The Iraqi Kurdistan Regional Government KRG has brought to trial over 50 civic activists, journalists, teachers and others per law number 21 in 2003, five of them have been convicted.
Law No. 21 is the same legal excuse Saddam Hussein, head of revolution command council of Ba'ath party, resorted to in the 1970s & 1980s against the Peshmerga, Kurdish freedom fighters, and opposition groups critical of his regime.
Across their entire life, the burden of law No. 21 has become the harshest for the family of Shirwan Taha who is away from his family for a year, a situation that have never come into their minds.
The kids of Taha, 34, have spent three Eids with no warm hug of a father detained for "plot and attempt for sabotage and spying act," a charge makes it impossible to be out on bail.
He was arrested in September while the first session of his trial was on July 12th, suspended to September 6th.
Taha has got a degree in English language from the University of Salahaddin in Erbil where he met his Jiwan Hussein & got married. They have earned their master degree from the UK together.
They have two kids: their son is only four years old and the girl is only three.
Following the master degree, he served as preparatory school teacher, lecturer in a university, civic activist of education sector and active attendant of several educational festivals and events in schools and universities.
Law No. 21 versus Saddam's law
Law No. 21 issued on September 27th, 2003 has been endorsed by Iraqi Kurdistan parliament in a session chaired by Rozh Nuri Shawes as the goal was deactivation of some articles of Iraqi penal code.
The law consists 6 articles, the first article was replacement for article 156 of Iraqi penal code which states "any one deliberately and in any form involved in an act causing damage to security and stability and sovereignty of Iraqi Kurdistan region bodies and leading to that damage, faces temporary or life imprisonment sentence."
The law has been published in Kurdistan Waqai paper on October 28th, 2003, effective from date of issue.
The first article of the law has the same content of article 156 of Iraqi penal code No. 111 of 1969 with slight amendment in rephrasing and the penalty.
Article 156 valid up today in Iraq imposes death penalty against individuals purposefully endangering the independence of the country or unity of its land or causing those acts.
"It's a big shame on the authorities to trial its people by a law they were themselves convicted of it by the Ba'ath party who specially drafted it against them," Asos Hardi, journalist, told KirkukNow.
"Let's assume they are not journalists, still it’s a shame for the freedom of expression to send people to trial per this law," he added.
Article 156 of Iraqi penal code, replaced by law No. 21 in Iraqi Kurdistan region, was drafted on April 21st, 1984 by revolution Command Council of Ba'ath party against its opponents and rivals.
Back then, the Peshmerga forces of Kurdistan Democratic Party KDP and patriotic Union of Kurdistan PUK where fighting the Iraqi government and president Saddam Hussein toppled in 2003.
The law signed by Saddam Hussein states "provisions of article 156 of penal code are imposed against any individual affiliated to any party or group the goal of its acts or their written policy is toppling the ruling regime through a militant group or collaboration with other foreign sides."
The resolution was published in Iraqi Waqai paper on May 7th, 1984.
"Article 156 of penal code was drafter particularly against Kurdistan region so it was an urgent need to freeze this article and several others of penal code," said Ni'mat Abdullah, member of first round of Kurdistan parliament which endorsed Law No. 21.
"All the laws and decisions were passed pe agreement of both KDP and PUK."
Journalists and activists to court for trial
Per Law No. 21, five independent journalists and civil society activists from Duhok, detained since September 2020, were found guilty by the Erbil Criminal Court on February 16th 2021 of "undermining national security" and sentenced to six years in prison.
Brought before a court in the regional capital, Erbil, on February 15, the two freelance journalists Sherwan Sherwani and Guhdar Zebari and the three activists Ayaz Karam, Hariwan Essa and Shivan Sa'id were accused of "disturbing Kurdistan security and stability, sabotage acts against government and judiciary bodies," in addition to "collecting data about security personnel and prison guards and collaboration with PKK," (Kurdistan Workers Party, fighting the government of Turkey and controlling some territories in Iraqi Kurdistan)
The five convicted and tens of detainees are victims of a wave of arrests carried out by the KRG in response to a series of major protests in August 202 against delay in payment of salaries for state employees, its handling of the economic crisis resulting from disputes over oil production, export and corruption, and reached its peak under the Covid-19 pandemic.
