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Reparations for the Victims of Conflict in Iraq

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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. © Ahmad Al-Rubaye/AFP/Getty Images 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 orga- nizations 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-com- mercial 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
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