Committee on Enforced Disappearances
Report of the Committee on Enforced Disappearances on its visit to Iraq under article 33 of the Convention * , **
Observations and recommendations (art. 33, para. 5)
1.The Committee considers it to be of utmost priority that the State party establish the basis for addressing enforced disappearance. The actions described in the first part of the visit report constitute preliminary requirements for any effective action against enforced disappearances. To allow their implementation, the State party should establish a clear strategy to put these requirements into practice in a cross-cutting way, to address the priorities identified to prevent and eradicate enforced disappearances, (see sect. I below) and to attend to the needs of the victims (see sect. II below).
2.The strategy shall set out clear deadlines in a plan of action that should be developed and implemented in alliance with national and international stakeholders working on disappearances, and shall be drawn up in coordination and with the support of the international community (see sect. III below).
I.Priorities to be addressed in the State party’s strategy to prevent and eradicate enforced disappearance
A.Establish and implement the basis for effective searches and investigations
3.The legislative silence on enforced disappearance is accompanied by an absence of specific procedures for searching for disappeared persons and for the corresponding investigations. The cases have to be reported, registered and investigated using the provisions that are in place for other offences. However, there are no provisions that specify how and to whom to report the disappearance of a person. Furthermore, the regulations governing searches and investigations in such cases are dispersed across more than 30 separate pieces of legislation, and remain very general.
4.Under the Criminal Procedure Code, criminal investigations are led by investigating judges, and prosecutors can act as investigating magistrates where no investigating magistrate is available. However, given the limited role of prosecutors in Iraq, investigating judges are the central figures in criminal investigation processes. They also lead the gathering of the evidence, assess its value, and determine whether the case should be sent to court for trial.
5.In the first phase of the procedure, the investigating judge must ascertain the veracity of the disappearance report, by summoning the complainants and up to two witnesses.This is yet another step in the procedure, which necessarily takes time. If the investigating judge considers that the veracity of the statement is established, he can initiate the search process. To this end, a “missing person report” is sent to police stations, border control authorities, civil registry offices and the Directorate of Corrections in the Ministry of Justice to determine whether the disappeared person has been detained or is registered with any authority. Usually, the search and investigation do not go beyond these administrative quests, which are carried out by comparing the various missing persons lists maintained by the competent authorities.
6.The next step in the procedure is to determine whether the disappeared person can be declared dead, as is required to allow the families to request support, claim reparation, and try to clarify their administrative and legal status. To this end, the personal status courts are mandated to investigate the “fate of disappeared persons”. Here again, the “investigation” is limited to an administrative process, in which the personal status court requests the family of the disappeared to submit the file opened by the investigating judge in order for the “veracity report” to be issued by the investigating judge.
7.Various interlocutors highlighted their concern about the prevailing conception of search and investigation as being administrative procedures. They emphasized that in situ visits and the use of scientifically based evidence by prosecutors, investigators and judges remained limited, owing to a lack of resources. The Committee regrets that, despite various requests on this matter, the delegation did not have access to clear information about other kinds of action taken for search and investigation, or about the number of prosecutions initiated.
8.If victims are not in a position to initiate a procedure, there is no clarity as to the State’s responsibility to activate an ex officio investigation.
9.In accordance with the High Commission for Human Rights Act, the High Commission for Human Rights can receive complaints of disappearances and conduct its own preliminary investigations. Such investigations start with the sending of official letters to the relevant authorities, requesting them to check the registers of persons deprived of their liberty. Once it has initiated a lawsuit, the High Commission for Human Rights can refer it to the Public Prosecutor’s Office for it to take the necessary legal action, which includes referring the complaint to the courts. If the Public Prosecutor determines that legal action is not required, no remedies are available. Despite repeated requests for information in this regard during the visit, the delegation did not receive any official data about the proportion of cases referred to courts or about the outcome of such referrals.
10.Additionally, ad hoc mechanisms have been set up: in 2016, the State party created a fact-finding committee to investigate with regard to persons who went missing from Al-Sejar and Al-Saqlawia between 26 May and 10 June 2016. In May 2018, the State party set up “the 46 Committee”. These committees must prepare lists of victims, including disappeared persons, but they do not have a clear and strong investigative mandate. Prosecuting the alleged perpetrators requires the fact-finding committees to transmit the case files to the High Judicial Council. According to the figures provided by the State party, 314 cases were registered by the High Judicial Council from 2020 to 2023 (122 in 2020, 117 in 2021 and 15 in 2022). However, no information is available as to the characteristics and the status of these cases, and the 46 Committee has still not presented a public report.
11. T he State party must urgently establish a comprehensive search and investigation strategy for cases of disappearance to ensure that both recent and older cases are thoroughly and independently investigated, in application of the State party’s competence as set forth in article 9 of the Convention , regardless of the ethnic, religious or national background of the disappeared persons, the national origin of the alleged perpetrators, or the time, location and circumstances of the disappearance s .
12. This strategy should define a clear action plan and timeline , including the establishment of common legal and institutional frameworks to address disappearances, which would have specialized units to address specific circumstances in which disappearances occurred.
13. In this regard, the State party should establish specific public protocols that fully comply with human rights standards, and are inspired by national and international lessons learned and good practices. In respect of searches and investigations regarding acts committed by agents of other States, or with the authorization, support or acquiescence of other States, such protocols should include the promotion of cooperation and mutual assistance among the countries involved, to assist victims, to search for, locate and release disappeared persons , and in the event of death, to exhume and identify them and to return their remains.
14. The Committee recalls that the obligation to search for and locate a person is triggered as soon as the competent authorities become aware, by any means, or have indications , that a person has been subjected to enforced disappearance; the authorities must begin the search immediately and expeditiously, on their own initiative, even when no formal complaint has been made , or where doubts arise about the occurrence of the alleged disappearance . A lack of information from relatives or complainants cannot be invoked to justify a failure to immediately launch search and investigation activities.
15. Search and investigation protocols should include the principles contained in the Committee’s Guiding Principles for the Search for Disappeared Persons, and should clearly specify that the processes cannot be limited to an administrative cross-check of databases and registers. The search and investigation protocols must be under the oversight of victims and all persons with a legitimate interest , and should be revised periodically to incorporate lessons learned and innovations. Any updates or revisions to the protocols should be reasoned and transparent.
