IV. Background

In July 2003 the Coalition Provisional Authority (CPA) established the Central Criminal Court of Iraq to hear cases involving serious criminal offenses, including terrorism, organized crime, governmental corruption, acts of sabotage, and sectarian or ethnic violence.[2]

The CPA based its authority to enact such sweeping legal measures and reforms on United Nations Security Council Resolution 1483, which recognized the United States and the United Kingdom as temporary occupying powers in Iraq. The resolution emphasized the binding obligations of the occupying powers under international law and affirmed explicitly the applicability of international humanitarian law.[3] The CPA's mandate from the United States and the United Kingdom outlined its role as a temporary governing authority in Iraq.[4] Based on its interpretation of the mandate outlined in Resolution 1483, the CPA issued Regulation 1, which laid out the CPA's understanding of its own authority.[5] According to Regulation 1, CPA Regulations and Orders took "precedence over all laws and publications to the extent such other laws and publications are inconsistent."[6]

The CCCI as framed by Order 13 of April 2004 comprises an investigative court and a felony court.[7] Both chambers function under legislation drafted and revised during the period of Baath party rule: the Iraqi Criminal Procedure Code of 1971, as amended, and the Iraqi Criminal Code of 1969, as amended. Additionally, juvenile detainees are subject to the Iraqi Child Welfare Law of 1983.

While the jurisdiction of the CCCI is concurrent with local criminal courts, the CCCI has nationwide discretionary investigative and trial jurisdiction "over any and all criminal violations."[8] The order establishing the court indicated that the CCCI should concentrate its resources on the most serious criminal offenses.[9] An assertion of jurisdiction by CCCI at the investigative or trial stage automatically ends any local court jurisdiction. The CCCI may also hear cases in instances where a criminal defendant may not be able to obtain a fair trial in a local court. Any other Iraqi court may also refer a case to the CCCI.[10]

The CCCI thus hears the cases of detainees referred by several Iraqi law enforcement agencies, as well as the Multinational Force. The court has two separate branches in Baghdad. The Karkh branch is located adjacent to the International Zone ("Green Zone"), which currently houses the US embassy, military facilities, and many Iraqi governmental institutions. This branch of the court hears cases of detainees held by Iraq's Ministries of Justice and Interior,[11] and also a select number of cases of detainees held by the MNF and referred to the CCCI for criminal prosecution under Iraqi law. The Rusafa branch of the court is located within the heavily fortified "Rule of Law" judicial complex in eastern Baghdad. The Rusafa branch only hears cases of detainees held by Iraqi authorities. Central Criminal Court officials in May 2008 described plans to establish panels in Mosul, Tikrit and Kirkuk, referred to as Major Crimes Courts.[12] These panels would consist of both local judges and judges traveling from Baghdad.

Iraq's broad counter-terrorism legislation (Qanun Mukafahat al-Irhab) has been the main legal basis for arrests and prosecutions stemming from the Baghdad Security Plan.[13]The security plan, launched in conjunction with the US troop surge of 2007, rapidly expanded detainee populations in Iraqi and MNF custody: it saw the population of detainees in Iraqi government custody (excluding the Kurdistan Regional Government) swell from approximately 17,000 at the end of March 2007 to approximately 23,000 by the end of the year.[14] Additionally, as of October 7, 2008, there were approximately 80 children in MNF custody, down from close to 700 children at the end of December 2007[15].

Referrals by the MNF

MNF decisions on referral to the CCCI are made by the MNF's Magistrate Cell, an administrative body that reviews the cases of MNF detainees following their transfer to a Theater Internment Facility, namely the two primary MNF detention facilities in Iraq: Camp Bucca near Basra in southern Iraq and Camp Cropper near Baghdad's airport.[16] Magistrate Cells, composed of judge advocates, perform case reviews and can release the detainee, forward the case for continued review and detention under MNF auspices, or refer the case to a CCCI liaison office, which concludes a final review prior to referring a case for prosecution before the CCCI.[17] While Human Rights Watch made repeated requests to MNF officials for clarification of MNF criteria in deciding which cases to refer to the CCCI, it did not receive a clear and comprehensive statement of policy. One MNF legal advisor indicated that such decisions depended primarily on whether a case could be brought based upon unclassified evidence, and that only approximately 10 percent of all MNF detainees faced possible criminal prosecution in the CCCI.[18]

