Iraqi Law Shields Official Criminality

Sam Dagher, a New York Times correspondent in Baghdad, authored a recent article detailing the numerous hurdles to successfully prosecuting official corruption cases in Iraq. The article outlines hundreds of complaints regarding official corruption that are stymied before prosecutors are able to mount their case. Dagher fingers two main culprits for this state of affairs: “a government amnesty and a law dating to 1971 that allows ministers to grant immunity to subordinates accused of corruption.”

The amnesty referenced in the article is the February 2008 general amnesty law passed by the Iraqi parliament as a key legislative step toward political accommodation. The legislation was a key demand of Sunni Arabs as well as the Sadrists who believed that the detention system had unfairly targeted their communities and exacerbated sectarian and political differences. The law excludes those accused of the most serious criminal offenses. While allegations of official corruption might come under the terms of the amnesty law, they are clearly not the types of crimes that were intended to be included under the law. But the unintentional effects of the amnesty in these situations, while perhaps deleterious, are somewhat mitigated by the fact that the law is backward-looking and cannot be applied to future crimes.

The 1971 law that Dagher cites is a more intractable problem. Unless the law is amended it will continue to bedevil prosecutors and investigative judges and block investigations not only into official corruption but also into the most serious allegations of criminal wrongdoing by government employees.

The law in question is article 136(b) of the Iraqi Criminal Procedure Code. The article requires the permission of a “responsible minister” for the prosecution of actions that took place or arose from a government employee’s official duties. It is much wider in scope than the amnesty law since it is not temporally delimited and does not differentiate among offenses. As such, it can shield alleged perpetrators from the most serious accusations.

While conducting research in Baghdad in May 2008 on the Central Criminal Court of Iraq as a consultant for Human Rights Watch, article 136(b) was raised by Iraqi investigative judges as a serious hurdle in their attempts to prosecute official wrongdoing. In discussions with numerous Iraqi judges and prosecutors, the issue most clearly and negatively impacted by article 136(b) was the ability of the Iraqi criminal justice system to deal with torture and abuse of detainees in government custody. Iraqi judicial officials expressed their frustration about their inability to pursue these cases.

Article 136(b) was suspended by the Coalition Provisional Authority (CPA), but successive Iraqi governments have invoked the provision to block prosecutions since the official transfer of sovereignty in 2004 even though there is sound legal basis to argue that the law is inoperable as a result of the actions taken by the CPA. The Iraqi parliament amended the Criminal Procedure Code in 2007 to delete this provision. However, the Iraqi Presidency Council, which is currently required to ratify legislation before it becomes enshrined as law, took no action on this particular piece of legislation and the law did not become operable. Unfortunately, the Iraqi parliament has not taken further action on this front, and article 136(b) continues to shield official wrongdoing.