United Nations
Office of the High Commissioner for Human Rights
Legal Needs Assessment Mission to Iraq
Workplan
August 2003
Legal Needs Assessment Mission to Iraq
Workplan
I. Context and Objectives
In June 2003, the United Nations Development Group, in cooperation with the World Bank, hosted a one day technical consultation meeting with Member States and the Coalition Provisional Authority (CPA) on the reconstruction of Iraq. The discussions held were with a view to implementing the relevant provisions of UNSC Resolution 1483. During this meeting, it was decided to make preparations for a Reconstruction Conference to be held in October 2003. Follow up meetings with the CPA and various UN agencies resulted in the selection of fourteen priority areas targeted for reconstruction that would require substantive needs assessments (NAMs), including Governance and Rule of Law. Human rights will be one of the four cross cutting themes that will be addressed by all sectors. OHCHR is designated team leader on Rule of Law.
NAMs will take place during July 2003 and August 2003 and are to be closely coordinated with the SRSG in Baghdad and the UN Humanitarian Coordinator for Iraq, who will be responsible for the day-to-day coordination of the NAMs. In Baghdad, Laurent Marion, UNDP Programme Advisor will act as focal point for the Governance and Rule of Law team.
The objective of the NAMs is to identify priority needs and funding requirements for 2004. They should also include a preliminary outline of the reconstruction, rehabilitation and investment needs over the medium term. It is intended that the NAMs do not propose projects or activities but give priority to identifying policy initiatives and institutional needs.
II. Workplan and Coordination
Background
In May 2003, the United States Department of Justice (US DOJ), with the assistance of Canadian, British and Danish delegates, undertook a country-wide legal needs assessment (the US Report). This assessment was organized by the CPA. The substantive US Report included reference to the following areas: infrastructure, court organizational structure, personnel, the applicable law, law enforcement, judicial appointments and qualifications, legal education, training and bar associations. The Rule of Law NAM is designed not to duplicate this effort but rather, to compliment or expand upon the information contained in this report
The substantive findings the US Report were as follows:
Ø Corruption widespread throughout the legal system
Ø Torture and threats of torture and other law enforcement abuses widespread
Ø Poor qualifications and practice of legal actors
Ø Legal education discredited
The major recommendations were:
Immediate:
Ø CPA lawyers to be placed in all regions to encourage legal reform, monitor justice and coordinate judicial reform efforts
Ø Ensure uniform decisions are made concerning removal of corrupt officials
Ø Vetting procedures for judicial officials to be established
Ø Anti-corruption Commission to be established
Ø Educational reform for judges and prosecutors be instituted
Ø Emergency changes in Iraqi Code of Criminal Procedure
Ø A system of legal aid established
Ø Salaries for judicial officials to be enhanced
Ø Security for all court facilities be established
Ø A policy on civil and property issues be created
Institutional Reforms:
Ø Separation of powers
Ø Empowering the formerly moribund public prosecutor
Ø Establish public prosecutorial authority over law enforcement
CPA Ministry of Justice
According to the Iraqi Applicable law,[1] including recent amendments, the Ministry of Justice (MOJ) has responsibility for the following:
Ø The administration of the courts (according to MOJ, there are approximately 400 courts in Iraq, 100 of which are operational)
Ø Prosecution of criminal offences
Ø Judicial and prosecutorial training
Ø Publication of the Legal Gazette
Ø Notary Publics
Ø Deeds and Records
Ø Corrections and Detentions
Since May 2003, MOJ has undertaken the following activities:
Ø Applicable Law:
a. Amended Iraqi Penal Code 1969 (PC), modified by CPA Order No. 7
b. Amended Iraqi Criminal Procedure Code 1971, (CPC) modified by CPA Memorandum 3
c. Reestablished Legal Gazette: printed and sent to courts and law libraries
d. Established authority over prisons and detention facilities: CPA Order No. 10; Prison standards set by CPA Memorandum No. 2.
Ø Consolidated Courts: all trials in Baghdad consolidated into 2 courts
Ø Established a Judicial Review Committee, CPA Order No. 15, to vet judicial officials for Ba’athist party links, corruption and other criminal activity.
Ø Established the Iraqi Judicial College (replacing Judicial Training Institute). Curriculum and admissions standards under review.
Ø Established the Central Criminal Court, Baghdad, CPA Order No. 13, as model court to try serious criminal offences.
