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[casi] AI: Iraq - Memorandum on concerns related to legislation introduced by the CPA




http://web.amnesty.org/library/index/ENGMDE141762003


[full report at:
http://web.amnesty.org/aidoc/aidoc_pdf.nsf/Index/MDE141762003ENGLISH/$File/MDE1417603.pdf ]

AI INDEX: MDE 14/176/2003     4 December 2003

Iraq

Memorandum on concerns related to legislation introduced by the Coalition
Provisional Authority


1.0. INTRODUCTION

Amnesty International has expressed concerns on several occasions in the
past over issues related to the conduct of the Coalition Provisional
Authority (CPA) as an occupying power in Iraq. Amnesty International issued
an extensive memorandum detailing many of the organization's concerns. In
"Memorandum on concerns relating to law and order", (AI Index: 14/157/2003),
issued in July 2003 (July 2003 Memorandum), Amnesty International welcomed
the review undertaken by the CPA of the Iraqi Penal Code of 1969 and the
Code of Criminal Procedures of 1971, in order to evaluate their
compatibility with international human rights standards. The organization
has made some observations in that Memorandum in relation to CPA orders and
regulations that relate to law and order. The Memorandum stated that a
further analysis of CPA Orders and Regulations in Iraq will be made at a
later stage.

Further, in the July 2003 Memorandum, Amnesty International raised concerns
related to practice by the CPA and British and United States (US) forces,
including excessive use of force; the use of different procedures and
guarantees of rights in arrest and detention accorded to different
categories of detainees; allegations of torture and ill-treatment in custody
by the Coalition forces; damage and destruction of property during searches;
concerns over the independence of the judiciary; concerns related to the
Central Criminal Court; lack of adequate recognition by the Coalition powers
of applicability of international human rights law to all aspects of life;
and lack of accountability of Coalition forces for violations of human
rights and humanitarian law. Amnesty International provided a number of
recommendations directed at the CPA.

This Memorandum highlights Amnesty International concerns in relation to CPA
orders and regulations and their impact on human rights.(1) It includes
concerns related to independence of the judiciary, freedom of expression and
association, freedom of movement, language and access to information, and
property disputes.



2.0. ROLE OF THE GOVERNING COUNCIL AND THE COALITION PROVISIONAL AUTHORITY

Amnesty International notes the establishment of the Iraqi Governing Council
in July 2003, and CPA Regulation Number 6 in which the CPA recognized the
Governing Council "as the principal body of the Iraqi interim
administration, pending an internationally recognised representative
government by the people of Iraq, consistent with [Security Council]
Resolution 1483". Regulation Number 6 adds that "the Governing Council and
the CPA shall consult and coordinate all matters involving the temporary
governance of Iraq, including the authorities of the Governing Council".
Paragraph 9 of Security Council Resolution 1483 states that the Security
Council "[s]upports the formation, by the people of Iraq with the help of
the [Coalition Provisional] Authority and working with the Special
Representative, of an Iraqi interim administration as a transitional
administration run by Iraqis, until an internationally recognized,
representative government is established by the people of Iraq and assumes
the responsibilities of the Authority." Neither Security Council resolution
1483, nor CPA Order Number 6 detail the exact powers and authorities of the
Governing Council. However, Resolution 1483 indicates that the Governing
Council does not enjoy the full authority of a government. The Security
Council envisages that this will be carried out by an "internationally
recognized, representative government - established by the people of Iraq
and assuming the responsibilities of the Authority".

Article 64 of the Fourth Geneva Convention states that "[t]he penal laws in
the occupied territories shall remain in force, with the exception that they
may be repealed or suspended by the Occupied Power in cases where they
constitute a threat to its security or an obstacle to the application of the
present Convention." The official ICRC Commentary on this provisions states:
"The legislative power of the occupant as the Power responsible for applying
the Convention and the temporary holder of authority is limited to the
matters set out in a limitative list below.

(a) It may promulgate provisions required for the application of the
Convention in accordance with the obligations imposed on it by the latter in
a number of spheres: child welfare, labour, food, hygiene and public health
etc.
(b) It will have the right to enact provisions necessary to maintain the
"orderly government of the territory" in its capacity as the Power
responsible for public law and order".
The Commentary adds that the term "penal legislation" refers to "all legal
provisions in connection with the repression of offences".

