Ali Zuweid's Political Programme · Legislative Proposal · Security, Defence and Sovereignty
Military Judiciary and Justice Bill
Reconstituting military justice as a specialized jurisdiction within the federal judiciary, rather than an extension of the chain of command, with jurisdiction limited to offences of a military nature and arrest, detention, investigation, trial, appeal and enforcement subject to unified judicial safeguards.
Executive Summary
Article (99) of the Iraqi Constitution provides that military justice shall be regulated by law and that military courts shall be limited to offences of a military nature committed by members of the armed and security forces. The Constitution also guarantees judicial independence, defence rights and public trials, prohibits detention or investigation without a judicial decision, and bans special or exceptional courts. This proposal brings these rules together in a single system making military justice a specialized jurisdiction within the federal judiciary, while military command remains responsible for discipline and administration rather than adjudication.
The current framework rests on Military Penal Code No. (19) of 2007, as amended, and Military Criminal Procedure Code No. (22) of 2016, published in Iraqi Official Gazette issue (4444) on 24 April 2017. The existing system gives military courts broad jurisdiction over certain ordinary offences and relies on legally qualified officers and executive procedural intervention. The proposal therefore transfers investigation, trial and appeal to specialized federal judges, removes any executive veto over arrest or referral orders, and confines military justice to military offences in the Constitution's narrow sense.
The proposal does not eliminate the need for a Military Penal Code or turn disciplinary violations into crimes. It separates three pathways: administrative discipline for minor matters,military justice for purely military offences, andordinary criminal justice for ordinary offences, offences against civilians and serious crimes that should remain within the ordinary courts' general jurisdiction.
I — Constitutional and Legal Context
The Constitution sets precise limits on military justice. Article (99) requires it to be regulated by law and links jurisdiction to offences of a military nature. Articles (87), (88) and (89) establish judicial independence and vest judicial power in courts of all types and levels, while Article (95) prohibits special or exceptional courts. Article (19) further guarantees access to justice, defence, fair trial, public hearings and submission of investigation papers to a judge within twenty-four hours of arrest. Article (37) prohibits detention and investigation without a judicial decision and prohibits torture.
The current legislative framework principally consists of Military Penal Code No. (19) of 2007, amended by Law No. (36) of 2012, and Military Criminal Procedure Code No. (22) of 2016. The latter replaced Law No. (30) of 2007 and regulated military courts and procedures for investigation, trial and appeal. In recent practice, the Federal Court of Cassation confirmed in decision No. 1189/Expanded Criminal Panel/2024 that military jurisdiction arises under current law where a service member commits an offence giving rise to no private right of individuals. This application reveals the breadth of the existing text compared with the constitutional wording concerning “offences of a military nature”.
II — Legislative Gap and Proposed Policy
| Issue | Situation Requiring Reform | Legislative Solution |
|---|---|---|
| Judicial independence | Traditional military court composition relies on legally qualified officers within the military executive system. | Specialized federal judges under the Supreme Judicial Council, outside the chain of command. |
| Scope of jurisdiction | Current law permits military jurisdiction over certain ordinary offences merely because of the accused's status and the absence of a private right. | Restricting jurisdiction to purely military offences under Article (99) of the Constitution. |
| Arrest and referral | Executive restrictions exist on enforcement of certain arrest warrants or referral of service members to court. | Removing the executive veto, with a narrow alternative allowing operational postponement of enforcement by judicial decision. |
| Summary trials | Conflation of disciplinary authority and criminal punishment. | Limiting command to non-custodial administrative sanctions, with every deprivation of liberty requiring a judicial decision. |
| Classified information | The need to protect secrets may conflict with defence rights. | Protective orders, redaction and substitute summaries, while prohibiting decisive conviction on unchallengeable secret evidence. |
| Appeal | A military court of cassation separate from the general federal judiciary. | A specialized military panel within the Federal Court of Cassation to unify judicial principles. |
The proposal adopts an institutional model acknowledging military life's distinctive features while separating judicial and command functions. A commander needs swift disciplinary authority, not power to issue criminal judgments. A judge needs a deep understanding of military operations, not military rank or subordination to a ministry. This separation is the essence of balancing effectiveness and discipline with independence and rights.
