Northern Iraq, December 1991

Iraqi Kurds observe the exhumation of graves containing the remains of captured Iranian pilots executed by Iraqi forces during the 1980-1988 Iran-Iraq war.

Iraq

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Background

Resources

ICTJ Activity

The ICTJ has worked to contribute to the development of effective transitional justice strategies in Iraq since 2003. The Center has recognized from the outset that such measures should closely reflect Iraqis' needs, attitudes, and perceptions. Such measures continue to have great symbolic importance in Iraqi public discourse, even as the intensity of violence continues and fresh human rights violations occur.

After producing a framework policy paper in 2003, the ICTJ partnered with the Human Rights Center of the University of California, Berkeley, to produce the first in-depth study of Iraqi perspectives on transitional justice, titled "Iraqi Voices." The report, published in 2004, showed a strong demand for judicial accountability for the previous regime's violations. Iraqis demanded an Iraqi-controlled process, but welcomed international assistance to ensure that trials would be fair and unbiased. The research also revealed a deep need for a comprehensive reparations program and a desire for comparative information about other countries' experiences with truth-seeking and vetting processes.

In the period after the 2003, Iraqis and foreigners took several steps to seek accountability for past crimes. Initiatives were taken on prosecutions, vetting, reparations, and the return of property. But successive Iraqi governments have lacked any coherent transitional justice strategy, and most initiatives have suffered due to poor planning, lack of public consultation, and contradictory goals. Iraq's high levels of violence and sectarian conflict since 2003 also greatly complicated any transitional justice efforts.

In addition to the specific areas of focus below, the ICTJ has provided extensive materials (often in Arabic) to Iraqi decision-makers on the establishment of transitional justice mechanisms that emphasize the need for transparency, inclusiveness, and comprehensive consultation with civil society, government, and other groups. The Center has engaged in advocacy and provided policy advice to members of the National Assembly, ministries and ministerial staff, the Iraqi Governing Council, and the Interim Government, and other government and independent institutions; Iraqi civil society actors, including members of professional associations, nongovernmental organizations, political parties, and the media; the United States and United Kingdom governments, member states of the UN Security Council, and UN departments and agencies.

Prosecutions

The ICTJ has closely monitored efforts to bring Iraqi perpetrators of international crimes to justice. The Iraq Special Tribunal was created in December 2003 by delegation of authority from Ambassador Paul Bremer, then administrator of the Coalition Provisional Authority (CPA), to the Iraqi Governing Council. The tribunal was integrated into Iraqi national law in October 2005, when it became known as the Iraqi High Tribunal.

The ICTJ has monitored the Tribunal since its inception. The Center expressed public concerns about the tribunal's dependence on the United States for funding, training, investigations, and prosecutorial strategy, and argued for diversified international assistance. It has provided public feedback on the tribunal's design, procedural rules, and proceedings in an effort to enhance the court's independence and increase the likelihood of its work being conducted in accordance with international human rights standards.

The ICTJ observed proceedings of the Dujail, Anfal, and 1991 Intifada trials regularly, and from the ground. Prior to the commencement of proceedings, the Center commented on the Statute and the Rules of Procedure and Evidence. In July 2005 the Center organized a pre-trial dialogue on international standards in London with IHT prosecutors and judges.

The ICTJ has published several briefing papers and analytical reports on the proceedings to date. It has also produced English translations of the IHT Statute, Rules of Procedure and Evidence, and (in partnership with Human Rights Watch), the Dujail Trial Chamber's Written Judgment of November 2006. All are available in English and Arabic on the ICTJ website.

Reparations

Many Iraqis are keenly interested in the idea of providing reparations to the victims of severe human rights violations. The Coalition Provisional Authority (CPA) and the Iraqi government both took steps to compensate Iraqi victims of Saddam-era crimes. A "Higher Council for Reparations to Victims of the Former Regime," eventually began work in late 2004. ICTJ staff met with members of the Council over several days in March 2005 to provide them with information and analysis to assist in the eventual design and implementation of a reparations process.

In the following months the ICTJ gave similar feedback on draft laws developed by government officials and the Iraqi National Assembly. In late 2005 the Iraqi parliament passed two laws creating reparations policy for former political prisoners and individuals killed for political reasons by the Ba'athist regime. The Martyrs' Foundation and the Political Prisoners' Foundation were established in 2007 and began start up operations despite significant technical and political challenges, and preliminary funding had been promised personally by the Prime Minister. The Kurdish Regional Government's Ministry for Martyrs and Anfal Affairs also sought to develop activities.

ICTJ, in partnership with the United Nations Assistance Mission in Iraq, held a major seminar for key Iraqi stakeholders on reparations issues in July 2007, and is working on follow up activities for the future.

