Report of the High Commissioner for Human
Rights*
The Present Situation of Human Rights in
Iraq
*Advance unedited version.
Letter from the United Nations Acting High
Commissioner for Human Rights to the Chairperson of the Commission
on Human Rights
4 June 2004
Dear Mr. Chairman,
The situation of human rights in Iraq has been the subject of
concern in the Commission on Human Rights for a number of years.
Its Special Rapporteur has looked into the situation for over a
decade. The last Special Rapporteur submitted a report on past
violations of human rights in Iraq to the Commission at its
sixtieth session in 2004 (E/CN.4/2004/36 and Add.1). The mandate of
the Special Rapporteur was not renewed at that session.
The situation in Iraq has been the subject of consideration by
the Security Council and is currently engaging its attention, as
well as that of the Special Adviser to the Secretary-General and
other senior United Nations officials.
From a human rights point of view, the situation in Iraq
presents various challenges. Firstly, the Coalition Provisional
Authority and the Interim Governing Council established following
military operations by the Coalition forces are shortly to be
replaced by an Interim Government, which has just been named.
Secondly, there have been acts of terrorism as well as acts of
armed resistance against the armed forces of the Coalition.
Thirdly, a large number of people have been detained, but the
numbers and circumstances were largely unknown until recently.
Fourthly, civilians are adversely affected in various ways, and
there has been extensive loss of life. Lastly, there have been
disturbing reports in the media about certain acts committed by
some members of the Coalition forces that are at variance with
international human rights norms.
At the same time, it has to be recognized that the Iraqi people
have been relieved of the massive, systematic and institutionalized
violations of human rights that took place under the preceding
regime, and that they now have the prospect of arranging for their
own democratic governance under the rule of law and in the spirit
of international human rights norms.
It has long been the practice of the Commission on Human Rights
to consider the state of respect for human rights and humanitarian
law in conflict situations. At its sixtieth session, the Commission
again adopted resolutions and decisions on a number of such
conflict situations.
Having regard to the foregoing, and keeping in mind the lack of
information on the situation of human rights in contemporary Iraq,
I have arranged for the preparation of the attached report which I
have the honor to submit to the members of the Commission.
Please accept, Mr. Chairman, the assurances of my highest
consideration.
Bertrand Ramcharan
Acting United Nations High Commissioner for Human Rights
Contents
Letter of transmittal
Contents
Executive Summary
Introduction
Sources and methods
I. The political context
II. The military/security situation including acts of
terrorism
III. The protection of civilians
IV. The treatment of persons during arrest, detention and
release from detention
A. Introduction
B. The Tabuga report
C. The ICRC report
D. The legal framework
1. International humanitarian law
2. International human rights law
E. Witness testimony
F. Responsibility to protect
V. Displacement
VI. The situation of women
A. Introduction
B. Impact of deterioration in security situation on women
C. Participation in political and public life
D. Abuses allegedly committed by occupying power personnel
E. Gender discrimination and access to justice
VII. The situation of children
VIII. Civil and political rights
A. Freedom of religion or belief
B. Freedom of opinion and expression
C. Administration of justice
D. Accountability for human rights abuses by Coalition Forces
personnel
IX. Transitional justice
A. Institutional initiatives
1. Policy
2. Reparations
3. Vetting
B. The courts
1. The Central Criminal Court
2. The Iraqi Special Tribunal
X. Economic, social and cultural rights
A. Introduction
B. Health
C. Food, water and sanitation
D. Education
XI. Oversight and accountability
XII. Human rights legislation and institutions
A. International human rights treaties and applicable
constitutional framework
B. Legislation
C. Judicial protection of human rights
D. The Ministry of Human Rights
E. The proposed National Commission for Human rights
Concluding observations
Annex I: Submission from the Coalition Provisional Authority
Annex II: Submission from the United States of America
Annex III: Submission from the United Kingdom of Great Britain
and Northern Ireland
Annex IV: Release order for Mr. Saddam Salah Al-Rawi
Annex V: List of documents
Executive Summary
1. The fall of Saddam Hussein removed a government that preyed
on the Iraqi people and committed shocking, systematic and criminal
violations of human rights, which were documented in detail since
1991 by the Special Rapporteur of the Commission on Human Rights on
the human rights situation in Iraq.
2. After the occupation of Iraq by Coalition Forces there have,
sadly, been some violations of human rights, committed by some
Coalition soldiers. Governmental leaders of the countries concerned
have, at the highest levels, condemned these violations and have
pledged to bring those responsible to justice and to uphold the
rule of law. It is imperative that this be done, with
accountability to the international community.
3. The serious violations of human rights and humanitarian law
that have taken place must not be allowed to recur. Preventive and
protection systems must be put in place.
4. It is crucial that protection arrangements be strengthened as
a matter of the utmost urgency. This concerns oversight of the
military forces and the building up of the protection institutions
of the new Iraq. As far as the first area is concerned,
consideration could be given to the designation of an International
Ombudsman on Human Rights and Humanitarian Law vested with
competence to issue periodic public reports on compliance by
Coalition Forces with international norms of human rights and
humanitarian law.
5. The Iraqi Interim Government should rapidly announce the
designation of an Iraqi Legal and Judicial Reform Commission to
recommend immediate reform to Iraqi laws that violate international
human rights standards and where there is an absence of law, make
provision for due process protections in accordance with its
international obligations. In any event, since laws have not been
substantially reformed since the 1960's, the Commission should
undertake long term reform of the legal framework to ensure that
certain egregious provisions of the Iraqi Penal Code, suspended by
order of the Coalition Provisional Authority (CPA), are eliminated
and that the separation of the Judiciary into an independent branch
of government, as reflected by CPA order and the Transitional
Administrative Law (TAL), is maintained.
6. In its approach to transitional justice, the Iraqi Interim
Government should develop a strategy for addressing the legacy of
brutal authoritarian rule and massive human rights abuses in Iraq.
Such a strategy must be centered on the population's needs,
attitudes and perceptions of transitional justice. Only effective
and meaningful consultation with legal actors and the public at
large will ensure a process that is considered legitimate. This
process must address such issues as past human rights abuses,
justice and accountability mechanisms and non-judicial measures
such as vetting, truth seeking and reparations in a holistic,
coordinated and coherent manner.
7. The Iraqi Interim Government may wish to undertake a review
of the Iraqi Special Tribunal Statute so as to ensure that the
criminal justice process complies with international fair trial
standards, and that recent developments in international criminal
law are taken into account.?
8. It would be important to consider the need to establish an
Iraqi Truth and Reconciliation Commission.
9. The Iraqi Interim Government should designate a Reparations
Commission to develop a reparations program.
10. Given the continuing violence, the Iraqi Interim Government
will need to develop adequate mechanisms so as to ensure the
effective security of legal actors, defendants, victims and
witnesses.
11. The Iraqi Interim Government should name the members of the
independent Iraqi National Human Rights Commission as soon as
possible.
12. The Iraqi Interim Government should also designate the Iraqi
Human Rights Ombudsman as soon as possible.
13. The Iraqi Interim Government should consider and take steps
to support Iraqi civil society organizations for the promotion and
protection of human rights. This task could be facilitated by the
Iraqi Ministry of Human Rights, with international assistance.
14. The Iraqi Ministry of Human Rights should be given all
support nationally and internationally to help it discharge its
responsibilities for the promotion and protection of human rights
in Iraq.
15. An International Fund for Human Rights Education in Iraq
should be established and supported.
16. There must be accountability for human rights in conflict
situations and in the struggle against terrorism. The letter and
spirit of international human rights and humanitarian law must be
upheld. It is an imperative duty on all involved.
Introduction
1. The Government of President Saddam Hussein was a brutal,
murderous, torturing gang that preyed on its own people. Human
rights violations in Iraq under the previous regime were documented
in detail since 1991 by the Special Rapporteur on the human rights
situation in Iraq (see Annex V, List of documents).
2. This Government is no more, and the people of Iraq have the
opportunity to go forward without the oppression and crimes of the
past.?It is not the business of this report to dwell on the
circumstances in which the Coalition Forces entered Iraq nor on the
debate in the international community prior to that operation.
These are matters now behind us. The removal of Saddam Hussein must
be counted a major contribution to human rights in Iraq.
3. What this report is concerned with is the responsibility of
protection that is incumbent upon the Coalition Provisional
Authority (CPA), the Coalition Forces, on the Iraqi leadership, and
on the international community at large.
4. About a thousand Coalition Forces have died since April 2003
and some 200 Coalition civilians. The Coalition Authorities have
apparently not kept a count of Iraqi civilian deaths because it is
asserted that Iraqi authorities do so. Some have asserted that
there have been some ten thousand deaths. Some ten thousand persons
or more have been taken into custody. In the aftermath of the war
basic services, already in a state of serious disrepair before the
war, broke down and the Iraqi people underwent hardships
exacerbated by looting. These hardships have now ameliorated
somewhat. An Iraqi Governing Council (IGC) and then an Interim
Government were established to take Iraq forward. New
constitutional and legal instruments were worked upon drawing upon
the norms of international human rights law and work was done on
the establishment of an Iraqi Special Tribunal to try those accused
of criminal violations of human rights in the past. An Iraqi
Ministry of Human Rights was established and it has sought to lay
the foundations for the promotion of human rights in the new Iraq.
The Security Council was briefed on these matters on 19 May
2004.
5. Notwithstanding these efforts it is now a matter of public
knowledge that detainees have been ill-treated and degraded and,
before the submissions received from the CPA and from the
Governments of the USA and the United Kingdom (Annexes I to III),
it was unclear what protection arrangements existed in Iraq since
the fall of the previous administration.
Sources and methods
6. In drawing up this report the Acting High Commissioner for
Human Rights wrote to the Administrator of the CPA to obtain
information and insights from him on the situation of human rights
in Iraq. The Acting High Commissioner also wrote to some 30
Governments with troops or personnel in Iraq, to the Head of the
Iraqi Interim Governing Council, to the Minister for Foreign
Affairs of Iraq and to the Iraqi Acting Minister of Human Rights,
asking them to provide him with such information as they consider
would be of interest to the Commission on Human Rights.
7. Information was also requested from the heads of the
following United Nations bodies and programs and specialized
agencies: ESCWA, FAO, HABITAT, UNAMI, UNDP, UNHCR, UNICEF, UNIFEM,
ILO, UNESCO, WHO, the World Bank and WFP. The Acting High
Commissioner also asked for information from inter-governmental
organizations such as the IOM and the Organization of the Islamic
Conference, regional organizations such as the League of Arab
States and from some non-governmental organizations in consultative
status with ECOSOC. Information available in the media was
consulted as appropriate. Submissions were received from the CPA,
the Czech Republic, Latvia, Japan, New Zealand, Poland, the United
Kingdom and the United States of America as well as from Amnesty
International, the Arab Organization for Human Rights, Human Rights
Watch, the International Students Movement of the United Nations
(ISMUN), the Women's International League for Peace and Freedom
(WILPF), and a number of United Nations bodies and programs and
specialized agencies. The submissions from the CPA, the Government
of the United States and the Government of the United Kingdom are
reproduced in Annexes I to III.
8. From 24 to 28 May, an OHCHR team traveled to Amman to gather
information and met with over 30 Iraqis who represented
non-governmental organizations working in the field of human rights
or who came in their personal capacity as witnesses of human rights
violations. They traveled from Baghdad, Basra, Erbil, Karbala,
Mosul, Ramadi and Sulaymaniya to Amman for that purpose. The team
also consulted with some representatives from non-governmental
humanitarian organizations, namely from Medical Emergency Relief
International (MERLIN), OXFAM and Premiere Urgence, as well as with
representatives from FAO, UNICEF and WHO as members of the United
Nations Country Team for Iraq, which is currently operating from
Amman.
9. The OHCHR team interviewing people traveling from Iraq would
like to express its gratitude to the Iraqis it interviewed during
those days. People traveled for up to 18 hours to Amman to meet
with the OHCHR team. They submitted extensive documentation on the
current human rights situation in Iraq including individual case
studies (see also Annex V, List of documents) and came in general
well prepared to the interviews. Without exception, the
interviewees placed high hopes in the United Nations to assist in
rebuilding Iraq. This report presents in good faith witness
accounts heard by the OHCHR team but which in the circumstances, it
was not possible to verify independently.
