GICJ denounces institutionalized racial discrimination in Iraq in a report to the Committee on the Elimination of Racial Discrimination (CERD)
Mr. Naji Haraj, Executive Director of GICJ, reporting on the situation in Iraq.
CERD concerned about human rights violations by Iraqi forces and militias and the limited number of ethnic minorities in public office
On the occasion of the 97th session of the Committee on the Elimination of Racial Discrimination (CERD) during November 2018, Geneva International Centre for Justice (GICJ) contributed to a review on racial discrimination in Iraq and met with members of the Committee to discuss several areas of concern and provide recommendations on actions Iraq should take to end racial discrimination in accordance with its international obligations.
In a written report to CERD, GICJ provided a background on Iraq and its historical lack of racial discrimination, compared to the current situation. The report explains how Iraq violates its legal obligations in several ways, and in particular:
• Iraq engages directly in racial discrimination.
• Iraq supports racial discrimination by third parties.
• Iraq fails to use ““all appropriate means” to end racial discrimination.
Following the review, the Committee issued its concluding observations about Iraq. The observations raised numerous concerns about racial discrimination in Iraq, including several related to issues brought up by GICJ, such as:
• Allegations of human rights violations by Iraqi forces and affiliated militias including summary executions, enforced disappearances, torture, destruction of homes and other properties, and targeting of ethnic groups
• Limited representation of ethnic minorities in public office including the quota system established by the Electoral Act
• Some internally displaced persons, including Arabs, being prevented entry to the Kurdistan Region on the basis of ethnicity
• Lack of data regarding complaints of discrimination, which “may reveal a lack of suitable legislation, poor awareness of the legal remedies available, a lack of trust in the judicial system, a fear of reprisals or a lack of will on the part of the authorities to prosecute the perpetrators of such acts.”
GICJ believes that the Committee’s observations, if seriously addressed by Iraq, would truly reduce the frequency and scope of racial discrimination in Iraq, de-institutionalize the discrimination that now exists, and hold perpetrators accountable, thus resulting in less racial discrimination, reduced impunity, and real justice for victims of discrimination.
Key Words: Human Rights, Racial Discrimination, Iraq, CERD
Country / Region: Iraq – Middle East
CERD 97th Session, 26 November – 14 December 2018
The Committee on the Elimination of Racial Discrimination (CERD or Committee) conducted its regular review of Iraq on 29 – 30 November 2018 during its 97th Session in Geneva, Switzerland. Geneva International Centre for Justice (GICJ) engaged with the Committee during this review by providing a report that describes a variety of issues related to racial discrimination in Iraq and meeting with members of the Committee to discuss several areas of concern.
The purpose of this report is to provide a summary of the CERD process of reviewing Iraq’s report and GICJ’s participation in that process. The report describes GICJ’s engagement with the Committee, summarizes the interaction between the Committee and the Iraqi delegation during the public review, and provides some concluding observations on the part of GICJ.
Prior to the beginning of the CERD session, GICJ submitted a shadow report to CERD to ensure the Committee members were aware of the racial discrimination occurring in Iraq.1 The report provided a background on Iraq and its historical lack of racial discrimination before laying out the current situation on the nature of discrimination now occurring in Iraq. The report explained Iraq’s legal obligations under the Convention on the Elimination of All Forms of Racial Discrimination (Convention) and described how it has been violating those obligations in three ways:
1. Iraq engages directly in racial discrimination,
2. Iraq supports racial discrimination by third parties, and
3. Iraq fails to use “all appropriate means” to end racial discrimination.
The report concluded with a series of recommendations for Iraq and one for the UN that addressed a range of issues contributing to and resulting from racial discrimination in Iraq. The recommendations were:
Recommendation 1 Iraq should ban militias
Recommendation 2 Iraq should report on the victims of enforced disappearance
Recommendation 3 Iraq should remedy atrocities
Recommendation 4 Iraq should establish a law against hate speech by state officials
Recommendation 5 Iraq should dismantle the ethnicity-based leadership allocation system
Recommendation 6 UN should ensure that accountability systems address all perpetrators of atrocities
GICJ believes that the recommendations, if implemented, would truly address the frequency and scope of racial discrimination in Iraq, de-institutionalize the discrimination that now exists, and hold perpetrators accountable, thus resulting in less racial discrimination, reduced impunity, and real justice for victims of discrimination.
