De-Ba`thification in Iraq: How Not to Pursue Transitional Justice

This essay is part of the Middle East-Asia Project (MAP) series on “Pathways to Transitional Justice in the Arab World — Reflections on the Asia Pacific Experience.” The series explores the pursuit of transitional justice in the post-Arab Spring Middle East, and how such efforts could be informed by past and ongoing justice processes in Asia-Pacific countries. See Resources …
 

The Coalition Provisional Authority (CPA) issued CPA Order Number 1 instituting a de-Ba`thification program in May 2003.[1] The CPA directed the process until September 2003, when the Iraqis assumed control through the Higher National De-Ba`thification Commission (HNDBC). The program issued blanket bans based on levels of membership in the Ba`th Party. People in the party’s top four ranks—those at the firqa level or above—were dismissed from their positions and banned from future public employment, as were full party members of any rank who held positions in the upper three levels of management in government institutions, which included ministries, state-owned enterprises, and educational and medical facilities. CPA Order Number 2 disbanded the Iraqi army, the Ministry of Defense, and a number of other security, intelligence, and Ba`thist organizations and dismissed their employees, some of whom became ineligible for public sector jobs and/or lost their pensions.[2] Neither CPA Order Number 1 nor the 2005 constitution placed a deadline on de-Ba`thification.

Modeled on de-Nazification, the American-designed process was flawed. One unforeseen complication was the lack of an official list of Ba`th Party members; other indicators, such as pay records or the testimony of others, had to be used to determine membership and rank. De-Ba`thification did not fulfill the basic premise of a lustration program, that is, to remove those guilty of abuses from the public sphere, because it did not investigate or punish individual wrongdoing.[3] Rather, it assumed that anyone who reached a high level in the Ba`th Party must have committed abuses. De-Ba`thification’s American architects did not understand the role party membership played in Iraq.[4] Being a member of the Ba`th was not coterminous with being a “Saddamist” or even necessarily a sign that an individual supported the party’s ideology. Many joined because it was a requirement for a particular job, the gateway to better health care and other benefits, or out of fear. Thus the blanket bans punished people who had not perpetrated abuses and allowed some who did to keep their positions. The bans also disproportionately affected the Sunni community, which was already uncertain and fearful about its position in a post-Saddam Iraq. The fundamental unfairness of de-Ba`thification coupled with its uneven sectarian impact threatened the process’s legitimacy and its ability to make a constructive contribution to the transition from the very beginning.

By targeting membership rather than wrongdoing, the stage was set for a collectivization of guilt that had a sharp sectarian edge. Although many Shi`a had belonged to the Ba`th, Sunnis had dominated the upper levels; thus for the purposes of de-Ba`thification, being a Sunni made one more likely to be a Ba`thist and vice versa. This facilitated an easy slippage into equating Sunnis with Ba`thists, and government officials and other leaders often painted Ba`thists as a whole as a threat to the emerging political order. Over time, there was also a dangerous conflation of Ba`thism with anti-regime terrorism that had obvious sectarian overtones. It became politically expedient to discredit or remove Sunnis from their positions by calling them Ba`thists, regardless of how minor the ties may have been. Sunnis quickly came to view de-Ba`thification as a tool employed by the Shi`i Islamist parties to keep them from playing a political role, a sectarian narrative that became more deadly over time.

American officials also failed to anticipate the practical implications of its de-Ba`thification program. In one fell swoop, de-Ba`thification virtually decapitated the state bureaucracy, gutted the teaching ranks, dealt a heavy blow to state-owned enterprises, and eliminated the army, which many Iraqis respected as a symbol of national identity rather than as a Saddamist institution.[5] The terrible damage inflicted on Iraq’s infrastructure by the post-invasion looting had already set back the restoration of essential services, which was further complicated by the loss of administrative and managerial personnel.[6] Moreover, combined with the disbanding of the Iraqi army, de-Ba`thification stripped hundreds of thousands of people of their jobs and pensions in the context of high rates of unemployment and a weak economy.[7] The nascent resistance movement against the American occupation found a ready pool of recruits among the newly unemployed and those disillusioned by the Americans’ inability to provide services or security.

