Backgrounders

Iraq: The Death Penalty, Executions, and "Prison Cleansing"

A Human Rights Watch Briefing Paper

March 2003


Summary

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This briefing paper examines Iraq's arbitrary and widespread use of the death penalty and extrajudicial executions. For more than three decades, the government of President Saddam Hussein has sanctioned the use of the death penalty and extrajudicial executions as a tool of political repression, both in order to eliminate real or suspected political opponents and to maintain a reign of terror over the population at large. The executions that have taken place over this period constitute an integral part of more systematic repression - characterized by widespread arbitrary arrests, indefinite detention without trial, death in custody under torture, and large-scale "disappearances" - through which the government has sustained its rule.

Iraq's Penal Code provides for a wide range of both criminal and political capital offences, and decrees passed by the ruling Revolutionary Command Council over the past two decades have periodically widened the scope of the death penalty, claiming hundreds of lives every year. Special courts empowered to impose death sentences have also been established within government ministries outside the framework of the normal judicial system, and procedures in these courts fall far short of international fair trial standards.

Notwithstanding the vast array of death penalty laws at its disposal, the Iraqi government also has summarily executed thousands of detainees without trial in what some observers have claimed is a policy of "prison cleansing." Relatives are usually not informed in advance of such executions and are compelled to bury their relatives without funeral rites. Many other relatives are never notified and remain in ignorance of the fate of the prisoners for years; the remains of those executed are buried in unmarked or mass graves.

The death penalty violates the right to life and the right not to be subjected to cruel, inhuman, or degrading punishment, both of which are recognized in the Universal Declaration of Human Rights and other international human rights instruments. The wide array of offenses subject to capital punishment under Iraqi legislation and Iraqi government practice—both its frequent applications of the death penalty and mass extrajudicial executions of prisoners—make Iraq among the world's worst violators of these fundamental rights.1

The government of Iraq should place an immediate stay on all pending death sentences and issue a public and permanent moratorium on any use of the death penalty. At a very minimum, it should declare an end to the use of the death penalty for all but the most serious offenses and work towards full abolition. The government should also conduct a thorough review of existing laws and decrees, temporary and otherwise, to ensure their compliance with Iraq's treaty obligations under the International Covenant on Civil and Political Rights (ICCPR). In addition, the government should order a thorough and impartial investigation into credible reports of mass extrajudicial executions of prisoners over the past five years, and bring to justice those officials responsible for ordering and carrying out the so-called "prison cleansing" campaign. The international community should demand such an investigation and, if the government of Iraq fails to do so, be prepared to take steps to establish an international tribunal to prosecute those found responsible.2

The United States or other countries that may, as a consequence of armed intervention, take control of Iraq as the occupying power or powers, should as soon as possible issue a moratorium on the use of the death penalty if the government of Iraq has not already done so. This is imperative, notwithstanding the United States' deplorable record regarding application of the death penalty. Such a step would be in accord with the recommendations made to Iraq by the United Nations Human Rights Committee, and with the international trend toward abolition of the death penalty. It would also be in accord with the policies of other states likely to participate in any such intervention, including the United Kingdom.

Until a moratorium comes into effect, any occupying powers should, at a minimum, drastically curtail any application of the death penalty. While the laws of the occupied country generally remain in force during an occupation, occupying powers mush also ensure that their practices accord with international standards regarding the administration of justice. In addition to observing basic judicial and fair trial guarantees, such as the right to counsel and to appeal to a higher judicial body, the occupying power(s) must, under the Geneva Conventions, must ensure that any use of the death penalty is proportionate to the offense and only carried out for the most serious crimes.3 In no circumstances may the death penalty be used against women with young children, pregnant women, or children, defined as persons under eighteen years of age at the time of the offense.4 In addition, no death sentence shall be carried out before the expiration of at least six months from the notification of the judgment confirming such a sentence, and anyone sentenced to death has the right to seek clemency measures.5


Introduction

It is not possible to determine with certainty the number of people executed by law or government order in Iraq each year. For the past two decades and with depressing regularity, the reported figures for those executed have run into the hundreds each year and, in some years, have reached several thousand. Many of these estimates are impossible to verify, largely due to the clandestine manner in which the executions are carried out. Except in rare cases, the government generally does not release information concerning death sentences passed or carried out. The complete lack of access to Iraq by human rights investigators renders the process of verification very difficult. Given the secrecy surrounding executions in the country, moreover, in many instances it is not possible to ascertain whether victims have been executed following some form of trial, or whether they have been killed in accordance with an executive order.

