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IV. Legal Framework

With the declared 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 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,” envisaged for the end of 2005 following general elections.18  The TAL stipulates that all Iraqi citizens are equal before the law, and that their rights to freedom from arbitrary arrest, unlawful detention, unfair trials, and torture are protected by law.19  An Annex to the TAL, issued on June 1, 2004, conferred to Iraq’s Council of Ministers the authority to “issue orders with the force of law” with the unanimous approval of the state’s Presidency Council, comprising the president and two deputy presidents.20

Under the occupation by United States and other coalition forces, responsibility for the setting up of law enforcement agencies lay with the CPA, headed by its then administrator, L. Paul Bremer.  This took place in coordination with officials represented in the IGC and its relevant Ministries.21  After June 28, 2004, that responsibility was transferred to the Iraqi Interim Government, but with the Multinational Force having “the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq” in accordance with the terms of United Nations (U.N.) Security Council Resolution no. 1546 of June 8, 2004, and its annexes.22  The resolution sets out the responsibilities of the Multinational Force, among them “building the capability of the Iraqi security forces [including the police] and institutions, through a programme of recruitment, training, mentoring, and monitoring.”23  The annexes to the resolution reflect the close coordination envisaged between the Iraqi Interim Government and the Multinational Force on security matters and combating violent crime.24 

Following its appointment in early June 2004,25 the Iraqi Interim Government announced its intention to “establish appropriate security structures” to enable Iraqi forces to progressively take on the responsibility for security, operating within the framework of bodies set up under CPA authority to formulate policy in this regard.  These bodies include the Ministerial Committee for National Security26 and the Iraqi National Intelligence Service.27  At his first press conference on June 20, Prime Minister Ayad ‘Allawi announced a new strategy for national security, involving the reorganization of military and security forces, which would be coordinated through the Ministerial Committee for National Security and in consultation with U.S. and U.K. advisers.  The planned changes included bringing the CPA-created Iraqi Civil Defense Corps under army control as part of the Iraqi National Guard and the creation of emergency response units for special operations.  Special police units would also be created to be deployed “in the frontlines” of the battle against terrorism and sabotage, and a new directorate for national security established.28  The Ministry of Interior reportedly appointed a new security adviser to assist in the establishment of a new general security directorate modeled on the erstwhile General Security Directorate (Mudiriyyat al-Amn al-‘Amma), one of the agencies of the Saddam Hussein government dissolved by the CPA in May 2003.29 

On July 3, 2004, the Iraqi Interim Government passed the Order for Safeguarding National Security (No. 1 of 2004 – Amr al-Difa’ ‘An al-Salama al-Wataniyya), introducing emergency legislation to the statute books and enabling the prime minister to declare martial law for up to sixty days at a time, renewable with the approval of the Presidency Council.30  The Order also provides for the imposition of curfews; the closure of roads, sea lanes and airspace; restrictions or bans on public gatherings; the disbanding or temporary suspension of associations, unions and other entities; surveillance on electronic and other communications; and wide powers to search property and to detain suspects.  In announcing the Order at a press conference on July 7, Iraq’s ministers of justice and human rights pointed to provisions requiring that persons may not be arrested except upon the issuance of arrest warrants by the judicial authorities,31 and would be brought before an investigative judge within twenty-four hours of arrest.32  The Order, however, does provide for arrests or searches without warrant in “extreme exigent circumstances.”33 While the prime minister’s “decisions and procedures are subject to review by the Court of Cassation,”34 the Order neither defines such circumstances nor attempts to place limits on their interpretation.35  The human rights minister, Bakhtiar Amin, gave assurances that any violations or abuses in the implementation of emergency legislation would be investigated by his Ministry: “my office will have the full ability to investigate lapses.”36

Other measures adopted as part of the declared intention to crack down on violent crime included the reintroduction of the death penalty, which the CPA had suspended in June 2003.37  Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty and irreversibility.  The Iraqi Interim Government passed Order 3 of 2004 on August 8; the Order reintroduced capital punishment for a range of offenses, including certain crimes affecting internal state security, public safety, premeditated murder, and drug trafficking.38  It also introduced the death penalty for abduction.39  Government officials argued that capital punishment would serve as a deterrent against such crimes, while its implementation would be “very limited and only in exceptional cases.”40 

