- This note provides background on the proposed OPA-sponsored workshop Justice and Accountability Law (JAL) and the Banning of the Ba’ath Party Law.
- The workshop will be funded under the “Supporting the Council of Representatives in Enacting Key Legislation and Promoting National Coexistence” project funded by the German and Dutch governments and managed by UNOPS on behalf of OPA.
- The main focus of the project has been on what has been called the “national reconciliation package”, i.e. the National Guard Law, the Amnesty Law, and the JAL. The JAL is part of the second pillar of the project on “review and amendment of criminal legislation and procedures”. Adoption of the JAL is critical because a) it was part of the Political Agreement of September 2014, and b) it is considered a legacy of the past that hinders cohesive dialogue towards national reconciliation and the building of a new Iraq.
- A review of the JAL has been expected since Prime Minister Abadi took office as a way to build confidence and trust behind a government of national unity and to promote national reconciliation. The Council of Ministers (CoM) transferred the draft law early in March 2015 to the Council of Representative (CoR) Legal Committee. The draft was later transferred to the parliament, and specifically the Reconciliation, Accountability and Justice Committee (RAJC). It was tabled for a first reading in a CoR plenary session in August 2015. Preliminary discussions by OPA at the CoR with the RAJC, the Legal Affairs Committee, and heads of blocs, amongst others, pointed to a number of challenges for the way forward:
- The Iraqi Forces Coalition (IFC) was extremely unsatisfied with the draft, emphasizing that some provisions were even stricter towards ex-Baathists than the previous law.
- The National Alliance (NA) considered that the JAL draft made major concessions by allowing former Ba’athists to return to service. They were particularly concerned about the dissolution of the Justice and Accountability Commission and the transfer of its mandate to the Judiciary, before it was allowed to complete its caseload.
- The Kurdistan Alliance parties mentioned they had no particular interests in the JAL and would not actively participate in the discussions.
- All parties agreed the JAL adoption process would take time.
- In light of these challenges, the first draft was split into two separate bills: a Justice and Accountability Law and a separate Banning (or Criminalizing) of the Ba’ath Party Draft Law. This was seen as a way to ease passage of both laws. In the current JAL, the relevance of the Justice and Accountability Commission (JAC) would be reviewed by the CoR after one year. This is aimed at satisfying the IFC, which always considered the JAC as a transitional justice tool, not a permanent structure. However, the NA still considers the JAL too loose and too lenient towards ex-Ba’athists in particular, and the IFC in general.
- In the framework of the overall project, the OPA strategy which was presented to the SRSG and DSRSG-P in June and adopted by the donors a few weeks later envisioned the following:
- Continued engagement and advocacy at the CoR and beyond with other relevant stakeholders to gauge their views and perspectives on how the draft is evolving. This will also aim at bringing views closer.
- Organizing a workshop with limited participation to allow a frank exchange of views, initially scheduled for the end of July 2015. The outcome of the workshop could be presented in a closed meeting to members of the RAJC and the Legal Affairs Committee, the Speaker and his two deputies.
- OPA’s continued engagement was successful at gauging the views of all relevant stakeholders and building confidence, in particular with the RAJC and the Legal Committee of the CoR.
- The purpose of the proposed workshop is being closely planned with the RAJC and the Prime Minister’s Office-National Reconciliation Commission (PMO-NRC) to facilitate the discussion of Iraqi Members of Parliament (MPs) and other key stakeholders, in developing consensus on the final draft of the proposed JAL (and Banning of the Ba’ath Party Law), which is currently pending a second plenary reading.
- Ensuring that the JAL is amended in a manner that reflects the key objectives of all parties falls within UNAMI’s mandate to promote national reconciliation, and because a vote on the law is imminent it is critical that OPA act with haste to ensure consensus on its passage.
- The expected outcome of the workshop is an agreement among key stakeholders concerning the final text of the JAL and an agreed roadmap to hold a final vote on its adoption at the CoR.
- The Iraqi delegation will include twenty-five to thirty MPs that are draw from the RAJC and the Legal Affairs Committee, senior government officials from the PMO-NRC, and legal experts, including members of the Justice and Accountability Commission. Delegates are drawn from key legislative committees and political party blocs to ensure broad representation.
- The proposed workshop will take place outside of Baghdad to ensure that senior Iraqi decision-makers have the opportunity to agree on a final text in a private and focused setting more conducive to honest negotiation. Erbil has typically been unacceptable to National Alliance parties due to the ongoing political disputes between the federal government and the Kurdistan Regional Government. Other locations such as Amman, or Doha have also been considered but are considered to be too politically sensitive for the objective of this meeting.
- Delegates will be accompanied by DSRSG Gyorgy Busztin, OPA Head Marwan Ali, and two to three additional UNAMI/UNOPS staff. Three experts, including two lawyers and a mediation expert, will facilitate the planning and facilitation of the workshop.
