“Parodies of justice” in Iraq

Agnès Callamard. First and foremost, the legal framework of the proceedings filed against presumed members of the Islamic State (IS) is troublesome. All of these individuals stand accused based on the antiterrorism law passed in Iraq in 2006. This ambiguous law does not establish a distinction between different types of crimes or offences: involvement in a terrorist group is punished in the same way as a murder committed in the name of terrorist ideologies. Additionally, inmates are almost, without fail, victims of torture or ill treatment by the authorities. This violence is committed during detention in order to extract confessions. Obtained by torture, these confessions are criticized by inmates during their trials. Under Iraqi law, judges are required to call for independent investigations to look into torture allegations. But this is very rarely the case. Lastly, the proceedings themselves are also troublesome.

Justice is often dispensed in a collective and summary manner. Some trials only last a few minutes. As far as the right to be defended is concerned, accused individuals meet their lawyer within minutes of the trial, and the lawyers have no knowledge of the case files.

This is a flagrant violation of the international norms regarding the proceedings of a fair trial. Furthermore, individuals who do not understand Arabic rarely have access to interpreters and thus are unaware of what actions they must answer for. Sentences are harsh in many cases, resulting in death sentences. Appeals are possible, and the procedures are typically followed; however, with few exceptions, they do not lead to a revision of the initial judgement. Inasmuch as the trial conditions are unfair, any death penalty that is carried out for these individuals constitutes wrongful execution.

AC. Before all else, it will be necessary to consider a profound change of the system and legal practices, by revising the laws which govern these trials. In theory, the accused could be judged based on criminal law for accusations of murder – the charges brought against them only refer to the antiterrorism law, which does not include general law crimes. Furthermore, more often than not, the only charge is “involvement in a terrorist group”. Alleged members of the IS who committed crimes are thus not called to answer for their actions. Additionally, the accusations of terrorism do not at all take into account the violence committed against the victims, who, incidentally, never attend the trials.

Iraqi criminal law must also be modified to give Iraqi courts and judges jurisdiction on war crimes, crimes against humanity and genocide, which are currently not included in Iraqi law.

For more than three years now, United Nations agencies and other parties have requested revisions of Iraqi criminal law: texts have been proposed, but none have succeeded.

That being said, the prosecutors themselves could add general law charges to the charge of involvement in a terrorist group, but they never do because the evidence required to prove a murder or rape are especially abundant. Conversely, the accusation of involvement in a terrorist group does not require specific evidence: the Iraqi system rests on the confessions of the incriminated person. For this reason, prosecutors choose the line of least resistance, especially as terrorism accusations lead to harsher sentences.

Lastly, the proceedings of the trials themselves must be reviewed and changed extensively. It is unacceptable that accused individuals have access to a lawyer two minutes before their trial and that this lawyer has no knowledge of their case files. All of these factors must be reviewed so that the conditions of a fair trial may be made possible.

AC. It is very clear that the European authorities know that the trial and detention conditions in Iraq represent international violations. In light of the limitations and violations of international law endured by European nationals, who are neither Iraqi nor Syrian and stand accused of being members of the IS, only one solution is possible for the countries of origin: repatriation. In Iraq, torture is almost systematic. The trials are only a parody of justice and the accused individuals are in danger of receiving death sentences, all of which represents a violation of the international obligations of the states. Their duty of care is implicated, as well as their obligation to respect the right to life. A host of violations stem from the refusal to repatriate. Unfortunately, there is no lever of action to require states to fulfil their obligations.

Furthermore, European states do not always fulfil their consular obligations. In theory, they should ensure that their citizens’ fundamental rights are respected, including the right to the fair proceedings of trials and to detention conditions that meet standards. I did not directly look into the latter, but the information that was communicated to me showed that the conditions are degrading, even inhuman.

The prisons are overpopulated, the food is very limited and the inmates do not have access to medical care. They are deprived of light and cannot go out in the open air. Some died in detention.

Despite all the talk of the member states, access to consular assistance is an obligation of the states of origin which must not be implemented in a discriminatory manner: it is not right to grant assistance to some individuals and not to others.