Starting over—the new Iraqi Code of Military Discipline

Army Lawyer, Sept, 2004 by Steve Cullen

Introduction

Operation Iraqi Freedom ended Saddam Hussein's regime and with it the Ba'ath party's control of the Iraqi government. To achieve the goal of eradicating the Ba'athist influence in Iraqi government institutions, the Coalition Provisional Authority (CPA) dissolved many government entities previously controlled by the Ba'athists, including the Iraqi Armed Forces. (2) Noting that United Nations Security Resolution 1483 (3) called for member states to assist the people of Iraq in order to contribute to the stability and security in their country, the CPA, on 18 August 2003, created an all volunteer Iraqi Army. (4) With the creation of a new Iraqi Army, commanders required a new discipline code to fill the gap created by the suspension of the old regime's military law. (5) To help maintain good order and discipline in the new Iraqi Armed Forces (IAF), (6) the CPA promulgated a Code of Military Discipline (Code) that was immediately applicable (7) to all IAF members. (8) Not surprisingly, the Code bears similarities to the American military justice system. This note describes the Code, comparing it with its American counterpart, and suggests possible improvements for a more complete, permanent Iraqi military law.

The Code details the jurisdictions and conditions under which IAF members may be prosecuted. It states that IAF members are subject to the Code from the date of attestation into the IAF until the date of termination of service. (9) Iraqi Armed Forces members also remain subject to the jurisdiction of the civilian courts, though they are immune from civil prosecution and liability "for acts or omissions arising within the scope of their duties and authorized operations." (10) These provisions have familiar counterparts in the American military justice system.

The Code also creates a substantive military criminal law and discipline system. The substantive law enumerates a number of military offenses, which are grouped into three categories. The first category, discussed in detail below, might be thought of as "true" military offenses, as they have no criminal counterpart in civilian society (e.g., absence without leave, disobeying lawful orders, and dereliction of duty). (11) The second category of military offenses is civilian criminal offenses. The Code adopts, by reference, the entire Iraqi civilian criminal code and re-labels the offenses as "military offenses." (12) The Code states that "[a]ny member of the Iraqi Armed Forces ... who commits a civilian criminal offense shall be guilty, by reason of so doing, of a Military Offense...." (13) The third and final category of military offenses is crimes or offenses against the law of war as adopted by Iraq or recognized as customary international law. (14)

In order to help Iraqi commanders maintain good order and discipline in their units, the Code, like the Uniform Code of Military Justice (UCMJ), incorporates a number of military offenses that have no counterpart in civilian society. (15) These offenses and their elements are set forth in CPA Order 23, Section 3, paragraph 1. The military offenses include the following:

(a) mistreatment of Members of the New Iraqi Army of inferior rank;

(b) causing or engaging in a disturbance or behaving in a disorderly manner;

(c) behaving in an insubordinate manner;

(d) striking a Member of the New Iraqi Army or a member of another armed force of superior rank or civilian instructor placed in authority over the accused;

(e) while on sentry duty either:

(i) engaging in misconduct, or;

(ii) failing to do the Member's duty;

(f) disobeying a lawful order;

(g) drunkenness if, owing the influence of alcohol or any drug, whether alone or in combination with any other circumstances, the Member is:

(i) unfit to be entrusted with his duty;

(ii) unfit to be entrusted with any duty which the Member was reasonably aware that he could be called upon to perform;

(iii) behaving in a disorderly manner, or;

(iv) behaving in any manner likely to bring discredit on the New Iraqi Army;

(h) absence without leave;

(i) avoiding the performance of a duty or negligently performing a duty;

(j) making a false statement concerning any official matter relating to the IAF.

(k) fighting with another Member of the New Iraqi Army;

(l) willfully or by neglect damaging or causing damage to or the loss of any property of the New Iraqi Army;

(m) conduct to the prejudice of good order or military discipline;

(n) behaving in a manner likely to bring discredit on the New Iraqi Army. (16)

Elements for each military offense and minor discussions are contained in an annex to CPA ORDER 23. (17)

Enforcement of the Code of Military Discipline

The Code's enforcement mechanism for the true military offenses is similar to the American military nonjudicial punishment (NJP) process. (18) A number of differences make a comparison to the American military justice system a worthwhile exercise in exploring features of the new Iraqi system and considering possible amendments for the future.