Promises to Improve Justice System Followed by Spate of Judicial Killings
April 25, 2013
The government seems to think that the best way to combat the increase in violence and terror that Iraq has suffered since the beginning of the year is with yet more state killing and injustice.
Sarah Leah Whitson, Middle East director

(Baghdad) – A striking increase in executions in Iraq points out the failure of Iraq’s justice system to meet international fair trial standards. The surge in judicial killings came shortly after the government conceded that justice system reforms are desperately needed.

Deputy Prime Minister Hussein al-Shahristani has announced a series of reforms since January 2013, in response to widespread protests in which demonstrators demanded reforms to the ailing justice system, but it is unclear whether any of the promises have been carried out. Instead of any action on these reforms, Justice Minister Hassan al-Shimmari announced in mid-March that the ministry would execute 150 people in the coming days. At least 50 people have been executed in the last month.

“The government seems to think that the best way to combat the increase in violence and terror that Iraq has suffered since the beginning of the year is with yet more state killing and injustice,” said Sarah Leah Whitson, Middle East director at Human Rights Watch. “The concurrent escalation in attacks and in executions makes clear that its brutal tactics are not working.”

In February and March, Human Rights Watch spoke separately to many detainees whose statements indicated that reforms had yet to be carried out. They detailed numerous instances of abuse, including warrantless arrests, prolonged detentions without being taken before a judge, and security forces’ use of torture and other abuses during interrogations.

In many cases, detainees told Human Rights Watch that they had been convicted on terrorism charges solely on the basis of testimony provided to the trial court by a secret informant, whom they were not able to challenge. Defense lawyers and court documents frequently confirmed the detainees’ allegations.

In a February meeting, al-Shahristani, whom Prime Minister Nuri al-Maliki appointed to head a ministerial committee to carry out the criminal justice reforms, told Human Rights Watch that at least 6,000 of the 13,000 people who had been arrested under article 4 of the Anti-Terrorism Law were still waiting to be tried or released, including “people who have been waiting for years.”

He acknowledged that there were “problems with judicial orders,” and that security officers frequently did not wait for judicial orders to make arrests, nor did they carry out judicial orders for release. Iraq’s criminal procedure code prohibits arrests without a judicial arrest warrant unless the person arrested directly confronted a member of the security forces with a weapon, but al-Shahristani acknowledged that security forces frequently carry out mass arrests without arrest warrants.

 “I know how it should be,” he said, adding, “If some people are not abiding by the rules they should be charged with violating peoples’ rights.”

In recent statements, both the justice and human rights ministers have attempted to justify the executions, contending that those executed were “terrorists.” But there is considerable evidence that security forces have used the 2005 Anti-Terrorism Law to conduct serious abuses against those they arrest under the law that have gone unpunished.

The justice and human rights ministers’ statements and the significant increase in executions ahead of the provincial elections led local activists and some members of parliament to suggest that Iraqi authorities may be using executions as a political tool to show that they can be tough on terror.

“The justice and human rights ministers’ statements betray a callous indifference toward widespread allegations of rampant abuse in the criminal justice system,” Whitson said. “If Iraqi officials would devote the same energy they expend on belligerent rhetoric to actually addressing their citizens’ grievances, they might mitigate the ongoing judicial crisis and help to stem attacks on innocent civilians.”

The Justice Ministry rarely provides information about executions in advance, the identities of those executed, the charges against them, or the evidence presented against them at trial. A Justice Ministry employee told Human Rights Watch that execution orders for people on death row are handed down directly from the Prime Minister’s Office to prison facilities.

Iraqi authorities announced the execution of four prisoners on April 1, and seven more on April 7. On April 17, the Justice Ministry announced that it had executed 21 “terrorist members of Al-Qaeda” but – as has become the norm in announcing executions – failed to disclose the identities of those executed, say when they were tried, or give other details. The ministry said merely that they were “terrorists” convicted under article 4 of the Anti-Terrorism Law, No. 13 of 2005, who had participated in assassinations, explosions, and other terrorist attacks.

These latest executions follow a substantial increase in the use of the death penalty last year. Iraq executed 129 people in all of 2012, which was a marked increase from 62 in 2011. Despite a widespread outcry against the recent executions, the government has said the executions would continue.

On March 18, the day after a bloody attack on the ministry he oversees, al-Shimmari announced that the government would “continue to execute Al-Qaeda criminals,” and that, “I will personally oversee hastening implementation of executions.” After mounting international condemnation of the continued executions, Human Rights Minister Mohammed Shia al-Sudani justified the executions as “a necessary deterrent to protect citizens’ lives” in a statement to local media on April 18 and said the government would continue to carry out executions until “violence ceases in Iraq.”