UNITED NATIONS OPA TWO STAGE WORKSHOP
ON
DRAFT DE-BAATHIFICATION AND JUSTICE AND ACCOUNTABILITY LEGISLATIVE PROPOSALS
WITH MEMBERS OF
IRAQI PARLIAMENT
JUSTICE AND ACCOUNTABILITY COMMISSION
PRIME MINISTER OFFICE – IMPLEMENTATION & FOLLOW UP COMMITTEE FOR NATIONAL RECONCILIATION
STAGE ONE:
LEARNING FROM PRECEDENT
THE COST OF FAILURE AND THE BENEFITS OF SUCCESS IN COMING TO TERMS WITH THE PAST
DRAFT ANNOTATED AGENDA FOR OPA CONSIDERATION
_____________________________________________________________________________________________
STAGE ONE. DAY ONE
09.00-09.30 Registration
09.30-10.00 Welcome & Key Note Opening
THE ISLAMIC TRADITION OF RECONCILIATION, FORGIVENESS AND JUSTICE
10.00-10.45 Plenary Session:
THE WESTERN TRADITION OF COMING TO TERMS WITH THE PAST: the winners and the losers
Dr Brian Brivati
1) Taking the process out of present politics
2) Ensuring elite support for the process and engaging victims in the process
3) Supporting and enlarging the ownership of the process
4) Centring the positive reasons for the need to succeed in the process
5) Emphasising the costs of failure
10.45-11.00 Tea and Coffee Break
11.00-12.45 Comparative Analysis Study – Peace and Justice Issues[1]
- South Africa
Balancing the reconciliation of society with the needs for justice
(Christina Murray MSU SBT or Roelf Meyer – Former Cabinet Secretary for Defence to President De Clerk & Chief Negotiator for SA Transition)
- Northern Ireland
Dealing with Sectarian Conflict and Previous Crimes
(Brendan McCallister – Former Victims Commission of NI and MSU SBT)
- Germany
De-Nazification and Post Unification Process
Germany
De-Nazification and Post Unification Process
12.45-14.00 Lunch
14.00-14.45 Plenary Session:
Plenary Session: Comparative Study of De-Bathification Processes Elsewhere[2]
- Rwanda
Formal and informal criminal justice measures
- Former Soviet Spaces
Limitation & Sunset Clauses re Czechoslovakia
14.45-16.45 Working Group Sessions on JAL[3]
The plenary will divide into fours sub groups to consider specific JAC provisions from four perspectives, having also regard to the over-arching principles and objectives of the legislation identified above
Each session will have (a) a facilitator; (b) start with an overview presentation by an assigned resource person; (c) elect two rapporteurs to report to the plenary session on findings and recommendations
16.45-17.00 Coffee and Tea
17.00-17.30 Facilitators report on how the working group sessions proceeded
DAY 2
9.00-10.00 Plenary Session: Summary Report of the Working Groups on JAC
Each rapporteur from each group will report on their discussions, findings and recommendations including areas of consensus and disagreement
10.00-10.15 Tea and Coffee break
10.15-11.00 Plenary Session: Overview of the De-Baathification Process To Date Plus New Draft Legislative Provisions
Presentation by OPA Resource Person
11-12.30 Plenary Session: Comparative Study of De-Bathification Processes Elsewhere[4]
- Germany
De-Nazification and Post Unification Process
- Rwanda
Formal and informal criminal justice measures
- Former Soviet Spaces
Limitation & Sunset Clauses re Czechoslovakia
- Northern Iraq
KRG experience of dealing with Saddam’s spies and security assets
(Professor Brian Brivati – Academic Director
of the JSMT)
12.30-14.00 Lunch
14.00-16.00 Working Group Sessions on De-Baathification:[5]
The plenary will divide into fours sub groups to consider specific DB provisions from four perspectives, having also regard to the over-arching principles and objectives of the legislation identified above
Each session will have (a) a facilitator; (b) start with an overview presentation by an assigned resource person; (c) elect two rapporteurs to report to the plenary session on findings and recommendations
Specific topics covered would include exploring whether the class of Baath members should be widened to include nominal members and why and for what purpose
- Political (MSU SBT)
- Legal (OPA Youssef Auf)
- Administrative (Gen. Ali Ghaleb)
- Human Rights (Ali Salameh)
16.00-16.30 Tea and Coffee
16.30-17.00 Report of the facilitators of the Working Groups on DB
DAY 3
09.00-10.00 Plenary Session: Summary Report of the Working Groups on DB
10.00-10.15 Tea and Coffee
10.45-11.00 Plenary Session: Keynote Address from Two Clerics
This would consist of inspirational messages to promote political compromise and national reconciliation
11.00-12.30 Plenary Session: Structuring the Draft Legislation[6]
This session will concentrate on exploring global issues that affect both DB and JAL legislative drafts, namely whether there should be:
- Distinct separate pieces of legislation
- Different institutions to regulate both pieces of legislation
- Time limit sunset clauses for transitional justice provisions
- Formal recognition of the separation of powers concerning the prosecution of offences
This session will include reports from the OPA resource persons attached to the working groups moderated by the facilitators
12.30-14.00 Lunch
14.00-16.00 Plenary Session: Final Exploration of Findings and Recommendations[7]
This session would work through and vote on the majority and minority recommendations regarding specific draft revisions to the existing draft legislative provisions raised as a consequence of each working group. This would be organised in advance by a Resolution Committee that would draft revised options
The Resolution Committee would consist of OPA resource persons and members from each party as well as a representative from the PM Office and MSU SBT.
