Iraq has long been known for having a flawed justice system. The 2005 constitution and other legislation ensure due process and protections against torture, but those are rarely followed. Due to the fact that the Iraqi courts rely so heavily upon confessions to decide cases and the history of abuse within the system dating back decades there is a built in bias to force detainees to admit to crimes. Other issues routinely occur as well such as the denial of lawyers and the ability to form a defense, and misapplying terrorism charges. The United Nations released a report in February 2015 alleging that the root problem lies with the Iraqi judges who do nothing about torture charges and overlook other violations.
The Human Rights Office of the High Commissioner for Human Rights and the United Nations Assistance Mission for Iraq Human Rights Office did a preliminary investigation of cases in Iraq in 2013 that found widespread violations in Iraq’s justice system. That was initiated after the United Nations received complaints from northern and western Iraq that the government was not following due process, were not providing fair trials, was abusing the Anti-Terrorism Law of 2006, and torturing prisoners. From October to December 2013 the U.N. looked at several cases where they found evidence to support those claims. They observed nine cases involving 11 defendants where the police were accused of torture to obtain confessions. During the trials the accused brought up the abuse allegations, but none of the presiding judges did anything about it. In all of the cases the judges asked that the defendants prove that they had been tortured. That was impossible because the authorities held them from when they were arrested to when they arrived at court. In most of the cases the judges decided to use their confessions even though they were said to be obtained under duress. Torture is banned in Iraq yet there is a long history of its widespread use. Since the police know that a confession will generally guarantee a conviction they often beat one out of suspects. These charges have often been with terrorism charges, but the U.N. found that in all types of cases the police are accused of beatings and other techniques to get suspects to talk. This initial look into the court system led to a more in depth investigation the following year.
From January to June 2014 the U.N. observed 92 cases where it found its initial concerns were substantiated. The U.N. went to Basra, Muthanna, Dhi Qar, and Maysan for six months, and looked at capital, anti-terror, honor killing, prostitution, human trafficking, and drug cases. 28 defendants in 17 cases alleged that they had been tortured to force a confession. In none of those cases did the judge order an investigation into those charges. In 9 cases a judge did ask for medical records to prove that they had been abused. Only in 2 cases were those provided, but they had no affect upon the trial as the judges proceeded anyway. Only in one case was a suspect asked about his torture allegations. The judge asked why the defendant did not report the torture to the investigating judge when he was questioned. The man said that he didn’t say anything because the police that beat him where with him in the room during the interrogation. In five other cases the U.N. heard witnesses provided by the prosecution say that they had been tortured to get them to accuse a defendant. In the end, 19 of the 28 defendants were convicted, four were acquitted and five had their cases adjourned. This pointed to one of the root problems with Iraq’s judicial system. Judges routinely hear about abuse, but do nothing about it. This implicit acceptance of torture means that there is no reason to stop it and gives the green light to the police to continue with their practices.
In some instances, the abuse dealt out by the Iraqi police was extreme. One woman in Basra claimed she had been beaten so badly that she had a miscarriage and had her arm broken. Another defendant accused the police of murdering his co-suspect during questioning, which was supported by his lawyer at trial. Another was told that his sister would be raped if he didn’t implicate another person of a crime. Again, many of these involved common criminal cases showing that the police were just as likely to commit violations against terrorism suspects as regular citizens.
The U.N. heard accusations of corruption within the police. In one case involving terrorism charges in Nasiriyah, Dhi Qar, a suspect said that the police told him they would not torture him and would let him go if they were paid $20,000. In another case a defense lawyer claimed the police asked him for bribes to release his defendants. Corruption is rampant throughout the Iraqi government so it should be no surprise that the security forces are involved. What is another concern is the fact that the authorities were willing to let a terrorism suspect go for money. That raises the question of how many insurgents might have been let go over the years if they were willing to pay off the police.
Other violations the U.N. heard about were not providing lawyers, not allowing a defense to be prepared, denying communication with attorneys, and misapplying terrorism and capital charges. In hardly any of the cases the U.N. reviewed were the suspects told that they had a right to a lawyer. This was further complicated by the fact that few of the people had the money to hire one. Usually the judge picked a lawyer in court to defend a person even though they had not met with their client before and therefore had no time to prepare a defense. In many of the cases the U.N. witnessed the lawyers usually made very few comments during the trial as a result. In one case in Nasiriya involving three accused of terrorism they had hired a lawyer, but a judge refused to accept him and picked a lawyer from the court instead. In four trials in Basra involving prostitution judges added the death penalty to their cases for no apparent reason. In one case in Basra involving the murder of a taxi driver a policeman got terrorism added to the charges because he claimed the defendant had killed his father. In another case where Red Crescent workers were arrested for handing out old flyers with a picture of Saddam Hussein on them, intelligence officers got terrorism charges added to their case as well. That was dismissed. Just like the torture allegations it is only with the complicity of the judges that these abuses are allowed to continue. The judiciary did not appear to care whether due process was being followed, and in some cases would carry out violations themselves. The reigning view appeared to be that if people were arrested and their case went to trial they were presumed guilty. Therefore any post-arrest abuses were accepted because the defendants were likely going to prison anyway.
The United Nations investigation provided more damning evidence against Iraq’s courts. Many other human rights groups have issued similar reports in the past noting these types of violations. The Iraqi government has done little to address these issues until recently. Prime Minister Haider Abadi did issue an order that arrest warrants had to be issued for all arrests and that people who were detained without them had to be released. There are a few reports that this is being followed. The deeper institutional problems of torture and denying a fair trial however have yet to be dealt with.
Human Rights Office of the High Commissioner for Human Rights, United Nations Assistance Mission for Iraq (UNAMI) Human Rights Office, “Report on the judicial response to allegations of torture in Iraq,” February 2015