Transitional justice in Iraq between concept and facts

Dr. Faleh Maktouf Kased

The concept of transitional justice:

Transitional justice  can  be defined as practical applications or measures taken by authorities who left the dictatorship and moved to the democratic rule, and these measures are often based   on addressing (all) the effects of the regimes on  society in general and  on the victims of the previous era in order to make reparations in the broad sense,  which includes material and moral compensation  in particular., in addition  to rehabilitation  at various levels  in order  to live in a phase of harmony in which public and personal freedoms are exercised for all and in harmony with human rights.

Transitional Justice Approaches:

Transitional justice has multiple approaches that have contributed to the development and clarification of its concept in theory, and these approaches have been deduced and extracted through practical and procedural steps of global experiences that have been developed in front of  a relative choice, by applying all these strategies  or choosing what is commensurate with the actual need that enables it to develop all or some   transitional justice approaches. For example, in Germany, the trial and non-impunity approaches that took place at the  Nurnb Court in  1945 for Nazi leaders, in addition to compensation for victims, played  a significant role in the experience of that country after World War II. After the unification of Germany with the eastern part after the collapse of Berlin in 1998, the most important approach to transitional justice was the purge of institutions in the eastern part, while in Sierra Leone, a commission of inquiry Facts and reconciliation formed in July 2002 played the largest role in resolving the issue of transitional justice, while the approach to trials of  Argentine leaders  and their impunity was a  priority in that experience, and the opposition's access to power through negotiation was the closest to the applied practice in  the Polish experience, and thus the priorities for  the applications of transitional justice strategies are multiplied according to each experience separately. From the follow-up of global experiences and their applications, the most important approaches to transitional justice were diagnosed,  which are summarized astruth commissions, institutional reform, trials and non-impunity, compensation and reparations, apology and reconciliation, purification, anniversary, memorials, and negotiation.

The significance of transitional justice in the Iraqi experience:

Transitional   justice in Iraq has its own significance that is consistent with the general understanding at the official or popular level,  which is that  this type of justice  is only  associated with the reality of compensation and  reparation for victims, and therefore,  according to that conviction and understanding  , transitional justice  must cease to exist when it achieves that end. However, this perception created a kind of  engagement  that reduced the supposed  importance  of transitional justice,  which led to a reduction  in its role, and the impact of this on the lack of  promotion at the social level,  or its  adoption as a culture of change.

In fact, this arbitrary  understanding  that links  transitional justice to compensation for victims  and treats it as the sole mission  of transitional justice  needs to be reviewed because transitional justice,  from the perspective  of any democratic transition, is a pillar of any new system.  The regime can achieve the foundations of democracy, civil peace, and the rotation of power at the very least, because it is based, according to international experiences, and at a minimum,  on creating balance  and coexistence andconsolidating societal harmony between two decreasing categories,  the first category, which is considered as a legacy  Duringthe former regime,  it has been established for decades and established a culture of violence, which is represented byarbitrary practices based on more arbitrary legislation linked to  an integrated society of followers and  followers and an obedient structure  of thesecurity services that need  institutional reform.  Inaddition  , there is a party apparatus that supports the regime,  which represented  the interests of a  class of beneficiaries, and among the  second category, such as victims who  were subjected to human rights  violations and whose lives, interests, livelihood and freedom were exposed in all fields. Some of  them have been subjected to genocide and to punishments contrary to human rights, starting with the  death penalty and ending with imprisonment, displacement, lack of equal opportunities, national and sectarian discrimination,   and other diminishions of their  right to live in dignity, for a period of  time.    This contrast and conflict needs that  balance between the  two extremes and create a  societal harmony between them,  and to emphasize  that  overcoming the legacy  of the past can only come through the support of a setter and a real adoption of an important approach to transitional justice that  The  term "reconciliation" is interspersed with approaches to apology  and frankness, as well as prosecution for those who committed  crimes worthy of punishment or rehabilitation that are accompanied by the cleansing of the state apparatus from the elements that committed those crimes, and this indicates  the  importance and seriousness of transitional justice,  whose  consolidation as a practical practice must be influential in changing the balance of power towards concepts Justice and equality,  concretely  and with its permanent characteristics  that are  identified with the existence  of a new democratic  system,  in which it is assumed to differ from its predecessor by adopting the broad concept and practical practice of   transitional justice at the level of strategies that characterizedit. , and its close association with other concepts such as true  democracy and peaceful transfer of power.

Although it  issaid that transitional justice was associated with cooperation according to the official and popular understanding, it is at the level of facts and as a concept and term circulating  in the political literature in Iraq came later to  a set  of legislations that included realistic treatments of various issues, and  the aforementioned concept  appears  to   Today, the concept of (transitional justice) has become  circulating among those interested, and at the official level to some extent, and from all of the  above, it can be said thatthe adoption of transitional justice in  all its entirety  was not the intended approach that governments have followed since the fall of the former regime, in order to  reach its desired goals.Rather, it came casually, until it gradually stabilized  and was circulated as a human rights and political term.

Transitional Justice Institutions :

It has been noted that the change that took place in Iraq and led to the removal  of the previous regime was not concerned with transitional justice, but  the new authority inadvertently took certain paths  and adopted multiple  mechanisms to achieve some of thegoals that approach transitional justice. These include issuing laws to form ministries such as the Ministry of Migration and Displacement, laws to form institutions and bodies not linked to a ministry, or forming committees such as committees of political dismissals in ministries and other such mechanisms, but it is noted  that the treatments that came  in the era following the change of the former regime were  not based on the establishment of these bodies with the aim of showing transitional justice as if it were  a milestone  in Iraq's modern history. What addressed some of the shortcomings out of necessity,   as a first step,  so we see that it made the (public office) as a preliminary  experimental standard  for structural treatments of the state,  and the goal was not to achieve transitional justice. There has been an unintended harmony between government actions and transitional justice approaches.

