Iraqi students, waving national flags, join anti-government protests in Najaf in central Iraq on January 28, 2020. (Photo by Haidar Hamdani/AFP via Getty Images)

Early Elections or Restorative Elections?

09/14/2020 . By Ruba al-Hassani

June 6, 2021 is the date Iraq’s new Prime Minister Mustafa al-Kadhimi has set for early elections. Announcing this date on the last day of July 2020, al-Kadhimi granted his government ten months to prepare for a new election in response to protesters’ demands.

Iraq’s largest modern protest movement gained momentum in October 2019. It spread through various central and southern states and gained support in other parts of the country. Public institutions, unions, and guilds such as the Iraq Bar Association have been providing unwavering support, marching alongside members of the middle and lower class to protest corruption and armed violence. Protesters’ demands include a complete overhaul of a political system designed to enable and maintain corruption. Among those demands is the rescinding of the ethnosectarian “muhasassa” or political quota, which has empowered unelected officials and maintained the hegemony of corrupt political parties. Another demand has been electoral reform, propped with international support for early, fair, and transparent elections.

Protesters have also demanded accountability. Security forces, riot police, and militias have targeted and killed over 700 protesters and injured over 20,000 since October 2019. A primary, popular demand has therefore been justice for all the killed, injured, and forcefully disappeared. This moment is a prime opportunity for the restoration of state-society and intra-society relations through a hybrid transitional justice system that accounts for both restorative and restitutive justice—a system that focuses on rebuilding trust rather than over-policing society.

Since al-Kadhimi came to office in May 2020, rebuilding public trust has not been a priority. Instead, he has made a number of empty promises about accountability, and during his predecessor Adil Abdul Mahdi’s term, parliament passed a rushed, new electoral law in late 2019. These measures have been made in an attempt to placate protesters, without any meaningful change.

This new electoral law is incomplete and has not been ratified by the President. It does not provide a framework that determines electoral districts, and therefore does not address protesters’ demands for a representative voting system. The new electoral law does not propose new changes to the existing one. In fact, its text borrows directly from earlier iterations that contributed to current electoral issues, and oddly enough, is incompatible with Iraq’s political system. This law was passed to placate protesters without reasonable and substantive response to their demands, therefore drawing their ire.

For early elections to be free and fair, public trust in the electoral process would be crucial. Legislative reform would be fundamental, as would be the reshaping and re-training of the Independent High Electoral Commission (IHEC) and the Federal Supreme Court. Both bodies are responsible for the supervision and certification of election results and are, in fact, not independent or structurally prepared. On one hand, the IHEC was elected by Parliament only seven months ago and lacks the training and previous experience necessary for overseeing early elections. On the other, the Federal Supreme Court, which certifies election results, lacks quorum as one of its members has retired, and there are no legal mechanisms for his replacement. In addition, with mass displacement throughout the country due to the war on ISIS, as well as longstanding land disputes, electoral constituencies would need to be redefined. Furthermore, Parliament would have to dissolve itself for early elections to take place. While its Speaker supported early dissolution soon after the election date announcement, the likelihood of cooperation from members of Parliament and their political coalitions is questionable, unless given incentive to vote themselves out of power.

Herein lies a key concern: calls for reform toward early elections and other changes require trust in legislative bodies that are heavily influenced and shaped by corrupt and militia-affiliated parties. Any talk of reform means relying on the goodwill of a political elite that perpetrates violations against protesters and other civilians. Expecting them to engage in policy reform within repressive state institutions seems moot and naive. Protesters have thus concluded that public pressure through mass protests is the only efficient way to attain their goals, one of which is accountability. Without accountability, early elections could easily recycle the same politicians and conflicts, and the best way to achieve accountability is through restorative mechanisms toward transitional justice and social reconciliation. However, accountability measures focused on criminalizing and policing all perpetrators creates resistance from those in power. To gain support and voluntary participation, accountability systems must include restorative approaches.

Accountability First!

Accountability and electoral reform are not interchangeable. While both rely on overlapping legal frameworks, they are two entirely different matters that need to be achieved together, especially when those partaking in the electoral process are guilty of alleged crimes or control militias that violate civilians’ rights and liberties. Without an accountability process, elections would maintain a cycle of corruption and impunity, as has been the case in post-2003 Iraq.

