The Gertrude Bell Jar

Letter From Fallujah

My brother-in-law, a U.S. Marine who’s currently serving at Camp Fallujah, forwarded this around over the weekend. He says it’s pretty spot-on, and he thinks he knows the guy who wrote it (but no, the author is not my brother-in-law).

I saw him briefly in the Spring; we were all in town for a family member’s funeral (he’d gotten permission for leave well in advance, as the death was not unexpected). In the few minutes I had to chat with him about Iraq when his kids were not in the room, he told me that the Iraqi army recruits they are training are definitely getting better (they manage to actually hit targets with artillery, for example, something the Iraqi Army did not seem able to do at all during the invasion), but that it will take “a long time” before the new Iraqi Army is really good to go.

Notes On "Offensive Realism"

I posed a question in another forum last week about the Mearsheimer/Walt paper, and thought the results were interesting enough to repost here:

Drezner has a round-up of some of the more worthwhile responses to the Mearsheimer & Walt paper on the Israel lobby. I thought Jacob Levy’s thoughts were particularly interesting. Mr. Bell Jar was a student of Mearsheimer’s in the 1980s, and had already mentioned to me how odd it was for Mearsheimer to entertain the idea that a domestic political lobby might be exerting any significant influence on U.S. foreign policy, since the realist school Mearsheimer has helped to create pretty much dismisses internal national politics as a relevant factor in how states conduct international relations. Levy touches briefly on this issue, but more forcefully questions the way Mearsheimer’s opposition to the Iraq War undermines his standard view that states always act in their own security interests:

M&W are committed to the neorealist view that powerful states act in their security interest. They're also, independently, committed to opposition to the Iraq War and to what they see as U.S. overreach in the Middle East; they think that the U.S. does not effectively pursue its security interests in the region. So there's a puzzle, an anomaly-- of their own making. If you are both committed to a predictive theory and committed to an interpretation of a particular case by which it falsifies your theory, then there's a puzzle for your views, but not yet a puzzle about the world.

I know more than a few readers here have studied Mearsheimer, and possibly one or two have been actual students of his as Mr. Bell Jar has. I’m wondering: Is the forgoing a fair characterization of Mearsheimer’s theories about states other than the U.S. with reference to Israel, and conflicts other than the Iraq War? I’m wondering because, if so, then the entire argument about the Israel lobby would seem more like an attempt to explain away holes in his previous arguments than anything else. (Mearsheimer also published a widely-read article on why the U.S. should continue to pursue a containment strategy towards Iraq prior to the U.S. invasion). Or as commenter Kevin Donoghue puts it in the comment thread on Levy’s post over at Crooked Timber:

their theory (or at least the version Mearsheimer expounded in The Tragedy of Great Power Politics) is contradicted by the facts and that’s what they are wrestling with. Putting it another way, it is their anxiety to rescue their theory which is pushing them. Actually I think M/W are snookered: either states are not rational in pursuit of their interests, or it was in America’s interest to invade Iraq.

Is that fair to say? I don’t know Mearsheimer’s work well enough to judge.

P. said: I would argue that is an unfair characterization. In the introduction to Mearsheimer's The Tragedy of Great Power Politics, he outlines the limits of offensive realism, his theory. He would probably place the Iraq War situation in the anomalies that offensive realism simply does not explain.

Offensive realism does not explain these situations because it is parsimonious theory - it simplifies reality. It tries to treat states as black boxes or billiard balls, and does not really look to the internal characteristics of states. It discards factors, and the main one it discards are attention to individuals or domestic political considerations. When these factors dominate a state's decision making process, realist theories will just not predict as well. T

here are also situations where offensive realism does not tell you what the proper answer is. There are situations where several different outcomes are consistent with the theory. In these cases, offensive realism will be indeterminate as to the outcome. Other theories have to be brought in to try and figure out what is going on.

Lastly, there will be situations where great powers act contrary to what the theory predicts (the anomalous cases). Inevitably, such behavior causes negative consequences, according to Mearsheimer, and that's what he would probably say is happening with Iraq. All of this can be inferred, I believe, from pages 9-12 of Tragedy.

