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Iraq’s High Commission for Human Rights:

Bylaws, Regulations and Legal Framework


EXECUTIVE SUMMARY


A. Overview

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This manual seeks to assist the Board of Commissioners (BoC) of the independent Iraqi High Commission for Human Rights (HCHR) to develop bylaws and procedures to regulate and support the work of the Commission. To this end, this manual addresses topics germane to the mandate of Commission—such as coordination with civil society and governmental institutions, financial policies, complaints handling, and staffing practices—and considers the importance of transparency, accountability, and legitimacy throughout the analysis.

The Board of Commissioners of the Iraqi High Commission for Human Rights will bear many responsibilities, particularly in the early phases of establishing the Commission. In addition to assessing capacity needs, setting up the headquarter’s physical space, and determining the vision and mandate of the HCHR, the BoC must also develop the regulations, procedures, and protocols that will dictate the functioning of the Commission into the future. It is the outcomes of this latter duty that will play the most crucial role in the Commission’s sustainability, and in establishing the Commission as an institution founded on principles of independence, transparency, accountability, and efficiency.

Among National Human Rights Institutions (NHRIs) throughout the world, there is no single “best model,” and the BoC must decide what issues demand attention by the Board and what procedures should be left to the appropriate directorates to design. Law No. 53 of 2008 and the Paris Principles are primary guides, but where the Law is silent, the BoC should base decisions on the particular human rights needs of Iraq and the manner in which the Commission could best work to protect and promote human rights. These ideas are foundational to the analysis and recommendations in this report, but ultimate decision-making rests with the Commissioners and the experience, expertise, and vision they will bring to bear.

B. Legal Foundations

Article 102 of the Iraqi Constitution of 2005 mandates that the functions of the High Commission for Human Rights shall be regulated by law. In December 2008, the Iraqi Council of Representatives enacted Law No. 53, setting out the legal foundations for the establishment of the independent Iraqi High Commission for Human Rights (HCHR).

Law 53 prescribes procedures for the nomination and approval of the Board of Commissioners, defines the functions and duties of the Commission, identifies financial resources and requirements, and lays out the rights of Commissioners and terms for their termination.

Under Law 53, the High Commission for Human Rights is mandated to:

Ensure the protection and promotion of respect for Human Rights in Iraq; Protect the rights and freedoms stipulated in the Constitution, international laws, treaties and conventions ratified by Iraq; [and to] strengthen, promote and develop human rights principles and culture.

In 2011, the Council of Representatives reinstated the Committee of Experts, which was charged under the Law with nominating candidates for membership on the HCHR’s Board of Commissioners. After many months of evaluation, discussion and interviews, in April 2012, the Committee of Experts presented a slate of 11 Commissioners plus three reserve members to the Council of Representatives, which officially endorsed the group. Under Law 53 of 2008, the Board of Commissioners consists of eleven original (voting) members and three reserve members. Women’s representation on the Board of Commissioners shall be no less than one-third of members, which IILHR interprets to mean a minimum of four original members. Minorities shall be no less than one original member and one reserve. The first Board of Commissioners, as endorsed, consists of two women as original members and two as reserves, with one minority original member and one reserve.

The Commissioner selection process began with a public call for applications, wherein the Committee of Experts received over 3,000 applications and supporting documentation. After eliminating candidates for sufficiency under the requirements of Law 53 (including restrictions on age, Iraqi residency, and level of education), the Committee of Experts developed a standardized point system with cross-checks to evaluate the remaining applicants on human rights experience, research, and other skills. An appeals process was offered and background checks were conducted with the Commission on Public Integrity, the De-Ba’athification Commission, and the Ministry of Interior. The point system was used to identify approximately 50 highly qualified candidates for interviews. Interviews utilized interview questions and evaluation criteria developed with the assistance of international technical experts. Starting with the highest-scoring candidates, the Committee of Experts then considered the overall composition of the Board of Commissioners to ensure a diverse and representative board. Experts therefore considered skill and experience, governorate representation, component representation, and religious representation to identify the final slate of 11 plus three candidates.

Having been endorsed by the Council of Representatives, the Board of Commissioners is obligated under Law 53 to:

  • Supervise and follow-up on Commission activities;
  • Define the divisions, functions and composition of the organizational structure of the HCHR through bylaws;
  • Issue service and recruitment rules for HCHR employees, and determine remuneration and conditions of service;
  • Appoint executive directors to regional and governorate offices and accept their resignation or discharge in accordance with the Law;
  • Develop and submit annual reports on Commission activities to the Council of Representatives; and
  • Develop and propose the HCHR’s annual budget to the Council of Representatives.

