AMICUS CURIAE - To
whom it may concern
courtesy by: Good Offices
Group of European Lawmakers - email@example.com - url: www.solami.com/VP.htm
Geneva, April 21, 2012 - The following extracts from Iraq's
fundamental laws are seen to be relevant in the case of the "arrest
warrent" and charges brought against H.E., Iraq's Vice-President
Tariq Alhashimi, whereas in the case of the arrest, imprisonment and
treatment of some of his staff, questions may be raised with the ICRC regarding
Iraq's obligations under the Geneva
Conventions and related protocols.
Art. 88 of Iraq's Constitution of 2005 provides
for Iraq's Judicial Authorities and its judges to be "independent
and there is no authority over them except that of the law."
The term "law" is neither abstract nor limited to internal relations.
As a co-founding member of the United Nations, Iraq is bound by
international obligations it incurred in the course of its 80
years of existence as a sovereign member of the international family of
nations. Accordingly, it is also treaty-bound by its constitutive
of May 30, 1932 which, inter alia, provides in its article 1:
stipulations in the present chapter are recognised as fundamental laws
of Iraq, and no law, regulation or official action shall conflict or interfere
with these stipulations, nor shall any law, regulation or official action
now or in the future prevail over them."
Accordingly, Iraq's Judicial Authorities - even before the Baghdad
Court decides on whether or not it can and will be seized of the matter
- may want to cast a wider view. This goes beyond the question of the charges
themselves. It involves the very essence of what is seen as the Constitution's
immunity clause (article 61, sixth). Also, customary law, long-standing
legal traditions, and its very genesis and text would seem to suggest that
all "members of the Presidency Council"
, i.e. both the President and the two Vice-Presidents, are answerable only
on very limited and very strict charges. And then only if an "absolute
majority of the members of the Council of Representatives"
so decided. Moreover, and rather importantly, the reported charges against
a presidential representative of a religious minority are
seen to be at variance with Iraq's formal obligations under international
customary and treaty law.
Court of Justice, in its Advisory Opinion on the South African
mandate of June 1950 containing similar obligations entered into under
the League of Nations, expressed the opinion (emphasis added):
obligations represent the very essence of
the sacred trust of civilization. Their raison
d'être and original object remain. Since their fulfilment did not
depend on the existence of the League of Nations, they could not be brought
to an end merely because this supervisory organ [i.e. the Council of the
League of Nations] ceased to exist. Nor could the right of the population
to have the Territory administered in accordance with these rules depend
thereon." (I.C.J. Reports 1950, p.133; reproduced also in
UN document E/CN.4/367/Add.1
of 27 March 1951)
Furthermore, annexed to the Charter of the United Nations, the Statute
of the International Court of Justice, explicitly provides for:
Whenever a treaty or convention in force provides for reference of a matter
to a tribunal to have been instituted by the League of Nations, or to the
Permanent Court of International Justice, the matter shall, as between
the parties to the present Statute, be referred to the International Court
Thus, in the event, the Baghdad Court may find it indicated
to suspend all related procedures until it will have obtained authoritative
clarification, notably on Iraq's Declaration of 1932. This would
also be in line with the explicit recommendation of the then-UN
representative for Iraq, Sadruddin Aga Khan, as expressed
in his Sorbonne address "HUMANITARIAN RELIEF AID: DOES IT PROTECT THE
NEEDY?" of October 25, 1992. To this effect, the Court may order the
Iraqi Government to solicit - by way of the UN General Assembly - an advisory
opinion from the International Court of Justice in The
Hague on the
continued validity and fully binding character of the
Iraqi Declaration of 30 May 1932 (reproduced below; emphasis added).
see also: documentary
by Sheik Salar Al-Hafeed (English/Arabic)
OF THE KINGDOM OF IRAQ,
LEAGUE OF NATIONS
Distr. Assembly, Council, Members
16 August 1932
made at Baghdad on May 30th, 1932,
on the occasion of the termination of the Mandatory
Regime in Iraq,
and containing the Guarantees given to the Council
by the Iraqi Government
stipulations in the present chapter are recognised as fundamental
laws of Iraq, and no law, regulation or official action shall conflict
or interfere with these stipulations, nor shall any law, regulation or
official action now or in the future prevail over them.
