American Bar Association – Iraq – Reparations Bill for Victims of Sexual Violence During Conflict: Recommendations to Ensure Compliance with International Standards

In 2019, the government of Iraq prepared a draft bill, known as “Yazidi Women Survivor’s Bill”, to redress the harm suffered by certain survivors who were held captive by of the Islamic State in Iraq and Syria (ISIS).The draft bill, although commendable in its aim, raises some concerns. This report suggests several changes to the draft bill to (i) bring the envisioned reparation scheme closer to international standards, (ii) preserve victims’ rights to access justice, and (iii) strengthen the impact of the reparations.

The report does not address Iraq’s obligations towards all victims of the ISIS conflict, but rather focuses on female survivors of conflict-related sexual violence (CRSV). While the scope of the draft bill is limited to Yazidi women and girls who were abducted and sexually abused by ISIS, the report recommends revising the draft bill to apply to all victims of CRSV without discrimination based on religion, race, sex or other prohibited grounds and regardless of the identity of the perpetrator.

Protecting Privacy and Confidentiality

The government of Iraq has a responsibility to ensure victims safety from intimidation and retaliation and to prevent re-victimization. To this end, the report recommends that (i) services providers be trained  to operate on the basis of do no harm, (ii) procedures are in place to protect the privacy of the victims and their families at all stages of the reparation process and to ensure the confidentiality of the measures granted, and (iii) the burden of proof in adjudicating reparations claims rests with the state rather than victims and requirements to document and investigate sexual violence “respect safety, confidentiality and informed consent.”

Ensuring Access to Justice and Accountability for International Crimes

The government of Iraq bears the responsibility to pursue accountability for international crimes and provide victims judicial remedies for crimes committed against them. The obligation to provide judicial remedies for victims of CRSV is distinct from but complementary to the obligation to provide reparations. The report, thus, notes that the draft bill must preserve victims’ rights to participate in criminal proceedings and to obtain free legal aid, protection, and assistance. As part of the proposed revisions, it is also instructed to include a provision clarifying that no statute of limitations or amnesty should be applied to acts of sexual violence amounting to genocide, war crimes or crimes against humanity covered by the draft bill. Incidentally, the effectiveness of these adjustments requires that perpetrators’ crimes are recognized as international crimes – as opposed to terrorism crimes – and that the specific harm suffered by individuals and communities is acknowledged through the provision of an effective punishment for the crimes committed.

Establishing Victim-Centered Reparations Program

In order to ensure the effectiveness of the reparation program, the report suggests establishing a victims’ rights office to protect victims’ interest in the administrative process, represent them in relevant criminal proceedings and connect them to related services. The proposed revision aims to avoid a replication of the same problems faced by Iraq in the implementation of the reparation program under Law No. 20 on Compensating Victims of Military Operations, Military Mistakes and Terrorist Actions.

Expanding the definition of victims

The current draft law focuses on the introduction of an administrative reparation scheme for Yazidi women who were abducted by ISIS and then released. In accordance with the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation, the definition of victims should be expanded to include both survivors and the immediate family members of missing or deceased victims.

Annex I, available at page 18, proposes a new draft law encompassing all the suggested revisions.