Sadiq Al Timimi is a well-known lawyer from Baghdad, Iraq, specializing in constitutional law. He has written the internal codes for several human rights and non-governmental organisations in Iraq, and is a regular contributor to the Iraqi press, writing on issues such as constitutional law and civil society. I spoke to him on August 6th and 7th 2014.

Donnchadh Mac an Ghoill: Sadiq, in the first place I’d like to thank you for taking the time to do this interview for Zero Anthropology.

Sadiq Al Timimi: You’re very welcome.

D: You began to practice as a lawyer about ten years before the US invasion in 2003?

S: Yes, nine years before.

D: Was there a lot of political interference in the law at that time?

S: It was accepted that to be appointed a judge, you had to be a member of the Ba’ath Party–that’s clearly a de facto control of the judicial system by the governing party. That said, once appointed, judges did their job in a professional manner. Occasionally the Presidential Office would give an amnesty or make a sentence more severe. For example, Saddam granted his oldest son, Uday, an amnesty when he murdered a friend of Saddam’s. On the other hand, Ba’ath Party members sometimes had their sentences increased, as they were supposed to be setting a good example to the rest of the population. There was a certain unpredictability regarding Saddam’s motivations in this regard, but issues such as the severity of the crime, its consequences, and the identity of the criminal were taken into account.

D: But, in general, the legal profession was allowed to do its job, at least up until the point when the verdict had been reached and the sentence handed down?

S: Yes, that’s correct. Under the Ba’ath Party regime, there was no political freedom, but there was a high degree of social freedom. Muslim, Christian, Jew and Atheist could do their own thing in their own way, as long as they stayed out of politics. Today, we have political freedom–in theory at least–but practically no social freedom, as unaccountable religious militias control every aspect of social life.

D: You come from a Shia background, and yet you got a free education and qualified as a lawyer.

S: Yes, the Ba’ath Party saw itself as an Iraqi nationalist party rather than representing any particular religious or ethnic group. In practice, however, it gained most of its support from the Sunni population. Saddam really had a secular instinct. He did give privileges to his own tribe, but that was more to do with him being able to count on their allegiance than with what religious denomination they were.

D: There seems to be a growing consensus in the Arab world that the kind of Arab state promoted by Abdel Nasser is to be preferred over the kind of chaos that has been inflicted on Iraq after 2003, and on other states after the so called Arab Spring.

S: You know that the first Arab Spring was orchestrated by the British, US and French to overthrow the Ottoman Empire, and replace it with client states that they could control. It’s clear that the second Arab Spring was aimed at overthrowing the Nasserist Arab states and replacing them with factional chaos that the same outside forces can control–now joined by Israel of course. In saying this, I don’t in any way downplay the suffering of so many people under Saddam, but I don’t think you will find many people in Iraq today who will thank the USA for what has happened to our country. The suffering since 2003 has been unimaginable.

I don’t think you will find many people in Iraq today who will thank the USA for what has happened to our country. The suffering since 2003 has been unimaginable.

D: How did things change for the legal profession after the US invasion in 2003?

S: For six months after the invasion, the whole legal apparatus came to a halt, due to the violence. The US occupation forces, as part of their de-Ba’athification policy, disbanded the police and the army. Also about one hundred judges were fired without compensation or pension, but most of them were later brought back.

D: So, who did a victim of crime go to, if there was no police?

S: In theory to the US occupation forces, but when people went to them, they were usually told that it wasn’t their concern, or that their terms of engagement prohibited them from entering specific areas.

D: So criminals had a free reign?

S: Absolutely. After the invasion the whole society just collapsed. There was nothing to hold it in place. I remember women from a large mental hospital in Baghdad just wandering the streets, because the staff had fled. Criminals began to attack and rape them. There was utter chaos.

After the [US] invasion the whole society just collapsed. There was nothing to hold it in place. I remember women from a large mental hospital in Baghdad just wandering the streets, because the staff had fled. Criminals began to attack and rape them. There was utter chaos.

D: Does the Geneva Convention not demand that an occupying power provide policing services to civilians?

