Iraq: The New ConstitutionMust Protect Human Rights1. Introduction ....................................................................................................................... 12. Relation between National Law and International Law .................................................... 23. Indivisibility of All Human Rights.................................................................................... 54. Derogations, Limitations, and Restrictions of rights ......................................................... 55. Prohibition of Torture, and other Cruel, Inhuman and Degrading Treatment orPunishment ............................................................................................................................ 76. Fair Trials and abolition of Death Penalty......................................................................... 87. Independence of the Judiciary ........................................................................................... 98. Crimes under International Law...................................................................................... 109. Economic, Social and Cultural Rights............................................................................. 1010. Discrimination ............................................................................................................... 1111. Women’s human rights.................................................................................................. 1312. Children’s Rights........................................................................................................... 15

Iraq: The New ConstitutionMust Protect Human Rights1. IntroductionThe people of Iraq are now engaged in a process of drafting a new constitution.Article 61 of Law of Administration for the Transitional Period requires the NationalAssembly to write the draft of the permanent constitution by no later than 15 August 2005. Ageneral referendum on the draft shall be held no later than 15 October 2005.1Article 60 of the Law of Administration for the Transitional Period states that “theNational Assembly shall write a draft of the permanent constitution of Iraq. This Assemblyshall carry out this responsibility in part by encouraging debate on the constitution throughregular general public meetings in all parts of Iraq and through the media, and receivingproposals from the citizens of Iraq as it writes the constitution.” It is therefore important thatthere is an informed debate on the draft constitution. This should include making the drafts ofthe constitution available for comments, and not only carrying out discussions on generalissues.This is a unique opportunity for Iraq to draft a new Constitution that is inclusive andprotects human rights. Very few countries today have the chance to go through this processand to ensure that mistakes of the past including in Iraq and in other countries are not repeated.This is also a chance for Iraq to learn from successes and good examples in other countries.This document is not a comprehensive discussion of the different provisions that needto be included in the new Iraqi Constitution in order to promote and guarantee human rights.It rather highlights some recommendations that are of particular relevance to Iraq today. Thedocument depends for its analysis on a draft of the constitution that was published in Arabicin Al-Sabah newspaper in Iraq on 26 July 2005. The analysis is primarily related to theChapter of the draft that is titled “Basic Rights and General Freedoms”. The Law ofAdministration for the Transitional Period envisages that the “draft permanent constitutionshall be presented to the Iraqi people for approval in a general referendum to be held no laterthan 15 October 2005. In the period leading up to the referendum, the draft constitution shallbe published and widely distributed to encourage a public debate about it among the people.”It is not clear from this whether during that period the result of the debate could lead toalteration of the draft. Further, in order for the Iraqi people to participate in a meaningfulinformed discussion around the draft, this has to start during the period of the drafting. Somedrafts have been leaked,2however their status was not known, and there was no clearThis is based on paragraph 2 (c) of Security Council Resolution 1546.On 30 June 2005, it is reported that the Iraqi newspaper al-Mada published a version of what itclaimed the bill of rights in the constitution. See Nathan J. Brown, Constitution of Iraq: Draft Bill ofRights, Carnegie Endowment for International Peace.21

2. Relation between National Law and International LawThe new Constitution should make a specific reference to international law as one ofthe sources of national legislation.In case of conflict between national law and international law, the Constitution shouldspecify that international law should prevail. However, the draft Constitution states that Iraqis committed to international treaties as long as they do not contradict the Constitution. Thismight risk placing Iraq in breach of its international obligations. In a separate provision, thedraft Constitution also states that in addition to the rights enshrined in the Constitution, Iraqiswill enjoy all rights that are enshrined in international treaties that Iraq is a state party to aslong as that does not contradict the provisions of Islam. According to the draft Constitution,Islam is the sources (not a source) of legislation. According to Article 27 of the ViennaConvention on the Law of Treaties, a state may not invoke the provisions of its internal law asjustification for its failure to observe its international obligations.Iraq is a state party to the following human rights treaties, among others:- The International Covenant on Civil and Political Rights (ICCPR, ratified on 23March 1976);- The International Covenant on Economic, Social and Cultural Rights (ICESCR,ratified on 3 January 1976);- The International Convention for the Elimination of All Forms of RacialDiscrimination (CERD, ratified on 13 February 1970);- The Convention on the Elimination of All Forms of Discrimination against Women(CEDAW, ratified on 12 September 1986);- The Convention on the Rights of the Child (CRC, ratified on 15 July 1994).Iraq has also ratified a number of important Conventions of the International LabourOrganisation, including:-Convention number 29: Forced Labour (ratified in 1930);

