Despite Tensions, Law Professors Find Hope During Iraq Trip

September 11, 2003

Law professors Rosa Brooks and Paul Stephan earned a war story of their own while driving out of Baghdad in August after a week-long trip researching the legal reconstruction of Iraq. They were stopped by heavily armed bandits and relieved of their money, and, Brooks said, most of her belongings.

Professor Brooks traveled under the sponsorship of the Open Society Institute, working on a preliminary assessment of transitional justice in the country.

"The place where you get robbed, as it turns out, is very predictable, very reliable," Stephan joked during their Sept. 9 trip report, sponsored by the J.B. Moore Society of International Law.

In contrast to the lack of security on roads, Brooks noted, U.S. offices in Baghdad were almost impenetrable behind heavy military security, making it difficult for ordinary Iraqis to gain access to U.S. officials. "If you're trying to win hearts and minds and so on, it's tough to do when there are these barriers," she said. Such barriers, they discovered, were both physical and cultural, as they navigated a sometimes resentful, but hopeful Iraqi society.

Despite the shaky conclusion to their trip, Brooks said she felt optimistic about Iraq's future, mainly due to the Iraqis themselves and how the legal elites were handling their new reality.

"There seemed to be a tremendous commitment from Iraqis at every level, just boot-strapping themselves up," she said. She described an Iraqi judge who greeted them with courtesy, wearing a heavy dark suit despite the heat; he, like many Iraqis, kept working throughout the conflict except for a week during the most intense fighting. "Ordinary Iraqis said, 'this is our job to keep things going.' People seemed to be working really hard to getting things going again."

By and large, "people are just thrilled that Saddam Hussein isn't there anymore," particularly as evidence of his human rights crimes mount. Despite resentment about U.S. motives for the war and subsequent takeover, Brooks said many Iraqis are optimistic about a new beginning.

Last semester Brooks had invited guest speaker Lt. Col. Mike Newton J.D. '90 LL.M. '01 to talk to her international human rights class. Newton hoped to start a judicial training program for Iraqi judges, and jokingly offered to give "tours of Baghdad" to his U.Va. friends if they would visit him there. Brooks, who is co-authoring a book on legal reconstruction issues in post-conflict societies, took him up on the offer and asked other professors at the school if they were willing to join. "Paul was the only person crazy enough to say yes," she said. Although Newton's project didn't work out, Brooks was already deep into her trip planning, and "had gotten much too enthusiastic about going to Baghdad." She traveled under the sponsorship of the Open Society Institute, and worked on a preliminary assessment of transitional justice in the country.

Brooks called the trip fascinating, tiring, and "very, very hot," with temperatures reaching as high as 130 or 140 degrees Fahrenheit. "Stepping outside at 3 pm was very much like stepping into a sauna, only without the little bars of soap and towels," she joked. Most public buildings, including those inhabited by coalition forces, did not have air conditioning because the power was not reliably on all day.

Just getting to Iraq proved somewhat challenging. Brooks and Stephan flew to Amman, Jordan, from JFK Airport in New York. Brooks then caught a humanitarian aid flight to Baghdad, while Stephan drove the 10 hours to the capital. In Baghdad they found less destruction than expected, although military road blocks and the lack of electricity to power traffic lights made traffic conditions frightening (Brooks described hurtling down an interstate in a taxi going the wrong way). Graffiti in Baghdad often reflected Iraqi ambivalence about the United States: on the base of what was once a statue of Saddam, famously pulled down by Iraqis with assistance from U.S. troops, the graffiti read, "All done, go home." Elsewhere, graffiti urged looters to stop looting and take up arms against Americans instead.

Brooks said coming to terms with the past, either through a truth and reconciliation panel or a tribunal, is crucial for Iraqis to be able to move on, but that many questions must be answered first. "What do you do? Do you prosecute bad guys? Do you prosecute all bad guys if there are thousands of them?"