Mr. Bell Jar said:  Three general points -- first, Walt was always much, much squishier on Realism than Mearsheimer was. (We used to joke that you lost rigor as you dropped letters off of "Waltz". See, there was a neoliberal scholar named Alt... Okay, it wasn't much of a joke. We were grad students.)

Second, I haven't read Tragedy of International Relations, because I haven't found a cheap copy yet. All my exposure to Mearsheimer was in 1988-1990, when the 'near enemy' was still risible exponents of soft power like Keohane and Nye. However, I think the notion of a Great Power (indeed, pretty much the only Great Power left) expanding into areas of direct national-security importance like the Persian Gulf can be considered easily explicable by the Realist doctrine we all learned from Prof. Mearsheimer. The question is, are there enough other Powers who will attempt to balance against us, or aren't there? (Which is to say -- morality aside, have we fatally overstretched in Iraq and roused the other Powers, or not?) Given our continued closeness to Britain and the burgeoning new alliance with India, I think the case of fatal overstretch must remain unproven as yet.

Third, at least back in my day, we all knew that Realism wasn't necessarily predictive of state behavior, but of the consequences -- a state that departed from Realist principles (which we all knew they did; the arguments were about boundary cases like Chamberlain in 1938) would get its comeuppance sooner rather than later. (For example, biology doesn't say people will never try to breathe water. It only says that they will drown if they do.) Some of us did use Newtonian arguments -- "Left to itself, a state with opportunity to expand its power will do so," but we always knew there was a big blur over "left to itself."

But yes, I do find it odd that Mearsheimer is now paying attention to questions of internally-driven motives for state behavior -- that was never his bailiwick, or even particularly interesting to him, at least not back in the Day. My theory is that as far as their paper goes, he was mostly concerned with the strategic question of supporting Israel (does it make Realpolitikal sense to ally with one state rather than eleven?) and that Walt was the guy with the rest of the baggage.

G. said: When I took his class in 2002 he seemed a contradiction. I lost count of the number of times he said, "States are basically strategic calculators." If this was supposed to be an "ideal gas" model without any perfect example in the real world, he didn't stress the point. And yet he said almost as many times that the invasion would be a mistake. I never got around to asking what it would mean if our strategic calculator chose invasion anyway. I think it's this contradiction that pushed Mearsheimer into domestic politics. So I agree with Levy.

H. said:  Oh. I thought that Realism was supposed to be prescriptive, not descriptive. Learn something new every day!

P. replied:  It is both a descriptive theory and a prescriptive theory. It is a descriptive theory inasmuch as it says this is how the world (unfortunately) works. It is a prescriptive theory inasmuch as it says, if this how the world really works, then this is how you should behave so that you can survive.

I replied:  Which pretty much guarantees that the world will go on working that way, no? This is why people who don't really know much about the details of Realist theory intuitively think it is evil anyway, I suspect.

P. replied:  That's why it's the "tragedy" of great power politics. Even if a great power wanted to be benevolent, or even just be left alone, they would be forced by circumstances (generally the aggressive behaviors of other states) to behave in a realist manner. That's the tragedy - the inescapable spiral down to behavior of the lowest common denominator.

Part of it, also, is the American liberal tradition that's reflected in our foreign policy rhetoric. Americans don't like realists - Americans want to be better than that, and there's a section in the introduction to Tragedy that talks about that as well.

And part of it, I think, is that there are some versions of realism that are evil, and some proponents of it who are evil, e.g. Henry Kissinger.

New Iraq Poll

From normblog: A new opinion poll showing apparently stronger support for secular democracy in general but weaker support for gender equality in particular than the poll I quoted earlier. Goes to show how much it matters which questions you’re asking, probably. And also, how much cultural attitudes towards women don’t map as completely to preferences about the role of religion in the state as you might think (see the link to the charts showing attitudes towards gender issues broken down by political preference on the page describing the new poll there). Secularists certainly rank lower than Islamic government supporters in opposing gender mixing in universities, for example, but 40-48% is still pretty high.

