August 23, 2013
(Baghdad) – Baghdad’s new governor, Ali al-Tamimi, should immediately declare that he will support Iraqis’ right to exercise free assembly, Human Rights Watch said today. He should revoke regulations that allow police to prevent peaceful protest. On August 2, 2013, security forces invoked the regulations, which breach safeguards contained in Iraq’s constitution, to detain 13 people who attempted to protest against corruption and Iraq’s continuing slide into violence. Al-Tamimi became governor of Baghdad a month ago.
Soldiers detained three protesters, held them for 36 hours and then released them. The police arrested 10 more as they gathered in a central Baghdad square, then charged them with "disobeying police orders," a criminal offense based on the 2011 regulations, because they had failed to obtain official permission to demonstrate. On August 4, al-Rusafa criminal court threw out the charges, declaring them "fabricated."
"These latest arrests show just how far Iraqi authorities will go to prevent peaceful protests despite the major problems engulfing the country," said Joe Stork, acting Middle East director at Human Rights Watch. "The new governor should start fresh, revoking these unfair regulations to show that he supports the right of people to express their grievances peacefully. It would go a long way to restoring trust in the government."
The regulations effectively give authorities unfettered power to determine who may hold a demonstration.
Human Rights Watch spoke separately to five of the 13 detained protesters, all of whom said that federal police and soldiers arrested them when they and others tried to gather in Baghdad’s Tahrir Square at around 7 a.m. on August 2. The soldiers detained Ahmed Suhail, his cousin Hussein Abbas, and a third man, took them to the headquarters of the 11th division, and held them there until their release late the following day. By then, the men’s families had "started to ask powerful people to intervene," Suhail told Human Rights Watch.
Police arrested the other 10 after initially warning demonstrators who were making their way to the square that "the army will arrest you and maybe hurt you" and then telling them that they could not enter the square because they did not have an official permit to demonstrate. A federal police general offered to help the demonstrators get a permit, but instead took four protesters who agreed to accompany him to seek the permit to Bab al-Muatham police station, where police arrested them. Police then brought in six others they had arrested, including two news cameramen who had been among the demonstrators.
Three of these six told Human Rights Watch that soldiers from the army’s 11th division assaulted them before police arrested them. One said soldiers forced them to the ground, beating two of them, after first tying an Iraqi flag around his head to prevent him from seeing. The soldier "beat and kicked us, and called us 'traitors,’’’ he told Human Rights Watch, and "asked us, 'Who paid you to come demonstrate?’"
Police charged the 10 under article 240 of the penal code, which makes "disobeying police orders" a criminal offense, for attempting to demonstrate without a permit. The 10 included a lawyer, who then represented all those charged. She told Human Rights Watch that police apologized for bringing the charges against them, claiming that they "had no choice" because they were under "military orders."
Two of the 13 protesters told Human Rights Watch that they had sought official permits to demonstrate a week in advance but that members of the provincial council replied that they were "not allowed" to authorize any demonstration "critical of government policies." Iraqi law does not clearly state what authority regulates demonstrations, including granting permits.
Two weeks before the August 2 arrests, federal police intelligence officers detained a journalist, Jaafer Abdelamir Mohammed, as he stood in Tahrir Square accompanied by three other men. They held banners, according to a letter that the Bab al-Muatham police issued to the investigative judge and that Human Rights Watch has seen, urging the security forces to uphold their duty "to protect the people and to not be the arm of the state," and denouncing corruption and the use of tall concrete "blast" walls to cordon off some areas of the city at a time when ordinary Iraqis faced bloodshed in the streets. The police letter did not indicate that the three had used violence, and police did not arrest the other men with Mohammed. They held him for a day and brought him before an investigative judge at al-Rusafa court, who dismissed the charges against him.
The Baghdad governorate regulations of 2011 excessively restrict the rights to peaceful assembly and protest, in particular by requiring all demonstrations to have a permit. Because the regulations are vague about how permits are to be granted and are backed up by criminal sanctions, they have a chilling effect on free speech, Human Rights Watch said. They directly contravene article 38 of Iraq’s constitution, which guarantees "freedom of assembly and peaceful demonstration."
They also contravene international law, notably the International Covenant on Civil and Political Rights (ICCPR). Iraq is a state party to this treaty, which guarantees the rights to peaceful assembly and to be free from arbitrary arrest and detention, and makes clear that any restrictions on peaceful demonstrations should be exceptional and narrowly drawn. No restriction is permitted unless it is "necessary in a democratic society" to safeguard "national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others."
"This kind of arbitrary treatment amounts to harassment and is clearly intended to scare people into silence," Stork said. "Baghdad’s new governor should distinguish himself from the authorities that brutally cracked down on freedom of assembly in 2011, by canceling these regulations."
For more information on the regulations’ restricting demonstrations, please see below.
The 2011 Regulations
Iraqi authorities have clamped down on protests and other peaceful opposition since thousands of people took to the streets in the summer of 2010 to protest a chronic lack of government services. In response, the Interior Ministry rushed out new regulations on June 25, 2010, which required organizers to obtain "written approval" from the interior minister and provincial governor and then apply for police permission at least 72 hours before the demonstration.
On February 17, 2011, following renewed demonstrations against official corruption and electric power outages and ahead of a major protest called for February 25, Prime Minister Nuri al-Maliki told the news media that he had asked the Interior Ministry not to deny permit requests while warning that anyone who engaged in rioting would be "tracked down." The security forces killed several protesters on February 25.