In August 2004, Prime Minister Ayad ‘Allawi announced an amnesty for a range of offenses connected with the possession of weapons and explosive devices, the failure to inform the authorities about the planning or financing of terrorism or other acts of violence, participation with terrorist groups in acts intended to undermine internal state security or public welfare and property, and giving refuge to persons being sought by the judicial authorities for terrorist or violent crimes or in connection with crimes perpetrated by the former Iraqi government.  Order 2 of 2004, passed on August 4, excluded from the terms of the amnesty those found guilty of murder, abduction, rape, robbery, and harming or destroying public or private assets.41

The Iraqi Interim Government did not declare a state of emergency until November 7, 2004, on the eve of a U.S.-led military offensive on the town of al-Falluja.  However, Iraqi security and intelligence forces carried out widespread arrests without judicial warrant of both suspected criminal offenders and members of political parties well before the emergency decree was promulgated.  In that context, allegations of the torture and ill-treatment of detainees were rife.        

The Iraqi Interim Government, as well as the successor Iraqi Transitional Government that will emerge after the January 30, 2005 elections, have legal obligations under human rights treaty law and customary law.  All successor governments of Iraq are bound by earlier governments’ treaty ratifications.  Under the ICCPR, every person has the right: to protection against arbitrary arrest42; to be informed promptly of the charges against him or her; to be brought promptly before a judge and entitled to trial within a reasonable time or be released43; to be treated with dignity while in detention44; to protection from torture and cruel, inhuman or degrading treatment or punishment45; and to due process and fair trial,46 including the right to counsel.47

The prohibition against torture and other cruel, inhuman or degrading treatment or punishment is among the most fundamental principles of international law.  As the Human Rights Committee (HRC), the international body responsible for monitoring compliance with the ICCPR, has stated, the aim of the prohibition against torture and other mistreatment “is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against [torture and other mistreatment], whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.”48 The Committee against Torture 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 State."49 

The HRC calls on states, among other things to put into effect the following to prevent torture:

Provisions should also be made against incommunicado detention. In that connection, States parties should ensure that any places of detention be free from any equipment liable to be used for inflicting torture or ill-treatment. The protection of the detainee also requires that prompt and regular access be given to doctors and lawyers and, under appropriate supervision when the investigation so requires, to family members. …It is important for the discouragement of violations under article 7 [prohibition on torture] that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.50

The Human Rights Committee also called on states to ensure that those responsible for torture or other mistreatment “whether by encouraging, ordering, tolerating or perpetrating prohibited acts, must be held responsible. … Complaints [of mistreatment] must be investigated promptly and impartially by competent authorities so as to make the remedy effective.”51

Iraq’s new government must adopt legislation that will bring its laws in line with international human rights standards.  As it currently stands, Iraq’s 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.

Nevertheless, there are a number of protections in the CCP that, if implemented, would contribute to the better protection of persons deprived of their liberty.  Persons may not be arrested without a warrant (except in circumstances prescribed by law,52 such as crimes committed in flagrante delicto).53  Defendants must be brought before an investigating judge within twenty-four hours of arrest.54  The judge may renew their period of detention for not more than fifteen days on each occasion, provided that the total period does not exceed six months.  If the criminal investigation is not completed within six months, authorization for further extensions of the detention period must be obtained from the relevant criminal court.55  Prohibited is the use of “any illegal method to influence the accused to extract a confession.”56  Ill-treatment, threats to cause harm, enticement, promises, psychological influence, or the use of drugs or intoxicants are considered illegal methods.57  Officials found guilty of torturing or ill-treating detainees in their custody are punishable by up to fifteen years’ imprisonment under the Penal Code.58  Detainees have the right to submit a complaint regarding a threat or harm caused to them with a view to initiating criminal proceedings against the perpetrators.59

The CPA amended a number of articles in the CCP and the Penal Code after April 2003, some of which addressed the shortcomings of these laws, and which at this writing have the force of law, but which will need to be addressed by a new Iraqi government.  Among these is the total prohibition on torture60 and the amendment of Article 218 of the CCP, which had permitted the use of coerced confessions as evidence in certain circumstances.61  The CPA also reaffirmed the right of criminal detainees to remain silent upon arrest, to consult legal counsel,62 and to be promptly informed of the charges against them.63  The right to silence and to legal counsel was also affirmed at the investigative stage.64  Further, “[i]f the accused desires an attorney the examining magistrate or investigator shall not question the accused until he or she has retained an attorney or an attorney has been appointed by the Court.”65 

