Baghdad, Iraq, 24 November 2017
I conducted an official country visit to Iraq from 14 to 23 November 2017. I would like to thank the Government of Iraq for their invitation to visit the country, and the officials I met for their availability and support. I would also like to thank the United Nations Assistance Mission for Iraq (UNAMI) and its Human Rights Office for the invaluable support received before and during my visit.
I would like to express my deepest condolences to all Iraqis who have lost loved ones, and extend my deepest sympathy to all those who have been subjected to other forms of violence. Over the course of my mission, I came to admire the strength and resilience that Iraqis show in the face of the most severe adversity, including atrocious human rights violations.
During these past two weeks, I visited Baghdad, Erbil, Najaf and Fallujah. I held meetings with a wide number of government authorities, religious leaders, international organizations, women and men working for human rights, activists, journalists, LGBTI persons, internally displaced women and men, and many victims of human rights violations. All extended to me a warm welcome to Iraq and provided vital information and opinion. I particularly wish to thank high-level officials of the Government of Iraq for their availability and the open and frank discussions, which contributed to the success of my visit.
The aim of my visit was to examine responses to the multiple violations of the right to life that have been perpetrated in Iraq, in particular those which occurred after the so-called Islamic State of Iraq and the Levant (ISIL) took control of large parts of the country and subjected thousands of children, women and men to inconceivable suffering. The mission covered thus the past three years of the on-going conflicts in Iraq. My mission also included discussions on the official responses to allegations of violations to the right to life by Iraqi security forces (ISF) and associated forces. My focus was on the steps taken - judicial measures, policies and action implemented - to hold ISIL and other actors accountable for these massive and grave violations.
I will focus this end-of-mission statement on some of the major systemic issues and challenges that I have identified.
At a cross-road: the challenges of post-conflict transitional justice
Iraq has an incredibly complex recent and longer history. Over the last fifteen years alone, the country has seen several violent conflicts, along sectarian lines and involving foreign countries and their troops. Regional and international conflicts continue to play out in the country. Iraqi society itself eludes simple description, with religious, ethnic and tribal identities intersecting and interweaving in complex arrangements.
As the military threats from ISIL recede, a new range of challenges are emerging; some are all too longstanding; others a direct result of the last armed conflict.
The country is embarking on a very sensitive transitional phase, which includes plans for a democratic election to be held in April 2018. Transitional phases in such circumstances are invariably both complex and fragile. They present many opportunities, including the opportunity to break with the past. But they come with many risks and dangers, including the risks of old tensions arising where these have not been mended, of grievances that were set aside for the duration of the conflict, returning; of the simmering resentments and deeply felt suffering that are the product of the conflict boiling over.
In Iraq, the immediate challenges come on top of several layers of unanswered quests for justice and truth, including those linked to the Saddam Hussein era, the US invasion of 2003, the Iran-Iraq war, and the sectarian conflicts of the beginning of the 21st century. The mass graves of each of these eras are yet to be excavated and the persons buried there are yet to be identified.
The events of the last month, following the Kurdish declaration of independence and the subsequent October 16 military operations have further complicated this extremely complex situation, as is exemplified by the existence of “disputed territories” between the Federal authorities and the Kurdish regional government (KRG). As of the beginning of November, some 183,000 people had been displaced and fled to the Kurdistan Region of Iraq (KRI).
All these dynamics loom large in the justice-deprived landscape of Iraq “post-ISIL” while justice imperatives run many layers deep in Iraqi history.
A number of imperatives press their claim on Iraq: re-establishing peace and security throughout the country, including through the integration of all forces into a united Iraqi Armed Forces or their disarmament; rebuilding in the wake of massive destruction; undertaking of reconciliation measures in areas where mistrust and fear still predominate, and providing justice to the victims and survivors of violations of human rights and humanitarian law, including by holding those responsible for such violations accountable. Transitional justice (the effort to redress human rights violations) is thus a major imperative for the months and years ahead.
International human rights and humanitarian law impose a set of obligations on States during and after situations of conflict, including the duty (a) to investigate, prosecute and punish those accused of serious human rights violations; (b) to reveal to victims and society at large all known facts and circumstances of past abuses; (c) to provide victims with restitution, compensation and rehabilitation; and (d) to ensure that repetition of such violations is prevented1. International human rights and humanitarian law also underline the positive obligation to search for those who have been/gone missing or dead during or after the conflict, to facilitate the reunification of families and to inform individuals of “the fate of their relatives.”