III — Text of the Bill
In the name of the people
Pursuant to Articles (19), (37), (47), (87), (88), (89), (95), (96), (99) and (110/Second) of the Constitution of the Republic of Iraq, the following Law has been enacted:
Chapter One — General Provisions and Principles
Article (1) — Title and scope
This Law shall be called the Military Judiciary and Justice Law, and shall regulate the judiciary competent for offences of a military nature and procedures for investigation, trial, appeal, enforcement and judicial oversight thereof in the Republic of Iraq, within constitutional limits.
Article (2) — Objectives
This Law aims to ensure military discipline and readiness under the rule of law; secure military judicial independence and impartiality; confine jurisdiction to offences of a military nature; guarantee the rights of accused persons and victims; prevent chain-of-command interference in judicial affairs; and harmonize fair trial safeguards with those of ordinary criminal justice.
Article (3) — Definitions
For the purposes of this Law, the following expressions have the meanings set out below: Military Judiciary: the courts and judicial panels established under this Law within the federal judiciary. Military Offence: an offence whose protected interest is the discipline, readiness, duty, command, security or property of the armed forces or military operations, prescribed by the Military Penal Code or a special law. Service Member: a person legally subject to military laws. Military Judge: a federal judge specializing in military justice under this Law, not an officer exercising command or administrative functions. Military Public Prosecution: members of the Public Prosecution assigned to military cases. Military Judicial Police: persons legally authorized to collect evidence and execute judicial orders in military cases under judicial supervision.
Article (4) — Principle of the Lawful Judge
No person may be tried before a military body except under a clear statutory provision and within Article (99) of the Constitution. No military court shall be established for a particular incident or person. No special or exceptional court may be formed under any name.
Article (5) — Independence of Military Justice
Military justice is part of the federal judiciary. Its judges shall be subject to no authority in adjudication other than the law. The Commander-in-Chief of the Armed Forces, Minister of Defence, heads of formations, commanders, commanding officers and any executive body shall be prohibited from issuing directions in a pending case or concerning detention, referral, judgment or appeal.
Article (6) — Separation of Command and Justice
Rank or command office shall confer no judicial authority. Commanders' powers shall be limited to administrative and disciplinary measures permitted by law, preserving military security and executing judicial orders. They shall not include judicial investigation, charging or imposition of a custodial sentence.
Article (7) — Constitutional Safeguards
All stages of military proceedings shall apply safeguards of independence, presumption of innocence, defence rights, public trial, access to counsel, prohibition of torture, detention only by judicial decision and submission of investigation papers to a judge within constitutional periods. These safeguards shall not be diminished on grounds of military necessity, secrecy or rank.
Article (8) — Equality before the Law
Officers, other ranks and all persons covered by this Law shall be subject to the same judicial rules without discrimination based on rank, office, branch or formation. Rank shall confer no immunity from investigation, arrest or trial, subject only to the operational enforcement arrangements exhaustively specified in this Law.
Article (9) — No Trial of Civilians
Military courts shall under no circumstances have jurisdiction to try civilians, including civilian employees of military institutions, contracted personnel, journalists, contractors and accompanying persons. Any criminal accusation against them shall be referred to the competent criminal court.
Article (10) — Applicable Law
This Law and the Military Penal Code shall govern military offences. The Criminal Procedure Code and general criminal laws shall apply where no provision exists, insofar as consistent with the nature of military jurisdiction and this Law's safeguards.
Chapter Two — Organization of Military Justice
Article (11) — Military Justice Department
The Supreme Judicial Council shall establish within its structure a Military Justice Department to administer military courts and their administrative, technical and training affairs, without authority over the substance of judgments or judges' convictions.
