Sectarianism fails to explain absence of Iraq's rule of law

The real issue in Iraq is not Shia vs. Sunni, but rather the deterioration of the rule of law.

After Iraq had been out of the spotlight for some months, the death sentence for murder passed on Sunday against one of the country's two vice presidents, Tareq Al Hashemi, prompted an immediate outpouring of western media commentary.

Unfortunately, while the case of Mr Al Hashemi is an important one which deserves attention, much of the analysis so far has emphasised the least interesting aspects of the case. In what appears to be an almost uniform knee-jerk reaction, most western commentators have focused on how the verdict against the vice president supposedly symbolises the marginalisation of the entire Sunni community in Iraq.

This gives rise to dramatic scenarios in which Turkey is seen as a regional Sunni power promoting the interests of Iraq's Sunni Arabs and (mostly Sunni) Kurds, whereas Iran is seen as the regional patron of the Iraqi Shia Arabs. In line with this kind of thinking, prognoses of sectarian fragmentation, separatism or even regional wars abound.

This sort of analysis is flawed for a number of reasons. First, it offers an inaccurate account of developments in Iraqi politics during the first half of 2012. It should be remembered that the initial, dramatic reaction to the prosecution of Mr Al Hashemi back in December 2011 (when he fled from Baghdad to Iraq's Kurdish areas, and later to Turkey) was the withdrawal from the political process of the political alliance to which he belongs, the secular Iraqiyya coalition.

The main development during the past 10 months has been the gradual return of Iraqiyya to politics, both in parliament and in the cabinet. True, Mr Al Hashemi and Iraqiyya leader Ayad Allawi still remain on the sidelines, but other important figures such as Usama Al Nujayfi (the parliament speaker) and Salih Al Mutlak (deputy premier) have over the past few months returned to dialogue with Prime Minister Nouri Al Maliki, despite the continuation of the Hashemi case.

Mr Al Maliki has also been successful in attracting to his side a number of disgruntled Sunni Arab politicians from the areas bordering the Kurdish federal region, who are unhappy with the way parts of the Iraqiyya leadership are cozying up to the Kurds.

In sum, there is no empirical evidence to suggest that the Hashemi case is playing a dominant role in polarising the Iraqi government along sectarian lines.

Second, it is a pity that the eagerness among analysts to understand everything in Iraq through sectarian lenses also seems to distract them from problems related to the rule of law that are real and deeper. Soon after the prosecution of Mr Al Hashemi began, worrying accusations transpired about his guards having been subjected to torture in prison. Whereas it is difficult to prove those accusations, the official reply of the Iraqi judiciary - a statement to the effect that conditions in Iraqi prisons are basically wonderful - seemed so strained that it failed to appease critics of the human rights situation in Iraq.

That statement came in the context of a string of rulings by the Iraqi supreme court which seemed highly politicised and crafted to match the political interests of Mr Al Maliki, including a constitutional interpretation in early 2012 that severely limits the powers of parliament to question ministers.

All of this raises question about the impartiality of the Iraqi judiciary and its immunity from political pressures. But once more, this is not a mainly sectarian issue. There are many Sunnis who work for the pro-Maliki judiciary and there are ex-Baathist Shiites who sometimes find themselves on the receiving end of its rulings.

Although Mr Al Hashemi is now considered to enjoy de facto immunity in Turkey against extradition to Iraq, there is now a dilemma for him about how to respond to the verdict. Technically, he can launch an appeal, but that would imply a degree of recognition of the judicial proceedings in a way that he has not been prepared to offer so far. His initial reaction, at a press conference in Turkey this week, was to dismiss both the ruling and the entire judicial process as flawed and politicised, with a call for the UN to intervene in the troubling human rights situation in Iraq.

Mr Al Hashemi has also indicated his preparedness to stand trial in Kurdish-controlled parts of Iraq, including in the disputed city of Kirkuk. Of course, politically the Kirkuk suggestion involves a double-edged sword. The city is claimed by the Kurds as part of their area, whereas many Arabs and some Turkmens think it should instead be controlled by the central government. A trial there would implicitly mean recognition by an Iraqiyya leader of Kurdish control of the city, with which many Iraqiyya members disagree.

As for the rest of the world, perhaps it should try, however temporarily, to forget about Sunnis and Shiites altogether and instead focus on the question of due process. If the Hashemi case is approached through communitarian lenses and the only goal is to secure the continued inclusion in the political process of figures considered vital to some kind of imagined sectarian equilibrium, many of the problems of post-2003 Iraq are likely to be perpetuated.

Only when western commentators put the interests of individual Iraqi citizens - of whatever sectarian background - higher than those of communal leaders pandering to sectarian sentiments will they be able to play a meaningful role in the development of a democratic Iraq.

Reidar Visser is a historian of Iraq who blogs at gulfanalysis.wordpress.com