February 3, 2011

II. Freedom of Expression

"Carrying an AK47 in Baghdad is a lot easier than carrying a camera."
— Freelance journalist, Baghdad, April 6, 2010

On May 4, 2010, assailants abducted Sardasht Osman, a 23-year-old freelance journalist and student, at the entrance of his college in Arbil.[116] His tortured body, with two bullets in his head, was found a day later on a road near Mosul.

Friends and family say they believe Osman, who freelanced for different publications, died because he wrote critical articles about the region's two governing parties, their leaders, and the region's ingrained patronage system.[117] A family member who saw his body said that he had been shot in the mouth, which he and other local Kurdish journalists told Human Rights Watch they interpreted as a message to the media to "be quiet."[118]

Though fewer Iraqi journalists in 2010 shared Sardasht Osman's fate than did in the period between 2003 and 2008, Iraq still remains one of the most hazardous places in the world to work as a journalist. Murders, assaults, and threats continue against writers for doing their jobs. Government officials, political party figures, and militias may all be responsible for the violence, intended to silence some and intimidate the rest. New obstacles to the free exchange of information have emerged in the period since 2007: the rising number of libel suits lodged by government officials against journalists, and increasingly restrictive regulations that constrain their professional activity. Legislation intended to create additional protections for journalists has been stalled for more than a year and is unlikely to move forward any time soon.

Iraq is obligated to respect the right to freedom of expression of all persons under international law and Iraq's constitution. However, its national laws and regulations are inconsistent with these obligations. As Human Rights Watch has documented in this report, the Iraqi government can use these laws to revoke or suspend broadcasting licenses and bring charges against individuals.

Two pieces of legislation designed to facilitate the work of journalists are stalled in Iraq's parliament, the Council of Representatives: the Access to Information Law, which ensures the right of journalists to obtain public information, and the Journalists' Protection Law, which aims to protect media workers and compensate them for injuries sustained while working. Local press freedom advocates and journalists expressed concerns that the Journalists' Protection Law should apply broadly and protect all journalists including those working in new media. The law currently defines "journalist" narrowly as someone who works for an established news outlet and is affiliated with the Iraqi Journalists' Syndicate.[119]

Background

Prior to 1968, Iraq's media was relatively free compared with other countries in the Middle East. The Ba'ath party's takeover of the government that year led to increasing restrictions on media, which intensified after Saddam Hussein assumed the presidency in 1979. In 1992, Saddam Hussein's son Uday, who had no relevant experience as a journalist or publisher, became head of the Iraqi Journalist Union, which all Iraqi journalists were required to join in order to practice their profession. Official government propaganda dominated media coverage in Iraq until the US-led occupation in 2003.[120]

In the months that followed the invasion, Iraq experienced a media boom, as new publications and television and radio stations sprung up across the country. Iraqi media analysts estimated that more than 200 newspapers and 90 television and radio stations were operating in Iraq one year after the fall of Saddam. Iraqis could also access new sources of information via the Internet and satellite dishes, which the previous government had tightly controlled.[121]

It was not long before government restrictions appeared. Within weeks of the invasion, the US-led Coalition Provisional Authority (CPA) issued Order 14, which prohibited media from inciting "violence against any individual or group," inciting "civil disorder," or advocating "alterations to Iraq's borders by violent means."[122]

In the years since the occupation, journalism became a dangerous occupation in Iraq. According to the New York-based Committee to Protect Journalists, Iraq was the deadliest country in the world for journalists for six consecutive years, between 2003 and 2008.[123]

More than 145 journalists have been killed in Iraq since 2003, including at least 90 who were targeted for murder.[124] Sixteen of the slain journalists died as a result of fire by US forces in Iraq.[125] US troops also detained journalists, some on the perception that they were either engaged in or supporting the insurgency.[126] Although there has been a decline in media fatalities and abductions during the past two years, consistent with an overall drop in violence in Iraq, attacks continue. Nongovernmental militias, state forces, and political party-linked assailants have all been linked to these attacks. No matter who the perpetrators may be, police as a rule fail to thoroughly investigate such attacks, and the assailants are rarely if ever held to account. The frequent violence, committed with impunity, severely constrains freedom of expression.

Violence against Journalists

Attacks by Unknown Armed Groups

On July 26, 2010, a suicide car bomber detonated his vehicle in front of the Al Arabiyya satellite television station, killing six people and destroying the Baghdad bureau. The Islamic State of Iraq, an umbrella group associated with al Qaeda in Mesopotamia, later claimed responsibility for the attack on the "corrupted" channel, stating on a website that the operation aimed to hit the "mouthpieces of the wicked and evil." The statement continued: "We will not hesitate to hit any media office and chase its staffers if they insist on being a tool of war against almighty God and his Prophet."[127]

Assailants previously targeted Al Arabiyya, one the most popular networks in the Middle East but perceived by some as being pro-Western. On September 9, 2008, the network's Iraq bureau chief, Jawad Hattab, escaped an attempted assassination when he discovered an explosive device under the seat of his car as he prepared to leave home for work. In October 2006, a car bomb targeting Al Arabiyya's previous Baghdad bureau killed seven and wounded 20. In February 2006, armed men kidnapped and killed Atwar Bahjat, an Al Arabiyya anchorwoman, Khaled Mahmoud Al Falahi, a cameraman, and Adnan Khairallah, a technician, in Samarra.

