38/44/Add.1 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on her mission to Iraq
Document Type: Final Report
Date: 2018 Jun
Session: 38th Regular Session (2018 Jun)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.18-10055(E)
Human Rights Council Thirty-eighth session
18 June–6 July 2018
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on her mission to Iraq*
Note by the secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on extrajudicial, summary or arbitrary executions on her official
visit to Iraq (14–23 November 2017). The Special Rapporteur examined responses to the
multiple violations of the right to life perpetrated, in particular in the context of the conflict
that opposed the Iraqi authorities to so-called Islamic State of Iraq and the Levant (ISIL)
and other armed groups, as well as official responses to allegations of violations of the right
to life by Government and associated forces. The Special Rapporteur focused specifically
on steps taken — judicial measures, policies and action implemented — to hold ISIL and
other actors to account for these massive and grave violations and formulated a series of
recommendations addressed to the Government and other relevant actors.
* The present report was submitted after the deadline in order to reflect the most recent developments.
United Nations A/HRC/38/44/Add.1
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Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on her mission to Iraq**
Contents
Page
I. Introduction ................................................................................................................................... 3
II. Historical and political context...................................................................................................... 3
III. Applicable law .............................................................................................................................. 4
A. International level ................................................................................................................. 4
B. National level ........................................................................................................................ 6
IV. Conflict-related violations ............................................................................................................. 6
A. Islamic State of Iraq and the Levant ..................................................................................... 6
B. Government and affiliated forces .......................................................................................... 8
C. Coalition Forces .................................................................................................................... 9
D. Kurdistan region ................................................................................................................... 9
V. Other violations of the right to life ................................................................................................ 10
A. Killings of journalists and media professionals .................................................................... 10
B. Killings of women and girls (honour killings) ...................................................................... 10
C. Killings of lesbian, gay, bisexual, transgender and intersex persons .................................... 11
VI. Transitional justice ........................................................................................................................ 12
A. Accountability....................................................................................................................... 12
B. Documenting, investigating and preserving evidence of violations ..................................... 15
C. Certificates of absence .......................................................................................................... 16
D. Management of mass graves ................................................................................................. 17
VII. Conclusions and recommendations ............................................................................................... 17
A. Conclusions .......................................................................................................................... 17
B. Recommendations ................................................................................................................. 18
** Circulated in the language of submission and Arabic only.
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I. Introduction
1. The Special Rapporteur on extrajudicial, summary or arbitrary executions, Agnès
Callamard, visited Iraq from 14 to 23 November 2017. She examined the multiple
violations of the right to life perpetrated, in particular in the context of the conflict that
opposed the Iraqi authorities to the so-called Islamic State in Iraq and the Levant (ISIL)1
and other armed groups. Since 1 January 2014, an estimated 30,000 civilians have been
killed and another 55,000 injured.2 She also focused on official responses to these and other
violations of the right to life and steps taken - judicial measures, policies and action
implemented - to hold all parties to account for massive and grave violations.
2. The Special Rapporteur expresses her appreciation to the Government for its
invitation to visit the country, and in particular the Ministry of Foreign Affairs and the
Permanent Mission of Iraq to the United Nations in Geneva for their full cooperation in the
preparation of and during the visit, and to the officials she met with for their availability
and open and frank discussions. She would also like to thank the United Nations Assistance
Mission for Iraq (UNAMI) and its Human Rights Office for the invaluable support
provided, as well as all the individuals whom she met for sharing their experiences,
testimonies and other vital information.
3. During the visit, the Special Rapporteur travelled to Baghdad, Erbil, Najaf and
Fallujah. She conducted in situ visits and met with government authorities, including the
Prime Minister and representatives of the President of Iraq, the Ministry of Foreign Affairs,
the Ministry of the Interior, the Ministry of Defence, the Ministry of Justice; members of
the parliament, including its Human Rights and Legal Committees; members of the Judicial
High Council; representatives of the Kurdistan Regional Government; as well as political
leaders, religious leaders, members of international organizations, legal and medico-legal
professionals, journalists, civil society representatives, internally displaced persons and
survivors of human rights violations.
4. The Special Rapporteur expresses her deepest condolences to all Iraqis who have
lost loved ones and sympathy to all those who have been subjected to other forms of
violence. Over the course of the visit, she came to admire the strength and resilience that
the Iraqis have shown in the face of severe adversity, including atrocious human rights
violations.
II. Historical and political context
5. Iraq has an extremely complex recent and longer history. Iraqi society eludes simple
description, with ethnic, tribal and religious identities intersecting and interweaving in
complex ways. Over the last 15 years alone, the country has experienced a series of violent
conflicts along political and sectarian lines and involving foreign countries and their troops.
Regional and international conflicts continue to play out in the country. With the military
defeat of ISIL, announced by the Prime Minister on 9 December 2017, a range of
challenges overshadowed by the conflict re-emerged. They include long-standing issues
resulting from the 1980-1988 war with the Islamic Republic of Iran, the 1990 invasion of
Kuwait, the Saddam Hussein regime and its overthrow by the United States-led invasion of
2003, followed by increasingly sectarian conflicts.
6. The country is embarking on a very sensitive transitional phase, with democratic
parliamentary elections held on 12 May 2018. Transitional phases, such as the present one,
are invariably both complex and fragile. They present an opportunity to break with the past
but also pose many risks. Old tensions may arise where they have not been mended,
1 Or the Islamic State in Iraq and Syria (ISIS), Islamic State (IS) or its Arabic acronym “Daesh”.
2 See www.uniraq.org/index.php?option=com_k2&view=itemlist&layout=category&task=
category&id=159&Itemid=633&lang=en.
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grievances that were set aside during conflict may return and any simmering resentment or
deeply felt suffering resulting from the conflict may boil over.
7. Tensions between the Kurdistan Regional Government and the Federal Government,
following the Kurdish independence referendum of 25 September 2017, have further
complicated this difficult transition. The referendum was declared unconstitutional by the
Federal Supreme Court, which led to sanctions by the Federal Government and a military
operation. 3 It is encouraging that a dialogue between the Federal and Regional
Governments has been re-established.4
8. All these dynamics loom large in the justice-deprived landscape of Iraq “post ISIL”.
A number of critical challenges face the country, including: integrating into the Iraqi
Security Forces (ISF) all affiliated forces or disarming them; rebuilding in the wake of
massive destruction; undertaking reconciliation measures in areas where mistrust and
widespread fear and violence have dominated; and providing justice to the victims and
survivors of violations of human rights and humanitarian law, including through
accountability, reconciliation and reparation processes.
III. Applicable law
A. International level
1. International human rights law
9. The Special Rapporteur has reviewed and analysed alleged violations of the right to
life with reference to international human rights, humanitarian and criminal law, including
Conventions ratified by Iraq, and the country’s domestic law.
10. Iraq is party to most international human rights treaties relevant to the right to life:
the International Covenant on Civil and Political Rights; the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the
Rights of the Child and the Optional Protocol thereto on the involvement of children in
armed conflict; the International Convention for the Protection of All Persons from
Enforced Disappearance; and the Convention on the Elimination of All Forms of
Discrimination against Women. Iraq has not acceded to the Optional Protocols to the
International Covenant on Civil and Political Rights, one of which aims at the abolition of
the death penalty.
11. Two instruments particularly useful in understanding and interpreting human rights
obligations in a post-conflict situation are: the updated set of principles for the protection
and promotion of human rights through action to combat impunity, which emphasizes the
obligation of States to take effective action to combat impunity and investigate, try and
punish perpetrators, and to restrict the use of amnesties; and the Basic Principles and
Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian
Law, which obliges States to provide victims with adequate, effective and prompt
reparation for such violations.
