Ohlweiler travels on a C-130 to an elections conference in Mosul.
Rebuilding the Rule of Law in Iraq
Jack Ohlweiler '93
In May of 2008, the Class of 1993 celebrated its 15-year reunion. Having lived at Evergreen Farm with six classmates for two years, I was looking forward to a great weekend of catching up and sharing pictures. Unfortunately, I wasn’t able to attend; I was deployed to Iraq.
I was to serve as the Deputy Staff Judge Advocate for Multi-National Corps-Iraq. For the nonmilitary among you, that means I serve as deputy general counsel advising Lt. Gen. Lloyd J. Austin III, who commands the 160,000 soldiers, airmen, seamen, and marines currently serving in Iraq. I am one of the nearly 161 military lawyers and 237 military paralegals who are dealing with the unique legal issues associated with the Rule of Law in Iraq.
In this environment, the Office of the Staff Judge Advocate of the Multi-National Corps-Iraq faces issues unlike anything seen in the United States, from the legal review of targeting decisions, administrative investigations into hostile deaths, detention operations, payments to local nationals under the foreign claims act, and all manner of fiscal and contract law issues related to the billions of dollars spent to sustain the force and rebuild the country.
My boss, the Staff Judge Advocate Col. Thomas Ayres, is fond of saying: “Being a Judge Advocate is not for the faint of heart.” And while he is usually talking about the moral courage required to provide hard legal advice, in Iraq it means something more. Since the beginning of the War on Terror, six members of the Judge Advocate General’s Corps have died and 29 have been wounded in combat operations. Every day in Iraq, judge advocates leave the relative safety of our bases to visit police, judges, and prisons to help facilitate changes that will make these institutions worthy of the trust and confidence of the Iraqi people. This work is just one part of rebuilding the civil capacity of this country, but it may be the keystone to developing a functioning, stable, and democratic Iraq.
Ohlweiler makes his way to a courthouse groundbreaking ceremony in Iskandariyah
The Rule of Law: Primary Line of Operation
When I first arrived in Baghdad in February 2008, the Rule of Law effort was a part-time responsibility for one attorney. Back then, during the heart of the surge, the primary issue facing U.S. forces was security, so my office focused on traditional operational law issues. In the deployed environment, this means lawyers make decisions and recommendations about the principles of the law of armed conflict: necessity, distinction, proportionality, and humanity (the very principles that I studied in the classes of Professor John Norton Moore). Eight lawyers review every operation and incident where our soldiers use force to be sure we comply with the laws of armed conflict and our own Rules of Engagement (ROE).
The ROE delineate the circumstances and limitations under which U.S. forces initiate or continue combat engagement with the enemy. The importance of these rules cannot be overstated. They inform the men and women doing patrols and working in Iraq when the use of force is permissible. It is the judge advocate’s job to cull and refine in real time the ROE to distill the best, simplest set of rules that can be taught to the 18-, 19-, and 20-year old soldiers in the field.
Most operations bring about issues unique to the environment. Can we legitimately engage Al Qaeda operatives who meet and hide weapons in a mosque? Can we shoot a missile at two men who are seen by an unmanned aerial vehicle digging a hole near a road known for roadside bombs? What if you only have two minutes to decide? Can you pursue or fire upon enemy forces with whom you are lawfully engaged when they retreat across the border into a neighboring country? Does the legal advice change depending on which neighboring country they retreat to?
Similarly, we developed rules for the Escalation of Force. These rules help soldiers determine whether a person or group is hostile and should be engaged. It’s easy when someone is shooting at you to know that you should shoot back — but it is always better to figure out if you are right to shoot at someone before they start shooting at you. Since the enemy doesn’t wear a recognizable uniform, the rules for Escalation of Force help soldiers determine whether a vehicle speeding toward a checkpoint is a suicide bomber, or a civilian trying to get home for dinner and not paying attention to the approaching checkpoint. These rules require constant updating to address the enemy’s ever-evolving tactics of attack.
In recent months, as the number of attacks and violent incidents began to decline, we recognized that the emerging stability and security would only take hold if the population began to trust in the institutions of law. If the Iraqi people don’t trust the rule of law and instead use the “rule of the gun” to settle disputes, then the cessation of violence will always depend on a large number of armed soldiers standing on street corners.
The Newest Legal Discipline
Ohlweiler and his daughter, Abigail, say goodbye at the airport.
The newest editions of the U.S. Army Field Manual define the rule of law as “a principle of governance in which all persons, institutions, and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, and which are consistent with international human rights norms and standards.” Devising ways to encourage and facilitate the emergence of this principle in a country where the state spent 30 years misusing and manipulating the law to victimize the population is not an easy task. But it is this task for which my office is directly responsible.
