Legal protection of torture victims in the framework of the Iraqi legislation

Abstract

This study reviews legal texts related to the legal guarantees of individuals to protect them from any form of torture and scrutinises the efforts of the Iraqi legislator to punish its perpetrator. Such a study is significant at the international and internal levels because torture has the cruellest effect on fundamental rights and freedom and the physical and psychological safety of the victim. The study employs the analytical method to analyse the legal texts related to the subject of the study. It also uses the comparative method when it is necessary to compare the contents of some Iraqi criminal legislative texts with those of other international laws and criminal legislation of other countries in this regard. This study is divided into five chapters, with each chapter containing many essential subject matters related to the study. Iincluding the concept of torture in domestic and international legislation, its elements, and the legal protection of individuals from torture. The study has reached many important results and findings. This includes ineffectiveness of the current Iraqi Penal Code in regulating this issue as Article 333 of the Iraqi Penal Code states the criminalisation and prohibition of torture crimes to compel the accused to confess or obtain certain information from a witness or expert. Otherwise, if the offender commits torture for other purposes, this Article does not apply. In addition, the Iraqi legislator stipulates that the victim must be accused of a crime, a witness, or an expert in a certain case. Thus, if the offender tortures a person who does not have these mentioned attributes, the crime of torture does not arise. Moreover, the provisions of punishment set by the Iraqi legislator for the perpetrator of this crime are inadequate and ineffective for the reason that the minimum penalty set by the Iraqi legislator for the perpetrator of this crime is confinement. Indeed, this punishment is very trivial compared to the seriousness of this crime. The study has further found that the current penal code does not comprehensively deal with the issue. Therefore, the Iraqi legislator did not explicitly specify the punishment for other dreadful consequences as a result of torture. For example, if torture led to the death of the victim, permanent disability, insanity, or rape of the victim, or if it was committed against a pregnant woman or a minor person not yet 18 years old. For the aforementioned reasons and others detailed in this study, the Iraqi Penal Code in force needs to be reformed by the Iraqi legislator to comprehensively address all aspects of this issue.