Missing Persons and the Role of the Department of Mass Graves Affairs and Protection

A study in the legal frameworks for the search for missing persons and the vision of the Department of Mass Graves Affairs and Protection in achieving the objectives of the file

 1. Introduction

As a result of the exceptional circumstances experienced by Iraq, the impact of wars, and the policies of repression and displacement, the issue of missing persons has made the issue of the missing one of the top topics of the Iraqi scene as it is related to the fate of a society that it has loved, which necessitates the Iraqi government to address the serious human rights mistakes it inherited and the inevitable consequences of these violations of reparation,  so the escalation of claims, whether aimed at achieving accountability or compensation from time to time,  It made it a place of need for researchers and leaders to develop laws concerned with its follow-up and the development of appropriate legislation for it.

Before starting, it is necessary to refer to the basic facts, starting with the Iraqi constitution, which referred to the prohibition of arrests or interrogations except under effective judicial decisions (Article 15, 19),  and the law also obliges prison administrations to notify the families of the prisoner or detainee in the event of transfer, illness or death. The decision to classify or describe the case of disappearance or loss is the exclusive jurisdiction of the judiciary in the light of investigations and investigative and legal papers that are presented  In front of him is where there is the forced disappearance and there is the missing as a result of acts of violence, sectarian acts, criminal acts, wars.

With this reference, we can show an interest in the capacity of Iraqi legislation in preventing and addressing the case of loss to ensure human rights and away from the practice of violations and loss, but it was noted, however, the absence of what is said by thousands of the Iraqi people and several methods were used to hide the crime of absenteeism, including throwing in the tizab basins and throwing victims to predators, and the most prominent is the hiding of victims in mass graves, which were distributed over large areas of the territory of Iraq and exceeded the number of hundreds of mass graves. Therefore, from this standpoint, it is clear the importance of highlighting the national mechanisms for searching for missing persons and focusing on the role of the Department of Mass Graves Affairs and Protection in the Martyrs Foundation, which contributed significantly to the development of the necessary measures and  rapid procedures in the search for the missing and through that seeking to develop preventive and curative measures, and what can be developed as a useful basis in addressing solutions and treatments, and it is important to note that The subject did not get his luck from the studies that should be studied in detail and from the merits of several legal and TariKhaya and social and so on,  so the study came to address the main joints in the subject through two sections, the first included the search for the missing, in which the legal frameworks for the search for the missing and the national authorities concerned with the search for this file were reviewed, and the research focused in the second section on the role of the Department of Mass Graves Affairs and Protection in three demands, namely the search for judicial and executive loss issues And the mechanisms of work and the vision of the father in achieving the required goals, to end with a conclusion and proven to the sources, asking God Almighty to reconcile that he is the yes of God and yes of the supporter.

2. Search for the lost or disappeared
   • Legal frameworks (mechanisms)

Before reviewing the laws related to the missing and the provisions of loss, we will address the definition of the missing language, which is what is customary for him to review the definition linguistically and idiomatically to complete the research, it was mentioned in the language The definition of the missing: as the lost or destitute, it is said that the thing is lost and lost:  lost and lost from it, it is said that the book is lost: he lost it, and it is said that the wife lost her husband in e J lost and the effect is missing and lost, so the thing lost any lost and lost and this meaning is achieved in the lost, he lost from his family.[1]

As for the corporal of the missing according to Iraqi laws, the Iraqi Civil Code states: The missing person is a person who is absent so that he does not know whether he is alive or dead, he is sentenced to be missing at the request of all those who matter, as defined by the Law on the Care of Minors: The missing person is the absent person whose news has been cut off and whose life or death is not known. It must be noted that the Law on the Care of [2][3]Minors differentiated between the terms missing and absent, so the absent defined the following:  It is a person who left Iraq or did not know his place in it for more than a year without interruption of his news, and as a result, his interests or the interests of others were disrupted. [4]Not only did the legislators take note of the concept, but the distinction was made between the missing and the absent to be able to differentiate between rights and belongings the other hand, and [5] to summarize the mention of definitions here is appropriate because the issue is not subject to discussion of these merits as much as access to the origin of the vocabulary and its importance in Iraqi legislation, and for reference, the word missing includes males and egow [6]. Internationally, the term missing has been addressed by the UN Human Rights Council if it refers to missing persons who have been cut off from their families and who, based on reliable information, are reported as unaccounted for as a result of an international and non-international armed conflict. [7]