From its inception, de-Ba`thification has been a constant source of contentious and divisive debate. Sunni political leaders have pushed for its abolition or at the very least its reform, viewing changes as essential for fostering political reconciliation. The fierce resistance of the Shi`i Islamist factions to any loosening of the process hardened Sunni feelings of marginalization and increased the community’s disaffection with the emerging post-Saddam political order. Large numbers of Sunnis joined the insurgency, and their violent opposition heightened the government’s mistrust of the Sunni community and fanned Shi`i fears about losing power. American officials believed that the reincorporation of Sunnis into Iraq’s political and security structures was a necessary step in taming the violence, and repeatedly pressed the Iraqi government to change the de-Ba`thification program.^[8]

The Council of Representatives (COR) finally passed new de-Ba`thification legislation in February 2008.<sup>[9]</sup> Under the Accountability and Justice Law (AJL), many people had their pensions restored, and firqa members were eligible to return to their jobs, although they were restricted from positions above a certain administrative rank and in sensitive agencies. Former employees of Ba`thist security or intelligence agencies were to be retired. The AJL established the Accountability and Justice Commission (AJC), governed by a seven-person board approved by the COR; its operation had no temporal limit. In practice, the AJC absorbed most of the HNDBC’s structure and personnel. Political disagreements among the Shi`i parties delayed the appointment of the members of the governing board until 2012. Without a COR-approved board, the AJC’s legal authority to make decisions was contested.  

The de-Ba`thification process, both in its early incarnations and after the passage of the AJL, was unfair, arbitrary, and sectarian. Ahmad Chalabi and Ali Faisal al-Lami, individuals well known for their hard-line positions on de-Ba`thification and their ties to leading Shi`i Islamist parties and to Iran, headed the HNDBC and the AJC.[10] De-Ba`thification’s procedures were notoriously opaque; for example, those in charge of the program did not provide the evidence that they used to determine a person’s status.[11] Noted a July 2007 U.S. diplomatic cable: “Since late 2006, the HNDBC has had a reactive method of sending de Baathification orders…[T]he Commission only investigates an individual’s former Baathist ties after it receives a tip or if it ‘remembers’ an individual may have been a Baathist.”[12] Although individuals could appeal decisions, successful appeals were rare. Sunnis complained that the paperwork and signatures required to file for reinstatement were onerous, and orders of reinstatement were frequently ignored.[13] Both the appeals and reinstatement processes were slow. Certain Shi`i-led ministries, including Interior and Health, not only de-Ba`thified, but also purged their ranks of nearly all Sunnis, which further fueled charges of sectarian bias.[14]

What has proven most corrosive to de-Ba`thification’s legitimacy has been its highly politicized nature. Few episodes illustrate this more starkly than the 2010 parliamentary elections. Secular parties and lists, especially the Iraqi National Movement (INM), were expected to fare well. The INM’s primary base of support was among Sunnis, and it emerged as the strongest challenger to Prime Minister Nuri al-Maliki’s State of Law (SOL) coalition. The SOL had run strongly in the 2009 provincial elections, but another large Shi`i Islamist list, the Iraqi National Alliance (INA), had lost a significant number of seats from its performance in 2005. In the months before the elections, in an effort to counter the popularity of secular and Sunni lists, there was a seemingly coordinated campaign by the Shi`i Islamist parties to stir up deep-seated fears that the Ba`th Party would return to power. Waving the Ba`thist card helped unite and energize the Shi`i electorate and meant that de-Ba`thification, as opposed to the government’s poor provision of services or any other issue, dominated the pre-election period.[15] Sunnis and secularists interpreted the campaign as an effort to intimidate and disenfranchise them; INM leader Ayad Allawi bluntly stated that “this campaign at this particular time aims only at weakening political opponents.”[16]

The furor began in January 2010 when the AJC disqualified over 500 candidates. There were numerous irregularities, beginning with whether the AJC had the legal authority to make such decisions.[17] The disqualifications were heavily skewed against secular and Sunni parties; the SOL and the INA combined had only 50 candidates banned, while the INM alone lost over 70. While the Shi`i Islamist lists lost mainly low-ranking candidates, the top ranks of the secular and Sunni lists, including the INM’s number two and three candidates, were hit hard.[18] Some candidates were banned for receiving medals or “promoting” the Ba`th Party, which the AJL did not include as grounds for being subject to de-Ba`thification.[19] Candidates were given only three days in which to appeal their disqualifications, instead of the 30 days specified by the AJL.[20] In an obvious conflict of interest, Chalabi and al-Lami were themselves candidates on the INA list.