Apart from the public trials of the former Ba’athist regime’s officials, any attempts to hold officials accountable in post-2003 Iraq through transitional justice initiatives have been shallow, if not troublesome. The de-Ba’athification process has not achieved accountability or reconciliation as much as it has dissolved state institutions and divided society. Consequently, state building has been focused on institution-building—not institution capacity building—and thus has been set to fail. Empty promises and slogans about accountability and reconciliation have been accompanied by empty, top-down gestures that prioritize political party reconciliation rather than social reconciliation, resulting in reactionary coalition formation around election cycles. To further ethnosectarian rhetoric, these merged parties claim that political representation will, on its own, promote national reconciliation while ironically excluding minorities. As coalition building takes place behind closed doors, corruption is swept under the rug for quid pro quos. These coalitions are in turn supported by either or both the U.S. and Iran, both of which have interests in Iraq. Therefore, no corrupt officials or criminal perpetrators are held accountable by a transparent, legal process, as accountability threatens their interests and places them on equal footing as citizens; subject to the law.

Accountability and reconciliation cannot be accomplished without transitional justice mechanisms that allow for, and are built on, restorative approaches that place the people at the center of the process. The current system in Iraq is designed to do the opposite. It is based on systems of discrimination that are gendered, sectarian, racist, and embedded into “muhasassa” policies. The current system takes punitive, securitized, and divisive approaches to police the public and marginalize social, denominational, and ethnic groups. It thrives on sensationalistic media coverage that uses the war on ISIS as an excuse for human rights violations, denying people their right to due process, except for corrupt officials on the road to rehabilitation. As a result, there is a lack of investment in public institutions that could support a road to restorative, transitional justice.

The “rule of law” therefore has become a state apparatus of repression; not one that provides accountability, closure, and social order. Public trust in state institutions has therefore eroded over time. While there are only ten months to the elections, the newly formed government must focus on rebuilding society’s trust to secure its participation in early elections. For this to happen, the government must focus on restoring social and political relations through fundamental reforms that engage both state actors and the people. Restorative justice measures can do exactly that.

Why Restorative Justice?

The Arabic word for “restorative justice” (العدالة التصالحية) implies forgiveness and reconciliation with one’s victimizer. However, this is not necessary for the restoration of justice. Considering systemic abuses by state officials, militias, and international terrorist groups, Iraqis cannot reasonably be expected to forgive and reconcile with their abusers, then re-elect them. What matters is that efforts are made to acknowledge a wrong, take responsibility for it, and rectify it. Unlike restitutive justice which has a penal focus, restorative justice focuses on repairing the harm done through various measures and reducing its future likelihood through accountability.

Crimes have both individual and social dimensions of responsibility in that the victim and offender are together, in part, because each has the power to potentially help heal the other through behavior or mere presence indicative of voluntary participation in a reconciliation or correctional process. The community is collectively responsible for victims and offenders, as all those affected are key but not necessarily equal stakeholders in the restorative process. This inclusivity is crucial to restorative justice, particularly Restorative Justice Dialogue (RJD) which, as the name indicates, engages both victim and offender in dialogue. This can be done through direct dialogue or through the implementation of state apparatuses and engagement of state institutions to the same purpose.

The current justice system in Iraq focuses on the enforcement of penal measures. It is founded on the need to criminalize an individual and their behavior, therefore engaging in an “othering” process that marginalizes not only persons, but potentially communities in a divided society. This system also perpetuates the myth that “tough” punishment and the death penalty deter future crime. To regain public trust in state institutions, restorative approaches and RJD must be adapted into a hybrid system, which does not do away with penal institutions entirely, but reforms and gears them toward public interests. Moreover, the infiltration of militia influence in all levels of the judiciary derails the course of justice and constitutes a threat to the public good and delegitimizes the justice system.

