Tue, 13 Nov 2018
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Iraq: Officials Threatening, Arresting Lawyers

Human Rights Watch
12 Sep 2018, 15:12 GMT+10

(Erbil) - Iraqi security officers are threatening, and in some cases arresting, lawyers seen to be providing legal assistance to Islamic State (ISIS) suspects and families perceived to be related to ISIS members, effectively denying them legal services, Human Rights Watch said today.

Lawyers said that, fearing for their lives, they have stopped representing ISIS suspects or people perceived to be related to them. As a result, ISIS suspects are relying on state-appointed defense lawyers, who rarely provide an adequate defense, and families with perceived ties to ISIS suspects are generally left without access to legal services.

"The Iraqi government is attacking lawyers for doing their job and is effectively preventing people who need legal services from getting them," said Lama Fakih, deputy Middle East director at Human Rights Watch. "In addition to being illegal, these attacks have a corrosive effect on the rule of law by sending a message that only some Iraqis have the right to legal representation."

In July and August 2018, Human Rights Watch interviewed 17 lawyers working in and around Mosul for international and local organizations that provide legal services to those affected by Iraq's recent armed conflict. The services include defending people against terrorism charges and assisting families who lived under ISIS control to get the civil documentation they need to live in government-controlled areas, an well as for welfare benefits (known as Public Distribution System or PDS cards) that they lost during their time under ISIS.

The lawyers all said they had witnessed or experienced threats and other verbal harassment by National Security Service or Ministry of Interior Intelligence and Counter Terrorism officers for providing legal representation to those viewed by security forces as "ISIS" or "ISIS families." One said an Interior Ministry intelligence officer detained him for his legal activities for two hours, while another said that intelligence officers detained two other legal aid workers for two months, finally releasing them without charge.

The lawyers all said that officers automatically viewed certain people as ISIS-affiliated based on where they are from or their tribe or family name, or whether they or their relatives show up on a set of databases of those "wanted" for ISIS affiliation.

The lawyers who assisted clients to obtain documentation said that while they do not ask potential clients if they have relatives wanted by the authorities, they have responded to the threats by rejecting clients if they have any indication that a family has a relative wanted or detained for ISIS affiliation. They said that representing these families would lead to further personal threats, and that even with their legal assistance, these families would be refused civil documentation.

Iraqis lacking full civil documentation can readily be deprived of their basic rights. They cannot freely move around for fear of arrest, get a job, or apply for welfare benefits. Children denied birth certificates may be considered stateless and may not be allowed to enroll in school. Women unable to obtain death certificates for their spouses are unable to inherit property or remarry. Those with missing civil documentation need to go through a sometimes-onerous administrative process and benefit greatly from the help of a lawyer in passing through the different hurdles to obtain their documents.

Four of the lawyers said they provided legal representation to ISIS suspects facing criminal prosecution. But all four said that they would only accept a client if they were convinced they were innocent, and were in prison erroneously, most often because they shared a name with an ISIS suspect.

The head of one organization providing legal services said on July 13 that at the beginning of 2018, she attempted to open a project to provide legal representation to women and children held on terror charges. She hired a female lawyer, who quit within two months, saying the work was too dangerous. A second female lawyer and then a male lawyer she hired also quit for security reasons. "It is the end of the program," she said. Another organization's lawyer said he attended a meeting in Mosul in February between the deputy head of the National Security Service in Mosul and lawyers from the Mosul Bar Association. He said the deputy told the lawyers, "I advise you not to represent any terror suspects." One lawyer responded that some might be innocent, to which the deputy responded, "It doesn't matter," the lawyer said.

He said that he and the other lawyers interpreted this to be a clear threat. He said that one lawyer ignored the advice and did represent a few terror suspects at the Nineveh counterterrorism court, but dropped the cases quickly after a court security officer approached him asking why he took the cases, and said, "are you with ISIS?"

Over the last year, Human Rights Watch has also received information from judges and lawyers of over a dozen lawyers in Nineveh who are wanted, some of whom have been detained and are in prison on terrorism charges, including five in the Ministry of Interior Intelligence prison in Faisaliya, east Mosul.

International law guarantees anyone accused of a crime access to a lawyer at all stages of criminal proceedings, including during the investigation, the pretrial proceedings, and during the trial itself. Under article 1 of the United Nations Basic Principles on the Role of Lawyers, "All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings." Article 14 of the International Covenant on Civil and Political Rights, ratified by Iraq, says everyone charged with a criminal offense has the right to defend themselves through legal assistance of their own choosing, as well as to have adequate time and facilities for the preparation of their defense and to communicate with counsel of their own choosing.

Under international criminal law, lawyers and judges can be prosecuted in exceptional cases when they have directly contributed to war crimes or crimes against humanity, including the war crime of executions following unfair trials.

