Since July 24, 2017, at least 15 private lawyers have been issued with arrest warrants by Iraqi authorities on charges of affiliation with ISIL, prompting human rights activists to demand answers.
The lawyers’ clients were ISIL suspects facing trial at the time, which began raising concerns among local lawyers that the warrants were issued as an obvious warning to those wishing to defend ISIL members. Since the issuing of the warrants, it has been reported that private lawyers had ceased taking clients believed to be affiliated with ISIL, instead only deciding to represent people thought to be innocent. Consequently, only state-appointed lawyers are taking on cases of ISIL-affiliated people. Human Rights Watch commented that “there are serious concerns that the state-appointed lawyers are not providing a robust defense of these clients.”
The 15 private lawyers were representing ISIL suspects before the Nineveh governorate’s counterterrorism court in al-Hamdaniya. In July, the court was working through over 2,000 ISIL affiliation cases.
Under Iraqi counterterrorism law; those suspected of inciting, planning, financing, committing, or assisting an act of terror will be punished to death. Similarly, anyone held to be covering up such an act is liable to a life sentence.
A senior judge in the court confirmed that other defense lawyers are now too afraid to take ISIL-affiliated cases, suggesting that was the effect Iraqi authorities were aiming for. Since both the Iraqi Constitution and the Criminal Procedure Code state all detainees are guaranteed the right to a lawyer, the government has appointed state-lawyers for ISIL suspects.
HRW observed two trials for suspects who had state-appointed lawyers; in both hearings neither lawyer spoke, with the judge questioning the suspect directly.
Receiving a state-appointed lawyer rather than one of choice goes against international law; article 1 of the UN Basic Principles on the Role of Lawyers stated that “all persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.”
Lawyers should not be bracketed with their clients or their clients’ causes, instead they have the right to enjoy impunity for statements made in good faith in pleadings or in their appearances before a court.
The Iraqi authorities are under both state and international obligation to ensure the lawyers receive fair trials and due process protections. Furthermore, the authorities should explain publicly who they are accusing and why.