Istanbul 25th of June 2005 - World Tribunal on Iraq culminating session
In the name of god
Dear Mr. President and members of the court
May peace be upon you
Lecture's title: "The Iraqi legal system under the occupation"
From Iraq the country of civilization and law, from my country that is still bleeding, I greet you and complain to God, to you, and to everyone with good intentions who can feel the human suffering and work hard to rescue people affected by tyranny and occupation. I complain to you all for a country occupied by an invading force that destroyed its sovereignty, attacked its land, humiliated its people and killed many of them.
Before the occupation, the Iraqi legal system used to be a strong one. The legislative, executive and judicial systems used to be integrated and strong, despite some chaos and flaws that resulted of the internal clashes and conflicts of power between the former regime's stakeholders.
The legal system in any country is based upon four main foundations: the constitutional principles, the legislative system, the judicial system, and the international conventions and treaties. The Iraqi legal system, with its four foundations, was affected very strongly by the occupation of the country and the consequences of this occupation.
All of us realize the fact that Mr. Bremer had appointed himself as a ruler of Iraq and monopolized all the legislative, judicial and executive making himself the supreme leader and the new dictator. This was announced as an order published in the Iraqi official newspaper "Al-Waqa'e", and this was a clear case of violating the legal principles.
This was followed by a number of laws and resolutions most of which violated the legal principles regulating the legislating process. He also cancelled a number of pre-occupation laws and put other laws on hold without any legal justification, and violates numerous laws as well.
Such acts are obvious violations to the international law, treaties and agreements that asks the occupying country to respect the local legal system of the occupied country ( e.g. Item 45 in the Geneva Convention 12/8/1949)
Dear audiences, because of the time limitation I'll stick to discuss the main cases of violations to the Iraqi legal system.
A- The constitutional principles:
1- Issuing the Transitional Administrative Law and considering it as the local constitution of Iraq was the biggest violation against the constitutional system. This TAL was prepared in some few days not taking in consideration the legal bases and formalities for issuing such a critical document. It was prepared by mostly non-Iraqi individuals, and it included a big number of dangerous laws harming the Iraqi future, sovereignty, legal system, identity and unity of its land and people.
2- Violating the constitutional principle of the presumption of innocence before being proven guilty. The occupation authorities detained thousand of people without any charges other than suspicion without evidences, kept them in detention camps for very long periods of time, and scanned their pupil and finger stamps without any judge decision or legal basis. Thus, the occupation authorities reversed the mentioned principle into "the presumption of guilt before being proven innocent".
3- Violating the privacy of homes, religious spaces, hospitals, and governmental buildings all of which are in breach of the constitutional principles that guarantees the privacy of such places unless a judicial order states otherwise, and according to certain procedures and legal steps. The occupation authorities raids Iraqi homes all the time without any previous notification or legal orders, and in a violent and chaotic fashion.
B- The Legislative System: The occupation authorities has violated the Iraqi legislative laws in many cases like:
1- Paralyzing the basics of the Iraqi penal codes. The occupation authorities sabotaged the principle of local criminal laws when they granted legal immunity to their military forces and any individuals working with them. The occupation troops are immune from the Iraqi legal system for any of their military and non military actions like robbery, rape, assault, murder, and humiliating civilians all of which are according to order number 17 issued in 27/6/2003
2- The occupation authorities stopped a number of other Iraqi laws including the penal codes, the laws of criminal courts, business and corporation laws, citizenship laws, and the estate laws.
3- The occupation authorities passed a number of unnecessary laws serving the occupation political and economical interest, which made many Iraqis criticize and ridicule such laws. These laws include the estate dispute laws, the de-Baathification law, the elections law, the army dissolution law, the ministry of information dissolution law, and the Baghdad stock market laws.
C- The Judicial System: The occupation authorities violated the Iraqi judicial system on both the personal and legal levels.
1- On the personal level, the occupation authorities humiliated numerous judges and dismissed them from their positions based on random and illegal claims. The occupation authorities didn't give the mentioned judges any chance to defend themselves, and the authorities didn't follow the legal procedure stated by the Iraqi judicial organizing laws. This violates the rule number 54 of the Geneva Convention, and the treaty of respecting the judicial system sovereignty passed in 29/11/1985 and 13/12/1985 . The occupation authorities insulted the Iraqi judges by insulting and demeaning them by sending armed troops into courts and arresting some of the Iraqi judges.
2- On the legal level, the occupation authorities interfered in the Iraqi courts work by imposing a number of restrains and procedures that contradict with the Iraqi law. The occupation authorities refused to free Iraqi prisoners who were acquitted by Iraqi courts. Furthermore, the occupation authorities interfered in the legal proceedings by attending the trials, interrupting judges, and prying in trial and investigation procedures. In addition, the occupation authorities neglected protecting the lives of judges which resulted in the murder of a number of judges by unknown assassins. Also, the occupation authorities gave the blind eye to a number of violations happening in the Iraqi judicial system like the newly established sectarian courts and other illegitimate court entities, and a number of secret jails run by different parties and militias around the country. Finally, the occupation authorities gave the green light to Iraqi police and army to go around the country and violate the rights and privacy of civilians, and detain people without taking them to court or charge the detainees, the thing that caused the death of many Iraqis and disabilities to many others as well.
D- international treaties and agreements:
1- The United Nations principles and conventions: All of these conventions and principles were violated when Iraq was attacked without an international law allowing that. These conventions prohibit any attacks or assaults against civilians during war, including collective punishment and group imprisonment. It also violated the principle of personalizing the punishment, so the siblings, parent, sons and partners of wanted people were detained and tortured and used as a hostage to put pressure on the wanted person. The conventions that prohibit torture, attacking civilians, and attacking historical sites were also violated.
2- International conventions and treaties:
2-1 The occupation authorities violated many of the fourth Geneva Convention (12/8/1949) articles when they attacked civilians and didn't follow the rules of dealing with POW and wounded fighters, and didn't follow the rules for defending the rights of detainees like calling their relatives and keeping them in good conditions.
2-2 The Hague Conventions of 1907 was violated as well when the occupation authorities did not protect public property, religious sites, historical sites, arts and hospitals and didn't respect the local laws of Iraq.
2-3 The convention against torture (number 39/46 in 10/12/1984) and the Copenhagen speech given by the UN secretary general in 28/6/1994 was violated as well when the occupation authorities committed crimes like the ones Abu Ghraib reflected.
2-4 The treaty of respecting the independency of the judicial system passed by the general assembly in the resolutions 40/32 in 29/11/85 and 40/146 in 23/12/1985was violated too.
2-5 The Roma system of 1998 was violated too by the mentioned crimes.
Thank youDr. Muhammad Said Al-Rahoo
Mosul University, Faculty of Law (Iraq).