12. Relevant rules of customary international human rights law are also applicable. In
addition, international human rights law applies in times of both peace and armed conflict,
and the prohibition of arbitrary deprivation of life is non-derogable.
2. International humanitarian law
13. Iraq is party to the 1949 Geneva Conventions and the Protocol additional to the
Geneva Conventions of 12 August 1949, and relating to the protection of victims of
3 The Government provided a divergent analysis (A/HRC/38/44/Add.4, sect. 3).
4 Security Council briefing, Special Representative for the Secretary-General for Iraq, Ján Kubiš, 20
February 2018.
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international armed conflicts (Additional Protocol I), and the Convention on the Prevention
and Punishment of the Crime of Genocide. It is not party to the Protocol additional to the
Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-
international armed conflicts (Additional Protocol II). Iraq is also not signatory to the Rome
Statute of the International Criminal Court, nor has it made a declaration accepting the
jurisdiction of the Court in relation to the conflict.
14. All parties to non-international armed conflict that meets the threshold of intensity
and organization,5 including armed non-State actors, are bound by common article 3 of the
Geneva Conventions, which establishes fundamental rules from which no derogation is
permitted. It requires humane treatment for all persons in enemy hands, without any
adverse distinction, and specifically prohibits under (1) (a) violence to life and person, in
particular murder of all kinds, mutilation, cruel treatment and torture, and under (1) (d) the
passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all judicial guarantees.
15. In addition, all parties, including those that provide air or other support to any of the
warring sides, are also bound by other relevant rules of customary law applicable to non-
international armed conflicts. They must at all times abide by the principles of distinction,
proportionality and precaution in attack, and may not under any circumstance, inter alia,
carry out attacks on civilians or civilian objects, wantonly destroy property, plunder or
pillage, or use chemical weapons or resort to collective punishment.
16. The Government bears responsibility for all violations of international humanitarian
law committed by its armed forces or those acting under its direction or control.6 Under
customary international law, the Government has to investigate all violations of
international human rights and humanitarian law, and ensure full reparation for loss or
injury caused by the State.7
3. Legal framework applicable to ISIL and other armed non-State actors8
17. The labelling of armed groups as “terrorist organizations” does not alter the
application of international humanitarian law or the obligations placed on the parties to the
conflict. As highlighted above, international human rights law continues to apply during
armed conflict. While armed opposition groups cannot become parties to international
human rights treaties, they are increasingly deemed to be bound by certain international
human rights obligations, including, at the minimum, those considered to be peremptory
international law (jus cogens). The Special Rapporteur has also argued that armed non-State
actors are bound by a range of human rights obligations determined by the extent and
nature of their capacities to exercise territorial control and governance functions (see
A/HRC/38/44). Armed non-State actors, exercising de facto authority over a specific
territory as a result of having displaced the legitimate State, are bound by the State’s treaty
obligations.9
18. ISIL waged war on Iraq from 2014 until its defeat in December 2017. At the height
of its power, it seized as much as 40 per cent of the territory. It proclaimed itself a caliphate
with exclusive theological and political authority over the world’s Muslims and saw itself
as “an all-encompassing entity, one that eventually is meant to shoulder all the
responsibilities of traditional state”.10 In the territories it controlled, the group took on a
5 International Committee of the Red Cross (ICRC), 2016 Commentary on the First Geneva
Convention, para. 484.
6 Art. 8 of the articles on responsibility of States for internationally wrongful acts, General Assembly
resolution 56/83 of 12 December 2001, annex; ICRC, Customary International Humanitarian Law,
Volume I: Rules, rule 149.
7 ICRC, Customary International Humanitarian Law, Volume I: Rules, rules 144, 150, 157 and 158.
For United Nations practices supporting the obligations of armed groups to make reparations, see also
rule 150.
8 The Government provided a divergent analysis (A/HRC/38/44/Add.4, sect. 1).
9 See, for instance, A/HRC/8/17, para. 9.
10 See www.understandingwar.org/report/isis-governance-syria.
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range of functions usually associated with the State, including “law and order”, the
fulfilment of those functions being marred by gross violations. ISIL fighters included not
only Iraqis but also foreign fighters, estimated at one point at 5,000, including nationals of
Australia, Belgium, France, Germany, Jordan, Libya, the Netherlands, the Russian
Federation, Tunisia and the United Kingdom of Great Britain and Northern Ireland.
Available evidence indicates that these foreign fighters, some of whom held senior
positions in the ISIL hierarchy, have been closely involved in the many crimes committed
against the Iraqi people.
Security Council resolution 2379 (2017)
19. Security Council resolution 2379 (2017) established an Investigative Team to
support Iraqi efforts to hold ISIL accountable by providing assistance with the collection,
preservation and storage of evidence. On 8 February 2018, the Government accepted the
terms of reference for this team (S/2018/118), which include “promot[ing] …
accountability for acts that may amount to war crimes, crimes against humanity and
genocide committed by ISIL (Da’esh) and work[ing] with survivors, in a manner consistent
with relevant national laws, to ensure that their interests in achieving accountability for
ISIL (Da’esh) are fully recognized” (ibid., para. 13). Iraq has therefore committed itself to
prosecuting international crimes, and the international community has committed itself to
supporting such efforts. In practice, however, Iraq currently does not have jurisdiction over
these crimes (see further chap. V below).
B. National level
20. The right to life is covered by Section Two (“Rights and Liberties”) of the
Constitution of Iraq. Article 15 provides that, “Every individual has the right to enjoy life,
security and liberty. Deprivation and restriction of these rights is prohibited except in
accordance with the law and based on a decision issued by a competent judicial authority”.
Furthermore, article 19 (4) guarantees the right to legal representation to all arrested
persons during phases of investigation and trial, and article 37 (1) (c) prohibits all forms of
psychological, physical torture and inhumane treatment, and states that any confession
made under duress may not be relied on in court.
21. The death penalty can be imposed under several laws. It is most frequently applied
under the Iraqi Penal Code (No. 111) of 1969 or the Anti-Terrorism Law (No. 13) of 2005.
The Iraqi Criminal Procedure Code (No. 23) of 1971 provides a number of procedural
guarantees in relation to criminal cases, including those carrying capital punishment. The
Kurdistan Region of Iraq enacted Anti-Terrorism Law (No. 3) of 2006, which expired on
18 July 2016.
IV. Conflict-related violations
A. Islamic State of Iraq and the Levant
22. ISIL has committed a range of unspeakable violations of international humanitarian
and human rights law against Iraqi civilians as well as members of ISF and affiliated forces
in and hors de combat. While the true extent of their horrific acts is yet to be determined,
the signs of pain and suffering, like the evidence of physical destruction, are everywhere to
see.11
23. The group carried out a sustained and deliberate policy of executing civilians as a
method of instilling fear, exerting control and taking revenge. They committed mass
killings of civilians as part of their combat strategy, including by using them as human
shields during fighting. On at least one occasion ISIL issued a fatwa indicating that
residents of areas retaken by ISF were “legitimate targets”, which was accompanied by
11 The Government provided additional information (A/HRC/38/44/Add.4, sect. 11).
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systematic and direct attacks on civilians. 12 Methods of attacks on civilians by ISIL
included shelling, mortar rounds, sniper fire, landmines, car bombs and explosives dropped
from drones. In addition, there are reports that ISIL may have employed weaponized
chemical agents (chlorine and mustard gas) during attacks in and around Mosul.
24. ISIL imposed strict gender rules for social behaviour for both women and men,
torturing and killing those they deemed not in conformity with those rules. The group also
created an extensive, hierarchical “court” system,13 which tried and sentenced civilians with
virtually no fair trial guarantees.14 The group ran detention facilities managed by various
entities: the Islamic police, the military police, the morality police, raid squads, and security
forces.15 Each entity had its own conditions and methods of detention and punishment,
including torture.16 The Special Rapporteur believes that the many reported killings and
other violations by ISIL are evidence of their systematic persecution of persons based on
gender and gender expression, alone or in intersection with other identity markers,
including religion and ethnicity.