The Iraqi government has said on record, and continues to reiterate, that it does not implement a policy of executing persons "for political reasons." In support of this assertion, government officials have frequently cited article 20 of Iraq's Penal Code,6 which differentiates between ordinary and political offences, and provides for the commutation of death sentences to life imprisonment in the case of political offences.7

Given documented Iraqi practices, the government's frequent lack of regard for the provisions of its own domestic legislation, and its disregard of its international legal obligations, such an assertion does not stand up to scrutiny.8 The Penal Code continues to provide for the death penalty (in some cases mandatory) for a wide range of both criminal and political offences, which fall into three broad categories: offences deemed to constitute a danger to the public, and those considered damaging to external or internal state security.9 Over the years the government has steadily increased the number and range of capital offences through decrees issued by the ruling Revolutionary Command Council (RCC), contrary to its obligations under the International Covenant on Civil and Political Rights (ICCPR), which it ratified without reservation.10

While repeatedly assuring the U.N. Human Rights Committee11 that the death penalty was only applicable to the "most serious crimes," the government introduced mandatory death sentences for a variety of non-violent political acts. These included a range of offences connected with membership of the ruling Ba'th Party, such as the failure by party members to reveal any previous political affiliation; political activity by former Ba'th Party members with any other party; knowingly recruiting a current or former Ba'th Party member to any other political party; political activity within the armed forces deemed detrimental to the Ba'th Party; and membership of any party other than the Ba'th party by former members of the armed forces.12 Any retired army or police personnel taking part in political activities other than within the Ba'th Party also became liable, with retroactive effect, for the death penalty.13 In 1986, publicly insulting the president of the republic or any officials of the RCC, the Ba'th Party, the National Assembly, or the government, with a view to mobilizing public opinion against the authorities, also became a capital offence.14

Legislation other than the penal code was also amended, or new legislation passed, introducing the death penalty for additional offences.15 The offences in question included desertion from the armed forces in certain cases,16 robbery committed in wartime,17 the smuggling of Iraqi or foreign currency or gold "with the Persian enemy,"18 and causing damage to the national economy through the use of forged documents.19 The death penalty was also introduced, with retroactive effect, for membership in al-Da'wa al-Islamiyya (Islamic Call), a Shi'a Muslim opposition group.20


Widening the scope of the death penalty

All these capital offences were introduced during the 1970s and 1980s and remain on the statute books.21 A range of other capital offences were introduced in the first half of the 1990s, many of them relating to economic crimes. The government sought to justify these by saying that the humanitarian crisis resulting from the imposition of sanctions on the country directly spurred a rise in the level of crime, with the worsening of economic hardship and poverty. In its fourth periodic report to the U.N. Human Rights Committee, submitted in November 1996, the government referred to "the exceptional circumstances through which Iraq is passing," arguing that "if the human individual's right to life has become a principle of international law, it is befitting that the conscience of the international community should be stirred to protect the right to life of the entire Iraqi people, who are being subjected to virtual genocide" by economic sanctions.22 The government pointed to theft, armed robbery, embezzlement, and bribery as being among the most serious crimes whose rates had increased due to economic hardships caused by economic sanctions. "Consequently, in order to protect the public interest and the legal and economic security of society, the legislature was forced to adopt heavier penalties not as a strict matter of principle but primarily as a public deterrent to protect the right of society to security, which has become a form of struggle for survival, since the adoption of heavier penalties is not part of the criminal policy of the Iraqi legislature."23

In this spirit, car theft became a capital offence in 1992,24 as did the offence of manufacturing or circulating counterfeit currency the following year.25 Subsequently, a series of decrees passed by the RCC widened even more extensively the scope of the death penalty, making it a mandatory punishment in most cases and having retroactive effect in one case. All but one of these decrees was passed in 1994. The new capital offences included:

  • Sabotage of the national economy (Decree 39 of April 2, 1994). The offences specified in this decree relate to the possession or trade in medicines and medical equipment.26 The penalty is death or life imprisonment.

  • Theft committed with a weapon or resulting in the death of another person (Decree 59 of June 4, 1994).27 The death penalty for this offense was mandatory until 2001, when it was replaced by "the maximum term of imprisonment established by the provisions of the penal laws in force."28

  • Smuggling of antiquities from archeological sites or on a scale resulting in damage to the national economy (Decree 76 of June 29, 1994).29 The death penalty is mandatory.

  • Premeditated crimes punishable by not less than fifteen years' imprisonment committed by members of the internal or special security forces (Decree 91 of July 21, 1994).30 The death penalty is mandatory.

  • Smuggling of cars, trucks, and certain construction machinery outside Iraq or to a hostile party (Decree 95 of July 27, 1994). The death penalty is mandatory.

  • Theft, embezzlement, forgery of official documents, and bribery committed by military personnel (Decree 111 of August 23, 1994). The penalty is death or life imprisonment.

