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Preliminary draft

Legal immunology in Iraq:

A history of foreign legal transplantation, antibody resistance and immunosuppressant counterinsurgency in Iraq

By michael.hennessy.picard@gmail.com∗

Introduction

It is conventional wisdom that Governments resort to demonizing metaphors in their attempt to justify wars. For instance, to qualify an act of aggression as a “just war” the West has cast the Orient under a dark spell since the Crusades. During the Renaissance the dichotomy of lightness and darkness1 served to establish a hierarchy of values between the European civilisation and its accursed nemesis, the Ottoman Empire. This metaphorical marginalization favoured a dualistic interpretation of the world, which enhanced Christian claims of enlightened dominion over obscure and despotic territories void of proper sovereign representation. Islam came to “symbolize terror, devastation, the demonic, hordes of hated barbarians. [...] Until the end of the seventeenth century the ‘Ottoman peril’ lurked alongside Europe to represent for the whole of Christian civilization a constant danger [...].2” Signs of apathy and tyranny were reported as signs of political afflictions to be addressed by the mission to civilise.

Then, as European States reinforced their colonial hegemony in the eighteenth and nineteenth centuries, semantics of decadence and crippling sickness qualified their visions of the Ottoman Empire. According to western standards of civilization “Oriental” cultural differences were exacerbated and translated into a set of pathologies to be eliminated.3 After the First World War, the British episteme of decadence, Muslim lethargy and moral corruption helped to legitimate the dismemberment of the Ottoman Empire. At the time it was common for European Statesmen to refer to the Ottoman Empire as the “Sick Man of Europe.4” Turks were often caricatured as “degenerate, slavish and brutal5”; “sexually perverted and bloodthirsty.6” Effendis, the class of Arab civil servants educated by the Turks, were

∗ PhD candidate at the University of Quebec in Montreal. I wish to thank Georges A. Lebel, Rose Parfitt, Peta Mitchell and organizers of the Melbourne Doctoral Forum on Legal Theory and “Contamination” held 9 & 10 December 2013 at the Melbourne Law School. Mode of citation: Canadian Guide to Uniform Legal Citation. 1 For a recent study on the psychological bias towards lightness and darkness, see Brian P. Meier, Michael D. Robinson, L. Elizabeth Crawford & Whitney J. Ahlvers, « When “Light” and “Dark” Thoughts Become Light and Dark Responses: Affect Biases Brightness Judgments », 2007 Emotion 7 :2, 366, p. 366. 2 Edward Said, Orientalism, Penguin Classics, 2003, p. 59. 3 See Edward Said, Orientalism: Western Conceptions of the Orient, Penguin Books, 2003. 4 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and John Wiley & Sons, 2004, p. 174. 5 General Maude proclaims: “O people of Baghdad, remember that for twenty-six generations you have suffered under strange tyrants who have ever endeavored to set one Arab House against another in order that they might profit by your dissensions. This policy is abhorrent to Great Britain and her Allies [...].” Proclamation, delivered by Gen. Stanley Maude to the people of Baghdad, March 19, 1917, as reproduced in Sir George Buchanan, The Tragedy of Mesopotamia, London: William Blackwood & Sons, 1938, 169–172. 6 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and John Wiley & Sons, 2004, p. 229.

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considered parasites, “complacently urban,” “barely literate,” “persistent Turkish-speakers,” “decorous in social habit” and “uniform in their travesty of European dress.7”

The vivisection of the Ottoman Empire and State partition

Once the Sick Man finally collapsed at the end of the First World War the Great Powers proceeded to his “political vivisection.8” Before the establishment of the British mandate over Iraq, the three Ottoman provinces of Baghdad, Basra and Mosul were partitioned and morphed into “an Indian appendage.9” Originally Mesopotamia was to become the extension of the Indian Empire, which was already composed of approximately 40 million Muslims.10 But in 1919 the Lloyd George Government became tied to the 1919 Paris Treaty establishing the League of Nations and prohibiting territorial annexation. The legal status of Iraq would morph from an Indian appendage to a British protectorate. Pursuant to a League of Nations mandate the juvenile Iraqis11 were held under a “sacred trust of civilisation.” Under the new banner of Iraq the three united provinces were rescued from the rubble of the Ottoman Empire and considered legal orphans to be nursed back to health.12

At the time, seventy-five percent of the population of Iraq was considered tribal, "with no previous tradition of obedience to any government.13" By Western standards of civilisation, “the peoples left behind by the decomposition of [Turkey] are mostly untrained politically [...] and will require much nursing towards economic and political independence.14” For lack of having attained a “sufficient degree of civilisation” to be able to “stand alone under the strenuous conditions of the modern world15”, the Arabs would become “beneficiaries” of a “trust” held by Great Britain under a League of Nations mandate.16 In the name of hygienic modernity the tribal societies of Mesopotamia were to be tutored until they could reach a satisfactory level of sovereign adulthood. In Iraq the decrepit social structures established by Turkish despots were replaced by modern State institutions founded on principles of liberal rationality.

7 Stephen Hemsley Longrigg, Iraq, 1900 to 1950: A Political, Social, and Economic History, Oxford: Issued under the auspices of the Royal Institute of International Affairs by Oxford University Press, 1953, p. 36, as cited by Toby Dodge, Inventing Iraq – The Failure of Nation-Building and a History Denied, Oxford University Press, 2003, p. 49. 8 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and John Wiley & Sons, 2004, p. 233. 9 Philip Willard Ireland, Iraq: A Study in Political Development, New York: Macmillan, 1938, 72. 10 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and John Wiley & Sons, 2004, p. 215. 11 The “Arab” is portrayed as "the childish primitive." “The Arabs show themselves as [...] fond of tests of the supernatural— and all this in a curiously light-minded, almost childish fashion.” Duncan Macdonald, The Religious Attitude and Life in Islam, 1909, as cited by Edward Said, Orientalism, Penguin Classics, 2003, p. 247. 12 “The peoples left behind by the decomposition of [Turkey] are mostly untrained politically [...] and will require much nursing towards economic and political independence.” Smuts, Memorandum on the League of Nations, as cited by Margaret Macmillan, Paris 1919, New York: Random House, 2003, p. 99. 13 H.V.F. Winstone, Gertrude Bell, A Biography, Quartet Books, 1979, p. 215, as cited by David Fromkin, A Peace to End all Peace – The Fall of the Ottoman Empire and the Creation of the Modern Middle East, New York: Henry Holt and Company, 2001, p. 450. 14 Jan Christian Smuts, Memorandum on the League of Nations, as cited by Margaret Macmillan, Paris 1919, New York: Random House, 2003, p. 99. 15 See the wording of Art. 22 (4), Covenant of the League of Nations (adopted 28 June 1919, entered into force 10 January 1920) 225 CTS 195. 16 See Noah Feldman, What We Owe Iraq – War and the Ethics of Nation-Building, Princeton University Press, 2004, p. 59.

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By expressly relying on the metaphor of decay British civil servants claimed to cut for the benefit of the new Iraqi State the metastasis of irrational spending which had infected the Ottoman Empire.17 This ideological construction of decadence served to legitimize the intrusion of a capital-exporting State into the political economy of a new oil-exporting territory. The Ottoman Empire was anthropomorphised – that is metaphorically associated to a human body and person – by foreign rulers to satisfy their hegemonic policy of natural resource extraction and exploitation. In the new age of engine combustion born out of the world’s first oil-based military conflict, Iraq was carved by a line drawn in the sand to protect British petroleum interests.18 Intoxicated by the vapors of black gold19 Western industrialists secured their grip over the Gulf. The construction of Britain’s new oil sanctuary was legitimised by modern State-building and backed by the corollary destruction of the “pernicious” Ottoman legacy.

In recent times, the episteme of corruption was supplemented by advances in the field of biology to provide Western belligerents with fertile grounds for military engagement in the Gulf. Lately, American Spin Doctors have used the vocabulary of crop selection to equate Middle Eastern enemies with biochemical terror and the threat of contamination. After the September 2001 attacks, the U.S. Department of State advocated a strong policy of striking terrorism “by its branch and root.20” Pursuant to the “War on Terror” the weeding out of a “rogue State21” alludes to the removal of an “abnormal” political body whose biochemical arsenal poses a threat to the national security of the United States. The emergence of the qualification “rogue State” in official discourse has interesting etymological roots. The verb “to rogue” designates the act of removing a diseased specimen from a group of plants of the same variety. According to American foreign policy the State deviating from an international disarmament agreement is identified as “rogue” and therefore subjected to a treatment of containment and disinfection.22

Among the “rogue States” unilaterally designated for disinfection by the U.S. Government, none has been more systematically targeted than Iraq. Ironically, “Iraq” in Arabic refers to a "well-rooted country.23" Despite its deterring name Iraq has been a primary scene of American “landscaping” for decades. First, the 1991 Gulf War crushed Iraq’s ambition of territorial expansion. Then in 1998 “pre-emptive” air raids became a reasonable method of extinguishing the “weed of authoritarianism” in Iraq.

17 See Young–Vernon, “Report of the financial mission appointed by the Secretary of State for the Colonies to enquire into the financial position and prospects of the Government of Iraq”, 1925 HMSO (Cmnd 2438); “Report on the Conditions for Trade in Mesopotamia Prepared in the Office of the Civil Commissioner in Baghdad,” memo, ca. Aug 1919: BL L/PS/10/386. 18 See David Fromkin, A Peace to End all Peace – The Fall of the Ottoman Empire and the Creation of the Modern Middle East, New York: Henry Holt and Company, 2001; Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and John Wiley & Sons, 2004. 19 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and John Wiley & Sons, 2004, p. 165. 20 Transcript of U.S. Secretary of State Colin Powell's news conference on the U.S. response to the 9/11 attacks, The Washington Post, Sept. 12, 2001. 21 See Alex Miles, US Foreign Policy and the Rogue State Doctrine, Routledge, 2012. 22 A declassified 1995 study by the Strategic Command, entitled "Essentials of Post-Cold War Deterrence,"outlines the new strategy concerning rogue states. See “Pentagon study: 'Irrational' Nuclear Policy a Deterrent”, Washington DC, Associated Press, 1 March 1998. 23 See David Fromkin, A Peace to End all Peace – The Fall of the Ottoman Empire and the Creation of the Modern Middle East, New York: Henry Holt and Company, 2001, p. 508.