Article (12) — Types of Courts
Military justice shall comprise: first, military investigating courts; second, military misdemeanour courts; third, military felony courts; and fourth, a specialized military panel within the Federal Court of Cassation. The Supreme Judicial Council may establish territorial or mobile divisions where necessary under published criteria.
Article (13) — Composition of the Investigating Court
A military investigating court shall have at least one federal judge responsible for investigation, judicial orders, detention, release and referral within military jurisdiction. More than one judge may be assigned according to workload and theatre of operations.
Article (14) — Composition of the Misdemeanour Court
A military misdemeanour court shall sit with one specialized federal judge and hear military offences not classified as felonies under the law, unless a multi-judge panel is legally required.
Article (15) — Composition of the Felony Court
A military felony court shall sit with three specialized federal judges, the most senior presiding. None shall have participated in the investigation or referral or previously expressed a view on the merits of the case.
Article (16) — Military Panel within the Federal Court of Cassation
A specialized military justice panel shall be formed within the Federal Court of Cassation from its judges under its governing law. It shall hear appeals against military judgments and decisions, unify judicial principles and designate the competent court in jurisdictional disputes within this Law.
Article (17) — Qualifications of Specialized Judges
A judge assigned to military justice must belong to the federal judiciary and complete an accredited programme in military law, international humanitarian law, human rights and military operations. Judicial experience appropriate to the court's level shall be required.
Article (18) — No Military Rank Requirement
Military rank shall not be required of a judge or prosecutor, and previous or current rank shall confer no judicial seniority. Where a judge or prosecutor is a reservist or holds military status, any command or operational affiliation conflicting with judicial independence shall be suspended for the duration of judicial service.
Article (19) — Appointment, Transfer and Accountability
Appointment, transfer, promotion, accountability and termination of service of judges and prosecutors shall be governed exclusively by federal judicial laws. A judge shall not be transferred from military justice or have an assignment terminated because of a judgment or decision in a pending case.
Article (20) — Professional Protection
The State shall protect judges, prosecutors, lawyers and witnesses where threats arise from their work in a military case. Administrative or military retaliation against any of them shall be prohibited.
Article (21) — Military Public Prosecution
A specialized military prosecution formation shall be established within the Public Prosecution. It shall initiate proceedings, monitor the legality of detention and investigation, protect the public interest and the rights of accused persons and victims, and appeal judgments under the Public Prosecution Law and this Law.
Article (22) — Independence of Military Prosecution
A military prosecutor shall receive no instructions from the Ministry of Defence, any command or security service concerning a particular case, and may request investigation of any military offence brought to their attention through a complaint, report or reliable information.
Article (23) — Military Judicial Police
The Supreme Judicial Council, in coordination with the Ministry of Defence and competent military bodies, shall designate military judicial police units authorized to execute judicial orders and collect evidence. For every judicial act, their procedural subordination shall be to the competent judge and Public Prosecution.
Article (24) — Military Investigators
A competent military investigator shall have legal qualifications and accredited training in criminal investigation, digital evidence, torture prevention and victim protection. The investigator shall not be organizationally subordinate to the accused or victim in the same case where this could affect impartiality.
Article (25) — Military Technical Expertise
The court may use independent military experts in tactics, armaments, aviation, navigation, communications or other technical matters. An expert shall have no vote in the judgment, and the expert opinion shall be open to challenge by the parties.
Article (26) — Budget and Infrastructure
The military justice budget shall form part of the federal judiciary's budget. The Ministry of Defence shall provide security arrangements, secure premises and necessary technical access without thereby acquiring administrative authority over judges or case files.
Chapter Three — Jurisdiction
Article (27) — Subject-Matter Jurisdiction
Military courts shall have jurisdiction exclusively over offences of a military nature committed by persons subject to military laws. The connection to military service must be substantive and direct, rather than merely commission inside military premises or while wearing uniform.