  • Deserting from the army on three occasions or providing cover or shelter for a deserter on three occasions (Decree 115 of August 25, 1994).31 The death penalty is mandatory, and the decree has retroactive effect with respect to past offenders who fail to surrender to the authorities within the period stipulated in the decree.32

  • Organizing a group for the purposes of pimping or procurement (Decree 118 of August 27).33 The death penalty is mandatory.

  • Loss of life caused by a member of the armed forces, internal security forces, or a government employee in circumstances other than those stipulated in Decree 59 of 1994 mentioned above (Decree 114 of September 5, 1994).34

  • Falsification of military service documents (Decree 179 of October 8, 1994). The death penalty for this offence was abolished in January 2003 and replaced with a term of imprisonment ranging between ten and fifteen years.35

  • Engaging in fraudulent investments during wartime or while economic sanctions remain in force, or if they result in the undermining of the economy (Decree 16 of February 27, 1995).


Special courts

Several of these decrees also provided for the establishment of special courts within government ministries, empowered to hear cases and impose death sentences outside the framework of the normal judicial system. For example, suspects accused of damaging the national economy under Decree 39/1994 are tried by a special tribunal within the Ministry of Interior, while a similar court within the Ministry of Defense hears cases of embezzlement, forgery, and bribery committed by military personnel under Decree 111/1994. The relevant minister appoints the court bench in each case. Other special courts were also established within the intelligence and security services, namely the General Security Directorate (Mudiriyyat al-Amn al-‘Aam) and the main intelligence apparatus, the Mukhabarat.

The enactment of such legislation, which blatantly violates Iraq's own constitution as well as its international legal obligations, is not unique. Indeed, these RCC decrees coincided with the extension of law enforcement powers in others spheres, including giving officials within the Ba'th Party and the National Assembly the power to detain without trial individuals accused of certain offences for up to three years,36 and giving the head of the Presidency Office (Diwan al-Ri'asa) judicial powers to initiate crime investigations.37

In its fourth periodic report the Iraqi government, while conceding the existence of a "Special Court," made no mention of these many extra-legal procedures. It did, however, link the existence of a special court to what it said was an increased crime rate resulting directly from the effects of economic sanctions, which "induced the legislature [to form] a Special Court, presided over by a civil court judge, in which defendants are prosecuted by a public prosecutor from a civil court."38 The court's proceedings were said to follow Iraq's penal code and code of criminal procedure, with its jurisdiction limited to the following:

  • Cases referred to it by the Minister of Interior.

  • Cases of vehicle theft associated with murder or violence.

  • Offences committed by gangs that steal vehicles and smuggle them out of the country.

  • Highway robbery.

  • Offences that, by law, must be referred to the Special Court.

  • Economic offences that are referred to the Special Court by the Office of the President of the Republic.39

In January 2003, a new law was passed establishing a state security court and providing for the abolition of the special courts.40 According to Iraqi officials, the state security court falls within the jurisdiction of the ministry of justice and the existing Code of Criminal Procedure governs its proceedings.41 The minister announces appointments to the court's three-member bench and to the post of prosecutor general, subject to approval by the Presidency Council. The court is empowered to hear cases involving a wide range of offences (some of which carry the death penalty): crimes against the internal and external security of the state, drug-related offences, trafficking in women, and child prostitution, as well as cases pending from the special courts. At the time of writing, Human Rights Watch could not verify whether the special courts had in fact been abolished, and had no further information on the functioning of the state security court.


Iraq and U.N. human rights mechanisms

In their consideration of Iraq's fourth periodic report,42 members of the Human Rights Committee pointed out that the "Special Court" proceedings were incompatible with the provisions of article 14(5) of the ICCPR,43 given that the decisions of these courts were final and not subject to appeal. They also expressed grave concern about the imposition of the death penalty for other than "the most serious crimes," as required by article 6 of the ICCPR, and that punishment in certain cases was not commensurate with the offence committed. One such offence, for example, was the smuggling of antiquities (Decree 39/1994), to which the Iraqi government's representative responded by saying that the destruction of his country's cultural heritage qualified as a serious crime.44 Another example was the imposition of the death penalty for the theft of drugs by members of the medical profession, regarding which the government representative said that it was necessary to protect medical supplies due to shortages caused by economic sanctions.45 He added that "the problem hardly ever arose in practice since such punishments were carried out only in exceptional cases," but provided no data to back up his claim. 46 A third example was the imposition of the death penalty for insulting the president of the republic (Decree 840/1986). Here, the government representative said: "In itself, the crime was not sufficient for the imposition of the death penalty: it must have been aimed at inciting armed conflict or revolt. The crime was not one of lŹese-majestée [sic]; rather it was a crime against the security of the State, the President serving as the symbol of that security."47