25. ISIL carried out numerous executions by, inter alia, beheading, hanging, stoning,
drowning, shooting, burning and throwing persons off buildings, including following
“sentences” issued by ISIL self-appointed courts. Executions were often preceded by
enforced disappearances and the perpetrators of the executions included children who,
following indoctrination, were forced to function as executioners. The remains of those
killed were often put on public display as a warning to others not to oppose ISIL. The
unthinkable and horrific examples of these executions of men, women and children are
numerous.
26. ISIL targeted specifically those opposing or not aligning themselves with its Takfiri
doctrines or attempting to flee its rule. Victims included leaders, members of religious and
ethnic minorities, members of certain professions, in particular female teachers and doctors,
as well as media professionals, lesbian, gay, bisexual, transgender and intersex persons,
persons caught smoking or not praying correctly and anyone associated with the
Government of Iraq. The Special Rapporteur heard accounts of brutal sexual enslavement,
shooting, beheading, stoning and burning to death of men, women and children, including
those perceived as lesbian, gay, bisexual, transgender or intersex, simply for defying the
rigid gender policies of ISIL.
27. The Special Rapporteur received reports of executions of women carried out by ISIL
in areas under its control, some following decisions by ISIL-appointed courts, including the
stoning of three women by ISIL in late 2016 in Mosul and Kirkuk on charges of adultery.
In one case, it is reported that the actual reason for stoning was the refusal of the victim to
marry an ISIL fighter. The public was encouraged to participate in the stoning. Three other
women were executed by ISIL in Mosul in August 2016 for their perceived homosexuality.
In June 2016, 19 Yazidi women were allegedly burned to death for refusing to have sexual
intercourse with ISIL fighters. In September 2016, two female lawyers were shot dead by
ISIL in Mosul for carrying out their professional duties in a criminal court. In addition,
several reports have emerged of ISIL executing homosexual men by throwing them off
buildings, and, if they survived the fall, stoning them to death in a public event. Examples
include two men thrown to their deaths in November 2015 in Fallujah and another two men
in early 2016 in the cities of Rawah and Tel Afar.
12 UNAMI and Office of the United Nations High Commissioner for Human Rights (OHCHR), “Report
on the protection of civilians in the context of the Ninewa Operations and the retaking of Mosul City,
17 October 2016–10 July 2017”, p. 2.
13 Charles C. Caris and Samuel Reynolds, “Middle East security report 22: ISIS Governance in Syria”,
pp. 18-19.
14 See www.hrw.org/report/2016/05/18/we-feel-we-are-cursed/life-under-isis-sirte-libya.
15 See www.researchgate.net/publication/319043844_The_ISIS_Prison_System_Its_Structure_
Departmental_Affiliations_Processes_Conditions_and_Practices_of_Psychological_and
_Physical_Torture.
16 Ibid.
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28. UNAMI and the Office of the United Nations High Commissioner for Human
Rights (OHCHR) further reported the drowning of eight civilians put in an iron cage and
lowered into a swimming pool at the Jawsaq military base in the Dawasah area of central
Mosul in September 2016 for collaborating with ISF and affiliated forces; the public
shooting in September 2016 of a 72-year-old man after he told his neighbours that he had
dreamed that all black flags (ISIL flags) in Mosul had fallen; and the public beheading of a
58-year-old-man by his son, an ISIL member, in the Dawasah area of central Mosul, in
October 2016, for insulting its leader.17
B. Government and affiliated forces
29. In the fight against ISIL, ISF received support from a number of affiliated forces, in
particular those united under the popular mobilization forces (PMF), sometimes referred to
as popular mobilization units. PMF was formed in 2014 after the most senior Shia cleric in
Iraq, Grand Ayatollah Ali al-Sistani, issued an edict calling on all able-bodied men to
protect the homeland against ISIL. Thousands of Iraqi men joined PMF, both individually
and as part of pre-existing armed groups that were deployed to fight against ISIL by their
commanders. Together with ISF, they played an important role in the military defeat of
ISIL. Government officials indicated to the Special Rapporteur that PMF is fully integrated
with State forces and responds to a single chain of command. However, there is a
widespread perception that PMF fighters keep an allegiance to their commanders rather
than to the Iraqi State.18 In the future, the vast majority of PMF fighters are to be integrated
into the regular Iraqi armed forces.
30. The Government indicated that it has issued clear instructions to all members of ISF
and affiliated forces to protect civilians and public and private property. Grand Ayatollah
al-Sistani similarly issued a fatwa in 2015 on “Advice and guidance to the fighters on the
battlefields”. However, the Special Rapporteur received information on a number of
violations of international humanitarian and human rights law committed by ISF and
affiliated forces between 2014 and 2017 up to the end of the battle for Mosul. These mostly
concerned reported acts of revenge in the form of interceptions, enforced disappearances
and killings of civilians of the Sunni faith, including internally displaced persons, detainees
and children, as well as executions of suspected ISIL fighters hors de combat.
31. Between 9 and 16 June 2014, Iraqi forces reportedly summarily executed 119 Sunni
detainees at the Anti-Terrorism (Police) Offices in the cities of Mosul, Tel Afar and
Baquba.19 On 22 August 2014, 44 residents of Bani Wais village belonging to a Sunni tribe
were killed at their mosque by armed men, some of whom reportedly wore police uniforms
and uniforms of a pro-Government group.20 On 26 September 2015, between 56 to 70 men
belonging to a Sunni tribe from the village of Muqdadiya, Diyala province, were taken by
members of ISF and affiliated forces and shortly after found shot dead.
32. On 3 June 2016, members of PMF intercepted thousands of internally displaced
persons fleeing an area in the north of Fallujah and separated around 1,300 men and boys
from the Al Mahamda tribe.21 Over a period of several days, they were transferred by buses
to unknown locations. Six hundred and five were found to have been transferred to the
custody of local officials. An investigative committee set up by local authorities later
confirmed 49 dead and 643 remain missing to date. On 17 July 2017, 17 male corpses
showing signs of gunshot wounds were discovered in a building west of the old city of
17 UNAMI/OHCHR, “Human Rights in Iraq: July–December 2016”, p. 8.
18 The Government provided a divergent analysis (A/HRC/38/44/Add.4, sect. 1).
19 UNAMI/OHCHR, “Human Rights in Iraq: January–June 2014”, pp. 4-5; and
www.amnesty.org/en/latest/news/2014/06/iraq-testimonies-point-dozens-revenge-killings-sunni-
detainees/.
20 UNAMI/OHCHR, “Protection of civilians in the armed conflict in Iraq: 6 July–10 September 2014”,
p. 20.
21 UNAMI/OHCHR, “Protection of Civilians in the Armed Conflict in Iraq: 1 November 2015–30
September 2016”, p. 19.
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Mosul. ISF and members of the Iraqi Terrorism Service had been seen in the area four
nights prior to the discovery and gunshots had been heard.22
C. Coalition Forces
33. Coalition Forces operating under the United States-led Combined Joint Task
Force/Operation Inherent Resolve have been active in the fight against ISIL in Iraq and the
Syrian Arab Republic since their establishment in October 2014. They have provided air
support to military operations carried out by ISF and affiliated forces on several occasions
resulting in an unknown — but believed to be high — number of civilian casualties.
