To :

Global Alliance of National Human Rights Institutions

UNOG

CH-1211 Geneva 10

Switzerland

29 May 2024

Subject: Information regarding the Iraqi High Commission for Human Rights

Dear members of the Sub-Committee on Accreditation (SCA),

In June 2021, the Iraqi High Commission for Human Rights (IHCHR) was accredited with A status to mark its full compliance with the Paris Principles.[1] In June 2024, the Sub-Committee on Accreditation (SCA) of the Global Alliance of National Human Rights Institutions (GANHRI) will hold a special review during the SCA’s Second Session of 2024.

Ahead of this examination, MENA Rights Group would like to provide information that may serve to assist in the evaluation of the compliance of the IHCHR with the Paris Principles in both legal and practical terms.

As part of this process, MENA Rights Group consulted human rights experts and practitioners to obtain their views on a number of issues relating to the IHCHR. The present submission draws upon their contributions.

1. Summary of concerns raised in 2021

In February 2021, MENA Rights Group published an evaluation report of the Iraqi High Commission for Human Rights (IHCHR), the country’s national human rights institution (NHRI) that was sent to the SCA.[2] 

In this report, we examined the institution’s compliance with the Paris Principles, and whether it was able to fulfil its mandate to protect and promote fundamental human rights in Iraq. As part of our research, we consulted various stakeholders such as Iraqi civil society organisations, as well as members of the IHCHR’s board of commissioners.

Our report found that the IHCHR did not play the role expected of an independent, impartial,

and effective NHRI despite positive engagements, notably in the context of the October 2019 popular protests.

Among the issues found are the undue influence of Iraq’s major political parties over the Commission, which seriously tarnishes its credibility with victims of human rights violations and human rights NGOs.

In spite of numerous shortcomings, the SCA recommended that the IHCHR be re-accredited with A status in June 2021.[3] 

Nevertheless, the SCA report highlighted some serious concerns, in particular with regard to, the selection and appointment processes.

The SCA highlighted with concern that the law did not provide for a specified number of civil society or non-government representatives within the Committee of Experts, leaving open the possibility for the Committee of Experts to be comprised predominantly of government representatives.

The SCA also found that the “process currently in place is not explicitly enshrined in the Law and is not sufficiently broad and transparent. In particular, it does not promote broad consultation and/or participation in the application, screening, selection, and appointment process for all members.”[4]

This report concludes that the problems identified in 2021 are still present and have worsened since then.

2. Significant development since 2021

2.1 Concerns raised by UN treaty bodies

In its 2022 Concluding observations on the sixth periodic report of Iraq, the Human Rights Committee found that:

the delay in the appointment of new members of the High Commission for Human Rights was pending the outcome of the processes under way to elect a new President of Iraq and a new President of the Council of Ministers. The Committee expresses concern that the procedure for appointment of the High Commission for Human Rights does not guarantee its independence from the influence of political parties. The Committee also notes that Law No. 53/2008 establishing the High Commission for Human Rights stipulates that women must make up at least one third of the members of the Commission. It regrets, however, that the Law stipulates that only one full member and one reserve member must be a representative of a minority and does not provide for representation of members of civil society.[5]

Similarly, in its 2022 Concluding observations on the second periodic report of Iraq, the Committee against Torture stated the following regarding the IHCHR:

The Committee is concerned about reports indicating the delay in the selection of new members of the Iraqi High Commission for Human Rights and a reported lack of independence from political parties during the nomination process. It regrets that the State party has not provided information on the follow-up investigations, prosecutions and the outcome of cases referred by the Commission to prosecution services concerning torture allegations. Also of concern is the lack of protection and immunity of the Commission members from reprisals or other intimidation measures in the context of carrying out their official duties, as observed during the recent prosecution, which has by now been discontinued, as clarified by the delegation during the dialogue, of former Commissioner Ali Akram Al-Bayati[6] for the comments that he made while still in office regarding torture in Iraq.[7]

Regarding IHCHR’s visits to places where persons are deprived of their liberty, the Committee found that:

