Reparations for the Victims of Conflict in Iraq

Clara Sandoval and Miriam Puttick Reparations for the Victims of Conflict in Iraq Lessons learned from comparative practice © Ceasefire Centre for Civilian Rights and Minority Rights Group International November 2017

This report has been produced with the financial assistance of the Swiss Federal De- partment of Foreign Affairs and the European Union. The contents of this report are the sole responsibility of the publishers and can under no circumstances be regarded as reflecting the position of the Swiss FDFA or the European Union.

Cover photo: Civilians walk by the destroyed Al-Nuri Mosque as they flee from the Old City of Mosul on 5 July 2017, during the Iraqi government forces’ offensive to retake the city from ISIS fighters.

Dr Clara Sandoval is Senior Lecturer at the School of Law, University of Essex. She is Acting Director of the Human Rights Centre and Co-Director of the Essex Tran- sitional Justice Network. She is widely published on reparations and transitional justice issues and has worked as a consultant for the International Criminal Court, UN Women, and the UN Office of the High Commissioner for Human Rights. Miriam Puttick is Head of MENA Programmes for the Ceasefire Centre for Civilian Rights. The research for this report was informed by a series of interviews under- taken by Mark Lattimer and Miriam Puttick in Baghdad, Ninewa and Erbil in March 2017. The cooperation of the Iraqi General Directorate of the Council of Ministers and the Martyrs’ Division is gratefully acknowledged.

Ceasefire Centre for Civilian Rights

The Ceasefire Centre for Civilian Rights is a new initiative to develop ‘civilian-led monitoring’ of violations of international humanitarian law or human rights, to pursue legal and political accountability for those responsible for such violations, and to develop the practice of civilian rights. The Ceasefire Centre for Civilian Rights is registered as a charity and a company limited by guarantee under English law; charity no: 1160083, company no: 9069133.

Minority Rights Group International

MRG is an NGO working to secure the rights of ethnic, religious and linguistic minorities and indigenous peoples worldwide, and to promote cooperation and understanding between communities. MRG works with over 150 partner organizations in nearly 50 countries. It has consultative status with the United Nations Economic and Social Council (ECOSOC) and observer status with the African Com- mission on Human and Peoples’ Rights (ACHPR). MRG is registered as a charity and a company limited by guarantee under English law; charity no: 282305, company no: 1544957.

Report designed by Staša Sukic.

Material from this publication may be reproduced for teaching or other non-commercial purpoes, with appropriate attribution. No part of it may be reproduced in any form for commercial purposes without the prior express permission of the copy- right holders. Published November 2017. Printed in the UK on recycled paper. Table of contents

1 Introduction 4

The right to reparation under international law 7 2 The duty under international human rights law 7 The duty under international criminal law 8 The duty under international humanitarian law 8

The scope and reach of the right to reparation 10 3 Broad and flexible meaning of ‘victim’ 10 The requirement to be adequate, effective and prompt 11 Funding for reparation programmes 16

Case study: Iraq’s Law No. 20 on Compensation for Victims 4 of Military Operations, Military Mistakes and Terrorist Actions 17 Law No. 20 of 2009 and its 2015 amendment 17 Progress on compensating victims from 2009 to present 18 Gaps and challenges 19

Towards a comprehensive reparations scheme 5 for victims of the conflict with ISIS 22 Scope of violations and forms of reparations 22 Responsibility of international actors and armed groups 23 Processes and evidence 25

6 Conclusions and recommendations 27 Endnotes 29 1 Introduction

Iraq is a country devastated by decades of conflict. Millions of victims have suffered as a consequence of gross human rights violations and serious violations of humanitarian law over the years, whether during Saddam Hussein’s dictatorship, Iraq’s invasion of Kuwait, the occupation of Iraq by the United States and its allies, or, more recently, as a result of the conflict with ISIS. These victims have a right to adequate, prompt and effective redress for harm suffered as a result of such violations.

There are compelling moral and political reasons why repa- quently, after Saddam Hussein was removed from power, rations matter to victims and societies as a whole. There are the Iraq Property Claims Commission (later renamed the equally compelling legal reasons why states should provide Commission for the Resolution of Real Property Disputes) reparations, not least because they are bound by various in- was created to deal with land-related violations committed ternational treaties that incorporate this obligation. Iraq has under his regime. Finally, a more recent effort in Iraq is Law ratified most international human rights treaties including No. 20 of 2009 on Compensating Victims of Military Opera- the International Covenant on Civil and Political Rights tions, Military Mistakes and Terrorist Actions (amended in (party since 1971), the International Convention on the 2015), which provides redress to victims who have suffered Elimination of All Forms of Racial Discrimination (1970), the violations since 2003. International Covenant on Economic, Social and Cultural Rights (1971), the Convention against Torture (2011), and the While these efforts to provide redress in Iraq act as impor- Convention for the Protection of all Persons from Enforced tant precedents, the most recent phase of conflict raises new Disappearances (2010). Iraq has also ratified most treaties challenges. Since 2014, fighting between government-allied on humanitarian law, including the Geneva Conventions of forces and ISIS has led to widespread violations, with mil- 1949 (1956). lions displaced, thousands killed, and targeted campaigns perpetrated against ethnic and religious communities. Iraq already has significant experience in providing redress Moreover, damage to infrastructure and personal property to victims. In 1991, the United Nations (UN) Security Council is widespread. At the same time, state institutions in large set up the UN Compensation Commission to provide repa- parts of the country have been left paralyzed and incapable rations to some victims of Iraq’s invasion of Kuwait. Subse- of providing basic services to citizens. Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice 5

As Iraq prepares to rebuild and recover from the tions programmes from international practice for conflict with ISIS, providing redress to victims of the purpose of comparison. Section 4 serves as a violations is an important priority. However, it is case study on the reparations scheme established questionable whether the current legal and insti- by Iraq’s Law 20, and examines both the progress tutional framework in Iraq is capable of effectively and challenges faced so far in granting repara- addressing the violations committed, given their tions to victims in the midst of ongoing conflict. enormous scale and the diversity of actors in- Section 5 suggests how lessons from the imple- volved. The task of providing reparations to vic- mentation of Law 20 can be harnessed for the tims of the conflict is also complicated by the fact purpose of designing a more comprehensive repa- that justice has still not been obtained by many rations scheme for victims of the most recent con- victims of previous violations. The United States flict with ISIS, outlining ways in which the and other belligerents are arguably yet to take ap- framework can be expanded and improved. Fi- propriate measures to redress the violations that nally, Section 6 ends with some conclusions and took place as a result of the 2003 invasion and oc- recommendations. cupation of Iraq, and many victims of the Saddam Hussein regime are still waiting to receive repara- While this report is mainly focused on monetary tions decades after violations occurred, even compensation, it has to be remembered that the though relevant laws and processes have been put right to reparation is not exhausted simply by pro- in place. viding compensation to victims. Full reparation should also include justice – including effective in- This report seeks to inform the discussion on vestigations leading to the identification of those reparations in Iraq through analysis of both inter- responsible for violations – and truth, as victims national and domestic practice, with the goal of have a right to know what happened. Moreover, encouraging the development of a comprehensive states should take necessary measures to address framework that can provide adequate and effec- the roots of conflict and repression to ensure that tive reparations to victims of the conflict from violations do not happen again. In other words, 2014 onwards. The introduction provides an reparations programmes should take place as overview of the concept of reparations and their part of a holistic approach to transitional justice impact on individuals and societies. Section 2 out- that will enable victims and society as a whole to lines the relevant international legal instruments move forward from conflict. Isolated reparation that obligate states to provide reparations. Section practices carry risks, as they do not properly ad- 3 expands further upon the scope and reach of dress the harm suffered by victims and can even this obligation, referring to examples of repara- cause re-victimization. 6 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

Why do reparations citizens were violated3 and who are goals that are not exhausted by tran- worthy of reparation in order to sitional justice or by its measures, in- matter? wipe out this harm. As de Greiff cluding reparations. Indeed, he writes, ‘those whose rights have states that ‘the most that transitional Victims of serious violations of inter- been violated deserve special treat- justice measures can do is to give national law such as gross human ment, treatment that tends towards reasons to individuals to trust insti- rights violations or serious violations the reestablishment of the condi- tutions’.8 of humanitarian law become targets tions of equality.’ 4 because they are dehumanized by Finally, transitional justice and its perpetrators. The role of reparations Civic trust is about restoring trust measures can make a key contribu- is to restore their humanity. Repara- among citizens.5 In states devastated tion to the achievement of democ- tions aim to correct serious interna- by authoritarianism or conflict, rela- racy. Here, de Greiff does not have in tional wrongs that not only affect tionships of trust break down. Indi- mind only the rule of law. Instead, those directly victimized, but also viduals, not only victims, distrust the what is crucial is how victims and so- those around them and the societies state and its institutions as well as ciety as a whole experience and re- in which they live. their fellow citizens. Therefore, repa- late to mechanisms such as rations function to help re-establish reparations, and whether they cre- Pablo de Greiff, a philosopher by civic trust as they symbolize the inten- ate forms of participation. Therefore, training and UN Special Rapporteur tion of the state and fellow citizens to in addition to building systems of on the promotion of truth, justice, rebuild relations based on equality law that are independent, impartial reparation and guarantees of non- and respect.6 A reparation effort that and certain, de Greiff believes that it recurrence, makes a very powerful is genuine sends the message that is crucial to provide victims, and so- case for reparations. Reparations are victims matter to society and that ciety as a whole, with institutional ex- clearly about fairness, or in other without their participation a society periences that allow them to be words, about trying to undo the will not be able to move forward. active citizens and to act democrati- harm that has been caused to the cally. However, he recognizes that extent possible. However, this pro- Reconciliation, according to de transitional justice, or for that mat- cess cannot occur in isolation when Greiff, refers to: ter, reparation, cannot deliver many others have suffered similar vi- democracy, but the experiences that olations. It is here that de Greiff calls ‘the condition under which citizens can its mechanisms create can trigger for a change of approach. While for trust one another as citizens again (or important democratic behaviour in him fairness should be sought, it anew). That means that they are suffi- the future.9 should be conceived as an element ciently committed to the norms and of a political project,1 as this would values that motivate their ruling insti- In sum, reparations matter not so enable the pursuit of other aims, tutions, sufficiently confident that those much because they fully redress the namely recognition, civic trust, social who operate those institutions do so harm that victims have suffered in reconciliation and democratization.2 also on the basis of those norms and terms of equal pay for equal harm, values, and sufficiently secure about but because, if well conceived, they Recognition is about reaffirming in- their fellow citizens’ commitment to provide a transformative experience dividuals’ status as citizens by ac- abide by and uphold these basic norms to victims. Reparations can em- knowledging them as both the and values.’ 7 power, dignify and return a voice to subjects and objects of action in a victims, as well as provide them with society. Victims should be recog- De Greiff, however, notes that recon- the opportunity to become agents of nized as individuals whose rights as ciliation and democracy are ultimate social change. The right to reparation 2 under international law

There is an established principle that the wrongful breach of an international obligation imposes on states the duty to redress the harm caused to another state and cease the violation of the international rule.10 While this rule was for centuries applicable when a state breached an international obligation owed to another state, today it is recognized that such a duty can also be owed to individuals affected by certain violations of international law.

