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The Ethics of Lustration

Published online by Cambridge University Press:  25 March 2011

Jens Meierhenrich
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Abstract

One of the most important challenges for the occupation of Iraq has been making decisions about the status of people who were either responsible for or who passively benefited from the regime's past injustices. But how should such people—in this case, members of the Baath Party—be dealt with? And how have they been dealt with under the U.S. occupation? Although lustration is just one of many institutions of jus post bellum, it is arguably one of the most important. The pursuit of administrative justice affects the reconstitution of the public sphere—literally and figuratively—in more fundamental ways than most other institutions of transitional justice. Yet our understanding of the ethics of occupation in the twenty-first century continues to be incomplete, and ethical principles are needed for guiding and clarifying how occupations may justly be carried out and for establishing a legitimate role for international morals in the conduct of peace. This article develops three such principles for guiding the practice of lustration, and argues that they have been widely flouted during the occupation of Iraq. This is problematic from the perspective of jus post bellum, for to paraphrase Michael Walzer's argument in Just and Unjust Wars, the restraint of peace is the beginning of peace.

Type
Special Section on Justice after War
Information
Ethics & International Affairs , Volume 20 , Issue 1 , March 2006 , pp. 99 - 120
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2006

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References

1 The term public office, as understood herein, encompasses all forms of public employment. Holders of public office, in this sense, range from bureaucrats to educators to soldiers.

2 See, for example, Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000), pp. 149–89; and Bruce Ackerman, The Future of Liberal Revolution (New Haven: Yale University Press, 1992), pp. 69–98. On the nexus between lustration and occupation, see, for example, Carl J. Friedrich, ed., American Experiences in Military Government in World War II (New York: Rinehart, 1948); and Clemens Vollnhals, Entnazifizierung: Politische Säuberung und Rehabilitierung in den vier Besatzungszonen 1945–1949 (Munich: DTV, 1991).

3 Article 43, Regulations Respecting the Laws and Customs of War on Land, annex to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, as reproduced in Adam Roberts and Richard Guelff, eds., Documents on the Laws of War, 3rd ed. (Oxford: Oxford University Press, 2000), pp. 80–81.

4 Eyal Benvenisti, The International Law of Occupation, 2nd ed. (Princeton: Princeton University Press, 2004), p. 166; and Sassòli, Marco, “Legislation and Maintenance of Public Order and Civil Life by Occupying Powers,” European Journal of International Law 16,no. 4 (2005),p.662CrossRefGoogle Scholar. See also Chesterman, Simon, “Occupation as Liberation: International Humanitarian Law and Regime Change,” Ethics & International Affairs 18,no. 3 (2004), pp.51–64.CrossRefGoogle Scholar

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6 Marco Sassòli, “Legislation and Maintenance of Public Order and Civil Life by Occupying Powers,” p. 664.

7 See Schwenk, Edmund H., “Legislative Power of the Military Occupant under Article 43, Hague Regulations,” Yale Law Journal 54,no. 2 (1944/1945), pp.393–416CrossRefGoogle Scholar. On the dimensions of necessity, see Yoram Dinstein, Legislation under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, Occasional Paper, Program on Humanitarian Policy and Conflict Research, Harvard University, Fall 2004, pp. 6–8.

8 Marco Sassòli, “Legislation and Maintenance of Public Order and Civil Life by Occupying Powers,” p. 671.

9 Article 64, 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, as reproduced in Roberts and Guelff, eds., Documents on the Laws of War, p. 322. It is important to point out, giventhe changing character of the international law of occupation, that most international lawyers consider the provisions contained in the Fourth Geneva Convention, especially Article 64, and the 1977 Additional Protocol I to the Geneva Conventions, lex specialis in relation to Article 43 of the Regulations Respecting the Laws and Customs of War on Land, annexed to the Fourth Hague Convention. For this interpretation, see Yingling, Raymund T. andGinnane, Robert W., “The Geneva Conventions of 1949,” American Journal of International Law 46,no. 3 (1952),p.422CrossRefGoogle Scholar. More recently, see also Sassòli, “Legislation and Maintenance of Public Order and Civil Life by Occupying Powers,” p. 664.

10 S.C. Res. 1483, U.N. SCOR, 4761th Meeting, U.N. Doc. S/RES/1483 (May 22, 2003). The term “heavily involved regulator” is Benvenisti's. See his The International Law of Occupation, p. xi.

