Rebuilding Iraq Starts at the Local Level, Panelists Say

June 5, 2007

With pressure from Congress to begin pulling troops out of Iraq and Afghanistan and the president's desire to stay in the Middle East to "win" the war, Americans are divided on how to proceed in the ongoing conflicts in the region. A panel discussion at the Law School May 31 delved into issues related to occupation and post-conflict legal regimes in Iraq and Afghanistan and how to stabilize and rebuild the region. The panel was part of the three-day seminar, "Applying International Human Rights Law to Today's Conflicts," which drew participants from human rights organizations, military and government entities, and the media. The event was sponsored by the Human Rights Program, the Judge Advocate General's Legal Center and School, and the International Committee of the Red Cross.

Paul Hughes

"The only way you're going to stabilize this country is province, by province, by province. If you try to do it from the central region working out it's going to take the world forever," said Paul Hughes, a senior program officer at the United States Institute of Peace (USIP). "In the provinces, that's where we begin to make an impact with the man on the street because working with provincial councils opens the door to the district councils and so forth and you really begin to make a difference," he said. Based on his life's work and his personal observations from visiting Iraq this year, he suggested that stabilizing the region requires mobilizing citizens at the local level, a feat that is easier said than done.

"The district councils and the neighborhood councils are two levels of governance that the Iraqis have never had before under Saddam [Hussein]. They never existed. These are two new animals that the Iraqis are trying to figure out what they are responsible for doing and how they should be used."

Zarif and Kantwill
Sam Zarif (left) and Col. Paul Kantwill

Working with the national government has proven to be "a waste," Hughes pointed out. Power struggles among members of the national government make it impossible to forge a cooperative partnership between local and national entities. "Let me make this clear, there is no unified Shia block in Iraq. Americans are continually told it's the Sunni-Shia split and that's what it's all about. That is balderdash," he said. "It's all about power redistribution and it's morphed into this Sunni-Shia thing, but it's really all about power redistribution. Those at the national level are still trying to acquire power."

Provincial reconstruction teams (PRTs) were deployed to aid in uniting multinational forces with the national and local governments in reconstructing Afghanistan and Iraq. According to Hughes, the PRTs, which are made up primarily of military personnel and a variety of other contractors and organizations, have severe limitations. The diversity of cultural experiences and backgrounds has made it hard for the PRTs to work cohesively and a lack of coordination between the brigade combat teams and the PRTs has slowed progress. Insufficient funding is another factor that has made these operations even more dysfunctional.

"One thing the military is very good at in its planning is focusing on the physical infrastructure. They believe that if you build it they will come. It doesn't work that way in Iraq," Hughes said. "You have to focus on building the human infrastructure, the training of the Iraqi people, so that they can be accountable to one another, open and transparent. The mission statements for the PRTs are loose, nobody really knows what they are supposed to do. If you don't know what you are supposed to do, you can just about do anything that you want. Now, does that produce something towards the greater good? Probably not."

According to Hughes, Baghdadis want to end the war, they just don't know how to do it. They have never had to deal with conflict management because Saddam Hussein simply killed any opposition. "For them to sit down and actually develop common identity markers and common interests is a new thing for the Iraqis, at least in Baghdad," Hughes said.

Establishing and maintaining an Iraqi police presence to enforce the rule of law also will help stabilize the area, Hughes suggested. Once the human infrastructure has been developed and secured, it will be easier for Iraqis to exercise control over the provinces without the help of a foreign military. Many regions of Iraq have been deemed secured and under Iraqi control; however, more help is needed to set up local governments and economic systems for the Iraqis to sustain control.

Col. Paul Kantwill of the Judge Advocate General's Legal Center and School also recently returned from Iraq and Afghanistan after serving a year-long tour as a deputy legal advisor for NATO's International Security Assistance Force and chief of international law for the Combined Forces Command. Kantwill focused on the role of an occupying force in international humanitarian law. Occupation law is primarily derived from The Hague Resolutions and the Geneva Conventions. "Historically, we all recognize, particularly after the conventions of 1949 and the events of World War II, that civilians in the areas of conflict need to be protected."

Occupation laws are designed to protect civilians to the maximum extent possible and preserve the status quo ante, Kantwill explained. "That is to say, disrupt life as minimally as possible in these particular environments. Let the laws work in the particular area, let the courts continue to work, let government institutions — to the extent that they're able — to continue to function in order to speed transfer back to a sovereign."

The occupying forces are responsible for preserving government function, the court systems, the rule of law, and public and private property. But Iraq and Afghanistan didn't have functional governments or infrastructures on which to rely or preserve, he said. Taliban shadow governments and corruption are rampant in the existing infrastructures, which is precisely the problem, Kantwill said. "We've got military forces operating in an area in which they cannot rely on all of those systems, all of those infrastructures, all of those governmental institutions that an occupying force in the past would have been able to rely upon," he said. "In essence we are not occupiers really in any respect. We are engaging in reconstruction operations as we're trying to do all of these things. We're really trying to rebuild the institutions that we would hope or expect to be able to rely upon."

Because there is little or no infrastructure to work from, it is imperative for the multinational forces to reform the rule of law and judiciary in the region. The PRTs offer one promise of restoring peace. "One of the most important aspects of this reconstruction operation — if we're going to get anywhere, if we're going to spur economic development, if we're going to have security — [is rebuilding] the courts. We have to have some sort of rule of law upon which to reconstruct this society."

Sam Zarif, a research director in Human Rights Watch's Asia Division, has investigated conflict and post-conflict zones in both Afghanistan and Iraq. "The situation in Iraq and the situation in Afghanistan is one where Human Rights Watch's view is what we call the 'Pottery Barn rule plus'; it's not just if you break it you own it," he said. "Pottery Barn plus means that if you break it you have to put it back together and you have to put it back so that it meets international standards.

"We don't get to say we've attacked them, we beat them, there's no sovereign government and we are not an occupying power, so they have no rights," Zarif said. "The legal framework for occupation is laid out in the Geneva Conventions and the Hague Resolutions. For us then, the question becomes how to interpret these and how to interpret the responsibilities towards those humans and the rights that they have in the area of occupation."

The key to determining who is responsible for protecting and restoring international humanitarian law is figuring out who has effective control, Zarif explained. Effective control can have a sliding spectrum. The more control one group has, the more rights it must provide, he said. Effective control doesn't end with the transfer of sovereignty, but rather when a group no longer has effective control.

Mistakenly, "one of the key factors in deciding who has effective control had been the political notion of sovereignty, [or] the transfer of sovereignty. Sovereignty is one of the few things in international law on which the view is you either have sovereignty or you don't."

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