Countering Terrorism Through the Rule of Law

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This manuscript analyses the extent to which the deficiency of rule of law has nurtured the societal divisions and terrorism in Iraq. The increasing support of Iraqi Sunni citizens given to the so-called Islamic State raises numerous questions regarding the performance of international attempts to build the rule of law in Iraq. In February 2015, the European Commission issued a Communication in which it acknowledged that the failure of the rule of law ‘lies at the heart of the crisis in Iraq.’ The EU has been entrusted, since 2004, with the necessary toolbox to reunite in view of bringing about peace, prosperity and security through the promotion of the rule of law. Adopting a comprehensive approach on the three main instruments deployed by the EU in Iraq (CSDP Mission EUJUST LEX, Development and Cooperation instrument, and the Partnership and Cooperation Agreement), this paper examines the challenges and oversights which have rendered difficult the implementation of the rule of law culture in the Republic of Iraq.

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KU LEUVEN
MASTER OF EUROPEAN STUDIES: TRANSNATIONAL AND GLOBAL PERSPECTIVES
CENTRE FOR EUROPEAN STUDIES
PARKSTRAAT 45 - BUS 3600
3000 LEUVEN, BELGIË


 

Countering Terrorism
through the Rule of Law
The EU’s Agenda towards the Republic of Iraq

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
Théo
 Lemaire
 
 

 
Presented
 in
 fulfilment
 of
 the
 requirements
 for
 the
 degree
 of
 Master
 of
 Arts
 in
 
European
 Studies
 

 
Supervisor:
 prof.
 dr.
 Stephan
 Keukeleire
 

 
 
Academic
 year
 2014
 -­‐
 2015
11013
 words
 

TABLE OF CONTENT

List
 of
 Acronyms
 .................................................................................................................
 3
 
List
 of
 tables
 and
 figures
 .................................................................................................
 3
 
Executive
 Summary
 ..........................................................................................................
 5
 
Introduction
 ........................................................................................................................
 6
 
Chapter
 1.
 Literature
 Review
 ......................................................................................
 10
 
Chapter
 2:
 Research
 design
 and
 Methodology
 ......................................................
 13
 
2.1.
 Research
 objectives
 ........................................................................................................
 13
 
2.2.
 Limitations
 and
 difficulties
 ..........................................................................................
 13
 
2.3.
 Research
 design
 and
 procedure
 .................................................................................
 14
 
Chapter
 3.
 Analytical
 framework:
 Structural
 Foreign
 Policy
 ...........................
 16
 
3.1.
 Introduction
 to
 ‘Structural
 Foreign
 Policy’
 .............................................................
 16
 
3.2.
 Integrating
 structural
 foreign
 policy
 and
 Rule
 of
 Law
 promotion
 ..................
 18
 
3.3.
 Embedding
 the
 SFP
 framework
 into
 the
 case-­‐study
 ............................................
 19
 
CHAPTER
 4:
 The
 deficiency
 of
 rule
 of
 law
 as
 a
 causal
 factor
 of
 the
 rise
 of
 
inter-­‐ethnic
 tensions
 and
 terrorism
 in
 Iraq
 ..........................................................
 20
 
4.1.
 The
 rule
 by
 law
 system
 of
 Iraq
 ....................................................................................
 20
 
4.2.
 The
 de-­‐baathification
 and
 sectarianism:
 the
 societal
 origin
 of
 divisions
 and
 
tensions
 in
 Iraq
 .........................................................................................................................
 21
 
4.3.
 A
 flourishing
 political
 context
 for
 Da’esh
 ................................................................
 23
 

Chapter
 5.
 Overcoming
 security
 challenges
 through
 the
 rule
 of
 law
 in
 Iraq:
 
The
 EU’s
 Agenda
 ..............................................................................................................
 27
 
5.1.
 Assessing
 the
 merits
 of
 promoting
 the
 rule
 of
 law
 in
 a
 context
 of
 unsolved
 
conflicts
 .......................................................................................................................................
 27
 
5.2.
 Securing
 through
 the
 rule
 of
 law:
 European
 Security
 Strategy
 ........................
 28
 
5.3.
 Building
 the
 rule
 of
 law
 in
 Iraq:
 A
 long-­‐term
 undertaking
 ................................
 29
 

Chapter
 6.
 The
 EU’s
 promotion
 in
 Iraq:
 Policies
 and
 outcomes
 ......................
 32
 
6.1.
 Instruments
 and
 budgets
 ..............................................................................................
 32
 
CSDP
 Mission
 EUJUST
 LEX
 ................................................................................................................
 32
 
Rule
 of
 law
 through
 technical
 assistance
 programmes
 ........................................................
 32
 
Bilateral
 and
 cooperation
 agreement
 ...........................................................................................
 34
 
6.2.
 Implementation
 ...............................................................................................................
 34
 
6.3.
 Outcomes
 ............................................................................................................................
 36
 
6.4.
 2015
 Regional
 Strategy
 for
 Iraq
 and
 Syria
 ..............................................................
 39
 
Conclusion
 .........................................................................................................................
 42
 
Bibliography
 .....................................................................................................................
 43
 
ANNEX
 .................................................................................................................................
 51
 
Interview
 with
 Judge
 Zuhair
 Al-­‐Maliki
 ....................................................................................
 51
 

2

List of Acronyms
CAJ, HNCAJ

Higher National Commission for Accountability and Justice

CAT

Convention against Torture

CPA

(US-led) Coalition Provisional Authority

CSO

Civil Society Organisation

Daesh, Daash

Al-Dawla al-Islamiya al-Iraq al-Sham (See ISIS)

ESS

European Security Strategy

EU

European Union

GAO

US Government Accountability Office

HR

Human Rights

HR/VP

High Representative-Vice President of the Commission

IcSP

Instrument contributing for Stability and Peace

IET

Iraqi Expert Team

IS, ISIS, ISIL

Islamic State (in Iraq and Syria)

MENA

Middle East and North Africa

MS

Member States (of the European Union)

NGO

Non-Governmental Organisation

PCA

Partnership and Cooperation Instrument

PM

Prime Minister

RoL

Rule of Law

SFP

Structural Foreign Policy

UN

United Nations

UNAMI

United Nations Assistance Mission for Iraq

UNDP

United Nations Development Programme

UNOPS

United Nations Office for Projects Services

UNSC

United Nations Security Council

US

United States (of America)

List of tables and figures
Table 1. Comparison SFP criteria and EU’s rule of law promotion policies

3

« Privilégier la force sur le droit, ce serait prendre une
lourde responsabilité »
Jacques Chirac
18 March 2003

4

Executive Summary
This manuscript analyses the extent to which the deficiency of rule of law has
nurtured the societal divisions and terrorism in Iraq. The increasing support of Iraqi
Sunni citizens given to the so-called Islamic State raises numerous questions
regarding the performance of international attempts to build the rule of law in Iraq. In
February 2015, the European Commission issued a Communication in which it
acknowledged that the failure of the rule of law ‘lies at the heart of the crisis in Iraq.’
However, the EU has been entrusted, since 2004, with the necessary toolbox to
reunite in view of bringing about peace, prosperity and security through the
promotion of the rule of law. Adopting a comprehensive approach on the three main
instruments deployed by the EU in Iraq (CSDP Mission EUJUST LEX, Development
and Cooperation instrument, and the Partnership and Cooperation Agreement), this
paper examines the challenges and oversights which have rendered difficult the
implementation of the rule of law culture in the Republic of Iraq.

5

Introduction
“The emerging stability and security would only take hold if the population
began to trust in the institutions of law. If the Iraqi people don’t trust the rule
of law and instead use the ‘rule of the gun’ to settle disputes, then the
cessation of violence will always depend on a large number of armed soldiers
standing on street corners.”1
This Statement made by US Army Attorney Jack Ohlweiler points out the cornerstone of
this paper as it exposes the main challenge faced by the Republic of Iraq: Setting up a
Rule of Law to ensure sustainable security and accepting non-violent mechanism to
solve disputes. For the European Union (EU) and its Member States, the EU-Iraq
relationship brings up painful memories of the 2003 foreign policy crisis and internal
divisions over economic sanctions against Iraq in 1990. This internal dispute was
considered to have had the potential to ‘kill the dream of a united Europe.’2
Despite political tensions between member states, it became clear quite quickly that an
EU solution to bring about prosperity, security and peace was needed. When the United
Nations Security Council (UNSC) unanimously adopted resolution No. 1546 redefining
the world’s response towards Iraq in support to an Iraqi interim government,3 it opened
the way for the EU and its member states to engage in a deep strategic cooperation and
dialogue aimed at bringing closer the EU to the Republic of Iraq. Institutional settings
and voting requirements made EU military cooperation in Iraq impossible. Therefore, it
became apparent that a pragmatic solution was needed in view of integrating the EU into
the international assistance scheme. In choosing the lowest common denominators
between Member States, the objectives of protecting Human Rights, reinforcing the
political system, fostering of the implementation of Democracy, and promoting the Rule
of Law were brought on the top of the EU’s agenda towards the republic of Iraq to
ensure the reconstruction and security of the State.

1

Jack Ohlweiler, rebuilding the rule of law in Iraq, university of Virginia, Law School, Spring, 2009
Commissioner Chris Patten cited in Raj Chari and Francesco Cavatorta, “The Iraq war: killing dreams
of a united EU?” European Political science, 2003, p. 26
3
United nations, Security Council endorses formation of Sovereign government in Iraq; welcomes end
of occupation by 30 June, SC/8117, United Nations Press release, 8 June 2004
2

Through the cooperation framework of the Common Defence and Security Policy
(CSDP), the EU (and its member states) launched a civilian mission EUJUST LEX
aimed at promoting a rule of law culture in Iraq through the establishment of training
activities designed for officials working in the criminal justice sector. This mission,
which ended in December 2013, was the largest involvement of the EU in Iraq in term
of budget. Notwithstanding quantitative changes (roughly 4,800 officials were trained),
this paper demonstrates that its top-down approach, the absence of local ownership as
well as the tendency of the Iraqi government to obstruct reforms limited the realisation
of the desired objectives. Moreover, within the framework of international assistance to
Iraq monitored by the United Nations Mission to Iraq (UNAMI), the EU provided
numerous short-term programmes (development cooperation instrument, European
Instrument for Democracy and Human Rights) as a contribution aimed at reinforcing the
accountability of the Iraqi administration before the law, supporting the legitimacy of
the Iraqi institutions and setting-up a judicial review system. Last but not least, as part of
the initial strategy of the European Union towards the Republic of Iraq, a Partnership
and Cooperation Agreement was ratified giving a legal framework to the EU-Iraq
relationships, insisting on the respect of the core elements of the bilateral agreement:
Principles of Democracy and Rule of Law.
The Iraqi legal system has a controversial past with the rule of law. Thirty-four years
under the autocratic regime of Saddam Hussein fostered Iraqi scepticism on whether
security forces were in reality serving their interests. Paradoxically it is the unlawful
US-led intervention,4 5 which gave Iraqi citizens the idea that the law could be an
instrument to protect their rights since western powers thought that getting rid of the
dictatorial power was an opportunity to “bring democracy.”6 However, twelve years
after the insurgency, and despite ‘huge improvements’7 in the justice and rule of law
sector, the country is still healing from its dictatorship era and is still experiencing its
4

