Countering Terrorism Through the Rule of Law

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    a KU LEUVENMASTER OF EUROPEAN STUDIES: TRANSNATIONAL AND GLOBAL PERSPECTIVESMASTER OF EUROPEAN STUDIES: TRANSNATIONAL AND GLOBAL PERSPECTIVES

    CENTRE FOR EUROPEAN STUDIES

    PARKSTRAAT 45 - BUS 36003000 LEUVEN, BELGI

    Countering Terrorism

    through the Rule of LawThe EUs Agenda towards the Republic of Iraq

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    TABLE OF CONTENT

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    List of Acronyms

    CAJ, HNCAJ Higher National Commission for Accountability and Justice

    CAT Convention against TortureCPA (US-led) Coalition Provisional Authority

    CSO Civil Society Organisation

    Daesh, Daash Al-Dawla al-Islamiya al-Iraq al-Sham (See ISIS)

    ESS European Security Strategy

    EU European Union

    GAO US Government Accountability Office

    HR Human RightsHR/VP High Representative-Vice President of the Commission

    IcSP Instrument contributing for Stability and Peace

    IET Iraqi Expert Team

    IS, ISIS, ISIL Islamic State (in Iraq and Syria)

    MENA Middle East and North Africa

    MS Member States (of the European Union)

    NGO Non-Governmental Organisation

    PCA Partnership and Cooperation Instrument

    PM Prime Minister

    RoL Rule of Law

    SFP Structural Foreign Policy

    UN United Nations

    UNAMI United Nations Assistance Mission for Iraq

    UNDP United Nations Development Programme

    UNOPS United Nations Office for Projects Services

    UNSC United Nations Security Council

    US United States (of America)

    List of tables and figures

    Table 1. Comparison SFP criteria and EUs rule of law promotion policies

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    Privilgier la force sur le droit, ce serait prendre unelourde responsabilit

    Jacques Chirac18 March 2003

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    Executive Summary

    This manuscript analyses the extent to which the deficiency of rule of law has

    nurtured the societal divisions and terrorism in Iraq. The increasing support of Iraqi

    Sunni citizens given to the so-called Islamic State raises numerous questions

    regarding the performance of international attempts to build the rule of law in Iraq. In

    February 2015, the European Commission issued a Communication in which it

    acknowledged that the failure of the rule of law lies at the heart of the crisis in Iraq.

    However, the EU has been entrusted, since 2004, with the necessary toolbox to

    reunite in view of bringing about peace, prosperity and security through the

    promotion of the rule of law. Adopting a comprehensive approach on the three main

    instruments deployed by the EU in Iraq (CSDP Mission EUJUST LEX, Development

    and Cooperation instrument, and the Partnership and Cooperation Agreement), this

    paper examines the challenges and oversights which have rendered difficult the

    implementation of the rule of law culture in the Republic of Iraq.

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    Introduction

    The emerging stability and security would only take hold if the populationbegan to trust in the institutions of law. If the Iraqi people dont trust the ruleof law and instead use the rule of the gun to settle disputes, then thecessation of violence will always depend on a large number of armed soldiers

    standing on street corners. 1

    This Statement made by US Army Attorney Jack Ohlweiler points out the cornerstone of

    this paper as it exposes the main challenge faced by the Republic of Iraq: Setting up a

    Rule of Law to ensure sustainable security and accepting non-violent mechanism to

    solve disputes. For the European Union (EU) and its Member States, the EU-Iraqrelationship brings up painful memories of the 2003 foreign policy crisis and internal

    divisions over economic sanctions against Iraq in 1990. This internal dispute was

    considered to have had the potential to kill the dream of a united Europe. 2

    Despite political tensions between member states, it became clear quite quickly that an

    EU solution to bring about prosperity, security and peace was needed. When the United

    Nations Security Council (UNSC) unanimously adopted resolution No. 1546 redefining

    the worlds response towards Iraq in support to an Iraqi interim government, 3 it opened

    the way for the EU and its member states to engage in a deep strategic cooperation and

    dialogue aimed at bringing closer the EU to the Republic of Iraq. Institutional settings

    and voting requirements made EU military cooperation in Iraq impossible. Therefore, it

    became apparent that a pragmatic solution was needed in view of integrating the EU into

    the international assistance scheme. In choosing the lowest common denominators

    between Member States, the objectives of protecting Human Rights, reinforcing the

    political system, fostering of the implementation of Democracy, and promoting the Rule

    of Law were brought on the top of the EUs agenda towards the republic of Iraq to

    ensure the reconstruction and security of the State.

    1 Jack Ohlweiler, rebuilding the rule of law in Iraq, university of Virginia, Law School, Spring, 20092 Commissioner Chris Patten cited in Raj Chari and Francesco Cavatorta, The Iraq war: killing dreams

    of a united EU? European Political science , 2003, p. 263 United nations, Security Council endorses formation of Sovereign government in Iraq; welcomes endof occupation by 30 June , SC/8117, United Nations Press release, 8 June 2004

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    Through the cooperation framework of the Common Defence and Security Policy

    (CSDP), the EU (and its member states) launched a civilian mission EUJUST LEX

    aimed at promoting a rule of law culture in Iraq through the establishment of training

    activities designed for officials working in the criminal justice sector. This mission,

    which ended in December 2013, was the largest involvement of the EU in Iraq in term

    of budget. Notwithstanding quantitative changes (roughly 4,800 officials were trained),

    this paper demonstrates that its top-down approach, the absence of local ownership as

    well as the tendency of the Iraqi government to obstruct reforms limited the realisation

    of the desired objectives. Moreover, within the framework of international assistance to

    Iraq monitored by the United Nations Mission to Iraq (UNAMI), the EU provided

    numerous short-term programmes (development cooperation instrument, European

    Instrument for Democracy and Human Rights) as a contribution aimed at reinforcing the

    accountability of the Iraqi administration before the law, supporting the legitimacy of

    the Iraqi institutions and setting-up a judicial review system. Last but not least, as part of

    the initial strategy of the European Union towards the Republic of Iraq, a Partnership

    and Cooperation Agreement was ratified giving a legal framework to the EU-Iraq

    relationships, insisting on the respect of the core elements of the bilateral agreement:

    Principles of Democracy and Rule of Law.

    The Iraqi legal system has a controversial past with the rule of law. Thirty-four years

    under the autocratic regime of Saddam Hussein fostered Iraqi scepticism on whether

    security forces were in reality serving their interests. Paradoxically it is the unlawful

    US-led intervention, 4 5 which gave Iraqi citizens the idea that the law could be an

    instrument to protect their rights since western powers thought that getting rid of the

    dictatorial power was an opportunity to bring democracy. 6 However, twelve years

    after the insurgency, and despite huge improvements 7 in the justice and rule of law

    sector, the country is still healing from its dictatorship era and is still experiencing its

    4 United Nations, Secretary-General Kofi Anna in Lessons of Iraq war underscore importance of UNcharter , United Nations News Centre, 16 September 2004http://www.un.org/apps/news/story.asp?NewsID=11953.VcSetxOqqko [Last accessed 1 August2015]5 The US intervention did not fulfil the international legal standards regarding the use of force in thirdstates (1. Security 2. Council authorization, 3. consent, 4. self-defence), for a more detailed analysisabout these principles see Malcolm N. Shaw, international law , Cambridge, Cambridge university

    press, 2008, pp.1118-11596

    Emilio Platti, Modern Political Activism, current events lecture on the Islamic State, lecture, KULeuven, Metaforum, 28 October 20147 Judge Zuhair Al-Maliki, email interview with author, 2 August 2015

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    most challenging security situation. The increasing support of Iraqi citizens given to the

    so-called Islamic State since 2004 raises numerous questions regarding the performance

    of international attempts to build the rule of law in Iraq.

    The main research question of this thesis is the following: To what extent has the EU

    made the promotion of a rule of law culture its strategy to resolve conflicts in Iraq? It

    results from the foregoing questioning that there are two underlying inquiries: Does the

    absence of rule of law in Iraq obliquely explain the rise of terrorism in the State? What

    factors explain the difficulty for the EU to achieve successful results and to reach the

    sustainability of a rule of law in Iraq?

    This thesis uses the concept of Structural Foreign Policy (SFP) set out by Stephan

    Keukeleire 8 as it offers a comprehensive framework for the analysis of the EUs foreign

    policy. In giving an incentive to focus on material and immaterial factors and the

    relationship between structures (political, legal, societal, security etc.) and levels (local,

    state, non-state actors, individual etc.) this analytical framework is particularly relevant

    to the study of the rule of law in Iraq. Promoting the rule of law in a state like Iraq

    inherently implies a long-term involvement as it seeks to reform a political and legal

    system whose institutions are wrapped around path dependency. 9 10 In setting up

    criteria to assess the success of the external policies envisioned and implemented by

    actors in third states based on whether legitimacy, interiorization and sustainability of

    those policies has been reached, this concept offers the framework to assess the

    performance of the EUs rule of law promotion policies in Iraq.

