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Committee on Enforced Disappearances reviews report of Iraq

Committee on Enforced Disappearances

8 September 2015

The Committee on Enforced Disappearances today concluded its consideration of the initial report of Iraq on how that country implements the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance.

Presenting the report, Mohamed Saber Ismail, Permanent Representative of Iraq to the United Nations Office at Geneva, said that the Government of Iraq was witnessing increasing rule of law and security, and was committed to stepping up its efforts to curb violence against the State and ensure respect for the rule of law.  It was, at the same time, recognized that the State was going through a transitional period, after 35 years of dictatorship.  Iraq had suffered from enforced disappearances because of the dictatorship in the past, when thousands of Iraqis had been arrested for their political, ethnic or religious affiliations and never heard of again.  A whole range of crimes against humanity were being still committed, and terrorist acts which had nothing to do with Islam needed to be countered resolutely.  The role of the United Nations in combatting and investigating such crimes was of paramount importance.  The Iraqi people wanted to see freedom and security in Iraq.

During the dialogue, Experts asked for more details on the status of the draft law on enforced disappearances and whether the Ministry of Human Rights was still operational.  Processing of urgent action cases and accepting of individual complaints were also raised.  The responsibility of superiors in the Ministries of Defence and the Interior was discussed.  Experts also wanted to know more about the existence of registries of disappeared persons, due obedience, the Amnesty Law, conditions in detention facilities, responsibility and bringing to justice of various militias, and the protection of witnesses. 

Mr. Ismail, in concluding remarks, reiterated Iraq’s full commitment to the protection and the strengthening of human rights in the country, and the reinforcement of the application of international human rights legal mechanisms.  It was hoped that the delegation had provided a clear overview of the country’s efforts in dealing with the issue of enforced disappearances.  The Committee was thanked for its fruitful cooperation.  Constructive feedback by the Committee would be followed by Iraq with great interest. 

Emmanuel Decaux, Committee Chairperson, understood that the current situation in Iraq was complex, but it was worth remembering that Iraq had been among the first States to ratify the Convention.  Numerous challenges, including those of monitoring, remained in place.  It was hoped that the cooperation between the Committee and the State party on urgent appeals would continue.  Iraq was encouraged to make declarations under Articles 31 and 32.  Concluding observations would be adopted by the Committee the following week and include responses from the State party within a year. 

The delegation of Iraq was composed of representatives of the Ministry of Labour and Social Affairs, the Ministry of Foreign Affairs, the Kurdistan Regional Government and the Permanent Mission of Iraq to the United Nations Office at Geneva.

The Committee will next meet in public at 3 p.m. today to discuss the initial report of Montenegro (CED/C/MNE/1).


Report

The initial report of Iraq can be read here.

Presentation of the Report
 
MOHAMED SABER ISMAIL, Permanent Representative of Iraq to the United Nations Office at Geneva, reiterated the commitment of the Government of Iraq to the human rights treaties.  The delegation was aware that the outcome of the interactive constructive dialogue would be beneficial for Iraq as the State party.  The report had been prepared through the cooperation of numerous Ministries, governmental agencies, the Regional Government of Kurdistan and non-governmental organizations.  The draft report had been posted online, and comments had been received by various stakeholders.  The Government of Iraq was witnessing increasing rule of law and security, and was committed to step up its efforts to curb violence against the State and ensure respect for the rule of law.  It was, at the same time, recognized that the State was going through a transitional period, after 35 years of dictatorship.  Iraq had international obligations to protect and promote human rights in line with international law and its international obligations.

The Convention had to be implemented at the national level.  Iraq had suffered from enforced disappearances because of the dictatorship in the past, when thousands of Iraqis had been arrested for their political, ethnic or religious affiliations and never heard of again.  The crime of enforced disappearances had been most widespread until 2003. In 2012, the Government had established a committee to look into those cases and provide evidence.  Given the serious human rights abuses committed during the dictatorial regime, Iraq had established a number of bodies and adopted several laws in order to deal with such offences.  The Supreme Criminal Court had played an important role in looking into crimes against humanity and war crimes, in line with the provisions of the Rome Statute.  Mr. Ismail reminded that Iraq was party to the 1949 Geneva Conventions.  The Criminal Code defined the crime of enforced disappearances as a crime against humanity.  A number of members of the former regime had been convicted for such crimes. 

