IV. Legal Framework
Following the May 1992 parliamentary elections and the formation of a Council of Ministers in the Kurdistan region, the Kurdistan National Assembly as one of its first acts issued a decree pertaining to the status and implementation of legislation promulgated by the Iraqi government in Baghdad. The decree required ministries to examine the laws, decrees, regulations and directives issued by the central authorities to identify what is not compatible with the welfare of the people of Kurdistan and [to] submit these to the National Assembly for a decision on the legitimacy or otherwise of their enforceability in the Region.23 Further, [n]o laws, decrees, regulations and directives which were issued or which will be issued by the central government authorities after the withdrawal of the government administration from the Kurdistan region on 23/10/1991 shall be enforced except after the legitimacy of their enforceability has been confirmed by the Kurdistan National Assembly.24
In practice, the Kurdish authorities did not implement legislation promulgated in Baghdad after October 23, 1991, choosing instead to issue separate legislation. In the latter half of 1992 and in 1993 in particular, they passed a number of laws establishing the interior, justice and other ministries that constituted the Council of Ministers, as well as laws regulating political, social, and security matters in the region.25 These laws, as amended, remain in force today. The continued validity of these laws, as well as other decrees, directives, and regulations passed by the Kurdish legislature, was reaffirmed in the Iraqi constitution adopted in October 2005: Legislation enacted in the region of Kurdistan since 1992 shall remain in force, and decisions issued by the government of the region of Kurdistan, including court decisions and contracts, shall be considered valid unless they are amended or annulled pursuant to the laws of the region of Kurdistan by the competent entity in the region, provided that they do not contradict the Constitution.26
The Kurdish authorities review of legislation passed by the Iraqi government prior to October 23, 1991, led to the suspension of several laws and various decrees passed by the then Revolutionary Command Council (RCC).27 None was formally rescinded since Iraqi law requires the issuance of a presidential decree authorizing repeal, but in some instances the Kurdish National Assembly promulgated alternative laws. Among them was the 1992 Judicial Authority Law, regulating the courts in the Kurdistan region,28 and replacing Iraqs 1979 Judicial Organization Law.29 Criminal legislation applicable in the Kurdistan region remained largely intact, in particular the Code of Criminal Procedure (CCP)30 and the Penal Code,31 in line with the rest of the country.
The Iraqi government has legal obligations under international human rights treaty law and customary law, to which all regional federal authorities must also adhere.32 International human rights agreements to which Iraq is a party, most notably the International Covenant on Civil and Political Rights (ICCPR), ensure basic protections for persons even in the midst of emergencies now faced by Iraq.33 All successor governments of Iraq are bound by earlier governments treaty ratifications.34
Under the ICCPR, every person has the right to protection against arbitrary arrest;35 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 released;36 to be treated with dignity while in detention;37 to protection from torture and cruel, inhuman or degrading treatment or punishment;38 and to due process and fair trial,39 including the right to counsel.40
As it currently stands, Iraqs CCP falls short of international human rights standards in a number of significant ways, failing to address fundamental rights such as the right of criminal suspects against self-incrimination, 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.
