Iraq, Afghanistan struggle to secure rule of law

BY REBECCA AGULE

On Thursday, April 1 – just hours after militant forces attacked Kandahar government offices hosting a seminar promoting democracy – the Harvard International Affairs Council presented a discussion with Assistant United States Attorney Philip Lynch entitled “The Future of the Rule of Law in Iraq”. Lynch met with a diverse but intimate group, comprised mostly of Law School and Kennedy School students, in Pound Hall.

Lynch recently returned to the U.S. following a year-long detail based out of Baghdad during which he served as the Department of Justice Rule of Law Counsel, as well as the U.S. Embassy-Baghdad Rule of Law Coordinator. A West Point graduate and former Army Judge Advocate General, Lynch has addressed a wide variety of audiences, explaining the intricacies of his Iraq tour to groups as ranging from other practicing attorneys to fifth graders. Starting in 2003, the State Department directed U.S. rule of law projects in Iraq, with little input from the Department of Justice (DOJ). In early 2007, U.S. Ambassador to Iraq Zalmay Mamozy Khalilzad requested greater DOJ involvement, a shift that occurred in March of that year.

Joking that his main duties included fetching tea during the trial of executed Iraqi President Saddam Hussein, Lynch reminded his audience that the views he presented were his own, not those of the U.S. government or the DOJ. Indeed, Lynch spent much of his time outside the embassy, traveling between court houses, prisons and police stations all over Iraq. “You can’t promote the rule of law while sitting inside the American embassy,” Lynch declared.

Citing his opposition to the Iraq war, Lynch said, “Personally, I think we should have stayed focused on Afghanistan or Pakistan, but that is my opinion as an American citizen, not necessarily what I should say as someone who works for the DOJ.” Smiling, Lynch continued, “I am old enough that, after Vietnam, I thought the U.S. had stopped getting involved with rule of law issues.”

Lynch discussed numerous aspects of his former job, from his personal frustrations to various recruiting philosophies. In terms of the latter, Lynch noted that his co-workers were often “a lot of old guys, people who had been lawyers for a long time.” Rather than continuing those hiring practices, Lynch explained his own focus upon people who had experience working overseas.

“I’ve tried to focus on people who have a military background, or have been in Peace Corps, missionaries,” he said. “Living in rural Kenya may better prepare someone for life in the Middle East.” Still, he continued, a lack of Arabic speaking lawyers continues to plague U.S. work abroad.

Confusion regarding chain of command often compounded the already significant barriers to communication with Iraqi nationals, creating tensions between the federal agencies working on the ground. Lynch noted a distinct lack of clarity regarding who answered to whom.

“Do I control the DHS [Department of Homeland Security] guy? Or does he work for his DHS people back in the U.S.?” Lynch wondered. “Before I got to Iraq, it seemed obvious that they would work for me, through Ambassador [Ryan] Crocker [Khalilzad’s successor]. But that didn’t turn out to be the case.”

Lynch moved the discussion from a rule of law retrospective to his thoughts regarding future progress. “It’s an interesting discussion. Initially we focused on criminal law in Iraq. But now, for the purposes of economic development, we have shifted to civil law. If we want companies to feel comfortable coming to Iraq, we have to make sure they feel they will get fair judgments in Iraqi Courts.”

Lynch then recounted a story to underline the need to protect the legal system’s physical security. As U.S. Marshals guarded the front entry to a Mosul court house in which Lynch sat, a member of Shi’a cleric Moktada al-Sadr’s militia leaned back in his own chair, showing the judge his AK-47 in an intimidation attempt. “Without security, you have no rule of law,” Lynch declared. Lynch lauded the Surge advocated by General David Petraeus, stating, “Until you do what the surge did – that is, ensure that people feel secure – you cannot do anything on rule of law.”

Attempts to define the rule of law as seen by Iraqis have elicited the involvement of the Chief Justice of Iraq’s Federal Supreme Court. Such efforts have also raised questions regarding the scope of the rule of law, as well as what happens when civilians do not agree with the U.S. characterization or when foreign actions appear hypocritical.

“If you are there to promote rule of law, you cannot be going through red lights,” Lynch said. He analogized such inconsistencies to efforts by the U.S. to instruct Iraqis on issues such as prisoner treatment in the shadow of the Abu Ghraib prison scandal. Rather than trying to claim certain tactics are un-American, officials must focus upon a broader notion of international standards.

Following Lynch’s presentation, several audience members raised questions regarding Afghanistan. Lynch explained some of the major differences between the situations effecting each country, especially given Afghanistan’s poverty. Low salaries make Afghan judges and prosecutors susceptible to corruption. “If you know the judge can be easily bribed, why would you even go to him?” Lynch said. The need for international funds may serve as an avenue through which to expert certain pressures upon Afghanistan.

Lynch openly wondered about the prospects for the rule of law in the future of both countries, in the midst of continuing violence. “What happens after we leave? Are they just humoring us?”

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