Notes On Torture

Jane Galt has an interesting post discussing what she calls “the Glenn Reynolds approach” to the torture issue in economic terms. I had been thinking of it as the Mark Bowden approach myself, as published in two Atlantic articles (not available to non-subscribers online), one of them soon after the Abu Ghraib revelations. The idea is that torture should continue to be illegal and we should trust that if any ticking time bomb scenario that can be resolved through torture ever really does arise, CIA or FBI agents or whichever government agents are involved will go ahead and assume the risk of breaking the law to get the information. As opposed to using this idea of a ticking time bomb to normalize torture in all kinds of prosaic situations which could never have been used to persuade anyone of the “necessity” of torture as an available tool in the WOT in the first place. For me one of the worst things about Abu Ghraib was how unnecessary it was, even if you accept the all-torture-all-the-time-to-defend-our-nation argument. What we saw was more or less random abuse of ordinary prisoners for no coherent intelligence-gathering purpose whatsoever, in which the CIA’s treatment of a handful of alleged intelligence asset-prisoners was allowed to set the tone for the treatment of all prisoners by any guards in any context.

There’s a partial summary of Bowden’s argument in this article, but this quote gives me pause:

The advantage of Bowden's system of post-facto justification resides chiefly in the uncertainty it produces. Unlike the torture warrant system where a detainee knows that his captors must obtain approval before administering any coercive measures, in Bowden's world the prisoner never knows for sure what the interrogator will do. This uncertainty alone provides the questioner significant leverage.

I don’t recall drawing that conclusion from the Bowden articles back when I read them, but because of the restricted access I can’t double-check it now to see if Bowden shares it. My understanding is that if torture is illegal, then any prisoner can reasonably expect not to encounter any, but still might anyway, and in that case has well-defined avenues of legal recourse available, however imperfectly they may function in practice (as is currently and always has been the case in police stations all across the nation for ordinary arrestees). And indeed since this is currently precisely how civil rights of ordinary prisoners in the criminal justice system are protected, it seems odd to view the illegality of torture as, in itself, a potential additional coercive method. Otherwise, the linked article summarizes Bowden accurately I think.

Correction!

Further to my earlier post on the Iraqi Constitution: Actually, Article 44 (“All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don't run contrary to the principles and rules of this constitution”) was elimated in the final draft after all. For some reason I had thought that the only major change to the proposed Constitution was in the rule about how it could be amended, so I was working from my printout of the draft published in August in composing this entry. The full text of the draft that was actually voted on October 15th is here (What now appears as Article 44 is just the provision that was previously Article 45.) Looking over the updated draft, I don’t think anything else I highlighted has been changed.

Amnesty International’s statement deploring the change is here. (Actually, this is how the change came to my attention; I was looking something else up on their site). Their assessment is basically correct, I think. It wasn’t strongly worded enough in the original in my opinion, but obviously it was strong enough to be threatening to fundies; the deletion is a real loss.

Catching up on the Constitution

Normblog has a nice round-up of comments from Iraqi voters and bloggers, and a pretty spot-on analysis of the meaning of the vote on the Constitution (by Jeff Weintraub). Austin Bay has an interesting collection of reactions and analysis as well.

Longish Thoughts On the Iraqi Constitution

[I started this awhile ago and just got around to finishing it today. I haven't checked to see if we have a count yet from the voting yesterday. It would be pretty funny if it turned out I spilt this much verbiage on a non-Constitution, wouldn't it? Although as I understand it, the parts I'm writing about aren't really the main issues for those who oppose passage so might not change much in the event of a revision.]

Bearing the cautionary tale of the Iranian Constitutional Revolution of 1906 firmly in mind, (wherein A. Iranians created a secular constitutional monarchy; B. Conservative clerics managed to insert the implementation of Shari’a canon law anyway; C. The Shari’a provision was ignored in practice; D. Iranian women were screwed anyway, since members of parliament were still the same sexist bastards the day after the Revolution as they were the day before), here are my thoughts about what the draft Iraqi Constitution might mean for women. In other words, I am assuming for the purposes of this discussion that the draft Constitution both accurately reflects the collective intent of Iraqis and will actually be enforced more or less in good faith (as opposed to ignored by whatever group manages to seize power in the event, for example, that national security under rule of law deteriorates utterly or is never secured).