Under the CCP, security officials may not arrest a person without a warrant (except in circumstances prescribed by law,41 such as arrests carried out while a crime is taking place (in flagrant delicto)).42They must bring defendants before an investigating judge within 24 hours of arrest.43The judge may renew the period of detention for not more than 15 days on each occasion, provided that the total period does not exceed six months. If security officials do not complete their criminal investigation within six months, they must obtain authorization through the investigative judge for further extensions of the detention period from the relevant criminal court.44
The CCP prohibits the use of any illegal method to influence the accused to extract a confession,45 such as ill-treatment, threats to cause harm, enticement, promises, psychological influence, or the use of drugs or intoxicants.46 While there is no prohibition against using such evidence in court, 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.47 Iraqs Penal Code provides a further measure of accountability, making officials found guilty of torturing or ill-treating detainees in their custody punishable by up to 15 years imprisonment.48
The Coalition Provisional Authority promulgated a number of amendments to the CCP and the Penal Code after April 2003, some of which addressed the shortcomings of these laws. The amendments included a prohibition on torture49 and on the use of coerced confessions as evidence in certain circumstances.50 The CPA also affirmed the right of criminal detainees to remain silent upon arrest, to consult legal counsel,51and to be promptly informed of the charges against them.52It affirmed the right to remain silent and to legal counsel at the investigative stage.53Further, [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.54
These amendments no longer have the force of law except to the extent that domestic legislation subsequently incorporated them.55 In September 2003 the Kurdistan National Assembly incorporated into regional legislation the CPA amendments to the Penal Code and the CCP, but did so selectively, excluding several provisions that protected fundamental rights and principles. With regard to the Penal Code, the Kurdish legislature went further than the CPA by suspending altogether the majority of provisions criminalizing offenses against the internal and external security of the state, as well as offenses against state or official institutions, many of which carried the death penalty or long custodial sentences.56 It did not incorporate other amendments, including two articles suspending capital punishment and reaffirming the total prohibition on torture, although amendments to the CCP partially addressed these issues.57 With regard to the CCP, the Kurdish legislature incorporated key amendments that guaranteed better protection for suspects at the investigative stage,58 including the right to be questioned in a language they understand or have an interpreter appointed to them,59 and the right to engage legal counsel or have legal counsel appointed to them.60 However, the Kurdish legislature did not incorporate the right of criminal detainees to remain silent upon arrest,61 or the right to be promptly informed of the charges against them.62 With regard to admissible evidence, the Kurdish legislature incorporated a CPA amendment guaranteeing detainees the right not to have coerced confessions used as evidence against them in certain circumstances,63 but it did not incorporate a related amendment that prohibited reliance solely on a confession if the court is satisfied with it and if there is no other evidence which proves it to be a lie.64
In July 2006 the Kurdistan National Assembly adopted the Law on the Combat of Terrorism in the Iraq Kurdistan Region (Anti-Terrorism Law),65 valid for two years from the date of its coming into force.66 The law criminalizes a wide range of offenses deemed to constitute terrorism. Article 2 introduced the death penalty as a mandatory punishment for eight offenses:
One key provision of the Anti-Terrorism Law, which takes precedence over the CCP and the Penal Code,71 is inconsistent with an amendment to the CCP that the Kurdish authorities adopted in September 2003 regarding the admissibility of coerced confessions.72 Article 13 of the Anti-Terrorism Law, while providing for the legal and fair treatment of an accused at all stages of an investigation, including provision of defense counsel, also permits the reliance on confessions extracted under duress, threats, or torture if corroborated by other evidence. 73 By permitting reliance on such confessions, the law might well encourage detaining officials to torture or otherwise ill-treat detainees. The law limits the redress available to detainees to litigation against investigating officers in their private capacity, although it also provides for detainees found not guilty to seek compensation for damages in accordance with the constitution and the laws.74
The policies of the KDP and PUK administrations with respect to capital punishment have been at variance. In 2002 the PUK administration suspended the application of the death penalty indefinitely, commuting some 40 death sentences pending at the time to life imprisonment or less.75 The KDP administration continued to apply the death penalty, albeit restrictively, to serious felonies such as premeditated murder. While the Kurdistan National Assembly did not incorporate into regional legislation the CPA amendment to the Penal Code that suspended the death penalty (as noted above), it did incorporate an amendment to the CCP that suspended all articles regulating its implementation, thereby effectively suspending its use.76 The Kurdistan legislature did not rescind the suspension of these articles when it passed counterterrorism legislation in July 2006. However, in September 2006 the Kurdistan National Assembly passed a decree reestablishing capital punishment for certain offenses.77 Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty and irreversibility.
23 Kurdistan National Assembly, Decree No. 11 of 31 August 1991 (art. 1), published in Perleman, Vol. 1, September 15, 1991. Perleman was the official gazette in the Kurdistan region, later renamed the Kurdistan Gazette.
24 Ibid., art. 2.
25 The latter, for example, included the Law on Publications for the Iraqi Kurdistan Region (No. 10 of 1993), the Law on Associations for the Iraqi Kurdistan Region (No. 18 of 1993), and the Law on Parties for the Iraqi Kurdistan Region (No. 17 of 1993). The Kurdistan National Assembly also passed the Weapons Law (No. 16 of 1993) in an effort to curb the distribution of weaponry in the Kurdistan region and to regulate their use through licensing under the authority of the Ministry of Interior.