(2)

In accordance with these provisions of international humanitarian law, the
CPA must exercise legislative powers only to the extent necessary to amend
Iraqi legislation which violates international law and standards. Broader
legislative reform should await the establishment of an Iraqi government
which will replace the CPA.

Recommendations:
 Amnesty International recommends that the CPA reviews its orders and
regulations that are already issued, in light of the recommendations
included in this memorandum, to ensure that they are fully consistent with
the CPA's obligations under international human rights and humanitarian law.
 Amnesty International also recommends that the CPA suspends provisions of
the Iraqi penal legislation that clearly contravene international law and
standards. These provisions should be replaced by new legislation only if
their suspension would create a legislative gap.
 Amnesty International calls on the Governing Council of Iraq to support
the adoption by the CPA of the recommendations contained in this memorandum.

3.0. CHANGES TO LEGISLATION INTRODUCED BY THE COALITION PROVISIONAL
AUTHORITY

Up to the end of October 2003, the CPA had issued six Regulations, 43
Orders, six Memoranda, and four Public Notices. The first 20 orders and
three regulations focused mainly on issues related to law and order,
touching on certain rights and freedoms. Most of the orders and regulations
issued afterwards are related to the reestablishment of the Iraqi security,
including the creation of the New Iraqi Army (CPA Order 22), creation of the
Code of Military Discipline for the New Iraqi Army (CPA Order 23), creation
of the Department of Border Enforcement (CPA Order 26), establishment of the
Facilities Protection Service (CPA Order 27), and the Iraqi Civil Defense
Corps (CPA Order 28). Orders 37-40 are related to financial matters
including taxes, levies, and banking.
CPA Regulation Number 1, issued on 16 May 2003, defines the powers of the
CPA and the applicable law in Iraq during the period of occupation
administered by the CPA. Section 1 of Regulation Number 1 states:

"1) The CPA shall exercise powers of government temporarily in order to
provide for the effective administration of Iraq during the period of
transitional administration...
2) The CPA is vested with all executive, legislative and judicial authority
necessary to achieve its objectives ..."
According to Section 2 of Regulation 1:
"Unless suspended or replaced by the CPA or suspended by legislation issued
by democratic institutions of Iraq, laws in force as of April 16, 2003 shall
continue to apply in Iraq insofar as the laws do not prevent the CPA from
exercising its rights and fulfilling its obligations, or conflict with the
present or any other Regulation or Order issued by the CPA."
Section 3 defines Regulations as "those instruments that define the
institutions and authorities of the CPA", while Orders are "binding
instructions by the CPA." It adds that "Regulations and Orders - shall take
precedent over all other laws and publications to the extent such other laws
and publications are inconsistent."

The CPA must exercise its functions in compliance with both human rights and
humanitarian law. In a letter to Amnesty International, dated 27 June 2003,
Ambassador Paul Bremer, the CPA Administrator, stated that "the only
relevant standard applicable to the Coalition's detention practices is the
Fourth Geneva Convention of 1949. This Convention takes precedence, as a
matter of law, over other human rights conventions." However, in addition to
humanitarian law, human rights law is also applicable, and Coalition states
should respect the provisions of the human rights treaties which they have
ratified, as well as treaties to which Iraq is a party.(3) The European
Convention for the Protection of Human Rights and Fundamental Freedoms is
applicable to the conduct of forces of Coalition states, such as the United
Kingdom, that are parties to this treaty.

Amnesty International welcomes the positive steps taken by the CPA,
including CPA Order 7 which suspends the death penalty, prohibits torture,
cruel, inhuman and degrading treatment or punishment, and prohibits
discrimination. The organization also welcomes the lifting of the
restrictions imposed in the past by the Iraqi government on travel for
academic reasons for faculty, employees or students (CPA Order 8), the
suspension of provisions in the Iraqi Penal Code and Code of Criminal
Procedures that are contrary to human rights standards, such as mitigating
circumstances in cases of kidnapping (CPA Order 31, Section 2).
In this section, Amnesty International highlights CPA orders and regulations
which are not consistent with international law, especially relating to
independence of the judiciary, freedom of expression and association,
freedom of movement, access to information, and property rights.