Since 2003, militias have repeatedly targeted journalists whom they claim are promoting immorality or fraternizing with occupation forces. One journalist in Baghdad told us he was abducted and tortured after someone leaked a 10-minute video of him with other Iraqi journalists mingling at a function with US forces. Posted online, the banner above the video read: "Iraqi journalists who collaborate with American forces." In August 2006, as he was leaving to go to work, a car pulled up next to him and he heard one of the occupants say, "This is one of them." Masked men jumped out of the car, beat him on his face and head, and dragged him into their car. After the abductors took him to a safe house, one of the kidnappers told him, "You seem like a good person, why are you always against your religion and standing with the Americans?" He asked who they were and they replied, "The group of honor." Over the next five days, he said, his abductors tormented him. They repeatedly raped him, burned him with cigarettes, and deprived him of water and food before they released him.[128]

Often it has been unclear who is behind specific attacks targeting journalists, as in the cases of a spate of attacks against television journalists in Baghdad and Mosul in September 2010. On September 27, 2010, a bomb placed underneath Alaa Mohsen's car exploded and badly injured him as he was about to leave for work in Baghdad. Mohsen is a television presenter for Al-Iraqiyya, part of the state-run Iraqi Media Network.[129] On September 8, armed men in a car shot and killed Sabah al-Khayat, a television presenter, as he was leaving his house in Mosul. Al-Khayat had presented a program on mosques and shrines for Al-Mosuliyya satellite television.[130]

The day before, on September 7, unknown gunmen shot and killed prominent anchorman Riad al-Saray as he was leaving his house in western Baghdad. Al-Saray, known for his attempts to narrow sectarian differences in Iraq, presented political and religious programs for Al-Iraqiyya.[131] At least 14 other Iraqi Media Network staffers have been killed since 2003, the highest death toll for any media organization in Iraq during that period.[132]

Mu'aid al-Lami, head of the Iraqi Journalists' Syndicate, which represents 12,000 journalists, survived two assassination attempts by unknown assailants in less than two years.[133] On September 20, 2008, he survived a bomb attack near the organization's office. On March 12, 2010, gunmen opened fire on his car, killing his driver. He continues to receive death threats warning him to quit his job, he said.[134] His predecessor, 74-year-old Shihab al-Tamimi, was shot by unidentified gunmen on February 23, 2008, as he was leaving the association's Baghdad office and died from his wounds three days later. Al-Lami estimates that 1,000 journalists have fled Iraq since 2003, mainly because of the security situation. Al-Lami and other press defenders said that authorities do not investigate threats against media workers and perpetrators are rarely brought to justice.

Violence linked to State and Political Party-Affiliated Forces

In a satirical web article in December, which fellow journalists believe sealed his fate, Sardasht Osman broke taboos of the region's conservative culture by referring to a female family member of Massoud Barzani, the region's president and leader of the Kurdistan Democratic Party (KDP). In the article, "I Am in Love with Barzani's Daughter," Osman pondered how he could rise from his poor surroundings by marrying one of Barzani's daughters.[135] Five months later, Osman was shot to death.

Bashdar Osman, Sardasht Osman's brother, told Human Rights Watch that after the publication of that article, his brother received multiple threats by text message and telephone in early January from a person or persons the family believed worked for KRG or KDP security forces. The threats all referenced Sardasht Osman's recent writings and said that he "would pay" for his insults. Sardasht Osman "called the police chief of Arbil and provided the telephone number from which threats were received, but he refused to help," Bashdar Osman said. The police chief "only responded by saying Arbil was safe, and that no one could hurt him."[136]

Bashdar Osman said his brother became more frightened as the weeks passed and became visibly rattled whenever he saw government or security vehicles. "He thought he would be killed at any time by a gun with a silencer," Bashdar Osman said.[137]

Khellan Bakhtyar, a close friend of Osman who often co-wrote articles with him, said that Osman told him that persons had threatened him with violence if he did not stop writing "disrespectful" articles. Bakhtyar said that Osman believed the threats were from government intelligence agents. "It is crossing a red line to write about Barzani or his family," Bakhtyar told Human Rights Watch. "If you are not sued or arrested, something worse can happen."[138]

In their last collaboration published in May 2010, Osman and Bakhtyar criticized a senior leader of the Patriotic Union of Kurdistan (PUK), the region's other leading party. Bakhtyar said that after Osman was murdered, Bakhtyar organized protests in his friend's honor. "I was called by the Asayish [the Kurdistan Regional Government's intelligence agency]," he told Human Rights Watch. "They told me: ‘You are playing a dangerous game. If you happen to be killed by someone, it is not our responsibility. We have warned you.'" Bakhtyar left Iraq in early September 2010, and as of December 2010 he was applying for political asylum in Europe.[139]

In response to Osman's murder, 75 Kurdish journalists, editors, and intellectuals issued a statement that held the regional government responsible for Osman's death: "This work is beyond the capability of one person or one small group. We believe the Kurdistan Regional Government and its security forces are responsible first and foremost and they are supposed to do everything in order to find this evil hand."[140]

While taking part in a protest in Sulaimaniyya in the days following Osman's murder, the editor of an influential magazine said he received a chilling text message: "We will kill you like a dog."[141]

Kamal Chomani, another journalist who wrote and translated several articles about Osman's death, told Human Rights Watch that he received an anonymous email in August that read: "Give up what you are doing. If you don't think of yourself, then think about your parents. We can do whatever we want."[142]

On September 15, 2010, an inquiry consisting of unnamed persons appointed by Barzani concluded that an Islamist armed group, Ansar al-Islam, was responsible for Osman's abduction. The committee's 430-word statement did not substantiate its findings beyond referring to a confession from one of the alleged perpetrators. The committee did not interview Osman's family or those close to him.[143]

