciary. According to the statistics from De Baathifcation commission, at least 37 judges and prosecutors since 2003 who previously had high ranking positions in Baath Party have been dismissed.[94]
Similarly, the judges believed to be having any sympathy to any religious, political or ethnic group or have political links to any political party should step down. It is only through this that the judicial system can be redeemed, changed and made independent.[95]
The court judges also need to work professionally and to keep themselves away from political interference by maintaining integrity.
10.0 Conclusion
In conclusion, this chapter discussed the political pressure on Iraqi judiciary in post war. From the discussion it is evident that post war Iraqi judiciary has faced several political pressures from different political groupings and this has affected its operations. Politicians exercise pressure on the judiciary to get political mileage, get judicial favours or to compromise the judiciary. Several sections of the Iraqi law has many flaws and this has resulted to political manipulation, influence and interference with the judiciary. The Iraqi judiciary can be said to be far from being independent since the government control their budget, influence judges appointment, supervises their administrative work and this in turn affects their legal duties. There are several ways in which the Iraqi judiciary face political pressures, both internally and externally. Some of the ways include judges’ political leanings, threats, and intimidations among others. The situation in Iraqi judiciary has gone worse to the point that instead of the judiciary acting as an arbiter, it has been drawn and used as a tool of intimidating, threatening and undermining the opponents of the rival political factions. Currently, the Iraqi courts work under fear, intimidations, political pressure and lack of independence. Several parties has tried intervening to stop the political; pressures such as the international human rights organizations, local human rights groups and the key among them is the chief Jusice Medhat. To reduce the political pressure on the Iraqi judiciary, the government need to protect the judicial systems, appointment of judges should be transparent and stringent, stop corruption, politically influenced judges removed and the judicial system need to emphasise on professionalism and maintenance of integrity.
11.0 References
2207 Report on Iraq Relief and Reconstruction: Quarterly Update to Congress, Bureau of Resource Management, January[2006], pp. 32–4, available at ,http://www.state.gov/documents/organization/58811.pdf..
Cordesman, Anthony H. Iraq’s Insurgency and the Road to Civil Conflict Vol. 2 Vol. 2. Westport, Conn. [u.a.]: Praeger Security International, [2008].
Easton, David. A Framework for Political Analysis. Englewood Cliffs, N.J.: Prentice-Hall, [1965].
ECHR, Findlay v. UK (1997) ECHR Series A No. 115–116; ECHR, Benthem Case (1985) ECHR Series A No. 97, 615; ECHR, Piersack Case (1981) ECHR Series No. 53, 616.
Haider Ala Hamoudi , ‘Medhat al-Mahmoud and De-Ba’athification in Baghdad’ (JURIST 2013) <http://jurist.org/forum/2013/03/haider-hamoudi-debaathification.php> accessed 22 April 2015
Harith Al-Qarawee, ‘Iraqi Judiciary Accused Of Bias, Failure – Al-Monitor: The Pulse Of The Middle East’ (Al-Monitor, 2015) <http://www.al-monitor.com/pulse/originals/2014/03/iraq-judiciary-accusation-politicized-maliki.html#> accessed 24 April 2015.
Impunity on Trial, Hous. Chron., Oct. 24, [2005], at 6 (“Saddam Hussein’s trial must be fair to show Iraq, and the world, the era of impunity is over.”);
International Crisis Group. Failing Oversight Iraq’s Unchecked Government. Baghdad, Iraq: International Crisis Group, [2011]. <http://www.crisisgroup.org/~/media/Files/Middle%20East%20North%20Africa/Iraq%20Syria%20Lebanon/Iraq/113%20-%20Failing%20Oversight%20-%20Iraqs%20Unchecked%20Government.pdf>.
Jason Koutsoukis and LIVE: service, ‘Rule Of Law In Iraq Under Pressure From Politicians, Terrorists’ (The Sydney Morning Herald, 2010) http://www.smh.com.au/world/rule-of-law-in-iraq-under-pressure-from-politicians-terrorists-20100322-qr8a.html accessed 25 April 2015.
Jeffrey J. Coonjohn and Judge Zuhair al-Maliki1. 201. “Chaos in the Courts Can Iraq’s Embattled Chief Justice Fend-off Presidential Strategists.” IEEE Spectrum.43, no. 2: 22-35.
