Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools, penal institutions and alternative care settings.

The legal defence for the use of corporal punishment by parents and teachers in article 41(1) of the Iraqi Penal Code should be repealed and explicit prohibition enacted of corporal punishment by all persons with authority over children.

Explicit prohibition should be enacted in laws applicable to all education settings, public and private, all institutions accommodating children in conflict with the law, including the Surveillance Centre, the Rehabilitation School for Preadolescents, the Rehabilitation Centre for Adolescents, and the Juvenile Rehabilitation Centre, and all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 41(1) of the Penal Code (1969) states that an act committed while exercising a “legal right” is not a crime, including “the disciplining by parents and teachers of children under their authority within certain limits prescribed by law or by custom”.

Children have limited protection from abuse under the Juvenile Welfare Act (1983).

Schools

According to the initial report to the Committee on the Rights of the Child in 1996, school regulations explicitly prohibit corporal punishment, but this is undermined by the confirmation of a “legal right” to discipline in article 41 of the Penal Code (see above).

Penal system

Corporal punishment is unlawful as a sentence for crime under the Coalition Provisional Authority (CPA) Order No. 7 Penal Code (2003), section 3(2), which prohibits torture and cruel, degrading or inhuman treatment or punishment.

Corporal punishment is explicitly prohibited in detention and prison facilities by CPA Memorandum No. 2 Management of Detention and Prison Facilities (2003), section 11(8). There appears to be no explicit prohibition in other institutions accommodating children in conflict with the law, including the Surveillance Centre, the Rehabilitation School for Preadolescents, the Rehabilitation Centre for Adolescents, and the Juvenile Rehabilitation Centre.

Alternative care

Corporal punishment is lawful in alternative care settings under article 41(1) of the Penal Code (see above).

Prevalence research

According to a statistical review by UNICEF, 68% of children aged 2-14 experienced minor physical punishment in the home in 2005-2006, although a smaller percentage of mothers/caretakers (25%) believed that children need to be physically punished. The same review reported that 59% of girls and women aged 15-49 believed that a husband or partner is justified in hitting or beating his wife under certain circumstances. (UNICEF, 2007, Progress for Children: A World Fit for Children – Statistical Review, Number 6, December 2007)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“In the light of article 19 of the Convention, the Committee expresses its concern that corporal punishment is not expressly prohibited in domestic legislation. The Committee recommends that the State party take all appropriate measures, including of a legislative nature, with the aim of prohibiting corporal punishment at all levels of society. The Committee also suggests that awareness-raising campaigns be conducted to ensure that alternative forms of discipline are administered in a manner consistent with the child’s human dignity and in conformity with the Convention, especially article 28.2.”
(26 October 1998, CRC/C/15/Add.94, Concluding observations on initial report, para. 20)

Human Rights Committee

“The Committee is deeply concerned that Iraq has resorted to the imposition of cruel, inhuman and degrading punishments, such as amputation and branding, which are incompatible with article 7 of the Covenant. Similarly, the Committee is deeply concerned by Revolutionary Command Council Decree No. 109 of 18 August 1994, which stipulates that any person whose hand has been amputated for a crime thus punishable by law shall be branded between the eyebrows with an ‘X’ symbol, by the application of this decree retroactively to persons whose hands have already been amputated, and by the explanation given by the delegation that this punishment was imposed to distinguish convicted offenders from persons mutilated in the war. In this regard:

The imposition of such punishments should cease immediately, and all laws and decrees providing for their imposition, including RCC Decree No. 109 of 1994, should be revoked without delay.”
(19 November 1997, CCPR/C/79/Add.84, Concluding observations on fourth report, para. 12)