10. The purpose in presenting this report is to brief the
Commission on Human Rights on the human rights aspects of a
situation of international concern. The aim is to enable the
Commission and the wider international community to assess the
situation with a view to strengthening protection in the future.
The report attempts to provide factual information to the extent
possible, as well as the applicable legal framework. Another
purpose is to present the situation in Iraq from a human rights
point of view and in promoting oversight and accountability in a
complex and difficult situation. To begin with the report looks
briefly at the political context of contemporary Iraq.
11. In the afternoon of Wednesday, 2 June 2004, a draft of the
report was sent by e-mail to the Permanent Missions of the United
Kingdom and the United States of America giving them an opportunity
to submit any factual corrections or suggestions by 6 p.m. on
Thursday, 3 June. At that time, written comments were received from
the two Governments. Many of these comments have been taken into
account in the finalization of this report -- which contains
references in places to points of view expressed by them.
I. The political context
12. The end of major hostilities in Iraq resulted in a situation
in which a coalition headed by the United States of America and the
United Kingdom of Great Britain and Northern Ireland took on the
role of Occupying Powers -- a situation that has been acknowledged
by the United Nations Security Council. On 22 May 2003, the
Security Council adopted resolution 1483 which requested the
Secretary-General to appoint a Special Representative. The
resolution mandated the Secretary-General to assist the people of
Iraq in a number of areas, including human rights, in coordination
with the Coalition Provisional Authority.?
13. Upon the assumption of control by the Coalition Forces, a
Coalition Provisional Authority was established under an American
Administrator. For most of the period under review, this function
has been held by Ambassador Paul Bremer. He has been, de facto, the
principal political authority in the country.?An Iraqi Interim
Governing Council (IGC) was nominated by the Coalition Provisional
Authority and given the functions of tending to the day-to-day
business of the Ministries of Governments and to work on the
political architecture for the future. At the end of May 2003, the
United Nations Secretary-General dispatched a Special
Representative, Mr. Sergio Vieira de Mello. The Secretary-General
in his report to the Security Council of 17 July 2003, noted that
Mr. Sergio Vieira de Mello had raised concerns about the conditions
of detention and the treatment of detainees with the Coalition
Administrator, Ambassador Paul Bremer, who had given assurances
that the matter was being addressed through remedial action.[1] The
Special Representative was killed by a terrorist attack on the
United Nations Headquarters in Baghdad, on 19 August 2003, after
barely seven weeks on the ground.?
14. In the ensuing months, the overall security situation in
Iraq deteriorated significantly. Due to the events of 19 August
2003 and the deteriorating security situation, the
Secretary-General decided to temporarily locate all international
United Nations staff in Baghdad by setting up the core of the
United Nations Assistance Mission outside Iraq. This situation
notwithstanding, United Nations agencies and programs have managed
to continue a broad range of essential assistance activities in all
parts of the country.?
15. On the basis of resolutions 1483 and 1511, and at the
request of the Coalition Provisional Authority and the Governing
Council, as well as many Iraqis outside the process, a Special
Adviser of the Secretary-General, Mr. Lakhdar Brahimi, helped
facilitate the process of national dialogue and consensus-building
among Iraqis with a view to ensuring a peaceful and successful
political transition.
16. This process culminated in the announcement on 1 June 2004
of the composition of the Interim Iraqi Government and the
subsequent dissolution of the Governing Council of Iraq. Attention
is now focused on the full transfer of the exercise of sovereignty
on 30 June and on preparing for elections for a constituent
assembly, scheduled to take place no later than January 2005. The
assembly is expected to draft a new constitution. Preparations have
also started for the holding of a National Conference in July 2003
to select an Interim National Council, which will assist the
Government in its work and ensure that the transitional process is
as broad and inclusive as possible. The Security Council is
currently considering a new draft resolution on Iraq.
17. It is envisaged that, at the request of the Iraq Interim
Government, Coalition Forces will continue to be in the country for
some time to help the Interim Government maintain law and order and
to safeguard the security and defense of the country. At the time
of writing, these issues are the subject of consultations in the
Security Council.
18. From a human rights point of view, witnesses interviewed by
the OHCHR team in Amman brought two issues to the OHCHR team's
attention in Amman: Firstly, several Iraqis pointed out that the
participation of women should be actively encouraged in all
Governmental bodies and institutions; and secondly that decisions
about the composition of such bodies should be made without
discrimination as to sex, ethnicity or religion.
II. The military/security situation including acts of
terrorism
19. When interviewing Iraqis in Amman, it became clear to the
OHCHR team that for almost all of them the security situation was
the key concern. The witnesses said that the main factors
contributing to the volatile security situation were the following:
the release of criminal prisoners from detention by Saddam Hussein
shortly before the war; the distribution of weapons during and
shortly after the war as a result of which basically every family
is now armed; the dismissal by Coalition Forces of the Iraqi army
after the fall of the previous Government, which left a vacuum; and
the looting mainly of public buildings allegedly while Coalition
Forces stood by and watched.?In comments received from the US
Government the point is made that Coalition Forces took actions to
prevent looting when possible but the security environment did not
allow them to stop all looting.
20. Turning to the present situation, by May 2004, some 210,000
Iraqi security forces were in training or on duty. According to the
US Permanent Representative to the United Nations, addressing the
Security Council on 19 May 2004, over 30 countries were
contributing military and civilian personnel to the Coalition
Forces. The multinational force is divided into three
sectors:?Centre-South, South East, and Northern Iraq, which
includes Baghdad. Forces in all sectors are engaged in stability
operations, reconstruction efforts, training Iraqi security forces,
and civil affairs training.
21. The Coalition Forces, while endeavoring to maintain law and
order, have had to face protests, resistance, and acts of
terrorism.?Terrorists have attacked foreign Embassies,
religious centers, civilian locations, the United Nations, the ICRC
and Coalition Forces which have resulted in extensive loss of
innocent civilian life. There is evidence of the infiltration into
Iraq of elements of foreign fighters as well as Al Qaida which have
engaged, in instances, in gruesome and barbaric acts such as the
beheading of an American civilian and the video-taping of the act,
which was then provided to media organizations. We would like to
take this occasion to express profound abhorrence at these acts of
depravity.?
22. Many foreigners, including journalists, have been taken
hostage especially since the beginning of April 2004. At the same
time, the kidnapping of Iraqi civilians by Iraqi criminal groups
for ransom has reached dramatic proportions. Women and children are
among those being taken hostage. In some incidents, the victims
were killed. Academics seem to be specifically targeted. Among the
witnesses interviewed in Amman, several reported that family
members or friends had been subject to kidnapping.?
23. The witnesses interviewed by the OHCHR team in Amman
understood the difficulties of responding to terrorist attacks and
preventing crime. However, they voiced their discontent with the
inactivity of the Coalition Forces shortly after the war to
establish law and order which led to a total collapse of security.
They stressed the Coalition Forces' responsibilities under
international humanitarian law to ensure security for the Iraqi
citizens.
24. Another aspect is the hiring by the Coalition Forces of
private security organizations that have deployed personnel in
significant numbers. Some estimates put the figure at close to
20,000. This raises the question of what legal regime applies to
them and what is the duty of protection owed by them. In comments
submitted by US authorities the point is made that contract
personnel of the US are under the direction of the Coalition and
are subject to criminal jurisdiction in US Federal Courts.
25. In its written submission the CPA states: "The current
security situation in Iraq is difficult and complex. Anti-Multi
National Force elements are attempting to thwart the efforts of the
MNF to create a safe and secure environment within Iraq. They are
attacking MNF directly. They are using intimidation and direct
attacks on Iraq Security Force personnel to disrupt and prevent the
creation of an effective and capable Iraqi security force. They are
also attacking the infrastructure of the country" (Annex I). In its
written submission (Annex III) the United Kingdom states: "The UK
is bound by the Geneva Conventions. UK operations in Iraq reflect
that."?The United States for its part stated in its submission
(Annex II) that US forces captured and held enemy prisoners of war,
which have been treated in accordance with the Geneva Convention
Relative to the Treatment of Prisoners of War. Detainees held for
security reasons have been and continue to be provided the
protections of the Geneva Convention Relative to the Protection of
Civilians in Time of War.?
III. The protection of civilians
26. This report will not go into the issue whether, in the
prosecution of the war, Coalition Forces, or the armed forces of
President Saddam Hussein, took care to avoid civilian casualties as
required under the provisions of international humanitarian and
human rights law. Rather, we are concerned with the situation after
the commencement of control by Coalition Forces.
27. Besides concerns for the overall security situation, Iraqis
interviewed by the OHCHR team in Amman voiced their distress about
the protection of civilians by Coalition Forces. They said that the
majority of Iraqis had welcomed the fall of the regime of Saddam
Hussein. Though many did not like to be occupied they had accepted
this, hoping for a better future.
28. However, most probably as a reaction to the difficult
security situation, Coalition Forces reacted more and more warily
towards the Iraqi population. Among the examples given were the
following: An Iraqi driver fell asleep while driving and got too
close to a Coalition Forces jeep. He was shot and killed. In
another instance, a father and son were driving on a national road,
saw a group of Coalition Forces cars behind them and drove to the
side of the road to let the Coalition Forces drive by. Once those
had overtaken, they opened fire in which the son was shot. He died
later in a hospital. Another Iraqi reported about Iraqi police who
were in the process of arresting some burglars when Coalition
Forces passed by, mistook all for burglars, started shooting and
killed four people.
29. Interviewees mentioned that such incidents often occurred in
conjunction with attacks against the Coalition Forces but that too
often innocent by-standers were caught in the fighting. As a
further example cited, an Iraqi threw a grenade at Coalition Forces
tanks which were stationed close to a peaceful demonstration. The
Coalition Forces soldiers opened fire shooting into the
demonstration, killing a girl, though it was clear that the
perpetrator had run off in a different direction. Many of the
interviewees argued that the Coalition Forces simply overreact.
[2]
30. Other witnesses referred to traffic accidents that happen on
a daily basis, whereby Coalition Forces tanks and armored vehicles
bump into cars, drive on pedestrian pavements, turn wherever they
would like to and in the course inflict damage on Iraqi cars and,
in some cases, causing personal injuries. The witnesses said that
compensation had been granted only in a few instances.
31. Since 4 April 2004 there have been many clashes between
Coalition Forces and armed individuals belonging to the Mahdi Army,
followers of Shi'a cleric Muqtada Al-Sadr, in the predominantly
Shi'a districts of Baghdad, as well as southern cities including
Amara, Kut, Karbala, Nassirya and Basra. The clashes involving the
Mahdi Army were reportedly prompted by the closure of the
al-Hawza al-Natiqa newspaper on 28 March 2004 by order of
Ambassador Paul Bremer, head of the CPA, on the grounds that it was
inciting violence. Another reason for the clashes was reportedly
the arrest on 3 April 2004 of one of the closest allies of Muqtada
Al-Sadr, Mustafa Ya'qubi, on charges relating to the April 2003
assassination in Najaf of Shi'a cleric Abd Al-Mahid Al-Khoei.
32. At the same time Coalition Forces launched military
operations in Ramadi and Falluja following the killing, burning and
mutilation of four contractors for the US army by insurgents on 31
March 2004. The situation in those areas remains volatile despite
different ceasefire agreements.
33. Several representatives of humanitarian non-governmental
organizations to whom the OHCHR team spoke in Amman, addressed the
situation in Falluja, Najaf, Karbala and other cities. They
reported that access to medical facilities is found to be severely
restricted for a number of reasons:
-Occupation of hospitals by Coalition Forces as for example in
the only major health facility in Falluja and also in the hospital
with the largest surgical capacity in Najaf;
-Military presence just outside hospital compounds. In Falluja
the bridge leading to the hospital acted as a checkpoint; in front
of the hospital in Karbala a tank was stationed;
-General security in the streets. Street fighting and snipers
make it often too dangerous for civilians to go to medical
facilities;
-Persistent accounts about arrests in hospitals. There are
apparently accounts of armed groups entering hospitals to seek out
their opponents, and as a result many Iraqis do not feel safe in
medical facilities.