Lasswell, Harold D. Politics: Who Gets What, When, How. New York: P. Smith, [1950].
M. P. Scharf, ‘Is it international enough? A critique of the Iraqi Special Tribunal in light of the goals of international Justice’, Journal of International Criminal Justice, No. 2, 2004, pp. 330, 331; H. Weinstein, ‘Law experts divided over legitimacy of tribunal’, Los Angeles Times, 10 October [2005].
Maḥmūd, Midḥat. The Judiciary in Iraq: The Path to an Independent Judiciary and Modern Court System. [2014].
Mallat, Chibli. Iraq: Guide to Law and Policy. Austin: Wolters Kluwer Law & Business, [2009].
Middle East Watch (Organization). Human Rights in Iraq. New Haven: Yale University Press, [1990].
Opening Statement to the International Military Tribunal at Nuremberg, Trial of the Major War Criminals before the International Military Tribunal, Vol. II, [1947], p. 98.
Peretti, Terri Jennings. In Defense of a Political Court. Princeton, N.J.: Princeton University Press, 1999. <http://site.ebrary.com/id/10002097>.
Posner, Richard A.. “Foreword: A Political Court”. Harvard Law Review. [2005]. 119, no. 1: 32-102.
Ricchiardi, Sherry. Iraq’s News Media After Saddam Liberation, Repression, and Future Prospects. Washington, DC: Center for International Media Assistance, National Endowment for Democracy, [2011]. <http://cima.ned.org/sites/default/files/CIMA-Iraq_News_Media-Report.pdf>.
Richard W. Rahn, ‘Politicizing The Judiciary’ (Cato Institute, 2013) <http://www.cato.org/publications/commentary/politicizing-judiciary> accessed 24 April 2015.
Saeed Kudaimati, ‘IRAQ: Judicial System Far From Independent’ (IRINnews, 2015) <http://www.irinnews.org/report/61873/iraq-judicial-system-far-from-independent> accessed 25 April 2015.
Segal, Jeffrey Allan, and Harold J. Spaeth. The Supreme Court and the Attitudinal Model Revisited. Cambridge, UK: Cambridge University Press, [2002].
Sullivan, Marisa. Maliki’s Authoritarian Regime. [2013]. <http://www.understandingwar.org/sites/default/files/Malikis-Authoritarian-Regime-Web.pdf>.
United States. 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 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. Washington: U.S. G.P.O., [2003].
United States. Examining Recommendations for Improvements to Iraq’s Justice System: Hearing Before the Committee on the Judiciary, United States Senate, One Hundred Tenth Congress, First Session, January 31, 2007. Washington: U.S. G.P.O., [2007].
United States. Examining Recommendations For Improvements To Iraq’s Justice System, S. Hrg. 110-5, Serial No. J-110-7, January 31, [2007], 110-1 Hearing, *. [Place of publication not identified]: [publisher not identified], 2007. <http://books.google.com/books?id=f4o1AAAAIAAJ>.