S: Of course, under the 1906 Hague Convention and the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Times of War, the US occupation forces where obliged to do so. But, when they completely disbanded the local police force, they were in no position to fulfil their obligations under international law. I might also say that the occupying power is also prohibited, by the Fourth Geneva Convention, from unilaterally introducing new civilian laws in the occupied territory. The US occupation defied international law by introducing laws which allowed it to privatise a great deal of public property–usually to the detriment of the occupied population.

D: And what happened after six months?

S: After six months of chaos, the US occupation forces began to recruit a new Iraqi police force. But, by that time, the militias were in control and any new police force was always going to have a difficult time. The old judges were brought back, but the occupation forces also began offering judicial positions to young lawyers, as they felt they could control these young men better than the older and experienced judges. This was particularly true of the special court set up to try Saddam and other senior Ba’ath Party officials.

D: Let’s talk about the most recent invasion–of ISIS. Why now?

S: The answer to that is very simple. ISIS had been fighting in Syria, receiving training and arms from the USA and its local allies, they were beaten in Syria and they had nowhere to go but back to Iraq.

ISIS had been fighting in Syria, receiving training and arms from the USA and its local allies, they were beaten in Syria and they had nowhere to go but back to Iraq.

D: So, most of them are from Iraq?

S: Most of them, yes, but they have fighters from Saudi Arabia and other places.

D: And what is their history in Iraq?

S: When the Syrian crisis started, a group called Al-Qaeda In Iraq set up a sub-group called Al-Nusra, for volunteers who wanted to fight in Syria against the government. Al-Nusra remains part of the Al-Qaeda project for a global caliphate, but some of them thought that getting a caliphate in Syria and Iraq was doable in the near future, so they split from Al Nusra and founded The Islamic State in Iraq and Syria (ISIS). When they were defeated in Syria, they came back to Iraq.

D: So, their ideology is the same as Al-Qaeda’s, except that they have taken a more pragmatic view?

S: I suppose you could put it like that.

D: What surprised most people in the West was that a group of less than a thousand fighters could defeat a modern army with over a quarter of a million regulars and up to eight hundred thousand reserves and very well stocked with modern US weapons.

S: Defeat is the wrong word. Most of the soldiers just left their positions and went into Kurdistan. There are various theories about certain of the officers betraying the Army, but that couldn’t have been the reason for such a disastrous outcome. There are three main factors at play. One is that the local population around Mosul is already hostile to the Iraqi government, and the soldiers there–and the soldiers there were mostly Sunni–felt like an army of occupation in hostile territory. They didn’t feel confident in their position. The next issue is that there are already two strong and well-established anti-government militias in the area, both with roots in the Ba’ath Party, and the rumour went around that these groups had joined forces with ISIS. The third factor is the make up of the Iraqi Army itself. It is not a coherent force, with a singular idea of itself and its role in defending, and indeed, creating, the Iraqi state. Officers are often promoted and given command on the basis of their religious and ethnic background, rather than on their competence as army officers. This is done under the idea that there should be equality among all the various groups in public appointments. This means the Army is highly politicised, and individual officers are associated with the particular political parties who pushed for their promotion. Again, this goes back to the US occupation, and the desire of the US regime that Iraq would never become a strong, independent, state again. We saw that the US delayed delivery of military aircraft to Iraq when this crisis began. Some might even suspect that Obama didn’t want ISIS to be defeated. However, in a move that surprised many, the Iraqi state turned to Russia, who quickly provided the necessary military aircraft.

D: Tell me about the two militias [with roots in the Ba’ath Party] that you mentioned, and why do they exist?

S: Again, this goes back to the US de-Ba’athification policy. Tens of thousands of soldiers, police and civil servants lost their jobs–most of them in the Sunni North-West. As you can imagine, in the lawless atmosphere of the US occupation, where every tribe and every religious faction had its own militia, many of these men saw joining a militia as the only way to survive and protect their loved ones. They saw the chaos and dreamed of returning to the order that they knew before 2003. They saw the new state as a foreign imposition, and thus illegitimate, and they felt that the USA had, in fact, handed Iraq over to Iranian influence. We often hear the slogan “We will save Iraq from the Iranian Occupation,” particularly from the Naqshbandi Army.