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This doctrine of “regime-change” targeting Saddam Hussein’s “rogue State” was supported by “imagery of shiny metallic instruments of war, especially jets.24”

The weeding out of Saddam’s rogue State and the pursuit of regime-change

In 2003 the Coalition of the willing led a campaign to dismantle Iraq’s weapons program to weaken its immune system in anticipation of ground intervention. “To soften Iraqi infrastructure25” pre-dawn “decapitation” cruise missiles were launched against the Head of State. The Coalition of the willing targeted Iraq’s “centers of gravity”: coalition forces "stuck the needle” in “these nerve centers26” to “make the Iraqi army collapse.27” Surgical air strikes28 and smart bombs of “unprecedented accuracy29” found “entry points” into the enemy’s communication network. A “Shock & Awe30” campaign paralyzed the enemy. The goal was to “overload an adversary's perceptions and understanding of events31” to throw them “into immediate paralysis and capitulation.32” The belligerents rendered the adversary “impotent to act or react33" by “depriving [them] in specific areas, of the ability to communicate, observe.34”

Following the initial bombing campaign ground troops went on to “drain the swamp35” in Iraq. Today, now that Saddam’s regime has been obliterated, American-manufactured unmanned aerial

24 George Lakoff, “Metaphor and War: The Metaphor System Used to Justify War in the Gulf”, 1991 Viet Nam Generation Journal & Newsletter 3:3. 25 Matthew Rycroft, “Downing Street memo”, S 195 /02, 23 July 2002, as cited by Christopher Doran, Making the World Safe for Capitalism – How Iraq Threatened the U.S. Economic Empire and Had to Be Destroyed, Pluto Press, 2012, p. 132. Matthew Rycroft, “Downing Street memo”, S 195 /02, 23 July 2002. 26 Fred Kaplan, The Insurgents: David Petraus and the Plot to Change the American Way of War, Simon & Schuster, 2013, p. 50. 27 General Chuck Horner, the commander of the air war in the 1991 invasion as cited by Naomi Klein, The Shock Doctrine – The Rise of Disaster Capitalism, New York: Metropolitan Books, 2007, p. 329. 28 “That meant that, compared with Iran or Syria, Iraq seemed the site for the most winnable war.” Naomi Klein, The Shock Doctrine – The Rise of Disaster Capitalism, New York: Metropolitan Books, 2007, p. 330. Iraq was not invaded because it concealed weapons of mass destruction, but precisely because it did not have any. According to Secretary of State Colin Powell, « frankly, [the U.N. sanctions] have worked. [Saddam Hussein] has not developed any significant capability with respect to weapons of mass destruction. He is unable to project conventional power against his neighbors.” Secretary of State Colin Powell’s Address to Egyptian Foreign Minister Amr Moussa in Cairo's Ittihadiya Palace, 24 February 2001. 29 Naomi Klein, The Shock Doctrine – The Rise of Disaster Capitalism, New York: Metropolitan Books, 2007, p. 329. 30 Fred Kaplan, The Insurgents: David Petraus and the Plot to Change the American Way of War, Simon & Schuster, 2013, p. 52. The Shock and Awe doctrine applicable to Iraq covers “actions that create fears, dangers, and destruction that are incomprehensible to the people at large, specific elements/sectors of the threat society, or the leadership.” See Bud Edney, "Appendix A: Thoughts on Rapid Dominance” in Harlan K. Ullman & James P. Wade, Shock and Awe: Achieving Rapid Dominance, Washington, DC: NDU Press Book, 1996, p. 110. 31 Harlan K. Ullman & James P. Wade, Shock and Awe: Achieving Rapid Dominance, Washington, DC: NDU Press Book, 1996, p. 110. 32 Fred Kaplan, The Insurgents: David Petraus and the Plot to Change the American Way of War, Simon & Schuster, 2013, p. 52. 33 Harlan K. Ullman & James P. Wade, Shock and Awe: Achieving Rapid Dominance, Washington, DC: NDU Press Book, 1996, p. xxviii. This includes such strategies as "real-time manipulation of senses and inputs [...] literally 'turning on and off' the 'lights' that enable any potential aggressor to see or appreciate the conditions and events concerning his forces and ultimately, his society." 34 Harlan K. Ullman & James P. Wade, Shock and Awe: Achieving Rapid Dominance, Washington, DC: NDU Press Book, 1996, xxv. 35 Sgt. 1st Class Kathleen T. Rhem, “Rumsfeld on Terrorists: Drain the Swamp They Live In”, American Forces Press Service, Department of Defense, Washington, Sep. 18, 2001.The metaphor has roots in Mao Tse-tung’s “description of guerilla fighters as fish swimming in the sea of the people. U.S. counterinsurgency experts after World War II took up the

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vehicles monitor Iraq’s vital bloodstream: its oil fields.36 At a safe distance from the point of impact military drone pilots have been known to refer to Middle Eastern casualties as “bug splats.” By controlling Iraq’s airspace, the steady hand of the world’s guardian intends to make Babylon’s gardens blossom once more. Thus the American Government continually borrowed references from the natural sciences to frame its foreign policy37, leading some commentators to claim that “biology [came] to supplant philosophy and religion as the primary mode for considering life as a political category [...].38”

Biochemical terror

In order to convince members of Congress and American citizens of the legitimacy of Middle Eastern crop selection the U.S. Government accused Iraq’s regime of developing an arsenal of poisonous and infectious weapons. After September 2001 a slew of official allegations accused Saddam Hussein of harbouring terrorist cells and biochemical facilities. Reports leaked to the media by the U.S. Government linked Iraq’s regime with the 2001 lethal anthrax attacks on American journalists and members of Congress.39 The propaganda was so persuasive that “69 per cent of Americans believed Saddam Hussein was probably involved in 9/11.40” Iraqnophobic41 stories were “disseminated to the American public42” in an attempt to spur public anxieties and garner popular support for war. It would later be revealed, however, that the dispersal of infectious spores on Capitol Hill was in fact an “autoimmune disease launched from within [America’s] own biodefense establishment.43” The elusive viral pathogen, much like “an alien creature escaping from the control of its creator,44” had been leaked out of an American military laboratory.45 Nevertheless, the biochemical scare blurred the debate about the legitimacy of war in retaliation for terrorist attacks on American soil. Despite the lack of hard evidence, the U.S. Congress went on to pass the joint 2003 Iraq War Resolution authorizing military action against Iraq on

phrase in their strategies of “draining the sea” to counter guerilla warfare.” Robert Jensen & Rahul Mahajan, “Civilians Targets of Revenge “Draining the Swamp of Terrorists””, September 24, 2001, Counterpunch. 36 See Patrick Markey & Ahmed Rasheed, « Iraq turns to U.S. drones to protect oil platforms », Reuters, Baghdad, May 21, 2012. 37 See for instance Graham Hammill, “Miracles and Plagues: Plague Discourse as Political Thought”, 2010 Journal for Early Modern Cultural Studies 10:2, 85. 38 Joshua Barkan, “Roberto Esposito’s Political Biology and Corporate Forms of Life”, 2012 Law, Culture and The Humanities 8:1, 84 p. 85. 39 David Rose & Ed Vulliamy, “Iraq 'behind US anthrax outbreaks'”, New York, The Observer, 14 October 2001. See also Kenneth King, Germs Gone Wild, Pegasus Books, 2010, pp. 108 to 113. In his January 2002 “Axis of Evil” State of the Union address to Congress, President Bush claimed that “the Iraqi regime has plotted to develop anthrax, and nerve gas, and nuclear weapons for over a decade.” The President's State of the Union Address, The United States Capitol, Washington, D.C., Office of the Press Secretary, January 29, 2002. In his January 2003 address to Congress President Bush warned of Iraq’s alleged possession of “biological weapons materials sufficient to produce over 25,000 litres of anthrax, enough doses to kill several million people.” The President's State of the Union Address The United States Capitol Washington, D.C., Office of the Press Secretary, January 29, 2003. 40 Dana Milbank & Claudia Deane, “Hussein Link to 9/11 Lingers in Many Minds”, Washington Post, 6 September 2003, as cited by Christopher Doran, Making the World Safe for Capitalism – How Iraq Threatened the U.S. Economic Empire and Had to Be Destroyed, Pluto Press, 2012, p. 132. 41 “Iraqnophobia, noun. An irrational fear of Iraq and its ability to make and use biological or nuclear weapons.” (the Urban Dictionary). For use of the term in academia see Geraint Hughes, “Iraqnophobia - The Dangers of Forgetting Operation Telic”, 2012 The RUSI Journal 157:6, 45. 42 Kenneth King, Germs Gone Wild, Pegasus Books, 2010, p. 113. 43 Kenneth King, Germs Gone Wild, Pegasus Books, 2010, p. 108. 44 Roberto Esposito, Bios – Biopolitics and Philosophy, University of Minnesota Press, 2008, p. 125. 45 Kenneth King, Germs Gone Wild, Pegasus Books, 2010.

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the grounds that it continued to possess and develop chemical and biological weapons capability.46 The case for Operation Iraqi Freedom proves that the framing of political debates with biological metaphors helps legitimate the use of force against “threatening” countries.

War metaphors

The call to arms has always been sustained by metaphorical discourse.47 As a linguistic artefact, a metaphor is the characterisation of an object applied to another object (Aristotle). The metaphor is the “foundation of the human conceptual system.48” Without metaphors human reasoning would be impossible. Moreover, collective beliefs may be artificially bolstered by our metaphorical thought process.49 Psychological experiments reveal that “we cannot ignore metaphors, even when metaphorical readings are irrelevant to the task.50” In all likelihood the automatic access to figurative meaning lends our brain to tricks of false analogy. In short, metaphors bias as much as inform perceptual judgments.51

In the age of mass media biological metaphorisations have become effective “weapons of mass deception.” Aided by the magnifying power of television screens stimulating our scopic drive, biological imagery is explicitly crafted to enhance the appeal and impact of political discourse.52 Governments are prone to conceptualise security threats in terms of health problems. Metaphors of disease and corruption invite policies of economic sanitization and State purification. Anthropomorphic and biological metaphors tend to generate ideological distortion for the purpose of warmongering.53 Because of these cognitive implications “metaphors can kill”, as George Lakoff observed at the time of the 1991 Gulf War.54 Metaphors have material consequences beyond rhetorical discourse. The bioterror metaphor allows the state to prioritize political issues55 and to convince its constituents of the pertinence of war. If metaphors can kill, it then follows that the political use of biological metaphors shall be studied carefully. 46 See the Authorization for Use of Military Force Against Iraq Resolution of 2002, [1] Pub.L. 107–243, 116 Stat. 1498, enacted October 16, 2002, H.J.Res. 114. 47 Nicholas Onuf, « World-making, state-building », in Nicolas Lemay-Hébert, Nicholas Onuf, Vojin Rakic & Petar Bojanic, Semantics of Statebuilding – Language, meanings and sovereignty, Routlege, 2014, 19, p. 21. 48 John M. Jermier & Linda C. Forbes, « Metaphor as the Foundation of Organizational Studies: Images of Organization and Beyond », 2011 Organization Environment 24: 444, p. 449. Also, cognitive psychologists George Lakoff and Mark Johnson argue that that affective evaluations are represented, implicitly and automatically, in terms of perceptual metaphor. See George Lakoff & Mark Johnson, Philosophy in the Flesh: the Embodied Mind & its Challenge to Western Thought, Basic Books, 1999. See George Lakoff & Mark Johnson, Philosophy in the Flesh: the Embodied Mind & its Challenge to Western Thought, Basic Books, 1999. 49 See Mark J. Landau, Daniel Sullivan & Jeff Greenberg, “Evidence That Self-Relevant Motives and Metaphoric Framing Interact to Influence Political and Social Attitudes”, 2009 Psychological Science 20:11, 1421-1427; see also David W. Carroll, Psychology of language, Thomson & Wadsworth, 2004, p. 141. 50 David W. Carroll, Psychology of language, Thomson & Wadsworth, 2004, p. 140. Our italics. 51 George Lakoff, & M. Johnson, Philosophy in the flesh: The embodied mind and its challenges to western thought, New York: Basic Books, 1999. 52 See John M. Jermier & Linda C. Forbes, « Metaphor as the Foundation of Organizational Studies: Images of Organization and Beyond », 2011 Organization Environment 24: 444, p. 451. 53 John M. Jermier & Linda C. Forbes, « Metaphor as the Foundation of Organizational Studies: Images of Organization and Beyond », 2011 Organization Environment 24: 444, p. 448. 54 George Lakoff, “Metaphor and War: The Metaphor System Used to Justify War in the Gulf”, 1991 Viet Nam Generation Journal & Newsletter 3:3, p. 1. 55 Lori Hartmann-Mahmud, « War as Metaphor », 2002 Peace Review: A Journal of Social Justice 14:4, 427, p. 429; James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. New Haven, CT: Yale University Press, 1998.

