April 06, 2023
The Iraqi government must take urgent action to address the devastating issue of enforced disappearances in the country, as per the priorities set out by the UN Committee on Enforced Disappearances (CED) in its mission report presented on April 5, 2023, a group of Iraqi and international non-governmental organisations say in a joint statement.
With between 250,000 and one million missing and disappeared persons in the country - the highest number in the world - a national action plan to combat the issue must be a strategic priority. In the absence of structural changes, the signatory organisations fear that the “image of a system ruled by impunity” mentioned by the Committee will continue to prevail, leaving more Iraqi citizens vulnerable to enforced disappearance in the future and creating unhealed grievances that threaten the country’s fragile peace.
“We are pleased to see that the CED’s recommendations reflect those of many of the signatory organisations working to combat enforced disappearance”, the undersigned organisations say. “We call on the international community to support these efforts.”
Background of the visit
On November 23, 2010, Iraq became the twentieth State to ratify the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). Yet, more than a decade later, the authorities have not managed to end this practice.
In an effort to address this problem, the UN Committee on Enforced Disappearances (CED) requested to undertake a country visit to Iraq in November 2015. Taking a positive step, the Iraqi government accepted the request six years later and, in November 2022, three members of the Committee visited the country.
In Baghdad, Anbar, Erbil, Mosul and Sinjar, CED members met with families of victims of enforced disappearance, State officials, delegations of the Iraqi High Commission for Human Rights (IHCHR), and civil society organisations.
A deeply rooted practice
The practice of enforced disappearance has been identified as “a problem of massive proportions”. In its report, the Committee recalled that the practice is decades old. With the rise to power by the Ba’athist regime in the late 1960s, thousands of Iraqis were abducted due to their real or perceived political, ethnic, and religious affiliations. In the aftermath of the U.S.-led invasion of Iraq in 2003, thousands of Iraqis disappeared after being taken by the Multinational Force, the Iraqi authorities, or the many militias active during the period of sectarian violence following the removal of the Ba’athist regime.
Disappearances remained pervasive between 2014 and 2017, following the seizure of large territories by the so-called Islamic State of Iraq and the Levant (ISIL), which targeted ethnic and religious minorities in particular. The state forces and various armed groups that helped liberate Iraqi territory from ISIS also disappeared civilians during the conflict and its aftermath.
The latest wave of enforced disappearances occurred in the context of the pro-reform youth-led protests that took place from October 2019 onwards, mainly in Baghdad and southern Iraq. The CED noted excessive use of force by security agents, including the use of live ammunition to disperse demonstrators, resulting in deaths and injuries. Their report also referred to the abductions and arbitrary detentions of protestors, many of whom were later forcibly disappeared.
The fight against impunity
Iraq has yet to incorporate the crime of enforced disappearance into its domestic law as an autonomous offence. Although 30 pieces of legislation address this issue, none of them provide a definition of enforced disappearance, a crime that is often confused with the notions of “abduction”, “missing person” and “kidnapping”.
The Committee found that “the legislative silence on enforced disappearance is accompanied by the absence of specific procedures for the search for disappeared persons and corresponding investigation”, adding that it “fuels the confusion between the notions, thereby preventing the clear identification of the scope of the crime and responsibility of the State.”
As long as enforced disappearance does not exist as an autonomous offence, it cannot be adequately addressed and prosecuted as such. To remedy this shortcoming, the Committee urged the Iraqi government to “create a single legal framework to address all cases of enforced disappearance.”
The UN experts expressed concern about article 130 of the Criminal Procedure Code, which allows the investigating judge to temporarily close a case of disappearance if the perpetrator is unknown. They also described the current management of “security screenings” as “another factor of impunity”. Such screenings remain necessary to submit a complaint, ask for the search for a disappeared person, or access the broader range of rights to which family members of those classified as ‘martyrs’ qualify. If the disappeared person is on one of the “wanted lists” established by the authorities, the family and relatives lose all entitlements and have no access to any form of truth and justice.
In addition, in order to receive financial compensation for the loss of their loved ones, family members are obliged to presume them dead and obtain a death certificate, causing untold pain and denying their right to know the truth.
The Committee thus called on the authorities to “put an end to practices that hinder access to justice and perpetuate enforced disappearance, including through the amendment of the legislation that conditions victims’ access to their rights to the outcome of unreliable security screenings.”
Search for disappeared persons
The Committee regretted that the Iraqi national legal framework does not outline specific procedures for the search for disappeared persons and the investigation of alleged enforced disappearances.
Recalling that 17 institutions or State authorities have responsibilities related to disappearances, the Committee found that the multiplicity of institutions and their lack of cooperation and coordination cause a high level of confusion and fatigue for the victims and called on the authorities to “clarify the institutional framework in charge of disappearances in Iraq”. At the same time, the lack of interinstitutional coordination and inter-agency cooperation has “an adverse impact on the outcomes of searches and investigations, as well as on the state of knowledge about disappearances and the efforts to address and prevent them.”
