We are writing to the Presidency Council with regard to the Law for the Supreme National Commission for Accountability and Justice, which was approved on February 3, 2008. Having investigated and documented atrocities committed under Ba’ath Party rule, we support Iraq’s efforts to hold accountable those responsible for these crimes and bar them from public employment.

In addition, we welcome Iraq’s efforts to remedy the flaws of the de-Ba’athification policy initiated under the Coalition Provisional Authority (CPA), and acknowledgment by Iraq’s political leaders that implementation of this policy punished many individuals on the basis of group membership without regard to individual wrongdoing. Moreover, these disqualifications were often imposed in a manner that denied basic due process protections.

However, we are concerned that the new legislation does not sufficiently address many failings of the de-Ba’athification procedures it is intended to replace. The new law effectively maintains the principle of punishment on the basis of group affiliation, although it allows a return to state employment by party members of a rank formerly subject to dismissal.

While the law establishes a needed appeals mechanism, it fails to provide those dismissed from employment or stripped of pensions the right to see and challenge evidence used against them. Furthermore, the risk of politically motivated mass dismissals like those that occurred under the previous De-Ba’athification Commission remains great because the new law does not establish the new commission as an independent body made up of individuals chosen on the basis of competence and integrity. Finally, the law fails to specify an end date for the new commission’s tasks, leaving the politically divisive process of exclusion to run indefinitely and providing future governments the opportunity to use the new law’s provisions to punish or harass its critics or opponents.

In its statement announcing approval of the new law, the Presidency Council acknowledged “reservations about many clauses which would obstruct the project of national reconciliation,” and pledged to seek amendments. We urge the Presidency Council to make good on this pledge, with the goal of enhancing due process rights and further emphasizing personal responsibility. These changes are necessary not only to prevent and redress summary and collective punishment. They are also essential to set a positive precedent of respect for individual rights and the rule of law in Iraq.

De-Ba’athification Procedures and Modifications
The new law’s main features modify the original de-Ba’athification measures initiated under the CPA’s Order 1 of May 16, 2003 and subsequently implemented by the De-Ba’athification Commission. These provisions affected all individuals from the top several levels of Ba’ath Party membership, as well as the top managerial levels of ministries and other public institutions. A later CPA directive, Memorandum 7 of November 7, 2003, stipulated that the Iraqi Governing Council should establish procedures for determining party affiliation and involvement with Ba’ath-era security organs and called for advance notification of and right to contest dismissals
The new law’s key provisions – including those clarifying the basis for dismissals and expanding pension rights, and providing for an appeals process – contain some positive elements. They do not, however, address the main problem: that de-Ba’athification measures have not distinguished between people who were affiliated with the party for careerist or other personal reasons, and those responsible for or complicit in serious human rights abuses.

Human Rights Watch supports efforts to ensure that people in positions of authority in public institutions bear no taint of involvement in human rights abuses. At the same time, the means to pursue these ends should be consistent with the rule of law and respect for individual rights. Penalties should be based on evidence that an individual committed or was complicit in serious abuses. An impartial arbiter should determine the extent of individual responsibility, in a public setting in which a suspect has access to and can contest evidence against him or her. The procedures should include safeguards to prevent politically-motivated abuse of the process of dismissal, and to assure due process in granting exemptions.

Important Revisions Needed, Suggestions for Implementation
The new law approved by the Presidency Council by and large does not address these concerns. It continues to rely mainly on group membership, rather than individual actions or qualifications, as a basis for dismissal and loss of pension rights – a feature that works against efforts to strengthen individual rights and the rule of law in Iraq. Nor does the law establish a dismissals process that provides individuals with basic guarantees of fairness. And the provision establishing the Supreme National Commission for Accountability and Justice does not include any means to insulate that body from political influence and prevent its exploitation for purely political ends.

We urge the Presidency Council to use its authority to approve appointments to the Commission to ensure that they are based on competence and professional integrity, rather than political loyalty or sectarian affiliation, in order limit the opportunity for misuse of the new law as an instrument in political purges. Similarly, safeguards are required to ensure that the office of the prosecutor established to investigate crimes committed by party members and refer them for prosecution is not exploited for political ends. Establishing that office as a body separate from the Commission to help ensure its impartiality would be one possible approach.

Other amendments should include extending the period for applications for reinstatement and pension benefits, and for processing appeals. The present period of 60-90 days to apply for pension or reinstatement may not be adequate, and ignores concerns potential applicants may now have about identifying themselves as party members to a state body. The short time frames for filing and ruling on appeals – 30 and 60 days respectively –could also affect the independence of the cassation body by limiting its ability to properly review cases brought before it. Additionally, the requirement that the Commission report its activities quarterly to parliament should also stipulate that these reports be made public.

We also urge that the Presidency Council recommend an amendment setting an end date for the Commission’s mission, in order to limit the potential for political abuse of the process of dismissal.

Human Rights Watch thanks you for your attention to these issues, and would welcome your response to any of its suggestions as you consider amendments to the law. We make these recommendations out of our concern that due process and emphasis on individual responsibility govern the implementation of this law, and contribute to the rule of law in Iraq generally.

Sincerely,

/s/

Joe Stork
Director
Middle East and North Africa division

Cc: Vice-President Adil Abd al-Mahdi
Vice-President Tariq al-Hashimi