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The point of this essay is to provide a historical account of the semantics of corruption and decontamination as they apply to Iraq’s constitutions over time. The metaphors of viral contamination and political sanitization capture the dynamics of Western foreign policy in the Gulf. I will address the mythology of Oriental corruption and Western decontamination by focusing on Iraq’s legal transplants. Legal epidemiology studies the spread and penetration of foreign legal transplants into new spaces of jurisdiction and host bodies of law. Western legal concepts such as “private property” and “corporate immunity” gained entrance into the Iraqi “host body” to multiply and ensure their survival. For the purpose of my study I will use the method of historical comparative law. Comparative law has repeatedly associated the reception of foreign law into domestic legal orders to the medical procedure of organ transplantation.56

In our paper the British precedent of Iraqi nursing will serve as a distant mirror of American decontamination practices. Iraq’s polity was first infantilised then maligned by the West. Under the British Mandate, Iraq was portrayed as an orphan in need of care. Under American tutelage, Iraq was considered a patient to be cured. Symbolically, Iraq was first sent to the orphanage, then to a rehabilitation center. If Arab tribes were infantilized for the purpose of British trusteeship, Saddam’s Baath Party was later conceived as a virus to be wiped out by American regime change. Foreign policy metaphors vary according to the hegemon’s Weltanschauung. Over the course of a century the intervention metaphor evolved from a mission to educate and civilise to one of market sanitization. In Iraq the belligerent metaphor fluctuated according to the objectives of legal transplantation. While British tutors infantilised Iraqis to better assume their role of legal guardians, American Doctors Without Orders57 maligned the Baath regime in order to privatise the Iraqi State and attract international investors. In the 1920’s the international tutelage over a people void of sovereignty allowed Britain to explore and exploit oil reserves on their behalf, whereas the 2003 U.S. shock-doctrine was intended to cleanse the Iraqi market of governmental interference. Iraq was first reared to behave like a State. When it “failed” to do so, the Occupants injected the syringe of market deregulation to rehabilitate Iraq into the community of States.

Beyond their discursive differences British and American Occupying Powers both claimed to intervene in the best interest of the population. Each in their own way the occupants doctored Iraq’s constitutions to cure its social ailments. They presumably meant to provide international legal remedies to Iraq’s political fractures. In the field of International Law legal experts tag weakened members of the pastoral community for imminent treatment and redress. “In this sense, [the ‘guardians’ of] international law successfully produced failed and outlaw states, precipitating a crisis that international law can then propose to solve.58” Inspired by biomedical semantics, the practice of legal transplantation has shaped Iraq’s constitutional history from 1916 onwards. The Western medicine of legal transplantation briefly outlined thus far will be addressed in the first part of our paper (I).

56 See Alan Watson, Legal Transplants: An Approach to Comparative Law, Edinburgh: Scottish Academic Press, 1974; Stig Strömholm, “Comparative Legal Science – Risks and Possibilities”, in Markku Suksi (ed.), Law Under Exogenous Influences, Turku Law School, 1994. 57 The term refers to a group of PhDs and Rand Corporation fellows dispatched by the Pentagon to advise the military on counterinsurgency tactics in Iraq. See interview with Col. William Hix, Frontline PBS “Endgame” Airdate: June 19, 2007. 58 Usha Natarajan, “Creating and Recreating Iraq: Legacies of the Mandate System in Contemporary Understandings of Third World Sovereignty”, 2011 Leiden Journal of International Law, 24, 799, p. 822.

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Yet, far from providing relief to Iraqis the policy of liberal decontamination unleashed a violent struggle for political power. Though economic recovery in Iraq was offered as a cure to infected political regimes its implementation ultimately exacerbated social inequalities and led to civil unrest. As tensions mounted and casualties grew, it became clear that “the West was not the doctor: the West was the disease.59” In reaction to “exogenous State-building60” the Iraqi patient offered endogenous resistance and never settled for the prescribed medicine of economic reform.

Up to this day Iraq’s own immune system recurrently rejected the legal transplants inoculated by foreign entities. The transformative policies implemented in Iraq spurred movements of political counter-violence and civil unrest, which resonate to this day. Widespread endogenous resistance to transplantation occurred once insurgents “decoded the marker of the pathogenic invasion61”, namely foreign tactics of extraction and appropriation. The foreign transplantation triggered an “immune response” and the production of “antibodies” aimed at protecting the Iraqi social body from “invasive growth sequences.62” Iraq is a “creature” born out of biomedical metaphors. And much like “an alien creature escaping from the control of its creator63”, Iraq would rebel against its purported tutors. We will address this Middle Eastern resistance to capitalist inoculation in the second part of our paper (II).

Lastly, in light of the mounting insurgency, the Occupying Powers decided to dispatch immunosuppressant agents across the “ill-willed” country. Deliberately induced antigens were injected to ward off antibody rejection of the legal transplant, namely by way of financial retribution and military repression. We will examine the consequences of the belligerents’ immunosuppressant strategy on Iraq’s body politic in the third and last part of our paper (III). Pushing the belligerents’ biomedical metaphor, the following pages address the life cycle of foreign legal transplantation, antibody resistance and immunosuppressant counterinsurgency in Iraq.

I. Foreign legal transplants

In the eyes of international tutors the Fertile Crescent had to be purged from previous “infected” regimes (1) as a precondition for the successful transplantation of liberal constitutions (2).

First phase of State decontamination

The transplantation operation was preceded by curative surgical resection, meaning that the previous State apparatus had to be entirely dislodged. Islamic and Baath rules of public property were constitutionally overridden by a legal system of Anglo-Saxon private property rights. Hostility to Ottoman law was expressed by Judicial Secretary Edgar Bonham Carter, Iraq’s Judicial Adviser, who

59 See Alexander Herzen quoted in “Drones of death: Bush takes the law into his own hands”, The Guardian, Wednesday 6 November 2002. 60 Toby Dodge, “Intervention and Dreams of Exogenous State-building: the Application of Liberal Peacebuilding in Afghanistan and Iraq”, 2013 Review of International Studies 39:5, 1189. 61 John McMurtry, The Cancer Stage of Capitalism, London, Pluto Press, 1999, p. 193. 62 John McMurtry, The Cancer Stage of Capitalism, London, Pluto Press, 1999, p. Vii. 63 Roberto Esposito, Bios – Biopolitics and Philosophy, University of Minnesota Press, 2008, p. 125.

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deemed the Ottoman legal system “unscientific, ill-arranged and incomplete.64” New codes based on Anglo-Indian laws replaced the old Turkish laws65 and were set up to mirror “Western interpretation of existing customary law.66” The old regime’s legacy was uprooted by legal cleansing reforms. From 1915 to 1920 it was official British policy to exclude all Ottoman officers from government service.67 Diplomatic attaché Gertrude Bell also recommended the censorship of Mujtahids – Shi’a representatives under “Persian influence.” The perceived wish of these “alien popes68” was to establish a “theocratic state, which is the very devil.69” Ottoman “idleness” and Shi’a “obscurantism” would obstruct the British policy of State centralization and economic reform. The British proposed to bring Mesopotamia “into salubrious contact” with the Western antidote of modernity.70 The Iraqi social body was probed, its temperature regulated by the Occupying doctors.

Laws of war and territorial administration forbidding the transformation of an occupied territory's internal regime71 were unilaterally suspended to allow for the “purge” or “lustration” of the Ottoman and Baath regimes. Lustration “denotes the disqualification of a former elite, of the secret police and their informers, or of civil servants from holding political office under the new regime.72” In 2003 the avowed purpose of is to cleanse Iraqi society from the disease of corruption and eliminate any traces of the old regime’s ideology from the political, social, and economic life of Iraq.73 According to a national “de’Baathification74” policy the Occupant holds legal immunity to capture and confiscate Baath party property.75 Party members are divested of their ownership in the captured property and demoted without compensation.

Second phase of legal transplantation and corporate immunisation 64 Sir Edgar Bonham Carter, the man who wrote the judicial code for the nascent Iraqi state, in Gertrude Bell, Mesopotamia: Review of Civil Administration, E13898, FO 371/5081, 1920, p 96. See Toby Dodge, Inventing Iraq – The Failure of Nation-Building and a History Denied, Oxford University Press, 2003, p. 51. 65 Phebe Marr, The Modern History of Iraq, Boulder, Colorado: Westview, 2012, p. 22. 66 “British resort to traditional means of conflict resolution was consistent with the precepts of mandate government that precluded societal transformation to suit the interest of the governing power.” Martin Thomas, “Bedouin Tribes and the Imperial Intelligence Services in Syria, Iraq and Transjordan in the 1920s”, 2003 Journal of Contemporary History 38:4, 539, p. 544. 67 Judith S. Yaphe, “Until They Leave: Liberation, Occupation, and Insurgency in Iraq”, in Amatzia Baram, Achim Rohde & Ronen Zeidel (ed.), Iraq between Occupations Perspectives from 1920 to the Present, Palgrave Macmillan, 2010, 239 p. 247. 68 Gertrude Bell, August 1920, From Her Personal Papers, 1914–1926, vol. 2, ed. Elizabeth Burgoyne, London: Ernest Benn Limited, 1961, p. 157. 69 Gertrude Bell, Letter to her father, 3 October 1920 Bell’s Letters, Newcastle Library. In Toby Dodge, Inventing Iraq – The Failure of Nation-Building and a History Denied, Oxford University Press, 2003, p. 69. 70 Edward Said, Orientalism, Penguin Classics, 2003, p. 245 71 See conformity of CPA Order 39 replacing “all existing foreign investment law” (Section 3, § 1, CPA/ORD/19 Sept. 2003/39) with Article 43 of the Hague Convention (1907): “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, Annex to the Convention: Regulations respecting the laws and customs of war on land - Section III: Military authority over the territory of the hostile state - Regulations: Art. 43. 72 Simon Chesterman, You, The People - The United Nations, Transitional Administration, and State-Building, New York, Oxford University Press, 2004, p. 157. 73 See Higher National De-Ba'athification Council & American Enterprise Institute, “Remaking Iraq: Success, Failure, and the Foundation of a New State", Oct. 5 2005. 74 CPA Order 1, 16 May 2003. 75 Coalition Provisional Authority Order No. 4, “Management of Property and Assets of the Iraqi Baath Party”, 3.1, May 25, 2003, rescinded by CPA Order No. 100, para 4.