“If officials genuinely believe that executions are effective in deterring terrorist attacks, it is puzzling that the whole process is so shrouded in secrecy – especially the identities of those executed and the charges and evidence against them,” Whitson said. “In the face of overwhelming evidence that Iraq’s criminal justice system fails to protect citizens adequately from abuses by state officials, particularly in terrorism-related cases, the government’s insistence on continuing to execute prisoners sentenced under a system it has pledged to reform is reprehensible.”

International human rights law requires that where the death penalty has not been abolished, it should be imposed only for the most serious crimes and after scrupulous adherence to international fair trial standards, including the rights of the defendant to competent defense counsel, to be presumed innocent until proven guilty, and not to be compelled to confess guilt. The law and practice concerning death penalty trials in Iraq violate these minimum guarantees, Human Rights Watch said.

Human Rights Watch opposes capital punishment in all countries and in all circumstances because the inherent dignity of the person is inconsistent with the death penalty. This form of punishment is unique in its cruelty and finality, and it is inevitably and universally plagued with arbitrariness, prejudice, and error.

The government of Iraq should place an immediate stay on all pending death sentences, publicly institute a moratorium on executions, and take steps to abolish the death penalty and to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, Human Rights Watch said. Iraq should also order a thorough and impartial investigation into the executions.

For background on the government’s reform promises and justice system abuses, please see below.

The Government’s Reform Claims
In December 2012, thousands of Iraqis took part in demonstrations, demanding reform of the Anti-Terrorism Law and the release of illegally held detainees.

Article 4 of the 2005 law defines as criminals “those who commit ... terrorist acts” as well as “those who provoke, plan, finance and all those who enable terrorists to commit these crimes.” Officials have used these provisions to obtain convictions based on coerced confessions and secret informant testimony, which defendants were not able to challenge, rather than substantive evidence, Human Rights Watch said. The law provides the death penalty for anyone convicted under article 4.

Human Rights Watch has expressed its concern on numerous occasions that these extremely vague definitions allow Iraqi authorities to impose the death penalty arbitrarily by encompassing even peaceful political protests within the vague ambit of “terrorism.”

Iraqi law imposes the death penalty for 48 crimes, including a counter-trafficking law passed in 2011 and several that fall well outside of the international standard that limits the death penalty in countries that retain it only to “the most serious crimes.” But most executions for which the criminal charge has been revealed have been under article 4 of the Anti-Terrorism Law.

Prime Minister al-Maliki announced in January that he had created special committees to oversee the release of thousands of prisoners and a series of reforms. Government officials heading these committees pledged that all detainees would be brought before investigating judges within 24 hours of arrest and that the government would end the use of testimony by secret informants as the sole basis for convictions. They also said that female detainees would be transferred to their home provinces to serve their sentences.

But it is unclear whether any of the promised changes have been made. High-level security officials told Human Rights Watch in interviews in February that the government was implementing a de facto moratorium on executions until death penalty convictions could be adequately reviewed, but the step was never announced publicly.

The government said the changes were intended to address frequent and repeated complaints – mostly by protesters in areas with majority Sunni populations – that convictions, particularly in cases involving defendants charged under article 4 of the Anti-Terrorism law, are based on testimony provided by secret informants or on coerced confessions obtained under torture or other ill-treatment. On April 7, the Council of Ministers announced it had approved initial amendments to laws governing the use of secret informants, but it has released no specifics as to the changes or their effects on defendants’ trials.

In his meeting with Human Rights Watch in February, al-Shahristani told Human Rights Watch that courts could no longer accept secret informant testimony without supporting evidence. Media reports on April 4 suggested, however, that security forces were using secret informants to make new arrests.

In 2012, Human Rights Watch documentedsecurity forces’ practice of conducting abusive interrogations in facilities outside the authority of the justice system to obtain coerced confessions to be used as key evidence to convict defendants. Since the increase in executions became public, detainees and their families have told Human Rights Watch that security forces threaten detainees that if they refuse to confess to crimes or to pay bribes, or if they speak publicly about abuse, they will “make sure” that the detainee ends up on death row.

International Reaction
On April 19, United Nations High Commissioner for Human Rights Navi Pillay condemned the latest executions, describing Iraq’s justice system as “too seriously flawed to warrant even a limited application of the death penalty, let alone dozens of executions at a time.” She said she was “appalled” by Justice Ministry statements indicating that it planned to execute 150 more prisoners in the coming days and likened Iraq’s mass executions to “processing animals in a slaughterhouse.”

Pillay’s spokesperson said 1,400 people are believed to be currently on death row in Iraq, but other sources in the Justice Ministry and close to the prime minister have said the figure could be much higher. In March, Human Rights Watch visited the 38 women on death row.

On April 22, EU ambassadors in Baghdad issued a statement in which they expressed their alarm that despite the Iraqi government’s stated intention to “review the sentences of many convicted prisoners . . . executions have continued at the same time,” despite “an excessive reliance on confessions to secure convictions, and . . . evidence that those confessions are sometimes given under duress.”