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In the middle of April this year, I received an Email with subject line “To Ashish: The IRAQs’ Political Woes Won’t End Without Comprehensive Judicial Reform”. I’d ignored this Email if it was not personalised. I started reading and to my surprise I not only received praise for my previous articles on different human rights issues but also an story from an Iraqi citizen- Thaar Majeed Hassan AL_Taiey. Taking inspiration from his Emails, I’ve written this long piece with the help of Kristoffer Tangård. We have looked into various sources to complete this article just to avoid any technical and factual mistakes. However, I must add that in case we have missed out any important detail, upon feedback they will be included/edited.

Thaar, an educated Iraqi National with an MSc in Computer Engineering, claims to be a victim of such failures in the judicial process by the Supreme Judicial Council and the Country Council. In 2006, the terrorists attempted to kill him by opening fire on his workplace in Baghdad. He and his family — of 30 people — have continued to be threatened, and in 2011, the terrorists were successful in killing his sister. In 2012, he was targeted by a bomb killing few people in his community were either killed, while injuring others. There have been several attempts to kill him, his mother 70, and several members of his family. On Sept 26, 2017, the criminals attempted to force him leave his country after he published the third press release about his story on Sept 14, 2017.

He feels frustrated, harassed and hopeless by receiving negligence from everyone in the judicial and administrative systems of Iraq. After complaints from 2007, the publication of the issue about 50 times in the Iraqi as well as international media, the Iraqi authorities did not respond and did not listen to his requests and complaints.

He filed lawsuits with the Supreme Judicial Council and the Country Council, penal 4989 seq. 3825 and 7599 seq. 3838 on Jun 28, 2016, and 124 seq. 1061 on Feb 21, 2016, but they dismissed his case without any investigation and colluded with the criminals in the process by the police and the judicial system.  He subsequently wrote to the Iraqi Judicial Supervisory Board in 2016 but his case is failing to progress, penal kt/84/2016 on May 08, 2016, despite this body concluding that major legal errors had been committed by the Court and the Federal Court of Cassation as the crimes proved to the defendants implicitly but were not an integrated order. See the images of the decisions taken by the supreme judicial council above, which state closing his case without any proper inquiry.  Thaar’s story also received huge attention on Twitter @thaar, Facebook @faristaie, Instagram @thaar_altaiey, and YouTube @Thaar taiey. His hashtag #ThaarJustice, is active on several social media channels to focus on his case and on human rights and justice violations happening every day around the world.

Reported failures in the Iraqi Judicial system have been reported by organizations like Human Rights Watch claiming that the Iraqi Judicial system has been broken for many years.

Since the political change in Iraq took place in 2003 with the US-led invasion to change Saddam’s regime, the Iraqi political and judicial system are unstable and very weak, even though the new regime claims to have provided freedom and democracy to the state.

The new political system is suffering from corruption and from the highest levels in the state. This led to looting the wealth of this very rich state. It also aggravated the woes of the Iraqis. There are no basic services provided by the government to the citizens. Electricity, availibity of water, good roads are still missing in Iraq. The state is devastated and plagued by unemployment and various kinds of crimes, including terrorism.

Iraq is currently ranked among one of the most corrupt countries in the world, according to latest Transparency International report, which says,

“The worst performing Arab states in the index IraqLibyaSomaliaSudanSyria, and Yemen – all suffer from weak public institutions, internal conflict and deep instability. Such situations allow corruption to become rife with little to no checks on official abuse. Amid ongoing violence, as well as internal wars and conflicts, all forms of good governance have eroded.”

One of the most important reasons for these problems is the absence of a proper functioning judiciary. The current judiciary system does not hold the criminals accountable or arrest them, even those who are caught by the accursed crime are either released or not arrested at all and even terrorist criminals do not sue them properly only for certain political ends. That this judiciary has caused many of the scourge of Iraqis, including the spread of corruption in the country.

Lying who say that there is a lack of knowledge about matters of justice in Iraq; this is not true at all. It is just an argument before the international community to shirk responsibility and to justify the failure of judges to act in accordance with the law and to steal more money under the pretext of depositions abroad. The judicial knowledge and the judiciary are not new to Iraq; it is one of the oldest states in this area. The laws in force were enough to deal with any such issue pertaining to justice. Nevertheless, in today’s Iraq most of the judges involved in covering up the criminals and corruption.