In 1991, the Iraqi Army’s withdrawal from Kuwait had been followed by an uprising against the Iraqi regime, primarily in the southern provinces, which had led to numerous enforced disappearances.  Ever since it had assumed power in 1963, the secular Ba’ath Party had suppressed all other parties – secular and religious, some of which had been defined as enemies of the nation.  Tens of thousands of political activists had been killed or imprisoned under the Ba’athist regime. 

Iraq was doing its best to strengthen its human rights system and to follow its international obligations.  The period of extreme violence which had engulfed the country since 2003 had been a significant obstacle in that regard.  A whole range of crimes against humanity were still being committed, and terrorist acts which had nothing to do with Islam needed to be countered resolutely.  The role of the United Nations in combatting and investigating such crimes was of paramount importance.  The Iraqi people wanted to see freedom and security in Iraq.  They had paid a high price fighting for liberty.  The State party had attempted to reply to the List of Issues as faithfully as possibly.  The Committee should be aware of the grave challenges faced by the country.  Iraq was thankful to the Committee, which would help it overcome the remaining challenges.  The Committee’s comments would help Iraq develop the rule of law and fully respect fairness, equality and its national and international obligations.  Iraqi civil society organizations were the partners of the Government for the work which still lay ahead.

Questions by Experts
 
RAINER HUHLE, Committee Member and Country Rapporteur for Iraq, said that one of the challenges in the preparation of the dialogue was that the Committee did not understand the status of the draft Law on Enforced Disappearances.  Did the law exist at all and, if so, was it translated to English and available to the Committee? 

He asked whether there was a concrete intention to ratify Articles 31 and 32, which would enlarge the competencies of the Committee for individual complaints.  What was the status of the Convention in the domestic legal order of Iraq?  Could it be immediately applied by a judge?

More information was sought about urgent action cases.  There were 36 such cases from Iraq, the second highest number from any country.  Could the delegation explain in detail how the Committee’s demands for urgent actions were treated by Iraqi authorities? The Government was encouraged to carry on with searching for persons under Article 30.

The entity in the Government which seemed to be in charge of looking into enforced disappearances used to be the Ministry of Human Rights.  If that Ministry no longer existed, which authorities had overtaken its functions?

The definition of enforced disappearances was also raised by the Expert.  Was it in accordance with the Convention?  Did the legislation distinguish between isolated and wide-spread acts of enforced disappearances? 

The issue of statistics on enforced disappearances was tricky, especially in countries like Iraq.  For some parts of the country, no numbers were available, as the authorities had no access to the territories under the rule of the Islamic State.  Numbers were also not available for the Autonomous Region of Kurdistan, which was somewhat more surprising.  Could such information be completed?

More than 10,000 disappearances were quoted to have taken place prior to 2003.  What exactly was meant by “missing persons” – those who had disappeared due to enforced disappearances or had gone missing during a conflict?  How many of those persons had been found alive, dead and how many were still missing? 

A question was also raised about the responsibility of the superiors in the military, police and other security forces when it came to the crime of enforced disappearances.  Was there any case law of superior officials being convicted for enforced disappearances?

LUCIANO HAZAN, Committee Member and Country Rapporteur for Iraq, raised the issue of jurisdiction and highlighted that the current legislation did not meet the requirements of the Convention in that regard. 

More clarity was sought on the issue of the registry of enforced disappearances.  In the city of Falluja, for example, thousands of people had reportedly been buried in mass graves.  More than 100 young people had been abducted in 2014 near the city of Samara; some of them had been found dead and others were still missing. 

The Expert asked about the relations between the Government and various militias, some of which had reportedly become part of the State structures.  Were those militias operating legally or illegally? 

Referring to the case 298/C/2005, the Expert inquired whether it was a civil case dealing with the responsibility of the State to free a detainee.  More information was asked on the Amnesty Law.

How was due obedience defined?

Were any of the acts of terrorism mentioned in the State party’s report cases of enforced disappearances?

Within the documents provided, the Committee could not find any clear statistics on prosecutions or reparations to victims, except for 13 cases.

Had there been any investigations or inquiries into crimes and serious human rights abuses committed by militias?

Could the delegation provide information on the cases to which the State party’s report referred to as archived?

The Expert referred to the five cases dealt with by the Supreme Criminal Court and asked for more details on whether they involved only five victims or multiple victims and perpetrators.  Had no other cases been brought to the court?  Had any senior officials been charged on such grounds?

Had any complaints on enforced disappearances been submitted since 2003?

The delegation was asked to explain about efforts to investigate kidnappings by the Islamic State and other groups.  Were there any statistics in that regard?