34. According to their own estimates, at least 841 civilians have been unintentionally
killed by Coalition strikes since the start of the operation, with 485 cases still
inconclusive. 23 Airstrikes conducted as part of the battle against ISIL in Mosul (and
involving the Iraqi Air Force) caused a significant part of that number. The total number of
civilian casualties from airstrikes during the whole campaign for Mosul was reported at
1,091.24 Of this number, the Coalition stated responsibility for 295 deaths. However, there
are indications that the actual number of civilian casualties caused by the battle for Mosul
between October 2016 and July 2017 is much higher, at around 10,000, of which at least
3,200 are alleged to have been caused by Coalition Forces.
35. In one single airstrike alone, conducted in Western Mosul on 17 March 2017
targeting two ISIL snipers, a high number of civilians were killed. An investigation
launched by the Iraqi authorities and Coalition Forces found that at least 105 civilians had
been killed and 36 remained unaccounted for. Witness statements indicated that victims had
been forcibly placed in the building by ISIL fighters. The investigation found ISIL had
placed explosive materials in the structure of the building and that this in part caused the
high number of casualties.25
D. Kurdistan region
36. The Kurdistan region is host to a large internally displaced population, which
significantly increased during the battle for Mosul when residents were forced to flee en
masse to save their lives. During the screening process at checkpoints, meant to separate
civilians from possible combatants, boys and men have faced particular scrutiny. It is
reported that they faced arbitrary arrests by Kurdish security forces and in some cases were
forcibly disappeared. There are also reports of retaliatory attacks by Kurdish security forces
and associated Peshmerga and Yazidi armed groups against Sunni Arab civilians and their
property following the recapture of territory.26 Dozens of juveniles remain detained by the
Kurdish authorities under the counter-terrorism regime, which, due to a lack of procedural
guarantees, places them at risk of human rights violations, including death in detention.
This risk is increased by the severely limited access of local and international organizations
to detention facilities, rendering monitoring of the situation almost impossible.
22 On 5 January 2018, the Special Rapporteur sent a follow-up letter containing summaries of this and
other cases to the Government requesting detailed information on investigations conducted, and
outcomes, if any. No response had been received at the time of finalization of the present report.
23 See www.inherentresolve.mil.
24 UNAMI/OHCHR, “Report on the protection of civilians in the context of the Ninewa Operations and
the retaking of Mosul City: 17 October 2016-10 July 2017”, p. 9.
25 Ibid. pp. 37-38.
26 UNAMI/OHCHR, “Human Rights in Iraq: July–December 2016”, p. 5, and “Protection of Civilians
in the Armed Conflict in Iraq: 1 November 2015–30 September 2016”, p. 17.
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V. Other violations of the right to life
A. Killings of journalists and other media professionals27
37. The Special Rapporteur was informed of several attacks on journalists and media
professionals in recent years, including threats, intimidation, physical assaults and killings,
in particular in the Kurdistan region of Iraq. Concerns were voiced by several interlocutors
that the number of attacks appeared to be on the rise and the Special Rapporteur heard that
shortly before her visit, on 30 October 2017, Arkan Sharifi, a cameraman for Kurdistan TV,
was stabbed to death in front of his family in Daquq. She also received information on
similar cases dating back to 2010, including Kawa Ahmed Germyani, who was shot dead in
Kalar on 5 December 2013, and Sardasht Osman, who was kidnapped on 3 May 2010 in
Erbil and later found dead.
38. A notable case raised with the authorities by the mandate holder prior to the visit,28
as well as by UNAMI/OHCHR,29 is that of Widad Hussein (sometimes written as Widat
Hussein). Mr. Hussein, a correspondent with Rozh News agency in the Dohuk Governate,
was reportedly abducted on 13 August 2016 and found dead the same day in the Malta
district of Dohuk with his body showing clear marks of torture. In response, the Kurdistan
Regional Government authorities indicated that a commission of inquiry had been
established and that investigations into the case were ongoing. No additional information
had been provided at the time of finalization of the present report.30
39. Concerns raised focused in particular on the reported lack of effective investigations
into the killings of Kurdish journalists and media professionals, and little or no
accountability for those killings. This impunity has led to an overall mistrust in the criminal
justice system and in turn increased fear among the media community of continuing their
critical reporting. This fear is heightened by their impression that the powerful figures who
were the subject of criticism by the deceased journalists might be behind their killings and
may even enjoy the protection of the justice system.
B. Killings of women and girls (honour killings)31
40. The Special Rapporteur also focused on the issue of honour killings, meaning the
arbitrary deprivation of life of women and girls (but possibly also men and boys) by (male)
family members or tribal members, because they are deemed to have brought shame or
“dishonour” on the family or tribe. While the scale of honour killings is unknown due to
severe underreporting, the latest estimate indicates that several hundreds of girls and
women become victims of honour killings in Iraq each year (A/HRC/30/66, para. 28). The
Special Rapporteur was informed that this issue affects all parts of the country, cutting
through religious and ethnic divides, with a strong tribal element and linked with the
country’s strong patriarchal society.
41. Iraq lacks proper legislation to prevent and punish honour killings. Article 409 of the
Penal Code permits “honour” as mitigation for crimes of violence committed against family
members. In that connection, while sexual assault is criminalized, article 398 of the Penal
Code provides that charges may be dropped if the assailant marries the victim. It appears
that this provision can also be applied in cases where the victim is a minor.32 This creates a
nightmare “catch 22” type situation whereby the victim risks her life either way: if she
marries her assailant she may become a victim of lethal domestic violence and, if she does
not, she may fall victim to honour killing by her family or tribe. The Special Rapporteur
27 The Government provided additional information (A/HRC/38/44/Add.4, sect. 12).
28 Communication dated 15 March 2017, AL IRQ 1/2017.
29 UNAMI/OHCHR, “Report on human rights in Iraq: January–June 2017”, p. 20, and
UNAMI/OHCHR, “Report on human rights in Iraq: July to December 2016”, p. 36.
30 Kurdistan Regional Government response to AL IRQ 1/2017 (26 January 2018).
31 The Government provided additional information (A/HRC/38/44/Add.4, sect. 17).
32 OHCHR/UNAMI, “Report on human rights in Iraq: January to June 2017”, p. 12.
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11
heard of cases where the sentence for honour killing was reduced to one or two years in
prison, including suspended sentences.
42. The Kurdistan Regional Government passed a law in 2004 prohibiting mitigated
sentences for perpetrators of honour crimes. It has also enacted a separate piece of
legislation, the Law for Combatting Domestic Violence in the Kurdistan Region — Iraq
(No. 8) of 2011, which includes in its definition of domestic violence not only acts of
physical violence but also the marriage of minors. The Special Rapporteur learned that a
draft amendment remains pending before the Kurdistan Regional Government Parliament
and that parts of it need to be brought into line with international standards. Furthermore,
the Special Rapporteur heard of a range of measures taken to strengthen investigations into
honour killings in the Kurdistan region, including obligatory forensic investigations into all
reported deaths of women.
43. To protect the growing number of women and girls fleeing domestic violence and
the threat of honour killings, there is a desperate need for more shelters. At the federal
level, while the Government does not permit non-governmental organizations to run
shelters, some do in practice, often at very high risk. The Special Rapporteur was alarmed
to discover that the few organizations providing such shelters — filling a gap due to a lack
of publicly funded shelters — are targeted and stigmatized, their offices raided by police
and their staff intimidated and threatened by various actors. In the Kurdistan region,
although such organizations are permitted to run shelters, it appears that the authorities
have denied licences to organizations intending to establish private shelters, citing
accusations of encouraging prostitution.
44. The safeguards against arbitrary deprivation of life apply to killings by non-State
actors. Iraq incurs international responsibility when it fails to act with due diligence to
prevent, investigate, punish and offer reparations for honour killings. In this regard, the
mitigating effect of article 409 of the Penal Code may be seen as an almost complete failure
to punish honour killings resulting in impunity for such acts. The lack of a proper
legislative framework — coupled with the harassment of those working to protect women
and girls against honour killings and the absence of authorization to run shelters —
indicates that the State is not only failing to act with due diligence; it is failing to respect
women’s right to life.