A concurrent anti-Ba`thist campaign was underway in Baghdad and the Shi`i-dominated provinces. The Shi`i Islamist parties organized emotional demonstrations supporting the disqualifications and denouncing Ba`thists; the rhetoric employed was heated.[21] High-ranking officials, including governors and provincial council members, often addressed the demonstrators, promising to root out Ba`thists in the provincial governments. Several provinces announced the creation of their own accountability and justice committees to purge suspected Ba`thists.[22] In Babil and al-Qadisiyya, governors affiliated with the SOL suspended the first deputy governors, both of whom were running on the INM list, while in Muthanna arrests of suspected Ba`thists were carried out.[23]

Al-Maliki also seized the opportunity to remove hundreds of officers in the intelligence and security services on questionable de-Ba`thification grounds. Most of the dismissed officers were Sunnis; their replacements were largely members of al-Maliki’s al-Dawa Party. Dismayed American officials believed that al-Maliki had replaced “experienced and proficient officers” with political loyalists who “lack[ed] intelligence or related backgrounds.”[24]

After the election, the AJC attempted to disqualify several dozen additional candidates, some of whom had won seats for the INM, on spurious grounds such as being a trainee in the Ba`th or receiving an award from the party.[25] Given the INM’s narrow two-seat margin of victory over the SOL, this threatened to alter the outcome of the election. Ultimately, the AJC’s appeals board rejected the disqualifications for going beyond the scope of the AJL. Nonetheless, thanks to a post-election alliance between Shi`i Islamist parties, al-Maliki rather than Allawi became prime minister.

In the aftermath of the AJC’s overreach, there were signs that de-Ba`thification might be coming to an end. As part of the Erbil agreement—a power-sharing arrangement that allowed the long-delayed formation of an Iraqi government in late 2010—the activities of the AJC were suspended pending the COR’s appointment of its board. Several prominent INM members who had been disqualified on flimsy grounds were reinstated by the COR. But after a lull, the politicized aspect of de-Ba`thification began again as part of a wider power struggle between al-Maliki and his critics.

Over the past year, Iraq’s security situation has slowly slipped back toward levels of violence not seen since the worst periods of the civil war. While there are a number of factors at work, the interplay between al-Maliki’s governing style and the sectarian divide has been especially damaging. Key pieces of the power-sharing arrangement never materialized, angering Sunni leaders, who became outspoken critics of what they characterized as al-Maliki’s dictatorial rule. Al-Maliki retaliated by accusing prominent Sunni/INM members of his government of terrorism and running hit squads. When he moved to arrest Finance Minister Rafi al-Issawi in late December 2012, a grassroots anti-Maliki protest movement erupted in Anbar and mushroomed across Sunni-dominated areas. Predictably, one of the movement’s top demands is an end to de-Ba`thification. The government offered concessions in April 2013, but these proposed amendments to the AJL must be passed by the COR, and Shi`i Islamist parties, notably the Sadrists, have adamantly opposed them.

De-Ba`thification has inflicted real damage on the Iraqi polity. By playing a key role in the activation and intensification of the Sunni-Shi`i cleavage, it has fed the violence over the past decade, which in turn has reinforced sectarian narratives. The program’s blatant politicization has proven highly corrosive to the rule of law, the legitimacy of Iraq’s new institutions, and stability. Bringing the process to an end will not magically heal Iraq’s sectarian wounds, but it is an important and necessary step toward bridging the dangerous gap between Iraq’s Shi`a-led government and its aggrieved Sunni community.