United Nations, Secretary-General Kofi Anna in Lessons of Iraq war underscore importance of UN
charter, United Nations News Centre, 16 September 2004
http://www.un.org/apps/news/story.asp?NewsID=11953&#.VcSetxOqqko [Last accessed 1 August
2015]
5
The US intervention did not fulfil the international legal standards regarding the use of force in third
states (1. Security 2. Council authorization, 3. consent, 4. self-defence), for a more detailed analysis
about these principles see Malcolm N. Shaw, international law, Cambridge, Cambridge university
press, 2008, pp.1118-1159
6
Emilio Platti, ‘Modern Political Activism, current events lecture on the Islamic State,’ lecture, KU
Leuven, Metaforum, 28 October 2014
7
Judge Zuhair Al-Maliki, email interview with author, 2 August 2015

7

most challenging security situation. The increasing support of Iraqi citizens given to the
so-called Islamic State since 2004 raises numerous questions regarding the performance
of international attempts to build the rule of law in Iraq.
The main research question of this thesis is the following: To what extent has the EU
made the promotion of a rule of law culture its strategy to resolve conflicts in Iraq? It
results from the foregoing questioning that there are two underlying inquiries: Does the
absence of rule of law in Iraq obliquely explain the rise of terrorism in the State? What
factors explain the difficulty for the EU to achieve successful results and to reach the
sustainability of a rule of law in Iraq?
This thesis uses the concept of Structural Foreign Policy (SFP) set out by Stephan
Keukeleire8 as it offers a comprehensive framework for the analysis of the EU’s foreign
policy. In giving an incentive to focus on material and immaterial factors and the
relationship between structures (political, legal, societal, security etc.) and levels (local,
state, non-state actors, individual etc.) this analytical framework is particularly relevant
to the study of the rule of law in Iraq. Promoting the rule of law in a state like Iraq
inherently implies a long-term involvement as it seeks to reform a political and legal
system whose institutions are wrapped around ‘path dependency.’ 9

10

In setting up

criteria to assess the success of the external policies envisioned and implemented by
actors in third states based on whether legitimacy, interiorization and sustainability of
those policies has been reached, this concept offers the framework to assess the
performance of the EU’s rule of law promotion policies in Iraq.
This thesis is divided into six chapters. The first chapter is a literature review setting the
stage for the following analysis; it provides the reader with an overview of previous
findings by authors who have probed the rule of law and defines the key concepts,
which are to be used in order to address the challenges arising through the study of the

8

Stephan Keukeleire and Tom Delreux, the Foreign Policy of the European Union, Basingstoke,
Palgrave Macmillan, 2014, pp.28-31 and pp.328-333
9
Concept stemming from the historical institutionalism theory whose authors argue that once the
settings of an institution are defined, all policies will tend to base their stance in the same direction; see
Ian Bache, Stephen George, Simon Bulmer, Politics in the European Union, Oxford, Oxford
University Press, 2011, p.25
10
Mariana Prado and Michael Trebilcock, ‘Path Dependence, development and the dynamics of
institutional reforms,’ University of Toronto Law Journal 59, 2009, p.370

8

RoL-Security nexus. The second chapter undertakes an explanation of the research
objectives and method to be used to answer the research questions. The third chapter
highlights the importance and advantages of using the comprehensive framework of
Structural Foreign Policy. The fourth chapter presents findings regarding to the linkage
between the deficiency of the rule of law sector and the rise of terrorism in Iraq, it
analyses the previous attempts to set up the rule of law and the extent to which the
unaccountability of the state to rules together with the sectarianism of Iraqi governments
have tangentially fostered conflicts in Iraq. The fifth chapter explains the strategies and
objectives of the EU behind its involvement in Iraq. The sixth and last chapter presents
the instruments, missions and budgets and their impact on the Iraqi criminal justice
system, the Iraqi civil society and the political regime. It also presents the missteps of
the EU and the difficulties faced during the implementation of these instruments.
Furthermore the final chapter provides an exploration and comparative analysis of the
recently released strategy of the EU to Iraq and Syria in view of fighting Da’esh.

9

Chapter 1. Literature Review
Despite a long-standing scholarly interest in the rule of law, it remains an ‘essentially
contested concept.’11 The concept of Rule of Law emerged in correlation with the
development of the modern States in the 17th and 18th century in Western Europe and
particularly in France, England and Holland12. British philosopher James Harrington
explains the rule of law as a desire to achieve a ‘government of laws, not of men’13.
Strongly tied to the genesis of human liberties, fundamental freedoms, it evokes the
belief that men are guided by passion, subjectivity and arbitrary will and that only a
government de jure could ensure the expression of the general interest in an objective,
non-discretionary, reasonable and non-discriminatory way.14 Many authors both in
political science and legal studies now bond the rule of law and democracy
promotion, using one concept as a substitute for the other.15 This can be explained by
the fact that the main actors in Foreign Policy, having made RoL promotion a
hobbyhorse, recognise the principles Rule of Law, Human Rights and Democracy as
being an ‘interrelated trinity of concepts’, as ‘interconnected principles.’16 This raises
the question whether the RoL-democracy association has not changed the primary
meaning of this concept and as Pedersen and Holbraad formulated; “if the people are
the state, after all, then in what sense could they be ‘ruled’ by it, and, conversely, why
should a state that is the people need rules with which to govern them?”17 This paper
separates these two concept and prefers the conceptualization of the rule of law as a
vehicle of the following principles: protection against arbitrariness of the state,
separation between the executive and judiciary powers, effective judicial review, nondiscretionary (pre-trial and post trial) detention, prohibition of corruption, ban on the

11

Robert Fallon, ‘The Rule of Law as a Concept in Constitutional Discourse,’ Columbia Law Review
97(1), 2007, p.6
12
Blandine Kriegel, The State and the Rule of Law, Princeton, Princeton University Press, 1996, p.42
13
James Harrington in John Greville Agard (ed.) The Political Works of James Harrington: Part One,
Cambridge, Cambridge university press, 2010, p.401
14
Brian Z. Tamanaha, on the rule of law; History Politics, theory, Cambridge, Cambridge University
Press, 2004, p.122
15
See for example Amichai Magen, Thomas Risse, Michael A. McFaul, promoting democracy and the
rule of law American and European Strategies, Basingstoke, Palgrave Macmillan, 2009
16
Laurent Pech, ‘rule of law as a guiding principle of the European Union’s external action,’ Cleer
working paper 3, 2012, p.30
17
Morten Alex Pedersen and Martin Holbraad, ‘Revolutionary securitization: an anthropological
extension of securitization theory,’ International Theory 4(2), 2012, p.189

10

practice of torture and ill-treatment, accountability of the state all entities (public and
private) and all individuals to the same overarching rules.18
Martin Loughlin, British professor of Public Law, explains that political histories and
constitutional traditions have fostered the diversity of meanings under the notion of
the rule of law.19 This impacts the current strategies and institutional organisation of
its promotion in third states. If the rule of law and democracy are evidently shared
values and objectives of western powers, historical and current divergences of RoL
promotion policies abroad have rendered impossible the drawing up of a unique
model on how RoL is promoted abroad by major powers in international relations.20
While the European Union as a rather non-military actor tends to support and assist
efforts of democratization and the strengthening of the Rule of Law through a
framework made of trade agreements, cooperation and foreign aid in exchange of
institutional reforms,21 the United States prefers ‘invading other countries to further
democracy’22 and address security concerns. Youngs has also found that the EU was
eager to undertake a bottom-up approach in involving civil society actors in the
process of democracy and rule of law promotion in the Middle East and North
African (MENA) region while the US concentrates almost exclusively on the state.23
Along with increasing RoL promotion programmes being deployed by the major
powers in unstable states, the academic literature is interested in exploring the
relationship between security and the rule of law. Studying the impact of RoL on
terrorism has produced different outcomes and answers to the question ‘does a rule of
law reduces terrorist events?’ Authors such as Jeffrey Ross24 and Eyerman25 found
that providing the citizens with legal and non-violent frameworks to settle disputes
reduced the chances of witnessing the presence of terrorist organisations. In his
18

Inspired from: United Nations, The rule of law and transitional justice in conflict and post-conflict
societies, S/2004/616, United Nations , Report of the Secretary General, 23 August 2004, p. 4
19
Martin Loughlin, Foundations of Public Law, Oxford, Oxford university press, 2010, p.314
20
See Magen, Risse and McFaul op. cit., 2009, pp. 1-33
21
Richard Youngs, ‘Is European democracy promotion on the Wane?,’ CEPS working paper, 2008,
p.163
22
Magen, Risse and McFaul op. cit., 2009, p.35
23
Richard Youngs, the European Union and the promotion of democracy: Europe’s Mediterranean
and Asian policies, Oxford, Oxford university press, 2001, p.363
24
Jeffrey Ross, ‘Structural causes of oppositional political terrorism: Towards a causal model,’ Journal
of Peace Research 30(3), 1993, pp. 317-329.
25
Joe Eyerman, ‘Terrorism and democratic states: Soft Targets or accessible systems,’ international
interactions 24 (2), 1998, pp.151-170

11

comparative observation, Seung Whan Choi demonstrated that ‘democratic societies
that maintain a strong rule of law experience fewer domestic and international
terrorist incidents than societies with a weak rule of law.’26 However, there is another
group of scholars led by Eubank and Weinberg that argues a contrario that such
mechanisms together with the increase of rights and liberties granted to all citizens
and thus to suspects involved in criminal organisations, nurtured a favourable
environment to criminal activities and terrorist organisations.27 This conclusion was
nonetheless criticized for having methodological limitations based on hypothetical
assumptions.28 In addition to different methods of analysis, the differentiation of
results may also be explained by the divergence of point of references and the time
(implying a different context) when these studies were conducted. There is a tendency
in the literature on the relationship between rise of terrorism and rule of law to use the
notions democracy and RoL as interchangeable concepts. Despite interesting results,
the wide approach taken by these scholars does not offer an apparatus to comprehend
the RoL-security nexus in a given State regarding their local and societal
idiosyncrasies but rather the overall dynamic between these concepts.

26

Seung-Whan Choi, ‘Fighting Terrorism through the Rule of Law?’ The Journal of Conflict
Resolution 54(6), December 2010, p. 941
27
William Eubank and Leonard Weinberg, ‘Does Democracy encourage Terrorism?’ terrorism and
political violence 6(4), 1994, pp.417-443
28
Abraham H. Miller, ‘Comment on ‘terrorism and democracy’,’ Terrorism and Political Violence
6(4), 1994, pp.435-439

12

Chapter 2: Research design and Methodology
2.1. Research objectives
In using the concept of structural foreign policy, this thesis has for its main purpose to
analyse comprehensively the current security challenges in Iraq. To test the
hypothesis (that the current conflicts, particularly the rise of terrorism in Iraq, stems
from the absence of rule of law) I seek on the one hand to research how the
arbitrariness of the state, the discriminatory enforcement of the law and the absence of
accountability of the state together with deep-rooted sectarianism in Iraq have
strengthened the societal tensions and the readiness of marginalized groups to join
terrorist organisations. Besides, this thesis looks into the strategies and instruments
deployed by the European Union to foster the proliferation of the rule of law values in
Iraq and inquire whether they are provided with the necessary features to ensure the
expected outcome of addressing security challenges.