The bill of rights contained in the TAL guaranteed a number of fundamental principles pertaining to persons deprived of their liberty.  It affirmed the principles of equality before the law and the courts and guaranteed the following rights: the right to be arrested on the basis of a judicial warrant; the right to freedom from arbitrary arrest or detention; the right to a fair trial and public hearing by an independent and impartial tribunal; the right to be presumed innocent until proven guilty pursuant to law, to engage independent and counsel, to remain silent with no compulsion to testify, and to be informed of these rights upon arrest; the right to a fair, speedy and open trial; the right to challenge the legality of arrest or detention without delay; and the right to freedom from torture in all its forms.  It prohibited the use of coerced confessions as evidence: “No confession made under compulsion, torture, or threat thereof shall be relied upon or admitted into evidence for any reason in any proceeding, whether criminal or otherwise.”66

 


[18] Law of Administration for the State of Iraq for the Transitional Period, March 8, 2004, Article 2(A).

[19] These and other rights, including the right to freedom of expression and association, religious beliefs, and freedom from discrimination on ethnic, religious or other grounds, are set out under Chapter Two of the TAL (Fundamental Rights: Articles 10-23).

[20] Annex to the Law of Administration for the State of Iraq in the Transitional Period, June 1, 2004 (Section Two: Institutions and Powers of the Iraqi Interim Government).

[21] The IGC was appointed by the CPA on July 13, 2003 (CPA/REG/13 July 2003/6 – Governing Council of Iraq), and dissolved itself upon the appointment of the Iraqi Interim Government on June 1, 2004 (CPA/REG/9 June 2004/9 – Governing Council’s Dissolution).

[22] S/RES/1546 (2004).  The annexes to the resolution, texts of letters from Iraqi Interim Government Prime Minister Ayad ‘Allawi and U.S. Secretary of State Colin Powell, both dated June 5, 2004, to the president of the Security Council, outline the role of the Multinational Force in achieving security and stability in Iraq.

[23] Ibid.

[24] The June 5, 2004 letter from Prime Minister Ayad ‘Allawi to the president of the Security Council refers to the creation “with the MNF coordination bodies at national, regional, and local levels, that will include Iraqi security forces commanders and civilian leadership, to ensure that Iraqi security forces will coordinate with the MNF on all security policy and operations issues …,” as well as the sharing of intelligence, with Iraqi security forces assuming “progressively greater responsibility as Iraqi capabilities improve.”

[25] CPA/REG/9 June 2004/10 (Members of Designated Iraqi Interim Government).

[26] CPA/ORD/4 April 2004/68 (Ministerial Committee for National Security). The Order provided for the establishment of the Ministerial Committee for National Security (MCNS) “under the authority, direction and control of the Administrator of the CPA … pending transfer of full governance authority to the Iraqi Interim Government.”  Currently headed by the prime minister, its permanent members are the ministers of defense, interior, foreign affairs, justice and finance.  The MCNS also has several permanent advisory members, with the multinational force commander invited to participate in its meetings as appropriate.  With regard to its role, Order 68 only states that this is “to facilitate and coordinate national security policy among the Ministries and agencies of the Iraqi government tasked with national security issues” (Section 1(1)).

[27] CPA/ORD/1 April 2004/69 (Delegation of Authority to Establish the Iraqi National Intelligence Service).

[28] See “Text of the Prime Minister’s statement at the press conference on the future of Iraq’s defense and security”, Al-Sabah Al-Jadeed, June 22, 2004.  See also Jim Krane, “Iraq’s interim leader plans security shake-up,” Associated Press, June 21, 2004; Tom Lasseter and Hannah Allam, “Iraqi leader outlines security overhaul; Iraqi Prime Minister Iyad Allawi announced an ambitious plan for reestablishing an Iraqi military, including an air force, coast guard and special forces,” Knight Ridder News Service, June 21, 2004; Sadeq Rahim and ‘Ali Khalil, “’Allawi accuses external elements of involvement in carrying out terrorist operations and announces the establishment of a general directorate for national security,” Azzaman, June 21, 2004.  Further statements regarding the creation of a new security agency were made by the prime minister at another press conference on July 16, when he announced the arrest of alleged key figures from al-Qaeda, See “Creation of a new security apparatus to crack down on terrorism and its accomplices: renewed clashes in al-Falluja and the retrieval of a second decapitated body from the Tigris River”, Al-Mada, July 17, 2004; and “’Allawi announces the creation of a new security apparatus and confirms the arrest of key figures from al-Qaeda,” Baghdad, July 17, 2004.