Iraq: a general introduction

Before Saddam Hussein came into presidency of Iraq in 1979, and in the course of his almost 24-year reign being both praised for his non-US stand and his offensive action toward Israel, and condemned for the alleged hundreds of thousands civilians killed – Iraqi and otherwise – by his security forces, giving him the not so neutral epithet ”butcher of Baghdad” as a bonus, the upholding of human rights in Iraq were not exactly beyond criticism. Kurds were attacking Christian Assyrians regularly, as this was a tradition from long back, involving looting, murder, mutilation, and forced repentance of women to Islam. Genocides (not yet acknowledged on the same level as the one against the Jews) were taking place by the Turks against Assyrians, Armenians and Greeks, leading to ethnic cleansing and deportation. In the span of 1914-22 three fourths of the Assyrian population – almost 750,000 people – were being massacred.

In the 1920s the British forcibly and violently took Iraq under its ruling, only to abandon their supporters – Assyrian militia groups gathered in the interim, collectively knows as ”Assyrian Levies” – when the British served them the Hashemite monarchy in 1933 so that the country of Iraq could work on its unification and state-building. Hordes of left-over Assyrians tried to escape into Syria, where French colonists forced them back again right into the hands of the Iraqi militia. The massacre in Simele the same year, lead by Kurdish general Bakr Sidqi, can be seen as a result of the Ottoman culture, in which the Iraqi state was still ingrained, although in its time “carved out” of, by the British, hindering an understanding of Assyrian rights.

Rated better than the powers to come – humanitarian-wise – the Hashemites to a certain degree allowed for a stream of democracy to Iraqi ruling. The economic situation, however, was so dismal in 1952 – partly because of agricultural complications, but also because of the unyielding supremacy of the monarch rule itself (the democratic vein was quite elitist) – that protests against the regime became prominent, to the point where the Hashemites declared martial law.

They met defeat, however, in 1958, when the “Free Officers” took the ruling hand, rising up farmers and land-workers, but also being more exclusivist towards other groups. In short, the climate became even harsher, leading to more blatant militarism and uncompromising obliteration of “wrong-thinkers”, even attacking imaginary enemies within the country itself. The next four years saw hundreds of thousands Iraqi leaving their home state, but, then again, also better conditions for the Assyrians.

Coups and counter-coups were being common these years, and power shifted among armed minorities. The people did want a strong leader, romanticizing the “political saviour” in the form of the 11th century Islamic hero Saladin. Politically the main strain was nationalist with a hint of socialism. The conflict between the original coup leaders became prominent, one of them supported by the then-small nationalist Baath Party, the other one, head of the “Free Officers” Brigadier Abd al Karim Qasi, ganging up with communists. At one point the latter was tried assassinated, but the attempt failed and Qasi answered by ganging up with even more communists and suppressing the nationalist parties. But he was eventually overthrown in 1963 by the Baath, which in turn was overthrown later the same year, until coming back into power in 1968, with Saddam Hussein becoming the party’s “moving force”.

Iraq during Saddam

de facto leader since the coup in 1968, Saddam Hussein became Iraq’s official leader in 1979, having during his former vice presidency nationalized oil and foreign banks, and put in power (for the most part) the minority group of Sunni Muslims.

As mentioned above, Saddam Hussein’s regime was responsible for human rights violations en masse. Primarily performed or delegated by the Man himself or one of his eleven assistants – collectively known as ‘Saddam’s Dirty Dozen’, half of them Hussein’s own relatives – the atrocities included both the physical aspect, with severe torture and mutilation to diverse body parts; examples include bone crushings, electric shocks, hangings by hook, and amputations. A more complex occurrence taking place by same regime was making family watch as their women were being raped; this can be seen as a combination of physical pain with psychological provocation.

In addition to this, both capital punishments and “disappearances” were used frequently. Not surprisingly, assembly rights were limited to groups being non-dissident towards the current government. The United Nations came in 2002 to the point of officially condemning Iraq for its human rights violations, which had not improved with time. 28 nations voted for the condemnations, 4 nations against. Then, in 2003, a coalition with the U.S. and Great Britain in front invaded Iraq, the former’s President George W. Bush claiming that the vulnerable state of the U.S. justified such an action, Iraq supposedly being a supporter of terrorist group Al-Qaeda, perpetrators of the September 11, 2001 attacks.

To contextualize, the United States already had a history of opposing Iraq, defeating Saddam after he had invaded Kuwait in 1990. But Hussein managed to obtain his former glory once again. Then U.S. President Bill Clinton ordered the bombing of some Iraqi military targets in 1998 – an action provoked by Iraq continually having defied the UN ban on weaponry. After that incident, Saddam would not have any inspections from outside anymore.