    This thesis is divided into six chapters. The first chapter is a literature review setting the

    stage for the following analysis; it provides the reader with an overview of previous

    findings by authors who have probed the rule of law and defines the key concepts,

    which are to be used in order to address the challenges arising through the study of the

    8 Stephan Keukeleire and Tom Delreux, the Foreign Policy of the European Union , Basingstoke,Palgrave Macmillan, 2014, pp.28-31 and pp.328-3339 Concept stemming from the historical institutionalism theory whose authors argue that once thesettings of an institution are defined, all policies will tend to base their stance in the same direction; seeIan Bache, Stephen George, Simon Bulmer, Politics in the European Union , Oxford, Oxford

    University Press, 2011, p.2510 Mariana Prado and Michael Trebilcock, Path Dependence, development and the dynamics ofinstitutional reforms, University of Toronto Law Journal 59, 2009, p.370

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    RoL-Security nexus. The second chapter undertakes an explanation of the research

    objectives and method to be used to answer the research questions. The third chapter

    highlights the importance and advantages of using the comprehensive framework of

    Structural Foreign Policy. The fourth chapter presents findings regarding to the linkage

    between the deficiency of the rule of law sector and the rise of terrorism in Iraq, it

    analyses the previous attempts to set up the rule of law and the extent to which the

    unaccountability of the state to rules together with the sectarianism of Iraqi governments

    have tangentially fostered conflicts in Iraq. The fifth chapter explains the strategies and

    objectives of the EU behind its involvement in Iraq. The sixth and last chapter presents

    the instruments, missions and budgets and their impact on the Iraqi criminal justice

    system, the Iraqi civil society and the political regime. It also presents the missteps of

    the EU and the difficulties faced during the implementation of these instruments.

    Furthermore the final chapter provides an exploration and comparative analysis of the

    recently released strategy of the EU to Iraq and Syria in view of fighting Daesh.

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    Chapter 1. Literature Review

    Despite a long-standing scholarly interest in the rule of law, it remains an essentially

    contested concept. 11 The concept of Rule of Law emerged in correlation with the

    development of the modern States in the 17 th and 18 th century in Western Europe and

    particularly in France, England and Holland 12. British philosopher James Harrington

    explains the rule of law as a desire to achieve a government of laws, not of men 13 .

    Strongly tied to the genesis of human liberties, fundamental freedoms, it evokes the

    belief that men are guided by passion, subjectivity and arbitrary will and that only a

    government de jure could ensure the expression of the general interest in an objective,

    non-discretionary, reasonable and non-discriminatory way. 14 Many authors both in

    political science and legal studies now bond the rule of law and democracy

    promotion, using one concept as a substitute for the other. 15 This can be explained by

    the fact that the main actors in Foreign Policy, having made RoL promotion a

    hobbyhorse, recognise the principles Rule of Law, Human Rights and Democracy as

    being an interrelated trinity of concepts, as interconnected principles. 16 This raises

    the question whether the RoL-democracy association has not changed the primary

    meaning of this concept and as Pedersen and Holbraad formulated; if the people are

    the state, after all, then in what sense could they be ruled by it, and, conversely, whyshould a state that is the people need rules with which to govern them? 17 This paper

    separates these two concept and prefers the conceptualization of the rule of law as a

    vehicle of the following principles: protection against arbitrariness of the state,

    separation between the executive and judiciary powers, effective judicial review, non-

    discretionary (pre-trial and post trial) detention, prohibition of corruption, ban on the

    11 Robert Fallon, The Rule of Law as a Concept in Constitutional Discourse, Columbia Law Review97(1), 2007, p.612 Blandine Kriegel, The State and the Rule of Law , Princeton, Princeton University Press, 1996, p.4213 James Harrington in John Greville Agard (ed.) T he Political Works of James Harrington: Part One ,Cambridge, Cambridge university press, 2010, p.40114 Brian Z. Tamanaha, on the rule of law; History Politics, theory , Cambridge, Cambridge UniversityPress, 2004, p.12215 See for example Amichai Magen, Thomas Risse, Michael A. McFaul, promoting democracy and therule of law American and European Strategies , Basingstoke, Palgrave Macmillan, 200916 Laurent Pech, rule of law as a guiding principle of the European Unions external action, Cleer

    working paper 3, 2012, p.3017 Morten Alex Pedersen and Martin Holbraad, Revolutionary securitization: an anthropologicalextension of securitization theory, International Theory 4(2), 2012, p.189

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    practice of torture and ill-treatment, accountability of the state all entities (public and

    private) and all individuals to the same overarching rules. 18

    Martin Loughlin, British professor of Public Law, explains that political histories and

    constitutional traditions have fostered the diversity of meanings under the notion of

    the rule of law. 19 This impacts the current strategies and institutional organisation of

    its promotion in third states. If the rule of law and democracy are evidently shared

    values and objectives of western powers, historical and current divergences of RoL

    promotion policies abroad have rendered impossible the drawing up of a unique

    model on how RoL is promoted abroad by major powers in international relations. 20

    While the European Union as a rather non-military actor tends to support and assist

    efforts of democratization and the strengthening of the Rule of Law through a

    framework made of trade agreements, cooperation and foreign aid in exchange of

    institutional reforms, 21 the United States prefers invading other countries to further

    democracy 22 and address security concerns. Youngs has also found that the EU was

    eager to undertake a bottom-up approach in involving civil society actors in the

    process of democracy and rule of law promotion in the Middle East and North

    African (MENA) region while the US concentrates almost exclusively on the state. 23

    Along with increasing RoL promotion programmes being deployed by the major

    powers in unstable states, the academic literature is interested in exploring the

    relationship between security and the rule of law. Studying the impact of RoL on

    terrorism has produced different outcomes and answers to the question does a rule of

    law reduces terrorist events? Authors such as Jeffrey Ross 24 and Eyerman 25 found

    that providing the citizens with legal and non-violent frameworks to settle disputes

    reduced the chances of witnessing the presence of terrorist organisations. In his

    18 Inspired from: United Nations, The rule of law and transitional justice in conflict and post-conflict societies , S/2004/616, United Nations , Report of the Secretary General, 23 August 2004, p. 419 Martin Loughlin, Foundations of Public Law , Oxford, Oxford university press, 2010, p.31420 See Magen, Risse and McFaul op. cit., 2009, pp. 1-3321 Richard Youngs, Is European democracy promotion on the Wane?, CEPS working paper , 2008,

    p.16322 Magen, Risse and McFaul op. cit., 2009, p.3523 Richard Youngs, the European Union and the promotion of democracy: Europes Mediterraneanand Asian policies, Oxford, Oxford university press, 2001, p.36324 Jeffrey Ross, Structural causes of oppositional political terrorism: Towards a causal model, Journal

    of Peace Research 30(3), 1993, pp. 317-329.25 Joe Eyerman, Terrorism and democratic states: Soft Targets or accessible systems, internationalinteractions 24 (2), 1998, pp.151-170

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    comparative observation, Seung Whan Choi demonstrated that democratic societies

    that maintain a strong rule of law experience fewer domestic and international

    terrorist incidents than societies with a weak rule of law. 26 However, there is another

    group of scholars led by Eubank and Weinberg that argues a contrario that such

    mechanisms together with the increase of rights and liberties granted to all citizens

    and thus to suspects involved in criminal organisations, nurtured a favourable

    environment to criminal activities and terrorist organisations. 27 This conclusion was

    nonetheless criticized for having methodological limitations based on hypothetical

    assumptions. 28 In addition to different methods of analysis, the differentiation of

    results may also be explained by the divergence of point of references and the time

    (implying a different context) when these studies were conducted. There is a tendency

    in the literature on the relationship between rise of terrorism and rule of law to use the

    notions democracy and RoL as interchangeable concepts. Despite interesting results,

    the wide approach taken by these scholars does not offer an apparatus to comprehend

    the RoL-security nexus in a given State regarding their local and societal

    idiosyncrasies but rather the overall dynamic between these concepts.

    26 Seung-Whan Choi, Fighting Terrorism through the Rule of Law? The Journal of Conflict Resolution 54(6), December 2010, p. 94127 William Eubank and Leonard Weinberg, Does Democracy encourage Terrorism? terrorism and

    political violence 6(4), 1994, pp.417-44328 Abraham H. Miller, Comment on terrorism and democracy, Terrorism and Political Violence 6(4), 1994, pp.435-439

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    Chapter 2: Research design and Methodology2.1. Research objectives

    In using the concept of structural foreign policy, this thesis has for its main purpose to

    analyse comprehensively the current security challenges in Iraq. To test the

    hypothesis ( that the current conflicts, particularly the rise of terrorism in Iraq, stems

    from the absence of rule of law ) I seek on the one hand to research how the

    arbitrariness of the state, the discriminatory enforcement of the law and the absence of

    accountability of the state together with deep-rooted sectarianism in Iraq have

    strengthened the societal tensions and the readiness of marginalized groups to join

    terrorist organisations. Besides, this thesis looks into the strategies and instruments

    deployed by the European Union to foster the proliferation of the rule of law values in

    Iraq and inquire whether they are provided with the necessary features to ensure the

    expected outcome of addressing security challenges.