Brooks was also interested in getting a sense about whether truly independent Iraqi NGOs such as the Free Prisoners Association were beginning to emerge. She called the NGOs "pretty fledgling" so far, since many are still tied to political parties or interest groups. Brooks and Stephan also went to police stations and courts, and met with Coalition officials and various senior Iraqi officials in the courts and ministry of justice.

Most Iraqis want at least a tribunal-ideally overseen by Iraqi judges-to bring the "big fish" to justice, Brooks said. Yet many in the international community desire a hybrid model that would also involve foreign judges and prosecutors. "These are crimes that are legitimately of concern to the rest of the world," Brooks said. But not surprisingly, "the Iraqis … are a little allergic to being told they need international help." And "unquestionably there are real problems with the big-money, boutique-bureaucratic international tribunal model… but the danger is that [the Iraqis] are in such a rush they may feel political pressure to act too quickly" and won't think through all the options before they settle on an all-Iraqi court.

"People of good will still are rather daunted by the prospect of outside help," Professor Stephan said.

An expert in Soviet and post-Soviet legal systems, Stephan was interested in how the post-war experience in Iraq compared to the post-Cold War experience in the former Soviet Union, and in the kind of lawyering being done by the Coalition Provisional Authority (CPA).The Coalition is "definitely playing catch-up," he said, scrambling to deal with problems like defending and filing claims on behalf of the country in the international law arena and determining who should and shouldn't be in detention. Detention issues are particularly urgent because wrongful imprisonment can mean a death sentence, since "both soldiers in uniform and prisoners under guard die" from the heat.

The CPA has been dealing with a number of issues, from "looking at the delivery of legal services to encouraging development of a new legal system in Iraq," Stephan said. "The legal basis of the post-war economy is something they're starting to discuss."

Because of sanctions, Americans had not penetrated Iraqi society before the war, unlike in the Soviet Union during the Cold War. As a result, Stephan said there is a significant disconnect between outsiders (mostly Americans) and Iraqis' needs.

"People of good will still are rather daunted by the prospect of outside help," he said, and rightly so, since outsiders don't know how to handle the problems placed before them. Stephan recommended getting as many Iraqis to American law schools as possible, as opposed to the more expensive option of paying American legal specialists to live and work in Iraq. Unlike in post-Cold War Russia, where $1 billion in legal services went to mostly Western providers, big law and accounting firms aren't yet lining up to help reconstruct Iraq.

"You're not seeing the K Street crowd yet in Baghdad, and I consider that a good thing," he said.

Stephan described one "remarkable" morning when their group visited the Free Prisoner's Association, which had a repository of several rooms that housed documentation of the regime's executions-and this repository was just one of several. He called the experience "a rather profound physical encounter with a great evil." The Iraqis working there were impressively trying to create a record of what happened, he said, unlike the Soviets, who ended efforts to create such a record of Communist crimes after 1991.

Brooks said although there were many downsides to U.S. unilateralism in Iraq, the relatively unified command did have the advantage of allowing greater coherence in policy-making after the war than had existed in places such as Kosovo, which were administered by the U.N. For example, civil servant salaries were paid soon after the war, unlike during the Kosovo conflict. Nonetheless, she said it would be important for the United States to involve civilians from other nations in Iraq's legal reconstruction, both to bring in new skills and to increase the credibility of efforts to promote the rule of law. She described an inherent paradox in Americans creating the "rule of law" when their power in Iraq now depends on the rule of guns.

Stephan predicted the formation of a secular government, particularly since one poll, although not completely reliable in the region, noted that a mere 5 percent of Shia wanted a religion-based administration. "The [secular] model is essentially a legal legacy from the Ottoman Empire, which is to say, the Swiss legal code." Impressed by the legal elite he met, Stephan said "I think the people are there to build the institutions."

"There's an educated middle class that is eager to get up and running," Brooks agreed, although she cautioned that in some more rural regions of Iraq the absence of a well-organized governing authority has left a vacuum which more extremist religious organizations have leapt to fill, since they often have the structures in place to provide aid and coordination. She noted that this could pose longer-term problems for a secular government.

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