C. Killings of lesbian, gay, bisexual, transgender and intersex persons33
45. The Special Rapporteur also received information on incitement to hatred through
traditional and social media, and attacks, including threats, physical assaults and killings, of
men and boys on the basis of their actual or perceived sexual orientation or gender identity,
as well as of activists and organizations supporting the human rights of lesbian, gay,
bisexual, transgender and intersex persons. A notable example is the killing of Karar Nushi,
actor and model, in Baghdad on 2 July 2017. The Government indicated that, in response to
these killings, a committee had been established dedicated to this issue. It is, however,
unclear to the Special Rapporteur which results, if any, it has yielded. There is further fear
that, with the military victory over ISIL, attention may again turn towards those perceived
as engaging in “immoral” activities and attacks on the lesbian, gay, bisexual, transgender
and intersex community may increase.
33 The Government provided additional information (A/HRC/38/44/Add.4, sect. 18).
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12
VI. Transitional justice34
A. Accountability
1. ISIL fighters
46. The Government has embarked on a large judicial endeavour to hold ISIL fighters to
account for massive violations of human rights and humanitarian law, primarily using the
Anti-Terrorism Law. At the time of the visit, in Mosul alone, 4,383 alleged ISIL members
were detained, 2,019 detainees had been sent to Baghdad and 1,004 released. A total of 413
investigations had been completed and sent to the courts. In the view of the Special
Rapporteur, the reliance on this law raises a range of serious problems.
47. First, the Anti-Terrorism Law itself is both vague and overly broad. It encompasses
serious and petty crimes, ranging from killings to vandalism. The list of crimes for which
the death penalty is not only applicable but mandatory is extensive and includes acts whose
gravity fall below the threshold of “most serious crimes” necessary to impose such a
sentence under international norms. Its definition of terrorism is not in line with the
International Convention for the Suppression of the Financing of Terrorism that Iraq
ratified in 2012. In addition, the Criminal Procedure Code appears to be set aside for those
charged under the Anti-Terrorism Law, which means that defendants are denied their fair
trial rights and due process guarantees. This includes the right to be informed upon arrest of
the reasons therefor and the charges brought, access to legal representation from the
moment of arrest, the right to have arrest and detention status reviewed by an independent
and competent judge in a timely manner, 35 and the prohibition of torture to extract a
confession.36
48. Second, as presented above, ISIL fighters have perpetrated serious and systematic
human rights violations, including war crimes, crimes against humanity and possibly
genocide in the territories it controlled and beyond. The investigation and prosecution of
these crimes require an appropriate legal framework. The Special Rapporteur does not
believe that the Anti-Terrorism Law was designed to respond to such international crimes.
49. To date, the Penal Code does not include provisions covering international crimes.
This means that Iraqi courts do not have jurisdiction over the crimes of genocide, war
crimes or crimes against humanity committed within its territory. The gravity of the crimes
committed by ISIL requires that the federal and regional authorities amend domestic
legislation to ensure jurisdiction over international crimes. The people of Iraq, the victims
and survivors of the conflict, deserve a legal framework and a judicial response that
properly reflect the nature of the crimes committed, which are on a par with atrocity crimes
investigated and tried in other parts of the world.
50. In the Kurdistan region, the Commission for Investigation and Gathering of
Evidence was established under the High Committee for the Identification of Genocide
Crimes and has documented atrocity crimes committed by ISIL. Their documentation
efforts have not led to judicial processes or outcomes from a lack of an appropriate legal
framework which would permit the issuance of arrest warrants and charging of alleged
perpetrators. The Yazidi community is waiting for a “special court” to be established so that
perpetrators of crimes — war crimes, crimes against humanity and possibly genocide —
against members of that community can be held to account. To allow for such an outcome,
the Kurdistan Regional Government must also undertake urgent legal reforms aiming at
integrating international crimes within the domestic system.
51. The absence of steps taken by the Government to incorporate international crimes in
its domestic legislation is all the more problematic in view of the terms of reference of the
34 The present chapter should be read in conjunction with A/HRC/36/50, paras. 20-21.
35 Extended detention is also a result of interaction between article 109 of the Criminal Procedure Code
and the Anti-Terrorism Law.
36 The Government provided a divergent analysis (A/HRC/38/44/Add.4, sects. 4 and 6).
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Investigative Team set up pursuant to Security Council resolution 2379 (2017). According
to these terms of reference, accepted by the Government of Iraq on 8 February 2018
(S/2018/118) and subsequently approved by the Security Council on 13 February 2018, the
Investigative Team is mandated to “collect evidence pertaining to acts that may amount to
war crimes, crimes against humanity and genocide” (ibid., para. 5). Furthermore, the
evidence collected by the Team may only be used in fair and independent criminal
proceedings conducted by competent domestic courts in Iraq, and in third States (ibid.,
para. 26).
52. The Special Rapporteur is deeply concerned that this resolution will be meaningless
if the crimes that are to be investigated and prosecuted do not exist under the Iraqi domestic
legal framework. She is also concerned by the apparent acquiescence of the international
community to this legal and political hiatus.
53. In addition, she warns against the use of any and all evidence collected, preserved or
stored by the Investigative Team for trial in domestic courts that could result in the
application of the capital punishment, in violation of relevant international standards.
54. The Special Rapporteur is aware of an UNAMI proposal for the establishment of
Iraqi specialized criminal courts to try the most serious crimes and for the incorporation of
international crimes into the domestic legal system, which would enable the courts to
exercise jurisdiction over these crimes at the federal and Kurdistan regional levels. The
Special Rapporteur urges the Government and Parliament of Iraq to review and adopt the
necessary legal reform to hold those responsible accountable and provide remedies and
reparations to the victims or their family members.37
55. As highlighted in her end-of-mission statement,38 the Special Rapporteur also regrets
that resolution 2379 (2017) limits assistance to the investigation of crimes committed by
one party only (i.e. ISIL). Given the crucial need to build trust among all ethnic and
religious groups in Iraq, any accountability effort must be conducted according to the
principle of impartiality and address the grievances of all groups and individuals affected
by human rights violations and atrocity crimes.39
2. Government and affiliated forces40
56. A particular onus is therefore placed on the Iraqi State to investigate all allegations
of violations of international human rights and humanitarian law committed by its own
forces, hold perpetrators to account and provide remedies and reparations to the victims or
their families. This obligation must be implemented openly and transparently. The Special
Rapporteur encourages the international community to support the Government in
conducting the necessary efforts to document and investigate all alleged crimes committed
by other parties to the conflict, including ISF and affiliated forces, as well as Coalition
Forces.
57. The authorities have on a number of occasions acknowledged violations committed
by ISF and affiliated forces and announced investigations into above-mentioned and other
cases. On 22 October 2014, the Ministry of the Interior stated that an investigative
committee set up to look into the attack on Bani Wais village had identified three suspects.