While taking note of the information provided on the detention monitoring activities undertaken by the Iraqi High Commission for Human Rights, the Committee notes with concern that, pursuant to article 45 (4) of the Prisoners and Detainees Reforms Law, visits to places of deprivation of liberty are subject to prior agreement on the dates with the relevant authorities, including visits to detention centres where suspects of terrorism are being held, in contradiction with the Commission’s mandate to make unannounced monitoring visits without any prior approval to all places of deprivation of liberty. The Committee notes that the Prisoners and Detainees Reforms Law does not provide for civil society organizations to conduct monitoring visits to places of deprivation of liberty. In that connection, the Committee appreciates the State party’s information on a draft law to amend that piece of legislation and expects to receive further information in due course.[8]

In its report on its visit to Iraq under article 33 of the Convention International Convention for the Protection of All Persons from Enforced Disappearance, the Committee on Enforced Disappearances noted the following:

In accordance with the High Commission for Human Rights Act, the High Commission for Human Rights can receive complaints of disappearances and conduct its own preliminary investigations. Such investigations start with the sending of official letters to the relevant authorities, requesting them to check the registers of persons deprived of their liberty. Once it has initiated a lawsuit, the High Commission for Human Rights can refer it to the Public Prosecutor’s Office for it to take the necessary legal action, which includes referring the complaint to the courts. If the Public Prosecutor determines that legal action is not required, no remedies are available. Despite repeated requests for information in this regard during the visit, the delegation did not receive any official data about the proportion of cases referred to courts or about the outcome of such referrals.[9]

More recently in 2024, the Committee on Economic, Social and Cultural Rights found in its Concluding observations on the fifth periodic report of Iraq that:

The Committee remains concerned about the limited financial resources allocated to the Iraqi High Commission for Human Rights and the absence of a board of commissioners, which prevents it from fully discharging its mandate, including receiving and processing complaints from victims of alleged human rights violations.[10] 

2.2 Selection and appointment

In the course of the summer 2021, the IHCHR experienced hurdles with regard to the nomination of new commissioners. Prior to the legislative elections, the tenures of the IHCHR’s commissioners ended in June 2021, causing administrative issues within the IHCHR.

On 9 November 2021, the President of Iraq issued a communication reinstating the IHCHR commissioners whose term had expired. However, this decision caused some controversy. In fact, under article 7 of the Law of the IHCHR, the 15 commissioners should be selected by a Committee of Experts appointed by the Council of Representatives.

The appointment of commissioners for the 2021-2025 term suffered extensive delays. On 27 February 2023, the Iraqi Council of Representatives formed a Committee of Expert as prescribed by article 7 of the enabling Law No. 53 of 2008.[11] Yet, the appointment process has yet to be completed and at the time of writing, the IHCHR still does not have a board of commissioners.

A call for applications has nevertheless been issued on 30 March 2023.[12] Candidates had until 15 April 2023 to submit their application. The call for applications has been circulated on the Council of Representatives website.[13] Although one of the requirements to apply is “not to be affiliated with any political organisations”, the process is entirely overseen by a Committee of experts, which is largely under the control of political parties, as detailed infra in subsection 2.5.

We have been informed in May 2024 that the Committee of Expert has yet to shortlist candidates. Candidates have not been interviewed either. The Committee of Experts will then need to shortlist 60 candidates with a view to submitting them to the Council of Representatives for approval.

The above information was confirmed by the Iraqi government during the examination of the fifth periodic report of Iraq by the Committee on Economic, Social and Cultural Rights in February 2024.

One of the Iraqi representatives explained that “owing to the dismissal of the Prime Minister, no new commissioners had been appointed after the previous commissioners’ terms of office had expired in 2021, but parliament was currently receiving nominations, and elections were expected to be held soon. The Minister of Justice was leading the Commission until the new commissioners took office.”[14]

We believe that the leadership of a NHRI – in this case the board of commissioners – is particularly important to protect its independence and ensure the relevance of its work. The absence of commissioners can quickly and irremediably compromise its performance.

As part of our consultation, we were informed that “the absence of the commissioners means that the commission’s powers are limited and weak coordination with regard to the activities of the IHCHR. The IHCHR’s employees work without any clear directives. The absence of commissioners also affects the IHCHR’s ability to address human rights violations, respond to complaints, and follow up on cases and review draft laws that may impact human rights violations.”

The IHCHR is staffed by more than 650 employees. In the U.S. Department of State’s 2022 Country Reports on Human Rights Practices in Iraq, it was reported that “according to an IHCHR official, staff are receiving their salaries and the Commission continues to operate, monitoring human rights but less vigorously than before.”[15] 

According to Human Rights Watch, they are basically inactive, although the IHCHR’s social media pages indicate that they hold and attend many seminars and conferences. Without having appointed commissioners, the IHCHR is incapable of fulfilling its mandate as prescribed under articles 4, 5 and 6 of the enabling Law No. 53 of 2008, such as investigating cases, filing or supporting lawsuits, and monitoring compliance of various governmental agencies with Iraqi and international human rights law.