This review of the concepts gives us a preliminary picture of the basic need to search for laws related to the missing, including it is clear that the missing can be living or deceased, and a review of these laws sheds more light on  the subject and thus can divide the section into two parts  search for the living and search for pain  died, which is as contained in the following classification:

 First: The Search for Revival

There are many national legislations that address the case of the missing person who is likely to be alive or the time period for his possible survival, and no evidence has emerged indicating his death, these legislations aim to regulate his financial and non-financial interests as well as the interests of the relatives of the missing, as it dealt with everything that would relate  to his rights and the rights of his family and his relationship with society in general, and these legislations also included preventive measures to prevent loss (based on the constitutional texts that have already been mentioned)  In addition to procedures for the search for  the missing and  timelines that determine the transitional stages to regulate the relationship of the missing person and his transactions with all his relatives and every interested party,  we would like to point out that legislation is more of a therapeutic dimension to the issue than precautionary measures, and the legislation that dealt with this is: [8]

• Iraqi Civil Code No. (40) of 1951 and its amendments.
• Iraqi Penal Code No. 111 of 1969
• Code of Criminal Procedure No. 23 of 1971 and No. 17 of 2008
• Memorandum No. (2) of the Prison Administration issued by the Coalition Provisional Authority.
• Inmates and Depositors Reform Law No. (14) of 2018.
• Human Rights Commission Law No. 35 of 2008
• Dissolved Coalition Authority Memorandum No. 57 of 2004
• Law No. 1 of 2011 on Inspectors General
• Convention for the Protection of All Persons from Enforced Disappearance (2010)
• Diwaniyah Orders
• Orders and instructions.

The process is carried out by submitting a request to the police station of the place of loss or his place of residence, and the request goes to the judge concerned, so the search is carried out in the detention centers by addressing the prison administrations and detention centers, and in cases, it is published in local and official newspapers and approaching the border crossings, and the need to keep pace with development to use the approximate drawing.

Second: Search for the deceased

The search for the missing those who were absent and disappeared in mass or individual graves or canceled in remote areas have dealt with laws issued after 2003 because the repressive policy of the former Baath regime did not allow the procedures of legislating such laws, as there was no recognition of the policies of absenteeism that he followed against individuals who accepted his policies and opponents. Therefore, the  Law on the Protection of Mass Graves No. 5 of 2006 was issued, and it applied only to mass graves. which was committed before 2003, and this law included several mechanisms aimed at searching for the missing and his fate and organizing legal files that help the judiciary in punishing the perpetrators of these crimes and redress for the families of the victims, as this law came by defining the mass grave as: (  The land that includes the remains of more than one martyr who have been buried or hidden fixedly without following the legal provisions and human values to be observed after the burial of the dead and in a way that is intended to hide the features of a genocide committed by an individual, group or body and constitutes a violation of human rights). As a result of the continuation of the [9] barbaric policy that aims to infringe on the individual’s right to life, the commission of many crimes of genocide and war by terrorist and takfiri groups, and the non-application of the above law to this type of cemetery, it has become necessary to issue legislation that includes this type of cemetery, so legislation No. (13) of 2015 and its instructions No. (1) of (2019) were issued, and as a result of the two laws assigning the main role to the Department of Affairs  Protection of mass graves and the Department of Forensic Medicine Work has been done to implement the Medico-Legal Law No. (57) of 1987, Amendment No. (37) of 2013, and the Medico-Legal Law in the Kurdistan Region No. (1) of 2001, as these laws have also regulated the mechanisms for issuing technical medical reports that are relied upon in issuing the identity document and approving it before official and unofficial institutions, with the possibility of challenging this document based on these reports before the personal status courts according to time limits. referred to by the above laws.

