Your Excellency,

As you debate the new resolution presented by the United States, the United Kingdom and Spain on the reconstruction and rehabilitation of Iraq, we write to urge you to ensure that human rights protection and accountability for past human rights abuses are central to Iraq’s transition.

This letter highlights a number of human rights concerns that should be at the top of the agenda. It draws upon the draft resolution circulated on May 9, and our experience of monitoring peace operations and post-conflict reconstruction in a range of places, including El Salvador, Haiti, Bosnia-Herzegovina, Kosovo, East Timor, Sierra Leone and Afghanistan.

We hope the Security Council will bring to bear its considerable practical experience in similar post-conflict transitions, as well as in the dispensation of international justice. We urge you to put into practice the important principles the Security Council has set out in its thematic resolutions addressing human rights and humanitarian issues in conflict and post-conflict situations.

Human rights monitoring

Human Rights Watch is concerned about the extremely vague human rights mandate envisaged in the draft resolution for the proposed United Nations Special Coordinator in Iraq. The draft resolution calls for the Special Coordinator to assist the occupying powers and people of Iraq with, inter alia, “promoting human rights.” In many other situations, “promoting human rights” has been interpreted very narrowly to the field of human rights education and public awareness raising. We urge you to strengthen this mandate specifically to include human rights monitoring and protection activities.

As Iraq’s transition gets underway, the United Nations should have a fully-fledged human rights monitoring presence on the ground. Human rights monitors would be able to report regularly to the Security Council with authoritative information and analysis on the human rights situation within the country and make recommendations for remedial action, including long-term institutional reform. The monitors’ work would also help to bolster the confidence of the Iraqi public that progress is being made towards human rights improvements. Monitoring missions of this kind have played an important and constructive role in other post-conflict transitions in which the Security Council has been involved, for instance in Cambodia, East Timor, Bosnia-Herzegovina and Kosovo. It would most appropriately be taken on by the United Nations Office of the High Commissioner for Human Rights, which should be given the necessary mandate and resources for this task.

The Special Rapporteur on the situation of human rights in Iraq, whose mandate was recently renewed by the Commission on Human Rights, together with other relevant United Nations experts, such as the Special Rapporteur on extrajudicial, summary and arbitrary executions, should also be encouraged to visit the country as soon as possible.

Justice and accountability

Human Rights Watch is also deeply concerned that the draft resolution is almost silent on the need for justice and accountability for past abuses in Iraq. As you know, over several decades the Iraqi authorities were responsible for genocide, war crimes and crimes against humanity. Ensuring justice for these crimes will not only be important in establishing the rule of law in Iraq, but upholding international justice more generally.

While the draft resolution affirms “the need for accountability for crimes and atrocities committed by the previous Iraqi regime” (significantly in its preambular language rather than its binding, operative paragraphs), it contains no concrete measures to address this fundamental question of impunity.

Human Rights Watch believes that the Security Council should create an international tribunal to prosecute these past crimes. A tribunal constituted by the Security Council would not only be impartial, fair and independent, but have international legitimacy. Drawing on the important experience gained through the other ad-hoc tribunals, the Security Council could establish an international tribunal for Iraq without undue delay. Such a tribunal could be smaller in scale than the current ad hoc tribunals and, if security permits, might be located in Iraq.

We believe an appropriately structured “mixed” national-international tribunal would be a second-best alternative, due to concerns about the state of the Iraqi judiciary, whose independence has been destroyed during the more than 30 years of Ba’ath Party rule. For both an international or “mixed” tribunal, consideration should be given to selecting both judges and staff from Arab countries. Because of the compromised state of the Iraqi judiciary, and the concern that using judges from communities historically repressed by the Ba’ath Party could undermine impartiality and fairness, we believe it would be extremely problematic to use Iraqi tribunals to try the worst offenders.

Human Rights Watch believes that, as an initial step, the Security Council should establish an international commission of experts to make recommendations to the Council regarding the ultimate form of justice mechanism best suited to the current situation. This would be consistent with the Council’s past practice in Resolution 780 (1992) with respect to the former Yugoslavia.

Forensic expertise and documents preservation

No matter what form of justice mechanism is ultimately employed to adjudicate past crimes, the evidence needs to be preserved.