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Once the old regime is toppled the legal remedy of economic recovery is prescribed. Following military victory the Occupying Powers deliver at once a systemic shock of market liberalisation. In the fog of war they seize “moments of collective trauma to engage in radical social and economic engineering.76”

The medical and legal prescriptions converge around the immunity paradigm. Among the legal transplants enshrined in Iraq’s constitutions are immunities77 extended to foreign corporations and investors. Traditionally immunity was awarded to State representatives and International Organisations who were given statutorily exemptions from domestic laws. In recent times, lex mercatoria generalised the regime of immunity to cover private entities, such as corporations.78

Presumably one might think that the idea of legal immunity is modelled on the biological analyses of medical science. Yet, the medical reference to the immune system’s organic operations is itself derived from the legal tradition. The reference to immunity dates back to Roman law providing that some members of Roman society could enjoy under specific circumstances limited and temporary exoneration – immunitas – from communal debt and reciprocity. “Immunity connotes the means by which the individual is defended from the ‘expropriative effects’ of community, protecting the one who carries it from the risk of contact with those who do not [...].79”

Here I draw from Roberto Esposito’s philosophy of “contrastive symmetry80” between the intertwined paradigms of community and immunity to interpret foreign legal transplantation. In Hegelian terms, immunity and community are mutually dependent processes. Immunity owes its very existence to its opposite term of community. According to Roberto Esposito, the opposition between public and private domains is often translated into a legal distinction between communitas and immunitas.81 “Whereas the communitas is bound by the sacrifice of the compensation the immunitas implies the beneficiary of the dispensatio.82”

The dialectic transformation of Iraqi law under occupation illustrates Esposito’s theory of contrastive symmetry, as the victors distributed the spoils of war without compensation. British and American administrators tailored the 1925 and 2005 legal transplants to immunize their private investors and contractors from domestic jurisdiction. The constitutional transplants facilitated collective expropriation for the benefit of private conglomerates. Whereas corporate immunity

76 Naomi Klein, The Shock Doctrine – The Rise of Disaster Capitalism, New York: Metropolitan Books, 2007, p. 8. 77 Immunities depart from the principle recognized by international law that “a state has jurisdiction over all persons and transactions that occur within its territories.” See David P. Fidler, “A Kinder, Gentler System of Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization”, 2000 Texas International Law Journal 35, 387, p. 395. 78 The corporation is “a profit-making enterprise whose capital is generally represented by shares, and in which there is a firm distinction between the separate entity of the corporation and the shareholders, with limited liability attaching to the latter. The reason for this is that it is the corporation, unlike other legal persons, that engages in foreign trade and investment, and diplomatic protection of legal persons is mainly about the protection of foreign investment.” John Dugard, “Diplomatic Protection”, Max Planck Encyclopedia of Public International Law, Heidelberg and Oxford University Press, 2009, para. 31. 79 Timothy Campbell, “Bios, Immunity, Life: The Thought of Roberto Esposito”, 2006 diacritics, 36:2, 2-22, p. 4. 80 Roberto Esposito, Bios – Biopolitics and Philosophy, University of Minnesota Press, 2008, p. 50. 81 Roberto Esposito, Communitas – The Origin and Destiny of Community, Stanford University Press, 2000 (1988), p. 6. 82 Roberto Esposito, Communitas – The Origin and Destiny of Community, Stanford University Press, 2000 (1988), p. 6.

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facilitated the appropriation of energy by investors from the Western core, it deprived the Middle Eastern periphery of self-determining agency. In a sense the biological metaphor of market sanitization is sanctioned by a legal dynamic of public expropriation and private immunization.

Public expropriation and private immunization

How was this dynamic of contrastive symmetry worked out in Iraq? First, the Occupying Powers sought immunity rationae materiae from customary laws of war in order to dismantle the previous regime’s infrastructures and institutions (public expropriation). Then, under the new regime of occupation, corporations and private military personnel were awarded immunity rationae personae to secure their grip over the spoils of war and perform their activities with limited liability against prosecution (private immunization). The public expropriation was presented as a necessary measure of decontamination, whereas private appropriation was offered as a legal remedy. International administrators who claimed immunity from international humanitarian law managed to orient and secure their home corporations’ private immunity clauses by controlling Iraq’s legal transition.

For instance, the British Government controlled the drafting of bilateral treaties with its Iraqi client State for the purpose of establishing special privileges and monopolies for Anglo-Saxon oil, shipping and engineering companies. In Iraq the Occupying Powers made broad interpretations of their international administrative duties to permanently consign their economic privileges outside the constraints of domestic law. The following pages offer a description of this process of legal immunization of private property rights.

Immunization of oil concession rights under the British Mandate

Under the British Mandate Western investors’ capitulation rights were entrenched under an exclusive oil concession outside the constraints of constitutional law. Iraq’s natural resources came under control of an incubating cartel, which secured a seventy year monopoly over a single concession.83 A March 1925 agreement distributed equal shares amongst British, Dutch, American and French shareholders united under the banner of the deceivingly denominated Turkish Petroleum Company (TPC).84 By securing the oil deal before the promulgation of the Iraqi Constitution, the British High Commission immunized the TPC from compliance with Article 94 of the Constitution subordinating any oil concession to the prior approval of the Iraqi Parliament.85 The TPC also benefited retroactively

83 Daniel Yergin, The Prize – The Epic Quest for Oil, Money and Power, Chapter 10 “Opening the Door on the Middle East: The Turkish Petroleum Company”, Simon & Schuster, 1991, p. 184. 84 Turkish Petroleum Company, Limited Convention with the Government of Iraq, Mar 14, 1925: PRO CO730/158/9/119238; Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and Conflict, John Wiley & Sons, 2004, p. 228; Gareth Jones, « The British Government and the Oil Companies 1912-1924: The Search for an Oil Policy », 1977 The Historical Journal, 20:3, 647, p. 671. 85 “No monopoly or concession shall be granted for dealing with or using any of the natural resources of the land, nor for any public service, nor shall the State revenues be farmed out, except in accordance with law, provided that where the period relating to them exceeds 8 years, they must in each ease be the subject of a special law.” The Constitution of the Kingdom of Iraq, passed by the Iraq Constituent Assembly, July 10th, 1924, promulgated by His Majesty King Faisal, March 21, 1925. See British and Foreign State Papers, 1926, Part I, Vol. CXXIII, London 1931, pp. 383-402.

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from the provisions of Article 114 of the Constitution86, which safeguarded the oil concession’s immunities and privileges derived from Ottoman capitulation.87

The international administration of Iraq entailed the privatisation of public property and the transfer of confiscated assets88 for the subsequent benefit of immunised corporate entities. During the Mandate lucrative and monopolistic contracts were “awarded to British steamship and transport lines.89” Great Britain allegedly carved Iraq out of the Ottoman Empire in order to cure Arab populations from Turkish disease. Yet far from immunizing Iraq from outside influence, foreign interests immunized themselves against conventional laws of war to infiltrate the Iraqi economic base.

“Make Iraq bloom once more”

The British transplants were powerful tools of social engineering designed to initiate the sale of Iraqi assets to foreign investors and indigenous collaborators of the new petromonarchy. Under the British mandate plans were drawn to expand traffic and trade. The dream of British imperialists was to rejuvenate the Garden of the East and “make Iraq bloom once more.90” The “scientific control of the rivers91” was meant to increase crop yields and State revenue. Farm land was confiscated from extended family groups and instead allocated to cooperative tribal leaders.92 Nomadic tribes were sedated in an effort to remove trans-border raiding and protect new tenural obligations.93 Nothing short of an industrial revolution was contemplated to revitalise the cradle of civilisation.

Most cultivable land at the time of British occupation belonged to the commons94 and was “held collectively by the tribes under a variety of traditional prescriptive tenurial arrangement.95” Under British occupation tribal hierarchies were reshuffled.96 With time the British contributed to the creation

86 “All proclamations, regulations and laws issued by the Commander-in-chief of His Britannic Majesty’s forces in Iraq, the Civil Commissioner, and the High Commissioner, and those issued by the Government of His Majesty King Faisal during the period between the 5th November, 1914, and the date of the coming into force of this constitution, shall be considered to be valid as from the date on which they came into force.” The Constitution of the Kingdom of Iraq, passed by the Iraq Constituent Assembly, July 10th, 1924, promulgated by His Majesty King Faisal, March 21, 1925. See British and Foreign State Papers, 1926, Part I, Vol. CXXIII, London 1931, pp. 383-402. 87 The privileges of capitulation enjoyed by the TPC had been prolonged by the letter of the Anglo-Iraqi Treaty of 1922: “His Majesty the King of Iraq undertakes that he will accept and give effect to such reasonable provisions as His Britannic Majesty may consider necessary in judicial matters to safeguard the interests of foreigners in consequence of the non-application of the immunities and privileges enjoyed by them under capitulation or usage.” Article IX, Treaty of Alliance between Great Britain and Iraq, October 10, 1922. 88 For a history of property confiscation law in wartime see James Thuo Gathii, War, Commerce, and International Law, Oxford University Press, 2010. 89 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and Conflict, John Wiley & Sons, 2004, p. 203. 90 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and Conflict, John Wiley & Sons, 2004, p. 202. 91 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and Conflict, John Wiley & Sons, 2004, p. 202. 92 Marion Farouk-Sluglett & Peter Sluglett, “The Transformation of Land Tenure and Rural Social Structure in Central and Southern Iraq C. 1870-1958”, 2008 International Journal of Middle East Studies, 40:1 (abridged), p. 4. 93 Martin Thomas, “Bedouin Tribes and the Imperial Intelligence Services in Syria, Iraq and Transjordan in the 1920s”, 2003 Journal of Contemporary History 38:4, 539, p. 552. 94 Charles Tripp, A History of Iraq, Cambridge University Press, 2007, p. 70. 95 Phebe Marr, The Modern History of Iraq, Boulder, Colorado: Westview, 2012, p. 32. 96 Philip Willard Ireland, Iraq: A Study in Political Development, New York: Macmillan, 1938, pp. 94-95.

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of “a new landed class, owing largely to the acquisition by private individuals of prescriptive rights over large tracts of land.97” A new “oligarchy of landlords” – mostly “urban investors and speculators98” – profited from the expropriation of peasants and tribes. Powerful sheikhs such as Sha‘lan Abu Chon and ‘Abd al-Wahid Sikkar enjoyed “virtual immunity from taxation99”, whereas tenants and small peasant farmers were vulnerable to eviction. The British policy of land distribution along private property rights provided landowner immunity against the commons100, the latter represented by the tributary system and the umma. Peasant indebtedness was in contrastive symmetry with the sheiks’ immunity from taxation.