On August 30, Human Rights Watch wrote a letter to Haidar al-Agaili, a representative of the Prime Minister's Advisory Council, the Ministry of Interior's inspector general, and the deputy head of the National Security Service, requesting further information about why lawyers are coming under attack. Human Rights Watch also asked what measures the authorities have taken to end the attacks and requested information on the number of lawyers in detention on terror charges, and the basis for those charges.

In his response on September 3, al-Agaili said that lawyers who experienced such attacks could file a complaint with a judge, the Bar Association, the Commission for Human Rights, or the Offices of the Inspector-General at the Defense and Interior Ministries, and that "there has been ongoing coordination between the Syndicate of Lawyers [Bar Association] and the Judicial Council, to end such cases of intimidation and harassment against lawyers." He added that, "If any such allegations come to be true, appropriate measures will be taken to deter those involved in such practices."

The lawyers interviewed for this report said, however, that in their experience many judges in and around Mosul worked intimately with the security services. Comments that some judges made to Human Rights Watch dismissing claims of harassment and justifying the arrests of lawyers appeared to support those statements. Two senior members of the Bar Association also told Human Rights Watch that the arrests were justified and appeared to side with judges and security services in their comments. As a result, none of the lawyers had filed complaints with either body. None of the lawyers said they had approached the Independent Commission for Human Rights, or the Offices of the Inspector General.

Al-Agaili also asserted that, "There are no cases of detention of individuals in the context of them being lawyers." Al-Agaili said that some allegations of ISIS-affiliation might stem from local communities that were forced to live under ISIS. He said the allegations did not stem from the security services.

The inspector general should investigate threats by Intelligence officers against lawyers. The National Security Service should investigate threats against lawyers by its officers.

The High Judicial Council should make public the basis for the prosecuting lawyers arrested last year on terror charges and ensure that no lawyers are prosecuted contrary to the UN standards. It should ensure that the rights of the lawyers and other detainees held on ISIS-affiliation chargeschoose their legal representation are fully met. It should take all necessary measures to ensure that those whom the authorities perceive as having ISIS affiliation should nonetheless be guaranteed nondiscriminatory access to courts and government identification documents.

The Prime Minister and the Head of the Bar Association should issue statements calling for all Iraqi officials to fully respect provision 24 of the Law of Lawyers (No. 173 of 1965 with amendments), that a lawyer should not face personal criminal or civil consequences for legal submissions they make in proceedings on behalf of their clients.

In line with its standing invitation to all UN experts, Iraq should invite the special rapporteur of the Human Rights Council on the independence of judges and lawyers, to visit Iraq to investigate and make appropriate recommendations to combat the attacks on lawyers and the legal profession.

International donors funding assistance to displaced families in Iraq and the legal profession should press for an immediate end to arbitrary arrests, threats, intimidation, and harassment by security officials of lawyers and other legal aid workers assisting the displaced. They should press both relevant civilian authorities and security officials to ensure unimpeded access to courts and civil registries for organizations providing legal aid and nondiscriminatory access to civil documentation for all displaced Iraqis, including those with a perceived ISIS affiliation or their families.

"Now that Iraq says it has turned a corner, with an end to the war against ISIS, the authorities should make every effort to ensure that they respect and protect all its citizens' basic rights," Fakih said. "The Iraqi government should not be carrying out collective punishment."

The UN Basic Principles on the Role of Lawyers state that anyone arrested or charged with a criminal offense shall, in all cases in which the interests of justice require it, be entitled to have a lawyer assigned to them who has experience and competence commensurate with the nature of the offense to provide effective legal assistance, without payment by the defendant if they lack sufficient means to pay for such services.

The principles state that: "Governments shall ensure that lawyers ... are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference," and "shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics."

They also state that lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions, and that lawyers shall have civil and penal immunity for statements made in good faith in pleadings or in their professional appearances before a court.

Threats

"Khaled," a lawyer for an organization providing legal assistance to people in and around Mosul, said that in February the intelligence director approached him in the Ministry of Interior's intelligence office in the town of Hammam al-Alil, where he was seeking security clearance and civil documents for local families displaced by the fighting to camps. All families must receive security clearance to get the documents or to return to their home areas. He said that the intelligence director said, "If you bring names that are on the wanted list, then we will interrogate you."

Later that month, his organization was holding legal aid sessions at a schoolhouse in Mosul. After the first session, men who said they were intelligence officers from the Popular Mobilization Forces (known as the PMF or Hashd al-Sha'abi), which are under the prime minister's command, approached him, and one said, "This neighborhood has many ISIS families and you are not allowed to assist them." Khaled said he explained the nature of the organization and the basic humanitarian principles behind its work. But during the next two sessions he saw men in civilian dress who appeared to be monitoring the sessions, so the organization ended the project.

"Mahmoud," who manages a team of lawyers for another organization, said that in the past months, intelligence officers threatened him in four different offices that issue new civil documentation. He said that in April he went to the Civil Status Directorate in Hammam al-Alil with a stack of files on behalf of local families displaced to nearby camps. But the Ministry of Interior's intelligence officer who grants security clearance refused to stamp the files and said, "You NGOs support ISIS and you are not afraid?" Mahmoud took this as a threat.