Sullivan, Marisa. Maliki’s Authoritarian Regime. [2013]. <http://www.understandingwar.org/sites/default/files/Malikis-Authoritarian-Regime-Web.pdf>. ↑
Ricchiardi, Sherry. Iraq’s News Media After Saddam Liberation, Repression, and Future Prospects. Washington, DC: Center for International Media Assistance, National Endowment for Democracy, [2011]. <http://cima.ned.org/sites/default/files/CIMA-Iraq_News_Media-Report.pdf>. ↑
Mallat, Chibli. Iraq: Guide to Law and Policy. Austin: Wolters Kluwer Law & Business, [2009]. ↑
International Crisis Group. Failing Oversight Iraq’s Unchecked Government. Baghdad, Iraq: International Crisis Group, [2011]. <http://www.crisisgroup.org/~/media/Files/Middle%20East%20North%20Africa/Iraq%20Syria%20Lebanon/Iraq/113%20-%20Failing%20Oversight%20-%20Iraqs%20Unchecked%20Government.pdf>. ↑
Easton, David. A Framework for Political Analysis. Englewood Cliffs, N.J.: Prentice-Hall, [1965]. ↑
Lasswell, Harold D. Politics: Who Gets What, When, How. New York: P. Smith, [1950]. ↑
Posner, Richard A.. “Foreword: A Political Court”. Harvard Law Review. [2005]. 119, no. 1: 32-102. ↑
Middle East Watch (Organization). Human Rights in Iraq. New Haven: Yale University Press, [1990]. ↑
United States. 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 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. Washington: U.S. G.P.O., [2003]. ↑
Maḥmūd, Midḥat. The Judiciary in Iraq: The Path to an Independent Judiciary and Modern Court System. [2014]. ↑
United States. Examining Recommendations for Improvements to Iraq’s Justice System: Hearing Before the Committee on the Judiciary, United States Senate, One Hundred Tenth Congress, First Session, January 31, 2007. Washington: U.S. G.P.O., [2007]. ↑
United States. Examining Recommendations For Improvements To Iraq’s Justice System, S. Hrg. 110-5, Serial No. J-110-7, January 31, [2007], 110-1 Hearing, *. [Place of publication not identified]: [publisher not identified], 2007. <http://books.google.com/books?id=f4o1AAAAIAAJ>. ↑
Cordesman, Anthony H. Iraq’s Insurgency and the Road to Civil Conflict Vol. 2 Vol. 2. Westport, Conn. [u.a.]: Praeger Security International, [2008]. ↑
Haider Ala Hamoudi , ‘Medhat al-Mahmoud and De-Ba’athification in Baghdad’ (JURIST 2013) <http://jurist.org/forum/2013/03/haider-hamoudi-debaathification.php> accessed 22 April 2015 ↑
Segal, Jeffrey Allan, and Harold J. Spaeth. The Supreme Court and the Attitudinal Model Revisited. Cambridge, UK: Cambridge University Press, [2002]. ↑
Ricchiardi, Sherry. Iraq’s News Media After Saddam Liberation, Repression, and Future Prospects. Washington, DC: Center for International Media Assistance, National Endowment for Democracy, [2011]. <http://cima.ned.org/sites/default/files/CIMA-Iraq_News_Media-Report.pdf>. ↑
Sullivan, Marisa. Maliki’s Authoritarian Regime. [2013]. <http://www.understandingwar.org/sites/default/files/Malikis-Authoritarian-Regime-Web.pdf>. ↑
Mallat, Chibli. Iraq: Guide to Law and Policy. Austin: Wolters Kluwer Law & Business, [2009]. ↑
Peretti, Terri Jennings. In Defense of a Political Court. Princeton, N.J.: Princeton University Press, 1999. <http://site.ebrary.com/id/10002097>. ↑
International Crisis Group. Failing Oversight Iraq’s Unchecked Government. Baghdad, Iraq: International Crisis Group, [2011]. <http://www.crisisgroup.org/~/media/Files/Middle%20East%20North%20Africa/Iraq%20Syria%20Lebanon/Iraq/113%20-%20Failing%20Oversight%20-%20Iraqs%20Unchecked%20Government.pdf>. ↑
Middle East Watch (Organization). Human Rights in Iraq. New Haven: Yale University Press, [1990]. ↑
Ibid.,45 ↑
Ibid ↑
