Iraq’s Obligations to Fight Corruption
Vol. 40 Associate Editor
For decades, the people of Iraq existed under the thumb, gaze, and sword of Saddam Hussein. By the time of his toppling by U.S. forces in 2003, he had amassed a record that included genocide, chemical weapons use, torture, and the assassination of dissidents. (Including, in one of his first acts as leader, a 1979 deadly purge of top members of his own party.) Iraqis were denied their fundamental right to govern themselves, and if up to Saddam, this would have forever been so. In 2018’s Iraq, there is no despot. The fifth consecutive free, national electoral process has just culminated with the recent formation of a new government. But while there may be democracy, the country is also marred with challenges, including violence, sectarianism, and corruption. This has naturally raised the specter of nonadherence to its international legal commitments. The state of democracy and corruption in Iraq In 2005, in the wake of the Hussein regime, Iraqis voted overwhelmingly to ratify a new constitution. This document, while subject to perversions of meaning by opportunistic politicians, has served as the basis of the democratic structure which survives to this day. Its value can be seen in the country’s rising per capita GDP, dropping mortality rate, embrace of a relatively free press, and sustained democracy in the face of oil price freefalls and ISIS-led violence. The constitution’s importance is also demonstrable through its terms. There are provisions which safeguard individual freedoms, institute separation of powers, and evidence a thoroughgoing respect for international law. Iraq followed up on this constitutional embrace of international law by taking on new international commitments, including becoming a party to the United Nations Convention Against Corruption (UNCAC). As the Secretary-General of the United Nations has recently remarked, the Convention works to further the international community’s “common goals of good governance, stability and prosperity,” and to disrupt money laundering, organized crime, and theft of public funds. Iraq took a number of steps in accordance with these aims leading up to, and soon after, its joining UNCAC. These have included, for example, developing and maintaining “coordinated anti-corruption policies,” such as passing an anti-money laundering law, passing public procurement and investment laws, and passing a law mandating disclosure of assets by top public officials, in furtherance of its UNCAC Article 5 responsibilities. The country has, additionally, created and maintained “bodies, as appropriate, that prevent corruption,” such as the Commission of Integrity, which has investigated thousands of cases of corruption since 2004. Notwithstanding these steps, and the remarkable persistence of democracy, Iraq continues to be a country plagued by corruption. Iraq’s latest ranking in Transparency International’s Corruption Perceptions Index is 169 of the 180 countries considered. Protesters throughout the country gave voice to the issue during this year’s elections, decrying corruption’s role in the inadequate provision of government services. Protests turned violent, Iraqi security forces responded with excessive force and, facing criticism, Prime Minister Al-Abadi called for an investigation into the corruption concerns and violence. The ways in which Iraq might be falling short of its obligations under the UNCAC are, perhaps then, unsurprisingly manifold. For example, Article 11 of UNCAC requires states to “take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary.” Yet, the judiciary in Iraq is percieved as so corrupt and politically controlled that many citizens of Iraq today turn to tribal bodies to address conflicts. The politicization of the judiciary puts strong downward pressure on the number of convictions in cases brought by the Commission of Integrity. There are also concerns about judicial independence being eroded through the influences of religious leaders. Article 9’s obligations on the management of public finances have salience for the concerns of those protesting. The article requires states to take appropriate measures to establish “effective and efficient systems of . . . internal control” and to take “appropriate, corrective action” where there is corruption around public