Report of the High Commissioner for Human Rights*

 

The Present Situation of Human Rights in

Iraq

 

*Advance unedited version.

 

Letter from the United Nations Acting High Commissioner for Human Rights to the Chairperson of the Commission on Human Rights

 

4 June 2004

 

Dear Mr. Chairman,

 

The situation of human rights in Iraq has been the subject of concern in the Commission on Human Rights for a number of years. Its Special Rapporteur has looked into the situation for over a decade. The last Special Rapporteur submitted a report on past violations of human rights in Iraq to the Commission at its sixtieth session in 2004 (E/CN.4/2004/36 and Add.1). The mandate of the Special Rapporteur was not renewed at that session.

 

The situation in Iraq has been the subject of consideration by the Security Council and is currently engaging its attention, as well as that of the Special Adviser to the Secretary-General and other senior United Nations officials.

 

From a human rights point of view, the situation in Iraq presents various challenges. Firstly, the Coalition Provisional Authority and the Interim Governing Council established following military operations by the Coalition forces are shortly to be replaced by an Interim Government, which has just been named. Secondly, there have been acts of terrorism as well as acts of armed resistance against the armed forces of the Coalition. Thirdly, a large number of people have been detained, but the numbers and circumstances were largely unknown until recently. Fourthly, civilians are adversely affected in various ways, and there has been extensive loss of life. Lastly, there have been disturbing reports in the media about certain acts committed by some members of the Coalition forces that are at variance with international human rights norms.

 

At the same time, it has to be recognized that the Iraqi people have been relieved of the massive, systematic and institutionalized violations of human rights that took place under the preceding regime, and that they now have the prospect of arranging for their own democratic governance under the rule of law and in the spirit of international human rights norms.

 

It has long been the practice of the Commission on Human Rights to consider the state of respect for human rights and humanitarian law in conflict situations. At its sixtieth session, the Commission again adopted resolutions and decisions on a number of such conflict situations.

 

Having regard to the foregoing, and keeping in mind the lack of information on the situation of human rights in contemporary Iraq, I have arranged for the preparation of the attached report which I have the honor to submit to the members of the Commission.

 

Please accept, Mr. Chairman, the assurances of my highest consideration.

 

Bertrand Ramcharan

 

Acting United Nations High Commissioner for Human Rights

 

 

Contents

 

Letter of transmittal

Contents

Executive Summary

Introduction

Sources and methods

 

I. The political context

II. The military/security situation including acts of terrorism

III. The protection of civilians

IV. The treatment of persons during arrest, detention and release from detention

A. Introduction

B. The Tabuga report

C. The ICRC report

D. The legal framework

1. International humanitarian law

2. International human rights law

E. Witness testimony

F. Responsibility to protect

V. Displacement

VI. The situation of women

A. Introduction

B. Impact of deterioration in security situation on women

C. Participation in political and public life

D. Abuses allegedly committed by occupying power personnel

E. Gender discrimination and access to justice

VII. The situation of children

VIII. Civil and political rights

A. Freedom of religion or belief

B. Freedom of opinion and expression

C. Administration of justice

D. Accountability for human rights abuses by Coalition Forces personnel

IX. Transitional justice

A. Institutional initiatives

1. Policy

2. Reparations

3. Vetting

B. The courts

1. The Central Criminal Court

2. The Iraqi Special Tribunal

X. Economic, social and cultural rights

A. Introduction

B. Health

C. Food, water and sanitation

D. Education

XI. Oversight and accountability

XII. Human rights legislation and institutions

A. International human rights treaties and applicable constitutional framework

B. Legislation

C. Judicial protection of human rights

D. The Ministry of Human Rights

E. The proposed National Commission for Human rights

 

Concluding observations

 

Annex I: Submission from the Coalition Provisional Authority

Annex II: Submission from the United States of America

Annex III: Submission from the United Kingdom of Great Britain and Northern Ireland

Annex IV: Release order for Mr. Saddam Salah Al-Rawi

Annex V: List of documents

 

Executive Summary

 

1. The fall of Saddam Hussein removed a government that preyed on the Iraqi people and committed shocking, systematic and criminal violations of human rights, which were documented in detail since 1991 by the Special Rapporteur of the Commission on Human Rights on the human rights situation in Iraq.

 

2. After the occupation of Iraq by Coalition Forces there have, sadly, been some violations of human rights, committed by some Coalition soldiers. Governmental leaders of the countries concerned have, at the highest levels, condemned these violations and have pledged to bring those responsible to justice and to uphold the rule of law. It is imperative that this be done, with accountability to the international community.

 

3. The serious violations of human rights and humanitarian law that have taken place must not be allowed to recur. Preventive and protection systems must be put in place.

 

4. It is crucial that protection arrangements be strengthened as a matter of the utmost urgency. This concerns oversight of the military forces and the building up of the protection institutions of the new Iraq. As far as the first area is concerned, consideration could be given to the designation of an International Ombudsman on Human Rights and Humanitarian Law vested with competence to issue periodic public reports on compliance by Coalition Forces with international norms of human rights and humanitarian law.

 

5. The Iraqi Interim Government should rapidly announce the designation of an Iraqi Legal and Judicial Reform Commission to recommend immediate reform to Iraqi laws that violate international human rights standards and where there is an absence of law, make provision for due process protections in accordance with its international obligations. In any event, since laws have not been substantially reformed since the 1960's, the Commission should undertake long term reform of the legal framework to ensure that certain egregious provisions of the Iraqi Penal Code, suspended by order of the Coalition Provisional Authority (CPA), are eliminated and that the separation of the Judiciary into an independent branch of government, as reflected by CPA order and the Transitional Administrative Law (TAL), is maintained.

 

6. In its approach to transitional justice, the Iraqi Interim Government should develop a strategy for addressing the legacy of brutal authoritarian rule and massive human rights abuses in Iraq. Such a strategy must be centered on the population's needs, attitudes and perceptions of transitional justice. Only effective and meaningful consultation with legal actors and the public at large will ensure a process that is considered legitimate. This process must address such issues as past human rights abuses, justice and accountability mechanisms and non-judicial measures such as vetting, truth seeking and reparations in a holistic, coordinated and coherent manner.

 

7. The Iraqi Interim Government may wish to undertake a review of the Iraqi Special Tribunal Statute so as to ensure that the criminal justice process complies with international fair trial standards, and that recent developments in international criminal law are taken into account. 

 

8. It would be important to consider the need to establish an Iraqi Truth and Reconciliation Commission.

 

9. The Iraqi Interim Government should designate a Reparations Commission to develop a reparations program.

 

10. Given the continuing violence, the Iraqi Interim Government will need to develop adequate mechanisms so as to ensure the effective security of legal actors, defendants, victims and witnesses.

 

11. The Iraqi Interim Government should name the members of the independent Iraqi National Human Rights Commission as soon as possible.

 

12. The Iraqi Interim Government should also designate the Iraqi Human Rights Ombudsman as soon as possible.

 

13. The Iraqi Interim Government should consider and take steps to support Iraqi civil society organizations for the promotion and protection of human rights. This task could be facilitated by the Iraqi Ministry of Human Rights, with international assistance.

 

14. The Iraqi Ministry of Human Rights should be given all support nationally and internationally to help it discharge its responsibilities for the promotion and protection of human rights in Iraq.

 

15. An International Fund for Human Rights Education in Iraq should be established and supported.

 

16. There must be accountability for human rights in conflict situations and in the struggle against terrorism. The letter and spirit of international human rights and humanitarian law must be upheld. It is an imperative duty on all involved.

 

Introduction

 

1. The Government of President Saddam Hussein was a brutal, murderous, torturing gang that preyed on its own people. Human rights violations in Iraq under the previous regime were documented in detail since 1991 by the Special Rapporteur on the human rights situation in Iraq (see Annex V, List of documents).

 

2. This Government is no more, and the people of Iraq have the opportunity to go forward without the oppression and crimes of the past. It is not the business of this report to dwell on the circumstances in which the Coalition Forces entered Iraq nor on the debate in the international community prior to that operation. These are matters now behind us. The removal of Saddam Hussein must be counted a major contribution to human rights in Iraq.

 

3. What this report is concerned with is the responsibility of protection that is incumbent upon the Coalition Provisional Authority (CPA), the Coalition Forces, on the Iraqi leadership, and on the international community at large.

 

4. About a thousand Coalition Forces have died since April 2003 and some 200 Coalition civilians. The Coalition Authorities have apparently not kept a count of Iraqi civilian deaths because it is asserted that Iraqi authorities do so. Some have asserted that there have been some ten thousand deaths. Some ten thousand persons or more have been taken into custody. In the aftermath of the war basic services, already in a state of serious disrepair before the war, broke down and the Iraqi people underwent hardships exacerbated by looting. These hardships have now ameliorated somewhat. An Iraqi Governing Council (IGC) and then an Interim Government were established to take Iraq forward. New constitutional and legal instruments were worked upon drawing upon the norms of international human rights law and work was done on the establishment of an Iraqi Special Tribunal to try those accused of criminal violations of human rights in the past. An Iraqi Ministry of Human Rights was established and it has sought to lay the foundations for the promotion of human rights in the new Iraq. The Security Council was briefed on these matters on 19 May 2004.

 

5. Notwithstanding these efforts it is now a matter of public knowledge that detainees have been ill-treated and degraded and, before the submissions received from the CPA and from the Governments of the USA and the United Kingdom (Annexes I to III), it was unclear what protection arrangements existed in Iraq since the fall of the previous administration.

 

Sources and methods

 

6. In drawing up this report the Acting High Commissioner for Human Rights wrote to the Administrator of the CPA to obtain information and insights from him on the situation of human rights in Iraq. The Acting High Commissioner also wrote to some 30 Governments with troops or personnel in Iraq, to the Head of the Iraqi Interim Governing Council, to the Minister for Foreign Affairs of Iraq and to the Iraqi Acting Minister of Human Rights, asking them to provide him with such information as they consider would be of interest to the Commission on Human Rights.

 

7. Information was also requested from the heads of the following United Nations bodies and programs and specialized agencies: ESCWA, FAO, HABITAT, UNAMI, UNDP, UNHCR, UNICEF, UNIFEM, ILO, UNESCO, WHO, the World Bank and WFP. The Acting High Commissioner also asked for information from inter-governmental organizations such as the IOM and the Organization of the Islamic Conference, regional organizations such as the League of Arab States and from some non-governmental organizations in consultative status with ECOSOC. Information available in the media was consulted as appropriate. Submissions were received from the CPA, the Czech Republic, Latvia, Japan, New Zealand, Poland, the United Kingdom and the United States of America as well as from Amnesty International, the Arab Organization for Human Rights, Human Rights Watch, the International Students Movement of the United Nations (ISMUN), the Women's International League for Peace and Freedom (WILPF), and a number of United Nations bodies and programs and specialized agencies. The submissions from the CPA, the Government of the United States and the Government of the United Kingdom are reproduced in Annexes I to III.

 

8. From 24 to 28 May, an OHCHR team traveled to Amman to gather information and met with over 30 Iraqis who represented non-governmental organizations working in the field of human rights or who came in their personal capacity as witnesses of human rights violations. They traveled from Baghdad, Basra, Erbil, Karbala, Mosul, Ramadi and Sulaymaniya to Amman for that purpose. The team also consulted with some representatives from non-governmental humanitarian organizations, namely from Medical Emergency Relief International (MERLIN), OXFAM and Premiere Urgence, as well as with representatives from FAO, UNICEF and WHO as members of the United Nations Country Team for Iraq, which is currently operating from Amman.