Protection of Minorities
Full and complete protection
of life and liberty will be assured to all inhabitants of Iraq without
distinction of birth, nationality, language, race or religion.
All inhabitants of Iraq will be entitled to the free
exercise, whether public or private, of any creed, religion or belief,
whose practices are not inconsistent with public order or public morals.
habitually resident in the territory of Iraq on August 6th, 1924, shall
be deemed to have acquired on that date Iraqi nationality to the exclusion
of Ottoman nationality in accordance with Article 30 of the Lausanne Peace
Treaty and under the conditions laid down in the Iraqi Nationality Law
of October 9th, 1924.
Iraqi nationals shall be equal before the law and shall enjoy the same
civil and political rights without distinction as to race, language or
The electoral system shall guarantee equitable
representation to racial, religious and linguistic minorities in Iraq.
Differences of race, language or religion shall not prejudice any Iraqi
national in matters relating to the enjoyment of civil or political rights,
as, for instance, admission to public employment, functions and honours,
or the exercise of professions or industries.
No restriction will be imposed on the free use by any Iraqi national of
any language, in private intercourse, in commerce, in religion, in the
Press or in publications of any kind, or at public meetings.
Notwithstanding the establishment by the Iraqi Government of Arabic as
the official language, and notwithstanding the special arrangements to
be made by the Iraqi Government, under Article 9 of the present Declaration,
regarding the use of the Kurdish and Turkish languages, adequate facilities
will be given to all Iraqi nationals whose mother tongue is not the official
language, for the use of their language, either orally or in writing, before
nationals who belong to racial, religious or linguistic minorities will
enjoy the same treatment and security
in law and in fact as other Iraqi nationals. In particular,
they shall have an equal right to maintain, manage and control at their
own expense, or to establish in the future, charitable, religious and social
institutions, schools and other educational establishments, with the right
to use their own language and to exercise their religion freely therein.
The Iraqi Government
undertakes to take, as regards non-Moslem minorities, in so far as concerns
their family law and personal status, measures permitting the settlement
of these questions in accordance with the customs
and usage of the communities to which those minorities belong.
Government will communicate to the Council of the League of Nations information
regarding the manner in which these measures have been executed.
The Iraqi Government undertakes to grant full protection, facilities and
authorisation to the churches, synagogues, cemeteries and other religious
establishments, charitable works and pious foundations of minority religious
communities existing in Iraq.
Each of these communities shall have the right of establishing councils,
in important administrative districts, competent to administer pious foundations
and charitable bequests. These councils shall be competent to deal with
the collection of income
derived therefrom, and the expenditure thereof in accordance with the wishes
of the donor or with the custom in use among the community. These communities
shall also undertake the supervision of the property of orphans, in accordance
with law. The councils referred to above shall be under the supervision
of the Government.
The Iraqi Government will not refuse, for the formation of new religious
or charitable institutions, any of the necessary facilities which may be
guaranteed to existing institutions of that nature.
In the public educational system in towns and districts in which are resident
a considerable proportion of Iraqi nationals whose mother tongue is not
the official language, the Iraqi Government will make provision for adequate
facilities for ensuring that in the primary schools instruction shall be
given to the children of such nationals through the medium of their own
language; it being understood that this provision does not prevent the
Iraqi Government from making the teaching of Arabic obligatory in the said
In towns and districts where there is a considerable proportion of Iraqi
nationals belonging to racial, religious or linguistic minorities, these
minorities will be assured an equitable share in the enjoyment and application
of sums which may be provided out of public funds under the State, municipal
or other budgets for educational, religious or charitable purposes.
Iraq undertakes that in the liwas of Mosul, Arbil, Kirkuk and Sulaimaniya,
the official language, side by side with Arabic, shall be Kurdish in the
qadhas in which the population is predominantly of Kurdish race.
qadhas of Kifri and Kirkuk, however, in the liwa of Kirkuk, where a considerable
part of the population is of Turcoman race, the official language, side
by side with Arabic, shall be either Kurdish or Turkish.
Iraq undertakes that in the said qadhas the officials shall, subject to
justifiable exceptions, have a competent knowledge of Kurdish or Turkish
as the case may be.