This duty of states to provide reparation to individuals is The duty under well established today under international human rights law and international criminal law. Such a duty also exists, international human although in limited terms, under humanitarian law.10 rights law A key dimension to note is that this obligation is not bound The first international human rights treaties to be en- territorially. Therefore, a state is responsible for violations acted, such as the International Covenant on Civil and Po- of human rights (and for that matter of international hu- litical Rights and the Covenant on Economic, Social and manitarian law) even if they are committed outside its own Cultural Rights, as well as regional treaties such as the Eu- territory. This has been the reiterated position of UN and re- ropean Convention or the American Convention on gional human rights bodies on the issue regardless of Human Rights, did not contain explicit norms recognizing whether the violation happened during a conflict situation the right of individuals to obtain reparation for harm suf- or not. Indeed, the Human Rights Committee, the body that fered as a result of the violations of rights incorporated in oversees the International Covenant on Civil and Political those treaties. However, those treaties establish the gen- Rights, states in General Comment 31 that: ‘the enjoyment eral obligation that states have to respect and ensure of Covenant rights is not limited to citizens of States Parties rights of individuals recognized under the treaties, which but must also be available to all individuals, regardless of includes the obligation to have adequate and effective nationality […] who may find themselves in the territory or remedies in place to deal with violations, regardless of subject to the jurisdiction of the State Party’.11 The commit- their gravity. One such remedy is precisely the duty to tee also noted that ‘this principle also applies to those within make reparation.13 This has been the authoritative and re- the power or effective control of the forces of a State Party iterated interpretation given by bodies with jurisdiction acting outside its territory …’ 12 to apply and interpret those treaties. 8 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

The right to reparation, however, has been explic- crimes, genocide and aggression, are entitled to itly established in various other human rights reparation and specifically refers to three forms treaties. For example, Article 14 of the UN Conven- of reparation: restitution, compensation and reha- tion Against Torture explicitly recognizes the right bilitation. The ICC is a criminal tribunal and there- of victims to compensation and rehabilitation fore it decides on reparations owed by convicted when breaches occur. Similar articles are also perpetrators (and not states or armed groups) to present in regional treaties dealing with torture, their victims. While this is an important develop- such as the Inter-American Convention to Prevent ment under international criminal law, its reach and Punish Torture. Newer treaties, such as the continues to be limited given that the ICC cannot UN Convention on Enforced Disappearances, con- exercise jurisdiction over all persons responsible tain an even stronger and more holistic approach for international crimes and that it cannot award to the right to reparation. Article 24.4 of the Con- reparations to all victims of the situation but only vention reads as follows: ‘Each State Party shall to some of them. ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate com- The duty under pensation.’ The article also elaborates on the international forms of reparation, the concept of victim, the right to know the truth and other related obliga- humanitarian law tions held by states parties. Under humanitarian law there is no express recognition of the right to reparation for victims of vio- Treaty law, as described above, has been comple- lations except for two articles that apply to mented and strengthened by the 2005 Basic Prin- international armed conflicts, that is to say, conflicts ciples and Guidelines on the Right to a Remedy between two or more states. The first is Article 3 of and Reparation for Victims of Gross Violations of the Hague Convention (IV) respecting the Laws and International Human Rights Law and Serious Vio- Customs of War on Land and its annex (1907), lations of International Humanitarian Law (Basic which establishes that ‘[a] belligerent party which Principles). Work on the Basic Principles began in violates the provisions of the said Regulations shall, 1989, just over four years after the signing of the if the case demands, be liable to pay compensation. UN Convention Against Torture in December 1984. It shall be responsible for all acts committed by per- While many years passed before they were final- sons forming part of its armed forces.’ Such a norm ized and adopted by consensus by the UN General is almost replicated in Additional Protocol I to the Assembly in 2005, the Basic Principles helped to Geneva Conventions in Article 91, which states that: consolidate a common view about the obligation ‘[a] Party to the conflict which violates the provi- to provide reparation, both at the procedural and sions of the Conventions or of this Protocol shall, if at the substantive level.14 Today it is possible to as- the case demands, be liable to pay compensation. It sert that victims have a right to reparation for vi- shall be responsible for all acts committed by per- olations of human rights law, and that this right sons forming part of its armed forces.’ It should be entails adequate, prompt and effective redress15 noted that such articles refer specifically to com- for victims in the form of compensation, restitu- pensation and not to other forms of reparation. tion, satisfaction, rehabilitation, and guarantees of non-repetition.16 While there is otherwise silence on the issue under international humanitarian law treaties, the Basic Principles on the Right to a Remedy and The duty under Reparation included such a right not only in rela- international criminal tion to gross violations of human rights but also in relation to serious violations of international law humanitarian law. Drafters of the Basic Principles The Rome Statute of the International Criminal had in mind violations that amount to interna- Court (ICC) recognizes in Article 75 that victims of tional crimes. While some states were dissatisfied international crimes under the jurisdiction of the with the inclusion of serious violations of interna- court, namely crimes against humanity, war tional humanitarian law, the Basic Principles Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice 9

were adopted at the UN General Assembly by con- tioned is whether non-state actors, such as armed sensus. groups, have an obligation to provide reparation for harm suffered as a result of their actions. This Still, although the Basic Principles reflect interna- point is particularly important when armed tional law as it stands today in relation to serious groups are considered to have significant re- violations of international humanitarian law, the sources but there are no laws indicating that they lack of a specific norm under humanitarian treaty shall make reparation to victims. An important law constitutes a gap that needs to be corrected. precedent in this regard is contained in the Colom- Nevertheless, lack of express recognition of this bian Peace Agreement signed with the Revolution- right should not be seen as an obstacle to claiming ary Armed Forces of Colombia (FARC) in which, reparation as indeed there is legal recognition after much negotiation, the FARC not only recog- under both human rights law, which also applies nized the right to reparation of victims but also in times of conflict or occupation, and under inter- agreed to support the reparations process by help- national criminal law, if violations of certain grav- ing with social work, demining fields and con- ity occur.17 An additional issue not resolved by the tributing financial assets obtained through the international legal instruments already men- armed conflict.18 The scope and reach of 3 the right to reparation

The Basic Principles on the Right to a Remedy and Reparation, the Set of Principles to Combat Impunity (2005) and the jurisprudence of the Inter- American Court of Human Rights have been essential for defining the scope and reach of the right to reparation, at least for gross human rights violations and serious violations of humanitarian law. While there are areas where questions remain as to what the right entails, there are some basic principles, both substantive and procedural, that are broadly accepted, as detailed below.

Broad and flexible fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or meaning of ‘victim’ serious violations of international humanitarian law. Where There has been much debate in case law and the academic appropriate, and in accordance with domestic law, the literature over the question of who qualifies as a victim for term “victim” also includes the immediate family or depen- the purposes of reparation.19 However, there is consensus dants of the direct victim and persons who have suffered that the term cannot be defined in narrow terms. Indeed, harm in intervening to assist victims in distress or to pre- there is a valid and implicit assumption that when viola- vent victimization.’ 20 tions of human rights or humanitarian law occur, victims are not only those who suffered direct harm (the person Domestic reparation programmes have also adopted a flex- who is tortured or disappeared, for example) but also others ible concept of victim. For example, the Victims and Land affected by the violation (such as the next of kin of a person Restitution Law (Law 1448/2011) in Colombia defines vic- tortured or disappeared) or a witness of the events. Both the tims as ‘persons who individually or collectively suffered Basic Principles and the UN Convention on Enforced Disap- harm as a result of violations that occurred from 1 January pearances offer broad definitions of the term. The Basic 1985’, and also includes family members and ‘persons who Principles, for example, state that: have suffered harm when intervening to assist a potential victim or to prevent victimization’.21 ‘[V]ictims are persons who individually or collectively suffered harm, including physical or mental injury, emotional An important exception to the above has been the tendency suffering, economic loss or substantial impairment of their in various experiences around the world to prevent the concept of victim from being extended to members of the Convention on the Rights of the Child and its armed groups who could be perpetrators of viola- Optional Protocol on the involvement of children tions themselves. For example, in Colombia, under in armed conflict. Therefore, there are good moral the Victims and Land Restitution Law, members of arguments as well as legal ones to consider child armed groups, such as the FARC, cannot be consid- soldiers as victims entitled to reparation. Indeed, ered as victims for purposes of that law unless child soldiers have been awarded reparation by they were still children when they left the armed the ICC26 and were afforded special treatment in group.22 In Peru, the law creating the Comprehen- Sierra Leone.27 If perpetrators in particular vulner- sive Reparations Plan was even more limited. It es- able situations are not recognized as entitled to tablished that members of the armed groups will reparations, at the very least demobilization, dis- not be considered as victims and as result they will armament and reintegration strategies should be not be beneficiaries of reparations’.23 designed and implemented that could have a similar effect to that of reparations. However, there is nothing under international law that would indicate that a person loses his or her right to reparation as a result of being a member of The requirement to be an armed group Indeed, there is evidence of the op- adequate, effective posite. The Inter-American Court of Human Rights, in the case of Bamaca v. Guatemala concerning the and prompt disappearance of a guerrilla member during the Reparations aim to wipe out all the harm caused conflict, awarded him, his partner and his family to the victim. However, when gross human rights reparations for harm suffered (pecuniary and non- violations and serious violations of humanitarian pecuniary damages).24 So, in principle, the legality law are at stake, full reparation can be considered of a programme that impedes the right to repara- a guiding principle but is unlikely to materialize tion of certain categories of victims could be chal- for different reasons, including the numbers of lenged for contravening international standards. victims (thousands if not millions of them); the non-existence of state institutions capable of At the very least, efforts should be made to distin- reaching victims; lack of financial and human re- guish among members of armed groups and to sources to design and implement reparations; and treat them differently depending on whether or the continuation of violence and conflict. Never- not they themselves were perpetrators of serious theless, the Basic Principles state that reparations violations of international law.25 Another basis to should be ‘adequate, effective and prompt.’28 distinguish among perpetrators could be the degree of vulnerability of the perpetrator. For exam- Although neither the Basic Principles nor other in- ple, many children have been recruited worldwide ternational instruments define these terms, im- as child soldiers, and states have failed to prevent portant guidance can be derived from the their recruitment despite their obligations under international legal rule that allows exceptions to 12 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