In addition to these specific tasks, the BoC should also consider developing regulations, handbooks, or protocols that would standardize particularly complex or important tasks, such as receiving and handling complaints. Other regulations could be delegated to directors or the Secretariat to develop.

Further, under Law 53, the High Commission for Human Rights is mandated to perform the following functions and duties, which the Board of Commissioners must oversee:

  • Receiving, investigating, and following up on complaints of human rights violations;
  • Initiating lawsuits related to violations of human rights;
  • Conducting visits to and assessments of prisons, social rehabilitation centers, and detention centers;
  • Promoting a culture of human rights throughout Iraq;
  • Establishing the Office of Inspector General;
  • Establishing HCHR Offices in the Regions and Governorates not organized in a region;
  • Developing annual and special reports on the human rights situation in Iraq;
  • Coordinating and cooperating with Civil Society Organizations and Governmental institutions;
  • Evaluating and submitting recommendations on legislation in force; and
  • Maintaining financial accounts.

To achieve these duties and the goals of the Commission, one of the Board of Commissioners’ main obligations is to develop bylaws and regulations laying out the divisions, functions and composition of the organizational structure of the HCHR. Additionally, regulations governing staff recruitment, remuneration, and terms of service must be developed within one month of the establishment of the Board of Commissioners. This report seeks to support these goals.

C. Methodology

In developing the analysis and recommendations herein, IILHR examined Iraqi Law No. 53 of 2008, the Paris Principles relating to the Status of National Institutions, and the establishment laws, national constitutions, bylaws, and regulations relating to the national human rights institutions (NHRIs) of over 30 countries. IILHR accorded due attention to NHRIs operating within the Middle East and North African region, NHRIs established in post-conflict states, and NHRIs accredited with “A” and “B” status by the Sub-Committee on Accreditation of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights. The report also utilizes research and reports developed by the United Nations, and evaluations of NHRIs developed by the Sub-Committee on Accreditation.

National Human Rights Institutions examined for this report include those in Egypt, Afghanistan, South Africa, Thailand, Kenya, Tunisia, Algeria, Morocco, India, Indonesia, Palestine, Jordan, Northern Ireland, Ireland, England, Canada, Bosnia and Herzegovina, Cameroon, Ghana, Malawi, Mali, Namibia, Senegal, Tanzania, Australia, Uganda, New Zealand, France, Greece, Spain, and Qatar.

Relying on the functions established in Law 53 of 2008 as a baseline for issues and activities requiring regulation, IILHR also considered how bylaws and regulations could serve to better align Commission practices with the standards established under the Paris Principles, which stress independence, transparency, pluralism, accountability, and efficiency. The six standards outlined in the Paris Principles include:

  • Autonomy from government;
  • A broad and clearly defined mandate based on universal human rights standards;
  • Independence;
  • Pluralism among Commissioners and staff;
  • Adequate resources; and
  • Adequate powers of investigation.

Where Law 53 does not definitively outline the scope of a particular HCHR authority, or leaves broad decision-making powers to the Board of Commissioners, the standards of transparency, independence, pluralism, efficiency, and accountability emphasized in the Paris Principles guide recommendations.

D. Recommendations

This report identifies six key areas requiring the development of regulations and procedures to assist the regularized and efficient functioning of the HCHR. For each key area, the report addresses the legal foundations for HCHR activities, examines reasons supporting the development of regulations for each area, proposes recommendations and, where appropriate, draft regulations and procedures.

  1. Composition of the HCHR. Defining the composition of the HCHR within bylaws is of particular importance since it can help protect the independence and pluralism of the Commission. Policies and regulations relating to the composition of the HCHR should include:
    • The appointment and authority of special offices, such as the Chair and Deputy Chair Commissioners, the Executive Secretary, and the Office of Inspector General;
    • The establishment and authority of the Board of Commissioners, Sub-Committees, Working Groups, and Supporting Units;
    • An organogram detailing the organizational structure of the HCHR; and
    • A system for establishing, monitoring, and coordinating with HCHR Offices in the regions and governorates.

  2. The Work of the HCHR. To perform its mandated functions, the HCHR must coordinate with governmental and non-governmental organizations in Iraq and the international community, the media, and other stakeholders. It must also maintain records, perform monitoring and investigation functions, and engage in regular reporting. These activities require the development of procedures to ensure smooth coordination and standardized record-keeping and reporting. Specifically, the HCHR must:
    • Engage in educational activities, including supporting training efforts for judges, lawyers, security forces, social workers, the media, teachers, and community leaders among others;
    • Raise public awareness through media campaigns and civil society networks;
    • Analyze and provide recommendations on legislation in force and, where appropriate, draft legislation;
    • Investigate, monitor, report, and advise on the human rights situation in Iraq;
    • Analyze and provide recommendations on the ratification and implementation of international human rights instruments; and
    • Engage in conciliation and/or mediation for parties to human rights complaints violations.