[29] CPA/ORD/23 May 2003/02 (Dissolution of Entities).  The new security adviser to the Ministry of Interior was named as Major General ‘Adnan Thabet al-Samarra’i (“Reconstitution of the General Security Directorate,” Al-Nahdhah, June 21, 2004).

[30] Under Article 1 of the Order, a state of emergency may be declared “upon the exposure of the people of Iraq to a danger of grave proportions, threatening the lives of individuals and emanating from an ongoing campaign of violence by any number of people, for the purpose of preventing the establishment of a broad based government in Iraq, or to hinder the peaceful participation of all Iraqis in the political process, or for any other purpose.”

[31] See, for example, Betsy Pisik, “Human rights a priority in Iraq; Official tried to allay fears on security law, hits U.N.,” The Washington Times, July 9, 2004.

[32] Order for Safeguarding National Security, Article 4.

[33] Ibid., Article 3 (First and Second).

[34] Ibid., Article 9 (Second).

[35] Article 15(B) of the TAL, for example, states that “[E]xtreme exigent circumstances, as determined by a court of competent jurisdiction, may justify a warrantless search, but such exigencies shall be narrowly construed.  In the event that a warrantless search is carried out in the absence of an extreme exigent circumstance, the evidence so seized, and any other evidence found derivatively from such search, shall be inadmissible in connection with a criminal charge, unless the court determines that the person who carried out the warrantless search believed reasonably and in good faith that the search was in accordance with the law.”

[36] Betsy Pisik, “Human rights a priority in Iraq,” The Washington Times, July 9, 2004.  See also Muhammad ‘Abdul-Khaleq, “The government signs the Law for Safeguarding National Security,” Al-Sabah Al-Jadeed, July 8, 2004.

[37] CPA/ORD/9 June 2003/7 (Penal Code).  Section 3 (1) of the CPA Order states: “Capital punishment is suspended.  In each case where the death penalty is the only available penalty prescribed for an offense, the court may substitute the lesser penalty of life imprisonment, or such other lesser penalty as provided for in the Penal Code.”

[38] The death penalty was also reintroduced for two other crimes: the use of biological materials harmful to public health and resulting in deaths, and attacks on public means of transport and safety.

[39] Order for the Reintroduction of the Death Penalty, Number 3 of 2004, August 8, 2004.  Order 3 of 2004 also provided for the commutation to life imprisonment of death sentences passed and upheld prior to the Order’s effectiveness  (Article 7).  Human Rights Watch knows of several death sentences passed prior to August 2004, most if not all for premeditated murder.  On October 24, 2004, Iraq’s minister of justice said in a media interview that between 150 and 160 “Arab fighters” have been charged with carrying out acts of terrorism and may face the death penalty if convicted by the criminal courts.  They were said to include Egyptian, Jordanian, Lebanese, Moroccan, Syrian and Yemeni nationals as well as Iranians  See “About 150 Arab fighters face death penalty in Iraq: minister,” Agence France Presse, October 24, 2004.

[40] Citing Iraq’s minister of human rights, Bakhtiar Amin, at a press conference in Baghdad on August 8, 2004.  See Fu’ad Jassem Hammudi, “Reintroduction of the death penalty,” Al-Nahdhah, August 9, 2004, and “Safeguarding the security of Iraq, its people and human rights: reintroduction of the death penalty,” Al-Sabah Al-Jadeed, August 9, 2004. 

[41] Order for Amnesty, Number 2 of 2004, August 4, 2004. Order 2 of 2004 limited those benefiting from the terms of the amnesty to Iraqi nationals who committed the stipulated crimes between May 1, 2003 and the date of the law coming into force.  Initially valid for a thirty-day period, the amnesty was extended for an additional month in mid-September 2004.  It was not known how many people benefited.

[42] ICCPR, Article 9.  To comply with Article 9, the state must specify in its legislation the grounds on which individuals may be deprived of their liberty and the procedures to be used in enforcing arrests and detentions. Only acts conducted in accordance with such rules are considered lawful, thus restricting the discretion of individual arresting officers. Moreover, the prohibition on arbitrariness means that the deprivation of liberty, even if provided for by law, must still be proportional to the reasons for arrest, as well as predictable. The arrests of persons for the exercise of their fundamental rights is considered arbitrary and in violation of international law. Article 9 also specifically requires that detainees be immediately informed of the reasons for their arrest and promptly be told of any charges against them, and that they be brought promptly before a judge empowered to rule upon the lawfulness of the detention.