Iraq is also a High Contracting Party to several international humanitarian law treaties:- Convention on the Prevention and Punishment of the Crime of Genocide of 1948- The Four Geneva Conventions of 1949;- The Hague Convention for the Protection of Cultural Property in the Event ofArmed Conflict of 1954;- The Hague Protocol for the Protection of Cultural Property in the Event of ArmedConflict of 1954;- The Convention on the Prohibition of the Development, Production and Stockpilingof Bacteriological (Biological) and Toxin Weapons and on their Destruction of 1972.All human rights enshrined in international treaties ratified by Iraq, as well as incustomary international law, should be an integral part of this Constitution and should beenforceable in courts. For example, Article2of the ICCPR states that states party to theCovenant (including Iraq), have the following obligations:“(a) To ensure that any person whose rights or freedoms as herein recognized areviolated shall have an effective remedy, notwithstanding that the violation has beencommitted by persons acting in an official capacity;(b) To ensure that any person claiming such a remedy shall have his right theretodetermined by competent judicial, administrative or legislative authorities, or by anyother competent authority provided for by the legal system of the State, and todevelop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies whengranted.”Further, drafting the constitution should also benefit from the recommendations of thevarious UN mechanisms, especially the treaty-bodies that made very specificrecommendations related to legislation. Many of these recommendations need to be addressedin the new constitution in order to address the problem of having legislation in Iraq that is notconsistent with international standards.The new Constitution should guarantee full implementation of international law intothe domestic legal system. This includes providing for the amendment of national law in caseof incompatibility with international law. Human rights treaties ratified by Iraq specificallyrequire that. For example, Article 2 (2) of the ICCPR stated that “[w]here not alreadyprovided for by existing legislative or other measures, each State Party to the presentCovenant undertakes to take the necessary steps, in accordance with its constitutionalprocesses and with the provisions of the present Covenant, to adopt such laws or othermeasures as may be necessary to give effect to the rights recognized in the present Covenant.”Further, Amnesty international notes the inclusion of a provision in the draft thatprotects “tribes”. This provision could contribute to ensuring implementation of ICCPRArticle 27, which provides that persons belonging to such minorities shall not be denied theright, in community with the other members of their group, to enjoy their own culture, toprofess and practise their own religion, or to use their own language. However, it is alsoimportant to ensure that the Constitution protects the human rights of everyone, withoutdiscrimination, that the cultural rights of groups and communities is balanced with the rightsof individuals, and that traditional practices of tribes or other minorities are exercised in a waythat does not conflict with international human rights standards.In this regard, AI is concerned to note that the traditional cultural practices of tribesoften subordinate women or conflict with the individual's right to life, health or physicalintegrity, and that many tribes operate parallel justice systems which often have particularnegative impact on women, children, fair trial guarantees, and impose punishments that arecruel, inhuman, or degrading. It is essential therefore that if parallel justice systems are to beallowed to continue to function, steps should be taken to ensure that the they must not conflictwith international human rights standards, as set out in the UDHR, ICCPR and ICESCR andother key human rights instruments, with regard to the principles they apply, the penaltiesthey impose, and the procedures that they follow. If this cannot be done, they must beabolished.The CEDAW Committee noted that “Discriminatory laws are still on the statutebooks of many States parties. The co-existence of multiple legal systems, with customary and

3. Indivisibility of All Human RightsThe new Constitution should emphasise that all human rights civil, cultural, economic,political, and social are protected and are indivisible. There is no provision in the draft to thateffect. Therefore, all the rights should be included in a unified section of the constitution,guaranteed and enforceable on equal footing. This would truly reflect the equal status of allhuman rights. The Vienna Declaration and Programme of Action states that “All human rightsare universal, indivisible and interdependent and interrelated. The international communitymust treat human rights globally in a fair and equal manner, on the same footing, and with thesame emphasis.” It is positive that the draft states that rights and duties listed in the draft arenot exhaustive. But it is essential that the Constitution makes a statement about the status ofinternational law in the Constitution as detailed above, and emphazes the indivisibility ofrights.