The Human Rights Committee also expressed concern about the retroactivity of death penalty legislation, namely Decree 115/1994, since it violated article 15 of the ICCPR. The government representative said the decree "was not precisely retroactive. Certain crimes known as continuing crimes, required time for the relevant legislation to be applied. Thus, if somebody were to drive a vehicle without a license in 1991, for example, and to be arrested for that offence in 1992, he would be liable to a penalty under the legislation in effect at the time of the arrest rather than the time of the offence. Since the offence was in a sense ongoing, the penalty could not be regarded as retroactive."48

In defending the enactment of this legislation, the Iraqi government's representative said that while these laws "might appear to be extremely severe, [they] were essentially of a deterrent nature, and that only rarely were the punishments envisaged actually carried out."49 However, the government failed to provide, as requested by the Human Rights Committee, data on the number of persons sentenced to death, the number of executions carried out, and the number of people who benefited from amnesties.50 Neither has the government ever made public, to Human Rights Watch's knowledge, any data on crime figures from which a determination could be made as to whether such draconian laws had indeed had a deterrent effect. Additionally, and in contradiction to the government's assertion that special courts were subject to the same legislation as ordinary criminal courts, its fourth periodic report stated that "the decrees in question would all be abrogated as soon as the situation in the country returned to normal when the Penal Code could once again be applied."51

In respect of the death penalty and related special courts, the Human Rights Committee expressed concern in its concluding observations about the following:52

  • The incompatibility of some of the provisions of these decrees with certain non-derogable rights under the ICCPR, including the right to life and the non-retroactivity of criminal laws.

  • The increase in the categories of crimes punishable by the death penalty, and that the new categories include non-violent and economic offenses.

  • The fact that special courts, empowered to impose the death penalty, violate procedural guarantees required by article 14 of the ICCPR, in particular the right of appeal.

  • The discretionary authority of the Minister of the Interior and the Office of the President of the Republic to refer to the special courts cases additional to those listed as being within their jurisdiction.

The Human Rights Committee recommended "a thorough review of existing temporary laws and decrees" to ensure their compliance with the provisions of the ICCPR; that Iraq abolish the death penalty "for crimes which are not among the most serious crimes, in accordance with article 6, paragraph 2, of the Covenant, and that total abolition of the death penalty be considered"; that the application of Decree 115/1994, which has retroactive effect,53 be suspended without delay and steps taken to repeal it; and that courts exercising criminal jurisdiction be in full compliance with all procedural safeguards protected by article 14 of the ICCPR, including the right of appeal.

In recent communications with U.N. Special Rapporteur on Iraq, Andreas Mavrommatis, the Iraqi government for the first time provided limited data on the use of the death penalty. It stated that a total of 157 persons were executed in 2000. Of these, 106 were for the crimes of homicide and homicide accompanied by robbery, forty for drug-related offences, and eleven for "immoral offences (rape of a close female blood relative)."54 For 2001, the government gave a total figure of 106 executions, of which sixty-three were for homicide and homicide accompanied by robbery, forty for drug-related offences, and three for immoral offences.55 No figures for other categories of capital offences were given. The government also provided some data on the number of prisoners whose death sentences it said had been commuted to terms of imprisonment. Among them were prisoners who had been convicted under the now-repealed Decree 59/1994 (see above), of whom forty-six had their sentences commuted in 2001 and seventeen in 2002. A further twenty-one prisoners were said to have had their death sentences commuted in 2001-2001 under the terms of presidential or "discretionary" decrees.56 Other information requested by the special rapporteur, including the names of those executed, the dates of their trials, appeals, and executions, the charges against them, and the legislation under which they were tried and sentenced, was not provided.57

During his visit to Iraq in February 2002,58 the special rapporteur raised a number of related issues with government officials, notably Minister of Justice Mundhir al-Shawi. On the question of the scope of the death penalty, the minister said that "the Penal Code of Iraq exclusively regulated the application of the death penalty," and that "there were no other general laws which imposed the death sentence: however, certain legislation might be promulgated increasing the sentence for a specific crime, listed in the Penal Code, to capital punishment."59 As an example, he said that the maximum sentence for organized crime had recently been increased to capital punishment. He added that "if specific circumstances justified such a step," the death penalty for offences not listed in the Penal Code could be introduced by presidential decree.60 In May 2002, the Iraqi government informed the special rapporteur that at a meeting of the Council of Ministers on October 29, 2001, President Saddam Hussein had ordered a review of the death penalty, "with a view to replacing it by penalties involving deprivation of liberty or appropriate financial penalties."61 A committee composed of four ministers - justice, labor, social affairs, and religious endowments - was apparently charged with the task of drafting a report on the issue for consideration by the Council of Ministers. No information has emerged to date on this review.