11 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War.

12 Benvenisti, The International Law of Occupation, p. xi.

13 Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998).

14 Teitel, Transitional Justice, p. 150.

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24 John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 454.

25 Bass, “Jus Post Bellum,” p. 390.

26 Onora O’Neill, Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge: Cambridge University Press, 1996), p. 167.

27 Noah Feldman, What We Owe Iraq: War and the Ethics of Nation Building (Princeton: Princeton University Press, 2004), p. 28.

28 For an overview of the debate, see Orentlicher, Diane F., “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” Yale Law Journal 100,no. 8 (1991), pp.2537–2615CrossRefGoogle Scholar. For a critical reply, see Nino, Carlos S., “The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina,” Yale Law Journal 100,no. 8 (1991), pp.2619–640.CrossRefGoogle Scholar

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30 Ibid.

31 Ibid., p. 1.

32 Ibid., p. 262.

33 Rawls, The Law of Peoples, p. 96.

34 I take size to refer to the number of persons affected by jus post bellum, and shape to the substance of jus post bellum.

35 See Judith Shklar, “The Liberalism of Fear,” in Nancy L. Rosenblum, ed., Liberalism and the Moral Life (Cambridge: Harvard University Press, 1989), pp. 21–38; and Judith N. Shklar, Legalism: Law, Morals, and Political Trials (Cambridge: Harvard University Press, 1964).

36 Rawls, The Law of Peoples, p. 101.

37 For a related argument, see Richard J. Arneson, “Democracy is Not Intrinsically Just,” in Keith Dowding, Robert E. Goodin, and Carole Pateman, eds., Justice and Democracy: Essays for Brian Barry (Cambridge: Cambridge University Press, 2004), p. 55.

38 Amy Gutmann and Dennis Thompson, Why Deliberative Democracy? (Princeton: Princeton University Press, 2004), p. 4.

39 Rawls, The Law of Peoples, p. 102.

40 Neil MacDonald, “Baathist Purge May Stall Hussein Trial,” Christian Science Monitor, July 28, 2005, p. 6. See also Sameer N. Yacoub, “Staff Members of Saddam Tribunal Dismissed for Links to Baath Party,” Associated Press, July 20, 2005.

41 Karen de Young and Peter Slevin, “Full U.S. Control Planned for Iraq,” Washington Post, February 21, 2003, p. A1.

42 Ibid.

43 Ibid.

44 Yaphe, Judith S., “Reclaiming Iraq from the Baathists,” Current History 103,no. 669 (2004),p.13.Google Scholar

45 Peter Slevin, “U.S. Bans More Iraqis from Jobs; Move Called Necessary to Purge Party Members,” Washington Post, May 17, 2003, p. A1.

46 As quoted in ibid.

47 Stephen Farrell and Catherine Philp, “Baathists Banned from Jobs in US Policy U-Turn,” Times (London), May 17, 2003, p. 21; Steve Kirby, “US Takes Aim at Baathists, Backs Away from Government Deadline,” Agence France Press, May 17, 2003.

48 Kirby, “US Takes Aim at Baathists, Backs Away from Government Deadline.”

49 David L. Phillips, Losing Iraq: Inside the Postwar Reconstruction Fiasco (Boulder: Westview, 2005), p. 147.

50 Slevin, “U.S. Bans More Iraqis from Jobs; Move Called Necessary to Purge Party Members.”

51 Kirby, “US Takes Aim at Baathists, Backs Away from Government Deadline.”

52 Slevin, “U.S. Bans More Iraqis from Jobs; Move Called Necessary to Purge Party Members.”

53 Ibid.

54 Sections 1(2) and 1(3), Coalition Provisional Authority Order Number 1, “De-Baathification of Iraqi Society,” CPA/ORD/16 May 2003/01.

55 See, for example, Edward Wong, “U.S. Relaxes Its Policy on Baath Exclusion,” International Herald Tribune, April 24, 2004, p. 5; Stephen Farrell, “Baathist Officials In from Cold as US Does U-Turn,” Times (London), April 24, 2004, p. 19; and Sammy Ketz, “Scores of Baathists Could Make Come Back after Chalabi-Coalition Row,” Agence France Press, May 21, 2004.

56 Larry Diamond, Squandered Victory: The American Occupation and the Bungled Effort to Bring Democracy to Iraq (New York: Times Books, 2005), pp. 271–72.