2.2. Limitations and difficulties
The first difficulty is the limited number of academic sources mentioning the
relationship between the European Union and the Republic of Iraq. For example, in
the different academic databases it was found that peer reviewed articles about the
EU’s foreign policy towards other third states or regions (e.g. EU/Russia, EU/China,
EU/U.S.) was from two to twenty times higher than the ones available concerning
Iraq. Furthermore the involvement of the EU in Iraq remains unknown and many nonEuropean sources refer to the individual position of the EU Member States regarding
the military invasion of 2003. Given the very recent nature of several aspects in this
thesis (rise of Da’esh; 2015 regional strategy to Iraq etc.), some documents have not
yet been the subject of previous academic interpretation.
Second, language is an important difficulty to overcome when studying the
operationalization of external policies into a specific country located in the Arab
world. Given that I only speak English and French, it was impossible to read the Iraqi
scholarly literature written in Arabic (and the perception of Iraqi citizens) concerning
the EU/Iraq relationship without using an English translation of these. The inaccuracy
of the translation programmes has rendered difficult to assess whether or not the

translation was correct. It resulted that several journal articles I wished to read that did
not find a translation have not been used. Furthermore, translations often take the
form of reviews of the Iraqi documents/literature but there was no possibility for me
to compare both texts and assess the relevance of the critiques. I attempted
(unsuccessfully) to engage in correspondence with the University of Baghdad as their
website refers to contemporary research done by Iraqi scholars in English in
accordance with the topic but remain inaccessible online.
Considering the critical security situation as outlined throughout this paper, it was not
possible to conduct field research.

2.3. Research design and procedure
The research method undertaken throughout this thesis is empirical and follows the
positivistic assumption that ‘only observable, and verifiable, phenomena could be the
subject matter of science.’29 Based on a quasi-judicial inquiry30, this thesis mainly
makes use of primary sources and quasi-exclusively qualitative data. Remaining brief
when exposing all the advantages and disadvantages of qualitative study is a difficult
exercise, therefore they will be constrained to examples: When operationalizing an
analysis into a holistic single case-study approach the use of qualitative data remain
the most efficient way to gain an insightful understanding and to conduct exploratory
analyses as well as testing their validity. There are nonetheless disadvantages as it can
produce a rather static research conclusion impeding a generalisation into other casesstudies.
Despite asymmetrical histories and methodological dissimilarities between legal
studies and political science, this thesis, by referring to legal concepts from a political
science perspective, calls for bringing closer those two social sciences as they intend
to answer similar questions through inexorably different ways. By putting these ways
together we might get closer to the ambition of any social scientist, that is to say
reaching a ‘science of the realities.’31 If this research does not have the features of a

29

Bill Gilham, Case Study Research Method, London, Bloomsbury Academic, 2010, p.2
Ibid. p.52
31
Emile Durkheim, Les règles de la méthode sociologique, Paris, Presses universitaires de France,
2013, p.15 and p.31
30

14

legal study per se it does nonetheless use numerous legal instruments (treaties,
secondary legislation, constitutions, laws).
Given the many contemporary aspects that this study intends to deal with, the method
used in order to provide a conclusion and a critical assessment is to some extent
explorative and relies on causal assessments. This implies the study of the causal and
background factors

(assumption 1: absence of rule of law fostered the rise of

terrorism), the mechanism (Assumption 2: the EU in the scheme of international
assistance contributed to improving the rule of law sector) and the outcome (study on
whether or not there were improvements and there was an impact on security).32
Primary sources come from the database of the main EU institutions (EEAS, Council,
European Parliament, specific working groups, Commission and its DGs etc.),
international organisations, NGOs, EU member states and Iraqi documents written in
English. Secondary sources (academic articles, reports, books) used throughout this
paper have for most of them been written by specialists on EU foreign policy; the
middle-east and Iraq; security studies; and individuals who have participated to the
implementation of the rule of law in Iraq. Tertiary sources such as newspaper articles
and documentaries offer interesting description on what is happening on the ground
and the key issues at stake but they do not form an important part of the bibliography.
All data have been collected from September 2014 to August 2015
An interview was conducted with Mr Zuhair Al-Maliki. He is a former judge to the
Central Criminal Courts of Iraq and Professor of Law at the University of Baghdad
and founding partner of the Al-Maliki & Associates Law Firm. He has experience
with international organisations (EU, UN), the United States and international NGOs
associated with the rule of law. Due to technical (time, money, security) constraints,
this interview could neither be done by phone nor in field and was therefore done via
email. The author acknowledges that this method carries some disadvantages as a lack
of dialogue and the ability to interact fully with the interviewee and ask follow-up
questions. The full questions and answers are available in the annex.

32

John Gerring, Social Science Methodology a unified framework, strategies for social inquiry,
Cambridge, Cambridge university press, pp.218-246

15

Chapter 3. Analytical framework: Structural Foreign
Policy
This chapter constitutes the first step in the analysis of rule of law promotion in Iraq
and its objective of ensuring sustainable security provided in the next chapters. Before
providing further detail about the analytical framework itself, it is necessary to state
the reasons why the author decided to proceed as follow. For the purpose of
answering the main research questions of this thesis it was identified as necessity to
use a comprehensive framework rather than using a traditional theory in European
Foreign Policy because this thesis possesses a dual objective: Identifying whether the
absence of rule of law has an impact on the marginalisation of parts of the Iraqi civil
society and analysing whether the European Union acknowledged these factors when
setting-up missions/instruments designed to promote the rule of law culture in Iraq.
The structural foreign policy concept gives the academic tools to respond to both of
these objectives as it recommends analysing the relationship between sectors
(political, legal and security in the present case) and levels (civil society, state, local
entities, international actors). By focusing on the process of internalization and
whether legitimacy and receptiveness of both state and non-state actors has been
reached, the use of the concept of structural foreign policy is particularly relevant to
provide an efficient assessment of the implementation of the EU’s policies towards
the republic of Iraq.

3.1. Introduction to ‘Structural Foreign Policy’
The notion of structure is crucial in the EU’s foreign policy discourse. From the outset
of its creation the EU has demonstrated a structural ambition notably vis-à-vis its
neighbours.33 Structural foreign policy is a concept developed by Stephan Keukeleire,
which may be seen as an analytical framework to question the reasoning and the logic
of the EU’s action in third states. A foreign policy can, therefore, be considered as
structural if it meets the following definition:
‘A long-term Foreign policy which seeks to influence or shape sustainable
political, legal, socio-economic, security and mental structures on the various

33

Raphaël Metais and Charles Thépaut, ‘Introduction: What is structural Foreign Policy?’ in Thépaut,
Métais and Keukeleire (eds.), ‘the European Union’s Rule of Law Promotion in its neighbourhood: A
structural Foreign Policy Analysis’ EU Diplomacy Papers 4, 2013, p.7

16

relevant levels: the level of individuals, societies, states, inter-state relations, intersociety relations, and the international level’34

The adjudication of ‘structural’ of a foreign policy depends upon the aims it pursues
and the means deployed to that end. These objectives delimited by Keukeleire are
dual, have equal importance and constitute the key element for enabling a policy to
have permanent or quasi-permanent effects:
The notion of structure is central. Every society is organized around structures
(embedded in institutions, norms, and principles) that can be located at several levels
from the individual to the international including the state, societal and regional
levels. A structural foreign policy is therefore aimed at shaping and influencing these
structures within a multilevel framework35. The concept draws our attention to the
fact that these organizing principles are embedded within sectors (security, political,
legal, social, cultural etc.), which have a close factual nexus among them.
The second objective is bound to the first one. The SFP framework encompasses
immaterial factors and seeks to study whether a population in a given state sees the
EU’s policies as legitimate. Perception plays indeed a predominant role in
determining how long these changes will hold. While it is difficult to measure the
legitimacy of structural changes before they are fully achieved, this analysis is central,
in terms of the internalisation and interiorization of the policy. In other words, to what
extent the external policy fits into the identity, culture, history and belief system of
the entire people concerned.36
It is necessary to clarify the extent to which this framework will be used. A merely
analytical use of SFP may risk narrowing the analysis to whether or not the EU’s
action in a specific case-study respond to the SFP criteria and thus whether X policy
is structural. Such consideration might have an interesting outcome for the researcher,
but as Naylor highlighted; ‘we can legitimately ask why we should care.’37 It is
significant to underscore the existence of a normative dimension under the concept of
Structural Foreign Policy. If adapted and operationalized into a case-specific
framework, it allows both the researchers and the practitioners to assess the
performance of the EU’s foreign policies and also questions which factors influence
34

Keukeleire and Delreux, op. cit., 2014 p.28
Ibid.
36
Ibid. p.30
37
Clement Naylor, “Structural Foreign Policy: A Critical Appraisal for Students, Researchers and
Practitioners,” in Thépaut, Métais and Keukeleire, op. cit., 2013, p.60
35

17

the most structural changes.38 Furthermore, the SFP framework incites academics to
found their assessment on the internalisation and sustainability of those policies.
However, assessing whether norms provided by external “donors” have been
internalised remains difficult without clear indicators on how to measure it. For this
purpose, Finnemore and Sikkink explored the process of internalization of norms and
argued that it occurs insofar as the norm ‘cascades’ meaning where it is taken for
granted by the society and is no longer the subject of public debates.39 Exploring the
sustainability of norms might also raise complications regarding most of the casestudies since it can only be done after a long period of time depending on whether
they have resisted to successive governments, and political, economic, security (and
so on) problems and uncertainties.
The core advantage of the Structural Foreign Policy Framework is that it seeks to
offer both a normative and an analytical approach allowing researchers to apply it to a
specific region/country and towards a predefined policy or issue.

3.2. Integrating structural foreign policy and Rule of Law promotion
Every scholar having probed the academic literature in the field of the Rule of Law
has certainly found that most of the academic approaches towards the RoL concept
tend to provide abundant normative and prescriptive analysis and regretfully,
analytical approaches are sporadic.40 The SFP concept is appropriate when applied to
the rule of law promotion as it focuses on various domains and dimensions whose
interconnectivity is often either unmentioned or neglected in the usual analysis of the
EU’s foreign policy. 41 The promotion of the rule of law is substantially and
intrinsically linked to the societal, security and economic sectors. For instance, justice
sector reforms may impact the economy through the prosecution of drug traffickers
overcoming the challenge of the underground economy. 42 The use of the SFP
framework regarding the assessment of the instruments and policies in view of
38

Ibid. pp.60-62
Martha Finnemore and Kathyn Sikkink, “international norm dynamics and political change,
international organization,” International Organizations 52(4), 1998, p.895
40
Frank Schimmelfinnig, “a comparison of the Rule of Law promotion Policies of Major Western
Powers,” in Zurn, Nolkaemper, Peerenboom (eds.) Rule of Law Dynamics: In an Era of International
and Transnational Governance, Cambridge, Cambridge University Press, 2012, p.112
41
Charles Thépaut and Raphaël Metais, op. cit., 2013, p.7
42
Laurel Miller and Robert Perito,, ‘Establishing the Rule of Law in Afghanistan,’ United States
Institute for Peace Special report 117, March 2004
39

18

promoting the RoL in Iraq is therefore particularly appropriate as it allows the
researcher to comprehend the interactivity between the different structures. In the case
of Iraq the deficiency of the rule of law observed since 2003 is an important factor
contributing to the insecurity of the State as it highlighted the societal tensions as it
highlights the societal tensions and marginalized parts of the population, which
contributed to the rise of terrorism. Henceforth, using the SFP framework implies an
assessment on whether the central actor of the study (the European Union), which
intended to promote the rule of law with the objective of addressing security
concerns, took into consideration these consequences and if it was successful or not
based on the following indicators: sustainability of structures shaped or influenced,
and whether these structures are interiorised and accepted by the society.
Furthermore, it is important to note that in a situation of globalised politics, an
external policy which inter alia intends to tackle security issues in promoting the rule
of law will have consequences on the regional (meaning the neighbouring countries to
the state to which such promotion is intended) and on the multilateral and
international regimes as a whole. 43 This comprehensive framework therefore
encourages authors who seek to study in all aspects an external policy to not neglect
and undermine these effects.