D: Aren’t they led by Izzat al-Douri?

S: Yes, Saddam’s deputy. They are mostly made up of Revolutionary Guard and Ba’ath Party, with some young men joining them now.

D: Would they have widespread support?

S: They probably have no more than three thousand fighters, but they could depend on some level of support from up to 40% of the Sunni population.

D: So, they really can’t be ignored. Would it not be a good idea to try to bring them into the government?

S: As an outsider, that would certainly seem the logical thing to do, but both the Kurds and the Shia would regard allowing Al-Douri into power as being the same as allowing Saddam back. They would regard him as being just as guilty for all the atrocities as Saddam was. It would be political suicide for any Shia or Kurd politician to suggest talking to him. Besides that, it’s highly unlikely that he would want to talk to what he regards as traitors and Iranian agents.

D: But still, if you want to have peace, you have to talk to these people.

S: I think that the hope is that Al-Douri will eventually pass from the scene and then the government will be able to talk to a less controversial leader. As you say, these people can’t be left out of any peaceful future.

D: You mentioned a second Sunni militant group.

S: Yes, that’s the 1920 Revolution Brigade. They also have a background in the Ba’ath Party and the Iraqi military, but they are regarded as slightly less extreme than the Naqshbandi Army. The US Army claimed that they had joined forces with it against Al-Qaeda in 2007, but the group denied this. Their name actually refers to a Shia uprising against the British regime in 1920, and this is considered a message to the general Shia population that they consider themselves a nationalist organisation rather than a religious faction. They would see the current state as being under the influence of both Iran and the USA, and thus without legitimacy as a sovereign state.

D: Would you say that this group could be brought into the state?

S: I’d be surprised if some contacts hadn’t been made already, but so far, without success.

D: Let’s turn to ISIS itself, and therefore the history of Al-Qaeda in Iraq.

S: Al-Qaeda had no history in Iraq under Saddam. He would deal very harshly with any kind of religious extremism. I read a book called War and Decision, published in 2008, by Douglas J. Feith, and he outlined three reasons why Al-Qaeda were able to get a foothold in Iraq after the invasion. The first was the failure of a previous US plan to train a force of anti-Saddam fighters outside Iraq, who would have been shown to the world as the local face of the invasion–as the so called Northern Alliance were in Afghanistan, and as certain militias were in Libya. As it happened, only about 700 dissidents received military training–mostly in Hungary. So, the invasion was felt to be an entirely foreign invasion, by both Shia and Sunni. The Kurds already had their autonomous region, so the invasion didn’t impact on them very negatively. The next reason is that Turkey did not allow the US forces to pass through its territory and invade Iraq from the north. That meant that a huge section of Sunni North-Western Iraq remained without any governmental authority for a long time. This was a perfect breeding ground for Al-Qaeda. The third reason is that the US Army never expected the secular Ba’ath Party to collaborate with Al Qaeda. But, as the old saying goes, the enemy of my enemy is my friend. Once the US invaded, any Iraqi who would take up a gun against the occupation became an ally–even if you would have hung them before. Of course, this last point is rather interesting, given that one of the main reasons George Bush gave to the US population for the invasion was that Saddam was already in cahoots with Al Qaeda.

…the US Army never expected the secular Ba’ath Party to collaborate with Al Qaeda. But, as the old saying goes, the enemy of my enemy is my friend. Once the US invaded, any Iraqi who would take up a gun against the occupation became an ally–even if you would have hung them before.

D: Don’t tell me Bush lied to the American people!

S: Seems he did, and about more than weapons of mass destruction.

D: Iraq has had a long secular history, and religious tolerance has been the tradition in Iraq for a very long time. Why would young Iraqi Sunnis join religious fundamentalist groups like Al Qaeda and ISIS?