Fast-forward to 2003. Saddam is unwilling to leave Iraq, and the mentioned U.S. invasion takes place. Precision-guided bombs are being dropped on a site where Saddam is allegedly to be situated, followed by further bombings on government and military sites. U.S. soldiers moved steadily towards capital Baghdad, overcame the resistance and took hold of the city. Joined by Kurdish fighters, the cities of Kirkuk and Mosul were then seized. The Iraqi leader was captured in his hometown of Tikrit, taken over by Iraqi authorities, convicted, and eventually executed on December 30, 2006, exactly three years and seventeen days after his original capture.

Iraq after the invasion

In the time after Saddam’s conviction, the focus of human rights abuses have shifted from the Iraqi government to the already mentioned coalition forces, as well as insurgents and terrorists.

There are diverse examples of soldiers from the UK or USA killing Iraqi civilians, although most of these actions have yet to be prosecuted. A notable exception is Corporal Donald Payne (pleading guilty as the first ever of the British army for a war crime) being jailed for poor treatment of detainees – one of which, a 26 year old receptionist, in 2003 both beaten and assaulted, leading to her death just a few days later. Another example, just into the year 2004, is the possible killings of suspected insurgents, a gun camera video of which is still intact and publicly distributed.

Insurgents as well are responsible for bombings of official buildings as well as murders of hostages in the form of beheadings.

In more recent times, the displacements, injuring and killings of Iraqi civilians as a consequence of the 2015-started conflict between ISIS and a coalition of Iraqi government, supporting militias, and the USA, have been extensive. Women’s status in Iraq – including education, work, and other areas of their everyday existence – is a case in need of improvement. In the case of the war specifically, a massive amount of women are victims of being widowed.

Post-script

The concept of the Rule of Law is not new to Iraq. Hammurabi’s world famous Code of Law which dates back to 1772 BC is regarded as one of the world’s first codified constitution with the remarkable feature of laws taking primacy over the authority of the ruler. Iraq ratified a new Constitution in 2005 setting out a legal framework and public institutions all of which are intended to serve the Rule of Law. Iraq is a signatory to various international treaties and initiatives on matters of commercial interest relating to the Rule of Law. However, there have been protests, complaints and gross violations of human rights in Iraq during and after Saddam regime- posing a serious question about the rule of law and judiciary.

In Iraq, unlike other countries, the Constitution does not establish clear mechanisms by way of checks and balances between branches of Government, the Judiciary and Judicial oversight bodies; and, Iraq does not have an established or stable legislative history that would provide parameters for the predictability of enforcement of the Rule of Law. The Constitution clearly seeks to safeguard the independence of the judiciary. However provisions of the Constitution conflicts with each other by conferring upon parliament via the Higher Judicial Council the right to determine the extent of the Judiciary’s independence. There are further technicalities as well. For example, which approach judiciary should take in constitutional matters and in general civil/criminal matters. In Constitutional matters the constitution should be interpreted in such a way as to reflect a truly inclusive socio-ethnic make-up of the whole of Iraq.

Luay Al-Khatteeb and Omar Al Saadoon make valid arguments that need to be part of every discourse on institution building in Iraq, and also practiced- “The Judiciary should take note that in deciding constitutional matters they must exercise extreme caution so as not to adopt an attitude of discretionary decision making to revise the Constitution in a radical manner to suit the prevailing political interests at the time. If the Judiciary is perceived to indulge in ‘Judicial activism’, this may invite accusations of cronyism which will undermine its legitimacy and defeat the very purpose the Judiciary is intended to serve which is to provide predictability for enforcing the law and in doing so uphold the Rule of Law and Justice.

Whilst certain entrenched policy makers in Baghdad typically view the Judiciary and the Justice system with suspicion or hostility they must also equally accept that if the leadership is to govern a society where the Rule of Law is paramount, the Judiciary and the Justice system must have an integral part in checking the exercise of powers by the Executive Branch and Parliament. It is most probable the balance of the separation of powers will be addressed by the political leadership in Iraq in implementing relevant aspects of Iraq’s constitution.”

Reforming the system should be a top priority of Iraqi authorities to ensure that the requirements of Iraq’s Code of Criminal Procedure are carried out. The government should investigate allegations of abuse against detainees, especially women. The government should also investigate abusive security forces and detainees’ claims that officers and judges use the country’s anti-terrorism law to harass innocent civilians. Iraq certainly has miles to go…

(Ashish Kumar Singh is a Doctoral Candidate at the Political Science department of Higher School of Economics, Moscow. Prior to that he has studied in Oslo, Mumbai and New Delhi. He can be contacted at: ashish.tiss@gmail.com)

2 Comments

  1. Pingback: Red News | Protestation

  2. Dr. Ashish Singh (in making) – A stable Judicial system is very important for civic order and attracting foreign capital for development! As you rightly said it should be the top state priority for Iraqi government. Look forward to more of your enriching articles on new world order!