the requirement of exhausting domestic remedies that cannot be wiped out simply by providing in- when these remedies are not adequate or effec- dividual reparations. Therefore, an adequate rem- tive. Here, a remedy is considered to be adequate edy in terms of reparation would consider when it is suitable to address the violation at carefully how to use various forms of reparation, stake29 and it is effective when, besides being ade- including individual and collective reparation, to quate, it ‘is capable of producing the result for maximize its potential for providing full redress which it was designed’.30 Prompt refers to the to victims and should be assessed on those terms.34 availability of the remedy within a reasonable period of time. These concepts are directly applicable Remedies should also take due consideration of to the right to reparation as it is also a remedy that the victim and provide the necessary measures to should be available to individuals at the domestic ensure that reparation addresses the harm caused level to address violations of human rights. How- without leading to re-victimization. This is partic- ever, the nature of the right to reparation, and its ularly relevant in relation to vulnerable groups application to gross human rights violations and such as women, children, LGBTI (lesbian, gay, bi- serious violations of humanitarian law, calls for sexual, transgender and intersex) persons and vic- further specification of what these adjectives tims of sexual violence, who are more vulnerable mean in the context of redress. to violations. While international law does not specify how reparation programmes should be de- Adequate signed to avoid re-victimization, various measures When serious violations of international law are have been taken, in practice, to achieve this goal. at stake, the question of which remedies are ade- These have included consulting victims on the way quate to deal with the violations and the harm that that reparation should be made, ensuring that ensues from them is critical. Part of the answer is there is work on guarantees of non-repetition, en- contained in the five substantive forms of repara- abling victims to have their voices heard so that tion available to deal with such harm, as found in they can avail themselves of remedies and repara- the Basic Principles, the Principles to Combat Im- tions, fighting stigma, adopting affirmative action punity and the jurisprudence of international bod- measures, and establishing and delivering on ur- ies: restitution, compensation, rehabilitation, gent reparation measures.35 satisfaction and guarantees of non-repetition. While restitution is the preferred form of repara- Other factors should also be taken into account tion under public international law, it is not al- when deciding what remedies would be adequate ways sufficient, possible or desirable under to deal with harm caused, including the religious, human rights law and therefore other forms of re- cultural and political context. For example, provid- dress are needed to wipe out the consequences of ing land restitution to internally displaced persons the violation depending on the nature of each (IDPs) would not be adequate when conflict is still case.31 Here, however, there has been a tendency ongoing and safety conditions are not in place. to prioritize compensation over other forms of Providing compensation to victims of sexual vio- reparation. While compensation is important, it is lence without addressing the many ways in which not sufficient to adequately address the harm suf- their bodies and minds were affected, and the fered by victims. Moreover, survivors of serious stigma that often ensues, would also be inade- violations may see compensation as dirty money. quate.

Reparations should also be individual, or both in- While a combination of forms of reparation is de- dividual and collective, for them to be adequate.32 sirable, it is equally important that each repara- The Basic Principles are based on the idea that the tion measure is also adequate. For example, right to reparation is primarily an individual right rehabilitation is a crucial form of reparation that but also recognizes the existence of collective vic- should always be available for victims of serious tims and collective reparations.33 While interna- violations. Rehabilitation requires access to ade- tional law has not defined collective reparations, quate health services for a prolonged period of it is standard practice today domestically and in- time both for physical and mental health issues. In ternationally to award collective reparations to such a context paying compensation for such ser- groups of victims when there is communal harm vices would not necessarily allow victims to deal Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice 13

in the best way possible with the harm suffered.36 and began to be implemented in the midst of the On the other hand, if the victim is a refugee who armed conflict but there are relatively strong in- cannot return to the country where the violations stitutions in the country. occurred, compensation might be the best means possible to ensure access to adequate health ser- In other countries devastated by war that lacked vices in another country. the resources, strong state institutions and political will to adequately redress victims, different Reparations provided to victims without recogni- packages of reparations had to be designed. In tion of responsibility, full investigation of the vio- Sierra Leone, the Truth and Reconciliation Com- lations suffered and disclosure of the truth about mission recommended in 2004 that reparations be what happened, would also place in question any provided to certain categories of victims who were process of redress and would indicate that repara- in a situation of extreme vulnerability and who tions have not been adequate. suffered the most during or as a consequence of the conflict, namely amputees, others wounded in The Chilean reparation programme presents an the war, victims of sexual violence, child victims interesting comparison. For example, for victims and war widows. Taking into account Sierra killed by Pinochet’s regime, it offers a comprehen- Leone’s limited resources, the Truth and Reconcil- sive range of reparations, including a one-time iation Commission also recommended providing reparation payment (bono), a pension for life for victims with social services and means to enhance the widow, scholarships for the children and free their livelihood such as ‘health care, pensions, ed- access to the Programa de Reparación y Atención ucation, skills-training and micro-credit/projects, Integral en Salud y Derechos Humanos, known as community and symbolic reparations’.40 However, PRAIS (The Program for Reparation and Integral in practice the recommendations of the Truth Health Assistance for Victims of Human Commission have not fully materialized. Rights)health care system for the widow and children. It even allows children to opt out of military Effective service if they so wish.37 In addition to this, forms Reparations should also be effective. This means of satisfaction have also been used such as naming that they should try as far possible to wipe out the streets after victims and setting up monuments to harm caused. While it is almost impossible to honour the victims.38 Most of these measures have bring things to the status quo ante in a context also been applied to victims of enforced disappear- where gross violations are at stake, reparations ances and torture. need to be designed and implemented in a man- ner that allows victims to address the harm in- The Victims and Land Restitution Law (2011) in curred to the maximum extent. In addition the Colombia also stands out in terms of design. It not substantive dimensions of redress, the process only includes all forms of reparation for victims, through which victims access reparation is also including land restitution and housing restitution, crucial, as acknowledged in the Basic Principles. but also provides great detail in relation to the way each one should be implemented and the way they Institutional structure are jointly provided. It is of particular importance In contexts of generalized victimization, states to note that the law also includes, in addition to all often opt for domestic administrative reparation forms of reparation, various forms of assistance programmes as a means of delivering redress to that it explicitly considers as complementary to victims. In such circumstances, when there may reparations and not as a replacement for them.39 be thousands if not millions of victims, administrative reparation programmes are more effective While Chile and Colombia are landmark cases in than tribunals at delivering redress quickly, at the design of reparation programmes, it must be minimal expense to victims, and with lower stan- noted that they are countries with strong state in- dards of evidence. These types of programmes are stitutions and relatively low levels of corruption. encouraged by the Basic Principles as well as the In Chile, reparation only began after the dictator- Principles to Combat Impunity.41 There is no one- ship had ended and improved over the years after size-fits-all when it comes down to an ideal do- the dictatorship. In Colombia, the law was adopted mestic administrative reparation programme. 14 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

However, there is a tendency to create new state thereby moving from a reparation system that took institutions with a specific mandate to provide place through the judiciary to a domestic repara- reparations, and with an assigned budget to work tion programme. The law created the Unit for Vic- for a specific period of time. It should be noted tims (Unidad para las Victimas), responsible for that the establishment of administrative repara- coordinating all state institutions involved in the tions programmes does not mean that judicial National System to Redress Victims and supporting processes should not be available, as all victims victims’ participation in the reparation process.44 have the right to adequate and effective judicial Furthermore, given the acute problem of internal remedies to claim reparation. displacement in Colombia (considered at the time to be the highest in the world), the Unit for Land In Chile, the Rettig Commission – a truth commis- Restitution was also established to create a registry sion – was established in 1990 to deal with extra- of all land that had been abandoned or lost during judicial killings and disappearances that occurred the conflict, to receive restitution claims and to pre- during Pinochet’s regime between 1973 and 1990. sent the cases before the restitution judges on be- The commission was also mandated with identify- half of victims. Colombia chose to pursue ing the individual victims of extrajudicial killings restitution as the preferred form of reparation, and disappearances, and recommending repara- only considering compensation where restitution tions. This served as an impetus to create the Cor- was materially impossible. Between 2011 and 2016, poración Nacional de Reparación y Reconciliación the unit received 90,395 restitution claims. As of (CNRR), a national institution responsible for pro- 2016, 51 per cent had been resolved and the resti- viding reparations, determining the whereabouts tution judges had issued 1,812 judgments.45 of the disappeared, and continuing to identify victims.42 The CNRR was created as a government in- Processes and evidence stitution under the direction of the Ministry of As important as the institutional structure of repa- Interior.43 While it was responsible for repara- rations mechanisms are the process and rules they tions, it delivered them in cooperation with other apply. Domestic reparation programmes require state institutions such as the PRAIS health system. clear, accessible and summary procedures and relaxed standards of evidence.46 Torture survivors were not part of the mandate of the Rettig Commission. Only in 2004 did Chile In Colombia, for example, under the Victims and establish the Valech Commission (Comisión Na- Land Restitution Law, any person can register as cional sobre Prisión Politica y Tortura) to establish a victim and the administrative process is fast and the truth surrounding victims of torture. The com- effective. Moreover, the burden of proof falls on mission’s mandate had to be extended twice to en- the state, not the victim.47 The law indicates that sure that all victims could be included. The Valech state authorities should always presume the good Commission identified victims, while other state faith of victims and their ability to corroborate the institutions were mandated with providing repa- harm they have suffered by any means legally ac- rations. For example, the PRAIS health system was ceptable.48 The law also establishes various prin- mandated to provide rehabilitation to victims, ciples that should be applied to cases where and the Pensions Institute (Instituto de Previsión persons allege to have been victims of sexual vio- Social) was responsible for paying pensions to lence. For example, the previous sexual behaviour surviving victims. The commission finished its of the victim cannot be used as evidence to deny work in 2011. reparations.49 The law also contains important evidentiary rules in relation to land. For example, if In contrast, Colombia’s 2005 Justice and Peace Law a victim seeking land restitution is able to show tasked the Justice and Peace Jurisdiction with pro- that he or she owned, possessed or occupied the viding reparations to victims. This system, how- land, and the person has been recognized as an ever, proved ineffective and slow in deciding on IDP, the burden of proof rests on the party alleging cases, and awarded reparations amounts to vic- the opposite unless the person is also an IDP.50 tims that were too high to be extended to all cases. Learning from its mistakes, in 2011 Colombia en- In the case of Chile, a person would qualify as a acted the Victims and Land Restitution Law, victim if recognized as such by the Rettig Commis- Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice 15