The Government of Iraq may consider, if it has not done so already, developing, with the assistance of international experts if required, a transitional justice strategy, consisting in identifying the transitional justice goals and short-term and long-term priorities. These may include identifying mechanisms to strengthen investigation, prosecution and trials, and reparation programs, and developing sound approaches for truth-seeking and collective memory.
While the Government, including federal, regional and local officials, is ultimately responsible for transitional justice, a range of other actors can play a crucial function in ensuring these obligations are effectively and peacefully implemented. Religious and tribal leaders in particular must take stock of the transitional challenges, present and forthcoming, and respond to them accordingly, providing guidance to their members and followers, grounded on the foremost necessities of justice, reconciliation, peace and security. Almost three years ago, on 12 February 2015, the Grand Ayatollah Ali al-Sistani issued a fatwa on “Advice and Guidance to the Fighters on the Battlefields,” a model of foremost importance by its content and influence. The new transitional phase demands of all religious leaders in Iraq that they exercise similar foresight and positive influence over the behaviours of all actors, at national and local level, and support reconciliation and transitional justice efforts.
A massive tragedy
The conflict of the last three years has exacted a terrible toll on the people of Iraq. The signs of pain and suffering, like the evidence of physical destruction, are everywhere to see.
Executions committed by ISIL are horrific in nature and scale. They include the Speicher massacre of 1700 air force cadets in Salahaddhin; the mass killing of 700 tribe members of Albu Nimer in Anbar province; mass killing of civilians in Mosul, Fallujah and other cities under ISIL control, including of members of religious minorities; the suspected use of chlorine and mustard gas, etc.
The estimated civilian casualties include a minimum number of 38'280 killed and 74'686 injured from November 2012 until July 20172. Estimates regarding the number of missing persons run from a 250,000 to one million people missing from decades of conflict and human rights abuses3. There are 3.2 million internally displaced, 11 million in need of humanitarian assistance4.
Justice for the violations committed: an appropriate legal framework
The government has embarked on a large judicial endeavor to hold ISIL members to account. My mission focused in part directly on understanding the process and outcomes of these important efforts. It also focused on efforts undertaken by the Government to address all other violations of the right to life, including those committed by its own security forces, and by other national and international actors.
To date, at the time of writing, alleged ISIL members are charged under the Anti-Terrorism Law No. 13 of 2005 (thereafter CT law). In my opinion, the law is both vague and overly broad. It encompasses serious and petty crimes, ranging from killings to vandalism. The list of crimes for which the death penalty is not only applicable but also mandatory is extensive and includes acts whose gravity falls below the threshold of the “most serious crimes” necessary to impose such a sentence.
In Mosul alone, official documentation shows that 4,383 alleged ISIL members are currently detained. 2,019 detainees have been sent to Baghdad. 1,004 have been released. 413 investigations completed, sent to the central criminal court
In my discussions with officials from the Executive and Parliament, I raised questions about the appropriateness of the CT law, in general, given its textual limitations, specifically and most urgently as it is applied to the crimes committed by ISIL.
ISIL perpetrated serious and systematic human rights violations, war crimes and crimes against humanity in the territories it controlled and probably beyond. None of this can be seriously and adequately addressed through the CT law, which was not designed to respond to such human rights violations or violations of international humanitarian law. The people of Iraq, the victims and survivors of the conflict, deserve a legal framework and a judicial response, that properly reflect the nature of the crimes committed, which are on par with atrocity crimes investigated and tried in other parts of the world.
The gravity of the crimes committed by ISIL demands that all necessary steps be taken by the relevant Iraqi Federal authorities, and those in KRG, to amend this national legislation to ensure domestic jurisdiction over international crimes. This may require the establishment of special investigatory teams, special tribunals and the appointment of judges specifically trained to address these international crimes. In my view, these measures ought to be a foremost priority.
I was also informed that Human Rights Courts (16 in the country) may rule over human rights complaints, submitted by the Human Rights Section of the General Prosecutor, following an initial review of the cases by the Iraqi High Commission for Human Rights. It is unclear, however, whether such Courts actually function and have delivered any rulings.