Government officials told the special rapporteur that special courts applied the provisions of the Penal Code and the Code of Criminal Procedure, that defendants had the right to appoint defense lawyers of their choice, and that they were guaranteed a fair trial. On the question of appeals, officials said that verdicts "are reviewed by a special judicial committee, which acts as an appeal body."62 Officials had previously told the Human Rights Committee that the decisions of the special court set up in the aftermath of the imposition of economic sanctions were "irrevocable."63


Mass executions and "prison cleansing"

In addition to death sentences imposed under the array of capital punishment laws described above, only two of which are known to have been abrogated to date,64 mass executions of detainees continue to be carried out by executive order. In the past five years, in particular, there have been numerous reports of the execution of inmates held at several prisons in the country carried out by executive order. Such information has come from the relatives of victims living abroad and former inmates held in prisons where executions have taken place, as well as Iraqi opposition groups.65 In most cases it was not possible to independently verify these reports due in large part to the secrecy surrounding many executions, and the failure of authorities to notify family members of death sentences passed or subsequently to hand over the remains of the victims. However, testimony from a wide range of sources has consistently supported the existence of mass executions, particularly in some of the more notorious prisons.

The majority of victims appear to have been suspected political opponents held without charge or trial (some for periods ranging between ten and fifteen years). They are also believed to include political prisoners sentenced to terms of imprisonment who were not released upon expiry of sentence, prisoners awaiting a ruling after appealing their conviction, and prisoners convicted for criminal offences. The reported frequency and large-scale nature of executions at prisons such as Abu Ghraib and al-Radhwaniyya have given rise to fears that they may be part of a policy of "prison cleansing" by the authorities, aimed at eliminating suspected political opponents and easing overcrowding in the country's prisons. Both Human Rights Watch66 and Max van der Stoel,67 during his term as special rapporteur on Iraq, repeatedly have received reports of such mass executions, particularly since 1997.

In the past two years, testimony by former intelligence officers and other state employees who have fled Iraq has corroborated reports of mass executions in prisons. Captain Khalid Sajit al-Janabi, who was an intelligence operative from 1979 to 1999, attested to the existence of a government prison cleansing policy. 68 He testified in November 2000 that a directive issued in 1998 effectively authorized the mass execution of prisoners. He stated: "On 15 March 1998 we were advised of a Revolutionary Command Council decision to clean up the prisons. The Presidency Office and the Special Security Forces ordered the security services to set up a committee comprising representatives from Military Intelligence, Public Security, Special Security and the Mukhabarat to act as a supervisory body at Abu Ghraib prison." Al-Janabi said that he and three other officers were assigned to Abu Ghraib prison on March 20. According to his testimony, President Saddam Hussein's son Qusay toured the prison on April 26 and issued an order for the execution of an estimated 2,000 inmates held in one section. "At six the following morning, the executions began. By nine that evening, 2,000 Iraqis had been executed. Most of them were from the South, accused of joining parties and taking part in [opposition] activities … some were hanged, while others were shot. Each victim was shot once in the head." Al-Janabi said many of the bodies were then buried in the nearby al-Karkh cemetery, identified only by a serial number.

The former director of the Abu Ghraib prison hospital, Maher Fakher al-Khashan, who fled Iraq in July 2001, attested to regular mass executions of prisoners. Al-Khashan said that most of those executed were political detainees identified by serial number rather than by name, whose bodies were removed for burial in special vehicles, and that he had most recently witnessed thirty-four such executions on July 8, 2001. He reported that prison authorities forced doctors to inject some detainees with poison and then issue death certificates attributing their deaths to natural causes.

In a six-month period between October 1999 and March 2000, an estimated 233 inmates were reportedly executed in various prisons, in most cases by hanging. They included twenty-six political detainees executed on November 26, 1999, and a further twenty-six executed on January 27, 2000, all in Abu Ghraib prison near Baghdad. The majority were Shi'a Muslims from Basra, al-Samawa, al-Nasiriyya, al-Diwaniyya, al-Hilla, al-‘Amara, and Baghdad, some of whom had been held without judicial due process since 1991 on suspicion of having participated in the March 1991 uprising. The bodies of the victims were reportedly buried in mass graves near the prison.

The authorities also reportedly executed many inmates at Abu Ghraib, al-Makasib, and other prisons in 1999, including long-term political detainees and convicted prisoners. Some were apparently tortured first. Relatives reported that the body of 'Abd al-Wahed al-Rifa'i, hanged in March after two years in detention without trial, bore marks of torture when they collected it on March 26 from the General Security Directorate in Baghdad. Thirteen other detainees at Abu Ghraib Prison, including students, were executed in August 2001, and twenty-one prisoners convicted by special courts of killing several security agents were executed two months later, including Falah Ahmad Hussain, Muhsin Yassin Kadhim, and Baqer Jassim 'Ali. Between March and July 2002, at least fifty-eight people were reported to have been executed, among them thirty-three political detainees who had been held at Abu Ghraib prison. They included Khalil Baqer Hashem from Baghdad, executed on June 23; Salman Muhsin ‘Abed from al-Najaf, executed in mid-July; and Khaz'al Ibrahim Naji from Dhi Qar, executed in mid-July. In some instances, the families of the victims were not informed of the executions for several months after they were carried out. They were reportedly barred from examining the mortal remains of their relatives and prevented from performing traditional burial rites.

