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The Rights of Victims of Violence by Non-State Actors in Iraq Post-2003

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The Rights of Victims of Violence by Non-State Actors in Iraq Post-2003 Durham E-Theses THE RIGHTS OF VICTIMS OF VIOLENCE BY NON-STATE ACTORS IN IRAQ POST-2003 AL-ANAIBI, FARIS,KAREEM,MOHAMMAD How to cite: AL-ANAIBI, FARIS,KAREEM,MOHAMMAD (2018) THE RIGHTS OF VICTIMS OF VIOLENCE BY NON-STATE ACTORS IN IRAQ POST-2003 , Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/12706/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 THE RIGHTS OF VICTIMS OF VIOLENCE BY NON-STATE ACTORS IN IRAQ POST-2003 By Faris Al-Anaibi Abstract Violence and victimisation in Iraq is a long story and, in recent times, specifically in the aftermath of the 2003 controversial occupation of the country by the United States and its allies, and the atrocities committed by so-called ISIS, the situation has escalated to a horrific extent. Ethno-sectarian violence, bombings, armed conflict and enforced disappearances have demonstrated the complete absence of any effective reaction by the state, and this has undermined efforts at consolidation by the Iraqi state and its legal system following the downfall of the previous oppressive regime in 2003. Hundreds of thousands of Iraqi citizens have become victims of violence by non-state actors, largely due to the failure of the 2003-transition process and the flawed constitution and divisive ethno-sectarian system. This fuelled political conflict, widespread corruption, insurgency, terrorism, and extremism, paralysing the Iraqi state and its criminal justice system. This thesis claims that the Iraqi state has failed to provide redress for non-state violence. It further argues, based on international human rights’ instruments, that the state owes positive duties to citizens to protect them from such violence. The thesis will be argue that one method – but not in isolation - of gradually addressing the failings of the Iraqi state would be for Iraqi citizens themselves to take ‘substantive steps’ to ‘establish a healthy civil society reflecting social contract principles.’ Such steps can and should be taken with the support of governmental bodies and other authorities, as part of a genuine and inclusive transitional justice programme in which accountability, truth recovery, reparations, legislative and institutional reform, and reconciliation will be vital, if any future stability and peaceful coexistence is to be established, especially after the ISIS conflict. Despite being a very lengthy task, at present the security situation is gradually improving following the defeat of ISIS. The foregoing steps are arguably also essential for the consolidation of the state and its institutions over the rule of law, in which i respect for and protection of the human rights of citizens is the primary objective. This will be imperative in restoring citizens’ trust, confidence, and hope that the Iraqi state and its criminal justice system will gradually honour their positive obligations. ii THE RIGHTS OF VICTIMS OF VIOLENCE BY NON-STATE ACTORS IN IRAQ POST-2003 By FARIS KAREEM MOHAMMAD AL-ANAIBI B.Sc., M.Sc. Submitted in accordance with the requirements for the degree of Doctor of Philosophy Durham Law School Durham University 2018 iii Table of Contents Abstract ............................................................................................................................. i Table of Content ............................................................................................................. iv List of Cases ................................................................................................................... vii List of Legislations ....................................................................................................... xiii List of Conventions ...................................................................................................... xiv List of Abbreviations .................................................................................................... xv Statement of Copyright ............................................................................................... xvi Acknowledgements ..................................................................................................... xvii Dedication ................................................................................................................... xviii Chapter 1: Introduction ................................................................................................. 1 1.1 The Context of the Thesis ................................................................................................. 1 1.2 The Parameters of the Thesis ........................................................................................... 5 1.3 The Objectives of the Thesis ............................................................................................. 5 1.4 An Original and Significant Contribution to Knowledge .............................................. 6 1.5 Structure of the Thesis ...................................................................................................... 6 Chapter 2: The Right to Security: An International Overview ................................. 9 2.1 Introduction ....................................................................................................................... 9 2.2 The State’s Positive Obligation to Protect the Right to Life ....................................... 10 2.2.1 The Moral/ Ethical Philosophical Justifications for Imposing Such an Obligation on the State ............................................................................................................................... 10 2.2.2 Criticisms of the Social Contract Theory ................................................................... 19 2.2.3 The Evolution of the Right to Life in International Human Rights Law ................... 23 2.3 The Nature and Scope of the State’s Positive Obligations ........................................... 40 2.3.1 Criticisms of the State’s Positive Obligation ............................................................. 45 2.4 Conclusions ...................................................................................................................... 47 Chapter 3: International Procedural Obligations of Investigation, Prosecution and Punishment .................................................................................................................... 48 3.1 Introduction ..................................................................................................................... 48 iv 3.2 The Moral/Ethical Justification for Imposing such an Obligation on the State ........ 49 3.2.1 Summary Remarks ..................................................................................................... 51 3.2.2 The Controversy Concerning the Rights of Victims to Justice .................................. 51 3.2.3 The Right of Victims to Participate in the Criminal Justice System .......................... 56 3.3 The Current Provisions of International Law .............................................................. 59 3.3.1 The Duty to Investigate and bring Perpetrators to Justice under the Jurisprudence of HRC ..................................................................................................................................... 60 3.3.2 Summary Remarks ..................................................................................................... 65 3.4 Regional HR Law ............................................................................................................ 65 3.4.1 The Current Approach under the Inter-American Instruments .................................. 66 3.4.2 The Current Approach under European Instruments ................................................. 72 3.5 Conclusions ...................................................................................................................... 85 Chapter 4: The Right to Reparation: An International Overview ........................... 88 4.1 Introduction ..................................................................................................................... 88 4.2 The Development of the Notion of State Responsibility for the Reparation of Violations of HR .................................................................................................................... 90 4.2.1 Summary Remarks ..................................................................................................... 93 4.3 The Philosophical/Ethical Justifications for Imposing Reparatory Obligations on the State ........................................................................................................................................ 94 4.3.1 The Failure to Protect ................................................................................................
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