34. The situation on the ground in the aftermath of the
assumption of control by Coalition Forces, insofar as civilians
were concerned, was undoubtedly quite difficult. However, the norms
of international humanitarian law covering combatants' behavior in
action and command responsibilities cover the civilian population.
Civilians should be treated humanely at all times. All humiliating
and degrading treatment, any form of indecent assault or other
outrage upon personal dignity, are strictly prohibited. The
protection of civilians covers all civilians, without any adverse
distinction based in particular on race, nationality, religion or
political opinion. Violence to life, health or to physical or
mental well being in general is prohibited. Women and children
should receive special respect.
35. Under international humanitarian law, distinctions must be
made to protect civilians and civilian objects and civilians may
not be directly targeted. Accordingly an attack may only be
directed at a specific military objective. If the choice is
possible between several military options for obtaining a similar
military objective, the option to be selected must be the one which
would cause the least danger to civilian persons and objects. An
attack is prohibited if it treats as a single military objective a
number of clearly separated and distinct military objectives in
areas containing a concentration of civilian persons or objects. An
attack must be proportionate considering its military advantage and
its effects on the civilian population (Additional Protocol I to
the Geneva Convention, Art. 57) [3]. These precautions are of
particular importance when fighting takes place in urban areas.
36. It should be noted that reprisals, or breaching the laws of
war as a reply to a breach by the enemy forces, are strictly
prohibited, in particular against civilians, protected objects and
the environment. Collective punishments are prohibited.
37. Parties to a conflict must avoid placing military objectives
within or near densely populated areas, as far as possible, and
take other necessary precautions to protect the civilian population
under their control against the dangers resulting from military
operations. The belligerent forces are not allowed to use civilian
objects, such as schools or especially protected areas like
hospitals, for military purposes. It is strictly prohibited to
place civilians to protect a military location.
38. Of relevance to the issue of the responsibility to protect
is the question: what instructions were given to the Coalition
Forces when it came to issues of maintaining law and order in a
manner that was respectful of the civilian population and
respecting the rights of persons detained. The United Kingdom in
its written submission (Annex III) states that UK forces, Iraqi
civilians and law enforcement officials, humanitarian aid workers
and contractors are regularly subject to lethal attacks.
?Direction to British Forces requires that all detained
persons must be treated humanely and in accordance with the
principles of international humanitarian law. The United States in
its submission (Annex II) states that "reviews of all detention
operations in Iraq are being undertaken on multiple levels to
identify any shortcomings and to implement procedures to strengthen
our commitment to conducting detention operations humanely and in
compliance with the law of armed conflict, including the Geneva
Conventions."
39. Another question that is relevant to the responsibility to
protect is whether any sanctions were brought to bear upon
Coalition Forces for excesses committed upon the civilian
population. In this regard, the information available indicates
that very few members of Coalition Forces were brought to justice
for excesses committed by them until recently. The US authorities,
in their comments, state that action has been taken when proven
excesses have occurred. Disciplinary actions have taken place
throughout conflict, including court-martial.
IV. The treatment of persons during arrest, detention and
release from detention
A. Introduction
40. Iraqis interviewed in Amman all spoke about arbitrary
arrests and detention as an ongoing phenomenon since April 2003.
Allegedly in many cases, Coalition Forces break front doors or
windows and throw hand grenades into the room before they access
the property. Searches are not conducted with care, no search or
arrest warrants are being shown. In some cases, money or jewelry
found during the raid is being taken by soldiers and not being
returned. In other cases, the behavior of Coalition soldiers is
considered humiliating, for example when leading women in their
night dress outside of the house or when showing disrespect for the
Koran through throwing it on the floor or tearing it apart. In some
cases, the wife or son is being arrested when the husband or father
can not be found. Children are allegedly being interrogated during
such raids. [4]
41. The international community knew that in the aftermath of
the victory of Coalition Forces, many Iraqis were taken into
detention. For a long while, no one had any idea how many people
were taken into custody, where they were held, in what conditions
they were kept, and how they were being treated. From the point of
view of international human rights and humanitarian law, there was
a major lack of protection here, and there was accountability to no
one.?
42. The first allegations of ill-treatment of Iraqi detainees by
Coalition Forces were raised by international human right bodies
such as Amnesty International in July 2003.[5] The allegations
included beatings, electric shocks, sleep deprivation, hooding, and
prolonged forced standing and kneeling. As mentioned before, the
Special Representative, Sergio Vieira de Mello, had raised concerns
about the conditions of detention and the treatment of detainees
with the CPA Administrator in a meeting on 15 July 2003.
43. On 28 April 2004, the American news channel CBS aired photos
showing male Iraqi detainees being humiliated by US soldiers. The
publication of photographs of Iraqi detainees being physically and
mentally abused at the Abu Ghraib prison has caused shock and
outrage across the world. On 30 April 2004, the magazine The New
Yorker published an article on the classified investigative
military report of Maj. Gen. (MG) Antonio Taguba, a
fifty-three-page report concluding that the institutional failures
of the Army prison system raised serious problems. [6] The US
authorities pointed out that this report was prepared after
allegations of mistreatment were brought to the attention of US
Commanders.
44. On 7 May 2004, the Wall Street Journal published extensive
excerpts from a confidential twenty-four-page ICRC report that was
submitted to the Coalition Forces in February 2004. [7] The report
represented the summary of humanitarian concerns that were
regularly brought to the attention of the Coalition Forces
throughout the year 2003.
45. The top level US and UK authorities had previously launched
investigations into the allegations of torture and ill-treatment,
said that they would be intensified, and that these were rather
acts of a few soldiers who would be identified and consequently
court-martialed.
B. The Taguba report
46. On 19 January 2004, LG Ricardo S. Sanchez, Commander,
Combined Joint Task Force Seven requested that the Commander, US
Central Command, appoint an Investigating Officer to investigate
the conduct of operations within the 800th Military Police Brigade.
LG Sanchez requested an investigation of detention and internment
operations by the Brigade from 1 November 2003.
47. The following practices were identified in the Taguba-report
based on the allegations made and his investigations:
Punching, slapping and kicking detainees; jumping on their naked
feet;
Videotaping and photographing naked male and female
detainees;
Forcibly arranging detainees in various sexually explicit
positions for photographing;
Forcing groups of male detainees to masturbate themselves while
being photographed and videotaped;
Arranging naked detainees in a pile and then jumping on
them;
Positioning a naked detainee on a box, with a sandbag on his
head, and attaching wires to his fingers, toes and penis to
simulate electric torture;
Writing "I am a Rapist" (sic) on the leg of a detainee alleged
to have forcibly raped a 15-year-old fellow detainee, and then
photographing him naked;
Placing a dog chain or strap around a naked detainee's neck and
having a female soldier pose with him for a picture;
A male military police guard having sex with a female detainee;
[8]
Breaking chemical lights and pouring the phosphoric liquid on
detainees;
Threatening detainees with a charged 9-mm pistol;
Pouring cold water on naked detainees;
Beating detainees with a broom handle and a chair;
Threatening male detainees with rape;
Allowing a military police guard to stitch the wound of a
detainee who was injured after being slammed against the wall in
his cell;
Sodomizing a detainee with a chemical light and perhaps a broom
stick;
Using military working dogs (without muzzles) to frighten and
intimidate detainees with threats of attack, and in at least one
case biting and severely injuring a detainee;
Forcing detainees to remove their clothing and keeping them
naked for several days at a time;
Forcing naked male detainees to wear women's underwear;
Taking pictures of dead Iraqi detainees.
48. In citing these practices we note that they are the subject
of consideration within the framework of broader investigations
currently under way within the United States.
C. The ICRC report
49. The ICRC report drew the attention of the Coalition Forces
to serious violations of international humanitarian law that had
been observed and documented while visiting the detained between
March and November 2003. The main violations of international
humanitarian law as described by the ICRC in the report included
the following:
-Brutality against protected persons upon capture and initial
custody, sometimes causing death or serious injury;
-Absence of notification of arrest of persons deprived of their
liberty to their families causing distress among persons deprived
of their liberty and their families;
-Physical or psychological coercion during interrogation to
secure information;
-Prolonged solitary confinement in cells devoid of daylight;
-Excessive and disproportionate use of force against persons
deprived of their liberty resulting in death or injury during their
period of internment;
-Seizure and confiscation of private belongings of persons
deprived of their liberty;
-Exposure of persons deprived of their liberty to dangerous
tasks;
-Holding persons deprived of their liberty in dangerous places
where they are not protected from shelling.
D. The legal framework
1. International humanitarian law
50. The situation in Iraq involves a military occupation to
which international humanitarian law as well as The Hague
Regulations of 1907 is applicable. Both the Third and the Fourth
Geneva Convention are applicable to the conflict. The United States
of America ratified the Geneva Conventions of 1949 on 2 August
1955. The vast majority of POW and civilian internees captured
during major military operations have since been released. In case
of doubt about the status of an individual, a detainee's case has
to be considered by a competent tribunal as required by Art. 5
Third Geneva Convention. [9] Those individuals who commit criminal
offences in Iraq, including those suspected of anti-Coalition
activities, are normally detained as "criminal detainees." Those
held by the Coalition Forces fall within a process that requires a
probable cause determination by a military attorney within 21 days
of every detention. The Coalition Forces provide a second procedure
that demands that the criminal detainee be brought before a judge
as soon as possible and in no instance later than 90 days from the
date of detention. [10] A criminal detainee has to be distinguished
from a civilian internee who has not been guilty of any
infringement of the penal provisions enacted by the Coalition
Forces, but has been detained for "imperative reasons of security."
[11] There has to be an individualized decision which links the
detainee to a threat of security. According to the Commentary to
the Fourth Geneva Convention "there can be no question of taking
collective measure: each case must be decided separately." [12] As
a procedural safeguard in order to ensure that principles of
humanity are respected, a security detainee should have the right
of appeal and any decision upholding detention should be reviewed
every six months. [13]
51. The use of torture and other forms of physical and
psychological coercion against any detainee to extract confessions
of intelligence related information is a violation of international
humanitarian law [14] and is prohibited. According to the Third
(Art. 17, 87, 99) and the Fourth Geneva Convention (Art. 5, 31,
32), evidence that has been obtained through coercion can never be
used as such by the Coalition Forces.
52. Willful killing, torture or inhuman treatment, if committed
against detainees protected by international humanitarian law
constitute a grave breach under the Geneva Conventions [15] and
therefore of international humanitarian law and is prohibited at
any time, irrespective of the status of the person detained. The
above-described acts might be designated as war crimes by a
competent tribunal. [16] The requirement that protected persons
must at all times be humanly treated is a basic pillar of the
Geneva Conventions. [17] The detaining authorities are bound to put
in place all those measures that may pre-empt the perpetration of
torture as well as any inhuman and degrading treatment. All State
Parties are obliged to exercise jurisdiction to investigate,
prosecute and punish perpetrators.
2. International human rights law
53. The prohibition of torture laid down in international
humanitarian law with regard to situations of armed conflict is
reinforced by the body of international treaty law on human rights.
These laws ban torture both in time of peace and armed
conflict.
54. Any practice of torture or other cruel, inhumane or
degrading treatment or punishment violates international human
rights standards to which both the US and UK are a party, including
the International?Covenant on Civil and Political Rights
(ICCPR) [18] and the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT). [19] There is
an absolute prohibition of torture applicable in times of conflict
as well as in times of peace. CAT defines torture as any act that
is intentional, that causes severe pain or suffering, that is used
to obtain information or confession, to punish, intimidate or
coerce, and that has been authorized by someone in an official
position. In addition to article 7 of the ICCPR, which prohibits
torture and cruel, inhuman or degrading treatment or punishment,
article 10 of the ICCPR specifically provides that all persons
deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
E. Witness testimony [20]
55. The OHCHR team met in Amman with Mr. Saddam Salah Abood
Al-Rawi, a 29-year old former political prisoner under the regime
of Saddam Hussein and later detained in Abu Ghraib prison by the
Coalition Forces from 1 December 2003 to 28 March 2004. He reported
that he was arrested without being given any explanations regarding
the charges against him. His release order is reproduced in Annex
IV. It states "Whatever crime they have committed has been reviewed
and any time required has been served. This individual, barring
commission of another crime, has no further need for detention...
