December 14, 2008

I. Summary

The Central Criminal Court of Iraq (CCCI) is the country's flagship criminal justice institution. Yet it is an institution that is seriously failing to meet international standards of due process and fair trials. Defendants often endure long periods of pretrial detention without judicial review, and are not able to pursue a meaningful defense or challenge evidence against them. Abuse in detention, typically with the aim of extracting confessions, appears common, thus tainting court proceedings in those cases.

The failings of the court are all the more striking because of the stakes riding on it. The CCCI, established by the US-led Coalition Provisional Authority (CPA) in 2003, commands greater resources and broader authority than any other Iraqi criminal justice institution. Its mandate encompasses the critical task of coping with security-related criminal cases under the framework of Iraqi law, including the country's constitution and penal code. The CPA decree that established the court cites the importance of "development of a judicial system in Iraq that warrants the trust, confidence and respect of the Iraqi people."[1] Far from serving as a model criminal justice institution, the court has failed to provide basic assurances of fairness, undermining the concept of a national justice system serving the rule of law.

Human Rights Watch monitored court proceedings and met with judges, defense attorneys, defendants, and others. We found that the majority of defendants endured lengthy pretrial detention without judicial review, that they had ineffectual legal counsel, and the court frequently relied on the testimony of secret informants and confessions likely to have been extracted under duress. Judges in many instances acknowledged these failings and dismissed some cases accordingly, particularly those involving alleged torture, but the numbers of cases where such allegations arise suggest that serious miscarriages of justice are frequent. Human Rights Watch also monitored a limited number of cases involving children, and found that the authorities failed to hold them separately from adult detainees, and that their access to counsel and prompt legal hearings was no better than that of adults.

Structural problems, due in part to political fractiousness and inefficiency among Iraqi institutions, play a role in undermining the CCCI's proceedings. Iraq's parliament approved a General Amnesty Law in February 2008, in part to reduce the detainee population and thus the burden on the justice system. Persons accused of war crimes, crimes against humanity, and other offenses committed between July 1968 and May 2003 as outlined in the statute for Iraq's Supreme Criminal Tribunal would not be eligible for amnesty. The amnesty as passed would benefit persons held for more than six months without an investigative hearing, or for more than a year without referral to a court. Implementation, however, has lagged very seriously. The continued high number of persons in detention facilities has put serious strain on the CCCI, where dozens of judges hear thousands of cases a month, and further delayed judicial review of detentions.

A related concern is impunity for those responsible for torture and other ill-treatment of detainees. The Presidency Council, which must approve all legislation passed by the parliament before it becomes law, did not approve in late 2007 a measure that would overturn current law and allow for prosecution of Iraqi officials who have engaged in abuse of detainees.

Other failings reflect the fact that the Iraqi justice system, and hence the CCCI, does not have jurisdiction over individuals taken into custody by the US-led Multinational Force in Iraq (MNF). The MNF refers only a small number of the persons it detains to the CCCI for prosecution, and in those cases has exercised broad influence on proceedings since it provides physical security and plays a dominant advisory role, though that influence is less pronounced than in the court's early days. The refusal in particular of US military officials involved in detention matters to honor hundreds of decisions by the court to release detainees in US military custody has further undermined respect for the Iraqi judicial system. (This report does not address the status of detainees held by the US military as security detainees, except in the context of their transfer to the CCCI for prosecution.)

The current structural limits on the court's jurisdiction, independence, and capacity should not obscure the obligation of Iraq's judicial authorities to meet basic standards of fairness in court proceedings. Those standards are required under both international and domestic law.

Iraq's future as a society based on rule of law and respect for fundamental rights depends in large part on the establishment of a credible and sustainable Iraqi national criminal justice system embodying international standards of fairness. This idea underpins all projects of national reconciliation. Justice, administered impartially to all Iraqis, by Iraqis, would signify the country's break with the abuses of the Saddam Hussein era. Regrettably, some of the failings in the court's proceedings show disturbing continuity with that period. A legal culture that has not accepted concepts like the right to a credible defense and committed itself to meeting basic standards of due process links present criminal justice to past repression through the arbitrary exercise of authority.

[1] CPA/ORD/11 July 2003/13, as amended.