JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that although there are fears that Iraq may slide into chaos due to the impending withdrawal of troops, it is more likely that the country will continue to make slow advances in solidifying its legal and constitutional structure...
enerally speaking, the American role in both creating and maintaining order in contemporary Iraq can be exaggerated. Whatever Iraq's current problems, and they are quite considerable, levels of intercommunal violence are lower than they were at the height of the American intervention
, and the role of the state in maintaining basic order on the streets is greater than it was in 2004 and 2005, even with the contribution of American troops at that time. If that is so for general, public order, it is dramatically more the case for constitutional and legal order. Iraq's legal and constitutional architecture has been built and developed largely by Iraqis, with modest American support coming from hardworking and well meaning advisors who were, by their own admission, limited by an unfamiliarity with the legal system they were supposed to be advising. The idea of a constitutional state whose constitution was drafted by Americans and where public order was being maintained by American troops may have been an appealing narrative to some, but it is one dramatically at odds with the facts. It is for this reason that the idea of an immediate backslide into chaos and disorder upon full American withdrawal seems somewhat difficult to imagine.
Yet the US continued to have one important role in Iraq from 2003 until now, and the presence of its troops tended to support that role in many ways. This related to mediation of existing disputes among Iraq's three central identitarian groups the Sunnis, the Shia and the Kurds. Thus, for example, the Americans neither drafted nor enacted key amendments to the Election Law of 2009 that made Iraq's parliamentary elections of 2010 possible. The Iraqis proved themselves capable of drafting legislation that was messy but worked, and in using their own parliamentary procedures to enact it. In fact, greater outside technical support to make a better legislative product may have proven itself quite damaging, as a means to delegitimize the legislation and drain domestic enthusiasm for it.
The greatest US contribution, however, and the element without which success might have been difficult to achieve, was in acting as the final mediator among the competing groups. Of course the groups negotiated among themselves as well, and could reach pacts with or without American support, but the presence of the US, and its interest in seeing consensual legislation passed, proved vital in facilitating dialogue and the levels of compromise necessary to get the law through the parliament. The presence of US troops was not directly relevant to the mediation role in that instance, but plainly the American investment in Iraq, and its ability to use force in other contexts, certainly made its mediatory role more powerful as a general matter.
As American troops withdraw from Iraq, and as American interest in Iraq wanes, it is the relative weakening of this position as mediator that is the most troubling. This is particularly because, as the history of the US shows, divisive legal and constitutional disputes are hardly solved by language in legal text. Rather, such disputes are continually managed through negotiation, electoral competition and dialogue. As concerns legislation, new laws are often passed, and as for constitutional disputes, new readings of expansive constitutional text are developed that bring forth continually evolving forms of constitutional order. It is vitally important that this evolution is managed in a manner that does not cast doubt on the legitimacy of the state's authority by any identitarian group, or a slow and eventual disintegration of the state is at least possible.
Thus, for example, the Iraq constitution contains language that both enhances the role of Islam in the state through requiring that all legislation enacted not be contradictory to Islam's "settled rulings," and ensures the same panoply of constitutional rights and freedoms that exist in constitutions throughout the world. There are obviously many constructions of this deliberately expansive and broad language that could be deemed consistent with its text, and the matter is debated extensively within Iraqi society. Secularists like Iyad Allawi suggest that Islam is more of a spiritual ethos that pervades the social order and legislation need only be in basic harmony with that general ethos, while Islamists like Muqtada al Sadr seem to envision something considerably more stringent. No single reading is likely to become dominant at least in the near to medium term, and the matter will ebb and flow over time, precisely as interpretations of constitutional text has in the US. There is nothing wrong with this, in fact, if constitutional longevity is a goal of any state, then such competition and evolution over constitutional meaning is inevitable. Yet it requires dialogue and compromise, particularly in a divided state, so that one view is not imposed against the will of a recalcitrant identitarian group, which might then deem the entire state project entirely illegitimate.
As concerns Islam and the state, despite the outsized media attention given them, the Iraqis seem quite capable of handling them without the help of outside powers who inevitably fail to appreciate the nature of the divides. Yet as to federalism, the matter is far from clear. Certainly repeated and continuous dialogue managed by the US helped to bring Sunnis into the constitutional dialogue, to such an extent that a community that once regarded the constitution [PDF] as being the essence of imposition never makes such a claim anymore. In fact, the Sunni parliamentary speaker very recently spoke favorably of the very federalist provisions to which his Sunni predecessors took such strong exception. Whether or not such dialogue to reach consensual solutions can continue without the US in its key mediatory role is a matter of some question, and given the extent of division in Iraqi society over any number of topics, ranging from Kirkuk to the management of oil fields, this is of deep concern.
In the end, as a cautious optimist, and taking into account significant advances from 2005 forward, I think the state is likely to continue to advance in the slow, plodding manner that it has, and that the type of cataclysmic violence that existed in 2004 and 2005 is a thing of the past. Still, I would have been more comfortable had there been a way for the US to prolong its presence and its substantial investments longer so that we could be more certain of this.
Haider Ala Hamoudi is an Assistant Professor of Law at the University of Pittsburgh School of Law. His scholarship focuses on Middle Eastern and Islamic Law, particularly as it pertains to matters of commerce. Hamoudi spent most of 2009 in Baghdad advising the Constitutional Review Committee of the Iraqi parliament, responsible for developing amendments to the Iraq Constitution aimed at national reconciliation, on behalf of the US Embassy in Baghdad. He is currently preparing a book on the drafting and subsequent evolution of the Iraq Constitution to be published with the University of Chicago Press. He maintains a blog on Islamic law.
Suggested citation: Haider Ala Hamoudi, Post-War Iraq: Slow and Steady Progress, JURIST - Forum, Dec. 13, 2011, http://jurist.org/forum/2011/12/haider-hamoudi-iraq-withdrawal.php.
This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org