There is currently no reason for the continued detention of the
individual, and further investigation into the case by way of a
formal tribunal is not required." He did not know either, at the
time of his release, whether there had been any charges against
him.
56. Mr. Al-Rawi described the floor plan and the arrangement of
the cells in the prison section (Section I A) where he was
detained. Many of the cells, including his (No. 42), were solitary
confinement cells, but 10 cells, he stated, were set aside for
detainees being tortured. Some few days after his arrest, Mr.
Al-Rawi was moved from cell No. 42 to one of the cells allegedly
set aside for torture victims. For the following 18 days he was
allegedly subjected to torture which at times lasted for up to 23
hours. After each torture session, loud music was on to prevent him
from sleeping.
57. Mr. Al-Rawi proceeded to give a detailed account of the
torture methods he was allegedly subjected to. These included
pulling of teeth from his mouth (two teeth were missing), kicking,
beating, guards standing on his hands and infliction of mental
cruelty, such as telling him he would first be raped by guards and
then sent to Guantanamo Bay, if he did not "confess." Following the
18 days of alleged torture, Mr. Al-Rawi was moved back to cell No.
42 where he was kept for approximately three months in solitary
confinement until his release. At the time of a Red Cross visit to
Abu Ghraib prison in January 2004, he was warned that if he said
anything to the Red Cross visitor that the prison guards would not
like, he would never live to regret it. He stated that when he was
interviewed by the Red Cross visitor, he did not dare to say
anything about the treatment which he had suffered and replied to
most of the questions with "I don't know." Following the January
visit, he stated, torture at Abu Ghraib abated.
58. Mr. Al-Rawi said that the ill-treatment which he suffered as
a politician prisoner under Saddam Hussein was bad, but that during
his days in Abu Ghraib as a Coalition Forces detainee he suffered
humiliation and mental cruelty in addition to the physical
torture.
59. In their comments the US authorities stated that they were
particularly concerned about these allegations which they
considered extreme and inconsistent with other reports. They will
be investigating and reporting on these allegations.?However
the allegations had been brought to their attention only 24 hours
before the report was to be finalized.
60. The OHCHR team also heard allegations regarding humiliation
by Coalition Forces when releasing prisoners. Among the examples
given were the following: that prisoners were released in the
middle of the night, handcuffed, a Mickey Mouse drawn on their
shirt, and that the personal items that were in their possession
during arrest, including identification documents, were not
returned to them.
F. Responsibility to protect
61. There are many unanswered questions regarding the treatment
of detainees that are directly relevant to the issue of the
responsibility to protect:?what were the control systems in
place to safeguard against such excesses? Were acts of depravity
against prisoners committed by guards acting on their own or were
they part of a systematic process of information-gathering? It is
clear that there are numerous questions of control and protection
that are still unanswered.?
62. The International Committee of the Red Cross submits
confidential reports to the detaining authorities and makes
representations to them in respect of areas of concern that it
might have. In view of the well established and accepted policy of
confidentiality the visits of the ICRC did not result in the
international community being aware of how many people were
detained, for what reasons, where, and in what conditions. In a
world in which there must be a duty of accountability to the
international community in respect of the custody and treatment of
large numbers of people, the duty of care and the responsibility to
protect were clearly not met.
63. When it emerged in the media at the end of April and
beginning of May 2004, that some detainees had been subjected to
degrading and inhuman treatment and torture, the international
community discovered that Coalition Forces were holding perhaps
even some ten thousand or more prisoners. There has been a great
international outcry over the ill-treatment and torture of
detainees, particularly in Abu Ghraib prison.?
64. On 30 April 2004, Secretary-General Kofi Annan issued the
following statement:
"The Secretary-General was deeply disturbed by the pictures of
Iraqi prisoners being mistreated and humiliated by their guards in
the Abu Ghraib prison. He hopes that this was an isolated incident
and welcomes what appears to be a clear determination on the part
of the US military to bring those responsible to justice, and to
prevent such abuses in the future. In all circumstances, and in all
places, the Secretary-General is strongly opposed to the
mistreatment of detainees. He reiterates that all detainees should
be fully protected in accordance with the provisions of
international human rights law."
65. Whatever the failures of control and protection that
occurred in respect of detainees, it is important to recognize that
once the scandal of the treatment of detainees broke into the open,
Coalition leaders at the highest levels denounced the abuses and
ordered investigations and prosecutions of those responsible. On 10
May 2004, for example, President Bush said that there would be "a
full accounting for the cruel and disgraceful abuse of Iraqi
detainees." He considered the alleged conduct by military personnel
and civilian contractors in Iraq "an insult to the Iraqi people and
an affront to the most basic standards of morality and decency."
President Bush noted that some military personnel had been charged
already and said that "those involved will answer for their conduct
in an orderly and transparent process." He declared that the United
States would honour the rule of law and that Iraqi prison
operations would be reviewed "to make certain that such offenses
are not repeated [21]."
66. On 14 May 2004, the Commander of American forces in Iraq,
Lt. Gen. Ricardo S. Sanchez, reportedly barred virtually all
coercive interrogation practices such as forcing prisoners to
crouch for long periods or depriving them of sleep. Reportedly the
Commander would still consider requests to hold prisoners in
isolation for more than 30 days, according to a senior Central
Command official who briefed reporters that day. The Commanding
General had reportedly approved twenty-five such requests since
October 2003. [22]
67. British Prime Minister Blair for his part has made comments
similar to those of President Bush: "Let me make it clear that the
abuse of prisoners, the torture of prisoners, degrading treatment
of people in the custody of coalition forces, those things are
completely and totally unacceptable, they are inexcusable and there
can be no possible justification for them. And we must do
everything that we can do, and need to do, in order to root out
such practices and bring to justice those people who are
responsible for them."
68. For reasons of fairness it bears mentioning that the issue
of the treatment of prisoners has also been the subject of false
propaganda campaigns. A notable case in point was the apparent use
of fake photos of alleged abuse of Iraqi prisoners by British
soldiers. On Friday, 14 May 2004, the newspaper, The Daily
Mirror, acknowledged that it had published photographs in
respect of which there was "sufficient evidence to suggest that
these pictures are fakes and The Daily Mirror has been the
subject of a calculated and malicious hoax."
69. It would be important, as a matter of justice, of
accountability, and of respect for international human rights and
humanitarian law, that there be full accountability in respect of
the excesses that have undoubtedly taken place in some Iraqi
detention facilities. The leadership of the major Coalition
countries may also wish to consider the designation of a high-level
international ombudsman to monitor the Coalition Forces while they
remain in Iraq. It should be mentioned, that an office staffed by
personnel from the Iraqi Ministry of Human Rights has recently been
established within the Abu Ghraib prison.
V. Displacement
70. Prior to the conflict, approximately 400,000 refugees and
asylum-seekers as well as some 450,000 Iraqis "of concern", who are
persons in a refugee like situation, were located outside Iraq. It
is further estimated that the Saddam Hussein administration was
responsible for the internal displacement of 600,000 to 700,000
Kurdish people in the north of the country; more than 100,000
Kurds, Turkmen and Assyrians from the Kirkuk area; tens of
thousands of Arab Shiites in the center and south of the country;
and 100,000 to 200,000 Marsh Arabs from their habitat along the
lower Tigris and Euphrates rivers. The written submission of the
CPA provides extensive information on the issue of
displacement.
71. After the fall of the Saddam Hussein administration, both
refugees and internally displaced persons have started returning.
Although the majority of those displaced by the previous
administration have integrated into their host communities or no
longer wish to return, it is expected that large numbers may still
wish to return. Reliable statistics relating to returns are not
available. However, as of April 2004, an estimated 80,000 to
120,000 persons have returned from, inter alia, the Islamic
Republic of Iran, Lebanon and Saudi Arabia. Most of the returns
have been unassisted and spontaneous. It is assumed that many of
those who have returned have returned to a situation of
displacement.
72. In the north, Kurds have also begun to return to their
homes. The beginning of these return movements has caused a new
wave of displacement. As several thousand Kurds have begun to
reclaim their homes in the north of Iraq, about 100,000 Arabs who
were installed there by the previous administration have fled in
the months following the war.
73. Clashes in Falluja have created additional internal
displacement in that area, but recent reports indicate that these
displaced persons have started to return. In Baghdad a number of
persons including foreign refugees in Iraq have been evicted from
their homes as the previous government-imposed rent control has
been lifted. As a result many have taken refuge in unoccupied
public buildings.
74. The prevailing insecurity situation in many parts of the
country exacerbates the already vulnerable human rights situation
of most displaced persons. Following the bombing of the UN
headquarters in Baghdad on 19 August 2003 most humanitarian
agencies have withdrawn, and now only limited assistance reaches
the internally displaced and there is no consistent monitoring and
reporting on the human rights situation of displaced persons taking
place.
75. With regard to Iraqis who return from western countries,
they may well be exposed to dangers mentioned above in relation to
kidnapping because they are perceived as being financially
privileged. In addition, since they did not suffer from the same
ordeals as the Iraqis who stayed, they are also viewed with
suspicion. Furthermore, those who return to areas where their
ethnic or religious group does not constitute a majority may find
themselves in a particularly vulnerable situation and exposed to
new forms and agents of persecution. Alternatively, they may find
themselves displaced upon return, which will further complicate the
displacement situation within Iraq in addition to creating undue
suffering to returning Iraqis and their families. In view of the
above and given Iraq's limited absorption capacity, UNHCR requested
in March 2004 that States continue to grant some form of temporary
protection to all Iraqi asylum-seekers, including those whose
asylum claims have been rejected, and that they enforce a ban on
forced returns to all parts of Iraq until further notice.
76. The provision of security, the restoration of the rule of
law throughout Iraq and the establishment of an efficient system to
resolve property disputes are the key challenges. International
support of the national authorities in addressing these issues will
be essential. The international human rights treaties to which Iraq
is a State Party provide the basic legal framework for addressing
the protection needs of returning refugees and internally displaced
persons alike. In addition, the Guiding Principles on Internal
Displacement provide a specific framework for addressing the
protection needs of the internally displaced. In principle, it
should be acknowledged that persons who were displaced have the
right to return to their home areas, to integrate locally or to
resettle in existing or new areas in Iraq. The relevant authorities
(including both at the national and regional levels) have the
responsibility to create conditions, as well as provide the means,
to allow displaced persons to exercise these preferences
voluntarily, in safety and dignity.
VI. The situation of women
A. Introduction
77. Iraq is a State Party to the international human rights
instruments protecting the rights of women and girls including the
Convention on the Elimination of Discrimination against Women
(CEDAW). [23] The Committee on the Elimination of Discrimination
against Women examined the combined second and third periodic
reports of Iraq on 14 June 2000. In its concluding observations
(A/55/38, paras. 166-210), the Committee noted "the failure of the
State party to revoke legislative provisions that discriminate
against women" and called for a review of such discriminatory
legislation and for the adoption of measures, including temporary
special measures, aimed at creating a non-discriminatory
legislative and de facto environment for women.
78. The Special Rapporteur on violence against women, in her
2003 report [24], echoed the concerns of the CEDAW Committee about
the failure to revoke legislative provisions that discriminate
against women and to address discriminatory views and attitudes
that impede women's enjoyment of their rights.
79. Since the assumption of control by the coalition steps have
been taken to lay the foundations for improving the status of women
in Iraq. According to the CPA submission (Annex I) newly formed
Iraqi women's groups have taken an active role in advocating fair
representation in their government bodies and calling attention to
the rights of women in all spheres of Iraq's democratic
development. Over the last year, Iraqi women have organized
conferences in Baghdad and in the regions to discuss women's
political participation and human rights issues. Eighteen women's
centers have been established throughout the country.
