Post-Saddam Iraq: the Prevalence of Injustice and Inequity

In a previous article 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), I republished the Introduction, the Table of Contents, the Summary, and the Recommendations that are all parts of a recently released Report 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 two more chapters of the Report, namely the Methodology and the Background. In forthcoming articles, I will complete the republication of the enlightening Report.

III. Methodology
http://www.hrw.org/en/node/76891/section/4

Human Rights Watch attended investigative hearings and trial proceedings at the Central Criminal Court of Iraq in Baghdad on six separate occasions in May 2008. These proceedings occurred in two locales: the court's al-Karkh branch, in western Baghdad, which hears the cases of detainees held by the US-led Multinational Force-Iraq, as well as those of detainees referred for prosecution by Iraqi authorities; and the court's Rusafa branch, in eastern Baghdad, which deals only with cases of detainees held and referred by Iraqi authorities.

Investigative hearings are not normally open to the public. Those present included an investigative judge, prosecutor, and judicial investigator. In the cases of MNF detainees, a judge advocate general (JAG) or other US military personnel administering the referral of a case to the CCCI were also present, typically accompanied by an interpreter and MNF personnel appearing as witnesses in the investigative hearing or to escort the detainees.

Investigative judges at both branches of the court gave Human Rights Watch permission to examine documents presented in the course of the hearings, including confessions, summaries of witness statements, photographs, descriptions of physical evidence, and, in the case of MNF referrals, Arabic translations of MNF case files. Officials of the court also gave Human Rights Watch permission to speak to detainees held by Iraqi authorities and present for investigative hearings and trials.

Court-appointed counsel and privately retained lawyers spoke with Human Rights Watch before and after investigative hearings and trials. Judges at both branches of the court, including the chief investigative judges, granted Human Rights Watch multiple interviews in response to queries about particular cases and procedural questions that arose during hearings. MNF Detainee Operations, the US military detainee affairs body, met with Human Rights Watch and also provided partial written responses to queries about aspects of the process of referring MNF detainees to the court.

Human Rights Watch attended the investigative hearings of 71 defendants, 15 of whom were in MNF custody, as well as five trials in Iraqi-referred cases involving a total of 17 defendants. All of the defendants in the trials and investigative hearings were male; three were children. The investigative hearings were divided between the two venues; the trials Human Rights Watch attended were held at the Rusafa branch of the court. Human Rights Watch spoke with about three dozen detainees in Iraqi custody who were brought to one of the court's branches for their investigative hearings. Those conversations typically took place in common areas of the Karkh facility or holding cells at the Rusafa branch of the court.

Iraqi security forces escorting prisoners to hearings were present when Human Rights Watch spoke with detainees at al-Karkh, although detainees were in most cases seated at enough distance from their guards and one another to allow for private conversations. Detainees at the Rusafa branch of the court spoke with Human Rights Watch in a common holding cell or outside the rooms in which their investigative hearings were held, escorted by foreign security contractors. These security contractors did not know Arabic, thus allowing for confidential discussions.

The US embassy in Baghdad facilitated transport to the Rusafa branch of the CCCI on two occasions. US personnel effectively denied Human Rights Watch access to MNF detainees referred to the court in al-Karkh: on three occasions when Human Rights Watch attended proceedings at the Karkh branch of the court, US marshals controlling one entrance to the court complex informed Human Rights Watch that they would expel us from the building unless we agreed not to speak with MNF detainees; on two occasions Human Rights Watch was obligated to accept a US military escort to ensure we had no contact with any detainee. No consistent explanation was offered for these restrictions on contact with detainees.

IV. Background
http://www.hrw.org/en/node/76891/section/5

In July 2003 the Coalition Provisional Authority (CPA) established the Central Criminal Court of Iraq to hear cases involving serious criminal offenses, including terrorism, organized crime, governmental corruption, acts of sabotage, and sectarian or ethnic violence.[2]

The CPA based its authority to enact such sweeping legal measures and reforms on United Nations Security Council Resolution 1483, which recognized the United States and the United Kingdom as temporary occupying powers in Iraq. The resolution emphasized the binding obligations of the occupying powers under international law and affirmed explicitly the applicability of international humanitarian law.[3] The CPA's mandate from the United States and the United Kingdom outlined its role as a temporary governing authority in Iraq.[4] Based on its interpretation of the mandate outlined in Resolution 1483, the CPA issued Regulation 1, which laid out the CPA's understanding of its own authority.[5] According to Regulation 1, CPA Regulations and Orders took "precedence over all laws and publications to the extent such other laws and publications are inconsistent."[6]

The CCCI as framed by Order 13 of April 2004 comprises an investigative court and a felony court.[7] Both chambers function under legislation drafted and revised during the period of Baath party rule: the Iraqi Criminal Procedure Code of 1971, as amended, and the Iraqi Criminal Code of 1969, as amended. Additionally, juvenile detainees are subject to the Iraqi Child Welfare Law of 1983.