57 David Ignatius, “Adjusting to Reality in Iraq,” Washington Post, September 30, 2003.

58 As reported in Diamond, Squandered Victory, p. 272.

59 Phillips, Losing Iraq, p. 153.

60 Diamond, Squandered Victory, p. 272. On relations between Sunni and Shiites in the context of the U.S. occupation more generally, see Dawisha, Adeed, “Democratic Institutions and Performance,” Journal of Democracy 16, no. 3 (2005), pp. 35–49CrossRefGoogle Scholar; and al-Rahim, Ahmed H., “The Sistani Factor,” Journal of Democracy 16, no. 3 (2005), pp. 50–53.CrossRefGoogle Scholar

61 Ibid.

62 As quoted in Eric Schmitt, “U.S. Generals Criticize Ban on Employing Ex-Baathists,” International Herald Tribune, April 21, 2004, p. 4.

63 As quoted in Robin Wright, “U.S. Moves to Rehire Some from Baath Party, Military,” Washington Post, April 22, 2004, p. A1. Emphasis added.

64 Phillips, Losing Iraq, p. 153.

65 “US Bars Baath Chiefs from Iraqi Posts, as Clerics Plays Islamist Card,” Agence France Press, May 17, 2003. On the higher estimate, see Tim Reid, “US Decree Dissolves Saddam's Military Structures,” Times (London), May 24, 2003, p. 23.

66 Coalition Provisional Authority Order no. 2 (and annex), “Dissolution of Entities,” CPA/ORD/23 May 2003/02. Note that Coalition Provisional Authority Order no. 34, “Amendment to Coalition Provisional Authority Order no. 2 (CPA/ORD/23 May 2003/02),” CPA/ORD/25 May 2003/05, rescinded the CPA's dissolution of the Board of Supreme Audit, which had been included in the Annex of Coalition Provisional Authority Order no. 2.

67 Yaphe, “Reclaiming Iraq from the Baathists,” p. 13. This came in addition to an estimated 200,000 “full” members of the Baath Party who had been ordered to surrender themselves following Coalition Provisional Authority Order no. 1.

68 James Fallows, “Blind into Baghdad,” Atlantic Monthly (January/February 2004), p. 74.

69 Patrick Cockburn, “Rumsfeld Warns Iraqi Regime Not to Purge the Allies,” Independent (London), April 13, 2005, p. 29. See also Ahmed S. Hashim, “Iraq's Chaos: Why the Insurgency Won't Go Away,” Boston Review (October/November 2004).

70 Quoted in Jon Lee Anderson, “Out on the Street,” New Yorker, November 15, 2004, p. 73.

71 Ibid.

72 Doug Struck, “‘My Hands Are Not Stained with Blood’: Civil Servants Ousted as Baathists Decry Treatment, Become Issue for New Government,” Washington Post, February 3, 2005, p. A21.

73 “Dangers of the Inquisition,” The Economist, November 29, 2003.

74 As quoted in Pamela Constable, “Idled Iraqis Cry Foul Over Firings,” Washington Post, July 27, 2003, p. A16.

75 Kirby, “US Takes Aim at Baathists, Backs Away from Government Deadline.” On the utility of state institutions, see Jens Meierhenrich, “Forming States after Failure,” in Robert I. Rotberg, ed., When States Fail: Causes and Consequences (Princeton: Princeton University Press, 2004), pp. 153–69.

76 International Crisis Group, Reconstructing Iraq (Amman: International Crisis Group, 2004), p. 4.

77 Ibid., pp. 4–5.

78 Fallows, “Blind Into Baghdad,” p. 58.

79 Stover, Eric,Megally, Hanny, andMufti, Hania, “Bremer's ‘Gordian Knot’: Transitional Justice and the US Occupation of Iraq,” Human Rights Quarterly 27,no. 3 (2005),p.856.CrossRefGoogle Scholar

80 International Crisis Group, What Can the U.S. Do in Iraq? (Amman: International Crisis Group, 2004), p. 14.

81 Robert Jervis, The Logic of Images in International Relations (Princeton: Princeton University Press, 1970), p. 5.

82 Stinchcombe, “Lustration as a Problem of the Social Basis of Constitutionalism,” p. 262.

83 The original reads as follows, “The restraint of war is the beginning of peace.” Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977), p. 335.