 

9. The OHCHR team interviewing people traveling from Iraq would like to express its gratitude to the Iraqis it interviewed during those days. People traveled for up to 18 hours to Amman to meet with the OHCHR team. They submitted extensive documentation on the current human rights situation in Iraq including individual case studies (see also Annex V, List of documents) and came in general well prepared to the interviews. Without exception, the interviewees placed high hopes in the United Nations to assist in rebuilding Iraq. This report presents in good faith witness accounts heard by the OHCHR team but which in the circumstances, it was not possible to verify independently.

 

10. The purpose in presenting this report is to brief the Commission on Human Rights on the human rights aspects of a situation of international concern. The aim is to enable the Commission and the wider international community to assess the situation with a view to strengthening protection in the future. The report attempts to provide factual information to the extent possible, as well as the applicable legal framework. Another purpose is to present the situation in Iraq from a human rights point of view and in promoting oversight and accountability in a complex and difficult situation. To begin with the report looks briefly at the political context of contemporary Iraq.

 

11. In the afternoon of Wednesday, 2 June 2004, a draft of the report was sent by e-mail to the Permanent Missions of the United Kingdom and the United States of America giving them an opportunity to submit any factual corrections or suggestions by 6 p.m. on Thursday, 3 June. At that time, written comments were received from the two Governments. Many of these comments have been taken into account in the finalization of this report -- which contains references in places to points of view expressed by them.

 

I. The political context

 

12. The end of major hostilities in Iraq resulted in a situation in which a coalition headed by the United States of America and the United Kingdom of Great Britain and Northern Ireland took on the role of Occupying Powers -- a situation that has been acknowledged by the United Nations Security Council. On 22 May 2003, the Security Council adopted resolution 1483 which requested the Secretary-General to appoint a Special Representative. The resolution mandated the Secretary-General to assist the people of Iraq in a number of areas, including human rights, in coordination with the Coalition Provisional Authority. 

 

13. Upon the assumption of control by the Coalition Forces, a Coalition Provisional Authority was established under an American Administrator. For most of the period under review, this function has been held by Ambassador Paul Bremer. He has been, de facto, the principal political authority in the country. An Iraqi Interim Governing Council (IGC) was nominated by the Coalition Provisional Authority and given the functions of tending to the day-to-day business of the Ministries of Governments and to work on the political architecture for the future. At the end of May 2003, the United Nations Secretary-General dispatched a Special Representative, Mr. Sergio Vieira de Mello. The Secretary-General in his report to the Security Council of 17 July 2003, noted that Mr. Sergio Vieira de Mello had raised concerns about the conditions of detention and the treatment of detainees with the Coalition Administrator, Ambassador Paul Bremer, who had given assurances that the matter was being addressed through remedial action.[1] The Special Representative was killed by a terrorist attack on the United Nations Headquarters in Baghdad, on 19 August 2003, after barely seven weeks on the ground. 

 

14. In the ensuing months, the overall security situation in Iraq deteriorated significantly. Due to the events of 19 August 2003 and the deteriorating security situation, the Secretary-General decided to temporarily locate all international United Nations staff in Baghdad by setting up the core of the United Nations Assistance Mission outside Iraq. This situation notwithstanding, United Nations agencies and programs have managed to continue a broad range of essential assistance activities in all parts of the country. 

 

15. On the basis of resolutions 1483 and 1511, and at the request of the Coalition Provisional Authority and the Governing Council, as well as many Iraqis outside the process, a Special Adviser of the Secretary-General, Mr. Lakhdar Brahimi, helped facilitate the process of national dialogue and consensus-building among Iraqis with a view to ensuring a peaceful and successful political transition.

 

16. This process culminated in the announcement on 1 June 2004 of the composition of the Interim Iraqi Government and the subsequent dissolution of the Governing Council of Iraq. Attention is now focused on the full transfer of the exercise of sovereignty on 30 June and on preparing for elections for a constituent assembly, scheduled to take place no later than January 2005. The assembly is expected to draft a new constitution. Preparations have also started for the holding of a National Conference in July 2003 to select an Interim National Council, which will assist the Government in its work and ensure that the transitional process is as broad and inclusive as possible. The Security Council is currently considering a new draft resolution on Iraq.

 

17. It is envisaged that, at the request of the Iraq Interim Government, Coalition Forces will continue to be in the country for some time to help the Interim Government maintain law and order and to safeguard the security and defense of the country. At the time of writing, these issues are the subject of consultations in the Security Council.

 

18. From a human rights point of view, witnesses interviewed by the OHCHR team in Amman brought two issues to the OHCHR team's attention in Amman: Firstly, several Iraqis pointed out that the participation of women should be actively encouraged in all Governmental bodies and institutions; and secondly that decisions about the composition of such bodies should be made without discrimination as to sex, ethnicity or religion.

 

II. The military/security situation including acts of terrorism

 

19. When interviewing Iraqis in Amman, it became clear to the OHCHR team that for almost all of them the security situation was the key concern. The witnesses said that the main factors contributing to the volatile security situation were the following: the release of criminal prisoners from detention by Saddam Hussein shortly before the war; the distribution of weapons during and shortly after the war as a result of which basically every family is now armed; the dismissal by Coalition Forces of the Iraqi army after the fall of the previous Government, which left a vacuum; and the looting mainly of public buildings allegedly while Coalition Forces stood by and watched. In comments received from the US Government the point is made that Coalition Forces took actions to prevent looting when possible but the security environment did not allow them to stop all looting.

 

20. Turning to the present situation, by May 2004, some 210,000 Iraqi security forces were in training or on duty. According to the US Permanent Representative to the United Nations, addressing the Security Council on 19 May 2004, over 30 countries were contributing military and civilian personnel to the Coalition Forces. The multinational force is divided into three sectors: Centre-South, South East, and Northern Iraq, which includes Baghdad. Forces in all sectors are engaged in stability operations, reconstruction efforts, training Iraqi security forces, and civil affairs training.

 

21. The Coalition Forces, while endeavoring to maintain law and order, have had to face protests, resistance, and acts of terrorism. Terrorists have attacked foreign Embassies, religious centers, civilian locations, the United Nations, the ICRC and Coalition Forces which have resulted in extensive loss of innocent civilian life. There is evidence of the infiltration into Iraq of elements of foreign fighters as well as Al Qaida which have engaged, in instances, in gruesome and barbaric acts such as the beheading of an American civilian and the video-taping of the act, which was then provided to media organizations. We would like to take this occasion to express profound abhorrence at these acts of depravity. 

 

22. Many foreigners, including journalists, have been taken hostage especially since the beginning of April 2004. At the same time, the kidnapping of Iraqi civilians by Iraqi criminal groups for ransom has reached dramatic proportions. Women and children are among those being taken hostage. In some incidents, the victims were killed. Academics seem to be specifically targeted. Among the witnesses interviewed in Amman, several reported that family members or friends had been subject to kidnapping. 

 

23. The witnesses interviewed by the OHCHR team in Amman understood the difficulties of responding to terrorist attacks and preventing crime. However, they voiced their discontent with the inactivity of the Coalition Forces shortly after the war to establish law and order which led to a total collapse of security. They stressed the Coalition Forces' responsibilities under international humanitarian law to ensure security for the Iraqi citizens.

 

24. Another aspect is the hiring by the Coalition Forces of private security organizations that have deployed personnel in significant numbers. Some estimates put the figure at close to 20,000. This raises the question of what legal regime applies to them and what is the duty of protection owed by them. In comments submitted by US authorities the point is made that contract personnel of the US are under the direction of the Coalition and are subject to criminal jurisdiction in US Federal Courts.

 

25. In its written submission the CPA states: "The current security situation in Iraq is difficult and complex. Anti-Multi National Force elements are attempting to thwart the efforts of the MNF to create a safe and secure environment within Iraq. They are attacking MNF directly. They are using intimidation and direct attacks on Iraq Security Force personnel to disrupt and prevent the creation of an effective and capable Iraqi security force. They are also attacking the infrastructure of the country" (Annex I). In its written submission (Annex III) the United Kingdom states: "The UK is bound by the Geneva Conventions. UK operations in Iraq reflect that." The United States for its part stated in its submission (Annex II) that US forces captured and held enemy prisoners of war, which have been treated in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War. Detainees held for security reasons have been and continue to be provided the protections of the Geneva Convention Relative to the Protection of Civilians in Time of War. 

 

III. The protection of civilians

 

26. This report will not go into the issue whether, in the prosecution of the war, Coalition Forces, or the armed forces of President Saddam Hussein, took care to avoid civilian casualties as required under the provisions of international humanitarian and human rights law. Rather, we are concerned with the situation after the commencement of control by Coalition Forces.

 

27. Besides concerns for the overall security situation, Iraqis interviewed by the OHCHR team in Amman voiced their distress about the protection of civilians by Coalition Forces. They said that the majority of Iraqis had welcomed the fall of the regime of Saddam Hussein. Though many did not like to be occupied they had accepted this, hoping for a better future.

 

28. However, most probably as a reaction to the difficult security situation, Coalition Forces reacted more and more warily towards the Iraqi population. Among the examples given were the following: An Iraqi driver fell asleep while driving and got too close to a Coalition Forces jeep. He was shot and killed. In another instance, a father and son were driving on a national road, saw a group of Coalition Forces cars behind them and drove to the side of the road to let the Coalition Forces drive by. Once those had overtaken, they opened fire in which the son was shot. He died later in a hospital. Another Iraqi reported about Iraqi police who were in the process of arresting some burglars when Coalition Forces passed by, mistook all for burglars, started shooting and killed four people.

 

29. Interviewees mentioned that such incidents often occurred in conjunction with attacks against the Coalition Forces but that too often innocent by-standers were caught in the fighting. As a further example cited, an Iraqi threw a grenade at Coalition Forces tanks which were stationed close to a peaceful demonstration. The Coalition Forces soldiers opened fire shooting into the demonstration, killing a girl, though it was clear that the perpetrator had run off in a different direction. Many of the interviewees argued that the Coalition Forces simply overreact. [2]

 

30. Other witnesses referred to traffic accidents that happen on a daily basis, whereby Coalition Forces tanks and armored vehicles bump into cars, drive on pedestrian pavements, turn wherever they would like to and in the course inflict damage on Iraqi cars and, in some cases, causing personal injuries. The witnesses said that compensation had been granted only in a few instances.

 

31. Since 4 April 2004 there have been many clashes between Coalition Forces and armed individuals belonging to the Mahdi Army, followers of Shi'a cleric Muqtada Al-Sadr, in the predominantly Shi'a districts of Baghdad, as well as southern cities including Amara, Kut, Karbala, Nassirya and Basra. The clashes involving the Mahdi Army were reportedly prompted by the closure of the al-Hawza al-Natiqa newspaper on 28 March 2004 by order of Ambassador Paul Bremer, head of the CPA, on the grounds that it was inciting violence. Another reason for the clashes was reportedly the arrest on 3 April 2004 of one of the closest allies of Muqtada Al-Sadr, Mustafa Ya'qubi, on charges relating to the April 2003 assassination in Najaf of Shi'a cleric Abd Al-Mahid Al-Khoei.

 

32. At the same time Coalition Forces launched military operations in Ramadi and Falluja following the killing, burning and mutilation of four contractors for the US army by insurgents on 31 March 2004. The situation in those areas remains volatile despite different ceasefire agreements.