The full text of the proposed Constitution is here.

Article (1): The Republic of Iraq is an independent, sovereign nation, and the system of rule in it is a democratic, federal, representative (parliamentary) republic.

Article (2):

1st -- Islam is the official religion of the state and is a basic source of legislation:

(a) No law can be passed that contradicts the undisputed rules of Islam.

(b) No law can be passed that contradicts the principles of democracy.

(c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.

2nd -- This constitution guarantees the Islamic identity of the majority of the Iraqi people and the full religious rights for all individuals and the freedom of creed and religious practices.

The Constitution follows the preferred form as outlined in the Rand document (outlining a method for acknowledging the cultural and legal historical influence of Islam while preventing theocracy in a democratizing Muslim state--written in reference to the Afghan constitution, see link in side bar), identifying Islam as "a" rather than "the" basic source of legislation.

So what does "undisputed rules of Islam" mean? Taken literally according to the meaning in English, it would seem to authorize review of legislation only on the most broadly agreed-upon principles of Islam. There are 4 major orthodox schools of jurisprudence in Sunni Islam, and 2 major and many other minor schools of Shia jurisprudence. Very few specific legal issues in shari’a law are "undiputed" between these various legal traditions. In earlier translations of the draft, the locution "essential verities of Islamic law" appeared instead of "undisputed rules." Does this reflect a change in the language in the original, or the vagaries of translation? "Essential verities" could be interpreted as closer to what role democratic reformers want Islam to play in the state, a sort of general legal and cultural background recognizing Islamic beliefs about justice and morality rather than the adoption of some literalist version of Islamic law based inflexibly on one school or the other. Both locutions, in other words, appear to be intended to limit the influence of specific historical legal iterations of shari’a and subject secular legisation to review only against the broadest principles enshrined in shari’a. However, without knowing anything at all about what the original Arabic actually is and might mean in Iraqi or Islamic legal history, I find it difficult to know for sure what the precise wording of Article 2 1a means. It may simply be a formulaic reference to Islamic canon law for example. I had hoped that someone with the appropriate linguistic and legal expertise would have elaborated on this in some public forum or other by now, but unfortunately I haven't come across any such so far.

I'm even more at sea with Article (2) 2nd: I have no idea what it means in practice to "guarantee the Islamic identity of the majority" while also guaranteeing free exercise of religion for non-Muslims. My best guess is that this is meant as a kind of reassurance or substitute for the habitual requirement in most Muslim states that the head of state be a Muslim, which is not stipulated in this constitution. The notion of Muslim headship as a basic requirement for the legitimacy of any person or body seeking to rule over Muslims dates from the earliest years of Islamic civilization (see my brief summary here). It is striking that it is omitted here, and this omission can I think be interpreted as a very positive move towards realizing the kind of nonsectarianism and tolerance for diversity that is spoken of so forcefully in the preamble. Perhaps guaranteeing the Islamic identity of the people is meant as a gesture towards swapping out the Islamic character of the people for that of ruler as the basis of legitimacy? This would be consonant with the articulation of the people (as opposed to God) as the source of authority in the state:

Article (5): The law is sovereign, the people are the source of authority and its legitimacy, which they exercise through direct, secret ballot and its constitutional institutions.