In order to foster the rule of law, we have engaged all entities of the Iraqi justice system to develop and implement an Iraqi-owned and accepted system. We do this through an approach we call: “Courts, Cops and Corrections.” Essentially, we work with officials in all three of these areas simultaneously. Endemic corruption, inefficient and intimidated courts, a recent history of distrusting these institutions, a general lack of concern for the human rights of detainees, and an insufficient number of trained and qualified individuals in each area makes this a particularly difficult task.
We first needed to understand the Iraqi legal system. Iraq is a civil law, investigative system (as opposed to a common law, adversarial system) with a long history of practices and procedures unique to this culture. Unfortunately, most of the country’s adult population grew up under Saddam Hussein’s version of Iraqi law, where rules did not apply to everyone and certainty of legal principles was nonexistent. Judge advocates spent countless hours researching Iraq law to produce information papers for U.S. forces trying to implement it. Additionally, we used these resources to mentor and teach Iraqi judges and police about how to implement their own system of laws effectively and fairly.
Our next step was to determine the current state of the Iraqi system. Judge advocates visited courthouses, prisons, and police stations to assess the physical infrastructure. We also needed to evaluate how Iraqi authorities investigated crimes, processed cases, fed prisoners, and accomplished everything else associated with a functioning criminal justice system.
There are approximately 1,235 judges throughout the country. The Higher Judicial Council of Iraq estimates it needs at least 3,000 judges. Unless expatriate Iraqi lawyers begin returning in large numbers, the Council estimates that they can produce just 89 qualified, trained judges in the next two years. That is a huge shortfall for a country that is twice the size of Idaho, with a population of 28 million people.
It was the next step, however, that proved to be the most difficult: determining what metrics appropriately reflect, in a quantifiable manner, whether the rule of law was improving over time. How do you assess whether the judiciary is functioning and secure? By the number of judges hearing cases? The number of cases heard? The number of judges murdered?
And, how do you measure whether the prison system has improved? By the number of detainees above capacity in particular facilities? Reports of abuse in detention facilities?
How do you calculate whether investigative procedures are getting better? By the number of people detained? The number of police investigators who have received approved training?
What about the overall population’s belief that the system is fair and just?
For all of these proposed metrics, how do you get the numbers and measurements in the first place? If we don’t have a good way to measure quasi-objective conditions that are reflective of the overall rule of law in Iraq, then we won’t know whether our efforts — whatever they might be — are improving the rule of law.
Once we identified those metrics, we turned our attention to developing plans and programs we hoped would improve the system and make it self-sustaining. We obtained and provided training for Iraqi trial judges, Iraqi investigative judges, and police investigators. We provided classes on the use of forensics and crime scene investigative techniques. We arranged personal security details for judges and provided computers, phones, and portable generators to courthouses and police stations. We developed training programs with provincial bar associations and law schools. And in perhaps our most ambitious and comprehensive project, we built a Rule of Law Complex where judges, police investigators, and pretrial detention facilities could all operate free of intimidation and acts of violence, and where they could mutually support each other in the pursuit of justice.
Of course, the best way to encourage Iraqis to use the Rule of Law is to demonstrate our own respect for Iraqi law. Since the implementation of the Security Agreement between the U.S. and the Government of Iraq on January 1, 2009, we have performed all of our operations by, with, and through the Iraqi Security Forces. This includes detaining and prosecuting Iraqis in accordance with Iraqi Law, including appropriate due process rights, such as issuing detention orders within 24 hours of capture. This is a novel legal experience; we are essentially imposing a criminal justice template onto combat operations. We have thus far developed successfully strong personal, working relationships with Iraqi judges, and formed multiple task forces to develop prosecutable cases based on Iraqi criminal practice and procedures.
Certainly, the development of the Rule of Law in Iraq is in its early stages, but we are making progress. For example, the Iraqi Supreme Court invalidated an attempt to prosecute a member of the government for traveling to Israel, a sign by the court that it wanted to use a system based on laws and not personal or religious animosity. When a local trial judge recused himself from a case because he was of the same religious sect as the victim, in favor of a judge from the same religious sect as the accused, it was a sign of the appreciation that sometimes the appearance of fairness and impartiality is as important as actual fairness and impartiality. And when an Iraqi police officer reports detainee abuse or corruption by fellow police officers, it is a sign of the overarching belief that the system can work. All of these are important steps forward in a country where such faith in fairness and the system have long been absent.
But there is still a long, long way to go.
As the end of my 15 months in Iraq approaches, I am reflecting on the totality of this experience. Being away from my wife and daughter was more difficult and more heart-wrenching than I ever could have imagined. However, being a part of something this big — rebuilding the legal system of a nation — has been a more gratifying and rewarding professional experience than anything I have done since graduating from the Law School. I’m not saying I want to come back anytime soon … but I wouldn’t give up the experience for anything.
Lt. Col. Jack Ohlweiler welcomes correspondence.