 

33. Several representatives of humanitarian non-governmental organizations to whom the OHCHR team spoke in Amman, addressed the situation in Falluja, Najaf, Karbala and other cities. They reported that access to medical facilities is found to be severely restricted for a number of reasons:

 

-Occupation of hospitals by Coalition Forces as for example in the only major health facility in Falluja and also in the hospital with the largest surgical capacity in Najaf;

 

-Military presence just outside hospital compounds. In Falluja the bridge leading to the hospital acted as a checkpoint; in front of the hospital in Karbala a tank was stationed;

 

-General security in the streets. Street fighting and snipers make it often too dangerous for civilians to go to medical facilities;

 

-Persistent accounts about arrests in hospitals. There are apparently accounts of armed groups entering hospitals to seek out their opponents, and as a result many Iraqis do not feel safe in medical facilities.

 

34. The situation on the ground in the aftermath of the assumption of control by Coalition Forces, insofar as civilians were concerned, was undoubtedly quite difficult. However, the norms of international humanitarian law covering combatants' behavior in action and command responsibilities cover the civilian population. Civilians should be treated humanely at all times. All humiliating and degrading treatment, any form of indecent assault or other outrage upon personal dignity, are strictly prohibited. The protection of civilians covers all civilians, without any adverse distinction based in particular on race, nationality, religion or political opinion. Violence to life, health or to physical or mental well being in general is prohibited. Women and children should receive special respect.

 

35. Under international humanitarian law, distinctions must be made to protect civilians and civilian objects and civilians may not be directly targeted. Accordingly an attack may only be directed at a specific military objective. If the choice is possible between several military options for obtaining a similar military objective, the option to be selected must be the one which would cause the least danger to civilian persons and objects. An attack is prohibited if it treats as a single military objective a number of clearly separated and distinct military objectives in areas containing a concentration of civilian persons or objects. An attack must be proportionate considering its military advantage and its effects on the civilian population (Additional Protocol I to the Geneva Convention, Art. 57) [3]. These precautions are of particular importance when fighting takes place in urban areas.

 

36. It should be noted that reprisals, or breaching the laws of war as a reply to a breach by the enemy forces, are strictly prohibited, in particular against civilians, protected objects and the environment. Collective punishments are prohibited.

 

37. Parties to a conflict must avoid placing military objectives within or near densely populated areas, as far as possible, and take other necessary precautions to protect the civilian population under their control against the dangers resulting from military operations. The belligerent forces are not allowed to use civilian objects, such as schools or especially protected areas like hospitals, for military purposes. It is strictly prohibited to place civilians to protect a military location.

 

38. Of relevance to the issue of the responsibility to protect is the question: what instructions were given to the Coalition Forces when it came to issues of maintaining law and order in a manner that was respectful of the civilian population and respecting the rights of persons detained. The United Kingdom in its written submission (Annex III) states that UK forces, Iraqi civilians and law enforcement officials, humanitarian aid workers and contractors are regularly subject to lethal attacks.  Direction to British Forces requires that all detained persons must be treated humanely and in accordance with the principles of international humanitarian law. The United States in its submission (Annex II) states that "reviews of all detention operations in Iraq are being undertaken on multiple levels to identify any shortcomings and to implement procedures to strengthen our commitment to conducting detention operations humanely and in compliance with the law of armed conflict, including the Geneva Conventions."

 

39. Another question that is relevant to the responsibility to protect is whether any sanctions were brought to bear upon Coalition Forces for excesses committed upon the civilian population. In this regard, the information available indicates that very few members of Coalition Forces were brought to justice for excesses committed by them until recently. The US authorities, in their comments, state that action has been taken when proven excesses have occurred. Disciplinary actions have taken place throughout conflict, including court-martial.

 

IV. The treatment of persons during arrest, detention and release from detention

 

A. Introduction

 

40. Iraqis interviewed in Amman all spoke about arbitrary arrests and detention as an ongoing phenomenon since April 2003. Allegedly in many cases, Coalition Forces break front doors or windows and throw hand grenades into the room before they access the property. Searches are not conducted with care, no search or arrest warrants are being shown. In some cases, money or jewelry found during the raid is being taken by soldiers and not being returned. In other cases, the behavior of Coalition soldiers is considered humiliating, for example when leading women in their night dress outside of the house or when showing disrespect for the Koran through throwing it on the floor or tearing it apart. In some cases, the wife or son is being arrested when the husband or father can not be found. Children are allegedly being interrogated during such raids. [4]

 

41. The international community knew that in the aftermath of the victory of Coalition Forces, many Iraqis were taken into detention. For a long while, no one had any idea how many people were taken into custody, where they were held, in what conditions they were kept, and how they were being treated. From the point of view of international human rights and humanitarian law, there was a major lack of protection here, and there was accountability to no one. 

 

42. The first allegations of ill-treatment of Iraqi detainees by Coalition Forces were raised by international human right bodies such as Amnesty International in July 2003.[5] The allegations included beatings, electric shocks, sleep deprivation, hooding, and prolonged forced standing and kneeling. As mentioned before, the Special Representative, Sergio Vieira de Mello, had raised concerns about the conditions of detention and the treatment of detainees with the CPA Administrator in a meeting on 15 July 2003.

 

43. On 28 April 2004, the American news channel CBS aired photos showing male Iraqi detainees being humiliated by US soldiers. The publication of photographs of Iraqi detainees being physically and mentally abused at the Abu Ghraib prison has caused shock and outrage across the world. On 30 April 2004, the magazine The New Yorker published an article on the classified investigative military report of Maj. Gen. (MG) Antonio Taguba, a fifty-three-page report concluding that the institutional failures of the Army prison system raised serious problems. [6] The US authorities pointed out that this report was prepared after allegations of mistreatment were brought to the attention of US Commanders.

 

44. On 7 May 2004, the Wall Street Journal published extensive excerpts from a confidential twenty-four-page ICRC report that was submitted to the Coalition Forces in February 2004. [7] The report represented the summary of humanitarian concerns that were regularly brought to the attention of the Coalition Forces throughout the year 2003.

 

45. The top level US and UK authorities had previously launched investigations into the allegations of torture and ill-treatment, said that they would be intensified, and that these were rather acts of a few soldiers who would be identified and consequently court-martialed.

 

B. The Taguba report

 

46. On 19 January 2004, LG Ricardo S. Sanchez, Commander, Combined Joint Task Force Seven requested that the Commander, US Central Command, appoint an Investigating Officer to investigate the conduct of operations within the 800th Military Police Brigade. LG Sanchez requested an investigation of detention and internment operations by the Brigade from 1 November 2003.

 

47. The following practices were identified in the Taguba-report based on the allegations made and his investigations:

 

Punching, slapping and kicking detainees; jumping on their naked feet;

 

Videotaping and photographing naked male and female detainees;

 

Forcibly arranging detainees in various sexually explicit positions for photographing;

 

Forcing groups of male detainees to masturbate themselves while being photographed and videotaped;

 

Arranging naked detainees in a pile and then jumping on them;

 

Positioning a naked detainee on a box, with a sandbag on his head, and attaching wires to his fingers, toes and penis to simulate electric torture;

 

Writing "I am a Rapist" (sic) on the leg of a detainee alleged to have forcibly raped a 15-year-old fellow detainee, and then photographing him naked;

 

Placing a dog chain or strap around a naked detainee's neck and having a female soldier pose with him for a picture;

 

A male military police guard having sex with a female detainee; [8]

 

Breaking chemical lights and pouring the phosphoric liquid on detainees;

 

Threatening detainees with a charged 9-mm pistol;

 

Pouring cold water on naked detainees;

 

Beating detainees with a broom handle and a chair;

 

Threatening male detainees with rape;

 

Allowing a military police guard to stitch the wound of a detainee who was injured after being slammed against the wall in his cell;

 

Sodomizing a detainee with a chemical light and perhaps a broom stick;

 

Using military working dogs (without muzzles) to frighten and intimidate detainees with threats of attack, and in at least one case biting and severely injuring a detainee;

 

Forcing detainees to remove their clothing and keeping them naked for several days at a time;

 

Forcing naked male detainees to wear women's underwear;

 

Taking pictures of dead Iraqi detainees.

 

48. In citing these practices we note that they are the subject of consideration within the framework of broader investigations currently under way within the United States.

 

C. The ICRC report

 

49. The ICRC report drew the attention of the Coalition Forces to serious violations of international humanitarian law that had been observed and documented while visiting the detained between March and November 2003. The main violations of international humanitarian law as described by the ICRC in the report included the following:

 

-Brutality against protected persons upon capture and initial custody, sometimes causing death or serious injury;

 

-Absence of notification of arrest of persons deprived of their liberty to their families causing distress among persons deprived of their liberty and their families;

 

-Physical or psychological coercion during interrogation to secure information;

 

-Prolonged solitary confinement in cells devoid of daylight;

 

-Excessive and disproportionate use of force against persons deprived of their liberty resulting in death or injury during their period of internment;

 

-Seizure and confiscation of private belongings of persons deprived of their liberty;

 

-Exposure of persons deprived of their liberty to dangerous tasks;

 

-Holding persons deprived of their liberty in dangerous places where they are not protected from shelling.

 

D. The legal framework

 

1. International humanitarian law

 

50. The situation in Iraq involves a military occupation to which international humanitarian law as well as The Hague Regulations of 1907 is applicable. Both the Third and the Fourth Geneva Convention are applicable to the conflict. The United States of America ratified the Geneva Conventions of 1949 on 2 August 1955. The vast majority of POW and civilian internees captured during major military operations have since been released. In case of doubt about the status of an individual, a detainee's case has to be considered by a competent tribunal as required by Art. 5 Third Geneva Convention. [9] Those individuals who commit criminal offences in Iraq, including those suspected of anti-Coalition activities, are normally detained as "criminal detainees." Those held by the Coalition Forces fall within a process that requires a probable cause determination by a military attorney within 21 days of every detention. The Coalition Forces provide a second procedure that demands that the criminal detainee be brought before a judge as soon as possible and in no instance later than 90 days from the date of detention. [10] A criminal detainee has to be distinguished from a civilian internee who has not been guilty of any infringement of the penal provisions enacted by the Coalition Forces, but has been detained for "imperative reasons of security." [11] There has to be an individualized decision which links the detainee to a threat of security. According to the Commentary to the Fourth Geneva Convention "there can be no question of taking collective measure: each case must be decided separately." [12] As a procedural safeguard in order to ensure that principles of humanity are respected, a security detainee should have the right of appeal and any decision upholding detention should be reviewed every six months. [13]

 

51. The use of torture and other forms of physical and psychological coercion against any detainee to extract confessions of intelligence related information is a violation of international humanitarian law [14] and is prohibited. According to the Third (Art. 17, 87, 99) and the Fourth Geneva Convention (Art. 5, 31, 32), evidence that has been obtained through coercion can never be used as such by the Coalition Forces.

 

52. Willful killing, torture or inhuman treatment, if committed against detainees protected by international humanitarian law constitute a grave breach under the Geneva Conventions [15] and therefore of international humanitarian law and is prohibited at any time, irrespective of the status of the person detained. The above-described acts might be designated as war crimes by a competent tribunal. [16] The requirement that protected persons must at all times be humanly treated is a basic pillar of the Geneva Conventions. [17] The detaining authorities are bound to put in place all those measures that may pre-empt the perpetration of torture as well as any inhuman and degrading treatment. All State Parties are obliged to exercise jurisdiction to investigate, prosecute and punish perpetrators.

 

2. International human rights law

 

53. The prohibition of torture laid down in international humanitarian law with regard to situations of armed conflict is reinforced by the body of international treaty law on human rights. These laws ban torture both in time of peace and armed conflict.