And now is as good a time as any to begin addressing the frequent claim that this Constitution authorizes an "Islamist state." The Islamist position is that God is the only source of legitimacy in a state or its law. Current and former Islamist states have therefore put clergy in charge of all three branches of the state, the judicial, legislative, and executive. (The Islamic Republic of Iran accomplished this end through the creation of the Revolutionary Council, a clerical body which of course has no equivalent in the proposed Iraqi Constitution, and which was given oversight and control of every function of government; I'm not sure that the Taleban ever bothered to commit the details of its rule to paper, but my impression is the structure of government, such as it was, was pretty much akin to rule by military junta). This Constitution includes clergy only in the judicial branch, and even there perhaps not to the exclusion of secular judges. Even if the worst happens, and the judiciary ends up populated exclusively with Sadr clones who willfully ignore all the international human rights norms written into this Constitution in favor of their extremist minority interpretation of Islam, they still would not be able to somehow create from the bench a free-ranging religious police, such as that which exists in Saudi Arabia and other Muslim states, to harass and terrify people in the streets and take up supposed wrongdoers for punishment, nor could they legislate new restrictions, such as not permitting women to leave their homes unaccompanied by a male guardian, as was the case in Afghanistan. A Sadrist judiciary may, in other words, very much want to create all kinds of new "crimes" and execute "apostate" women and religious minorities daily in the public square, but will be powerless to do so without a state apparatus set up to deliver victims to them. It is possible that Iraqis will one day fly in the face of all available public opinion polls about extremist Islam and vote for a legislature and executive that promises to play this bloody role, but in that case something will have gone very badly awry in the whole society. Talebanization cannot somehow arise from "loopholes" in this Constitution, there simply isn't one that would allow clergy under its own power to take over the whole government from the bench.

All of which is not to say that conservative Islamic judges alone can't do women significant harm if they choose; they certainly can. The conservative end of traditional Islam does not deserve to be tarred with the brush of the near-psychotic Taliban, but it disadvantages women plenty nonetheless. The unequal practices of polygamy, in which one man may marry up to four woman, and of divorce (in which a man may divorce his wife unilaterally through a simple oral formulation, whereas a woman must sue in court to divorce her husband, and only then on a few very narrowly defined bases) are comparatively rare but hang like the sword of Damocles over the heads of wives in traditional Muslim societies, and give men tremendous leverage in any marriage, the more so because Islamic law also automatically awards him sole custody of any children (once they reach a certain age, 7 and 9 respectively for boys and girls IIRC) following a divorce, and does not require alimony or any sort of post-divorce support for women of any kind, a significant economic threat in a part of world that does not have many jobs of any kind but particularly not for women, and in which a woman's family may refuse to take her in if her ex-husband is willing to allege that she was unfaithful to him or some such. From this position of power a husband may of course impose any number of restrictions on women in his household regardless of what any civil law says about where they may go and what they may do. There are other ways in which women are disadvantaged in Islamic law, such as a woman being entitled to inherit only a half-share of her parents' property as compared to her brothers, or counting as only half a witness in court, but the hard center of women's oppression in Muslim societies is family law. And some tribal customs regarding marriage, women, and family are even worse, which is why there was such a dispute about whether tribal courts would be formalized in this Constitution. I don't think that it does (reading it over now I'm not positive, see Article 43 2nd quoted below), but in any event, as I noted previously, the Constitution does promise to subject tribal customs to review for conformity with Constitutional principals regarding human rights.

And what are those principles that most affect women?

Article (14): Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, colour, religion, sect, belief, opinion or social or economic status.

In a straightforward reading, this provision would seem to pre-empt the "half-a-witness" rule for women. It also would seem to be intended to identify women as fully included in all of the following rights as articulated, which include:

Article (15): Every individual has the right to life and security and freedom and cannot be deprived of these rights or have them restricted except in accordance to the law and based on a ruling by the appropriate judicial body. [My note: The inclusion of the words "male and female" should not be taken to mean that women are not included in any statements that do not include these words. The locution is very similar to that in the Koran, when Muhammad repetitively says: "O believers, men and women …" and then lists their duties and so forth. Muhammad adopted this formulation after a group of women asked him whether everything he addressed to believers was meant to apply to them, and Muhammad said that indeed it was, and used the "male and female" formulation thereafter for emphasis. It is included here probably for emphasis as well; and of course Article (14) explicitly underlines women's equal status under the law.]

Article (16): Equal opportunity is a right guaranteed to all Iraqis, and the state shall take the necessary steps to achieve this.

Article (17): 1st. Each person has the right to personal privacy as long as it does not violate the rights of others or general morality.

Article (20): Citizens, male and female, have the right to participate in public matters and enjoy political rights, including the right to vote and run as candidates.

Article (22): 1st. Work is a right for all Iraqis in a way that guarantees them a good life.

