How Law Rules: Terror, Torture and the Normative Judgments of Iraqi Judges

Abstract

We present a factorial survey experiment conducted with Iraqi judges during the early military occupation of Iraq. We used a quasi-experimental method because U.S. soldiers are immune from prosecution and punishment in Iraqi courts. We examine why and how the U.S. effort to introduce democracy with an indeterminate rule of law produced unintended and inconsistent results in the normative judgments of Iraqi judges. A critical legal perspective anticipates the influences of indeterminancy, power and fear in our research. More specifically, we anticipated lenient treatment for guards convicted of torture, especially in trouble cases of Coalition soldiers torturing Al Qaeda prisoners. However, the results- which include cross-level, judge-case interaction effects- were more varied than theoretically expected. The Iraqi judges responded in disparate and polarized ways. Some judges imposed more severe sentences on Coalition guards convicted of torturing Al Qaeda suspects, while others imposed more lenient sentences on the same combination of guards and suspects. The cross-level interactions indicate that the judges who severely sentenced Coalition guards likely feared the contribution of torture tactics to increasing violence. The judges who were less fearful of violence were more lenient and accommodating of torture by Coalition forces. The implication is that the less fearful judges were freed by an indeterminate law to advance Coalition goals through lenient punishment of torture. Our analysis suggests that the introduction of democracy and the rule of law in Iraq is a negative case in the international diffusion of American institutions. The results indicate the need for further development of a nuanced critical legal perspective.