3.3. Embedding the SFP framework into the case-study
The application of the structural foreign policy framework to this case study proceeds
as follow: First, it determines how the Iraqi political and legal structures have an
influence in strengthening the societal inter-ethnic and religious divisions (societal
level) leading to marginalisation of parts of the population and the extent to which
these factors impact the existing security situation. Second, it analyses the objectives
and strategies under which the European Union intends to promote the rule of law for
bringing about stability and security. The last chapter look at how declarative
statements were transposed into instruments and budgets and their implementation
and whether EU inputs may be considered as a successful Structural Foreign Policy.

43

Stephan Keukeleire, EU Structural Foreign Policy and structural conflict prevention in Vincent
Kronenberger and Jan Wouters (eds.), the European Union and conflict prevention, policy and legal
aspects, The Hague, TMC Asser Press, 2004, p.157

19

CHAPTER 4: The deficiency of rule of law as a
causal factor of the rise of inter-ethnic tensions and
terrorism in Iraq
The state of Iraq has a controversial history with regard to the rule of law. This
chapter presents the root of instability in Iraq and the extent to which a defaulting rule
of law circuitously explains the fortification of the insurgency finding support from
marginalized groups. Doing so implies primarily a focus on the previous unsuccessful
and prematurely attempts to build the rule of law in Iraq (4.1). The second and third
subchapter demonstrate to what extent the “de-baathification” process operated with
the absence of the rule of law together with the sectarianism of the government might
have fostered the marginalization of the society (4.2) leading to instability and the
upsurge of terrorism (4.3)

4.1. The rule by law system of Iraq
In 2003, among the top priorities of the Coalition Provisional Authority (CPA) was
the establishment of new political and justice system to “help the Iraqi people to
establish a just and representative government, which respects Human Rights and
adheres to the rule of law.”44 Despite the general consensus over this necessity, the
US-led coalition rapidly demonstrated their incapacity to set up a rule of law system
sticking to the (rather) universally agreed definition whereby “every man whatever be
his rank or condition, is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals”45 implying inherently that the government itself
is accountable to rules. On the contrary, the CPA established an ad-hoc rule of law
system described by Ryan Liebl as a rule by law framework by which the law is used
as an instrument to govern and exert sovereignty over the territory rather than
providing a regime of norms where civil rights and fundamental liberties are

44

Georges W. Bush in Rosa Ehrenreich Brooks, ‘by force of will, Can the rule of law in Iraq come
from the barrel of a gun?’ Legal Affairs website Nov./Dec. (2003)
http://www.legalaffairs.org/issues/November-December-2003/argument_brooks_novdec03.msp
(Accessed 29 July 2015)
45
This definition is the oldest version of the definition now provided by the United Nations, see Albert
Venn Dicey, Introduction to the Study of the Law of Constitution, London: MacMillan and Co, 1902,
p.189

20

respected.46 The legal system was under full control of the CPA and deprived the state
of being entitled of law-making. The result was that the full legal system was
controlled by the Coalition Provisional Authority and could in the same way be
changed arbitrarily by the same authority while having legal binding force upon Iraqi
citizens. When building this debatable legal system, the CPA also neglected all
immaterial aspects of the Mesopotamian legal tradition based on the 1700 B.C.
Hammurabi code that Iraq historically inherited. Furthermore, the criminal justice
system was regularly obstructed by authorities in charge of ensuring the transition of
power since they often disregarded orders issued by judges on the basis that they were
supposedly corrupt.47 Even though the ‘mandate’ of the CPA lasted only a year, it
tremendously impacted the extent to which the law is considered as an instrument to
serve the purposes of the executive and legislative powers. The example of the
referendum in 2005 on the Iraqi Constitution is particularly revealing in this regard.
Originally, strict voting requirements were decided in order to make sure that the new
constitution would take into account the legitimate needs and interests of the local
provinces of Iraq, and would not be accepted if 2/3 of the voters in at least three
provinces (out of 18) rejected the constitution through the referendum. However, the
Iraqi Parliament mainly composed of Shi’a and Kurdish representatives – who almost
all backed the Constitution – decided to reform the Iraqi electoral law to significantly
reduce the possibility for the constitution not to be voted in.48

4.2. The de-baathification and sectarianism: the societal origin of divisions
and tensions in Iraq
On 16 May 2003, the CPA issued an order called ‘de-baathification of Iraqi Society’
forbidding former members of Saddam Hussein’s party (Baath) to serve the new Iraqi
government. Presented as an instrument necessary for rebuilding the state of Iraq
sanely, the De-baathification process turned into a sectarian tool preventing Sunni

46

Ryan J. Liebl, ‘Rule of law in Postwar Iraq : From Saddam Hussein to the American Soldiers
involved in the Abu Ghraib Prison Scandal, What Law Governs Whose Actions ?’ Hamline Law
Review 28(1), 2005, pp.129-130
47
Rosa Ehrenreich Brooks op. cit., 2003
48
This change consisted of conserving the system of a rejection of the constitution if three provinces
opposed it by two third but taking into account this time the total number of voters registered. See BBC
News, UN condemns Iraq charter change, Middle East section, October 4, 2005, BBC website
http://news.bbc.co.uk/2/hi/middle_east/4309164.stm (Accessed 29 July 2015)

21

Muslims49 from being involved in the Iraqi public affairs.50 This led the Republic of
Iraq, a non-inclusive nation, to be unable to accommodate religious differences.
Furthermore, vetting programs such as ‘de-baathification’ are subject to international
standards under the International Covenant and Civil and Political Rights (to which
both Iraq and the US are parties) and compliance with the rule of law principles,
Human Rights (such as the right to a fair trial). They shall be based on individual
assessments and on the basis that the person possesses “serious integrity deficits in
order to re-establish civic trust and re-legitimize public institutions.” 51 However, the
far-reaching approach undertaken by the administrator of the CPA Paul Bremer52 in
the implementation of the de-baathification process neglected these rules and
excluded between 85,000 to 100,000 people53, including thousands of people who
were forced to join the Baath party to keep their jobs in the public service during the
Hussein dictatorship.54 In 2008, the newly elected government of Nouri Al-Maliki
reformed the De-Baathification policies with the intention of; improving their
transparency, authorizing certain members (firqah55) to return their jobs in the public
service, fostering access to social benefits (pensions) for those who were excluded56
and creating the Higher National Commission for Accountability and Justice
(HNCAJ) which took over the programme of de-baathification.57 However, these
rather positive ambitions shifted to fiasco when the Accountability and Justice
Commission prevented 511 candidates and fifteen parties from running for the 2010
elections on the basis that they allegedly ‘promoted the Baath party.’58 59 Despite the

49

When created in 1947 the Baath party was a party composed mainly of Shi’a Muslims but the main
religious influence in the party became Sunni as time passed.
50
Miranda Sissons and Abdulrazzaq Al-Saiedi ‘A Bitter Legacy: Lessons of De-Baathification in Iraq’
International Center for Transitional Justice March, 2013, p.17
51
United Nations High Commissioner for Human Rights, Rule of law tools for Post-Conflict States,
vetting: Operational framework, United Nations, 2006, p.4
52
Administrator of the Coalition Provisional Authority
53
James P. Pfiffner, ‘US Blunders in Iraq: De-baathificaion and disbanding the Army,’ Intelligence
and National Security 25(1), 2010, p.79
54
Ibid.
55
Rank of ‘group member’ in the Baath party (i.e. Without responsibilities)
56
Miranda Sissons and Alexander Mayer Rieckh, Briefing Paper: Iraq’s New ‘Accountability and
Justice’Law, International Center for Transitional Justice (2008), p.6
57
Sissons and Al-Saiedi op. cit., 2013, p.18
58
Nada Bakri and Anthony Shadid, Move Made To Bar Iraqi From Ballot published in the New York
Times (East Coast Ed.), January 8, 2010, p. A4
59
United Nations Security Council, Report of the Secretary-General pursuant to paragraph 6 of
resolution 1883 (2009), S/2010/76, United Nations, February 8, 2010, p.7

22

UN’s call for transparent and non-discriminatory disqualification of candidates60, PM
Al-Maliki revealed his inability to compel the Iraqi state and his government to
adhere to international standards and Iraqi laws in vetting political opponents on the
basis of their religious membership or political membership. The list Al-Iraqia whose
members were mostly Sunni complained numerous times that they were regularly
pressured, threatened and approached by Nouri Al-Maliki staff and the Iraqi national
security forces.61 Following Sissons and Al-Saiedi syllogism, the de-baathification
process initiated by the US and sustained by successive Iraqi governments
undermined hopes of reconstructing Iraq in its post-conflict era as it took the form of
purges and gravely jeopardized the application of Human Rights and the Rule of Law
principles. 62

4.3. A flourishing political context for Da’esh
In 2005, when Shiite militias joined the police forces and demonstrated violent
behaviour against Sunni and civilians ‘transforming the police from a failing law and
order force into a party fighting on one side in the civil war’63 it became clear for
many Sunni Iraqis that their federal government was no longer able nor willing to
ensure their security. The stepping up of the repression organised by the government
increased the readiness of Sunnis to give their support ‘to any group that appeared to
have the potential to reverse its increasing marginalization.’ 64 This confirms a
statement made by Seung Whan Choi that people who live in countries where the rule
of law is blatantly ignored by their governments tend to see their government as
illegitimate.65
Taking the advantage of the eruptive situation in Iraq and the civil war in Syria, the
terrorist organisation so-called the Islamic State in Iraq and the Levant (Daash or
Da’esh in Arabic66), expanded in the north of Iraq across an area covering 90 per cent
60

United Nations Security Council, Report of the Secretary-General pursuant to paragraph 6 of
resolution 1883 (2009) S/2010/240, United Nations: May 14, 2010, p.3
61
International crisis group, ‘Iraq ‘s Secular Opposition: The rise and decline of Al-Iraqiya,’ Middle
East Report 127, 31 July 2012, p.11 and p.17
62
Miranda Sissons and Abdulrazzaq Al-Saiedi op. cit., 2013, p.36
63
Guido Steinberg, ‘The European Union Integrated Rule of Law Mission for Iraq (EUJUST LEX) A
policy surrogate with potential’ in Muriel Asseburg and Ronja Kempin (eds.), ‘the EU as a strategic
actor in the Realm of Security and Defence,’ SWP Research Paper December, 2009, p.130
64
Richard Barrett, the Islamic State: Report, The Soufan Group Nov., 2014, p.5
65
Choi, op. cit., 2010, p.945
66
Loose acronym standing for Al-Dawla al-Islamiya al-Iraq al-Sham

23

of Sunni areas relying on former members of Al-Qaida in Iraq (AQI), several local
tribes and alienated members of the Baath party despite political disagreements.67 68
This organisation founded by Musab Al-Zarqawi, and now under control of Abu Bakr
Al-Baghdadi gathers former members of the Mujahedeen Shura Council and former
detainees from US or Iraqi prisons, the most known being Camp Bucca; considered as
the ‘birthplace’69 of ISIL. Their main ambition is to rejuvenate a state based on the
ancient Ottoman Empire’s borders, the golden age for the Muslim world.70 Not only
ISIL menaces the security of Shia Iraqis and non-Muslims (takfir), who are required
to pay Jizya, the head tax, to protect their lives. In establishing a Caliphate, Daesh
also intends to destroy the hopes, no matter how slim they were, of maintaining a
united nation of Iraq.71 As the Copenhagen School’s scholars argue, when these
intentions are formulated as such, they are transformed into deeds by threatening the
stability of the political order.72 At the time of writing, Daesh on the military side,
seems to face difficulties, however the number of supporting local Sunni tribes
continue to increase in strategic position of Iraq. The consequence being that the Iraqi
federal government is now unable to take control over some parts of its own territory.
This generates further ‘security’73 threats such environmental threats, oil being a
fundamental source of revenue of ISIL, and economical, as most of the wheat fields
are located in areas under control and influence of the organisation.74 Under these
Daesh controlled areas, the criminal justice facilities nonetheless continue to function.
Instead of applying the law of men (Iraqi law), these facilities serve the purpose of
safeguarding the application of the rule of Allah, the Islamic law (Shari’a).

