Rights out of anarchy

Think of Iraq and concepts such as human rights and the rule of law do not readily spring to mind. But if Alan Miller and his fellow trainers are given space to do their job, the future could yet hold some hope.

Miller, Director of McGrigors’ Rights and visiting professor in the University of Strathclyde, is the only UK lawyer in a team about a dozen strong, from all five continents, now almost halfway through a two year project to train 650 Iraqi judges, prosecutors and defence lawyers in international human rights. Backed by the UN and run by the International Bar Association’s Human Rights Institute (founded in 1995 by Ross Harper when IBA President), the scheme is the pilot of a training manual produced jointly by the two bodies. After the first two sessions 12 Iraqi lawyers were selected for Miller and an Egyptian colleague to train as trainers in their own right.

No stranger to the world’s troublespots, Miller has advised on incorporation of human rights treaties in Sudan, China, Egypt, Georgia and elsewhere. Can he really feel, I ask, that he has been able to advance the human rights agenda in these countries?

“Well, I think you have to be very realistic in that any contribution that can be made is going to be extremely modest, and you are subject to events taking place globally which are beyond the control of almost everybody in the world, for example the war against Iraq, the events of 9/11, and these can cause huge setbacks. Or in Sudan where the peace deal was signed between the rebels in the south and the regime in the north, then you have Darfur breaking out. Sometimes you think it is one step forward, two steps back, but I think both in Sudan and Iraq the value such as it is of these kinds of programmes is that they do create more space in which those who want to make human rights matter in their own countries have an opportunity to gain knowledge, understanding, confidence and international connections. How long that then takes to become manifest in those countries and actually be effective in bringing about change is beyond the control or the influence of outside trainers.”

Rebuilding from the ruins

The programme, he emphasises, is not western-based but grounded on universally-accepted human rights. This helps overcome Iraqi perceptions coloured by perceived double standards practised by the Americans and British, for example with reference to Israel and Palestine: it is not widely recognised nowadays that Iraq itself was an influential player in the 40s and 50s when the framework of international human rights law was being developed.

“Before the Saddam regime the Iraqi legal system was a fairly widely respected legal system not only within the region but internationally”, says Miller. “Iraq was involved in the drafting of the Universal Declaration of Human Rights 1948, and in the following two decades was very active internationally and played a positive role in terms of international law and the development of human rights.”

The abrogation of the rule of law under Saddam, he continues, creates a twofold problem. Although a pre-Saddam criminal code and penal code survive, “many of the rights and procedures in these codes were thwarted by Saddam who simply established special courts where none of these laws or protections were recognised. Also the legal profession was isolated from developments in international law for the past three decades so there was a relative isolation and undermining of what had been there before in terms of a working legal system.”

Then there is the challenge of identifying those who served under Saddam but are open to new influences. “Many of the judiciary would have been Ba’ath Party members. But you have to distinguish whether it was just a nominal signing of membership or was it something more meaningful than that, so you have to be very careful not to tar everybody with the same brush.” At the same time he appreciates there are those who may find it very difficult to play a positive role in the new Iraq, or whom others may consider should not be given the opportunity because of what they were associated with in the past, “so it’s a difficult transition period – neither can you be holier than thou nor can you allow old ideas not to be broken with”.

The fundamental question

Trainers and trainees alike have to be prepared to step outside their personal “comfort zones”, especially in addressing an issue at the core of the project, harmonising the influence of Islamic sources of law with the framework of international human rights law. Does Miller believe that the harmonisers within Islam will prevail over the hardliners?

“I think in the medium to longer term I would be confident that that can take place. In the immediate aftermath of the invasion of their country and of the hypocrisy of the war on terror, and the caricature of Islam being equated with terrorism it’s actually that international situation and particularly the role played by the US that presents more problems to this kind of programme being successful than misconceptions or misunderstandings among Iraqi lawyers about international human rights law… once you have spent one or two days unravelling that, you find that Iraqi lawyers become prepared to engage with you. So I think my experience of the last few years and working in Islamic countries is that Islam and human rights are more mutually reinforcing than mutually exclusive.”

Indeed he goes further and asserts that the one cannot be sustainable without the other: “Human rights must be integrated into the Islamic countries in a way that connects with the values that are held there, and equally Islam progressively requires an interpretation that is consistent with international human rights if it is to be sustainable.”

“Our last sessions were very lively and we had a range of Islamic interpretations not only from among the Iraqi lawyers but also we had Tunisian and Egyptian colleagues who were able to contribute how Islam is interpreted and applied in their countries for example on polygamy, so within Islam there is a great deal of scope now, and since 9/11 there is actually a very vigorous reappraisal of where Islam is in the modern world, how it relates to international human rights law, and I think that out of all of that, despite the difficulties caused by the invasion and the views of double standards, there is potential for much greater mutual understanding.”

A nation on trial

Difficult issues remain. One thrown up by the training programme is the legacy of Saddam’s regime of torture. Despite the introduction under the Coalition Authority of the right to silence and the inadmissibility of evidence obtained through torture, such was the “torture culture” under Saddam that many Iraqi lawyers find it hard to understand the importance of the right to silence as a way of trying to prevent torture taking place in police stations and prisons. Another hot topic is the question of women: although women arguably have more rights in Iraq than in other Islamic countries, there is still resistance to further development. And in the period leading up to the elections in January and subsequent discussion of the constitution – much more important stages, in Miller’s view, to the prospects for development of the rule of law than the recent handover of power – freedom of the media and free expression will be critical.

But dominating the legal agenda is the pending trial of Saddam Hussein. Even the Scottish system, which coped with some difficulty with the Lockerbie trial, would struggle with a case of this scale, and having far greater implications than Lockerbie, says Miller. In Iraq, the legal system has yet to catch up with international developments in genocide, war crimes, crimes against humanity, let alone having the resources and infrastructure to conduct a trial of such magnitude. But the trial will be the test of the new Iraq: “in terms of the message it sends internally that this is the beginning of the rule of law and therefore a fair trial, and also internationally there has to be a fair trial in order to give any legitimacy to the Iraq that is emerging from the past, and whilst there is huge resentment of Saddam the importance of giving him a fair trial is critical.

“Whether the Iraqi legal system at this stage is capable of doing that by itself is open to question and there is I think a legitimate concern that the more international involvement there is, working with Iraqis, the more likely a fair trial would be” – but not, he adds, if the event is perceived to be stage managed by the Americans in the manner of Saddam’s first appearance earlier this year.

Nor can anyone trying to build a legal system ignore the threat to their personal safety. One of those on the first training programme, now Minister for Justice, has survived one assassination attempt. The Dean of the Faculty of Law at Mosul University and his wife were murdered recently for being too open-minded. “Plus anyone who becomes involved in the Saddam trial in any capacity is going to be a huge target and it’s a very lawless anarchic situation.”

Does he believe that his work can make a difference? “Yes. The issue will be how much of a difference. It will make a difference in the sense it is going to be opening up possibilities for those Iraqi lawyers who want to take them, to make an effective contribution to the rebuilding of their own legal system and the development of human rights. But it has to be recognised that it must be the Iraqi people themselves who take up that responsibility and that no external human rights trainer is going to have any significant role other than to be the facilitator of those Iraqi lawyers who want to make human rights effective in Iraq. They have to do it themselves, it can’t be done by outsiders.”