sion or the Valech Commission. To be recognized Prompt as a survivor of detention and/or torture during In addition to the existence of adequate and effec- the dictatorship, the person had to have been de- tive mechanisms to identify and register victims, tained and/or tortured for political reasons, by it is equally important to ensure that victims have state agents or people acting with their acquies- access to prompt reparation. Lack of access to cence, between 1973 and 1990. The standard of ev- prompt reparations makes even an adequate rem- idence for victims was low, requiring them to edy ineffective, and therefore promptness is an simply complete a form with key information essential element of an effective remedy. about the allegations such as places of detention, dates and description of facts, and then submit the Domestic reparation programmes are frequently form to the commission. The commission would instituted many years after human rights viola- then invite the person to an interview to take his tions or violations of humanitarian law have or her testimony, then investigate the allegations taken place, often in the context of transitional using a database of information compiled from justice processes. This means that reparations, if governmental, non-governmental, and interna- they happen, are provided very late in the process tional sources.51 Most people who appeared before while harm often continues to ensue. For exam- the commission were recognized as victims, lead- ple, in Sierra Leone, reparations were only put in ing to more than 50,000 recognized survivors of place in 2007 and became partially effective be- detention and/or torture.52 tween 2007 and 2009, although the conflict ended in 2003. Similarly, in Chile, although the worst Registries of victims human rights violations happened during the first Official registries of victims enable access to repa- five years of the dictatorship (1973–8), they only rations.53 Not all countries have set up registries began to be redressed in 1992. of victims, but the more the number of victims grows in armed conflicts, the more they constitute It is a challenge to provide reparations in the a suitable tool to identify victims and facilitate midst of conflict or repression, as there is usually reparation. insufficient political will and a lack of adequate institutions to implement them. In such extreme In Colombia, a registry of victims (Registro Único situations, other remedies should be made avail- de Victimas) was created by Article 154 of the Vic- able to contain or to deal with the harm suffered tims and Land Restitution Law. Before 2011, the by victims, such as humanitarian aid. Urgent country had many registries of victims, including reparation measures should also be adopted for a large registry on internal displacement, but those most in need. While urgent measures have there was no clarity as to the number of victims not been broadly used across states, they should and the nature of the violations they had suffered. be encouraged and they have proven important Therefore, Colombia decided to create a unified where they have been implemented. system as part of the Unit for Victims, linking all existing information and identifying new victims In South Africa, for example, they were used in who could provide reliable information about vic- the form of urgent interim reparations. The South tims of the armed conflict and specific human African Truth and Reconciliation Commission’s rights violations. As of June 2017, there were rationale for urgent interim measures was that 8,421,627 victims registered in the country.54 victims would receive ‘information about and/or referral to appropriate services […] as well as fi- In Peru, a registry was also created as part of the nancial assistance in order to access and/or pay Comprehensive Reparations Plan. The institution for services deemed necessary to meet specifically responsible for it is the equivalent to the Unit for identified urgent needs’.56 Urgent needs were de- Victims in Colombia, called the Reparations Coun- fined as ‘medical, emotional, educational, mate- cil (Consejo de Reparaciones).55 It has the author- rial and/or symbolic needs’.57 The Committee on ity to register both individual and collective Reparations at the Truth Commission identified victims but expressly excluded the registration of beneficiaries and for the most part provided them victims that were at the same time members of with cash payments that varied from US$250 to armed groups. US$713 depending on the number of dependants. 16 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

Urgent reparations were paid between 1998 and In Colombia, for example, the 2005 Justice and 2001, benefiting more than 14,000 victims.58 Peace Law created a Fund to Redress Victims, which was later put under the responsibility of Urgent measures were also used in Sierra Leone. the Unit for Victims.65 Since it was created under These measures were originally envisaged to in- the Justice and Peace Law, which dealt with the clude different types of victims, such as am- criminal responsibility of members of paramili- putees, victims of sexual violence, and tary groups that were demobilized under the law, conscripted children, as well as different types of the fund obtained financial resources and assets measures. However, in practice, the programme from members of paramilitary groups, resources played out differently.59 Interim payments of allocated from the national budget, international about US$100 were granted predominantly to funding, and donations. Today, the fund pays amputees and victims of sexual violence. Approx- reparations to victims under both the Justice and imately, 21,700 victims received this interim re- Peace Law and the Victims and Land Restitution lief.60 Besides this payment, a few victims also Law.66 A special fund for land restitution was also benefited from urgent medical care. The Interna- established under the Victims and Land Restitu- tional Center for Transitional Justice (ICTJ) indi- tion Law responsible for managing all aspects of cates that 31 victims in critical condition land recovery and restitution. underwent surgery and 235 victims of sexual violence received medical treatment.61 In the case of Iraq, the UN Compensation Commis- sion paid reparations from the United Nations Urgent priority payments are also known to Iraq Compensation Fund. Notably, the fund received 5 as the UN Compensation Commission took them per cent of the proceeds from Iraq’s oil exports to into account when considering claims related to redress victims.67 damage caused during Iraq’s invasion of Kuwait. Of the six categories of claims eligible for presen- In Sierra Leone, the establishment of a fund was tation before the commission, categories A, B and part of the Lomé Agreement (1999),68 and was also C were considered urgent. Category B, in particu- a recommendation of the Truth and Reconciliation lar, focused on serious personal injury and death, Commission.69 The establishment of the fund only and as a consequence such claims were consid- took place in 2009, a decade after it was envisaged ered and paid with priority.62 Category B claims in the Peace Agreement. Contributions to the fund constituted a small number and therefore the have been minimal and highly dependent on in- commission was able to deal with them ternational cooperation. For example, during the efficiently.63 A total of 3,935 claims were processed first year of the reparation programme, the United urgently and with priority under Category B.64 Nations Peace Building Fund gave US$3 million, with Sierra Leone contributing only US$246,000.70

Funding for reparation The Rome Statute that established the ICC also cre- programmes ated the Trust Fund under Article 79. The fund has a double mandate. Not only does it implement Part of the success of a domestic reparation pro- the reparations ordered by the ICC in the cases it gramme depends on allocation of financial re- decides, but it also provides assistance pro- sources to make it viable. While different grammes to victims. The fund is financed by pri- mechanisms could be used to this end, the estab- vate and public sources, including states’ lishment of special reparation funds is a common voluntary contributions, and receives court-or- practice. dered fines and forfeitures. Case study: Iraq’s Law No. 20 on Compensation for Victims of Military Operations, 4 Military Mistakes and Terrorist Actions

As detailed in the Introduction, Iraq has experience with a number of reparations initiatives corresponding to the different periods of conflict and dictatorship through which the country has passed. These have included reparations awarded in the aftermath of Iraq’s invasion of Kuwait and various reparations schemes put into place after 2003 for victims of the Saddam Hussein regime. The most relevant scheme for the purposes of this report, however, is the scheme created by Law 20 on Compensation for Victims of Military Operations, Military Mistakes and Terrorist Actions. Passed in 2009 and amended in 2015, the law remains in force, raising the question of whether it can act as an effective basis for compensating victims of the conflict with ISIS.

This section explores Law 20 in depth, assessing progress in 2006 to 2007, more than 55,000 civilians were killed in at- providing reparations to victims under its framework while tacks that were often carried out along sectarian lines.71 also discussing some of the shortcomings in the process to date. It draws on analysis of the law itself and related docu- It was in this context that the Iraqi parliament passed Law ments, as well as interviews conducted with stakeholders No. 20 on Compensation for Victims of Military Operations, in Iraq and media sources. Military Mistakes and Terrorist Actions in late 2009. The law covers all natural persons harmed by the types of incidents specified in the title and also provides support to their family Law No. 20 of 2009 members. It applies retroactively to incidents occurring on and its 2015 amendment or after 20 March 2003, the date of the American invasion of Iraq. Initially, the law was envisaged to apply to both civilians Following the 2003 US-led removal of Saddam Hussein, Iraq and military personnel, but responsibility for the latter was witnessed a near-total breakdown in law and order. The later shifted to the Ministry of Defence under a separate law. proliferation of armed groups which formed to resist the US-led invasion, coupled with the occupation’s controversial In terms of the specific types of damage covered, the law and often divisive policies, led to an upsurge in generalized identifies five categories eligible for reparation: martyrdom violence. During the worst two years of bloodshed, from or loss;72 full or partial disability; injuries and conditions re- 18 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

quiring short-term treatment; damage to property; changes. The scope of the law was expanded to in- and damage affecting employment and study. For clude both natural and legal persons, as well as in- the first three categories, all of which involve bod- jured members of the Popular Mobilization Forces ily harm, the law stipulates three types of repara- (PMF) and the Peshmerga. Kidnapping was added tion: a one-time grant, the value of which ranges as a form of damage covered under the law, and from IQD1.75 million to IQD3.75 million (US$1,480 both kidnapping and loss are now treated in the to $3,173) depending on the severity of the case; a same way as martyrdom for the purposes of com- monthly pension; and a plot of residential land. All pensation. The 2015 amendment also created a three types of reparation are awarded directly to new division within the Martyrs’ Foundation73 for the victim in the case of disability or injury, or to the victims of military operations, military mis- the family of the victim in the case of martyrdom takes and terrorist actions, and allocated it respon- or loss. The family of the victim includes the par- sibility for forming subcommittees in each ents, sons, daughters, spouse, brothers and sisters governorate responsible for receiving all types of of the victim. Islamic inheritance law determines claims. The role of the Central Committee in Bagh- each relative’s share in the compensation amount. dad is now limited to making the final decision on cases of property damage and reviewing appeals Compensation for damage to property is awarded on other types of cases. The composition of the Cen- on a case-by-case basis depending on the assessed tral Committee was also changed to include only value of the item and the extent of the damage in- three ministries, as well as representatives of the curred. The types of property eligible for compen- KRG, the Iraqi High Commission for Human Rights, sation are wide-ranging and include vehicles, and a representative of the victims themselves. houses, agricultural lands, fixtures, stores and in- Lastly, the one-time grant amounts provided under ventory, and companies. Finally, damage affecting the law were increased and now range from employment and study is redressed by reinstating IQD2.5 million to IQD5 million (US$2,115 to the victim to his or her former place of study or US$4,230), depending on the gravity of damage. work, and paying any outstanding salaries or benefits for the period in which the victim was pre- vented from working. Progress on compensating victims In terms of the institutional structure for receiving and assessing compensation claims, the law cre- from 2009 to present ates a Central Committee in Baghdad, headed by a Official figures obtained from the Central Com- judge representing the Higher Judicial Council and mittee show that considerable progress was made formed of representatives of eight government in compensating victims of military operations, ministries and the Kurdistan Regional Govern- military mistakes and terrorist actions since Law ment (KRG). The law also creates subcommittees 20 was passed. During the period 2011–16, deci- with a similar composition in each governorate sions were reached on a total of 65,046 cases in- and region. Victims wishing to claim compensa- volving property damage and 118,894 claims tion are required to apply through one of the sub- involving martyrs, injuries and lost persons. The committees, which are responsible for preparing total amount awarded to victims over this five- the case files and conducting investigations into year period was more than IQD420 billion (over the incidents in question. In cases of martyrdom US$355 million). or injury, the subcommittees themselves issue the decision on compensation, whereas for cases of It should be noted that the years in Table 1 corre- property damage or lost persons, they issue a rec- spond to the year in which the claim was pro- ommendation that is forwarded to the Central cessed, and not necessarily the year in which the Committee for decision. The Central Committee incident took place. Since the law applies retroac- also reviews appeals submitted by compensation tively and claims are processed in the order they claimants to prior decisions. are received, even the most recent yearly figures likely include claims for incidents dating back as In 2015, the Iraqi parliament approved an amend- early as 2003. Moreover, since the subcommittees ment to the law that included a series of significant in Anbar, Salahuddin and Ninewa governorates Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice 19

