In December 2017, Iraq declared an end to the armed conflict with Daesh (also known as ISIS or the Islamic State). The Iraqi government now continues its efforts to arrest and prosecute thousands of Daesh suspects and those suspected of other terrorism-related activities. However, lawyers attempting to provide legal aid to Daesh suspects and people perceived to be related to them are facing increasing threats, harassment, and arrests by Iraqi security forces. The government’s interference with suspects’ access to legal aid is a violation of international human rights standards, international law, and Iraqi law. Under the International Covenant on Civil and Political Rights (ICCPR), the UN Basic Principles on the Role of Lawyers, and national Iraqi law, the Iraqi government has a responsibility to ensure these suspects have access to effective and timely legal assistance.
Over fifteen lawyers have been arrested while representing Daesh suspects since July 2017, though Iraqi authorities have not formally confirmed the reasons for the arrests. Human Rights Watch (HRW) interviewed seventeen lawyers in July and August 2018 about their experiences defending people from terrorism charges in Mosul. Officers from the National Security Service (NSS) and Ministry of Interior Intelligence and Counter Terrorism have verbally harassed each of these lawyers and detained several legal aid workers for months. Many legal workers have expressed their belief that the arrests and threats are an intimidation strategy to convince lawyers to drop clients who might be Daesh-affiliated. Lawyers fear the retribution and stigma so deeply that they have stopped taking any cases related to Daesh.
Four lawyers interviewed by HRW said they will now only accept clients if they are convinced that the client is innocent, but even taking innocent clients can be dangerous. One lawyer shared that the deputy head of the NSS in Mosul attended a meeting with the Mosul Bar Association and advised lawyers to avoid representing terror suspects. When a lawyer pressed that some clients might be innocent, the deputy head allegedly replied, “It doesn’t matter.” One Iraqi legal aid organization is in peril as lawyers quit citing “security reasons.” Although Daesh suspects are still guaranteed the right to a lawyer during criminal proceedings under the Iraqi constitution and Criminal Procedure Code, there is concern whether the state-appointed lawyers replacing independent lawyers are providing adequate defense representation. HRW observed as state-appointed lawyers refused to speak during hearings, allowing the judge to directly question their client. Decreasing access to adequate legal defense exacerbates an already harrowing judicial ordeal, where defendants face trials as short as eight minutes with harsh consequences: fifteen years in prison, life imprisonment or execution by hanging. Between mid-2017 and mid-2018, nearly three thousand trials have concluded with a conviction rate of ninety-eight percent.
Article 14 of the ICCPR, ratified by Iraq, ensures all persons equal treatment before the courts and the right to accessible and effective legal counsel. Essential to these rights are the freedoms to access the legal assistance of one’s choice and to have “adequate time and facilities” to communicate and prepare their defense with their lawyer. The UN Basic Principles on the Role of Lawyers elaborates on the rights of defense lawyers and their clients, as well as the duties of governments to ensure those rights. Governments must make sure that all persons subject to their jurisdiction can access lawyers without discrimination of any kind, including for political beliefs; that lawyers will not be intimidated, threatened, harassed, prosecuted, or sanctioned for carrying out legitimate professional duties; that lawyers will not be “identified with their clients or their clients’ causes” by serving as counsel; and that lawyers may freely make relevant oral and written good faith statements through permissible professional engagements on behalf of a client. Finally, Article 24 of Law No. 173, Iraq’s Law of Lawyers, has adopted the lawyer’s immunity for good faith pleadings and acts performed due to the necessity and in defense of their client. Thus, the Iraqi government has an obligation to ensure that Daesh suspects are not denied equal access to effective legal counsel, and that defense lawyers are not prevented from carrying out their lawful, professional functions.
By harassing and arresting defense lawyers, the Iraqi government is violating its obligations to ensure the freedom of lawyers to perform their professional duties without fear of prosecution and to protect the rights of detainees to access legal assistance. The government should make public their reasons for arresting these defense lawyers to guarantee that no lawyers are prosecuted contrary to international standards or its own national law. The government should also allow all detainees to choose and communicate with their own legal counsel to prepare a defense. The Iraqi government is violating its own laws and international law by interfering with these rights, ultimately undermining efforts to bring Daesh and its true affiliates to justice.