Presentations to CERD
Before formally discussing the report of Iraq, the Committee met on 27 November 2018 with NGOs, including GICJ, who had requested to make statements about the situation of racial discrimination in Iraq. On behalf of GICJ, Mr. Naji Haraj, Executive Director, and Mr. Christopher Gawronski, Human Rights Officer, presented a statement describing a variety of issues related to racial discrimination contained in GICJ’s report to the CERD. Mr. Haraj discussed the context of Iraq, including its historical background and the impacts of the 2003 invasion by the US and UK. He explained how Iraq was an advanced country with education, health care, industry and agriculture that was the envy of the region. Since its independence in 1932, it never had institutionalized racial discrimination. In spite of changes in government and periodic political turmoil, the government of Iraq had always included members of many different ethnic groups and ethnicity was not a factor in the distribution of government jobs, services, and benefits. All this changed after the 2003 invasion.
Mr. Haraj explained how the invading countries constructed a new governance arrangement for the country based on allocation of positions by ethnic groups to correct for what they alleged to be past injustices against certain groups. During the occupation, laws and practices were established favouring certain groups, thus generating discrimination against other ethnic groups. For example, the US administrator of the Coalition Provisional Authority began, and the UN missions in Iraq have continued, a practice of consulting with Shi’a religious leaders on matters related to governmental operations. Although illegal under the Constitution of Iraq, this discriminatory approach to governance has been fostered by subsequent Iraqi governments and is now the unofficial way things are done. However, the majority of the Iraqi population rejects this discriminatory approach to governance. Anti-government demonstrations, even in regions that supposedly benefit from the system, show that citizens are calling for the removal of these sectarian policies and a return to treating all groups equally.
Following on this background, Mr. Gawronski discussed Iraq’s obligations under the convention, the nature of racial discrimination in Iraq, and provided several examples of the tragic impact of discrimination. Iraq falls woefully short of satisfying its obligations. He explained that Iraq consistently violates three fundamental obligations: 1) Iraq directly discriminates through state action, 2) Iraq supports and defends racial discrimination by third parties, and 3) Iraq does not use all appropriate means to prohibit and end racial discrimination by third parties. Also, although religious discrimination is not one of the issues covered by the convention, religious preferences can result in racial discrimination in Iraq in two ways. First, there are many ethnic groups where their religion is an integral part of their ethnic identity (referred to as a “ethno-religious” group), so discrimination against their religion is also ethnic discrimination. Second, in Islam certain families are recognized as being descended from the Prophet Mohammed or other prominent historical figures. Such families are favoured by the government, resulting in discrimination against other families, which is discrimination based on “descent” and is covered by the convention.
Mr. Gawronski then proceeded to provide several examples of situations where Iraq had failed to satisfy the three fundamental obligations mentioned above. For example, Iraq directly discriminated through state action by prosecuting and executing individuals in connection to the Camp Speicher massacre in a trial that was widely criticized. As a result, people who were in fact not connected to the massacre were executed as an act of revenge against persons based on their ethnicity. Iraq supports and defends racial discrimination by third parties through its official sanction and protection of various militia groups. These militias have repeatedly destroyed and looted houses, and kidnapped and killed people on the basis of their ethnicity and familial affiliation. This includes a 2016 situation, reported by GICJ to the UN High Commissioner for Human Rights, where 643 persons were kidnapped in Saqlawiya by militias. Finally, Iraq does not use all appropriate means to stop racial discrimination. Instead, the government chooses to explain away cases of ethnically-motivated discrimination and human rights abuses as misbehaviour by isolated individuals or Daesh fighters disguised as official security forces. Even if these excuses were true, they do not excuse Iraq’s obligations to use “all means appropriate” to end such discrimination.
Immediately after hearing the statements of GICJ and other NGOs, members of the Committee engaged the NGO representatives in a question and answer session that allowed the NGOs to clarify and elaborate on several issues of particular interest to the Committee. Later, the Committee’s rapporteurs for Iraq met with the NGOs on 29 November 2018 to briefly discuss some of the issues and examples raised in the statements. GICJ provided the rapporteurs with its specific recommendations for Iraq and responded to several questions about the issues presented in its statement. Following this brief meeting, the Committee began its formal review of Iraq and its national report at a public meeting attended by GICJ and other NGOs.