 

54. Any practice of torture or other cruel, inhumane or degrading treatment or punishment violates international human rights standards to which both the US and UK are a party, including the International Covenant on Civil and Political Rights (ICCPR) [18] and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). [19] There is an absolute prohibition of torture applicable in times of conflict as well as in times of peace. CAT defines torture as any act that is intentional, that causes severe pain or suffering, that is used to obtain information or confession, to punish, intimidate or coerce, and that has been authorized by someone in an official position. In addition to article 7 of the ICCPR, which prohibits torture and cruel, inhuman or degrading treatment or punishment, article 10 of the ICCPR specifically provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

 

E. Witness testimony [20]

 

55. The OHCHR team met in Amman with Mr. Saddam Salah Abood Al-Rawi, a 29-year old former political prisoner under the regime of Saddam Hussein and later detained in Abu Ghraib prison by the Coalition Forces from 1 December 2003 to 28 March 2004. He reported that he was arrested without being given any explanations regarding the charges against him. His release order is reproduced in Annex IV. It states "Whatever crime they have committed has been reviewed and any time required has been served. This individual, barring commission of another crime, has no further need for detention... There is currently no reason for the continued detention of the individual, and further investigation into the case by way of a formal tribunal is not required." He did not know either, at the time of his release, whether there had been any charges against him.

 

56. Mr. Al-Rawi described the floor plan and the arrangement of the cells in the prison section (Section I A) where he was detained. Many of the cells, including his (No. 42), were solitary confinement cells, but 10 cells, he stated, were set aside for detainees being tortured. Some few days after his arrest, Mr. Al-Rawi was moved from cell No. 42 to one of the cells allegedly set aside for torture victims. For the following 18 days he was allegedly subjected to torture which at times lasted for up to 23 hours. After each torture session, loud music was on to prevent him from sleeping.

 

57. Mr. Al-Rawi proceeded to give a detailed account of the torture methods he was allegedly subjected to. These included pulling of teeth from his mouth (two teeth were missing), kicking, beating, guards standing on his hands and infliction of mental cruelty, such as telling him he would first be raped by guards and then sent to Guantanamo Bay, if he did not "confess." Following the 18 days of alleged torture, Mr. Al-Rawi was moved back to cell No. 42 where he was kept for approximately three months in solitary confinement until his release. At the time of a Red Cross visit to Abu Ghraib prison in January 2004, he was warned that if he said anything to the Red Cross visitor that the prison guards would not like, he would never live to regret it. He stated that when he was interviewed by the Red Cross visitor, he did not dare to say anything about the treatment which he had suffered and replied to most of the questions with "I don't know." Following the January visit, he stated, torture at Abu Ghraib abated.

 

58. Mr. Al-Rawi said that the ill-treatment which he suffered as a politician prisoner under Saddam Hussein was bad, but that during his days in Abu Ghraib as a Coalition Forces detainee he suffered humiliation and mental cruelty in addition to the physical torture.

 

59. In their comments the US authorities stated that they were particularly concerned about these allegations which they considered extreme and inconsistent with other reports. They will be investigating and reporting on these allegations. However the allegations had been brought to their attention only 24 hours before the report was to be finalized.

 

60. The OHCHR team also heard allegations regarding humiliation by Coalition Forces when releasing prisoners. Among the examples given were the following: that prisoners were released in the middle of the night, handcuffed, a Mickey Mouse drawn on their shirt, and that the personal items that were in their possession during arrest, including identification documents, were not returned to them.

 

F. Responsibility to protect

 

61. There are many unanswered questions regarding the treatment of detainees that are directly relevant to the issue of the responsibility to protect: what were the control systems in place to safeguard against such excesses? Were acts of depravity against prisoners committed by guards acting on their own or were they part of a systematic process of information-gathering? It is clear that there are numerous questions of control and protection that are still unanswered. 

 

62. The International Committee of the Red Cross submits confidential reports to the detaining authorities and makes representations to them in respect of areas of concern that it might have. In view of the well established and accepted policy of confidentiality the visits of the ICRC did not result in the international community being aware of how many people were detained, for what reasons, where, and in what conditions. In a world in which there must be a duty of accountability to the international community in respect of the custody and treatment of large numbers of people, the duty of care and the responsibility to protect were clearly not met.

 

63. When it emerged in the media at the end of April and beginning of May 2004, that some detainees had been subjected to degrading and inhuman treatment and torture, the international community discovered that Coalition Forces were holding perhaps even some ten thousand or more prisoners. There has been a great international outcry over the ill-treatment and torture of detainees, particularly in Abu Ghraib prison. 

 

64. On 30 April 2004, Secretary-General Kofi Annan issued the following statement:

 

"The Secretary-General was deeply disturbed by the pictures of Iraqi prisoners being mistreated and humiliated by their guards in the Abu Ghraib prison. He hopes that this was an isolated incident and welcomes what appears to be a clear determination on the part of the US military to bring those responsible to justice, and to prevent such abuses in the future. In all circumstances, and in all places, the Secretary-General is strongly opposed to the mistreatment of detainees. He reiterates that all detainees should be fully protected in accordance with the provisions of international human rights law."

 

65. Whatever the failures of control and protection that occurred in respect of detainees, it is important to recognize that once the scandal of the treatment of detainees broke into the open, Coalition leaders at the highest levels denounced the abuses and ordered investigations and prosecutions of those responsible. On 10 May 2004, for example, President Bush said that there would be "a full accounting for the cruel and disgraceful abuse of Iraqi detainees." He considered the alleged conduct by military personnel and civilian contractors in Iraq "an insult to the Iraqi people and an affront to the most basic standards of morality and decency." President Bush noted that some military personnel had been charged already and said that "those involved will answer for their conduct in an orderly and transparent process." He declared that the United States would honour the rule of law and that Iraqi prison operations would be reviewed "to make certain that such offenses are not repeated [21]."

 

66. On 14 May 2004, the Commander of American forces in Iraq, Lt. Gen. Ricardo S. Sanchez, reportedly barred virtually all coercive interrogation practices such as forcing prisoners to crouch for long periods or depriving them of sleep. Reportedly the Commander would still consider requests to hold prisoners in isolation for more than 30 days, according to a senior Central Command official who briefed reporters that day. The Commanding General had reportedly approved twenty-five such requests since October 2003. [22]

 

67. British Prime Minister Blair for his part has made comments similar to those of President Bush: "Let me make it clear that the abuse of prisoners, the torture of prisoners, degrading treatment of people in the custody of coalition forces, those things are completely and totally unacceptable, they are inexcusable and there can be no possible justification for them. And we must do everything that we can do, and need to do, in order to root out such practices and bring to justice those people who are responsible for them."

 

68. For reasons of fairness it bears mentioning that the issue of the treatment of prisoners has also been the subject of false propaganda campaigns. A notable case in point was the apparent use of fake photos of alleged abuse of Iraqi prisoners by British soldiers. On Friday, 14 May 2004, the newspaper, The Daily Mirror, acknowledged that it had published photographs in respect of which there was "sufficient evidence to suggest that these pictures are fakes and The Daily Mirror has been the subject of a calculated and malicious hoax."

 

69. It would be important, as a matter of justice, of accountability, and of respect for international human rights and humanitarian law, that there be full accountability in respect of the excesses that have undoubtedly taken place in some Iraqi detention facilities. The leadership of the major Coalition countries may also wish to consider the designation of a high-level international ombudsman to monitor the Coalition Forces while they remain in Iraq. It should be mentioned, that an office staffed by personnel from the Iraqi Ministry of Human Rights has recently been established within the Abu Ghraib prison.

 

V. Displacement

 

70. Prior to the conflict, approximately 400,000 refugees and asylum-seekers as well as some 450,000 Iraqis "of concern", who are persons in a refugee like situation, were located outside Iraq. It is further estimated that the Saddam Hussein administration was responsible for the internal displacement of 600,000 to 700,000 Kurdish people in the north of the country; more than 100,000 Kurds, Turkmen and Assyrians from the Kirkuk area; tens of thousands of Arab Shiites in the center and south of the country; and 100,000 to 200,000 Marsh Arabs from their habitat along the lower Tigris and Euphrates rivers. The written submission of the CPA provides extensive information on the issue of displacement.

 

71. After the fall of the Saddam Hussein administration, both refugees and internally displaced persons have started returning. Although the majority of those displaced by the previous administration have integrated into their host communities or no longer wish to return, it is expected that large numbers may still wish to return. Reliable statistics relating to returns are not available. However, as of April 2004, an estimated 80,000 to 120,000 persons have returned from, inter alia, the Islamic Republic of Iran, Lebanon and Saudi Arabia. Most of the returns have been unassisted and spontaneous. It is assumed that many of those who have returned have returned to a situation of displacement.

 

72. In the north, Kurds have also begun to return to their homes. The beginning of these return movements has caused a new wave of displacement. As several thousand Kurds have begun to reclaim their homes in the north of Iraq, about 100,000 Arabs who were installed there by the previous administration have fled in the months following the war.

 

73. Clashes in Falluja have created additional internal displacement in that area, but recent reports indicate that these displaced persons have started to return. In Baghdad a number of persons including foreign refugees in Iraq have been evicted from their homes as the previous government-imposed rent control has been lifted. As a result many have taken refuge in unoccupied public buildings.

 

74. The prevailing insecurity situation in many parts of the country exacerbates the already vulnerable human rights situation of most displaced persons. Following the bombing of the UN headquarters in Baghdad on 19 August 2003 most humanitarian agencies have withdrawn, and now only limited assistance reaches the internally displaced and there is no consistent monitoring and reporting on the human rights situation of displaced persons taking place.

 

75. With regard to Iraqis who return from western countries, they may well be exposed to dangers mentioned above in relation to kidnapping because they are perceived as being financially privileged. In addition, since they did not suffer from the same ordeals as the Iraqis who stayed, they are also viewed with suspicion. Furthermore, those who return to areas where their ethnic or religious group does not constitute a majority may find themselves in a particularly vulnerable situation and exposed to new forms and agents of persecution. Alternatively, they may find themselves displaced upon return, which will further complicate the displacement situation within Iraq in addition to creating undue suffering to returning Iraqis and their families. In view of the above and given Iraq's limited absorption capacity, UNHCR requested in March 2004 that States continue to grant some form of temporary protection to all Iraqi asylum-seekers, including those whose asylum claims have been rejected, and that they enforce a ban on forced returns to all parts of Iraq until further notice.

 

76. The provision of security, the restoration of the rule of law throughout Iraq and the establishment of an efficient system to resolve property disputes are the key challenges. International support of the national authorities in addressing these issues will be essential. The international human rights treaties to which Iraq is a State Party provide the basic legal framework for addressing the protection needs of returning refugees and internally displaced persons alike. In addition, the Guiding Principles on Internal Displacement provide a specific framework for addressing the protection needs of the internally displaced. In principle, it should be acknowledged that persons who were displaced have the right to return to their home areas, to integrate locally or to resettle in existing or new areas in Iraq. The relevant authorities (including both at the national and regional levels) have the responsibility to create conditions, as well as provide the means, to allow displaced persons to exercise these preferences voluntarily, in safety and dignity.

 

VI. The situation of women

 

A. Introduction

 

77. Iraq is a State Party to the international human rights instruments protecting the rights of women and girls including the Convention on the Elimination of Discrimination against Women (CEDAW). [23] The Committee on the Elimination of Discrimination against Women examined the combined second and third periodic reports of Iraq on 14 June 2000. In its concluding observations (A/55/38, paras. 166-210), the Committee noted "the failure of the State party to revoke legislative provisions that discriminate against women" and called for a review of such discriminatory legislation and for the adoption of measures, including temporary special measures, aimed at creating a non-discriminatory legislative and de facto environment for women.

 

78. The Special Rapporteur on violence against women, in her 2003 report [24], echoed the concerns of the CEDAW Committee about the failure to revoke legislative provisions that discriminate against women and to address discriminatory views and attitudes that impede women's enjoyment of their rights.