16. The search and investigation strategy must encourage the use of context analysis considering all available information , to allow a full understanding of disappearances and identify effective methodologies, to determine where in the chain of command responsibilities lie and to develop effective approaches for the prosecution of cases at a system-wide level. To this end, the State party should create context analysis units and appoint specialized prosecutors and investigating judges , and set up mechanisms for the systematic coordination of their work with all authorities involved .
17. The State party must: (a) ensur e that the search and investigation strategy is periodically evaluated and that it complies with due diligence requirements at all stages of the process; (b) ensur e the competence and independence of the professionals involved; (c) determin e the actions to be taken in an integrated, efficient and coordinated manner ; and (d) ensure that these actions are accompanied by the means and procedures needed to find the disappeared person s and investigate their disappearance.
18. T he State party should promote the use of scientifically based evidence for the sea rch and the investigation through specialized training and should ensure that the competent authorities have all the necessary equipment available to them .
19. In all cases, the State party should ensure that the competent authorities systematically investigate possible chains of command, indirect perpetrators , and other forms of perpetration and participation.
20.T he Committee reiterates that the State party must give priority to efforts to find disappeared persons alive and secure their release , e nsure that the search continues until the disappeared person ha s been located , and ensure that any investigation into their disappearance is pursued until the facts have been clarified and the perpetrators identified . The State party must guarantee the accountability of all the agents involved in the search and the investigation and must prevent, investigate and punish any failure to fulfil their duties in compliance with international standards .
21. The State party must strengthen the High Commission for Human Rights so that it can carry out its mandate effectively, including through the urgent appointment of its new board, in full accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles). It must also ensure adequate follow-up on complaints of disappearance lodged with the Commission, undertake effective investigations and prosecutions of perpetrators, and provide redress to victims.
22. State authorities must take urgent measures to ensure that the 2018 fact-finding committee finalizes its work, and that its conclusions and those of the 2016 committee are adequately addressed through the investigation and prosecution of identified disappearances.
B.Eradicate impunity
23.As enforced disappearance still does not exist as an autonomous crime in national legislation, it cannot be prosecuted as such in Iraq. In theory, disappearances can be prosecuted under the Penal Code and the Counter-terrorism Law. Crimes of the Baath Party regime that led to disappearances were prosecuted by an ad hoc Supreme Iraqi Criminal Tribunal. Nonetheless, no information has been communicated by the State party about decisions adopted in cases akin to enforced disappearance, despite the questions raised in that regard with the representatives of the judiciary, and the requests for information sent during and after the visit.
24.Despite this lack of information, it is clear that very few investigations have progressed to trial, including the most recent cases. Impunity for disappearance prevails, as a rule. In this context, the Committee is particularly concerned about alleged cases where family members, judges, investigating officers and activists calling for accountability have been subjected to threat and intimidation or violent attack, often by persons believed to be linked to, or supportive of, armed elements. Also of concern is the lack of protection and immunity of the members of the High Commission for Human Rightsfrom reprisals or other intimidation measures in the context of carrying out their official duties. This has recently affected former commissioners who publicly reported cases of enforced disappearance, and fuels the inaction of the relevant institutions.
25.The Committee also notes that according to article 130 of the Criminal Procedure Code, if the perpetrator is unknown, an investigating judge may decide to close the case temporarily. This disposition is of particular concern in a context where the victims usually do not know who the perpetrator is, and where family members, relatives and the organizations that support them fear naming the alleged perpetrators, who often still retain control or influence over the territories where they live. Finally, according to available information, the practice of keeping the name of the alleged perpetrator as “unknown” is institutionalized: victims allege that when they present their case to the Compensation Committee and investigative authorities, they are asked not to put the name of the alleged perpetrator, even if they know it.
26.The current management of requests for “security screening” has turned into another factor contributing to impunity. Such screening remains necessary in order to submit a complaint, to ask for a search for a disappeared person, or to access the broader range of rights under the martyr category. If the disappeared person is on one of the “wanted lists”, the family and relatives lose all entitlements and have no access to any form of truth and justice. This reality was highlighted in the interviews during the visit. It is also reflected in most of the State party’s replies to the Committee’s urgent action requests, where the authorities state that the disappeared persons were affiliated with terrorist groups, without providing any further information or evidence about proceedings initiated, specific criminal charges brought, or arrest warrants issued against the disappeared person.
27.Such practices fuel feelings of discrimination and revenge. They are all the more concerning as, according to interviews carried out during the visit, the “wanted list” is not unified, and it is assessed differently depending on the agent in charge of the file. According to allegations presented to the delegation, the frequency of homonyms in Iraq also results in the detention of people whose names are similar to those of people accused of terrorism, particularly in the Governorates of Salah al-Din, Anbar, Nineveh, Diyala and Kirkuk. Available information indicates that no due diligence is carried out to check the real identity of the detained person. Therefore, if the detained person is disappeared, the family loses all access to support, justice and reparation.
28.Impunity for enforced disappearance has also been exacerbated by the adoption of general amnesty laws. The 2016 legislation, for example, was “widely understood as a measure to defuse Sunni–Shia political tensions by providing for the release of Sunnis who had been arrested for political reasons”. It “contains a series of exclusions, but does not explicitly refer to enforced disappearances – except for a reference to the crimes listed in Supreme Iraqi Criminal Court Act No. 10 of 2005 (which only applies to Baath-era violations)”.
29.All in all, the situation reflects the image of a system ruled by impunity, which is conducive to the recurrence and concealment of acts of enforced disappearance. Impunity has indeed turned into a structural feature that contributes to revictimization and undermines the impact of any related initiatives. The fight against impunity for disappearances in Iraq is a priority that cannot be further postponed.
30. The Committee urges the State party to eradicate all structural causes of impunity. To this end, the State party must, inter alia: (a) ensure the immediate inclusion of enforced disappearance as an autonomous crime in national legislation; (b) review all aspects of its legislation that promote impunity, such as article 130 of the Criminal Procedure Code, amnesty laws, and the setting up of ad hoc frameworks; and (c) put an end to practices that hinder access to justice and perpetuate enforced disappearance , including by amending the legislation that conditions victims’ access to their rights on the outcome of unreliable security screenings.