67

Barrett op. cit., 2014, pp.20-21
Claude Nougein, projet de loi autorisant la ratification de l’accord de partenariat et de coopération
entre l’Union européenne et la république d’Irak, rapport n°218, Sénat Republique Française, 14
January 2015, p.12
69
Jérôme Fritel, Daech, “naissance d’un Etat terroriste,” Arte TV (Fr. 2015, 55mn), February 10, 2015
70
Gino Schallengbergh, ‘the Management of Savagery,’ Lecture, Metaforum, KU Leuven Conference
28 October 2014
71
Platti, op. cit. 2014
72
Buzan B., Wæver O., De Wilde J., Security: A new framework for analysis, Boulder, Lynne Rienner,
1998, p.150
73
Security here refers to its comprehensive definition provided by the Copenhagen School in security
analysis in which the notion of security is conceptualized as perceived threats by actors and calls for
associating security to perceived threats by actors (i.e. widening security to environmental, political,
legal, societal sectors) see ibid and Paul D. Williams, security studies an introduction, London and
New York, Routledge, 2008, pp.68-72
74
Food Agriculture Organization, Iraq: Favourable weather conditions, but agricultural production
jeopardized by conflict, FAO Website http://www.fao.org/giews/countrybrief/country.jsp?code=IRQ
(Last Accessed 2 August 2015)
68

24

Countering terrorism is an important objective of Iraq and the fight against terrorism
is even enumerated in the federal constitution under Article 7:
“Any entity or program that adopts, incites, facilitates, glorifies, promotes,
or justifies racism or terrorism or accusations of being an infidel (takfir)
or ethnic cleansing, especially the Saddamist Ba’ath in Iraq and its
symbols, under any name whatsoever, shall be prohibited. Such entities
may not be part of political pluralism in Iraq. This shall be regulated by
law.
The State shall undertake to combat terrorism in all its forms, and shall
work to protect its territories from being a base, pathway, or field for
terrorist activities.”75
Nevertheless, Iraqi Professor Saad N. Jawad pointed out that the all-embracing
definition provided by the abovementioned article is too broad and ‘that it could be
used to condemn anybody who opposed the political process.’76 Used as a standard by
Iraqi decision-makers to enact counter-terrorism tough legislation, it results that it
gave rise to several Human Rights issues. For Zuhair Al-Maliki, judge interviewed
within the framework of this research, ‘there are counter-terrorism law and agencies
but there is no [Counter-terrorism] policy.’77 In light of this stark observation, Human
Rights Watch reported that the provision integrated in the Anti-terrorism law of 2005,
which allowed ‘anyone, who intentionally covers up any terrorist act or harbours a
terrorist with the purpose of concealment, [to] be sentenced to life imprisonment’78
has been extensively applied to Women who were accused of covering-up their
husbands.79
The picture is clear; the absence of rule of law led many Sunni Iraqis to believe that
they are persona non grata in their home place. If undoubtedly not all Sunni Iraqis
endorsed the ideology incarnated by Daesh, many have fallen victim to injustice and
become radicalised because of the sectarianism of the State and the incapacity of it to

75

Constitution of the Republic of Iraq, article 7, Refworld website (trans.) available at
http://www.refworld.org/docid/454f50804.html (Last Accessed 27 July 2015)
76
Saad N. Jawad, ‘The Iraqi Constitution: Structural Flaws and Political Implications,’ LSE Middle
East Center Paper Series 1, 2013, p.18
77
Interview with Zuhair Al-Maliki, via email, 2 August 2015.
78
Iraqi Council of Ministers, Anti-terrorism law No. 13, Article 4 (penalties), 7 November 2005, Vertic
website http://www.vertic.org/media/National%20Legislation/Iraq/IQ_Anti-Terrorism_Law.pdf (Last
Accessed 27 July 2015)
79
Human Rights Watch, No One is Safe: Abuses of Women in Iraq’s Criminal Justice System: report,
2014, p.6

25

reunite the legitimate interests of the Iraqi people, no matter their religious ideologies
and ethnical membership and this has lead to a tougher application of these of
counter-terrorism law in an arbitrary and discriminatory way.

26

Chapter 5. Overcoming security challenges through
the rule of law in Iraq: The EU’s Agenda
This chapter presents the context in which the EU envisioned its strategy towards the
republic of Iraq since 2004. Since its promotion occurred while conflicts between the
Sunni insurgents and the international coalition were not solved, the first subchapter
provides an assessment of the chances of success of a promotion of the rule of law in
such context (5.1). The second subchapter offers a comparative analysis between the
European Security Strategy’s vision of a rule of law promotion for security purposes
and the conception of a rule of law promotion following the concept of Structural
Foreign Policy (5.2). The final subchapter analyses the extent to which the EU set up
its strategy with a focus on the long-term (5.3)

5.1. Assessing the merits of promoting the rule of law in a context of
unsolved conflicts
The doctrine is divided concerning the relevance and chances of success of promoting
judicial sector reforms in a critical security situation. If one acknowledges that the
rule of law is an important element needed to keep an already pre-existing stability for
the population80, its utility for building a security environment remains a contested
area. The legacy of Saddam Hussein’s regime was a fragile state facing grave security
challenges. From 2003, the need for sustainable reforms in the criminal justice system
was seen as vital ‘to the building of a durable security capacity.’81 The critical
security environment was strengthened by the presence of the US-led coalition forces
and the military aerial and ground operations82 conducted throughout the territory of
Iraq from the North in Mossul to the South in Basra leaving the whole country’s
infrastructure destroyed. Weakened economic, political and social structures and
impeded the functioning of the justice system. For Schröder and Kode ‘a
comprehensive security sector (CSS) reform, as envisioned by state-builders, requires
an already pacified political sphere where conflicts can be managed by resorting to
80

Christoph Bleiker and Marc Krupanski, “The Rule of Law and Security Sector Reform:
Conceptualising a Complex Relationship,” Security Sector Reforms Paper 5, 2012, p.55
81
Andrew Rathmell Reforming Iraq security sector in Rathmell et al. (eds.) developing Iraq’s security
sector, National Defense Research Institute, 2005, 57
82
The total number of military operations from 2003 to 2011 is difficult to estimate due to the lack of
transparent data

27

legal mechanisms.’83 In view of fostering the interiorization of rule of law reforms,
this ‘pacified political sphere’ seems in effect indispensable, as the development of a
structural foreign policy in states where the crises and conflicts are not solved is a
strenuous exercise.84 While interiorization requires a general public agreement for a
norm being implemented, a wartime situation in a country where inter-religious
tensions are profound implies a strengthening of the divisions in the public opinion.
Although the process of interiorization (‘cascade’85) of external policies takes place
after the implementation phase, the context in which the norm was envisaged and
emerged is crucial in order to enter into the belief system of the people of Iraq. The
objective of proliferating norms and principles attached to the concept of the Rule of
law therefore might find complications

5.2. Securing through the rule of law: European Security Strategy
The European Security Strategy (ESS) was initiated in the margins of the dispute over
the intervention in Iraq to ensure that EU member states kept a shared vision on how
to deal with security challenges worldwide.86 It points out the existence of the rule of
law-security nexus. However, the ESS explicitly indicates a self-interested strategy in
the promotion of good governance, rule of law, Human Rights and Democracy as it
conceives a ‘world of well governed states’ as ‘the best protection for our security.’ 87
Following Daan Fonck’s analysis, the focus by the EU on its own interests and gains
for its own stability falls within the traditionalist and conventional conceptions of
foreign policy as the European Union intends to ensure its own security through its
external action.88 On the other side, a structural rule of law promotion focuses on the
benefits for citizens in target countries by providing them a protection against the
arbitrariness of the state, in setting up a visible separation between the executive and
judiciary powers, in ensuring decent conditions of detentions, in reducing the factors
that foster corruption, in shaping a legal framework banning the practice of torture

83

Ursula C. Schröder & Johannes Kode, ‘Rule of Law and Security Sector Reform in International
State-Building: Dilemmas of Converging Agendas,’ Hague Journal on the Rule of Law 4, 2012, p.38
84
Keukeleire and Delreux, op. cit., 2014, p.264
85
Finnemore and Sikkink, op. cit., 1998, p.895
86
Ruprecht Polenz, NATO Parliamentary Assembly, The EU security Concept: Implications for NATO
and the EU, 167 PCTR 04 E, Committee report, 2004, p.1
87
European Council, A secure Europe in a Better World: European Security Strategy, Brussels, 12 d
December 2003, p.10
88
Daan Fonck, ‘Promoting Justice Abroad: An Analysis of the EU’s Rule of Law Promotion in
Ukraine as Structural Foreign Policy,’ in Métais, Thépaut and Keukeleire op. cit., 2013, p.23

28

and brutality and in ensuring that the state itself is subject to legal rules. The
European Security Strategy remains a guideline which is not sensu stricto binding
upon the institutions of the EU, it is the very good example of what is implied through
the rule of law promotion in third states as a security objective.