S: Religion is one motivation. The invasion has brought the whole historical sectarian tension between Sunni and Shia to the fore in Iraq. But, religion is certainly not the only motivation. Iraq has become an arena for the conflicting interests of the Gulf monarchies and Iran to be played out. The crisis in Syria has greatly intensified this conflict of interest in Iraq. In a certain sense, also, these groups can appear as the only real way to fight Western cultural and economic imperialism. Everything Western is isolated and rejected.

D: They seem to have no problem with accepting US weapons and training in Syria.

S: That’s true, but they feel they are using the USA, just as the USA feels it’s using them. We also have to consider the billions of dollars the Gulf monarchies have poured into these groups. For a poor young man, with very little prospects, the power that comes with having Gulf money in your pocket and a gun in your hand is very appealing. And they see the massive corruption in Iraq today. Public property being handed out to a select few– in effect, judicially stolen from the people. And then the billions of state funds that have simply been stolen in the old fashioned way: simple fraud–and US soldiers and corporations were often the biggest heads in the trough. Well, the idea of returning to an Islamic purity, where the corrupt were punished and the righteous exalted is very attractive.

D: But, I know that the Sunni population is not totally alienated from the new state. There are several Sunni parties in parliament, and the system of power sharing means they have government ministries.

S: Yes, the voter turnout in all of Iraq is about 64%, and it’s the same in the Sunni areas.

D: That’s actually very good. Better than most Western states.

S: Yes, most of the Sunni population may have reservations, to say the least, about the new state, but they accept that for practical purposes they have to engage with it. It also must be said that these parties describe themselves as Iraqi nationalist parties rather than Sunni parties, and deny any involvement in sectarian conflict. Those Western commentators who suggest the partition of Iraq, along religious lines, really don’t understand that most Sunnis are Iraqi nationalists, and that the partition of the country is not on their agenda. Similarly, the Shia do not want partition. The only possible partition line is with Kurdistan, but neither Iran nor Turkey would accept an independent Kurdistan.

D: At this point, I’d like you to comment on your specialist subject, which is the Iraqi Constitution. On the surface, it seems quite good, with a power sharing structure, where each ethnic and religious group must be represented in public office according to a quota system, but is it actually possible to run a real country on that basis?

S: In effect, it isn’t. Such a system does not develop civil rights, but the rights of religious and ethnic groups. And to be clear, in Iraq, when we talk about religious groups, we mean Arab Sunni and Shia, and when we say ethnic, we mean the Kurds. Article 2A of the Iraqi Constitution says: No law may be enacted that contradicts the established provisions of Islam. Article 2B says: No law may be enacted that contradicts the principles of democracy. Well, for this to make any real sense, we would have to have a real debate about what democracy is. And that has never happened. It has never happened in the West, not to mind Iraq. James Madison used many fine sounding words and formulations in the writing of the US Constitution, but when we look closely at what he actually meant, we see that his ideas of freedom and democracy meant the practical exclusion of the vast majority from any real participation in the economic and political life of the nation. The people of Iraq have accepted a Constitution with many fine sounding articles, but, often so vague and contradictory as to really only favour powerful vested interests. To a great extent this worked in the USA, since the White, Anglo-Saxon, Protestant elite were able to enforce their hegemony over the entire state. In effect, to even be considered an American, one had to assimilate to the mores of this one group. And this has really been the history of all Western nations. One group gained hegemony over the other groups, usually by extremely violent means, and enforced a national identity in their own image. The Iraqi Constitution specifically makes this historical process impossible.

D: Where did the idea for this form of constitution come from? It actually sounds the same as the so-called Good Friday Agreement in Ireland.

S: Yes, it’s a type of arrangement that has been employed in several states with ethnic and religious conflicts – Lebanon is another example. US Professor of Law, Noah Feldman, had a large input into the structuring of the Iraqi Constitution.

D: I remember when the GFA referendum was held in Ireland, there was no real debate about what it actually meant. It was simply posed as a question: You’re not against peace, are you? Were Iraqis doubtful about this constitution?