While the jurisdiction of the CCCI is concurrent with local criminal courts, the CCCI has nationwide discretionary investigative and trial jurisdiction "over any and all criminal violations."[8] The order establishing the court indicated that the CCCI should concentrate its resources on the most serious criminal offenses.[9] An assertion of jurisdiction by CCCI at the investigative or trial stage automatically ends any local court jurisdiction. The CCCI may also hear cases in instances where a criminal defendant may not be able to obtain a fair trial in a local court. Any other Iraqi court may also refer a case to the CCCI.[10]

The CCCI thus hears the cases of detainees referred by several Iraqi law enforcement agencies, as well as the Multinational Force. The court has two separate branches in Baghdad. The Karkh branch is located adjacent to the International Zone ("Green Zone"), which currently houses the US embassy, military facilities, and many Iraqi governmental institutions. This branch of the court hears cases of detainees held by Iraq's Ministries of Justice and Interior,[11] and also a select number of cases of detainees held by the MNF and referred to the CCCI for criminal prosecution under Iraqi law. The Rusafa branch of the court is located within the heavily fortified "Rule of Law" judicial complex in eastern Baghdad. The Rusafa branch only hears cases of detainees held by Iraqi authorities. Central Criminal Court officials in May 2008 described plans to establish panels in Mosul, Tikrit and Kirkuk, referred to as Major Crimes Courts.[12] These panels would consist of both local judges and judges traveling from Baghdad.

Iraq's broad counter-terrorism legislation (Qanun Mukafahat al-Irhab) has been the main legal basis for arrests and prosecutions stemming from the Baghdad Security Plan.[13]The security plan, launched in conjunction with the US troop surge of 2007, rapidly expanded detainee populations in Iraqi and MNF custody: it saw the population of detainees in Iraqi government custody (excluding the Kurdistan Regional Government) swell from approximately 17,000 at the end of March 2007 to approximately 23,000 by the end of the year.[14] Additionally, as of October 7, 2008, there were approximately 80 children in MNF custody, down from close to 700 children at the end of December 2007[15].

Referrals by the MNF

MNF decisions on referral to the CCCI are made by the MNF's Magistrate Cell, an administrative body that reviews the cases of MNF detainees following their transfer to a Theater Internment Facility, namely the two primary MNF detention facilities in Iraq: Camp Bucca near Basra in southern Iraq and Camp Cropper near Baghdad's airport.[16] Magistrate Cells, composed of judge advocates, perform case reviews and can release the detainee, forward the case for continued review and detention under MNF auspices, or refer the case to a CCCI liaison office, which concludes a final review prior to referring a case for prosecution before the CCCI.[17] While Human Rights Watch made repeated requests to MNF officials for clarification of MNF criteria in deciding which cases to refer to the CCCI, it did not receive a clear and comprehensive statement of policy. One MNF legal advisor indicated that such decisions depended primarily on whether a case could be brought based upon unclassified evidence, and that only approximately 10 percent of all MNF detainees faced possible criminal prosecution in the CCCI.[18]

As of early October 2008, detainees held by the MNF numbered about 17,700, down from 21,000 in late July.[19] Detainees in the custody of the MNF are held under the broad authority of detention the United States has claimed for the MNF under United Nations Security Council Resolutions 1546, 1637, and 1723, particularly citing language referring to "internment where this is necessary for imperative reasons of security."[20] The United States has maintained that this language, which mimics language in the Fourth Geneva Convention, is the basis for the MNF's applying the Fourth Geneva Convention more generally to the treatment of detainees in Iraq. However, the Fourth Geneva Convention has not been applicable to Iraq since the declared end of the belligerent occupation.

The detention of individuals pursuant to Resolution 1546 and successive resolutions must be read in light of the currently applicable international law in Iraq. Since the end of the inter-state armed conflict between Iraq and the states of the MNF in 2003, and the declared end of the belligerent occupation in June 2004, the continuing hostilities in Iraq are considered to be a non-international armed conflict. During such a conflict, the applicable rules for the treatment of persons in custody are found in article 3 common to the Geneva Conventions and international human rights law.[21]The International Covenant on Civil and Political Rights (ICCPR), which Iraq ratified in 1971, requires that all persons arrested be promptly brought before a judge, informed of criminal charges, have access to legal counsel and family members, and receive a trial meeting international fair trial standards.[22]

The MNF has acknowledged 367 cases in which it maintained custody following a CCCI ruling that dismissed the charges or brought a verdict of not guilty, as of December 11, 2007.[23] The United States bases this overarching authority on the broad mandate it contends it was granted under the successive United Nations Security Council resolutions.