And the process of integration shown by the Medico-Legal Department in the search for missing persons through several procedures, as the  Medico-Legal Law stipulates the objectives: contributing to the investigation of missing persons, mass cemetery work, and supplementary examination procedures. The work of the [10]two departments adheres to one line of work in terms of referring the file to them by the judicial authority, but the forensic procedures come late and their goal is to see the condition of the dead and indicate the cause of death based on the court letter or investigator.[11]

It must be noted that the great overlap that occurred in Iraq after 2003, between the laws that defined the competent authorities and the executive mechanisms for research and investigation and actual practices, and between what is done by some non-competent national authorities such as the security authorities, as well as the families and families of the missing who went to the graves that were found and practiced random digging and digging operations to extract the remains from them in an attempt to identify their families. This is a violation of the cemetery law, which stipulates   When verifying the existence of a mass grave in a specific place, the Ministry puts its hand by a decision issued by the judiciary on the place, and the search and excavation are carried out until the completion of the procedures within one age renewable once[12]. This text stipulates that it is not permissible to open mass graves and that the matter is referred to the concerned department of the Martyrs Foundation and the Ministry of Human Rights, which was previously abolished in 2015.

The phenomenon of exceeding jurisdiction and trying to open graves by non-specialized parties is a dangerous phenomenon that contributes to hiding the features of a crime and the historical era of persecution to which the Iraqi people were subjected as a result of the policies of the pre-2003 government, and later terrorist operations that were no less dangerous than the repressive policies of the Baath, as well as complicating the process of classifying bones and conducting conformity to the bone model with reference samples (blood) taken from the families of the missing, where the remains are raised mixed. Thanks to the competent and concerned authorities and the media, descriptions of these crimes were obtained at the national and international levels as well, for example, the decision of the House of Representatives for the year 2014, No. (4) describing the Badoush prison massacre as a crime of genocide, as well as the descriptions issued by the International Team of Investigation on Daesh Crimes (UNITAD). Special Adviser Karim Khan explained in his briefing to the Security Council on the investigations of the Investigative Team (findings of the sixth report) that the evidence shows that ISIL’s attacks against the community of The Yazidis in Sinjar constituted genocide, and the group committed war crimes and incited genocide against Shiite Muslims.[13]

In general, it is possible to highlight the most prominent reasons that led to the delay in opening cemeteries and encourage some to tamper with cemeteries and overlap in the powers of work sometimes :

1- The weakness of the available financial allocations, which contributed significantly to the delay of many of the opening operations, with a large number of these cemeteries and the difficulty of working in them, which need international support and support bodies as well.

2- The distance of the places of cemeteries from the main cities and their danger, as it was observed in many of these sites that they contain unexploded mines, and this requires a technical examination by the competent authorities to remove these mines.

3- Lack of education and the role of government and other media in the importance of these sites and not to prejudice them and report them to work on them technically and specialized.

4- The migration of many families of missing families and the lack of legal and health culture in submitting complaints, as well as providing DNA test samples to contribute to the processes of finding and matching the missing, and these and other points contribute to raising awareness and urging towards specialization and unified action towards completing the search for missing persons in Iraq.[14]

• Authorities concerned with the file of loss and disappearance

To take full note of the subject, we review the matter from two sides to shed light on the concerned authorities concerned with the description, care, and follow-up of the file of the missing, which is public and private, as stated:

First: Public Entities

• Supreme Judicial Council
• Prosecution
• House Committees
• Office of the High Commissioner for Human Rights
• Ministry of Justice Human Rights Department
• Human rights directorates and divisions in all relevant ministries after the abolition of inspectorates.
• Civil Society Organizations
• Committee of the Convention on the Prevention of Enforced Disappearance
• Special agencies, missions, organizations, and rapporteurs.

