Editors’ Note: This essay has been modified to reflect a Correction.
The following is excerpted from a speech delivered by Judge Jed S. Rakoff after accepting the Stanley J. Fuld Award from the Commercial and Federal Litigation Section of the New York State Bar on Jan. 23.
I want to honor Judge Stanley J. Fuld’s memory by describing some modern-day judges who are defending the rule of law literally with their lives, and by that I mean the judges of Iraq.
One month ago, I had the privilege of spending a week in Baghdad—not exactly April in Paris. I was part of a small group invited by the Iraqi courts to help train 15 Iraqi judges on the role of the judiciary in adjudicating international credit disputes. By way of background, Iraq has created a special International Commercial Court with exclusive jurisdiction over all commercial cases in which at least one party is a foreign person or entity. The object is to assure foreign investors that, whatever other vicissitudes they face in investing in Iraq, they can be certain that any legal disputes will be handled by a court that is expert, honest and committed to the neutral application of the rule of law.
In 2011, its first year, the Iraqi International Commercial Court handled about 300 cases, and in 2012 it handled nearly 400 cases. I’m told that in at least one-third of those cases, the foreign entity prevailed. Moreover, I’m told that more than half the cases were brought by foreign entities, who by simply increasing their filings more than one-third in the court’s first year thereby expressed their confidence in the court.
On a more personal level, I must tell you that I was very impressed with the intelligence and legal skills, both of the judges I met who were already on the Iraqi International Commercial Court and those who, as part of this program, were being trained in the skills they would need to become part of the court.
All well and good; but why do I say the judges on this court, and other Iraqi courts, are literally defending the rule of law with their lives? Because in the last few years, no fewer than 49 Iraqi judges have been assassinated. Indeed, the second ranking judge of the Iraqi International Commercial Court, Judge Jabbar Al-Lami, a vibrant and brilliant judge who was a key part of our training program, was attacked two years ago while leaving his compound. Thirteen bullets entered his body, mainly his head and chest. Six passed through, and the other seven remained lodged in his body. Miraculously, he survived, but even today one bullet remains in his head, because it is too surgically dangerous to remove it. But there he is, his mind as sharp as ever, carrying out his judicial duties as if nothing had ever happened.
And then there is the Chief Justice of Iraq, Medhat al-Mamoud, whom I also had the pleasure of meeting. Despite very tight security, he has been the object of two assassination attempts by terrorists. These attacks were unsuccessful, but in 2006 his only son was assassinated. And yet he too carries on as if nothing had happened. The only right word for these judges is “heroic.”
And who are the assassins? Occasionally, they are one of the litigants or their allies, who first try to bribe the judge, then to threaten him, and when all else fails, choose to murder him. But more commonly the assassins are members of Al-Qaeda or other terrorist groups, who seek to destabilize and eliminate the branch of the Iraqi government that has shown the greatest degree of stability and neutrality, that is, the courts.
This is not to suggest that Iraqi courts are free of corruption or political influence. Under Sadaam Hussein, the courts were filled with judges who were open to such influences, and while some, though not all, these judges were removed when Sadaam Hussein was overthrown, the U.S. State Department has estimated that, even in the best of circumstances, it will take a full generation before such influences are entirely weeded out.
But there are many signs that this process is underway.
Indeed, the rule of law has a long history in Iraq. If we look back to Madison, or perhaps to Coke and Blackstone, as the fathers of our law, the Iraqi judges can, and do, look all the way back to Hammurabi and his Code, propounded in 2100 BC, the true origin of the rule of law, not just in their fertile crescent, but in the civilized world.
In more recent centuries, what is now Iraq but was then part of the Ottoman Empire, developed what is essentially a civil law system, with codes largely derived from French models, but modified in the 20th century, first by British law when Iraq was a British protectorate, then by Sharia law when Iraq was a constitutional monarchy, and then by Socialist law, when the Ba’athists were in power. It is a complicated system, but, as I learned in meeting with the Iraqi judges, one whose basic principles would be recognizable to any Western judge.
