Obliterating Humanity, US / UK-occupation of Iraq is Worse than Saddam Hussein’s Tyranny

In two previous articles entitled ‘The Neocolonial Fabrication of Iraq – A Country Without Justice’ (http://www.buzzle.com/articles/the-neocolonial-fabrication-of-iraq-a-country-without-justice.html), and ‘Post-Saddam Iraq: the Prevalence of Injustice and Inequity’ (http://www.buzzle.com/articles/post-saddam-iraq-the-prevalence-of-injustice-and-inequity.html), I republished the preliminary parts (Introduction, Table of Contents, Summary, Recommendations, Methodology and Background) of a Report recently released by the leading humanitarian NGO Human Rights Watch (The Quality of Justice - Failings of Iraq’s Central Criminal Court - December 14, 2008 - http://www.hrw.org/en/reports/2008/12/14/quality-justice-0), which 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.

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.

In the present article, I republish one more chapter of the Report that is focused on the existing Legal Framework. In forthcoming articles, I will complete the republication of the enlightening Report.

V. Legal Framework
http://www.hrw.org/en/node/76891/section/6

Iraqi law, including the Constitution and the Criminal Procedure Code, articulates standards of fairness in court proceedings and provides baseline protections for criminal defendants. Some of these are amplified in Iraqi's obligations as a party to international legal standards. That legal framework as it applies to the CCCI is presented below. The key aspects in which the practical functioning of the court are badly adrift from the applicable laws and standards are also noted here, and elaborated in the succeeding chapters of this report.

Iraqi Law

Iraq's Criminal Procedure Code governs proceedings before the CCCI. Additionally, the constitution adopted in October 2005 by popular referendum provides baseline protections for criminal defendants. The constitution affirms the principle of equality before the law and guarantees criminal defendants a broad array of rights, including: the right to be deprived of liberty only by decision of a competent judicial authority; the right to freedom from unlawful detention; the right to have preliminary investigative documents submitted to a competent judge within 24 hours from the time of arrest (which may be extended only once, for an additional 24 hours); the right to have a private residence searched only by decision by a competent judicial authority; the right to be presumed innocent until proved guilty pursuant to law; the right to a fair trial; the right to legal defense during all phases of investigation and trial, and for a court-appointed counsel to be provided for those without access to defense counsel; the right to remain silent; and the right to freedom from all forms of torture and inhumane treatment.[31] The constitution prohibits the use of any confession made under force, threat, or torture.[32] The constitution also includes a limited right to a public hearing, as courts can decide to make such hearings secret.[33]

Iraqi judicial authorities told Human Rights Watch that the constitutional requirement that preliminary investigative documents be submitted to a competent judge within 24 hours from the time of arrest establishes the legal framework for arrests.[34] However, the more stringent requirements in the Criminal Procedure Code remain operative and represent a further protection enshrined by law. Article 123 of the Criminal Procedure Code requires that a defendant be brought before an investigative judge or a judicial investigator within 24 hours of arrest.[35] At this initial hearing the defendant must be informed of the offenses that he or she has been accused of committing. The Criminal Procedure Code provides that authorities may renew detention for a period of 15 days upon each separate judicial hearing, up to a maximum of six months total for the most serious offenses.[36] In the event that an investigation has not been completed after six months, the appropriate criminal court must authorize an extension of the detention.[37]

Human Rights Watch attended the investigative hearings of 71 defendants before the CCCI, many of which clearly ran afoul of these legal protections. In many instances, detainees were brought before an investigative judge months or, in some cases, years following initial detention or judicial hearing. While many of the detentions in question qualified for extension to allow for continued investigations, formal judicial procedures for the renewal of detentions were not followed in practice as a general matter.

Iraq's Criminal Procedure Code generally provides clear procedures for the detention, investigation, and prosecution of criminal defendants. An arrest can only be made in accordance with a warrant issued by a competent judicial authority, excepting an arrest for a crime witnessed by the arresting authority.[38] The Criminal Procedure Code also governs searches and requires that a search of an individual or a private residence be authorized by a competent legal authority.[39] It stipulates that an investigative judge lead the fact-finding and investigation into the alleged crime and also conduct the investigative hearings.[40] The investigative judge can deputize investigative officers to examine the crime scene and gather forensic evidence, or do so himself.[41] Other than the confiscation of weapons and arms by MNF, presented as photographic evidence during hearings before the CCCI, Human Rights Watch observed no presentations of forensic evidence of any kind. The lack of forensic evidence places further stress and reliance upon interrogation and secret informants (see below) for prosecution and conviction.

