The Iraqi Criminal Justice System, an Introduction
Warnock, Dan. L., Denver Journal of International Law and Policy
The purpose of this article is to serve as a brief introduction to the criminal justice system, such as it is, in Iraq today. It is based on my review of the Iraqi Criminal Procedure Code, (1) my discussions with a small number of individuals--both Iraqi and American--familiar with the system, and my own (admittedly-limited) observations of the system during a six-month military deployment to Baghdad. (2)
One might argue--as many U.S.-trained common-law attorneys do--that a criminal justice system that neither adheres to stare decisis nor atomizes crimes into "elements" can hardly provide true justice. An equally-plausible argument could be made that true justice cannot be achieved in a system that insists on having a defendant's fate decided by a lay peer jury with no legal training and that builds a complex network of evidentiary rules that restrict consideration of relevant and probative evidence. To a significant extent, one's determination of justice is based in large part on whether one finds justice in doing right by society (i.e., punishing the guilty despite any corruption or misconduct by the government investigators) or in doing right by the individual (letting an obviously-guilty person go free in order to "punish" the "system").
Although this philosophical dilemma partly prompted this article, it is beyond its scope. This article will not conduct a normative analysis of any particular legal system, nor does it propose to conduct a comparative analysis of the civil law trial-by-judge system such as it exists in Iraq and the common law trial-by-jury system used in criminal trials in the United States. Instead, the goal of this article is to step through the Iraqi criminal justice system writ large--as it is envisioned in the Iraqi Criminal Procedure Code and as I have seen it in practice.
I. IRAQI CRIMINAL JUSTICE SYSTEM--THE PLAYERS
During its short-lived tenure as the de facto Government of Iraq, the Coalition Provisional Authority (CPA) attempted a limited overhaul of the Iraqi criminal justice system. (3) One change was the creation of the Central Criminal Court of Iraq (CCCI); (4) a court with sweeping, nation-wide criminal jurisdiction (5) but a specific mandate to focus on terrorism, organized crime, corruption, and other serious cases. (6) Fortunately for the Iraqis, the CPA did not try to impose procedures or substantive law from common-law systems on the new court. Instead, the CCCI is configured and runs in the same way as the regular provincial criminal courts in Iraq. Each branch of the CCCI consists of an Investigative Court and a Felony (trial) Court. (7) The Court implements Iraqi substantive and procedural criminal law the same as other courts. (8) Appeals travel directly to the Court of Cassation. (9) The Iraqi Criminal Procedure Code thus applies to all cases processed through the CCCI, from arrest and detention through investigation, trial, and punishment. (10)
A. A Quick Comparison of Roles and Responsibilities
Regardless of the court in which the Code is being applied, it is important to understand a little about the players in order to understand the Code. Some writers have made the mistake of trying to compare a civil law trial-by-judge system with the common law trial-by-jury system used in criminal trials in the United States. (11) In the confines of an article such as this, to do any kind of satisfactory comparative analysis is impossible. However, by referencing the key benchmarks in both justice systems, it is easy enough to see that they both attempt to arrive at the same goals--public punishment of criminal offenders--albeit from different cultural and historical perspectives.
In the United States criminal justice system, the prosecutor is a personage of enormous power. The prosecutor is the one who reviews data collected by-the police (and who, to some extent, directs the type of information and evidence to be collected), who decides whether the evidence is sufficient to go forward, who formulates the nature and content of criminal charges, who controls the offer and acceptance of plea bargains, who decides the means and method by which incriminating evidence will be presented to the fact finder, and, finally, whose charisma and credibility are to some extent in play when lay peer juries are evaluating the sufficiency of the evidence. …