Article (29): 4th. Violence and abuse in the family, school and society shall be forbidden.

Article (30): 1st. The state guarantees social and health insurance, the basics for a free and honorable life for the individual and the family--especially children and women--and works to protect them from illiteracy, fear and poverty and provides them with housing and the means to rehabilitate and take care of them. This shall be regulated by law.

Article (34): 1st. Education is a main factor for the progress of society and it is a right guaranteed by the state. It is mandatory in the primary school and the state guarantees fighting illiteracy.
2nd. Free education is a right for Iraqis in all its stages.

Article (35): 3rd. Forced labour, slavery and the commerce in slaves is forbidden, as is the trading in women or children or the sex trade.

Article (43): 2nd. The state is keen to advance Iraqi tribes and clans and it cares about their affairs in accordance with religion, law and honourable human values in a way that contributes to a developing society and it forbids tribal customs that run contrary to human rights.

Article (44): All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don't run contrary to the principles and rules of this constitution.

Article (45): Restricting or limiting any of the freedoms and liberties stated in this constitution may only happen by, or according to, law and as long as this restriction or limitation does not undermine the essence of the right or freedom.

As you can see, no position is taken in the Constitution on the crucial matter of family law, save the one provision which seems designed to explicitly invalidate the Islamic justification for wife-beating, (Article 29th, 4th, quoted above). And the guarantees about rights to education and work seem to address the assertions made by some that the inclusion of Islamic law in any capacity in the Constitution will prevent women from working without the permission of their husbands or girls going to school and so forth. We may derive some comfort from the references to international human rights treaties, since Iraq is a signatory to both the Universal Declaration of Human Rights and CEDAW, the latter especially since the rights of women within the family are articulated in some detail (though see my earlier caveat).

Many Muslims, including some clergy and Islamic law scholars, have sought and found amelioration for the unequal status of women in traditional Islam from within Islamic law and tradition (and indeed women's rights within marriage are better in some existing orthodox Islamic schools than others), and are working towards an understanding of Islam that will bring it into conformity with international human rights standards including those touching on the status of women. And some quite powerful clerics such as Sistani seem at least willing to bend Islamic practices to meet secular requirements, and to acknowledge the force of secular law and particularly international human rights standards in deliberating about how Muslims should live in "modernity."

The crucial question is, who will end up on the court? Because obviously an ultra-conservative like Sadr would be willing to overturn all human rights guarantees articulated in this Constitution and by reference to international rights treaties by finding them in violation of Article 2 a (despite the clear intention of Article 2 c, that the rights and freedoms outlined in the Constitution, should limit the authority of Islamic law) without batting an eye. (And apparently conservative clerics regard the rights for women implied in Article 44 threatening enough to their agenda to have attempted, unsuccessfully I am pleased to note, to have it excised). Even less radical clerics might jib at apparently privileging those treaties over Islamic law when it comes down to cases.

The constitution stipulates that members of the Iraqi version of the Supreme Court shall be experts in "Islamic law and law," but it leaves the matter of how they shall be chosen to enabling legislation. It would be a rare individual who could combine true expertise in both fields of law; will there be both secular and Islamic judges on this court? Will there be a certain number of seats allotted for each type, and which gets a majority? Or will each seat be filled separately so that you could possibly end up with a heavy clerical majority? Will judges be selected by the legislature, or the president, or what? Will there be a separate council appointed just for this purpose, which would leave the door open to a self-perpetuating aristocracy far removed from the society's beliefs about Islam (as is the case in Iran for example). And indeed any method of selection which does not somehow guarantee that the court will more or less reflect popular rather than extremist interpretations of Islam by allowing the electorate a pretty good amount of influence over selection will be vulnerable to producing an out-of-step court, possibly in a very conservative direction.

