VII. Lack of Evidence and Reliance on Secret Informants

The investigative hearings and trials that Human Rights Watch observed relied almost exclusively on confessions and the summarized testimony of witnesses and informants. No physical evidence was introduced at any stage of any proceedings, including cases in which US judge advocate generals presented evidence against MNF detainees facing weapons charges. On one occasion, that evidence consisted in part of statements from US forces and photographs of the defendants with weapons alleged to be theirs. In another case, the charge sheet alleged the detainee had made bombs, though the attending JAG said that detaining forces had conducted no explosives residue test.[100]

The absence of physical evidence-other than photographs of weapons that JAGs alleged detainees had possessed when detained-in the investigative hearings that Human Rights Watch witnessed, and the corresponding reliance on the testimony of secret informants and confessions, suggests several consequences for the proceedings of the court. Most notably, the recourse to secret informants compounds the problem of lengthy delays in processing cases. Introducing the testimony of a secret informant presumes the possibility of summoning that informant in person by judicial order later to corroborate testimony if needed. In remarks on the use of secret informants in the court, UNAMI notes that informants frequently ignore a summons when issued, resulting in further extension of detention of the accused.[101]

Iraqi judicial authorities told Human Rights Watch that the testimony of secret informants is a principal source of evidence in the security-related cases at the core of the court's mandate-particularly in cases that originate in mass detentions associated with military operations. One CCCI investigative judge estimated secret informant testimony figures in 40 percent of all cases heard by the court.[102] Another senior judge acknowledged such testimony was open to abuse, but deemed it unavoidable under present security conditions:

Now because of the security situation, and the fear of revealing one's identity, there is greater reliance on the secret informant. It's not just fear of simple retribution, it's also the risk to extended families and so forth…. There is a certain amount of uneasiness about this subject, politically and because of the possibility that such testimonies are spurious … For instance, the army may be working in a hot area, and take testimonies relating to the presence of kidnappers. It then becomes a question of bringing the informant to the judge, and there may be problems of credibility … We have a lot of false informants presenting a lot of false testimony … If we depend on this evidence, yes, there are going to be victims but there will be fewer victims than if we disregarded the informants completely.[103]

During its monitoring of the court's proceedings, Human Rights Watch found that judges were willing to dismiss some cases that were based entirely on the testimony of secret informants. In a trial at the Rusafa branch of the court on May 11, 2008, a defendant faced charges, based on the testimony of secret informants, of planning sectarian attacks as the leader of an al Qaeda cell. The Iraqi army had detained the defendant in 2007 following an insurgent attack. He denied the charges and claimed to have no knowledge of people named as co-conspirators; the defendant as well as defense counsel and the prosecutor, noted that previous statements had been taken, presumably by detaining forces, without an investigative judge or counsel present. The prosecutor suggested dismissal, and defense counsel alluded to the existence of an exculpatory witness whose testimony had not been admitted at the investigative phase. The presiding judge acquitted the defendant on the grounds that no there was no evidence other than the testimony of secret informants.

Iraq's Higher Judicial Council said in November 2008 that judges had been instructed to dismiss cases in which informants did not respond to a summons and there was no other basis for continued detention.[104]