In contrast to the criminal justice system that demands attendance at proceedings, compels or silences speech, and requires behavioral adherence to prescribed rules, RJD consists of inclusive interactions and requires that everyone’s participation is voluntary and consensual. RJD therefore emphasizes individual agency and empowers all parties. Its element of voluntarism sets a tone of cooperation and renders participation trustworthy. If hybrid retributive-restorative systems are in place, which are recommended in the Iraqi context, a court order may, for instance, require an offender to partake in RJD through victim-offender meetings or rectify their wrongs through other means.

Shifting the system’s focus to a restorative one means de-securitizing its approach and centering its proceedings on the examination and acknowledgement of its decisions’ social impacts. To ensure this takes place, both legal and judicial reforms are necessary, placing the public’s needs front and center. At present, the infiltration of militia and political influence in all levels of the judiciary derails the course of justice, constitutes a threat to the public good, and delegitimizes the justice system. Therefore, the judiciary must be depoliticized and independent. While this may sound idealistic in a country where legislators are affiliated with armed groups and corruption, it is possible. The judiciary’s independence can be ensured through securing an education, appointment, compensation, protection, and removal process of the judiciary that is based on merit, not party affiliation, and on a notable and dignified experience with the law. It is crucial that the transitional period of rebuilding the judiciary, judges and lawyers must be protected from militias and other threats.

In addition, incorporating RJD into the legal and judiciary systems means centering public voices. Social justice organizations must be involved, educating the public on their rights and the law, as well as communicating with legal practitioners and legislators the public’s needs. The judiciary must be in tune with public discourses on justice and the cultural zeitgeist, for the law on its own can be unjust and disconnected from reality. Moreover, communication between the judicial and executive branches of government must be transparent, objective, and be founded on the public’s interests. Grassroots organizations already exist in Iraq and have been engaging in this process for years. During the protests, lawyers provided free workshops in public squares, promoting awareness on protesters’ rights. It is important that the judiciary meet these civil society organizations halfway. These reforms to the judiciary and the culture around them would be particularly crucial during election cycles, when the Federal Supreme Court would verify election results and make constitutional rulings. Incorporating RJD into the judicial system has the potential to assure the public that the judiciary is meant to serve and represent them during social, legal, and political crises.

Since RJD has the power of inclusivity, it can contribute directly to the rebuilding of public trust in state officials and institutions. Politicians could be invited individually to rectify their own wrongs and not be held accountable for their parties’ or coalition members’ faults. Dissociating themselves from corruption, legislators and other politicians could focus on rectifying the harm already done and constructive legislative reform. As such, they are more likely to be voted into public office again if they manage to regain the people’s trust. Taking a restorative shift would help base coalition formation and future elections on public policy rather than loyalty and coercion, paving the way to more substantive institution-building.

Conclusion

Constructive, restorative approaches to justice, culture, and elections, require not only trust in state institutions, but the engagement of academics and researchers, who are otherwise targeted by militias, as well as civil society and social justice organizations. The government must refer to and protect researchers and advocates who can assist in the restorative justice process. Relying on objective, data-backed research and grassroots testimonies will assist the government in enforcing policies that prioritize transitional justice and restorative approaches.

Restorative approaches can be incorporated into a judicial system independent of political influence, which is the foundation to the democratization process in Iraq and to the rebuilding of state-society trust. This judicial system can build and engage in a hybrid retributive-restitutive justice process, which would prosecute those with blood on their hands while granting opportunity to others willing to correct past wrongs.

Policymakers in Iraq should take interest in restorative justice as a path toward progress because, while officials must be just as subject to the law as the public is, they can have a sense of control over their own participation in the accountability process and gain public support by participating in the rebuilding of state-society trust. As officials rectify their behavior, the public is more likely to heal from conflict and trauma.

People are more likely to vote for politicians who have taken the restorative path to amend their wrongs through engaging in meaningful reform. In line with the democratization process, votes would be based on healthy, competitive public policy rather than identity, loyalty, or fear. This may necessitate the delay of elections but would ensure that accountability is achieved through restorative measures and lay the groundwork for state-society trust, which is critically lacking in Iraq. A restorative approach to justice, institution- and institution capacity-building can help curb the cycle of retributive violence as social bonds are re-established, and can help achieve security, stability, and accountability, which Iraq desperately needs.