4. Derogations, Limitations, and Restrictions of rightsThe new Constitution should guarantee all rights at all times, unless they can berestricted or suspended under specific conditions and consistent with international law. TheICCPR, for example, only allows restrictions on some rights in the Covenant. Restrictionsmay be imposed on the right to liberty of movement and freedom to choose one’s residence(Article 12.1); freedom of expression (Article 19.3), right to peaceful assembly (Article 20.2);freedom of association (Article 22.2); and to take part in public affairs (Article 25). Suchrestrictions are allowed generally only if they are provided by law, are necessary to protectnational security, public order (ordrepublic),public health or morals or the rights andfreedoms of others, and are consistent with the other rights.5Restrictions of rights are allowedonly if in their implementation there is no discrimination on the ground of race, colour, sex,language, religion or social origin.CEDAW Committee, Statement to commemorate the twenty-fifth anniversary of the adoption ofCEDAW, 13 October 2004.5Similar limitations or restriction on selected rights or freedoms are found in the ICESCR, theConvention on the Rights of the Child, and the Convention against Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment. It should be noted that Convention on the Elimination of AllForms of Discrimination against Women and the Convention on the Elimination of RacialDiscrimination do not allow for the imposition of restrictions on rights contained in these treaties.4

In international law, there are a number of rights which explicitly must never besuspended even during states of emergency. The new Constitution should be clear about thedeclaration of states of emergency, and which rights are allowed to be suspended. Theseshould be fully consistent with international human rights law. According to Article 4 of theICCPR, emergency measures entailing derogations of human rights can only be taken:- in time of public emergency which threatens the life of a nation;- to the extent strictly required by the exigencies of the situation;- after a state of emergency has been formally proclaimed; and- other states parties of the ICCPR have been informed.Emergency measures cannot be inconsistent with other obligations underinternational law and cannot involve discrimination solely on the ground of race, colour, sex,language, religion or social origin.Among the rights not subject to derogation are: right to life, the prohibition of tortureand degrading treatment, prohibition of medical or scientific experimentation without consent,prohibition of slavery, slave-trade and servitude, prohibition of imprisonment because ofinability to fulfil a contractual obligation, the principle of legality in the field of criminal law,(i.e. the requirement of both criminal liability and punishment being limited to clear andprecise provisions in the law that was in place and applicable at the time the act or omissiontook place, except in cases where a later law imposes a lighter penalty), the recognition ofeveryone as a person before the law, and freedom of thought, conscience and religion. Theprinciples of legality and the rule of law require that fundamental requirements of fair trialmust be respected during a state of emergency. There should be no discrimination in theimplementation of measures during states of emergency. Further, in no circumstances a stateof emergency can be invoked as justification for acting in violation of humanitarian law orperemptory norms of international law, for instance by taking hostages, by imposingcollective punishments, through arbitrary deprivations of liberty or by deviating fromfundamental principles of fair trial, including the presumption of innocence.6

5. Prohibition of Torture, and other Cruel, Inhuman andDegrading Treatment or PunishmentThe draft Constitution includes several positive provisions which prohibit all forms ofphysical and psychological torture. The Constitution also prohibits cruel and inhumantreatment, and the use of evidence extracted under torture, coercion or threat.Despite these very positive provisions, the Constitution is missing some importantguarantees. Such explicit reference to these guarantees is essential given the fact that Iraq sofar is not a party to the Convention against Torture and Other Forms of Cruel, Inhuman, orDegrading Treatment or Punishment. The Constitution should define torture in a way that isconsistent with international standards, particularly to include that it is prohibited to torturesomeone to extract information or confession from him or her, or from a third party. TheConstitution should define torture in a way consistent with Article 1 of CAT. The prohibitionof cruel and inhuman treatment should also be extended to corporal punishments as well. Itshould be noted that no exceptional circumstances whatsoever, whether a state of war or athreat of war, internal political in stability or any other public emergency, may be invoked asa justification of torture or other cruel, inhuman or degrading treatment or punishment.There should also be a clear prohibition to expel, return ("refouler") or extradite aperson to another state where there are substantial grounds for believing that he or she wouldbe in danger of being subjected to torture. Diplomatic assurances that torture will not takeplace are never a sufficient guarantee against torture or ill-treatment.The new Constitution should establish jurisdiction over offences of torture when theyare committed in the Iraqi territory under its jurisdiction; when the alleged offender is Iraqinational; and when the victim is Iraqi national. Iraq shall likewise take such measures as maybe necessary to establish its jurisdiction over such offences in cases where the allegedoffender is present in any territory under its jurisdiction and it does not extradite him.The draft Constitution guarantees the right to seek compensation. However, it shouldguarantee all the five forms of reparation, which, in addition to compensation, includesrehabilitation, restitution, guarantees of non-repetition, and satisfaction, as elaborated in the“Basic principles and guidelines on the right to a remedy and reparation for victims of grossviolations of international human rights law and serious violations of internationalhumanitarian law”.7

