3.1. Article 15(a) QD

COMMON ANALYSIS
Last updated: June 2019

As noted in the chapter Refugee status, some profiles of applicants from Iraq may be at risk of death penalty or execution. In such cases, there could be a nexus to a reason for persecution falling under the definition of a refugee (see for example the profile Persons perceived to be associated with ISIL), and those individuals would qualify for refugee status. In cases where there is no nexus to a Convention ground (for example, some cases of Individuals accused of ordinary crimes), the need for subsidiary protection under Article 15(a) QD should be examined.

Under Article 15(a) QD, serious harm consists of the death penalty or execution.

The death penalty is as such, and under any circumstances, considered as a serious harm under Article 15(a) QD. The sentence does not need to have already been imposed. The mere existence of a real risk that on return a death penalty may be imposed on an applicant could be considered sufficient to substantiate the need of subsidiary protection.

As the addition of the term ‘execution’ suggests, Article 15(a) QD also encompasses the intentional killing of a person by non-State actors exercising some kind of authority. It may also include extrajudicial killings, but an element of intentional and formalised punishment needs to be present.

Under the 2005 Constitution of Iraq, the President ratifies death sentences ‘issued by the competent courts’. The death penalty is prescribed under Article 86 of the Iraqi Penal Code No.11 of 1969. Crimes that carry the death penalty include a variety of offences, such as crimes against internal or external security and state institutions, acts of terrorism, kidnapping, rape, drug trafficking leading to death, prostitution, ‘aggravated’ murder, human trafficking leading to death, etc. The definition of ‘terrorism’ crimes under the Anti-Terrorism Law is broad and susceptible to wide interpretation. The death penalty is also provided for under the Military Penal Code, Articles 27 and 28, and the Iraqi Internal Security Forces Penal Code of 2008, for example, for offences relating to failures to perform one’s duties or surrendering military installations. The death penalty is executed by hanging. [Targeting, 1.17]

Iraq continues to carry out capital punishment, being among the top three countries in the Middle East that impose and carry out executions according to Amnesty International’s 2017 report. 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. The Ministry of Justice also reported in 2017 that 3 to 4 executions occur per week in Baghdad and Nasiriyah prisons, noting that 15-20 % of the 6 000 prisoners in Nasiriyah Central Prison have a death sentence. In April 2018, the Ministry of Justice announced that 13 executions had been carried out in 2018, 11 for terrorism. In October 2018, the UN Security Council noted that the total number of executions in 2018, publicly announced by the Ministry of Justice, was 42, although more details about the death sentences and executions had not been provided [Targeting, 1.17].

KRG has maintained the capital punishment, however, a de facto moratorium on executions had been was reportedly established since 2008. This was breached on two occasions in 2015 and 2016. Both the federal and regional governments cited popular pressure as a reason to continue to apply or resume the death penalty in particular in response to crimes committed by ISIL [Targeting, 1.17.2].

In areas under its control, ISIL committed executions and some of them may be considered as ‘punishment’, such as for refusal to join them or for transgressing the moral codes as they are set by ISIL and its strict interpretation of the Sharia law [Targeting, 2.2.1].

If there is a reasonable degree of likelihood of death penalty or execution, subsidiary protection under Article 15(a) QD shall be granted, unless the applicant is to be excluded in accordance with Article 17 QD.

 
In some cases, the death penalty would have been imposed for a serious crime committed by the applicant, or for other acts falling within the exclusion grounds under Article 17 QD. Therefore, although the criteria of Article 15(a) QD would be met, exclusion considerations should be examined (see the chapter on Exclusion below).

 

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