Table 1: Claims processed by the Central Committee and subcommittees, 2011–16

Year Number of claims processed by Number of claims processed by Total amount processed the Central Committee for the subcommittees (martyrs, disbursed to Compensating Victims (property) the injured the lost) victims (IQD)

2011–12 12,227 claims 45,741 claims 168,235,846,000 2013 13,653 claims 35,631 claims 56,387,345,526 2014 13,732 claims 18,594 claims 50,908,448,570 2015 10,403 claims 17,136 claims 74,422,997,864 2016 15,031 claims 1,792 claims 70,110,547,589

Total 65,046 claims 118,894 claims 420,065,185,549

Source: Central Committee for Compensating Victims of Military Operations, Military Mistakes and Terrorist Actions.

were forced to suspend their work following the that the Ministry of Finance issued the directives ISIS advance in 2014, the totals above include only required to put the law into practice.74 Even after pre-2014 incidents from those governorates. implementation begun, it reportedly took an av- erage of two years to process a claim.75 Many gov- Figures from the Central Committee also provide ernorates quickly accumulated a backlog of a breakdown by governorate of the claims pro- claims due to the high number of victims claim- cessed each year over the period 2011–16. While ing compensation.76 the distribution of claims within and between governorates varied significantly each year, Baghdad According to a legal adviser to the Human Rights ranked consistently as the governorate with the Committee in the Iraqi parliament, the law’s bu- highest total number of claims over this period. reaucratic procedures are a major source of de- Other governorates with relatively high numbers lays in delivering reparations to victims.77 Unlike of claims processed over the period included many of the other country examples presented in Diyala, Anbar, Ninewa, Babel, Basra, Salahuddin earlier sections of this report, Iraq did not opt to and Kirkuk. The figures for these governorates are establish a strong central institution responsible presented in Figure 1. Figures for the remaining for delivering reparations to victims. Instead, the governorates of Dhi Qar, Najaf, Maysan, Karbala, Central Committee and subcommittees estab- Wasit, Qadisiyya and Muthanna are not repre- lished under Law 20 are formed of representa- sented in Figure 1 due to the relatively low num- tives of various government ministries, headed bers of claims from these governorates. by a judge. This means that there is no full-time, specialized institution dealing with reparations, even if some secretariat facilities have been es- Gaps and challenges tablished. In fact, in the original version of the Despite the achievements detailed above, the pro- law, the Central Committee was only required to cess of implementing Law 20 has not been with- meet once a week, and the subcommittees twice out its shortcomings and challenges. To some a week. This was undoubtedly a major factor degree, these are emblematic of the difficulties of causing a backlog in claims to build up. implementing a reparations programme in the midst of ongoing conflict and in a context where It is also clear from analysis of the law and re- state institutions are weak. Others are connected lated documents that the process for claiming to the particular processes and structures created reparations involves quite onerous evidentiary by the law. requirements, obliging both victims and the subcommittees to obtain numerous official docu- First of all, extensive delays have marred the pro- ments from multiple government offices. For cess of delivering reparations to victims under victims these could include, depending on the the Law 20 framework. According to a represen- case under consideration, authenticated investi- tative of an Iraqi civil society organization, al- gation reports, death certificates, medical re- though Law 20 was approved by the Iraqi ports, property deeds, estate division documents, parliament in late 2009, it was not until mid-2011 custody documents, power of attorney forms, 20 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

Figure 1: Top eight Iraqi governorates by number of claims processed, 2011–16

35,000 32,681

30,000

25,000 23,042

20,000 15,649

15,000 11,429 8,954 8,940 8,884 8,870 7,067 6,561 10,000 5,028 4,413 4,166 4,693 1,553 1,931 5,000 0 Baghdad Diyala Anbar Ninewa Babel Basra Salahuddin Kirkuk

Claims processed (property damage) Claims processed (martyrs, injured, missing)

Source: Central Committee for Compensating Victims of Military Operations, Military Mistakes and Terrorist Actions.

identification documents for the victim and all faced difficulties in obtaining the documents surviving heirs, and others. A senior official con- needed to submit reparations claims from govern- nected to the Central Committee in Baghdad ex- ment offices.79 The reparations process was slow plained that they had dealt with high numbers to accommodate the reality of displacement, ini- of fraudulent claims over the years, which may tially requiring victims to submit their claims in explain the reliance on heavy evidentiary re- the governorate that the incident occurred even quirements: if they were living somewhere else.80 The situation deteriorated further following the advance of ISIS ‘During the time of the transitional authority in 2014. The subcommittees in Kirkuk, Ninewa, when we had the Al-A’immah bridge disaster in Anbar, and Salahuddin governorates were forced Baghdad, hundreds of people died. But over to suspend their work completely – Kirkuk for a 3,300 submitted claims, and they all had original period of three months, and the others for more death certificates and authenticated witness than two years. In June 2014, the Central Commit- statements! We need to check claims and pre- tee reported that the secretary of the Diyala sub- vent fraud.’ 78 committee was killed in a terrorist attack on his way to the office. According to an Iraqi Member Nevertheless, the use of a high standard of proof of Parliament, prolonged displacement caused by is at odds with best practices internationally, the conflict hampered victims’ ability to obtain where a more relaxed standard has been reparations. Compensation money is distributed favoured to avoid placing undue burden on vic- at the governorate level, but many IDPs were un- tims. In the Iraqi case, the need to obtain docu- willing to return to their governorates due to the ments from different government offices is very volatile security situation.81 costly for victims, especially in terms of time and transportation. This process can be seen as adding There is also no central funding system to opera- insult to injury for victims who have already suf- tionalize payments and other forms of reparation fered immense harm as a result of violations. under Law 20. Instead, the Central Committee and the subcommittees forward their decisions to the The poor security situation in Iraq has also nega- Ministry of Finance, the Pension Authority, and tively impacted on the implementation of the law. the local authorities, which are responsible for is- In governorates with active conflict, victims often suing the compensation grants, the pension pay- Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice 21

ments, and the plots of land respectively. This Martyrs’ Foundation. This change has stirred po- means that even when victims receive a positive litical tensions. According to a representative of an decision on their cases, a variety of factors could Iraqi civil society organization, the Martyrs’ Foun- prevent the reparations from being delivered to dation is closely associated with the Dawa Party, them by the other government offices. Three which places high priority on compensating vic- members of parliament interviewed in Baghdad tims of the regime of Saddam Hussein.85 As a re- stated separately that many victims had received sult, many within the establishment are resistant confirmation of a positive outcome on their cases, to the idea of incorporating victims of military op- but no actual money.82 According to the Central erations and terrorism under their remit and Committee, the delays encountered in the release granting them the same privileges as victims of the of payments are due to the standard checks and Saddam Hussein regime. The Ministry of Finance procedures followed by the budget and cash ac- and the Public Pensions Authority also filed an ob- counting divisions in the Ministry of Finance. The jection to the amended law before the Federal process of granting land to victims has also Supreme Court, claiming the increase in compen- proved problematic, especially in Baghdad gover- sation amounts for martyrs constituted an unten- norate where there is a shortage of suitable resi- able financial burden on the state. However, dential land. As a result, many eligible victims according to a representative of another Iraqi civil have received neither a plot of land nor the equiv- society organization, the reasons behind this op- alent monetary value specified under the law.83 position are political rather than financial, as there was also strong opposition to the law in Following the 2015 amendment to Law 20, some 2008, when oil prices were at a record high.86 changes have been made to the institutional structure through which claims are received, partly in As a result of the 2015 amendment, the process of an effort to speed up the process of granting repa- granting reparations to victims has met with fur- rations. The Central Committee and subcommit- ther delays. The process of reconstituting the Cen- tees now work full-time, and their membership tral Committee and the subcommittees according structure has been somewhat simplified. The Cen- to the new membership structure specified in the tral Committee has also formed teams of adminis- law took several months.87 When interviewed in trative staff to speed up the processing of March 2017, the director of the division in the applications and to perform preliminary checks Martyrs’ Foundation responsible for compensat- on case files before presenting them to the com- ing victims covered by Law 20 stated that his of- mittee members for final decision.84 Nevertheless, fice had not been allocated a budget from the the Central Committee and subcommittees remain central government and they did not even have quasi-judicial bodies in essence rather than ad- the necessary furnishings to conduct their work.88 ministrative institutions, which places important Moreover, at the time of writing, the Ministry of limitations on victims in accessing reparations. Finance had not issued the directives required to begin the process of compensation for cases of Another important, and controversial, institu- martyrdom, injury, loss, and kidnapping.89 Conse- tional change introduced by the 2015 law is that quently, cases of property damage are the only responsibility for delivering reparations to mar- area of compensation in which the 2015 amend- tyrs and their families has been transferred to the ment has been implemented.90 Towards a comprehensive reparations scheme for victims of the conflict 5 with ISIS

“The system cannot deal with the Da’esh [ISIS] crisis. It was created for something else: for bombings here and there, or a military strike. Law 20 is good but the implementation mechanism does not have the capacity to deal with the challenges that we now face: thousands killed, thousands kidnapped, the scale of property destruction – nearly every bridge in Mosul has been destroyed.’’ – Former Chair, Central Compensation Committee, Baghdad