26 Constitution of the Republic of Iraq, art. 141. After the collapse of the joint Kurdish administration as a result of the inter-Kurdish conflict in the mid-1990s, the KDP and the PUK set up two parallel administrations, which promulgated legislation through different means. In KDP-controlled areas, the Kurdistan National Assembly resumed its functions in late-1996 without its PUK members. In PUK-controlled areas, with no parliamentary body to act as the legislative authority, the PUKs Council of Ministers issued decrees and decisions.
27 Laws and Decrees Suspended in the Iraqi Kurdistan Region, published by the Kurdistan National Assembly, Vol. 1, 2002.
28 Law No. 14 of 1992, passed by Decree No. 44 of December 28, 1992, published in Perleman, Vol. 7, January 1993. The promulgation of this law enabled the establishment of a court of cassation, based in Arbil. Prior to the withdrawal of the Iraqi governments administration from the Kurdish region in October 1991, Iraq had one court of cassation, which sat in Baghdad. A second court became necessary after unsuccessful attempts by the Kurdish authorities to have the Baghdad Court review rulings of the criminal courts in the Kurdistan region. The PUK then established a third court of cassation for the Sulaimaniya region, citing undue delays by the Arbil Court of Cassation in reviewing cases referred by the Sulaimaniya courts. Following the unification of the KDP and the PUK administrations in May 2006, the two courts were merged into the Kurdistan Court of Cassation, which sits in Arbil.
29 No. 160 of 1979.
30 Code of Criminal Procedure (CCP), No 23 of 1971, as amended.
31 Penal Code, No. 111 of 1969, as amended. The Kurdish authorities suspended several of the RCC decrees amending the Penal Code, but these are not discussed here as they are not relevant to this report.
32 See, for example, International Covenant on Civil and Political Rights (ICCPR), art. 50 (The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.). ICCPR, adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976. Iraq ratified the ICCPR in 1971.
33 The Iraqi government introduced emergency legislation in July 2004, declaring a state of emergency four months later, which has been extended every two months since (Law No. 1 of 2004: Order for Safeguarding National Security, published in the Iraqi Gazette, Vol. 3987, September 2004). This is not applicable to the Kurdistan Region, where the Kurdish National Assembly declared a state of emergency on March 19, 2003, on the eve of the war in Iraq. It lifted the state of emergency on April 20, 2003, following the fall of the Saddam Hussein government, and has not reimposed it since (Decrees No 34 and 35 respectively, Kurdistan Gazette, Vols. 41 and 42).
34 A successor government remains party to previously ratified treaties unless it invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, [and it] must notify the other parties of its claim. See Vienna Convention on the Law of Treaties, done at Vienna on May 23, 1969, entered into force on January 27, 1980, 1155 UNTS 331, art. 65.
35 ICCPR, art. 9. To comply with this prohibition against arbitrary detention, the state must specify in its legislation the grounds on which it may deprive individuals of their liberty and the procedures it will use in enforcing arrests and detentions. Only acts conducted in accordance with such procedures 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 arresting officials to immediately inform detainees of the reasons for their arrest, to tell them promptly of any charges against them, and to bring them promptly before a judge empowered to rule upon the lawfulness of the detention.
36 ICCPR 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.
37 ICCPR, art. 10(1).
38 Ibid., art. 7.
39 Ibid., art. 14.
40 Ibid., art. 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 [T]his 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. UN Doc. HRI/GEN/1/Rev.6 at 135 (2003), para. 9. The UN Basic Principles on the Role of Lawyers states, 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), art. 8.
41 CCP, art. 92.
42 Ibid., art. 102(a).
43 Ibid., art. 123.
44 Ibid., art. 109 (a) and (c).
45 Ibid., art. 127.
46 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.
47 CCP, art. 3(2).
48 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 15 years.
49 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.
50 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)).
51 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.
52 Ibid., Section 5(c) reads, A criminal detainee shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them by the authority serving an arrest warrant.
53 Ibid., Section 3(b) 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 accuseds 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.
54 Ibid., Section 3(c).
55 Article 62 of the TAL states, This law shall remain in effect until the permanent constitution is issued and the new Iraqi government is formed in accordance with it. A draft permanent constitution was adopted by national referendum in October 2005. Constitutional amendments remain subject to negotiations between Iraqs various political parties at this writing.