The investigative judge or a criminal investigator can record the testimony of witnesses.[42] Other than secret informants, the CCCI proceedings Human Rights Watch attended were devoid of any witnesses other than MNF military personnel, in cases of MNF referral.

Following the completion of an investigation, the investigative judge makes a decision regarding the disposition of the case. If the judge finds that the act in question is illegal and that there is sufficient evidence supporting the charge, the judge then recommends a referral (ihala) and transfer of the case to the appropriate trial venue.[43] Upon referral for trial, the court may consolidate cases involving multiple defendants if the accused were jointly involved.[44] The Criminal Procedure Code requires that the judge issue a formal charge with a high degree of specificity prior to the institution of trial proceedings.[45] Three-judge panels conduct trial proceedings before the CCCI.

Like the constitution, Iraq's Criminal Procedure Code bans the use of "any illegal methods to influence the accused and extract a confession."[46] It also provides for criminal liability for torture or other instances of abuse in custody.[47] Article 333 of the Penal Code also criminalizes the actions of any public official or agent who tortures or orders the torture of an accused, witness, or informant in order to compel a confession.[48] While judges at the CCCI took issues of torture and abuse seriously in hearings attended by Human Rights Watch, many of the detainees Human Rights Watch interviewed made credible allegations regarding mistreatment, indicating that the use of brutal interrogation tactics remains a serious problem for Iraq's criminal justice system.

Article 136(b) of the Criminal Procedure Code contains a major legal obstacle to prosecuting government officials who have engaged in or authorized abuse of detainees.[49] This article requires that where the alleged offenses took place in the course of or arising from official duty, the "responsible minister" (for example, the Interior Minister in cases involving police) must permit referral of the accused official for trial.[50] The CPA suspended article 136 in its entirety in an implementing memorandum that sought to establish procedures for the application of Iraqi criminal procedure,[51] and under the constitution all CPA laws remain valid unless they are specifically abrogated by enacted legislation.[52] However, successive Iraqi governments since the official end of the occupation in mid 2004 have invoked article 136 to block prosecutions of alleged official corruption.[53] Judicial authorities expressed frustration with this specific provision during interviews with Human Rights Watch. In October 2007, the Iraqi Council of Representatives (majlis al-nuwwab, or parliament) amended the Criminal Procedure Code, deleting article 136(b), even though it was already constitutionally inoperable.[54] The Presidency Council, which is authorized to review legislation and then ratify or veto it, did not take action in this instance.[55] The legislation was returned to parliament, but no further action was taken.

Iraq's constitution affirms that "the right to a defense shall be sacred and guaranteed in all phases of investigation and trial."[56] This provision, absent from the inherited Criminal Procedure Code, was adopted from the CPA amendment of the code.[57] In practice, the right to a defense is compromised routinely in investigative and trial proceedings before the CCCI. The causes of this infringement are multiple, and include: difficulties in accessing detainees as a result of the security situation; the lack of a vibrant and established culture of legal defense; and insufficient judicial oversight. The practical effect is a highly curtailed right to counsel.[58] Even though counsel were present at almost all hearings Human Rights Watch attended before investigative judges, and at all trial proceedings before the CCCI, such hearings were very often the first and only encounter between counsel and the accused, and detainees in no fashion enjoyed "adequate time and facilities for the preparation of" an effective defense.[59]

The investigative and trial hearings that Human Rights Watch attended included cases that relied exclusively or almost exclusively on secret informants. Article 47(2) of the Criminal Procedure Code allows informants to request secrecy in cases that touch upon national security or in other serious criminal cases.[60] In such instances, as identified by the article, an informant may request the court that "his identity not be disclosed and that he not be considered a witness."[61] The law leaves it to the judge's discretion as to whether to proceed on the basis of such information, following further investigation and corroboration.[62] The law provides a further check on the use of secret informants by requiring that a single testimony cannot form sufficient basis for a ruling if other convincing evidence does not corroborate that testimony, or if it is not supported by a confession from the accused.[63] The court can even reject confessions as sufficient corroboration.[64]

Human Rights Watch observed cases that the CCCI dismissed because they were based exclusively on the testimony provided by secret informants. Such dismissals, while clearly appropriate, often came only after months and in some cases years of pretrial detention, due to the lack of proper judicial oversight of the use of secret informants. This problem in part reflects a lack of judicial capacity to deal with the overwhelming numbers of detainees. While the difficult security situation throughout Iraq may require security arrangements that ensure the safety of witnesses, it is also crucial to protect the right of the accused to challenge the evidence presented against them. The use of such informants at the CCCI, which Human Rights Watch observed, challenges basic notions of due process and fairness enshrined by the constitution and by international human rights law.[65]