31.The State party must also set up an efficient system through which all institutions in charge of searches and of investigating, prosecuting and sanctioning disappearances are made accountable for the effectiveness and efficiency of their work. In that connection, t he Committee reiterates that the Convention provides no exceptions to the State party’s obligation to search for disappeared persons and to investigate their disappearance, irrespective of their profile or of any suspicions of involvement in terrorist activities.14
32. It is also a matter of priority that all authorities recognize the different forms of responsibility of the State party in cases of disappearance and consider them when reviewing the related legal and institutional framework and practices.
33. The State party should establish a comprehensive protection programme for public officials engaged in searches and investigations. Particular account should be taken of the inherent risks in places under the control of illegal armed groups.
34. The State party should also immediately ensure that the members of the High Commission for Human Rights are able to carry out their professional duties independently and are protected from any intimidation, harassment, improper interference or reprisals.
35. The State party should ensure that the legal framework that it will adopt to criminalize enforced disappearance as an autonomous crime includes appropriate penalties. The Committee on Enforced Disappearances joins the Committee against Torture in inviting the State party to review, in the light of its international obligations, the application of the counter-terrorism legislation and other relevant laws that may entail the imposition of the death penalty . The State party should also strengthen legal safeguards and guarantees of due process in all phases of the proceedings and consider ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.
36. As regards the investigation and prosecution of, and reparation for, enforced disappearances allegedly committed by agents of other States or by persons or groups of persons acting with the authorization, support or acquiescence of other States, the State party should promote, with their respective authorities, mutual assistance, in compliance with articles 14 and 15 of the Convention, including through the adoption of relevant mutual assistance treaties.
C.Strengthen and enlarge the national forensic capacity
37.In 2006, a legal mechanism was created through the Mass Graves Protection Law (Law No. 5 of 2005) to locate persons who had disappeared during the Baathist regime of Saddam Hussein, to conduct excavations and to identify human remains exhumed from mass graves. This law is also aimed at protecting mass graves from disturbance and from unregulated or unauthorized excavations, and at facilitating prosecutions. The then Ministry of Human Rights was designated to lead the effort to exhume and index mass graves and to document evidence that can be used in a court of law.
38.In 2015, the Mass Graves Affairs Act was adopted, extending the portfolio to the search for and identification of persons disappeared by Da’esh as of 2014. The Ministry of Human Rights was dissolved shortly thereafter, and the “Directorate of Mass Graves Affairs and Protection” was transferred to the federally based Martyrs’ Foundation.
39.The Mass Graves Affairs Act stipulates that when a mass grave is found, a committee made up of representatives of federal and provincial authorities (Committee 6) is in charge of leading the investigation. The Mass Grave Directorate and the Medico-Legal Department lead the process in coordination with the Ministry of Defence, through excavations and by collecting and identifying the remains and other evidence found.
40.In 2017, the Security Council established the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant (UNITAD), in its resolution 2379. The mandate of the Investigative Team is to support domestic efforts to hold Da’esh accountable by collecting, preserving and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide committed by Da’esh. UNITAD contributes to mass graves investigations in coordination with the Mass Graves Institute and other actors involved, such as the International Commission on Missing Persons. In July and August 2020, the State party indeed signed cooperation agreements with the International Commission on Missing Persons to support the collection of data relevant to locating and identifying disappeared persons; to improve domestic technical capacities in forensic archaeology and anthropology and for crime scene management; and to strengthen cooperation among relatives of the disappeared, and between families and the authorities.
41.The Committee welcomes these projects and cooperation agreements, which are key to allowing the State party to process the large number of mass graves that still have not been excavated and to identify the remains that have been found. In Sinjar, the delegation was able to observe two exhumations and to visit a provisional centre for DNA identification jointly managed by the State party, the International Commission on Missing Persons and UNITAD. The work done and its importance for the community at large are enormous.
42.The Committee’s interlocutors referred to the difficulties faced in ensuring that all the authorities involved duly shared information and coordinated their plans, including their plans for exhumations. The challenges faced by the responsible authorities in attending to all the requests for exhumation, and in analysing the evidence and information collected, and preventing its misuse, are of great concern. The delegation’s interlocutors stated on various occasions that, once remains had been located, collected DNA samples usually did not allow for identification, as no other data was available for cross-checking. These concerns increase as the number of mass graves located increases. According to the information provided by the State party on 24 February 2023, 139 mass graves related to the war between the Islamic Republic of Iran and Iraq have been excavated to date, and 120 mass graves currently have the status of registered, pending exhumation. A number of the delegation’s interlocutors alleged that many more mass graves existed which had not yet been located.
43.Others stressed that prosecutors and the judiciary hardly made use of the available scientifically based evidence, and expressed fear that a large part of that information might get lost or become unusable. They explained that this trend resulted from a lack of knowledge about the potential and the relevance of such evidence and the limitations of the available tools. In that connection, the Committee welcomes the ongoing development of the national fingerprint register, including through the implementation of the Unified National Identity Card. This biometric document replaces the civil identification document , the nationality certificate and the housing card, and has been issued by the Ministry of Interior since November 2019. Nonetheless, beyond the serious challenges that still exist in terms of access to civil documentation, notably for internally displaced persons and those who have returned from internal displacement, the available register for the identification of persons does not have sufficient coverage and interconnectivity to allow it to be used as an efficient tool for the search for and identification of disappeared persons.
44. T he Committee urges the State party to ensure that access to exhumation processes and forensic services is guaranteed to all victims of alleged disappearance and enforced disappearance, regardless of the ethnic, religious or national background of the disappeared persons, or the time, location and circumstances of the disappearance s .
45. The State party should establish a national centre for human identification , with regional offices and units that specialize in cases of disappearance and enforced disappearance. It must ensure that the existing authorities and the n ational centre for human identification have the budget, organizational structure , equipment and independence necessary to fulfil their duties .
46. The institutions concerned must be provided with adequately trained staff and the equipment and technical resources they need, including digital registers containing detailed, up-to-date and protected information , and with specialized training on the use of scientifically based evidence , and be provided with the necessary infrastructure. The State party should also create effective and independent mechanisms to ensure that these institutions are held accountable for their actions.