As an institution that can receive complaints of enforced disappearance, the Iraqi High Commission for Human Rights can request the relevant authorities to check the registers of persons deprived of their liberty and refer cases to the Public Prosecutor’s Office to take necessary legal action, including referral of the complaint to courts. However, the CED delegation did not receive any official data as to the proportion of cases referred to courts and as to the outcome of such referrals.
The Committee also regretted the absence of reliable data on the number of alleged enforced disappearances in Iraq, prompting the UN experts to recommend the establishment of a consolidated and reliable nationwide register of disappearances that would be accessible to all persons with a legitimate interest.
The report further found that “complexity of the current legal and institutional framework related to disappearances also has a direct impact on the capacity of the State party to set up an efficient and effective system of registration of disappearance cases.”
The Committee thus considers it a priority for the Iraqi authorities to clarify the institutional framework in charge of disappearances in Iraq and concretise its ongoing project to establish a unique “Nationwide Disappeared Persons System”.
Strengthening procedural safeguards and ending secret detention
When members of the delegation visited detention facilities, inmates told them that they could inform their families of their whereabouts. However, the report mentions that other witnesses claimed they were detained and later released after having spent years in secret detention.
While the Iraqi authorities deny the existence of such practices, the report makes reference to the existence of secret detention centres, as well as situations amounting to secret detention in known places of detention such as al-Muthanna Baghdad International Airport and the al-Hoot Prison in Nasiriyah.
The signatories believe that one of the most effective ways to prevent enforced disappearance is to ensure that all persons in custody have proper access to legal and procedural safeguards from the first moments of police custody.
To that end, the Committee recommended that deprivations of liberty be carried out only by officials authorised by law, and that persons deprived of their liberty be held solely in officially recognised and supervised places of deprivation of liberty. They must have access to a lawyer from the outset of the deprivation of liberty, and must be able to communicate with and be visited by their relatives without delay.
“We urge the Iraqi authorities to effectively, and in good faith, implement the recommendations contained in the Committee’s mission reports through the adoption of a strategy to prevent and eradicate enforced disappearance, and provide adequate truth-seeking, accountability and reparation measures for cases of enforced disappearance,” say the group of NGOs. “In doing so, Iraqi authorities should also give a full and meaningful role to victims, survivors, family members and civil society organisations.”
Impunity Watch, MENA Rights Group, Sama AL Ebtikar foundation for Sustainable Development, Nineveh women organization for women affairs, Awasser Ensaniyah Organization for Human Rights and Democracy, Citizenship Association for Human Rights, Al-Sayyab Association for Human Rights, Saya organization for human rights and democracy, Step Organisation for Democracy and Election, Soqya Foundation for relief and Development, Iraq civic action network, Tishreen Organization for Human Rights, AL-NAHRAIN FOUNDATION FOR SUPPORTING TRANSPARENCY & INTEGRITY "NFTI", Osa Organization for Human Development, Al-sa’afa foundation for promotion of democracy, Al-Haq Foundation for Human Rights, Building Foundation for Training and Development, Tadaruk for Human Rights and Democracy, Almahabba Wes Salam Forum, Tamasok foundation for Strengthening Democracy and Transparency, Apkallu Organization for sustainable development AOS, Anamal Alkhair human org, Humanitarian Charity organization, Women's Human Rights Center, Ein-NGOs, Civilized Dialogue Development Organization, Iraqi Democratic Youth Federation, Al Rafidain center for human rights, NMC Organization for Relief & Human Rights, Almonqith org for human rights, Karam Al Anbar humanitarian Organization, Alrowad Organization for Youth and Development, Daleel Organization for Democratic Awareness, Alice Foundation for Women's and Children's Rights, Tiwa Organization for Development and Human Rights, The Observer Human Rights Center, Light of Wisdom Humanitarian Organizatio for Relief, Al Erada Organization For Relief And Development,Tomorrow's Dream Foundation for Relief and Sustainable Development, Information center for research and development, Homeland Builders Organization for Development, Shababyon foundation development, Euro-Mediterranean Federation Against Enforced Disappearances, The Youth Foundation for Development, Iraqi Free Association for Faily Kurds, Ishraqat for Development Organization, Al ataa for human rights, Iraqi Free Association for Faily Kurds, Youth Development Organization, Al Ghaydaq Association and the Promotion and Promotion of Democracy, SAMA Organization for Psychological and Social human rights, Strive Organization for Democracy & Human Rights, Iraqi feminist uprising movement, Al Erada Foundation for Students & youth of Iraq, HLYC, Shababyon Foundation For Development, Best Women for Relief and Development, raqi Al-Amal Association, Strive Organization for Democracy & Human Rights, i_w_l, Doctors of Peace, AL shawaq foundation forHuman Rightsand Development, Iraqi Observatory for Human Rights, Peace makers Organization, Strategic Center for Human Rights, Iraqi war crimes documentation center, South Youth Organization
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