 

79. Since the assumption of control by the coalition steps have been taken to lay the foundations for improving the status of women in Iraq. According to the CPA submission (Annex I) newly formed Iraqi women's groups have taken an active role in advocating fair representation in their government bodies and calling attention to the rights of women in all spheres of Iraq's democratic development. Over the last year, Iraqi women have organized conferences in Baghdad and in the regions to discuss women's political participation and human rights issues. Eighteen women's centers have been established throughout the country.

 

B. Impact of deterioration in security situation on women

 

80. The OHCHR team addressed the situation of women with interviewees in Amman. Both women and men have suffered from the impact of the conflict on civilians, from injuries and death as a result of the fighting to the deterioration in standards of living resulting from exposure to the conflict, damaged infrastructure and collapse of public security. However, women felt specifically vulnerable during the past year due to the deteriorating security situation, including the kidnapping of civilians, which led to increased restrictions on their freedom of movement and access to education, health services, and employment opportunities. 

 

C. Participation in political and public life

 

81. Iraqi women interviewed in Amman complained about the lack of adequate representation of women in political and public life during the past year. After the occupation, the Coalition Provisional Authority appointed three women to the 25-member Interim Governing Council (none of the three serve in the Presidential Council thus not being able to serve as President). Out of 25 ministries established, the IGC selected one woman to serve as minister. The five deputy minister slots promised to women were not filled. No women were chosen to the committee to plan selection of delegates to the constitutional convention, nor to the committee that drafted the Transitional Administrative Law (TAL). The CPA appointed no women among 18 provincial governors, and few women to provincial councils. However, more recently, six of the Ministerial slots in the Interim Government were filled by women.

 

82. Some religious leaders and groups have objected to women's participation and there has been increased harassment and intimidation of women and their organizations. The CPA effort to name a woman judge in Najaf met with opposition from religious leaders, as well as the local council, lawyers and other local groups. The OHCHR team was told that women in Basra have complained about being harassed by groups of men into wearing headscarves or avoiding make-up and being under pressure to follow strict Islamic codes, sometimes from religious group militias. Journalists, activists and organizations campaigning for women's rights have been targeted. Threats range from harassment to death threats received by prominent women and by organizations campaigning for women's rights and advocating against conservative interpretations of Islamic law. Similar incidents were reported from Al Mustansiriya University in Baghdad, where apparently different staircases for women and men have been introduced and women are also harassed regarding their dress code.

 

83. Much public attention was devoted to IGC decision number 137, adopted on 29 December 2003 to replace the 1959 Personal Status Law with Sharia law, with little discussion and no public consultation. The decision led to different interpretations by rival Islamic groups. CPA Civil Administrator, Paul Bremer, did not endorse the decision, and members of the IGC declared that it was "on hold" and that the 1959 law could not be annulled except by another law. Iraqi women organizations had mobilized extensive forces in blocking IGC decision number 137.

 

84. The CPA has sponsored programs to assist women to set up small businesses, organize discussion of women's issues and support isolated shelters for victims of violence. Reportedly, US$27 million had been allocated to women's programs.

 

D. Abuses allegedly committed by occupying power personnel

 

85. There have been repeated complaints about the lack of respect by the Coalition forces for local customs and traditions which protect women's privacy. In addition, recent allegations about torture and mistreatment of detainees by members of the Coalition forces in Iraq have included allegations that women have been exposed to degrading treatment and to rape, sexual abuse and violence. The impact of such degrading treatment and abuse on women can have added serious consequences, in a society for which suffering sexual abuse (including e.g. being humiliated through nudity, etc.) and violence can be a reason for rejection of women by their own families or communities, and in more severe cases lead to so-called "honor crimes." Some of the women organization representatives in Amman mentioned that there have been reports of women threatened to be killed or killed by their families or friends because they work or worked as translators or in other functions for Coalition Forces. At the moment, there is apparently only one shelter for women being operated, located in Sulaymaniya. [25]

 

E. Gender discrimination and access to justice

 

86. The Transitional Administrative Law (TAL) adopted by the Governing Council on 8 March 2004 prohibited sex discrimination but did not offer adequate protection against discrimination in marriage (no equal right to marry, within marriage or to divorce), inheritance and ability to pass citizenship to children.

 

87. According to information received, rape, sexual violence, and abduction are felonies under Iraqi law, punishable by lengthy prison sentences. Yet, victims of abduction and sexual violence still face important legal and social barriers to obtaining justice. Some of these barriers are the provisions in the Penal Code that allow a man to escape punishment for abduction if he marries the victim. The Penal Code also allows perpetrators of rape, sodomy, sexual violence, or attempted sexual violence to receive reduced sentences if they marry their victims. Other provisions allow for significantly reduced sentences for so-called honor killings. According to information received in July 2003, these provisions were unaffected by the Coalition Provisional Authority's 9 June 2003 order that suspended certain provisions of the Penal Code.

 

VII. The situation of children

 

88. Iraq acceded to the Convention on the Rights of the Child on 15 July 1994 with a reservation to article 14.1 (freedom of thought, conscience and religion). The Committee on the Rights of the Child considered the initial report of Iraq in September 1998 (its second report has been overdue since 14 July 2001). Its main issues of concern and recommendations included the following areas:

 

-the deteriorating health situation of children, absence of data on adolescent health, including on teenage pregnancy, abortion, suicide, violence and substance abuse; the availability of facilities and services for persons with disabilities;

 

-economic exploitation of children, which had increased dramatically in the previous few years, and an increasing number of children leaving school, especially girls, sometimes at an early age, to work to support themselves and their families.

 

89. According to UNICEF and international NGOs, since August 2003, due to the security situation on the ground, it has been impossible to sustain appropriate monitoring of the rights of the child in the country.

 

90. Child malnutrition drastically increased in the early nineties mainly due to the imposition of economic sanctions. It reached its peak in 1996 when chronic malnutrition affected almost one third of children (32%) and up to 23.4% of them suffered underweight (UNICEF). The following years, UNICEF and other international agencies succeeded to decrease the percentage of children suffering from chronic malnutrition (30% less in 2002) and underweight (50% less in 2002). These figures are still higher than the ones in 1991.

 

91. UNICEF reported that due to violence that affects many parts of the country, school attendance has dropped, sometimes to less than 50 percent. Access to quality health care and services has also become increasingly a challenge to many children and their parents. 

 

92. The OHCHR team in Amman learned about cases of abduction of children for ransom by Iraqi criminal gangs. Due to the prevailing volatile security situation, the right to life, survival and development of children is seriously threatened. Persons below eighteen are indirectly and directly affected by acts of violence perpetrated by all parties in conflict; they are also vulnerable to being involved in conflict by different groups. In this regard, there have been worrying reports from Falluja of children being armed and participating in the conflict. 

 

93. On 11 May 2004, UNICEF published a statement that it was "profoundly disturbed by news reports alleging that children may have been among those abused in detention centers and prisons in Iraq. Although the news reports have not been independently substantiated, they are alarming nonetheless." The rights of juvenile detainees to be detained only as a measure of last resort and for the shortest appropriate time, and separation from adult detainees, need to be strictly guaranteed.

 

94. Vulnerable groups of children, including children living in poverty, children living in institutions, street children, working children, children belonging to minority groups and children with disabilities, are at risk of any form of neglect, abuse and exploitation. Access to quality education and health services is increasingly under stress due to the poor functioning of public services and the security situation. There has apparently been a dramatic increase in the number of street children as parents cannot support their children anymore.

 

95. The rights of girls, including to access health and education services, and to be protected from any from of discrimination and violence, including sexual abuse and exploitation and honor killings, need to be ensured.

 

96. Another issue that was brought to the attention of OHCHR in Amman was that due to the dismissal of Iraqi Ministry of Education and Ministry of Labor and Social Affairs personnel, as well as teachers, in the process of de-Baathification, those Ministries and the educational institutions were for a period of time not able to respond adequately to the needs of children. In the case of juvenile justice the competence was referred from the Ministry of Labor and Social Affairs to the Ministry of Justice. While such restructuring processes might in itself not be bad they contributed to insecurity. It is imperative that a governmental institutional framework is in place to respond to the rights of children. 

 

VIII. Civil and political rights

 

97. The OHCHR team received reports in relation to the freedom of religion and belief. A number of reports have also been published in the area of freedom of expression and administration of justice. This section focuses on these three areas. In addition, it addresses issues of accountability for, and abuses of applicable international norms of human rights and humanitarian law committed by Coalition Forces personnel.

 

A. Freedom of opinion and expression

 

98. Many of the people interviewed by the OHCHR team in Amman stressed that one of the great gains for freedom in Iraq since the fall of President Saddam Hussein has been the flourishing of freedom of opinion and expression. Iraqi newspapers and journals have sprung up across the country and Iraqis are able to express their views freely, to engage in demonstrations and protests against Coalition Forces and to undertake political activity for which they would have been brutally murdered in the past. It is important to recognize these gains for human rights in Iraq at present.

 

99. However, it should be pointed out that the former legal regime applicable to the exercise of freedom of opinion and expression is for the most part still in force, despite article 13 of the 8 March 2004 Transitional Administrative Law which provides that "the right to freedom of expression shall be protected."

 

100. In particular, the criminal provisions regulating insult and defamation (articles 202, 227, 229, 372 (1) and (5), 433, 434 and 435 of the Penal Code); the publication of false news (articles 179, 180, 210 and 211 of the Penal Code); public order and national security (articles 201, 208, 214 and 215 of the Penal Code) remain applicable and should urgently be reviewed and amended in conformity with international human rights norms and standards.

 

101. Similarly, the Law on Publications -- which provides, inter alia, that all owners of "political periodicals" should possess a government-approved "merit certificate" issued by the journalists' union and that all publications shall be licensed by the Ministry of Information -- should urgently be repealed or be comprehensively reviewed.

 

102. The 1980 Law on Censorship of Classified Material and Cinema Films also seems to be still in force. It designates the Ministry of Information as the agency responsible for censoring all films produced and imported in Iraq.

 

103. When it comes to freedom of information, including the right to access information held by public authorities, many provisions of the Penal Code unduly restrict it, such as article 178 (2), 182, 228, 327 and 437.

 

104. In the context of the development of recent and vibrant media in the country, some instances of temporary suspensions or restrictions on the media for incitement of violence and the closure of a publication for incitement of killings have been reported.

 

105. In parallel, it should be noted that when it comes to their security, the situation of journalists -- Iraqis and foreign alike -- is very difficult. Many cases of killings and of abductions have been reported since the end of the war. It should be noted that many Iraqi journalists working for Western media are being targeted by insurgent groups. Reports also mention that proper investigations into attacks on journalists and threats are lacking, and it is feared that this will lead to self-censorship by journalists, in particular Iraqi and other Arab journalists, to preserve their security.

 

B. Freedom of religion or belief

 

106. The right to freedom of religion or belief is mainly governed by article 18 of the International Covenant on Civil and Political Rights, article 18 of the Universal Declaration of Human Rights and the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. The International Covenant on Civil and Political Rights has been ratified by both Iraq and most of the States participating in the Coalition Forces.

 

107. The Muslim community accounts for between 93 and 97% of the total population. The remaining portion of the population is composed of Christians (Assyrians, Chaldeans, Roman Catholics, and Armenians), Yazidis, Mandeans, Bahà'ìs and Jews. 