Under article 4(1) of the anti-terrorism law, the death penalty applies to those who incite, plan, finance or assist terrorists to commit any of the crimes covered by the law.[66] In addition to amending and suspending various provisions of the Criminal Procedure Code, the CPA also suspended portions of the Penal Code, including the application of capital punishment.[67] Following the formal end of the occupation to an Iraqi government on June 28, 2004, the government of interim Prime Minister 'Ayad Allawi reinstated the death penalty for a wide range of offenses.[68]

International Human Rights Law

The government of Iraqi has legal obligations under international human rights treaty law and customary law. It is bound by the treaty obligations of previous Iraqi governments.[69] Most notable among Iraq's treaty obligations are those laid out by the International Covenant on Civil and Political Rights, which establishes the basic requirements for international standards for protections and the due process rights of detainees.[70]

In addition to Iraqi legal requirements governing initial arrest and detention procedures, the ICCPR requires that "[a]nyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release."[71] As noted above, there are numerous instances where detainees were brought initially before a judicial authority only after a significant period of months, and in some cases, years.

International human rights law also governs the treatment of detainees. The prohibition against torture and other mistreatment is a longstanding and fundamental norm of customary international law.[72] The ICCPR requires that detainees be treated with respect for their "inherent dignity,"[73] and mandates that detainees shall "not be subjected to torture or to cruel, inhuman or degrading treatment or punishment."[74] Similar prohibitions are found in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), to which Iraq acceded in August 2008,[75] and other treaties.[76]

The Convention against Torture specifically prohibits using as evidence in any proceeding "any statement which is established to have been made as a result of torture."[77] As noted above, in those hearings where torture was raised by detainees, CCCI judges were attentive and responsive; however, a number of detainees interviewed by Human Rights Watch provided credible allegations of abuse in initial detention, indicating the persistence of this problem. The lack of forensic evidence in many instances heightens the dependence and reliance on confessions, which places further stress on the nature of interrogations.

The ICCPR requires states to afford criminal defendants the right to "examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."[78] The Human Rights Committee, the body responsible for monitoring state compliance with the ICCPR, has noted that criminal defendants do not have "an unlimited right to obtain attendance of any witness requested by the accused or their counsel, but only a right to have witnesses admitted that are relevant for the defense, and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings."[79] The observed use of secret informants at the CCCI is inconsistent with international standards of due process and fairness, since defendants are held for significant periods of time prior to investigative hearings and without any procedural recourse to challenge the use of secret informants.

Under the ICCPR, the right to due process and a fair trial includes the right to counsel in the determination of any charge against a detainee.[80] This standard indicates that the right to counsel attaches to all stages of legal proceedings. Observed instances of investigative hearings conducted without the benefit of counsel, and instances verified by court records of interrogations following arrest or detention without the benefit of counsel, violate this requirement. The right to counsel also encompasses the ability to adequately consult with counsel.[81] The difficulties in accessing detainees, and the lack of continuity with respect to court-appointed counsel, impairs this right and limits the effectiveness of counsel.

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, undermines the right of victims of human rights violations to an effective remedy, as provided under the ICCPR.[82] The UN Human Rights Committee has criticized laws that are impediments to the establishment of legal responsibility.[83]

Child Detainees

Under the Iraqi Child Welfare Law, children between the ages of 9 and 18 are considered juveniles,[84] and can be arrested and detained for both criminal offenses and for status offenses such as being homeless or begging. The law states that those accused of criminal offenses must be held separately from adults.[85] Upon arrest, children must be transferred immediately to the custody of juvenile police forces.[86] The law also stipulates that the questioning of children be undertaken by a specialized juvenile investigative judge.[87] If an investigative judge deems the evidence sufficient for referral of a juvenile case, the judge is then directed to transfer the child for psychological examination.[88] The law sets no limit on how long a child can be held pending trial, age determination, or the court ordered psychological examination.