finances. While each national government Ministry has an internal control system in the form of an inspector general’s office, these inspectors can be fired by their respective Ministers. This power of Ministers over their inspectors can lead to improper probes into political enemies and half-hearted (if any) probes into the leaders of the Ministry. Additionally, procedural and communication shortcomings are characteristic of these offices. It also seems that the country has run afoul of its Article 7 obligations for “maintain[ing] and strengthen[ing] systems for the recruitment, hiring, retention, promotion and retirement of civil servants . . . and other non-elected public officials.” In recent times, nepotism and bribery have permeated public employment decisionmaking, and political loyalty has overwhelmed skill and qualification criteria. Addressing the problems New Prime Minister Abdul-Mahdi has already put fighting corruption on his list of priorities for the country. Now is the time for the Prime Minister to turn these “parchment promises” into real improvements. Though there is hope that comes with him being the compromise choice of competing factions and from the symbolic steps he has taken (such as not choosing prominent party leaders as Ministers and moving his offices out of a tightly secured area of Baghdad), there are also reasons to doubt his sincerity. In order to better serve the people of Iraq, preserve Iraqi democracy, and chart a course more in compliance with UNCAC, the new national government should focus on the areas of concern I have identified above. With respect to Article 11, this will mean taking action to wall off judges from political influences and bribes, reviewing the social networks of judges to root out impropriety, and upping enforcement of laws directed at those who pressure or bribe judges. This process might also entail assessing eligibility/selection criteria for serving as a judge and current compensation schemes. To root out corruption in the management of public finances, as required by UNCAC Article 9, the government should act to improve the structure and procedures that inspectors general offices operate under. An inspector general must not be answerable to those he is charged with investigating. Additionally, new Ministers should begin to develop action plans to address the government services shortfalls which fall under their respective jurisdictions. Rebuilding trust in government amongst the citizenry will turn not just on the Prime Minister’s words, but also on actions of these Ministers. To address Article 7 shortcomings, the employment practices of all government offices must be reviewed, so as to ensure the existence of mechanisms that take nepotism off the table. Iraq must, in addition, continue to show the kind of internationalist appreciation demonstrated in its constitution. Future efforts by the U.S. and its allies to aid in military activities against terrorists, or to address humanitarian challenges around shortages of water, health care, or electricity, should continue to be welcomed. This is equally true for United Nations activities in the state, such as those of UNDP in Iraq, which has recently worked to improve the delivery of government services, train anticorruption auditors, and support the Commission of Integrity. Pulling back from these engagements would only serve to exacerbate conflict and insecurity in Iraq, and move the country further away from the possibility of meeting their UNCAC obligations.
 See Neil MacFarquhar, Saddam Hussein, Defiant Dictator Who Ruled Iraq With Violence and Fear, Dies, N.Y. Times (Dec. 30, 2006), https://www.nytimes.com/2006/12/30/world/middleeast/30saddam.html.  Id.  Id. (“His own conviction that he was destined by God to rule Iraq forever was such that he refused to accept that he would be overthrown in April 2003, even as American tanks penetrated the Iraqi capital . . .”).  See Karl Zinsmeister, 15 Years Later, Iraq Is a Modest Success, Wall St. J. (Apr. 8, 2018, 4:30 PM), https://www.wsj.com/articles/15-years-later-iraq-is-a-modest-success-1523219424.  Iraqi constitution passes, officials say, CNN (Oct. 25, 2005, 8:22 PM), http://www.cnn.com/2005/WORLD/meast/10/25/iraq.constitution/.  