Human Rights Watch is already concerned that vital evidence and documentation has been lost during the looting and destruction of public buildings or the spontaneous exhumation of graves by people in search of their missing relatives. Our field researchers in the Basra area report that the pace with which relatives have begun to dig open grave sites themselves has accelerated in the past two weeks, making it difficult or even impossible to identify remains and to begin proper criminal investigations.

The Security Council should make available to the transitional authorities the considerable expertise of the United Nations in the forensic collection, analysis and preservation of evidence. The collection, preservation and analysis of evidence of past human rights abuses should also be an explicit part of the mandate of the Special Coordinator in Iraq and any United Nations human rights monitoring or other presence established on the ground. The Commission of Experts we have proposed above should also make recommendations for the collection and preservation of evidence.

Vetting of security and judicial personnel

The draft resolution gives responsibility to the Special Coordinator in Iraq for “international efforts to rebuild the capacity of the Iraqi civilian police force” and “to promote legal and judicial reform.” It is important that this mandate include the vetting and lustration of public officials with a past history of human rights abuse.

The continuing looting and violence, especially in Baghdad, show the importance of establishing an effective security presence and rule of law throughout the country. We are aware that some elements of the existing police forces need to be relied on to maintain security in the immediate situation. But, for the future, it will be essential to reconfigure Iraq’s local law enforcement and armed forces to put in place an effective system the ensures and promotes human rights protections.

All local officials, police and other security personnel, and judges and other court personnel should be screened and vetted. Abusive officials may not only commit further violations, but may obstruct broader processes of accountability and reform. Those implicated in serious human rights violations should be removed from positions of authority, pending further investigation and prosecution where appropriate. Those who pass a screening and vetting process and are deemed fit to serve as law enforcement officials should receive sufficient human rights training. All police training efforts should be coordinated as soon as possible, and these training officers, too, should have clean human rights records and ample human rights training.

This will be a complex undertaking, as due process must be observed, but the Special Coordinator should draw upon the United Nations’ practical experience from comparable situations, such as Bosnia and Herzegovina, where the International Police Task Force performed this role. The United Nations can also help to mobilize international police and judicial experts who can play an advisory and monitoring role during Iraq’s transition.

Humanitarian coordination

Human Rights Watch notes the role envisaged for the Special Coordinator in Iraq in “support for and coordination of humanitarian and reconstruction assistance by U.N. agencies and non-governmental organizations.” While the occupying powers are responsible for facilitating assistance by relief agencies in Iraq, many agencies and non-governmental organizations have expressed concerns that they cannot operate independently in the country. They fear their neutrality may be compromised and their activities confused with those of the military occupying forces. For this reason, Human Rights Watch believes it would be preferable for the United Nations and its specialized agencies to be given the lead role in coordinating the provision of humanitarian assistance in Iraq.

Internally displaced persons and refugees

Human Rights Watch notes the inclusion of “support for the orderly and voluntary return of refugees and displaced persons” in the mandate of the Special Coordinator in Iraq. However, this mandate should be strengthened to include monitoring of the situation of refugees and the internally displaced, and the investigation and remedy of any protection violations. This will be particularly important with respect to the activities of the International Organization for Migration and United Nations Office for Project Services (UNOPS) which do not have a protection mandate.

Our research inside Iraq has documented new instances of forced displacement since the coalition has assumed the role of occupying power. Human Rights Watch has documented, for instance, cases of Arab residents in Kirkuk and Palestinian residents in Baghdad being forced from their homes. We have also highlighted concerns with freedom of movement; inadequate housing and basic material support for IDPs; and the prospect of violent reprisals as IDPs attempt to return home.

The resolution should also affirm the right of refugees and displaced persons to return to their homes voluntarily, in conditions of safety and dignity. The resolution should call on all member states to refrain from returning any refugees before security permits and reception conditions are appropriate. Those refugees or displaced persons who do voluntarily return must be provided with protection and assistance, including monitoring of the human rights conditions on their return.

The United Nations also has an important protection role with respect to refugees from other countries living inside Iraq, estimated before the war to number 128,000. According to the United Nations High Commissioner for Refugees (UNHCR), more than 1,500 Iranian Kurd, Palestinian, Sudanese, Somali, and Syrian refugees have fled Iraq in recent weeks, many due to threats and attacks. The United Nations should work with the occupying power and transitional authorities in Iraq to prevent third parties from attacking or forcibly displacing civilians, especially particularly vulnerable groups such as refugees; protect all women, including refugees, against any attack; afford child refugees appropriate protection; and ensure that humanitarian assistance reaches refugees. All civilians in Iraq should be treated with the same considerations without any adverse distinction based, in particular, on national origin, race, religion or political opinion.

