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II. Background

In the aftermath of the fall of the Ba’thist government, the world witnessed the distressing sight of Iraqis, in numerous locations around Iraq, desperately uncovering and excavating mass graves and seizing thousands of pages of government documents, in an attempt to determine the fate of missing and “disappeared” relatives.  The United States (U.S.)-led coalition forces had no coherent strategy to protect sites of potential importance to future prosecutions, and the general failure to maintain law and order and preserve civilian infrastructure in the wake of the government’s collapse extended to an inability to secure sites containing much forensic and documentary evidence. 

In the town of al-Hillah, south of Baghdad, Human Rights Watch documented villagers’ attempt to excavate a mass grave with a backhoe, resulting in the disinterment and commingling of some 2,000 sets of remains and the disturbing of materials found with the bodies.³  Many of these remains were ultimately reburied without identification, and crucial forensic evidence was lost in the process.  Under pressure from human rights organizations, the Coalition Provisional Authority (CPA - the administration created by the occupying powers) hastily prepared a “Mass Graves Action Plan” in the summer of 2003, but lacked both the personnel and the financial resources to implement it as the number of identified mass graves rose to over 200.⁴ 

Around the same time, millions of pages of government records were seized from the unguarded offices of former security services, by an array of Iraqi groups and individuals.  These included Iraqi political parties, bereaved relatives and newly-formed human rights associations.  Each of these entities held the documents for their own purposes, and generally with little concern for preserving the integrity of the documentation in order to assist future prosecutions. In a November 2004 report, Human Rights Watch concluded that the failure to protect these documents, and the absence of any coherent plan for managing their storage and archiving, meant that there were serious concerns about the integrity of the documents and their potential evidentiary value in any trial.⁵

The general state of disarray in planning for Iraq’s post-conflict justice needs was symptomatic of an ad hoc approach to the process of determining how to prosecute leaders of the former government accused of human rights violations.  From an early stage, the U.S. consistently opposed an international tribunal or mixed Iraqi-international court under United Nations (U.N.) auspices.⁶ 

Although human rights organizations and international experts advocated a mixed Iraqi-International Commission of Experts to review the situation and propose a comprehensive strategy for addressing Iraq’s legacy of human rights violations, the U.S.-led CPA insisted on an “Iraqi-led” process – without establishing a transparent process to consult Iraqis or assess Iraqi attitudes towards issues of justice and accountability.  Instead, the proposal for an “Iraqi Special Tribunal” emanated from individuals close to the CPA and the CPA-appointed Interim Governing Council (IGC).  The process of drafting and revising the founding document of the Iraqi Special Tribunal lacked transparency. Numerous requests by Human Rights Watch and other human rights organizations and international experts to see and comment upon the draft law were rejected.

Difficulties in obtaining information about the SICT have persisted, contributing to a general lack of knowledge about the court among the Iraqi population, and internationally.  Due in large part to poor security conditions in Iraq, the establishment and operationalization of the court has been a slow process.  At the same time, the court has come under consistent pressure from successive Iraqi interim governments to speed up its investigations and prosecutions.