Global Justice Project: Iraq

Recent Shura Council Decisions

Trudi Hodges — Sun, 07 Mar 2010 17:03:39 +0000

GJPI is fortunate to publish for the first time online the comprehensive decisions of the Shura Council for 2006, 2007, and 2008.

Human Rights Council’s Universal Periodic Review of Iraq

andrew.allen@gjpi.org — Sat, 06 Mar 2010 14:05:15 +0000

In February 2010 the UN Human Rights Council in Geneva conducted its periodic review of Iraq. The Iraqi Human Rights Minister Wijdan Salim attended the periodic review working group session.

The primary recommendations were to:

Re-establish a moratorium on the death penalty with the view to abolishing it
Bring all de facto detention facilities under the authority of the government
Work to eliminate detention without charge and trial and ensure transparency for all sentences
Investigate all human rights abuses, in particular allegations of torture
Take steps to combat religion-based intolerance
Strengthen measures to eradicate violence against women and girls and raise social awareness on their rights
Take measures to promote and protect the rights of minorities
Take steps to end intimidation and abuses against journalists and human rights defenders
Repeal article 128 of the Criminal Code which identifies “the commission of an offence with honourable motives” as a mitigating excuse
Extend an invitation to the Special Rapporteur on Torture

The Human Rights Council is the successor to the United Nations Commission on Human Rights and is a subsidiary body of the United Nations General Assembly.

The USA Delegation issued a statement dated 16 February 2010 urging Iraq to continue the process of bringing all detention facilities and prisons under the authority of the Ministry of Justice and to improve conditions in Ministry-operated facilities and hold accountable any law enforcement official suspected of involvement in torture, abuse, or coerced confessions.

Treatment of Torture in the Penal Code No. 111 of 1969

andrew.allen@gjpi.org — Fri, 05 Mar 2010 15:17:32 +0000

We are fortunate that Professor Wasfi al-Sharaa of Basra University has permitted us to publish his research paper on the treatment of Torture in the Penal Code No. 111 of 1969.

Article 333 of the Penal Code states:
Any public official or agent who tortures or orders the torture of an accused, witness or informant in order to compel him to confess to the commission of an offence or to make a statement or provide information about such offence or to withhold information or to give a particular opinion in respect of it is punishable by imprisonment or by penal servitude. Torture shall include the use of force or menaces.

Article 218 of the Criminal Procedure Code states:
It is stipulated that a confession must not have been extracted by coercion.

Article 218 was amended by CPA Memorandum 3, Section 4(k), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003 in that the following words at the end of the Article were deleted “whether it be physical or moral, a promise or a threat. Nevertheless, if there is no causal link between the coercion and the confession or if the confession is corroborated by other evidence which convinces the court that it is true or which has led to uncovering a certain truth, then the court may accept it”.

Professor Wasfi exposes the lack of clarity in this area; proposes that the law be reformed to ensure that confession evidence shall be deemed null and void if it is derived from coercion; and argues that the punishment for those convicted of torture be increased from a minimum of 3 months to a minimum of 3 years.

Statements of Dying Victims

andrew.allen@gjpi.org — Fri, 05 Mar 2010 14:57:20 +0000

We are fortunate that Professor Wasfi al-Sharaa of Basra University has permitted us to publish his research paper on Statements of Dying Victims.

Article 216 of the Criminal Procedure Code No. 23 of 1971 states that:
The court may accept the statement of a dying victim as evidence relating to the offence and its perpetrator or any other related matter.

Professor Wasfi argues that in felony cases this type of evidence alone should not be considered sufficient to base a conviction.

Major Legislative Drafting Symposium Brings Together Key Iraqi Institutions

andrew.allen@gjpi.org — Tue, 02 Mar 2010 12:44:53 +0000

The State Shura Council, under the patronage of HE Minister of Justice Judge Dara Nooreddine and with the assistance of GJPI, organized a successful legislative drafting symposium that brought together for the first time prominent officials and staff from the key institutions involved in legislative drafting. Head of the State Shura Council Ghazi Al Janabi led an expert panel of consultants in presenting the .challenges to effective legislative drafting and practical recommendations for improvement. Participants included officials and staff from ministries, parliamentary committees, and the Presidency Council, judges from the State Shura Council and the Higher Judicial Council, as well as representatives from independent commissions and universities. Full details here.

Election Posters Vandalised in Baghdad - Criminal Sanctions Threatened

andrew.allen@gjpi.org — Sun, 28 Feb 2010 12:08:05 +0000

The streets of Iraq’s cities are festooned with election posters.

Yahoo! News suggests that not everyone is taking the election campaign overly seriously.

The Star Tribune reported on 20 February 2010 about vandalism to some election posters since the election campaign began.

Another excellent photo slideshow which only tangentially touches on the forthcoming election is at Newsweek’s Street Scenes of Baghdad by Andrea Bruce.

Proof against barred Iraq candidates to be released

andrew.allen@gjpi.org — Sun, 28 Feb 2010 11:48:14 +0000

Middle East Online on 28 February 2010 reported that Ali al-Lami had stated that evidence supporting the decision of the Justice and Accountability Committee’s (JAC) to declare a number of candidates as being subject to the deBa’thification law, which in turn led them to be barred by the Independent High Electoral Commission from Iraq’s March 7 national election, will be released in the coming days.

