Despite the adoption of Security Council Resolution 1511, there remains considerable controversy about the shape and pace of Iraq's political transition. Whatever model is ultimately adopted, human rights protection should be built into the very foundation and institutional framework for a future Iraq. A rights focus will help to strengthen the participation of Iraqi men, women and children in the transition process, and will reinforce the accountability of both the occupying power and interim administration to both the international community and the Iraqi people.
Under international humanitarian law, the United States and its coalition allies have a primary responsibility as the occupying power for the protection and welfare of Iraq's people, including a duty to respect their fundamental human rights. And whatever arrangements are agreed for the transition, Iraq's state obligations under various international human rights treaties must also be fulfilled. Although these were wantonly abused in the past, Iraq is a state party to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention for the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child. These human rights obligations should provide the very foundation for Iraq's reconstruction and development and donors should use them to frame priorities and benchmarks for their assistance programs.
The central importance of human rights in Iraq's reconstruction is affirmed in the plan of action presented by the United Nations Secretary-General and endorsed by the Security Council in Resolution 1511. The joint needs assessment undertaken by the United Nations and World Bank ahead of the Madrid donors meeting also highlights human rights and gender issues as a cross-cutting theme that should inform all sectoral priorities. It identifies a number of important priorities in the area of governance and the rule of law, including the establishment of a national human rights institution. But in many areas the needs assessment fails to address critical issues, to propose concrete measures or anticipate sufficient resources for the protection of human rights.
Human Rights Watch has researched human rights concerns in Iraq for more than a decade and has maintained an extensive field presence in the country throughout the conflict and post-conflict period. On the basis of this research, and our experience with post-conflict transitions elsewhere, we wish to draw donors' attention to the following priority areas.
Human rights monitoring
As a first step, donors should ensure effective mechanisms are in place to monitor the human rights situation in Iraq and whether their assistance is having beneficial impacts on the ground. The international community should not assist with the training of police and security forces in Iraq, for instance, without monitoring their conduct in line with international policing and human rights standards.
Human Rights Watch welcomes the proposal made in the United Nations and World Bank for the establishment of a national human rights institution. This measure was also recommended by the Secretary-General in his report to the Security Council in July. Such an institution should fulfill the Paris Principles relating to the status and functioning of national institutions for the protection and promotion of human rights. Its mandate should cover the full range of human rights issues, and it should have the ability to conduct investigations, make recommendations and make representations to both the occupying power and any transitional Iraqi authority. It should have the independence, diversity, resources and geographic presence necessary for this role. We are concerned, therefore, that no specific budgetary provision appears to have been made for such a commission in the medium-term needs assessment.
Human Rights Watch also urges international support for non-governmental human rights monitoring organizations in Iraq. Ultimately it is the Iraqis themselves who will best be able to ensure that the authorities abide by international human rights standards. The nascent human rights community in Iraq is desperately in need of training, management skills and financial assistance that can only come from abroad. As the development of a local human rights community in Cambodia and East Timor has made clear, the United Nations and foreign donors can play an important supporting role for groups whose impact will be crucial for protecting individual rights over the long term.
As the needs assessment acknowledges, developing a national human rights commission and the capacity of local civil society will take time. These initiatives should be complemented, therefore, by an expanded human rights monitoring operation under the auspices of the United Nations High Commissioner for Human Rights. Human rights monitors would be able to provide donors with authoritative information and analysis on the human rights situation within the country and make recommendations for remedial action, including long-term institutional reform. The monitors' work would also help to bolster the confidence of the Iraqi public that progress is being made towards human rights improvements. Monitoring missions of this kind have played an important and constructive role in other post-conflict transitions in which the Security Council has been involved, for instance in Cambodia, East Timor, Bosnia-Herzegovina and Kosovo. Clearly, security conditions prevailing in Iraq may constrain United Nations efforts, but this should not prevent donors from earmarking funding for this purpose, or the United Nations identifying suitable experts and preparing to extend its presence on the ground.
Justice and policing
The United Nations/World Bank needs assessment correctly highlights the major problems with the Iraqi legal system and the urgent need to reform laws in line with international standards and to train judges, prosecutors, public defenders and police in human rights. We welcome, in particular, the proposal to establish a monitoring mechanism for the justice sector "to identify individual and systemic human rights violations … and report them to the authorities for corrective action." We suggest that technical assistance will also be needed for law reform beyond the constitutional process, for instance to address problems in the country's criminal procedure codes.
Donors will only be successful in building the rule of law in Iraq if they also address the serious abuses of the past. Saddam Hussein's government committed the most serious crimes, including genocide, war crimes and crimes against humanity, and those officials responsible must be held to account. The United Nations/World Bank needs assessment makes a very small provision for support to transitional justice initiatives, but the dollar figures given ($180,000 in 2004 and $540,000 between 2005 and 2007) will be grossly inadequate for this task.
Significant resources will be required for accountability efforts, particularly for investigation, analysis and classification of massive amounts of documentary, testimonial and forensic evidence and prosecutions of those most responsible for serious past crimes. Similarly, additional resources will be needed to build Iraq's forensic capabilities, as well as to provide protection to witnesses and psycho-social and medical support to victims and their relatives. Resources will also be necessary to ensure security for judges and prosecutors who participate in accountability mechanisms.
It will be essential, too, that any accountability process for past abuses in Iraq meets international standards. The United States has made various proposals for an "Iraqi-led" justice process and the Iraqi Governing Council has indicated it is drafting a law establishing special Iraqi tribunals for this purpose. Human Rights Watch remains deeply concerned that the Iraqi judicial system lacks the capacity and expertise to undertake the prosecution of crimes of this gravity and complexity. Trials in Iraq have traditionally only lasted a few days. For this reason, we urge donors to first commission a group of experts, comprised of both international and Iraqi jurists, to undertake a further assessment under United Nations auspices and make further recommendations on appropriate justice options and the collection and preservation of evidence.
