2.20. Individuals accused of ordinary crimes

COMMON ANALYSIS
Last updated: June 2019

This profile refers to people who are accused of ordinary crimes in Iraq, such as crimes against property, life, physical integrity, etc.

COI summary

[Actors of protection, 4, 4.1, 6.5.2, 6.6; Targeting, 1.17]

The Republic of Iraq has a mixed legal system of both civil and Islamic law. The Iraqi Constitution provides guarantees for fundamental rights, rule of law, equal treatment before the law, equal participation, and judicial independence, as well as prohibition of discrimination on various grounds. Corruption and lack of independence and impartiality of the judiciary have, however, been reported. Furthermore, large-scale problems related to the lack of due process, fair trial rights and violation of the right to life, especially in relation to the application of the death penalty, have been reported.

Capital punishment is usually imposed under the Penal Code and Anti-Terrorism Law. It can be imposed for a range of crimes. Crimes that carry the death penalty in Iraq include offences, such as crimes against the internal or external security and state institutions, acts of terrorism, kidnapping, rape, drug trafficking leading to death, prostitution, ‘aggravated’ murder and human trafficking leading to death. The death penalty is executed by hanging.

In Iraq, the death penalty was reportedly used to execute 250 convicted ISIL members since 2014, with 100 of those executions occurring in 2017. Amnesty International recorded at least 125 executions in 2017 for offences that included mostly terrorism-related acts, in addition to others related to murder, kidnapping and drugs. In April 2018, the Iraqi Ministry of Justice announced 13 executions had been carried out during the year, 11 of which for terrorism. In October 2018, the UN Security Council noted that the total number of executions publicly announced in 2018 by the Ministry of Justice was 32, although more details regarding the death sentences and executions had not been provided.

Tribal customary law (urf) is a longstanding, important and common mechanism for dispute resolution and preservation of order in Iraq. Tribal justice has reportedly become increasingly popular and preferred to courts and police for a wide range of issues including criminal matters such as murder, assault and theft, particularly in central and southern Iraq.

Tribal law is described as filling gaps not addressed by the state and where state institutions are weak. Tribal structures are sanctioned in practice by the State, but do not have an official status. Enforcement officials may also encourage conflicting parties to use the tribal justice system, while state courts sometimes also refer cases for tribal settlement.

Although Article 45(2) of the Iraqi Constitution prohibits tribal traditions that contradict human rights, tribal dispute mechanisms can involve violations of human rights, such as giving away female relatives as compensation, honour killings, retributive killings or banishment. Women are particularly vulnerable regarding tribal justice and can encounter harsh treatment for transgression of tribal customs. See also the profile Individuals perceived to transgress moral codes.

Risk analysis

Death penalty, irrespective of the nature of the crime, is considered to amount to persecution. See, for example, Persons perceived to be associated with ISIL. See also Article 15(a) QD.

Prosecution for an ordinary crime by the State does not normally amount to persecution. However, violations of the due process of law and/or disproportionate or discriminatory punishments could amount to such severe violations of basic human rights. Certain tribal dispute mechanisms can involve violations of human rights amounting to persecution (giving away female relatives as compensation, honour killings, retributive killings).

Not all individuals under this profile would face the level of risk required to establish a well-founded fear of persecution. The individual assessment of whether or not there is a reasonable degree of likelihood for the applicant to face persecution should take into account individual risk-impacting circumstances, such as: area of origin of the applicant and the prevalent justice mechanisms, the nature of the crime for which he or she is prosecuted, the envisaged punishment, the applicant’s gender, etc.

Nexus to a reason for persecution

Available information indicates that in the case of individuals accused of ordinary crimes, there is in general no nexus to a Convention reason for persecution. This is without prejudice to the assessment in cases where the prosecution is motivated by a Convention ground, or initiated or conducted on a discriminatory basis related to a Convention ground.

 
Exclusion considerations could be relevant to this profile (see the chapter on Exclusion).

 

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