Hani Alathori
Formerly UN Assistance Mission for Iraq (UNAMI), Duhok

Introduction

Rather than being an isolated phenomenon, mass atrocities have recurred throughout modern Iraqi history, affecting almost all major ethnic, religious and sectarian communities. This pattern began with the Simele massacre against the Assyrian Christian minority in 1933,^[1] followed by the forced displacement and mass denationalisation of Iraqi Jews between 1950 and 1951. It continued with the persecution and forced displacement of the Faili Kurds during the 1970s and 1980s, the Anfal campaign and the chemical attack on Halabja against the Kurdish population in 1988 and widespread violations committed during and after the 1991 Gulf War against Shiite communities.

Following the 2003 invasion of Iraq, the country witnessed escalating sectarian violence and mass killings that peaked between 2006 and 2008. In 2014, hundreds of Shiite military cadets were summarily executed in the Camp Speicher massacre, shortly before the Islamic State perpetrated genocide against the Yazidi community, alongside widespread and systematic crimes against Assyrians, Turkmen, Shabak, Kakais, Shiites, Sunnis and other communities.

Across these successive episodes, hundreds of thousands of Iraqi civilians were subjected to extrajudicial killings, torture, sexual violence, abduction, forced displacement and enforced disappearance, with women and children among the principal victims. Although committed by different perpetrators, under different political circumstances, and within different legal contexts, these atrocities collectively reveal a recurring pattern of serious international crimes and a persistent culture of impunity resulting from ineffective accountability mechanisms.

Notably, many of these atrocities were committed after 2003, one year after the Rome Statute establishing the International Criminal Court (ICC) entered into force. Depending on their particular factual and legal circumstances, many of these acts may amount to genocide, crimes against humanity or war crimes as defined under the Rome Statute. Although Iraq is not a State Party to the Rome Statute, the Court's jurisdiction is not necessarily limited to States Parties. The Rome Statute provides alternative mechanisms through which the Court may exercise jurisdiction in certain circumstances, most notably

through a referral by the United Nations Security Council (UNSC) acting under Chapter VII of the UN Charter, as occurred in relation to Darfur in 2005 and Libya in 2011. A UNSC referral has accordingly featured in legal debate concerning possible ICC jurisdiction over ISIL crimes committed in Iraq.^[2] In practice, however, such a referral depends upon sufficient political agreement within the Security Council and is therefore vulnerable to geopolitical considerations. Despite the scale of atrocities committed in Iraq after 2003, no such referral was made. This limitation strengthens the case for considering accession: unlike an exceptional Security Council referral, accession would constitute Iraq's own sovereign decision to participate in the permanent Rome Statute system.

Against this background, the question is no longer whether Iraq has experienced atrocity crimes, but whether its legal framework is adequately equipped to investigate, prosecute and punish them in accordance with international criminal law. 

This article argues that Iraq's accession to the Rome Statute would constitute an important step towards enhancing accountability for core international crimes and addressing longstanding gaps in its domestic legal framework. It examines the shortcomings of Iraqi criminal legislation, explains the operation of the principle of complementarity and demonstrates that accession would serve Iraq's national interest by reinforcing the rule of law, strengthening domestic accountability and combating impunity.

Iraq’s accountability gap

Iraq's existing criminal laws provide only a partial legal framework for addressing core international crimes. The Iraqi Penal Code^[3] criminalises offences such as murder, rape, abduction, unlawful detention and bodily harm. However, it does not comprehensively define genocide, crimes against humanity and war crimes as distinct offences reflecting their particular international elements, contexts and collective nature.

This distinction is legally significant. Prosecuting an isolated killing as murder does not necessarily reflect the full criminal character of a killing committed as part of a widespread or systematic attack against a civilian population. Similarly, offences such as persecution, forced population transfer, sexual slavery or the deliberate targeting of civilians during armed conflict cannot always be adequately addressed through ordinary criminal charges.