See, e.g., Faies Jafar, The Iraqi Constitution: A Red Herring for Politicians’ Failure?, The London Sch. of Econ. and Pol. Sci.: Middle East Centre Blog (June 7, 2018), http://blogs.lse.ac.uk/mec/2018/06/07/the-iraqi-constitution-a-red-herring-for-politicians-failure/.  See Yaroslav Trofimov, Iraq’s Surprise: The Persistence of Democracy, Wall St. J. (Nov. 17, 2017, 10:56 AM), https://www.wsj.com/articles/iraqs-surprise-the-persistence-of-democracy-1510933773.  Zinsmeister, supra note 4.  Trofimov, supra note 7.  Iraq’s Constitution: Democracy or Division?, Wall St. J. (Oct. 15, 2005, 12:01 AM), https://www.wsj.com/articles/SB112932895666869263.  See, e.g., Constitution of the Republic of Iraq [Iraq], arts. 8, 9, 21, 61, 73, 80, 105, 106, 110 (Oct. 15, 2005), http://www.refworld.org/docid/454f50804.html (last visited Nov. 2, 2018).  U.N. Office on Drugs and Crime, Signature and Ratification Status (2018), https://www.unodc.org/unodc/en/corruption/ratification-status.html (showing Iraq’s accession to the Convention occuring on March 17, 2008).  U.N. Secretary-General, Remarks at High-level Debate Marking 15th Anniversary of Adoption of United Nations Convention Against Corruption (May 23, 2018), https://www.un.org/sg/en/content/sg/speeches/2018-05-23/15th-anniversary-adoption-un-convention-against-corruption-remarks.  See, e.g., Coralie Pring, Transparency Int’l, Iraq: Overview of Corruption and Anticorruption 7 (2015), available at https://knowledgehub.transparency.org/helpdesk/iraq-overview-of-corruption-and-anti-corruption (download PDF).  United Nations Convention Against Corruption art. 5, Oct. 31, 2003, 2349 U.N.T.S. 41 (“Each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.”).  United Nations Convention Against Corruption, supra note 15, art. 6 (“Each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies, as appropriate, that prevent corruption . . .”).  Pring, supra note 14, at 8.  Iraq, Transparency Int’l: Corruption Perceptions Index (2017), https://www.transparency.org/country/IRQ [last visited Nov. 1, 2018).  Isabel Coles & Ghassan Adnan, Iraq Struggles to Contain Protests Over Government Dysfunction, Wall St. J. (July 15, 2018, 1:28 PM), https://www.wsj.com/articles/iraq-struggles-to-contain-protests-over-government-dysfunction-1531675702.  See, e.g., Iraq: Deaths of protesters in Basra must be effectively investigated, Amnesty Int’l (Sep. 7, 2018, 8:30 AM), https://www.amnesty.org/en/latest/news/2018/09/iraq-deaths-of-protesters-in-basra-must-be-effectively-investigated/.  United Nations Convention Against Corruption, supra note 15, art. 11.  See Freedom in the World 2018: Iraq, Freedom House (2018), https://freedomhouse.org/report/freedom-world/2018/iraq. See Ussaibah Younis & Sali Mahdy, The Next War In Iraq Needs To Be On Corruption, War on the Rocks (Dec. 16, 2016), https://warontherocks.com/2016/12/the-next-war-in-iraq-needs-to-be-on-corruption/.  See, e.g., David Pimentel & Brian Anderson, Judicial Independence in Postconflict Iraq: Establishing the Rule of Law in an Islamic Constitutional Democracy, 46 Geo. Wash. Int’l L. Rev. 29, 49 (2013).  United Nations Convention Against Corruption, supra note 15, art. 9.  Younis & Mahdy, supra note 23.  Younis & Mahdy, supra note 23.  Younis & Mahdy, supra note 23.  United Nations Convention Against Corruption, supra note 15, art. 7.  Pring, supra note 14, at 4.  See Ghassan Adnan & Isabel Coles, Iraq’s New Prime Minister Forms Government Five Months After Election, Wall St. J. (Oct. 25, 2018, 6:19 AM), https://www.wsj.com/articles/iraqs-new-prime-minister-forms-government-five-months-after-election-1540424103.  Id.; see also Philip Issa, Iraq’s new PM moving government outside Baghdad Green Zone, AP (Oct. 25, 2018), https://www.apnews.com/605fefb4e91f44f1b71ac933333d0497.  See, e.g., Michael Rubin, Will Fuad Hussein’s appointment as finance minister sink Abdul-Mahdi’s reform efforts?, AEI (Oct. 28, 2018), https://www.aei.org/publication/will-fuad-husseins-appointment-as-finance-minister-sink-abdul-mahdis-reform-efforts/ (“Alas, Abdul-Mahdi’s compromise gives little reason for optimism, at least in the financial and anti-corruption spheres.”).  See Iraq: News Centre, UNDP Iraq, http://www.iq.undp.org/content/iraq/en/home/presscenter.html?area-of-work=focus+areas%3Ademocratic+governance&goals=&year=®ion-country= (last visited Nov. 2, 2018). The views expressed in this post represent the views of the post’s author only.