A process is now underway in Iraq to establish a new institution, the Iraqi Special Tribunal, that will try members of the former regime for serious violations of international and Iraqi law. The United States Institute of Peace’s Rule of Law Program is engaged in an ongoing effort to facilitate the development of this Tribunal in a way that contributes to justice and reconciliation in Iraq, operates efficiently, and adheres to a high standard of due process.

Summary

  • On December 10, 2003, the Iraqi Governing Council adopted the "Statute of the Iraqi Special Tribunal," providing the legal foundation and laying out the jurisdiction and basic structure for the Tribunal that will be responsible for prosecuting acts of genocide, crimes against humanity, and war crimes committed in Iraq between 1968 and 2003.
  • Cases of mass violations of human rights and international humanitarian law present exceptional legal and logistical challenges due to the huge numbers of victims, witnesses, incidents, and evidentiary documents involved, as well as the legal complexities of the crimes in question. These challenges are magnified in situations such as Iraq where there is a need to build from the ground up a new judicial institution to handle the cases.
  • The process of establishing the Iraqi Special Tribunal can be made smoother and more efficient by examining the lessons learned from the creation and operation of other international criminal tribunals, such as the International Criminal Tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone, and the East Timor Serious Crimes Unit, as well as from the experiences of domestic legal processes for adjudicating mass violations of human rights and international law.
  • These lessons relate both to the legal issues that will be faced by the Iraqi Special Tribunal and to the practical aspects of establishing a Tribunal that effectively contributes to justice and reconciliation, operates efficiently, and adheres to a high standard of due process.
  • Legal matters that will require attention in the process of establishing the Tribunal include crafting rules of procedure and evidence, rules of detention, and sentencing guidelines. Practical matters include organization of the start-up phase, design of a management structure, and creation of a defense counsel system. Issues particular to the Iraqi Special Tribunal, such as precise definition of the role of international personnel called for in the Statute, will need to be addressed as well.
  • Based on the experience of other similar tribunals as described by the experts at the Amsterdam meeting, this report provides recommendations concerning each of the above issues, as well as others ranging from the importance of establishing a strong public outreach program early in the Tribunal’s life cycle, to the impact of defense counsel fee arrangements on the pace of trials, to the value of separating trial and sentencing phases of proceedings.

About the Report

A process is now underway in Iraq to establish a new institution, the Iraqi Special Tribunal, that will try members of the former regime for serious violations of international and Iraqi law. The United States Institute of Peace’s Rule of Law Program is engaged in an ongoing effort to facilitate the development of this Tribunal in a way that contributes to justice and reconciliation in Iraq, operates efficiently, and adheres to a high standard of due process.

As part of this effort, the Institute held a conference in March 2004 in Amsterdam, The Netherlands, that brought together Iraqis involved in establishing the Tribunal with experts on international criminal law and the practical operations of special tribunals from nine countries. The conference was organized by the United States Institute of Peace and co-sponsored by the Institute and the Institute for International Criminal Investigation. This report is based largely on the principal views and insights shared at the conference regarding the work that will need to be undertaken to establish the Iraqi Special Tribunal. The suggestions in this report reflect “lessons learned” from the work of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, the Special Court for Sierra Leone, the East Timor Serious Crimes Unit, and various national judicial processes concerning accountability for mass violations of human rights and international humanitarian law. Laurel Miller of the Institute’s Rule of Law Program wrote this report.

The views expressed in this report do not necessarily reflect views of the United States Institute of Peace, which does not advocate specific policy positions.

Related Publications

Where Is Iraq a Year After Prime Minister Kadhimi Took Office?

Where Is Iraq a Year After Prime Minister Kadhimi Took Office?

Thursday, May 6, 2021

By: Dr. Elie Abouaoun; Sarhang Hamasaeed

Iraqi Prime Minister Mustafa al-Kadhimi came to power a year ago today after a protest movement toppled the previous government and successive attempts to establish a new one failed. Inheriting a country deep in the midst of political and economic crises, Kadhimi has spent the last year trying to put Iraq back on the path toward stability all while navigating U.S.-Iran tensions playing out on Iraqi soil. USIP’s Elie Abouaoun and Sarhang Hamasaeed look at what Kadhimi has done to attempt to placate protesters, the importance of Iraq’s October national elections and how the prime minister has dealt with U.S.-Iran tensions.

Type: Analysis and Commentary

Democracy & Governance

Struggle for Sinjar: Iraqis’ Views on Governance in the Disputed District

Struggle for Sinjar: Iraqis’ Views on Governance in the Disputed District

Monday, April 12, 2021

By: Osama Gharizi

Iraq’s Sinjar district and its communities have struggled to recover from the recent conflict against the Islamic State group (ISIS). This is due in large part to the fact that the district is one of 14 territories under dispute between Iraq’s federal government and the Kurdistan Regional Government (KRG). As a result, Sinjar has become an arena for competition between the federal government, KRG and other actors in the post-ISIS period. This reality has led to frustration, anger and disillusionment among the communities in Sinjar, the majority of whom are Yazidi (Ezidi).

Type: Analysis and Commentary

Democracy & Governance

New Talks Could Help Iraq Find Room to Stabilize Amid Crises

New Talks Could Help Iraq Find Room to Stabilize Amid Crises

Thursday, April 8, 2021

By: James Rupert

As Iraq’s government struggles to build stability in the face of economic decline, COVID, political protest and periodic violence, it may see new hope for some maneuvering room in its narrow political space between the United States and Iran. One day after U.S. and Iranian officials agreed through intermediaries to work toward restoring the 2015 accord over Iran’s nuclear program, American and Iraqi diplomats announced an intent to remove U.S. combat forces from Iraq. Both initiatives face deep uncertainties. But if successful they could widen Iraq’s difficult path toward peace.

Type: Analysis and Commentary

Global Policy; Mediation, Negotiation & Dialogue

Struggle for Sinjar: Iraqis’ Views on Security in the Disputed District

Struggle for Sinjar: Iraqis’ Views on Security in the Disputed District

Monday, April 5, 2021

By: Osama Gharizi

Home to Iraq’s beleaguered Yazidi (Ezidi) community, Sinjar has long been caught amid tension between Iraq’s federal government and the Kurdistan Regional Government (KRG), leading to severe underdevelopment in the district. Compounding Sinjar’s historical struggles, the district also witnessed the Islamic State group’s (ISIS) egregious crimes against the Yazidis. In October 2020, the Iraqi government and KRG announced an agreement on Sinjar that attempts to resolve two pressing factors undermining its stability…

Type: Analysis and Commentary

Democracy & Governance

View All Publications