How Iraq’s judiciary got into a political mess

Salah Nasrawi , Tuesday 5 Apr 2022

Iraq’s courts are in trouble, and political wrangling has made a bad situation worse, writes Salah Nasrawi

How Iraq s judiciary got into a political mess
Iraqis walk past a tent bearing the poster of slain Iraqi academic Hisham Al-Hashemi in Tahrir Square in Baghdad (photo: AFP)

The three judges and the prosecutor had already taken their chairs on the bench. The family members of the victim and lawyers and witnesses were all seated. But the defendant in what could be one of Iraq’s landmark criminal trials was not standing in the dock.

It was the third time that the suspected killer of Hisham Al-Hashimi, a leading expert on armed groups who advised successive Iraqi governments on counter-terrorism, did not show up for his trial in a Baghdad criminal court in March.

Al-Hashimi, who had appeared frequently in the media and was critical of the Iran-backed militias in Iraq, was shot dead by gunmen riding a motorbike near his home in the Ziyouna district of east Baghdad on 7 July 2020.

A year later, the authorities said they had arrested multiple people accused of being involved in Al-Hashimi’s murder, and Iraqi state-run TV broadcast clips of what it said was the confession of one suspect, a 36-year-old police lieutenant named Ahmed Al-Kinani.

Apart from that, the murder case of Al-Hashimi has remained stuck in the corridors of Iraq’s muddled politics, despite repeated promises by Iraqi Prime Minister Mustafa Al-Kadhimi to ensure accountability and bring justice to his family.

Dozens of activists were assassinated, kidnapped, or disappeared following the anti-establishment protests in 2019, but none of the perpetrators has been brought to justice or the killers of hundreds of demonstrators.

The cases have highlighted the fact that Iraq’s justice system is in a catastrophic state of disrepair. The lack of justice has destabilised the country, and the judicial institutions have withered to near non-existence.

One of the notable impediments to embracing restorative justice in Iraq includes political interference and sometimes lethal threats to judges and other law-enforcement personnel.

In one of the latest cases, an Iraqi judge specialising in drug cases was shot dead in February in southern Iraq, when unknown assailants blocked his route and opened fire on his car, shooting him 15 times with a Kalashnikov.

The judge, Ahmed Faisal, was known for handing down harsh sentences to drug traffickers in a province increasingly known as a trafficking hub. In September, another anti-drug judge escaped an assassination attempt in the same province.

Like in many conflict zones, cases of drug trafficking in Iraq underlie the relationships between the gangs and the political elites that provide immunity to criminals facing potential threats of prosecution.

In January, Iraqi President Barham Saleh pardoned a prisoner who had been convicted on charges of trading in narcotics. Details later emerged that the inmate was the son of Luay Al-Yassiri, a former governor of the Shia holy city of Najaf.

Jawad Luay Al-Yassiri, an intelligence officer, and two friends were arrested in 2018 driving into Baghdad with about six kg of hashish and 7,000 pills, as well as money and a pistol. A Baghdad criminal court found them guilty of drug trafficking and sentenced each to 15 years in prison.

Like many other cases of impunity, the pardon given by Saleh to Al-Yassiri could have gone unnoticed except that it coincided with political wrangling over his re-election to a second term.

Saleh later cancelled the pardon after widespread protests among many Iraqis who accused him of misusing his authority amid rising levels of drug abuse in Iraq.

He issued a statement saying that the pardon had been based on a recommendation by Al-Kadhimi. Critics claim Al-Kadhimi made the move in order to cement a political alliance, amid an ongoing process to form a new government.

Al-Yassiri, the son and his co-defendants, however remained at large.

Al-Kadhimi has also had his share of cases of sidestepping the judiciary.   

Last month, Iraq’s Supreme Court overturned a decree by Al-Kadhimi to set up a government committee tasked with investigating especially “important” cases and headed by the deputy interior minister.   

Iraq’s High Federal Court annulled the decision, which was taken in August 2020, as unconstitutional because it “breaches the principle of separation of powers and violates basic human rights.”

The committee, billed the “Abu Righeef Committee” after its leading figure, was accused of operating independently of the legal framework and blamed for arresting people without legal warrant and extracting confessions from them under torture.

According to critics, the committee was acting as a non-state entity, even though paradoxically within the state apparatus. It is not yet clear if it has been abolished and if cases it has handled have been reviewed, but its commander is still operating in his capacity as deputy interior minister.

There are increasing concerns that law and order in Iraq is being undermined by interference by oligarchs and political factions. Last week, the Iraqi security forces briefly arrested a tribal leader in the Anbar province acting under the influence of Parliamentary Speaker Mohamed Al-Halbousi, reportedly because of a political dispute.

For years, the role of Iraq’s legal system has been eroding, with a significant increase in cases where the courts fail to function or carry out justice for the victims of crimes and violations.

The judiciary’s weakness has led communities to take justice into their own hands. In many cities in Iraq, including the capital Baghdad, local tribes have been building vast power bases by exercising an increasing role in resolving neighbourhood and communal problems.

Tribal arbitration sessions are increasingly becoming the norm in handling criminal, family, and commercial disputes. Tribal tribunals are resolving cases such as marital problems, personal disputes, car accidents, children’s brawls, and doctors’ medical mistakes.

Acting within their often-arbitrary boundaries, the tribunals impose huge financial penalties that are usually guaranteed by tribal conflict-resolution traditions. In some cases, the victims are rewarded with women in line with some tribal codes.

Such tribal practices in Iraq are becoming so common that people now often turn to the tribal courts even to solve professional problems, such as teachers failing students or medical mistakes by doctors.

The result is not only severely undercutting the state legal system and police and court work but also undermining the education and medical institutions. Iraqi doctors are reportedly leaving their jobs or seeking exile abroad because they have been sought by tribes for making medical mistakes.

Many communities and neighbourhoods have fallen entirely under the tribes’ control, with clansmen imposing their own rules and levies under the noses of the local authorities.

Government institutions and the security forces have been infiltrated by tribal traditions as members of state authorities resort to tribal courts to resolve disputes instead of by-laws and disciplinary tribunals.

Many families now resort to clerics to conduct marriages and other personal status affairs, with rules especially on age and free consent sometimes not followed. The practice is often overlooked by law-enforcers, though it violates existing public law.

In 2019, a BBC investigation uncovered a secret world of sexual exploitation of children and young women by Shia religious figures. The clerics were using Shia Sharia marriage laws to exploit women for profit, all with seemingly total impunity.

The northern federal enclave of Kurdistan has also had its own share of the failure of the law-enforcement system. A court in Kurdistan sentenced three journalists and two activists to six years in prison on 16 February 2021 in deeply flawed proceedings.

The authorities arrested the men, who allegedly were planning unauthorised demonstrations against endemic corruption in the region’s government and the delay of salary payments to public servants.

Human rights groups said the proceedings at the Irbil Criminal Court where the men were tried, were marred by serious violations of fair standards as well as high-level political interference.

They said the government had not provided sufficient evidence to charge two of the men and had refused to release them while awaiting further evidence from the prosecution.

Concerns have been raised by the Human Rights Office (HRO) of the UN Assistance Mission for Iraq (UNAMI) over legal processes for critics facing criminal charges in Kurdistan and the legitimate exercise of freedom of expression.

All these and many other cases highlight the politicisation of the judiciary in Iraq and the failure of the country’s judicial system to protect Iraqis, provide them with justice, and hold the perpetrators of crimes and the violators of the law accountable.

*A version of this article appears in print in the 7 April, 2022 edition of Al-Ahram Weekly.

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