AMICUS CURIAE    - To whom it may concern
courtesy by: Good Offices Group of European Lawmakers - swissbit@solami.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 the 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 Declaration of May 30, 1932 which, inter alia, provides in its article 1:

"The 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.

The International 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):

Furthermore, annexed to the Charter of the United Nations, the Statute of the International Court of Justice, explicitly provides for:
Article 37    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 of Justice.
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)

(version française: www.solami.com/1932f.htm ¦ Arab version: .../SSH.doc ¦ .../1932a.tif ¦ .../1932a.jpg)


 LEAGUE OF NATIONS
     Distr.  Assembly, Council, Members
     A.17.1932.VII (VII.Political.1932.VII.9)     16 August 1932
[annex]

DECLARATION OF THE KINGDOM OF IRAQ,
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

Chapter 1
Article 1          Protection of Minorities

     The 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.

Article 2

     1.     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.
     2.     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.

 Article 3

     Ottoman subjects 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.

Article 4

     1. All Iraqi nationals shall be equal before the law and shall enjoy the same civil and political rights without distinction as to race, language or religion.
     2.     The electoral system shall guarantee equitable representation to racial, religious and linguistic minorities in Iraq.
     3.     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.
     4.     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.
     5.     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 the courts.

Article 5

     Iraqi 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.

Article 6

     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.
     The Iraqi Government will communicate to the Council of the League of Nations information regarding the manner in which these measures have been executed.

Article 7

     1.     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.
     2.     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.
     3.     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.

Article 8

     1.     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 schools.
     2.     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.

Article 9

     1.     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.
     In the 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.
     2.     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.
     3.     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.

Article 10
     The stipulations of the foregoing articles of this Declaration, so far as they affect persons belonging to racial, religious or linguistic minorities, are declared to constitute obligations 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.
     Any Member 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.
     Any difference 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.

Chapter II
Article 11          Most-favoured-nation clause

     1.     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.
     Nevertheless, 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 the balance.
     Should 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.
     2.     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.

Article 12          Judicial Organisation

     A 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.
     The judicial 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.
     Appointments 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.

Article 13          International Conventions

     Iraq 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.

Article 14          Aquired Rights and Financial Obligations

     Iraq, taking note of the resolution of the Council of the League of Nations of September 15th 1925:
     1.     Declares that all rights of whatever nature acquired before the termination of the mandatory regime by individuals, associations or juridical persons shall be respected.
     2.     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.

Article 15          Freedom of Conscience

     Subject to 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.

Article 16          Final Clause

     The 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.
     The undersigned, 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.

(Signed) NOURY SA'ID, Prime Minister of Iraq
 
 

Iraqi Constitution (extracts)
source: http://www.nmc.gov.iq/public-html/doc/dastoreng.pdf
(available on the Iraqi Government website www.cabinet.iq, last visited April 21, 2012, emphasis added)

Article 61
The Council of Representatives shall be competent in the following:
...  Sixth:
A. Questioning 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:
1- Perjury of the constitutional oath.
2- Violating the Constitution.
3- High treason.

Article 69:
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.

Article 75:
.... Second: The Vice President shall replace the President in case of his absence.
Third: The 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.

Article 81:
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 whatsoever

Chapter Three    The Judicial Power
Article 87:
The judicial power is independent. The courts, in their various types and levels, shall assume this power and issue decisions in accordance with the law.

Article 88:
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
Article 92:
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.

Article 93:
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, and others.
Fourth: Settling disputes that arise between the federal government and the governments of the regions and governorates, municipalities, and local administrations.
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.

Article 138:
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 into force.
Second:
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 place.
Sixth: The Presidency Council shall exercise the powers of the President of the Republic stipulated in this Constitution.