3.1. Independence of the Judiciary

CPA Order 15: Establishment of the Judicial Review Committee

This order suspends the Iraqi Organization of the Judiciary Act of 1979 (the
Judiciary Act) "insofar as its provisions conflict with this Order," and
establishes an entity to be known as the Judicial Review Committee (the
Committee). The Committee's mandate is to investigate and gather information
on the suitability of judges and prosecutors to hold office. It also has the
power "to remove judges and prosecutors from office, confirm their continued
holding of office, appoint replacements for judges and prosecutors removed
from office and resolve the claims of judges and prosecutors who assert that
they were improperly removed from office."(4)

The Order does not specify which parts of the Judiciary Act are suspended.
It is not clear what criteria the Committee uses in appointing, removing,
and confirming appointments of judges and prosecutors to their office, and
whether this will be in accordance with criteria in the Judiciary Act and
the Public Prosecution Act, since nothing to the contrary has been stated in
CPA Order 15, or any other CPA order.

The Judiciary Act requires persons appointed as judges to be graduates of
the judicial academy, and encourages judges to acquire masters or doctorate
degrees by granting them the right to obtain a sabbatical for two years for
studies.

However, Article 36 of the Judiciary Act and Article 41 of the Public
Prosecution Act require that persons appointed as judges or prosecutors
should be Iraqi by birth and be married. These criteria discriminate against
those who have acquired Iraqi nationality and constitute discrimination on
the basis of social status, prohibited by Principle 10 of the Basic
Principles on the Independence of the Judiciary (Basic Principles) which
state:
"Persons selected for judicial office shall be individuals of integrity and
ability with appropriate training or qualifications in law. Any method of
judicial selection shall safeguard against judicial appointments for
improper motives. In the selection of judges, there shall be no
discrimination against a person on the grounds of race, colour, sex,
religion, political or other opinion, national or social origin, property,
birth, or status, except that a requirement, that a candidate for judicial
office must be a national of the country concerned, shall not be considered
discriminatory."

CPA Order 35: Re-Establishment of the Council of Judges

This order re-establishes the "Council of Judges" (the Council), which
existed previously in Iraq. The Council, according to the Order, "is charged
with the supervision of judicial and prosecutorial systems of Iraq (Section
1)". The Order further states that "the Council shall perform its functions
independently of the Ministry of Justice", which is a welcome step
consistent with the principle of independence of the judiciary enshrined in
international law.

Section 2 of the Order provides a list of office holders who shall be
members of the Council. These include the Chief Justice of the Supreme Court
as President of the Council, Deputy Chief Justice of the Supreme Court, and
the Director General of the Office of Public Prosecution. The duties of the
Council include investigating allegations of professional misconduct and
incompetence involving members of the judiciary and public prosecutors, and
taking disciplinary measures when appropriate; nominating capable persons to
fill judicial vacancies or public prosecutor vacancies and recommending
their appointment; promoting, advancing, upgrading and transferring judges
and prosecutors; and finally assigning judges and prosecutors to hold
specific posts (Section 3). The Council replaces the previous Council of
Justice established under the Judicial Organization Law number 160 of 1979
"in so far as the Council of Justice exercised any authority over any judge
or prosecutor (Section 6.2)".(5)

The relationship between the Council of Judges and the Judicial Review
Committee (established by CPA Order 15 discussed above) is not clear. For
example, the Council has the role of nominating people to office and
recommending their appointment, while the Committee has the duty of
appointing replacements for officials removed from office. The Council has
the duty to investigate allegations of misconduct by judges and prosecutors
and removing them from office, while the Committee is also empowered with
removing officials from office, as well as resolving claims of improper
removal from office. Neither of the orders makes clear if there is a
connection between the two bodies, and if so, what it is and how it
operates.

Amnesty International is also concerned that the role of the Council to
nominate officials to fill vacancies, assign and reassign judges and
prosecutors to hold specific posts, while at the same time acting on
complaints against these same officials, could give rise to conflicts of
interest.

Finally, Amnesty International is concerned that there are no clear grounds
on which the Council can investigate allegations of professional misconduct
of judges, and take disciplinary measures, including removal from office.
The Basic Principles require that "[j]udges shall be subject to suspension
or removal only for reasons of incapacity or behaviour that renders them
unfit to discharge their duties" (Principle 18), but this is not clearly
specified by CPA Order 35.

Recommendations:
 Amnesty International recommends that the CPA ensures that the Judicial
Review Committee carries out its tasks of appointing, removing and
confirming the appointment of judges and prosecutors in conformity with
international standards, including the Basic Principles on the Independence
of the Judiciary.
 The CPA should also clarify the relationship between the Judicial Review
Committee and the Council of Judges. Clear criteria for disciplinary action
against judges should be set and should be limited to reasons of incapacity
or behaviour, in line with international standards, including the Basic
Principles on the Independence of the Judiciary.