B. Impact of deterioration in security situation on
women
80. The OHCHR team addressed the situation of women with
interviewees in Amman. Both women and men have suffered from the
impact of the conflict on civilians, from injuries and death as a
result of the fighting to the deterioration in standards of living
resulting from exposure to the conflict, damaged infrastructure and
collapse of public security. However, women felt specifically
vulnerable during the past year due to the deteriorating security
situation, including the kidnapping of civilians, which led to
increased restrictions on their freedom of movement and access to
education, health services, and employment opportunities.?
C. Participation in political and public life
81. Iraqi women interviewed in Amman complained about the lack
of adequate representation of women in political and public life
during the past year. After the occupation, the Coalition
Provisional Authority appointed three women to the 25-member
Interim Governing Council (none of the three serve in the
Presidential Council thus not being able to serve as President).
Out of 25 ministries established, the IGC selected one woman to
serve as minister. The five deputy minister slots promised to women
were not filled. No women were chosen to the committee to plan
selection of delegates to the constitutional convention, nor to the
committee that drafted the Transitional Administrative Law (TAL).
The CPA appointed no women among 18 provincial governors, and few
women to provincial councils. However, more recently, six of the
Ministerial slots in the Interim Government were filled by
women.
82. Some religious leaders and groups have objected to women's
participation and there has been increased harassment and
intimidation of women and their organizations. The CPA effort to
name a woman judge in Najaf met with opposition from religious
leaders, as well as the local council, lawyers and other local
groups. The OHCHR team was told that women in Basra have complained
about being harassed by groups of men into wearing headscarves or
avoiding make-up and being under pressure to follow strict Islamic
codes, sometimes from religious group militias. Journalists,
activists and organizations campaigning for women's rights have
been targeted. Threats range from harassment to death threats
received by prominent women and by organizations campaigning for
women's rights and advocating against conservative interpretations
of Islamic law. Similar incidents were reported from Al
Mustansiriya University in Baghdad, where apparently different
staircases for women and men have been introduced and women are
also harassed regarding their dress code.
83. Much public attention was devoted to IGC decision number
137, adopted on 29 December 2003 to replace the 1959 Personal
Status Law with Sharia law, with little discussion and no public
consultation. The decision led to different interpretations by
rival Islamic groups. CPA Civil Administrator, Paul Bremer, did not
endorse the decision, and members of the IGC declared that it was
"on hold" and that the 1959 law could not be annulled except by
another law. Iraqi women organizations had mobilized extensive
forces in blocking IGC decision number 137.
84. The CPA has sponsored programs to assist women to set up
small businesses, organize discussion of women's issues and support
isolated shelters for victims of violence. Reportedly, US$27
million had been allocated to women's programs.
D. Abuses allegedly committed by occupying power
personnel
85. There have been repeated complaints about the lack of
respect by the Coalition forces for local customs and traditions
which protect women's privacy. In addition, recent allegations
about torture and mistreatment of detainees by members of the
Coalition forces in Iraq have included allegations that women have
been exposed to degrading treatment and to rape, sexual abuse and
violence. The impact of such degrading treatment and abuse on women
can have added serious consequences, in a society for which
suffering sexual abuse (including e.g. being humiliated through
nudity, etc.) and violence can be a reason for rejection of women
by their own families or communities, and in more severe cases lead
to so-called "honor crimes." Some of the women organization
representatives in Amman mentioned that there have been reports of
women threatened to be killed or killed by their families or
friends because they work or worked as translators or in other
functions for Coalition Forces. At the moment, there is apparently
only one shelter for women being operated, located in Sulaymaniya.
[25]
E. Gender discrimination and access to justice
86. The Transitional Administrative Law (TAL) adopted by the
Governing Council on 8 March 2004 prohibited sex discrimination but
did not offer adequate protection against discrimination in
marriage (no equal right to marry, within marriage or to divorce),
inheritance and ability to pass citizenship to children.
87. According to information received, rape, sexual violence,
and abduction are felonies under Iraqi law, punishable by lengthy
prison sentences. Yet, victims of abduction and sexual violence
still face important legal and social barriers to obtaining
justice. Some of these barriers are the provisions in the Penal
Code that allow a man to escape punishment for abduction if he
marries the victim. The Penal Code also allows perpetrators of
rape, sodomy, sexual violence, or attempted sexual violence to
receive reduced sentences if they marry their victims. Other
provisions allow for significantly reduced sentences for so-called
honor killings. According to information received in July 2003,
these provisions were unaffected by the Coalition Provisional
Authority's 9 June 2003 order that suspended certain provisions of
the Penal Code.
VII. The situation of children
88. Iraq acceded to the Convention on the Rights of the Child on
15 July 1994 with a reservation to article 14.1 (freedom of
thought, conscience and religion). The Committee on the Rights of
the Child considered the initial report of Iraq in September 1998
(its second report has been overdue since 14 July 2001). Its main
issues of concern and recommendations included the following
areas:
-the deteriorating health situation of children, absence of data
on adolescent health, including on teenage pregnancy, abortion,
suicide, violence and substance abuse; the availability of
facilities and services for persons with disabilities;
-economic exploitation of children, which had increased
dramatically in the previous few years, and an increasing number of
children leaving school, especially girls, sometimes at an early
age, to work to support themselves and their families.
89. According to UNICEF and international NGOs, since August
2003, due to the security situation on the ground, it has been
impossible to sustain appropriate monitoring of the rights of the
child in the country.
90. Child malnutrition drastically increased in the early
nineties mainly due to the imposition of economic sanctions. It
reached its peak in 1996 when chronic malnutrition affected almost
one third of children (32%) and up to 23.4% of them suffered
underweight (UNICEF). The following years, UNICEF and other
international agencies succeeded to decrease the percentage of
children suffering from chronic malnutrition (30% less in 2002) and
underweight (50% less in 2002). These figures are still higher than
the ones in 1991.
91. UNICEF reported that due to violence that affects many parts
of the country, school attendance has dropped, sometimes to less
than 50 percent. Access to quality health care and services has
also become increasingly a challenge to many children and their
parents.?
92. The OHCHR team in Amman learned about cases of abduction of
children for ransom by Iraqi criminal gangs. Due to the prevailing
volatile security situation, the right to life, survival and
development of children is seriously threatened. Persons below
eighteen are indirectly and directly affected by acts of violence
perpetrated by all parties in conflict; they are also vulnerable to
being involved in conflict by different groups. In this regard,
there have been worrying reports from Falluja of children being
armed and participating in the conflict.?
93. On 11 May 2004, UNICEF published a statement that it was
"profoundly disturbed by news reports alleging that children may
have been among those abused in detention centers and prisons in
Iraq. Although the news reports have not been independently
substantiated, they are alarming nonetheless." The rights of
juvenile detainees to be detained only as a measure of last resort
and for the shortest appropriate time, and separation from adult
detainees, need to be strictly guaranteed.
94. Vulnerable groups of children, including children living in
poverty, children living in institutions, street children, working
children, children belonging to minority groups and children with
disabilities, are at risk of any form of neglect, abuse and
exploitation. Access to quality education and health services is
increasingly under stress due to the poor functioning of public
services and the security situation. There has apparently been a
dramatic increase in the number of street children as parents
cannot support their children anymore.
95. The rights of girls, including to access health and
education services, and to be protected from any from of
discrimination and violence, including sexual abuse and
exploitation and honor killings, need to be ensured.
96. Another issue that was brought to the attention of OHCHR in
Amman was that due to the dismissal of Iraqi Ministry of Education
and Ministry of Labor and Social Affairs personnel, as well as
teachers, in the process of de-Baathification, those Ministries and
the educational institutions were for a period of time not able to
respond adequately to the needs of children. In the case of
juvenile justice the competence was referred from the Ministry of
Labor and Social Affairs to the Ministry of Justice. While such
restructuring processes might in itself not be bad they contributed
to insecurity. It is imperative that a governmental institutional
framework is in place to respond to the rights of
children.?
VIII. Civil and political rights
97. The OHCHR team received reports in relation to the freedom
of religion and belief. A number of reports have also been
published in the area of freedom of expression and administration
of justice. This section focuses on these three areas. In addition,
it addresses issues of accountability for, and abuses of applicable
international norms of human rights and humanitarian law committed
by Coalition Forces personnel.
A. Freedom of opinion and expression
98. Many of the people interviewed by the OHCHR team in Amman
stressed that one of the great gains for freedom in Iraq since the
fall of President Saddam Hussein has been the flourishing of
freedom of opinion and expression. Iraqi newspapers and journals
have sprung up across the country and Iraqis are able to express
their views freely, to engage in demonstrations and protests
against Coalition Forces and to undertake political activity for
which they would have been brutally murdered in the past. It is
important to recognize these gains for human rights in Iraq at
present.
99. However, it should be pointed out that the former legal
regime applicable to the exercise of freedom of opinion and
expression is for the most part still in force, despite article 13
of the 8 March 2004 Transitional Administrative Law which provides
that "the right to freedom of expression shall be protected."
100. In particular, the criminal provisions regulating insult
and defamation (articles 202, 227, 229, 372 (1) and (5), 433, 434
and 435 of the Penal Code); the publication of false news (articles
179, 180, 210 and 211 of the Penal Code); public order and national
security (articles 201, 208, 214 and 215 of the Penal Code) remain
applicable and should urgently be reviewed and amended in
conformity with international human rights norms and standards.
101. Similarly, the Law on Publications -- which provides, inter
alia, that all owners of "political periodicals" should possess a
government-approved "merit certificate" issued by the journalists'
union and that all publications shall be licensed by the Ministry
of Information -- should urgently be repealed or be comprehensively
reviewed.
102. The 1980 Law on Censorship of Classified Material and
Cinema Films also seems to be still in force.?It designates
the Ministry of Information as the agency responsible for censoring
all films produced and imported in Iraq.
103. When it comes to freedom of information, including the
right to access information held by public authorities, many
provisions of the Penal Code unduly restrict it, such as article
178 (2), 182, 228, 327 and 437.
104. In the context of the development of recent and vibrant
media in the country, some instances of temporary suspensions or
restrictions on the media for incitement of violence and the
closure of a publication for incitement of killings have been
reported.
105. In parallel, it should be noted that when it comes to their
security, the situation of journalists -- Iraqis and foreign alike
-- is very difficult. Many cases of killings and of abductions have
been reported since the end of the war. It should be noted that
many Iraqi journalists working for Western media are being targeted
by insurgent groups. Reports also mention that proper
investigations into attacks on journalists and threats are lacking,
and it is feared that this will lead to self-censorship by
journalists, in particular Iraqi and other Arab journalists, to
preserve their security.
B. Freedom of religion or belief
106. The right to freedom of religion or belief is mainly
governed by article 18 of the International Covenant on Civil and
Political Rights, article 18 of the Universal Declaration of Human
Rights and the 1981 Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on Religion or
Belief.?The International Covenant on Civil and Political
Rights has been ratified by both Iraq and most of the States
participating in the Coalition Forces.
107. The Muslim community accounts for between 93 and 97% of the
total population. The remaining portion of the population is
composed of Christians (Assyrians, Chaldeans, Roman Catholics, and
Armenians), Yazidis, Mandeans, Bahà'ìs and Jews.?
108. Some of the witnesses in Amman mentioned to the OHCHR team
that Coalition Forces at times treated Iraqis in an offensive
manner regarding their religion and cultural traditions. As
mentioned before, incidents were reported of women who had to leave
their house in night dress during house raids and that disrespect
was shown towards the Koran through throwing it on the floor or
tearing it apart. In relation to detention, allegedly prisoners
were forced to eat pork meat and drink alcohol. The
Secretary-General of the Organization of the Islamic Conference,
Dr. Abdelouahed BelKeziz, in a press release dated 16 May 2004
expressed his concern over the critical situation in Najaf Al
Ashraf, Karbala and other Iraqi cities, threatening the safety of
holy shrines. He stressed the necessity of respecting the
inviolability of holy places, including mausoleums, mosques and
cemeteries, as well as the obligation of avoiding the repercussions
of the ongoing fierce conflict therein. [26] In their comments the
US Authority stated that holy sites are being misuse by forces
attacking the Coalition.
109. Since the intervention by Coalition Forces, prominent Shia
Muslim leaders have publicly called for the creation of an Islamic
State governed according to Islamic law (Shari'ah). In this
context, particularly in southern Iraq where the country's Shia
Muslim majority are concentrated, attempts have been made to apply
Shari'ah.