United States. 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 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. Washington: U.S. G.P.O., [2003]. ↑
Ibid ↑
Maḥmūd, Midḥat. The Judiciary in Iraq: The Path to an Independent Judiciary and Modern Court System. [2014]. ↑
Richard W. Rahn, ‘Politicizing The Judiciary’ (Cato Institute, 2013) ↑
Ibid.,73 ↑
Ibid.,76 ↑
United States. Examining Recommendations For Improvements To Iraq’s Justice System, S. Hrg. 110-5, Serial No. J-110-7, January 31, [2007], 110-1 Hearing, *. [Place of publication not identified]: [publisher not identified], 2007. <http://books.google.com/books?id=f4o1AAAAIAAJ>. ↑
Cordesman, Anthony H. Iraq’s Insurgency and the Road to Civil Conflict Vol. 2 Vol. 2. Westport, Conn. [u.a.]: Praeger Security International, [2008]. ↑
Haider Ala Hamoudi , ‘Medhat al-Mahmoud and De-Ba’athification in Baghdad’ (JURIST 2013) <http://jurist.org/forum/2013/03/haider-hamoudi-debaathification.php> accessed 22 April 2015 ↑
M. P. Scharf, ‘Is it international enough? A critique of the Iraqi Special Tribunal in light of the goals of
international Justice’, Journal of International Criminal Justice, No. 2, 2004, pp. 330, 331; H. Weinstein,‘Law experts divided over legitimacy of tribunal’, Los Angeles Times, 10 October [2005]. ↑
2207 Report on Iraq Relief and Reconstruction: Quarterly Update to Congress, Bureau of Resource
Management, January[2006], pp. 32–4, available at ,http://www.state.gov/documents/organization/
58811.pdf.. ↑
Impunity on Trial, Hous. Chron., Oct. 24, [2005], at 6 (“Saddam Hussein’s trial must be fair to
show Iraq, and the world, the era of impunity is over.”); ↑
Richard W. Rahn, ‘Politicizing The Judiciary’ (Cato Institute, 2013) <http://www.cato.org/publications/commentary/politicizing-judiciary> accessed 24 April 2015. ↑
Harith Al-Qarawee, ‘Iraqi Judiciary Accused Of Bias, Failure – Al-Monitor: The Pulse Of The Middle East’ (Al-Monitor, 2015) <http://www.al-monitor.com/pulse/originals/2014/03/iraq-judiciary-accusation-politicized-maliki.html#> accessed 24 April 2015. ↑
Ibid.,1 ↑
Jeffrey J. Coonjohn and Judge Zuhair al-Maliki1. 201. “Chaos in the Courts Can Iraq’s Embattled Chief Justice Fend-off Presidential Strategists.” IEEE Spectrum.43, no. 2: 22-35. ↑
Ibid.,33 ↑
Easton, David. A Framework for Political Analysis. Englewood Cliffs, N.J.: Prentice-Hall, [1965]. ↑
Lasswell, Harold D. Politics: Who Gets What, When, How. New York: P. Smith, [1950]. ↑
Posner, Richard A.. “Foreword: A Political Court”. Harvard Law Review. [2005]. 119, no. 1: 32-102 ↑
ibid ↑
Jason Koutsoukis and LIVE: service, ‘Rule Of Law In Iraq Under Pressure From Politicians, Terrorists’ (The Sydney Morning Herald, 2010) <http://www.smh.com.au/world/rule-of-law-in-iraq-under-pressure-from-politicians-terrorists-20100322-qr8a.html> accessed 25 April 2015 ↑
Easton, David. A Framework for Political Analysis. Englewood Cliffs, N.J.: Prentice-Hall, [1965]. ↑
Saeed Kudaimati, ‘IRAQ: Judicial System Far From Independent’ (IRINnews, 2015) <http://www.irinnews.org/report/61873/iraq-judicial-system-far-from-independent> accessed 25 April 2015 ↑
Peretti, Terri Jennings. In Defense of a Political Court. Princeton, N.J.: Princeton University Press, 1999. <http://site.ebrary.com/id/10002097>. ↑
Sullivan, Marisa. Maliki’s Authoritarian Regime. [2013]. <http://www.understandingwar.org/sites/default/files/Malikis-Authoritarian-Regime-Web.pdf>. ↑
Opening Statement to the International Military Tribunal at Nuremberg, Trial of the Major War
Criminals before the International Military Tribunal, Vol. II, [1947], p. 98. ↑