Would the legal system of Iraq allow for the development of a special prosecutor to investigate enforced disappearances, if such an institution had not yet existed?

How did the protection of witnesses function in reality, the Expert asked.  Was such legislation sustainable?

Were police officers suspended or did they continue to investigate cases of enforced disappearances involving them?  The agency involved in the alleged crimes should not be investigating them.

Another Expert noted that the Convention did not have a superior position vis-à-vis domestic legislation.  Which provisions would be applied by the courts if two sets of norms clashed? Had any court in Iraq directly invoked any provision of the Convention?

More information was sought on the issue of disappearance of foreign citizens and non-refoulement.

Was there a specific policy to address the specific position of women?

An Expert asked the delegation to provide more information about the efforts to overcome difficulties to investigate and obtain documentation on enforced disappearances committed by the Islamic State of Iraq and Levant.

The status of the Convention in the domestic legal system was revisited by another Expert, especially in the context of due obedience.  Could the order from above not be derogated because of the incorporation of the Convention into the Iraqi law?

Mr. Huhle referred to the statement in the reply to the List of Issues that there were no secret detention facilities in Iraq.  Could more information be provided on that issue? What were legislative preventive measures in place?

There was a duty to record, within 72 hours, details of the arrested person.  That applied only to the police and the military and not to other security forces  - could that be clarified?  An administrative order in that regard could be easily given and retracted.  Was there a strategy in place to prevent secret detention, and how was it ensured that it would be effective in practice?

What measures had the Government taken to sanction responsible officers and prevent such incidents from occurring in the future?

There was no unified register of detained persons in Iraq at the moment, as the report stated.  It was of prime importance that such a register existed. 

Mr. Hazan asked about reparations for the victims of enforced disappearances.  How were dignity, reputation and non-repetition guaranteed?  Had any reparations been provided before 2015, and had they been only economic or had they included medical and psychosocial support?

The Expert asked for more details on the existing mechanisms to find and locate disappeared persons.  What did families have to do in such cases?

Had the amendment on mass graves been published? How many bodies had been identified and returned to their families?  What would the procedure be for those bodies which were not identified?  Were they kept, buried again, or did attempts continue to identify them?  Was there a database of DNA of family members of disappeared persons?

A disappeared person could be declared dead in some cases after only four months of having disappeared.  What happened when the death certificate was issued – was the case closed or did the State continue to look for the disappeared person?

Regarding the disappearance of children, it was not clear whether there had been any cases of disappeared children.  What measures were taken to prevent that kind of offence?  Could identified children be placed in foster care?

Another Expert inquired how the rights of detained persons were guaranteed, especially when it came to communicating with their families.  Who was covered by the concept of family visit?  Were they guaranteed legal assistance, and was that provided to foreigners as well?  How was the lawyer informed that their client would be transformed from one detention centre to another?

The issue of the possibility of issuing a death certificate to a disappeared person was raised again by another Expert.  If someone was disappeared, he should be presumed to be alive as long as his whereabouts had not been established.  It had to be ensured that the State continued to look for his whereabouts as long as they had not been identified. 

A question was asked how the State party was bringing its legislation in line with Article 9 of the Convention.  Which Ministry was in charge?

Statement by the Representative of the Kurdistan Regional Government
 
DINDAR ZEBARI, Head of Section for Treaty Bodies at the Kurdistan Regional Government, said that enforced disappearances were grave violations of human rights.  Iraqi people, particularly the Kurds, had been victims of multiple violations of their human rights under the Saddam Hussein regime.  The authorities had perpetrated ethnic cleansing, chemical bombardment and genocide.  Enforced disappearance under the previous regime had caused thousands of victims among Iraqis; many bodies had not been found until today.  Under Daech [ISIS], enforced disappearances perpetrated against Kurds continued; the Kurds had suffered more than any other group.

The Kurdistan Regional Government reaffirmed its commitment to Iraq’s international obligations under the Convention.  Recent enforced disappearances represented heavy blows in economic terms as well.  The accession of Iraq to the Convention was welcomed as the whole country needed to do more to address the problem.  The fate of tens of thousands of Kurds was still unknown.  In terms of detention facilities, Kurdistan had been the key area in Iraq to tackle those issues.  The Kurdistan Regional Government had invested significant effort to rescue and help Yazidi hostages held by the Islamic State of Iraq and Levant.  Both Iraqi and Kurdistan Governments were undertaking serious efforts to deal with that scourge. 

