December 11, 2019
Inadequate legislation pending before Iraq’s Council of Representatives
Despite failing to meet international standards, drafts of both an Anti-Torture law and a law on the Protection of Persons from Enforced Disappearance are currently pending before Iraq’s Council of Representatives. In Iraq, the perpetration of torture and enforced disappearance is widespread and systematically practiced by the authorities and state-sponsored militias.
Due to the current political unrest in Iraq—with Prime Minister Adel Abdul Mahdi announcing his resignation on November 29, 2019—it is unclear when these laws with be voted on. During the latest wave of protests calling for political change, numerous sources have reported the disappearance of activists and volunteer medics. By falling short of international standards, these draft laws—should they be enacted—will fail to protect Iraqi citizens and ensure that their fundamental rights and freedoms are respected.
Insufficient scope
Both draft laws allow for serious gaps in their applicability, which undermines their effectiveness. Under the draft Anti-Torture law, the definition of “torture” is limited to any act or inaction that constitutes an “assault”, carried out by an interrogator, for the purpose of obtaining a confession. This is substantially more limited than the definition contained in the Convention against Torture (UNCAT), which provides that torture can also be inflicted in order to punish, intimidate, coerce an individual or a third person, or for any reason based on discrimination of any kind. Furthermore, the draft law only applies to acts that occur during arrest, investigation and detention. However, as demonstrated by recent events, the prohibition of torture also applies, among others, where security forces resort to unnecessary, excessive or otherwise unlawful force.
Whilst the definition of “enforced disappearance” in the draft ED law is, for the most part, in line with article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), the draft law is only applicable to direct victims and perpetrators—despite the fact that the definition should also extend to “any individual who has suffered harm as a direct result of the enforced disappearance” as per article 24 of the ICPPED. Furthermore, while Iraq has one of the highest rates of enforced disappearances in the world, there is nothing in the draft law which sets out that enforced disappearances, occurring as a part of a widespread or systematic practice, constitute a crime against humanity.
Lack of criminal responsibility
In order for a law to be effective, it needs to ensure that individuals who contribute to the commission of a crime can be found criminally responsible. In failing to capture all of the provisions set out in article 6 of the ICPPED, the draft ED law potentially does not extend criminal responsibility to those who order or induce the commission of an enforced disappearance, anyone who attempts an enforced disappearance, and responsible superiors who—despite knowing or consciously disregarding indicative information—failed to take all necessary and reasonable measures within their power to prevent or repress the commission of enforced disappearance.
Similarly, whilst the draft Anti-Torture law contains provisions that exclude the defence of “superior orders”, this only applies where such orders are illegal. This could allow for the justification of the act of torture on the basis that the torturer was simply following “lawful orders”.
Concerns regarding the courts
MENA Rights Group has serious concerns over the competency of the Iraqi courts and their ability to deliver independent and impartial justice under these texts. The draft Anti-Torture law sets out that cases will be tried in the Human Rights Court, which is not yet operational, and provides no guarantees of the appointment process of judges or of the court’s organisational and functional independence. The draft ED law simply states that cases will be initiated by the Public Prosecution Service “before the competent courts”, without determining which court might have jurisdiction and without explicitly excluding the use of military courts.
Furthermore, the draft laws do not explicitly exclude the application of a statute of limitations. Due to the seriousness of the crimes and the risk of reprisal – meaning that some victims might take many years to come forward –, the application of any statute of limitations could have a detrimental effect on the rights of victims to remedy. In addition, both laws provide insufficient measures for reparation.
Insufficient penalties
An underlying principle of justice is the administering of sanctions that reflect the gravity of the crime. Despite its severity, article 13 (1) of the draft Anti-Torture law does not establish a minimum prison sentence for individuals who have committed the crime of torture, except where the torture leads to death. This grants the court discretionary power to impose whatever sentence it deems appropriate, which is particularly concerning considering the lack of independence of the judiciary. In addition, the draft Anti-Torture law does not specify penalties for complicity, participation, and attempt, although each are components of the crime of torture.
Need for a database and the right to information
In 2015, the Committee on Enforced Disappearance recommended that Iraq establish a database to document information regarding cases of enforced disappearances. Whilst the draft ED law does provide for the establishment of a database in relation to disappeared persons, the law is vague and does not establish what information ought to be catalogued. Whilst the draft ED law also provides for the establishment of a database containing the names detainees and convicts, this fails to meet the minimum thresholds of information set out in the ICPPED, such as information regarding their location, potentially leaving detainees and convicts at risk of being disappeared. In addition, the draft ED law does not provide for the right of relatives and legal counsel to seek, receive and impart information, despite this being protected under the ICPPED.
Concerns over capacity and willingness to implement laws effectively
Amending the draft laws is a necessary, but not sufficient in itself to effect change. In order for the laws to protect individuals, and provide remedy, it will be necessary for vital, system-wide changes to occur. MENA Rights Group is concerned that without serious political will and resources, the laws, if enacted, will have limited impact. Strengthening Iraq’s human rights framework is one of the necessary conditions to tackle enforced disappearance and torture that remain systematically practiced.