    2.2. Limitations and difficulties

    The first difficulty is the limited number of academic sources mentioning the

    relationship between the European Union and the Republic of Iraq. For example, in

    the different academic databases it was found that peer reviewed articles about the

    EUs foreign policy towards other third states or regions (e.g. EU/Russia, EU/China,

    EU/U.S.) was from two to twenty times higher than the ones available concerning

    Iraq. Furthermore the involvement of the EU in Iraq remains unknown and many non-

    European sources refer to the individual position of the EU Member States regarding

    the military invasion of 2003. Given the very recent nature of several aspects in this

    thesis (rise of Daesh; 2015 regional strategy to Iraq etc.), some documents have notyet been the subject of previous academic interpretation.

    Second, language is an important difficulty to overcome when studying the

    operationalization of external policies into a specific country located in the Arab

    world. Given that I only speak English and French, it was impossible to read the Iraqi

    scholarly literature written in Arabic (and the perception of Iraqi citizens) concerning

    the EU/Iraq relationship without using an English translation of these. The inaccuracyof the translation programmes has rendered difficult to assess whether or not the

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    translation was correct. It resulted that several journal articles I wished to read that did

    not find a translation have not been used. Furthermore, translations often take the

    form of reviews of the Iraqi documents/literature but there was no possibility for me

    to compare both texts and assess the relevance of the critiques. I attempted

    (unsuccessfully) to engage in correspondence with the University of Baghdad as their

    website refers to contemporary research done by Iraqi scholars in English in

    accordance with the topic but remain inaccessible online.

    Considering the critical security situation as outlined throughout this paper, it was not

    possible to conduct field research.

    2.3. Research design and procedure

    The research method undertaken throughout this thesis is empirical and follows the

    positivistic assumption that only observable, and verifiable, phenomena could be the

    subject matter of science. 29 Based on a quasi - judicial inquiry 30, this thesis mainly

    makes use of primary sources and quasi-exclusively qualitative data. Remaining brief

    when exposing all the advantages and disadvantages of qualitative study is a difficult

    exercise, therefore they will be constrained to examples: When operationalizing an

    analysis into a holistic single case-study approach the use of qualitative data remainthe most efficient way to gain an insightful understanding and to conduct exploratory

    analyses as well as testing their validity. There are nonetheless disadvantages as it can

    produce a rather static research conclusion impeding a generalisation into other cases-

    studies.

    Despite asymmetrical histories and methodological dissimilarities between legal

    studies and political science, this thesis, by referring to legal concepts from a political

    science perspective, calls for bringing closer those two social sciences as they intend

    to answer similar questions through inexorably different ways. By putting these ways

    together we might get closer to the ambition of any social scientist, that is to say

    reaching a science of the realities. 31 If this research does not have the features of a

    29 Bill Gilham, Case Study Research Method, London, Bloomsbury Academic, 2010, p.230

    Ibid. p.5231 Emile Durkheim, Les rgles de la mthode sociologique , Paris, Presses universitaires de France,2013, p.15 and p.31

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    legal study per se it does nonetheless use numerous legal instruments (treaties,

    secondary legislation, constitutions, laws).

    Given the many contemporary aspects that this study intends to deal with, the method

    used in order to provide a conclusion and a critical assessment is to some extent

    explorative and relies on causal assessments. This implies the study of the causal and

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

    terrorism), the mechanism (Assumption 2: the EU in the scheme of international

    assistance contributed to improving the rule of law sector) and the outcome (study on

    whether or not there were improvements and there was an impact on security). 32

    Primary sources come from the database of the main EU institutions (EEAS, Council,European Parliament, specific working groups, Commission and its DGs etc.),

    international organisations, NGOs, EU member states and Iraqi documents written in

    English. Secondary sources (academic articles, reports, books) used throughout this

    paper have for most of them been written by specialists on EU foreign policy; the

    middle-east and Iraq; security studies; and individuals who have participated to the

    implementation of the rule of law in Iraq. Tertiary sources such as newspaper articles

    and documentaries offer interesting description on what is happening on the groundand the key issues at stake but they do not form an important part of the bibliography.

    All data have been collected from September 2014 to August 2015

    An interview was conducted with Mr Zuhair Al-Maliki. He is a former judge to the

    Central Criminal Courts of Iraq and Professor of Law at the University of Baghdad

    and founding partner of the Al-Maliki & Associates Law Firm. He has experience

    with international organisations (EU, UN), the United States and international NGOs

    associated with the rule of law. Due to technical (time, money, security) constraints,

    this interview could neither be done by phone nor in field and was therefore done via

    email. The author acknowledges that this method carries some disadvantages as a lack

    of dialogue and the ability to interact fully with the interviewee and ask follow-up

    questions. The full questions and answers are available in the annex.

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

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    Chapter 3. Analytical framework: Structural ForeignPolicy

    This chapter constitutes the first step in the analysis of rule of law promotion in Iraq

    and its objective of ensuring sustainable security provided in the next chapters. Before

    providing further detail about the analytical framework itself, it is necessary to state

    the reasons why the author decided to proceed as follow. For the purpose of

    answering the main research questions of this thesis it was identified as necessity to

    use a comprehensive framework rather than using a traditional theory in European

    Foreign Policy because this thesis possesses a dual objective: Identifying whether the

    absence of rule of law has an impact on the marginalisation of parts of the Iraqi civil

    society and analysing whether the European Union acknowledged these factors whensetting-up missions/instruments designed to promote the rule of law culture in Iraq.

    The structural foreign policy concept gives the academic tools to respond to both of

    these objectives as it recommends analysing the relationship between sectors

    (political, legal and security in the present case) and levels (civil society, state, local

    entities, international actors). By focusing on the process of internalization and

    whether legitimacy and receptiveness of both state and non-state actors has been

    reached, the use of the concept of structural foreign policy is particularly relevant to provide an efficient assessment of the implementation of the EUs policies towards

    the republic of Iraq.

    3.1. Introduction to Structural Foreign Policy

    The notion of structure is crucial in the EUs foreign policy discourse. From the outset

    of its creation the EU has demonstrated a structural ambition notably vis--vis its

    neighbours. 33 Structural foreign policy is a concept developed by Stephan Keukeleire,

    which may be seen as an analytical framework to question the reasoning and the logic

    of the EUs action in third states. A foreign policy can, therefore, be considered as

    structural if it meets the following definition:

    A long-term Foreign policy which seeks to influence or shape sustainable political, legal, socio-economic, security and mental structures on the various

    33

    Raphal Metais and Charles Thpaut, Introduction: What is structural Foreign Policy? in Thpaut,Mtais and Keukeleire (eds.), the European Unions Rule of Law Promotion in its neighbourhood: Astructural Foreign Policy Analysis EU Diplomacy Papers 4, 2013, p.7

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

    The adjudication of structural of a foreign policy depends upon the aims it pursues

    and the means deployed to that end. These objectives delimited by Keukeleire are

    dual, have equal importance and constitute the key element for enabling a policy to

    have permanent or quasi-permanent effects:

    The notion of structure is central. Every society is organized around structures

    (embedded in institutions, norms, and principles) that can be located at several levels

    from the individual to the international including the state, societal and regional

    levels. A structural foreign policy is therefore aimed at shaping and influencing these

    structures within a multilevel framework 35. The concept draws our attention to the

    fact that these organizing principles are embedded within sectors (security, political,legal, social, cultural etc.), which have a close factual nexus among them.

    The second objective is bound to the first one. The SFP framework encompasses

    immaterial factors and seeks to study whether a population in a given state sees the

    EUs policies as legitimate. Perception plays indeed a predominant role in

    determining how long these changes will hold. While it is difficult to measure the

    legitimacy of structural changes before they are fully achieved, this analysis is central,

    in terms of the internalisation and interiorization of the policy. In other words, to whatextent the external policy fits into the identity, culture, history and belief system of

    the entire people concerned. 36

    It is necessary to clarify the extent to which this framework will be used. A merely

    analytical use of SFP may risk narrowing the analysis to whether or not the EUs

    action in a specific case-study respond to the SFP criteria and thus whether X policy

    is structural. Such consideration might have an interesting outcome for the researcher,

    but as Naylor highlighted; we can legitimately ask why we should care. 37 It is

    significant to underscore the existence of a normative dimension under the concept of

    Structural Foreign Policy. If adapted and operationalized into a case-specific

    framework, it allows both the researchers and the practitioners to assess the

    performance of the EUs foreign policies and also questions which factors influence

    34 Keukeleire and Delreux, op. cit., 2014 p.2835 Ibid.36

    Ibid. p.3037 Clement Naylor, Structural Foreign Policy: A Critical Appraisal for Students, Researchers andPractitioners, in Thpaut, Mtais and Keukeleire, op. cit., 2013, p.60

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    the most structural changes. 38 Furthermore, the SFP framework incites academics to

    found their assessment on the internalisation and sustainability of those policies.