In a rare disavowal, Ansar al-Islam denied responsibility for the killing. "If we kill or kidnap someone, we will announce it ourselves," the group said in a statement released on September 21. "We don't need anybody to lie for us."[144]

The committee's allegation that Osman was connected to Ansar al-Islam has stirred anger in his family and among others close to him. "Sardasht was a secular, liberal man, not in any way an Islamic fundamentalist," Bakhtyar said. "His writing was about abuses of regional power and nepotism in the government, nothing Ansar al-Islam talks about."[145]

Since the release of the statement, members of Osman's family say they have been threatened by government forces and KDP members after speaking out against the committee's findings.[146]

For several journalists who spoke with Human Rights Watch, Osman's murder was reminiscent of the July 2008 killing of Soran Mama-Hama, an investigative reporter with Livin magazine, who had also written articles critical of Kurdish authorities. He was assassinated outside his parents' home in a Kurdish-controlled section of Kirkuk. In one article, Mama-Hama had written about the suspected involvement of Kurdish officials, including police and security officials, in prostitution rings.[147]

Harassment, Threats, and Assaults against Journalists

As the security situation has gradually improved after 2007 and fatality rates for journalists have decreased, media workers today find themselves encountering new risks to their work—they are regularly harassed, intimidated, threatened, arrested, and physically assaulted by security forces loyal to the government or political parties.[148] Journalists in Baghdad, Basra, and Tikrit recounted numerous abuses they had personally experienced.

"Before 2003, I lived in Iraq and we used to wish for freedom including freedom of expression," said al-Lami from the Journalists' Syndicate. "Today there is a wider space for freedom of expression. But journalists are still in danger if they expose corruption or government mistakes. We believe we are the fourth pillar, but the government thinks we belong to them. There is a conflict between those seeking freedom and those wanting to drag us back."[149]

Ziad al-Ajili, head of the Journalistic Freedoms Observatory (JFO), an Iraqi press freedom group, has experienced this intimidation first hand. On his way to a JFO ceremony in December 2009 to honor journalists who exposed corruption, Iraqi security forces from Baghdad Operations Command stopped his vehicle—which was known to security forces since it was the only maroon colored Humvee in the country. They told him they had received a report that his vehicle was suspicious. Having good contacts within the security forces, he made some calls and secured his release. Once he arrived at the Mansour hotel in Baghdad for the ceremony, six military Humvees with 35 soldiers requested that hotel security bring him out. "They were trying to humiliate me in front of the journalists and officials. Their message was: "Stop what you are doing or we will pull your ear [punish you]."[150]

Journalists who uncover corruption or criticize senior government officials are at particular risk of abuse.

Two television presenters, famous in Iraq for provocative shows that criticize the government, said they had been beaten by security officials on different occasions over the past two years.[151] Human Rights Watch viewed one video filmed by his cameraman in which Iraqi security officials punched one of the presenters and attempted to drag him into a van during a taping on a busy Baghdad street in 2009.

Since the two presenters are well known, security forces on the streets of Baghdad can easily recognize them. In the fall of 2009, they said police detained the pair for allegedly not properly stopping at a Baghdad checkpoint. One officer slapped the passenger on the head and shouted, "You Ba'athist!" Six or seven police dragged them out of the car, kicking and beating them. The police arrested and took them to a police station. Although the police officially charged them with running a checkpoint, the line of questioning during their interrogation was political. An officer spat on one of the journalists and asked them, "Why do you incite uprisings against the government?" and "Why do you glorify Saddam?" The police dropped the charges and released the pair after their television station intervened.[152]

Another journalist, a television presenter in Baghdad, told us that he was inundated with death threats via text messages after he insulted a religious political party on air.[153] He showed us 21 of the dozens of threatening text messages he had received. One text, dated September 24, 2009, read: "We will behead those who contribute to the perversion and corruption of the lands of Islam." Another text, received four days later, read: "Dig your grave, sew your death shroud, and write your will. Be prepared for your fate of death."[154]

One Basra journalist told us that he continues to live in hiding after he published a 2006 article on corruption at the highest levels of Basra's city council.[155] He received death threats in the following months, including a phone call in which the caller told him, "Your end is near, enjoy your last days." After assailants shot at his house, he moved to a different neighborhood and kept a low profile. Police offered him protection but he refused, believing it makes him more of a target. "I've paid a high price for what I've done," he said.[156]

Legal and Regulatory Barriers to Free Expression

Restrictions on Photography

According to numerous journalists Human Rights Watch interviewed in Baghdad and Basra, Iraqi security forces have frequently prevented media from filming or taking photographs in public. Elections in particular raised authorities' sensitivities, and were accompanied by greater restrictions on photographers' freedoms. Sites of terror attacks, too, were deemed too sensitive for free access. The problem became worse after the Ministry of Interior issued an order on May 13, 2007, banning photographers for an hour from the scenes of bombings, ostensibly to allow security forces enough time to secure affected areas and help the injured.[157]

During the January 2009 provincial elections, authorities detained some journalists for hours; others were beaten, had their equipment destroyed, and were prevented from entering polling stations. In Basra, one photographer, despite having proper accreditation, had to wait an hour and a half at the polling station before he was let in. "When I finally got in, I took photographs for 40 seconds before I was approached by the person in charge, who asked me, 'Who let you in?' He waved to the police officers to kick us all out." The police confiscated his camera and, he said, deliberately broke it before returning it to him.[158]

In the lead-up to Iraq's parliamentary elections in March 2010, a cameraman in Basra working on a feature story about female candidates told Human Rights Watch that police detained him for hours because he filmed campaign posters.[159] "After the police stopped me, I explained to him who I was and what I was filming," he said. "But he kept asking if I had a letter authorizing me to film the streets. I laughed, saying I didn't know I needed official permission to do my job. I was detained and released after three hours when the police media office intervened. At that point it was too late to continue filming. The whole episode deterred me from filming outside again."