Article (28) — Test of Military Nature
An offence is military in nature where its essential element concerns military duty, lawful obedience, discipline, readiness, operational secrecy, unit security, desertion, military absence or abuse of military authority as prescribed in the Military Penal Code. In cases of doubt, military jurisdiction shall be interpreted narrowly.
Article (29) — Ordinary Offences
Ordinary criminal courts shall have jurisdiction over offences under general penal laws lacking a military nature as defined by this Law, even where the offender is a service member. Rank or place of commission alone shall not turn an ordinary offence into a military one.
Article (30) — Offences against Civilians
Ordinary criminal courts shall have jurisdiction over offences with civilian victims and offences giving rise to a civilian's private right, unless the act is merely a separate military violation that can be severed without prejudice to the victim's rights.
Article (31) — Serious Offences Outside Military Jurisdiction
Ordinary criminal courts shall have jurisdiction over torture, enforced disappearance, human trafficking, sexual violence, corruption, embezzlement, bribery, money laundering, terrorism and international crimes wherever punishable by law. The offender's military status shall not prevent this.
Article (32) — Multiple Accused Persons
Where a service member and civilian participate in the same offence or the facts cannot be separated between them, ordinary criminal courts shall have jurisdiction over all accused persons, without prejudice to military disciplinary liability for a distinct military act.
Article (33) — Positive and Negative Jurisdictional Conflicts
A jurisdictional dispute between a military court and an ordinary criminal court shall be referred to the competent panel of the Federal Court of Cassation for urgent determination. Necessary measures that cannot await delay shall continue pending the decision.
Article (34) — Territorial Jurisdiction
Jurisdiction shall lie with the court in whose district the military offence occurred or, if its location cannot be determined, where the accused's unit or headquarters is located. The Federal Court of Cassation may transfer the case for security reasons or to ensure a fair trial by reasoned decision.
Article (35) — Forces Outside Iraq
Jurisdiction shall extend to an Iraqi service member with an official force or mission abroad for a military offence committed during service, subject to applicable treaties and agreements and the host State's jurisdictional rules.
Article (36) — Prisoners of War
Prisoners of war shall be governed by international humanitarian law and the Geneva Conventions in force for Iraq. They shall not be tried or punished before a body that fails to provide safeguards substantially equivalent to those afforded to Iraqi armed forces personnel in comparable circumstances.
Chapter Four — Discipline and Summary Procedures
Article (37) — Distinction between Disciplinary Violations and Offences
A disciplinary violation is an act breaching service duties without amounting to a criminal offence. Disciplinary procedures shall not punish an act constituting a military or ordinary felony or misdemeanour. Facts shall not be split to evade judicial oversight.
Article (38) — Disciplinary Sanctions
The Military Service Law or regulations issued under it shall specify non-custodial disciplinary sanctions, such as warnings, reprimands, regulated additional duties and withdrawal of certain service privileges within proportional limits. Detention, confinement or equivalent measures shall not be imposed by command or administrative decision.
Article (39) — Safeguards in Disciplinary Proceedings
No disciplinary sanction shall be imposed before the service member is informed of the alleged act and allowed to respond and inspect material evidence. The decision shall be written, reasoned and notified to the person concerned.
Article (40) — Grievances and Appeals
A service member may challenge a disciplinary sanction through the administrative chain within seven days. This shall not prevent an appeal to the competent court against decisions affecting a right or legal status under the law.
Article (41) — Prohibition of Unlawful Cumulative Punishment
A service member shall not be disciplined twice for the same act. Where an act is referred to criminal courts, the judicial outcome shall be considered in determining disciplinary responsibility. A temporary administrative measure necessary for proper service functioning shall not constitute a second punishment.
Article (42) — Mandatory Reporting of Offences
A commander receiving substantial information about an offence shall immediately refer it to the Public Prosecution, military investigating court or ordinary criminal judiciary according to jurisdiction. It shall not be withheld, settled internally or made subject to command approval for referral.