Review of Iraq
The Committee’s formal, public review of Iraq took place from 29 – 30 November 2018. The process consisted of a presentation of the national report2 by the Iraqi delegation followed by an interactive dialogue with questions posed by members of the Committee and responses from the delegation.
Mr. Hussein Al-Zuhairi, Deputy Minister of Justice and head of the Iraqi delegation, began Iraq’s presentation with an account of the atrocities committed by Daesh against civilians, especially ethnic minorities. Mr. Al-Zuhairi said that Iraq is ashamed of what happened but is not responsible for what happened. He then described the government’s investigation of complaints against Iraqi forces for acts committed during the liberation of areas from Daesh and claimed the investigations and any prosecutions are being conducted lawfully before the appropriate tribunals. With regard to victims of abuses, the Deputy Minister claimed that the government provides special services to kidnapping victims when they are released. He also said the government provides resources and services to camps of internally displaced persons (IDPs) and conducts de-mining activities in former war zones. According to him, the creation of the Kurdish government and the allocation of seats in the Kurdish parliament to a range of religious and ethnic groups show how minorities are represented in political life. Also, he suggested that the composition of the Iraqi delegation demonstrates that cooperation exists between the central government and the Kurdistan region. The head Kurdish delegate then presented recent activities in the Kurdistan region (KRG). He claimed that KRG efforts were central in removing Daesh from the region and that KRG has accommodated many refugees from other parts of Iraq, including large groups of ethnic minorities. He said the destruction of so many houses in the region is mostly the result of coalition actions and Daesh activities including many suicide bombers. Regarding development of the report to CERD, Mr. Al-Zuhairi claimed that the Government held extensive meetings with civil society and the national human rights institution (NHRI) and conducted broad consultation within the government and with parliament. In closing, he said that Iraq is characterized by wide diversity but has suffered from an atrocious war and terrorist gangs.
Questions from the Committee
The interactive dialogue with the Committee was guided by the Committee’s special rapporteur for Iraq, Mr. Alexei Avtonomov, with all Committee members participating in questioning the delegation.
One series of questions related to how obligations under the Convention are implemented and incorporated into the domestic legal order. The Committee noted that many laws and court decisions are mentioned in the national report, but there was a lack of information about actual implementation of the laws. The recent Anti-Trafficking Law and the new Labour Law provisions prohibiting forced labour were mentioned as examples. There were questions about the status of the Convention (and international law generally) in the domestic legal order, as well as compliance with regional human rights instruments including the Arab Charter on Human Rights. The Committee sought more information about how Iraq’s NHRI complied with the Paris Principles and whether resources and staffing were appropriate for it to operate independently. Also, the Committee stressed the need for statistical data disaggregated by ethnicity, gender and age, which was previously requested and not received by the Committee.
A variety of the Committee’s questions focused on specific population groups within Iraq, including Black Iraqis, Roma, Yazidi and Turkmen, as well as Arabs living in Kurdistan. The Committee was generally interested in knowing what the government does to address historical discrimination, but also asked about particular allegations of legal barriers faced by certain groups such as discrimination in work and education, refusal to register marriages, and vehicle plates that identify ethnicity. A few questions asked about the regulation of marriage (especially the different rights for men and women) and how it impacted various groups differently. There was a question about whether removal of certain Iranian refugees comported with the principle of nonrefoulement, and also a question, based on GICJ's statement, about how the government has responded to a report of over 600 victims of enforced disappearance from families who were targeted by militias in Saqlawiya.
Numerous questions related to issues that impacted multiple populations groups. One Committee question asked whether there is a distribution of power or allocation of government leadership positions that effectively excludes certain groups from participation. A few questions asked about the banning of the Ba’ath Party and its differential impact on certain groups. There were questions about how identity cards are issued and renewed and what information the cards contain. Several questions pertained to the language law and the ability for children to receive education in their own minority language. Other education-related questions asked if cultural diversity and tolerance were part of school curricula and how the government provided such education. Numerous questions related to domestic workers, including their rights, contract arrangements, labour inspections and the confiscation of passports. Significantly, the Committee asked about allegations that the fight against Daesh has been used as an excuse to destroy certain communities and stressed that anti-terrorism activities cannot compromise human rights.
Finally, the Committee asked a few procedural questions. It noted that the Office of the High Commissioner for Human Rights has received many complaints from civil society about the government’s activities and wanted to know what role civil society had in drafting the national report. The Committee also noted that it had requested an interim report after the its last review of Iraq but did not receive one.