47. These institutions should implement a multidisciplinary forensic identification system for cases of disappearance, the purpose of which is to analyse all available forensic information, with priority given to technical procedures that increase the probability of identification.
48. The institutions should also urgently adopt protocols for the different forensic disciplines, including a protocol on reporting the identification and dignified handover of the remains of disappeared persons , and a protocol on the transmittal of forensic evidence and its use by judicial authorities .
49. P riority should be given to systematizing intra- and inter-agency coordination mechanisms between the national and international ins titutions tasked with exhumations and with identification of bodies and remains .
50. The Committee underscores the urgent need for the State party to set up a national forensic databank, a national register of unidentified and unclaimed disappeared persons , and a national register of mass and clandestine graves. This databank should be interoperable with other existing genetic profile banks in other countries.
51. The State party should develop a nationwide campaign of DNA collection and registration. This campaign should give priority to the submission of reference sample profiles from the family memb ers of all disappeared persons , so that they may be sought in existing systems by comparing the DNA reference samples from their families with the DNA profiles of unidentified human remains .
52. The State party should promote the establishment of agreements, mechanisms and practices with neighbouring countries to increase opportunities for the cross-referencing of genetic data , while ensuring full respect for the principles governing individual data protection in accordance with article 19 of the Convention.
53. The State party should ensure that the national register for the identification of persons systematically contains fingerprints, photographs , and personal data from birth to death that are relevant for the purpose of identification. It should also establish an interoperable computer system accessible by the authorities so that the fingerprint comparison procedure can be carried out expeditiously in full compliance with international standards for the protection of personal data, including article 19 of the Convention.
54. The State party should ensure that all unidentified deceased persons are buried in individual graves and that detailed information on th e se persons is recorded in an operational database.
55. While ensuring the protection of sensitive data, the State party should periodically and publicly provide information about the activities carried out, and the challenges faced, including in terms of the number of mass graves located, exhumed, and still to be exhumed. Clear information in this regard is crucial to making the efforts visible, to identifying and address ing existing needs, and to promot ing trust in the institutions concerned .
D.Ensure that the administration of prisons and other places of deprivation of liberty fulfils its responsibility to prevent and eradicate enforced disappearances
56.The role of the administration of prisons and of other places of deprivation of liberty in preventing and eradicating enforced disappearances is clearly set forth in articles 17 to 21 of the Convention, including through the prohibition of secret detention, the duty to duly register all persons deprived of their liberty, and the possibility for any person deprived of liberty to maintain contact with the outside world.
57.In Iraq, responsibility for the administration of prisons and detention centres lies with the Ministry of Justice, the Ministry of Defence and the Ministry of Interior, and with the Prime Minister (as regards counter-terrorism, the national security services and the national intelligence services). According to the information transmitted to the Committee, 34 places of deprivation of liberty come under the Ministry of Justice, including five that are for children. No exact data was obtained as to the precise number of places of deprivation of liberty that come under the other ministries. Information provided during the visit only indicates that each military unit or police station, or any security institution, has a detention facility.
58.After having obtained authorization from the State to do so, the delegation went to four places of deprivation of liberty, under different ministries, to check the content and the functioning of the registers, and to enquire about existing mechanisms to allow detainees contact with the outside world, including with family and lawyers. These were: (a) the Erbil counter-terrorism detention facility (under the Counter-terrorism Directorate); (b) the Faisala detention facility, in Mosul (under the Ministry of Interior); (c) the Muthana detention facility, in Baghdad (under the Ministry of Defence); and (d) the counter-terrorism detention facility of Baghdad International Airport (under the Ministry of Interior). The Committee is concerned that the current structure and functioning of the places of deprivation of liberty do not enable the competent authorities to contribute fully to the eradication and prevention of enforced disappearances.
Fragmentation of the administration of prisons
59.Throughout its interaction with State authorities, victims, civil society organizations and international actors, the delegation noted the confusion generated by prisons being answerable to different ministries, including military authorities. The Committee recalls that the administration of prisons should be in civilian hands, and not be part of a military or police structure.
Urgency of there being a nationwide register of persons deprived of their liberty
60.In the four places of deprivation of liberty visited by the delegation, there is a handwritten register supported by a digital database – these include the entries corresponding to the information requested under article 17 of the Convention: name, date of birth, age, full names of the father and the mother of the person detained with the aim of circumventing the challenges raised by the large number of homonyms in Iraq, detainee’s photograph, and court documents. According to the authorities, anyone detained is arrested on an arrest warrant; following the arrest, a medical committee checks the health of the accused and records relevant health information, which becomes part of the detainee’s case file; every time the authorities in charge of the administration of prisons receive an allegation that a disappeared person may be detained in a facility, they thoroughly check their respective registers.
61.These registers are not interconnected, and Iraq does not have a nationwide register of persons deprived of their liberty. Furthermore, the information kept by the security agencies of the Kurdistan Regional Government is not linked to the databases of the federal Government. Various recommendations have already been made to the State party about the urgency of establishing such a register. Projects have been developed with this objective, but no such register has materialized yet. Moreover, while the detention register kept at the Central Criminal Court of Iraq aims to include the names of all persons who have been brought before a judicial authority, long delays sometimes occur before this information is processed. Detainees who have not been brought before a judicial authority cannot be on the register. In the meantime, each place of deprivation of liberty has its own, isolated records, with different features and formats.
62.The delegation’s interlocutors confirmed that the lack of a centralized register of persons deprived of their liberty raises serious challenges for the victims and for the authorities in charge of searching for disappeared persons and investigating their alleged enforced disappearance.
63.Relatives of disappeared persons who suspect that the latter have been detained underlined the difficulties that they face as they try to visit as many places of deprivation of liberty as they can to search for their loved ones. They have to approach various authorities to access each one’s register. When the names of their relatives do not appear, they cannot enquire any further in the place they are visiting. No authority carries out a systematic and exhaustive cross-check of all existing registers.
64.The emotional and material impact of this situation fuels the despair and suffering of the families, especially as it combines with the multiplicity of authorities to be consulted, the doubts that exist as to the location of some official detention sites, and the widespread allegations that some “secret places of detention” might exist on the national territory.
