Guest post by Jake Rylatt
On Sunday 19th October, amidst growing concerns surrounding the human rights situation in Iraq, the UN Office of the High Commissioner for Human Rights (‘OHCHR’) and UN Assistance Mission for Iraq (‘UNAMI’) Human Rights Office jointly published a ‘Report on the Death Penalty in Iraq’ (the ‘Report’). The Report ultimately concludes that the practice of Iraq is inconsistent with its obligations under a number of ratified international human rights treaties. In the process, the Report paints a picture of a State that is not only retentionist but also regressionist, applying the death penalty with increased frequency and for an increasingly broad range of offences.
The Report highlights an exponential increase in executions since the reintroduction of the death penalty in 2005, increasing per year and totaling 690 as of April 2014 (pp. 19-21 Report). Iraq defends its use of the death penalty as a necessary response to the ‘extraordinary security situation’ in Iraq, as a deterrent to acts of terrorism, and in the name of providing justice to victims of terrorism (p. 1, p. 21-22 Report). However, from the outset the Report states to the contrary that the rising use of the death penalty ‘has not contributed to ending violence, nor has it served to provide justice for victims’ (p.1 Report). In fact, the Report reveals that ‘as the numbers of those executed have increased, so, too, has the number of civilian casualties who die from the actions of terrorist and armed groups’ (p. 26 Report).
However, this lack of positive correlation between aim and effect is only the first concern of the Report, which, after an analysis of both international human rights law applicable to Iraq, further concludes that:
‘[Iraq’s] use of the death penalty… constitutes a violation of the right to life as guaranteed by international human rights law and the Constitution of Iraq, and may amount to cruel, inhuman and degrading treatment or punishment.’ (p. 26 Report)
In reaching this conclusion, the Report, while accepting that the use of the death penalty is not yet unlawful per se under international law for those States yet to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (‘ICCPR OP II’) (p. 2-3 Report), makes a number of findings that Iraq’s application of the death penalty is inconsistent with the substantive, procedural and personal limitations imposed on retentionist States by international law.
In particular, Iraq is stated to be in breach of the substantive limitation under Article 6(2) ICCPR that the death penalty only be applied as punishment for the ‘most serious crimes’. Such a finding derives from the broad range of criminal offences for which Iraq applies the death penalty, particularly offences related to the notoriously ill-defined concept of terrorism (p. 26 Report). As identified by the Report, terrorism-based offences account for the ‘vast majority’ of executions since the re-introduction of the death penalty (p. 20 Report).
A multitude of further breaches are also identified, mostly resulting from weaknesses in the Iraqi criminal justice system, with UNAMI monitoring revealing a consistent failure to respect due process and fair trial standards (pp. 22-23 Report), including the use of torture at various points during the detention and interrogation of suspects (pp. 24-25). Resort to such practices places Iraq in breach of the procedural limitations on the death penalty under Article 6(2) ICCPR (incorporating the due process guarantees of Article 14 ICCPR), alongside various provisions of the Convention Against Torture.
Furthermore, the Report cites evidence of Iraq’s use of the death penalty for at least two persons under 18 years old (p. 25 Report). Such practice is a direct breach of Iraq’s obligations under both Article 6(5) ICCPR and Article 37(a) Convention on the Rights of the Child (‘CRC’), which prohibit the death penalty against those under 18 at the time the crime was committed.
Ultimately, the Report recommends that Iraq, ‘as a matter of urgency’, establish a moratorium on the death penalty, comprehensively review all relevant legislation with a view to abolishing the death penalty, accede to ICCPR OP II and, finally, abolish the death penalty (p. 27 Report). In the interim, the Report, inter alia, urges Iraq to ensure established limitations on the use of the death penalty under international law are respected, and to provide a comprehensive review of all cases of persons currently on death row (pp. 27-9 Report).
In conclusion, with over 1,500 prisoners awaiting execution in Iraq as of August 2014 (p. 21 Report), the Report provides a timely analysis of the practice of a State swimming directly against the current of international law, and, in doing so, violating a multitude of treaty-based obligations protecting the right to life and the right to be free from torture and cruel, inhuman and degrading treatment. If political agreement cannot yet be reached on the abolition of the death penalty, Iraq must implement the interim recommendations of UNAMI/OHCHR if they are to show that they are truly taking rights seriously.
The UNAMI/OHCHR Report, to which the page numbers cited correspond, is available by following the link on this page: http://www.uniraq.org/index.php?option=com_k2&view=item&id=2755:iraq-alarming-rise-in-use-of-death-penalty-un-report&Itemid=605&lang=en