Several factors appear to underlie the denial of this right, including the reluctance of some lawyers to represent and defend people suspected or accused of terrorism or other serious crimes, and fears that this could expose the lawyers themselves to reprisal or other attacks–an unsurprising concern in a context where a number of lawyers and also judges have been abducted and/or killed and others have been told that they will be killed if they continue to defend certain clients.
Scores of people have been detained without charge or trial in the Kurdistan region of Iraq, some for years. Some have been tortured or otherwise ill-treated, and some have been victims of enforced disappearance, as the authorities refused for years to provide their families with information on their fate or whereabouts.
Until early 2008 the KRG held hundreds of detainees without charge or trial on suspicion of belonging to or sympathizing with Islamist groups, in particular Ansar al-Islam. By September 2008 the majority of these had been “pardoned” and released. However, scores have remained in detention in prisons controlled by the Asayish, the KRG’s main security agency, in the three Kurdish governorates administered by the KRG – Erbil, Sulaimaniya and Dohuk.
Many of those detained in recent years were arrested because of their suspected membership of or support for banned organizations such as Ansar al-Islam as well as legal political parties, including the Kurdistan Islamic Movement and the Islamic Group. Some were active members of these organizations at the time of their arrest; others had reportedly ceased their involvement, some a long time before their arrest. Still others were detained, weeks or even months after they had surrendered to the Patriotic Union of Kurdistan (PUK)’s Peshmerga armed forces, in 2003 following armed clashes.
Families of a number of long-term detainees have been campaigning for their release. In mid-2009 they staged sit-ins outside the Kurdistan parliament building in Erbil. They also marched towards the KRG Presidency in Salaheddin, but were prevented by the security forces from getting near the building.
A number of the detainees who were interviewed by Amnesty International delegates who visited the Kurdistan Region in June 2010 said that they were from Mosul, outside the KRG, and had been detained by the Asayish or Peshmerga either in Mosul or nearby villages located in areas bordering the KRG which are disputed between the KRG and Iraq’s federal government in Baghdad. Some of the detainees said they had been detained by US forces and then handed over to the KRG.
Amnesty International was told by the directors of the Asayish in Erbil and Dohuk that many of the detainees being held without trial had been arrested before the enactment of the KRG’s anti-terrorism law in 2006 (Law No. 23 of 2006, Combating Terrorism in the Kurdistan Region of Iraq) and that they could not be prosecuted under this law for alleged involvement with Islamist armed groups as this would mean applying the law retroactively. Nor, they said, could such detainees be charged under the Iraqi Penal Code because it does not contain specific provisions criminalizing terrorism. In fact, however, the Penal Code sets out a range of criminal offences relating to the internal and external security of the state that could potentially be used if the KRG authorities wished genuinely to bring the detainees before the courts and allow them the opportunity to obtain their release (On 27 September 2003, the then Kurdistan National Assembly issued Law No. 21 amending Article 156 of the Iraqi Penal Code. The amended Article provides that anyone undermining the security and stability of the Kurdistan region can face up to life imprisonment. Seehttp://www.perleman.org/files/articles/170208074807.pdf) In any case, the reasons cited by the directors of the Asayish, which the KRG’s then prime minister acknowledged to Amnesty International in 2009 is itself not fully accountable under the law, do not justify arbitrary detention, which is prohibited under international human rights law.
The Iraqi Human Rights Ministry documented 574 allegations of torture during 2009, including 56 against the Peshmerga. These documented cases across Iraq almost certainly represent no more than the tip of a very large iceberg. (Iraqi Ministry of Human Rights, 2009 Annual Report, p84).
Here is the full report (.pdf) with a complete list of Amnesty International’s recommendations, details of the 2008 Amnesty Law, extensive endnotes and photographs.
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