A related issue, raised by a number of people with whom I met, concerns the nature of the investigations into these crimes conducted thus far, and the extent to which they have included due consideration of witnesses and survivors5. Some of the victims I have met, including those who are witnesses to arbitrary killings or are family members of victims of arbitrary killings, told me how they had filed complaints with their local police, sometimes several years ago. Yet thus far, to the best of their knowledge, no official investigation into their claims had been initiated.
Other victims or witnesses have not filed complaints due to their displacement, fear and/or lack of trust in the authorities. Many may be prepared to provide testimonies or indeed evidence, if they are assured and reassured that the process and officials involved are trustworthy, and that they will be protected against retaliations.
Transitional justice is largely based on the actual participation of victims and on positive perceptions of this participation within the public at large and communities particularly victimised by the conflict6. Participation provides a measure of recognition to victims. I fear that in Iraq, as of now, these have not yet been realised.
Extrajudicial and Arbitrary Killings by Iraqi forces
A number of arbitrary killings and disappearances linked to the Iraqi Security Forces, including the Popular Mobilization Forces (PMF) have also been brought to my attention throughout the mission. These include the killings of fighters under suspicious circumstances (e.g. while surrendering and hors de combat) and the killings or disappearances of civilians, including at checkpoints. Some of the incidents reported to me included: killings in Iman Weiss village, in August 2014; Killings of at least 56 Sunni Muslims in Barwana; revenge killings in Muqdadiya and Ba’aquba; some 600 disappeared men and boys from the Mehemda tribe at Saqlawiya, near Fallujah. In addition, there has been a number of allegations concerning tribal militias or militias linked with ethnic or religious groups.
The PMF has played an important role in the military defeat of ISIL. In 2014, Iraq’s most senior Shia cleric, Grand Ayatollah al-Sistani issued an edict calling on all able bodied men to protect the homeland against ISIL. A number of armed groups emerged and joined forces under the banner of the Popular Mobilization Forces. PMF and “Militias” Officials I have met insisted that the PMF is well integrated, responding to a single chain of command and that in the future the vast majority of PMF fighters will be integrated in the Iraq’s regular armed forces.
Officials also insisted that they have developed and implemented mechanisms of accountability, including issuance of clear instructions to all fighters, criminalizing any violation against civilians, public and private property, a directorate of security and discipline staffed with investigators, and a detention center in Baghdad, holding up to 200 PMF fighters, accused of various crimes. Officials have recognized that individual fighters have committed mistakes but that these are neither condoned nor in any way organized at leadership level. They also strongly denied holding any secret detention center.
I welcome these measures and the assurances that I was provided. However, it remains unclear how effective they are at holding individual PMF members to account for violations of International humanitarian or human rights law. In none of the aforementioned cases was anyone brought to justice for the grave violations, including none for extrajudicial killings and disappearances. The scale of some of the allegations in terms of the number of presumed victims also raise many questions regarding the role of commanders, and other officials, including those charged with investigating these allegations.
For instance, almost 18 months after their disappearances, nothing is known of the whereabouts of some 707 men and boys in Saqlawiya7 who were last seen by a plethora of eyewitnesses in the custody of PMF members that witnesses identified, due to uniforms and flags, with Kata’ib Hezbollah. A few days after their disappearances, on 6 June, Iraqi Prime Minister Haider al-Abadi announced publicly the establishment of a committee to investigate “any violations of the instructions on the protection of civilians” and issued “strict orders” to hold accountable those responsible for any abuses. To this day, the results of this investigation have not been made public. Families who gave their accounts to the investigation committee have not heard a word back more than a year later, adding to their feelings of despair and uncertainty.
The international community has recognised the particularly egregious violations committed by ISIS against the people of Iraq, including through resolution 2379 adopted in September 2017 by the UN Security Council. The resolution further mandates the UNSG to appoint an investigative team to support domestic efforts to hold ISIL accountable by collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide committed by the terrorist group ISIL.
In my opinion, this resolution places a particular onus and obligation on the Iraqi State: to investigate all allegations of violations of international humanitarian and human rights law, committed by its own forces, to hold those responsible to account, and to provide remedies and reparations to the victims. This obligation must be implemented openly and transparently. As with regard to ISIL crimes, these too may require the establishment of special courts and judges trained in handling such allegations.