American transplantation of Global Corporate Law

Under the American regime of occupation a similar policy of dispossession took place. State-owned companies were dismantled101 to cleanse the market from competition distortion. The dissolution of Iraqi public institutions included “defense, security, information, and intelligence organs of government and the entire structure of the Iraqi military, including paramilitary units.102”

After years of isolation and confinement, Iraq was thrust back into the international market.103 The regime of crippling sanctions was lifted by UNSC Resolution 1483 and replaced by a program of economic reconstruction managed by the CPA.104 Pursuant to UNSC Resolution 1483 the CPA was mandated to promote “the welfare of the Iraqi people through the effective administration of the territory” and assist in its “economic reconstruction and [...] sustainable development.105”

The CPA Orders expressly sought the purification of the Iraqi market by erasing entrenched government interests and regulations. Gas and food subsidies were slashed. Half a million state employees, “most of them soldiers, but also doctors, nurses, teachers and engineers106” were dismissed without compensation for having been members of the previous ruling party.107 Public sector wages were fixed at US$35 a month to deter workers from seeking employment with the State.108 In effect the CPA policies derailed the entire public sector, destabilising the State apparatus to facilitate the transition to “free market” activity.

97 Phebe Marr, The Modern History of Iraq, Boulder, Colorado: Westview, 2012, p. 32. Increasingly, “local notables made use of their new powers to acquire vast semi feudal estates, and to reduce 'their' tribesmen to the status of debt-bonded serfs [...].” Marion Farouk-Sluglett & Peter Sluglett, “The Transformation of Land Tenure and Rural Social Structure in Central and Southern Iraq 1870-1958”, 2008 International Journal of Middle East Studies, 40:1 (abridged), 3 p. 3. 98 Phebe Marr, The Modern History of Iraq, Boulder, Colorado: Westview, 2012, p. 32. 99 Peter Sluggett, Britain in Iraq: Contriving King and Country, New York: Columbia University Press, 2007, p. 188, our italics. 100 See Roberto Esposito, Bios: Biopolitics and Philosophy, Minneapolis: University of Minnesota Press, 2007. 101 CPA Order Number 2, Dissolution of Entities. 102 Coalition Provisional Authority Order No. 2, “Dissolution of Entities”, Annex, May 23, 2003. 103 “No country had ever been subjected to the radical degree and intensity of wrenching economic change that the US was attempting in Iraq.” Christopher Doran, Making the World Safe for Capitalism – How Iraq Threatened the U.S. Economic Empire and Had to Be Destroyed, Pluto Press, 2012, p. 145. 104 United Nations Security Council, S/RES/1483 (2003), § 8. 105 United Nations Security Council, S/RES/1483 (2003), § 4 & 8(e). 106 Naomi Klein, The Shock Doctrine – The Rise of Disaster Capitalism, New York: Metropolitan Books, 2007, p. 351. 107 CPA Order 1, 16 May 2003. 108 Christopher Doran, Making the World Safe for Capitalism – How Iraq Threatened the U.S. Economic Empire and Had to Be Destroyed, Pluto Press, 2012, p. 141.

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Under American occupation the legal remedy of economic recovery was prescribed. Once the territory was cleared from “parasitic obstruction” the country underwent liberal constitutional reform to welcome foreign investors. Shock treatments of market liberalization were meant to provide assistance against internal economic deficiency.

A new “trade liberalization policy” enacted the extra-territorial application of American business law in Iraq. All tariffs, custom duties import taxes and trade restrictions were suspended.109 Under CPA Order 49 Iraq's base rate of corporate taxation was reduced to a flat 15 percent. Graduated income tax was eliminated. Additionally foreign companies were allowed to own 100 percent of Iraqi assets and send all their profits to foreign bank accounts without any local financial investment required.110

To ensure the longevity of occupational reform, the CPA maintained strong oversight over the wording of the new constitution. Ratified in 2005 the Iraqi Constitution contains provisions which “guarantee the reform of the Iraqi economy in accordance with modern economic principles to ensure the full investment of its resources, diversification of its sources and the encouragement and the development of the private sector.111”

The same year the Trade and Investment Framework Agreement was signed between the Government of the United States of America and the Government of the Republic of Iraq concerning the Development of Trade and Investment Relations.112 Its Preamble recognises the “essential role” of “private investment”, “foreign private investment” and the “protection of intellectual property rights” against “trade-distorting investment measures” such as “protectionist trade barriers.113” The Trade Framework established a United States-Iraq Council on Trade and Investment whose objectives are to “identify opportunities for expanding trade and investment” (Art.3.1) and to “identify and work, toward the removal of impediments to trade and investment” (Art.3.3).

Prior to the 2005 constitutional guarantee of foreign investment law, international “donors” such as the International Monetary Fund (IMF), the World Bank and the World Trade Organization encouraged the Iraqi “recipient” to engage in substantial market reforms in exchange for financial “relief”. In 2004 the Paris Club and IMF agreed to support a program of debt alleviation and financial assistance on condition Iraq engaged in structural adjustment of its macroeconomic and fiscal policies. Along with the IMF adjustment program the Paris Club debt rescheduling agreement recommended a policy of financial austerity. In 2006 the adoption of the Investment Law No. 13114 followed the

109 Coalition Provisional Authority Order Number 12, “Trade Liberalization Policy”, CPA/ORD/7, June 2003. 110 Naomi Klein, The Shock Doctrine – The Rise of Disaster Capitalism, New York: Metropolitan Books, 2007, p. 345. 111 Article 25 of the 2005 Iraqi Constitution drafted under American supervision. See the Constitution online: http://www.iraqinationality.gov.iq/attach/iraqi_constitution.pdf 112 The Trade and Investment Framework Agreement between the Government of the United States of America and the Government of the Republic of Iraq concerning the Development of Trade and Investment Relations signed in Amman, 11 July 2005. 113 The Trade and Investment Framework Agreement between the Government of the United States of America and the Government of the Republic of Iraq concerning the Development of Trade and Investment Relations signed in Amman, 11 July 2005, para. 5. 114 The Investment Law No (13) of 2006 online: http://files.wp-irak.de/gesetze/Investment_Iraq_13_2006_En.pdf; Sami Shubber, The Law of Investment in Iraq, Leiden, Martinus Nijhoff Publishers, 2009.

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Government’s acquiescence to an economic restructuration program with the IMF.115 The objective was to reduce social expenditure, enhance exports, attract foreign investment and remove restrictions on imports. In an effort to engage Iraq’s market into the global economy the law cuts tariffs and privatizes publicly run industries and services, along the lines of CPA Order 49. American regime-change entrenched foreign investment law into Iraq’s energy and infrastructure markets. Crucial bilateral provisions were drafted to immunize Iraq’s international contractual commitments from domestic oversight. Foreign corporations received legal exemptions derived from capitulation to secure extrajudicial sanctuaries and limited liability against prosecution.

Immunised corporate self-replication

As a result of the legislative reforms, foreign investment has grown consistently since 2006. “In 2011, foreign firms and investors reported over $55 billion in investments, service contracts, and other commercial activities across Iraq [...]. This activity amounted to an increase of 80.4 percent over 2010, while total deal value increased by 40.3 percent.116” The booming energy sector is mostly developed by foreign contractors.117 With the help of mercenaries and security contractors118 American Forward Operating Bases isolate oil extracting sites from acts of sabotage for the benefit of foreign companies: Halliburton, Baker Hughes, Weatherford International and Schlumberger “have won the largest portion of the subcontracts to drill for oil, build wells and refurbish old equipment.119” If the oil sector accounts for 95% of the budget of Iraq it only employs 1% of the Iraqi labor force: most work in the oil fields is accomplished by foreigners. “The occupying U.S.-run administration saw privatization as a way of giving U.S-based firms the ability to make Iraq assets and resources more productive.120” The global regime of private immunisation established an “economic” form of Iraqi State-building by delegating core public competences to private corporations.

II. Collective resistance to legal transplantation in Iraq

In response to transformative trusteeship mounting agitation against foreign intrusion emerged. The biomedical metaphor is easily reversed if we now take the point of view of the host body: from a “patient’s perspective” legal transplant relief would qualify as viral contamination. The life of the corporation effectively eliminates other modes of (community) survival, since it “completely converges

115 Government of Iraq, « Letter of Intent, Memorandum of Economic and Financial Policies and Technical Memorandum of Understanding », online: http://www.imf.org/external/np/loi/2005/irq/120605.pdf 116 United States Department of State, Bureau of Economic and Business Affairs, Investment Climate Statement – Iraq, February 2013 online : < http://www.state.gov/e/eb/rls/othr/ics/2013/204661.htm >. 117 United States Department of State, Bureau of Economic and Business Affairs, Investment Climate Statement – Iraq, February 2013 online : < http://www.state.gov/e/eb/rls/othr/ics/2013/204661.htm >. 118 According to the University of Denver’s Private Security Monitor, the US Department of Defense employed by 2008 more private contractors in Iraq (155,826) than troops (152,275). 119 Andrew E. Kramer, « In Rebuilding Iraq’s Oil Industry, U.S. Subcontractors Hold Sway », The New York Times, 16 juin 2011. 120 James Thuo Gathii, War, Commerce, and International Law, Oxford University Press, 2010, p. 91.

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with the private appropriation of the common.121” Already the first English Charters prompted Hobbes to declare that corporations, by feeding off the Commonwealth, behave “like worms in the entrails of a natural man.122” The biomedical model is again solicited to liken the corporation to a cellular organism appropriating a host body’s vital nutriments in the pursuit of its own self-replication. The social turmoil that erupts in 1920 resembles an “allergic reaction” to British corporate appropriation and public expropriation.

The 1920 antibody resistance to legal transplantation

According to a local newspaper the British Mandate is “intended to deceive just as when [the colonizers] talk of liberating humanity, [and] healing the weak.123” A coalition of disgruntled tribal sheikhs, religious dignitaries and young urban nationalists take to the streets in June 1920. When the British sent in troops in 1920 to suppress the demonstrations in Karbala, “revolt erupted in the cities of southern Iraq.124” In “the Year of the Catastrophe” (Am al-Nakba), the “Awakening” (Thawra) is considered the catalyst of Arab nationalist sentiment against foreign rule and ignites armed resistance across the country. As a result, political officers are abducted and British captains murdered.125 “Everywhere and every day, the rebels sniped, murdered, pillaged, burned, kidnapped, robbed, laid siege, sabotaged, and unwove the very fabric of Britain’s presence.126” The Thawra is the “primary immune response – the immune response that is elicited when the body first encounters a specific antigen.127”

The inflammatory response and the risk of legal transplant rejection

In line with the biological metaphor Iraq’s endogenous resistance to exogenous State-building is similar to an organism’s repulsion and expulsion of foreign pathogens. After “recognizing the specific antigen128” the social immune system mounts a response to expel what is perceived as dangerous to its health.129 When an immune system encounters an invading organism, it alerts the body that it has been invaded by a foreign cell. “For this reason transplants are often unsuccessful because the immune system interprets the transplanted organ as foreign.130” Legal concepts that are foreign to the social

121 Joshua Barkan, “Roberto Esposito’s Political Biology and Corporate Forms of Life”, 2012 Law, Culture and The Humanities 8:1, 84 p. 92. 122 Thomas Hobbes, Leviathan, New York: Barnes and Noble, 2004 [1651], p. 216, quoted in Joshua Barkan, “Roberto Esposito’s Political Biology and Corporate Forms of Life”, 2012 Law, Culture and The Humanities 8:1, 84 p. 95. 123 Philip Willard Ireland, Iraq, A Study in Political Development, New York, Russel & Russel, 1937, p. 262; Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and Conflict, John Wiley & Sons, 2004, p. 254. 124 Judith S. Yaphe, “Until They Leave: Liberation, Occupation, and Insurgency in Iraq”, in Amatzia Baram, Achim Rohde & Ronen Zeidel (ed.), Iraq between Occupations Perspectives from 1920 to the Present, Palgrave Macmillan, 2010, 239 p. 250. 125 David Fromkin, A Peace to End all Peace – The Fall of the Ottoman Empire and the Creation of the Modern Middle East, New York: Henry Holt and Company, 2001, p. 451. 126 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and John Wiley & Sons, 2004, p. 256. 127 K. Lee Lerner & Brenda Wilmoth Lerner (ed.), The Gale Encyclopedia of Science, Entry “the Immune System”, vol. 3, 2004, p. 2098. 128 K. Lee Lerner & Brenda Wilmoth Lerner (ed.), The Gale Encyclopedia of Science, Entry “the Immune System”, vol. 3, 2004, p. 2095 129 John McMurtry, The Cancer Stage of Capitalism, London, Pluto Press, 1999, p. 88. 130 K. Lee Lerner & Brenda Wilmoth Lerner (ed.), The Gale Encyclopedia of Science, Entry “the Immune System”, vol. 3, 2004, p. 2094.