As of early October 2008, detainees held by the MNF numbered about 17,700, down from 21,000 in late July.[19] Detainees in the custody of the MNF are held under the broad authority of detention the United States has claimed for the MNF under United Nations Security Council Resolutions 1546, 1637, and 1723, particularly citing language referring to "internment where this is necessary for imperative reasons of security."[20] The United States has maintained that this language, which mimics language in the Fourth Geneva Convention, is the basis for the MNF's applying the Fourth Geneva Convention more generally to the treatment of detainees in Iraq. However, the Fourth Geneva Convention has not been applicable to Iraq since the declared end of the belligerent occupation.

The detention of individuals pursuant to Resolution 1546 and successive resolutions must be read in light of the currently applicable international law in Iraq. Since the end of the inter-state armed conflict between Iraq and the states of the MNF in 2003, and the declared end of the belligerent occupation in June 2004, the continuing hostilities in Iraq are considered to be a non-international armed conflict. During such a conflict, the applicable rules for the treatment of persons in custody are found in article 3 common to the Geneva Conventions and international human rights law.[21]The International Covenant on Civil and Political Rights (ICCPR), which Iraq ratified in 1971, requires that all persons arrested be promptly brought before a judge, informed of criminal charges, have access to legal counsel and family members, and receive a trial meeting international fair trial standards.[22]

The MNF has acknowledged 367 cases in which it maintained custody following a CCCI ruling that dismissed the charges or brought a verdict of not guilty, as of December 11, 2007.[23] The United States bases this overarching authority on the broad mandate it contends it was granted under the successive United Nations Security Council resolutions.

February 2008 Amnesty and the CCCI Caseload

In February 2008, Iraq's parliament passed a General Amnesty Law intended in part to ease crowding in detention facilities and backlog in the criminal justice system. The law excluded from amnesty those accused of the most serious offenses, including war crimes, crimes against humanity, other death-penalty eligible offenses, and terrorism resulting in killing or permanent disability. Those who could benefit from the amnesty included persons held for more than six months without an appearance before an investigative judge, and anyone held for a year without referral to a court.[24]

Failures of administration have prevented the amnesty from alleviating the backlog that the CCCI faces. Approximately 96,000 cases had been approved for amnesty by July 2008 by the judicial committee that reviews applications, according to the Higher Judicial Council. As of September 2008, an estimated 5,000 to 8,000 detainees in Iraqi facilities had been released under the terms of the amnesty, most of them from facilities run by the Ministry of Justice.[25] A ministry official in October estimated that approximately 3,200 detainees had been released from Ministry of Justice facilities in Baghdad, Diyala, Basra, Hilla, and elsewhere[26]. The limited impact on the overall detainee population stems in part from the fact that the vast majority of applicants approved for amnesty are not in custody. As of May, prisoners and detainees accounted for about 25 percent of 68,796 approved applications; by September, that percentage stood at about 19 percent of 120,596 grants of amnesty.[27] (Those at large or on bail make up the other categories of applicants. Grants of amnesty relate to charges, rather than individuals, who may face multiple charges.)

One obstacle to implementation has been coordinating releases with detaining authorities and verifying that detainees are not also being held for offenses not included in the amnesty. A diplomat monitoring implementation of the amnesty told Human Rights Watch of persistent reports that officials of various detention facilities had demanded bribes from families before they would release detainees.[28]

The effective exclusion of MNF detainees from the amnesty constitutes a further constraint. The law as approved defines potential beneficiaries as "Iraqi prisoners and those in Iraq" but retains an ambiguous formulation on the subject of MNF detainees.[29] The MNF has consistently maintained that it is not bound by Iraqi legal decisions mandating release of detainees.[30]