‘The first priority is to liberate the land from ISIS, and then the next priority is to protect people. Compensation comes Scope of violations and after liberation. Currently, donor money is going to recon- forms of reparations struction, rather than compensation.’ 92 In its current form, it unlikely that the Law 20 framework Conditions in Iraq now are very different from when Law would be able to effectively cover the range of violations 20 first went into practice. The conflict with ISIS has led to committed during the most recent conflict. While the stated the displacement of over 3 million people, large-scale de- focus of the law is ‘victims of military operations, military struction, and widespread violations of human rights and mistakes and terrorist actions’, it does not further specify international humanitarian law perpetrated by an array of the types of violations included under those categories. In actors. With the defeat of ISIS appearing imminent, ensur- practice, the only victims covered under the law are those ing accountability for these violations and justice for vic- who have been killed, kidnapped or gone missing; the phys- tims is an immediate priority as Iraq seeks to rebuild and ically injured; those who have been forced to leave studies recover from the conflict. Reparations should be a central or employment; and those who have lost property. element of these processes. This section explores some key considerations to be taken into account when planning for While a prioritization of certain types of violations has been reparations for victims of the conflict with ISIS, identifying justified in many cases where providing reparations to all ways in which the framework established by Law 20 could victims would be unfeasible, the focus of Law 20 clearly ex- be expanded and improved. cludes major types of violations that have been central fea- tures of the conflict. For example, victims of sexual violence, children recruited into forced military service, and those suffering from psychological trauma have no recourse to remedies under Law 20. Also missing from the law is a collective approach to reparations for those who have been Responsibility of victimized on the basis of their group belonging, as is the case for many of Iraq’s ethnic and religious minorities. international actors and armed groups Addressing this range of violations appropriately would require a mix of different forms of reparations. Currently, In order to be effective, any post-conflict reparations Law 20 is heavily focused on compensation. While com- scheme in Iraq needs to cover violations by all parties to the pensation has many merits, it is not always the most ap- conflict. Otherwise, the process could be seen as one-sided propriate form of reparations for some types of violations. and could risk inflaming tensions and perpetuating divi- For example, victims suffering from physical and mental sions. This issue is particularly challenging given the multi- health issues as a result of serious violations should have ple and diverse armed actors that have participated in access to rehabilitation, which in turn requires access to violations during the most recent phase of conflict. These adequate health services for a prolonged period of time. include ISIS and other armed opposition groups, the Iraqi In such a context, paying compensation for such services Security Forces, the Peshmerga, militias operating under the would not necessarily allow victims to deal in the best way banner of the PMF, members of the US-led coalition and possible with the harm suffered.93 Similarly, redressing other foreign states. wrongs committed against entire groups might entail other measures in addition to compensation, such as satisfaction This report has centred on the measures taken by the Iraqi (including truth-recovery and memorials) and guarantees government to provide reparations, but the Law 20 frame- of non-repetition. work is clearly insufficient on its own to cover violations committed by all the actors above. While the categories of Redressing violations committed against vulnerable ‘military operations’ and ‘military mistakes’ would appear groups poses particular challenges that are unlikely to be to refer primarily to actions taken by the Iraqi Security resolved through compensation alone. In the case of child Forces, and ‘terrorist actions’ presumably covers some ac- soldiers, comparative experience has shown that compen- tions by non-state armed groups, further measures are sation can actually produce negative effects, and may not needed to ensure that violations committed by all parties to be effectively spent to the benefit of the child.94 A combi- the conflict are included. nation of measures, such as access to rehabilitation and education, can be more effective in redressing the harm ISIS and other non-state armed groups inflicted on a child’s development by under-age military In Iraq, as in many other modern conflicts, non-state armed recruitment. Similarly, reparations for victims of sexual vi- groups have been responsible for a large share of the viola- olence should be designed in a way that appropriately ad- tions committed against civilians. This includes most obvi- dresses the multiple and long-term dimensions of the ously ISIS elements, but also an array of other militias harm suffered without causing re-victimization. This could operating under the umbrella of the Popular Mobilization include elements such as access to psychosocial care, vo- Forces96 or outside of it. Armed opposition groups party to cational training, and education for the victim’s children conflicts are bound by international humanitarian law and in addition to compensation.95 it is also becoming increasingly recognized that they may 24 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

Reparations for agents of the State or by persons or from enforced disappearances com- victims of enforced groups of persons acting with the au- mitted by state actors. thorization, support or acquiescence of disappearances the State, followed by a refusal to ac- While Law No. 20 provides repara- knowledge the deprivation of liberty or tions to the families of victims who Enforced disappearance is recog- by concealment of the fate or where- have been kidnapped or gone miss- nized as a serious violation that abouts of the disappeared person, ing, it does not specifically cover causes long-term pain and suffering which place such a person outside the cases of enforced disappearance. In not only for the direct victims, if they protection of the law.’ fact, there are no Iraqi laws that survive the ordeal, but also their rel- criminalize the act of enforced disap- atives and friends, who are left in a While enforced disappearances were pearance, as required by the ICPPED. state of uncertainty about the fate of practised widely by the Saddam Hus- To properly address enforced disap- their loved ones. As such, interna- sein regime until its overthrow by pearance, Iraq should not only enact tional law requires enforced disap- US-led forces, the period since 2003 legislation criminalizing the practice pearance to be recognized as a has seen the increased use of en- and specifying penalties for perpe- distinct offence with characteristics forced disappearance by non-state trators, but also recognize the right distinguishing it from other depriva- actors, including by ISIS. Most re- of victims and their families to repa- tions of liberty. The International cently, the PMF have been accused ration, irrespective of whether or not Convention on the Protection of all of forcibly disappearing hundreds or the victim has been declared dead. Persons from Enforced Disappear- even thousands of Sunni Arab men Moreover, the government should ances (ICPPED), to which Iraq is and boys captured while fleeing ISIS- take measures to uphold relatives’ party, defines enforced disappear- held territory. The ICPPED also re- right to know the truth regarding the ance as: quires state parties to take measures circumstances of the enforced disap- to address enforced disappearances pearance, the progress and results ‘the arrest, detention, abduction or any committed by non-state actors, while of the investigation, and the fate of other form of deprivation of liberty by recognizing these acts as distinct the disappeared person.

have certain human rights obligations, alongside likely to accept. However, one avenue to explore states.97 However, it is less clear whether they is whether assets confiscated from the group or should be responsible for providing reparations its members could be used to fund a reparations to victims of their violations, or whether this role effort implemented by the Iraqi government or should be left for states. the international community. On the other hand, militias that have been active on the anti-ISIS side In practice, it is not always feasible or desirable to may continue to exist after the end of the conflict compel armed groups to provide reparations. and some enjoy a higher degree of legitimacy in Armed groups may be militarily defeated and the eyes of the Iraqi government. These groups cease to have an organized presence in the after- might be engaged in the reparations process as a math of a conflict. Even if they continue to exist, means of holding them accountable for violations they may not have the resources or political will committed. Appropriate reparations in this case to pay reparations. Governments may also refuse should not be limited to compensation alone but to deal directly with armed groups by including could also include symbolic measures such as them in the reparations process, as doing so could public apologies. impart those groups with a degree of legitimacy.98 Members of the US-led coalition The factors above mean that it is unrealistic to ex- ‘Those who have created the destruction should pect that ISIS will play a direct role in granting pay the compensation. And the greatest respon- reparations to its victims, as this is a role neither sibility [in Ramadi] lies with the Americans.’ 99 the group nor the Iraqi government would be Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice 25

‘I know a man from al-Whyalieh [in Tal Afar dis- but harm has been incurred, in line with previ- trict] who lost all 26 members of his family in an ous practice.103 airstrike. They told him it was a mistake. In the Strategic Framework Agreement [between Iraq and the US] is there a provision giving impunity Processes and to the military? We don’t know.’ 100 evidence

The US-led Combined Joint Task Force (also As discussed in the previous section, the standard known as Operation Inherent Resolve), which of evidence used up until now in the Law 20 repa- began conducting anti-ISIS airstrikes in Iraq in rations process is quite high. Although the need to August 2014, is clearly responsible for significant verify claims and prevent fraud is understand- civilian casualties and damage to civilian homes able, the evidentiary requirements currently used and infrastructure. While incidental civilian casu- place barriers on victims in accessing reparation. alties are not necessarily unlawful under interna- Moreover, they cause long delays in the process of tional humanitarian law, the scale of civilian receiving and assessing claims. This problem will deaths raises the question of whether members of likely be compounded in the future given the large the coalition have taken constant care to spare the number of victims who have suffered violations civilian population and taken all feasible precau- during the most recent conflict. Consequently, ef- tions to avoid, or in any event minimize, civilian forts should be made to simplify the documenta- death or injury or damage to civilian objects. In tion requirements and speed up the processing of certain instances, coalition attacks have also been claims for victims of the conflict with ISIS. alleged to breach the proportionality principle in the conduct of military operations in Iraq. There are already examples in Iraq where documentation requirements have been simplified to Up to now, the coalition and its members have ap- ease the processing of reparations claims in spe- peared reluctant to conduct thorough investiga- cial cases. Following the July 2016 Karrada bomb- tions into incidences of civilian casualties, and ing, which claimed the lives of hundreds of there has been almost no effort to provide repa- civilians, an ad hoc reparations committee set up rations to victims of airstrikes. As of July 2017, the by the Prime Minister opted to accept victims’ coalition had publicly admitted to 603 ‘accidental’ claims on the basis of death certificates only, re- civilian deaths in the course of its airstrikes in portedly allowing them to finish their work within Iraq and Syria. However, the coalition did not con- 40 days.104 Property claims are another area that duct interviews with witnesses on the ground as warrants the adoption of a more flexible ap- part of its information-gathering, and a leading proach, since many victims are unlikely to possess monitoring group contended as of August 2017 complete documentation that confirms their own- that the true death toll was 5,117 – more than ership of damaged property or housing, especially eight times the coalition figure.101 Despite these if they have been displaced. The Central Commit- high figures, the coalition had reportedly only re- tee has already initiated some modifications to the ceived two compensation requests and issued two procedures for victims from rural areas, who are condolence payments over the course of the oper- now permitted to submit a pledge by a village ation as at June 2017.102 leader or other relevant authority to confirm their ownership of property if they do not possess offi- The US-led coalition, as well as its individual cial documents.105 A representative of a civil soci- members, must take greater responsibility to- ety organization interviewed for this report also wards the victims of its military operations. This stated that her organization was supporting vic- should include conducting effective, prompt, tims in Ninewa governorate to use geographic in- thorough and impartial investigations into all formation system (GIS) data to corroborate civilian casualties, and paying reparations to vic- damage to their properties.106 tims or their families in cases where international law has been violated. The US should also In addition to carefully reconsidering the docu- consider granting condolence payments in cases mentation requirements needed to claim repara- where international law has not been violated tions, Iraq should also take steps to ensure that 26 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

citizens are made aware of the reparations pro- Finally, Iraq should also place priority on building cess and their rights thereunder. In the course of a central and unified registry of victims to further interviews conducted for this report, it emerged improve its method of work. A registry of victims that even politicians lacked understanding of the is needed to facilitate reparation but also to mea- reparations process created by Law 20, and some sure the reach of the programme and to be able to appeared completely unaware of the system. Ac- correct work on reparations as the programme is cording to a senior UN representative interviewed implemented. When interviewed in March 2017, in Baghdad, there may have been insufficient in- the director of the division in the Martyrs’ Foun- vestment in raising awareness about the law.107 dation responsible for compensating victims Awareness-raising will not only ensure that the under Law 20 stated that his team was working on greatest possible number of victims are able to building a database of martyrs killed since 2003, claim reparations, but will also enhance the effi- but that they needed more support to ensure the ciency of the process by reducing the incidence of inclusion of all those killed after the ISIS advance improperly submitted claims. of 2014.108 Conclusions and 6 recommendations

As Iraq seeks to close the chapter on nearly four years of destructive conflict with ISIS, it is vital that measures be put in place to help individuals and, by extension, Iraqi society as a whole, to recover from the atrocities that have taken place. While this transition will require a range of concurrent interventions, reparations should be a central part of the equation. Not only do reparations have intrinsic moral value, but they are enshrined in international legal obligations to which Iraq is party.

