Between June 2014 and December 2017, the so-called Islamic State of Iraq and the Levant (ISIL) carried out a campaign of widespread violence and systematic violations of international human rights and humanitarian law against the Iraqi population. These acts may amount to war crimes, crimes against humanity, and possibly the crime of genocide, under international criminal law. Iraq has been on the forefront of the fight against ISIL. It also made considerable efforts to ensure accountability for the atrocities committed against Iraqis by ISIL fighters. From January 2018 to October 2019, the judiciary processed over 20,000 terrorism-related cases, with thousands pending as of January 2020. In their pursuit of justice, Iraq has stated its commitment to uphold the right to a fair trial.
This report, Human Rights in the Administration of Justice in Iraq: trials under the anti-terrorism laws and implications posed to justice, accountability and social cohesion in the aftermath of ISIL, was prepared by the United Nations Assistance Mission for Iraq (UNAMI) through its Human Rights Office and the Office of the United Nations High Commissioner for Human Rights (OHCHR). The report covers the period of 1 May 2018 through 31 October 2019. The findings presented in this report are based upon independent monitoring by UNAMI of 794 criminal court hearings in Anbar, Baghdad, Basra, Dhi-Qar, Dohuk, Erbil, Kirkuk, Ninewa, and Wassit governorates. The majority of the trial hearings attended (619) involved men, women and children facing charges under Iraq’s anti-terrorism laws. The report includes analysis of observations of investigative hearings and interviews with judges, prosecutors and defence lawyers.
The findings of the report should be considered in the broader context of UNAMI’s work to promote and protect human rights in the criminal justice system, including in efforts to seek justice for widespread atrocities committed by ISIL against the population. The report aims at encouraging judicial authorities to conduct a thorough review of trial and sentencing practices, with a view to strengthening criminal justice procedures, in line with the Constitution of Iraq and the State’s obligations under international law.
UNAMI generally observed efficiency, structure and order in the conduct of the judicial proceedings it monitored. The hearings attended proceeded in an orderly manner, with judges routinely prepared with investigation files and defence counsel present during almost all hearings attended. Given the heavy caseload of ISIL-related prosecutions, the consistent pattern of well-organized trial proceedings was notable.
Nonetheless, the findings also show serious concerns that basic fair trial standards were not respected in terrorism-related trials. The main areas of concern include:
Violations of fair trial standards relating to equality before the courts and conduct of hearings – in particular as a result of ineffective legal representation, lack of adequate time and facilities to prepare a case, and limited possibility to challenge prosecution evidence – which cumulatively placed the defendant at serious disadvantage compared to the prosecution.
The overreliance on confessions, with frequent allegations of torture or ill-treatment that were inadequately addressed by courts and that on their own constitute a human rights violation, further contributed to the disadvantaged position of defendants.
Prosecutions under the anti-terrorism legal framework – with its overly broad and vague definition of terrorism and related offences – focused on ‘association’ with or ‘membership’ of a terrorist organization, without sufficiently distinguishing between those who participated in violence and those who joined ISIL for survival and/or through coercion, and with harsh penalties that failed to distinguish degrees of underlying culpability.
Under anti-terrorism laws, the death penalty is mandatory for a wide range of acts that do not meet the ‘most serious crimes’ threshold, which is necessary for imposing such a sentence. The overall findings also indicate the imposition of the death penalty following unfair trials.
Practical restrictions on the publicity of hearings, lack of victim attendance in proceedings and overreliance on a charge of ‘membership’ of a terrorist organization limited the possibility for victims and their families, as well as the general public, to see the perpetrators being held to account, and failed to expose the full range of crimes committed.
The report provides a series of recommendations to the Government and the High Judicial Council aimed at supporting its efforts to hold to account perpetrators of serious crimes, including terrorist acts, while ensuring the protection of fundamental human rights.
In the broader context, the protection of human rights in the administration of justice also serves as a tool of conflict prevention. Compliance with procedural guarantees and fair trial standards helps prevent the emergence of new grievances, both real and perceived, and addresses conflict drivers, such as structural discrimination, injustice and impunity that had led individuals to choose violence and enabled ISIL to find support in Iraq.