65.For the authorities in charge of searches and investigations, the absence of a centralized interconnected register means that their requests for information must be addressed to each of the competent ministries, who then must relay them to the different places of deprivation of liberty under their supervision. Some mechanisms have been set up to speed up the procedure, such as centralizing the requests through the Ministry of Justice. However, the process remains very time-consuming for all authorities involved. The delays in receiving and sending information, which is done through the postal service, remain very long: replies frequently take weeks or months to reach the requesting institution, with major consequences for the effectiveness and efficiency of the search and investigation.
66.No information is available regarding persons deprived of their liberty in private institutions such as hospitals, psychiatric residences, day centres, and assistance and alternative care institutions for children and adolescents and for persons with disabilities.
67. T he State party must immediately establish an independent task force in charge of cross-checking systematically the registers of all places of deprivation of liberty, regardless of the institution to which they belong, with the names of all detainees. The task force must ensure that all persons in places of detention are registered and that their relatives are duly informed of their whereabouts.
68. The State party must guarantee the civil character of t he administration of prisons , and overturn its fragmentation. It must also establish without delay a n interconnected central register of all places of deprivation of liberty that exist on the national territory.
69. This register must include a ll deprivations of liberty, without exception, and contain, at a minimum, the information required under article 17 ( 3 ) of the Convention . The information must be filled out and updated promptly and accurately and be subject to periodic checks . It must be accessible without delay by the authorities in charge of searching for disappeared persons and investigating their disappearance, and by any person with a legitimate interest . I n the event of irregularities, the State party must guarantee that the officers responsible are adequately sanctioned .
70. Simultaneously, the State party must establish adequate controls on the registration of persons deprived of their liberty in private institutions such as hospitals, psychiatric residences, day centres, and assistance and alternative care institutions for children and adolescents and for persons with disabilities. Periodic census es of such institutions must be carried out to ensure the registration of persons resident there.
Contact with the outside world and immediate access to lawyers
71.It is stated in the Prisoners and Detainees Reform Act applicable in federal Iraq that families or other designated persons must be notified in cases of detention or transfer. The detainees interviewed during the visit indicated that they had been able to inform their families of their whereabouts. The delegation also visited parts of the premises where detainees can make phone calls. Nonetheless, testimonies indicated that permission to make calls was frequently delayed, especially during the investigation phase, and may be refused for some detainees.
72.Other witnesses reported that they had been detained and later released after having spent years without any contact with the outside world, including with their lawyers and families, who had had no information about their whereabouts. These testimonies referred to various places, including a very large building divided into two parts, hosting thousands of disappeared persons from Kirkuk Governorate: “The front part of the building is the official façade. No governmental or non-governmental agencies are allowed to enter this prison except for the Red Cross after having obtained prior approval. The rear part is understood to be subject to the control of the Kurdish intelligence services. It is surrounded by military cordons, making it look like a security camp. It includes several underground and aboveground halls, which are crowded with detainees.” It is alleged that each detainee is identified with a number from the prison administration, but their families have no access to information about their location.
73.The Committee underlines that such patterns, and more generally, the denial of the rights to visit and to communication, combined with the lack of access to lawyers, may amount to secret detention and constitute a violation of articles 17 and 18 of the Convention.
74. In compliance with article 18 (1) of the Convention, the State party must ensure that any person with a legitimate interest is able to have prompt access, anywhere in its territory, to the central register that is to be created, and to the registers of private institutions .
75. The Committee reiterates that a ll persons deprived of liberty, including terrorism suspects, must have access to a lawyer from the outset of the deprivation of liberty . They must be able to communicate without delay with and be visited by their relatives, counsel , or any person of their choice , and in the case of foreigners, with their consular authorities .
76. The State party should systematically allow visits by the High Commission for Human Rights, non-governmental organizations and international monitoring bodies to all places of deprivation of liberty, whatever the m inistry in charge . Openness to scrutiny is absolutely necessary to promote confidence in the system.
Absolute prohibition of unlawful detention
77.According to article 37 (2) of the Constitution of Iraq and articles 109 and 110 of the Criminal Procedure Code, no one may be detained unless a competent judge issues a court order to that effect. Nonetheless, the delegation received various allegations from victims stating that their loved ones had disappeared after being detained by State authorities without an arrest warrant.
78.This trend is also observed in most of the urgent action requests registered by the Committee. In these cases, the Committee requests the State party to transmit the corresponding arrest warrant, and it welcomes the fact that the State authorities have recently done so. Nonetheless, some were issued after the date of the alleged disappearance; others are yet to be transmitted; and none of the families concerned had previously been informed about the detention or the reasons for it.
79. The State party must ensure : (a) that deprivation of liberty is carried out only by officials authorized by law to arrest and detain persons and in strict compliance with the law, always explaining the reasons for the detention and immediately providing the detained person with an arrest warrant ; and (b) that persons deprived of their liberty are held solely in officially recognized and supervised places of deprivation of liberty.
Allegations related to secret places of detention
80.The anger and sense of powerlessness of victims and the challenges faced by the authorities in charge of searching and investigating is further complicated by the persistent allegations about the existence of “secret places of detention”. Two kinds of allegations exist: in some cases, reference is made to situations amounting to secret detention in official and known places of detention, such as the Cropper prison at Al-Muthanna Baghdad International Airport, the Al-Hoot prison at Nasiriyah, and the Chamchamal prison in the district of Sulaymaniyah Governorate (Kurdistan Region). In other cases, people refer to secret places of deprivation of liberty that “nobody can have access to”. The examples mentioned to the Committee include detention facilities in Jurf al-Sakhar, and a prison said to be “below Abu Zainab al-Hashd al-Sha’abi at the back of the Mall of Life before the intersection at the bottom of the two-storey bridge”. The delegation’s interlocutors also referred to “secret places of detention” at the border with Türkiye and the Syrian Arab Republic. None of these examples could be verified by the Committee or by any other entity or authority: according to available information, even high-ranking government representatives are denied access to such places. The State party has persistently rejected such allegations.
81.This situation simultaneously generates anguish, fear and hope for the victims, but also very high levels of mistrust towards State authorities by society in general. Urgent measures must be taken in that regard.
