I. Legal Framework
Constitutional Privacy Rights
In October 2005, the Iraqi constitution was approved by referendum. Article 17 of the Constitution enumerates two limited privacy rights. First, "Every individual shall have the right to personal privacy so long as it does not contradict the rights of others and public morals." Second, "The sanctity of the homes shall be protected. Homes may not be entered, searched, or violated, except by a judicial decision in accordance with the law."1
The U.S. State Dept. reported that in 2006, the Iraqi government attempted to respect these restrictions, but the Iraqi armed forces frequently did not.2 The U.S. State Dept. reported that Iraqi police and armed forces regularly conducted searches of homes, workplaces, and individuals without warrant or probable cause, sometimes sweeping through entire neighborhoods and netting numerous captures that were then indefinitely detained incommunicado.3
In November 2004, the Iraqi prime minister declared a nationwide state of emergency that conferred upon him the power to impose martial law. The prime minister has renewed the state of emergency every month since then. The state of emergency enables the prime minister to restrict public gatherings and associations, as well as to monitor and seize communications. The emergency order also enables the prime minister to authorize security forces to subject individuals to search and arrest without warrant or probable cause.4 In this war zone context, it may be inferred that Iraqi citizens enjoy little real privacy that cannot be abrogated by U.S. and coalition armed forces, Iraqi armed forces, insurgents, militias, or other groups. Most or all privacy rights guaranteed by the Iraqi constitution and international treaties can be derogated during periods of emergency and exigent circumstances.5
In February 2007, the Iraqi prime minister implemented a new security plan for Baghdad that granted further martial law powers to military commanders. The Iraqi military received broad authority to conduct warrantless searches and arrests, monitor all private communications, and to restrict all public gatherings and association. The decree offers no time limits (i.e. sunset clauses) for any of these provisions, nor does it offer any limitation on searches of property or communication. The decree does, however, vaguely state that security forces must observe human rights and abide by the law.6
- 1. http://www.export.gov/iraq/pdf/iraqi_constitution.pdf
- 2. http://www.state.gov/g/drl/rls/hrrpt/2006/78853.htm
- 3. Id.
- 4. US State Department Human Rights Report 2006 ‚Iraq, supra.
- 5. http://www.unhchr.ch/terrorism/index.html
- 6. http://hrw.org/english/docs/2007/02/23/iraq15393.htm