3.2. Freedom of Expression and Association

3.2.1. Amendments to the Penal Code

CPA Order 7 "Penal Code"

This Order allows for legal proceedings to be brought in relation to a list
of offences in the 1969 Iraqi Penal Code, specified in the Order, only after
written permission from the Administrator of the CPA (Section 2). The list
includes publishing offences related to external and internal security, and
offences against public authorities and public officials.(6)

Amnesty International believes that several provisions of the Iraqi Penal
Code falling in this category pose a clear threat to the right to freedom of
expression. These include restrictions on dissemination of information,
"insulting" the president and public figures, and violations of "public
integrity and decency". These restrictions on freedom of expression go
beyond those permitted by Article 19 of the International Covenant on Civil
and Political Rights (ICCPR).(7) Further, the Order is not clear on which
criteria the Administrator should apply in determining whether legal
proceedings should be commenced.

Recommendation:
 Amnesty International recommends that clear criteria be specified to
guarantee that permission from the CPA Administrator for legal proceedings,
according to CPA Order 7, should not be granted in situations where they
would amount to violations of freedom of expression.


3.2.2. De-Ba'athification

CPA Order 1 "De-Ba'athification of Iraqi Society"

This Order was issued on 16 May 2003. It refers to a declaration by the CPA
on 16 April 2003 to disestablish the Ba'ath Party of Iraq. CPA Order number
1 states that it implements this declaration "by eliminating the party's
structures and removing its leadership from positions of authority and
responsibility in Iraqi society". The Order adds:
"Full members of the Ba'ath Party holding the ranks of - regional Command
Member, - Branch Member, - Section Member, - and Group Member are hereby
removed from their positions and banned from future employment in the public
sector.
Individuals holding positions in the top three layers of management in every
national government ministry, affiliated corporations and other government
institutions (e.g., universities and hospitals) shall be interviewed for
possible affiliation with the Ba'ath Party, and subject to investigation for
criminal conduct and risk to security. Any such persons determined to be
full members of the Ba'ath Party shall be removed from their employment.
This includes those holding the more junior ranks of 'Udw (il nd 's of ' rse
information. the same manner upon ppropriate, detained, interned placed
under house arrest,Member) and 'Udw 'Amil (Active Member), as well as those
determined to be Senior Party Members."

Amnesty International is concerned that this order may violate the right to
freedom of expression and association. Amnesty International believes that
mere past membership in the Ba'ath party should not in itself constitute
grounds to deny a person the possibility to hold employment in the top three
layers of management of government ministries, especially if there is no
evidence that they were implicated in human rights violations.

While former members of the Ba'ath party are not allowed to hold certain
offices in ministries by virtue of the above order, there is no requirement
that, for example, members of the police should be investigated for any past
crimes before they resume their jobs.
It is not clear if this vetting process was used when the Iraqi police
re-assumed their responsibilities. However, it appears that a certain number
of previous members of the police force were re-instated in their positions
without being subjected to any vetting system.

CPA Order 14 "Prohibited Media Activities"

This order prohibits media organizations from publishing or broadcasting
original or re-broadcasted, re-printed or re-syndicated, material that,
among other things, "advocates the return to power of the Iraqi Ba'ath Party
or makes statements that purport to be on behalf of the Iraqi Ba'ath party".

Amnesty International is concerned that CPA Orders 1 and 14 discussed above
place sweeping restrictions on the right to freedom of expression and the
role of the media. Any restrictions should be limited to those permissible
under Article 19 of the International Covenant on Civil and Political Rights
(ICCPR) which states:
"1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in
the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article
carries with it special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre
public), or of public health or morals."