5.3. Building the rule of law in Iraq: A long-term undertaking
Before 2004, the Iraqi police were badly trained, poorly equipped and frequently
involved in corruption scandals.89 Several former police officers admitted that the use
of torture and ill treatment to extract information from prisoners was commonplace.90
They were therefore badly trusted and feared by the population. The depraved
condition of the rule of law in Iraq was unfortunately not limited to the Iraqi police. In
spite of Article 2 of the Judicial Act No. 160 of 1979 providing for independence of
the judiciary91, the courts were regularly pressured by the executive and the religious
forces of the country.92 The penitentiary sector was organised and managed by the
Ministry of Labour and Social affairs during Saddam Hussein’s dictatorship and the
detention facilities - and their conditions accordingly – differed significantly from one
prison to another.93 Furthermore, the number of killed officials working for the justice
sector (policemen, judges and prison officials) was - and still is - considerably higher
for these professions than any other.94
Upon the request of the European Council held on 16 and 17 October 2003, following
the adoption of the UNSC Resolution 1511 on Iraq, the European Commission issued
a Communication to the Council and the European Parliament on the future of the

89

Alina Christova, ‘Seven years of EUJUST LEX : The challenge of the Rule of law in Iraq,’ journal
of contemporary European Research 9(3), 2013, p.427
90
Human Rights Watch, The New Iraq? Torture and ill-treatment of detainees in Iraqi custody, Human
Rights Watch report 17(1) (D) January 2005, p.79
91
Iraqi Ministry of Justice, resolution number 1724, Alwaqai Aliraqiya: the official gazette of the
republic of Iraq 27(23), 2 July 1980
92
David Pimentel and Brian Anderson, ‘Judicial independence in Postconflict Iraq: Establishing the
rule of law in an Islamic Constitutional Democracy,’ The George Washington International Law
Review 46, 2013, p.54
93
Mitchel P. Roth, Prisons and Prison Systems: A Global Encyclopedia (Santa Barbara: Greenwood
Publishing Group, 2006, p.137
94
Iraq body count, Iraqi deaths from violence 2003–2011: Analysis and overview from Iraq Body
Count, January 2, 2012, IBC Website https://www.iraqbodycount.org/analysis/numbers/2011/
(Accessed July 17, 2015)

29

EU-Iraq relationship.95 As the member states’ disagreements over a Joint Action with
the United States thwarted all EU military cooperation, the involvement of the EU
could only be civilian and political. The UN Special Representative in Iraq, Sérgio
Vieira de Mello pressed the EU to send police officers under the command of the
United Nations but member states’ governments rejected this idea on the basis that
this ‘should only take place after the end of the military occupation.’96 Despite this,
the EU, under a Council Configuration, nonetheless decided on the launch of an
observatory mission aimed at identifying threats to security. 97 The European
Commission acknowledged that a long-term foreign policy would be needed to
address all the challenges and concerns leading eventually to a cooperation
framework.98 Having regard to the situation in which the criminal justice system
operates and in spite of the non-pacified situation as well as the report of the scoping
observatory mission, the EU and its member states decided in 2004 to make
engagement in “the civilian crisis management areas of police, rule of law and
civilian administration as well as elections”99, the core objective of its foreign policy
towards Iraq for the process of reconstruction and stabilisation. The EU made clear
that the aim of these rule of law missions was to provide stability and the next
governments with a prosperous democratic State.100
Building a rule of law system and eventually achieving peace and stability in Iraq
‘should be seen as a long term undertaking that requires a long-term perspective and
[…] it is not something which can be accomplished in a year or two by a single actor
alone.’101 The 2004 strategy paper for Iraq expressly delineates the EU’s future action
as being focused on building structural and long-term involvement in Iraq but,
according to Youngs, the EU did so to avoid ‘the short-term controversies.’102 That is
95

European Commission, Communication from the commission to the Council and the European
Parliament, the European Union and Iraq: A framework for engagement, Brussels, COM (2004) 417,
Brussels, 9 June 2004
96
Richard Youngs, ‘Europe and Iraq: From Stand-off to Engagement?’ CEPS Working Documents,
2004, p.17
97
Council of the European Union, Council Joint Action on establishing an expert team with a view to a
possible European Union integrated police, rule of law and civilian administration mission for Iraq,
15207/04, Brussels, 25 November 2004, p. 5
98
Commission, communication to European Parliament and Council, op. cit., 9 June 2004, p.6
99
Council of the European Union, Council conclusions General Affairs and External Relations
C/04/251, press release 12068/04, Brussels September 13, 2004, p.10
100
Ibid.
101
Christova, op. cit., 2013, p. 425
102
Youngs, ‘Europe and Iraq: From Stand-off to engagement?’ op. cit., 2004, p.6

30

to say the member states’ financial commitments and debt reliefs for Iraq. Having
said that, agreement over budget pledges were found rather painfully at the 2003
Madrid Donor Conference where the EU and its member states pledged a budget of
€1.25 billion for Iraq (including €200 million for state reconstruction and €100
million for humanitarian aid).103 The EU’s overall contribution is substantively higher
when it includes the writing off of 80% of debt, deemed ‘odious’104, to several
member states (particularly France and Germany).105

103

Council of the European Union, Launching of EUJUST LEX ESDP Integrated rule-of-Law Mission
for Iraq, General Secretariat of the Council press office Brussels, June 2005, p.3
104
Doctrine of international law introduced by Mohammed Bedjaoui who defined an odious debt as
‘any debt incurred for uses that contradict contemporary international law, particularly the principles of
international law incorporated in the UN Charter’ in United Nations, Ninth Report on Succession of
States in respect of matters other than treaties, United Nations Doc. A/CN.4/301, 1977, p.70
105
John Leicester (with Associated Press), Group Agrees to Reduce Iraqi Debt, The Washington Post,
November 22, 2004, p. A4

31

Chapter 6. The EU’s promotion in Iraq: Policies and
outcomes
This chapter examines the transposition of the strategies and objectives of the EU into
instruments and budgets (6.1), it follows an analysis of the extent to which these are
implemented (6.2) as well as their outcomes (6.3). The last sub-chapter presents the
latest input of the EU towards Iraq that is the EU’s Regional Strategy for Iraq and
Syria and offers a comparative analysis of it with the previous policies engaged by the
EU hitherto (6.4).

6.1. Instruments and budgets
CSDP Mission EUJUST LEX
The EU’s first and main foreign policy commitment in Iraq was an intergovernmental
CSDP Mission EUJUST LEX designed to strengthen the rule of law in Iraq while
maintaining a focus on Human Rights. The Council Joint Action 2005/190/CFSP
initially foresaw a budget of €10 million/year and for a period of sixteen months.
Amended every year, the mission ended in December 2013 with the budget reaching a
total of 117,350,000 EUR.106 The core aspect of this mission was to provide training
activities and courses to Iraqi officials in view of supporting the democratic transition
in Iraq. For the first time in a rule of law mission, the EU undertook an integrated
approach meaning that it aimed at reforming the police, penitentiary and justice
sectors through a single mission.107
Rule of law through technical assistance programmes
The input of the EU in international assistance commenced in 2003 and programmes
were repeated every year with greater contribution from the EU side. In 2011, the
overall EU budget for reconstruction assistance represented 867.2 million EUR. In the

106

Calculation made from the following Council decisions: 2005/190/CFSP (7 March 2005);
2006/708/CFSP (17 October 2006), 2007/760/CFSP (22 November 2007); 2008/480/CFSP (23 June
2008); 2009/475/CFSP (16 June 2009); 2010/330/CFSP (14 June 2010); 2011/170/CFSP (21 March
2011); 2012/372/CFSP (10 July 2012)
107
Guido Steinberg, ‘The European Union Integrated Rule of Law Mission for Iraq (EUJUST LEX): A
Policy Surrogate with Potential.’ in Asseburg, M. & Kempin, R. (ed.), ‘The EU as a Strategic Actor in
the Realm of Security and Defence?’ SWP Research Paper Berlin (2009), p.125 and p.129

32

field of rule of law, reconstruction assistance took place in the form of successive
short-term programmes. Unlike the CSDP mission, the assistance programme is
carried out through a multilateral United Nations initiative. 108 The European
Commission supported the 2007 rule of law programme in Iraq by contributing to
€14m. The UNDP, UNOPS and the UN mission for Iraq (UNAMI) hold
responsibility for the management and the implementation of this programme. This
programme is aimed at creating conditions necessary for national reconciliation,
reconstruction and development efforts through the rule of law. 109 The EU’s
contribution to the development of civil society organisations (CSOs) took place
through the European Instrument For Democracy and Human Rights (EIDHR),
instrument known for its ‘developmental approach’110 on Rule of Law, Human Rights
and Democracy promotion. It is now fully part of the 2007 multilateral framework
rule of law assistance and the EU regularly uses this instrument to implement its
projects with the involvement of CSOs.111
Furthermore, in 2007 the EU introduced the Development Cooperation Instrument
(DCI). Under this instrument the European Commission launched in December 2008
a series of eight special measures for Iraq for a period of four years with a budget of
72.6m€. 112 It includes a special scheme for technical assistance to the Iraqi
institutions, which represent 15 per cent of the total DCI’s budget for Iraq, and is
designed to reinforce the democratic accountability of the Iraqi administration and
government. This is because three years after the entry into force of the Constitution,
the Iraqi institutions remained fragile especially with regard to the difficulty of setting
up a proper judicial review system.113
108

European External Action Service, Delegations of the EU to Iraq, EU Assistance for 2007, EEAS
website
http://eeas.europa.eu/delegations/iraq/eu_iraq/tech_financial_cooperation/overview/eu_assistance_200
7/index_en.htm (Last accessed 10 July 2015)
109
European Commission (DG DEVCO), Action fiche for Iraq, Europa website, 2007, p.1
https://ec.europa.eu/europeaid/sites/devco/files/aap-financial-support-to-the-rule-of-law-and-justiceiraq-af-2007_en.pdf
110
Fonck, Op. cit., 2013, p. 26
111
European Commission (DG RELEX), EU Joint Strategy Paper for Iraq 2011-2013, European
External Action Service database, 2011, p.18
112
European External Action Service, Delegation of the EU to Iraq, Support to Governance, Electoral
Process, and Human Rights, delegation of the EU to Iraq, EEAS Website
http://eeas.europa.eu/delegations/iraq/eu_iraq/tech_financial_cooperation/gephr/index_en.htm
113
European Commission, Iraq: Technical Assistance to Iraqi Institutions annexe 1, Action fiche for
the Republic of Iraq, Europa Website, 2008, p.1
http://ec.europa.eu/europeaid/documents/aap/2008/af_aap-spe_2008_irq.pdf

33

Bilateral and cooperation agreement
As foreseen in the initial European Commission long-term project for the republic of
Iraq, the EU concluded a Partnership and Cooperation Agreement (PCA), which
followed the conclusion of the Memorandum of Understanding on Energy. It
stipulates that the parties “shall attach particular importance to the principle of the
rule of law, including the independence of the judiciary, access to justice, and the
right to a fair trial.”114 As encroaching on the EU member states competences, the
agreement is currently under ratification processes but is nonetheless provisionally
applied. It formalizes the EU-Iraq financial and technical commitments undertaken
since 2003 and opens the door for a structural and steady political dialogue over the
long term.115 Regarding the cooperation in the area of justice, freedom and security
(Title IV of the agreement), the PCA foresees a cooperation framework concerning
the fight against organised crime and interestingly, cultural and regional cooperation
is inserted within the same title in Articles 109 and 110.