  3. Receiving and Handling Complaints. Handling complaints of human rights violations is potentially one of the most important, time consuming, and complex activities the HCHR will perform. Other NHRIs, such as the Palestinian Commission, have found that complaints handling is among the most time-consuming of all NHRI activities. Given that the HCHR will open regional and governorate offices and can expect to receive complaints or initiate investigations throughout the country, the HCHR must adopt standardized practices and protocols for everything from filing requirements, to confidentiality standards, to record-keeping, follow-up, remediation, and external referral. Such practices and protocols should be adhered to by all individuals and organs with the HCHR involved with the complaints handling process, and should facilitate coordination both within and without the HCHR. Complaints handling considerations that should be established by the BoC include:
    • Filing Procedures and Information Requirements;
    • Jurisdictional Screening Protocol and Intervention in Sub Judice cases;
    • External Referrals;
    • Internal Dispensation Protocols;
    • Case Tracking Systems;
    • Confidentiality Protocols;
    • Client’s Rights Charter;
    • Remedial Competencies and Enforcement Mechanisms; and
    • Staff Roles.

  4. Relationships to Stakeholders and other Institutions. To achieve the aims of the Commission, Law 53 requires the HCHR to coordinate, in various capacities, with Iraq’s Ministries, bodies not associated with Ministries, other independent commissions, civil society organizations, international independent and nongovernmental institutions, and the United Nations. To fulfill the mandate to monitor and investigate prison conditions, for example, the HCHR must coordinate with the Ministry of Justice, among other institutions. To promote a culture of human rights and ensure that public servants respect those rights, the HCHR must coordinate with the Ministry of Human Rights. To follow-up on complaints and intervene in the judicial process where necessary, the HCHR must coordinate with the Higher Judicial Council, the Federal Supreme Court, and other judicial bodies. To this end, the HCHR must develop mechanisms for coordination that may include, among other options:
    • Developing Memoranda of Understanding with governmental and non-governmental organizations to establish ground rules and working methods;
    • Establishing a sub-committee or working group dedicated to maintaining external relationships;
    • Developing protocols for inviting representatives from other institutions to attend BoC meetings as non-voting observers or presenters;
    • Facilitating regularly scheduled meetings and the consistent exchange of information.

  5. Administration of HCHR Operations. The efficiency and effectiveness of the HCHR’s administrative operations is crucial to the successful functioning of the Commission. As such, regulations and procedures must be developed to guide practices such as voting, quorum and record-keeping for BoC meetings; public access to Commission materials; financial record-keeping, accounting, and reporting practices; staff hiring, termination, and terms of service; Commissioner terms of service; and other issues. Specifically, regulations and procedures must be developed to address:
    • Working Methods and Rules of Procedure;
    • Public Access to BoC activities and documentation;
    • Record-Keeping;
    • Personnel Policies including Staff Recruitment, Remuneration, Benefits, Assessment, and Termination;
    • Commissioner Terms of Service including Term Limits, Leave Policies, and Codes of Conduct;
    • Financial Policies, Budgeting, and Procurement;
    • Donor management; and
    • Accounting Practices.

  6. Codes of Conduct and Ethics. Though HCHR Commissioners must swear an oath upon taking office, many NHRIs also develop of codes of conduct and ethics to delineate ethical and professional behavior, address potential conflicts of interest, and enhance accountability among both Commissioners and staff. Codes of Conduct and Codes of Ethics manifest common demands for accountability and augments employees’ awareness of expected ethical behavior and practices. For Commissioners, the signing of and adherence to Codes of Conduct and Ethics can serve as a powerful signal to the public of the high moral and ethical standards they intend to bring to the office. The development of Codes of Conduct and Codes of Ethics should include consideration of:
    • Conflicts of Interest Disclosure and Regulations, including pecuniary and other interests;
    • Confidentiality Certification;
    • Guidelines for recusal from decision-making and procedural protocols;

E. Conclusions

This manual assesses the legal parameters of Law 53 of 2008, as well as international standards set out in the Paris Principles, and common practices among other national human rights institutions. The goal behind the research is to assist the Board of Commissioners to fulfill its responsibilities in setting up the High Commission for Human Rights, and to facilitate the effective, legitimate, and independent functioning of the Commission into the future.