C. Administration of justice
110. Over a period of thirty years, all aspects of the justice
sector, from the administration of justice, law enforcement,
corrections, judicial training to legal education have been
substantially degraded. Corruption, torture and other abuses were
endemic throughout the justice sector in the past.
111. The national legal framework was rendered inadequate and
outdated. Not modernized since the 1960's, the applicable law and
the legal process were also subjected to arbitrary decrees issued
by the Revolutionary Command Council, some of which remain part of
the applicable law.
112. Iraqi laws, most of which currently remain applicable, do
not meet international human rights standards in the area of
criminal procedures. The Criminal Procedure Code (CPC) is
insufficiently clear on powers of arrest, detention and judicial
review of detention. There is no right to challenge the lawfulness
of detention. The CPC is equally non specific on other due process
rights such as right to counsel and the right against
self-incrimination. The role of the public prosecutor is
effectively marginalized in criminal investigations, prosecutions
and appeals. Post war, the CPA has instituted certain amendments to
both codes, including voiding a provision that permitted the
introduction of evidence obtained through means of torture. Other
CPA amendments include establishing a right to counsel at the first
hearing, the right against self-incrimination, the right of
defendants to be informed of their rights and the suspension of
capital punishment. The CPA re-started the Official Iraqi Legal
Gazette, the official publication of all Iraqi laws since the
1920's.
113. As regards detention powers by Coalition Forces, CPA
Memorandum No. 3 states that a criminal detainee shall be brought
before a judicial officer no later than 90 days after induction
into a coalition force detention centre. Memorandum No.3 provides
access to a lawyer within 72 hours after induction into a coalition
detention center. However, reports indicate that in most cases,
access to lawyers for persons detained in Coalition Forces
detention centers is denied for long periods after arrest, as
induction generally occurs weeks, sometimes months, after arrest.
Lawyers interviewed in Amman stated that they had repeatedly been
denied access to detainees, both in Abu Ghraib prison and in Mosul.
Interviewees in Amman also reported that visits, including visits
by family members, are most of the time denied by Coalition Forces.
Reports also indicate that detainees in Baghdad police stations
have been denied access to a lawyer by the US Military Police.
These acts are contrary to Principles 17 and 18 of the 1988 United
Nations Body of Principles for the Protection of All Persons under
any Form of Detention or Imprisonment, as well as Principle No. 6
of the United Nations Basic Principles on the Role of Lawyers,
which should apply to all civilians, including civilian criminal
suspects.
114. In this respect, it is reported that in Iraqi
police-managed detention facilities, access to a lawyer and
presentation to a judge, in conformity with the provisions of the
Penal Code, are granted within 24 hours of arrest.
115. As regards the relationship between Coalition Forces and
Iraqi judicial authorities when it comes to the "management" of
civilian detainees, there are documented reports of cases where
orders by Iraqi examining magistrates for the release of a detainee
on bail or to have him/her brought before a court have been ignored
by Coalition Forces, therefore undermining the rule of law.
116. In addition, reports mention the occurrence of cases where
Coalition Forces have detained family members of alleged
"insurgents" in order to compel their cooperation and exert
pressure on the "insurgents"; where Coalition Forces have allegedly
destroyed the houses of families of "insurgents" and the crops and
houses in a given area as a retaliation for attacks by "insurgents"
against Coalition Forces in that area. It should be emphasized in
this respect that under International Humanitarian Law, occupation
forces are prohibited from carrying out reprisals and collective
penalties against civilians and from taking hostages, which acts
are considered as war crimes.
D. Accountability for human rights abuses committed by
Coalition Forces personnel
117. CPA Order No. 17 provides that Coalition Forces are subject
to the jurisdiction of their sending States. However, they are not
subject to Iraqi jurisdiction. Memorandum No.3, Sections 2(3) and
6(2), state, respectively, that coalition personnel are "immune
from local criminal, civil and administrative jurisdiction and from
any form of arrest or detention other than by persons acting on
behalf of their parent states"; that "no Iraqi court, including the
Central Criminal Court of Iraq (…) shall have jurisdiction over any
personnel of a Coalition member state in any matter, whether civil
or criminal"; and that "where any criminal detainee held by
Coalition Forces is subsequently transferred to an Iraqi Court, a
failure to comply with [the] procedures [relating to the treatment
of detainees] shall not constitute grounds for any legal remedy
(…)." In effect, there is immunity for Coalition Forces personnel
for any wrongful acts, including human rights abuses, committed in
Iraq as far as Iraqi jurisdiction is concerned.
IX. Transitional justice
118. For the past thirty years, Iraq society has been brutalized
by authoritarian rule, political violence and gross human rights
violations and has suffered from a degraded justice system. This
report recognizes that, in the past 12 months, the CPA has
undertaken a number of substantive initiatives in the area of
transitional justice. As the Iraqi Interim Government develops its
transitional justice policy, it may wish to re-consider some of
these initiatives so as to ensure that they comply with their
obligations under international law.?
A. Institutional initiatives
1. Policy
119. The CPA's policy on how to address the crimes of the
previous regime was assigned to the Office of Human Rights and
Transitional Justice, created in June 2003. The Office was tasked
with addressing human rights concerns and the transitional justice
policy process in Iraq through the development of mechanisms to
address the issues of justice, truth and reconciliation. It advised
on the creation of the Iraqi Special Tribunal, established a human
rights archive which received documentation on past atrocities,
developed a policy on mass graves and missing persons, facilitated
the work and development of NGOs in Iraq and created a national
civic education program to raise awareness on international human
rights.
2. Reparations
120. In May 2004 the creation of a Special Task Force on
Compensation for the Victims of the Previous Regime and the CPA's
contribution of US$25 million for initial compensation payments
were announced. Headed by the current President of the Iraqi Bar
Association, the task force has been asked to define the types of
injustice that merit compensation, the eligibility requirements,
the levels of compensation and the mechanisms for delivery of such
compensation. The task force report is to be provided to the
interim Iraqi government by 1 August 2004. The development of a
reparations program by the Iraqi Interim Government will be of the
utmost importance.
3.
Vetting????????
121. The CPA suspended the Iraqi Organization of the Judiciary
Act of 1979 and established an entity called the Judicial Review
Committee (JRC). Situated within the Ministry of Justice, the JRC
was established to vet judges and prosecutors for Ba'athist Party
links, criminal activity and complicity in human rights abuses. The
committee was designed to establish a measure of public trust in
the legal system by assessing and removing those judicial officials
designated as unqualified and corrupt. The CPA informed that
approximately 180 judges have been removed and replaced with new
appointments. The CPA has also established the Council of Judges
with authority to appoint, discipline and remove judges and
prosecutors.
122. The Iraqi de-Ba'athification Council was established to vet
all Iraqi government employees for Ba'ath Party involvement. The
intent was to eliminate the threat posed by the continuation of
Ba'ath Party networks and personnel in the administration of Iraq
and the intimidation of the public by Ba'athist Party officials.
Given the political realities of living under the previous regime,
most professionals had little choice but to join the ranks of the
Ba'ath Party. The policy of wholesale removal of legal and law
enforcement officials risked removing the institutional memory of
the justice sector. The CPA has apparently re-considered this
approach.
B. The courts
1. The Central Criminal Court
123. One of the first tasks of the JRC was to review judicial
personnel for the newly created Central Criminal
Court.?Established in June 2003, and operational since August
2003, the Central Criminal Court was established in Baghdad "as a
model of procedural fairness and judicial integrity" to try
designated serious offences committed since 19 March 2003. Persons
having any "involvement in Ba'ath Party activity" were excluded
from being appointed to the Court. The first cases began in August
2003. Because of absence of the UN, OHCHR has been unable to follow
the working of the court. The CPA does not release publicly the
cases or their disposition or issue public reports about the
success of the initiative.??
2. The Iraqi Special Tribunal
124. On 10 December 2003, the Iraqi Governing Council
established the Iraqi Special Tribunal to try senior members of the
former regime for war crimes, crimes against humanity, genocide and
designated offences under Iraqi law (the transitional law
re-affirmed the statute). There are some questions about the
consistency of some of the Statute's provisions with international
standards and the capacity of the Iraqi judiciary to undertake
these complex tasks. The Statute does not seem to take account of
the significant developments in international criminal law so as to
ensure a legitimate process. The Statute makes reference to the
adoption of rules of evidence and procedure, though, to-date, these
essential rules have not been completed. This will be critical
since provisions of the Iraqi criminal law appear to violate Iraq's
international obligations. The interim Iraqi government may wish to
undertake a review of the Statute of the Iraqi Special Tribunal as
well as other transitional justice initiatives in a holistic
approach that ensures all initiatives comply with international
standards and that they are part of an integrated approach to
justice, truth and reconciliation. The rules of evidence and
procedure are currently out for consultations with international
NGOs. It would be valuable for this process of consultation to be
completed before the rules are finalized and adopted.
125. The Iraqi Special Tribunal allows for international
assistance for judges, prosecutors and investigators. An
international team is being recruited for that purpose. Some US$75
million have been allocated for the operation of the Special
Tribunal in addition to more than US$14 million from Iraqi
funds.
126. The Office of Human Rights and Transitional Justice
forensic staff has been assessing over 250 suspected mass graves,
with a view to providing evidence to the Special Tribunal and in
preparation for examinations for the purpose of clarifying the fate
of missing persons and returning the bodily remains to the families
for reburial.
IX. Economic, social and cultural rights
A. Introduction
127. Iraq ratified the International Covenant on Economic,
Social and Cultural Rights in 1976. We have already noted that in
the aftermath of the war, and upon the assumption of control by
Coalition Forces, the situation was a difficult one for the
civilian population in as much as there was severe disruption of
economic activity and there was, for a prolonged period, a
breakdown of basic services.?
128. When asked about economic, social and cultural rights one
witness said that looting directly after the war affected mainly
the public sector. However, the private sector got affected once
there were bigger electricity cuts. At the same time, he mentioned
that demands had also increased after the war. Electrical
appliances flooded the market and the already stretched electricity
network could even under normal circumstance not have coped. Tens
of thousand of cars came into Iraq. They need roads and petrol.
129. A representative of a humanitarian non-governmental
organization said that Iraq was not in a humanitarian crisis.
However, Iraqis are disappointed as reconstruction is slow and they
had expected more from the Coalition Forces. On a positive note,
several witnesses said that salaries have increased drastically
(from at times US$2 to US$200 per month).
130. At the same time, the high levels of insecurity impacted
negatively on the lives of Iraqis, many of whom did not have access
to basic services such as safe drinking water and health care. The
restriction of women and girls' freedom of movement due to fear of
violence had a particularly negative impact since it limited their
ability to participate in education and employment. High levels of
insecurity also created serious risks for humanitarian workers and
hampered efforts to provide humanitarian aid, including emergency
health care. In much of the country, insecurity and institutional
instability continued to hamper the restoration of basic services
including electricity, water, and environmental sanitation.
B. Health
131. According to the United Nations Revised Humanitarian Appeal
for Iraq, as the conflict came to a close in April 2003, the health
system deteriorated dramatically. The standard in provision of
curative and preventive health care remained well below public
health norms, and there was an increasing risk of disease
outbreaks. Health structures were affected by the looting and chaos
which followed the conflict, as were the Ministry of Health and
health directorates at both governorate and district level.
Institutional capacity was further weakened by lack of funding for
recurrent costs, and uncertainty over division of roles and
decision-making at all levels within the health system following
moves to a more decentralized approach. The levels and distribution
of available human resources for health remained inadequate.
132. Gender violence and generally high levels of insecurity
continued to prevent access to health for women. A lack of freedom
of movement for women, combined with other restrictions on women's
human rights, had adverse health consequences for women and girls.
One recent survey found that fewer than half of women had access to
a health care provider when giving birth or receive prenatal care.
Maternal and infant mortality and malnutrition remained high.
C. Food, water and sanitation
133. Prior to the conflict, over 60% of the population was
dependent on food rations. This created a serious risk of
malnutrition both during and after the conflict.
