The Commission on Human Rights should continue a special procedure with regard to human rights violations in Iraq. The mandate of the Special Rapporteur on Iraq should be extended and broadened so that it expressly authorizes monitoring and reporting on current human rights concerns in the country; making recommendations to the Occupying Powers and Iraqi governing authorities; and monitoring the investigation and prosecution of abuses committed by the former government.
Accountability for past abuses. The government of Saddam Hussein was responsible for systematic violations of human rights and international humanitarian law. Since the overthrow of that government in April 2003, evidence of atrocities in the center and south of the county has become widely available in the form of scores of mass graves containing thousands of victims, massive amounts of documents from the country’s security services, and testimonies of witnesses and survivors. But there have been problems with the collection and custody of this evidence, including the failure to secure mass gravesites or to prevent looting of documents from government offices, the absence of minimum standards for gathering and preserving evidence, and the absence of a central repository to receive, record, and safeguard forensic and documentary evidence.
The Special Rapporteur should monitor and report on steps being taken by various key actors, including the Occupying Powers, the Iraqi Governing Council and its ministries, and Iraqi and international human rights organizations, to gather, preserve, and safeguard this evidence for purposes of possible criminal prosecution.
The Iraqi Governing Council, with support from the Occupying Powers, has proposed the establishment of an Iraqi special tribunal that is highly flawed. The statute does not require that judges and prosecutors have experience in working on complex criminal cases of this sort, and compounds the error by restricting participation as prosecutors and investigating judges to Iraqi nationals, despite the clear lack of Iraqi capacity in this regard. The statute does not prohibit the death penalty or trials in absentia, does not mandate that guilt must be established beyond a reasonable doubt, and does not provide some essential due process protections to persons under investigation. In addition, international humanitarian law offers no clear authority for the establishment of such a tribunal under military occupation. Human Rights Watch has called for the establishment of a group of experts, under the auspices of the United Nations, to recommend changes to the statute to ensure that the tribunal to be established meets international standards.
Human rights and humanitarian law violations in postwar Iraq. Since the overthrow of Saddam Hussein, the military forces of the Occupying Powers in Iraq have been responsible for human rights and international humanitarian law violations. Those in authority have failed to investigate many of these violations or to hold accountable those responsible. Armed groups opposed to the occupation have committed war crimes by carrying out attacks that targeted or indiscriminately harmed civilians.
In the initial aftermath of the overthrow of the government, the United States and United Kingdom failed to meet their responsibility to protect civilians under their control by allowing a serious security vacuum to develop, giving rise to conditions of extreme lawlessness. Months later, women in particular have remained vulnerable to sexual violence and abduction and neither Iraqi nor occupation authorities have provided sufficient protection or redress.
Many subsequent violations have related to excessive or indiscriminate use of force by troops resulting in serious harm to civilians, and the failure to equip or train troops adequately for the complex law enforcement tasks of military occupation. In Baghdad alone between May 1 and September 30, 2003, Human Rights Watch documented the deaths of twenty Iraqi civilians in questionable circumstances and collected information concerning ninety-four civilians killed by U.S. troops in circumstances that merited investigations. In the five investigations that the U.S. said it had completed as of the beginning of October, four concluded that soldiers had operated within official rules of engagement.
U.S. troops have carried out other actions that appear to have violated international humanitarian law. On at least four occasions between mid-November 2003 and early January 2004, U.S. troops demolished homes of relatives of suspected insurgents or former officials in order to punish the families or compel their cooperation. On two of these occasions, U.S. troops took into custody family members not themselves suspected of wrongdoing — in effect, taking hostages, a grave breach of the Geneva Conventions. Human Rights Watch is also concerned about the prolonged detention without charge or due process of thousands of Iraqis since the beginning of the war.
The mandate of the Special Rapporteur should be expressly configured to include a responsibility to monitor and report on policies and actions of the Occupying Powers and the Iraqi governing authorities, their military and security forces, and Iraqi political and armed groups that violate human rights. The Special Rapporteur should examine the extent to which these actors effectively investigate and punish persons responsible for human rights violations. The Special Rapporteur should also make recommendations on essential steps towards ensuring respect for human rights in the future, with particular attention to rights of women and children.
The Commission on Human Rights should:
- Expand the mandate of the Special Rapporteur on Iraq to address current human rights concerns as well as past abuses in Iraq.
- Request the Special Rapporteur to monitor and report on steps by the Occupying Powers and Iraqi governing authorities to safeguard forensic and documentary evidence and ensure custodial standards that will preserve the evidentiary value of such evidence in future criminal trials of those alleged to be responsible for crimes against humanity, war crimes, and genocide.
- Insist that any special tribunal established to try former government officials meet the highest standards of international justice, and request that the Secretary-General or his Special Representative establish a mixed international and Iraqi Group of Experts to recommend best practices for a fair and effective tribunal and other mechanisms.
- Request the Special Rapporteur to monitor and report on the operation of special tribunal trials and other accountability mechanisms.
- Request the Special Rapporteur to monitor and report on current human rights concerns and make recommendations to the Occupying Powers and the Iraqi governing authorities.
- Affirm the support and assistance of the Commission on Human Rights for efforts to institutionalize respect for human rights in postwar Iraq.
- Submit an interim report to the General Assembly at its 59th session and report to the sixty-first session of the Commission.
- Request the full cooperation of the Occupying Powers and Iraqi governing authorities to enable the Special Rapporteur to discharge his/her mandate fully