On 6 June 2016, following the events north of Fallujah of 3 June involving the separation of
around 1,300 boys and men, and subsequent confirmed deaths of 49 and disappearance of
643 of them, the Prime Minister announced the establishment of a committee to investigate
“any violations of the instructions on the protection of civilians” and issued “strict orders”
to hold accountable those responsible for any violations. On 18 July 2017, in relation to the
battle for Mosul, the Office of the Prime Minister acknowledged that violations by ISF had
occurred, stating that these were individual acts and that punishment would be sought for
the perpetrators (S/2017/881, para. 56). On 17 August 2017, Iraqi authorities announced
37 The Government provided additional information (A/HRC/38/44/Add.4, sect. 7).
38 See www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22452&LangID=E.
39 The Government provided a divergent analysis (A/HRC/38/44/Add.4, sect. 20).
40 The Government provided additional information (A/HRC/38/44/Add.4, sects. 8 and 10).
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14
that investigations into violations reported by international media had found that some
alleged violations had indeed occurred and stated that the alleged perpetrators had been
referred to the judiciary.41
58. The Special Rapporteur was informed that these and other steps towards ensuring
accountability have been taken, including the establishment of a directorate for security and
discipline, staffed with investigators, and a detention centre in Baghdad, holding up to 200
members of affiliated forces accused of various crimes. However, it is unclear how
effective these accountability mechanisms and the investigations conducted to date are, as it
appears that no legal proceedings have been opened in any of the above-mentioned or other
reported cases. It is further unclear how individual members of ISF and affiliated forces, as
well as their superiors, if command responsibility can be established, will be held to
account for such violations under the current domestic legal framework.
3. Death penalty42
59. Iraq maintains the capital punishment and continues to implement it to date. The
Kurdistan Regional Government, while also maintaining capital punishment, seemed to
have established a de facto moratorium on executions since 2008. However, it was
breached on two occasions in 2015 and 2016 with three executions. Both the Federal and
Regional Governments cited popular pressure as a reason to continue to apply/resume the
death penalty, in particular in response to crimes committed by ISIL.
60. The death penalty is most frequently applied under the Penal Code and the Anti-
Terrorism Law. Both impose the capital punishment for a range of crimes, not all of which
satisfy international requirements that limit its application to premeditated murder only.
Crimes punishable by the death penalty under the Anti-Terrorism Law include participation
in an armed terrorist gang; assault with firearms or use of explosive and incendiary devices
designed to kill with a terrorist motive; and kidnapping or impeding the freedoms of
individuals. Mitigating circumstances, i.e. the accused provides information leading to the
prevention of another terrorist act or apprehension of further suspects, may apply, in which
case sentencing is reduced to life imprisonment (art. 5).
61. The Criminal Procedure Code provides a number of procedural guarantees,
including the right of the accused to legal representation starting before questioning (art.
123) and the prohibition of, inter alia, mistreatment, threats, injury or psychological
pressure to influence the accused or extract a confession (art. 127). The death penalty may
not be imposed on juvenile offenders, i.e. minors or those aged between 18 and 21 at the
time of the commission of the alleged crime, or on pregnant women and women up to four
months after giving birth (arts. 79 of the Penal Code and 287 A of the Criminal Procedure
Code).43 In such cases the death penalty may be commuted to life imprisonment.44 The
method of execution is by hanging (art. 288).
62. The Kurdistan Regional Government enacted its own piece of counter-terrorism
legislation, the Anti-Terrorism Law (No. 3) of 2006, which expired on 18 July 2016.
Similar to the federal version, it imposed mandatory death sentences for a number of
crimes, not all of which constitute “most serious crimes”. The Special Rapporteur was
informed that the main body of law to be applied in terrorism cases now is the Penal Code.
However, concerns have been raised that the expired law continues to be applied to crimes
alleged to have been committed before the law expired, which covers the majority of
alleged ISIL crimes.
63. On 17 December 2017, the recently reconvened Kurdistan Parliament ratified the
General Amnesty Law in Kurdistan Region (No. 4) of 2017. The Amnesty Law provides
for the reduction of sentences for convicted persons and persons currently being tried for
offences that took place prior to the enactment of the law. Persons already sentenced to
41 UNAMI/OHCHR, “Report on Human Rights in Iraq: January–June 2017”, p. 2.
42 The Government provided a divergent analysis (A/HRC/38/44/Add.4, sect. 19).
43 UNAMI/OHCHR, “Report on the death penalty in Iraq”, October 2014, p. 10.
44 Ibid.
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15
death will have their sentences reduced to 15 years in prison if reconciliation is reached
with the victims. Some categories of convicted persons, where reconciliation has been
reached, may be released immediately, while the sentences of convicted persons where
reconciliation has not been reached may be reduced by 30 or 40 per cent (20 per cent for
drug-related crimes and sexual abuse). There are also benefits for convicted persons
evading arrest and those who have served their sentences but cannot pay their restitution. In
the Amnesty Law, it is specified that the Law does not apply to certain categories of crimes,
including those relating to national security, the crimes of repeat offenders, some financial
crimes, and the rape and torture of children.
64. The Special Rapporteur is concerned at the lack of openness from the Federal
Government on judicial proceedings and the use of the death penalty. She was informed
that, since 2015, no information has been made public on the number, charges and trials of
detainees sentenced to death, remaining on death row or executed. The latest numbers
released by the authorities in August 2014 indicated that 1,724 prisoners were on death row
(excluding the Kurdistan region). 45 However, this number has likely increased
exponentially due to the defeat of ISIL, with large numbers of fighters being captured and
undergoing trial.
65. The authorities assured the Special Rapporteur that capital punishment is only
imposed after a series of legal checks, including an automatic appeal procedure for all death
penalty cases, and that, if any miscarriage of justice is found to have occurred at any stage
of the proceedings, the case is automatically re-tried.
66. However, the Special Rapporteur is alarmed by the mass executions reported since
2016 and fears that this has become the modus operandi, in particular, in dealing with ISIL
and terrorism cases. Recent examples include 38 men hanged in Nasiriya, southern Iraq, on
14 December, and 42 detainees hanged in the same city on 24 September 2017. All had
been convicted on terrorism-related charges. Moreover, on 23 January 2017, 23 convicts
were executed for their alleged involvement in the Camp Speicher case.46 On 21 August
2016, 36 men had reportedly been executed in relation to that case.
67. The Special Rapporteur was also made aware of a large number of allegations
regarding violations of fair trial and due process guarantees in death penalty cases. These
include, in particular, sentencing based mainly or solely on confessions obtained under
torture or duress, 47 lack of judicial investigation into allegations of torture during the
investigation phase and swift trials resulting in mass executions.
68. The Special Rapporteur concludes that existing procedural guarantees to ensure fair
trials either are not implemented in practice or have proven insufficient to protect against
abuses of due process rights, resulting in systematic violations of the right to life. She
reiterates her call to the Government to establish an official moratorium on the death
penalty.
B. Documenting, investigating and preserving evidence of violations48
69. In post-conflict situations, “if formal institutional mechanisms … are not able to
deliver results at the scale that cases call for, other forms of intervention can provide
recognition to victims and promote social integration”.49 The Special Rapporteur welcomes
ongoing efforts to document the range of violations committed during the recent conflict
but fears that these are insufficient. The Federal Government to date has not initiated any
documentation efforts based on the safe participation of all victims. With the support of
international actors and civil society, it should take steps to establish a documentation/truth-
seeking process to collect testimonies and evidence. This process may or may not include
45 Ibid., p. 21.
46 UNAMI/OHCHR, “Human rights in Iraq: January–June 2014”, p. 4.
47 See also CCPR/C/IRQ/CO/5, paras. 27-28.
48 The Government provided additional information (A/HRC/38/44/Add.4, sects. 8, 13-14).
49 A/HRC/36/50, para. 72.
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16
the preparation of case files so that formal investigations could proceed at a later date and
formal accountability be delivered.
70. While the Government, including federal, regional and local officials, is ultimately
responsible for transitional justice, a range of other actors can play a crucial role in ensuring
these obligations are effectively and peacefully implemented. Religious and tribal leaders in
particular must take stock of the transitional challenges, present and forthcoming, and
respond accordingly, providing guidance to their members and followers, grounded in the
foremost necessities of justice, reconciliation, peace and security. Almost three years ago,
on 12 February 2015, Grand Ayatollah al-Sistani issued a fatwa on “Advice and guidance
to the fighters on the battlefields”, calling on all fighters to respect international
humanitarian law principles. The new transitional phase demands of all religious leaders in
Iraq that they exercise similar foresight and positive influence over the behaviour of all
actors, at national and local level, and support reconciliation and transitional justice efforts.