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fabric of the host State are less likely to be successfully transplanted.131 The transition to corporate law was more likely to fail considering Islamic law does not recognize the legal personality of the corporation.132

The 1920 revolt can be seen as an antibody reaction to legal transplantation and the inoculation of the fiscal antigen. Efficient taxation is one of the sources of the revolt.133 British land policy entrenches a class system between tribal landowners and farm workers, in turn accentuating political divisions between advocates and opponents of British rule in Mesopotamia. Some notables and sheiks agree to support British presence in exchange of material privileges and immunity from taxation. “Others, fearing loss of autonomy, land tenure, and increased taxation, rejected any form of colonial tutelage.134” Among them, Shiite dignitaries in the city of Karbala proclaim a Holy War against Christian Infidels. The insurgents oppose both Western presence and local collaborators. On August 12, 1920 tribesmen ambush a political officer who was “trying to meet with an Arab leader at Arbil.135” The “fever” of rebellion spreads to the Kurdish region and leads many into the hands of urban nationalist groups resentful of British expropriating tactics.

Attacking the pathogenic invaders

Resistance networks coordinate efforts to disrupt the enemy’s war objectives by targeting the energy transportation routes and extraction sites. In 1920 the rebels rampage British garrisons, burn local bridges, blow up railroad lines and kill passengers, drown supply ships and massacre their crew.136 The tribes attack Western presence indiscriminately, targeting military and reconstruction efforts alike.137 “Nor did it matter if the British were Moslem Indians or Christian.138”

During the American occupation, “near-daily attacks [frustrate] efforts to resume exports of Iraqi crude via Turkey.139” In 2003 alone, insurgents perform 85 acts of sabotage on the Kirkuk-Ceyhan pipeline140 as a strategy of immune response to a perceived foreign threat to their vital life stream.141 Opposition groups revive the foundational act of national resistance. A second active immunity142 or

131 See Ron Harris & Michael Crystal, “Some Reflections on the Transplantation of British Company Law in Post-Ottoman Palestine”, 2009 Theoretical Inquiries in Law 10, 561, p. 561. 132 See T. Kuran, “The Absence of the Corporation in Islamic Law” 2005 AmJCompL 53, 785; Farhat Ziadeh, Property Law in the Arab World London, Kluwer Law International, 1979. 133 Toby Dodge, Inventing Iraq – The Failure of Nation-Building and a History Denied, Oxford University Press, 2003, p. 135. 134 Judith S. Yaphe, “Until They Leave: Liberation, Occupation, and Insurgency in Iraq”, in Amatzia Baram, Achim Rohde & Ronen Zeidel (ed.), Iraq between Occupations Perspectives from 1920 to the Present, Palgrave Macmillan, 2010, 239 p. 250. 135 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and John Wiley & Sons, 2004, p. 255. 136 Churchill, “Situation in Mesopotamia, 2nd September 1920,” secret Cabinet memo, Aug 2, 1920: BL L/MIL/5/800.Wilson, 294; Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and conflict, John Wiley & Sons, 2004, p. 254-255. 137 Philip Willard Ireland, Iraq, A Study in Political Development, New York, Russel & Russel, 1937, p. 270–271. 138 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and Conflict, John Wiley & Sons, 2004, p. 256. 139 Michael T. Klare, Blood and Oil – The Dangers and Consequences of America’s Growing Petroleum Dependency, Metropolitan Books, 2004, p. 101. 140 Michael T. Klare, Blood and Oil – The Dangers and Consequences of America’s Growing Petroleum Dependency, Metropolitan Books, 2004, p. 101. 141 John McMurtry, The Cancer Stage of Capitalism, London, Pluto Press, 1999, p. 89. 142 Larry L. Mai, Marcus Young Owl & M. P. Kersting, The Cambridge Dictionary of Human Biology and Evolution, Cambridge University Press, 2005, Entry: “Active immunity”, p. 5.

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resistance to infection emerges, mirroring the Thawra against British State-building in the 1920s. The 2004 insurgency is the “secondary immune response – the immune response that is elicited when the body encounters a specific antigen a second time. Insurgents put the electrical infrastructure out of commission, “sabotaging the towers that carry high-voltage lines to Baghdad from generating facilities in the south.143”

The CPA “order banning Baathist Party members from holding government office compels many previously neutral Iraqis144” to join the insurrection. Iraqi army veterans who had been dismissed without compensation by the CPA emerge after major combat operations to wage guerilla warfare against foreign troops. “They carry out ‘search and destroy’ missions within the body. If these cells encounter a foreign microorganism, they will either engulf the foreign invader or destroy the invader.145” Having recognized the invasive antigens, ambushed Iraqi antibodies perform “cellular wall perforation” by blasting army vehicles with explosives. “Free antibodies bind to the antigens of the invading bacteria and target them for destruction.146” Between 2005 and 2006 “roadside bombs explode at a rate of six hundred per week.147”

Iraqi delegates and ministers are considered corrupt by contagious collaboration with the enemy. Abu Mousab al-Zarqawi, the Al-Qaeda operative and plotter of the 2006 Golden Mosque bombing in Samarra, describes the Iraqi security forces as “the eyes, ears and hand of the occupier.148” The ensuing “body parts war149” as American soldiers call it, becomes a metabolic metaphor of the country’s division between collaborators and insurgents. Repeated suicide bombings, roadside ambushes and explosions target analgesic collaborators such as Parliament officials. The Green zone becomes an infected tissue attacked by natural killer cells punching holes into the cell membrane. These are not random acts of terror motivated by “sectarian radicals” but assassinations of Iraqi collaborators targeted by the militia as “enemies”. A study conducted by the University of Chicago Project on Security and Terrorism reveals that 95% of suicide attacks are not motivated by religious fundamentalism but are in response to foreign occupation and civilian casualties.150

III. Immunosuppressant expulsion of antibodies

143 Office of the Special Inspector General for Iraqi Reconstruction, “Hearing to Examine Iraq Stabilization and Reconstruction”, Washington, D.C., 2006. PAGE?!? 144 Fred Kaplan, The Insurgents: David Petraus and the Plot to Change the American Way of War, Simon & Schuster, 2013, p. 114. 145 K. Lee Lerner & Brenda Wilmoth Lerner (ed.), The Gale Encyclopedia of Science, Entry “the Immune System”, vol. 3, 2004, p. 2095. 146 K. Lee Lerner & Brenda Wilmoth Lerner (ed.), The Gale Encyclopedia of Science, Entry “the Immune System”, vol. 3, 2004, p. 2094. 147 Fred Kaplan, The Insurgents: David Petraus and the Plot to Change the American Way of War, Simon & Schuster, 2013, p. 178 148 Brian Bennett, “The world’s toughest beat”, Time March 1 2004, p. 43. 149 Garett Reppenhagen, “A soldier’s view” in Bary S. Levy & Victor W. Sidel, “The Iraq War” in Levy & Sidel (ed.), War & Public Health, Oxford University Press, 2008, p. 253. 150 See Robert A. Pape & James K. Feldman, Cutting the Fuse: The Explosion of Global Suicide Terrorism and How to Stop It, University of Chicago Press, 2010. "We now have strong evidence that the narrative - that suicide terrorism is prompted by Islamic fundamentalism - is not true. […] The research also showed that civilian casualties during occupations increase suicide terrorism by giving terrorist leaders rallying points to turn local residents against the invading force.”

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To fight antibody resistance the Occupying Powers dispatch immunosuppressant agents across the “ill-willed” country. “The goal is to prevent the immune system from attacking the newly transplanted organ when the organ is not closely matched. If these medicines are not used, the body will almost always launch an immune response and destroy the foreign tissue.151” Iraqi “immunosurgents” are to be rendered inoperative to preserve the transplantation of the British and American client State.

In 1920 the winds of Arab nationalism blow through the streets of Baghdad. In the burgeoning age of networks, radio and press campaigns help the resistance spread the ideology of resistance. British officials use the metaphor of disease to refer to the spread of dangerous nationalist ideas. The invader disqualifies its military adversary, reducing it to parasitic resistance.152 In Gertrude Bell’s opinion, the 1920 revolt is “a nationalist reign of terror.153” The community’s lifeguards become the carriers of disease.

The necessity to monitor crowds in an age of mass politics prompts the British to develop an epidemiological perspective on Arab political networks. The fear of “infectious ideas” (theocracy, communism) occupies the minds of the colonial establishment, which increasingly perceives Arab nationalism as “irrational and dangerous.154” To quell popular antipathy against British foreign rule, the Mandate is formally replaced by a treaty of alliance with Iraq in 1921. In a letter to Churchill, the Head of the British Forces explains why the mandate shall be exercised through more subtle forms of coercion:

[The Iraqis] seem to me to resemble a child who, in its anxiety to display its power of walking, resents the nurse taking its hand, but submits, without loss of amour-propre and possibly with some gratitude, to support exerted less ostentatiously elsewhere.155

Indirect rule over Iraq by way of bilateral treaty negotiations would be a subtler instrument of British rule.