    However, assessing whether norms provided by external donors have been

    internalised remains difficult without clear indicators on how to measure it. For this

    purpose, Finnemore and Sikkink explored the process of internalization of norms and

    argued that it occurs insofar as the norm cascades meaning where it is taken for

    granted by the society and is no longer the subject of public debates. 39 Exploring the

    sustainability of norms might also raise complications regarding most of the case-

    studies since it can only be done after a long period of time depending on whether

    they have resisted to successive governments, and political, economic, security (and

    so on) problems and uncertainties.

    The core advantage of the Structural Foreign Policy Framework is that it seeks to

    offer both a normative and an analytical approach allowing researchers to apply it to a

    specific region/country and towards a predefined policy or issue.

    3.2. Integrating structural foreign policy and Rule of Law promotion

    Every scholar having probed the academic literature in the field of the Rule of Law

    has certainly found that most of the academic approaches towards the RoL concept

    tend to provide abundant normative and prescriptive analysis and regretfully,

    analytical approaches are sporadic. 40 The SFP concept is appropriate when applied to

    the rule of law promotion as it focuses on various domains and dimensions whose

    interconnectivity is often either unmentioned or neglected in the usual analysis of the

    EUs foreign policy. 41 The promotion of the rule of law is substantially and

    intrinsically linked to the societal, security and economic sectors. For instance, justice

    sector reforms may impact the economy through the prosecution of drug traffickers

    overcoming the challenge of the underground economy. 42 The use of the SFP

    framework regarding the assessment of the instruments and policies in view of

    38 Ibid. pp.60-6239 Martha Finnemore and Kathyn Sikkink, international norm dynamics and political change,international organization, International Organizations 52(4), 1998, p.89540 Frank Schimmelfinnig, a comparison of the Rule of Law promotion Policies of Major WesternPowers, in Zurn, Nolkaemper, Peerenboom (eds.) Rule of Law Dynamics: In an Era of Internationaland Transnational Governance , Cambridge, Cambridge University Press, 2012, p.112 41

    Charles Thpaut and Raphal Metais, op. cit., 2013, p.742 Laurel Miller and Robert Perito,, Establishing the Rule of Law in Afghanistan , United States Institute for Peace Special report 117, March 2004

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    CHAPTER 4: The deficiency of rule of law as acausal factor of the rise of inter-ethnic tensions and

    terrorism in Iraq

    The state of Iraq has a controversial history with regard to the rule of law. This

    chapter presents the root of instability in Iraq and the extent to which a defaulting rule

    of law circuitously explains the fortification of the insurgency finding support from

    marginalized groups. Doing so implies primarily a focus on the previous unsuccessful

    and prematurely attempts to build the rule of law in Iraq (4.1). The second and third

    subchapter demonstrate to what extent the de-baathification process operated with

    the absence of the rule of law together with the sectarianism of the government might

    have fostered the marginalization of the society (4.2) leading to instability and the

    upsurge of terrorism (4.3)

    4.1. The rule by law system of Iraq

    In 2003, among the top priorities of the Coalition Provisional Authority (CPA) was

    the establishment of new political and justice system to help the Iraqi people to

    establish a just and representative government, which respects Human Rights and

    adheres to the rule of law. 44 Despite the general consensus over this necessity, the

    US-led coalition rapidly demonstrated their incapacity to set up a rule of law system

    sticking to the (rather) universally agreed definition whereby every man whatever be

    his rank or condition, is subject to the ordinary law of the realm and amenable to the

    jurisdiction of the ordinary tribunals 45 implying inherently that the government itself

    is accountable to rules. On the contrary, the CPA established an ad-hoc rule of law

    system described by Ryan Liebl as a rule by law framework by which the law is used

    as an instrument to govern and exert sovereignty over the territory rather than

    providing a regime of norms where civil rights and fundamental liberties are

    44 Georges W. Bush in Rosa Ehrenreich Brooks, by force of will, Can the rule of law in Iraq comefrom the barrel of a gun? Legal Affairs website Nov./Dec. (2003)http://www.legalaffairs.org/issues/November-December-2003/argument_brooks_novdec03.msp (Accessed 29 July 2015)45

    This definition is the oldest version of the definition now provided by the United Nations, see AlbertVenn Dicey, Introduction to the Study of the Law of Constitution , London: MacMillan and Co, 1902,

    p.189

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    respected. 46 The legal system was under full control of the CPA and deprived the state

    of being entitled of law-making. The result was that the full legal system was

    controlled by the Coalition Provisional Authority and could in the same way be

    changed arbitrarily by the same authority while having legal binding force upon Iraqi

    citizens. When building this debatable legal system, the CPA also neglected all

    immaterial aspects of the Mesopotamian legal tradition based on the 1700 B.C.

    Hammurabi code that Iraq historically inherited. Furthermore, the criminal justice

    system was regularly obstructed by authorities in charge of ensuring the transition of

    power since they often disregarded orders issued by judges on the basis that they were

    supposedly corrupt. 47 Even though the mandate of the CPA lasted only a year, it

    tremendously impacted the extent to which the law is considered as an instrument to

    serve the purposes of the executive and legislative powers. The example of the

    referendum in 2005 on the Iraqi Constitution is particularly revealing in this regard.

    Originally, strict voting requirements were decided in order to make sure that the new

    constitution would take into account the legitimate needs and interests of the local

    provinces of Iraq, and would not be accepted if 2/3 of the voters in at least three

    provinces (out of 18) rejected the constitution through the referendum. However, the

    Iraqi Parliament mainly composed of Shia and Kurdish representatives who almost

    all backed the Constitution decided to reform the Iraqi electoral law to significantly

    reduce the possibility for the constitution not to be voted in. 48

    4.2. The de-baathification and sectarianism: the societal origin of divisionsand tensions in Iraq

    On 16 May 2003, the CPA issued an order called de-baathification of Iraqi Society

    forbidding former members of Saddam Husseins party (Baath) to serve the new Iraqi

    government. Presented as an instrument necessary for rebuilding the state of Iraqsanely, the De-baathification process turned into a sectarian tool preventing Sunni

    46 Ryan J. Liebl, Rule of law in Postwar Iraq : From Saddam Hussein to the American Soldiersinvolved in the Abu Ghraib Prison Scandal, What Law Governs Whose Actions ? Hamline Law

    Review 28(1), 2005, pp.129-13047 Rosa Ehrenreich Brooks op. cit., 200348 This change consisted of conserving the system of a rejection of the constitution if three provinces

    opposed it by two third but taking into account this time the total number of voters registered. See BBC News, UN condemns Iraq charter change , Middle East section, October 4, 2005, BBC websitehttp://news.bbc.co.uk/2/hi/middle_east/4309164.stm (Accessed 29 July 2015)

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    Muslims 49 from being involved in the Iraqi public affairs. 50 This led the Republic of

    Iraq, a non-inclusive nation, to be unable to accommodate religious differences.

    Furthermore, vetting programs such as de-baathification are subject to international

    standards under the International Covenant and Civil and Political Rights (to which

    both Iraq and the US are parties) and compliance with the rule of law principles,

    Human Rights (such as the right to a fair trial). They shall be based on individual

    assessments and on the basis that the person possesses serious integrity deficits in

    order to re-establish civic trust and re-legitimize public institutions. 51 However, the

    far-reaching approach undertaken by the administrator of the CPA Paul Bremer 52 in

    the implementation of the de-baathification process neglected these rules and

    excluded between 85,000 to 100,000 people 53, including thousands of people who

    were forced to join the Baath party to keep their jobs in the public service during the

    Hussein dictatorship. 54 In 2008, the newly elected government of Nouri Al-Maliki

    reformed the De-Baathification policies with the intention of; improving their

    transparency, authorizing certain members ( firqah 55) to return their jobs in the public

    service, fostering access to social benefits (pensions) for those who were excluded 56

    and creating the Higher National Commission for Accountability and Justice

    (HNCAJ) which took over the programme of de-baathification. 57 However, these

    rather positive ambitions shifted to fiasco when the Accountability and Justice

    Commission prevented 511 candidates and fifteen parties from running for the 2010

    elections on the basis that they allegedly promoted the Baath party. 58 59 Despite the

    49 When created in 1947 the Baath party was a party composed mainly of Shia Muslims but the mainreligious influence in the party became Sunni as time passed.50

    Miranda Sissons and Abdulrazzaq Al-Saiedi A Bitter Legacy: Lessons of De-Baathification in Iraq International Center for Transitional Justice March, 2013, p.1751 United Nations High Commissioner for Human Rights, Rule of law tools for Post-Conflict States,vetting: Operational framework , United Nations, 2006, p.452 Administrator of the Coalition Provisional Authority53 James P. Pfiffner, US Blunders in Iraq: De-baathificaion and disbanding the Army, Intelligenceand National Security 25(1), 2010, p.7954 Ibid.55 Rank of group member in the Baath party (i.e. Without responsibilities)56 Miranda Sissons and Alexander Mayer Rieckh, Briefing Paper: Iraqs New Accountability and