82. The Committee reiterates that the State party should “carry out an urgent, independent and impartial investigation into all allegations of secret detention”. To this end, the State party should set up an impartial and independent commission to carry out a fact-finding mission, with the participation of national and international independent experts, in charge of verify ing whether secret places of detention exist in the areas where they have been signalled , using all relevant technical means, such as satellite pictures and drones .
83. This commission should carry out its mission in consultation and coordination with all relevant stakeholders, in particular civil society organizations and victims, to ensure that existing allegations are duly taken into account. The mission should be followed by the release of a public report to shed light on the existence or non-existence of the alleged places of secret detention. Whenever such places are located or secret detentions are identified, the State party should establish a comprehensive list of all persons held and make it available to their relatives, and to the authorities in charge of the searches and investigations.
II.Attend to the needs of the victims and fully respect their rights
84.Under the legislation applicable to disappearances, whether a person is defined as a “victim” mainly depends on the ethnic, religious or national background of the person concerned, or on the time, location and circumstances of his or her disappearance. No disposition ensures that, in compliance with article 24 (1) of the Convention, “any individual who has suffered harm as the direct result of an enforced disappearance” is to be considered as a victim and therefore is to have access to the corresponding rights.
Participation by victims and civil society organizations
85.The national legal framework allows families and relatives to participate in the process of location and identification of the disappeared, but their participation remains limited. Article 6.2 of the Mass Graves Affairs Act refers to the participation of families in the excavations and identification processes carried out by Committee 6. Article 14 allows the Ministry of Human Rights to ask for the help of civil society organizations “to achieve the objectives of this law”. This competence is now under the Directorate of Mass Graves Affairs and Protection.
86.Projects such as those developed by the Mass Graves Directorate in coordination with UNITAD and the International Commission on Missing Persons have promoted such participation. When attending the exhumation in Sinjar, the delegation could attest to the presence of victims. Such practices must be guaranteed in all similar processes at all phases of the searches and investigations, so that the victims and their representatives can exercise their right to truth, justice and reparation.
87.According to available information, attendance by victims at court hearings remains rare. The Committee’s interlocutors attributed this situation to the lack of accessible information about the dates of hearings and to the fear of participating and meeting the perpetrators of the alleged enforced disappearance.
88.Overall, participation in the processes is hampered by a prevailing fear of reprisals, mainly explained by the supposed involvement of State authorities in the disappearance, or by the possible participation of perpetrators in the search and the investigation, or in the protection of mass graves.
89.The delegation also received testimonies of threats, reprisals and intimidation suffered by victims, human rights defenders, lawyers, civil society organizations and other individuals actively participating in the search and investigation process, in the form of threatening messages in phone calls, emails and letters and on social media. Other interlocutors referred to killings, such as the dramatic death of Jaseb Hattab, the father of human rights lawyer Ali Jassib (Jaseb), who was forcibly disappeared by a Popular Mobilization Forces faction in the city of Amarah in October 2019 in retaliation for his engagement in the search for his son and the investigation of his enforced disappearance. This trend is confirmed under the urgent action procedure, where reprisals have been signalled in 30 registered cases.
90.Faced with all these obstacles, many victims reluctantly refrain from reporting enforced disappearances, which makes them invisible and contributes to impunity for them. The Committee regrets that the witness protection bill under consideration in 2015 has not been further developed.
91.Activities of civil society actors are discouraged by the criminalization of their interventions. The Committee is concerned about the recent waves of criminal prosecution against human rights defenders and other actors for alleged “defamation”or “violation of public decency”. Such prosecutions are allegedly initiated against the authors of critical positions about State policies or actions, and publishing what is considered a defamatory statement constitutes an aggravating circumstance. The accused incurs a fine and imprisonment of up to seven years for defamation and up to two years for violation of public decency. According to testimonies received, the accused person’s defence is usually not fully taken into account. Such practices affect freedom of expression and discourage the involvement of civil society in activities related to the highly sensitive and controversial issue of enforced disappearance.
92.Another factor of threat and revictimization signalled to the delegation is what seems to be a widespread practice of extortion: in all the meetings with victims, some described how they have been requested to pay large amounts of money in exchange for photos or information, or for the release, of their disappeared loved one. In some cases, pictures of the disappeared person are indeed handed over, usually depicting them in places of detention that cannot be identified. Other times, the disappeared person is released. In other cases, the money is taken but the loved one never appears.
93. In compliance with article 24 of the Convention, t he State party must take legislative and judicial measures to ensure that any individual who has suffered harm as the direct result of a disappearance is officially considered as a victim and benefits from the rights contained in the Convention . The central role of victims in the search, investigation and reparation processes must be clearly stated in the applicable legislati on.
94. The State party must e stablish in law a transparent and efficient process that directly provides relatives of disappeared persons with the information necessary to facilitate their effective participation at any phase of the search, investigation, prosecution and reparation if they so wish. Information campaigns in that regard should be further developed through the media, in schools and through public services.
95. Support from civil society organizations must be encouraged, not only “at the request of national authorities”, but whenever the victims wish. The role of civil society organizations in helping victims to access relevant information, in preparing the victims’ participation at any phase of the procedures, and in supporting them, must be officially acknowledged and strengthened.
96. The State party must refrain from criminalizing civil society activities – starting with full recognition and implementation of the right to freedom of opinion and expression.
97. In the same vein , the State party must : (a) prevent all acts of intimidation and reprisal against all victims, human rights defenders, lawyers, civil society organizations, and other individuals actively participat ing in the search and investigation process ; (b) investigate all related allegations; and (c) punish identified perpetrators. Future legislation to introduce enforced disappearance as an autonomous crime must include provisions for these purposes.
98. Simultaneously, t he State party must implement a protection programme for victims, human rights defenders, lawyers, civil society organizations and other individual s actively participat ing in the search and investigation process , with a concrete and realistic action plan, adequate human and financial resources , and mechanisms of international cooperation and mutual assistance.
99. The State party must ensure that persons suspected of having participated in alleged enforced disappearance do not participate in any phase of the search, investigation processes or related activities, such as the protection of relevant evidence . It must also guarantee that all allegations of extortion suffered by the victims of disappearance are duly investigated and punished and that all relevant information is taken into account in the search and investigation processes.