Second: Competent Authorities

• Department of Mass Graves Affairs and Protection
• Medico-Legal Department in Baghdad and all provinces
• Medico-Legal Department in the Kurdistan Region
• Civil Defense Teams (Under the Rubble)
• Ministry of Defense (Iran-Iraq War and Kuwait War)
• Ministry of Martyrs and Anfal Affairs in the Kurdistan Region. 

3. Role of the Department of Mass Graves Affairs and Protection

The role of the Cemetery Department is to search for missing persons in mass graves through search and excavation and to support the Medico-Legal Department in establishing a database and pre-loss information (which is the basic nucleus of the unified register of missing persons) based on the Law on the Affairs and Protection of Mass Graves No. (5) of 20 05 and amended by Law  No. (13) of 2015, and Instructions No. (1) of 2019, and based on that  Many graves were opened, excavated, and the remains were handed over to the Justice Request Department to sample bone models and conformity, the work of mass graves was established with the establishment of the canceled Ministry of Human Rights, and after the abolition of the ministry, the formations concerned with it were transferred to the Martyrs Foundation to include within its Law No. (2) of 2016, within the formation of a department, the level of its representation was raised to a public department in 2020.[15]  In this section, two claims will be detailed, the first is related to the issues of loss and the second includes the mechanisms of work of the Department of Mass Graves.

• Judicial and executive loss cases

For a general briefing on missing cases, the mechanisms concerned with following up on the matter should be reviewed to differentiate between the judicial role and the executive and procedural role, as requests are submitted by the families of the missing and through the following:

First: The court: The family of the relatives of the deceased needs notification procedures for several reasons, the most important of which after despair of finding him is the issuance of the death certificate, and this is done after completing the necessary papers to issue it as stipulated in the Civil Code, as it is required to submit a request for reporting to the police station in the area where the loss occurred, and it is directed to the judge and the role of the judge in taking appropriate measures and transferring it for publication in an  official gazette, and the importance of publication lies in calculating the period from the date of publication, which is two years for those who lost In force majeure circumstances and four years for those who have lost in normal circumstances, these procedures relate to the completion of legal papers for the purpose of completing guardianship or value arguments to be able to manage the funds of the missing person until the necessary period is calculated. [16]

Second: Department of Mass Graves: Which is related to the search for the missing, the families of the missing can provide news and blood samples, whether in the same governorate or Baghdad or any place where the Martyrs Foundation and the Department of Forensic Medicine are located. Committees are often formed to work in the provinces as needed, the latest of which was in November of this year in Najaf, Babil, and Basra, and they were announced.[17]

• Mechanisms of work of the Department of Mass Graves

The work begins by receiving certificates, reports, or news, and then the legal procedures begin,  which are joint procedures with the Medico-Legal Department, as it is received in two cases:

• News about a crime scene and a mass grave: he is received, his statement is recorded, and the site is inspected
• News about a missing person, the information is received in a form consisting of seven pages, four of which are filled out by the department and then transferred to forensic medicine to fill out the remaining three with the preservation of a blood sample and complete a database image after finding a cemetery and a number of remains, the bone model obtained from the remains is matched with the blood sample model in forensic medicine, after which communication is made with the victim’s family according to the available data to be notified.[18]

• The vision of the department in achieving the required mechanisms

1- The Department’s project is to establish a national register of missing persons that includes all cases of disappearance from 1968 until now, whether as a result of wars,  armed conflicts, repressive policies, or terrorist operations, this register will be the basis for the establishment of a national center for missing persons. This registry will speed up the search and identification of victims, the Foundation has received a program from the International Commission on Missing Persons called (IDMS), which is a very advanced program  and a user in some European countries has received a grant with forensic medicine and will launch a first experiment in the province of Nineveh and will receive the families of the missing regardless of the type of loss and therefore will be circulated after the experience after its success in all governorates as well as with the families even if they are outside the country.