Iraq already has significant expertise in the implementa- humanitarian assistance and development projects, which tion of reparations programmes, most notably the system are particularly important in contexts of poverty and de- established by Law 20 on Compensation for Victims of Mil- privation to ensure that victims can take full advantage of itary Operations, Military Mistakes and Terrorist Actions. reparations.109 Therefore, creating dialogue between rele- Iraq should carefully reflect on the merits and flaws of this vant stakeholders responsible for such interventions is cru- system and use the lessons learned in the design of a more cial in Iraq to ensure that points of potential cooperation comprehensive scheme for victims of the conflict with ISIS. and synergy are soon identified. With careful planning, a Such an undertaking will require significant expansion in jointly implemented, comprehensive transitional justice the scope of the law and a reconsideration of processes in and reconstruction process would enable the recognition order to effectively reach all victims, as well as strong im- of victims, build trust in state institutions, and foster rec- plementing institutions with adequate financial resources. onciliation and democratization.

Lastly, it is important to note that, in order to deliver the maximum benefits to victims, reparations should not be Recommendations implemented in isolation from other transitional justice measures. Reparations would be less effective if provided To the Government of Iraq: to victims without recognition of responsibility, full investigation of the violations suffered and disclosure of the • Strengthen the capacity of institutions involved in the truth about what happened. Properly conceived, repara- reparations process by ensuring that staff have access tions can also enhance other policy interventions, such as to specialized training on the delivery of reparations 28 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

• Acknowledge violations committed by all • Anchor reparations programmes within a parties to the conflict and ensure that all vic- transitional justice framework, which in- tims are eligible for reparations cludes elements such as judicial accountabil- • Expand the scope of harm eligible for repara- ity and truth-seeking alongside reparation tion to include mental and sexual violence in • Cooperate with other governmental and in- addition to physical violence ternational agencies to identify points of con- • Adopt a multi-pronged approach to repara- gruence between reparations programmes, tions that includes measures such as restitu- humanitarian assistance, and development tion, rehabilitation, satisfaction and programmes. guarantees of non-repetition alongside compensation To the international community: • Consider designing special measures to address instances of collective harm inflicted • Conduct effective, prompt, thorough and im- on communities, especially ethnic and reli- partial investigations into all instances of gious minorities civilian casualties caused by international • Adopt simplified and flexible evidentiary re- military intervention, and provide repara- quirements for reparations processes so as to tions to victims avoid putting an excessive burden on victims • Provide technical support to the Iraqi gov- • Consult with affected communities in the de- ernment in designing a comprehensive and sign and improvement of any reparations appropriate reparations scheme for victims programmes of the conflict with ISIS • Consider the establishment of a central reg- • Consider developing jointly funded and im- istry of victims to facilitate access to repara- plemented reparations programmes in coop- tions and enable the reparations programme eration with the Iraqi government to be measured and further improved • Work with civil society organizations to raise • Abide by a ‘do-no-harm’ approach in all awareness of existing reparations schemes reparations programmes and support victims in filing claims. Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice 29

Endnotes

1 De Greiff, P., ‘Justice and reparation’, in P. de 13 International Covenant on Civil and Political Greiff (ed.), The Handbook of Reparations, New Rights, Article 2; International Covenant on York, Oxford University Press, 2006, p. 454. Economic, Social and Cultural Rights, Article 2; 2 In the first piece written by de Greiff trying to General Comment. See also, Velasquez Rodriguez justify reparations from a justice perspective and v. Honduras, Merits, 29 July 1988, para. 165–8; linking it to transitional justice he wrote about Human Rights Committee, General Comment 31, three goals: recognition, civic trust and social op. cit., CCPR/C/21/Rev.1/Add.13, 26 May 2004, solidarity. However, in his later writing he has para. 16 in particular. revised the argument and he identifies four 14 Theo van Boven, ‘Victims’ rights to a remedy and goals: two ‘mediate’ goals (recognition and civic reparation: the new United Nations principles trust) and two ‘final’ goals (reconciliation and and guidelines’, in C. Ferstman, M. Goetz and A. democratization). Contrast ibid., p. 455 with de Stephen (eds), Reparations for Victims of Genocide, Greiff, P., ‘Theorizing transitional justice’, in M. War Crimes and Crimes against Humanity: Systems Williams, R. Nagy and J. Elster (eds), Transitional in Place and Systems in the Making, The Justice, New York, Nomos/New York University Netherlands, Brill, 2009. Press, 2012, pp. 31–77. 15 UN General Assembly, Basic Principles on the 3 O’Neill, O., Towards Justice and Virtue, Cambridge, Right to a Remedy and Reparation for Victims of Cambridge University Press, 1988, p. 42 and de Gross Violations of International Human Rights Greiff, ‘Justice and reparation’, op. cit., p. 460. It Law and Serious Violations of International should be noted, however, that under Humanitarian Law, 2005, UN doc. A/Res/60/147, international law, the duty is to provide Principle VII.b. reparations not just to citizens but to all victims 16 Ibid., Principle IX.18. of violations. 17 The interplay between human rights law and 4 Ibid., p. 460. international humanitarian law in times of 5 Ibid., p. 461. conflict or occupation raises important questions 6 Ibid., p. 463. relevant to reparations but is outside the scope of this report; see e.g. Lattimer, M. and Sands, P., 7 De Greiff, ‘Theorizing transitional justice’, op. cit., The Grey Zone: Civilian Protection between Human p. 51. Rights and the Laws of War, Oxford, Bloomsbury, 8 Ibid. 2018. 9 Ibid., pp. 52–8. 18 Acuerdo Final para la Terminación del Conflicto y 10 For the general principle, see International Court la Construcción de una Paz Estable y Duradera, of Justice, The Factory at Chorzow (Claim for Bogotá, 24 November 2017, , p. 124, 179–92, Indemnity), 26 July 1927, 21 and International available at: http://www.altocomisionado Law Commission, Draft Articles on paralapaz.gov.co/procesos-y-conversaciones/ Responsibility of States for Internationally Documentos%20compartidos/24-11-2016Nuevo Wrongful Acts, with Commentaries, 2001, Article AcuerdoFinal.pdf 1. 19 Sandoval, C., ‘The concepts of “injured party” 11 Human Rights Committee, General Comment 31, and “victim” of gross human rights violations in ‘The Nature of the General Legal Obligation the jurisprudence of the Inter-American Court of Imposed on States Parties to the Covenant’, Human Rights: a commentary on their CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 10. implications for reparations’, in Ferstman et al., 12 Ibid. The extraterritoriality of human rights op. cit., Reparations for Victims of Genocide, pp. obligations is relevant when considering the 243–82. Also Rubio, R. and Sandoval, C. international responsibility of the United States ‘Engendering the reparations jurisprudence of and its allies during the occupation of Iraq that the Inter-American Court of Human Rights: the began in 2003. Unlike many other states promise of the cotton field judgment’, Human (including the UK), the US does not accept the Rights Quarterly, vol. 33, 2011, pp. 1062–91. extraterritorial application of such obligations. It 20 UN General Assembly, Basic Principles, op. cit., should also be noted that while the UN Security Principle V.8. Council was able to compel Iraq to provide 21 Victims and Land Restitution Law, Article 3. reparations following its occupation of Kuwait in 22 Ibid. 1990–1, it is very unlikely to agree such action against permanent members with veto powers. 23 Ley que Crea el Plan Integral de Reparaciones, Ley 28592/2005, Article 4. 30 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

24 Inter-American Court of Human Rights, Bamaca 38 Lira, E.,’The reparations policy for human rights Velasquez v. Guatemala, Reparations and Costs, violations in Chile’, de Greiff (ed.), The Handbook 22 February 2002. of Reparations, op. cit., pp. 55–100. 25 Inter-American Court of Human Rights, Juan 39 Victims and Land Restitution Law, Articles 47–68. Humberto Sanchez v. Honduras, Preliminary 40 Sierra Leone Truth and Reconciliation Objections, Merits, Reparations and Costs, 7 June Commission, Report, vol. 2, ch. 4, p. 250. 2003. 41 UN General Assembly, Basic Principles, op. cit., 26 ICC, Trial Chamber I, Situation in the Democratic Principle IX.16, and Set of principles for the Republic of the Congo in the Case of the Prosecutor protection and promotion of human rights v. Thomas Lubanga Dyilo, “Decision establishing through action to combat impunity, 1997, UN the principles and procedures to be applied to doc. E/CN.4/Sub.2/1997/20/Rev.1, Principle 32. reparations,” ICC-01/04-01/06, 7 August 2012 and 42 Law 19.123/1992, available at: http://www. ICC, Appeals Chamber, “Judgment on the leychile.cl/Navegar?idNorma=30490 appeals against the “Decision establishing the principles and procedures to be applied to 43 Ibid., Article 1. reparations” of 7 August 2012,” ICC-01/04-01/06 44 Ibid. A A 2 A 3, 3 March 2015, 45 Unidad de Restitución de Tierras, Informe 2016. 27 Peace Agreement between the Government of 46 UN General Assembly, Basic Principles, op. cit., Sierra Leone and the United Revolutionary Principle VIII. United Front of Sierra Leone, Article XXX, 1999, 47 Victims and Land Restitution Law, Article 158. available at: http://www.sierra-leone.org/ lomeaccord.html 48 Ibid., Article 5. 28 UN General Assembly, Basic Principles, op. cit., 49 Ibid., para. 38. Principle VII.b. 50 Ibid., para. 78. 29 Inter-American Court of Human Rights, Velasquez 51 Comisión Valech, Informe de la Comisión Nacional Rodriguez v. Honduras, Judgment, 29 July 1988, sobre Prisión Politica y Tortura, 2005, p. 39–47. para. 64. 52 Observatorio de Derechos Humanos, Medidas de 30 Ibid., para. 66. Reparación en Chile desde 1990, May 2012, 31 UN General Assembly, Basic Principles, op. cit., available at: http://www.icso.cl/wp-content/ Principle IX.15. uploads/2011/03/Descripcion-de-medidas-repar acion-MAYO2012.pdf, p. 25. 32 Aubry, S. and Henao-Trip, M., ‘Collective reparations and the International Criminal 53 Rivas, J., ‘Official victims’ registries: a tool for the Court’, Briefing Paper 2, Transitional Justice recognition of human rights violations’, Journal of Network, University of Essex, August 2011. Human Rights Practice, vol. 8, no. 1, 2016, pp. 33 UN General Assembly, Basic Principles, op. cit., 116–27. Principle V.8 or VIII.13, or The Rabat Report: The 54 Information obtained from the Unidad de Concept and Challenges of Collective Reparations, Victimas, http://mi.unidadvictimas.gov.co/RUV International Center for Transitional Justice (ICTJ), 55 Recordar y Reparar: Políticas Públicas que Hacen 2011. Justicia: Cuatro Temas en la Agenda de Reparación 34 Office of the High Commissioner for Human en Colombia, Bogotá, International Center for Rights (OHCHR), Rule of Law Tools for Post- Transitional Justice (ICTJ), 2011, pp. 13–50 at Conflict States: Reparations Programmes, pp. 24–6. available at: www.ohchr.org/Documents/ 56 South African Truth and Reconciliation Commission Publications/ReparationsProgrammes.pdf Report, vol. 5, ch. 5, para. 56. 35 Guidance Note of Secretary-General, Reparations 57 Ibid. for Conflict-Related Sexual Violence, 2014, available at: http://www.ohchr.org/Documents/Press/ 58 Ibid., p. 189. GuidanceNoteReparationsJune-2014.pdf 59 National Commission for Social Action, Sierra 36 Sandoval, C., Rehabilitation as a Form of Leone Reparations Programme Newsletter, Reparation under International Law, London, October 2016. REDRESS, 2009. 60 Report and Proposals for the Implementation of 37 Ley No. 19.123, 8 February 1992, and Ley 19.980, Reparations in Sierra Leone, International Center 29 October 2004. This later law amended Law for Transitional Justice (ICTJ), December 2009, 19.123, increasing the pension by 50 per cent available at: https://www.ictj.org/sites/default/ monthly and adding more health benefits. files/ICTJ-SierraLeone-Reparations-Report-2009 -English.pdf., p. 7. 61 Ibid., p. 10. Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice 31