71. A positive example of documenting atrocity crimes committed since 2014 is the
Commission for Investigation and Gathering of Evidence of the Kurdistan Regional
Government (see also para. 50 above). The Commission, headed by an investigative judge,
has documented a multitude of crimes committed by ISIL, including mass killings,
disappearances, sexual violence, enslavement, and use of child soldiers, through
interviewing dozens of survivors and witnesses, excavating mass graves and conducting
other forensic investigations. In doing so, they have been able to identify a range of
perpetrators. However, the prosecution thereof will depend on the establishment of a proper
legal framework integrating measures against international crimes within the domestic
system of both the Federal and Regional Governments.
72. The United Nations Development Programme has also set up a project supporting
reconciliation efforts in Iraq, which will include the establishment of a three-fold
mechanism, including a citizens’ archive for gross human rights violations, with
recommendations for follow-up. The project, to be implemented throughout the country in
2018 and 2019, will involve collecting and documenting victims and survivors’ testimonies
about the violations they endured and witnessed.
C. Certificates of absence50
73. During the most recent conflict, thousands of men, women and children from all
communities have been forcibly disappeared, the vast majority of whom remain
unaccounted for. Within the Yazidi community alone, an estimated 6,450 persons are
missing with most feared killed and placed in unmarked individual or mass graves. In and
around Fallujah, individual women interviewed by the Special Rapporteur have lost up to
15 male members of their immediate families, including their husband, sons and brothers,
the youngest being 13 or 14 years old. Those left behind are facing extreme hardship as a
result, including for having lost their main breadwinners.
74. The uncertainty about the fate of these persons causes relentless suffering to their
relatives. Knowing what happened to the disappeared is critical for relatives, their
communities and Iraq as a whole to be at peace. Getting to the truth will require concerted
efforts in tracing the missing, which sadly will need to include the excavation of mass
graves.
75. Other pressing needs related to the missing, include legal and financial needs.
According to government officials, Iraqi law provides for something amounting to a
“certificate of absence”, which is issued by a judge on the basis of a police report and valid
for three years, after which a death certificate may be issued. Families also have the right to
compensation or reparation for the disappearance of their relatives.
76. However, based on information received during the visit, it appears that these
certificates may be withheld from families of disappeared suspected ISIL members,
50 The Government provided additional information (A/HRC/38/44/Add.4, sect. 16).
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17
including those who went missing after surrendering to ISF or affiliated forces. The Special
Rapporteur wishes to stress that all families of the disappeared should be provided with
certificates of absence. Responsibility for crimes committed by ISIL members should not
be extended to their families, who should not be deprived of minimum survival
requirements. A certificate of absence is often the first step towards accessing essential
services.
D. Management of mass graves51
77. As a result of the mass killings that Iraq experienced during Saddam Hussein’s
regime, the sectarian violence that followed, and the widespread violence committed by
ISIL, the bodies of an estimated 1 million persons are buried in hundreds of mass graves
across the country. Some 114 mass graves, linked to the most recent conflict, have been
discovered so far in areas previously under the control of ISIL, containing the bodies of an
unknown number of individuals. Exhumations have been carried out at some sites,
including for the mass killing of 1,700 air force cadets at Camp Speicher in Salah ad Din
province in June 2014, but many other sites remain to be examined. The identification,
protection and adequate management of all mass grave sites is essential for truth, justice
and reconciliation efforts.
78. The excavation and identification of victims, including through DNA analysis, is
being carried out by the Medico-Legal Institute, the Mass Grave Department, the Martyrs
Foundation, and the Ministry of Martyrs and Anfal Affairs in Kurdistan, with the support
of, among others, the International Commission on Missing Persons and ICRC. Their
commitment and professionalism, despite vast challenges, are admirable. Many mass grave
sites lack the necessary protection, leaving them exposed to damage by the elements and
are subject to uncontrolled excavations. There are limited adequate storage systems and
facilities. Staff lack basic equipment, such as gloves and bleach. Insufficient DNA testing
facilities slow down the identification of bodies.
79. Professionals of the Medico-Legal Institute calculate that, at the current pace, it will
take over 800 years to complete their task. Families cannot wait that long for identification
of their missing relatives, and neither can accountability for violations committed.
Supporting the Iraqi institutions responsible for the mass graves must therefore be an
absolute priority for Iraq and the international community. Additional training, equipment
and funds, including greater capacities for DNA testing, tracing and storage, are required to
accelerate and strengthen the processes of discovery, exhumation and identification.
VII. Conclusions and recommendations
A. Conclusions
80. For decades the people of Iraq have experienced horrendous violations of the
right to life, which have been met with impunity. The Government of Iraq is now in a
position to resolutely turn its back on previous practices, and initiate a truly
protective and participatory transitional justice process that will put an end to
impunity for crimes committed against all communities. This requires solid
investigations into all allegations of war crimes, crimes against humanity, and
genocide. While there is no doubt that ISIL and its fighters have perpetrated the most
serious crimes, for which they must be held to account, other parties to the conflict
must equally face justice for their crimes. These include Government and affiliated
forces as well as Coalition Forces.
81. The people of Iraq, the victims and survivors of the conflict, deserve a legal
framework and a judicial response that properly reflect the nature of the crimes
committed, which are on par with atrocity crimes investigated and tried in other parts
51 The Government provided additional information (A/HRC/38/44/Add.4, sects. 5 and 9).
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18
of the world. The Anti-terrorism Law is not appropriate to address the crimes
committed, hold those responsible to account or provide victims with the remedies
and reparations to which they are entitled. Investigations into gender-based
persecution and crimes, alone or in intersection with religion and ethnicity, must be
prioritized.
82. The current legal and political hiatus related to the implementation of Security
Council resolution 2379 (2017) must thus be promptly addressed. This requires urgent
legal reforms to give Iraqi courts jurisdiction over international crimes. In view of the
repeated evidence of miscarriages of justice, the Government must at the same time
take all necessary steps to address widespread reports of violations of fair trial and
due process guarantees, including torture to obtain confessions, and establish an
official moratorium on the death penalty.
83. Article 409 of the Penal Code, which mitigates penalties for honour killings,
must be amended. Non-governmental organizations providing shelter to women and
girls fleeing gender-based threats to their life must be provided with the necessary
protection and immediate (legal) steps must be taken to provide those organizations
with the necessary licences to carry out their work. Due diligence measures should, in
addition, be applied to other individuals and groups at risk, including journalists and
media professionals, and lesbian, gay, bisexual, transgender and intersex persons.