 

108. Some of the witnesses in Amman mentioned to the OHCHR team that Coalition Forces at times treated Iraqis in an offensive manner regarding their religion and cultural traditions. As mentioned before, incidents were reported of women who had to leave their house in night dress during house raids and that disrespect was shown towards the Koran through throwing it on the floor or tearing it apart. In relation to detention, allegedly prisoners were forced to eat pork meat and drink alcohol. The Secretary-General of the Organization of the Islamic Conference, Dr. Abdelouahed BelKeziz, in a press release dated 16 May 2004 expressed his concern over the critical situation in Najaf Al Ashraf, Karbala and other Iraqi cities, threatening the safety of holy shrines. He stressed the necessity of respecting the inviolability of holy places, including mausoleums, mosques and cemeteries, as well as the obligation of avoiding the repercussions of the ongoing fierce conflict therein. [26] In their comments the US Authority stated that holy sites are being misuse by forces attacking the Coalition.

 

109. Since the intervention by Coalition Forces, prominent Shia Muslim leaders have publicly called for the creation of an Islamic State governed according to Islamic law (Shari'ah). In this context, particularly in southern Iraq where the country's Shia Muslim majority are concentrated, attempts have been made to apply Shari'ah.

 

C. Administration of justice

 

110. Over a period of thirty years, all aspects of the justice sector, from the administration of justice, law enforcement, corrections, judicial training to legal education have been substantially degraded. Corruption, torture and other abuses were endemic throughout the justice sector in the past.

 

111. The national legal framework was rendered inadequate and outdated. Not modernized since the 1960's, the applicable law and the legal process were also subjected to arbitrary decrees issued by the Revolutionary Command Council, some of which remain part of the applicable law.

 

112. Iraqi laws, most of which currently remain applicable, do not meet international human rights standards in the area of criminal procedures. The Criminal Procedure Code (CPC) is insufficiently clear on powers of arrest, detention and judicial review of detention. There is no right to challenge the lawfulness of detention. The CPC is equally non specific on other due process rights such as right to counsel and the right against self-incrimination. The role of the public prosecutor is effectively marginalized in criminal investigations, prosecutions and appeals. Post war, the CPA has instituted certain amendments to both codes, including voiding a provision that permitted the introduction of evidence obtained through means of torture. Other CPA amendments include establishing a right to counsel at the first hearing, the right against self-incrimination, the right of defendants to be informed of their rights and the suspension of capital punishment. The CPA re-started the Official Iraqi Legal Gazette, the official publication of all Iraqi laws since the 1920's.

 

113. As regards detention powers by Coalition Forces, CPA Memorandum No. 3 states that a criminal detainee shall be brought before a judicial officer no later than 90 days after induction into a coalition force detention centre. Memorandum No.3 provides access to a lawyer within 72 hours after induction into a coalition detention center. However, reports indicate that in most cases, access to lawyers for persons detained in Coalition Forces detention centers is denied for long periods after arrest, as induction generally occurs weeks, sometimes months, after arrest. Lawyers interviewed in Amman stated that they had repeatedly been denied access to detainees, both in Abu Ghraib prison and in Mosul. Interviewees in Amman also reported that visits, including visits by family members, are most of the time denied by Coalition Forces. Reports also indicate that detainees in Baghdad police stations have been denied access to a lawyer by the US Military Police. These acts are contrary to Principles 17 and 18 of the 1988 United Nations Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, as well as Principle No. 6 of the United Nations Basic Principles on the Role of Lawyers, which should apply to all civilians, including civilian criminal suspects.

 

114. In this respect, it is reported that in Iraqi police-managed detention facilities, access to a lawyer and presentation to a judge, in conformity with the provisions of the Penal Code, are granted within 24 hours of arrest.

 

115. As regards the relationship between Coalition Forces and Iraqi judicial authorities when it comes to the "management" of civilian detainees, there are documented reports of cases where orders by Iraqi examining magistrates for the release of a detainee on bail or to have him/her brought before a court have been ignored by Coalition Forces, therefore undermining the rule of law.

 

116. In addition, reports mention the occurrence of cases where Coalition Forces have detained family members of alleged "insurgents" in order to compel their cooperation and exert pressure on the "insurgents"; where Coalition Forces have allegedly destroyed the houses of families of "insurgents" and the crops and houses in a given area as a retaliation for attacks by "insurgents" against Coalition Forces in that area. It should be emphasized in this respect that under International Humanitarian Law, occupation forces are prohibited from carrying out reprisals and collective penalties against civilians and from taking hostages, which acts are considered as war crimes.

 

D. Accountability for human rights abuses committed by Coalition Forces personnel

 

117. CPA Order No. 17 provides that Coalition Forces are subject to the jurisdiction of their sending States. However, they are not subject to Iraqi jurisdiction. Memorandum No.3, Sections 2(3) and 6(2), state, respectively, that coalition personnel are "immune from local criminal, civil and administrative jurisdiction and from any form of arrest or detention other than by persons acting on behalf of their parent states"; that "no Iraqi court, including the Central Criminal Court of Iraq (…) shall have jurisdiction over any personnel of a Coalition member state in any matter, whether civil or criminal"; and that "where any criminal detainee held by Coalition Forces is subsequently transferred to an Iraqi Court, a failure to comply with [the] procedures [relating to the treatment of detainees] shall not constitute grounds for any legal remedy (…)." In effect, there is immunity for Coalition Forces personnel for any wrongful acts, including human rights abuses, committed in Iraq as far as Iraqi jurisdiction is concerned.

 

IX. Transitional justice

 

118. For the past thirty years, Iraq society has been brutalized by authoritarian rule, political violence and gross human rights violations and has suffered from a degraded justice system. This report recognizes that, in the past 12 months, the CPA has undertaken a number of substantive initiatives in the area of transitional justice. As the Iraqi Interim Government develops its transitional justice policy, it may wish to re-consider some of these initiatives so as to ensure that they comply with their obligations under international law. 

 

A. Institutional initiatives

 

1. Policy

 

119. The CPA's policy on how to address the crimes of the previous regime was assigned to the Office of Human Rights and Transitional Justice, created in June 2003. The Office was tasked with addressing human rights concerns and the transitional justice policy process in Iraq through the development of mechanisms to address the issues of justice, truth and reconciliation. It advised on the creation of the Iraqi Special Tribunal, established a human rights archive which received documentation on past atrocities, developed a policy on mass graves and missing persons, facilitated the work and development of NGOs in Iraq and created a national civic education program to raise awareness on international human rights.

 

2. Reparations

 

120. In May 2004 the creation of a Special Task Force on Compensation for the Victims of the Previous Regime and the CPA's contribution of US$25 million for initial compensation payments were announced. Headed by the current President of the Iraqi Bar Association, the task force has been asked to define the types of injustice that merit compensation, the eligibility requirements, the levels of compensation and the mechanisms for delivery of such compensation. The task force report is to be provided to the interim Iraqi government by 1 August 2004. The development of a reparations program by the Iraqi Interim Government will be of the utmost importance.

 

3. Vetting        

 

121. The CPA suspended the Iraqi Organization of the Judiciary Act of 1979 and established an entity called the Judicial Review Committee (JRC). Situated within the Ministry of Justice, the JRC was established to vet judges and prosecutors for Ba'athist Party links, criminal activity and complicity in human rights abuses. The committee was designed to establish a measure of public trust in the legal system by assessing and removing those judicial officials designated as unqualified and corrupt. The CPA informed that approximately 180 judges have been removed and replaced with new appointments. The CPA has also established the Council of Judges with authority to appoint, discipline and remove judges and prosecutors.

 

122. The Iraqi de-Ba'athification Council was established to vet all Iraqi government employees for Ba'ath Party involvement. The intent was to eliminate the threat posed by the continuation of Ba'ath Party networks and personnel in the administration of Iraq and the intimidation of the public by Ba'athist Party officials. Given the political realities of living under the previous regime, most professionals had little choice but to join the ranks of the Ba'ath Party. The policy of wholesale removal of legal and law enforcement officials risked removing the institutional memory of the justice sector. The CPA has apparently re-considered this approach.

 

B. The courts

 

1. The Central Criminal Court

 

123. One of the first tasks of the JRC was to review judicial personnel for the newly created Central Criminal Court. Established in June 2003, and operational since August 2003, the Central Criminal Court was established in Baghdad "as a model of procedural fairness and judicial integrity" to try designated serious offences committed since 19 March 2003. Persons having any "involvement in Ba'ath Party activity" were excluded from being appointed to the Court. The first cases began in August 2003. Because of absence of the UN, OHCHR has been unable to follow the working of the court. The CPA does not release publicly the cases or their disposition or issue public reports about the success of the initiative.  

 

2. The Iraqi Special Tribunal

 

124. On 10 December 2003, the Iraqi Governing Council established the Iraqi Special Tribunal to try senior members of the former regime for war crimes, crimes against humanity, genocide and designated offences under Iraqi law (the transitional law re-affirmed the statute). There are some questions about the consistency of some of the Statute's provisions with international standards and the capacity of the Iraqi judiciary to undertake these complex tasks. The Statute does not seem to take account of the significant developments in international criminal law so as to ensure a legitimate process. The Statute makes reference to the adoption of rules of evidence and procedure, though, to-date, these essential rules have not been completed. This will be critical since provisions of the Iraqi criminal law appear to violate Iraq's international obligations. The interim Iraqi government may wish to undertake a review of the Statute of the Iraqi Special Tribunal as well as other transitional justice initiatives in a holistic approach that ensures all initiatives comply with international standards and that they are part of an integrated approach to justice, truth and reconciliation. The rules of evidence and procedure are currently out for consultations with international NGOs. It would be valuable for this process of consultation to be completed before the rules are finalized and adopted.

 

125. The Iraqi Special Tribunal allows for international assistance for judges, prosecutors and investigators. An international team is being recruited for that purpose. Some US$75 million have been allocated for the operation of the Special Tribunal in addition to more than US$14 million from Iraqi funds.

 

126. The Office of Human Rights and Transitional Justice forensic staff has been assessing over 250 suspected mass graves, with a view to providing evidence to the Special Tribunal and in preparation for examinations for the purpose of clarifying the fate of missing persons and returning the bodily remains to the families for reburial.

 

IX. Economic, social and cultural rights

 

A. Introduction

 

127. Iraq ratified the International Covenant on Economic, Social and Cultural Rights in 1976. We have already noted that in the aftermath of the war, and upon the assumption of control by Coalition Forces, the situation was a difficult one for the civilian population in as much as there was severe disruption of economic activity and there was, for a prolonged period, a breakdown of basic services. 

 

128. When asked about economic, social and cultural rights one witness said that looting directly after the war affected mainly the public sector. However, the private sector got affected once there were bigger electricity cuts. At the same time, he mentioned that demands had also increased after the war. Electrical appliances flooded the market and the already stretched electricity network could even under normal circumstance not have coped. Tens of thousand of cars came into Iraq. They need roads and petrol.

 

129. A representative of a humanitarian non-governmental organization said that Iraq was not in a humanitarian crisis. However, Iraqis are disappointed as reconstruction is slow and they had expected more from the Coalition Forces. On a positive note, several witnesses said that salaries have increased drastically (from at times US$2 to US$200 per month).

 

130. At the same time, the high levels of insecurity impacted negatively on the lives of Iraqis, many of whom did not have access to basic services such as safe drinking water and health care. The restriction of women and girls' freedom of movement due to fear of violence had a particularly negative impact since it limited their ability to participate in education and employment. High levels of insecurity also created serious risks for humanitarian workers and hampered efforts to provide humanitarian aid, including emergency health care. In much of the country, insecurity and institutional instability continued to hamper the restoration of basic services including electricity, water, and environmental sanitation.