Unfortunately, in recent decades, Iraq lost most of its professional class to 30 years of warfare, flight and terrorism, a devastating depletion that it is only slowly replenishing. Al-Qaeda, in particular, has focused its attacks not only on judges, but also on lawyers, government officials, even physicians, in an effort to destroy the very fabric of Iraqi society. But under the leadership of the chief justice, substantial efforts have been made to fill the part of this vacuum that affects the administration of justice, by appointing good new judges and passing good new laws. According to the most recent report of Stuart Bowen, the U.S. Special Inspector General for Iraq Reconstruction, whereas in 2003 the judicial system was “in chaos, with facilities destroyed, personnel ill-equipped to carry out the mission, and corruption rampant,” the combined efforts since then of Iraqi judges and U.S. support have “contributed to a reasonably well-functioning judicial system in Iraq.”
And yet the outcome of such efforts remains very much in doubt. When the last U.S. troops left Iraq just about one year ago, President Barack Obama declared that Iraq was now “sovereign, stable, and self-reliant.” This, it may be suggested, was more the politics of hope than a realistic appraisal of the situation.
Iraq today is a troubled society, with large elements of instability, and an uncertain future. Violence aside, the internecine conflict among Shias, Sunnis, Kurds, and others continues unabated, its watchwords being suspicion and revenge.
But how can you put violence aside, when, literally, not a day passes without car-bombings and political assassinations throughout Iraq? If you think I exaggerate, please go to the American-and-British-based website entitled “Iraq Body Count,” which reports each day’s carnage. The day I arrived in Baghdad, 30 people were assassinated in Iraq. On the day I left, it was “only” 12 people. Overall, during 2012, there was an average of 18 bombings and 53 violent deaths per week in Iraq. How can a country of 31 million people expect to maintain stability, let alone attract foreign investment, in these conditions?
And yet, there are surprising, and welcome, signs of progress. By creating their own mini-”Green Zones,” foreign oil firms such as BP, Exxon-Mobil, Occidental, and several Chinese firms have felt free to invest large sums in Iraqi oil production. The result is that, even though the great bulk of Iraq’s vast oil wealth remains untapped, in 2012 more oil was exported from Iraq than from any other country in the world except Saudi Arabia. Overall, according to the World Bank, Iraqi GDP grew by 12 percent in 2012, fueling, in turn, a rapid expansion of the consumer sector. And the Kurdish provinces of Iraq, which are relatively more stable than the others, have begun to attract foreign investment unrelated to oil.
It is apparent that a necessary, if not sufficient condition of a peaceful and prosperous future for Iraq lies in commercial development in general, and foreign investment in particular. A critical component of any such development is the rule of law.
That is why the so-far-successful progress of the Iraqi International Commercial Court is such a promising step. And the further fact that it has been created by judges who, on a daily basis, put their lives on the line by just being judges, is worthy of respect, and awe.
While most of the credit goes to the courageous Iraqi judges, I would be remiss if I did not single out the efforts of the U.S. government, including the Departments of Commerce, Justice, and State, in supporting the Iraqi courts in everything from helping them build secure courthouses and compounds to educating their judges in the niceties of modern international commercial law. U.S. private enterprise, especially the banking industry, has also been helpful in such training.
There is one other group with a particular expertise in international commercial litigation that, I expect, might be of service to the Iraqi judges in trying to make their International Commercial Court a model of legal progress. I refer, of course, to the New York bar, for the members of this bar probably litigate more international commercial disputes than any other bar in the world. I hope the New York bar will find ways to help meet the requests of the Iraqi courts for support and training.
While the Iraqi courts are fiercely independent, they are not shy about requesting our help; and we should not be hesitant in giving it.
History strongly suggests that the rule of law fosters commercial development, and vice versa. In Iraq, brave Iraqi judges, by just going about their business of independently and neutrally interpreting the law, are laying the groundwork for a better tomorrow; but their efforts may not survive the perils of today. In this dicey situation, we all need to do what we can to help tip the balance, and in that small way, enable these Iraqi heroes to simply be judges.
Jed S. Rakoff is a judge in the U.S. District Court for the Southern District of New York.