Supporting Transitional Justice in Fragile Environments: Lessons from Iraq Post-ISIS

22 November 2018   ·   ​Osama Gharizi

The Iraqi case demonstrates the impediments to transitional justice efforts in fragile, post-conflict environments. To support these efforts, Germany should provide technical assistance; seek out reliable, influential government partners; strike a balance between the sometimes divergent outcomes of state-building, democratization and transitional justice processes; and find effective pathways that harness traditional justice mechanisms.

In a constant state of transition since 2003 – away from both dictatorship and various phases of conflict – Iraq highlights the challenges of and limitations to supporting the implementation of transitional justice approaches in fragile environments. Criminal prosecution, reparations and truth-seeking have struggled to produce desired outcomes here. Yet, with the recent military defeat of ISIS and a newly elected government, Iraq enters a new phase in which the German government and other international stakeholders can support the country in establishing credible and effective transitional justice mechanisms that aim to redress the crimes and grievances committed during the ISIS period. When designing policies to aid these efforts, policymakers should be conscious and considerate of the following aspects: 

Legacy of the past

Since 2003, Iraq’s political development has made ethno-sectarian identities more salient and created a political climate steeped in sectarianism. Consequently, transitional justice processes have taken on a politicized, sectarian nature. 

One specific case illustrates this point: In 2006, the government established an agency called the Martyrs Foundation, which was mandated to compensate families of those killed under the reign of Saddam Hussein’s Baathist regime. In practice, however, the institution was closely aligned with the Shia-dominated Al-Dawa party. This association tainted the institution’s mandate as it was seen as favoring the Shia community, even though the institution had also resolved cases impacting other communities. In 2015, the institution was given a broader mandate to compensate all victims of conflict in Iraq but its sectarian legacy and image threatens to undermine these efforts.

Given the existing ethno-sectarian political dynamics and their impact on transitional justice initiatives to-date, future support strategies need to recognize these legacies and adapt to the political realities of the country. However, this will not be easy, as the recent establishment of the United Nations’ international investigation into the crimes committed by ISIS illustrates: the investigation is limited in scope and does not include crimes committed by pro-government forces, such as the Popular Mobilization Forces. This could eventually further fuel the existing grievances about discriminatory justice and perpetuate sectarian narratives.  

Provide technical support

Yet there are tangible steps the German government and other international donors can take. For one, they can offer technical assistance to existing government institutions that conduct transitional justice programs. This could prevent these programs’ bias towards one particular community, particularly in addressing one of the most pressing transitional justice issues: reparations. Helping the Iraqi government to establish a centralized register for all victims of conflict, as well as a claims process that limits corruption while not overburdening victims with documentation requirements, would both broaden and streamline the compensation mechanism. Relatedly, supporting a government and civil society public awareness campaign on the reparation process would also reduce existing confusions about how to access – and what to expect from – the claims process.

International stakeholders should also seek out reliable, influential government partners that can help advance an inclusive transitional justice agenda. The recently established Higher Committee for Coexistence and Community Peace (HCCCP) offers one such entry point for international stakeholders. The HCCCP, tasked to advance transitional justice issues, is directed by the chief of staff for the council of ministers – a powerful position that oversees the work of all government ministries. Given this, the HCCCP not only sits atop a government framework that represents all political actors but it has the ability to enact initiatives that may otherwise be stalled or compromised in other public institutions.

Lastly, the German government and other international actors can help fill in the gaps missed by Iraqi government efforts that may be perceived as favoring one community over others. For example, initiatives can be funded through government and civil society organizations that memorialize all the victims of the conflict with ISIS, irrespective of community, or that advance, through advocacy and awareness campaigns, a common narrative of victimization rooted in an inclusive Iraqi identity.  

Balancing state-building, democratization and transitional justice processes

International actors also need to be informed about the relationship between Iraq’s state-building processes, democratic transition and desired transitional justice outcomes. In Iraq, key democratic precepts, such as the rule of law, have struggled to materialize and rampant institutional corruption has become a hallmark of the countries’ democratic transition: Iraq is ranked as one of the most corrupt in the world. It is not a surprise that these types of democratic deficiencies pose a challenge to transitional justice processes. While an easy panacea does not exist, donor countries should seek to understand how the processes of state-building, democratization and transitional justice intersect and interact in order to develop strategies that untangle – rather than reinforce – points of contention between them.

One crucial area of support is the reform and implementation of key legislation that cuts across and impacts all three processes. In Iraq, this is anti-terrorism legislation as well as the amnesty law of 2016. In their current format, these laws are seen as adding to Sunni grievances of collective punishment and marginalization, as they offer little leeway in distinguishing between actual terrorists who committed violent crimes and those who were forced to join extremist groups as low-level followers responsible for menial tasks.

Understanding and harnessing traditional justice mechanisms

As in many other countries, Iraq has traditional conflict mediation mechanisms that fall outside the formal political framework, with the most prevalent being tribal dispute resolution mechanisms. The saliency of these mechanisms tends to be inversely tied to state authority: when state power is strong, tribal justice mechanisms are weak; when state authority is weak, tribal justice mechanisms grow in power. As such, tribal dispute mechanisms have at various times either competed with or completely supplanted formal justice mechanism. These mechanisms are again on the rise in the post-ISIS period, which is disconcerting for several reasons. For one, tribalism and tribal justice processes contain features that contradict and violate both Iraqi civil and international humanitarian law, such as exchange of women in dispute resolution practices. Moreover, tribal law condones revenge acts of violence if those accused of being guilty refuse to pay blood money compensation. This could engender new cycles of violence. Also, tribes allow for collective punishment, such as the forced displacement of families associated with known ISIS members.

While obviously anathema to formal justice processes and human rights principles, trying to forcefully dismantle tribal processes risks spurring further conflict by exacerbating an already strained relationship between tribal and state authorities. Instead, the German government should develop policies and strategies that engage these actors in a way that minimizes their exclusionary principles and pushes tribal actors to support formal justice mechanism. An existing example of this involves dialogue processes that commit tribal leaders to drop the demand for blood money compensation and, instead, seek reparations from the state compensation mechanism. These processes also culminate in agreements that discontinue the practice of forced displacement.

The case of Iraq demonstrates the impediments to developing transitional justice processes in a country undergoing a democratic transition and emerging from a series of conflicts. The country has to deal with the crimes and human rights violations committed during the fight against ISIS. To avoid potential pitfalls and a repeat of past failures, policymakers would do well to focus on strategies that properly take into account the outcomes and legacies created by the country’s political development since 2003; strike a balance between sometimes divergent processes; and find effective pathways that harness and engage traditional actors and justice mechanisms.

Naher Osten & Nordafrika Transitional Justice Irak

​Osama Gharizi

Osama Gharizi is Senior Program Advisor for Iraq at the United States Institute of Peace and a non-resident fellow at GPPi. The views presented are his own.