Responses from the Delegation
The Iraqi delegation spoke at length in response to the Committee’s questions with different members of the delegation speaking to different issues.
Regarding the questions about international law in the domestic legal order, the delegation said a bill is currently being reviewed that would allow for the incorporation of treaties into domestic law. In addition, they said that Iraq continues to examine the possibility of signing on to additional human rights instruments. On the implementation of laws, the delegation explained how child labour and sexual harassment is punished, and that human trafficking is handled through coordination among various government ministries and chaired by the Interior Ministry. According to Iraq, its NHRI, the Iraq High Commission for Human Rights, is in line with the Paris Principles and independently controls its own staff and assets and reports directly to Parliament rather than to the government. The delegation noted that statistics in Iraq have been lagging since 2003, so it is not possible to provide a breakdown of information as requested by the Committee.
In talking about specific groups, Iraq started out by noting that Iraqi law prohibits any type of discrimination, and the criminal law governs this, but added that the Iraqi government must protect all groups within society not just minorities. The delegation claimed the government had not received any complaint or allegation about poor treatment of Roma and that there is no discrimination against Roma, Iraqis of African descent or other communities. Even so, the Iraqi Parliament had considered a draft law on the rights of Turkmen, but this was suspended and will likely be redrafted to be more comprehensive and include all minority groups. Regarding vehicle plates, the KRG delegate claimed the registration of vehicles has been an important administrative measure used by Kurdistan to take in hundreds of thousands of refugees. As for Ashraf Camp [a community of Iranians], the delegation claimed the government had relocated its members to Baghdad and allowed them to return to the countries of their choice, respecting the principle of nonrefoulement. On the issue of enforced disappearances, the delegation asserted that a Ministry of Justice department investigates allegations of missing persons seriously and swiftly and that the government has no reason to hide such crimes. However, the delegation said that, unfortunately, complaints often have incomplete or inaccurate information, so the government must consider whether the allegation is untrue and originating with terrorist organizations.
The delegation members spoke repeatedly about gender equality and protection of women. They said that by Iraqi law, men and women enjoy equal rights in terms of employment, and they claimed that full wages and benefits are provided to women even during pregnancy and after childbirth. They explained, regarding marriage, that Islam is the ultimate law in Iraq, which means that the Islamic principle that a Muslim woman cannot marry a non-Muslim man cannot be changed by law. Iraq believes there is no contradiction between the principles in the constitution and the principle of equality between men and women; therefore, the legal situation is, in its opinion, in line with the Convention. The delegation also described assistance it said is provided to women and families, including numerous shelters in Kurdistan, mobile teams in IDP camps to resolve family disputes, and measures to provide support to Yazidi women and girls who were victims of abuse and sexual violence. Also, according to the delegation, women in Kurdistan participate in significant numbers in different government positions, especially in the judicial authorities.
The delegation members had much to say about politics and the creation of governments. They said the new government has managed to overcome sectarianism through a national unity government made up of several different parties and people representing a number of different communities in the country. One block in parliament allegedly includes Kurds, Shi’as and Sunnis, and a second block includes other groups. These blocks are both coalitions of groups, which, they claimed, has helped overcome sectarianism based on religion and ethnicity. According to the delegation, all Iraqi governments attempt to include all groups and minorities as much as possible. Non-ministerial functions are assigned by the Parliament rather than the government. The prohibition of the Ba’ath Party is stipulated in the constitution; in addition, this party and any other group calling for racism and dictatorship are prohibited by law.
Many other broad issues were addressed as well. The delegation claimed that a new national identity card was implemented simply to verify that a person is an Iraqi citizen and therefore eligible for certain benefits. There is no longer a mention of religion on the ID card in order to prevent discrimination on this basis. They talked about the government department responsible for protecting and managing the mass graves discovered in the area previously controlled by Daesh. The mass graves contain bodies of victims of both the dictatorship and Daesh, and according to the delegation members the exhumation process is in line with local customs and international standards. They said that, by law, survivors of human trafficking are to be provided rehabilitation services in special shelters. Additionally, they said a shelter has been established in Baghdad to provide services to many victims of Daesh. The delegation asserted that Iraq faces an ongoing problem of different ethnic groups claiming the same territory as their own. Article 140 of Iraqi constitution refers to this issue and requires a solution be developed for the issue. However, the right to ownership of land is also safeguarded under the constitution, so land ownership policies cannot lawfully be used to create demographic change.