The Human Rights Committee, which supervises the implementation of the ICCPR
by states party, has stated that "[t]he Covenant does not permit
restrictions on the expression of ideas, merely because they coincide with
those held by an enemy entity or may be considered to create sympathy for
that entity".(8)

Further, Article 20 of the ICCPR prohibits any propaganda for war (Paragraph
1) and "[a]ny advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence shall be
prohibited by law" (Paragraph 2). The Human Rights Committee commented on
these provisions as follows:
"The prohibition under paragraph 1 extends to all forms of propaganda
threatening or resulting in an act of aggression or breach of the peace
contrary to the Charter of the United Nations, while paragraph 2 is directed
against any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence, whether
such propaganda or advocacy has aims which are internal or external to the
State concerned. The provisions of article 20, paragraph 1 do not prohibit
advocacy of the sovereign right of self-defence or the right of peoples to
self-determination and independence in accordance with the Charter of the
United Nations. For article 20 to become fully effective there ought to be a
law making it clear that propaganda and advocacy as described therein are
contrary to public policy and providing for an appropriate sanction in case
of violation."(9)

Further, restrictions on employment of former Ba'ath members, as reflected
in CPA Order 1, may be in violation of Article 6 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) which states:
"The States Parties to the present Covenant recognize the right to work,
which includes the right of everyone to the opportunity to gain his living
by work which he freely chooses or accepts, and will take appropriate steps
to safeguard this right."

The ICESCR stipulates in Article 2.2 that "the State Parties to the present
Covenant undertake to guarantee that the rights enunciated in the present
Covenant will be exercised without discrimination of any kind as to race,
colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status"(emphasis added). The ICESCR
allows for imposing limitations on rights enshrined in it if such
limitations "are determined by law only in so far as this may be compatible
with the nature of these rights and solely for the purpose of promoting the
general welfare in a democratic society." (Article 4)
Blanket restrictions on access to employment in the public sector on former
members of the top four layers of the Ba'ath Party (CPA Order 1) contravenes
the rights of citizens to hold public office without discrimination,
enshrined in international law, including Article 25 of the ICCPR which
states:
"Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:

(c) To have access, on general terms of equality, to public service in his
country".

General Comment 25 by the Human Rights Committee states:
Subparagraph (c) of article 25 deals with the right and the opportunity of
citizens to have access on general terms of equality to public service
positions. To ensure access on general terms of equality, the criteria and
processes for appointment, promotion, suspension and dismissal must be
objective and reasonable. Affirmative measures may be taken in appropriate
cases to ensure that there is equal access to public service for all
citizens.

Basing access to public service on equal opportunity and general principles
of merit, and providing secured tenure, ensures that persons holding public
service positions are free from political interference or pressures. It is
of particular importance to ensure that persons do not suffer discrimination
in the exercise of their rights under article 25, subparagraph (c), on any
of the grounds set out in article 2, paragraph 1.(10)

CPA Order 13 "Central Criminal Court (Revised)"

This order imposes the requirement that judges appointed to the court "have
a background of either opposition to the Ba'ath Party, non-membership of the
Ba'ath party, or membership that does not fall within the leadership tiers
described in the CPA/ORD/16 May 2003/01 [Order Number 1: De-Ba'athification
of the Iraqi Society], and entailed no involvement in Ba'ath Party activity"
(Section 5 (1-B)). It is not clear if this restriction on appointment of
judges to the Central Criminal Court is intended to ensure that judges are
independent and are not influenced by political parties or other quarters.
If this is the case, Amnesty International is concerned that such
restriction is imposed only in relation to past membership or involvement
with the Ba'ath Party. Such restriction could result in discrimination.
Further, the terms "involvement" and "activity" are not defined, and
therefore there is a risk that mere membership could be interpreted as
involvement in the party's activities.

Principle 8 of the Basic Principles on the Independence of the Judiciary
states that "members of the judiciary are like other citizens entitled to
freedom of expression, belief, association and assembly; provided, however,
that in exercising such rights, judges shall always conduct themselves in
such a manner as to preserve the dignity of their office and the
impartiality and independence of the judiciary." Further, Principle 10
states that selection of persons for judicial office shall be based on
integrity and ability, training or qualifications in law of the person. It
also prohibits discrimination for such selections on a number of grounds
including political or other opinion.

Unless there is evidence that previous membership of the Ba'ath party would
affect the independence and impartiality of judges, such a sweeping
exclusion on the basis of political opinion is discriminatory. Appointment
of judges to the Central Criminal Court and other judicial positions should
be based on the criteria of integrity, ability, appropriate training or
qualification. Mere membership of the Ba'ath party should not be used in
itself as a criteria for exclusion.