134. Disease and inadequate food intake, together with the
overall deterioration of the economy, the pervasive poverty of
households, the breakdown in key infrastructure such as power grids
and water distribution networks, and the deterioration of social
services infrastructure, resulted in high levels of malnutrition
for children. Malnutrition is one of the most comprehensive
indicators of the well-being of children. One assessment suggested
that seven out of ten children suffered from various degrees of
diarrhea, primarily as a result of contaminated drinking water.
Poor food hygiene also contributed to children's ill-health as
power cuts disabled refrigeration and cooking gas became
scarce.
135. FAO highlighted that rural communities have become very
vulnerable to the security situation. The harvesting cycle is
affected. Farmers become beggars, have to relocate and large areas
become abandoned. The farming sector could only recover if security
is restored. The recovery of the farming sector would take two to
three years.
136. Central water and sewage systems reportedly were subject to
looting and sabotage, which decimated stocks and equipment
supplies, including water purification chemicals, and damaged
water-testing labs. A lack of spare parts and fuel for generators,
the difficulty of movement and transportation, and the lack of
communication between locations within and outside Baghdad led to a
severe disruption of the system. In rural areas, the supply of raw
water sources used for washing and hygiene was interrupted.
Shortages in power supply also contributed to the insufficient
supply of water to the population. Sewage treatment facilities were
frequently non-operational due to the breakdown of the fuel supply
line, a lack of maintenance and looting. One serious consequence of
the poor water and sanitation conditions was an increase in
diarrhea and waterborne diseases.
D. Education
137. According to an assessment made by UNICEF and the Ministry
of Education, the education sector was seriously affected by the
conflict and its aftermath. The buildings of the Ministry of
Education and Ministry of Higher Education were completely
destroyed. According to reports, most schools lost all educational
materials and equipment as a result of looting and sabotage. A
critical loss was the national Educational Management Information
System (EMIS) established just prior to the conflict.
138. High levels of insecurity continued to keep school
attendance levels, particularly of girls, to unacceptably low
levels. According to the United Nations/World Bank needs
assessment, one-quarter of students had not been attending school
regularly. Considerable gender and geographic imbalances persisted,
with far fewer girls and children in rural areas attending school.
A major obstacle to attendance remained household poverty, while
the poor quality of instruction and politicization of the
curriculum also influenced attendance.
XI. Oversight and accountability
139. Having reviewed in the preceding sections how human rights
have fared in different areas since the Coalition Forces took
control of Iraq, we turn now to the crucial issue of oversight and
accountability. The heart of the responsibility to protect lies in
these issues.
140. The principal Coalition partners with forces on the ground
in Iraq are parties to the Geneva Conventions of 1949. Writing in
the New York Times on Saturday, May 15, 2004, the Legal
Counsel to President Bush stated: "Both the United States and Iraq
are parties to the Geneva Conventions. The United States recognizes
that these treaties are binding in the war for liberation of Iraq.
There has never been any suggestion by our government that the
Conventions do not apply in that conflict... [T]he United States is
bound to observe the rules of war in the Geneva Conventions." [27]
British authorities have also recognized that they are bound by the
Geneva Conventions and Protocols in relation to the situation in
Iraq. Of particular relevance are the Third and Fourth Geneva
Conventions on the treatment of civilians and prisoners of war.
141. Iraq, the United States, Great Britain and most of the
other Coalition partners with forces on the ground are Parties to
the International Covenant on Civil and Political Rights. Article 4
of the Covenant provides in part that:
"1. In time of public emergency which threatens the life of the
nation and the existence of which is officially proclaimed, the
State Parties to the present Covenant may take measures derogating
from their obligations under the present Covenant to the extent
strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with their other obligations
under international law and do not involve discrimination solely on
the ground of race, color, sex, language, religion or social
origin.
"2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2),
11, 15, 16 and 18 may be made under this provision..."
142. American and British forces stationed in Iraq are governed
by their countries' military manuals which are referred to in their
written submission (see Annexes II and III). The forces of other
Coalition Partners are likewise bound by their respective national
military codes.?
143. A distillation of principles from their military codes
would require on the part of the Coalition Forces in Iraq, a duty
to use force no more than is necessary and proportional to the
situation they are dealing with; for Commanding officers to be
aware of, and responsible for, the conduct of their forces; for
Commanding officers to investigate allegations of excesses; and for
Commanding officers to bring to justice those alleged to have
committed excesses in breach of international humanitarian and
human rights law and in breach of the provisions of military
codes.??
144. Outside of the foregoing, it is a stark reality that there
was no international oversight and accountability in respect of the
situation that obtained in Iraq since the entry into control of
Coalition Forces. At the United Nations Commission on Human Rights
in April 2003, a decision was made to continue the mandate of the
Special Rapporteur on Human Rights in Iraq, established in 1991,
but to give him the mandate to inquire into past violations of
human rights under the preceding administration. The Rapporteur was
not given a specific mandate to monitor the contemporary situation.
On top of this, the mandate of the Rapporteur was discontinued
altogether a year later at the 60th session of the Commission on
Human Rights in March -- April 2004. The international community
was thus left in a situation in which there was no international
scrutiny of the situation of human rights in contemporary Iraq. As
of the time of writing investigations are however, under way in the
UK and the USA. It would be important that these are completed
expeditiously.
XII. Human rights legislation and institutions
145. This report has so far looked at the protection of
civilians, the treatment of persons in detention, the situation of
women, the situation of children, civil and political rights,
economic, social and cultural rights, and has discussed the
question of oversight and accountability. In this concluding
section, we turn to a review of the human rights norms and
institutions that are currently in place from the point of view of
their adequacy for the protection of human rights in the difficult
period ahead.?
A. International human rights treaties and applicable
constitutional framework
146. Iraq became a State Party to the following international
human rights instruments which are binding upon Iraqi
institutions:
-The International Covenant on Civil and Political Rights on 23
March 1976;
-The International Covenant on Economic, Social and Cultural
Rights on 3 January 1976;
-The International Convention for the Elimination of All Forms
of Racial Discrimination on 13 February 1970;
-The Convention on the Elimination of All Forms of
Discrimination against Women on 12 September 1986;
-The Convention on the Rights of the Child on 15 July 1994.
147. As mentioned earlier in this report, the Iraqi Interim
Governing Council has promulgated a constitutional framework and
related legislation that took into account certain aspects of
international human rights law. The new Interim Government will
need to bring these national instruments further into conformity
with international human rights law.
B. Legislation
148. Article 23 of the Transitional Administrative Law (TAL)
provides that the Iraqi people enjoy all the rights that befit a
free people possessed of their human dignity, including the rights
stipulated in international treaties and agreements, other
instruments of international law that Iraq has signed to and to
which it has acceded and others that are deemed binding upon it,
and the law of nations. (Annex I)
149. According to CPA Regulation Number 1, all laws in force in
Iraq as of 16 April 2003 shall continue to apply unless suspended
or replaced by the CPA, provided these laws do not prevent the CPA
from exercising its rights and fulfilling its international
obligations or are in conflict with any CPA Order or
Regulation.
150. Many laws of the former Iraqi regime remain in effect. The
CPA has undertaken a review of the Iraqi Penal Code of 1969 and the
Criminal Procedure Code of 1971 in order to evaluate their
compatibility with international human rights standards. In
conformity with the above, the CPA has suspended the death penalty
(Order Number 7) and has introduced the UN Standard Minimum Rules
for the Treatment of Prisoners (Memorandum Number 2). Welcome
amendments to the Iraqi penal code were made by CPA prohibiting
inhuman or degrading treatment or punishment.
C. Judicial protection of human rights
151. Against the preceding background of the prevailing
constitutional and legislative framework in Iraq, the judicial
system has been functioning under severe constraints. Under the
previous administration there was clearly little possibility of
having recourse to the courts for the protection of human rights
because there was no independent judiciary and there were massive
violations of human rights of the worst kinds imaginable. Since the
assumption of control by the Coalition Forces, Iraqis have had
little opportunities of recourse to the courts for the legal
protection of their rights because of military insecurity and
political instability. Legal and judicial reform must be a matter
for priority attention by the Interim Government necessitating the
establishment of a legal and judicial reform commission.
152. The Coalition Provisional Authority has begun this process
as is stated in the written submission of the CPA (Annex I). The
Judiciary has been reestablished as a separate branch of the
government under the supervision of a Council of Judges. A Judicial
Review Committee vetted all 860 judges and prosecutors nationwide
for past corruption. Approximately 180 judges were removed and
replaced. Training for judges is in progress to inculcate a culture
of respect for human rights, due process and basic tenets of the
rule of law.?
D. The Ministry of Human Rights
153. As part of the arrangements introduced by the Iraqi Interim
Governing Council, an Iraqi Ministry of Human Rights was
established in September 2003. It was given the mandate of
addressing past human rights atrocities and safeguarding the human
rights and fundamental freedoms of all persons within the territory
of Iraq in the future. Specifically the Ministry of Human Rights is
to help establish conditions conducive to the protection of human
rights and fundamental freedoms in Iraq and prevent human rights
violations in Iraq; to make formal recommendations for measures to
prevent human rights violations; and to assist all people in
society in healing from past atrocities; to serve as focal point
for relations with international human rights bodies; and to
provide advice to law makers (see CPA submission, Annex I).
154. OHCHR provided human rights training to 10 staff members of
the Ministry in February 2004 and invited two additional staff
members (as well as two staff members from the Ministry of Justice)
to Geneva for a human rights training during the 60th session of
the Commission on Human Rights. In talking to Iraqis in Amman it
became clear that they wished the Ministry to play a strong role in
the future. Some interviewees referred to the Ministry's important
role in dealing with the past and initiating national dialogue on
this issue. Others felt that the Ministry would have to be closely
involved in legal reform and should receive reports from
non-governmental organizations to submit them to the relevant
Government Institutions for response. As the Iraqi constitutional
and political framework evolves, it would be important to retain
this concept of an Iraqi Ministry of Human Rights and to strengthen
it in the future.
E. The proposed National Commission for Human Rights
155. Article 50 of the Transitional Administrative Law (TAL) for
Iraq provides for the establishment of a National Commission for
Human Rights to carry out the commitments of the TAL and to examine
complaints pertaining to violations of human rights. The TAL
provided that the Commission shall be established in accordance
with the Paris Principles as unanimously adopted by the United
Nations General Assembly on 20 December 1993. The Commission shall
also include an Ombudsman's Office dealing with complaints, with
powers of investigation, including on its own initiative, regarding
any allegation of conduct by governmental authorities considered
arbitrary or contrary to law.
156. The establishment of the National Human Rights Commission
for Iraq should be given priority by the Interim Government. It
would be very important that the Commission have an open and
transparent appointment procedure concerning its Commissioners.
These individuals should be of high quality with appropriate human
rights expertise and integrity and must represent the various
elements of society. Their independence will need to be assured
through effective provisions within the founding legislation. The
appointments and dismissal procedures should be transparent.
157. In appointment it is advisable that a Selection Committee
comprising all social forces in Iraq be established. This Committee
would make recommendations to the Interim Government concerning
candidate Commissioners. The Interim Government would appoint the
Commissioners. The Interim Government could either appoint a
Chairperson or the Commissioners could do so amongst themselves.
The membership of the Commission should include Iraqi women and
men, drawn from each of the principal ethnic and religious groups
of Iraq, from inside the country and the Iraqi Diaspora, and Iraqi
refugee and internally displaced communities. All Commissioners
should be Iraqi nationals. A Commission operating in a large and
diverse country like Iraq would ideally have between 7 and 11
Commissioners.