There have also been numerous executions, usually by firing squad, of military personnel reported in recent years, following alleged coup attempts. On December 29, 1999, five Republican Guard officers were reportedly executed after being accused of complicity in the alleged attempted murder of President Saddam Hussain's younger son, Qusay. Among them were Lieutenant Colonel Ibrahim Jassem and Captain ‘Umar Abdul Razzaq. In May 2000 four officers belonging to the Special Security Forces, among them staff colonels Kadhim Jawad ‘Ali and ‘Ali Muhammad Salman, were reported to have been executed. In March 2001, three air force officers, including Fawzi Hamed al-'Ubaidi and Faris Ahmad al-'Alwan, and an army major general, Tareq al-Sa'dun, were reportedly executed following an alleged coup attempt. In July 2001 the authorities executed two air force officers in Kirkuk, including Kadhim Khairallah al-Dulaimi, and at least five Republican Guard officers, including Staff Colonel Sami Abd al-Ghaffur al-Alusi. In August and October 2001 a number of military personnel were executed at Abu Ghraib prison. The victims included former army colonels ‘Abd al-Salam Hadi al-Tikriti and Saleh Manna' Salman al-Tikriti, detained since 1995 and executed on October 8, 2001. They were among a larger group of senior military personnel reportedly arrested in Baghdad in the latter half of 2001. In mid-November 2001, twenty-two other military personnel were reportedly executed in the same period in Abu Ghraib prison. Among them were Staff Colonel Sa'eb ‘Abdullah al-Samarra'i, Lieutenant Colonel ‘Aqil Tale' al-Nu'aimi, Major Yassin Hamid Salem and First Lieutenant Bassem ‘Abdullah Mahmoud. In March 2002 at least nine military personnel were executed in several separate incidents, among them Brigadier General Muhammad ‘Abdullah Shahin from Mosul and an officer, ‘Abdul-Haq Isma'il from Babel.


Recommendations

Human Rights Watch urges the government of Iraq to:

  1. Place an immediate stay on all executions and impose a moratorium on any further death sentences and further extensions of the death penalty.
  2. Commute all pending death sentences to terms of imprisonment.
  3. Conduct a thorough review of the Penal Code, resolutions and decrees passed by the Revolutionary Command Council and other legislation providing for the death penalty, to ensure their compliance with Iraq's treaty obligations under the ICCPR. These include the right to a fair trial within a reasonable time, immediate access to defense counsel, adequate time and facilities to prepare a defense, the presumption of innocence, protection from torture and ill-treatment and the right of detainees not to incriminate themselves.
  4. Pending abolition of the death penalty and as part of this review, develop clear sentencing criteria for cases where courts are empowered to pass death sentences, repeal laws or decrees that provide the death penalty for crimes that are not among the most serious offences, and abolish all special or ad hoc courts empowered to impose the death penalty, including the newly established state security court.
  5. Make public on a regular basis all information about the use of the death penalty, including the number of death sentences passed and carried out, and complete information on the names and cases of those convicted by the courts.
  6. Ensure that the relatives of prisoners under sentence of death are kept fully informed at all stages of the proceedings, and that relatives are informed without delay of when and where executions were carried out. Enable relatives to collect the prisoner's remains and to bury them without hindrance or restrictions.
  7. Ensure compensation for the relatives of executed prisoners who were subjected to torture or ill-treatment.
  8. Order a thorough and impartial investigation into all credible reports of mass extrajudicial execution of prisoners over the past five years, and bring to justice those officials found responsible for ordering and carrying out the so-called "prison-cleansing" campaign.
  9. Provide comprehensive information to the U.N. Commission on Human Rights and to the U.N. special rapporteur on Iraq on the use of the death penalty and on any steps taken in implementation of their recommendations to the government of Iraq.



1 The death penalty is a state-sanctioned act of violence, and in Iraq is often accompanied by torture during pre-trial detention and manifestly unfair trials. Its widespread use in Iraq, moreover, has taken place in an international context in which international human rights standards have progressively placed ever-tighter restrictions on the scope of the death penalty, with a view to its eventual abolition. These international instruments include the Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at the abolition of the death penalty, and the Statute of the International Criminal Court, which excluded the death penalty for grave crimes within its jurisdiction - war crimes, crimes against humanity, and genocide.

2 See Human Rights Watch, "Justice for Iraq," A Human Rights Watch Policy Paper, December 17, 2002.

3 Fourth Geneva Convention, Article 67.

4 Fourth Geneva Convention, Article 68.

5 Fourth Geneva Convention, Article 75.

6 Law No. 111 of 1969 as amended.

7 The Penal Code defines political offences as those "committed with a political motive or which are prejudicial to general or individual political rights" (article 21a).