6. Fair Trials and abolition of Death Penalty

Fair Trial:

The draft Constitution includes some important provisions for theguarantees of due process and fair trial. However, there are some important guarantees thatare missing. It should guarantee the following, in addition to the provisions already in thedraft:- The presumption of innocence until proven guilty;- Right to liberty and security of person and the prohibition of arbitrary arrest;- Right to be informed immediately of the reasons for arrest or detention and of anycharges;- Right to notification in a language that the person understands;- Right of the detainee to have access to the outside world, including the right tocommunicate and receive visits;- Right to trial within a reasonable period of time or to release from detention (notonly the right to be brought before a judge within a short period of time (24 hours) asis in the draft now);- Right to reparation for miscarriage of justice (the raft provides for compensation fortorture and not for reparation for miscarriage of justice generally)- Right for women in custody to be held separately from men, and supervised byfemale staff;- Right to trial by a competent, independent and impartial tribunal established by law;- Right to a public hearing, and the guarantees that judgements are made public.Exclusion of the press and the public can be made only for reasons of morals, publicorder, or national security in a democratic society (the draft only guarantees publicjudgement);- Right to be tried in one’s presence;- Procedures against children in conflict with the law to take account of the juvenile’sage, the desirability of promoting the juvenile’s rehabilitation, and best interest of thechild. Arrest detention and trial of the child should be used as a measure of last resortand in conformity of the CRC;

The Death Penalty:

Amnesty International believes that the death penalty should beabolished. It is the ultimate cruel, inhuman and degrading punishment. It violates the right tolife. It is irrevocable and can be inflicted on the innocent; moreover, it has never been shown

to deter crime more effectively than other punishments. The international trend is towards theabolition of the death penalty. Therefore, Amnesty International calls on the ConstitutionDrafting Committee to abolish the death penalty.International standards place significant restrictions on the death penalty. Forexample they require that it be limited to the “most serious crimes”, which has beeninterpreted to mean that it should be “quite exceptional measure”.8Safeguard 1 of the UNSafeguards guaranteeing protection of the rights of those facing the death penalty, endorsedby the UN General Assembly in 1984, states that crimes punishable by death “should not gobeyond intentional crimes, with lethal or other extremely grave consequences”. Internationalstandards also require that the death penalty can only be carried out pursuant to a finaljudgement rendered by a competent court. It should not be imposed on children under the ageof 18 or carried out on pregnant women. There should be guarantees for the right to seekamnesty, pardon or commutation of the sentence in all cases without exception.

7. Independence of the JudiciaryIt is important for Iraq to create or maintain specific mechanisms for promotion andprotection of human rights, including through the courts and the judiciary. Therefore, asPrinciple 1 of the Basic Principles on the Independence of the Judiciary states, the“independence of the judiciary shall be guaranteed by the State and enshrined in theConstitution or the law of the country. It is the duty of all governmental and other institutionsto respect and observe the independence of the judiciary.”An independent, impartial judiciary plays an essential role in ensuring that humanrights are guaranteed to all without distinction. It also requires the judiciary to ensure thatjudicial proceedings are conducted fairly and that the rights of the parties are respected. Inorder to be able to ensure that, the judiciary should be aware of Iraq’s obligations underinternational law.It will therefore be important that the Iraq judiciary, as the guardians of theConstitution, is strengthened. This requires that the new Constitution protects the separationof powers. Principle 4 of the Basic Principles of the Independence of the Judiciary requiresthat “There shall not be any inappropriate or unwarranted interference with the judicialprocess, nor shall judicial decisions by the courts be subject to revision. This principle iswithout prejudice to judicial review or to mitigation or commutation by competent authoritiesof sentences imposed by the judiciary, in accordance with the law.”