Although in these qadhas the criterion for the choice of officials will
be, as in the rest of Iraq, efficiency and knowledge of the language, rather
than race, Iraq undertakes that the officials shall, as hitherto, be selected,
so far as possible, from among Iraqis from one or other of these qadhas.
of the foregoing articles of this Declaration, so far as they affect persons
belonging to racial, religious or linguistic minorities, are declared to
of international concern and will be placed under the guarantee
of the League of Nations. No
modification will be made in them without the assent of a majority of the
Council of the League of Nations.
of the League represented on the Council shall have the right to bring
to the attention of the Council any infraction or danger
of infraction of any of these stipulations, and the Council may thereupon take
such measures and give such directions as it may deem proper and effective
in the circumstances.
of opinion as to questions of law or fact arising out of these articles
between Iraq and any Member of the League represented on the Council shall
be held to be a dispute
of an international character under Article 14 of the Covenant of the League
of Nations. Any such dispute shall, if the other party thereto demands,
be referred to the Permanent
Court of International Justice. The decision of the Permanent Court shall
be final and shall have the same force and effect as an award under Article
13 of the Covenant.
Subject to reciprocity, Iraq undertakes to grant to Members of the League
most-favoured-nation treatment for a period of ten years from the date
of its admission to membership of the League of Nations.
should measures taken by any Member of the League of Nations, whether such
measures are in force at the above-mentioned date or are taken during the
period contemplated in the preceding paragraph, be of such a nature as
to disturb to the detriment of Iraq the balance of trade between Iraq and
the Member of the League of Nations in question, by seriously affecting
the chief exports of Iraq, the latter, in view of its special situation,
reserves to itself the right to request the Member of the League of Nations
concerned to open negotiations immediately for the purpose of restoring
an agreement not be reached by negotiations within three months from its
request, Iraq declares that it will consider itself freed, vis-à-vis
of the Member of the League in question, from the obligation laid down
in the first sub-paragraph above.
The undertaking contained in paragraph 1 above shall not apply to any advantages
which are, or may in the future be, accorded by Iraq to any adjacent country
in order to facilitate frontier traffic, or to those resulting from a Customs
union concluded by Iraq. Nor shall the undertaking apply to any special
advantages in Customs matters which Iraq may grant to goods the produce
or manufacture of Turkey or of any country whose territory was in 1914
wholly included in the Ottoman Empire in Asia.
uniform system of justice shall be applicable to all, Iraqis and foreigners
alike. It shall be such as effectively to ensure the protection and full
exercise of their rights both to foreigners and to nationals.
system at present in force, and based on Articles 2, 3 and 4 of the Agreement
between the Mandatory Power and Iraq, signed on March 4th, 1931, shall
be maintained for a period of 10 years from the date of the admission of
Iraq to membership of the League of Nations.
to the posts reserved for foreign jurists by Article 2 of the said Agreement
shall be made by the Iraqi Government. Their holders shall be foreigners,
but selected without distinction of nationality; they must be fully qualified.
considers itself bound by all the international agreements
and conventions, both general and special, to which it has become a party,
whether by its own action or by that of the Mandatory Power acting on its
behalf. Subject to any right of denunciation provided for
therein, such agreements and conventions shall be respected by Iraq throughout
the period for which they were concluded.
Aquired Rights and Financial Obligations
note of the resolution of the Council of the League of Nations of September
Declares that all rights of whatever nature acquired
before the termination of the mandatory regime by individuals, associations
or juridical persons shall be respected.
Undertakes to respect and fulfil all financial obligations of whatever
nature assumed on Iraq's behalf by the Mandatory Power during the period
of the Mandate.
Freedom of Conscience
such measures as may be essential for the maintenance of public order and
morality, Iraq undertakes to ensure and guarantee throughout its territory
freedom of conscience and worship and the free exercise of the religious,
educational and medical activities of religious missions of all denominations,
whatever the nationality of those missions or of their members.
provisions of the present chapter constitute obligations of international
concern. Any Member of the League of Nations may call the attention of
the Council to any infraction of these provisions. They may not be modified
except by agreement between Iraq and the Council
of the League of Nations acting by a majority vote.
Any difference of opinion which may arise between Iraq and any Member of
the League of Nations represented on the Council, with regard to the interpretation
or the execution of the said provisions, shall, by an application by such
Member, be submitted for decision to the Permanent Court
of International Justice.
duly authorised, accepts on behalf of Iraq, subject to ratification, the
above provisions, being the declaration provided for by the resolution
of the Council of the League of Nations of May 19th, 1932.