S: We were certainly warned by certain Lebanese lawyers that this form of constitution would be a mine of conflict–as it has been in Lebanon. And then most of the Sunni groups boycotted the whole process, so that the Constitution over-represents the interests and concerns of the Shia and Kurds. And those concerns amounted to never losing the level of power that they had already gained. The de facto nature of the Kurdish autonomous region had a huge impact on the whole thinking behind the Constitution. This is particularly so with regard to the oil wealth and the military and security apparatus. For example, Article 111 states: Oil and gas are owned by all the people of Iraq in all the regions and governorates.

D: Sounds good.

S: Sounds good, certainly, but then Article 112, depending on how it’s read, may be seen to give each region a very high degree of autonomy in how it uses the natural resources in its own territory–and this has been a major bone of contention between the Kurdish region and the central government over the last number of years, to the point where the Kurds have started to ignore Baghdad, make its own deals with foreign oil companies, and sell its own oil on foreign markets.

D: You mentioned the military and police.

S: Yes, Article 9A states that there should be balance between the components of the Iraqi people in the armed forces and security services. In practice, this balance has been enforced to an extreme level, where quotas of religious and ethnic representation have been seen to be more important than competence. One must now state one’s religious and ethnic background when joining the armed forces, so that quotas can be maintained. And, as I mentioned before, I think it would be no exaggeration to say that the recent failure of the Army in Mosul goes back to this constitutional issue. And, while we’re on this topic, Article 9B states that the formation of militias outside the framework of the armed forces is prohibited. This stands to reason. Any legitimate state must have a monopoly over the use of force. Well, no progress whatsoever has been made to secure such a state monopoly. Why? Simply because so many of the parties, Shia and Sunni, have connections with powerful militias. The invasion of ISIS has greatly legitimised the de facto position of the militias, as they, rather than the Army, have been seen as the final line of defence of the state.

D: As you speak, I’m again reminded of Ireland. I suppose most countries subjected to colonial occupation will have similar problems. But, I’m particularly thinking of how, during the late 19th century, when the idea of Irish independence began to look like a real possibility, the minority Protestant community, which had ruled for a very long time, looked with fear, and no small amount of contempt, on the prospect of what they regarded as a politically naïve and priest-ridden Catholic majority taking power. And, we’d have to accept that a population that has been excluded from power for a very long time will be politically naïve and will, most likely, have turned to their religious leaders for guidance. It seems to me that the Sunni population in Iraq, having held power for decades, had, and probably still have, the same attitude towards the Shia.

S: When the British set up a new Iraqi state in 1920, the Shia boycotted it. The British were quite happy about this, as the Shia had fought hard against them. But, the result was that the Iraqi state took on the identity of the Sunni officials who ran it. This became all the more so after the Revolution of 1958, which deposed the monarchy. After that, the Army became the most important social institution, and the Army was predominantly Sunni–this was of very long standing, going right back into the Ottoman Empire. The 1958 Revolution abolished the feudal order, which the British had cultivated. And, it was in the Shia and the Kurdish areas that the Feudal order had been most strong. Once again, the most powerful elements of the Shia population were alienated from the state. So, yes, what you say is true, the Sunni, over the decades, had learned the craft of running a state, while the Shia largely eliminated themselves from that process. After 2003, the Sunni made the same mistake, and did not take a full role in the formation of the new state. As I mentioned before, one of the Sunni militias takes its name from the attitude of the Shia in 1920, i.e. the 1920 Revolution Brigades.

D: So, to conclude our interview, are you hopeful for the future, and if so, what are the grounds for your hope?

S: At the end of the day, Iraq is a very wealthy oil state. That is part of the problem, but it’s also an opportunity for progress. In the immediate future, we are faced with two options. One, the state collapses into the control of the militias, or, two, the same corrupt state system hobbles on, and continues to create more problems.

D: Which is most likely?

S: The second is most likely. In the long term, Iraq won’t change without change in the whole region. We need the Syrian crisis to be resolved–without the collapse of the state. We need the democratisation of the Gulf monarchies. We need rapprochement between the monarchies and Iran, and between the West and Iran. And, finally, we need to bring back the peace process in Palestine. Then, we can really look forward to a new dispensation in Iraq.