The analysis identifies Human Rights Commission practices and activities that the BoC should consider regulating, and provides examples of alternative practices and procedures utilized by various NHRIs throughout the world. However, this manual recognizes that there is no “best model” and the Commission’s organization, and its functions will be geared toward meeting the particular needs of Iraq. Where appropriate, this report lays out sample procedures and regulations for the Board of Commissioners to consider, but the ultimate decisions lie with the Commissioners.

IILHR continues to support the ongoing development and functions of the High Commission for Human Rights, and is available to answer questions or provide further information about the information in this manual, and other issues that may arise.

ACRONYMS

ADR
BoC
CoE
CSO
OIG
CoR
HCHR
IHEC
IILHR
Law 53
MOU
NGO
NHRI
OHCHR
UN

Alternative Dispute Resolution
Board of Commissioners
Committee of Experts
Civil Society Organization
Office of Inspector General
Council of Representatives
Iraqi High Commission for Human Rights
Independent High Electoral Commission
Institute for International Law and Human Rights
Iraqi Law No. 53 of 2008
Memorandum of Understanding
Non-Governmental Organization
National Human Rights Institution
Office of the High Commission for Human Rights (United Nations)
United Nations

ABOUT THE REPORT

This report considers the internal regulatory needs of the Iraqi High Commission for Human Rights, including organizational infrastructure, the development of internal procedures and protocols for the performance of daily work, mechanisms for coordinating with other institutions and organizations, financial management, administration and record-keeping, and human resources policies. Law 53 of 2008 establishing the High Commission for Human Rights serves as the foundation for analysis and recommendations. The report also utilizes the Paris Principles and international best practices where applicable.

This report and its recommendations do not strive to present a “Western” viewpoint for Iraq’s independent human rights commission, nor does it purport to suggest a single “best” vision for the Commission’s functioning. Rather, the report considers the positive and negative experiences of over 30 national human rights institutions from a variety of nations throughout the world, with an eye to the particular situation of Iraq and the legal framework underpinning the institution.

For the purposes of this report, the jurisdiction and authorities of the High Commission for Human Rights are construed in the broadest possible sense within the scope of Law 53 of 2008 and the principles of transparency, independence, and efficiency laid out in the Paris Principles. While Law 53 may imbue the Human Rights Commission with certain authorities, the mechanics guiding the implementation of these authorities requires due consideration.

In some areas, Law 53 mandates goals for the Commission which imply functions that are not specifically delineated within the legislation. As such, in order to fully implement the promise of Law 53 and clarify legislative inconsistencies, particular authorities and duties are implicit, and form part of the mechanics of fulfilling the Commission’s mandate.

For example, under the complaints and investigations duties mandated under Law 53, it is implicit that the Commission should engage in reconciliation, mediation, and other forms of alternative dispute resolution for complaints that do not rise to the level of judicial intervention. Similarly, Law 53 also implies that the HCHR should participate as amicus curiae in sub judice cases with leave of the Court. Of course, the ultimate authority to interpret the Law lies with the Board of Commissioners, the Council of Representatives, the Federal Supreme Court, and other authoritative institutions.

As such, this report seeks to raise issues the BoC should consider when developing the infrastructure and internal regulations for the High Commission for Human Rights. IILHR’s recommendations seek to assist the BoC in these tasks, to meet the particular needs of Iraq, and adhere to the HCHR’s legal framework. In so doing, the first task of this report was to assess Law 53 of 2008 and the obligations it sets out for the Board of Commissioners. IILHR then considered the functions and duties delineated to the Commission and the procedures and protocols necessary to ensure the efficient fulfillment of these tasks.

Significant effort went toward ensuring that the comparative NHRIs cited in the report represent the most relevant examples to meet the needs of the High Commission for Human Rights. However, it must be noted that it is challenging to locate, research, and translate the internal working rules of many NHRIs, particularly in states grappling with security, technology, and political challenges. In order to mitigate potential confusion, the full text of cited regulations is reproduced in footnotes where appropriate and full citations are provided.

Erin Houlihan, Legal Advisor for the Institute for International Law and Human Rights, served as Project Coordinator for this report, conducting research and analysis, and managing the writing, editing, and compilation of this report. Countless hours of research, analysis, and writing was also provided by law students in the University of Virginia School of Law’s Human Rights Program and Duke University School of Law’s Human Rights Advocacy Clinic. IILHR is grateful for the invaluable contributions of Shafat Ahmad, Aongus Cheevers, Jacy Gaige, and Caitlin Swain of Duke University, and Amelia Dungen, Antonios Antonopoulos, Chen Song, and Joel Sanderson of the University of Virginia. IILHR is also grateful to Professor Deena Hurwitz for her leadership and contribution, and to Alec Knight and Lauren Petrosky for their research, analysis, and writing. We are also grateful to Kathryn McDonnell who provided cover design and other graphics assistance. IILHR Executive Director William Spencer supervised the drafting and editing of this report and provided invaluable contributions to the analysis.