Allegations of extrajudicial killings in Kurdistan region
As reported by several human rights organizations, in recent years several Kurdish journalists have been killed both in and outside of Kurdistan region of Iraq. On 30 October 2017, Mr, Arkan Sharifi, a cameraman for Kurdistan TV, was stabbed to death in front of his family in Daquq. Mr. Wedat Hussein Ali was found dead in Malta district of the city of Duhok on 13 August 2016, showing signs of torture. Mr. Kawa Ahmed Germyani was shot dead in Kalar on 5 December 2013. Mr. Sardasht Osman was kidnapped on 3 May 2010 in Erbil, and later found dead.
Investigations for the killings of Kurdish journalists have resulted in little or no accountability, leading to the impression that the powerful figures the journalists criticized in their work might be behind their killings and enjoy the protection of the justice system. Other common attacks include threats, intimidation and assaults.
In 1988, thousands of men, women and children were victims of enforced disappearances during the Anfal campaign, many of which ended in extrajudicial executions. Members of Saddam Hussein’s regime were convicted for enforced disappearances as a crime against humanity by the Iraqi Supreme Criminal Tribunal. The Kurdistan Regional Government has, through the years, supported the search and excavation of the mass graves of victims of Anfal campaign and provided support to the families and heirs through education grants, lands and housing, among others.
In the current conflict with ISIL, boys and men who have fled areas under the control of ISIL have faced arbitrary arrests by Kurdish security forces, and in some cases also become victims of enforced disappearances.
I was told by multiple reliable sources that authorities have rejected requests by local NGOs and international organisations to monitor the detention of tens of juveniles held by Kurdish authorities under the regime of the counter-terrorism law, placing such juveniles in an opaque, if not secret, regime that can make them vulnerable to further abuse and human rights violations, including of their right to life.
A victim-centred approach to investigations and documentation
My mission has highlighted two intersecting, yet, distinct mechanisms and processes with regard to the provision of justice to the victims of the last three years conflict: the formal investigations into individual responsibilities and the trials of perpetrators (criminal justice approach), and the documentation of all crimes committed, including those amounting to crimes against humanity and genocide(also referred to as a Truth Commission approach). Both should be predicated on the active and safe participation of witnesses and victims, their recognition, and acknowledgement of the harm and suffering that they have endured.
With regard to the former objective, no doubt investigation and prosecution of the multiple and large-scale violations of the last three years is a complex task. However, if these challenges are not met and accountability is limited to the crimes of ISIS and CT trials, or is not ensured at all, this will result in widespread impunity. The consequences for Iraq’s future peace and stability will have serious adverse repercussions indeed.
As highlighted by experiences with post-conflict transitional justice, “if formal institutional mechanisms are not able to deliver results at the scale cases call for, other forms of intervention can provide recognition to victims and promote social integration8.” An option will be to initiate a pro-active documentation of violations, based on the safe participation of victims. The government, with the support of international actors and civil society, could take steps to establish a documentation / truth-seeking process to collect testimonies and evidence. This process may or may not include the preparation of case-files so that formal investigations could proceed at a later date, and formal accountability delivered.
Documenting violations: the example of the Commission of Investigation and Gathering Evidence (KRG)
One step in particular, in that direction, should be highlighted and commended. In September 2014, the KRG established the High Committee for the Identification of Genocide Crimes, which include a Commission of Investigation and Gathering Evidence.
The Commission, headed by an investigative Judge, has documented a multitude of ISIL crimes committed against all religious minorities, including mass-killings, disappearances, rape and enslavement, the use of child soldiers, forced displacement, etc. They have done so by interviewing dozens of survivors, victims and witnesses; excavating mass graves; exhuming bodies; undertaking sound forensic work, etc. From this they have been able to identify a range of perpetrators.
That Commission is playing a crucial role in terms of documenting atrocity crimes committed. To date, their documentation efforts have not led to judicial processes and outcomes for lack of an appropriate legal framework, which would permit issuance of arrest warrants and charging of alleged perpetrators. The Yezidi community is waiting for a “Special Court” to be established so that perpetrators of crimes against members of that community can be held to account. To allow for such an outcome, the KRG must too undertake urgent legal reforms aiming at integrating international crimes within the domestic system.
UNDP is also initiating a new program of work seeking to preserve the stories of victims as part of a victims’ support strategy. The program, to be implemented throughout the country in 2018, would involve collecting and documenting victims and survivors’ testimonies about the crimes they endured and witnessed.
I recommend to the Government of Iraq that they consider devising and initiating documentation efforts for all violations for the whole of Iraq, or that they provide unbiased support to documentation initiatives by others.
