Tuesday, January 06, 2009

Human Rights Watch Report On Lack Of Due Process In Iraqi Justice System

In December 2008 Human Rights Watch released its review of Iraq’s justice system entitled, “The Quality of Justice, Failings of Iraq’s Central Criminal Court.” The Americans largely created Iraq’s justice system from scratch after the U.S. invasion. The Coalition Provisional Authority (CPA) said that it wanted to create a court system that would follow international and Western norms, and give the Iraqi public confidence in their new government. After having observed several court cases, and interviewed Iraqi and American officials, Human Rights Watch reported that Iraq and the U.S. had failed to achieve these goals. It found abuses of detainees were common, and that the country lacked due process and fair trials.

The Central Criminal Court of Iraq is the highest in the country. The CPA created the Central Court after the U.S. invasion in July 2003. The Court is meant to deal with the most serious criminal cases. It has jurisdiction over the entire country, and priority over all other courts. It has two branches, one is the Karkh Branch in the Green Zone, and the other is the Rusafa Branch in the Rule of Law Complex, both in Baghdad. The Court and the rest of the justice system is based upon old Saddam era legislation, as well as international law and treaties Iraq signed in the past including agreements on human rights, due process, and bans on torture. The 2005 Iraqi Constitution also guarantees a number of rights such as protection from torture, innocence until proven guilty, a hearing within 24 hours of arrest, a fair trial, legal defense, etc. While Iraq has all the fixings of a Western style justice system, in practice, the courts do not follow the rule of law.

One example is the fact that detainees are held for months, sometimes years before they ever have a hearing. In Iraq, detainees have a hearing before a judge to decide whether their case should go to trial or not. Iraqi law says that people can only be held for 24 hours, with a one-day extension, after their arrest. During the Surge, the number of prisoners dramatically shot up. The amount of people held went from 17,000 at the end of March 2007 to 23,000 by the end of the year, not including Kurdistan. This overwhelmed the already fragile system. There are simply not enough judges to deal with the number of cases, which causes a huge delay in hearings. At the Karkh Branch for example, 10 trial judges, 25 investigative judges, and 15 investigators had to deal with 32,084 cases in 2007. The backlog of cases will take years to get through. Despite the huge reduction in violence, new arrests are still being added to the system as well.

In February 2008, Iraq’s parliament passed an Amnesty Law, partially aimed at relieving the crowded prisons. The law applies to anyone that has been held for six months without having seen a judge. The Iraqi Justice Ministry has routinely made claims that tens of thousands have been affected by this act. On December 14, 2008 for instance, the Iraqi Chief Justice Abdelsattar al-Berqadar said that 125,000 people had been given amnesty. Neither the United Nations nor Human Rights Watch however, has noted any real change in the number of detainees since the law was passed. Human Rights watch found that the vast majority of those affected have been suspects on wanted lists or those on bail, rather than people being held or incarcerated. In September 2008 Human Rights Watch noted that only 5,000-8,000 actual prisoners had been released. A member of the Iraqi Islamic Party said that 17,000 had been freed by December. Again, there are not enough judges to review the cases under the Amnesty Law. Iraqi officials have also asked for bribes from families to release prisoners. Like many of the country’s reconciliation acts, the government has simply not implemented the Amnesty Law the way it was supposed to.

Number Of Detainees Held By Iraq (Including Kurdistan) Before And After The Amnesty Law: January to June 2008

January: 26,676
February: 26,854 – Month Amnesty Law Was Passed
March: 32,458
April 28,283
May: 28,028
June 27,366

A second problem is the routine abuse of prisoners in Iraqi jails. Suspects are usually beaten to gain confessions. Iraqi criminal code and international obligations makes this illegal. Human Rights Watch did observe cases where judges dismissed cases because the defendant had been tortured, but it hasn’t stopped the practice.

An added difficulty is the fact that no one has ever been held responsible for this mistreatment. Under Article 136 if torture happens during the line of duty, the minister in charge of the official who committed the act has to permit the case to go to trial. This has never happened. Attempts to overturn Article 136, and create new legislation against torture have all failed.

Human Rights Watch also believes that prisoners don’t get a real defense at their hearings and trials. The Iraqi Constitution says that defendants have the right to legal representation. Most cases that Human Rights Watch observed did have a lawyer present. However this was usually the first and only time that they met their clients. There were also cases where there were no defense lawyers. Prisoners also often don’t get the same lawyer at their trial as they had at their hearing. At both of those proceedings there is also an utter lack of witnesses and evidence. Forensic evidence and investigation is almost unknown in Iraq. Many cases relied upon confessions, often gained from beatings, or secret informants. There are times when this testimony has been dismissed, but one court investigator estimated that 40% of all cases relied upon informants. A judge said that although this allowed abuses, it had to happen due to the security situation in the country. Human Rights Watch believes these two issues severely limits the rights of defendants because they are unable to challenge the claims against them.

Despite the U.S. creating the Iraqi legal system, it has refused to follow it itself. The U.S. has repeatedly said that it will not follow Iraqi laws or court rulings that deal with prisoners they hold. From 2003 to 2007 there were 367 cases in which the Criminal Court either dismissed the charges against a person held by the U.S. or found them innocent, but the Americans refused to let them go. The U.S. does claim that they review cases to see if they can be turned over to Iraqi courts, but that only happens 10% of the time. This undermines the Iraqi justice system as a foreign country holds Iraqis, yet refuses to follow Iraqi law. As reported earlier, this is due to change in February 2009 as the United States begins handing over the roughly 15,000 prisoners it holds to Iraqi authorities. While an important step for Iraqi sovereignty, it will also add thousands more cases to the Iraqi system that already can’t handle what they have.

In conclusion, the U.S. set up the Central Criminal Court and the Iraqi justice system to help create a new Iraqi society based upon the rule of law. While officially, the country has many of the same rights as western countries, it follows few of them. After being arrested, Iraqis wait months or years to have a hearing, at which time they usually see a lawyer for the first time, and can be presented with a confession they gave under duress, or are accused by a secret witness. Until Iraq has enough judges to deal with the high number of cases, this situation is unlikely to change anytime soon. Iraq’s politicians are also unwilling to act on torture or Article 136, because it protects their party members in the government. Implementing laws is also important for reconciliation, but as the Amnesty Act shows, that’s a long way off. Overall, Iraq’s legal system barley works. It lacks personnel, a commitment to the law, and is open to political interference, a series of problems any country would find hard to overcome.


Aswat al-Iraq, “17,000 prisoners freed under amnesty law – MP,” 12/15/08

Human Rights Watch, “The Quality of Justice, Failings of Iraq’s Central Criminal Court,” December 2008

Leinwand, Donna, “Wheels of justice slowly returning to Iraqi court,” USA Today, 2/26/08

UN Assistance Mission for Iraq, “Human Rights Report 1 January – 30 June 2008,” December 2008

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