Women and children

In its thematic resolutions 1261, 1296, 1314, 1325 and 1379 and interventions in many country situations, the Security Council has helped to focus international attention on the special humanitarian and protection needs of women and children. It is unfortunate, therefore, that the current draft resolution is silent on these important issues, particularly given the cumulative effect war and sanctions have had on the women and children of Iraq in the past decades.

The current resolution on Iraq should call for the full representation and participation of women in Iraq’s transitional arrangements, and for the review of laws and policies that discriminate against women. It should call for the prevention of acts of sexual violence and the prompt investigation and prosecution of past abuses against women. The Special Coordinator should be given an explicit mandate to ensure that humanitarian assistance programs are gender sensitive and pay special attention to female-headed households.

The resolution should also give high priority to implementing the special protections for children afforded in both the Geneva Conventions and the Convention on the Rights of the Child (both of which Iraq has ratified). This includes ensuring the protection and rehabilitation for former child soldiers, unaccompanied children, and IDP and former refugee children to promote their physical and psychological recovery and social reintegration. Special attention should be paid to the situation of girl children, including protection from sexual and physical abuse, including by aid workers, peacekeepers and other international personnel. High priority should be given to ensuring that children have identity documentation and are enrolled at least in primary education, without discrimination and at the earliest feasible moment.

Arms embargo

Human Rights Watch supports the proposal in the draft resolution to extend the arms embargo against Iraq. The proposed exception allowed for the needs of coalition forces should be subject to strict and transparent monitoring and controls, particularly if the coalition arms local security forces or militia whose human rights record may be suspect. The Security Council should take this opportunity to consider how the arms embargo can be implemented more effectively than in the past. To this end, Human Rights Watch recommends that the Council ask the sanctions unit of the Department of Political Affairs to appoint an independent team to compile a lessons learned assessment of Iraq conventional weapons sanction busting, to provide an inventory of conventional weapons, and to provide an assessment of documents and companies involved.

Clearance of mines and explosive remnants of war

The draft resolution is silent on the threat posed to civilian lives in Iraq by antipersonnel landmines and unexploded ordnance. This concern has been compounded by the use of cluster bombs by U.S. and U.K. ground and air forces; new laying of landmines by Iraqi forces; and very large numbers of abandoned Iraqi weapons caches. These cluster duds, landmines and abandoned munitions have already caused many civilian casualties throughout Iraq. For instance, an 11 year-old boy was badly injured on May 3 when he picked up an unexploded munition left inside his school in Basra.

The Security Council should ensure the resolution gives high priority to mine action activities (survey, marking, risk education and clearance). In the immediate term, the Council should ensure that coalition forces provide detailed information on the types, numbers, and locations of munitions used in order to facilitate effective warnings to civilians and rapid clearance. In the longer term, the U.N. can play an important coordination and resource mobilization role.

Management of oil revenues

We wrote to you previously on March 28 about the importance of ensuring that Iraq’s oil revenues are managed in a transparent and accountable manner, and that revenues be directed first towards meeting the acute humanitarian needs of Iraq’s people. Every effort should be made to avoid the perception that oil is being used for the benefit of foreign entities.

Human Rights Watch supports the proposal contained in the draft resolution for the establishment of a consolidated Iraqi Assistance Fund subject to auditing and oversight by an International Advisory Board. The draft resolution should be further strengthened, however, to give the International Advisory Board authority to audit not only incoming oil revenues and other assistance, but outgoing expenditures as well. The resolution should also ensure that audits are regular and periodic (an initial audit followed by quarterly audits), are publicly available, and are given appropriate and accessible dissemination inside Iraq.

Notwithstanding the deep divisions over this conflict, the Security Council carries an important responsibility for the protection of the human rights of the Iraqi people. Over the past few years, the Security Council has made important commitments to the protection of human rights in post-conflict transitions and has sought to implement these commitments through its interventions with respect to individual country situations. It is essential that these human rights and humanitarian concerns be at the forefront of the Council’s response to the reconstruction of Iraq.

We look forward to continued dialogue with you on these important issues.

Respectfully yours,

Kenneth Roth Executive Director

Joanna Weschler UN Representative