6.2. Implementation
The involvement of a great number of actors created some trouble in the
implementation of policies as ‘multiple projects designed to reconstruct justice in Iraq
[are] often compete with each other’. 116 A problem has arisen regarding the
expenditure of the Iraqi government in the field of state reconstruction. According to
the U.S. Government Accountability office (GAO), the financial pledges of the
international community designed for reconstruction efforts are part of the Iraqi
national budget but not fully spent by the Iraqi Ministries.117
The training activities under the civilian EUJUST LEX mission, the most important
project of the European Union in Iraq in terms of budget, were initially held in the
territory of the EU member states and in other states of the MENA region due to the
unstable security situation in Iraq until 2010. These activities took place in the form of
114

European Union, Partnership and Cooperation between the European Union and its Member States,
of the one part, and the Republic of Iraq, of the other part, Article 102, O.J., 31 July 2012
115
Chantal Guittet, rapport No 2254 et No 2255 sur l’accord de partenariat entre l’union européenne
et la république d’Irak, Assemblée Nationale, October 8, 2014, p.8
116
Cyndi Banks, “Reconstructing Justice in Iraq : Promoting the Rule of Law in a Post- Conflict State,”
Hague Journal on the Rule of Law, 2010, p.156
117
United States, Government Accountability Office, Securing, stabilizing and rebuilding Iraq: GAO
Audits and Key Oversight Issues, report October 30, 2007, GAO Website
http://www.gao.gov/highlights/d08231thigh.pdf (Last Accessed 21 July 2015)

34

courses on a wide range of legal issues (prisoner classification, international judicial
cooperation, pre-trial detention management etc.118) Despite its integrated approach
with the purpose of enforcing a culture of Human Rights in Iraq119, the mission was
not a shining example of comprehensiveness as the mission set aside the civil society
confirming the top-down nature of the CSDP.120 It results that it neglected the societal
and individual levels when being implemented. It was only in 2010 that the Council
approved the organisation of the trainings of Iraqi officials in the police, judiciary and
penitentiary sectors in the cities of Erbil, Basra and Erbil.121 Located in the Kurdish
region of Iraq, the city of Erbil was a strategic place to set up a rule of law mission
but regretfully it did not include the participation of the civil society since the mission
was solely designed for Iraqi officials. Many are the scholars such as Christova who
argue that these officials ‘are the people who can provide a new vision and incentives
for a change in terms of mentality and culture.’ 122 This statement, although not
entirely wrong, reinforces the idea that a top-down approach suffices to reach Public
acceptation over foreign policy incentives. However, while the EU expressed an
interest in collaborating with civil society organisations under the EUJUST LEX
framework,123 this was never transposed into concrete action. It was also pointed out
that the training operations’ efficiency was limited as the courses were ‘out-of-date
and archaic,’124 and did not take into account the trainings provided by CPA from
2003 and the start of the EU mission in 2005. EU officials in charge of these training
had little knowledge about the Iraqi procedural system and little knowledge about the
Iraqi Arabic legal terminology which differ from other Arab countries.125 Those from
common law countries faced difficulties in understanding the civil law aspects of the

118

Full list is available on European External Action Service, CSDP Missions and Operations, EU
JUST LEX IRAQ, EEAS Website http://www.eeas.europa.eu/csdp/missions-and-operations/eujust-lexiraq/news/index_en.htm (Last accessed 22 July 2015)
119
European External Action Service, EUJUST LEX-Iraq Mission Factsheet, EEAS website, January
2010, p.1 http://www.eeas.europa.eu/csdp/missions-and-operations/eujust-lex-iraq/pdf/facsheet_eujustlex_iraq_en.pdf
120
Catriona Gourlay, ‘the politics of EU civilian interventions and Strategic Deficit of CSDP’ EU
Crisis management Papers Series, 2012, p.23
121
Alina Christova op. cit., 2013, p.434
122
Ibid. p. 436
123
Wanda Troszczynska-van Genderen, “Human rights challenges in EU civilian crisis management:
the cases of EUPOL and EUJUST LEX”, European Union institute for Security Studies occasional
paper 84, 2010, p.25
124
Daniel Korski, EU JUST LEX (Iraq) in Giovanni Grevi, Damien Helly and Daniel Keohane
(editors) European Security and Defence Policy – the first 10 years (1999-2009), EU institute for
Security studies, 2009, p.237
125
Judge Zuhair Al-Maliki interview

35

Iraqi law and some with stronger knowledge of civil law systems found at their arrival
in Iraq that the civil law system was only applied to in criminal procedure. 126
Critically, in spite of the Iraqi Expert Team’s recommendations, the mission never
provided the guarantee that trained officials ‘were given compatible instructions.’127
The two funding instruments, namely the DCI and the EIDHR undertook a rather
bottom-up approach in financing individual specific rule of law projects.
Nevertheless, the EU faced difficulties in monitoring and assessing the impacts of the
funded projects. 128 Until 2010, successive Iraqi NGO monitoring laws prohibited
foreign organizations (including the EU) from financing Iraqi CSOs and members of
a improperly registered NGOs could face up to 3 years imprisonment sentence.129
After the entry into force of the new Iraqi NGO Law in March 2010, the situation has
significantly improved for NGOs as the main regulatory barriers have been removed.
Some difficulties nonetheless persisted such as the requirement to register and
organisations such as UNOPS – in charge of monitoring the implementation of
projects – have spent a lot of time and efforts helping NGOs to understand how the
registration process works.130

6.3. Outcomes
If the EU, for reasons we may understand, presents the CSDP rule of law mission as a
success, scholars and member states’ decision-makers are more critical. They
emphasize, for instance, the lack of transparency regarding the achievement of the
mission as well as the absence of preparation to foster the transition to local
ownership.131 In terms of scope this mission was rather successful as more than 4,800
criminal justice officials have participated to the training activities.132 However, the
poor quality of the trainings and the absence of universal agreement ‘on to what

126

Ibid.
Korski op. cit., 2009, p.238
128
Troszczynska-van Genderen op. cit., 2010, pp.17-18
129
The international center for not-for-profit law, NGO Law Monitor: Iraq, website
http://www.icnl.org/research/monitor/iraq.html (last Accessed July 22, 2015)
130
European External Action Service, Helping NGOs in Iraq get to work, press release, May 18, 2011,
EEAS Website
http://eeas.europa.eu/delegations/iraq/documents/press_corner/news_2011/18052011_press_release_he
lping_ngos_to_work_en.pdf (last accessed July 22 2015)
131
House of Commons, Fifth report of Session 2013-14, European Scrutiny Committee, TSO, 2013,
p.57
132
Christova op. cit., 2013, p.433
127

36

extent Human Rights should be promoted within CFSP operations’133 have limited the
qualitative efficiency of the mission. Also, the fact that some missions in the
beginning occurred in Europe rendered the training particularly attractive for Iraqi
officials and participants were chosen by Iraqi governments on the basis of their
accomplishments (i.e. in the form of rewards).134 The importance of shaping mental
structures was exclusively addressed to elites neglecting disadvantaged and
marginalized groups. 135 Furthermore the hierarchical Iraqi structure and the
willingness of former PM Nouri Al-Maliki to concentrate all powers in the state
impeded officials with good intentions from effectively implementing them as they
were subject to direct orders from their ministries. Discriminatory detention without
being provided a reason is still frequent in Iraq. In July 2011, the Republic of Iraq the
Convention Against Torture (CAT) but in practice Human Rights are considered to
impede the functioning of the justice system and as such, pressure to extract
information from suspects ‘is just a fact in Iraq.’136 Torture practices perpetrated by
the Iraqi government have a devastating impact on civil society as ‘torturers break the
bonds of trust between individuals and communities, and prevent citizens from
effectively seeking redress against their government’137.
A diminution of violence between 2009 and 2012 was noticed in Iraq. However, the
influence of the Syrian crisis together with the sectarianism of PM Al-Maliki has
worsened the security situation in Iraq transforming it into a civil war. The EU and
other international actors involved in Iraq have not been successful in addressing the
roots of religious tension. It is difficult regarding the non-interference principles, to
oppose the political will of local governments when they become an obstacle to
structural reforms. This raises the question of whether Iraqi executive power from
2006 to 2014 had acknowledged the necessity to be bound by the law. Stepping up
repression, arbitrary detentions, and sectarianism for counter-terrorism purposes have
worsened the security situation. However is neither realistic nor desirable to envisage

133

Troszczynska-van Genderen op. cit., 2010, p.9
Nougein op. cit., 2015, p.21
135
Banks, op. cit., 2010, p.169
136
Ibid.
137
Heartland Alliance International, strengthening the rule of law in Iraq, implementation of the
convention against torture (CAT) in Iraq, HAI website
http://www.heartlandalliance.org/international/wherewework/project-pages/iraq-strengthening-rule-oflaw.html (last accessed July 24, 2015)
134

37

the use of restrictive measures to force Iraq’s executive power to accept the EU’s
principles. There is nonetheless a gap between condemning a government’s behaviour
and supporting its counter-terrorism objectives by all means. When reading official
declarations, it is perceivable that the EU had difficulties positioning itself between
the necessity of enforcing the rule of law principles in Iraq and supporting the
government to overcome security challenges.138 There is an important part of the Iraqi
Human Rights defenders wishing to combine counter-terrorism strategies with the
respect of international Human Rights law. This surely has to be done without
undermining the role of local knowledge, Iraqi legal traditions, and excluding a mere
top-down approach.
The EU’s footprint in the improvement in the rule of law sector is nonetheless clearly
visible in some areas particularly with regard to the penitentiary facilities where
detainees now have access to employment and the right to visit granted to family
members. Before Hussein’s regime collapsed, the Iraqi police were in the lower rank
of the security forces, they are now better equipped and trained across the country in
six regional centres.139 However many security officials regularly join Daesh forces as
they provide better wage conditions than the ones offered to work under the authority
of the Iraqi government. Even if corruption is still happening in Iraq, the
independency of the judiciary has nothing comparable to that at time of Saddam
Hussein. These examples show that all attempts to build the rule of law in Iraq are not
fruitless. The cooperation between the EU and UNAMI on rule of law promotion
have demonstrated positive inputs in financing ambitious projects involving CSOs
targeting inter-ethnic tensions.140 It is difficult, however, to determine whether these
positive results will be sustainable or even generate further improvements in the
future and whether the establishment of norms will continue to be resisted by the Iraqi
system. Even though the rule of law and Human Rights are undeniably resisting from
138

See for instance C. Ashton’s statement: ‘The EU is doing all it can to support PM Al-Maliki […] to
confront terrorism and address security challenge,’ in Council of the European Union, First Meeting of
the Cooperation Council between the EU and the Republic of Iraq, 5504/14 PRESSE 16, Brussels, 20
January 2014, p.1
139
United States Senate, The findings of the Iraqi Security forces Independent assessment commission,
Hearing before the committee on armed services, Centre for strategic and International Studies website
6 September 2007, p.94
140
See for example the project on ‘Combating religious discrimination in Southern Iraq’ financed
partly by the EIDHR for a period of three years in European Commission, combating religious
discrimination in southern Iraq, Europa Website https://ec.europa.eu/europeaid/projects/combatingreligious-discrimination-southern-iraq_en (Accessed 10 July 2015)

38

being fully part of the Iraqi political and judicial system, the EU, perceived as an
international organisation, experiences a high approbation of its reforms from the
Iraqi people141 recalling the soundness of its participation in international efforts.
Furthermore, the EU-Iraq Partnership and Cooperation Agreement is an instrument
allowing the republic of Iraq to access the EU market and to benefit from the
Generalised Scheme of Preferences (GSP), to foster exports towards the EU. This
PCA creates a framework, under Article 121(3), for the parties to ‘take appropriate
measures’ (i.e. temporary or permanent non-application of the PCA) in case of
violation of the provisions referred to in Article 2 (on the respect of rule of law,
Human Rights and democratic principles).142. This new ‘carrot-and-stick’ approach in
EU-Iraq relations offers a possibility for the European Union to scrutinize the
interiorization of the norms it intends to implement in Iraq.
Having said that, from a ‘structural’ perspective, it would be unreasonable at the time
of writing to assert that the EU’s policies aimed at promoting the rule of law fulfil
positively the incentives of the SFP framework. There are nevertheless positive inputs
to sustain the efforts conducted for a decade, which may prove that the EU’s
ambitions are undeniably structural without having yet achieved successful results.