62 Van Houtte, H., Das, H. and Delmartino, B., ‘The 79 Human Rights Watch, ‘Iraq: ISIS bombings are United Nations Compensation Commission’, in crimes against humanity, compensate civilian de Greiff (ed.) The Handbook of Reparations, op. victims’, op. cit. cit., pp. 322–78, at p. 335–6. 80 Interview with Hazem Al-Haidary, Al-Khat Al- 63 UN Security Council, Priority of Payment and Sakhin television programme, op. cit. Payment Mechanisms: Guiding Principles, 81 Interview with an Iraqi Member of Parliament S/AC.26/Dec.17, 24 March 1994. and Vice-Chair of the Migration and 64 United Nations Compensation Commission, Displacement Committee, Baghdad, 8 March Summary of Awards, www.uncc.ch/summary 2017. -awards 82 Interviews with Members of Parliament in 65 Ley de Victimas y Restitución de Tierras, Article Baghdad, 8–9 March 2017. 177. 83 Interview with Tarek Al-Mandalawi, Al-Tali’a Wa 66 Fondo para la Reparacion de las Victimas, An-nas television programme, Al-Tali’a Satellite ‘Unidad para la Atención y la Reparación Integral Channel, 8 April 2017. a las Victimas’, Informe Ejecutivo, 30 September 84 ‘Al-amana al-’amma limajlis al-wazara’: al-lajna 2016. al-markazia lita’widh al-mutadharireen tunaqash 67 UN Security Council Resolutions 1483(2003) and al-aliat al-jadida li-istiqbal mu’amalat 1956(2010). almutadharira mumtalakatihim wafq al-ta’dil al’awal lil-qanun’, 6 March 2017, http://www. 68 Lomé Peace Agreement, Article XXVI. cabinet.iq/ArticleShow.aspx?ID=7275 69 Sierra Leone Truth and Reconciliation 85 Interview with a representative of an Iraqi civil Commission, Report, vol. 2, ch. 4, para. 224–32. society organization, Suleymaniya, 19 July 2017. 70 ICTJ, 2009, op. cit., p. 14. 86 Interview with Hussein Ali abd al-Sadah, Al- 71 Iraq Body Count, ‘Documented civilian deaths Madhmoun television programme, op. cit. from violence’, https://www.iraqbodycount.org/ 87 ‘Al-lajna al-markazia lita’widh almutadarireen database tushakkil firaq ‘aml min muazafiha litadqiq al- 72 ‘Loss’ here refers to cases in which the victim is mutarakim min mu’amalat almutadarira presumed to be dead, but the corpse has not mumtalakatihim’, 16 August 2016, http://www. been located and therefore no death certificate cabinet.iq/ArticleShow.aspx?ID=6891 has been issued. 88 Interview with the director of the Division for 73 The Martyrs’ Foundation is an independent Compensating Victims of Military Operations, government body established in 2006 that was Military Mistakes and Terrorist Actions within the initially charged with identifying martyrs of the Martyrs’ Foundation, Baghdad, 12 March 2017 Saddam Hussein regime and providing 89 Interview with a representative of an Iraqi civil compensation and support to their families. society organization, Suleymaniya, 19 July 2017. 74 Interview with Hussein Ali abd al-Sadah, Al- 90 Interview with an administrative manager from Madhmoun television programme, Al-Na’eem the Central Committee responsible for property Satellite Channel, 19 August 2016. compensation, Baghdad, 12 March 2017. 75 Human Rights Watch, ‘Iraq: ISIS bombings are 91 Interview with the former chair of the Central crimes against humanity, compensate civilian Committee, Baghdad, 13 March 2017. victims’, 15 January 2017. 92 Interview with an Iraqi Member of Parliament 76 Interview with Hazem Al-Haidary, Al-Khat As- and Vice-Chair of the Migration and Sakhin television programme, Afaq Satellite Displacement Committee, Baghdad, 8 March Channel, 19 September 2012. 2017. 77 Interview with legal adviser to the Human Rights 93 Sandoval, C., Rehabilitation as a Form of Committee, Baghdad, 13 March 2017. Reparation under International Law, London, 78 Interview with legal adviser to the Council of REDRESS, 2009. Ministers, Baghdad, 12 March 2017. The incident 94 Birchall, E., Francq, E. and Pijnenburg, A., ‘The being referenced occurred in 2005 during a Shia International Criminal Court and reparations for religious occasion when pilgrims crossing the Al- child victims of armed conflict’, Briefing Paper 4, A’immah bridge on their way to al-Khadhimiyah Transitional Justice Network, University of Essex, mosque stampeded after hearing rumours that 2011. there was a suicide bomber in the crowd. Media reports suggest that over 900 died, crushed or 95 Rames, V., Healing the Spirit: Reparations for drowned. Survivors of Sexual Violence Related to the Armed Conflict in Kosovo, Kosovo, Office of the High Commissioner for Human Rights, 2013. 32 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

96 Note however that the current complex status of 104 Interview with Hussein Ali abd al-Sadah, Al- the PMF is governed by Executive Order 91, Madhmoun television programme, op. cit. passed by the Iraqi Prime Minister in February 105 ‘Al-lajna al-markazia lita’widh al-mutadharireen: 2016, which recognizes the PMF as an shumul al-mumtelikat al-mushida kharij independent military formation that is part of the almudun walqasabat alti la yamlik ashabha Iraqi armed forces and attached to the sanadat malakia bil-ta’widh’, 7 May 2017, commander of the armed forces. http://www.cabinet.iq/ArticleShow.aspx?ID=7414 97 Dudai, R., ‘Closing the gap: symbolic reparations 106 Interview with a representative of an Iraqi civil and armed groups’, International Review of the society organization, Suleymaniya, 19 July 2017. Red Cross, vol. 93, no. 883, 2011, pp. 784–85. 107 Interview with the Deputy Special Representative 98 Ibid. of the UN Secretary-General, Baghdad, 12 March 99 Interview with Iraqi Member of Parliament, 2017. 9 March 2017. 108 Interview with the director of the Division for 100 Interview with Iraqi Member of Parliament, Compensating Victims of Military Operations, 8 March 2017. Military Mistakes and Terrorist Actions within the Martyrs’ Foundation, Baghdad, March 2017. 101 Figure cited is from Airwars, https://airwars.org 109 Roth-Arriaza, N. and Orlovsky, K., ‘A 102 Human Rights Watch, ‘Iraq: civilian casualties complementary relationship: reparations and mount in west Mosul’, 6 June 2017. development’, in de Greiff, P. and Duthie, R. 103 Amsterdam International Law Clinic and Center (eds), Transitional Justice and Development: Making for Civilians in Conflict, Monetary Payments for Connections, New York, SSRC Publications, 2009, Civilian Harm in International and National pp. 170–213. Practice, 2013. Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice 33 34 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

In brief

The responsibility of states to provide reparation to individuals who ploying multiple forms of reparations, widening coverage to include have experienced violations in armed conflict is well established all parties to the conflict, and simplifying evidentiary requirements today under international law. If well designed, reparations can em- imposed on victims. power, dignify and return a voice to victims, as well as provide them with redress for the harm caused. From Colombia and Peru to Sierra As Iraq prepares to rebuild and recover from the conflict with ISIS, Leone, a variety of reparations schemes have been designed ensuring accountability for violations committed and justice for vic- around the world to address the effects of serious violations on tims is an immediate priority. This report seeks to inform the dis- those directly affected and on the societies in which they live. cussion on reparations in Iraq through analysis of both international and domestic practice, with the goal of encouraging the develop- In Iraq, millions of victims have suffered over the decades as a con- ment of a comprehensive framework that can provide adequate sequence of gross human rights violations and serious violations of and effective reparations to victims. humanitarian law. Most recently, the conflict with ISIS has led to the displacement of over 3.1 million people, the killing of thousands, and This report recommends: targeted campaigns against ethnic and religious communities. The • The Government of Iraq should acknowledge violations com- conflict has also resulted in widespread damage to infrastructure mitted by all parties to the conflict, and ensure that victims and personal property. Victims of these violations have a right to ad- are eligible for reparations. Building upon existing experi- equate, prompt and effective redress for the harm they suffered. ence, it should adopt a multi-pronged approach to reparations that includes measures such as rehabilitation, Iraq already has significant experience in providing reparations, in- satisfaction and guarantees of non-repetition alongside com- cluding the work of the Iraq Property Claims Commission covering pensation land-related violations committed during the Saddam Hussein regime. More recently, Law No. 20 on Compensating Victims of Mil- • Reparations programmes should be anchored within a transi- itary Operations, Military Mistakes and Terrorist Actions, first passed tional justice framework, which includes elements such as ju- in 2009, provides redress to victims who have suffered violations dicial accountability and truth-seeking alongside reparation since 2003. Between 2011 and 2016, more than IQD 420 billion (USD $355 million) was distributed to victims under this framework. • Members of the U.S.-led coalition and other foreign states conducting military operations in Iraq should conduct effec- While considerable progress has been made under the Law No. 20 tive, prompt, thorough and impartial investigations into all in- framework in compensating victims of military operations, military stances of civilian casualties caused by their forces, make the mistakes and terrorist actions, the most recent phase of conflict results transparent and provide reparations to victims raises new challenges. These include the range and severity of violations committed, the wide diversity of armed actors involved, and • The international community should consider developing the barriers that widespread destruction and displacement present jointly funded and implemented reparations programmes in to victims’ ability to participate in reparations processes. This report cooperation with the Iraqi government, and work with civil argues that the existing reparations framework in Iraq could be society organizations to raise awareness of existing repara- strengthened by expanding the scope of violations covered, em- tions schemes and support victims in filing claims.

Ceasefire Centre for Civilian Rights and Minority Rights Group International 54 Commercial Street, London E1 6LT, United Kingdom www.ceasefire.org | www.minorityrights.org/ceasefire ISBN: 978-1-907919-89-3 This report has been produced with the financial assistance of the Swiss Federal Department of Foreign Affairs and the European Union. The contents of this report are the sole responsibility of the publishers and can under no circumstances be regarded as reflecting the position of the Swiss FDFA or the European Union.