Iraq

The Definition of Terrorism in Domestic Law

Every criminal act committed by an individual or an organized group that targeted an individual or a group of individuals or groups or official or unofficial institutions and caused damage to public or private properties, with the aim to disturb the peace, stability, and national unity or to bring about horror and fear among people and to create chaos to achieve terrorist goals. Article 1, 2005 Anti-Terrorism Law.

This definition is the key one in domestic law pertaining to terrorism. The actus reus and mens rea of a terrorist crime are so broad that they can be met by doing nothing more than, for example, daubing slogans on a building calling for an independent Kurdistan. This could be deemed by a judicial authority to be disturbing the country’s stability and national unity.

As noted below, in 2022 the United Nations Committee against Torture declared that the broad definition of terrorism in the 2005 Law "falls short of international standards".

Adherence to Global and Regional Terrorism Treaties

Iraq has adhered to all of the main United Nations treaties on terrorism.

At the time of adherence, Iraq made a declaration that it would interpret the 1973 Convention to protect representatives of national liberation movements recognized by the League of Arab States or the Organization of African Unity.

Iraq has also adhered to the Arab and Organisation of Islamic Cooperation (OIC) treaties on terrorism.

Laws and Penalties for Terrorist Offences

The Constitution determines that: 

Any entity or program that adopts, incites, facilitates, glorifies, promotes, or justifies ... terrorism ..., especially the Saddamist Ba'ath in Iraq and its symbols, under any name whatsoever,shall be prohibited.Art. 7(1), Constitution of Iraq. 

It further stipulates that: "The State shall undertake to combat terrorism in all its forms, and shall work to protect its territories from being a base, pathway, or field for terrorist activities."Art. 7(2), Constitution of Iraq.

The primary federal legislation on terrorism is the 2005 Law.

There is also a separate law in the Kurdistan Region of Iraq: the 2006 Law on the Combatting of Terrorism in the Iraq Kurdistan Region. This law criminalizes a wide range of offenses deemed to constitute terrorism. Article 2 introduced the death penalty as a mandatory punishment for eight offences:

• establishing, directing, or organising a group with the intention of committing acts punishable under the law;
• ideologically or politically motivated assassinations;
• the use of explosive devices or other materials to further terrorist ends if such acts result in the death of one or more persons;
• the holding of persons as hostages with the intention of influencing the actions of the regional authorities or other governmental or non-governmental institutions in the region, or creating a climate of fear;
• the killing of persons enjoying international or diplomatic protection, and personnel working for foreign companies or governmental and nongovernmental organizations, with terrorist motives;
• receiving military training from, or becoming a member of, groups that commit terrorist acts;
• cooperating with a foreign state or with groups outside the region in order to commit terrorist acts punishable under the law; and
• facilitating the entry or exit of terrorists to and from the region, or harbouring or assisting them, or knowingly providing them with information for use in planning terrorist acts.

Article 3 prescribes life imprisonment for eight other offences, and Article 4 provides for custodial sentences not exceeding 15 years for another six criminal offences. Article 13 of the Anti-Terrorism Law, while providing for the “legal and fair treatment” of an accused at all stages of an investigation, including provision of defense counsel, also permits the reliance on confessions extracted under duress, threats, or torture if corroborated by other evidence.

Counterterrorism Capacities and Policies at Domestic Level

In its 2015 Concluding Observations on Iraq, the Committee against Torture expressed its deep concern at information by the OHCHR indicating serious human rights violations by the Iraqi security forces and affiliated militia groups in the conduct of military operations against Islamic State. These included grave violations of the Convention against Torture, such as torture and ill-treatment, enforced disappearances, and extrajudicial killings of prisoners and civilians.

Compliance with Human Rights and Humanitarian Law Obligations

Views of UN bodies

The UN Assistance Mission for Iraq (UNAMI) and the Office of the United Nations High Commissioner for Human Rights (OHCHR) have expressed serious concerns concerning Anti-Terrorism Law No. 13 of 2005 and its conformity with international human rights standards. UNAMI/OHCHR has conducted advocacy with the Government of Iraq, the Parliamentary Human Rights Committee, law enforcement officials, the judiciary, and non-governmental organisations on the need to amend the law to ensure it complies with international human rights standards. UNAMI/OHCHR also has concerns regarding the anti-terrorism law of the Kurdistan region of Iraq and its lack of conformity with international human rights standards.

Iraq has been on the forefront of the fight against Islamic State. It also made considerable efforts to ensure accountability for the atrocities committed against Iraqis by Islamic State fighters. From January 2018 to October 2019, the judiciary processed more than 20,000 terrorism-related cases, with thousands pending as of January 2020. In their pursuit of justice, Iraq has stated its commitment to uphold the right to a fair trial.

