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The Neocolonial Fabrication of Iraq A Country Without Justice

A recently published Report by the leading humanitarian NGO Human Rights Watch makes state of the dramatic situation that prevails in the judiciary system of the neocolonial fabrication of post-war Iraq. The Report sheds light on an impossible situation ensued from the calamitous mismanagement of the country by the biased US administration; that's why I will republish the Report in a series of articles. In the present article, I republish the Introduction, the Table of Contents, the Summary, and the Recommendations.

The Quality of Justice - Failings of Iraq's Central Criminal Court

December 14, 2008

This 42-page report documents how thousands of defendants in Iraq wait months or even years before facing a judge and hearing charges against them in the Central Criminal Court (CCCI), and cannot pursue a meaningful defense or challenge evidence against them. A US-Iraq security agreement that takes effect at year's end will transfer detainees held by the US-led Multinational Force to Iraqi jurisdiction, adding to the court's cases.

Table of Contents

The Quality of Justice

I. Summary

II. Recommendations

III. Methodology

IV. Background

V. Legal Framework

VI. Delays in Hearings

VII. Lack of Evidence and Reliance on Secret Informants

VIII. Access to and Quality of Defense

IX. Coerced Testimony and Abuse in Detention

X. Acknowledgments

I. Summary

The Central Criminal Court of Iraq (CCCI) is the country's flagship criminal justice institution. Yet it is an institution that is seriously failing to meet international standards of due process and fair trials. Defendants often endure long periods of pretrial detention without judicial review, and are not able to pursue a meaningful defense or challenge evidence against them. Abuse in detention, typically with the aim of extracting confessions, appears common, thus tainting court proceedings in those cases.

The failings of the court are all the more striking because of the stakes riding on it. The CCCI, established by the US-led Coalition Provisional Authority (CPA) in 2003, commands greater resources and broader authority than any other Iraqi criminal justice institution. Its mandate encompasses the critical task of coping with security-related criminal cases under the framework of Iraqi law, including the country's constitution and penal code. The CPA decree that established the court cites the importance of "development of a judicial system in Iraq that warrants the trust, confidence and respect of the Iraqi people."[1] Far from serving as a model criminal justice institution, the court has failed to provide basic assurances of fairness, undermining the concept of a national justice system serving the rule of law.

Human Rights Watch monitored court proceedings and met with judges, defense attorneys, defendants, and others. We found that the majority of defendants endured lengthy pretrial detention without judicial review, that they had ineffectual legal counsel, and the court frequently relied on the testimony of secret informants and confessions likely to have been extracted under duress. Judges in many instances acknowledged these failings and dismissed some cases accordingly, particularly those involving alleged torture, but the numbers of cases where such allegations arise suggest that serious miscarriages of justice are frequent. Human Rights Watch also monitored a limited number of cases involving children, and found that the authorities failed to hold them separately from adult detainees, and that their access to counsel and prompt legal hearings was no better than that of adults.

Structural problems, due in part to political fractiousness and inefficiency among Iraqi institutions, play a role in undermining the CCCI's proceedings. Iraq's parliament approved a General Amnesty Law in February 2008, in part to reduce the detainee population and thus the burden on the justice system. Persons accused of war crimes, crimes against humanity, and other offenses committed between July 1968 and May 2003 as outlined in the statute for Iraq's Supreme Criminal Tribunal would not be eligible for amnesty. The amnesty as passed would benefit persons held for more than six months without an investigative hearing, or for more than a year without referral to a court. Implementation, however, has lagged very seriously. The continued high number of persons in detention facilities has put serious strain on the CCCI, where dozens of judges hear thousands of cases a month, and further delayed judicial review of detentions.

A related concern is impunity for those responsible for torture and other ill-treatment of detainees. The Presidency Council, which must approve all legislation passed by the parliament before it becomes law, did not approve in late 2007 a measure that would overturn current law and allow for prosecution of Iraqi officials who have engaged in abuse of detainees.

Other failings reflect the fact that the Iraqi justice system, and hence the CCCI, does not have jurisdiction over individuals taken into custody by the US-led Multinational Force in Iraq (MNF). The MNF refers only a small number of the persons it detains to the CCCI for prosecution, and in those cases has exercised broad influence on proceedings since it provides physical security and plays a dominant advisory role, though that influence is less pronounced than in the court's early days. The refusal in particular of US military officials involved in detention matters to honor hundreds of decisions by the court to release detainees in US military custody has further undermined respect for the Iraqi judicial system. (This report does not address the status of detainees held by the US military as security detainees, except in the context of their transfer to the CCCI for prosecution.)

The current structural limits on the court's jurisdiction, independence, and capacity should not obscure the obligation of Iraq's judicial authorities to meet basic standards of fairness in court proceedings. Those standards are required under both international and domestic law.