Chapter Five — Investigation, Arrest and Detention
Article (43) — Initiation of Proceedings
Military proceedings shall be initiated by complaint, notification, report from an official body or substantial information reaching the Public Prosecution. Offences affecting the public interest shall not depend on a complaint from military command.
Article (44) — Investigative Authority
The military investigating judge shall conduct judicial investigations. A competent investigator may perform tasks assigned by the judge. Arrest, search, detention and seizure of correspondence and devices shall all be subject to judicial oversight under the Constitution and the law.
Article (45) — Arrest in Flagrante Delicto
A service member may be arrested in flagrante delicto under general rules, provided the person is immediately handed over to the competent judicial body and investigation papers are presented to the judge within the constitutional period.
Article (46) — Arrest Warrant
An arrest warrant shall be issued only by a competent judge on specified grounds. Enforcement shall require no approval from the Commander-in-Chief, minister, commanding officer or any executive body. Military units shall execute it and provide access to the wanted person.
Article (47) — Limited Operational Postponement
Where immediate enforcement of an arrest warrant during an ongoing combat operation would create a specific and direct danger to life or to the success of an essential military mission, the competent commander may request postponement for no more than twenty-four hours. The request shall immediately be submitted to the competent judge for acceptance or refusal by reasoned decision. Postponement shall not be permitted where there is danger to a victim or a possibility of evidence destruction or flight.
Article (48) — Detention
The accused may be detained only by reasoned judicial decision for the shortest necessary period, considering the seriousness of the charge and the risk of flight, interference with evidence or witnesses, or reoffending. Continued detention shall be periodically reviewed within the periods prescribed by the Criminal Procedure Code.
Article (49) — Places of Detention
A detainee shall be held in an officially registered place notified to judicial authorities and lawfully designated for detention. The same health and humane-treatment standards applicable to detainees before ordinary courts shall apply, subject to legitimate security requirements. Detention in unit headquarters or an intelligence site not designated for detention shall be prohibited.
Article (50) — Notification of Rights
An arrested person shall immediately be informed, in an understandable manner, of the reason for arrest and the rights to silence, counsel, family contact, medical care and challenge to detention. This shall be documented in writing or by a reliable recording.
Article (51) — Right to Counsel
The accused shall have access to counsel of their choice from the first questioning. If unrepresented in a felony or misdemeanour case, the court shall assign counsel at State expense. Questioning in felony cases shall not proceed without counsel except following the accused's express refusal after legal advice has been made available and within limits permitted by law.
Article (52) — Confidentiality of Communications with Counsel
Communications between the accused and counsel shall be confidential and shall not be subject to audio monitoring or recording. Visual security measures that do not reveal their content may be used. Legal consultations shall not be used as evidence in the case.
Article (53) — Medical Examination
A detainee shall receive an independent medical examination on admission to detention and where ill-treatment is alleged or a reasonable request is made. The examination shall be documented and retained under medical confidentiality rules. Any suspected torture or ill-treatment shall immediately be referred to the competent judiciary.
Article (54) — Prohibition of Torture and Coercion
Torture, coercion, threats, unlawful isolation, deliberate deprivation of sleep or treatment, and any unlawful means of influencing an accused person or witness shall be prohibited. No confession or evidence directly resulting from torture or coercion shall be relied upon, without prejudice to prosecution of the perpetrators.
Article (55) — Search and Seizure
A home, residence, private locker or personal digital device may be searched only under a reasoned judicial warrant, except in flagrante delicto and cases of necessity specified by law. Military places and equipment assigned to service shall be subject to technical inspection procedures, with protection for personal correspondence and data unrelated to the case.
Article (56) — Preservation of Evidence
A documented chain of custody shall be maintained for physical and digital evidence, recording who collected, transferred and examined it and the time of each action. Serious impairment of evidentiary integrity shall affect its probative weight or lead to exclusion according to its impact on trial fairness.