8. Crimes under International LawIt is essential that the new Constitution establishes universal jurisdiction for thecrimes of genocide, crimes against humanity, war crimes, torture, extra-judicial executionsand "disappearances", in order that Iraqi national courts can investigate and, if there issufficient admissible evidence, prosecute anyone who enters Iraqi territory suspected of thesecrimes, regardless of where the crime was committed or the nationality of the accused or thevictim.There should be no immunity for past crimes and that there is no time limit on theliability to prosecution of a person responsible for grave crimes under international law.Superior orders, duress and necessity should not be permissible defences. The newConstitution must also establish that Iraq must fully cooperate with investigations andprosecutions by the competent authorities of other states exercising universal jurisdiction overgrave crimes under international law and with international courts exercising universaljurisdiction over such crimes. Iraq already has the obligation to practice universal jurisdictionover some crimes according to the Fourth Geneva Convention Relevant to the Protection ofCivilian Persons in Times of War

freedom of trade unions, the highest attainable standards of physical and mental health, food,water and social security.9Iraq is a state party to a number of international human rights treaties securingeconomic, social and cultural rights: (ICESCR, ICERD, ICEDAW, CRC) and therefore hasthe obligation that the new Constitution should guarantee that Iraqi authorities will take steps,individually and through international assistance and co-operation, especially economic andtechnical, to the maximum of its available resources, with a view to achieving progressivelythe full realization of economic, social and cultural rights.10The constitution does not makereference to the obligation to make progressive realisation of the economic, social or culturalrights.Among essential economic, social and cultural rights guarantees, the newConstitution should ensure the following:- adequate standard of living including right to food, water, and housing- right to education;11- right to the highest attainable standard of physical and mental health;- right to work and rights at work;- freedom of association and the right to organise;.12and- cultural rights.

10. DiscriminationThe draft Constitution prohibits discrimination on some grounds, which is a positivestep. However, there are grounds of discrimination prohibited in international human rightsSee Chapter 2 of the Constitution of the Republic of South Africa: Bill of Rights, athttp://www.polity.org.za/html/govdocs/constitution/saconst.html?rebookmark=110This is embodied in Article 2 of the ICESCR and Article 4 of the CRC. For interpretation of thesearticles see Concluding observations of the Committee on Economic, Social and Cultural Rights: Iraq,(E/C.12/1/Add.17), 12 December 1997, para. 25 and Concluding observations of the Committee on theRights of the Child: Iraq, (CRC/C/15/Add.94) 26 October 1998, para. 13.11This is currently guaranteed in the draft only to Iraqis, while international law makes the obligationthat this should be guaranteed to everyone.12See Article 8 of the ICESCR and International Labour Organisation Recommendations 87 and 98.Iraq is a state party only to ILO Convention 98 on Right to Organise and Collective Bargaining.. ILOConventions 87 and 98 are part of the ILO standards reflecting fundamental principles enshrined in theILO Declaration on Fundamental Principles and Rights at Work of 1989.See also in relation to the status offreedom of association in the current applicable Iraqi law: Concluding observations of the Committeeon Economic, Social and Cultural Rights: Iraq. (E/C.12/1/Add.17), 12 December 1997, para. 16.9