    JusticeLaw , International Center for Transitional Justice (2008), p.657 Sissons and Al-Saiedi op. cit., 2013, p.1858 Nada Bakri and Anthony Shadid, Move Made To Bar Iraqi From Ballot published in the New York

    Times (East Coast Ed.), January 8, 2010, p. A459 United Nations Security Council, Report of the Secretary-General pursuant to paragraph 6 ofresolution 1883 (2009) , S/2010/76, United Nations, February 8, 2010, p.7

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    UNs call for transparent and non-discriminatory disqualification of candidates 60, PM

    Al-Maliki revealed his inability to compel the Iraqi state and his government to

    adhere to international standards and Iraqi laws in vetting political opponents on the

    basis of their religious membership or political membership. The list Al-Iraqia whose

    members were mostly Sunni complained numerous times that they were regularly

    pressured, threatened and approached by Nouri Al-Maliki staff and the Iraqi national

    security forces. 61 Following Sissons and Al-Saiedi syllogism, the de-baathification

    process initiated by the US and sustained by successive Iraqi governments

    undermined hopes of reconstructing Iraq in its post-conflict era as it took the form of

    purges and gravely jeopardized the application of Human Rights and the Rule of Law

    principles. 62

    4.3. A flourishing political context for Daesh

    In 2005, when Shiite militias joined the police forces and demonstrated violent

    behaviour against Sunni and civilians transforming the police from a failing law and

    order force into a party fighting on one side in the civil war 63 it became clear for

    many Sunni Iraqis that their federal government was no longer able nor willing to

    ensure their security. The stepping up of the repression organised by the government

    increased the readiness of Sunnis to give their support to any group that appeared to

    have the potential to reverse its increasing marginalization. 64 This confirms a

    statement made by Seung Whan Choi that people who live in countries where the rule

    of law is blatantly ignored by their governments tend to see their government as

    illegitimate. 65

    Taking the advantage of the eruptive situation in Iraq and the civil war in Syria, the

    terrorist organisation so-called the Islamic State in Iraq and the Levant ( Daash or Daesh in Arabic 66), expanded in the north of Iraq across an area covering 90 per cent

    60 United Nations Security Council, Report of the Secretary-General pursuant to paragraph 6 ofresolution 1883 (2009) S/2010/240, United Nations: May 14, 2010, p.361 International crisis group, Iraq s Secular Opposition: The rise and decline of Al-Iraqiya, Middle

    East Report 127, 31 July 2012, p.11 and p.1762 Miranda Sissons and Abdulrazzaq Al-Saiedi op. cit., 2013, p.3663 Guido Steinberg, The European Union Integrated Rule of Law Mission for Iraq (EUJUST LEX) A

    policy surrogate with potential in Muriel Asseburg and Ronja Kempin (eds.), the EU as a strategicactor in the Realm of Security and Defence, SWP Research Paper December, 2009, p.13064

    Richard Barrett, the Islamic State: Report , The Soufan Group Nov., 2014, p.565 Choi, op. cit., 2010, p.94566 Loose acronym standing for Al-Dawla al-Islamiya al-Iraq al-Sham

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    of Sunni areas relying on former members of Al-Qaida in Iraq (AQI), several local

    tribes and alienated members of the Baath party despite political disagreements. 67 68

    This organisation founded by Musab Al-Zarqawi, and now under control of Abu Bakr

    Al-Baghdadi gathers former members of the Mujahedeen Shura Council and former

    detainees from US or Iraqi prisons, the most known being Camp Bucca; considered as

    the birthplace 69 of ISIL. Their main ambition is to rejuvenate a state based on the

    ancient Ottoman Empires borders, the golden age for the Muslim world. 70 Not only

    ISIL menaces the security of Shia Iraqis and non-Muslims ( takfir) , who are required

    to pay Jizya , the head tax, to protect their lives. In establishing a Caliphate, Daesh

    also intends to destroy the hopes, no matter how slim they were, of maintaining a

    united nation of Iraq. 71 As the Copenhagen Schools scholars argue, when these

    intentions are formulated as such, they are transformed into deeds by threatening the

    stability of the political order. 72 At the time of writing, Daesh on the military side,

    seems to face difficulties, however the number of supporting local Sunni tribes

    continue to increase in strategic position of Iraq. The consequence being that the Iraqi

    federal government is now unable to take control over some parts of its own territory.

    This generates further security 73 threats such environmental threats, oil being a

    fundamental source of revenue of ISIL, and economical, as most of the wheat fields

    are located in areas under control and influence of the organisation. 74 Under these

    Daesh controlled areas, the criminal justice facilities nonetheless continue to function.

    Instead of applying the law of men (Iraqi law), these facilities serve the purpose of

    safeguarding the application of the rule of Allah, the Islamic law (Sharia).

    67 Barrett op. cit., 2014, pp.20-2168 Claude Nougein, projet de loi autorisant la ratification de laccord de partenariat et de coopration

    entre lUnion europenne et la rpublique dIrak, rapport n218 , Snat Republique Franaise, 14January 2015, p.1269 Jrme Fritel, Daech, naissance dun Etat terroriste, Arte TV (Fr. 2015, 55mn), February 10, 201570 Gino Schallengbergh, the Management of Savagery, Lecture, Metaforum, KU Leuven Conference28 October 201471 Platti, op. cit. 201472 Buzan B., Wver O., De Wilde J., Security: A new framework for analysis , Boulder, Lynne Rienner,1998, p.15073 Security here refers to its comprehensive definition provided by the Copenhagen School in securityanalysis in which the notion of security is conceptualized as perceived threats by actors and calls forassociating security to perceived threats by actors (i.e. widening security to environmental, political,legal, societal sectors) see ibid and Paul D. Williams, security studies an introduction , London and

    New York, Routledge, 2008, pp.68-7274

    Food Agriculture Organization, Iraq: Favourable weather conditions, but agricultural production jeopardized by conflict , FAO Website http://www.fao.org/giews/countrybrief/country.jsp?code=IRQ (Last Accessed 2 August 2015)

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    Countering terrorism is an important objective of Iraq and the fight against terrorism

    is even enumerated in the federal constitution under Article 7:

    Any entity or program that adopts, incites, facilitates, glorifies, promotes,

    or justifies racism or terrorism or accusations of being an infidel (takfir)or ethnic cleansing, especially the Saddamist Baath in Iraq and its

    symbols, under any name whatsoever, shall be prohibited. Such entitiesmay not be part of political pluralism in Iraq. This shall be regulated bylaw.

    The State shall undertake to combat terrorism in all its forms, and shallwork to protect its territories from being a base, pathway, or field forterrorist activities. 75

    Nevertheless, Iraqi Professor Saad N. Jawad pointed out that the all-embracing

    definition provided by the abovementioned article is too broad and that it could be

    used to condemn anybody who opposed the political process. 76 Used as a standard by

    Iraqi decision-makers to enact counter-terrorism tough legislation, it results that it

    gave rise to several Human Rights issues. For Zuhair Al-Maliki, judge interviewed

    within the framework of this research, there are counter-terrorism law and agencies

    but there is no [Counter-terrorism] policy. 77 In light of this stark observation, Human

    Rights Watch reported that the provision integrated in the Anti-terrorism law of 2005,

    which allowed anyone, who intentionally covers up any terrorist act or harbours a

    terrorist with the purpose of concealment, [to] be sentenced to life imprisonment 78

    has been extensively applied to Women who were accused of covering-up their

    husbands. 79

    The picture is clear; the absence of rule of law led many Sunni Iraqis to believe that

    they are persona non grata in their home place. If undoubtedly not all Sunni Iraqis

    endorsed the ideology incarnated by Daesh, many have fallen victim to injustice and become radicalised because of the sectarianism of the State and the incapacity of it to

    75 Constitution of the Republic of Iraq, article 7, Refworld website (trans.) available athttp://www.refworld.org/docid/454f50804.html (Last Accessed 27 July 2015)76 Saad N. Jawad, The Iraqi Constitution: Structural Flaws and Political Implications, LSE Middle

    East Center Paper Series 1, 2013, p.1877 Interview with Zuhair Al-Maliki, via email, 2 August 2015.78 Iraqi Council of Ministers, Anti-terrorism law No. 13 , Article 4 (penalties), 7 November 2005, Verticwebsite http://www.vertic.org/media/National%20Legislation/Iraq/IQ_Anti-Terrorism_Law.pdf (Last

    Accessed 27 July 2015)79 Human Rights Watch, No One is Safe: Abuses of Women in Iraqs Criminal Justice System: report,2014, p.6

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    reunite the legitimate interests of the Iraqi people, no matter their religious ideologies

    and ethnical membership and this has lead to a tougher application of these of

    counter-terrorism law in an arbitrary and discriminatory way.

