hrw: the quality of justice

The story of the day in Iraq is of course the shoe-throwing journalist, whose exploits have dominated the Arab media cycle and will be the enduring image of Bush's final official visit to Iraq.  It would be a pity if that completely crowded out attention to the devastating report on the Central Criminal Court of Iraq released today by Human Rights Watch.  Joseph Logan and Michael Wahid Hanna conclude after a rigorous investigation that the CCCI

is an institution that is seriously failing to meet international standards of due process and fair trials. Defendants often endure long periods of pretrial detention without judicial review, and are not able to pursue a meaningful defense or challenge evidence against them. Abuse in detention, typically with the aim of extracting confessions, appears common, thus tainting court proceedings in those cases.

The report investigates a wide range of failures by the Court to adhere to international law or to its own rules, including dispassionate accounts of coerced confessions and secret witnesses.  The report puts detail and texture on to an overarching sense of institutional dysfunction which should surprise no-one at this point.  

It also notes the corrosive effects of the ongoing confusion over the relationship between MNF and Iraqi institutions:

Other failings reflect the fact that the Iraqi justice system, and hence the CCCI, does not have jurisdiction over individuals taken into custody by the US-led Multinational Force in Iraq (MNF). The MNF refers only a small number of the persons it detains to the CCCI for prosecution, and in those cases has exercised broad influence on proceedings since it provides physical security and plays a dominant advisory role, though that influence is less pronounced than in the court's early days. The refusal in particular of US military officials involved in detention matters to honor hundreds of decisions by the court to release detainees in US military custody has further undermined respect for the Iraqi judicial system. (This report does not address the status of detainees held by the US military as security detainees, except in the context of their transfer to the CCCI for prosecution.)

Presumably, the SOFA/WA is meant to clear up some of these inconsistencies and confusions, but as with everything else in Iraq it remains to be seen whether implementation will follow legislation. 

The report also offers some useful insights into the February 2008 General Amnesty Law, which was meant to be a key reconciliation initiative but instead has foundered at the level of implementation. I've long wondered about the disconnect between the ever-increasing number of cases processed under the amnesty and the miniscule number of people actually released from detention facilities (generating frequent complaints by Tareq al-Hashemi and other Sunni parties).  Human Rights Watch notes that

The amnesty as passed would benefit persons held for more than six months without an investigative hearing, or for more than a year without referral to a court. Implementation, however, has lagged very seriously. The continued high number of persons in detention facilities has put serious strain on the CCCI, where dozens of judges hear thousands of cases a month, and further delayed judicial review of detentions.

Approximately 96,000 cases had been approved for amnesty by July 2008 by the judicial committee that reviews applications, according to the Higher Judicial Council. As of September 2008, an estimated 5,000 to 8,000 detainees in Iraqi facilities had been released under the terms of the amnesty, most of them from facilities run by the Ministry of Justice.  A ministry official in October estimated that approximately 3,200 detainees had been released from Ministry of Justice facilities in Baghdad, Diyala, Basra, Hilla, and elsewhee.  The limited impact on the overall detainee population stems in part from the fact that the vast majority of applicants approved for amnesty are not in custody. As of May, prisoners and detainees accounted for about 25 percent of 68,796 approved applications; by September, that percentage stood at about 19 percent of 120,596 grants of amnesty. (Those at large or on bail make up the other categories of applicants. Grants of amnesty relate to charges, rather than individuals, who may face multiple charges.)

There's a lot more in the report, which should receive more attention than it is likely to get today without throwing a shoe. 

Comments

[Helena Cobban]

Yes, but it's a little hypocritical for Human Rights Watch, an American NGO, to "suddenly" start looking at the quality of criminal procedures in Iraq when these procedures start to be run by the Iraqis-- when HRW has been almost completely silent for several years now regarding our own government's detention without trial, for lengthy periods of time, of scores of thousands of Iraqis. We Americans are responsible for the actions of our government, first and foremost. Once we've corrected those perhaps we could start criticizing others.