The Iraqi constitution provides all religious groups with the right to practice their religions. According to the delegation, new diwans have been set up for each of the religious groups, sponsored by the government, to assist each of the groups and provide them with protection and ensure their equal rights. The delegation claimed that all education curricula have been based on humanitarian values, that the constitution guarantees the education of minorities in their language in governmental institutions, and that minority language teaching occurs in both public and private schools in the regions where minorities reside. The delegation members said the government takes protection of migrant workers seriously. They claimed that migrant domestic workers have contracts that include such issues as leave time and other benefits and that the law requires employers to provide information about migrant workers. However, they said the home is a sacred place, so inspections and working hours cannot be the same as for other workers.
The head of delegation made a dramatic point when asserting that areas formerly controlled by Daesh were taken back by the local population at great personal cost, although he only mentioned the Shi’a population. He asserted that Daesh often infiltrates the local population, but claimed the government agrees that the means used to address this problem must respect human rights. He mentioned that Security Council Resolution 2379 governs the international commission on inquiry whose task is to collect evidence allowing the government to bring members of Daesh to trial. Iraq desperately needs funding from the international community to help with this legal process and the eventual prosecution of Daesh operatives.
Finally, as to the procedural questions, the delegation said that a special government unit has been created to encourage the participation of civil society. In Kurdistan, about 150 civil NGOs are active. However, they believed that the media sometimes poorly reports on the situation in Iraq and that some NGOs have not been professional or accurate in their reporting. They also explained that there was no interim report after the last review because the former Ministry for Human Rights had been closed and its responsibilities transferred to the Ministry of Justice, so there was a delay in providing the report.
Committee’s Concluding Observations
After the review session, the Committee issued its unedited concluding observations on 14 December 2018.3 The observations cover a range of topics, and the observations related to issues raised by GICJ are summarized below.
• The Committee noted that Iraq provided no information about complaints of racial discrimination and observed that “the absence of complaints and legal actions for racial discrimination may reveal a lack of suitable legislation, poor awareness of the legal remedies available, a lack of trust in the judicial system, a fear of reprisals or a lack of will on the part of the authorities to prosecute the perpetrators of such acts” (para. 15).
• The Committee was concerned about allegations of human rights violations by Iraqi forces and affiliated militias including several types of acts mentioned in GICJ’s report such as summary executions, enforced disappearances, torture, destruction of homes and other properties, and targeting of ethnic groups (para. 17(e)).
• The Committee noted its concern at the limited representation of ethnic minorities in public office including the quota system established by the Electoral Act (para. 25).
• The Committee noted that some internally displaced persons, including Arabs, are prevented entry to the Kurdistan Region on the basis of ethnicity (para. 37(c)).
GICJ Observations and Recommendations
GICJ was pleased to be able to participate in the CERD review of Iraq. In general, opportunity for NGO participation is critical to providing the Committee with actual situations to better understand the implementation of the Convention by Iraq. The same applies to all treaty bodies.
Regarding the Committee’s process for the Iraq review, GICJ commends the efforts of the Committee’s special rapporteur for Iraq and the other Committee members who met privately with NGOs and spent time addressing issues raised in the NGO reports. These members picked up on critical issues in the GICJ and other NGO reports and used the information in posing questions to the Iraqi delegation. However, because of the way the Committee handled public NGO input, the NGOs addressing Iraq’s review had much less time to make public statements than the NGOs addressing the reviews of other countries. The Committee should consider allocating more time to NGOs in the future and creating a fairer distribution of time among all NGOs making statements.
With regard to Iraq’s national report, unfortunately the reality on the ground is contrary to the government’s official description of the situation. GICJ continues to be disappointed with the government’s failure to pursue real solutions to widespread racial discrimination problems. Iraq relies almost entirely on drafting policies and laws with words that make it look good while ignoring, condoning, or actively participating in racial discrimination itself. Iraq’s continued refusal to truly address problems of discrimination means the violation of the human rights of millions of Iraqis will continue with impunity. GICJ urges the Committee and the international community to hold Iraq to account for its failure to faithfully implement its obligations under the Convention and to push Iraq to bring all perpetrators of racial discrimination to justice.
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Click here to read Urgent Letters and Appeals on Iraq by GICJ.
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