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    Chapter 5. Overcoming security challenges throughthe rule of law in Iraq: The EUs Agenda

    This chapter presents the context in which the EU envisioned its strategy towards the

    republic of Iraq since 2004. Since its promotion occurred while conflicts between the

    Sunni insurgents and the international coalition were not solved, the first subchapter

    provides an assessment of the chances of success of a promotion of the rule of law in

    such context (5.1). The second subchapter offers a comparative analysis between the

    European Security Strategys vision of a rule of law promotion for security purposes

    and the conception of a rule of law promotion following the concept of Structural

    Foreign Policy (5.2). The final subchapter analyses the extent to which the EU set up

    its strategy with a focus on the long-term (5.3)

    5.1. Assessing the merits of promoting the rule of law in a context ofunsolved conflicts

    The doctrine is divided concerning the relevance and chances of success of promoting

    judicial sector reforms in a critical security situation. If one acknowledges that the

    rule of law is an important element needed to keep an already pre-existing stability forthe population 80, its utility for building a security environment remains a contested

    area. The legacy of Saddam Husseins regime was a fragile state facing grave security

    challenges. From 2003, the need for sustainable reforms in the criminal justice system

    was seen as vital to the building of a durable security capacity. 81 The critical

    security environment was strengthened by the presence of the US-led coalition forces

    and the military aerial and ground operations 82 conducted throughout the territory of

    Iraq from the North in Mossul to the South in Basra leaving the whole countrys

    infrastructure destroyed. Weakened economic, political and social structures and

    impeded the functioning of the justice system. For Schrder and Kode a

    comprehensive security sector (CSS) reform, as envisioned by state-builders, requires

    an already pacified political sphere where conflicts can be managed by resorting to

    80 Christoph Bleiker and Marc Krupanski, The Rule of Law and Security Sector Reform:Conceptualising a Complex Relationship, Security Sector Reforms Paper 5, 2012, p.5581 Andrew Rathmell Reforming Iraq security sector in Rathmell et al. (eds.) developing Iraqs security

    sector , National Defense Research Institute, 2005, 5782 The total number of military operations from 2003 to 2011 is difficult to estimate due to the lack oftransparent data

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    legal mechanisms. 83 In view of fostering the interiorization of rule of law reforms,

    this pacified political sphere seems in effect indispensable, as the development of a

    structural foreign policy in states where the crises and conflicts are not solved is a

    strenuous exercise. 84 While interiorization requires a general public agreement for a

    norm being implemented, a wartime situation in a country where inter-religious

    tensions are profound implies a strengthening of the divisions in the public opinion.

    Although the process of interiorization (cascade 85) of external policies takes place

    after the implementation phase, the context in which the norm was envisaged and

    emerged is crucial in order to enter into the belief system of the people of Iraq. The

    objective of proliferating norms and principles attached to the concept of the Rule of

    law therefore might find complications

    5.2. Securing through the rule of law: European Security Strategy

    The European Security Strategy (ESS) was initiated in the margins of the dispute over

    the intervention in Iraq to ensure that EU member states kept a shared vision on how

    to deal with security challenges worldwide. 86 It points out the existence of the rule of

    law-security nexus. However, the ESS explicitly indicates a self-interested strategy in

    the promotion of good governance, rule of law, Human Rights and Democracy as it

    conceives a world of well governed states as the best protection for our security. 87

    Following Daan Foncks analysis, the focus by the EU on its own interests and gains

    for its own stability falls within the traditionalist and conventional conceptions of

    foreign policy as the European Union intends to ensure its own security through its

    external action. 88 On the other side, a structural rule of law promotion focuses on the

    benefits for citizens in target countries by providing them a protection against the

    arbitrariness of the state, in setting up a visible separation between the executive and

    judiciary powers, in ensuring decent conditions of detentions, in reducing the factorsthat foster corruption, in shaping a legal framework banning the practice of torture

    83 Ursula C. Schrder & Johannes Kode, Rule of Law and Security Sector Reform in InternationalState-Building: Dilemmas of Converging Agendas, Hague Journal on the Rule of Law 4, 2012, p.3884 Keukeleire and Delreux, op. cit., 2014, p.26485 Finnemore and Sikkink, op. cit., 1998, p.89586 Ruprecht Polenz, NATO Parliamentary Assembly, The EU security Concept: Implications for NATOand the EU , 167 PCTR 04 E, Committee report, 2004, p.187 European Council, A secure Europe in a Better World: European Security Strategy , Brussels, 12 d

    December 2003, p.1088 Daan Fonck, Promoting Justice Abroad: An Analysis of the EUs Rule of Law Promotion inUkraine as Structural Foreign Policy, in Mtais, Thpaut and Keukeleire op. cit., 2013, p.23

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    and brutality and in ensuring that the state itself is subject to legal rules. The

    European Security Strategy remains a guideline which is not sensu stricto binding

    upon the institutions of the EU, it is the very good example of what is implied through

    the rule of law promotion in third states as a security objective.

    5.3. Building the rule of law in Iraq: A long-term undertaking

    Before 2004, the Iraqi police were badly trained, poorly equipped and frequently

    involved in corruption scandals. 89 Several former police officers admitted that the use

    of torture and ill treatment to extract information from prisoners was commonplace. 90

    They were therefore badly trusted and feared by the population. The depraved

    condition of the rule of law in Iraq was unfortunately not limited to the Iraqi police. In

    spite of Article 2 of the Judicial Act No. 160 of 1979 providing for independence of

    the judiciary 91, the courts were regularly pressured by the executive and the religious

    forces of the country. 92 The penitentiary sector was organised and managed by the

    Ministry of Labour and Social affairs during Saddam Husseins dictatorship and the

    detention facilities - and their conditions accordingly differed significantly from one

    prison to another. 93 Furthermore, the number of killed officials working for the justice

    sector (policemen, judges and prison officials) was - and still is - considerably higher

    for these professions than any other. 94

    Upon the request of the European Council held on 16 and 17 October 2003, following

    the adoption of the UNSC Resolution 1511 on Iraq, the European Commission issued

    a Communication to the Council and the European Parliament on the future of the

    89 Alina Christova, Seven years of EUJUST LEX : The challenge of the Rule of law in Iraq, journalof contemporary European Research 9(3), 2013, p.42790 Human Rights Watch, The New Iraq? Torture and ill-treatment of detainees in Iraqi custody , HumanRights Watch report 17(1) (D) January 2005, p.7991 Iraqi Ministry of Justice, resolution number 1724, Alwaqai Aliraqiya: the official gazette of therepublic of Iraq 27(23), 2 July 198092 David Pimentel and Brian Anderson, Judicial independence in Postconflict Iraq: Establishing therule of law in an Islamic Constitutional Democracy, The George Washington International Law

    Review 46, 2013, p.5493 Mitchel P. Roth, Prisons and Prison Systems: A Global Encyclopedia (Santa Barbara: GreenwoodPublishing Group, 2006, p.13794

    Iraq body count, Iraqi deaths from violence 20032011: Analysis and overview from Iraq BodyCount, January 2, 2012, IBC Website https://www.iraqbodycount.org/analysis/numbers/2011/ (Accessed July 17, 2015)

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    EU-Iraq relationship. 95 As the member states disagreements over a Joint Action with

    the United States thwarted all EU military cooperation, the involvement of the EU

    could only be civilian and political. The UN Special Representative in Iraq, Srgio

    Vieira de Mello pressed the EU to send police officers under the command of the

    United Nations but member states governments rejected this idea on the basis that

    this should only take place after the end of the military occupation. 96 Despite this,

    the EU, under a Council Configuration, nonetheless decided on the launch of an

    observatory mission aimed at identifying threats to security. 97 The European

    Commission acknowledged that a long-term foreign policy would be needed to

    address all the challenges and concerns leading eventually to a cooperation

    framework. 98 Having regard to the situation in which the criminal justice system

    operates and in spite of the non-pacified situation as well as the report of the scoping

    observatory mission, the EU and its member states decided in 2004 to make

    engagement in the civilian crisis management areas of police, rule of law and

    civilian administration as well as elections 99, the core objective of its foreign policy

    towards Iraq for the process of reconstruction and stabilisation. The EU made clear

    that the aim of these rule of law missions was to provide stability and the next

    governments with a prosperous democratic State. 100

    Building a rule of law system and eventually achieving peace and stability in Iraq

    should be seen as a long term undertaking that requires a long-term perspective and

    [] it is not something which can be accomplished in a year or two by a single actor

    alone. 101 The 2004 strategy paper for Iraq expressly delineates the EUs future action

    as being focused on building structural and long-term involvement in Iraq but,

    according to Youngs, the EU did so to avoid the short-term controversies. 102 That is