Ø Established Office of Human Rights and Transitional Justice
Ø Established pro bono program for indigent defendants
Ø Undertaken infrastructure repairs to court facilities
MOJ Proposed Programs:
Ø Continuation of pro bono program
Ø Establish criminal defense program
Ø Establish salary review program
Ø Establish Judicial Inspection Unit
The Assessment
a. Legal Framework
Ø Review of CPC and PC for compliance with international human rights standards
Ø Review of CPA Regulations and Orders
Ø Legislative drafting capacity
Ø Integration of human rights instruments, including gender perspectives
Ø Transparency of process
Ø Translation of regulations and orders
Ø Dissemination to public
b. Key Institutions
i. CPA Ministry of Justice
The Judiciary
Ø Judicial Independence
Ø Court structure, Judicial Powers, and enforcement of judgments
Ø Composition of the judiciary
Ø Education and training of judges
Ø Selection, tenure, promotion and removal of judges
Ø Representation of the judiciary
Ø Material conditions of the judiciary
Ø Judicial ethics and discipline of judges
Ø Role of women in the administration of justice
Ø Short to mid-term needs
Court Facilities
Ø Security
Ø Extent of repair & rehabilitation
Ø Short to mid-term needs
Court Administration
Ø Current Policy
Ø Short to mid-term needs
Public Prosecutors
Ø Status and structure of the Prosecutor
Ø Functions and powers of the Prosecutor
Ø Entry and professional requirements
Ø Appointment, tenure and dismissal of Prosecutors
Ø Current training proposals
Ø Material conditions of the Prosecutors
Ø Role of women in prosecutorial function
Ø Short to mid-term needs, including infrastructure
Corrections (Prisons & Detention facilities)
Ø Capacity
Ø Conditions
Ø Access to family, legal representation
Ø Information provided to detainee
Ø Treatment of females
Ø Treatment of juveniles
Ø Treatment of pre-trial detainees, the convicted
Ø Treatment of the mentally ill
Ø Policy developments generally
Ø Training methodology of staff including role of human rights standards
Ø Short to mid-term needs, including infrastructure
Overview of Criminal Proceedings
Ø Pre-trial detention
Ø Pre-trial investigative stage
Ø Trial stage
Ø Appellate stage
ii. CPA Ministry of Interior
The Police
Ø Legal Framework
Ø Training methodology including role of human rights standards
Ø Procedures- on the use of force and firearms and arrest and detention procedures
Ø Oversight and accountability
Ø Arrest and detention procedures
Ø Custody facilities
Ø Division of roles between the police and prosecutors
Ø Investigatory tools including the role of forensics
Ø Public Order capacities
Ø Regulations and codes of conduct
Ø Infrastructure needs
iii. Judicial Review Committee
Ø Authority
Ø Members
Ø Current progress
iv. The Legal Profession
Ø Structure and composition of legal profession
Ø Independence of legal profession
Ø Regulation of legal profession
Ø Organization and Governing bodies of the legal profession
Ø Knowledge and use of human rights standards
Ø Entry into the legal profession
Ø Role of women
Ø Access to minorities
Ø Infrastructure needs
v. Legal Education
Ø Current capacity
Ø Policy development
Ø Curriculum development
Ø Materials including integration of human rights standards
Ø Role of Women
Ø Access to minorities
Ø Infrastructure needs
vi. Transitional Justice issues
Ø Role of Office of Human Rights and Transitional Justice
Ø Governing council’s approach to domestic war crimes court
Ø Role of Central Criminal Court
Ø Approaches to evidence preservation
Ø Reconciliation
Ø Compensation
Ø Vetting procedures
Ø Witness protection
Ø Missing persons
Ø Property disputes
Ø Public awareness/civic education
Coordination
Iraq Focal Point
Laurent Marion UNDP
Nahid Hussain UNDP
UNDP Good Governance Team
Rajeev Pillay
Ragaa Makharita
Elissar Sarroukh
Angelo Baglio
Hassan Hamdan
OHCHR Rule of Law Team
David Marshall
Amin Medani
Jonathan Kuttab
Elissar Sarrouh (to assist)
Mona Rishmawi, SRSG Senior Human Rights Advisor (to assist)
Iraq Contacts:
CPA Representatives:
Ø Judge Donald F. Campbell, CPA, Senior Advisor, MOJ
Ø Medhat Mahmood, CPA Officer in Charge, MOJ
Ø William Irvine, Chief of Prisons
Ø Anthony Ricci, CPA, Chief of Staff, MOJ
Ø Pamela Murphy, CPA, Policy Analyst, MOJ
Ø Hussein Al Moussawi, CPA direct interlocutor, Chairman of the Bar Association
Ø David and Sandra Hodgkinson, Office of Human Rights and Transitional Justice
Bar Associations
Ø Hisham Mehdi Saleh, Member, Bar Association Council
Ø Hussein Mohsen Husseini, Member, Bar Association Council
Ø Saad Yahya, Member, Bar Association Council
Ø Saad Yahir Abdul Walid, Deputy Head Bar Association
Ø Barwiz Mohammed, Member, Bar Association Council
Judicial Officials
Ø Judge Dara, UNDP counterpart
Other Legal Officials
Ø Hussein Chaaban, UNDP counterpart
Iraqi Civil Society
International NGOs:
Ø Amnesty International
Ø Human Rights Watch
Donors
III. Reporting
The 12 – 15 page, Good Governance and Rule of Law report, including a detailed budget for 2004, is due August 31 2003. It will form the basis for a more substantive report to be distributed at the October donor conference.
The report should include:
a. Overall description of the situation
b. Brief trend analysis over the past 15-20 years
c. Current status of the legal sector
d. Needs and priorities including objectives and benchmarks
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[1] CPA Regulation No.1 states that the applicable law is the law in force in Iraq as of April 16, 2003 so long as not inconsistent with CPA Regulations or Orders.