100. No one who has cooperated with the Committee or provided it with information may be subjected to intimidation or reprisals. States parties have a primary responsibility to prevent such acts from being committed against individuals and groups who seek to cooperate, cooperate or have cooperated with the Committee.
Reparation and support for victims
101.Families of disappeared persons usually face particularly harsh living conditions, being deprived of their main sources of income, agricultural lands, and livestock, with the obvious concomitant negative socioeconomic effects. The transgenerational impacts of disappearances are also of great concern: beyond the psychological impacts that a disappearance entails, children of disappeared persons are frequently deprived of education for lack of resources and because they must work to support their families.
102.National legislation on reparation refers to compensation, restitution, rehabilitation, satisfaction and memorialization. Victims’ right to reparations generally depends on the profile of the victims and of the alleged perpetrators, and on the legal designation of the disappeared person as a “martyr”, which has different definitions throughout the legal framework.
103.The 2006 federal law on the Martyrs’ Foundation and the Law on the Rights and Privileges of the Families of Martyrs and Anfal Victims of the Kurdistan Region of Iraq initially focused on victims of the Baath Party regime and of the Anfal campaign. The Martyrs’ Foundation Law was amended in 2015 to extend its application to non-civilian members of the armed forces and paramilitaries in the post-2014 period. Under Law No. 20 on Compensation for Victims of Military Operations, Military Mistakes and Terrorist Actions, of 2009, compensation can be provided in cases of death, disappearance, disability, injuries, damaged property, and disadvantage related to job or education. In 2021, the State party adopted the Law on Yazidi Female Survivors, which sets up a plan for reparations for Yazidi, Christian, Turkmen and Shabak women, child and men survivors and victims of Da’esh. The Directorate on Yazidi Female Survivors’ Affairs, linked to the Ministry of Labour and Social Affairs, is responsible for providing the necessary care for those covered by the law, which is still at its initial phase of implementation.
104.The current legal framework sets forth various memorialization options, including commemoration, edifices and tombstones, ceremonies, monuments, statues and exhibitions. Commemoration events have been organized, such as those in honour of the victims of the Camp Speicher massacre of 12 June 2014. The Law on Yazidi Female Survivors stipulates 3 August as the national day for commemorating the crimes committed by Da’esh. Nonetheless, when victims and stakeholders were asked about existing monuments in honour of victims of disappearance, none was identified.
105.Compensation has been the main focus of the reparation strategies implemented. Progress has been made, especially for victims of military operations, military mistakes and terrorist actions. However, some categories of disappeared persons remain excluded from the compensation schemes, such as children of parents affiliated to the Baath regime, family members of those who served in the Baath regime in any capacity, including members of the security forces, court officials, teachers and civil servants, and anyone deemed to be affiliated with a terrorist group. The lack of explicit reference to enforced disappearance in the national legislation excludes survivors of disappearance or those whose deaths have not been established. This situation generates discrimination and revictimization, which are aggravated by the absence of a differential approach that would allow the compensation scheme to be adapted to the specific needs of the victims.
106.Despite the changes introduced by the 2015 amendment to Law No. 20 in an effort to speed up the process, the implementation of the compensation frameworks is still affected by delayed procedures, staff shortages, and insufficient financial means or available plots of land to provide access to the compensation that the victims are legally entitled to. Many governorates have a backlog due to the high number of claims submitted, and the victims still have to face practical problems to access the “martyrs’ framework”.
107.To comply with the evidentiary requirements, victims must obtain documents from different State authorities. This entails high costs, especially in terms of time and transportation, and becomes an unmanageable challenge for internally displaced persons and those residing in camps. Exceptions have been adopted to facilitate the procedure: in the case of property claims, for example, the Central Committee now allows victims from rural areas to submit a pledge by a village leader or other relevant authority to confirm their ownership if they do not possess official documents. Such exceptions remain limited.
108.Victims highlighted the suffering caused by such requirements. They particularly referred to the death certificate that they must submit in order to claim compensation, even when they still hope that their loved ones are alive. As one of the victims said: “I have had to go to more than 17 institutions to gather the documents. I was exhausted, and did not have any money. I had to borrow to travel [to the city] to visit the institutions. There, one man said: ‘You say your son is disappeared. Don’t be silly: he is surely dead. And I’m sure that you’re so happy now you can get some money. Lucky you…’ The worst thing is probably to have had to say that my son is dead to get the certificate. I cannot accept that, I am sure he is still alive, somewhere.” This suffering is further aggravated by the cost and the duration of the procedure.
109.The same death certificate must be presented by victims in order to access social support, and rehabilitation schemes. Social support can be provided to victims of disappearance who live below the poverty line, under the Social Protection Act (Act No. 11 of 2014). The Committee notes that publicly funded health-care facilities provide psychological care services for victims of human rights violations, but this remains insufficient.
110.Such support was actually not contemplated in the 2006 and 2009 laws, while article 5 of the Law on Yazidi Female Survivors includes the opening of “health and psychological rehabilitation centres” and “health clinics inside and outside of Iraq”. The Directorate on Yazidi Female Survivors’ Affairs is also delegated to provide education and employment opportunities for survivors. Nevertheless, the resources and structures in place do not allow the Directorate to meet the needs. The teams require specialized training and strengthening, and specific programmes must be set up. As regards education, for example,many victims who return to Iraq as teenagers or adults after years in the hands of Da’esh require the creation of appropriate structures to provide them with basic primary education.
111.The Committee notes the various initiatives by national and international civil society organizations to fill the existing gaps in terms of psychosocial support. This has been crucial for many of the victims. Unfortunately, their interventions are not part of an overall strategy, and they depend on the availability of external funding. Civil society actors and State agents expressed concerns about the lack of sustainability of such interventions.
112. The Committee considers it to be a priority that the State party adopt a comprehensive strategy of access to reparation, including compensation and rehabilitation, that is accessible to all victims of disappearance, regardless of their ethnic, religious or national origin, and of the time, location and circumstances – and the perpetrator – of the disappearance. This strategy must guarantee a differential approach that allows the reparation measures to be matched to the specific needs of the victims.
