September 10, 2021
By Linda Bergauer. Originally published on TIMEP – The Tahrir Institute for Middle East Policy on August 30, 2021.
Enforced disappearances are defined as “the arrest, detention, or abduction of an individual by state actors or persons or groups of persons acting with the state’s authorization, support or acquiescence, and the latter’s subsequent refusal to acknowledge the deprivation of liberty of the disappeared person or the concealment of their fate or whereabouts.” In other words, this occurs when an individual disappears without a trace, while their loved ones are left with uncertainty and long-term anguish.
On November 23, 2010, Iraq pledged to combat the persisting pattern of enforced disappearance that had been spreading terror within Iraqi society for over 50 years. According to the International Commission on Missing Persons, as of March 2021, an estimated 250,000 to one million persons have gone missing in Iraq. Despite those staggering numbers, the authorities have so far failed to effectively implement the treaty and turn the page on the practice.
A deeply rooted practice
Enforced disappearances are deeply entrenched in Iraq’s history. 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. Following the U.S.-led invasion of Iraq in 2003, again, thousands of Iraqis disappeared after being taken by the Multinational Force or the Iraqi authorities. Enforced 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), who targeted ethnic and religious minorities in particular. In the context of military operations against ISIL, Iraqi security forces as well as different government-affiliated armed groups belonging to the Popular Mobilization Units (PMU)–an umbrella organization of paramilitary groups initially mobilized in 2014 to fight ISIL– abducted hundreds of people from or living in areas under ISIL’s control, most of whom of Sunni Arab identity.
Most recently, the United Nations Assistance Mission for Iraq has documented the widespread targeting of protesters in the 2019-21 anti-government protests, including through enforced disappearances. Different armed actors have been considered to be responsible for the attacks, including PMU-affiliated groups. On numerous occasions, Iraqi security forces did not succeed in preventing attacks perpetrated by armed groups with ties to the state–and the government’s attempts to pursue accountability for their violations have so far failed. While the militias theoretically fall under the Iraqi Prime Minister’s authority, they have in reality increasingly deviated from their counter-terrorism mandate and the Iraqi authorities have increasingly less control over their actions—the price for which is being paid by the Iraqi society.
A flawed domestic legal framework
A major reason for the continued perpetration of enforced disappearances is the discrepancy between the requirements enshrined in the ICPPED and Iraq’s domestic legal framework.
In 2019, Iraq’s Council of Representatives completed the first reading of a bill on enforced disappearances, originally drafted in 2017. The adoption of the legislative proposal has been repeatedly postponed and is currently still pending. As a separate domestic law on enforced disappearances thus currently is missing, Iraq has so far failed to ensure that the practice constitutes an autonomous crime under its legislation, in violation of Article 4 of the ICPPED.
And were the draft legislation to be adopted in its current wording, it would fall short of several international standards. The bill omits, inter alia, a reference to enforced disappearance as a potential crime against humanity when perpetrated in a widespread and systematic manner, as required by Article 5 of the ICPPED. In addition, it is worth noting that Iraq’s Supreme Criminal Court Act No. 10 currently limits the possibility to qualify widespread and systematically committed enforced disappearances as crimes against humanity to those carried out between 1968 and 2003.
While the definition of enforced disappearance in the draft bill is largely consistent with the definition provided by Article 2 of the Convention, its scope of application only extends to direct victims and not, as set out in Article 24 of the ICPPED, to “any individual who has suffered harm as the direct result of an enforced disappearance,” such as family members.
Furthermore, the draft bill currently does not establish criminal responsibility of superiors, and Article 40 of Iraq’s Criminal Code allows public officials or public servants who committed the crime to invoke the order from a superior as justification—in contravention of Article 6 of the ICPPED.
Finally, while Article 4 of the draft law provides for the establishment of a database containing the names of all detained persons, it does not meet the minimum threshold of information required by Article 17 of the ICPPED, such as their location. This, in addition to the lack of the right in Iraq’s legislation of any person with a legitimate interest—such as relatives or lawyers—to access the information about persons deprived of their liberty listed in Article 18 of the ICPPED, greatly complicates searching for and locating individuals deprived of their liberty, which places them at risk of being disappeared.
Other domestic legislation equally circumvents some of the treaty’s stipulations. Examples are the Protection of Mass Graves Act, which excludes mass grave crimes allegedly committed by current Iraqi state agents, and Act No. 58 of 2017, enacted for the protection of witnesses, experts, informants and victims, which does not protect all persons mentioned in the ICPPED’s Articles 12, 24 and 30.
The authorities’ inaction
The Iraqi state’s inability—or seeming unwillingness—to tackle the issue of enforced disappearances, especially those perpetrated after 2003, is also evident in the lack of practical steps taken by the authorities to shine a light on the extent of the problem and to conduct thorough investigations.
As Iraq was encouraged by the UN Committee on Enforced Disappearances in 2015 to establish a unit to investigate cases of enforced disappearances, the authorities promised, but so far have failed, to set up an operational “division for combating enforced disappearance.” In 2020, the UN Committee also noted that although numerous registers of persons deprived of their liberty exist, they are not interconnected and often contain inaccurate data; disappeared persons are also often insufficiently searched for and located, with storage and identification of remains found in mass graves being inadequate. Furthermore, the data provided by the State did not include clear, accurate, and disaggregated numbers of the persons disappeared since 1968.
Moreover, fact finding committees established in the past to address allegations of enforced disappearances, that took place for instance in the context of the recapturing of parts of Anbar governorate from ISIL in 2015 and 2016, did not make significant progress in determining the fate of the disappeared or establishing accountability of the perpetrators.
In this context, it is not surprising that Iraq is the state which has the highest number of urgent requests pending before the UN Committee on Enforced Disappearances, accounting for nearly half of the 1,000 cases brought before the Committee since 2010.
Ten years on: high time and the right time for action?
In the light of the years that have passed since Iraq’s ratification of the ICPPED and the agony caused for hundreds of thousands of Iraqi citizens who have been affected by enforced disappearance and continue to suffer from the authorities’ failure to tackle the issue, it is high time that the Iraqi government puts in place comprehensive policies to investigate and hold accountable the perpetrators.
Iraq’s Prime Minister Mustafa al-Kadhimi has made multiple commitments to investigate cases of enforced disappearances, in particular with regard to disappeared demonstrators. This commitment needs to be upheld with the parliamentary elections upcoming, on October 10, 2021, in order to make the practice a phenomenon of the past.
The new government will need to bring the draft legislation on enforced disappearances in line with its international obligations and ensure its adoption is a priority. In addition, clear reform strategies to counter the pursuance by PMU-affiliated militias of individual interests must be devised for the ICPPED’s implementation to be successful.
While Iraq’s new leadership certainly will be confronted with significant challenges, it will be offered an opportunity it should not miss: shedding light on past and more recent cases of enforced disappearances is necessary to contribute to long-term stabilization efforts. As victims of enforced disappearances were, and still are, often targeted on sectarian grounds, coming to terms with the past would allow to mend internal divisions and resentment along ethno-sectarian lines. The more recent cases of disappearances, moreover, targeted peaceful dissenting voices, which contributes to the undermining of freedom of expression and the shrinking of civic space—both essential pillars of the just and peaceful society the Iraqi population deserves.