6.4. 2015 Regional Strategy for Iraq and Syria
Given the seriousness of the “Daesh crisis” since summer 2014, the European
Commission issued a communication to the Council and the European Parliament in
February 2015 presenting the upcoming strategy for Iraq. With this new
comprehensive guideline, the Commission intends to sustainably tackle the factors
which have contributed to the escalation of violence and the current crises namely
‘repressive dictatorial rule, armed conflicts, exclusionist and corrupt governance,
human rights abuses, sectarian divisions’. 143

Although it calls explicitly for

identifying the ‘EU interests,’ 144 which may evoke, again, a self-interested
implication, it nonetheless refers to what had been neglected by the EU so far, the
141

Zuhair Al-Maliki, interview
EU-Iraq Partnership and Cooperation agreement Article 2, L204/22, 31 July 2012,
143
European Commission, Joint Communication to the European Parliament and the Council:
Elements for an EU regional strategy for Syria and Iraq as well as the Da'esh threat, JOIN(2015) 2,
Brussels, 6 February 2015, p.2
144
Ibid.
142

39

ethno-sectarian reconciliation impeding lasting stability in Iraq. Through a set of
comprehensive tools (IcSP, DCI, ‘Madad fund’145 and EIDHR) the EU this time
shows its eagerness to tackle the security issues at the root in affirming that ‘the rule
of law […] is the foundation of the fight against terrorism.’146 In view of supporting
transitional justice and national reconciliation, the EU made clear that supporting civil
society through Human rights defenders and moderate Sunni oppositions is the key to
ensuring a lasting and legitimate compliance with the rule of law principles and
acknowledges that failures in the RoL sector ‘lie at the heart of the crisis in Iraq.’147
Despite the impossibility of determining whether the EU will be able to handle the
same difficulties it encountered during the implementation of the previous policies,
there is a huge contrast with the strategy of 2004, undeniably thanks to the Lisbon
Treaty’s improvements in EU Foreign policy (enhancement of the coordination
between institutions, DGs, working group and delegations). Therefore, this strategy
sets a new tone in the EU-Iraq relations relying on the ratification of the partnership
agreement in 2012. With clear objectives of strengthening local resilience capacities
and civil society actors148, this strategy plans a comprehensive engagement in Iraq
intending to both achieve the original structural ambitions and overcome the current
challenges in preparing the ‘day after’ Daesh. Table 1 compares the 2015 strategy
with the SFP normative criteria and the ways the EU promoted the rule of law until
now. It shows that the European Union is closing in with the criteria set out by
Stephan Keukeleire and later contributors.

However, it is important to note that it

remains a strategic vision leaving member states and relevant EU decision-making
bodies up to decide which instruments, means and budgets to use for Iraq and it does
not signify that these will strictly follow the initiative set out by the European
Commission.

145

EU regional trust fund in response to the Syrian Crisis, which is now intended to be used for Iraq as
well.
146
Council of the EU, note 5369/15 from General Secretariat of the Council to Delegations, outlining
the counter-terrorism strategy for Syria and Iraq, with particular focus on foreign fighters, Brussels,
16 January 2015, p. 2 (Annex)
147
European Commission, Elements for an EU regional strategy for Syria and Iraq as well as the
Da'esh threat op. cit., 2015, p.17
148
Ibid. p.13

40

Table 1. Comparison SFP criteria and EU’s rule of law promotion policies149
Structural
rule
of
promotion (criteria)

law

EU’s Rule of law promotion in Iraq
(2004-2014)

2015 EU’s regional strategy
(2015
onwards
as
envisioned)

Actors
targeted

All actors (State, local entities,
Non State actors: civil society)

State civil administration (CSDP)
NGOs but constraint budget and
difficult implementations (EIDHR,
DCI)

State
Civil Society and
marginalised Sunni
Local regions

Length

Long-term

Long-term involvement but shorttermed policies

Long-term (preparing
‘day after’)

Interests

Collective and other regarding
interests (separation between
executive judiciary,

Collective interest (self interest +
State building interests)

Collective
interest
(countering a threat for both
the EU and Iraq as well)

Security

Human Security

Procedural security

Collective Security

Method

Local ownership
Inclusiveness
Bottom-up approach
Follow-up

Absence of local ownership
Vertical relationship
Top down (CSDP) and Bottom-up
(EIDHR, DCI) Follow-up under
cooperation (regular meetings +
PCA)

Strengthening local resilience
capacities
Both vertical and horizontal
relationship
On the basis of EU-Iraq PCA
Inclusiveness

Result

Interiorization
(norms
‘cascaded’)
Sustainability
Legitimacy/Acceptance

Legitimacy over the efforts of the
EU and IOs
Difficult to assess sustainability
over norms
Rule of law not part of the belief
system

Strategy needs to be
transposed into concrete
action by member states
and the EU relevant
bodies/institutions.

149

Source compiled by the author inspired from Daan Fonck’s table op. cit., 2013, p.22

41

the

Conclusion
The case of Iraq is very emblematic of what is implied when promoting the rule of
law in a non-neighbouring country. The European Union is not the only actor to
deploy assistance programmes, and this often leads to competition and divergences on
how best to make the Iraqi justice and political systems both effective and compliant
to overarching rules. The main finding of this thesis is that the rule of law is a crucial
missing element in Iraq. The neglect of the principles relating to the rule of law
together with the sectarianism of Iraqi governments since 2004 have made it attractive
for terrorist groups to form by alienating minorities of the population, essentially the
Sunni Iraqis. Action and consequent budgets from the EU confirmed that it
acknowledged this causality. However, the top-down approach of the EUJUST LEX
mission as well as the technical problems this mission faced; impossibility to set up
the mission in Iraq until 2010 due to the security situation, lack of sound knowledge
of the Iraqi criminal justice system and the legal terminology in Iraqi Arabic of EU
experts, training of Iraqi officials on the basis of rewards mitigated its intended
effects. Concerning the EU’s contribution within the framework of the international
assistance, it is difficult to evaluate the EU’s footprint as most of its programmes are
now intertwined with others schemes. However, we may argue that it demonstrates
that the EU did not put its interest at first. This thesis argued that in the case of Iraq a
bottom-up approach seems more relevant as Iraqi governments are unpredictable and
are often make hasty reforms in order to remain in power and exclude other political
groups. Strengthening local resilience and ownership and providing civil rights
safeguards to marginalized parts of the population remain the best way to protect
Iraqis from terrorist groups such as Daesh in limiting its growth in terms of support
from alienated Sunnis. The Partnership and Cooperation Agreement now allows the
EU to deepen its diplomatic, political and economic relations and to strengthen rule of
law cooperation with Iraq. Referring to the previous experiences of the EU in bilateral
agreements and the positive outcomes accordingly, we may undeniably believe that it
would lead to the greater accomplishment in the rule of law sector leading eventually
to the restoration of peace and stability in this eruptive part of the MENA region.

42

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50

ANNEX
Interview with Judge Zuhair Al-Maliki
Théo Lemaire: What is your general appreciation of the involvement of western
countries or international organisations (e.g. The European Union, the United
States, the United Nations etc.)? Do you think they are seen by the Iraqi people
as positive influence or rather criticized by the population?
Zuhair Al-Maliki: In general the Iraqi society highly appreciate the involvement of
the international organizations in the reforming the Iraqi institutions and the general
perception is that the international organizations is more trusted than the direct
involvement of the individual countries.
T.L.: Do you think that the European Union, the United States or the United
Nations have been successful in bringing about changes in the rule of law sector?
Did the civil society (individuals, NGOs, religious etc.) have their say in the
implementation of these policies?
Z. A-L. After 40 years of dictatorship the Iraqi society welcomes the international
efforts to establish the rule of law sector but the good efforts were in majority of
limited effect because the experts sent by those organization arrive to Iraq with no or
minimum information on the current Iraqi legal system for example every expert came
to Iraq since 2003 was surprised that the Iraqi legal system is not totally based on the
civil law system as they were told before arriving to Iraq they found out that only
Iraqi penal procedures system is based on civil law system but there are other sources
of law , add to this the language barrier because the Iraqi terminology is different
from the legal terminology used in other arab countries which make it difficult even to
Arabic speaking experts to deal with it .
T.L. Considering the situation post-Hussein, do you believe that the judiciary is
now performing well compared to the situation before? Is the police more
trusted and less feared? Do the people of Iraq trust more their institution
(government, justice system, penitentiary service)?
Z. A-L. Comparing with the post Saddam situation we can say that there is huge
improvement although it is not up to the expectation because now we have fully
independent judiciary compared to Saddam time where judiciary was part of the
ministry of justice . People trust the judiciary more than before 2003 as for the police
they are leased feared but still corrupt.
T.L. Do you believe as a lawyer and former judge that the situation allows the
law to be practiced in a fair way (i.e. respecting rights such as right to a fair trial,
presumption of innocence, right to a defense)?

51

Z. A-L. Corruption is the main reason that prevent law to be practiced is a fair way
this is not limited to one region for that reason some times people may be detained
without provided a reason
T.L. Do you believe that the fact that some governments have fostered the rise of
Daash in using controversial methods, stepping up the repression (especially
against religious minorities) and concentrating all the powers to the State?
Z. A-L. Again the corruption at the all Iraqi governments since 2003 led to the rise of
Daash , corrupt officials tried hard to keep all the powers to themselves so that they
can get more benefits this led to unrest among the people especially among the
Sunnies who felt that they lost all their old privileges to corrupt officials .
T.L. Do you think that the absence of rule of law in this situation has
strengthened the exclusion feeling of many Sunni Muslims?
Z. A-L. The absence of the rule of law led to feeling of injustice among the sunni
muslims
T.L. Do you think that the fact that many former Iraqi officials during Hussein's
regime joined the forces of Daesh is because they offer better conditions (better
wages, advantages) or because they feel that their security may be threatened if
they don't do so?
Z. A-L. Many Iraqi military officers of the former Iraqi Armey joined the forces of
Daash for two main reasons first a dream to regain their old privileges and better
condition of living
T.L. Do you think that the current counter-terrorism policy in Iraq is efficient?
Do you think the European Union should develop more means to combat
terrorism? Any recommendation concerning the policy that should be adopted
either by the government of Iraq or the international community in general?
Z. A-L. We can not say that there is counter terrorism policy in Iraq yes there is
counter terrorism law and agencies but there is no policy and the best participation
that the EU can do at this time is to help the Iraqis to create counter terrorism
strategy according to the international standards.
T.L. Do you think that Democracy, the rule of law and the application of
'universal' human rights (referred to in the UN declaration of Human Rights)
may be helpful to combat terrorism?
Z. A-L. As I mentioned in answer question 9 Iraq need a comprehensive counter
terrorism strategy including the enhancement of the principles of Democracy , Rule of
Law , Humanitarian International law , human rights law and training of the Iraqi
officials on how to interact with the international standards .

52

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