In a report issued in January 2020, UNAMI stated that it generally observed efficiency, structure, and order in the conduct of the judicial proceedings it monitored. Nevertheless, there were serious concerns that basic fair trial standards were not respected in terrorism-related trials. The main areas of concern included:

• Violations of fair trial standards on the basis of ineffective legal representation, lack of adequate time and facilities to prepare a case, and limited possibility to challenge prosecution evidence 
• An overreliance on confessions, with frequent allegations of torture or ill-treatment that were inadequately addressed by courts
• Prosecutions under the anti-terrorism legal framework – with its overly broad and vague definition of terrorism and related offences – focused on “association” with or “membership” of a terrorist organisation, without sufficiently distinguishing between those who participated in violence and those who joined Islamic State for survival and/or through coercion, and with harsh penalties that failed to distinguish degrees of underlying culpability 
• Under anti-terrorism laws, the death penalty is mandatory for a wide range of acts that do not meet the “most serious crimes” threshold, which is necessary for imposing such a sentence. The overall findings of the research conducted by UNAMI also indicated the imposition of the death penalty following unfair trials. 

Committee on Enforced Disappearances

In 2020, the Committee on Enforced Disappearances stated in its Concluding Observations on Iraq’s provision of additional information to its periodic report that reports indicated that terrorism suspects detained under the Federal 2005 Anti-Terrorism Law were arrested without a warrant and denied access to a lawyer, including during interrogation by police or other security forces, and that their relatives are not informed of their whereabouts.

Committee against Torture

In 2022, in its second Concluding Observations on Iraq’s reporting under the Convention against Torture, the Committee against Torture expressed its concern about reports that, despite the existing legal provisions regarding the inadmissibility of evidence obtained by unlawful means, coerced confessions may be admitted as evidence in court, "notably in terrorism-related cases, including in the case of children".

The Committee also remained concerned about alleged torture, ill-treatment, arbitrary arrest, unlawful detention and enforced disappearance committed by Iraqi forces and affiliated armed actors during the military operations and counterterrorism campaigns and the lack of information on investigations and prosecutions in that regard. It noted that the Anti-Terrorism Law was being revised, but declared that the broad definition of terrorism, which "falls short of international standards, continues to be applied". CAT Concluding Observations on Iraq, 2022, paras. 14 and 18.

In 2015, in its first Concluding Observations on Iraq’s initial report under the Convention, the Committee had declared that it remained deeply concerned at a UN report detailing “serious human rights violations by the Iraqi security forces and affiliated militia groups in the conduct of military operations. These include grave violations of the Convention, such as torture and ill-treatment, enforced disappearances and extrajudicial killings of prisoners and civilians”. 

The Committee also remained concerned at

information pointing at a consistent pattern whereby alleged terrorists and other high-security suspects, including minors, are arrested without any warrant, detained incommunicado or held in secret detention centres for extended periods of time, during which they are severely tortured in order to extract confessions. According to allegations received by the Committee, the detention facility at the former Al-Muthanna military airport in West Baghdad, which was uncovered in 2011, is still open and continues to operate secretly under the control of the 54th and 56th Brigades of the army.

Views of Civil Society

In its World Report 2022, Human Rights Watch stated that:

Criminal trials of defendants charged under Iraq’s overbroad terrorism law, most often for alleged membership in the Islamic State (ISIS), were generally rushed and did not involve victim participation. Convictions were based primarily on confessions including those apparently extracted through torture. Authorities systematically violated the due process rights of suspects, such as guarantees under Iraqi law that detainees see a judge within 24 hours, have access to a lawyer throughout interrogations, and that their families are notified and be able to communicate with them. 

Based on the criminal age of responsibility in the penal code, authorities can prosecute child suspects as young as 9 on terrorism charges in Baghdad-controlled areas and 11 in the Kurdistan Region of Iraq. This violates international standards, which recognize children recruited by armed groups primarily as victims who should be rehabilitated and reintegrated into society, and call for a minimum age of criminal responsibility of 14 years.

According to a Ministry of Justice statement in September, authorities were detaining close to 50,000 people for suspected terrorism links, over half of them sentenced to death. Informed sources told Human Rights Watch that at least 19 executions had been carried out as of September. Those imprisoned for ISIS affiliation reportedly include hundreds of  foreign women and children, though children are not sentenced to death.

Many defendants were detained because their names appeared on wanted lists of questionable accuracy or because they were family members of listed suspects.