law, which should be also prohibited in the Constitution. For example, the draft Constitutiondoes not prohibit discrimination on the basis of national and social origin (rather thannationality), language, wealth, birth, or property.The current draft guarantees some rights to Iraqis only. For example, the draftconstitution provides equality before the law for all Iraqis; equal opportunities are guaranteedto all Iraqis; and that every Iraqi has the right to life, liberty, security of person and privacy.This is not consistent with international law. It is important that the new Constitutionprohibits discrimination and protects rights to all those under the jurisdiction of Iraq,according to international human rights law. This is an established principle of internationalhuman rights law that is embodied in many provisions of human rights treaties.International human rights law provides for only specific rights to be limited tocitizens only. The ICCPR expressly states that citizens have the right to take part in theconduct of public life, to vote and to be elected. This is the only right in the ICCPR that islimited to citizens.13Article 13 of the ICCPR is specific to aliens and allows for the alienlawfully in the territory of a state to be expelled in pursuance of a decision reached inaccordance with law, and to have the right to appeal the decision. Once the alien is lawfullywithin a territory, his or her freedom of movement within the territory and the right to leavethat territory may only be restricted in the same way as all others residing lawfully in theterritory of the state can be restricted. This is only to protect national security, public order(ordre public), public health or morals or the rights and freedoms of others (Article 12 of theICCPR).All the rights enshrined in the ICESCR are guaranteed for everyone, whether citizensor aliens. However, Article 2 (3) of the ICESCR creates a specific exception to the generalrule of equality for developing countries: “Developing countries, with due regard to humanrights and their national economy, may determine to what extent they would guarantee theeconomic rights recognized in the present Covenant to non-nationals.” As an exception to thegeneral rule of equality, it should be noted that Article 2 (3) must be narrowly construed, maybe relied upon only by developing countries, and only with respect to economic rights. Statesmay not draw distinctions between citizens and non-citizens as to social and cultural rights.Measures taken by States to protect their citizens and economies from non-citizens should notbe taken to the detriment of the enjoyment of human rights. As the exception in Article 2 (3)relates only to the obligation to fulfil economic rights, developing countries would stillpossess obligations to respect and protect economic rights, for example, to avoiddiscrimination on the basis of citizenship status. It is prohibited to discriminate against non-citizens in relation to working conditions and work requirements, including employment rulesand practices with discriminatory purposes or effects.14The Constitution should also prohibit discrimination against minorities in the civil,cultural, economic, political and social. For example, there should be no discrimination in fair1314

11. Women’s human rightsThe new Constitution should protect and promote equality between men and women.It is not enough that there is prohibition of discrimination on the basis of sex. TheConstitution should specifically prohibit discrimination that has the effect or purpose ofadversely affecting women's human rights.15The Constitution should therefore reflectspecifically Article 1 of CEDAW and define discrimination against women as “anydistinction, exclusion or restriction made on the basis of sex which has the effect or purposeof impairing or nullifying the recognition, enjoyment or exercise by women, irrespective oftheir marital status, on a basis of equality of men and women, of human rights andfundamental freedoms in the political, economic, social, cultural, civil or any other field.”Amnesty International also recalls Security Council Resolution 1325 which “calls onall actors involved, when negotiating and implementing peace agreements, to adopt a genderperspective, including, inter alia: … (b) Measures that support local women's peace initiativesand indigenous processes for conflict resolution, and that involve women in all of theimplementation mechanisms of the peace agreements; (c) Measures that ensure the protectionof and respect for human rights of women and girls, particularly as they relate to theconstitution, the electoral system, the police and the judiciary.”16Further, many women's groups in Iraq have voiced concerns about certain provisionscontained in the current draft, especially the one which stipulates that Islam is the main sourceof legislation. Amnesty International takes no position with regard to any religion, but isconcerned that interpretations of Islamic law may be used to perpetuate discrimination againstwomen and other forms of discrimination. It is essential that discussions around the newConstitution address these concerns and ensure that the constitution prohibits unequivocallydiscrimination on the basis of gender and promotes women's full rights. Rulings ofinternational human rights bodies emphasize the importance of ensuring that women's rightsare not made subject to religious or minority concerns. The Human Rights Committeestressed that "States parties should ensure that traditional, historical, religious or cultural

