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With the transfer of sovereignty, the Law of Administration for the State of Iraq for the Transitional Period (Transitional Administration Law or TAL) came into effect. Issued by the Coalition Provisional Authority (CPA) on March 8, 2004, following its adoption by Iraq's Interim Governing Council (IGC), the law is considered to be effective until "the formation of an elected Iraqi government pursuant to a permanent constitution". Following the January 30 elections, it is time now for the Commission on Human Rights to establish an independent expert under item 19 and request the Iraqi government to provide access to UN special procedures and to all places of detention.

Violations under the Iraqi Interim Government. Human Rights Watch's latest report on torture in Iraq highlights the systematic use of arbitrary arrest, prolonged pre-trial detention without judicial review, torture and ill-treatment of detainees, denial of access by families and lawyers to detainees, improper treatment of detained children, and abysmal conditions in pre-trial detention facilities. Persons tortured or mistreated have inadequate access to health care and no realistic avenue for legal redress. With rare exception, Iraqi authorities have failed to investigate and punish officials responsible for violations. The Iraqi Interim Government led by Prime Minister Ayad ‘Allawi and presented to the international community as a sign that the violence and abuses of the Saddam Hussein government was a thing of the past, appeared to be actively taking part, or was at least complicit, in these grave violations of fundamental human rights.  
Human Rights Law in Post-War Iraq. Human Rights law recognizes that respect for rights and the rule of law cannot be built on fresh abuses. A new Iraqi government requires more than a change of leadership; it requires a change of attitude about basic human dignity. The new authorities must state unequivocally and publicly that torture and ill-treatment of detainees will not be tolerated. Equally, it must be made clear to law-enforcement personnel that such abuses are no longer acceptable and will not go unpunished. The current Iraqi government has failed to deliver this message, as have their international advisers in assisting them to assume that responsibility. In allowing such abuses to go unchecked while continuing to give absolute priority to bringing the security under control, it may prove very difficult further down the line to deliver a police force that the Iraqi people can have confidence in, threatening the ultimate aim of lasting security where basic human rights are respected.  
Iraq's new government must adopt legislation that will bring its law in line with international human rights standards. As it currently stands, Iraq's Code of Criminal Procedure (CCP) falls short of these standards in a number of significant ways, failing to address fundamental rights, such as the right of criminal suspects to remain silent, the right to be represented by legal counsel at all stages of the proceedings, the right not to have coerced confessions used in evidence against them in court, and the right to be presumed innocent until proven guilty before a court of law.  
Legal Obligations. Human Rights Watch recognizes the enormous difficulties inherent in reconstituting the security forces in Iraq today. Nonetheless Iraq remains bounds by its obligations under international law. It is unambiguous in that no government-not Saddam Hussein's, not the occupying powers and not the new elected government-can justify torture or ill-treatment of persons in the name of security.  
The Iraqi Transitional Government emerging after the January 30, 2005 elections, has legal obligations under human rights treaty law and customary law. All successor governments of Iraq are bound by earlier government's treaty ratifications. Under the ICCPR, every person has the right to protection from torture and cruel, inhuman or degrading treatment or punishment (Art. 7). The prohibition against torture is among the most fundamental principles of international law. The Committee against Torture (CAT) has expressed concern that deferral of notification of arrest coupled with deferral of access to counsel in the first forty-eight hours amounts to detention incommunicado, thereby creating conditions which might lead to abuses of authority by agents of the States.  
The Commission on Human Rights should:

  • Establish an independent expert under item 19 to:
    • Monitor and report on human rights concerns in the country and make relevant recommendations to the Iraqi government authorities and to Multinational Force governments;  
    • Assist the Iraqi authorities in establishing an independent National Commission for Human Rights, as provided for under Article 50 of the Transitional Administrative Law, to include a mechanism for the investigation of allegations or complaints of physical or other abuse by detaining officials.
  • Request the Iraqi Transitional Government to provide access for U.N. special procedures to places of detention under the authority of the ministries of Interior and Justice.  
  • Urge the Iraqi government to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).  
  • Urge the Iraqi Transitional Government to adopt national implementing legislation to enable the international treaties it has ratified to become domestically applicable, notably the ICCPR and the Convention on the Rights of the Child (CRC).  
  • Urge the Iraqi authorities to ensure that conditions in detention centers conform to international standards, including the U.N. Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.  
  • Urge the Iraqi authorities to grant access to detention facilities under the authority of the ministries of Interior and Justice to independent and qualified domestic and international monitoring organizations.

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