In instances where identity documents are not forthcoming or appear to contradict physical appearance, or where detainees do not know their precise birthdates, detainees may be held with adults before a judicial hearing that is likely the first opportunity to identify them as children. The juvenile court can refer a detainee for medical investigation and questioning to determine age.[89] However, the Child Welfare Law is vague on this point and does not provide clear standards, only requiring "medical examination to determine age based on scientific methods."[90]

The Convention on the Rights of the Child (CRC), to which Iraq acceded in 1994, requires that "[t]he arrest, detention or imprisonment of a child … be used only as a measure of last resort and for the shortest appropriate period of time."[91] Like the ICCPR it requires that children accused of criminal offenses be detained separately from adults.[92] However, international juvenile justice standards go beyond the baseline protections provided in Iraqi law in providing strict standards on prompt access to legal counsel and more expansive parental access rights. Amplifying concerns with respect to the questioning and interrogation of juveniles, the UN Committee on the Rights of the Child, which monitors state compliance with the Child Rights Convention, has emphasized that a child "being questioned must have access to a legal or other appropriate representative, and must be able to request that their parent(s) be present during questioning."[93] The Committee goes on to emphasize that a court or other judicial body , when "considering the voluntariness and reliability of an admission or confession by a child, must take into account the age of the child, the length of custody and interrogation, and the presence of legal or other counsel, parent(s), or independent representatives for the child."[94] While the Iraqi Child Welfare Law requires parents or other relatives be granted access to trial hearings, Iraqi law falls short of this standard as there is no such requirement under Iraqi law for access for counsel or parents during interrogation or investigative hearings; security circumstances have raised a further obstacle to ensuring family visits.

The findings of this report relate to adult detainees, although the limited number of proceedings involving children that Human Rights Watch witnessed reinforces concerns that they are held with adults in detention facilities. In one instance, a child in Iraqi custody had been detained prior to his investigative hearing in an army installation without separate facilities for children. In another, an MNF detainee who had turned 18 approximately three months before his court appearance had not been transferred out of the juvenile population.

Notes

31] Constitution of the Republic of Iraq (Dustur Jumhuriyyat al-'Iraq), arts. 19 (on rights of defendants and presumption of innocence); 17 (on searches); and 37(3) (on prohibition of torture).

[32] This prohibition carried over the amendment to the law initiated by the CPA and had rendered article 218 of the Iraqi Criminal Procedure Code inoperative. Article 218 had allowed for the admissibility of a coerced confession under certain circumstances.

[33] The rights and liberties outlined in the constitution largely track those in the Law of Administration for the State of Iraq for the Transitional Period, widely referred to as the "TAL" (the TAL served as an interim constitution, although the Iraqis were keen to avoid that locution since a popularly elected government did not draft the document). There are, however, several key differences with the Iraqi constitution. The TAL included a right to engage independent and competent counsel, which is broader and more explicit than the constitutional standard that "the right to defense shall be sacred and guaranteed in all phases of investigation and trial." Constitution, art. 19(4). The TAL also included the right to remain silent with no compulsion to testify, the right to be informed of these various rights upon arrest, and it made specific mention of a right to a speedy and public trial.

[34] Judges at the Karkh and Rusafa branches of the CCCI expressed this position to Human Rights Watch researchers during interviews carried out at the CCCI.

[35] Iraqi Criminal Procedure Code, art. 123.

[36] Ibid., art. 109(a) and (c).

[37] Ibid., art. 109(c). There are explicit limits on the possible length of any such extension, namely, such an extension cannot exceed one quarter of the maximum possible sentence for the alleged offense. The court can also order a defendant's release under such circumstances.

[38] Ibid., art. 102( 1)(a).

[39] Ibid., art. 73. Searches of individuals or residences are permissible without a warrant if a properly authorized officer witnesses a crime. Ibid., art. 79.

[40] The investigative judge may delegate the initial investigation to a judicial investigator who will conduct the initial investigation under the supervision of the investigative judge. Ibid., art.51(a).

[41] Ibid., arts. 43 and 52(b).

[42] Ibid., art. 58.

[43] Ibid., art. 130(b). Alternatively, an investigative judge can simply dismiss a case for lack of evidence.

[44] Ibid., art. 133.

[45] Ibid., art.187.

[46] Ibid., art. 127: "Mistreatment, threats, injury, enticement, promises, psychological influence or use of drugs or intoxicants are considered illegal methods."

[47] Iraqi Penal Code, arts. 25 and 26.

[48] Iraqi Penal Code, art. 333. Torture includes the use of force and threats of force.

[49] Iraqi Criminal Procedure Code, art. 136(b).

[50] Ibid.

[51] Coalition Provisional Authority Memorandum No. 3 (Revised), CPA/MEM/27 June 2004/03, June 27, 2004.

[52] Constitution, art. 130.