While some journalists said they understood the security rationale behind security forces' preventing filming of checkpoints and sensitive military installations, they do not understand why they were prevented from filming areas devastated by bombings, for example. Journalists suspected that government officials are trying to prevent photographers and cameraman from filming events that might tarnish the government's reputation.

Journalists complained that it is now extremely difficult if not impossible to photograph bomb scenes until security forces have "sanitized" the area first. Security forces rough up journalists who attempt to take pictures and confiscate their cameras and flash cards.[160]

"The biggest problem that journalists have to deal with in Iraq is the dictatorship mindset of security officials in Iraq," said Ziad from the JFO.

The police and the army act terrified if they see a camera. Whenever they see a camera, they demand that journalists get permission from Baghdad Operations Command [a security task force answering directly to the Prime Minister's Office]. Iraq is a police state and the police here do not understand freedom of expression.[161]

According to New York Times photographer Joao Silva, a veteran of war zones, there is a clear government policy to keep photographers away from bomb scenes.[162]

The Iraqis have learned the power of photographic images, and they know that if there are no photographs of a bomb, it has far less impact abroad. We still try to go, but usually the police stop us before we get near enough to the scene to photograph it. They will let a reporter go up close, but no cameras. Sometimes you get lucky and manage to get an image. And on the really big explosions, like at the Hamra Hotel in January [2010] and the government ministries last year, they are just too big to keep everyone away. But usually they are very careful not to let cameras near. It's hit and miss, but there is definitely a culture of "See No Evil."

Human Rights Minister Salim told us it is important for security forces to limit access to areas hit by terrorists because those areas are crime scenes with potential evidence.

Iraq is not a normal country—we have significant security problems, terrorists are killing people every day. Our laws and our constitution protect journalists but journalists have to be reasonable. When bombings occur, journalists could potentially contaminate crime scenes, so it understandable that security forces would limit their entry to bomb scenes. Security forces aren't able to do their work if there are 100 people milling around. It's also a dangerous area because sometimes there are multiple explosions, so it's also for [the journalists] own security that they are removed.[163]

Journalists told us that security forces prevented them from filming even non-contentious public sites. "In Basra, security forces act with complete disdain and disrespect for journalists," one said.[164] He said that even after he had received all the proper authorizations over a month and a half earlier to film oil fields in the south for a story on oil field investment, the government security force guarding the facilities detained and humiliated him and his crew. After roughing them up, the security guards confiscated their camera and equipment and deleted all their footage.

Another cameraman for a news show in Basra said security forces frequently harassed him when filming in public.[165] In one incident in early 2010, he filmed one of the station's correspondents in front the Provincial Council building, which they used as a backdrop. As they were packing up, police approached them, demanding to know what they were filming and whether they had proper authorization. "We showed them our badges and told them we didn't need authorization because we were not planning to shoot inside the provincial council building. The next thing we knew, the police detained us and confiscated my video camera until the media office instructed them to release us."

Civil and Criminal Defamation Suits

The government has become more effective at clamping down on negative scrutiny by using the country's broad criminal and civil libel laws to silence those who criticize members of the government. While the constitution broadly provides for the right to free expression (provided it does not violate public order and morality), the penal code authorizes fines and imprisonment for any person who publicly insults the Council of Representatives, the government, or public authorities.[166]

Additionally, the Law of Publications bans materials that are "offensive" or "violate general moral values."[167] Under Iraq's civil code, a person, including a journalist, is liable for "moral injury," which includes "any encroachment (assault) on the freedom, morality, honor, reputation, social standing, or financial position (credibility) of others."[168] There is no cap on the amount that can be demanded or awarded.

Hassan Shaaban, a human rights and media lawyer who is legal counsel to the JFO, told Human Rights Watch that because the civil code is so vague, judges have enormous discretion in determining what constitutes a moral injury. [169]

Hasshim al-Mosawi, legal counsel at the Iraqi Journalist Rights Defense Association, whose 14 lawyers have tried 25 cases since it was founded in 2006, said that without a unified law regulating media, judges will be able to continue relying on the vague and outdated provisions of different pieces of law when trying a civil or criminal suit. "This is why [the judges] are jumping from this to that law. If they do not find a journalist guilty under one law, they can go to another. It leaves too much up to the judge's opinion. He can bend the text as he likes, because the law is not clear. The judge can define the crime with one law and then extract the punishment with another."[170]

Al-Mosawi said that in the first 10 months of 2010, government or party officials had filed 55 lawsuits in central Iraq and Kurdistan, up from 35 in 2009.