16.00-16.30 Tea and Coffee
16.30-17.00 Plenary Session: Final Report of the Resolution Drafting Committee
17.00-17.30 Plenary Session: Delegate Vote to Approve the Final Report of the Conference including recommendations concerning revisions to the draft legislation
END
[1] This should be an inspirational, energising presentation by a group of international experts on the benefits of transitional justice – when it works and the struggles of compromise to get there. This is in part a piece of theatre but the underlying message is that other people have been here before and they have worked out compromises in which both sides make concessions and the benefits far outweigh what they thought they would gain by intransigence.
[2] Plenary – What has worked, why it has worked and what the long term benefits are of success? A plenary input that covers the principles of best practice in the areas of specific disagreement and comparative examples of success and failure of processes with respect to these areas:
- How do you define the category of members of the previous regime, what should be their status and how should that status be handled? Examples, the different treatment of Nazis in different zones of occupation.
- The principle of nominal participation and what it means.
- The question of judgement as against punishment, illustrations from Rwanda and South Africa.
- The process of assessing the individual, the case of East Germany after 1991 and the Stasi Files.
- A clear statement of best international practice in this area.
- A deeper discussion of the nature of guilt and the difference between an acceptance of a judgement against all members of the Party and the punishment of only those who have committed crimes.
- How do you know when a process has run its course and achieved its objectives? What is the right moment to hand over to the judicial authorities? When and who, and if, can you take politics out of the process. The case of Germany and the return to trials in the 1960s, the case of Spain and the backlash against the absence of a process and the case of the Czech republic and the date limitations of what will be included in the judicial processes.
- A clear statement of what should inform the ending of a separate transitional process and the handing over of this process to the courts.
[3] Breakout in mixed groupings- each team to stress test specific provisions/themes in the draft legislation through the prism of those principles to map out all areas of agreement both in terms of overall goals and strategies and in terms of tactics. Each group to agree consensus items and minority report with the aim of isolating the extremisms within blocks and exposing their positions and the relative levels of strength for support for them.
[4] Plenary – What has worked, why it has worked and what the long term benefits are of success? A plenary input that covers the principles of best practice in the areas of specific disagreement and comparative examples of success and failure of processes with respect to these areas:
- How do you define the category of members of the previous regime, what should be their status and how should that status be handled? Examples, the different treatment of Nazis in different zones of occupation.
- The principle of nominal participation and what it means.
- The question of judgement as against punishment, illustrations from Rwanda and South Africa.
- The process of assessing the individual, the case of East Germany after 1991 and the Stasi Files.
- A clear statement of best international practice in this area.
- A deeper discussion of the nature of guilt and the difference between an acceptance of a judgement against all members of the Party and the punishment of only those who have committed crimes.
- How do you know when a process has run its course and achieved its objectives? What is the right moment to hand over to the judicial authorities? When and who, and if, can you take politics out of the process. The case of Germany and the return to trials in the 1960s, the case of Spain and the backlash against the absence of a process and the case of the Czech republic and the date limitations of what will be included in the judicial processes.
- A clear statement of what should inform the ending of a separate transitional process and the handing over of this process to the courts.
[5] Seminar discussion in smaller working groups: What is the distance between these models of best practice and the reality of Iraq? What are the major obstacles between these models and what can be achieved? These groups to work with facilitators and rapporteur to explore the contextual constraints but also the specific provisions and their drafting that creates the distance between international best practice and what is being proposed.
[7] Should include presentation of draft insights and recommendations i.e. purpose is to produce a stress test report of compliance with principles governing the 2014 agreement – plus options re different legislative provisions that the workshop will recommend either with unanimity or with consensus and minority recommendations. Final discussion of the process going forward, next steps and assuming there are areas of disagreement how these will be discussed further/resolved.
Such report will need to identify and articulate clearly areas of disagreement – Does the draft law make the position of the former Baathists better or worse? Should the definition of who is a Baathist be reinstated or should the definition remained expanded to include those who only nominally participated? Should JAL be allowed to complete its course or is this the moment to transfer cases to the judicial system. Finally it should produce concrete recommendations for compromises to move the legislative process forward for national reconciliation.
The Charlwood Review Books 