But the Baghdad governorate issued new regulations on February 20, five days before the February 25 protests, requiring protest organizers to seek permission seven days in advance of the demonstration, instead of the seventy-two hours in the Interior Ministry’s regulations. In a statement on its website, the Baghdad governorate announced its "readiness to give out permits for demonstrations to all sides according to the law" and asserted its authority to regulate demonstrations based on article 31 of Provincial Council Law no. 23/2008 and Letter No. 236, sent by the National Operations Command Center to all governorates on February 10, 2011, whose contents the authorities have not publicly disclosed.
The Provincial Council Law provision cited by Dr. Salah Abdelrazzaq, then the Baghdad governor, states only that the governor has direct authority over local security forces and institutions responsible for upholding security and public order, other than the military, and that he is bound to inform the interior minister if he considers them inadequate and in need of reinforcement, "with a recommendation as to the size of the numbers required to fulfill their responsibilities."
The 2011 regulations acknowledge the right of "all citizens… to demonstrate to express their opinions, stands, and demands," but impose serious obstacles to the exercise of this right, Human Rights Watch said.
The 2011 regulations require protest organizers to submit detailed information about the applicants, the protest, and the participants and to issue them badges so that others cannot join. They ban all "slogans, signs, printed materials, or drawings" that could invoke "sectarianism, racism, or segregation" of Iraqis or anything that would violate the country laws or constitution, encourage violence, hatred, or killing, or prove insulting to Islam, or to "honor, morals, religion, holy groups, or Iraqi entities in general."
Members of Baghdad’s provincial council told Human Rights Watch that the 2011 Baghdad regulations effectively replaced 2010 national regulations that were onerous, but set the earlier deadline for applying for permission to hold the protest. The national government should explicitly amend or repeal the 2010 regulations. As with the 2010 national regulations, it is not clear whether or how an organizer can challenge a permit denial under the 2011 regulations. On August 16, the Interior Ministry spokesman, Saad Maan, told Human Rights Watch that the ministry now has the responsibility for issuing permits for demonstrations. He would not clarify the legal basis for this authority or the date it went into effect, nor would he say whether there are new rules for issuing permits or the date they went into effect. The Interior Ministry has not made any public announcement in recent weeks about new regulations or amendments to existing ones.
A protest organizer who attempted to obtain a demonstration permit at the Interior Ministry on August 15 told Human Rights Watch that he was directed by ministry officials to come back another day because officials did not know how permits are issued, or whether the Interior Ministry has authority to do so.
The UN’s first special rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, published his first general report in May 2012 highlighting best practices in the protection of these rights. In the report, he stressed the overwhelming importance of the right to freedom of peaceful assembly "as a vehicle for the exercise of many other civil, cultural, economic, political, and social rights." Because of this "interdependence" with other rights, the extent to which a state respects the right to peaceful assembly is "a valuable indicator" of a state’s respect for the enjoyment of many other human rights. The Baghdad regulations fail to adhere to these best practices in multiple ways.
In his report, Kiai emphasized that states may only restrict the right to peaceful assembly where there is a "pressing social need." Even then, the only material that can be considered unlawful is "propaganda for war or advocacy for national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence… or acts aimed at the destruction of the rights and freedoms enshrined in international human rights law." The Baghdad regulations’ broad ban on all "slogans, signs, printed materials, or drawings" that could invoke "sectarianism, racism, or segregation" of Iraqis; anything that would violate the country’s laws or constitution, encourage violence, hatred, or killing; and anything that could prove insulting to Islam or to "honor, morals, religion, holy groups, or Iraqi entities in general" clearly violate this principle.
The special rapporteur emphasized the importance of ensuring that domestic legislation limiting peaceful assembly should not subject "the exercise of fundamental freedoms… to previous authorization by the authorities." Citing a decision by the European Court of Human Rights holding that "in special circumstances when an immediate response, in the form of a demonstration, to a political event might be justified, a decision to disband the ensuing, peaceful assembly solely because of the absence of the requisite prior notice, without any illegal conduct by the participants, amounts to a disproportionate restriction on freedom of peaceful assembly." At the most, any prior notification procedure a state enacts should be proportional and "not unduly bureaucratic." The Baghdad regulations require that applicants for a permit to hold a demonstration "complete a form, sign it, and provide copies of the organizer’s identification documents, ration card, and confirmation of address, specifying the date of the demonstration, start and end time, beginning and ending points, and intended route of the demonstration; and must specify the expected number of participants."
The special rapporteur stressed that domestic regulations requiring prior notification should be time-limited: at most "48 hours prior to the day the assembly is planned to take place." Even then, he stresses, "Prior notification should ideally be required only for large meetings or meetings which may disrupt road traffic." The Baghdad regulations’ requirement that anyone wishing to organize a demonstration seek permission seven days in advance also clearly fails to meet these standards.
Finally, the special rapporteur stated that where organizers fail to notify authorities, "the assembly should not be dissolved automatically… and the organizers should not be subject to criminal sanctions, or administrative sanctions resulting in fines or imprisonment." The special rapporteur stated that it is "most important" that organizers and participants "not be considered responsible (or held liable) for the unlawful conduct of others… and… should not be made responsible for the maintenance of public order." The Baghdad regulations, on the contrary, state that "any demonstration without an official permit will be considered illegal and violating public order and the organizer will be held accountable according to the law."