2.3 Recurring concerns with the Committee of Experts

Article 7 of the enabling law states that “the Parliament Council shall form a Committee of Experts whose number does not exceed fifteen members, including representatives of the Parliament Council, the Council of Ministers, the Supreme Judicial Council, civil society organizations, and the United Nations Office for Human Rights in Iraq (UNAMI), which selects the candidates through a national declaration.”

Concerns about the Expert Committee are not new. In 2017, the Iraqi Civil Society Solidarity Initiative (ICSSI) claimed that this committee is not what it purports to be, i.e., a group of experts who are neutral and committed to supporting and protecting human rights across party and religious lines.[16] The ICSSI also found that the Committee included ten representatives from the political blocs represented in parliament, who are not familiar with human rights issues.[17]

According to the people we consulted in May 2024, these concerns are still relevant today. We have been informed that although it is “assumed that this committee includes a group of experts and specialists in human rights, the composition of the committee is designed to ensure the presence of commissioners affiliated with the main political forces in Parliament and government.”

MENA Rights Group has obtained the list of members of the Committee of Experts formed on 27 February 2023. The Expert Committee has 15 members, only one of whom represents civil society. His name is Hussein Rahman al-Fadhili. He and his organisation are unknown among members of Iraqi civil society.

The other 14 are members of parliament and represent the main political parties that make up the Council of Representatives. For instance, Hussein Ali Muhammad al-Yasari belongs to the al-Fateh Alliance.[18] The al-Fateh Alliance is the electoral wing of the Popular Mobilisation Units (PMU). The PMU have been accused of committing serious human rights violations in the context of the fight against Islamic State of Iraq and the Levant (ISIL)[19] and during the 2019–2021 Iraqi protests.[20] 

We would like to recall that in June 2021, the SCA found the following in relation to the Committee of Experts:

While the SCA acknowledges that the Committee of Experts has been composed of various stakeholders including civil society representatives, it remains concerned that the composition as described in the IHCHR Amended Law does not provide for a specified number of civil society or non-government representatives. This leaves open the possibility for the Committee of Experts to be comprised predominantly of government representatives.

We regret that there has been no reform of the system for appointing commissioners since the June 2021 session. The aforementioned shortcomings have not been addressed.

2.4 Reprisals and waiver of immunity

On 3 February 2022, one of the IHCHR’s commissioners, Ali Akram Al Bayati, received a document sent by the Al Resafa Investigative Court in Baghdad informing him he was being investigated due to a case filed by Iraq's Council of Ministers Secretariat (COMSEC) under article 434 of the Penal Code, relating to “defamation”.[21]

On 6 February 2022, Dr al-Bayati appeared in court. During the hearing, he informed the court that he benefited from legal immunity as a commissioner for the IHCHR. He was informed that he was being investigated for statements he made on Al Ahad TV channel on 6 December 2020, that is, during his official mandate as a Commissioner, upon a complaint by the Anti-Corruption Committee, formed in 2020 by the Prime Minister Mustafa al-Kadhimi to investigate cases of corruption. The statements concerned IHCHR’s work documenting claims of torture by families of those detained under orders of the Anti-Corruption Committee. Dr al-Bayati had also stated that the Committee had denied the IHCHR’s request to visit detention centers. The investigation file included no other evidence of alleged defamation. He was released on bail the same day.

On 18 March 2022, the GANHRI and the Asia Pacific Forum (APF) of National Human Rights Institutions issued a joint statement declaring that this development “appears to be an attack on the IHCHR by seeking to silence one of its commissioners, who has taken a strong public position investigating into, documenting and speaking out against torture in Iraq.”[22]

On 31 March 2022, several Special Procedures mandate holders urged the Iraqi authorities to immediately investigate the allegations of torture raised by Dr al-Bayati, and protect him from any acts of reprisal due to his work in the protection of human right.[23] The Iraqi responded in a letter dated 27 June 2022 stating that “Prime Minister Mustafa al-Kadhimi decided to refrain from filing an appeal against the investigating judge’s decision, which provided for the release of Mr. Ali al-Bayati, and to close the case against him.”