DONE at Baghdad on this thirtieth
day of May 1932
in a single copy which shall be
deposited in the archives of the Secretariat of the League of Nations.
SA'ID, Prime Minister of Iraq
(available on the Iraqi Government website www.cabinet.iq, last visited
April 21, 2012, emphasis added)
The Council of Representatives shall
be competent in the following:
the President of the Republic, based on a petition with cause, by an absolute
majority of the members of the Council of Representatives.
B. Relieving the President of the Republic
by an absolute majority of the Council of Representatives after
being convicted by the Federal Supreme Court in one of the following cases:
of the constitutional oath.
3- High treason.
First: The provisions for nomination to the office of the President
of the Republic shall be regulated by law.
Second: The provisions for nomination to the office of one or
more Vice Presidents of the Republic shall be regulated by law.
.... Second: The Vice President
shall replace the President in case of his absence.
Vice President shall replace the President of the Republic in the event
that the post of the President becomes vacant for any reason
whatsoever. The Council
of Representatives must elect a new President within a period not to exceed
thirty days from the date of the vacancy.
Fourth: In case the post of the President of the Republic becomes
vacant, the Speaker of the Council of Representatives shall replace the
President of the Republic in case he does not have a Vice President, on
the condition that a new President is elected during a period not to exceed
thirty days from the date of the vacancy and in accordance with the provisions
of this Constitution.
First: The President of the Republic shall take up the office
of the Prime Minister in the event the post becomes vacant for any reason
Chapter Three The Judicial Power
The judicial power is independent. The courts, in their various types
and levels, shall assume this power and issue decisions in accordance with
Judges are independent, and there is no
authority over them except that of the law. No power shall have the right
to interfere in the judiciary and the affairs of justice.
TWO: Federal Supreme Court
First: The Federal Supreme Court is an independent judicial
body, financially and administratively.
Second: The Federal Supreme Court shall be made up of a number
of judges, experts in Islamic jurisprudence, and legal scholars, whose
number, the method of their selection, and the work of the Court shall
be determined by a law enacted by a two-thirds majority of the members
of the Council of Representatives.
The Federal Supreme Court shall have jurisdiction over the following:
First: Overseeing the constitutionality
of laws and regulations in effect.
Second: Interpreting the provisions
of the Constitution.
Third: Settling matters that arise from the application of the
federal laws, decisions, regulations, instructions, and procedures issued
by the federal authority. The law shall guarantee the right of direct appeal
to the Court to the Council of Ministers, those concerned individuals,
Fourth: Settling disputes that arise between the federal government
and the governments of the regions and governorates, municipalities, and
Fifth: Settling disputes that arise between the governments
of the regions and governments of the governorates.
Sixth: Settling accusations directed
against the President, the Prime Minister and the Ministers,
and this shall be regulated by law.
First: The expression “the Presidency Council” shall replace
the expression “the President of the Republic” wherever the latter is mentioned
in this Constitution. The provisions related to the President of the Republic
shall be reactivated one successive term after this Constitution comes
A. The Council of Representatives shall elect the President of the
State and two Vice Presidents who shall form a Council called the “Presidency
Council,” which shall be elected by one list and with a two-thirds majority.
B. The provisions to remove the President
of the Republic present in this Constitution shall apply to the President
and members of the Presidency Council.
C. The Council of Representatives may remove
a member of the Presidency Council with a three-fourths majority of the
number of its members for reasons of incompetence and dishonesty.
D. In the event of a vacant seat in the Presidency Council, the Council
of Representatives shall elect a replacement by a two-thirds majority vote
of its members.
Third: Members of the Presidency Council shall be subject to
the same conditions as a member of the Council of Representatives and must:
A. Be over forty years of age.
B. Enjoy good reputation, integrity and uprightness.
C. Have quit the dissolved (Ba’ath) Party ten years prior to its fall,
in case he was a member of it.
D. Have not participated in suppressing the 1991 and Al-Anfal uprisings.
He must not have committed a crime against the Iraqi people.
Fourth: The Presidency Council shall issue its decisions unanimously
and any member may delegate to one of the two other members to take his
Sixth: The Presidency Council shall exercise the powers of the
President of the Republic stipulated in this Constitution.