The Journalists' Syndicate's al-Lami said that his organization is helping journalists challenge more than 30 lawsuits launched by the government. "Before 2008 things were different—killing was the preferred method of silencing journalists in Iraq. Today it's with lawsuits."[171]

Most recently, the Kurdistan Democratic Party—headed by KRG President Masoud Barzani—filed a one billion dollar defamation lawsuit against opposition weekly Rozhnama after a July 20, 2010, article accused the KDP and the Patriotic Union of Kurdistan of profiting from illegal oil smuggling to Iran.[172]

Iraqi officials have not limited themselves to local media. In February 2009, a lawyer for Prime Minister Nuri al-Maliki filed a one-billion-dinar (US$860,000) lawsuit against Ayad al-Zamli, owner of the German-based Arabic-language website Kitabat, and one of the website's writers, in connection with an article describing alleged nepotism in the Prime Minister's Office. After a local and international outcry, al-Maliki withdrew the lawsuit.[173]

In May 2009, the Iraqi National Intelligence Service (INIS) filed a defamation complaint against the London-based Guardian newspaper over an article documenting what it said were increasingly autocratic practices of the prime minister. In November, an Iraqi court ordered the Guardian to pay damages of 100 million dinars ($85,000).[174]

New Regulatory Barriers and Legislative Inaction

Iraq's Communications and Media Commission began enforcing new regulations issued ahead of the March 7 parliamentary elections ostensibly to silence broadcasters who encourage sectarian violence. The regulations suffer from several drafting defects that encroach on the freedoms of Iraq's broadcast media.[175] A review of the regulations by Human Rights Watch found that the content-based restrictions are underdeveloped, vague, and susceptible to abuse. The regulations stipulate: "the [media] establishment should not broadcast any material that incites violence [or] sectarianism" without giving any clear guidelines as to what that encompasses.[176]

The regulations also stipulate that all broadcasters and their journalists must seek permission from the commission to operate in Iraq but provide little information on the criteria the government would use in issuing licenses. The regulations give the CMC the power to close, suspend, fine, and confiscate equipment for first-time minor violations of the licensing terms.[177]

One media outlet has already fallen victim. On November 1, 2010, the CMC ordered the shutdown of the Baghdad and Basra offices of Al-Baghdadiyya, according to staff interviewed by the Committee to Protect Journalists. The decision came a day after the Cairo-based satellite channel broadcast demands from gunmen who had attacked a Baghdad church, an attack which resulted in the death of 44 parishioners and two priests. A statement by the CMC following the closure accused the station of being a mouthpiece for the gunmen whose demands amounted to "incitement to violence." It said the station's coverage was not objective and had threatened military operations to rescue the hostages.[178]

International Standards Protecting Freedom of Expression

Article 19 of the ICCPR imposes legal obligations on states to protect freedom of expression and information:

"Everyone shall have the right to hold opinions without interference; everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."[179]

The ICCPR permits governments to impose certain restrictions or limitations on freedom of expression only if such restriction is provided by law and is necessary: (a) for respect of the rights or reputations of others; or (b) for the protection of national security or of public order (ordre public), or of public health or morals.[180]

Iraqi authorities regularly declare that broadcasts are "inciting violence and sectarianism" as the rationale for restricting media. The tension between the right to free expression and information on the one hand, and national security on the other, has been the subject of much inquiry by courts, international bodies, and scholars. The UN Human Rights Committee, which monitors state compliance with the ICCPR, has stated that "the legitimate objective of safeguarding and indeed strengthening national unity under difficult political circumstances cannot be achieved by attempting to muzzle advocacy of multiparty democracy, democratic tenets and human rights."[181] A group of experts in international law, national security, and human rights issued the Johannesburg Principles on National Security, Freedom of Expression and Access to Information on October 1, 1995.[182]

Over time, the international legal community has come to widely recognize these principles as an authoritative interpretation of the relationship between these rights and interests, reflecting the growing body of international legal opinion and emerging customary international law on the subject. The principles set out guidelines on restrictions on free speech, including the principle that governments must use the least restrictive means possible in prohibiting speech that is contrary to legitimate national security interests.[183] According to the principles, national security interests do not include "protect[ing] a government from embarrassment or exposure of wrongdoing."[184]

Some restrictions on free speech—such as criminalizing incitement to violence—are permitted under international law, but such restrictions must meet several high hurdles. First, restrictions must be prescribed by law, and they must be accessible, clear, narrowly drawn, and subject to judicial scrutiny.[185] Second, the restriction must have both the genuine purpose and the demonstrable effect of protecting national security.[186] Third, the restriction must apply only where the expression poses a serious threat, is the least restrictive means available, and is compatible with democratic principles.[187]

Various human rights bodies and courts around the world have determined that protection of freedom of expression must include tolerance of criticism of public officials.[188] As the African Commission stated, "People who assume highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise public debate may be stifled altogether."[189]

National Standards on Freedom of Expression

Iraq's Constitution has several provisions related to freedom of expression:

  • Article 38 guarantees "in a way that does not violate public order and morality "all means of freedom of expression[190] as well as freedom of press, printing, advertisement, media, and publication.[191]
  • Article 46 allows restrictions on the right to freedom of expression "by law or on the basis of it, and insofar as that limitation or restriction does not violate the essence of the right or freedom."
  • Article 102 establishes the Communications and Media Commission, the regulatory body for broadcasting and telecommunications, as a "financially and administratively independent institution" and specifies that it shall be "attached to" Iraq's parliament, known as the Council of Representatives.

Defamation is a criminal and civil offense in Iraq and both codes contain vague and underdeveloped provisions that restrict the right to freedom of expression.