Human Rights Watch welcomes the emphasis given in the needs assessment to gender as a cross-cutting issue. But we are concerned that this often does not translate into detailed measures in the different priority areas. We look forward to the comprehensive gender analysis proposed in the paper to clarify specific needs in individual sectors. We urge donors to develop mechanisms, such as the proposed women's forum, to ensure Iraqi women are able to participate fully in both the political and reconstruction process, and not just in those areas traditionally considered as "women's issues".
Donors should provide technical assistance to the review and reform of Iraq's constitution and other laws, particularly the criminal and civil codes, to ensure that they are consistent with Iraq's obligations under international human rights standards, do not discriminate on the basis of sex or gender, and afford women equality of access and opportunity. At a minimum, they should guarantee equality before the law, non-discrimination, equal citizenship and nationality rights, equal rights in marriage and at its dissolution, and equal rights with respect to education, employment, health care, housing and other social services.
Similarly, in efforts to strengthen law enforcement capacity and the justice sector, priority attention should be given to problems of sexual violence against women, which remain endemic but were poorly addressed by the former judicial system. This should include training special investigative units and forensic experts to handle cases of sexual violence, training judicial personnel to properly handle cases of gender-based violence, and providing support for victims, such as counseling, health and medical services, and legal assistance.
While the United Nations/World Bank needs assessment treats gender issues as a cross-cutting theme, it pays insufficient attention to the specific needs of children in post-war Iraq. The needs assessment identifies important priorities with respect to children's health and education, but it fails to address many important child protection issues. Donors should prioritize aid for programs designed to reach Iraq's most vulnerable children, including girls, street and working children, rural children, IDP and refugee children, and children living in pockets of chronic poverty. These programs should include components to address sexual and physical abuse of children, trafficking, hazardous labor, and forced marriage. Specific attention should be given to children in conflict with the law, in particular to ensure that children are never detained with adults and that detention is only used as a measure of last resort. Community based projects will in many instances provide the most effective, sustainable means of reaching these children. Such projects should incorporate effective monitoring systems and be coupled with efforts to review and revise existing legal, judicial, and social welfare frameworks to ensure that they meet the standards contained in the Convention on the Rights of the Child.
Refugees and internally displaced persons
The United Nations/World Bank needs assessment highlights housing as a critical issue and the inadequacy of Iraq's land management and property title systems. Hundreds of thousands of Iraqis have been forcefully displaced from their homes during the past thirty years. In northern Iraq, the Ba'ath party pursued an aggressive policy of "Arabization," forcefully expelling hundreds of thousands of Kurds, Turkoman, and Assyrians from their homes and replacing them with Arab residents. In the south, the government destroyed the marsh area and forced the Marsh Arab population to seek refuge in Iran. During the Iraq-Iran war, large numbers of Shi`as and Feyli Kurds were stripped of their Iraqi nationality and expelled to Iran. Many of the victims of these policies are beginning to return to their homes, particularly in northern Iraq.
The needs assessment correctly highlights housing for returnees and the internally displaced as a critical short-term need. This situation is being exacerbated by the coalition which has begun evicting families who have sought shelter in public buildings around Iraq, but has not provided alternative housing for these families. The donor community should prioritize the provision of adequate shelter to families in need.
The donor community should also support the establishment of a post-conflict property dispute mechanism to provide fair and efficient settlement procedures a top priority. A broad-ranging restitution and property reform process is an urgent necessity for Iraq in order to avoid inter-ethnic violence. Victims of forced displacement-a crime against humanity-have a right to reclaim their former property, but this right must be balanced against the rights and humanitarian needs of the secondary occupants, many of whom have lived in expropriated homes for decades.
The many victims of forced displacement are deeply impoverished, and will require significant reintegration assistance to return to their former homes. However, it is important that a property restitution process is in place prior to reintegration of returnees, as property claims should be settled before the reconstruction process can begin. Many victims of the Arabization policies who are housed in camps in the three northern governates (Dohuk, Erbil, and Sulaimaniya). The donor community should step up assistance to the victims of Arabization now housed in the northern governates, in order to assure that desperate displaced families will not seek to return prior to the establishment of fair and efficient property dispute mechanisms.
Donors should pledge support for the orderly return and reintegration of refugees in neighboring countries, particularly Iran, but at the same time should refrain from returning, or assisting in the return, of refugees to Iraq until security conditions permit. The acute security crisis facing humanitarian agencies in Iraq has led to the suspension of many assistance programs, making immediate re-integration of refugees more challenging. Until return of refugees is feasible, adequate assistance should be provided to the refugees in their current locations.
Iraq also hosts a significant refugee population, including Palestinian refugees in Baghdad, Iranian Kurdish refugees housed in the al-Tash refugee camp near Ramadi, and Turkish Kurdish refugees housed in a refugee camp near the northern town of Makhmour. Many Palestinian refugees in Baghdad have been forced out of the housing that was previously provided to them by the Iraqi government, and face deep hostility from the Iraqi population. The donor community should provide humanitarian assistance to these refugee populations, and seek solutions to the security problems faced by refugees in Iraq.
The Iraqi people have suffered from decades of repression, corruption, sanctions and armed conflict. In numerous United Nations resolutions, the international community condemned these abuses and urged they be redressed. Now is the time for donor governments to fulfill those pledges by ensuring that Iraq's transition addresses the abuses of the past and provides enhanced human rights protection for the future.
Human Rights Watch looks forward to continued dialogue with donors on these issues as reconstruction efforts proceed. We wish the meeting every success.