56 Law No. 21 of 2003, passed by the Kurdistan National Assembly on September 27, 2003 (Kurdistan Gazette, Vol. 45, October 10, 2003). The law suspended articles 157-189 (offenses against external state security), articles 190-195 and articles 198-219 (offenses against internal state security), and articles 223, 225, 227 and 228 (offenses against official or state institutions). The CPA amendment stated that legal proceedings with respect to these and other offenses could only be brought with the written permission of the CPA Administrator (CPA/ORD/10 June 2003/07, Penal Code, Section 2, article 2).
57 CPA/ORD/10 June 2003/07, Section 3, arts. 1 and 2.
58 Law No. 22 of 2003 (Suspending Implementation of Articles of the Iraqi Code of Criminal Procedure No. 23 of 1971), passed by the Kurdistan National Assembly on September 27, 2003 (Kurdistan Gazette, Vol. 45, October 10, 2003).
59 CCP, art. 61 (c), amended by CPA/MEM/27 June 2004/03, Criminal Procedures, Section 3 (a).
60 CCP, art. 123, amended by CPA/MEM/27 June 2004/03, Criminal Procedures, Section 3 (b).
61 Ibid. Article 3 of Law No. 22 of 2003 adopted by the Kurdistan National Assembly incorporated part of the CPAs amendment to article 123 of the CCP, but excluded a paragraph that 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 accuseds decision to exercise that right (Section 3(b)). International human rights law provides for a right against self-incrimination but does not provide for a right to remain silent, a protection common to common law legal systems, but not civil law systems.
62 CPA/MEM/27 June 2004/03, Criminal Procedures, Section 5(c).
63 CCP, art. 218. See footnote 51, above.
64 CCP, art. 213 (c). The CPA amendment deleted and if there is no other evidence which proves it to be a lie. (CPA/MEM/27 June 2004/3, Section 3d(vi)).
65 Law No. 3 of 2006, Kurdistan Gazette, Vol. 61, July 16, 2006. This law is separate from counterterrorism legislation passed by the central government in Baghdad in November 2005, and which is not addressed in this report (Law on the Combat of Terrorism, No. 13 of 2005, Iraqi Gazette, Vol. 4009, November 9, 2005).
66 Law No. 3 of 2006, art. 17.
67 Ibid., art. 2(5). Where such acts do not lead to the death of a person, capital punishment is replaced with life imprisonment.
68 Ibid., art. 2(6). This provision is only applicable to members of the Kurdish internal security forces and to the peshmerga forces.
69 Offenses punishable by life imprisonment include: the destruction of public and private property and installations; abduction of persons for political or financial gain; the training of persons in military warfare with the intention of carrying out terrorist acts; membership of terrorist groups; and the manufacture or possession of explosive devices for use in terrorist acts. The hijacking of civilian aircraft is also punishable by life imprisonment, but the death penalty is imposed if such acts result in the death of one or more persons.
70 Offenses punishable by terms of imprisonment not exceeding 15 years include: possession of, with terrorist motives, literature or audiovisual materials containing incitement to commit acts of terrorism; having knowledge of a terrorist act punishable under the law and failing to notify the authorities accordingly; and deliberately spreading information through literature or audiovisual or electronic mediums that encourages the commissions of acts of terrorism and leads to the undermining of public safety, the spread of fear, or threatens regional political institutions.
71 Law No. 3 of 2006, art. 16.
72 The Human Rights Committee (HRC), the international body responsible for monitoring compliance with the ICCPR, has stated, 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. 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, UN Doc. HRI\GEN\1\Rev.1 at 30 (1994), para. 11.
73 Article 13 of Law No. 3 of 2006 reads,
74 Law No. 3 of 2006, art. 14.
75 This was largely the result of a directive issued by PUK leader Jalal Talabani, which was supported by then prime minister of the PUK administration Barham Salih. Both have publicly stated their opposition to the death penalty on various occasions.
76 Arts. 285-293, suspended by CPA/MEM//27 June 2004/3, Section 3(d)(ix).
77 Law No. 6 of 2006, issued on 11 September 2006.