Such documentation efforts should consider the entire range of violent deprivation of the right to life that has taken place (not only that of genocide), perpetrators (not only ISIL) and communities and victims (not only religious or ethnic minorities). For instance, it was reported to me that members of the Sunnis communities were also heavily victimised by ISIL but their plight may not be equally understood as that of other communities and groups.
Accountability to Women Victims / Survivors of ISIL human rights violations
Women from all communities in the territories controlled by ISIL were the subject of torture, rape and sexual slavery. However, the systematic use of sexual violence has been documented only as far as the Yezidi women are concerned. This is for a number of reasons, including Yezidi women speaking up and under of the encouragement and protection of a fatwa issued by the Yezidi leader regarding the community’s treatment of Yezidi women and girls who have suffered sexual violence and enslavement.
Women from other communities should be equally encouraged, supported or protected, if the violations they have endured are to be well documented and accounted for. I have been told repeatedly that Shia or Sunni women, for instance, have not reported their ordeal, and many are silent about what they have endured out of shame or social pressure. On the positive side, I should stress that many women from these communities are known to be part of various local, national or international social and medical support programs that ensure full confidentiality.
Based on the example of Yezidi women, it seems that religious and tribal leaders ought to take all necessary steps to ensure that women and girls in their communities are empowered to file complaints, participate to documentation efforts, and seek justice for the crimes committed against them, and that they are fully protected and supported when they do so.
Management of Mass Graves
As a result of mass extrajudicial executions and arbitrary killings during Saddam Hussein’s regime, the sectarian violence that followed, and ISIL’s wide spread violence and killings, the bodies of up to an estimated one million persons are buried in hundreds of mass graves scattered across Iraq. From June 2014 to now, some 94 mass graves have been discovered which are thought to be of people executed by ISIL. There is no doubt that more mass graves will be discovered in the future.
The indignity of this brings prolonged suffering to their, jeopardizes accountability for the violations committed and thus questions and undermines any prospect of an appeased future for Iraq.
The sheer scale of this means almost every Iraqi directly or indirectly affected. For all of those and for the sake of the country’s collective memory, identification, protection and adequate management of the sites of these mass graves must be an urgent priority for the Government.
I learned of efforts being carried out by the Medico-Legal Institute, the Mass Grave Department, the Martyrs Foundation, and the Ministry of Martyrs and Anfal Affairs in Kurdistan, with the support, among others, of the International Commission of Missing Persons and the International Committee of the Red Cross. I was very impressed by their commitment and their professionalism, despite the many challenges they face in the excavation of mass graves, and in identification of the many bodies, including through DNA testing. The lack of proper storage systems and facilities is particularly appalling.
Also, many mass grave sites lack the necessary protection, and are left exposed to damage by the climate elements and subjected to uncontrolled excavations. This leaves little to salvage when the teams of forensic archaeologists and anthropologists start their work. Additional training, equipment and funds are required to accelerate and strengthen the processes of discovery, exhumation and identification. Professionals of the Medico-Legal Institute calculate that, at the current pace, it would take over 800 years to complete their task. Families cannot wait that long for the identification of their missing relatives, and neither can accountability for the violations committed, which may include war crimes and crimes against humanity.
Supporting the Iraqi institutions, in Baghdad and the regions, responsible for the handling of mass graves must be an absolute priority for the country and for the international community. Such support should include strengthening and better equipping the DNA labs, enhancing the reliability of the collection and processing of samples, securing excavation sites including by providing 24 hours security, etc.
The Plight of the Relatives of Disappeared
All communities have experienced enforced disappearances. The vast majority of those missing remain unaccounted for. As well documented around the world, the uncertainty about the fate of disappeared persons constitutes a source of deep suffering. It also raises many financial, administrative and legal obstacles related to the loss of income, difficulties in accessing financial transactions and property, or remarriage, etc.
In and around Fallujah for instance, individual women have lost up to 15 male members of their immediate families, including their husband, sons, and brothers, the youngest being 13 or 14 years old. Those left behind are facing extreme hardship as a result, having lost their main breadwinners.