The defendants, their attorneys and relatives denied all the charges.
We have never thought one day article 1 of that law will be used to punish journalists
Bashdar Hassan, member of the defense team of Duhok journalist and activist detainees, said "Authorities file lawsuits against journalists per Law No. 21 to imprison them because if they are tried per journalism law, they face financial penalties only."
"That law was employed by the Ba'ath to suppress the Peshmerga but now the KRG suppresses its people by this law which has become a nightmare for journalists and freedom of expression in Kurdistan," Hassan added.
A statistic by the Independent Human Rights Commission in Kurdistan Region IHRCKR in August 2020 says about 300 people were arrested "for organizing demonstrations and creating chaos" mostly from Duhok province, 250 of them were released.
The majority are charged per article 2 of Law No. 21.
"That law and article 1 in particular has not been drafted against any revolutionary, we have never thought it would be used against journalists at any time or to be used to charge Nawshirwan Mustafa and send him to court," said Abdullah.
Nwshirwan Mustafa was deputy of PUK leader and former Iraqi president Jalal Talabani. He founded the Change Movement in 2009 and won one fourth of Kurdistan parliament seats. The law was used to file a case against Mustafa in 2015.
Kamal Sayid Qadir, a critic and writer, was another victim of the law whom evaded trial for being an Austrian citizen. Another victim of this law was Essa Barzani, a well known figure of Barzan region, where the Barzani family, leaders of KDP, comes from, for his critical views.
"Authorities use this law against any one they want under the name of rule of law to legitimize the cases so I believe the flaw is not the law yet it’s the fabrication of the case or the charges against the detainees," Abdullah thinks.
He advocates for journalists to be trialed per journalism law not penal code.
We are touched that relatives of the detainees are hopeless of courts
According to journalism Law No. 35 in 2007, syndicate of journalists should be aware of any legal proceedings against journalists.
Azad Hama-Amin, head of Kurdistan journalists' syndicate, said once its proved that a journalist is practicing his career of journalism and the case is related to journalism, "no one should be trialed according to Law No. 1 of 2003."
Hama-Amin believes the threat is that political parties have turned journalism into a toll in their political disputed. "Lots of people in the media have turned themselves into heroes by talking about cases pending at courts while the syndicate has not stated its position."
"We are not ready to acknowledge any one as journalist whose profession is not journalism."
Part of Duhok detainees were working as reporters up to the day they were arrested. Proofs against them in their files accuses them of exchanging information, photos and messages on Messenger or chat groups.
"It's a shame that the detainees are not dealt with as journalists because no one can decide who is a journalist or not except the work they did," Hardi enthusiastically said.
Protests and doubts of interference in the judiciary
"By their own confession, they have formed unlawful associations with foreigners and strangers in order to implement their criminal goals. They contacted the American and the German consulate and received money from them," a paragraph from the verdict by the penal panel of Kurdistan region's court of Cassation states on April 28th.
"The defendants also confessed that they had met with the German consul in a hotel," a paragraph of the cassation court verdict states.
The German and US consulates in Erbil slammed at the court verdict's suspicious reference and called for respect of diplomat work and release of the journalists.
Kamaran Osman, member of Christian peace makers CPT, a US-based NGO monitoring human rights, said "we are desperate that families of the detainees are hopeless of courts and hope the same scene is not repeated and the courts to be sovereign and regain its sovereignty because if they are not, then the security situation and social security won't be stable."
