Justice Under Occupation: Rule of Law and the Ethics of Nation-Building in Iraq

Abstract:     
In the context of the American occupation of Iraq, this article examines the relationship between rule of law and justice on the one hand and regime change, occupation, and reconstruction on the other. The argument begins with a review of the course of the invasion and occupation of Iraq and considers the legal basis for the largely U.S. experiment in nation-building from the 2003 invasion through 2005. This overview considers the prior question of whether nation-building is a feasible endeavor for an external occupier, or whether it might be more appropriate to focus efforts on a less ambitious, more limited project. Next, the article considers the significance of establishing the rule of law as part of any project to rebuild Iraq. In particular, the relationship between ordinary and extraordinary justice is interrogated with an emphasis on the ways in which issues of transitional justice interact with efforts to reestablish the Iraqi legal system. Against this backdrop, the article turns to the special challenges faced by a belligerent occupying authority tackling issues of accountability and justice. Here, particular attention is paid to the specificities of the U.S. record in Iraq and to arguments that a model of political trusteeship is most appropriate for considering the rights and obligations of strong powers -- such as the United States -- when reconstructing weaker nations subdued by military force. These arguments relate to a broader debate regarding justice and nation-building in Iraq -- namely the relationship between belligerent occupation and legitimacy, to which the article returns in conclusion. Drawing together the assessments of the course of the American-led invasion and occupation, the efforts to incorporate rule-of-law priorities in reconstruction efforts and the exercises in partial accountability associated with the Iraq Special Tribunal, this article argues that rule-of-law cannot be established by external imposition and must, rather, be grounded in institutions established by representatives deemed legitimate, in this case by the underlying Iraqi population.

Number of Pages in PDF File: 42

Keywords: Iraq, rule of law, regime change, Iraqi legal system, U.S. occupation of Iraq

Accepted Paper Series