 

B. Health

 

131. According to the United Nations Revised Humanitarian Appeal for Iraq, as the conflict came to a close in April 2003, the health system deteriorated dramatically. The standard in provision of curative and preventive health care remained well below public health norms, and there was an increasing risk of disease outbreaks. Health structures were affected by the looting and chaos which followed the conflict, as were the Ministry of Health and health directorates at both governorate and district level. Institutional capacity was further weakened by lack of funding for recurrent costs, and uncertainty over division of roles and decision-making at all levels within the health system following moves to a more decentralized approach. The levels and distribution of available human resources for health remained inadequate.

 

132. Gender violence and generally high levels of insecurity continued to prevent access to health for women. A lack of freedom of movement for women, combined with other restrictions on women's human rights, had adverse health consequences for women and girls. One recent survey found that fewer than half of women had access to a health care provider when giving birth or receive prenatal care. Maternal and infant mortality and malnutrition remained high.

 

C. Food, water and sanitation

 

133. Prior to the conflict, over 60% of the population was dependent on food rations. This created a serious risk of malnutrition both during and after the conflict.

 

134. Disease and inadequate food intake, together with the overall deterioration of the economy, the pervasive poverty of households, the breakdown in key infrastructure such as power grids and water distribution networks, and the deterioration of social services infrastructure, resulted in high levels of malnutrition for children. Malnutrition is one of the most comprehensive indicators of the well-being of children. One assessment suggested that seven out of ten children suffered from various degrees of diarrhea, primarily as a result of contaminated drinking water. Poor food hygiene also contributed to children's ill-health as power cuts disabled refrigeration and cooking gas became scarce.

 

135. FAO highlighted that rural communities have become very vulnerable to the security situation. The harvesting cycle is affected. Farmers become beggars, have to relocate and large areas become abandoned. The farming sector could only recover if security is restored. The recovery of the farming sector would take two to three years.

 

136. Central water and sewage systems reportedly were subject to looting and sabotage, which decimated stocks and equipment supplies, including water purification chemicals, and damaged water-testing labs. A lack of spare parts and fuel for generators, the difficulty of movement and transportation, and the lack of communication between locations within and outside Baghdad led to a severe disruption of the system. In rural areas, the supply of raw water sources used for washing and hygiene was interrupted. Shortages in power supply also contributed to the insufficient supply of water to the population. Sewage treatment facilities were frequently non-operational due to the breakdown of the fuel supply line, a lack of maintenance and looting. One serious consequence of the poor water and sanitation conditions was an increase in diarrhea and waterborne diseases.

 

D. Education

 

137. According to an assessment made by UNICEF and the Ministry of Education, the education sector was seriously affected by the conflict and its aftermath. The buildings of the Ministry of Education and Ministry of Higher Education were completely destroyed. According to reports, most schools lost all educational materials and equipment as a result of looting and sabotage. A critical loss was the national Educational Management Information System (EMIS) established just prior to the conflict.

 

138. High levels of insecurity continued to keep school attendance levels, particularly of girls, to unacceptably low levels. According to the United Nations/World Bank needs assessment, one-quarter of students had not been attending school regularly. Considerable gender and geographic imbalances persisted, with far fewer girls and children in rural areas attending school. A major obstacle to attendance remained household poverty, while the poor quality of instruction and politicization of the curriculum also influenced attendance.

 

XI. Oversight and accountability

 

139. Having reviewed in the preceding sections how human rights have fared in different areas since the Coalition Forces took control of Iraq, we turn now to the crucial issue of oversight and accountability. The heart of the responsibility to protect lies in these issues.

 

140. The principal Coalition partners with forces on the ground in Iraq are parties to the Geneva Conventions of 1949. Writing in the New York Times on Saturday, May 15, 2004, the Legal Counsel to President Bush stated: "Both the United States and Iraq are parties to the Geneva Conventions. The United States recognizes that these treaties are binding in the war for liberation of Iraq. There has never been any suggestion by our government that the Conventions do not apply in that conflict... [T]he United States is bound to observe the rules of war in the Geneva Conventions." [27] British authorities have also recognized that they are bound by the Geneva Conventions and Protocols in relation to the situation in Iraq. Of particular relevance are the Third and Fourth Geneva Conventions on the treatment of civilians and prisoners of war.

 

141. Iraq, the United States, Great Britain and most of the other Coalition partners with forces on the ground are Parties to the International Covenant on Civil and Political Rights. Article 4 of the Covenant provides in part that:

 

"1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.

 

"2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision..."

 

142. American and British forces stationed in Iraq are governed by their countries' military manuals which are referred to in their written submission (see Annexes II and III). The forces of other Coalition Partners are likewise bound by their respective national military codes. 

 

143. A distillation of principles from their military codes would require on the part of the Coalition Forces in Iraq, a duty to use force no more than is necessary and proportional to the situation they are dealing with; for Commanding officers to be aware of, and responsible for, the conduct of their forces; for Commanding officers to investigate allegations of excesses; and for Commanding officers to bring to justice those alleged to have committed excesses in breach of international humanitarian and human rights law and in breach of the provisions of military codes.  

 

144. Outside of the foregoing, it is a stark reality that there was no international oversight and accountability in respect of the situation that obtained in Iraq since the entry into control of Coalition Forces. At the United Nations Commission on Human Rights in April 2003, a decision was made to continue the mandate of the Special Rapporteur on Human Rights in Iraq, established in 1991, but to give him the mandate to inquire into past violations of human rights under the preceding administration. The Rapporteur was not given a specific mandate to monitor the contemporary situation. On top of this, the mandate of the Rapporteur was discontinued altogether a year later at the 60th session of the Commission on Human Rights in March -- April 2004. The international community was thus left in a situation in which there was no international scrutiny of the situation of human rights in contemporary Iraq. As of the time of writing investigations are however, under way in the UK and the USA. It would be important that these are completed expeditiously.

 

XII. Human rights legislation and institutions

 

145. This report has so far looked at the protection of civilians, the treatment of persons in detention, the situation of women, the situation of children, civil and political rights, economic, social and cultural rights, and has discussed the question of oversight and accountability. In this concluding section, we turn to a review of the human rights norms and institutions that are currently in place from the point of view of their adequacy for the protection of human rights in the difficult period ahead. 

 

A. International human rights treaties and applicable constitutional framework

 

146. Iraq became a State Party to the following international human rights instruments which are binding upon Iraqi institutions:

 

-The International Covenant on Civil and Political Rights on 23 March 1976;

 

-The International Covenant on Economic, Social and Cultural Rights on 3 January 1976;

 

-The International Convention for the Elimination of All Forms of Racial Discrimination on 13 February 1970;

 

-The Convention on the Elimination of All Forms of Discrimination against Women on 12 September 1986;

 

-The Convention on the Rights of the Child on 15 July 1994.

 

147. As mentioned earlier in this report, the Iraqi Interim Governing Council has promulgated a constitutional framework and related legislation that took into account certain aspects of international human rights law. The new Interim Government will need to bring these national instruments further into conformity with international human rights law.

 

B. Legislation

 

148. Article 23 of the Transitional Administrative Law (TAL) provides that the Iraqi people enjoy all the rights that befit a free people possessed of their human dignity, including the rights stipulated in international treaties and agreements, other instruments of international law that Iraq has signed to and to which it has acceded and others that are deemed binding upon it, and the law of nations. (Annex I)

 

149. According to CPA Regulation Number 1, all laws in force in Iraq as of 16 April 2003 shall continue to apply unless suspended or replaced by the CPA, provided these laws do not prevent the CPA from exercising its rights and fulfilling its international obligations or are in conflict with any CPA Order or Regulation.

 

150. Many laws of the former Iraqi regime remain in effect. The CPA has undertaken a review of the Iraqi Penal Code of 1969 and the Criminal Procedure Code of 1971 in order to evaluate their compatibility with international human rights standards. In conformity with the above, the CPA has suspended the death penalty (Order Number 7) and has introduced the UN Standard Minimum Rules for the Treatment of Prisoners (Memorandum Number 2). Welcome amendments to the Iraqi penal code were made by CPA prohibiting inhuman or degrading treatment or punishment.

 

C. Judicial protection of human rights

 

151. Against the preceding background of the prevailing constitutional and legislative framework in Iraq, the judicial system has been functioning under severe constraints. Under the previous administration there was clearly little possibility of having recourse to the courts for the protection of human rights because there was no independent judiciary and there were massive violations of human rights of the worst kinds imaginable. Since the assumption of control by the Coalition Forces, Iraqis have had little opportunities of recourse to the courts for the legal protection of their rights because of military insecurity and political instability. Legal and judicial reform must be a matter for priority attention by the Interim Government necessitating the establishment of a legal and judicial reform commission.

 

152. The Coalition Provisional Authority has begun this process as is stated in the written submission of the CPA (Annex I). The Judiciary has been reestablished as a separate branch of the government under the supervision of a Council of Judges. A Judicial Review Committee vetted all 860 judges and prosecutors nationwide for past corruption. Approximately 180 judges were removed and replaced. Training for judges is in progress to inculcate a culture of respect for human rights, due process and basic tenets of the rule of law. 

 

D. The Ministry of Human Rights

 

153. As part of the arrangements introduced by the Iraqi Interim Governing Council, an Iraqi Ministry of Human Rights was established in September 2003. It was given the mandate of addressing past human rights atrocities and safeguarding the human rights and fundamental freedoms of all persons within the territory of Iraq in the future. Specifically the Ministry of Human Rights is to help establish conditions conducive to the protection of human rights and fundamental freedoms in Iraq and prevent human rights violations in Iraq; to make formal recommendations for measures to prevent human rights violations; and to assist all people in society in healing from past atrocities; to serve as focal point for relations with international human rights bodies; and to provide advice to law makers (see CPA submission, Annex I).

 

154. OHCHR provided human rights training to 10 staff members of the Ministry in February 2004 and invited two additional staff members (as well as two staff members from the Ministry of Justice) to Geneva for a human rights training during the 60th session of the Commission on Human Rights. In talking to Iraqis in Amman it became clear that they wished the Ministry to play a strong role in the future. Some interviewees referred to the Ministry's important role in dealing with the past and initiating national dialogue on this issue. Others felt that the Ministry would have to be closely involved in legal reform and should receive reports from non-governmental organizations to submit them to the relevant Government Institutions for response. As the Iraqi constitutional and political framework evolves, it would be important to retain this concept of an Iraqi Ministry of Human Rights and to strengthen it in the future.

 

E. The proposed National Commission for Human Rights

 

155. Article 50 of the Transitional Administrative Law (TAL) for Iraq provides for the establishment of a National Commission for Human Rights to carry out the commitments of the TAL and to examine complaints pertaining to violations of human rights. The TAL provided that the Commission shall be established in accordance with the Paris Principles as unanimously adopted by the United Nations General Assembly on 20 December 1993. The Commission shall also include an Ombudsman's Office dealing with complaints, with powers of investigation, including on its own initiative, regarding any allegation of conduct by governmental authorities considered arbitrary or contrary to law.

 

156. The establishment of the National Human Rights Commission for Iraq should be given priority by the Interim Government. It would be very important that the Commission have an open and transparent appointment procedure concerning its Commissioners. These individuals should be of high quality with appropriate human rights expertise and integrity and must represent the various elements of society. Their independence will need to be assured through effective provisions within the founding legislation. The appointments and dismissal procedures should be transparent.

 

157. In appointment it is advisable that a Selection Committee comprising all social forces in Iraq be established. This Committee would make recommendations to the Interim Government concerning candidate Commissioners. The Interim Government would appoint the Commissioners. The Interim Government could either appoint a Chairperson or the Commissioners could do so amongst themselves. The membership of the Commission should include Iraqi women and men, drawn from each of the principal ethnic and religious groups of Iraq, from inside the country and the Iraqi Diaspora, and Iraqi refugee and internally displaced communities. All Commissioners should be Iraqi nationals. A Commission operating in a large and diverse country like Iraq would ideally have between 7 and 11 Commissioners.