[53] Walter Pincus, "There is Corruption in Iraq," Washington Post, June 25, 2007 (noting the reinstatement of the provision by successive prime ministers, 'Ayad Allawi and Ibrahim al-Ja'afari, and its continued use under current prime minister Nouri al-Maliki).

[54] Law for the Revision of the Iraqi Criminal Procedure Code (Qanun Ta'deel Qanun Usul al-Muhakamat al-Jaza'iya Raqam (23) li Sanat 1971 al-Mu'addal), 2007, art. 1.

[55] Constitution, arts. 73 and 138.

[56] Ibid., art. 19(4).

[57] Coalition Provisional Authority Memorandum No. 3 (Revised), CPA/MEM/27 June 2004/03, June 27, 2004.

[58] In addition to the Iraqi constitution, the ICCPR requires that the accused have the right to counsel "in the determination of any criminal charge against" the accused. ICCPR, art. 14(3)(d).

[59] Ibid., art. 14(3)(b).

[60] Iraqi Criminal Procedure Code., art. 47(2).

[61] Ibid.

[62] Ibid.

[63] Ibid., art. 213(b).

[64] Ibid., art. 213(c). This provision originally stated that "the court can accept a confession only if it is satisfied with it and if there is no other evidence which proves it to be a lie." CPA Memorandum No. 3 revised this provision to read, "the court can accept a confession only if it is satisfied with it."

[65] Constitution, art. 19(5) and (6); ICCPR, art. 14(3)(e) ("In the determination of any criminal charge against him, everyone shall be entitled to… examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him").

[66] Anti-Terrorism Law, art. 4(1).

[67] Coalition Provisional Authority Order 7, CPA/ORD/10 June 2003/7, June 10, 2003.

[68] Order for the Reintroduction of the Death Penalty, No. 3, 2004. The death penalty is a longstanding penalty within the Iraqi criminal justice system-see Iraqi Penal Code, arts. 85(1) and 86. Human Rights Watch opposes the death penalty in all circumstances because of its cruelty and finality.

[69]SeeVienna Convention on the Law of Treaties, opened for signature May 23, 1969, 115 U.N.T.S. 331, http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf (accessed October 21, 2008), section 3 (international agreements are not terminated by a change in government),

[70] Iraq ratified the ICCPR on January 25, 1971.

[71] ICCPR., art. 9(3).

[72] See, for example, Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl: NP Engel, 2nd ed., 2005), pp. 157-58.

[73] ICCPR., art. 10(1).

[74] Ibid., art. 7.

[75] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987. Iraq's Presidency Council on August 17, 2008 approved a parliamentary decision to accede to the Convention against Torture. See http://www.iraqipresidency.net/news_detial.php?language=arabic&id=6067&type=news (accessed October 23, 2008).

[76] See, for example, the Convention on the Rights of the Child, art. 37(a).

[77] Convention against Torture, art. 15. The only exception is a statement against a person accused of torture as evidence that the statement was made.

[78] ICCPR, art. 14(3)(e).

[79] UN Human Rights Committee, General Comment No. 32, Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, U.N. Doc. CCPR/C/GC/32 (2007).

[80] ICCPR, art. 14(3)(b).

[81] The Basic Principles on the Role of Lawyers states, "All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials." Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 118 (1990), principle 8.

[82] ICCPR, art. 2(3) (a) (states party to the ICCPR undertake "[t]o ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity").

[83] UN Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 17 ("impediments to the establishment of legal responsibility should … be removed").

[84] Iraqi Child Welfare Law, art. 3(2); 24-26, 52, , 73(3), 76.

[85] Ibid., art. 10. Article 52(3) requires that where separate detention facilities are unavailable, special measures must be taken to prevent the intermingling of juvenile and adult detainees.

[86] Ibid., art. 48.

[87] Ibid., art. 49(1).

[88] Ibid., art. 51(1).

[89] Ibid., art. 4.

[90] Ibid.

[91] Convention on the Rights of the Child, adopted November 20, 1989, G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (entered into force September 2, 1990), art. 37(b).

[92] Convention on the Rights of the Child, acceded to by Iraq June 15, 1994, art. 37(c); and ICCPR, art. 10(b). The latter includes a limited exception in instances where such separation would not be in a juvenile's "best interest."

[93] Committee on the Rights of the Child, February 9, 2007, U.N. Doc. CRC/C/GC/10, para. 23h.

[94] Ibid.

Note
Picture: A new generation has grown in Mesopotamia, totally deprived of Justice, which makes them believe that Justice does not believe whatsoever; another monstrous and criminal side effect of the calamitous US – UK invasion and occupation of Saddam Hussein’s Iraq.