Within the Yezidi community, it is estimated that some 6,450 men, women and children have disappeared. Those I have spoken with believe that most of the Yezidi men who have disappeared have been killed and their bodies placed in individual or mass graves. According to the Director of Yezidi Affairs in the Kurdistan Region of Iraq, as of 22 October 2017, 2,013 Yezidi women and girls who were kidnapped were freed from ISIL, while 1,535 remain enslaved in territories under the group’s control in both Iraq and Syria. Following the liberation of Mosul, and Ramadi, the community was expecting to find many of those abducted. But the number of those found did not match the expectations. Families are still left desperately looking for their children, including amongst those detained as ISIL child soldiers.
I was struck by the deep and largely unmet needs of the relatives of disappeared. Finding the whereabouts of their loved ones is crucial. It is critical for their peace and thus too for the peace of their communities and of Iraq as a whole. In a number of cases, this will require excavation of mass graves. This also means there is pressing need for greater capacities for DNA testing and tracing, more comprehensive DNA databases, and it also means that these systems are protective of the right to privacy.
It also means more concerted efforts to tracing abducted children and women, including by reaching out to neighboring countries where abductees may be present. It further requires an appeal to those who have played a role in these disappearances to come forward, and help alleviate the suffering of the families by providing any information they have on what took place and on the disappeared whereabouts.
There are other pressing needs as well, related to the missing, including legal and financial needs. Iraqi law provides for something amounting to a “certificate of absence”, issued by a Judge, based on police report. It is valid for three years, at the end of which a death certificate may be issued9. Families are also provided compensation or reparation for the disappearance of their members. Preliminary research seems to indicate that certificates of absence are not provided to the families of suspected ISIL members who have disappeared, including for those who have disappeared following surrendering to Iraqi forces.
Killings of women (“Honor” killings)
My mission included a focus on so-called “honour killings,” the arbitrary deprivation of life of women (and some men as well) by family members or tribal members, because they are deemed to have brought “dishonour” on to the family or tribe.
The safeguards against arbitrary deprivation of life apply to killings by non-State actors. Iraq incurs international responsibility when it fails to act with due diligence to prevent, investigate, sanction and offer reparations for honour killings and other gender-based crimes. There is little doubt that article 409 of the Penal Code, which greatly mitigates the punishment for men who kill women for “honorable motives” demonstrates, at best, a failure to prevent honour killing. At worse, it may be seen as failure to sanction resulting in the impunity for such acts.
I was also greatly alarmed to discover that organizations seeking to provide shelters to women fleeing domestic violence or the threat of honour killings may themselves be targeted. I heard of instances of police raids on NGOs or the shelters and of their staff being intimidated. In addition, licenses for private shelters ran by NGOs have been denied, with the shelters and the NGOs running accused of encouraging prostitution.
I cannot stress enough that the failure to amend article 409, coupled with the harassment of those working to protect women and girls against honour killings and the absence of authorisation for running shelters – indicates that the State is not only failing to act with due diligence; it is also failing to respect women’s right to life.
The situation for women in the Kurdistan Region is slightly better, owing to an appropriate amendment to the Kurdish penal code and to a range of measures taken to strengthen the investigation into the “honour” killings of women, such as the obligation of forensic investigation into all cases of death of women. However, I was told that women in the Kurdish region remain vulnerable to killings due to patriarchal mentality in societies, including within the judicial sector.
Killings of LGBTQI
I have received information about a number of killings of men on the basis of their appearance or sexual orientation, including the recent killing of the actor and model Karar Nushi, in Baghdad on 2 July 2017. In response to these killings, the Government established an LGBTQI committee however it does not appear to have resulted in stronger protection and prevention on the ground.
People whom I met reported frequent incitement to hatred against gay men, in public media and on social media, and told me of attacks against activists and NGOs supporting the human rights of LGBTQI. There is further fear that with the military victory over Daesh, the militias may turn their attention to other targets, including in the first place those perceived as engaging in immoral activities.
During my mission, I received allegations that "several thousand" persons on death row in Iraq. In 2016, there were 1,816 of them in Iraq excluding the Kurdistan region. But the number appears to have grown greatly, with ISIL fighters now being captured and undergoing trial. In 2017, so far, it is reported that at least 73 persons sentenced to death may have been executed.
Iraqi law provides for a number of procedural guarantees as far as the death penalty is concerned, as reflected by the Criminal Procedure Code No. 3 of 1971 and the 2017 Public prosecution Law No. 49. In practice, however, these guarantees are not implemented or they have proven insufficient to protect against abuses. UNAMI and others have documented violations of fair-trial standards in proceedings leading to death sentences, including death sentences given in cases where little evidence was available besides a confession that the defendant argued was made under torture. Death sentences against persons who were underage when they committed the crime they were being sentenced for have also been documented.