THE WAY FORWARD

This manual only represents a start. While it can help to lay the groundwork for an effective, legitimate, and transparent human rights protection mechanism for Iraq, this analysis cannot be genuinely useful without an overarching vision of how an Iraqi High Commission for Human Rights will do its work. Regulations and a legal framework for the future are necessary – but not sufficient – to build an institution that can successfully defend the human rights of Iraqi citizens.

A vision of the future must also include a common strategy, institutional values, and a mission. All of these components are prerequisites to building a strong institutional framework that can serve the Iraqi people for generations to come.

The process of developing standards and regulations for a new human rights commission should involve not just Commissioners and staff, but all of the new institution’s strategic partners in civil society, the Iraqi government, and in the international community. The process of consultation should be woven into all activities, beginning with initial drafts and ending with enactment of bylaws and regulations.

A broad and inclusive human rights commission must also be built on a foundation of lessons learned, best practices, and buy-in from all potential partners inside and outside the Commission. This includes learning from other institutions and international human rights leaders, and collaborating with international organizations and donors.

As this document shows, there are many approaches to building a strong system of internal procedures to guide the efficient and effective work of the High Commission for Human Rights, and to ensure accountability at all levels within the organization. The nature and scope of issues that the Board of Commissioners must address through bylaws and regulation are complex and varied, but the quality of procedures developed, and the level of adherence required among staff and officers, will impact the legitimacy and effectiveness of the Commission into the future.

The High Commission for Human Rights faces a long and challenging road toward becoming a fully functioning and effective institution capable of responding to rights violations, improving the culture of respect for human rights, documenting and reporting on the situation of human rights, improving the de jure and de facto protection of rights, and holding the State accountable for the treatment of its citizens. Establishing a robust regulatory framework to guide the work of the Commission in its early stages is one of the most significant steps down this road.

Internal regulations and policies are only one ingredient for the functioning of a viable human rights commission, and through reaching out to partners – and taking the time to develop both a human rights and institutional strategy, with vision, values, and a clear mission -- Commissioners and staff will build the legitimacy and effectiveness of Commission and its operational standards, and successfully engage with citizens and the State to promote and protect human rights in Iraq. IILHR stands ready to support this process however it can.

ABOUT IILHR

The Institute for International Law and Human Rights (known as IILHR) is a 501(c)(3) non-profit charity registered in Washington, D.C., and Brussels, Belgium. IILHR helps states in the early stages of democracy develop the capacity to strengthen the rule of law and build respect for human rights. With a staff of diplomats, parliamentarians, human rights activists and attorneys, IILHR has a strong track record of implementing successful programs that help local partners strengthen support for human rights and the rule of law. Members of IILHR’s staff have participated in legal, legislative and civil society capacity-building programs in the Middle East, South Asia, Africa, and Central and Eastern Europe.

IILHR has been a strong, supportive presence in Iraq since July 2005. It collaboratively engages with leaders of both Iraqi government and civil society to strengthen approaches to human rights issues by a) supporting the development of draft legislation and policies; b) working to enact legislation and policies; c) helping local partners in and out of government to develop the capacity to advocate about specific issues as well as to assess, develop and draft legislation; and d) building consensus on priorities, tactics and strategies for achieving stronger systems of law and human rights protection.

Examples of IILHR’s work include extensive participation in drafting more than 70 different legal memoranda that analyze discrete legislative and constitutional issues. IILHR has also provided commentary on draft legislation related to Women’s Care, the establishment of the Human Rights Commission, Social Services development, Freedom of Information, Minority Rights, NGO registration, enabling legislation for the Higher Judicial Council and Federal Supreme Court, as well as other topics.

Currently, IILHR actively supports human rights in Iraq through several ongoing government and civil society initiatives. This work includes gender and minority projects, as well as collaboration on a draft law on domestic violence, a draft law on anti-discrimination, and publication of two books assessing Iraq’s legal framework from a gender and a minority perspective: Women and the Law in Iraq and Minorities and the Law in Iraq. IILHR is also undertaking rule of law and justice projects, including a program on safeguarding and protecting judicial archives and records throughout Iraq.

IILHR has also worked since 2007 to advise and mentor the development of the Iraqi Human Rights Commission as an institution that will protect and support the human rights of Iraqi citizens. This work includes supporting the Committee of Experts and the Commissioner selection process by providing research and advice on international best practices, as well as supporting the capacity, resources, and work of the Commission now that it has been established.