Iraqi Defense Ministry Works on Military Discipline Code
By Sgt. Jared Zabaldo, USA
Special to American Forces Press Service
BAGHDAD, Iraq, Dec. 6, 2004 The Iraqi Defense Ministry continues to work on revisions to the Iraqi Code of Military Discipline in an effort to respond more effectively to incidents of indiscipline in the Iraqi armed forces.
The code, put in place by the then-Coalition Provisional Authority in August 2003, gives Iraqi commanders authority to conduct investigations, hold disciplinary hearings and punish soldiers for any one of 14 enumerated offenses. It also authorizes nonjudicial punishment remedies such as U.S. Uniform Code of Military Justice "Article 15" punishments -- usually amounting to fines and extra-duty type penalties.
An effort to augment other sections of Iraq's code is under way, which, according to Multinational Security Transition Command Iraq officials familiar with the project, is a purely Iraqi-driven effort to supplement the current code with Iraqi-written provisions.
In early summer 2004, Iraqi armed forces officials -- including the defense minister, his general counsel and the acting Iraqi armed forces chief of staff -- began looking at augmenting the code to more fully envelop the military disciplinary action needs of the armed forces, specifically to deal with more serious offenses.
According to Army Col. Richard O. Hatch, MSTCI staff judge advocate, some of those concerns centered on the fact that the punishments afforded in the CPA- enacted code were, in some cases, "deemed inadequate to deter soldiers whose units (had) been ordered to participate in operations from refusing deployment orders or deserting."
"Ironically," Hatch said, "an Iraqi civilian who aids a military deserter can be sent to jail for up to seven years under the existing Iraqi civilian penal law, but the soldier who actually deserts might only receive seven days detention under the current Code of Military Discipline."
What the CPA-enacted code does provide, though, according to Hatch, is the power to appoint civilian judges as military judges to hear criminal cases involving Iraqi soldiers. Recently, under the provision, the chief judge of the Council of Judges designated 23 Iraqi civilian judges -- at least one per province -- to serve as military judges.
Hatch said soldiers brought before the new military judges cannot be charged under the former Iraqi military laws, but can be prosecuted for offenses under the Iraqi criminal code applicable to civilians. To that end, legal officials in the defense ministry have been searching for solutions in the civilian code to deal with some of the "anomalies" of the CPA military code, and have identified a number of civilian offenses that could be applied to soldiers.
"There is a charge," Hatch said, "under the Iraqi (Civilian) Penal Code of 1969 that was not suspended by the CPA. Article 331 of this code makes it a felony for a 'public official' to breach his duties and responsibilities in order to benefit someone else to the detriment of the state.
"The MOD general counsel," Hatch continued, "has made a persuasive case that a soldier who deserts his unit in order to avoid hazardous duty meets all the elements of this civilian offense, and could be prosecuted before one of the new Iraqi military judges and receive significant jail time."
In addition to the civilian code punishment solutions, Hatch also indicated that defense ministry officials had begun drafting legislation to supplement the Code of Military Discipline, as another interim measure, reinstating a small number of substantive offenses that were suspended by the CPA.
"Obviously, CPA Order 23 was put in place when the 'new' Iraqi army was just beginning to form," Hatch said. "Now we have thousands of members of the Iraqi armed forces training and conducting operations with multinational forces," Hatch said. "The Iraqi military leadership recognized that commanders needed additional tools."
The ministry's long-term goal is to develop its own code of military justice, Hatch said. "Right now, however, they have recognized some near-term needs and have moved out smartly to fill some gaps."
Hatch said what he's seen of the people working the issue has been impressive. "In working with the lawyers of the Ministry of Defense," he said, "we have encountered some very capable military and civilian attorneys.
"They understand the intricacies of the law. They understand the constraints that are imposed. And they understand that a commander must have effective disciplinary tools to maintain good order and discipline. I think what they'll end up with is a system that meets the international standards of due process and fairness, but yet will be a truly Iraqi code," he said.
(Army Sgt. Jared Zabaldo is assigned to the Multinational Security Transition Command Iraq Public Affairs Office.)