B. Recommendations
84. The Special Rapporteur recommends that the Government of Iraq:
Post-conflict reforms
(a) Ratify the Rome Statute of the International Criminal Court;
(b) Accede to the Optional Protocols to the International Covenant on Civil
and Political Rights and the Optional Protocol to the Convention against Torture;
(c) Incorporate into domestic legislation war crimes, crimes against
humanity, genocide and establish specialized court(s) with technical capacities and
jurisdiction over these crimes;
(d) Repeal the Anti-Terrorism Law (No. 13) of 2005 and, pending legal
reforms, charge individuals for the full range of crimes committed under the Penal
Code;
(e) Undertake security sector reform, with human rights and the protection
of the right to life at the forefront;
(f) Place all security forces under the control of the Government, especially
in liberated and disputed areas, or disarm and disband them;
Accountability
(g) Ensure that all parties to the conflict are held to account for their crimes,
including ISIL but also Government and affiliated forces, and Coalition Forces;
ISIL fighters
(h) Prioritize prosecutions of ISIL suspects responsible for the most serious
crimes and consider alternatives to criminal prosecution for those suspected of ISIL
membership without evidence of any other serious crime;
(i) Ensure that detention of ISIL suspects is carried out pursuant to the
Criminal Procedure Code, with a court-ordered arrest warrant and detainees being
brought before a judge within 24 hours;
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(j) Provide access to all places of detention of alleged ISIL fighters and
members, including women and children, to independent monitors and national and
international (non-governmental) organizations;
(k) Ensure that all child detainees are held in appropriate juvenile facilities,
separate from adults;
(l) Notify families of the whereabouts of detained relatives;
(m) Create a specialized court for dealing with juvenile alleged ISIL
members;
(n) Put an immediate end to swift trials and mass executions under the Anti-
Terrorism Law;
(o) Ensure that victims, including women and children, are heard
throughout criminal proceedings;
Government and affiliated forces
(p) Investigate and prosecute perpetrators of reported attacks by pro-
Government forces on civilians in Mosul and other families, including arbitrary
killings and forced disappearances, alleged to have relatives who are affiliated to or
members of ISIL, as well as reports of destruction of civilian property;
(q) Make public all investigations carried out so far into above-mentioned
and other attacks on civilians, especially those conducted by ad hoc committees, with
due concern to the protection of survivors;
Death penalty
(r) Establish a moratorium on the use of the death penalty;
(s) Pending abolition, undertake an independent and comprehensive review
of all relevant legislation to bring it into compliance with international human rights
law and standards related to capital punishment, in particular its mandatory nature
for certain crimes;
(t) Ensure that the death penalty is not imposed on persons below the age of
18;
(u) Ensure full application of the Vienna Convention on Consular Relations
in death penalty cases involving foreign nationals;
(v) The Kurdistan Regional Government should adopt a formal moratorium
on the use of the death penalty and conduct a comprehensive review of all relevant
legislation with a view to repealing it;
Victim-centred transitional justice mechanisms
(w) Develop a transitional justice strategy, consisting of identifying priorities
and mechanisms of investigation, prosecution and reparation, including to address
stigma;
(x) Document all violations of the right to life, war crimes and crimes
against humanity committed in Iraq against all groups and individuals, by all
perpetrators without exception;
(y) Ensure a victim-centred approach to justice, including through actively
soliciting victim and witness participation in trials, supporting their participation,
ensuring confidentiality of information and data, and providing witness protection
programmes where necessary;
(z) Develop truth-telling and truth-seeking processes and institutions with
the authority to address violations committed by all sides to the conflict, including by
issuing subpoena to garner testimony and witnesses;
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(aa) Provide certificates of absence to all families of the disappeared,
irrespective of their alleged affiliation to ISIL;
(bb) Implement the recommendations of the Special Rapporteur on minority
issues (A/HRC/34/53/Add.1) and Special Rapporteur on the human rights of
internally displaced persons (A/HRC/32/35/Add.1);
Management of mass graves
(cc) Develop the technical capacity of Iraqi institutions and put in place a
sustainable process of locating, recovering and identifying the disappeared, with the
support of international organizations;
(dd) At local and national level, with local and religious leaders, engage with
families of the disappeared to raise understanding of the complexity of mass grave
management and identification of the bodies; and develop proposals aimed at
recognizing and respecting the plight of the families involved while protecting mass
grave sites;
(ee) Invest in and develop storage spaces and capacities to hold and keep
remains that have been excavated, to ensure respect and identification; and ensure all
bodies currently in mortuaries are properly handled and not forgotten;
(ff) Ensure all exhumations are part of a well thought-out plan of action,
including mechanisms to work with families and professional analysis of the remains;
(gg) Invest in building the capacities of national actors to respond to the mass
graves crisis, with the support of international (non-governmental) organizations;
Protection of persons at risk
(hh) Amend article 409 of the Penal Code;
(ii) Revise the draft Family Protection Law to include measures to prevent
sexual and gender-based violence, protect survivors, and ensure accountability of
perpetrators in compliance with international standards, and ensure its earliest
adoption;
(jj) Protect and provide accommodation and dignified living conditions to
women and children fleeing gender-based violence, including in shelters;
(kk) Fully recognize the work of non-governmental organizations providing
shelters and related services; protect these organizations, their staff and the
individuals staying in shelters, including their children, from attacks and harassment
by Government and non-Government actors;
(ll) Collect comprehensive information on and document human rights
violations against women and lesbian, gay, bisexual, transgender and intersex persons
in all parts of Iraq, and publicize government reports to raise awareness about the
magnitude of these violations in the country;
(mm) Investigate all allegations of gender-based persecution and crimes,
including gender-based killings, and train and strengthen capacities accordingly;
(nn) Conduct proper investigations and prosecute all those responsible for
attacks against, and killings of, lesbian, gay, bisexual, transgender and intersex
persons, including by members of Government and affiliated forces as well as armed
non-State actors;
(oo) Implement national policies to end the endorsement of and participation
in violence or discrimination against anyone, including lesbian, gay, bisexual,
transgender and intersex persons, by government officials, including the police and
ISF;
(pp) Work with Iraqi rights-based organizations to provide human rights
training and education to ISF and the police in order to combat violence and
discrimination based on real or perceived sexual orientation and gender identity;
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21
(qq) Protect journalists and media professionals from attacks, including by
setting up relevant protection programmes and investigating all deaths of such
persons and prosecuting alleged perpetrators regardless of their status or functions.
85. The Special Rapporteur recommends that religious and community leaders:
(a) Speak up, through fatwas, Friday prayers or other relevant directives,
against ethnic and religious intolerance and gender-based discrimination and violence,
and support reconciliation measures, address mistrust and fear and denounce revenge
and retaliations;
(b) Advocate for the integration of all the affiliated forces and fighters into a
united ISF.
86. The Special Rapporteur recommends that international actors:
(a) Endorse the recommendations in the present report and advocate for
their implementation by the Federal Government and/or the Kurdistan Regional
Government;
(b) Provide technical, financial and strategic support to the relevant
authorities to support the implementation of recommendations related to criminal
legal reforms, ratification of international treaties, accountability for crimes
committed by ISIL and all other parties to the conflict, transitional justice, and
gender-based crimes;
(c) Urge Iraqi authorities to ensure that all defendants, including foreign
nationals, have access to consular services and legal representation, receive a fair trial
with their due process rights met, and do not receive the death penalty;
(d) Individual Member States should address current accountability deficits
for ISIL crimes and, under the principle of universal jurisdiction, prosecute
perpetrators currently in their country’s territory under the appropriate international
legal framework, including for war crimes, crimes against humanity or genocide; and
undertake active investigations into gender-based persecution and crimes, in order to
hold those responsible to account;
(e) States members of the Coalition Forces should undertake an
independent evaluation into the impact of their aerial bombardments and other
military operations in terms of civilian casualties and report publicly and
transparently about the findings.
87. The Special Rapporteur recommends that the Investigative Team established
under Security Council resolution 2379 (2017):
(a) Address the gap between the objectives of the resolution and the Iraqi
legal framework, and urge and support the Federal Government and the Kurdistan
Regional Government to incorporate international crimes into national legislation and
support the establishment of specialized court(s);
(b) Urge the Government of Iraq to allow the Investigative Team to broaden
its investigations to include violations by all sides to the conflict, including Coalition
Forces;
(c) Ensure that evidence collected, preserved or stored by the Team is not
used in trials that could lead to the application of the death penalty.
88. The Special Rapporteur recommends that the Office of the Prosecutor of the
International Criminal Court consider undertaking investigations into foreign fighters
who have held high-level ISIL positions and who are nationals of countries that have
ratified the Rome Statute, for crimes within the jurisdiction of the Court.