Meanwhile Ahmed Chalabi was questioned on Inside Iraq on Al-Jazeera English.
He stated that the Justice and Accountability Committee had not needed Parliamentary approval of its members because all that Parliament had done under Law 10 of 2008 law was to change of name of the Committee (it was previously known as the Supreme National Deba’thification Commission) and alter its powers and it was not necessary to approve the Commissioners who continued in office. He stated that there was a decision of the Court of Cassation which supported this viewpoint.

Article 2 of Law No. 10 of 2008 states:
(1) The name “Supreme National Commission of Accountability and Justice”, being a commission with financial and administrative independence, shall hereby replace the name “Supreme National Commission of Debaathification”, provided that it will have the same constitutional powers and juridical personality as the latter. It will report to the Council of Representatives and resume its activities in coordination with the judicial authority and executive services.
…
(4) The Commission shall consist of seven members at the grade of director general who have legal and political experience. The appointment of those members must observe the balance in the representation of all components of the Iraqi society. Those members shall be nominated by the Council of Ministers, approved by the Council of Representative in simple majority and ratified by the Presidency Council.
…

In answer to a question as to why the JAC had taken its decision in relation to the Parliamentary candidates so close to the election date, he said that this was because the list of potential candidates for election had been drawn up and given to it only recently.
He said that IHEC had not been obliged to follow the JAC’s position but that it had chosen to do so.

Discrimination Against Women in Iraqi Society and the Penal Code No. 111 of 1969

andrew.allen@gjpi.org — Mon, 22 Feb 2010 11:34:57 +0000

Dr Bushra Al-Aubaidi of Baghdad University College of Law has kindly permitted us to publish her research (in Arabic) on gender discrimination in Iraqi Society and in the Penal Code No. 111 of 1969.

Combating Prostitution Law No. 8 of 1988

andrew.allen@gjpi.org — Sat, 20 Feb 2010 12:39:25 +0000

We have translated the Combating Prostitution Law No. 8 of 1988 (arabic). It provides for stiff penalties against those organising male or female prostitutes and a regime by which the prostitutes themselves can be rehabilitated.

Subsequent Revolutionary Command Council Resolutions which are still in force substantially increased the penalties for those convicted of organising or engaging in prostitution. In particular RCC Resolution 155 of 1993, RCC Resolution 118 of 1994 and RCC Resolution 234 of 2001 increased the penalty to death. This was reduced to life imprisonment by operating of CPA Order 7 Section 3(1) and prostitution was not one of the limited number of offences for which the death penalty was re-instated by means of Decree No. 3 of 2004 (on this point see further the post on ‘Capital Punishment‘).

Qualification of Parliamentary Candidates

andrew.allen@gjpi.org — Sat, 20 Feb 2010 11:01:10 +0000

A candidate for election to the Council of Representatives must be an Iraqi (Article 49(2) of the Constitution) who is not permitted to combine the office with any work or other official position (Article 49(6)).

Article 6 of the Election Law No. 16 of 2005 states that:
A candidate must be a voter [i.e. registered to vote], in addition to the following:
1- Must be no less than thirty years old of age.
2- Must not be covered by the DeBa’thification law.
3- He must not have enriched himself illegally at the expense of the state or public funds.
4- He must not have been convicted of a crime that violates honor and must be known for his good conduct.
5- He must have at least a high school certificate or its equivalent.
6- He must not be a member of the armed forces upon nomination.
Article 7 states:
Nominees shall be subject to the approval of the Independent Electoral Commission of Iraq.

The Electoral Commission Regulations do not add anything to these stipulations but Regulation 16 set out IHEC’s powers in relation to candidates and the appeal process from any IHEC decision.

The Accountability and Justice Law No. 10 of 2008 does not specifically refer to candidates for election but provides a process by which senior Ba’th party members are to be identified and barred from public office. It is possible to appeal under Article 2(9) & (10) of that law to a Cassation Board of Accountability and Justice.

There is a separate appeal route to an Electoral Judicial Panel (also drawn from members of the Court of Cassation) under Article 8(3) and (4) of the Independent High Electoral Commission Law No. 11 of 2007 from a decision of the Independent High Electoral Commission to bar a candidate from standing for election.

Article 20 of the Constitution states:
Iraqi citizens, men and women, shall have the right to participate in public affairs and to enjoy political rights including the right to vote, elect, and run for office.

However Article 9(C) states:
The Iraqi armed forces and their personnel, including military personnel working in the Ministry of Defense or any subordinate departments or organizations, may not stand for election to political office, campaign for candidates, or participate in other activities prohibited by Ministry of Defense regulations. This ban includes the activities of the personnel mentioned above acting in their personal or professional capacities, but shall not infringe upon the right of these personnel to cast their vote in the elections.

and Article 7(1) of the Constitution states:
Any entity or program that adopts, incites, facilitates, glorifies, promotes, or justifies racism or terrorism or accusations of being an infidel (takfir) or ethnic cleansing, especially the Saddamist Ba’ath in Iraq and its symbols, under any name whatsoever, shall be prohibited. Such entities may not be part of the political pluralism in Iraq. This shall be regulated by law.

And Article 46 of the Constitution states:
Restricting or limiting the practice of any of the rights or liberties stipulated in this Constitution is prohibited, except by a law or on the basis of a law, and insofar as that limitation or restriction does not violate the essence of the right or freedom.

Article 18(4) of the constitution states:
An Iraqi may have multiple citizenships. Everyone who assumes a senior, security or sovereign position must abandon any other acquired citizenship. This shall be regulated by law.
Although at first sight this might appear to prevent a legislator from carrying dual nationality, it has not been interpreted in this way and many Members of the Council of Representatives have dual nationality.