    95 European Commission, Communication from the commission to the Council and the European Parliament, the European Union and Iraq: A framework for engagement , Brussels, COM (2004) 417,Brussels, 9 June 200496 Richard Youngs, Europe and Iraq: From Stand-off to Engagement? CEPS Working Documents ,2004, p.1797 Council of the European Union, Council Joint Action on establishing an expert team with a view to a

    possible European Union integrated police, rule of law and civilian administration mission for Iraq ,15207/04, Brussels, 25 November 2004, p. 598 Commission, communication to European Parliament and Council , op. cit., 9 June 2004, p.699 Council of the European Union, Council conclusions General Affairs and External Relations C/04/251, press release 12068/04, Brussels September 13, 2004, p.10100

    Ibid.101 Christova, op. cit., 2013, p. 425102 Youngs, Europe and Iraq: From Stand-off to engagement? op. cit., 2004, p.6

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    to say the member states financial commitments and debt reliefs for Iraq. Having

    said that, agreement over budget pledges were found rather painfully at the 2003

    Madrid Donor Conference where the EU and its member states pledged a budget of

    ! 1.25 billion for Iraq (including ! 200 million for state reconstruction and ! 100

    million for humanitarian aid). 103 The EUs overall contribution is substantively higher

    when it includes the writing off of 80% of debt, deemed odious 104 , to several

    member states (particularly France and Germany). 105

    103 Council of the European Union, Launching of EUJUST LEX ESDP Integrated rule-of-Law Mission for Iraq, General Secretariat of the Council press office Brussels, June 2005, p.3104 Doctrine of international law introduced by Mohammed Bedjaoui who defined an odious debt asany debt incurred for uses that contradict contemporary international law, particularly the principles ofinternational law incorporated in the UN Charter in United Nations, Ninth Report on Succession of

    States in respect of matters other than treaties , United Nations Doc. A/CN.4/301, 1977, p.70105 John Leicester (with Associated Press), Group Agrees to Reduce Iraqi Debt , The Washington Post, November 22, 2004, p. A4

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    Chapter 6. The EUs promotion in Iraq: Policies andoutcomes

    This chapter examines the transposition of the strategies and objectives of the EU into

    instruments and budgets (6.1), it follows an analysis of the extent to which these are

    implemented (6.2) as well as their outcomes (6.3). The last sub-chapter presents the

    latest input of the EU towards Iraq that is the EUs Regional Strategy for Iraq and

    Syria and offers a comparative analysis of it with the previous policies engaged by the

    EU hitherto (6.4).

    6.1. Instruments and budgets

    CSDP Mission EUJUST LEX

    The EUs first and main foreign policy commitment in Iraq was an intergovernmental

    CSDP Mission EUJUST LEX designed to strengthen the rule of law in Iraq while

    maintaining a focus on Human Rights. The Council Joint Action 2005/190/CFSP

    initially foresaw a budget of ! 10 million/year and for a period of sixteen months.

    Amended every year, the mission ended in December 2013 with the budget reaching a

    total of 117,350,000 EUR. 106 The core aspect of this mission was to provide training

    activities and courses to Iraqi officials in view of supporting the democratic transition

    in Iraq. For the first time in a rule of law mission, the EU undertook an integrated

    approach meaning that it aimed at reforming the police, penitentiary and justice

    sectors through a single mission. 107

    Rule of law through technical assistance programmes

    The input of the EU in international assistance commenced in 2003 and programmes

    were repeated every year with greater contribution from the EU side. In 2011, the

    overall EU budget for reconstruction assistance represented 867.2 million EUR. In the

    106 Calculation made from the following Council decisions: 2005/190/CFSP (7 March 2005); 2006/708/CFSP (17 October 2006), 2007/760/CFSP (22 November 2007); 2008/480/CFSP (23 June2008); 2009/475/CFSP (16 June 2009); 2010/330/CFSP (14 June 2010); 2011/170/CFSP (21 March2011); 2012/372/CFSP (10 July 2012)107

    Guido Steinberg, The European Union Integrated Rule of Law Mission for Iraq (EUJUST LEX): APolicy Surrogate with Potential. in Asseburg, M. & Kempin, R. (ed.), The EU as a Strategic Actor inthe Realm of Security and Defence? SWP Research Paper Berlin (2009), p.125 and p.129

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    field of rule of law, reconstruction assistance took place in the form of successive

    short-term programmes. Unlike the CSDP mission, the assistance programme is

    carried out through a multilateral United Nations initiative. 108 The European

    Commission supported the 2007 rule of law programme in Iraq by contributing to

    ! 14m. The UNDP, UNOPS and the UN mission for Iraq (UNAMI) hold

    responsibility for the management and the implementation of this programme. This

    programme is aimed at creating conditions necessary for national reconciliation,

    reconstruction and development efforts through the rule of law. 109 The EUs

    contribution to the development of civil society organisations (CSOs) took place

    through the European Instrument For Democracy and Human Rights (EIDHR),

    instrument known for its developmental approach 110 on Rule of Law, Human Rights

    and Democracy promotion. It is now fully part of the 2007 multilateral framework

    rule of law assistance and the EU regularly uses this instrument to implement its

    projects with the involvement of CSOs. 111

    Furthermore, in 2007 the EU introduced the Development Cooperation Instrument

    (DCI). Under this instrument the European Commission launched in December 2008

    a series of eight special measures for Iraq for a period of four years with a budget of

    72.6m ! . 112 It includes a special scheme for technical assistance to the Iraqi

    institutions, which represent 15 per cent of the total DCIs budget for Iraq, and is

    designed to reinforce the democratic accountability of the Iraqi administration and

    government. This is because three years after the entry into force of the Constitution,

    the Iraqi institutions remained fragile especially with regard to the difficulty of setting

    up a proper judicial review system. 113

    108

    European External Action Service, Delegations of the EU to Iraq, EU Assistance for 2007, EEASwebsitehttp://eeas.europa.eu/delegations/iraq/eu_iraq/tech_financial_cooperation/overview/eu_assistance_2007/index_en.htm (Last accessed 10 July 2015)109 European Commission (DG DEVCO), Action fiche for Iraq, Europa website, 2007, p.1https://ec.europa.eu/europeaid/sites/devco/files/aap-financial-support-to-the-rule-of-law-and-justice-iraq-af-2007_en.pdf 110 Fonck, Op. cit., 2013, p. 26111 European Commission (DG RELEX), EU Joint Strategy Paper for Iraq 2011-2013, European

    External Action Service database , 2011, p.18112 European External Action Service, Delegation of the EU to Iraq, Support to Governance, Electoral

    Process, and Human Rights, delegation of the EU to Iraq, EEAS Websitehttp://eeas.europa.eu/delegations/iraq/eu_iraq/tech_financial_cooperation/gephr/index_en.htm 113

    European Commission , Iraq: Technical Assistance to Iraqi Institutions annexe 1, Action fiche forthe Republic of Ira q, Europa Website, 2008, p.1http://ec.europa.eu/europeaid/documents/aap/2008/af_aap-spe_2008_irq.pdf

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    Bilateral and cooperation agreement

    As foreseen in the initial European Commission long-term project for the republic of

    Iraq, the EU concluded a Partnership and Cooperation Agreement (PCA), which

    followed the conclusion of the Memorandum of Understanding on Energy. Itstipulates that the parties shall attach particular importance to the principle of the

    rule of law, including the independence of the judiciary, access to justice, and the

    right to a fair trial. 114 As encroaching on the EU member states competences, the

    agreement is currently under ratification processes but is nonetheless provisionally

    applied. It formalizes the EU-Iraq financial and technical commitments undertaken

    since 2003 and opens the door for a structural and steady political dialogue over the

    long term.115

    Regarding the cooperation in the area of justice, freedom and security(Title IV of the agreement), the PCA foresees a cooperation framework concerning

    the fight against organised crime and interestingly, cultural and regional cooperation

    is inserted within the same title in Articles 109 and 110.