Osman who attended several court sessions affirmed it's not only their relatives; even some of the detainees were not ready to have a lawyer defending them "because they believe the decision has been already taken," in reference to a press release by KRG PM Masrour Barzani who accused Duhok detainees ahead of their trial, "they are neither journalists nor activists. Some of them were spies, others were armed and problem makers."
CPT declared that 76 of Duhok detainees are still in prison and most of them await trial.
On July 5th, the first session of trail for five of the detainees, Amir Khalid Agid, Firsat hmed Said, Jamal Khalil Majid, Sileman Kamal Sileman and Sileman Ahmed Mousa was adjourned.
Trial of four others of Duhok detainees (Masoud Shingali, Shirwan Taha, Kargar Abbas Ali and Bandawar Ayoub) was postponed.
Trial of Badal Barwari and Oumed baroshki on July 29th was adjourned to Spetember 30 as one of the witnesses has not attended the session.
Dindar Zebari, KRG coordinator for international advocacy, said in a press conference that any one faces charges irrelevant to journalism career is tired per Iraqi penal code.
Duhok detainees are journalists, civic activists, university professors, school masters, engineers and teachers, all charged and sent to court per Law No. 21 of 2003.
"First of all, the judges should not endure any intervention in court affairs and make rulings independently," Osman of CPT said.
Amendments to Law No. 21
The wave of arrests against journalists and activists of Duhok followed August 19, 2020 protests in Zakho district which led to tension among protestors and security forces.
According to the law for organization of demonstrations in Kurdistan region No. 11 of 2010, demonstration is a legal and constitutional right upon approval by administrative authorities but when law is violated the penalty is one month imprisonment or 50,000 IQD ($33) or both.
Hassan, member of the defense team of Duhok journalists and detainees said, "the trial is a message for Duhok people to silence critical voices and those played role in August 2020 protests. It's completely a political not legal issue."
Back in 2019, a number of Shiladze locals were arrested per Law No. 21 following protests against Turkish military base in their region.
"Such an attitude is alarming for the future because the next target is the journalists who cover the detention of Duhok journalists and activists," Hassan thinks.
He called for revocation of Law No. 21 by the Iraqi Kurdistan parliament.
The law being effective in this way is a threat against all of us
According to internal policy of Kurdistan parliament, 11 members of the parliament MP can propose amendment to law.
Karwan Gaznayi, MP who attended most of court session in the cases of Duhok detainees, told KirkukNow he is drafting a project to replace the law. I am doing it not only for Duhok journalists and activists, for the future of my kids as well."
Gaznayi thinks the law poses a threat to all. "It's unacceptable anyone thinks or speaks in a different way, to be sent to court as a spy while there is no concrete definition who is a spy and what is national security?"
United Nations Secretary General Special Representative UNSGSR
A report by the UN Human Rights Office and the UN Assistance Mission for Iraq (UNAMI), on may 12th about (Freedom of Expression in Iraqi Kurdistan) documents a concerning pattern, observed from March 2020 to April 2021, of people being targeted for exercising their legitimate right to report on or criticize the actions of the public authorities.
"The facts observed on the ground currently point to an increasingly repressive pattern of active curtailment of freedom of expression," the report says.
"Over the last year, journalists, human rights activists and protesters who questioned or criticized actions by the Kurdistan Regional authorities have faced intimidation, threats, and harassment as well as arbitrary arrest and detention. Critics have also faced criminal charges in relation to the legitimate exercise of their freedom of expression, followed by trials in which basic rights and procedural safeguards were not, or not sufficiently, respected," the report states.
"Unfortunately, a court ruling can be taken based on the decision of a political party or figure," Hardi desperately says. He thinks no concrete changes could be seen in Kurdistan region and this is reflected in reports by local and international organizations, a proof that "there is no more anything called court that people trust its fair."
"The dictators are all alike. They want journalists to convey their words only. They never want a media out of their control alike Ba'ath and other dictators whom shared the same destiny," Hardi concluded.