113. Such a differential approach must pay particular attention to the specific needs of women, children, older persons and persons with disabilities, and must take into account all personal characteristics of the victims that may be of relevance. In this regard, a specific strategy must be put in place to meet the educational needs of the victims, depending on their age and level of education, providing the authorities in charge with the necessary infrastructure, human and financial resources.
114. The State party should multiply memorialization efforts, such as the construction of memorials, the periodic holding of commemorative activities, and the inclusion of the issues of disappearance and enforced disappearance in mainstream education programmes. The daily sufferings of victims of past and present enforced disappearances must be widely acknowledged, at both the national and the international levels.
115. Measures must be taken to strengthen the confidence of the population in the institutions in charge of the reparation schemes – including through effective implementation of transparent accountability mechanisms, notably in cases of alleged corruption, mistreatment or inefficiency .
116. To this end, the State party must also clarify the entitlements of victims, including by developing a thorough, realistic and transparent analysis of the capacity of the system to provide access for all victims to the reparations they are entitled to, regardless of their ethnic, religious or national origin, and of the time, location and circumstances of the disappearance .
117. The submission of claims for reparation should be simplified, notably by enlarging the circumstances where additional flexibility is permitted when victims demonstrate difficulties in providing all the requested documentation. Such exceptions should be set out in a way that is clear to everyone , on the basis of transparent and broad public consultations.
118. T he requirement for a death certificate must be definit iv ely removed from all procedures until the fate of the disappeared person has been fully clarified. I nstead , t he State party must legally provide for the issuance of declarations of absence by reason of disappearance.
119. The State party must also ensure that psychological care and social support are systematically incorporated into all reparation schemes and relevant legislation, as a fundamental right of the victims, and provide the responsible authorities with the financial and specialized human resources necessary to properly carry out their duties.
III.Raise awareness about enforced disappearances in Iraq and strengthen the national capacity to address them
120.The scale of enforced disappearance in Iraq is usually not acknowledged. There is an urgent need to inform the Iraqi population and the international community about the scope and the reality of enforced disappearance, and about what to do when a person has disappeared. The Committee welcomes the initiatives undertaken, mostly by civil society organizations, to disseminate information on the subject. These initiatives should be strengthened and made more wide-ranging.
121.The Committee notes the inclusion of references to the Convention in the training programmes run by the Ministry of Defence, the Ministry of Interior, academies, the Police Academy, the High Commission for Human Rights, the Judicial Institute, the Judicial Development Institute, the Department of Corrections, the security, executive and judicial authorities in the Kurdistan Region, and law faculties, as well as in the programmes run by civil society and the Human Rights Department of the Ministry of Justice.
122.The Committee takes note of training programmes organized by national and international actors, and the organization of visits by some State employees to relevant institutions abroad to learn about good practices. However, these programmes do not always address the issue of disappearance in detail, are not part of a comprehensive, coordinated strategy, and often lack clear impact indicators. Overall, the discussions during the visit revealed limited knowledge about the Committee’s jurisprudence and past recommendations and about other related international standards.
123.The need for strengthening the knowledge of civil society organizations that could support victims in submitting their cases to national institutions and international human rights mechanisms also became clear in the discussions during the visit. The rights, obligations and procedures enshrined in the Convention are barely known, and corresponding violations remain underreported.
124. T he establishment and strengthening of teams responsible for search, investigation, prosecution and reparation procedures, and for actions to prevent disappearances, require the immediate implementation of specialized in-service training programmes. These programme s should ensure that the teams take on board national and international standards, tools, procedures , case law and regulations related to disappearance and the fight against impunity . They should set goals and indicators and schedule periodic follow-up to measure the ir impact and the implementation of the content taught.
125. The institutions involved in searches and investigations, in prosecuting cases and in providing support and reparation to victims and preventing disappearances should draw up periodic, detailed and coordinated workplans with clear goals that ensure the implementation of the established tools, allow the workload to be processed in a strategic and effective manner , and are subject to follow-up and accountability mechanisms. The defini ng of these goals should take into consider ation lessons learned and good practices identified at the national and international levels .
126. The Committee stresses the importance of including in university curricula the teaching and dissemination of, and research into, topics related to the disappearance of persons , from a multidisciplinary standpoint.
127. The State party should launch, as a matter of urgency, a broad national and international information and awareness-raising campaign about disappearances and enforced disappearances in Iraq. This campaign should widely disseminate clear and accessible messages about the mechanisms in place to address them, the results yielded and challenges encountered, and should counter the stigmatization and lack of support faced daily by victims. It should reach all sectors of the Iraqi population, including in schools and through the mainstream media, and the international community at large.
128. In line with articles 14 and 15 of the Convention, Iraq and other States parties should join efforts to strengthen their national capacities to address enforced disappearance, through the establishment of a sustainable community of experts involved in the investigation, prosecution and prevention of disappearances, and in providing support and reparation to victims. Such a platform should promote information-sharing on good practices and provide replies to States’ consultation s on related legislative, procedural, technical and strategic issues.
IV.Conclusion
129. In order f or Iraq to set up the basis for preventing and eradicating enforced disappearance s efficiently , it must urgently deal with the issues identified in the two parts of the present report, focusing on the nature of the crime , regardless of its date of occurrence or the profile of the victim s .
130. The State party must address all the points highlighted in the present report s with a short-, medium- and long-term action plan to be implemented in cooperation with national and international actors, transparently, and guaranteeing full accountability of the responsible authorities . To this end, it should establish a mechanism for follow-up to the implementation of the recommendations, involving civil society and all State and autonomous authorities.
131. T he Committee expresses its appreciation for the cooperation and facilities provided by Iraq before and during the visit. It trusts that the State party will fulfil its obligations under the Convention, implement the recommendations contained in the two parts of report and address the scourge of enforced disappearance faced by Iraqi society as a whole . The Committee reiterates its full willingness to cooperate in this process.
132. Pursuant to rule 97 (2) of the Committee ’ s rules of procedure, the State party has four months in which to submit any observations it may wish to make in relation to the present report. These observations will be published on the Committee ’ s web page. After this period has passed, the Committee will follow up on the implementation of its recommendations in accordance with article 29 (4) of the Convention and rule 98 of its rules of procedure, in coordination and cooperation with the State party and the various actors involved.