The Anti-Terrorism Law No. 13 of 2005^[4] has been widely used to prosecute alleged members of the Islamic State. It has enabled Iraqi courts to prosecute and punish individuals for membership in terrorist organisations and participation in terrorist acts. Nevertheless, terrorism charges do not adequately capture the full character of genocide, crimes against humanity or war crimes. A person may therefore be convicted of terrorism-related offences without being prosecuted for the specific international crimes committed against Yazidis or other affected communities. This approach may punish perpetrators, but it does not always provide full legal recognition of the international crimes committed against victims and affected communities. 

The Statute of the Iraqi High Tribunal (formerly the Iraqi Special Tribunal)^[5] incorporated genocide, crimes against humanity and war crimes into Iraqi law. Its jurisdiction, however, was limited to crimes committed between 17 July 1968 and 1 May 2003. It therefore cannot address atrocities committed after that period, including crimes perpetrated by the Islamic State from 2014 onwards.

Iraq consequently lacks a generally applicable and comprehensive legal framework criminalising genocide, crimes against humanity and war crimes. Closing this gap would allow Iraqi courts to prosecute genocide, crimes against humanity and war crimes according to their true legal character, provide appropriate legal recognition to victims and affected communities and strengthen Iraq's ability to fulfil its primary responsibility for prosecuting core international crimes.

Iraq has already taken steps towards addressing this legislative gap. Its cooperation with the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da'esh/ISIL (UNITAD), established by the Security Council at Iraq's request in 2017,^[6] extended beyond the collection and preservation of evidence of ISIL crimes. In March 2023, Iraqi judicial and governmental institutions and UNITAD established a joint working group to consider pathways towards a domestic legal framework for prosecuting international crimes committed by ISIL. The discussions included the possibility of adopting new legislation or amending existing Iraqi legislation to enable such crimes to be prosecuted according to their international legal character.

This engagement is significant because it demonstrates that the incorporation of international crimes into domestic law is compatible with, rather than contrary to, Iraqi sovereignty. It also reinforces the case for Rome Statute accession. Domestic criminalisation would strengthen Iraq's capacity to prosecute international crimes itself, while accession would place that national capacity within the complementary framework of the Rome Statute. The conclusion of UNITAD's mandate in September 2024^[7] further underscores that international investigative assistance is necessarily temporary; sustainable accountability ultimately depends upon Iraqi law and Iraqi judicial institutions.

The experience of the United Nations Assistance Mission for Iraq (UNAMI) similarly illustrates that international assistance cannot substitute for effective national accountability mechanisms. UNAMI and OHCHR have documented continuing challenges in securing accountability for serious human rights violations, notwithstanding progress in areas such as compensation for victims.^[8] The broader lesson is that incorporating international crimes into Iraqi law must therefore be accompanied by capable and independent institutions, effective investigations, protection for victims and witnesses and meaningful access to justice. These institutional safeguards would be important whether accountability is pursued exclusively before Iraqi courts or within the complementary framework created by accession to the Rome Statute.

Complementarity protects Iraqi sovereignty

One of the principal concerns surrounding accession to the Rome Statute is that it could weaken Iraqi sovereignty or transfer primary criminal jurisdiction from Iraqi courts to an international court. This concern overlooks the central principle on which the ICC system is founded.

The ICC is complementary to national criminal jurisdictions.  Accordingly, national courts retain the primary responsibility for investigating and prosecuting genocide, crimes against humanity and war crimes. The ICC is not intended to replace Iraqi courts or act as a general court of appeal over their decisions.

Under the Rome Statute, a case is generally inadmissible before the ICC when it is being genuinely investigated or prosecuted by a State with jurisdiction. The Court may exercise its jurisdiction only where the State concerned is unwilling or genuinely unable to carry out the investigation or prosecution, or where the case is otherwise admissible under the Rome Statute. ^[9]

In other words, accession does not transfer criminal jurisdiction to the ICC; it preserves Iraq's sovereign right – and primary responsibility – to investigate and prosecute international crimes in the first instance.