[43] ICCPR’s Article 9(3) states: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.”

[44] ICCPR, Article 10(1).

[45] ICCPR, Article 7.

[46] ICCPR, Article 14.

[47] ICCPR, Article 14(3)(b) (preparation of the defense).  Human Rights Committee (HRC) General Comment 13 states that under the ICCPR, “the accused must have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing. … this subparagraph requires counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications.  Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgment without any restrictions, influences, pressures or undue interference from any quarter.” U.N. Doc. HRI/GEN/1/Rev.6 at 135 (2003) para. 9.  The U.N. Basic Principles on the Role of Lawyers states that, “All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.”  Basic Principles on the Role of Lawyers, A/CONF.144/28/Rev.1 at 118 (1990), Article 8.

[48] Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992), U.N. Doc. HRI\GEN\1\Rev.1 at 30 (1994), para. 2.

[49] Committee against Torture, Consideration of First Periodic Report of the United Kingdom and Northern Ireland, CAT/C/SR.91, November 15, 1991. The CAT reiterated its concern about incommunicado interrogation in the United Kingdom's second periodic report. See Committee against Torture, Consideration of Second Periodic Report of the United Kingdom of Great Britain and Northern Ireland, para. 29

[50] Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 30 (1994), paras. 11 & 12.

[51] Ibid. paras. 13 & 14.

[52] CCP, Article 92.

[53] CCP, Article 102(a).

[54] CCP, Article 123.

[55] CCP, Article 109 (a) and (c).

[56] CCP, Article 127.

[57] Article 213(c) of the CCP states that the court may rely solely on a confession “if it is satisfied with it and if there is no other evidence which proves it to be a lie.”

[58] Article 333 of the Penal Code (No. 111 of 1969) states: “Any public official or agent who tortures or orders the torture of an accused, witness or informant in order to compel him to confess to the commission of an offense or to make a statement or provide information about such an offense or to withhold information or to give a particular opinion in respect of it is punishable by imprisonment or by detention. Torture shall include the use of force or threats.”  As defined under Articles 25 and 26 of the Code, “detention” is a period ranging from three months to five years, and “imprisonment” is a period ranging from five to fifteen years.

[59] CCP, Article 3(2).

[60] CPA/ORD/9 June 2003/07 (Penal Code).  Section 3(2) of the Order states: “Torture and cruel, degrading or inhuman treatment or punishment is prohibited.”

[61] Prior to the amendment, Article 218 of the CCP read: “It is a condition of the acceptance of the confession that it is not given as a result of coercion, whether it be physical or moral, a promise or a threat.  Nevertheless, if there is no causal link between the coercion and the confession or if the confession is corroborated by other evidence which convinces the court that it is true or which has led to uncovering a certain truth, then the court may accept it.”  The Article now reads: “It is a condition of the acceptance of the confession that it is not given as a result of coercion.” (CPA/MEM/27 June 2004/03: Criminal Procedures, Section 3d (vii)).   By virtue of the same Order, Article 213(c) of the CCP was also amended, allowing the court to accept confessions “if it is satisfied with it”, deleting “and if there is no other evidence which proves it to be a lie.” ( Section 3d(vi)).

[62] CPA/MEM/27 June 2994/03 (Criminal Procedures).  Section 4 reads: “At the time an Iraqi law enforcement officer arrests any person, the officer shall inform that person of his or her right to remain silent and to consult an attorney.”

[63] Ibid., Section 5(c), which reads: “A criminal detainee shall be promptly informed, in writing, in a language which they [sic] understand, of the particulars of the charges preferred against them by the authority serving an arrest warrant.”

[64] Ibid., Section 3(b), which reads:  “Before questioning the accused the examining magistrate must inform the accused that i) he or she has the right to remain silent and no adverse inference may be drawn from the accused’s decision to exercise that right; ii) he or she has the right to be represented by an attorney, and if he or she is not able to afford representation, the Court will provide an attorney at no expense to the accused.”

[65] Ibid., Section 3(c).

[66] TAL, March 8, 2004, Article 2(A).


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