Under the 1951 civil code, a journalist is liable for "moral injury," including "any encroachment (assault) on the freedom, morality, honor, reputation, social standing, or financial position (credibility) of others."[192]

Under the 1969 penal code, it is a crime to:

  • Insult the Arab community, the Iraqi people (including any part of the population), the national flag, or any state emblem;[193]
  • Publicly insult the President or his representative;[194]
  • Publicly insult any public institution (including parliament or a court)or official;[195]
  • Publicly insult a foreign country, flag or national emblem, or international organization with an office in Iraq;[196]
  • Insult or threaten a public servant or body in the course of its work;[197]
  • Attack the creed of a religious minority, or insult a symbol or person which/who is an object of sanctification, worship, or reverence;[198]
  • Defame another, and if the defamation is published in the media it is considered an aggravating offense;[199]
  • Insult another, including directing abuse which compromises their honor or status or offends them. Publication of such abuse in the media is an aggravating circumstance.[200]

The penal code contains other restrictions outside of defamation. It is also a crime to:

  • Broadcast or disclose secrets relating to the defense of the state; [201]
  • Willfully broadcast, in times of war, false or biased information, statements, or rumors that may spread panic or lower the morale of the population;[202]
  • Willfully broadcast abroad false or biased information concerning the internal situation in Iraq that would undermine financial confidence or tarnish Iraq's international standing ;[203]
  • Publish or broadcast any governmental material the publication of which has been prohibited;[204]
  • Maliciously obtain materials that incite constitutional change or that promote banned ideologies with the aim of publishing them;[205]
  • Willfully broadcast (or intent to willfully broadcast) false and ill-intentioned news, statements, or rumors, or disseminate inciting propaganda if this disturbs public security, intimidates people, or inflicts harm on public interest;[206]
  • Publish by any means false information if this disturbs the public peace;[207]
  • Possess (with the aim of publication, trade, or distribution) materials that endanger public security or tarnish the country's reputation;[208]
  • Publish proceedings of parliament's secret sessions or, if done maliciously or inaccurately, parliament's open sessions;[209]
  • For a public official or agent, to knowingly release information obtained in the course of duty or relating to a contract or transaction to a person from whom s/he is required to withhold it, if this results in harming state interests;[210]
  • Possess for publication any material "that violates the public integrity or decency";[211]
  • Divulge secrets obtained through employment or professional activities, except when the aim is to report or prevent a crime;[212] and
  • Publish private information or a picture where this causes offense.[213]

The Coalition Provisional Authority further extended the range of prohibited actions through CPA Order 14, which prohibited the publication of any material that incites violence, civil disorder, rioting or damage to property, or advocating the return of the Ba'ath Party, among other things.[214]

The Communications and Media Commission implemented broadcast media regulations ahead of the March 7, 2010 elections, as described above.[215] Provisions included a blanket ban on broadcasting "any material that incites violence [or] sectarianism."[216] The CMC has not provided any guidance toward the meaning of that concept. The regulations give the CMC the power to cancel licenses after certain first-time minor offenses.[217]

[116]"Iraqi Kurdistan: Journalists Under Threat," Human Rights Watch news release, October 29, 2010, http://www.hrw.org/en/news/2010/10/28/iraqi-kurdistan-journalists-under-threat.

[117]Sam Dagher, "Abducted Kurdish Writer Is Found Dead in Iraq," New York Times, May 6, 2010; http://www.nytimes.com/2010/05/07/world/middleeast/07erbil.html (accessed September 11, 2010); Sam Dagher, "Killing of Journalist Inflames Iraqi Kurds," New York Times, May 10, 2010;

http://www.nytimes.com/2010/05/11/world/middleeast/11erbil.html (accessed September 11, 2010).

[118]Human Rights Watch telephone interview with a member of Osman's family, October 20, 2010.

[119]Iraq Journalists' Protection Law, Draft, April 2010.

[120]Freedom House, "Liberated and Occupied Iraq: New Beginnings and Challenges for Press Freedoms," August 2004, http://www.freedomhouse.org/uploads/special_report/34.pdf (accessed January 10, 2011).

[121] Ibid.

[122]Coalition Provisional Authority Order 14, "Prohibited Media Activity," June 10, 2003.

[123] Committee to Protect Journalists, "For Six Straight Year, Iraq Deadliest Nation for Press," December 18, 2008, http://cpj.org/reports/2008/12/for-sixth-straight-year-iraq-deadliest-nation-for.php (accessed January 10, 2010).

[124]Committee to Protect Journalists, "Attacks on the Press 2009: Iraq," February 16, 2010,

http://cpj.org/2010/02/attacks-on-the-press-2009-iraq.php (accessed September 11, 2010).

[125] The Committee to Protect Journalists has not found evidence to conclude that US troops targeted the 16 slain journalists and has classified the cases as crossfire. CPJ, "Journalists in Danger: A statistical profile of media deaths and abductions in Iraq 2003-09," July 23, 2008, http://cpj.org/reports/2008/07/journalists-killed-in-iraq.php (accessed October 1, 2010).