Recommendations:
 Amnesty International recommends that CPA Orders and Regulations do not
impose restrictions on the rights to freedom of expression, access to work
and right to hold public office, beyond those that are permissible in
international law. Effective and fair vetting is needed, so as to reduce the
chance of restoring to their duties officials who may have been involved in
human rights violations. Persons suspected of involvement in human rights
violations should be duly charged and tried following fair trial procedures.
 The CPA should not impose any restrictions on the media and the right of
people to receive and impart information and ideas in any form, beyond those
defined by international law, particularly Article 19 (3) of the ICCPR.
 Judges and prosecutors should not be excluded from appointment or unduly
penalised on the basis of mere previous membership of the Ba'ath Party.

3.3 Freedom of movement

CPA Order 8 "Travelling Abroad for Academic Purposes"

This order lifts restrictions on travel by faculty staff or students of
public universities, colleges, or other institutions of higher education,
for educational purposes that have been imposed in the past through
government regulations, instructions or policies. Amnesty International
welcomes this measure by the CPA. However, it is not clear why the
restrictions on travel have been lifted only for academic purposes and not
for other categories of Iraqi professionals who suffered from similar
restrictions, for example judges, doctors, and civil servants. Article 12
(2-3) of the ICCPR states:
"Everyone shall be free to leave any country, including his own.

The above-mentioned rights shall not be subject to any restrictions except
those which are provided by law, are necessary to protect national security,
public order (ordre public), public health or morals or the rights and
freedoms of others, and are consistent with the other rights recognized in
the present Covenant."

The Human Rights Committee has commented on these restrictions imposed in
the past on freedom of movement in Iraq stating that:
"The Committee notes with concern reports of arbitrary restrictions imposed
by the authorities on the right to freedom of movement within Iraq and
freedom to leave the territory of the State party, in breach of Iraq's
obligations under article 12 of the Covenant. Therefore:
Measures should be taken to ensure that article 12 is complied with and,
among other things, that administrative costs for the issue of passports be
reduced."(11)

Recommendation:
 Amnesty International recommends that the CPA lift all unlawful
restrictions that were imposed in the past on freedom of movement,
particularly the right to travel abroad.


3.4. Language and access to information

As stated in the July 2003 Memorandum, Amnesty International is concerned
that many of the CPA Orders or Memoranda have been issued in Arabic at a
much later date than the English original version. As of end of October
2003, some were still not available in Arabic. The examples below are based
on the dates when the Arabic translation was posted on the CPA website,
which, Amnesty International understands, is approximately the same date as
when the documents became available in hard copy inside Iraq. The following
are selected examples.(12)
 CPA Order 10 "Management of Detention and Prison Facilities" was issued in
English on 8 June 2003. The Arabic version of that order was available on
the CPA website on 29 October 2003 (143 days later).
 CPA Order 13 "the Central Criminal Court of Iraq" was issued in English on
18 June. The Arabic version of that order was available on the CPA website
on 2 September 2003 (44 days later).
 CPA Order 15 "Establishment of the Judicial Review Committee" was issued
in English on 23 June 2003. The Arabic version of that order was available
on the CPA website on 29 October 2003 (126 days later).
 CPA Regulations 6 "Governing Council of Iraq" was issued on 13 July. The
Arabic version of that order was available on the CPA website on 2 September
2003 (50 days later).

Access to information concerning the applicable law is fundamental to allow
citizens to understand and enjoy their rights. It is particularly important
that members of the legal profession are kept informed of legal developments
so that they can practise their duties professionally. Evidence from members
of the legal profession indicate that they were not aware of legal changes
introduced through the CPA in a timely way. This was the case also with the
establishment of significant institutions, for example the Central Criminal
Court.

CPA Orders and Regulations state that they enter into force on the date of
signature, which is on the English version of the instrument. This is
inconsistent with international humanitarian law. Article 65 of the Fourth
Geneva Convention Relative to the Protection of Civilian Persons in Time of
War states that the "penal provisions enacted by the Occupying Power shall
not come into force before they have been published and brought to the
knowledge of the inhabitants in their own language." Although there has been
progress in issuing instruments by the CPA in the official Gazette, in
Arabic, delays in the translation continue.

Recommendations:
 Amnesty International urges the CPA to ensure that its penal legislation
enters into force after an appropriate period of time following its
publication in Arabic in the Official Gazette.
 Amnesty International calls on the CPA to ensure that all such legislation
is adequately disseminated.


