UM del - 2004-05 (2. samling) - Bilag 40: Amnesty Internationals rapport af den 11. august 2005: "Iraq: The New Constitution Must Protect Human Rights", inklusive resumé

The people of Iraq are now engaged in a process of drafting a new constitution. This is aunique opportunity for Iraq to draft a new Constitution that is inclusive and protects humanrights. This document highlights some recommendations that are of particular relevance toIraq today. It focuses primarily on the Chapter titled “Basic Rights and General Freedoms”.Among other things, the document discusses the relation between national law andinternational law, and recommends that the new Constitution should make a specific referenceto international law as one of the sources of national legislation.The document also discusses derogations, limitations, and restrictions of rights, andrecommends that the new Constitution should guarantee all rights at all times, and shouldonly be restricted or suspended in accordance with international law, including situation ofemergency.The draft Constitution includes very positive provisions relating to the prohibition oftorture, and other cruel, inhuman and degrading treatment or punishment. However, itremains silent on a number of other important issues. These include establishing universaljurisdiction over offences of torture. In addition to compensation for victims, it shouldestablish the right to rehabilitation, restitution, satisfaction, and guarantees of non-repetition.There should be a clear prohibition to expel, return ("refouler") or extradite a person toanother state where there are substantial grounds for believing that he or she would be indanger of being subjected to torture.The draft Constitution includes some important provisions for the guarantees of dueprocess and fair trial. However, there are some important guarantees that are missing. Theseinclude the presumption of innocence until proven guilty, the right to liberty and security ofperson and the prohibition of arbitrary arrest, the right to reparation for miscarriage of justice,and the right to trial by a competent, independent and impartial tribunal established by law.

Amnesty International also believes that the death penalty should be abolished. It isthe ultimate cruel, inhuman and degrading punishment. It violates the right to life. It isirrevocable and can be inflicted on the innocent; moreover, it has never been shown to detercrime more effectively than other punishments.The document recommends that the new Constitution should establish universaljurisdiction for the crimes of genocide, crimes against humanity, war crimes, torture, extra-judicial executions and "disappearances".The draft Constitution does not include effective guarantees to most of the economic,social and cultural rights. The new Constitution should guarantee that Iraqi authorities willtake steps, individually and through international assistance and co-operation, especiallyeconomic and technical, to the maximum of its available resources, with a view to achievingprogressively the full realization of economic, social and cultural rights. The document alsolists some essential economic, social and cultural rights guarantees that should be included inthe Constitution in relation to work, education, health, standard of living and cultural rights.The current draft guarantees some rights to Iraqis only while others to everyone in away that is not consistent with international human rights law. It is important that the newConstitution prohibits discrimination and protects rights to all those under the jurisdiction ofIraq, according to international human rights law. The document details the limited areas ofrights that can be guaranteed to citizens only under international law.The new Constitution should protect and promote equality between men and women.It is also essential that the discussion around the new Constitution addresses concerns aboutcertain provisions contained in the current draft, especially the one which stipulates that Islamis the main source of legislation. Amnesty International takes no position with regard to anyreligion, but is concerned that interpretations of Islamic law may be used to perpetuatediscrimination against women and other forms of discrimination. The draft Constitution alsoincludes some phrases that reflect stereotyped roles of women which should be amended. Thedocument refers to UN Security Council Resolution 1325 which stresses the importance oftaking measures that ensure the protection of and respect for human rights of women and girls,particularly as they relate to the constitution.The Constitution should define the child as “every human being below the age ofeighteen years”. The new Constitution should also clearly prohibit the recruitment orenlistment of children under18 years into armed forces (or groups), and their use in hostilities.The new Constitution should also guarantee rights of the child in accordance with theConvention on the Rights of the Child, in relation for example to education and employment,and should reflect the four underlying principles of the Convention on the Rights of the Child.It is important for Iraq to create or maintain specific mechanisms for promotion andprotection of human rights, including through the courts and the judiciary. It will therefore beimportant that the Iraqi judiciary, as the guardians of the Constitution, is strengthened.