[126]One such case involved journalist Ibrahim Jassim, whom US forces freed on February 10, 2010, after holding him for 17 months without charge. In September 2008, US and Iraqi forces smashed in the doors of his house in Mahmudiya town, south of Baghdad, and detained him first at Camp Bucca and then Camp Cropper. US authorities never charged Ibrahim, who worked for Reuters as a freelance TV cameraman and photographer, and did not disclose any evidence against him. Despite a December 2008 ruling by the Iraqi Central Criminal Court that there was insufficient evidence to hold Ibrahim, the US military defied the ruling and refused to release him because, they claimed, classified intelligence reports indicated he was a security threat. When we met with Jassim in Baghdad two months after his release, he said he never previously had had any run-ins with US forces, even travelling with them on assignment as an embedded journalist. He said he has no idea why US forces detained him. "During my interrogations, the officers would threaten that if I wasn't forthcoming, they would release me to the Iraqi army who would take me to an Iraqi detention facility and torture me there.… Once I was asked by one of my interrogators whether I thought Americans were unjust. I responded, ‘Yes,' according to this experience." Human Rights Watch Interview with Ibrahim Jassem, Baghdad, April 22, 2010. See also "Ibrahim Jassam, Iraqi Photographer For Reuters, Released By US Military," Associated Press, February 2, 2010, http://www.huffingtonpost.com/2010/02/10/ibrahim-jassam-iraqi-phot_n_456598.html (accessed September 11, 2010).

[127] "Al Qaeda Group Claims Iraq TV Channel Bomb," Associated Press, July 29, 2010,

http://www.cbsnews.com/stories/2010/07/29/world/main6723631.shtml (accessed September 11, 2010).

[128]Human Rights Watch interview with a journalist (name withheld), Baghdad April 24, 2010.

[129]Reporters Without Borders, "Journalist seriously injured in targeted bomb attack, several others assaulted," September 29, 2010, http://www.ifex.org/iraq/2010/09/29/mohsen_injured/ (accessed September 30, 2010).

[130]Ammar Karim, "Five killed in attacks as Baghdad bans motorcycles" Agence France-Presse, September 8, 2010. http://www.google.com/hostednews/afp/article/ALeqM5h8ca3pkvdN2emArQWIawQhqvhSjg (accessed September 11, 2010).

[131]"Gunmen kill prominent Iraqi TV presenter Riad al-Saray," BBC, September 7, 2010. http://www.bbc.co.uk/news/world-middle-east-11217922 (accessed September 11, 2010).

[132]Committee to Protect Journalists, "Al Iraqiya anchorman gunned down in Iraq," September 7, 2010, http://cpj.org/2010/09/al-iraqiya-anchorman-gunned-down-in-iraq.php (accessed September 11, 2010).

[133]Human Rights Watch interview with Mu'aid al-Lami, Baghdad, April 5, 2010.

[134]Ibid.

[135]Sam Dagher, "Abducted Kurdish Writer Is Found Dead in Iraq."

[136]Human Rights Watch telephone interview with Bashdar Osman, October 20, 2010.

[137]Ibid.

[138] Human Rights Watch telephone interview with Khellan Bakhtyar, October 9, 2010.

[139]Ibid.

[140]Sam Dagher, "Abducted Kurdish Writer Is Found Dead in Iraq," New York Times, May 6, 2010; http://www.nytimes.com/2010/05/07/world/middleeast/07erbil.html (accessed September 11, 2010).

[141]Sam Dagher, "Killing Taints Iraqi Kurdistan's Image," New York Times, May 18, 2010,

http://www.nytimes.com/2010/05/19/world/middleeast/19iraq.html (accessed September 11, 2010).

[142]Human Rights Watch telephone interview with Kamal Chomani, October 7, 2010.

[143]"Iraqi Kurdistan: Journalists Under Threat," Human Rights Watch news release, October 29, 2010, http://www.hrw.org/en/news/2010/10/28/iraqi-kurdistan-journalists-under-threat (accessed November 9, 2010).

[144]Namo Abdulla, "Who Killed Zardasht Osman?" New York Times, October 6, 2010, http://atwar.blogs.nytimes.com/2010/10/06/who-killed-zardasht-osman/ (accessed November 9, 2010).

[145]Human Rights Watch telephone interview with Khellan Bakhtyar, October 9, 2010.

[146]Human Rights Watch telephone interview with a member of Osman's family, October 20, 2010.

[147]Human Rights Watch interview with the staff of Livin (names withheld), Sulaimaniyya, March 2009.

[148]A few reported examples:

• On September 14, 2009, bodyguards from the Baghdad Provincial Council severely beat a group of 10 journalists and photographers from Al-Iraqiyya television as they were on their way to cover a council meeting. The bodyguards forced the group out of their car and beat them with rifle butts, hands, and clubs.

• On April 17, 2010, police reportedly attacked at least eight Kurdish journalists in Sulaimaniyya when they went to cover a student demonstration outside the department of education building. According to the journalists, the police seized and destroyed three cameras.

• On August 11, 2010, Kurdish security forces, including police and Asayesh officers (KRG secret police), allegedly harassed a group of journalists—and opened fire on one—after the journalists covered a demonstration by villagers over water shortages.

[149] Human Rights Watch interview with Mu'aid al-Lami, Baghdad, April 5, 2010.

[150]Human Rights Watch interview with Ziad al-Ajili, Baghdad, April 3, 2010.

[151]Human Rights Watch interview with two television presenters (names withheld), Baghdad, April 4, 2010.

[152] Ibid.

[153] Human Rights Watch interview with a television presenter (name withheld), Baghdad, April 4, 2010.

[154]Ibid.

[155]Human Rights Watch interview with a journalist (name withheld), Basra, April 10, 2010.

[156]Ibid.

[157]Gabriel Haboubi, "Iraqi Interior Ministry bans cameras from sites of bomb attacks," Jurist, May 14, 2007, http://jurist.law.pitt.edu/paperchase/2007/05/iraqi-interior-ministry-bans-cameras.php (accessed September 11, 2010).

[158] Human Rights Watch interview with a photographer (name withheld),, Basra, April 12, 2010.