In the absence of any sign of appeasement the British try to preserve their influence in the Golf by squashing the contagious nationalist rebellion. Consequently, agitators are arrested, newspapers closed down and opposing political parties banned.156 The High Commission modifies Iraqi law in order to expel “foreigners who were deemed to be a threat to public safety.157” Pursuant to the Ordinance of 9 June 1923 and on the recommendation of the High Commissioner, the government arrests and deports to Iran 37 Shiite clerics considered to be Persian.158 British antigens aim to neutralize the immune

151U.S. National Library of Medicine, Entry “Transplant Rejection” online: http://www.nlm.nih.gov/medlineplus/ency/article/000815.htm 152 Gerry Simpson, “Piracy & The origins of Enmity” in Matthew Craven, Malgosia Fitzmaurice & Maria Vogiatzi (dir.), Time, History and International Law, Brill, 2007, 219, p. 224. 153 Aaron S. Klieman, Foundations of British Policy in the Arab World: The Cairo Conference of 1921, Baltimore, The John Hopkins University Press, 1970, p. 56. 154 Toby Dodge, Inventing Iraq – The Failure of Nation-Building and a History Denied, Oxford University Press, 2003, p. 21 155 Public Records Office (PRO), Colonial Office (CO) 730/33, Letter, GHQ British Forces in Iraq, 27 March 1922, from Haldane, Head of British Forces, Iraq, to Winston Churchill, as cited by Toby Dodge, Inventing Iraq – The Failure of Nation-Building and a History Denied, Oxford University Press, 2003, p. 65. 156 Toby Dodge, Inventing Iraq – The Failure of Nation-Building and a History Denied, Oxford University Press, 2003, p. 21. 157 Adeed Dawisha, A Political History from Independence to Occupation, Princeton University Press, 2009, p. 25. 158 Habib Ishow, Structures sociales et politiques de l'Irak contemporain: Pourquoi un État en crise ?, L'Harmattan, 2003, p. 126.

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system’s antibodies. A mixture of military counterinsurgency and monetary kickbacks is administered to suppress the recipient's immune system.

Immunosuppressant air raids

When resistance cannot be eliminated it is pacified. Under the British mandate tribal rebellion is “pacified” by the burning of crops, the destruction of homes159 and the new power of airplanes. The “hornet's nest of Arab tribes160” is fumigated by air raids. “The desert was alive with Arab raiding parties and, in Colonel Leachman's opinion, the only way to deal with the disaffected tribes was ‘wholesale slaughter’.161” Air strikes are meant to force the recalcitrant tribes into collaboration with the new regime. “The RAF used aerial bombings to level whole villages. Karbala, Najaf, and Kufa surrendered in mid-October [1920]. With most of the leaders under arrest or in exile, the tribes and towns of southern Iraq submitted to British authority.162” The Kufa mosque is bombed for sheltering political activists.163 In the mountainous Mosul province the RAF uses poison gas bombs to expel the Kurdish rebels from their hiding caves.164 In order to establish the new Iraqi State, the British have to pacify “parts of the country which were more or less anarchic and had rarely paid taxes in the past.165” Bombing campaigns also satisfy the need to protect oil field exploitation from antibody activity over a vast and remote territory.166

It is only after a series of “Morale Bombings167” that the British High Commissioner is able to order under a military ultimatum the ratification of the Constitution by a recalcitrant Iraqi Assembly.168 “Air power was the ‘midwife’ in the birth of the Iraqi state.169” Reflecting on the state of affairs in 1925 Lieut.-Colonel Leo Amery claims: “If the aeroplanes were removed tomorrow, the whole structure would inevitably fall to pieces.170” Throughout the 1920s surgical air strikes continue to be performed on rebellious tribes for the non payment of taxes.

Air control for fiscal efficiency

159 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and John Wiley & Sons, 2004, p. 253. 160 Prime Minister Herbert Asquith, Letters to Venetia Stanley, Oxford University Press, 1982, p. 510, quoted by David Fromkin, A Peace to End all Peace – The Fall of the Ottoman Empire and the Creation of the Modern Middle East, New York: Henry Holt and Company, 2001, p. 141. 161 David Fromkin, A Peace to End all Peace – The Fall of the Ottoman Empire and the Creation of the Modern Middle East, New York: Henry Holt and Company, 2001, p. 452. 162 Judith S. Yaphe, “Until They Leave: Liberation, Occupation, and Insurgency in Iraq”, in Amatzia Baram, Achim Rohde & Ronen Zeidel (ed.), Iraq between Occupations Perspectives from 1920 to the Present, Palgrave Macmillan, 2010, 239 p. 250. 163 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and John Wiley & Sons, 2004, p. 256. 164 See Secret memo of RAF to Air Ministry, Apr 19, 1919: PRO AIR2/122.n April 29, 1919: “Gas bombs are required by 31st Wing for use against recalcitrant Arabs as experiment, the suggestion being concurred in by the General Staff, Baghdad” as cited in Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and John Wiley & Sons, 2004, p. 248. 165 Peter Sluggett, Britain in Iraq: Contriving King and Country, New York: Columbia University Press, 2007, p. 187. 166 Majid A. Majid, L’émergence d’un État à l’ombre d’un Empire : Irak – Grande-Bretagne, Publications de la Sorbonne, 1996, p. 117. 167 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and John Wiley & Sons, 2004, p. 257. 168 Habib Ishow, Structures sociales et politiques de l'Irak contemporain: Pourquoi un État en crise ?, L'Harmattan, 2003, p. 129. 169 Toby Dodge, Inventing Iraq – The Failure of Nation-Building and a History Denied, Oxford University Press, 2003, p. 136. 170 CP 235 (25) Visit of the Secretary of State for the Colonies to Iraq, 11 May 1925: CO 730/89/23385.

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Aerial bombings and torch on the ground are meant to “terrorise the inhabitants of parts of rural Iraq into paying taxes.171” Some tribal sheikhs charged by the British with collecting taxes on behalf of the government had previously failed to comply. Only through constant immunosuppressant airstrikes, military blockades, water shortages and “cash influx from the British rentals, purchases, wages, and political subsidies172” are the Occupants able to contain the “irrational mass completely under sway of social or moral contagion173” and regain control of the territory. The clash between imperial troops and tribes totalled 8,450 Arab and 426 British casualties, and cost 40 million pounds sterling. Britain decided to use air power and local levies to quell the resistance and create a pliable recipient of British transplants.174

Draining the swamp

In Iraq the U.S. military has become an oil-protecting agency for the benefit of American corporations. Antibodies which are vital to the survival of the old regime’s shadow State are either taken down in direct field combat or remotely eliminated by airstrikes. “Search and sweep175” operations destroy many Iraqi homes as punishment for the insurgency.176 Between 2003 and 2006, 40,000 insurgents are killed and 200,000 wounded by American troops. With the national elections ahead the American Occupying Powers decide to deploy counterinsurgency tactics177 to clean out the “festering wound178” of guerilla warfare before it “metastasizes179”: “the insurgent learns and adapts, so the counterinsurgent needs to do the same.180” The team responsible for drawing up the American counterinsurgency plan is a group of PhDs from the military academies and the RAND corporation advising the Pentagon on military strategy in Iraq. They are referred to as “Doctors Without Orders181” – a play on the denomination of the international relief organisation founded by the French Doctors.

As violence escalates the United States commit 20,000 additional troops on the ground in 2007 to act as immunosuppressant. “As the war metamorphosed from regime change to counterinsurgency, the Coalition adopted more invasive and punitive measures.182” According to the Surge Plan

171 Peter Sluggett, Britain in Iraq: Contriving King and Country, New York: Columbia University Press, 2007, p. 192 172 Edwin Black, Banking on Baghdad: Inside Iraq's 7,000-Year History of War, Profit, and Conflict, John Wiley & Sons, 2004, p. 216. 173 Peta Mitchell p. 65 referring to the work of Gustave LeBon, Psychologie des foules, Paris: Félix Alcan, 1895. 174 Judith S. Yaphe, “Until They Leave: Liberation, Occupation, and Insurgency in Iraq”, in Amatzia Baram, Achim Rohde & Ronen Zeidel (ed.), Iraq between Occupations Perspectives from 1920 to the Present, Palgrave Macmillan, 2010, 239 p. 251. 175 Nigel Aylwin-Foster, “Changing the army for Counterinsurgency Operations”, 2005 Military Review Nov-Dec, 2. 176 Agence France Presse, “U.S. Forces Demolish Iraqi Homes”, Washington D.C., March 3, 2004. 177 The historical repetition is hard to miss: a U.S. military pamphlet titled “Twenty-eight Articles: Fundamentals of Company-level Counterinsurgency” is a direct reference “to “Twenty-Seven Articles” that T.E. Lawrence had famously written for British officers helping Arab insurgents fend off the Ottoman occupiers in 1917.” Insurgents, p. 177. 178 Colonel Thomas X. Hammes, DoD Counterinsurgency Advisor Frontline PBS “Endgame” Airdate: June 19, 2007 179 Wilson D. St. Pierre, Second Lieutenant, U.S. Army, Tal Afar, Iraq, Letter to the Editor, “Out, Damned Spot!” 2006 Foreign Affairs 85:1, p. 172. 180 Conrad Crane, “COIN Principles, Imperatives and Paradoxes” quoted in Fred Kaplan, The Insurgents: David Petraus and the Plot to Change the American Way of War, Simon & Schuster, 2013, p. 151 181 Interview Col. William Hix Frontline PBS “Endgame” Airdate: June 19, 2007. Among them Darrell Henderson & Dr. Sepp. Also Lt. Col. Donald G. Rose. 182 Thomas W. Smith, “Protecting Civilians... or Soldiers? Humanitarian Law and the Economy of Risk in Iraq”, 2008 International Studies Perspectives 9, 144, p. 152.

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Announcement the aim is to “embed”, “surround” and “isolate radical Islamic extremists and militias.183” In order to address the “endemic disease” of terrorism US troops adopt a new policy of “clearing insurgents door-to-door, holding neighbourhoods by stationing troops among the people.184” To defeat the “endless swarm” of insurgents the Occupying Army must “drain the swamp” and wage a new type of war by attacking their breeding ground. “It was standard practice in house-to-house combat to fire ‘clearing rounds’ – spraying gunfire or tossing fragmentation grenades into a room in preparation for entry [...].185” Incapable of distinguishing between combatants and civilians, some U.S. military divisions equate the insurgency with “an amorphous organism186” and target military-age males indiscriminately.187 Homes in highly populated urban areas are sprayed with gunfire. “It may be a bad tactic” but “it keeps you alive.188”

During the November 2004 battle of Fallujah, codenamed Operation Phantom Fury, the US army has recourse to white phosphorus to clear the city of insurgents. White phosphorus is used to "Shake & Bake" or “flush out combatants from fortified positions189” – otherwise known as “spider holes190” – as a way to expose them to sniper fire and high explosives. The chemical agent is also reported to have directly affected civilians in the densely-populated areas of Nasariyah, Fallujah, and Baquba.191 It is hard to ignore the dystopian irony of using in Iraq the very type of chemical weapons the U.S. Government had officially intended to remove from the country as a motive for intervention. In the name of biochemical decontamination the war instead ravaged and polluted the country. Medical reports indicate that women and children mortality rates exploded more than fifty-fold since the invasion and bombardment campaigns.192