Replies by the Delegation
 
Popular gatherings in Iraq had been created to face up to the ISIS terrorist organization, which had arrived to the doors of Baghdad.  A fatwa had been issued, inviting Iraqi people of all faiths to combat the common threat.  Ferocious battles had been seen between the terrorists and the popular gatherings, which had helped the armed forces of Iraq to retake several towns.  Under the supervision of the Government, the military gathering had the same rights as other parts of Iraqi armed forces. 

On the question of the Ministry of Human Rights, a delegate said that human rights divisions had also been set up within various Iraqi Ministries.  Those offices were well aware of the Iraqi commitments in the field of human rights.  The Ministry of Human Rights itself had been abrogated.  A national human rights institution had been established in line with the Paris Principles.  The Commission could receive complaints from individuals on previous and current violations.  In 2014 and 2015, dozens of cases of enforced disappearances had been submitted to the Commission.

Regarding the bill on enforced disappearances, it was explained that certain procedures had to be followed before it could enter into force.   Once the law had been approved by the Parliament after three readings, it was presented to the President for his signature.  It was then forwarded to the Ministry of Justice and published in the official gazette.  After 2003, Iraq had become a State committed to safeguarding human rights in line with international standards.  The bill was currently under the review of the Ministry of Human Rights and the Ministry of Justice, with the view of ensuring that Iraq complied with the Convention to the fullest degree possible.  Its provisions were presently being considered.  If it entered into force, it could be abolished or amended only through another act.

Judges in Iraqi courts had to take into consideration provisions of the Convention.  Judges preferred to refer to national laws rather than international conventions.  When a convention entered into force in Iraq, it had to be approved by a national law, which was a precondition for its application.  The Convention had entered the Iraqi legislation through a domestic act, which was why it was not distinguished from other domestic laws.  The Iraqi legal system was based on the Latin law.

Verifications were carried out to ensure that only persons suspected of committing enforced disappearances were arrested.  Once somebody was arrested,  he was presented to a judge. Relatives should know the whereabouts of the detained person. The legal counsel of that person also needed to have contact with him.  An arrested person was submitted to the authority of the Ministry of Justice, but if no charges were raised, the person would be released. 

Most cases of enforced disappearances, especially now, following the incursions of ISIL, involved women and children, as men were often killed.  There was no distinction within the Iraqi legislation with regard to the victims, and the perpetrators were judged in the same manner.  There was an additional social stigma for the perpetrators if victims were children and women.

Law and order officers could operate only after undergoing several training courses, the delegation said.  The Ministry of the Interior and the Ministry of Defence ensured that their employees were aware of the need to safeguard human rights.

There was a general database which would serve to provide information on all arrested persons throughout the territory of Iraq.  The reason, time and place of the arrest were all included there.  The Government had been unifying registers of detained persons, which had led to the creation of a unified register.  The same was the case for Kurdistan.

Often times, the spouse and the children of a disappeared person wanted to have him declared as deceased so that they could receive benefits, and the spouse could be considered as a widow and remarry.  The four-year period started from the official notification of the disappearance of the individual and its publication in the official journal.  From the moment the person was declared deceased, heirs could have their share of inheritance pursuant to the inheritance law.

Responding to the questions on enforced disappearances prior to 2003, the delegation said that there had been some 16,000 cases, which were a priority for the authorities.  The Iraqi authorities dealing with enforced disappearances had the responsibility of identifying those responsible.  Moral reparation was provided to the relatives of the disappeared, which would, for example, make it easier for them to access the education system. 

The Iraqi Criminal Act of 1969 talked about personal competency under the law; any Iraqi national who had committed a crime abroad or had been an accessory to a crime was subjected to domestic criminal law.  If they were abroad, they could be prosecuted in accordance with the law of the country where they resided. 

The Ministry of Defence had established a council which judged cases of military personnel involved in enforced disappearances, after which they were submitted to military courts.  There was, thus, no favouritism towards military personnel.

On the Amnesty Law, a delegate said that an individual who had committed a violation and resided in Iraq could see the error of their ways and return to public life and once more begin to live their life decently.  The possibility of redemption was offered, which was why such a law was promulgated.

If one parent was deceased, a law prescribed that the guardian for the child was appointed by court order.  Once the child had reached the age of majority, he no longer had a guardian.

Regarding the possibility of the relatives of detainees visiting the person in prison, the delegation stated that the detainees on remand, without a court ruling, could be in contact with their relatives and benefit from the assistance of legal counsel. 