158. Some of the possible functions for the Commission based on
experience could include:
(1) to advise the Interim Government, future Legislature and any
other competent body on any matters concerning the promotion and
protection of human rights;
(2) to publicize its advice and opinions, recommendations,
proposals and reports;
(3) to examine and report on the legislation and administrative
provisions in force, draft laws and proposals and make such
recommendations as it deems appropriate to ensure that these
provisions conform to the fundamental principles of human
rights;
(4) to recommend the adoption of new legislation, the amendment
of legislation in force and the adoption or amendment of
administrative measures;
(5) to investigate, report on and attempt to resolve any
situation of violation of human rights;
(6) to prepare reports on the situation in Iraq with regard to
human rights in general and on more specific matters;
(7) to draw attention to situations in any part of Iraq where
human rights are violated and make proposals for initiatives to put
an end to such situations and, where necessary, expressing an
opinion on the positions and reactions of the Government;
(8) to promote and ensure the harmonization of legislation,
regulations and practices with international human rights law and
its effective implementation;
(9) to assist in the formulation of programs for the teaching of
and research into human rights and to take part in their
implementation in schools, universities and professional
circles;
(10) to publicize human rights and efforts to combat all forms
of discrimination by increasing public awareness, especially
through information and education and by making use of all media;
and
(11) to cooperate with the United Nations, the United Nations
High Commissioner for Human Rights and any other organization in
the United Nations system, and other regional institutions and the
institutions of other countries that are competent in the areas of
the promotion and protection of human rights.
159. The inclusion of the office of an Ombudsman within the
Commission will ensure that the broader areas of maladministration
are intrinsically seen as human rights concerns. The enjoyment of
human rights by combating administrative excesses and inequities
would be promoted.
Concluding Observations
160. Coalition Forces went to Iraq to help bring freedom to that
country. Whether they acted in accordance with international law in
doing so is the subject of debate but is not within the province of
this report. What is within the province of this report is how
human rights and humanitarian law have been respected and protected
since Coalition Forces took control of the country.
161. Everyone accepts the good intentions of the Coalition
governments as regards the behavior of their forces in Iraq. No one
imputes to Coalition governments any intention to violate the
rights of ordinary Iraqis.
162. One should take into account in weighing what has happened
in Iraq the prospects that, as a result of the actions of the
Coalition governments, Iraq could well be launched on the road to
democracy, the rule of law and governance that is respectful of
human rights.?
163. From the point of view of human rights, there have been
gains during the period since Coalition Forces took control of the
country. These include an internal debate on constitutional
architecture mindful of international human rights norms; the
establishment of an Iraqi Ministry of Human Rights; greater
freedoms for ordinary Iraqis; more participation of women in the
public life of Iraq; and greater freedom of opinion and
expression.
164. Nevertheless, there have been serious human rights problems
that must be recognized. The fact of the matter is that large
numbers of people were incarcerated without it being publicly known
how many, for what reasons, where they were kept, in what
conditions, and how they were being treated.
165. The hardships suffered by Iraqis in the aftermath of the
victory of Coalition Forces were clearly not intended. But the fact
of the matter is that they occurred. Ordinary Iraqis did undergo
deprivations in respect of basic economic and social rights.
Fortunately, the situation has ameliorated.
166. The treatment of Iraqi prisoners was, as recognized by
Coalition leaders at the highest levels, a stain upon the effort to
bring freedom to Iraq.
167. The central purpose of this report has been to look to the
future from the point of view of the duty of care and control,
protection, and accountability in a post conflict -- but still
fraught -- emergency situation. From this perspective, we would end
this report with the following recommendations:
(1) The Coalition Authorities should arrange for regular
inspections of all places of detention and also appoint immediately
an International Ombudsman or Commissioner to monitor respect for
human rights in Iraq, to submit periodic public reports, and to
make recommendations to Coalition and Iraqi authorities.
(2) The Iraqi Interim Government should establish an independent
Iraqi National Human Rights Commission and empower it to work for
the promotion and protection of human rights in the country.
(3) The Coalition Authorities should bring to justice those
members of the Coalition Forces responsible for serious violations
of human rights and report to the Secretary-General of the United
Nations on prosecutions entered and the results of the trials.
(4) The Coalition Authorities should establish a Human Rights
Fund for Iraq and give generously to it to enable it to promote
human rights education and to provide human rights materials to
Iraqi judges, lawyers, prosecutors and prison officials.
(5) The Iraqi Interim Government should promulgate urgently a
human rights policy pronouncement for Iraq and live up to it.
(6) The Iraqi Interim Government should rapidly announce the
designation of an Iraqi Legal and Judicial Reform Commission to
recommend reform to Iraqi laws that are inconsistent with
international human rights standards and, where there is an absence
of law, make provision for due process protections in accordance
with its international obligations. In any event, since many laws
have not been substantially reformed since the 1960's, the
Commission should undertake long term reform of the legal
framework.
(7) In its approach to transitional justice, the Iraqi Interim
Government should develop a strategy for addressing the legacy of
brutal authoritarian rule and massive human rights abuses in Iraq.
Such a strategy must be centered on the population's needs,
attitudes and perceptions of transitional justice. Only effective
and meaningful consultation with legal actors and the public at
large will ensure a process that is considered legitimate. This
process must address such issues as past human rights abuses,
justice and accountability mechanisms and non-judicial measures
such as vetting, truth seeking and reparations in a holistic,
coordinated and coherent manner.
(8) The Iraqi Interim Government may wish to undertake a review
of the Iraq Special Tribunal Statute (IST) so as to ensure the
criminal justice process complies with international fair trial
standards, that recent developments in international criminal law
are taken into account and that the application of the death
penalty remains suspended.
(9) If the IST remains law and if only a nominal number of
perpetrators are prosecuted by the Iraq Special Tribunal, it would
be important to consider carefully the need to establish an Iraqi
Truth and Reconciliation Commission.
(10) The Iraqi Interim Government should designate a Reparations
Commission to develop a reparations program for past crimes taking
further the work begun by the Special Task Force.
(11) Given the continuing violence, the Iraq Interim Government
will need to develop adequate mechanisms so as to ensure the
effective security of legal actors, defendants, victims and
witnesses.
(12) The Iraqi Interim Government should consider and take steps
to support Iraqi civil society organizations for the promotion and
protection of human rights. This task could be facilitated by the
Iraqi Ministry of Human Rights, with international assistance.
(13) The Iraqi Ministry of Human Rights should be given all
support nationally and internationally to help it discharge its
responsibilities for the promotion and protection of human rights
in Iraq.
(14) The United Nations, as circumstances permit, should
continue to provide human rights training for Iraqi Government
officials, judges, prosecutors and lawyers, as well as
representatives of non-governmental organizations and civil
society.
--------------------------------------------------------------------------------
[1] See Report of the SG to the Security Council of 17 July,
S/2003/715, para. 47.
[2] As was indicated in the part of this report on "Sources and
methods", witness statements could not be independently
verified.
[3] The USA has not ratified the Additional Protocols. Neither
has Iraq but generally many parts of the Additional Protocols are
considered as part of customary international law. The UK is a
party to the additional protocols.
[4] As was indicated in the part of this report on "Sources and
methods", witness statements could not be independently
verified.
[5] AI report: "Memorandum on concerns relating to law and
order" which formed the basis for talks with the Coalition Forces;
press release AI 07/05/2004: "USA: Pattern of brutality-war crimes
at Abu Ghraib."
[6] Investigative report, hereafter "Taguba report", on alleged
abuses at US military prisons in Abu Ghraib and Camp Bucca, Iraq by
Maj. Gen. Antonio M. Taguba: "Article 15-6 Investigation of the
800th Military Police Brigade."
[7] "Report of the International Committee of the Red Cross
(ICRC) on the treatment by the Coalition Forces of Prisoners of War
and other Protected Persons by the Geneva Conventions in Iraq
during arrest, internment and interrogation"; hereafter "ICRC
report"; the report included observations and recommendations from
visits that took place between March and November 2003 and was
handed over to Ambassador Paul Bremer and Lt. Gen. Ricardo
Sanchez.
[8] Taguba report, p. 17; classified Criminal Investigation
Division report on criminal abuses at Abu Ghraib, 28 January 2004;
a synopsis prepared by the Criminal Investigation Command, dated 5
May 2004, categorizes as a sexual assault a case of abuse at Abu
Ghraib last fall that involved three soldiers, who "entered the
female wing of the prison and took a female detainee to a vacant
cell. While one allegedly stood as look-out and one held the
detainee's hand, the third soldier allegedly kissed the detainee."
The report says that the female detainee was reportedly threatened
with being left with a naked male detainee, but that "investigation
failed to either prove or disprove the indecent-assault
allegations."
[9] "Should any doubt arise as to whether persons, having
committed a belligerent act and having fallen into the hands of the
enemy, belong to any of the categories enumerated in Art. 4, such
persons shall enjoy the protection of the present Convention until
such time as their status has been determined by a competent
tribunal."
[10] CPA Memorandum Number 3, Section 6 (d) states that "a
criminal detainee shall be brought before a judicial officer as
rapidly as possible and in no instance later than 90 days from the
date in induction into a Coalition Force detention centre."
[11] Art. 78 Fourth Geneva Convention; Commentary on the Fourth
Geneva Convention Art. 78, p. 368.
[12] Commentary on the Fourth Geneva Convention, p. 367.
[13] Art. 78 Fourth Geneva Convention.
[14] Art. 13, 14 and 130 Third Geneva Convention; Art. 27, 32
and 147 Fourth Geneva Convention.
[15] Art. 130 Third and Art. 147 Fourth Geneva Convention.
[16] Notably, under international law, "inhuman treatment"
includes "not only acts such as torture and intentionally causing
great suffering or inflicting serious injury to body, mind or
health but also extends to other acts contravening the fundamental
principle of humane treatment, in particular those which constitute
an attack on human dignity." Similarly, "willfully causing great
suffering or serious injury to body or health includes injury to
mental health and includes those acts which do not fulfill the
conditions set for the characterization of torture, even though
acts of torture may also fit the definition given"; Kemal
Mehinovic, et al., v. Nikola Vuckovic, a/k/A Nikola Nikolac, US
District Court for the Northern District of Georgia, Atlanta
Division, 198 F. Supp. 2d 1322; 2002 US Dist. April 29, 2002.
[17] Art. 13 Third Geneva Convention; Art. 27 Fourth Geneva
Convention; Commentary on the Third Geneva Convention, p. 140;
Commentary on the Fourth Convention, p. 200.
[18] Art. 7 ICCPR: "No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment." General
Comment on Art. 2 ICCPR. The Nature of the General Legal Obligation
Imposed on States Parties to the Covenant (adopted at 2187th
meeting on 29 March 2004; CCPR/C/74/CRP.4/Rev.6): Para. 10: "...to
ensure the Covenant rights to all persons who may be within their
territory and to all persons subject to their jurisdiction. This
means that a State party must respect and ensure the rights laid
down in the Covenant to anyone within the power or effective
control of that State Party, even if not situated within the
territory of the State Party" ... "this principle also applies to
those within the power or effective control of the forces of a
State Party acting outside its territory, regardless of the
circumstances in which such power or effective control was
obtained, such as forces constituting?a national contingent of
a State Party assigned to an international peace-keeping or
peace-enforcement operation"; Para. 11: "...the Covenant applies
also in situations of armed conflict to which the rules of
international humanitarian law are applicable. While, in respect of
certain Covenant rights, more specific rules of international
humanitarian law may be specially relevant for the purposes of the
interpretation of Covenant rights, both spheres of law are
complementary, not mutually exclusive."
[19] Art. 1 of CAT defines "torture" as following: "Any act by
which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining
from him or a third person information of confession, punishing him
for an act he or a third person, or is suspected of having
committed, or intimidating or coercing him or a third person, or
for any reason based on discrimination of any kind, when such pain
or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or a person acting in
an official capacity."
[20] As was indicated in the part of this report on "Sources and
methods", witness statements could not be independently
verified.
[21] Daily Bulletin published by the United States Permanent
Mission to the United Nations in Geneva, May 11, 2004, p. 1.
[22] New York Times, Saturday, May 15, 2004, p. 1.
[23] Reservations were made to the General Declaration and to
articles 2 (f) and (g); 9, paragraphs 1 and 2; 16; and 29,
paragraph 1; two States filed objections to all or some aspects of
the reservations.
[24] E/CN.4/2003/75/Add.1.
[25] As was indicated in the part of this report on "Sources and
methods", witness statements could not be independently
verified.
[26] As was indicated in the part of this report on "Sources and
methods", witness statements could not be independently
verified.
[27] The New York Times, Saturday, May 15, 2004, p. A17.
(Source: http://www.unhchr.ch)