Legal Anthropology On The Battlefield: Cultural Competence In U.S. Rule Of Law Programs In Iraq

by Shakes, David L., M.J.S., University of Nevada, Reno, 2015, 101; 1600000

Summary

This research is the first exploratory survey of rule of law officials in Iraq. Prior to this research, little has been done to examine whether U.S. rule of law efforts in Iraq were informed by a proper knowledge of the culture and criminal justice systems of Iraq and whether the U.S. learned lessons over time.

This research demonstrates that understanding of the indigenous legal and social culture is critical to the success of rule of law programs, that there are distinctive characteristics of the legal culture in Iraq, and that the rule of law programs of the U.S. in Iraq were not informed by an adequate understanding of the culture of Iraq. The author concludes that a new paradigm – Enablement Plus – is necessary if the U.S. is to improve the chances of success for rule of law programs during and immediately after conflict.

Indexing (document details)

Advisor: Richardson, James T.
Commitee: Rosen, Lawrence, Folsom, Christine
School: University of Nevada, Reno
Department: Judicial Studies
School Location: United States — Nevada
Source: MAI 55/02(E), Apr 2017
Source Type: DISSERTATION
Subjects: Cultural anthropology, Law, Near Eastern Studies, International law
Keywords: Counter insurgency, Cultural competence, Iraq, Law and development, Legal anthropology, Rule of law
Publication Number: 1600000
ISBN: 9781339075310

Abstract

The U.S. spent hundreds of millions of dollars and lost many lives to improve the rule of law in Iraq from 2003 through 2013. Earlier rule of law efforts by the U.S. in postcolonial and post-Communist environments have been criticized for a lack of cultural competence and understanding among those charged with the rule of law mission. Did U.S. rule of law efforts in Iraq suffer from the same lack of cultural competence? This research is the first exploratory survey of rule of law officials in Iraq.

Despite over a decade of effort and millions of dollars spent on rule of law and civil society programs in Iraq, little has been done to examine whether our rule of law efforts in Iraq were informed by a proper knowledge of the culture of Iraq and whether we learned lessons over time. This research begins that examination. This research demonstrates that understanding of the indigenous legal and social culture is critical to the success of rule of law programs, that there are distinctive characteristics of the legal culture in Iraq, and that the rule of law programs

This research demonstrates that understanding of the indigenous legal and social culture is critical to the success of rule of law programs, that there are distinctive characteristics of the legal culture in Iraq, and that the rule of law programs of the U.S. in Iraq were not informed by an adequate understanding of the culture of Iraq.

The author concludes that a new paradigm is necessary if the U.S. is to improve the chances of success for rule of law programs during and immediately after conflict.

Extracts

The U.S. spent hundreds of millions of dollars and lost many lives to improve the rule of law in Iraq from 2003 through 2013. Earlier rule of law efforts by the U.S. in postcolonial and post-Communist environments have been criticized for a lack of cultural competence and understanding among those charged with the rule of law mission. Did U.S. rule of law efforts in Iraq suffer from the same lack of cultural competence? Until September 11, 2001, promoting the rule of law abroad was important to the U.S., but not vital to national security interests. Since September 11, 2001 promoting the rule of law abroad, particularly in Islamic countries, has become vital to our national security (“The National Security Strategy of the United States,” 2002). Promoting the rule of law at the strategic level is now considered a way to prevent social conditions that foster terrorism (“USAID Strives to Minimize Conditions That Foster Terrorism,” 2003). At the operational level, promoting the rule of law in mid-conflict and post-conflict societies is critical to restoring security and defeating an insurgency (“Field Manual 3- 24,” 2006). In Iraq promoting the rule of law was a key component of U.S. foreign policy since the overthrow of the Saddam Hussein regime. Improving the rule of law in Iraq was a critical “line of operation” of the Joint Campaign Plan for Iraq developed by Ambassador Crocker and General Petraeus (Chesney, 2011). T

Until September 11, 2001, promoting the rule of law abroad was important to the U.S., but not vital to national security interests. Since September 11, 2001 promoting the rule of law abroad, particularly in Islamic countries, has become vital to our national security (“The National Security Strategy of the United States,” 2002). Promoting the rule of law at the strategic level is now considered a way to prevent social conditions that foster terrorism (“USAID Strives to Minimize Conditions That Foster Terrorism,” 2003). At the operational level, promoting the rule of law in mid-conflict and post-conflict societies is critical to restoring security and defeating an insurgency (“Field Manual 3- 24,” 2006). In Iraq promoting the rule of law was a key component of U.S. foreign policy since the overthrow of the Saddam Hussein regime. Improving the rule of law in Iraq was a critical “line of operation” of the Joint Campaign Plan for Iraq developed by Ambassador Crocker and General Petraeus (Chesney, 2011). T

At the operational level, promoting the rule of law in mid-conflict and post-conflict societies is critical to restoring security and defeating an insurgency (“Field Manual 3- 24,” 2006). In Iraq promoting the rule of law was a key component of U.S. foreign policy since the overthrow of the Saddam Hussein regime. Improving the rule of law in Iraq was a critical “line of operation” of the Joint Campaign Plan for Iraq developed by Ambassador Crocker and General Petraeus (Chesney, 2011).

