Ever since the Nuremberg Trials, when the United States and its allies placed Nazi leaders on trial for their crimes, the international community has generally agreed that mass atrocities committed in wartime are subject to judicial oversight through criminal trials.
Examples of this norm include the creation of ad hoc international or hybrid tribunals responding to a specific mass atrocity or conflict. These include the International Criminal Tribunal for Rwanda, created after the 1994 Rwandan genocide, and the Extraordinary Chambers in the Courts of Cambodia, created in response to the atrocities committed by the Khmer Rouge regime from 17 April 1975 and 6 January 1979.
These efforts have recently culminated in the International Criminal Court (ICC), which came into being in 2002 and has international criminal oversight over states that agree to its jurisdiction. Through treaty, the ICC has the ability to prosecute crimes such as genocide, crimes against humanity, war crimes, and the crime of aggression.
Thus far, 121 countries have accepted the jurisdiction of the ICC. The US has not accepted ICC jurisdiction, which means that the ICC cannot adjudicate allegations of crimes committed by US nationals, particularly US government officials.
This lack of ICC jurisdiction results in the loss of an important check against violations of international law. For example, with respect to the Iraq War, there continue to be lingering questions as to the liability of government officials in authorizing torture and utilizing faulty intelligence in justifying the invasion of Iraq.
While there has been some investigation into Bush-era abuses, these investigations have been unsatisfactory for many reasons. First, these cases have only been pursued against low level personnel and not against high level officials, who may have instituted or even ordered the criminal policies, procedures, and/or conduct.
Second, these proceedings may not be open to the public or may be classified as confidential.
Third, these cases do not involve the international community and therefore, while the US, through its role on the Security Council, has called for the adjudication of alleged crimes against international law committed by other countries and officials, it refuses to subject its own officials to such investigations and prosecutions.
The Iraq War stands out in particular with respect to potential violations of law. It is by now common knowledge that Iraqis were tortured and abused while in custody. Iraqi cultural artifacts were destroyed, and hundreds of thousands of Iraqis were forced to flee their country.
One of the primary goals of Witness Iraq is to act in some function as a database of harms with respect to the Iraq War. Normally, this database would be compiled by prosecutors or other historians within the context of a criminal investigation. Absent such an investigation, Witness Iraq seeks to record testimony of persons harmed by the Iraq War in the hope that such cataloging will prevent similar harms from taking place in the future.