Accession would therefore preserve Iraq's primary responsibility to investigate and prosecute crimes committed on its territory or by its nationals. Where Iraqi authorities undertake genuine proceedings, the ICC would ordinarily have no basis to exercise its jurisdiction. The most effective means of avoiding ICC intervention is therefore to maintain capable, independent and impartial institutions able to conduct credible investigations and fair trials.

Complementarity should consequently be understood not as a threat to sovereignty but as an incentive to exercise it responsibly. In a democratic State governed by the rule of law, sovereignty is strengthened when national institutions are capable of holding all perpetrators accountable, regardless of their political, military, sectarian or social influence.

The Rome Statute is therefore not a substitute for Iraqi justice; it is a framework for strengthening it.

Why accession serves Iraq’s national interest

Accession to the Rome Statute would strengthen Iraq’s legal and institutional framework in several important respects.

Accession would reinforce the rule of law by affirming that no individual is above accountability for the gravest crimes. Iraq's history demonstrates that impunity for those protected by political office, military authority or powerful group affiliations has contributed to repeated cycles of grave human rights violations. Accession would support the principle that criminal responsibility attaches to individuals and that official position alone does not place a person beyond the reach of justice.

Accession would also strengthen victims’ rights. The Rome Statute recognises victims not merely as sources of evidence but as persons entitled, in appropriate circumstances, to participate in proceedings and seek reparations. This approach would encourage Iraqi institutions to place victims’ dignity, protection, participation and right to an effective remedy at the centre of accountability processes. 

It would further encourage legislative and institutional reform. Accession should therefore be accompanied by comprehensive legislation defining genocide, crimes against humanity and war crimes; measures regulating cooperation with the ICC; stronger witness and victim protection; and improved capacity for judges, prosecutors, investigators and defence lawyers to handle complex international crimes cases. Such reforms would benefit the Iraqi judicial system even where no case ever reached the ICC.

Accession would also enhance Iraq’s international credibility. For a democratic Iraq seeking to distinguish itself from decades of dictatorship, repression and mass violence, accession to the Rome Statute would demonstrate a commitment to justice, human rights and the rule of law. It would show that the new Iraq does not seek protection from accountability but accepts accountability as a foundation of legitimate governance. 

Finally, accession could contribute to deterrence. No judicial mechanism can guarantee that atrocity crimes will never occur. Nevertheless, the prospect of credible national or international prosecution can increase the legal and political costs of committing such crimes. Accession would send a clear message to political leaders, military commanders, armed groups and others that genocide, crimes against humanity and war crimes will not be treated as unavoidable consequences of conflict or political change.  

Accession would therefore serve Iraq's national interest not merely by providing an additional avenue of accountability where necessary, but by strengthening Iraq's own legal system, reinforcing domestic institutions and enhancing its capacity to prevent, investigate and prosecute genocide, crimes against humanity and war crimes.

Conclusion

Modern Iraqi history demonstrates that mass atrocities have not been exceptional events. They have recurred under different governments, during different conflicts and across changing political systems, affecting almost every major community in Iraqi society. Their perpetrators have also varied: State institutions, military forces, armed groups, terrorist organisations and other actors have all contributed to recurring cycles of violence and victimisation.

Accession to the Rome Statute cannot undo these tragedies, nor would it automatically remedy every weakness in Iraq’s justice system. It would, however, provide a legal and institutional framework through which Iraq could strengthen domestic accountability, advance victims’ rights, reform its legislation and reduce the space in which perpetrators of the gravest international crimes operate with impunity.

Most importantly, accession would not require Iraq to surrender its judicial sovereignty. The principle of complementarity preserves the primary role of Iraqi courts and permits ICC intervention only under the conditions established by the Rome Statute. A capable, independent and genuinely functioning Iraqi justice system would therefore remain the first and most important forum for accountability.

For the new democratic Iraq, accession should be viewed not as submission to an external court, but as an affirmation of national responsibility. It would signal that the State is prepared to confront its history, protect all its communities equally, bring justice closer to victims and ensure that future perpetrators of genocide, crimes against humanity and war crimes can no longer rely on impunity.

Notes