On paper Iraq's penal code has striking similarities to Western criminal law: Suspects have the right to a fair trial, the right to an attorney, and are innocent until proven guilty. But in practice, Iraqi justice is a work in progress, with long trial delays and frequent allegations of coerced confessions, experts say. These shortcomings are expected to become more pronounced in 2009, when Iraqi authorities assume control of all detainees taken into custody by Iraqi and American forces (a change mandated under the security agreement signed between Washington and Baghdad in December 2008).

Michael Wahid Hanna, a program officer at The Century Foundation who spent May 2008 conducting field research for Human Rights Watch on Iraq's justice system, says despite the official handover of legal jurisdiction, Iraq's legal system remains besieged by "major systemic and structural problems."Hanna says lengthy pretrial detentions; an overreliance on shoddy evidence or secret informants; allegations of abuse; and insufficient access to defense attorneys are endemic failures that will take time and continued U.S. support to improve. His findings are detailed in a new Human Rights Watch report (PDF), released in December 2008.

Despite the official handover of legal responsibilities on January 1, 2009, Hanna says the U.S. military will likely continue to keep Iraqi prisoners in custody because Iraq's detention facilities don't have the capacity. While necessary in the short term, this arrangement could become a future source of friction between Washington and Baghdad in the event that disagreements over the handling of specific prisoners arise.