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Even more strikingly, it is difficult to overstate the damage done to the legitimacy of America’s mission in Iraq caused by the pictures emanating from the U.S. detention facility at Abu Ghraib (Stromseth, 2008, p. 1462). Muslim cultures value physical modesty, reputation, and confidentiality. Islamic notions of privacy that have a basis in the Koran include practicing physical modesty, preventing public dissemination of unflattering personal information, and maintaining confidentiality (Reza, 2009, pp. 792- 795).

Although modesty required of Arab women is well known, modesty required of Arab males is not well known even though it is a widespread cultural practice (Baker, 2003, p. 85). The images of an American female in a t-shirt lording over a pile of naked Muslim men violated Iraqi cultural sensitivities and thereby damaged the legitimacy of the American mission. My personal experience in reviewing hundreds of Iraqi detainee files is that the Abu Ghraib images were well known even to detainees who were illiterate and from the most remote villages.

These images were cited by many as motivation for participating in the “resistance against American occupation.” Photographs of prisoner mistreatment were widely broadcast on Al Jazeera and used by enemies of the U.S. as proof of lack of respect for Iraqi culture and the rule of law (Jackson, 2005). The affront to Iraqi cultural norms was so great that one author suggests the Abu Ghraib scandal and its handling by the U.S. sounded the death knell for the legitimacy of the U.S.- led occupation and its claims regarding the rule of law (Bali, 2005, p. 467, fn 114).

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The most notorious event in post-Saddam Iraq might well have been the most egregious rule of law cultural misstep. Bassiouni and Hanna (2006-2007, pp. 24-27) argue that the creation of a special criminal court to try Saddam Hussein was an illadvised attempt to blend two distinct legal systems (American and Iraqi) into a single specialized institution.

They assert that Iraqis viewed the trial as ineffective and illegitimate because the hybrid legal procedures did not reflect Iraqi legal traditions and introduced foreign (American) procedures into their courts. They place the blame on “occupation authorities who exhibited little interest in Iraqi culture or society” and on Department of Justice authorities who “had limited knowledge of the Iraqi legal system or its culture and traditions” (Bassiouni & Hanna, 2006-2007, pp. 24-27).

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Although much of the literature analyzes rule of law programs in under-developed countries, rule of law programs in middle-income countries suffer from the same “Cookie Cutter Syndrome.”

In his analysis of rule of law programs in middle income countries, Peerenboom (2010) found that one of the key causes for project failure was the implementation of programs that were not tailored to the particular circumstances of the target country. Peerenboom (2010, p.102) concludes that “most development agencies continue to prescribe “off the shelf” blueprints, offering developing countries a checklist of international best practices based on summary reports of lessons learned from failed programs in the past.

The review of past efforts at rule of law development has caused at least one commentator to observe that outsiders can have only minimal influence on rule of law development within a country due to the “Connectedness of Law Principle.” This principle states that law reflects so much of a country’s history, culture, political and economic systems, religion, ethnic composition, and language- that outsiders can have little influence (Tamanaha, 2011).

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Analysis of Arab culture concerning the Hierarchy/ Egalitarian dimension is somewhat more complex. This dimension concerns the ideal way to elicit cooperative, productive activity in a society. Hierarchy refers to cultural emphasis on obeying role obligations within a legitimately unequal distribution of power, roles, and resources. Egalitarianism refers to an emphasis on transcendence of selfish interests in favor of voluntary commitment to promoting the welfare of others whom one sees as moral equals.

Although Arab culture cannot be readily categorized within this dimension, understanding the characteristics of the culture that defy categorization in this dimension is instructive for the rule of law practitioner. Some authors and studies conclude that Arab culture is hierarchal. Hofstede has indicated that hierarchical relationships are a salient factor in organizational conflicts in Arab countries (Buda & Elsayed-Elkhouly, 1998, p. 488).

Al-Omari advises that Arab culture exhibits all the key features of high power distance (hierarchical) cultures where bureaucracies are plagued with numerous layers and power brokers, and where exclusive privileges and perquisites are expected for those at the top (Al-Omari, 2008, p. 33). While decision-making within the Arab world may well exhibit the attributes described above, both Rosen and Lindholm identify a contradictory component of Arab culture- ambivalence to authority.

Lindholm quotes the Arab proverb: “Deference is humiliating, to whomever one defers, and all yokes, however slight, are too heavy to bear with honor” (Lindholm, 2002, p. 269). Rosen observes that ambivalence to power and ambivalence generally are key components of Arab culture. Essential to understanding Arab culture, as Rosen (2004, p.31) notes, is the concept that the inter-connected web of negotiated relationships in numerous social and political relationships defines a man.

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