The Iraqi criminal justice system, an introduction.

• Author: Warnock, Dan. L.

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.

1. 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)

   1. 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. The prosecutor and police in our accusatorial system work together, often with considerable government resources at their disposal, to investigate allegations of criminal conduct. If they believe a crime has been committed, they then determine (i) who they believe should be held to account for the crime, (ii) in what forum and with what charges the alleged offender should be charged, and (iii) the substance and means of presenting the facts to a fact finder. (12) In this system, the judge's role is that of a gatekeeper, a referee who makes sure the charges are supported by reliable and relevant evidence. In the United States system, in which it is paradoxically almost impossible for a lawyer to sit on a jury of peers, the fact-finding panel is given only superficial legal guidance on the legal definitions and presumptions relevant to the particular case it is considering. The purpose of this practice seems to be a desire to ensure that the members are focused solely on the facts as they relate to the charge, rather than on any broad legal consequences of those facts.

      In the Iraqi civil-law criminal justice system, the prosecutor and judge basically switch roles. The Iraqi prosecutor is very much an administrative official whose job is to review the case file for completeness, and to provide recommendations to the judges as they try the case and deliberate their findings. The judges (first the investigative judge, then the trial judges) take center stage--literally--as they run the criminal investigation, issue arrest warrants, interview witnesses, determine appropriate charges, weigh the evidence, issue findings, and pass sentences. Whereas the United States criminal justice systems intentionally separate the pre-trial investigation (in which the judge is only tangentially involved) from the trial process, Iraqi courts consider fact gathering to be an integral part of the judicial purview. Although there is obviously a role for some (even significant) data collection prior to the start of official criminal proceedings, the process--at least on paper--calls for the investigative judge (or his (13) own duly appointed judicial investigator) to repeat or confirm all critical facts in the case. While the prosecutor attends the trial (and even remains with the judges during their deliberations), his role is largely administrative in nature.

      To an Iraqi lawyer (and likely the average Iraqi citizen on the street as well), the idea that an untrained member of the public could or should be involved in determining something so important as guilt or innocence in a criminal case is preposterous. Trial judges are the best and brightest of the legal profession and have significant training and experience prior to being appointed to the bench. The judges rightly consider themselves experts in knowing what the law says and, more importantly, what it means. (14)

      It is a truism that the standard American lawyer answer to any legal question is "it depends"--because a slight change in the facts can often lead to significant changes in legal consequences. However, once all relevant facts have been determined, a lawyer can give a definitive answer based on the law as it stands at that time. Of course, the well-entrenched principle of judicial review allows American courts to decide that one or another social (non-legal) consideration should affect the outcome of the case.

      Iraqi judges do not have such leeway. Their job is to apply the facts to the plain wording of the law. As such, the concept of following precedent is meaningless because it is irrelevant: an Iraqi judge is commissioned to determine whether the accused in a particular case violated the law vel non. (15) Looking to other cases will not tell us whether this accused is guilty or not. To paraphrase General David Petraeus' September 2007 interviews leading up to his testimony before Congress, the facts inform the law rather than drive it. (16)

      This point is further driven home by the simple fact of the timing of the official charge. In the American court system, the accused is charged prior to trial proceedings. The entire focus of the prosecution case is directed toward the specific wording of the charge. On many occasions, the defense case is built around trying to defeat one or more elements of the specific charge rather than to completely deny responsibility for any criminality. In the Iraqi system, although an accused is certainly aware of the type of criminal incident for which he is being investigated, the official charge is almost anticlimactic as it comes at the end of the trial. This one procedural change obviates an accused's ability to structure a defense argument built around hypertechnical attacks on the verbiage of the charge and holding the government to what it thought it could prove. Instead, it puts the focus of the entire proceeding on a determination of the facts and their consequence under the law. The Iraqi judges spend their time trying to determine what, if anything happened. Only after ascertaining the facts (with or without counterargument by defense counsel (17)) are the Iraqi judges in a position to formally charge the accused. In Iraq, no one gets off on a technicality.

   2. The Players--Qualification, Training, Appointment, and Tenure

      All players in the Iraqi criminal justice system are trained professionals. Although there appear to be no special training requirements for defense lawyers (whether appointed or retained), other than graduation from law school, (18) Iraqi law imposes specific requirements on all prosecutors and judges involved in the...