And in all truth while most ordinary Muslims do not believe that their religion does or should contradict human rights principles, the majority in the Arab world at least do not actually want full equality for women and so do not seem to interpret personal and family status in terms of human rights at all (see some pretty typical stats here), and to the extent that this Constitution creates a truly democratic body, this hesitation about women's rights will most likely be reflected in its institutions and law one way or another. Articles 17 and 43 2nd go a little way towards articulating an understanding of private, customary practices as public issues subject to process of law, but the existing cultural understanding of what is a public issue and what is a family issue may prevent them from being interpreted to women's advantage. It may be that many improvements in the status of women will have to be articulated explicitly in legislation rather than left for the courts to find in the Constitution.

Which leads us to the greatest weakness of the Constitution in my view (with respect to women at least): the provision which requires that any new piece of legislation be reviewed first by the judiciary before coming into force. This is in fact one of the methods that guarantees clerical domination via the Revolutionary Council of the legislature in Iran (the other is that body's ability to basically pick Parliamentary candidates) and could become a tremendous bar to all kinds of reform if it is allowed to be dominated by conservative clerics.

So in my view, the door is open both to oppression and to freedom for women in this Constitution; a little wider to the latter if it is taken at face value and in good faith by those who are tasked with enforcing it. But with so little information about how the courts will be constituted it is impossible to predict whether it will be interpreted so.

Hrm, I meant to talk about the relationship of honor killing to all of this too, but it's very complicated, and this is long enough already, and I'm tired … Soon, maybe.

Update: I came back to put in a missing link and correct some typos, so I might as well also point out since I forgot to mention it before that the provision guaranteeing 25% of Parliamentary seats to women is still in place in the proposed Constitution--there had been rumors that this would be eliminated.

Correction: Actually, Article 44 (“All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don't run contrary to the principles and rules of this constitution”) was eliminated in the final draft after all. For some reason I had thought that the only major change to the proposed Constitution was in the rule about how it could be amended, so I was working from my printout of the draft published in August in composing this entry. The full text of the draft that was actually voted on October 15th is here (What now appears as Article 44 is just the provision that was previously Article 45.) Looking over the updated draft, I don’t think anything else I highlighted has been changed Amnesty International’s statement deploring the change is here. (Actually, this is how the change came to my attention; I was looking something else up on their site). Their assessment is basically correct, I think. It wasn’t strongly worded enough in the original in my opinion, but obviously it was strong enough to be threatening to fundies; the deletion is a real loss.

More Notes on the Constitution

Further to my last post, some interesting polling data:

As to the question of Islam being a main source of legislation. 42% support having Islam being the main source of legislation. 24% support having Islam be the only source of legislation. 13% support not having any law which conflicts with Islam. 14% support having Islam being only one of many sources of legislation, not the only one.

As for women’s rights and women’s representation in the legislature. 84% support giving women full rights and benefits as men.

The difficulty being that shari’a law treats men and women quite unequally when it comes to family law, and these inequalities damage the status of women wherever they obtain, whether women have formal political equality in the sense of voting rights and so forth or not. So did Iraqis who preferred a stronger role for Islamic law in the constitution than it currently has simply think they were being asked a question about equal voting rights and the like, or do they really think shari’a law as it stands can be characterized as creating “equality” for women? If the latter they in effect must be thinking of “private” life as separate from “public” life, or buying traditionalist arguments about how Islam already protects the rights of women completely, etc. etc.

References in the draft constitution to international commitments and human rights could be read as a commitment to CEDAW and other human rights conventions, and several provisions of the international rights treaties to which Iraq is a signatory were included nearly verbatim in the draft constitution. However the guidelines on equality in family law found in CEDAW were not.

Inclusion of a specific formulation promising equal rights in family law for women would have gone a long way towards clarifying the issue of women’s promised equality within a legal regime that recognizes Islamic law versus women’s actual inequality in marriage in Islamic law. Though given the apparent contradictions in public opinion as reflected in this poll, perhaps they can’t be clarified except to the detriment of women at this point in time.

Very Brief Thoughts on the Draft Iraqi Constitution

Mr. Bell Jar is under a heavy writing deadline, so it looks like I won’t be able to get at a computer to write out all of my thoughts about the draft constitution of Iraq with respect to the status of women anytime soon. Also, I’ve been wanting to see some kind of educated comment on the precise wording of Article 2(1)a in Arabic, since different translations have given it different colorings in English. But I was moved to respond to a comment on a message board stating that Islam is THE source of legislation in the new constitution, that Iraqi women were better off under Saddam, that the constitution does nothing to protect women’s rights, etc. etc., and since it's already all typed up and everything I’ll cut and paste my brief impressions from there and write more later, maybe.

