Iraq

Iraq is affected by very high numbers of missing persons. Estimates run from a 250,000 to one million people missing from decades of conflict and human rights abuses. Today there are millions of relatives of the missing in Iraq who struggle with uncertainty surrounding the fate of a loved one. ICMP is working to help Iraq build the institutional capacity that will enable its citizens to address this issue.

ICMP staff first went to Iraq in 2003 to assess the provision of assistance, and began working with Iraqi institutions in 2005. It established an office in Baghdad in 2008 and in Erbil in 2010.

ICMP assisted in the development of the Law on the Protection of Mass Graves, which was created in 2005. The law provides a legal mechanism for locating missing persons, conducting excavations of mortal remains and identifying victims exhumed from mass graves. Under this law, the Ministry for Human Rights is designated to lead these efforts.

In 2012, ICMP signed an agreement with the four ministries engaged in addressing the missing persons’ process: the Ministry for Human Rights, the Ministries of Health in Baghdad and Erbil and the Ministry of Martyrs and Anfal Affairs. In the preamble to this agreement the authorities recognize that families have a right to know the fate and whereabouts of their missing relatives, that uncertainty surrounding the fate of the missing is a continuing source of anguish and an obstacle to rebuilding civil society in Iraq, that the government has direct responsibility for efforts to locate and identify the missing, and that due to specific circumstances in Iraq an identification process led by DNA and complemented by other forensic methods is most appropriate. The agreement was geared towards building Iraq’s institutional capacity to address the issue of missing persons transparently, regardless of sectarian or national origin.

As part of its program to help develop the technical capacity of Iraqi institutions and set in place a sustainable process of locating, recovering and identifying the missing, ICMP has trained more than 550 Iraqi professionals from the various institutions engaged in the process, from across sectarian and national lines, to work together in the investigation of missing persons cases. ICMP has introduced effective identification methodologies to Iraqi scientists including the use of DNA matching between recovered bone samples and blood samples given by surviving family members. This training, which takes place both in Iraq and at ICMP’s headquarters in Sarajevo, includes basic DNA extraction, sequencing and amplification methodologies, and introduces the concept of high-throughput testing, which is vital to Iraq’s ability to test and match the well over one million blood and bone samples authorities there will have to collect.

ICMP has also developed a network across Iraq of families of the missing who share experiences and information in order to contribute to the process of resolving the fate of loved ones, as well as contributing to the process of truth, justice and restitution.

ICMP has provided assistance to the Martyrs Foundation, and the Ministry of Martyrs and Anfal Affairs in Iraqi Kurdistan. This has included the formulation of policy initiatives to address the needs of the families of the missing and to create a technical plan to locate, recover and identify the missing, while at the same time building the institutional and legal capacity necessary to make this process sustainable. In addition, ICMP has hosted exchange visits of family association members, as well as visits by representatives of the Ministry of Human Rights and the Ministry of Health to ICMP facilities in Bosnia and Herzegovina.

As part of its ongoing Civil Society Initiatives program, ICMP is working with key ministries to facilitate dialogue on missing persons issues between civil society and government institutions, and strengthen the capacities of victims’ groups. As well as providing training, ICMP staff members attend excavations with the Iraqi authorities, where they provide advice and assistance and note additional training needs that are included in future advanced training courses. As a result of this partnership, the Iraqi authorities have conducted several successful excavations including one site where the excavation team recovered more than 1,000 sets of human remains.

International legal instruments

Iraq is a state party to the major international human rights instruments including ICCPR, CESCR, CAT and the Convention. Iraq is not a state party to the Rome Statute, although it took the required steps in 2005 to accede to the Statute but shortly thereafter canceled its decision on accession. 

Constitutional framework

The Iraq Constitution of 2005 guarantees a range of human rights and freedoms. Specifically, it provides for protection of the right to life, security and liberty, equality before the law, and the right to privacy and protection of family as a foundation of society.

The 2005 Constitution, which was approved by a referendum on 15 October 2005, superseded the previous Law of Administration for the State of Iraq for the Transitional Period (the Transitional Law) as Iraq’s provisional constitution following the 2003 fall of Saddam Hussein and the Ba’ath Party. The Transitional Law was adopted by the Iraqi Governing Council established by the US-led Coalition Provisional Authority (CPA).

Lex specialis

Within Iraq’s criminal justice system, the Supreme Iraqi Criminal Tribunal was established by Law No. 10 of 2005 adopted on 18 October 2005 with jurisdiction over genocide, crimes against humanity, war crimes and other serious crimes committed between 1968 and 2003. The Tribunal has its own Statute and Rules of Procedure and Evidence. The Iraqi CPC is applied in addition to the Tribunal’s rules.

In 2006 the Iraqi parliament passed the Law on Protection of Mass Graves (Law No. 5, 2006) establishing a legal mechanism for locating missing persons, conducting excavations and identifying human remains exhumed from mass graves. The aim of the Law is also to protect mass graves from disturbance, unregulated excavation and excavation without permission of the Ministry of Human Rights, and to facilitate prosecutions.

Under this Law, the Ministry for Human Rights had been designated to lead the effort of exhuming and indexing mass graves, as well as documenting evidence that can be used in a court of law for investigating and prosecuting serious international crimes. Other actors in this process include the courts, the Prosecutor’s Office, the Ministry of Interior, forensic experts and local government representatives. The Ministry of Human Rights was dissolved in August 2015 as part of the government’s current austerity measures.

In terms of rights and benefits for victims, in 2006, the Iraqi Council of Representatives passed the Law on the Establishment of the Martyrs’ Foundation. The Law gives family members of martyrs certain benefits including pensions, housing, tax benefits, scholarships, and other forms of assistance.

Similar benefits are also provided for in the 2007 Law on Rights and Privileges of the Families of Martyrs and Anfal Victims in the Kurdistan region.

Other regulations and measures

An Iraq Missing Persons and Relatives Database was established under an agreement with ICMP, providing for data processing standards, including training for ministry employees in ante-mortem data processing the use of forensic data in criminal investigation and implementing measures for the protection of personal data. As part of the agreement, sensitive personal data is kept on servers maintained by ICMP and benefits from ICMP’s institutional safeguards under international law.

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