    6.2. Implementation

    The involvement of a great number of actors created some trouble in the

    implementation of policies as multiple projects designed to reconstruct justice in Iraq

    [are] often compete with each other. 116 A problem has arisen regarding the

    expenditure of the Iraqi government in the field of state reconstruction. According to

    the U.S. Government Accountability office (GAO), the financial pledges of the

    international community designed for reconstruction efforts are part of the Iraqi

    national budget but not fully spent by the Iraqi Ministries. 117

    The training activities under the civilian EUJUST LEX mission, the most important

    project of the European Union in Iraq in terms of budget, were initially held in the

    territory of the EU member states and in other states of the MENA region due to the

    unstable security situation in Iraq until 2010. These activities took place in the form of

    114 European Union, Partnership and Cooperation between the European Union and its Member States,of the one part, and the Republic of Iraq, of the other part, Article 102 , O.J., 31 July 2012115 Chantal Guittet, rapport No 2254 et No 2255 sur laccord de partenariat entre lunion europenneet la rpublique dIrak, Assemble Nationale, October 8, 2014, p.8116 Cyndi Banks, Reconstructing Justice in Iraq : Promoting the Rule of Law in a Post- Conflict State,

    Hague Journal on the Rule of Law , 2010, p.156117

    United States, Government Accountability Office, Securing, stabilizing and rebuilding Iraq: GAO Audits and Key Oversight Issues , report October 30, 2007, GAO Websitehttp://www.gao.gov/highlights/d08231thigh.pdf (Last Accessed 21 July 2015)

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    courses on a wide range of legal issues (prisoner classification, international judicial

    cooperation, pre-trial detention management etc. 118 ) Despite its integrated approach

    with the purpose of enforcing a culture of Human Rights in Iraq 119 , the mission was

    not a shining example of comprehensiveness as the mission set aside the civil society

    confirming the top-down nature of the CSDP. 120 It results that it neglected the societal

    and individual levels when being implemented. It was only in 2010 that the Council

    approved the organisation of the trainings of Iraqi officials in the police, judiciary and

    penitentiary sectors in the cities of Erbil, Basra and Erbil. 121 Located in the Kurdish

    region of Iraq, the city of Erbil was a strategic place to set up a rule of law mission

    but regretfully it did not include the participation of the civil society since the mission

    was solely designed for Iraqi officials. Many are the scholars such as Christova who

    argue that these officials are the people who can provide a new vision and incentives

    for a change in terms of mentality and culture. 122 This statement, although not

    entirely wrong, reinforces the idea that a top-down approach suffices to reach Public

    acceptation over foreign policy incentives. However, while the EU expressed an

    interest in collaborating with civil society organisations under the EUJUST LEX

    framework, 123 this was never transposed into concrete action. It was also pointed out

    that the training operations efficiency was limited as the courses were out-of-date

    and archaic, 124 and did not take into account the trainings provided by CPA from

    2003 and the start of the EU mission in 2005. EU officials in charge of these training

    had little knowledge about the Iraqi procedural system and little knowledge about the

    Iraqi Arabic legal terminology which differ from other Arab countries. 125 Those from

    common law countries faced difficulties in understanding the civil law aspects of the

    118 Full list is available on European External Action Service, CSDP Missions and Operations, EU

    JUST LEX IRAQ , EEAS Website http://www.eeas.europa.eu/csdp/missions-and-operations/eujust-lex-iraq/news/index_en.htm (Last accessed 22 July 2015)119 European External Action Service, EUJUST LEX-Iraq Mission Factsheet , EEAS website, January2010, p.1 http://www.eeas.europa.eu/csdp/missions-and-operations/eujust-lex-iraq/pdf/facsheet_eujust-lex_iraq_en.pdf 120 Catriona Gourlay, the politics of EU civilian interventions and Strategic Deficit of CSDP EUCrisis management Papers Series , 2012, p.23121 Alina Christova op. cit., 2013, p.434122 Ibid. p. 436123 Wanda Troszczynska-van Genderen, Human rights challenges in EU civilian crisis management:the cases of EUPOL and EUJUST LEX, European Union institute for Security Studies occasional

    paper 84 , 2010, p.25124 Daniel Korski, EU JUST LEX (Iraq ) in Giovanni Grevi, Damien Helly and Daniel Keohane

    (editors) European Security and Defence Policy the first 10 years (1999-2009), EU institute forSecurity studies, 2009, p.237125 Judge Zuhair Al-Maliki interview

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    Iraqi law and some with stronger knowledge of civil law systems found at their arrival

    in Iraq that the civil law system was only applied to in criminal procedure. 126

    Critically, in spite of the Iraqi Expert Teams recommendations, the mission never

    provided the guarantee that trained officials were given compatible instructions. 127

    The two funding instruments, namely the DCI and the EIDHR undertook a rather

    bottom-up approach in financing individual specific rule of law projects.

    Nevertheless, the EU faced difficulties in monitoring and assessing the impacts of the

    funded projects. 128 Until 2010, successive Iraqi NGO monitoring laws prohibited

    foreign organizations (including the EU) from financing Iraqi CSOs and members of

    a improperly registered NGOs could face up to 3 years imprisonment sentence. 129

    After the entry into force of the new Iraqi NGO Law in March 2010, the situation has

    significantly improved for NGOs as the main regulatory barriers have been removed.

    Some difficulties nonetheless persisted such as the requirement to register and

    organisations such as UNOPS in charge of monitoring the implementation of

    projects have spent a lot of time and efforts helping NGOs to understand how the

    registration process works. 130

    6.3. Outcomes

    If the EU, for reasons we may understand, presents the CSDP rule of law mission as a

    success, scholars and member states decision-makers are more critical. They

    emphasize, for instance, the lack of transparency regarding the achievement of the

    mission as well as the absence of preparation to foster the transition to local

    ownership. 131 In terms of scope this mission was rather successful as more than 4,800

    criminal justice officials have participated to the training activities. 132 However, the

    poor quality of the trainings and the absence of universal agreement on to what

    126 Ibid.127 Korski op. cit., 2009, p.238128 Troszczynska-van Genderen op. cit., 2010, pp.17-18129 The international center for not-for-profit law, NGO Law Monitor: Iraq, websitehttp://www.icnl.org/research/monitor/iraq.html (last Accessed July 22, 2015)130 European External Action Service, Helping NGOs in Iraq get to wor k, press release, May 18, 2011,EEAS Websitehttp://eeas.europa.eu/delegations/iraq/documents/press_corner/news_2011/18052011_press_release_helping_ngos_to_work_en.pdf (last accessed July 22 2015)131

    House of Commons, Fifth report of Session 2013-14, European Scrutiny Committee , TSO, 2013, p.57132 Christova op. cit., 2013, p.433

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    extent Human Rights should be promoted within CFSP operations 133 have limited the

    qualitative efficiency of the mission. Also, the fact that some missions in the

    beginning occurred in Europe rendered the training particularly attractive for Iraqi

    officials and participants were chosen by Iraqi governments on the basis of their

    accomplishments (i.e. in the form of rewards). 134 The importance of shaping mental

    structures was exclusively addressed to elites neglecting disadvantaged and

    marginalized groups. 135 Furthermore the hierarchical Iraqi structure and the

    willingness of former PM Nouri Al-Maliki to concentrate all powers in the state

    impeded officials with good intentions from effectively implementing them as they

    were subject to direct orders from their ministries. Discriminatory detention without

    being provided a reason is still frequent in Iraq. In July 2011, the Republic of Iraq the

    Convention Against Torture (CAT) but in practice Human Rights are considered to

    impede the functioning of the justice system and as such, pressure to extract

    information from suspects is just a fact in Iraq. 136 Torture practices perpetrated by

    the Iraqi government have a devastating impact on civil society as torturers break the

    bonds of trust between individuals and communities, and prevent citizens from

    effectively seeking redress against their government 137 .

    A diminution of violence between 2009 and 2012 was noticed in Iraq. However, the

    influence of the Syrian crisis together with the sectarianism of PM Al-Maliki has

    worsened the security situation in Iraq transforming it into a civil war. The EU and

    other international actors involved in Iraq have not been successful in addressing the

    roots of religious tension. It is difficult regarding the non-interference principles, to

    oppose the political will of local governments when they become an obstacle to

    structural reforms. This raises the question of whether Iraqi executive power from

    2006 to 2014 had acknowledged the necessity to be bound by the law. Stepping up

    repression, arbitrary detentions, and sectarianism for counter-terrorism purposes have

    worsened the security situation. However is neither realistic nor desirable to envisage

    133 Troszczynska-van Genderen op. cit., 2010, p.9134 Nougein op. cit., 2015, p.21135 Banks, op. cit., 2010, p.169136 Ibid.137 Heartland Alliance International, strengthening the rule of law in Iraq, implementation of the

    convention against torture (CAT) in Iraq, HAI websitehttp://www.heartlandalliance.org/international/wherewework/project-pages/iraq-strengthening-rule-of-law.html (last accessed July 24, 2015)

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    the use of restrictive measures to force Iraqs executive power to accept the EUs

    principles. There is nonetheless a gap between condemning a governments behaviour

    and supporting its counter-terrorism objectives by all means. When reading official

    declarations, it is perceivable that the EU had difficulties positioning itself between

    the necessity of enforcing the rule of law principles in Iraq and supporting the

    government to overcome security challenges. 138 There is an important part of the Iraqi

    Human Rights defenders wishing to combine counter-terrorism strategies with the

    respect of international Human Rights law. This surely has to be done without

    undermining the role of local knowledge, Iraqi legal traditions, and excluding a mere

    top-down approach.

    The EUs footprint in the improvement in the rule of law sector is nonetheless clearly

    visible in some areas particularly with regard to the penitentiary facilities where

    detainees now have access to employment and the right to visit granted to family

    members. Before Husseins regime collapsed, the Iraqi police were in the lower rank

    of the security forces, they are now better equipped and trained across the country in

    six regional centres. 139 However many security officials regularly join Daesh forces as

    they provide better wage conditions than the ones offered to work under the authority

    of the Iraqi government. Even if corruption is still happening in Iraq, the

    independ