"Islamic law is identified as "a", not "the" source of law in the constitution. You may read why that is an important distinction here.

The full text of Article 2 reads:
1st -- Islam is the official religion of the state and is a basic source of legislation:
(a) No law can be passed that contradicts the undisputed rules of Islam.
(b) No law can be passed that contradicts the principles of democracy.
(c) No law can be passed that contradicts the rights and basic freedoms outlined in this constitution.

The basic rights and freedoms outlined in the constitution include:

Article (14): Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, color, religion, sect, belief, opinion or social or economic status.
Article (15): Every individual has the right to life and security and freedom and cannot be deprived of these rights or have them restricted except in accordance to the law and based on a ruling by the appropriate judicial body.
Article (16): Equal opportunity is a right guaranteed to all Iraqis, and the state shall take the necessary steps to achieve this.
Article (29):
4th -- Violence and abuse in the family, school and society shall be forbidden.
Article (43):
2nd -- The state is keen to advance Iraqi tribes and clans and it cares about their affairs in accordance with religion, law and honorable human values and in a way that contributes to developing society and it forbids tribal customs that run contrary to human rights.

Honor killing and female genital mutilation are tribal customs that have no basis whatsoever in shari’a law and have always been carried out extrajudicially. Stoning was part of shari’a law, but has been replaced in most Muslim societies (including those which include shari’a law as a source of law at either the constitutional or legislative level, which is nearly all of them except Turkey) with prison terms and fines, along with most other hudud punishments (like cutting the hand off a thief), in the modern era.

Iraq is a signatory to many international human rights documents, including the Universal Declaration of Human Rights and CEDAW; commitment to fulfilling the terms of those agreements is reiterated at various points throughout the full constitution (as is a commitment to ensuring the status and equality of women). It’s true that the amount of weight given to shari’a vs. international human rights standards in judicial review of legislation will be largely determined by the composition of the judiciary (believe it or not, most Islamic scholars do not actually consider the violent oppression of women to be the central demand of their religion, so it does matter who ends up on the court), and the precise method by which the judiciary will be selected has been left to enabling legislation, which makes it hard to predict how easy it would be for more conservative judges to predominate. But the overall thrust of the document itself is very much in the direction of the observation of international human rights standards for women.

If you consider fascism and genocide an appropriate method for improving the status of women, I'm not going to argue that with you. I do note that we wouldn't be having this problem over the matter of women's rights at all if the top-down violent implementation of "modernization," which tended to include some improvements in women's status, had managed to broadly affect social attitudes towards women in Iraq and other Arab fascist secular states. In any event, Saddam decriminalized honor killing in 1999 and was unmistakeably moving in the direction of roll-back on the status of women, as all of the other allegedly secular Arab states were throughout the 90s."

As I said, more later. I do think the explicit intention to subject tribal customs to human rights standards through application of constitutional law is probably the most important provision as a practical matter. We have seen, for example, that ghettoized Muslim communities in European nations with flawless human rights regimes like Great Britain have often managed to nullify the official legal status of girls and women through the threat of honor killing and overwhelming family pressure, and indeed this tends to be the case outside of urban elites throughout the Arab world. The uncertainty about the judiciary is very troubling and may ultimately make a mockery of the term “human rights” in this constitution, but if not this does seem like an opportunity to actually transform the status of women at the social level.

Still Not Panicking

Further to my earlier post, here’s a more accurate assessment of what is at stake for women in the matter of personal status law and role of Islam in the constitution. If it turns out on Monday that the “fundamentalists” have won this particular debate (and remember, if it were inevitable it would have happened on 8/15, yes?), then the next question is about the structure of the judiciary and procedures for judicial appointments, I imagine. There’s some discussion of the role of Islam in the current provisional Iraqi Constitution here. (Link found at islamicfeminist).