By Richard Stacey, Assistant Professor, University of Toronto Faculty of Law, and Zaid Al-Ali, Senior Advisor on Constitution-Building, International Institute for Democracy and Electoral Assistance / Illustration by Michael Sloan

Illustration for op-ed about IraqFrom the Fall/Winter 2014 issue of Nexus.

The revolutions of the Arab Spring four years ago changed the political and constitutional shape of the Arab region. In the transitional period since then, a great deal of attention has been focused on structural questions such as the form of government (parliamentary, presidential, or semi-presidential?), on appointment procedures for judges (a judicial service commission, legislative confirmation, or executive nomination?), and on narrow questions of constitutional law (should the bill of rights contain a general limitations clause? By what procedure should a state of emergency be declared?). However, not much attention has been given to the reform of the security services that authoritarian regimes in Egypt, Libya and Tunisia relied on to suppress and undermine political opposition.

This may prove to be a costly mistake, and early indications bear this out. In Egypt, the military has secured influence in civilian government by co-opting the constitutional drafting process and crafting constitutional provisions that ensure military representation in executive government.[1] In Libya the total collapse of an organised and legitimate security sector has meant that the government elected in June 2014 now meets in a ferry docked in the port city of Tobruk, forced to flee Tripoli by militias loyal to an Islamist rump parliament.

The challenge is to reform the police, military and intelligence agencies from being tools of political repression into independent agencies accountable to a democratic and civilian government, while ensuring both that they remain effective in providing security and are shielded from manipulation or partisan abuse by the civilian government. Nowhere has this need been made more obvious than in Iraq, where the collapse of the Iraqi security services has contributed to the rapid and dramatic military success of the Islamic State (ISIS). The gutting of Saddam Hussein’s security services under Paul Bremner, the United States’ appointed Administrator of the Coalition Provisional Authority of Iraq, and the flawed constitutional and institutional reform process by which it was reconstituted, are largely to blame.

One of Bremner’s first acts was to disestablish virtually every security service in Iraq: CPA Order 2, 23 May 2003 dissolved the army, air force and navy, the Department of Border Enforcement, the police, customs police, emergency corps, Oil Field Police, the National Information and Investigations Agency, the Special Operations Forces and the Iraqi Intelligence Service. On 7 August 2003, CPA Order 22 established a new Iraqi army. Between 2003 and 2006, however, Iraq had no effective domestic security force, as US soldiers unable to communicate with Iraqis proved incapable of promoting law and order while Iraqis recruited to the hastily-formed Iraqi National Guard and under the command of Coalition forces refused to take action against fellow Iraqis. Militias roamed the streets, kidnapping Iraqis, extorting ransoms and terrorizing local communities.

Against the background of an already fragile security situation, Prime Minister Nouri Al-Maliki’s abuse of vague and ambiguous provisions in the 2005 Constitution between 2006 and 2014 served only to undermine the efficacy of the security services. Article 78 of the Constitution provides, with no further detail or explanation, that the Prime Minister is ‘the commander in chief of the armed forces’. Maliki relied on this position to circumvent the civilian chain of command, establishing the ‘office of the commander in chief’ as the institution to which the armed forces were ultimately accountable. At the same time, Maliki exploited the vagueness of Article 9, which did not explicitly require the establishment of a single, unified army, to create military units that were directly accountable to the Prime Minister. He appointed and dismissed senior military leadership as he wished. With the military at his beck and call and stacked with loyalists, Maliki has deployed the military as his preferred instrument of coercion. Military officers have opposed the reconstruction of a domestic police force in an effort to protect the privileges and opportunities for rents that Maliki’s regime has created for them.

By 2014, the leadership of the Iraqi military was shot through with corruption, and morale among the rank and file was low. Desertion rates were high: soldiers in about 60 out of Iraq’s 243 combat battalions could not be accounted for, and their equipment had gone missing. In June 2014, confronted with the ISIS offensive in Mosul, 30,000 Iraqi soldiers abandoned their posts in the face of an ISIS force 800 strong. Perhaps most telling, Maliki’s preference for Shiite military personnel and their operations in Sunni communities alienated Sunnis. Most of the management structure of ISIS’s current military organisation is drawn from among the officers of Saddam’s Sunni army.

This should serve as a warning to democracies emerging from authoritarian regimes. A constitutional and institutional structure that allows for easy partisan abuse or manipulation of the security services not only undermines the consolidation of democracy, allowing executive leaders to suppress opposition, recreate an environment of fear and re-consolidate political power in a single office, but also compromises the capacity of the security services to fulfil basic functions of peacekeeping and military defence. In all the recent and ongoing cases of constitutional transition – Egypt, Tunisia, Libya, Yemen, maybe one day Syria – it remains important to ensure both that the security services are shielded from partisan abuse and capable of guarding against insurgency.

[1] Article 201 of Egypt’s 2014 Constitution provides that ‘The Minister of Defence is the Commander in Chief of the Armed Forces and must be appointed from among its officers’. Article 234 provides that ‘The Minister of Defence shall be appointed upon the approval of the Supreme Council of the Armed Forces. The provisions of this article shall remain in force for two full presidential terms starting from the date on which this Constitution comes into effect.’