In April 2022, members of the Iraqi security forces attempted to visit al-Bayati’s home in Baghdad. Fearing further acts of reprisal, Dr al-Bayati fled Iraq.

Finally, it has been reported that in August 2021 the Federal Supreme Court (FSC) issued a decision at the behest of the Council of Ministers that removed the IHCHR’s immunity from prosecution.[24]

2.5 Executive influence on the IHCHR

In July 2021, the previous Iraqi cabinet of Mustafa al-Kadhimi had frozen the IHCHR's work due to political disagreements between parliamentary blocs and factions over their failure to agree on the appointment of a new board of trustees for the commission.

On 12 September 2023, the Council of Ministers issued Decree No. 23516 placing the IHCHR under the authority of the Ministry of Justice. In response, Iraqi activists and civil society organisations described the decision as a step towards further paralysing and marginalising the IHCHR.[25] 

The decree placing the IHCHR under the supervision of the Ministry of Justice is fundamentally at odds with the IHCHR’s independence. Human Rights Watch is concerned that this will particularly impact the IHCHR’s ability to conduct investigations into potential human rights violations occurring under the Ministry’s purview (e.g., prison conditions, torture, due process violations, etc.), and that any such investigations may be censored or suppressed from publication.[26]

2.6 Delays in reporting and interaction with the international human rights system

Article 4(2) of the enabling Law No. 53 of 2008 states that the IHCHR shall prepare “studies and research, present recommendations and express opinions on issues related to the promotion and development of human rights”. In addition, article 4(7) of the same law provides that the Commission shall submit recommendations and proposals to the Committees in charge of preparing the reports that Iraq committed to submit to the United Nations.

Our 2021 evaluation report found that the IHCHR regularly submitted shadow reports to UN bodies. In June 2021, the SCA acknowledged “the steps taken by the IHCHR to engage with the international human rights mechanisms including various treaty bodies and special procedures mandate holders.”[27]

We note that since the last IHCHR assessment in June 2021, the Commission has refrained from systematically submitting reports as part of the periodic reviews of Iraq by the treaty bodies.

On 18 March 2022, the IHCHR submitted a shadow report to the Committee against torture in the context of the review of Iraq’s second periodic report. During the country visit of the Committee on Enforced Disappearances from 12 to 25 November 2022, meetings were held with four delegations of the High Commission for Human Rights in the governorates visited.[28] However, the IHCHR did not take part in the review of Iraq’s sixth periodic report by the Human Rights Committee nor the Committee on Economic, Social and Cultural Rights’ review of the fifth periodic report of Iraq.

In addition, article 4(8) of the enabling law states that the IHCHR shall submit an annual report to the Council of Representatives. The article specifies that the report should include “a general assessment of the human rights situation in Iraq and should be published in various media outlets.”

The last activity report (in English) available on the Commission's English-language website dates back to 2017 while the latest annual report in Arabic covers the year 2020.[29]

Finally, in the absence of commissioners, IHCHR’s reports do not meet the legal threshold necessary to compel the Council of Representative or the government to take action.[30] 

3. Conclusion and recommendations

In order to comply with the Paris Principles, the IHCHR should demonstrate real independence in the exercise of its mandate and ensure that it remains neutral and impartial in all circumstances in order to benefit from the confidence of citizens and civil society as a whole.

The IHCHR has been operating in a context of continued violations of human rights and where civic space is severely restricted. As a result, we ask the SCA to refrain from upholding the A status of the IHCHR and to address the following recommendations to the IHCHR: 

1. Amend article 7 of the enabling Law No. 53/2008 relating to the Committee of Experts in charge of the nomination of the Board of commissioners as to guarantee a substantial presence of civil society representatives with a sound experience in this field of human rights;

2. Appoint promptly members of the IHCHR’s board of commissioners;

3. Once the appointment of the commissioners has been completed, ensure that members of the IHCHR are able to carry out their professional duties independently and are protected from any intimidation, harassment, improper interference or reprisals;

4. Guarantee the immunity of commissioners in law and in practice;

5. Amend the Prisoners and Detainees Reforms Law and guarantee unhindered access during unannounced visits of the IHCHR;

6. Ensure adequate follow-up on complaints lodged with the Commission;

7. Allocate the necessary resources for the preparation of annual reports and shadow reports to be submitted to UN human rights bodies.

Kindly yours,

MENA Rights Group