8 What the Iraqi government has usually omitted to clarify in this context is that article 21(a) of the Penal Code also makes an exception in the case of certain offences which may have been committed with a political motive, but which nevertheless remain liable to the death penalty. These include not only violent offences such as premeditated murder, terrorist offences, or an attempt on the life of the president of the republic, but also other crimes described as "immoral," such as theft, embezzlement, forgery, breach of trust, fraud, bribery, and indecent assault. Also included in this category are "offences committed with a base and selfish motive," which are not specified and thus remain wide open to interpretation in each case.

9 Capital offences deemed damaging to internal state security include membership of Zionist or Masonic institutions or the propagation of such ideas (article 201).

10 Iraq ratified the ICCPR in January 1971, and became bound by its provisions in March 1976 when it came into force.

11 The U.N. Human Rights Committee is the body that monitors compliance of state parties to the ICCPR.

12 Article 200 of the Penal Code as amended, and RCC Decree No. 1357 of November 10, 1971.

13 RCC Decree of 884 of July 1978. The decree applies to those who retired, or whose service was terminated, after July 17, 1968 (the day on which the Ba'th Party seized power in Iraq).

14 RCC Decree No. 840 of November 4, 1986, amending article 225 of the Penal Code.

15 These laws included the Military Penal Code (Law No. 13 of 1940 as amended), the Penal Code of the Popular Army (Law No. 32 of 1984 as amended), the Law on the Punishment of Agents of Foreign Intelligence Services (Law No. 97 of 1978 as amended), and the Law on the Prohibition of Baha'i Activity (Law No. 105 of 1970 as amended).

16 These include RCC Decree No. 1140 of August 26, 1981, providing the death penalty for desertion in recidivist cases.

17 RCC Decree No. 1133 of September 2, 1982, amending articles 441-443 of the Penal Code. This decree was amended in January 2003 to restrict the application of the death penalty in certain circumstances only.

18 RCC Decree No. 313 of March 13, 1984.

19 RCC Decree No. 120 of January 29, 1986.

20 RCC Decree No. 461 of March 31, 1980.

21 With the exception of the offence of robbery committed in wartime, where the application of the death penalty was restricted (see Footnote 17).

22 United Nations, Fourth periodic report of States parties due in 1993: Iraq.28/11/96, CCPR/C/103/Add.2, p. 8, para. 24. Iraq's Fifth Periodic Report, which was due in April 2000, had not been submitted at the time of writing.

23 Ibid., p. 7, para. 23.

24 RCC Decree No. 13 of January 20, 1992.

25 RCC Decree No. 9 of May 10, 1993. It provides the death penalty for persons dealing in counterfeit currency in groups of three or more, and where this results in the devaluation of the national currency or undermines local or foreign markets.

26 Specifically, removing medicines and medical equipment illegally from health institutions and other public facilities; forging official documents relating to medicines and medical equipment as a cover for their illegal use; possessing medicines and medical equipment obtained from non-official sources with the intent to trade in them; and the obtaining by non-governmental health institutions of medicines and medical equipment from non-official sources.

27 Theft as defined in articles 440-445 of the Penal Code, as well as theft of cars. The decree also provides for amputation of the right hand for a first offence, and amputation of the left foot for a second offence, and the death penalty if the thefts in question were carried out using a weapon or resulting in the death of a person.

28 RCC Decree 106 of April 26, 2001.

29 This decree was an amendment to the Customs Law (No. 23 of 1983).

30 The penalty for this offence committed by members of the regular armed forces is life imprisonment.

31 This decree also introduced amputation of one ear for a first offence, and the second ear for a second offence, together with the branding of the forehead in both instances.

32 The period stipulated in the decree is one week after its issuance for deserters inside Iraq, and thirty days for those outside Iraq.

33 Pimping or procurement as defined under the Law on the Combat of Prostitution (No. 8 of 1988).

34 Decree 114 of 1994 was introduced as an amendment to Decree 59 of 1994. By virtue of the amendment, the penalty for amputation of the hand for theft with aggravating circumstances was also abolished.

35 RCC Decree 11 of January 12, 2003.

36 For example, in accordance with Decree No. 70 of June 21, 1994, any person who monopolizes goods similar to those specified on ration cards, by storing or refusing to sell such goods, can be held in detention for up to one year (and up to three years in recidivist cases) by a committee composed of "the leadership of the political unit of the Ba'th Party and of the People's Assembly … All decisions are taken by majority vote" (article 1).

37 Decree No. 130 of August 30, 1994, states that "The Head of the Presidential Diwan shall be empowered to set up a committee to investigate a specific crime or crimes, and this committee shall have the same authority as that of an investigating judge" (article 1).

