Abstract
Contemporary Iraq is facing the full range of challenges that come with postconflict transitional justice. This includes the backward-looking issues of restorative and retributive justice for the atrocities and mass human rights violations they suffered during the Saddam Hussein regime and the conflict that followed his downfall.1 It also includes the forward-looking efforts of `paving the road to peace and reconciliation' and establishing a functional state characterized by the rule of law in a society torn apart by conflict.2 Among the critical institutions demanding attention in the post-conflict reconstruction is the judiciary-particularly with respect to its independence.3 There is increasing recognition that a functional legal system, one that protects rights and redresses wrongs, is vital to restoring peace and stability to a war-torn society.4 Only with such a sound legal system-and a fair, impartial, and independent judiciary-will people trust their disputes to the state and refrain from the vigilante score-settling that signals the breakdown of the rule of law. There is nothing routine about postconflict justice. Every post-conflict society, including Iraq, faces a unique set of circumstances. The problem of creating an independent judiciary in Iraq is exacerbated by a number of factors. Among these are the explicit recognition of the law of Islam in the Iraqi Constitution,5 the inability to pass legislation on the Federal Courts of Iraq leaving several provisions of the Iraqi Constitution unimplemented,6 and the deBa'athification authority in Iraq, which has the power to effectively remove judges from office based on allegations that they were too closely tied to the prior regime.7 The absence of a law on federal courts leaves several other critical elements of judicial independence unaddressed, including provisions for the tenure, reappointment, and removal of judges.8 Serious concerns about security for judges in Iraq only further complicate the prospects for judicial independence in the near future. Any hope for a functional state, competent to establish and maintain the rule of law in Iraq, depends on the success of efforts to address each of these challenges. It is a tall order.