A delegate explained that individual complaints under international conventions were not allowed in Iraq at the current time.  Iraq was considering the matter in a positive way.  If a complaint was received from the Committee, it was forwarded to the competent Ministries or the High Judicial Council. 

Responding to the question on the crimes committed in territories under the control of  Daech [ISIS], the delegation stated that the central criminal court received communications and complaints on the ongoing crimes.  Sentences had been handed down to some convicted persons. 

The delegation informed that more than 3,500 corpses had been discovered in mass graves.  They had been buried in new graveyards, and identified through blood samples with the help of forensic medicine.  A biological database was available, through the “information before death programme”.   Death certificates were issued by the Supreme Criminal Court.  It was explained that the number of forensic experts at the moment was less than was required. 

The competent Iraqi authorities were applying laws vis-à-vis persons who had breached the residency rules.  No person could be subjected to refoulement if there were reasons to believe that they could be subjected to torture or enforced disappearance.

Enforced disappearance was considered an aggravated crime and led to the prison sentence of 10 years to life imprisonment, a delegate said.

A delegate from the Kurdistan Regional Government said that the Region’s military units – Peshmerga Forces – were under the authority of the Ministry of Peshmerga, which had been established legally.  The Iraqi Federal Law empowered the Kurdistan Regional Government to establish and form its own security forces.  The Peshmerga were at the forefront of the war against the brutal terrorist organization Islamic State of Iraq and Levant.  Any cases of abuse were individual and not a systematic form of abuse; such cases led to immediate legal action.  The Pershmerga Forces had not burned down or demolished Sunni Arabs’ houses and land. 

Since June 2014, 322 individuals suspected of terrorism had been detained and processed through the Anti-terrorism Department and transferred to Asayesh detention facilities in Erbil.  Some of those detainees were waiting for trial.  They would be allowed to have a lawyer and their families were allowed to visit.  They were not mistreated. 

On the Yazidi suffering, the delegate stated that more than 5,600 Yazidi men, women and children had been kidnapped by ISIS.  The Kurdistan Regional Government had dedicated a substantial portion of its budget towards paying ransom for the release of hundreds of Yazidi women.  Cash assistance was provided to the internally displaced persons.  As of March 2015, 60,000 individuals had been provided with free legal assistance.  Significant resources went into the provision of health care.

Nobody could be arrested without a warrant of arrest issued by the court.  The accused were arrested solely by use of handcuffs and no other restraining techniques.  The United Nations Assistance Mission for Iraq had visited 53 detention centres in the Kurdistan Region in 2013.  There were no secret prisons or detention centres.  Torture was prohibited.  Hundreds of prison staff had received training on inmate rights. 

DNA investigations could be carried out in Kurdistan and Baghdad, a delegate explained. Baghdad and Kurdistan investigation units had very good cooperation in that regard.

Follow-up Questions
 
Mr. Hazan said that the Committee was worried about the large number of cases of enforced disappearances in the State party.  Allegations had been received of enforced disappearances of up to 200,000 persons over the past 10 years. 

The problem of secret detention seemed to continue to be a wide-spread problem.  It was a problem which could lead to further cases of enforced disappearances.  It was important for the facts to be established; communication with families and legal counsels had to be ensured. 

Reparations seemed to be offered not in a wholesale, but rather in a piecemeal fashion, the Expert noted.  Reparations and compensations should be extended to later-date disappearances, in addition to those disappeared before 2003. 

Mr. Huhle reminded that the delegation had 48 hours to provide additional replies in writing.

Concluding Remarks
 
MOHAMED SABER ISMAIL, Permanent Representative of Iraq to the United Nations Office at Geneva, reiterated Iraq’s full commitment to the protection and the strengthening of human rights in the country, and the reinforcement of the application of international human rights legal mechanisms.  It was hoped that the delegation had provided a clear overview of the country’s efforts in dealing with the issue of enforced disappearances.  The Committee was thanked for its fruitful cooperation.  Constructive feedback by the Committee would be followed by Iraq with great interest. 

EMMANUEL DECAUX, Chairperson of the Committee, thanked the members of the Iraqi delegation, who had entered the spirit of the constructive dialogue.  He understood that the current situation in Iraq was complex, but it was worth remembering that Iraq had been among the first States to ratify the Convention.  Numerous challenges, including those of monitoring, remained in place.  It was hoped that the cooperation between the Committee and the State party on urgent appeals would continue.  Iraq was encouraged to make declarations under Articles 31 and 32.  Concluding observations would be adopted by the Committee next week.

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