 

158. Some of the possible functions for the Commission based on experience could include:

 

(1) to advise the Interim Government, future Legislature and any other competent body on any matters concerning the promotion and protection of human rights;

 

(2) to publicize its advice and opinions, recommendations, proposals and reports;

 

(3) to examine and report on the legislation and administrative provisions in force, draft laws and proposals and make such recommendations as it deems appropriate to ensure that these provisions conform to the fundamental principles of human rights;

 

(4) to recommend the adoption of new legislation, the amendment of legislation in force and the adoption or amendment of administrative measures;

 

(5) to investigate, report on and attempt to resolve any situation of violation of human rights;

 

(6) to prepare reports on the situation in Iraq with regard to human rights in general and on more specific matters;

 

(7) to draw attention to situations in any part of Iraq where human rights are violated and make proposals for initiatives to put an end to such situations and, where necessary, expressing an opinion on the positions and reactions of the Government;

 

(8) to promote and ensure the harmonization of legislation, regulations and practices with international human rights law and its effective implementation;

 

(9) to assist in the formulation of programs for the teaching of and research into human rights and to take part in their implementation in schools, universities and professional circles;

 

(10) to publicize human rights and efforts to combat all forms of discrimination by increasing public awareness, especially through information and education and by making use of all media; and

 

(11) to cooperate with the United Nations, the United Nations High Commissioner for Human Rights and any other organization in the United Nations system, and other regional institutions and the institutions of other countries that are competent in the areas of the promotion and protection of human rights.

 

159. The inclusion of the office of an Ombudsman within the Commission will ensure that the broader areas of maladministration are intrinsically seen as human rights concerns. The enjoyment of human rights by combating administrative excesses and inequities would be promoted.

 

Concluding Observations

 

160. Coalition Forces went to Iraq to help bring freedom to that country. Whether they acted in accordance with international law in doing so is the subject of debate but is not within the province of this report. What is within the province of this report is how human rights and humanitarian law have been respected and protected since Coalition Forces took control of the country.

 

161. Everyone accepts the good intentions of the Coalition governments as regards the behavior of their forces in Iraq. No one imputes to Coalition governments any intention to violate the rights of ordinary Iraqis.

 

162. One should take into account in weighing what has happened in Iraq the prospects that, as a result of the actions of the Coalition governments, Iraq could well be launched on the road to democracy, the rule of law and governance that is respectful of human rights. 

 

163. From the point of view of human rights, there have been gains during the period since Coalition Forces took control of the country. These include an internal debate on constitutional architecture mindful of international human rights norms; the establishment of an Iraqi Ministry of Human Rights; greater freedoms for ordinary Iraqis; more participation of women in the public life of Iraq; and greater freedom of opinion and expression.

 

164. Nevertheless, there have been serious human rights problems that must be recognized. The fact of the matter is that large numbers of people were incarcerated without it being publicly known how many, for what reasons, where they were kept, in what conditions, and how they were being treated.

 

165. The hardships suffered by Iraqis in the aftermath of the victory of Coalition Forces were clearly not intended. But the fact of the matter is that they occurred. Ordinary Iraqis did undergo deprivations in respect of basic economic and social rights. Fortunately, the situation has ameliorated.

 

166. The treatment of Iraqi prisoners was, as recognized by Coalition leaders at the highest levels, a stain upon the effort to bring freedom to Iraq.

 

167. The central purpose of this report has been to look to the future from the point of view of the duty of care and control, protection, and accountability in a post conflict -- but still fraught -- emergency situation. From this perspective, we would end this report with the following recommendations:

 

(1) The Coalition Authorities should arrange for regular inspections of all places of detention and also appoint immediately an International Ombudsman or Commissioner to monitor respect for human rights in Iraq, to submit periodic public reports, and to make recommendations to Coalition and Iraqi authorities.

 

(2) The Iraqi Interim Government should establish an independent Iraqi National Human Rights Commission and empower it to work for the promotion and protection of human rights in the country.

 

(3) The Coalition Authorities should bring to justice those members of the Coalition Forces responsible for serious violations of human rights and report to the Secretary-General of the United Nations on prosecutions entered and the results of the trials.

 

(4) The Coalition Authorities should establish a Human Rights Fund for Iraq and give generously to it to enable it to promote human rights education and to provide human rights materials to Iraqi judges, lawyers, prosecutors and prison officials.

 

(5) The Iraqi Interim Government should promulgate urgently a human rights policy pronouncement for Iraq and live up to it.

 

(6) The Iraqi Interim Government should rapidly announce the designation of an Iraqi Legal and Judicial Reform Commission to recommend reform to Iraqi laws that are inconsistent with international human rights standards and, where there is an absence of law, make provision for due process protections in accordance with its international obligations. In any event, since many laws have not been substantially reformed since the 1960's, the Commission should undertake long term reform of the legal framework.

 

(7) In its approach to transitional justice, the Iraqi Interim Government should develop a strategy for addressing the legacy of brutal authoritarian rule and massive human rights abuses in Iraq. Such a strategy must be centered on the population's needs, attitudes and perceptions of transitional justice. Only effective and meaningful consultation with legal actors and the public at large will ensure a process that is considered legitimate. This process must address such issues as past human rights abuses, justice and accountability mechanisms and non-judicial measures such as vetting, truth seeking and reparations in a holistic, coordinated and coherent manner.

 

(8) The Iraqi Interim Government may wish to undertake a review of the Iraq Special Tribunal Statute (IST) so as to ensure the criminal justice process complies with international fair trial standards, that recent developments in international criminal law are taken into account and that the application of the death penalty remains suspended.

 

(9) If the IST remains law and if only a nominal number of perpetrators are prosecuted by the Iraq Special Tribunal, it would be important to consider carefully the need to establish an Iraqi Truth and Reconciliation Commission.

 

(10) The Iraqi Interim Government should designate a Reparations Commission to develop a reparations program for past crimes taking further the work begun by the Special Task Force.

 

(11) Given the continuing violence, the Iraq Interim Government will need to develop adequate mechanisms so as to ensure the effective security of legal actors, defendants, victims and witnesses.

 

(12) The Iraqi Interim Government should consider and take steps to support Iraqi civil society organizations for the promotion and protection of human rights. This task could be facilitated by the Iraqi Ministry of Human Rights, with international assistance.

 

(13) The Iraqi Ministry of Human Rights should be given all support nationally and internationally to help it discharge its responsibilities for the promotion and protection of human rights in Iraq.

 

(14) The United Nations, as circumstances permit, should continue to provide human rights training for Iraqi Government officials, judges, prosecutors and lawyers, as well as representatives of non-governmental organizations and civil society.

 

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[1] See Report of the SG to the Security Council of 17 July, S/2003/715, para. 47.

 

[2] As was indicated in the part of this report on "Sources and methods", witness statements could not be independently verified.

 

[3] The USA has not ratified the Additional Protocols. Neither has Iraq but generally many parts of the Additional Protocols are considered as part of customary international law. The UK is a party to the additional protocols.

 

[4] As was indicated in the part of this report on "Sources and methods", witness statements could not be independently verified.

 

[5] AI report: "Memorandum on concerns relating to law and order" which formed the basis for talks with the Coalition Forces; press release AI 07/05/2004: "USA: Pattern of brutality-war crimes at Abu Ghraib."

 

[6] Investigative report, hereafter "Taguba report", on alleged abuses at US military prisons in Abu Ghraib and Camp Bucca, Iraq by Maj. Gen. Antonio M. Taguba: "Article 15-6 Investigation of the 800th Military Police Brigade."

 

[7] "Report of the International Committee of the Red Cross (ICRC) on the treatment by the Coalition Forces of Prisoners of War and other Protected Persons by the Geneva Conventions in Iraq during arrest, internment and interrogation"; hereafter "ICRC report"; the report included observations and recommendations from visits that took place between March and November 2003 and was handed over to Ambassador Paul Bremer and Lt. Gen. Ricardo Sanchez.

 

[8] Taguba report, p. 17; classified Criminal Investigation Division report on criminal abuses at Abu Ghraib, 28 January 2004; a synopsis prepared by the Criminal Investigation Command, dated 5 May 2004, categorizes as a sexual assault a case of abuse at Abu Ghraib last fall that involved three soldiers, who "entered the female wing of the prison and took a female detainee to a vacant cell. While one allegedly stood as look-out and one held the detainee's hand, the third soldier allegedly kissed the detainee." The report says that the female detainee was reportedly threatened with being left with a naked male detainee, but that "investigation failed to either prove or disprove the indecent-assault allegations."

 

[9] "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Art. 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

 

[10] CPA Memorandum Number 3, Section 6 (d) states that "a criminal detainee shall be brought before a judicial officer as rapidly as possible and in no instance later than 90 days from the date in induction into a Coalition Force detention centre."

 

[11] Art. 78 Fourth Geneva Convention; Commentary on the Fourth Geneva Convention Art. 78, p. 368.

 

[12] Commentary on the Fourth Geneva Convention, p. 367.

 

[13] Art. 78 Fourth Geneva Convention.

 

[14] Art. 13, 14 and 130 Third Geneva Convention; Art. 27, 32 and 147 Fourth Geneva Convention.

 

[15] Art. 130 Third and Art. 147 Fourth Geneva Convention.

 

[16] Notably, under international law, "inhuman treatment" includes "not only acts such as torture and intentionally causing great suffering or inflicting serious injury to body, mind or health but also extends to other acts contravening the fundamental principle of humane treatment, in particular those which constitute an attack on human dignity." Similarly, "willfully causing great suffering or serious injury to body or health includes injury to mental health and includes those acts which do not fulfill the conditions set for the characterization of torture, even though acts of torture may also fit the definition given"; Kemal Mehinovic, et al., v. Nikola Vuckovic, a/k/A Nikola Nikolac, US District Court for the Northern District of Georgia, Atlanta Division, 198 F. Supp. 2d 1322; 2002 US Dist. April 29, 2002.

 

[17] Art. 13 Third Geneva Convention; Art. 27 Fourth Geneva Convention; Commentary on the Third Geneva Convention, p. 140; Commentary on the Fourth Convention, p. 200.

 

[18] Art. 7 ICCPR: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." General Comment on Art. 2 ICCPR. The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (adopted at 2187th meeting on 29 March 2004; CCPR/C/74/CRP.4/Rev.6): Para. 10: "...to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party" ... "this principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation"; Para. 11: "...the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive."

 

[19] Art. 1 of CAT defines "torture" as following: "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information of confession, punishing him for an act he or a third person, or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or a person acting in an official capacity."

 

[20] As was indicated in the part of this report on "Sources and methods", witness statements could not be independently verified.

 

[21] Daily Bulletin published by the United States Permanent Mission to the United Nations in Geneva, May 11, 2004, p. 1.

 

[22] New York Times, Saturday, May 15, 2004, p. 1.

 

[23] Reservations were made to the General Declaration and to articles 2 (f) and (g); 9, paragraphs 1 and 2; 16; and 29, paragraph 1; two States filed objections to all or some aspects of the reservations.

 

[24] E/CN.4/2003/75/Add.1.

 

[25] As was indicated in the part of this report on "Sources and methods", witness statements could not be independently verified.

 

[26] As was indicated in the part of this report on "Sources and methods", witness statements could not be independently verified.

 

[27] The New York Times, Saturday, May 15, 2004, p. A17.

 

(Source: http://www.unhchr.ch)