Article (57) — Witnesses and Whistleblowers
A witness's or whistleblower's identity and location shall be protected where a serious risk exists. The court may take protective measures preserving the substance of defence and confrontation rights. Employment or military retaliation for good-faith reporting of an offence or violation shall be prohibited.
Article (58) — Completion of Investigation
On completion of investigation, the judge shall decide to close the case, release the accused or refer the case to the competent court through a reasoned decision specifying facts, legal characterization and material evidence. The executive shall not prevent or suspend referral except in cases of amnesty or other grounds prescribed by the Constitution and law once their conditions are met.
Chapter Six — Fair Military Trial
Article (59) — Public Trial
Military court hearings shall be public. A court may close a hearing or part of it by reasoned decision where necessary to protect national security, witness safety, morals or order, and only to the necessary extent. The operative judgment and essential reasons shall always be announced publicly.
Article (60) — Presence and Right of Confrontation
The accused shall have the right to attend trial and challenge witnesses and evidence personally or through counsel. Trial in absentia shall occur only under the conditions and safeguards of the Criminal Procedure Code, after verification of proper service and the possibility of retrial where permitted by law.
Article (61) — Presumption of Innocence and Burden of Proof
The accused is innocent until guilt is established by sufficient lawful evidence. The burden of proof rests on the Public Prosecution. Reasonable doubt shall be resolved in the accused's favour, and guilt shall not be inferred from silence or exercise of defence rights.
Article (62) — Trial Language and Interpretation
Trial shall proceed in the official language prescribed by law. A competent interpreter shall be provided free of charge to anyone unable to understand or express themselves in the language of proceedings. Deaf persons' and persons with disabilities' rights of access to proceedings shall be respected.
Article (63) — Indictment
The accused and counsel shall receive a written indictment specifying the act, time, place, legal characterization, applicable provisions and principal evidence sufficiently in advance to prepare a defence. The accused shall not be convicted on a material allegation they had no opportunity to defend against.
Article (64) — Access to the Case File
The defence shall have the right to inspect the case file and obtain copies of evidence to be used at trial and exculpatory or mitigating evidence. Classified information shall be governed by this Law's special provisions without undermining defence rights.
Article (65) — Calling Witnesses and Experts
The accused and Public Prosecution shall have equal rights to request witnesses and experts. The court may reject an unproductive request by reasoned decision and may appoint an independent expert where a technical issue affects the outcome.
Article (66) — Unlawful Military Orders
Execution of a military order shall not exempt a person from responsibility where the order manifestly involves an offence, particularly torture, killing a person outside combat or intentionally attacking civilians. Liability assessment shall consider the subordinate's actual ability to refuse and any coercive circumstances under the law.
Article (67) — Command Responsibility
A commander's criminal responsibility shall not arise merely from rank. It shall be established under legal rules where the commander ordered or contributed to an offence, or failed to take an obligatory and feasible measure to prevent or report it, with knowledge or a legally recognized basis for attributing knowledge, according to the offence and applicable provision.
Article (68) — Amendment of Legal Characterization
The court may amend the legal characterization where the essential facts remain unchanged, provided the parties are notified, the defence receives adequate time to respond and the amendment does not exceed constitutionally defined military jurisdiction.
Article (69) — Reasons for Judgment
A judgment shall be written and reasoned, setting out established facts, evidence relied upon and excluded, responses to material defences, legal characterization, penalty and reasons for its determination, and appeal procedures and deadlines.
Article (70) — Individualized Sentencing
Sentencing shall consider the seriousness of the offence, harm, intent, rank as a responsibility rather than a privilege, prior record, service conditions and statutory mitigating or aggravating factors. A harsher penalty shall not be imposed merely because the accused exercised the right to trial or appeal.