The first measure approved by the new authority with regard to the public service was the establishment of the  Supreme National Commission for De-Baathification by a  law issued by the Coalition Provisional Authority headed by US Governor Paul Bremer on May 16,  2003 to uproot the structure of the Baath Party in Iraq, and this  was accompanied by  the dissolution of a number of security services and the military institution, and this falls within the  approach of     It is noticeable that the purge approach came a  month and one week after the fall of the former regime, and this quick step carries with it a    political ADF more than a political one A project to establish transitional justice as a governmental approach, and  years later,  the cleansing procedure was  classified under the name (Supreme National Authority for Accountability and  Justice) and its law No. (10) of 2008 was issued,  which in turn witnessed other amendments,  and to offset  the effects of that early   procedure,   The Law No. (24) was issued on 26/12/2005  in order to develop solutions to the arbitrariness of the opponents of the regime and their relatives to the fourth degree, in  addition to  addressing the situation of the new state employees, and creating a quantitative and qualitative balance for eradication and vacancy of jobs in the administrative apparatus of the state that needs a cadre.  It must be said that the laws  that are not mentioned, in addition to the trials of the symbols of the  former regime, accountability and  non-impunity,  allowing the return of the forcibly displaced, and other procedures covered by the  concept of transitional justice, are not based on the principle of material compensation, but are closer to moral compensation.

The role of the constitution in establishing compensation bodies :

The Constitution of the Republic of Iraq for the year 2005 provided for the sponsorship of victims in general and referred in particular to the families of martyrs and political prisoners and obligated to compensate them under (Article 132 / I), which stated that "the State shall guarantee the care of the families of martyrs, political prisoners and those affected by the arbitrary practices  of the exterminated dictatorial regime", and  this text marked  the  issuance of a series of laws, which led to the  formation of Institutions to compensate victims at the level of Iraq according to the type of damage,  but it can be noted the lack of  coordination between the Kurdistan region  and the central government on the basis of joint action, so we see that there is a lack of available statistics related  to the whole country or the classification of damage and  entitlement to compensation and so on.

 The Martyrs Foundation and the  Political Prisoners Foundation are among the  most prominent institutions for compensating political victims in Iraq in addition to the Ministry of  Martyrs and  Anfal in the Kurdistan Region, while  the Ministry of Migration and Displacement and the  Property Disputes Commission are seen as  secondary bodies  concerned withcompensation. Some of the affected segments, in addition to the committees that are concerned with moral compensation, such as the committees of the  political  dismissals, which were formed in all ministries and entities not associated with the ministry, as  well as the verification committee,  which was formed in the General Secretariat of the Council of Ministers, and   its task is to receive requests through the political separation committees, and issue decisions (b) Reinstating  political dismissals to  the positions of H.M., taking into account the years of service that they were unable  to perform due to the policies  of the former regime.

Applications of the compensation approach :

The approach to compensation  in the Iraqi experience  is the most prominent among all other approaches,  as it has captured  the perception  of official and popular public opinion that transitional justice is directly and solely related to the issue of compensation, and this understanding was inferred,  due to the  material  compensation forthe target groups  of victims or their families. Among the most important advantages was  to give a rewarding  salary to political  prisoners and families of martyrs, in addition to a plot of land or housing unit, as well as other facilities related to primary and higher  education, in addition to  health care and  others,  and it can be said that this file  (compensation file) It is coming to an end, but what hinders it is  the weak response of other parties  and their cooperation with the victims, especially with regard to the issue of the housing unit or the residential plot, and  this depends on the cooperation of the  Ministry of Municipalities andthe governors in addition to Amanat Baghdad for the residents of BagdaD.

Duration of transitional justice institutions :

The survival of transitional justice institutions is not eternal, but depends on  the distinction and distinction between the purpose  of their existence,  if  their goal is  compensation, the issue is only related to the completion of files submitted by  the victims or their families, and this requires additional time due to the large number of files according to the large number of violations,  and  therefore the survival of these institutions is subject to to accomplish what it is required to do in fulfillment ofitsobjectives established by its laws.

However, if these institutions are related to the entire transitional justice project, this requires the development of a comprehensive vision on the subject of transitional justice, including the need to bridge the  gap between  the political experience of the authority that followed the era of the former regime, and the  maximum application of all transitional justice approaches, which no party sought  to implement  , in addition to the lack of attribution.   Therefore, the experience of transitional justice in Iraq is fragmented, as  there is no link between any of the strategies of that justice, for example, the  trials  of regime figures directly involved in human rights violations  and the lack of impunity for them, and as important as this approach is  However, these trials were not treated  as part of a holistic transitional justice project, orwith  regard to the issue of apologies to victims, national reconciliation, the consolidation of a culture of amnesty,  institutional reform, rehabilitation  of victims,  and others,  but remained as scattered vocabulary,    As for other  approaches, such as the completion of monuments or anniversaries,  they do not receive social or media attention from  the state, and the fact that society's lack of interest  in sacrifice reflects the failure to Highlight it and highlight the concept of the transitional function at the state level in general.