Ricchiardi, Sherry. Iraq’s News Media After Saddam Liberation, Repression, and Future Prospects. Washington, DC: Center for International Media Assistance, National Endowment for Democracy, [2011]. <http://cima.ned.org/sites/default/files/CIMA-Iraq_News_Media-Report.pdf>. ↑
Mallat, Chibli. Iraq: Guide to Law and Policy. Austin: Wolters Kluwer Law & Business, [2009]. ↑
International Crisis Group. Failing Oversight Iraq’s Unchecked Government. Baghdad, Iraq: International Crisis Group, [2011]. <http://www.crisisgroup.org/~/media/Files/Middle%20East%20North%20Africa/Iraq%20Syria%20Lebanon/Iraq/113%20-%20Failing%20Oversight%20-%20Iraqs%20Unchecked%20Government.pdf>. ↑
M. P. Scharf, ‘Is it international enough? A critique of the Iraqi Special Tribunal in light of the goals of
international Justice’, Journal of International Criminal Justice, No. 2, 2004, pp. 330, 331; H. Weinstein,
‘Law experts divided over legitimacy of tribunal’, Los Angeles Times, 10 October [2005]. ↑
2207 Report on Iraq Relief and Reconstruction: Quarterly Update to Congress, Bureau of Resource
Management, January[2006], pp. 32–4, available at ,http://www.state.gov/documents/organization/
58811.pdf.. ↑
ECHR, Findlay v. UK (1997) ECHR Series A No. 115–116; ECHR, Benthem Case (1985) ECHR Series A No. 97, 615; ECHR, Piersack Case (1981) ECHR Series No. 53, 616. ↑
Maḥmūd, Midḥat. The Judiciary in Iraq: The Path to an Independent Judiciary and Modern Court System. [2014]. ↑
ibid ↑
Richard W. Rahn, ‘Politicizing The Judiciary’ (Cato Institute, 2013) <http://www.cato.org/publications/commentary/politicizing-judiciary> accessed 24 April 2015. ↑
Ibid.,48 ↑
Harith Al-Qarawee, ‘Iraqi Judiciary Accused Of Bias, Failure – Al-Monitor: The Pulse Of The Middle East’ (Al-Monitor, 2015) <http://www.al-monitor.com/pulse/originals/2014/03/iraq-judiciary-accusation-politicized-maliki.html#> accessed 24 April 2015. ↑
Haider Ala Hamoudi , ‘Medhat al-Mahmoud and De-Ba’athification in Baghdad’ (JURIST 2013) <http://jurist.org/forum/2013/03/haider-hamoudi-debaathification.php> accessed 22 April 2015 ↑
Cordesman, Anthony H. Iraq’s Insurgency and the Road to Civil Conflict Vol. 2 Vol. 2. Westport, Conn. [u.a.]: Praeger Security International, [2008]. ↑
United States. Examining Recommendations For Improvements To Iraq’s Justice System, S. Hrg. 110-5, Serial No. J-110-7, January 31, [2007], 110-1 Hearing, *. [Place of publication not identified]: [publisher not identified], 2007. <http://books.google.com/books?id=f4o1AAAAIAAJ>. ↑
Maḥmūd, Midḥat. The Judiciary in Iraq: The Path to an Independent Judiciary and Modern Court System. [2014]. ↑
International Crisis Group. Failing Oversight Iraq’s Unchecked Government. Baghdad, Iraq: International Crisis Group, [2011]. <http://www.crisisgroup.org/~/media/Files/Middle%20East%20North%20Africa/Iraq%20Syria%20Lebanon/Iraq/113%20-%20Failing%20Oversight%20-%20Iraqs%20Unchecked%20Government.pdf>. ↑
International Crisis Group. Failing Oversight Iraq’s Unchecked Government. Baghdad, Iraq: International Crisis Group, [2011]. <http://www.crisisgroup.org/~/media/Files/Middle%20East%20North%20Africa/Iraq%20Syria%20Lebanon/Iraq/113%20-%20Failing%20Oversight%20-%20Iraqs%20Unchecked%20Government.pdf>. ↑
ibid ↑
Mallat, Chibli. Iraq: Guide to Law and Policy. Austin: Wolters Kluwer Law & Business, [2009]. ↑
Ricchiardi, Sherry. Iraq’s News Media After Saddam Liberation, Repression, and Future Prospects. Washington, DC: Center for International Media Assistance, National Endowment for Democracy, [2011]. <http://cima.ned.org/sites/default/files/CIMA-Iraq_News_Media-Report.pdf>. ↑
Sullivan, Marisa. Maliki’s Authoritarian Regime. [2013]. <http://www.understandingwar.org/sites/default/files/Malikis-Authoritarian-Regime-Web.pdf>. ↑
