Post-Saddam, Abuses Still Plague Iraqi Courts

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This is the final report in a three-part series.

In Saddam Hussein's Iraq, the court system was a weapon wielded by a brutal regime. Saddam drummed up charges against political rivals and intimidated judges into doing his bidding.

Five years after the U.S. invasion, not much has changed — and the abuse of at least one law has actually worsened.

Iraq's secular legal system is based largely on the continental European model. In Iraq, judges are both prosecutor and magistrate. They conduct a criminal investigation before referring the case to a panel of three trial judges who essentially weigh the evidence and then issue a sentence.

In a recent human-rights report, the U.N. warned that Iraqi defendants have no timely access to counsel. They rarely get to examine the evidence against them and have no opportunity to cross-examine witnesses or produce exculpatory evidence.

In one case, it took a panel of judges just 50 minutes to hear all the evidence against two defendants and make their ruling: life in prison.

Heavy Caseloads Hobble Broken System

William Gallo is the director of the U.S. Army's Law and Order Task Force, which is trying to help Iraq develop a rule of law.

"We have a fledgling judicial system that is ... growing and feeling [its] way through the dark, and things may change in time," he says.

The caseload hardly provides time for contemplation. One of the Central Criminal Courts in Baghdad handled nearly 24,000 cases last year. A little more than half of those cases were dismissed, and almost 7,500 of them went to trial. And that is just one court in Iraq.

Judge Faiq Zaidan is the chief investigative judge at the court. He says he can understand why Iraqis think the justice system is broken.

"This is something that will require time. It is a challenging issue. ... We have moved from a dictator's regime to a democratic regime. Black cannot turn overnight into white. We are in a gray area," Zaidan says.

Top Officials Still Evade Prosecution

One particularly gray area that rankles ordinary Iraqis has been the inability of the system to bring charges against high-ranking Iraqi officials. Increasingly, they hide behind a law known as 136B — a 1971 addition to the criminal code that was originally intended to protect low-level officials, such as police officers, from criminal prosecution. Now, high-ranking officials are using it to get away with sectarian crimes and rampant corruption.

In essence, the rule requires investigators to get ministerial permission to investigate someone who works for the ministry. A refusal means investigations can't move forward. Kalil Hashim, a prosecutor at the Central Criminal Court, says the rule is frustrating.

"There had been previous cases of 136B protecting high-ranking official during the Saddam era, but they were rare. Now, it is happening all the time," he says.

Consider the case of General Mehdi al-Gharwari, a former high-ranking Interior Ministry official. Iraqi prosecutors suspect he was one of the masterminds behind an infamous prison in the basement of one of the ministry's buildings known as Site 4.

During the sectarian violence of 2005 and 2006, hundreds of mostly Sunni detainees were tortured there. Before investigators could formally bring charges against the general, the current minister of the interior invoked 136-B. The general — a free man — is now dividing his time between the Green Zone and Cairo. Faiq says he has been campaigning against the law for years.

"Even during the Saddam era, I asked it be taken out. The problem is that the article politicizes the law. It gives ministers a judicial role. Ministers get to decide who becomes the one who goes free and who is innocent. It is a disaster," he says.

'Ticking Time Bomb'

Faiq says the rule ends up casting doubt over the entire judicial system in Iraq.

"Ministers are using this to protect criminals. This, I would say, is a ticking time bomb," he says.

According to U.S. officials, 136B has derailed corruption cases at 11 ministries and the government's Central Bank. The U.S. Embassy has been pushing the Iraqi government to roll it back. But both American and Iraqi officials say privately they can't see that happening because that would open the current government to investigation as well.

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