attitudes are not used to justify violations of women's right to equality before the law and toequal enjoyment of all Covenant [ICCPR] rights."17There is discussion among Iraqis that that the Constitution will include reference orprovisions of special measures or positive discrimination measures in the benefit of women.It should be noted that the adoption of temporary special measures aimed at accelerating defacto equality between men and women shall not be considered discrimination as defined inCEDAW, but shall in no way entail as a consequence the maintenance of unequal or separatestandards. If the new Constitution of Iraq includes provisions allowing for adoption of specialmeasures, it should ensure as well that they shall be discontinued when the objectives ofequality of opportunity and treatment have been achieved (Article 4 (1) of CEDAW).18As a state party to CEDAW, Iraq is also under the obligation to “modify the socialand cultural patterns of conduct of men and women, with a view to achieving the eliminationof prejudices and customary and all other practices which are based on the idea of theinferiority or the superiority of either of the sexes or on stereotyped roles for men andwomen.”19While the draft Constitution includes the positive provision that guaranteesequality for women in the political, social, cultural, economic, educational life, this, accordingto the Constitution should not be inconsistent with provisions ofShari’a.AmnestyInternational believes that guarantees for equality for women’s rights should be consistentwith international law.The draft Constitution includes some phrases that reflect stereotyped roles of women.It states for example that the State guarantees the duties of the woman towards the family andwork in the society. International law requires that there are certain protections that should beaccorded to women in work, including introducing maternity leave with pay or withcomparable social benefits without loss of former employment, seniority or social allowances;and providing special protection to women during pregnancy in types of work proved to beharmful to her. These protections are aimed to protect women during maternity. They do notentail any protections due to stereotypical role of women. Article 16 of CEDAW requiresstate parties to take measures to ensure elimination of discrimination against women in allmatters relating to marriage and family relations. It stresses for example the need to ensure“the same rights and responsibilities as parents, irrespective of their marital status, in mattersrelating to their children; in all cases the interests of the children shall be paramount” (Article16 (e) of CEDAW). International law places the obligation to care for the child on bothparents, and not the mother only. For example, Article 27 (2) of the CRC, to which Iraq is astate party, states “The parent(s) or others responsible for the child have the primaryresponsibility to secure, within their abilities and financial capacities, the conditions of livingnecessary for the child's development.” The state is also asked to encourage the provision ofthe necessary supporting social services to enable parents to combine family obligations with17

12. Children’s RightsThe new Constitution should also guarantee rights of the child in accordance with theConvention on the Rights of the Child (CRC). The Constitution should define the child as“every human being below the age of eighteen years”. The Constitution should also requirethe State to protect the rights of the child as provided in the international and regionalconventions ratified by Iraq.The new Constitution should particularly reflect the four principles of the CRC:Article 2 of the CRC: the obligation to respect and ensure the rights set forthin the Convention to each child within their jurisdiction without discrimination of anykind. (principle of non-discrimination)Article 3 (1) of the CRC: the best interests of the child as a primaryconsideration in all actions concerning children. (principle of best interest of the child)Article 6 of the CRC: the child’s inherent right to life and ensuring to themaximum extent possible the survival and development of the child. (principle ofsurvival and development of the child)Article 12 of the CRC: the child’s right to express his or her views freely in“all matters affecting the child”, those views being given due weight (principle ofrespect for the views of the child).The new Constitution should clearly prohibit the recruitment or enlistment of childrenunder18 years into armed forces (or groups), and their use in hostilities. The OptionalProtocol to the Convention on the Rights of the Child on the involvement of children in armedconflict raises from 15 to 18 years the minimum age for direct participation in hostilities, forcompulsory recruitment by states and for any recruitment by non-governmental armed groups.The new Constitution should also prohibit the voluntary recruitment of people under 18. AIopposes the recruitment – whether voluntary or compulsory – and participation of children(people under the age of 18) in armed forces. It takes this position whether they are recruitedby governments or armed political groups, believing that the participation of children inhostilities jeopardizes their physical and mental integrity.

The new Constitution should also ensure the right to education including, freecompulsory education available to all under the jurisdiction of the state, different forms ofsecondary education, including general and vocational education. Education should bedirected towards the development of respect for human rights and fundamental freedoms, andfor the principles enshrined in the Charter of the United Nations.The draft Constitution prohibits the employment of children in degrading jobs or injobs that are not appropriate for their young age. The constitution should be more explicit andclear and should prohibit employment of children in work that is harmful to their morals orhealth or dangerous to life or likely to hamper their normal development, or which interfereswith their education. The Constitution should prohibit the worst forms of child labour,including from performing any work that is likely to be hazardous or to interfere with thechild's education, or to be harmful to the child's health or physical, mental, spiritual, moral orsocial development, and prohibit such employment for all children under the age of 18.20