In all its consultations the Center has stressed the need for robust and effective program design, the vital role of victim consultations, and the importance of linking reparations with other transitional justice mechanisms.

Vetting

Shortly after the fall of the regime, American and Iraqi officials embarked on a "Deba'athification" process, whereby certain kinds of Ba'ath Party members were dismissed from government jobs. The process became bitterly controversial and had far-reaching social and political impact.

As a result of CPA orders in May 2003, unknown numbers of persons were formally dismissed from governmental positions and prohibited from all future public sector employment. The operating capacity of several state institutions was severely reduced. The Iraqi Higher National Deba'athification Council was created in September 2003 and quickly wrested control of the issue from CPA officials.The Council introduced an appeals process, but simultaneously extended procedures to include a larger set of individuals, also targeting property and assets.

The ICTJ advocated against this approach, maintaining that in an environment of widespread Ba'ath party affiliation, individuals should be assessed on the basis of past actions-not party membership. The Center met repeatedly with senior officials to voice these and other concerns, and monitored implementation of DeBa'athification closely. As pressure to reform DeBa'athification grew in 2007, the ICTJ provided feedback on draft legislation to a wide variety of stakeholders, and in cooperation with UNAMI also held a ground-breaking seminar with Iraqi policymakers on the lessons of comparative experience.

In January 2008, the Iraqi National Assembly approved a new "Justice and Accountability Law" that revised some aspects of DeBa'athification, but left many areas intact. The ICTJ published a translation and analysis of the new law's impact, available below.

Truth-seeking

In 2003 CPA officials proposed a truth-seeking commission for Iraq. The ICTJ cautioned against precipitous action and a top-down approach, stressing that successful truth-seeking efforts require victim and civil society participation from the very start.

In February 2004, the Center produced a briefing paper, "Toward a Truth Commission for Iraq," [link- Kasia to add]concluding that any truth-seeking process in Iraq should be developed and designed through rigorous and inclusive education and consultation, and must demonstrate independence from extraneous political considerations. In subsequent visits to Iraq the Center advocated for Iraqis to have time to consult and learn about other truth-seeking experiences before any decisions were made. CPA officials later decided to delay the process to allow time for a consultation and educational process. In September 2005 the ICTJ participated in a multi-day meeting to discuss the establishment of a future National Center for the Missing and Disappeared in Iraq.

Background

The regime presided over by Saddam Hussein was the most recent and most brutal of a succession of authoritarian governments in Iraq that employed extrajudicial violence to maintain their grip on power.

For more than 35 years, Hussein and his close associates built a complex, patronage-driven, and exceptionally violent state. Members of the Ba'ath leadership ruled by a system of "terror and reward," making widespread use of torture, extrajudicial executions, arbitrary detentions, and forced disappearances to compel obedience and silence dissent across the country. Some 300,000 Iraqis remain missing. The criminal court system was trumped by a system of "special courts;" the death penalty was used routinely and extensively; and Ba'ath security networks and the terror they invoked permeated every aspect of daily life.

Over and above these forms of vigilant repression, Hussein's rule was characterized by savage crusades of violence against Iraq's ethnic and religious communities, from which no group was immune. In the north, these included decades-long campaigns of destruction, forced displacement, and indiscriminate attacks against the Kurds; forcible transfer of ethnic minorities from the oil-rich region of Kirkuk and their replacement with Arab families; and perpetration of the genocidal "Anfal" campaign in the highlands of Iraqi Kurdistan from February to September 1988, during which more than 100,000 Kurds are believed to have been rounded up and executed.

In the south, the Iraqi majority Shi'a population began stirring against its exclusion from institutions of political power. This coincided with the emergence of the Islamic Republic in Iran and the start of the Iran-Iraq War (1980-1988). Repression against the Shi'a included the expulsion of an estimated half a million people to Iran; the imprisonment or disappearance of between 50,000 and 70,000 civilians; and the harsh suppression of the 1991 rebellion in the south, during which unknown thousands were detained, disappeared, or summarily executed. The associated bombardment, drainage, and forced displacements carried out in the southern marshlands are estimated by experts to have reduced the overall marshland population from 250,000 in the early 1990s to no more than 40,000 by 2003. International sanctions exacted a heavy additional toll.

As sectarian and ethnic differences widen and multinational forces continue to be present, transitional justice issues are also strongly affected by recent, post-Saddam regime events. These range from insurgent, militia, and MNF-related violations, the proposed Kirkuk referendum, massive forced displacement, and the ongoing impact of the Deba'athification process. Issues of victimhood, displacement, and accountability for current severe human rights violations play important roles in current politics. An effective and legitimate reckoning with the past will be essential to establishing a future Iraqi state where the rule of law and human rights are respected.

(Updated May 2008)

Iraq Resources