[159] Human Rights Watch interview with a cameraman (name withheld), Basra, April 12, 2010.

[160] Human Rights Watch interviews with journalists (names withheld), Baghdad, April 3, and Basra, April 12, 2010.

[161]Human Rights Watch interview with Ziad al-Ajili, Baghdad, April 3, 2010.

[162] Steven Farrell, "See No Evil," New York Times, April 7, 2010,"http://atwar.blogs.nytimes.com/2010/04/07/see-no-evil/ (accessed September 11, 2010).

[163]Human Rights Watch interview with Human Rights Minister Wijdan Michael Salim, Baghdad, April 22, 2010.

[164]Human Rights Watch interview with a journalist (name withheld), Basra, April 12, 2010.

[165]Human Rights Watch interview with a cameraman (name withheld), Basra, April 12, 2010.

[166] Penal Code No. 111 of 1969 (with amendments). Under a 2008 law passed by the Kurdistan Regional Government, imprisonment is no longer a penalty for publication-related offenses. However, enforcement of the law has not been consistent. Journalists in the KRG continue to be tried, convicted, and imprisoned under the 1969 penal code.

[167]Iraqi Law of Publications No. 206 of 1968, articles 16-21.

[168]Iraqi Civil Code No. 40 of 1951 (with amendments).

[169]Human Rights Watch interview with Hassan Shaaban, Baghdad, November 10, 2010.

[170] Human Rights Watch interview with Hasshim Al-Mosawi, Baghdad, November 14, 2010.

[171]Human Rights Watch interview with Mu'aid al-Lami, Baghdad, April 5, 2010.

[172]Committee to Protect Journalists, "Barzani's KDP targets paper that alleged oil smuggling," August 5, 2010, http://cpj.org/2010/08/barzanis-kdp-targets-paper-that-alleged-oil-smuggl.php (accessed September 11, 2010).

[173] Committee to Protect Journalists, "Attacks on the Press 2009: Iraq," February 16, 2010,

http://cpj.org/2010/02/attacks-on-the-press-2009-iraq.php (accessed September 11, 2010).

[174]Martin Chulov, "Iraqi court rules Guardian defamed Nouri al-Maliki," The Guardian, November 10, 2009, http://www.guardian.co.uk/world/2009/nov/10/guardian-nour-al-maliki-iraq (accessed September 11, 2010).

[175] "Iraq: Suspend Restrictive Broadcast Rules," Human Rights Watch news release, April 12, 2010, http://www.hrw.org/en/news/2010/04/09/iraq-suspend-restrictive-broadcast-rules (accessed September 11, 2010).

[176]Ibid.

[177] Ibid.

[178]Committee to Protect Journalists, "Iraq shuts Al-Baghdadia after bloody church attack," November 2, 2010, http://cpj.org/2010/11/iraq-shuts-down-al-baghdadia-tv-after-bloody-churc.php (accessed November 6, 2010).

[179]ICCPR, art. 19.

[180] Ibid., art. 19(3).

[181] UN Human Rights Committee, Womah Mukong v. Cameroon, Communication No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (1994), para. 9.7.

[182] The Johannesburg Principles set out standards for the protection of freedom of expression in the context of national

security laws. They were adopted on October 1, 1995, by a group of experts in international law, national security, and human

rights convened by the International Centre Against Censorship, in collaboration with the Centre for Applied Legal

Studies of the University of the Witwatersrand, in Johannesburg. They have been endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and referred to by the Commission in their annual resolutions on freedom of expression every year since 1996. See The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (Johannesburg Principles), adopted on October 1, 1995, http://www1.umn.edu/humanrts/instree/johannesburg.html (accessed September 10, 2010).

[183] Johannesburg Principles, prin. 1.3.

[184]Ibid., prin. 2.

[185]Ibid., prin. 1.1.

[186]Ibid., prin. 1.2.

[187]Ibid., prin. 1.3.

[188]European Court of Human Rights, Lingens v. Austria, judgment of July 8, 1986, application no. 9815/82, www.echr.coe.int (accessed December 21, 2010), para. 42.

[189] Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v. Nigeria,

105/93, 128/94, 130/94, 152/96, http://www.achpr.org/english/activity_reports/activity12_en.pdf (accessed September 6, 2010), para. 74.

[190]Constitution of the Republic of Iraq, Article 38(A).

[191] Ibid., Article 38(B).

[192]Iraqi Civil Code No. 40 of 1951 (with amendments).

[193]Iraqi Penal Code, Article 202;

[194]Article 225.

[195] Article 226.

[196]Article 227.

[197] Article 229.

[198]Article 372.

[199]Article 433.

[200] Article 434.

[201]Article 178(2)

[202]Article 179.

[203]Article 180.

[204] Article 182.

[205] Article 208.

[206]Article 210.

[207] Article 211.

[208]Article 215.

[209]Article 228.

[210]Article 327.

[211] Article 403.

[212]Article 437.

[213] Article 438.

[214]CPA/ORD/10 June 2003/14, Section 2.

[215] "Iraq: Suspend Restrictive Broadcast Rules," Human Rights Watch news release, April 12, 2010. http://www.hrw.org/en/news/2010/04/09/iraq-suspend-restrictive-broadcast-rules (accessed September 11, 2010).

[216]Letter from Human Rights Watch to the Communication and Media Commission of Iraq, April 12, 2010, http://www.hrw.org/en/news/2010/04/09/letter-communication-and-media-commission-iraq.

[217]Ibid.