The Law & Iraq

Perhaps the essay (noted by Instapundit) by Brett H. McGurk, “A Lawyer in Baghdad” (published in The Green Bag: An Entertaining Journal of Law in the Autumn 2004 issue) describes what most lawyers know, but he gives outsiders (like me) a glimpse into that work. Pointing to some of the great paradoxes of law & occupation, he describes his work in the Green Zone. He notes the lack of precision and clarity in the rules under which the lawyers worked and the tensions in an occupation that also attempts to establish laws that arise from these specific (& fluid) circumstances. The necessity is at once to “affirmatively promote the welfare of the Iraqi people and establish conditions for self determination” which is a “positive mandate. . . far different than the largely negative obligations under the Convention and Regulations” (53-4).

Despite colorable authority under Resolution 1483, many initiatives could not be completed at all, or had to be dramatically overhauled at the last minute in light of objections from Coalition partners, the Iraqi Governing Concil, or other interested parties such as the World Bank or the Internatonal Monetary Fund. These challenges, from my perspective, made the legal work of the CPA substantially more difficult, frustrating, and rewarding. They also provided a hard positive law context to successful CP initiatives, which many who observe Iraq from the outside fail to recognize.(55)

And, for someone who observes the work of our legal system from afar, the paired “frustrating and rewarding” are in themselves fascinating (not that we aren’t likely to find that contradictory combination true to experience).

Underlying the essay is a contrast between the fluidity of the situation in which these lawyers found themselves and the necessity of laws more firmly coded. Here is his final paragraph:

In sum, to those who say international law does not exist, or who say the occupation of Iraq was somehow extra-legal, I invite them to scrutinize the legal work of my former office, where international law was lived, breathed, and debated, with real-world consequences, twenty-four hours a day. Attorneys in Baghdad worked within a complicated web of international authorities, and were among the first to gain practical experience oeprating within the framework of traditional occupation law – a framework that had existed largely as a debating point, never voluntarily implemented by an occupying authority. The limitations and defects of that framework became readily apparent to many of us. For where the purpsoe of an occupation is enabling and transformative, a legal framework that effectively locks-in the laws and institutions of a repressive, ousted regime does not make sense, nor does much good, for anyone. The international community, therefore, should consider updating the Hague Regulations and the Geneva Convention, to reflect the realities of modern military interventions, and to permit fundamental change where transformation (from dictatorship to elections, for example) is a desirable international objective. (57)