3.5. Property disputes

CPA Regulation 4

This Regulation establishes the Iraqi Property Reconciliation Facility
(IPRF) to collect real property claims and resolve such claims "on a
voluntary basis in a fair and judicious manner." The Regulation also
establishes a Fund for this purpose. Among the powers and functions of the
Facility are to "provide a voluntary dispute resolution and reconciliation
facility that individuals may use to resolve their dispute" (Section 4
(2-c)). The Regulation states that the Facility "shall be bound by and
operate in accordance with any Regulations, Orders or Memoranda issued by
the Administrator" (Section 6).
#It is not clear, however, if this Facility would apply to Iraqi law in
relation to property rights or related offences, and what the relationship
is between the IPRF and the Iraqi legal system and courts. Neither is there
clarity on possible referrals to regular courts of cases that cannot be
resolved through reconciliation or dispute resolution. Further, the order
states that the IPRF will deal with "real property claims", but does not
define the term. Further clarification is needed on whether the IPRF would
be granting compensation.

Recommendation:
 Amnesty International recommends that the CPA clarify the applicability of
the existing Iraqi legislation for property disputes, and the relationship
between the Property Reconciliation Facility and the Iraqi justice system,
including whether cases can be referred for adjudication to the courts.
Further, Amnesty International recommends that the CPA defines clearly what
is meant by terms used in the order, including "real property". *


*******

 (1) This document does not include analysis of CPA orders or regulations
related to the management of funds available to the CPA, including the
Development Fund for Iraq established according to Security Council
Resolution 1483 and regulated according to CPA Regulation 2; the
establishment of the Program Review Board by CPA Regulation 3; or other
financial matters including those related to the banking sector.

 (2) For further analysis of the responsibilities of the CPA, see Iraq:
"Responsibilities of the occupying powers", Amnesty International Index: MDE
14/089/2003, (April 2003).

 (3) Iraq is a party to the International Covenant on Civil and Political
Rights (ICCPR); the International Covenant on Economic, Social and Cultural
Rights (ICESCR); the Convention on the Rights of the Child (CRC); the
International Convention on the Elimination of All Forms of Racial
Discrimination (CERD); and the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW). The US is a party to ICCPR, the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT), and the Protocol Relating to the Status of Refugees.
The UK is a party to the ICCPR, Second Optional Protocol to the ICCPR,
aiming at the abolition of the death penalty, ICESCR, CEDAW, CRC, Optional
Protocol to the CRC on the involvement of children in armed conflict, CERD,
CAT, Convention relating to the Status of Refugees (1951), Protocol relating
to the Status of refugees, and the Rome Statute of the International
Criminal Court.

 (4) In the past, a Council of the Judiciary existed and carried out
functions related to the judiciary including promotion and discipline. For
further details, see "Iraq and the Rule of Law", International Commission of
Jurists, (February 1994), pages 104-108.

 (5) The order adds that "[a]ll administrative oversight of the judges and
prosecutors shall now rest only with the Council of Judges. The Council of
Justice shall continue in existence, but shall have no jurisdiction over any
prosecutor or judge."

 (6) The exact articles (called Paragraphs in the Order) in the Iraqi Penal
Code subject to this CPA Order 7 are: 81-84 (publication offences), 156-189
(offences against the external security of the state), 190-195, 198-199,
2001-219 (offences related to internal security), 223-224, 226-228 (offences
against public authorities), and article 229 (offences of insulting a public
figure).

 (7) Among the provisions in the Penal code that can be subject to such
permission according to CPA order 7 is Article 200. Amnesty International
wishes to note that Article 200 of the Penal Code was suspended by CPA Order
7 (Section 2 (1)).

 (8) Concluding observations of the Human Rights Committee on the Republic
of Korea's Second Periodic Report, 1 November 1999, CCPR/C/79/Add.114, para.
9.

 (9) Human Rights Committee, General Comment 11: Prohibition of propaganda
for war and inciting national, racial or religious hatred, (29/07/83), para
2.

 (10) General Comment 25 of the Human Rights Committee: "The right to
participate in public affairs, voting rights and the right of equal access
to public service (Art. 25)" (12 July 1996).

 (11) Concluding Observations of the Human Rights Committee: Iraq,
19/11/97, CCPR/C/79/Add.84, para 14.

 (12) A full list of CPA instruments with the exact dates of issuing the
instrument and the delay in the translation in contained in the Appendix
attached to this document.

PLEASE SEE PDF FOR APPENDIX 1.



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