February 2008 Amnesty and the CCCI Caseload

In February 2008, Iraq's parliament passed a General Amnesty Law intended in part to ease crowding in detention facilities and backlog in the criminal justice system. The law excluded from amnesty those accused of the most serious offenses, including war crimes, crimes against humanity, other death-penalty eligible offenses, and terrorism resulting in killing or permanent disability. Those who could benefit from the amnesty included persons held for more than six months without an appearance before an investigative judge, and anyone held for a year without referral to a court.[24]

Failures of administration have prevented the amnesty from alleviating the backlog that the CCCI faces. Approximately 96,000 cases had been approved for amnesty by July 2008 by the judicial committee that reviews applications, according to the Higher Judicial Council. As of September 2008, an estimated 5,000 to 8,000 detainees in Iraqi facilities had been released under the terms of the amnesty, most of them from facilities run by the Ministry of Justice.[25] A ministry official in October estimated that approximately 3,200 detainees had been released from Ministry of Justice facilities in Baghdad, Diyala, Basra, Hilla, and elsewhere[26]. The limited impact on the overall detainee population stems in part from the fact that the vast majority of applicants approved for amnesty are not in custody. As of May, prisoners and detainees accounted for about 25 percent of 68,796 approved applications; by September, that percentage stood at about 19 percent of 120,596 grants of amnesty.[27] (Those at large or on bail make up the other categories of applicants. Grants of amnesty relate to charges, rather than individuals, who may face multiple charges.)

One obstacle to implementation has been coordinating releases with detaining authorities and verifying that detainees are not also being held for offenses not included in the amnesty. A diplomat monitoring implementation of the amnesty told Human Rights Watch of persistent reports that officials of various detention facilities had demanded bribes from families before they would release detainees.[28]

The effective exclusion of MNF detainees from the amnesty constitutes a further constraint. The law as approved defines potential beneficiaries as "Iraqi prisoners and those in Iraq" but retains an ambiguous formulation on the subject of MNF detainees.[29] The MNF has consistently maintained that it is not bound by Iraqi legal decisions mandating release of detainees.[30]

Notes

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

[3] S.C. Res. 1483, U.N. SCOR, 58th Sess., 4761st mtg., U.N. Doc. S/RES/1483, May 22, 2003.

[4] Letter from Jeremy Greenstock, Permanent Representative of the UK, & John D. Negroponte, Permanent Representative of the US, to the president of the UN Security Council, May 8, 2003.

[5] CPA Regulation 1, CPA/REG/16 May 2003/01, May 16, 2003.

[6] Ibid. section 3(1).

[7] CPA Order 13 (Revised) (Amended), CPA/ORD/22 April 2004/13, April 22, 2004.

[8]CPA Order 13, section 18(1).

[9] The offenses outlined by CPA Order 13 are terrorism; organized crime; governmental corruption; acts intended to destabilize democratic institutions or processes; violence based on race, nationality, ethnicity or religion; and instances in which a criminal defendant may not be able to obtain a fair trial in a local court. Ibid., section 18(2).

[10] Ibid., section 18(4).

[11] Detainees who have been held by the Ministry of Defense also appear at the CCCI, although their referrals occur through other agencies.

[12] Human Rights Watch interview with investigative judge (name withheld), CCCI-Rusafa, May, 11, 2008. In an interview with Human Right Watch on October 7, 2008, a Higher Judicial Council official said the panels were in place in all of Iraq's governorates apart from the three comprising the territory of the Kurdistan Regional Government.

[13] Anti-Terrorism Law (Qanun Mukafahat al-Irhab), no. 13 (2005). The anti-terrorism law broadly defines terrorism as "every criminal act committed by an individual or an organized group that targeted an individual or group of individuals or groups or official or unofficial institutions and caused damage to public or private properties, with the aim to disturb the peace, stability, and national unity or to bring about horror and fear among people and create chaos to achieve terrorist goals." Ibid., art. 1.

[14] UN Assistance Mission for Iraq (UNAMI) Human Rights Report, 1 April-30 June, 2007, 1 July-31 December, 2007.

