For the past 40 years, Iraq has been engulfed in conflict and instability. Nevertheless, it is attempting to address the legacy of grave human rights violations committed during Saddam Hussein’s regime, the post-2003 violence, political instability and sectarianism, and the conflict with the Islamic State of Iraq and the Levant (ISIL, also known as ISIS or Daesh). ICTJ has worked in the country since 2003 advising Iraqis on various accountability and justice options and monitoring measures taken to address the past.
Background: A Repressive Recent History
Saddam Hussein’s Ba’ath party ruled a violent and corrupt regime for over 35 years. Torture, extrajudicial executions, arbitrary detentions, and enforced disappearances were common. Some 300,000 Iraqis remain missing from this period.
Hussein's rule was also characterized by violent campaigns against Iraq’s marginalized ethnic and religious communities. Among them was the genocidal "Anfal" campaign in the highlands of Iraqi Kurdistan. From February to September 1988, it is believed that the regime rounded up and executed more than 100,000 Kurds.
In the South, the regime systematically repressed the Shi'a Muslim population. It expulsed an estimated half million people to Iran; imprisoned or forcibly disappearing between 50,000 and 70,000 civilians; and harshly suppressed the 1991 rebellion, during which thousands were detained, forcibly disappeared, or summarily executed.
The legacy of Saddam Hussein’s authoritarian regime, together with the sectarian civil war that followed his toppling and the conflict with ISIL, make Iraq a complicated context for transitional justice practitioners. ISIL recruited disgruntled Iraqi Sunnis, many of whom had lost positions in the army during the de-Baathification process. In 2014, ISIL conquered Ramadi, Fallujah, Mosul, Tikrit, and major areas in northern Iraq, imposing its brutal rule on millions of people. The Iraqi government declared victory over ISIL in December 2017. However, sleeper cells remain active and threaten areas of Iraq where state authority is weak.
No Transitional Justice
Since the U.S.-led invasion in 2003, Iraqis and international actors have attempted to establish accountability measures for past crimes. But transitional justice initiatives have suffered from poor planning and implementation, challenges to their legitimacy, a lack of public consultation, and contradictory goals.
The prosecution of Saddam Hussein and senior members of his regime could have provided an opportunity for justice; however, the process was eventually marred by severe flaws. There was no formal consultation with victims, and there were grave concerns that the process fell short of international standards for fair trials.
An attempt at vetting, the de-Ba’athification process became bitterly controversial, with far-reaching social and political impacts. Unknown numbers of Ba’ath Party members were dismissed from government jobs and prohibited from future employment in the public sector, with very little regard for due process or the dire administrative, political, and security consequences that would ensue. Several state institutions became significantly impaired as a result, and the process was perceived by many Iraqis as politically driven.
Issues of victimhood and accountability for severe human rights violations continue to have repercussions for current politics. An effective, legitimate reckoning with the past will be essential to establishing an Iraqi state where the rule of law and human rights are respected.
More recently, efforts to address the human rights abuses committed by ISIL have been insufficient or too rushed. As a result, they are unlikely to prevent the recurrence of violence in the future. There is a general sense of dissatisfaction with these efforts, and justice is perceived to be too slow and selective, both by suspected perpetrators and victims. The current approach, which is based solely on military operations and fast-tracked trials against suspected ISIS members, is not helping move Iraq past this controversial chapter of its troubled history. These trials often lack due process protections, and some have allegedly relied on coerced confessions. As long as the underlying drivers of conflict remain unaddressed and the voices of victims go unheard, it will be difficult for Iraq to find true closure and build a lasting peace.
Since 2003, ICTJ has worked with government officials and civil society groups in Iraq, advising them on various transitional justice options. We have closely monitored and reported on measures taken to address past abuses.
At the beginning of our engagement, we partnered with the Human Rights Center of the University of California, Berkeley, to produce Iraqi Voices, an in-depth study of Iraqi perspectives on transitional justice based on interviews with a broad cross-section of the population. The report, published in 2004, showed a strong desire for judicial accountability for the previous regime's violations.
- Vetting. We have provided advice on the ongoing vetting processes and have shared information about other countries’ experiences in the field. ICTJ monitored the de-Ba’athification process and repeatedly met with senior officials to voice concerns about its flaws, maintaining that individuals should be assessed on past actions, not party membership.
- Prosecutions. Throughout the trials of Saddam Hussein and members of his regime before the Iraqi High Tribunal, ICTJ provided advice to various actors involved in the process and raised concern about political interference and dysfunction that marred the tribunal’s work. We gave, for example, feedback on the tribunal’s design, procedural rules, and proceedings, in an effort to enhance its independence and ensure compliance with international human rights standards.
- Reparations. We provided information and analysis to help design and implement effective reparation programs. Our staff met with members of the Higher Council for Reparation to Victims to discuss compensation methods and draft legislation.
- Truth-seeking: ICTJ encouraged Iraqi stakeholders to consult and learn about other countries’ experiences with truth-seeking processes before making any decisions to establish such a mechanism. We recommended increased victim and societal participation in any planned truth-seeking body.