In all my conversations with officials, I have stressed that the risks of unfair trials and of resulting miscarriage of justice, which may result in arbitrary executions, are particularly high in a context such as that confronted by Iraq at the moment, characterised by the high number of suspects, an overstretched police and judicial sectors, the scale and extent of the violations committed, and popular emotions and demands.
In the Kurdistan region, an “informal moratorium” on death penalty was adopted in 2008. Since then, I was told that the death penalty has been carried four times. Officials have suggested that the moratorium is not under threat but pointed to popular pressures to resume death penalty in response to ISIL crimes.
The international community has a key role to play in assisting the Government of Iraq in its efforts to investigate and document violations committed by ISIL and, at a smaller scale, other parties to the conflict, including international forces.
Coalition Forces part of the operation “Inherent Resolve” have acknowledged the killing of at least 786 civilians in Iraq and Syria since the start of the operation in 2014, according to their own estimations10. Airstrikes conducted as part of the battle against ISIL in Mosul (and involving the Iraqi Air Force) caused a significant part of that number. Overall, the total number of casualties from airstrikes during the whole campaign for Mosul was 1091 killed and wounded. A single airstrike on 17 March 2017 killed at least 105 civilians. Of these numbers, the Coalition stated responsibility for 295 killed, 66 wounded and 36 missing.
The complexity and scale of the violence will make it difficult to reach the truth regarding each loss of life, but efforts for investigations and accountability must pair the challenges ahead. Every incident where there are reasons to believe civilian casualties may have occurred must be thoroughly investigated, and victims promptly compensated for their losses.
Security Council Resolution 2379 (2017) will provide much-needed international assistance for the collection, preservation and storage of evidence of crimes committed by ISIL. The international team, to be appointed by the UN Secretary General, will “support domestic efforts to hold ISIL (Da’esh) accountable by collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide committed by the terrorist group ISIL (Da’esh) in Iraq.” I welcome the reference to the international legal framework and the recognition that international crimes have been committed in Iraq.
I regret that the resolution limits international assistance to the investigation of violations committed by one party only. It misses an historical opportunity for comprehensive justice, where all possible international crimes would be impartially assessed, setting a strong foundation for restorative justice. Given the crucial need to build trust among all ethnic and religious groups in Iraq, any accountability effort must necessarily address the grievances of all groups affected by human rights violations and atrocity crimes.
I encourage the international community to support the Government in the necessary documentation and investigation into allegations committed by other parties to the conflict, including Iraqi Security Forces, and international forces.
It is also my duty as Special Rapporteur on extrajudicial, summary and extrajudicial executions to warn against the use of evidence collected, preserved or stored by the independent investigative team on trials that could result on the application of the death penalty in circumstances where it will amount to arbitrary killings. Given the reported shortfalls of the Iraqi justice system in relation to the death penalty11, such a risk runs very high.
1. See A/HRC/36/50 pp. 4-5
2. UNAMI, http://www.uniraq.org/index.php?option=com_k2&view=item&id=7640:un-casualty-figures-for-iraq-for-the-month-of-july-2017&Itemid=633&lang=en
3. ICMP https://www.icmp.int/where-we-work/middle-east-and-north-africa/iraq/
4. OCHA, http://www.unocha.org/iraq
5. The one exception I am aware of is the trial of the ISIL members suspected of participating in the massacre of hundreds of army recruits, the Speicher massacre. UNAMI issued a report stating that the trial fell short of international fair trial standards, including in the lack of an effective defence for the accused and failure to investigate allegations of torture. http://www.uniraq.org/images/SGReports/S2016396_27_April_2016.pdf
6. See A/HRC/34/62 and A/71/567
7. Figure based on UNAMI, Human Rights Report for Iraq, July-December 2016.
8. A/HRC/36/50, p.13
9. This information was shared by Ministry of Justice officials on the last day of the mission, during the formal debriefing session with Government officials.
11. Report on the Death Penalty in Iraq, UNAMI/OHCHR, Baghdad, October 2014 http://www.ohchr.org/Documents/Countries/IQ/UNAMI_HRO_DP_1Oct2014.pdf