2- Unifying the efforts of mixed government institutions related to the search for the missing and disappeared, and this requires the existence of an umbrella under which the activities of these institutions meet The establishment of a central coordinating committee headed by the Martyrs Foundation will be the main link to receive all requests and feed the concerned authorities such as security and reform departments with data to be clipped and inform the families of the results.[19]

4. The Conclusions

Through the advanced research in the folds of its main demands that dealt with the subject in a review and descriptive of the work of the department and what revolves around its work to reach the national mechanisms to search for missing persons appropriately, and the lack of many sources on the subject because the focus was on a specific department that did not publish only a few publications about the mechanisms of its work, and being a follower of its media movement, it was relying on the most prominent published and sufficiency with meetings with its cadres to clarify the points of the research and through the applicant can clarify some of the results Appropriate for the topic:

• The conquest of many graves before and after (2003) and the burial of large numbers of unidentified persons by forensic medicine. He gave the department a clear vision of the mechanisms of its work and what can be achieved as a specialized experience not only in Iraq but in the region in general. In particular, there are large numbers who have been identified as a result of laboratory tests.
• The issue of enforced disappearance is one of the basic issues in international conventions and Iraq needs to issue legal legislation in line with the Convention on Enforced Disappearance, and the subject is still under consideration by the concerned institution (Ministry of Justice)
• What the Baath government and the terrorist gangs of ISIS witnessed in the mass graves file is that it has held many searches for the missing for many reasons, and this requires intensive effort and mechanisms commensurate with the magnitude of this tragedy.
• Emphasizing the importance of the unified national register of missing person project to overcome procedures, unify tasks, and count the number of missing persons, and then show the government’s efforts for missing persons before the international community and the international community as a humanitarian file.
• Focusing on the media dimension in clarifying the competent authorities of work and facilitating this for other national authorities and the families of the missing as well.

References

First: Books

• Quran
• Annual Report of the Department of Human Rights Affairs and Protection for the years 2019-2021
• An Ibn Manzur, Lisan al-Arabal-Muheet, Dar Lisan al-Arab Beirut, volume II from g to f, b without mentioning the edition, without mentioning the Sunnah.
• Majd al-Din Muhammad ibn Yaqoub al-Fayrouzabadi, al-Muheet Dictionary, al-Resala Foundation, Lebanon, sixth edition, 9991 AH – 9119 AD, p. 103. Ibrahim Qalti, El Hoda, Dar El Hoda, Algeria, without mentioning the edition, without mentioning the Sunnah.
• Muhannad Al-Haddad and Khaled Al-Haddad, Introduction to the Study of Law Science, Al-Warraq for Publishing and Distribution, 2008 Edition
• Badr Al-Din Muhammad Shibl, International Criminal Protection of Human Rights and Fundamental Freedoms, 1st Edition, DarAl-Th Qafa for Publishing and Distribution, Amman, 2011.
• Wasfi Mohamed Ali, Al-Wajeez in Forensic Medicine, Dar Al-Kutub Al-Qanooni, Beirut – Lebanon, 2019
• Mahmoud Ezzo Hamdo and a group of experts and specialists, Manual of Reparation Procedures and Compensation for Iraqi Victims, Mosul University Press.
• Hadi Muhammad Abdullah, The provisions of the missing (a comparative study between Islamic jurisprudence and Iraqi law), Master’s thesis, College of Law and Politics, University of Baghdad, 1987.
• Report of the Human Rights Council Advisory Committee on Best Practices on the Question of Missing Persons, document A/HRC/16/70 of 21 February 2011.