Iraq's future as a society based on rule of law and respect for fundamental rights depends in large part on the establishment of a credible and sustainable Iraqi national criminal justice system embodying international standards of fairness. This idea underpins all projects of national reconciliation. Justice, administered impartially to all Iraqis, by Iraqis, would signify the country's break with the abuses of the Saddam Hussein era. Regrettably, some of the failings in the court's proceedings show disturbing continuity with that period. A legal culture that has not accepted concepts like the right to a credible defense and committed itself to meeting basic standards of due process links present criminal justice to past repression through the arbitrary exercise of authority.

Notes

1] CPA/ORD/11 July 2003/13, as amended.

II. Recommendations

To the Iraqi Government

On administration of justice

Disallow confessions and other evidence that has been obtained through torture or other unlawful methods.

Limit the use of secret informants as a basis for pretrial detention or conviction by establishing procedures for verifying the credibility and veracity of such evidence in a timely manner.

Allow detainees the opportunity to sufficiently challenge evidence provided by secret informants, while not endangering the safety of witnesses.

Ensure that arrests comply with Iraq's domestic law that requires arrest warrants from a judicial authority (except in cases in flagrante delicto).

Ensure that family members and legal counsel have prompt access to detainees and provide legal counsel with case files on a timely basis.

Notify detainees, family members, and defense counsel in advance of hearing dates and postponements.

Initiate a review of previous convictions to ensure that such convictions were not based on coerced confessions or solely on unfounded statements of secret informants.

Revise the Criminal Code and Criminal Procedure Code to ensure that the rights of defendants meet international standards, notably by prohibiting torture and other mistreatment and the use of coerced confession as evidence. Ensure that child detainees are held separately from adults in accordance with the Convention on the Rights of the Child and the Iraqi Child Welfare Law.

Revise the Child Welfare Law to require that parents or guardians and counsel are present during the questioning of children and at their investigative hearings.

On unlawful arrest and detention

Ensure that persons taken into custody are brought before an investigative judge within 24 hours of arrest, in conformity with Iraq's Code of Criminal Procedure.

Immediately release or charge with a cognizable criminal offense all those currently held without charge.

On torture and ill-treatment

Condemn publicly any use of torture or other mistreatment in pretrial detention, including during interrogation with the aim of eliciting confessions.

Investigate promptly all allegations of torture and ill-treatment, and institute disciplinary measures or criminal prosecution, as appropriate, against guards, interrogators, and other detention facility officials who are responsible for the abuse of prisoners.

Abrogate the provision of Iraq's Code of Criminal Procedure (article 136(b)) that requires the permission of superiors to bring criminal charges against officials, including those implicated in the torture and ill-treatment of detainees.

Conduct prompt medical examinations of detainees who allege abuse in detention or during interrogation.

Compensate victims of torture, ill-treatment, and arbitrary detention adequately and in a timely manner.

Implement the general recommendations of the UN Committee Against Torture and the UN special rapporteur on torture to establish a fully independent complaints mechanism for persons who are held in state custody.

Fulfill obligations as a state party to the Convention against Torture to:

enshrine the prohibition against torture in training of security forces and other personnel engaged in detention; and

specify interrogation practices with the goal of preventing torture and other mistreatment of detainees.

To the United States Government and the Multinational Force (MNF)

Transfer the cases of all Iraqi detainees to the legal jurisdiction of the Iraqi courts.

Do not physically transfer detainees to Iraqi government custody where there is a fear of torture or other mistreatment. Act to improve treatment in Ministry of Justice detention facilities through frequent and unannounced inspections in conjunction with the Ministry of Human Rights.

Coordinate with Iraqi judicial authorities to identify detainees in MNF custody who meet requirements to benefit from the General Amnesty Law.

Ensure that, until such time as all Iraqi detainees are transferred to Iraqi custody, family members and legal counsel have prompt access to detainees.

Ensure that advisers to the MNF providing assistance to the Iraqi government on administration of justice, policing, and detentions give priority to the investigation of allegations of the torture or ill-treatment of detainees by Iraqi police and military forces.

Assist the creation of Iraqi mechanisms for investigating allegations of abuse of detainees.

Assist the Iraqi government to establish an independent complaints mechanism, which could include an ombudsman for judicial, penal, and detention matters, to receive and investigate complaints by detainees of abuse by detaining officials. Such a mechanism should be accessible to children.

Assist the Iraqi government to comply with international standards relating to the treatment of children in detention by holding them in facilities separate from adult detainees.

To the International Donor Community

Monitor criminal justice, police, security, and counterterrorism assistance to ensure Iraqi compliance with international human rights standards in the criminal justice system and police and intelligence forces.

Make human rights training an integral component of all capacity-building and training programs involving the criminal justice system, police, and intelligence agencies.

Support the Iraqi Bar Association and other legal organizations that provide free legal representation for defendants in the criminal justice system.

Support the development of an independent National Human Rights Commission and local independent human rights groups with a monitoring capacity.

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