Iraq's Legal Infrastructure Unstable, Spencer Says

November 11, 2005
William Spencer, Washington, D.C., director of the Public International Law & Policy Group, spent a month in Iraq as an adviser in the constitutional process.

Despite voter approval of the new Iraqi constitution and plans for national elections on Dec. 15, developing a solid Iraqi legal infrastructure continues to be a precarious process, according to William Spencer, Washington, D.C., director of the Public International Law & Policy Group. Spencer spoke Nov. 8 on his personal experience as part of a team sent to Iraq to provide technical assistance in developing the constitution.

"It's a long, hard slog," Spencer said. "I really want to communicate that to people because there is a real sense that 'oh, this is a real positive thing for Iraq and it can heal the country,' and it can. But it's also got to be put against the reality [of the situation]."

In July 2005, Spencer and a team of four consultants traveled to Iraq as part of a cooperative effort to consult with Iraqi officials on the architecture of a national constitution. The purpose of the trip was to serve as representatives of comparative law, and not a particular political arm of the U.S. government, according to Spencer.

"I want to stress that this was technical assistance," he said. "This was not political. This was not advising on the politics of it. What we were trying to do was provide a resource to Iraqis for when they wanted to discuss things like federalism, for example."

Spencer's month-long stay in the Green Zone area of Baghdad (he returned in mid-August) was fraught with its own perils. The rough and rugged environment was not particularly conducive to smooth legal advising, considering what he calls the "declining security situation" in Iraq. "[There was] no water or electricity," he said. "No real infrastructure — roads falling apart, barriers popping up, massive traffic jams, and also bombs going off everywhere."

Given the constant disruptions and security risks, there was hardly any time for thorough consultations with Iraqi officials. Planned meetings with officials never got off the ground and the Sunnis didn't join the process until mid-July. The constitutional drafting committee was given just a two-month window to prepare a document. "That's a land-speed record," said Spencer. "And the document shows."

From his position at the center of post-war Iraq, Spencer noticed the relatively low profile of the U.S. military during his trip. "There were very few American diplomats there," he said. "There were only two people from the State Department in the National Assembly, [two people from the United Nations] and the four of us as part of our team and that was it."

A severe lack of resources debilitated the efforts of Spencer and his fellow team members. "In general we were about 20 percent effective in a normal workday," he said. Strict security measures ("you had to book an appointment with a security officer to cross the street") and an absence of efficient translators and communication outlets such as cell phones and the Internet impeded the team's effectiveness.

"I think all of us were really surprised," he said. "From the beginning, the U.S. had a very hands-off effort and I do think, that to the Americans' credit they really did believe that a deal could just sort of come organically from within the National Assembly. So that's why we were there: to try to facilitate that process."

Despite such impediments, officials submitted a rough draft of the Iraqi constitution in late August. Spencer remains relatively positive about his consulting efforts.

"All of these criticisms that I've thrown out need to be put into context," he said. "Again, nobody shot each other, negotiations went forward, people took faith in the negotiations — it was a very positive thing. It really could have been a lot worse and it's just a miracle that the whole process just didn't break down at all."

Spencer's own impressions of the Iraqi constitution reflect the same sense of trepidation he felt during his stay in the country. "The bottom line, for me at least, is the constitution is like a peace treaty," he said. "It's just basically outlining the terms of endearment and how people are actually going to live together. The paper of the constitution, the agreement itself, doesn't really matter. What matters is the willingness of everybody to be civil and to work for a common goal."

Compromise is necessary for the new constitution to function, he said. Despite the document being "quite progressive" when compared with others in the region, there are numerous ambiguities lurking in the text. Some key issues have yet to be completely recognized, such as the role of Islam in the new constitution.

Spencer also noted there was "surprisingly very little discussion" on women's rights and minority rights in general. Federalism is another hot-button topic. "Federalism is the f-word," said Spencer. "Don't say it; it's cursing."

Implementing legislation to address such neglected issues will be key to the survival of the fledgling constitution, said Spencer, calling it a means of "putting some meat on these bones."

With Iraqi elections planned for Dec. 15, Spencer noted a few goals to help ensure that his efforts and those of many other constructors and consultants of the constitution were not in vain. "What we have now is an opening," he said.

Bringing the Sunnis on board is important, lest the country fall apart, he said. The international community needs to look at the agenda and provide support for budding institutions, especially those implemented to deal with human rights issues, and ensure that the national elections in December be credible.

As Spencer noted in an Aug. 13 Boston Globe editorial he co-authored, "During the drafting process the nascent political factions have developed an effective means for a consensus building, and for constructing bridges to resolve points of impasse. To turn the political compact into a workable constitution will require the continued development of these skills and the assistance of the United States and the international community."

"It's not going to be black and white," Spencer told the audience. "It is not Balkanization. It is not a unitary state but it is a mixture of both. Hopefully this incremental process can make some real difference in the lives of Iraqis."

The J.B. Moore Society of International Law sponsored Spencer's talk.

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