Second: Legislation and Laws

• Iraqi Penal Code No. 111 of 1969
• Code of Criminal Procedure No. 23 of 1971 and No. 17 of 2008
• Memorandum No. (2) of the Prison Administration issued by the Coalition Provisional Authority.
• Inmates and Depositors Reform Law No. (14) of 2018.
• Human Rights Commission Law No. 35 of 2008
• Dissolved Coalition Authority Memorandum No. 57 of 2004
• Law No. 1 of 2011 on Inspectors General
• Convention for the Protection of All Persons from Enforced Disappearance (2010)
• Law No. 5 of 2006, as amended by Law No. 13 of 2015
• Instructions for the Implementation of Law No. (1) of (2019)
• Medico-Legal Law No. (57) of (1987) and Amendment No. (37) of (2013).
• Medico-Legal Law in the Kurdistan Region No. 16 of 2001
• Report of the Human Rights Council Advisory Committee on best practices on the issue of missing persons, document A/HRC/16/70 of 21 February 2011

Third: Websites

1- United Nations website

https://news.un.org/ar/

2- Martyrs Foundation website

https://alshuhadaa.gov.iq/

3. International Committee of the Red Cross

https://www.icrc.org/ar

4. International Commission on Missing Persons

https://www.icmp.int/ar/

[1] – Z: أIbn Manzur, Lisan al-Arab al-Muheet, Lisan al-Arab Beirut, Volume Two from G to F, without mentioning the edition, without mentioning the Sunnah, p.1116. and glory Al-Din Muhammad bin Yaqoub Al-Fayrouzabadi, Al-Muheet Dictionary, Al-Resala Foundation, Lebanon, sixth edition, 9991 AH – 9119 AD, p. 103 . Ibrahim Qalti, al-Huda, Dar al-Huda, Algeria, without mentioning the edition, without mentioning the Sunnah, p. 909.

[2] – Iraqi Civil Code No. 40 of 1951- Article 36 / paragraph 1

[3] –  Sponsorship Law Minors No. (78) of 1980 – Article 86

[4]– Ibid / Article 85

[5] – Dr. Muhannad Al-Haddad and Khaled Al-Haddad, Introduction to the Study of Law Science, Al-Warraq for Publishing and Distribution, 2008 Edition, p 389

[6] – Hadi Muhammad Abdullah, The provisions of the missing (a comparative study between Islamic jurisprudence and Iraqi law), Master’s thesis, College of Law and Politics, University of Baghdad, 1987, p. 24.

[7] – ظ:  report Committee Advisory Affiliate Council rights Human About Best Practices Regarding problem People Missing, the document A/HRC/16/70 On 21 February 2011

[8] – V: Badr Al-Din Muhammad Shibl, International Criminal Protection of Human Rights and Fundamental Freedoms, 1st Edition, Dar Al-Thaqafa for Publishing and Distribution, Amman, 2011, p. 546.

[9] – Law No. 5 of 2006, Article 2, paragraph 2

[10] –  Law No. 37 of 2013 , Article 2/paragraph 5

[11] – Dr. Wasfi Muhammad Ali, Al-Wajeez in Forensic Medicine, pp. 11-13

[12] – Article 5 / paragraph 1

[13] – file:///C:/Users/ahmed-aljarah/Downloads/Reviewed-Ar-UNITAD%20press%20release%20-%20SA%20Briefing%20to%20Security%20Council%20GF%20ARABIC.pdf

[14] – See: Department of Mass Graves Affairs and Protection – Annual Report for the years 2019-2021, printed on p. 149

[15] – Law No. 2 of 2020 on the Second Amendment to the Law No. 20 of 2009, as amended.

[16] – A group of experts and specialists, Guide to Reparation and Compensation Procedures for Iraqi Victims, Mosul University Press 38-42

[17] – Media interview: https://alshuhadaa.gov.iq/subNews?newsid=22567

[18] – Ibid. above.

[19] Z: Annual Report P.154