Community embedding

The insurgent’s immune reaction is painfully contained by a commitment of additional ground troops. Local “agitators” such as Moqtada al-Sadr – "a cancer undermining the legitimate government193” – are eliminated. The Mahdi Army, which provided basic service such as electricity to the population of Sadr City, is disbanded. External antigens aim to expulse the host’s antibodies and prevent their return 183 President George W. Bush’s Troop Surge Plan Announcement "President's Address to the Nation", Office of the Press Secretary, January 10, 2007. 184 Bary S. Levy & Victor W. Sidel, “The Iraq War” in Levy & Sidel (ed.), War & Public Health, Oxford University Press, 2008, p. 248. 185 Thomas W. Smith, “Protecting Civilians... or Soldiers? Humanitarian Law and the Economy of Risk in Iraq”, 2008 International Studies Perspectives 9, 144, p. 153. 186 Thomas W. Smith, “Protecting Civilians... or Soldiers? Humanitarian Law and the Economy of Risk in Iraq”, 2008 International Studies Perspectives 9, 144, p. 158. 187 Thomas W. Smith, “Protecting Civilians... or Soldiers? Humanitarian Law and the Economy of Risk in Iraq”, 2008 International Studies Perspectives 9, 144, p. 159. 188 Soldier quoted in Thomas W. Smith, “Protecting Civilians... or Soldiers? Humanitarian Law and the Economy of Risk in Iraq”, 2008 International Studies Perspectives 9, 144, p. 159. 189 Joseph D.Tessier, “Shake & Bake: Dual-Use Chemicals, Contexts, and the Illegality of American White Phosphorus Attacks in Iraq”, 6 Pierce L. Rev. 323 (2007-2008) p. 326. 190 Joseph D.Tessier, “Shake & Bake: Dual-Use Chemicals, Contexts, and the Illegality of American White Phosphorus Attacks in Iraq”, 6 Pierce L. Rev. 323 (2007-2008) p. 356. 191 Joseph D.Tessier, “Shake & Bake: Dual-Use Chemicals, Contexts, and the Illegality of American White Phosphorus Attacks in Iraq”, 6 Pierce L. Rev. 323 (2007-2008) p. 355. 192 L. Roberts, R. Lafta, R. Garfield et al., « Mortality after the 2003 invasion of Iraq: A cross-sectional cluster sample survey », 2004 Lancet 364, 1857-1864. 193 Charles Krauthammer, "In Baker's Blunder, a Chance for Bush," Washington Post, December 15, 2006.

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by embedding themselves into the community, by “winning the hearts and minds” of the population. As difficulties of local policing mounted the British and Americans would resort to tactics of cooptation and bribery. This is evident in General David Petraus’ surge tactics that will come to be known as “Clear Hold, Build.194” Iraq’s spoils of war are used to compensate civilian property loss and infrastructure damages. The insurgency is “domesticated by ever larger doses of the antidote195”, namely monetary bribes. An infantry soldier believes that “With a heavy dose of fear and violence, and a lot of money for projects, I think we can convince these people that we are here to help them.196” The Americans will resort to the Commander’s Emergency Response Program, a discretionary fund financed by Saddam’s treasure trove to bribe local officials and pay compensation to people whose houses had been destroyed or family members killed. “‘Money is ammunition,’ [Petraus] liked to say.197”

Furthermore, although the US is party to the Geneva Conventions requiring the protection of civilians from military attack198 and the belligerents’ respect of their right of access to care, the Iraq War of 2003 violated “the requirements of immunity for civilian populations, proportionality, and the prevention of unnecessary suffering.199” Virtual immunity of private security companies from the general rules of International Humanitarian Law was mirrored by the loss of civilian immunity from harmful military objectives. The “war against terror” doctrine broadened the scope of military necessity and narrowed the “distinctions between soldiers and civilians that legitimize civilian casualties and destruction to civilian property as collateral damage.200”

Domestic immunity for private companies

To protect American immunosuppressant agents from prosecution President George W. Bush signed a Status of Force Agreement (SOFA) with the Iraqi Government in 2008. SOFA applied until 2012 and offered complete immunity from the laws of the host country while U.S. personnel were present in Iraq.201 SOFA secured provisions concerning American and Iraqi joint civil and criminal jurisdiction over U.S. military personnel (Article 12), and immunity from taxes, customs, and claims on imports and exports by U.S. forces and contractors in Iraq (Articles 15 and 16). The regime of private immunities has multiplied to the extent of Government’s delegation of competences. The more the American Government outsourced its military and reconstruction efforts in Iraq the more immunities were 194 “[T]he counterinsurgents must also live among the people: to isolate them form the insurgency, keep the area secure, and thus earn their trust, so that they in turn provide intelligence about the identity and whereabouts of the surviving rebels.” Fred Kaplan, The Insurgents: David Petraus and the Plot to Change the American Way of War, Simon & Schuster, 2013, p. 19. 195 Roberto Esposito, Bios – Biopolitics and Philosophy, University of Minnesota Press, 2008, p. 125 196 Lieutenant Colonel Nathan Sassaman, US 4th Infantry Division, December 2003, as cited by Dexter Filkins, “A region inflamed: Tough new tactics by US tighten grip on Iraq towns”, New York Times, 7 December 2003. 197 Fred Kaplan, The Insurgents: David Petraus and the Plot to Change the American Way of War, Simon & Schuster, 2013, p. 76. 198 Of particular relevance to the War in Iraq: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” Article 50, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. 199 Bary S. Levy & Victor W. Sidel, “The Iraq War” in Levy & Sidel (ed.), War & Public Health, Oxford University Press, 2008, p. 42. 200 James Thuo Gathii, War, Commerce, and International Law, Oxford University Press, 2010, p. 55. 201 “Agreement Between the United States of America and Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq”

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granted to government contractors. Formerly associated with State prerogative and monopolies, immunity has come to encompass a wide range of outsourced government responsibilities.

The main provision of interest for our study is Article 21, which states: “With the exception of claims arising from contracts, each Party shall waive the right to claim compensation against the other Party for any damage, loss, or destruction of property, or compensation for injuries or deaths that could happen to members of the force or civilian component of either Party arising out of the performance of their official duties in Iraq.” The Agreement provides immunity from legal action for all previous damages, misdemeanours and felonies perpetrated by armed forces in their line of duty and private security forces up to Dec. 31, 2011. The armed forces’ immunity policy limited commanders’ responsibilities and diluted the doctrine of military proportionality. Conversely it rendered civilians vulnerable to military abuse and contributed to the increase of non-combatant casualties.202

Conclusion

The history of Iraq illustrates the persistent use of the biological metaphor to describe international State-building and regime change. Similar to a doctor’s relationship to his patient, the international tutor deployed a wide range of governmental techniques aimed at exerting control over Iraq’s constitution.203 Nearly a century of international trusteeship over Iraq showcases the liberal endeavour of prescribing economic therapy to the ills of political corruption. Iraqis were repeatedly asked to accept free market treatment as a cure to their political fractures. From 1918 onwards the pervasive use of the biomedical metaphor, in line with the ideology of market rationality, has shaped the country’s history “first as tragedy, then as farce.204” The tragically failed British attempt at State-building205 is a distant and distorted mirror of the American farce of exogenous State collapse.206

Whereas British tutors struggled to rear a puppet monarch for the benefit of Western oil companies, American proponents of the free market attempted to expunge governmental interference from the economy, creating a political vacuum of great magnitude. Contrary to British indirect rule which still relied on the ideology of sovereign political representation, American regime change resembled “not a revolution exactly but a capitalist Reformation: a return to uncontaminated capitalism.207”

In our study the legal epidemiological discourse was applied to Iraq to test the strength of the medical analogy in the field of international relations. Iraq constitutes a radical test to sketch the outlines of a growing autoimmunity crisis in reaction to corporate globalisation. State-building is the 202 Thomas W. Smith, “Protecting Civilians... or Soldiers? Humanitarian Law and the Economy of Risk in Iraq”, 2008 International Studies Perspectives 9, 144. 203 For a general discussion on the topic of biopolitics see Michel Foucault, Society Must Be Defended: Lectures at the Collège de France, 1975-1976, New York, NY: St. Martin's Press, 1997. 204 “Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.” Karl Marx, The Eighteenth Brumaire of Louis Bonaparte, 1852, in Marx’s Later Political Writings, Cambridge Texts in the History of Political Thought, p. 31. 205 See Sir George Buchanan, The Tragedy of Mesopotamia, London: William Blackwood & Sons, 1938, 169–172. 206 Iraq’s state of collapse is addressed in Susan E. Rice & Stewart Patrick, Index of State Weakness in the Developing World, Washington, DC, Brookings Institution, 2008. 207 Naomi Klein, The Shock Doctrine – The Rise of Disaster Capitalism, New York: Metropolitan Books, 2007, p. 54, our italics.

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site of political exclusion in the name of sovereign inclusion, of immunity in the name of community, of contamination in the name of recovery. Far from liberating the population from terror, the process of “decontamination” and deregulation in the name of “economic recovery” is an attempt to disrupt the regulatory centers of the Mesopotamian “nervous system”. International trusteeship and regime change are foreign-policy euphemisms to whitewash pathogenic patterns of primitive accumulation. As Peta Mitchell convincingly argues in Contagious Metaphor208, the narrative of contamination is contaminated by its own discursive fallacies. And indeed the binary structure of Western purity and Oriental impurity breaks down as soon as Iraq’s social turmoil is traced back to Western interest in oil. What emerges instead is a dialectical synthesis between the specificity of Iraq’s social formation and the international hegemony of Anglo-Saxon capitalism.

In both historical instances Iraq’s social immune system was impaired by repeated foreign legal transplants, progressively damaging its ability to protect its population from disease. “In these ways, the social life-host is rendered increasingly immune-incompetent precisely as the conditions of the global market system unprecedentedly challenge its life-fabrics and members.209”

Iraqi history informs us that once the immunosuppressant British air power had departed, the transplanted artificial Nation State was up for grabs to the highest military bidder. Once the British mandate came to an end in 1932 the fragile Iraqi monarchy set up ten years earlier by Churchill was prone to military coups and political violence. Headed by General Bakr Sidqi, young army officers armed and trained by the British took control of the State apparatus and toppled the constitutional monarchy. Today, “U.S. security interests are not very different from those of the British in 1932.210” In light of the early 2014 spread of violence in Anbar and Bagdad al-Maliki’s Government is still under attack by factions willing to sustain an atmosphere of insecurity to undermine political support for the U.S.-backed regime. It remains to be seen if the new Government will follow the fate of the puppet regime initially established by the British. After a brief study of Iraq’s history under international tutelage, it is questionable whether foreign bioengineering genuinely improves the lives of the people held in trust: “we discover that situations are rarely genuinely improved by human-imposed restraints and often require even more violent adjustment than if they had initially been left alone.211”

208 Peta Mitchell, Contagious Metaphor, Bloomsbury, 2012. 209 See John McMurtry, The Cancer Stage of Capitalism, London, Pluto Press, 1999, p. 91. 210 Judith S. Yaphe, “Until They Leave: Liberation, Occupation, and Insurgency in Iraq”, in Amatzia Baram, Achim Rohde, and Ronen Zeidel (ed.), Iraq between Occupations Perspectives from 1920 to the Present, Palgrave Macmillan, 2010, 239 p. 258. 211 William W. Demastes, Theatre of Chaos : beyond absurdism, into orderly disorder, Cambridge university Press, 1998, p.167.