38 Fourth periodic report, p. 17, para. 57.

39 Ibid.

40 Law on the State Security Court (No. 1 of 12 January 2003).

41 Law No. 23 of 1971 as amended.

42 The Human Rights Committee considered Iraq's fourth periodic report on October 27, 1997. See Summary record of the 1626th meeting: Iraq. 22/01/98, CCPR/C/SR.1626 and Summary record of the 1627th meeting: Iraq. 30/10/97, CCPR/C/SR.1627.

43 Article 14(5) of the ICCPR states: "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."

44 Summary record of the 1626th meeting: Iraq, p. 3, para. 7: "the seriousness of crimes detrimental to Iraq's cultural heritage had grown to such an extent as to make it necessary to increase the penalty. Thus, the world's most ancient copy of the Old Testament had been stolen from a church in northern Iraq, while other ancient texts had been stolen and cut with a laser at the Iraqi border. Under normal circumstances, the penalty for such crimes would be imprisonment for a number of years or for life, but the death penalty could now be imposed under the Cultural Heritage Act, recently adopted in view of the seriousness of the situation."

45 Ibid., p. 3, para. 8: "the current shortage of medical supplies in Iraq often made it necessary for doctors to perform minor surgical operations, and sometimes even major ones, without an anesthetics. Patients have been known to die after the operation because the equipment was out of date, proper sterile conditions could not be ensured and antibiotics were in short supply. Under such circumstances, members would surely not disagree that persons who stole medical supplies deserved to be severely punished."

46 Summary record of the 1626th meeting, p. 5, para. 22.

47 Summary record of the 1627the meeting, p. 7, para. 26.

48 Ibid., p. 6, para. 23.

49 Summary record of the 1626th meeting, p. 2, para. 7.

50 Ibid.: "Since the Iraqi delegation had received the list of issues to be taken up in connection with consideration of the fourth periodic report only on the day of its departure for Geneva, it was unable to provide accurate and official figures …" (pp. 4-5, para. 7).

51 Ibid., p. 2, para. 7.

52 United Nations, Concluding observations of the Human Rights Committee: Iraq. 19/11/97, CCPR/C/79/Add.84.

53 Decree 115 of August 25, 1994, introduced the death penalty in recidivist cases for army desertion and for the harboring of deserters.

54 United Nations, Interim reports to the General Assembly, Situation of human rights in Iraq, prepared by the special rapporteur of the Commission on Human Rights on the situation of human rights in Iraq, Andreas Mavrommatis, A/57/325, August 20, 2002, p.18, Annex VI, Section D. The document containing this information was given to the special rapporteur by the Permanent Representative of Iraq to the U.N. in Geneva on June 28, 2002.

55 Ibid.

56 Ibid., Section C.

57 Ibid., p. 6, para. 14.

58 The visit took place between February 11-15, 2002. It was the first, and to date the only, visit by the special rapporteur since his appointment in December 1999, the Iraqi government having consistently refused to grant him access.

59 Situation of human rights in Iraq, p. 10, para. 27.

60 Ibid, p. 10, para. 29.

61 Ibid, p. 16, Annex V, para. 2: Note verbal dated 8 May 2002 from the Permanent Mission of Iraq to the United Nations Office at Geneva regarding the composition of the special courts and the review of the death penalty.

62 Ibid, para. 1.

63 Summary record of the 1626th meeting, p. 6, para. 24.

64 The first was Decree 59 of June 4, 1994, which provided the death penalty for theft committed with a weapon or resulting in the death of another person, was amended by Decree 106 of April 26, 2001. The death penalty was replaced with the maximum term of imprisonment provided for in law. The second was Decree 179 of October 8, 1994, which provided the death penalty for falsification of military service documents. It was amended by Decree 11 of January 12, 2003, replacing the death penalty with a term of imprisonment ranging between ten and fifteen years.

65 These groups include the Iraqi Communist Party, which regularly reports on the execution of civilians and military personnel in prisons such as Abu Ghraib and al-Radhwaniyya, the Iraqi National Congress, the Supreme Council for the Islamic Revolution in Iraq, and Kurdish political parties.

66 See, for example, Human Rights Watch World Report 1999, 2000, 2001, and 2002.

67 See, in particular, Report on the situation of human rights in Iraq, E/CN.4/1998/67 of March 10, 1998 and E/CN.4/1999/37 of February 26, 1999, and the special rapporteur's interim report to the General Assembly, Situation of human rights in Iraq, A/53/433 of September 24, 1998.

68 Khalid al-Janabi's brother, Lieutenant General Kamel Sajit al-Janabi (a senior military commander of Iraqi forces in Kuwait in 1990-1991), was executed in March 1999 along with several other military officers, allegedly following a coup attempt.