[15] Ibid.; Email communication with TF-134 Public Affairs Officer Maj. Neal Fisher, October 7, 2008.

[16] United Nations Assistance Mission for Iraq (UNAMI), Human Rights Report, 1 July-31 December 2007 ([March] 2008), para. 67.

[17] Major W. James Annexstad, "The detention and Prosecution of Insurgents and Other Non-Traditional Combatants – A Look at the Task Force 134 Process and the Future of Detainee Prosecutions," Army Lawyer, July 2007.

[18] Human Rights Watch interview with Capt. Brian Bill, legal adviser TF-134, Baghdad, May 12, 2008.

[19] Human Rights Watch email communication with TF-134 Public Affairs Officers LTC Kenneth Plowman, July 25, and Maj. Neal Fisher, October 7, 2008.

[20] Letters of June 5, 2004, between the Prime Minister of the Interim Government of Iraq and the US Secretary of State annexed to Security Council Resolution 1546.

[21] The ICRC issued a statement on August 5, 2004 that stated in part, "After the hand-over of power from the Coalition Provisional Authority to the interim Iraqi Government on 28 June 2004, following the United Nations Security Council resolution 1546 stating the end of the foreign occupation, the legal situation has changed. As stated in the resolution, the presence and the military operations of the Multi-National Forces in Iraq are based on the consent of the Interim Government of Iraq. The ICRC therefore no longer considers the situation in Iraq to be that of an international armed conflict between the US-led coalition and the state of Iraq and covered by the Geneva Conventions of 1949 in their entirety. The current hostilities in Iraq between armed fighters on one hand opposing the Multi-National Force (MNF-I) and/or the newly established authorities on the other, amount to a non-international armed conflict. This means that all parties including MNF-I are bound by Article 3 common to the four Geneva Conventions, and by customary rules applicable to non-international armed conflicts." ICRC, "Iraq post 28 June 2004: protecting persons deprived of freedom remains a priority," August 5, 2004, http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList265/89060107D77D7299C1256EE7005200E8 (accessed October 23, 2008). For an analysis of the occupation's legal end, see Sir Adam Roberts, International Humanitarian Law Research Initiative, "The End of Occupation in Iraq," June 28, 2004, http://www.ihlresearch.org/iraq/feature.php?a=51 (accessed October 23, 2008).

[22]International Covenant on Civil and Political Rights, (ICCPR), adopted December 16, 1966, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by Iraq January 25, 1971, arts. 9 and 14.

[23] UNAMI Human Rights Report, 1 July-31 December 2007, para. 71, n. 95.

[24] General Amnesty Law (Qanun al-'Afw al-'Aam), http://www.parliament.iq/Iraqi_Council_of_Representatives.php?name=articles_ajsdyawqwqdjasdba46s7a98das6dasda7das4da6sd8asdsawewqeqw465e4qweq4wq6e4qw8eqwe4qw6eqwe4sadkj&file=showdetails&sid=1431 (accessed October 24, 2008).

[25] Human Rights Watch correspondence with Western diplomat monitoring amnesty implementation, September 9, 2008.

[26] Human Rights Telephone interview with Ministry of Justice official (name withheld), October 20, 2008.

[27] Higher Judicial council bulletins on amnesty rulings as of May 13 and September 10, 2008.

[28] Human Rights Watch correspondence with Western diplomat monitoring amnesty implementation (name withheld), June 25, 2008.

[29] "The Iraqi Government shall undertake the necessary measures to transfer those detained in the MNF jails to Iraqi jails in order to implement the provisions of this law with respect to them." General Amnesty Law, art. 6.

[30] See, for example, "Coalition forces set to release former detainee (Baghdad),"MNF press release, April 14, 2008, http://www.mnf-iraq.com/index.php?option=com_content&task=view&id=18464&Itemid=128 (accessed October 23, 2008), on the decision to release Bilal Hussein, an Associated Press photographer held by US forces for two years over alleged links to insurgents. Hussein's case was referred to the CCCI in December 2007 and he received an amnesty determination in April 2008. The statement cited the head of MNF Detainee Operations as saying "the MNF-I determination in Hussein's case was based on the specific information in his file, as well as improvements in the security situation that have lessened the threat posed by a release in this case," adding, "The Amnesty Law, by its own terms, applies only to criminal cases before Iraqi courts, and does not apply to those persons detained in Coalition custody as security detainees…".

Note
Picture: Justice reached new levels of abnormality and iniquity with the Americans in Iraq (http://twr.mobrien.com/twr/appendix_to_twr19v18.htm)