November 2005

Iraqi Judicial Profiles in Courage

by Robert F. Utter

There is a legend of a tribe so fierce that when neighboring tribes became involved in battle they would often ask for assistance. One tribe asked for five hundred warriors. Five were sent. When the requesting tribe complained, a reply was sent asking if they preferred five hundred foxes or five lions.

I found modern counterparts of this mythical tribe in my second trip to the American Bar Association Central European and Eurasian Law Initiative (CEELI) Institute in Prague. Teaching a group of 50 Iraqi judges were three Americans, one Swede, one Austrian, and one Egyptian instructor gathered for a two-week session focused on the subject “Judging in a New Democratic Society.” As with the previous course, it was funded by the British Government and coordinated through the Swedish-based International Law Assistance Consortium. Financial assistance was also provided by the Czech Ministry of Foreign Affairs.

To reach the relative safety of Prague, the judges from Iraq faced great challenges. One of them was assassinated in Iraq prior to the course. All had to make the perilous journey from Baghdad to the airport, one of the most dangerous drives in the world. This was just one incident in lives already fraught with peril. An outstanding leader at the seminar, Judge Quais Hashim Shammari, secretary general of the Judicial Council in Iraq, was assassinated when leaving home for work on January 25, 2005, along with his brother-in-law. The following week, Judge Taha Al-Amiri from Basra, a student from our September 2004 seminar, was killed in Basra. The week of March 14, another judge who was a member of the panel trying former leaders was assassinated.

All judges expressed pride in their historic role in ancient Iraqi society. They told of the ancient methods by which judges were selected based on ethics, morals, and learning. The saying was that to be appointed a judge was the same as being slain by a knife — a new life is begun, cut off from the old.

One of the judges spent 17 years in Iranian prisons following his capture after his conscription into the army from a judicial post during the war between Iran and Iraq. After his release he returned to Iraq only to be wrongfully seen by the coalition authority as a suspect member of the judiciary. An American officer investigated his case and had him reinstated to a judicial post. Afterwards, the judge found his home destroyed by a stray artillery shell and members of his family killed. He still works, but without enough funds to reconstruct his home.

When asked about problems in conducting their courts, the common theme was that the insecurity of daily life made normal functions difficult. With the breakdown of normalcy, most of the citizens could only understand the old system of threats, force, and intimidation.  One day of the course was spent on the subject of judicial ethics. We used international, European, and American ethics codes as models and then challenged the Iraqi judges to draft their own code. When asked what element they would add that was not in the other codes they replied: “Courage,” noting that without courage all other ethical principles were of no value.  To survive in the morass that is currently Iraq, they demonstrate courage daily, often with humor and a smile.

When I asked my class whether they had been threatened by litigants in their court duties, most had stories to tell either of individual threats or of threats from tribal members of a defendant. One told of a note delivered by a small child he had received two days before he left for the seminar. It told the judge that he and his five family members would be killed if the note writer’s brother was sentenced. As he told the story, the judge shrugged his shoulders and noted that the letter was unsigned and gave no specifics of the case, and that he had no idea who the defendant was. The judge commented that many citizens of Iraq had only a rudimentary understanding of how a justice system worked and that threats were common as a result.

A judge from Kurdistan left the judiciary shortly after graduation from judicial school in 1981. Subsequently, he left to join the guerillas fighting for relief from the oppression of the Iraqi army. For 10 years, he lived as a fugitive, staying in small villages and the fields in that cold mountainous part of the country. During that time he was bombed and hunted by the army, which used all available weapons to suppress the insurgency. Following a truce between the competing Kurdish factions arranged by then Secretary of State Madeline Albright, he returned to his judicial post in the Kurdish portion of Iraq in 1991.

The Iraqi judges displayed a strong commitment to their role as judges and their function in the new Iraq. Within three days after the occupation of Baghdad by coalition forces, the courts were back in business and functioning. In many cases they had to hold their hearings in hallways, alleys, on lawns, or on the streets. They felt a personal commitment to keep processing their cases. When power was unavailable, they would use candles.

A major change from the seminar in September was the presence of three women judges. We were delighted to have them, as we heard there were only 10 in the country. All their stories were different, but each told of remarkable courage and determination. They all wore traditional clothing. The female judge serving longest was appointed in 1979. Another became a judge after the fall of Saddam Hussein in 2004, even though she married in 1984. She was initially unable to be a judge as she was unmarried, and Saddam decreed that all judges, male and female, must be married to be a judge. The reason, they assumed, was that marriage made you more stable. One judge stated she became a judge as she believed the Koran had been misinterpreted in terms of women’s rights and thought Muhammad intended that women be treated equally. In discussions about the future for women in Iraq, they reflected that Iraq had returned to the middle ages. Women suffered from oppression and repression, causing the collapse of the family system. In discussions about future projects for Iraq with Angela Conway, director of the Middle Eastern CEELI program of the American Bar Association, they noted that women should play a significant role in the future. They should focus on social and educational aspects for women. There should be equality with men in all aspects, and women should be granted rights and privileges to take away their burdens.

At the end of the course, we asked the judges to prepare a personal action plan for steps they could take to improve the administration of justice in Iraq. Their suggestions were premised on the restoration of order and security in their society. A common focus emerged based on improved administrative practices, appointment of more qualified judges and court personnel, improved case management, strong continuing education for all court personnel on ethics and legal matters, as well as a need for judges to go outside the courtroom to educate the public and school children about the role of an independent judiciary in a democracy.  With more than 150 newspapers in Iraq, a resolve was also expressed to take ideas from one of our sessions on how to educate the press about the court system and ways to establish positive working relations with the media.

It was a great privilege to have the opportunity to see courage in action on the part of Iraqi judges and share in their hopes for reestablishment of the rule of law in that beleaguered country. Given the progress made in the elections, I look forward to an active and courageous judiciary taking their rightful part in a new Iraq.  

Justice Robert F. Utter served on the Washington State Supreme Court from 1971 to 1995, and as chief justice between 1979 and 1981. Since retiring from the court he has worked in alternative dispute resolution and has been active in the American Bar Association’s Central European and Eurasian Law Initiative.