In the past decades, Iraq and its population endured many hardships. Since the beginning of the fighting between the government, supported by international allied forces, and ISIS, the people of Iraq have suffered from large-scale serious violations of human rights and international humanitarian law (IHL). This report questions whether the current legal and institutional framework in Iraq is capable of addressing the violations committed and of providing victims with adequate, prompt and effective reparations. Specifically, it considers whether Law 20 of 2009 on Compensating Victims of Military Operations, Military Mistakes and Terrorist Actions has sufficient remedial power to deal with the seriousness, scale and variety of the harm and violations inflicted on Iraq’s population during the conflict with ISIS. Following an analysis of international and domestic practice on reparations for victims, this report suggests how to achieve a more comprehensive reparation framework able to provide adequate and effective reparations to victims of the ISIS-regime in Iraq from 2014 onwards.
At the outset, the report explains that, in a narrow sense, reparations aim at restoring victims’ harm to the extent possible as well as recognizing them as victims and as right holders. Through a wider lens, reparations help rebuild social reconciliation and democratization by restoring civic trust in the state and the institutions. In this respect, the work finds that ensuring accountability and justice for victims should be given priority and that monetary compensation should be a central element therein.
Chapter 2 and 3 respectively highlight the international legal framework (implicitly or explicitly) underpinning the right to reparations and expand on its scope and reach. Traditionally, the duty to provide adequate, effective and prompt reparations to individuals falls on States. Whether armed opposition groups –strongly represented in today’s armed conflicts- have an obligation to repair the harm inflicted on their victims is an unresolved issue under international law. Nevertheless, the work advances an encouraging shift when pointing at the 2006 Colombian Peace Agreement, which holds the Revolutionary Armed Forces of Colombia (FARC) responsible to support the reparations process for instance by helping with social work and demining fields. International law is also unclear on who qualifies as a victim for the purpose of reparations, yet practice suggests that notion of ‘victim’ should be broadly defined by including direct victims, those affected by these violations (for instance the victims’ relatives), witnesses and even child soldiers.
The last chapters explore the progresses and challenges faced by victims applying for compensation under Iraq’s Law 20 and suggest how the reparation scheme can be expanded and improved. Iraq’s Law No.20, passed in 2009 and amended in 2015, provides the possibility for compensation for all types of incidents specified in the titled that occurred on or after 20 March 2003 onwards (the date of the American invasion of Iraq). The law covers natural and legal persons for loss, martyrdom, kidnapping, injuries or conditions requiring short-term treatment, damage of property and damage affecting employment or study. Consequently, in the current form, it excludes some of the major types of violations committed during the recent conflict, including victims of sexual violence, forced disappearance, child soldiers, persons suffering from psychological trauma and those who have victimized based on their belonging to an ethnic or religious group. Moreover, while focussing on monetary compensation, it fails to include non-monetary forms of reparation such rehabilitation, education and access to psychological and social care.
It is also clear that the process of implementing Law No.20 also presents challenges and shortcomings. To begin with, the high number of claims for compensation ensuing from violations since 2003 onwards, caused a backlog in reparation decisions and the law’s bureaucratic procedures further add to a delay in reparations. Another issue is that, at odds with international practice, the act places an undue burden on victims by requiring of them to come up with numerous official evidentiary documents, which needed to be collected from multiple government offices – sometimes difficult to reach safely because of the security situation. Lastly, the act is not fit to accommodate the reality of displaced persons within Iraq that are required to submit their claims and collect compensation in the governorate where the incident occurred