In May, he went to the ministry's office in Qayyarah, 60 kilometers south of Mosul, for the same purpose. The officer there refused to stamp the files, without even looking at the names, and threatened: "You are here to defend ISIS families - we know what you are up to. You better watch out."

Mahmoud said in early June he sent a team of lawyers to al-A'yadhia, 60 kilometers northwest of Mosul. The ministry officials got his phone number from his team and called him, ordering him to come there. When he said he was busy and could not, the officer threatened, "We will find a way to bring you here." He refused to stamp any of the files and the lawyers left.

He said that most recently, in late July he had traveled to the Civil Status Directorate in Tal Afar, 60 kilometers west of Mosul, with a stack of files on behalf of local families. The ministry official there also refused to grant security clearance: "He refused to take the files and threatened, 'You are not allowed to come here to help IDPs get their identity cards. Your only job is to provide humanitarian assistance.'

A lawyer for another organization said he went to Qayyarah's Civil Status Directorate with the files of two teenage boys whose father had died and whose mother had abandoned them. The lawyer said he approached a National Security Service officer to obtain security clearance to seek civil documentation for the boys. The lawyer said that the officer looked through the file and refused, saying, "If you bring me another case like this, I will take you to a place where you can't see the sun."

Another person managing a team of lawyers for an organization, "Akram," said that in mid-June his team called him to say that security officers at the Mosul Civil Status Directorate were preventing them from bringing in files for security clearance on behalf of families that the officers perceived to be ISIS-affiliated. Akram said he went to the directorate and met with the senior security officer, who he thought was from the Ministry of Interior Intelligence, but who did not identify himself clearly. He said the officer told him to stop bringing these files to the directorate, saying, "We won't process them and if you continue to work on these types of cases and bring them to us, we will hurt you and your team." Two other lawyers said they received the same kinds of threats at the Civil Directorate in east Mosul and at the Nineveh counterterrorism court.

"Ibrahim," who said he would never feel safe defending a suspect if there was any significant evidence of ISIS affiliation, said in early August the state appointed him to represent an ISIS suspect on trial at the Nineveh counterterrorism court. After the trial ended, he said an officer from the Special Weapons and Tactics (SWAT) forces under Interior Ministry command approached him and said, "In the morning we bring one person and in the afternoon we take five people." Ibrahim said he understood this as a clear threat that he might be arrested. He complained to the judge on the spot, and said the judge admonished the officer.

He said that in November 2017, he also received a call from an unknown number as he was driving through the main checkpoint into the city of Erbil and heard a voice threaten, "I know you are a lawyer with an organization who is helping ISIS and today you were at the court and now you are at the checkpoint going to Erbil," before hanging up.

Arrests

"Karim," another lawyer, said that in June he went to the Interior Ministry's intelligence office in Shirqat, 90 kilometers south of Mosul, to obtain security clearance for three local families displaced to a camp:

An officer there looked at the files, checked their names against a database, and said they were "wanted." He then said I was not allowed to leave the office - he would take me to a judge to arrest me for cooperating with ISIS. I called my boss and after about two hours of high-level interventions by a few individuals, the officer let me leave the office, but confiscated the families' files. That whole time I was telling the officer I didn't know these were ISIS families.

He said that since then he has feared arrest, even if he leaves his job.

Khaled said that in January he was working in partnership with another local organization to help families from Bazwaya, a suburb east of Mosul, to obtain their civil documents. He said the partner organization's director called him to say that Interior Intelligence Ministry officers at the Bazwaya Civil Status Directorate had detained two of their staff when they were trying to get the families' files stamped.

Khaled waited a month for the situation to calm down before visiting the office of the partner organization in Bazwaya. When he arrived, he said, two Interior Intelligence officers were stationed at the door. They blocked his entrance and asked him why he was there. He said he argued his way in and spoke to the head of the organization, who said it was because of Khaled and the files his organization had handed over for processing that his staff were detained. The organization's director later told Khaled that his staff members were released after two months without charge.

When Human Rights Watch inquired into the lawyers who have been detained in Nineveh, two judges at the Nineveh counterterrorism court and a judge at the Mosul Criminal Court all said the lawyers were being charged for specific acts committed before or during ISIS's rule, or for more recently collaborating with families of ISIS suspects in identifying and murdering witnesses testifying against their relatives.

Human Rights Watch asked to see the case files of the lawyers being charged, hoping to determine the basis of the charges against them, but judges refused, saying the cases were "top secret." One senior judge said that since the warrants were issued, private lawyers had stopped taking on defense cases of suspects they believed might be affiliated with ISIS, only taking on cases of people they thought were clearly wrongly charged, usually for having similar names to wanted individuals.

Source: Human Rights Watch

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