Middle East Watch (Organization). Human Rights in Iraq. New Haven: Yale University Press, [1990]. ↑
Ibid.,109 ↑
United States. Examining Recommendations for Improvements to Iraq’s Justice System: Hearing Before the Committee on the Judiciary, United States Senate, One Hundred Tenth Congress, First Session, January 31, 2007. Washington: U.S. G.P.O., [2007]. ↑
United States. Examining Recommendations For Improvements To Iraq’s Justice System, S. Hrg. 110-5, Serial No. J-110-7, January 31, [2007], 110-1 Hearing, *. [Place of publication not identified]: [publisher not identified], 2007. <http://books.google.com/books?id=f4o1AAAAIAAJ>. ↑
Cordesman, Anthony H. Iraq’s Insurgency and the Road to Civil Conflict Vol. 2 Vol. 2. Westport, Conn. [u.a.]: Praeger Security International, [2008]. ↑
Ibid.,228 ↑
M. P. Scharf, ‘Is it international enough? A critique of the Iraqi Special Tribunal in light of the goals of
international Justice’, Journal of International Criminal Justice, No. 2, 2004, pp. 330, 331; H. Weinstein,
‘Law experts divided over legitimacy of tribunal’, Los Angeles Times, 10 October [2005]. ↑
Ibid ↑
2207 Report on Iraq Relief and Reconstruction: Quarterly Update to Congress, Bureau of Resource
Management, January[2006], pp. 32–4, available at ,http://www.state.gov/documents/organization/
58811.pdf.. ↑
Impunity on Trial, Hous. Chron., Oct. 24, [2005], at 6 (“Saddam Hussein’s trial must be fair to
show Iraq, and the world, the era of impunity is over.”); ↑
Jeffrey J. Coonjohn and Judge Zuhair al-Maliki1. 201. “Chaos in the Courts Can Iraq’s Embattled Chief Justice Fend-off Presidential Strategists.” IEEE Spectrum.43, no. 2: 22-35 ↑
Harith Al-Qarawee, ‘Iraqi Judiciary Accused Of Bias, Failure – Al-Monitor: The Pulse Of The Middle East’ (Al-Monitor, 2015) <http://www.al-monitor.com/pulse/originals/2014/03/iraq-judiciary-accusation-politicized-maliki.html#> accessed 24 April 2015. ↑
Saeed Kudaimati, ‘IRAQ: Judicial System Far From Independent’ (IRINnews, 2015) <http://www.irinnews.org/report/61873/iraq-judicial-system-far-from-independent> accessed 25 April 2015. ↑
Jason Koutsoukis and LIVE: service, ‘Rule Of Law In Iraq Under Pressure From Politicians, Terrorists’ (The Sydney Morning Herald, 2010) <http://www.smh.com.au/world/rule-of-law-in-iraq-under-pressure-from-politicians-terrorists-20100322-qr8a.html> accessed 25 April 2015. ↑
Peretti, Terri Jennings. In Defense of a Political Court. Princeton, N.J.: Princeton University Press, 1999. <http://site.ebrary.com/id/10002097>. ↑
Segal, Jeffrey Allan, and Harold J. Spaeth. The Supreme Court and the Attitudinal Model Revisited. Cambridge, UK: Cambridge University Press, [2002]. ↑
Posner, Richard A.. “Foreword: A Political Court”. Harvard Law Review. [2005]. 119, no. 1: 32-102. ↑
Middle East Watch (Organization). Human Rights in Iraq. New Haven: Yale University Press, [1990]. ↑
Bid.,115 ↑
Jason Koutsoukis and LIVE: service, ‘Rule Of Law In Iraq Under Pressure From Politicians, Terrorists’ (The Sydney Morning Herald, 2010) <http://www.smh.com.au/world/rule-of-law-in-iraq-under-pressure-from-politicians-terrorists-20100322-qr8a.html> accessed 25 April 2015 ↑
Sullivan, Marisa. Maliki’s Authoritarian Regime. [2013]. <http://www.understandingwar.org/sites/default/files/Malikis-Authoritarian-Regime-Web.pdf>. ↑
Saeed Kudaimati, ‘IRAQ: Judicial System Far From Independent’ (IRINnews, 2015) <http://www.irinnews.org/report/61873/iraq-judicial-system-far-from-independent> accessed 25 April 2015. ↑
ibid ↑
ibid ↑
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