The Iraqi State

COMMON ANALYSIS
Last updated: June 2019

[Actors of protection, 3, 4.1, 5.1, 5.2.2, 5.3.1, 6.3-6.6]

The Republic of Iraq is a constitutional, federal, parliamentary republic. The executive branch is composed of the Presidency Council (president and maximum of three vice-presidents) and the Council of Ministers (the prime-minister, three deputy prime-ministers, and 30 ministers).

Legislative power is exercised by the elected parliamentary Council of Representatives (Iraq’s 329-seat Parliament) and the Federation Council.

The judiciary is made up of the Federal Supreme Court, Court of Cassation, Public Prosecution Department, Judicial Oversight Committee, and federal courts and the Higher Judicial Council, which oversees the federal court system. Under the Constitution of Iraq, the judiciary is independent and no power is above the judiciary except the law.

The Iraqi Constitution provides guarantees for fundamental rights, rule of law, equal treatment before the law, equal participation, and judicial independence, and prohibits discrimination on various grounds.

The UN describes the criminal justice system in Iraq as weak. Sources state that courts lack resources and have limited forensic capabilities; and that lack of remuneration, security, technical, and human resources hindered the judiciary from carrying out its duties. The judiciary is described as understaffed. The lack of resources in the judiciary has reportedly caused lengthy delays before and during trials. The system is currently predominantly dealing with ISIL cases.

The Iraqi judiciary is described as having restricted independence and impartiality, with a weak and dependent nature, due to the unstable security situation and historical political conflict. According to sources, the Iraqi judiciary is susceptible to corruption, bribery and political interference, and pressure from religious and tribal forces. Court decisions are reportedly influenced by political and sectarian identity. Abuses by paramilitary groups have gone on with impunity and without being addressed by the judicial system.

Iraqi often avoid the civil and criminal courts and instead rely on tribal and religious dispute settlement of private issues, even those involving major crimes. This is largely due to lack of access to justice, lack of trust in the judiciary or because of lower social status and lack of financial resources for some parts of the population. Some citizens turned to religious and militia groups instead of the official system, mainly in poor areas of the south and west.

The ISF maintain a significant presence in most major urban centres to limit terrorist, insurgent, and militia activity. Despite merging forces under the ISF to fight against ISIL, inter-institutional rivalry and competition cause tension in the relationship between the ISF, PMU, Peshmerga, Sunni PMU and local tribal forces. The deployment of southern Iraqi security and law enforcement forces in the fight against ISIL has resulted in security voids in areas such as Basrah, where a significant rise in robbery, murder, drug trafficking and kidnapping was reported in 2017-2018.

Ministry of Interior forces were reported to have an authorised strength of 531 000 in 2013, across the Iraqi police service, Iraqi federal police, border enforcement, facilities protection police and the oil police. Due to ‘ghost soldiering’ actual figures of police personnel have been difficult to estimate.

The Iraqi federal police are focused more on counter-terrorism than on ordinary policing, and are organised into military-style units. Particularly in recent years of fighting ISIL, they have transformed themselves into a paramilitary force rather than focusing on law enforcement. Sources report its membership to be between 37 000 - 44 000.

Police and military units in Baghdad are described as having the ability to respond to security incidents, terrorist attacks and criminal activities, although response and capabilities of the responding authorities vary considerably. In some areas, police perform well, while in others the police are not efficient in responding to crime. Iraqi police and law enforcement officials reportedly lack resources, training, and forensic capacity to gather impartial and reliable evidence of sufficient standard to identify alleged perpetrators, warrant charges, or secure convictions before the courts.

In 2014, Prime Minister al-Abadi launched anti-corruption efforts in the security sector, leading to the dismissal of a number of senior army and police commanders as well as 50 000 ‘ghost soldiers’ and police. However, corruption is reportedly a persistent problem in the police forces, occurring at many levels, and involving bribes to reduce or drop criminal charges.

Organised crime continues to be a significant problem. Individuals, militias, and criminal groups have been involved in abductions and kidnappings for extortion or political purposes.

The Constitution prohibits all forms of violence and abuse in the family. However, the national draft ‘Family Protection Law’, which provides protections for gender and sexual-based violence, has not been passed and remains unimplemented. Spousal rape is not criminalised in Iraq. Domestic violence or honour killings are seldom punished in Iraq and cases of sexual violence are rarely reported to the police. Perpetrators frequently go unpunished, as they are able to escape punishment through bribery. According to COI sources, Iraqi police lack sufficient capacity to respond to violence against women and children via its 16 Family and Child Protection Units. These units have improved women’s access to justice, but are limited to provincial capitals and major cities and lack suitable facilities and female personnel. Furthermore, police were reportedly not willing to meaningfully investigate killings of women and girls for honour during 2017, despite an increase in violence against women.

The disputed territories of Iraq are located in parts of Erbil, within KRI, and across parts of Kirkuk, Diyala, Salah al-Din, and Ninewa governorates. These areas have been the subject of contested control between the KRG and the Iraqi central government when Kurds took control of these areas lying outside the KRI border, after the fall of Saddam Hussein. The question of their control was addressed in Article 140 of the 2005 Constitution, but this has never been resolved.

In 2014, in the context of the war with ISIL, the Peshmerga moved into some areas of the disputed territories and took over control there, including Kirkuk and parts of Ninewa, populated by ethnic and religious minorities. In September 2017, the KRG held a non-binding referendum on KRI independence which was largely supported by the Kurdish population, but was opposed by the federal government. The government issued demands that the KRG nullify the results, and in support of this, Iraqi government forces retook parts of the disputed territories taken by the Kurds, sparking the displacement of thousands of Kurds.

The presence and control of the Iraqi State have become stronger since the defeat of ISIL. It can be concluded that the State may, depending on the individual circumstances of the case, be considered able and willing to provide protection that meets the requirements of Article 7 QD in Baghdad and southern Iraq. In most other parts of northern and central Iraq, including the disputed territories, the capacity of the State is limited and the criteria under Article 7 QD would generally not be met.

When assessing the availability of State protection, individual circumstances, such as ethnicity, home region, gender, social status, wealth, personal connections, actor of persecution and type of human rights violation must be taken into account. The Iraqi State is in general considered able and willing to provide protection that meets the requirements of Article 7 QD for Shia Arabs in Baghdad and southern Iraq. This is without prejudice to the assessment in cases where State protection is considered not available due to individual circumstances. With regard to Sunni Arabs, the availability of state protection is considered limited, but may in individual cases be available. State protection is generally not considered available for members of minority religions and ethnicities, Palestinians, LGBTIQ persons and victims of domestic or honour-related violence, and gender-based violence, including harmful traditional practices.

It should be noted that if the actor of persecution is a PMU, and the group in question is considered a State actor, effective protection is presumed not to be available in accordance with Recital 27 QD.

 

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