Article (71) — Victim and Compensation
Victims shall enjoy the rights under general criminal laws to report, attend proceedings, receive protection and claim a private right where jurisdiction exists. Where a civilian's private right establishes ordinary court jurisdiction, the case shall be referred under Article (30) of this Law.
Chapter Seven — Evidence and Classified Information
Article (72) — Lawful Evidence
A judgment shall rest only on lawfully obtained evidence presented for challenge before the court, subject to statutory exceptions protecting witnesses and classified information without impairing the substance of justice.
Article (73) — Intelligence Information
Intelligence information shall not in itself constitute evidence of guilt unless converted into testable evidence under legal rules. It may support initiation of an investigation or judicial action if presented to the judge in a form allowing assessment of its substance and source insofar as possible.
Article (74) — Classified Information
Security classification shall not prevent the court from examining evidence. After balancing national security and defence rights, the court may order protection, closed hearings, limited redaction or substitute summaries where necessary and proportionate.
Article (75) — Classified Exculpatory Evidence
Material evidence negating a charge or mitigating responsibility shall not be withheld because of classification. Where disclosure would cause serious and specific national security harm, the court shall devise an alternative ensuring fair proceedings. If none is possible, it shall exclude the affected charge or evidence to the extent necessary.
Article (76) — Counsel and Security Clearance
A security-clearance system may be adopted for defence counsel in highly sensitive cases, but shall not be used to select or arbitrarily exclude the accused's lawyer. If clearance cannot be granted, the court shall find an alternative measure preserving defence rights.
Article (77) — Prohibition of Conviction Based Solely on Secret Evidence
A conviction shall not rest decisively on evidence whose essential content the accused or counsel could neither learn nor challenge. The judgment shall explain how fairness was preserved when protected information was used.
Article (78) — Digital Evidence
Digital evidence integrity shall be established through source, custody, copying and examination data and a hash value or technical equivalent. Parties shall have the right to examine an appropriate copy through an independent expert unless a legitimate security reason prevents this, in which case the judge shall provide an alternative measure.
Article (79) — Operational Records
The court may request orders, communications, after-action reports, armament and location records and other relevant records. No record may be destroyed after knowledge of an investigation or a reasonable prospect of one. Intentional destruction to obstruct justice shall be punishable under the law.
Chapter Eight — Appeals and Enforcement
Article (80) — Right of Appeal
Every convicted person shall have the right to appeal a military judgment through the procedures and within the time limits prescribed by this Law and the Criminal Procedure Code, before a higher judicial body independent of the court that issued it.
Article (81) — Cassation Appeal
The military panel of the Federal Court of Cassation shall hear appeals against final military court judgments and decisions. It may uphold, quash or amend the judgment, remit the case or determine it within legal limits.
Article (82) — Appeal against Detention
The accused or counsel may appeal a detention or extension decision to the competent higher court. The appeal shall be heard urgently and shall not preclude a renewed release application if circumstances change.
Article (83) — Mandatory Review
Death sentences, life imprisonment and any judgment requiring automatic review by law shall be submitted to the Federal Court of Cassation. They shall not be enforced before becoming final and completion of the relevant constitutional procedures.
Article (84) — Retrial
Retrial may be sought in circumstances prescribed by the Criminal Procedure Code, including emergence of material new evidence, proof of falsified evidence or a judgment resulting from criminal conduct that affected the outcome.
Article (85) — Correction of Decisions
Rules on correction of clerical errors, interpretation of judgments and correction of cassation decisions shall apply within legal limits, without turning correction into an indefinite route to relitigation.
Article (86) — Stay of Enforcement and Release Pending Appeal
The competent court may stay a custodial sentence or grant conditional release pending appeal where permitted by law, attendance is secured and no serious risk exists to security, witnesses or evidence.
Article (87) — Enforcement of Custodial Sentences
Custodial sentences shall be served in legally designated correctional or military institutions subject to judicial oversight and healthcare and humane-treatment standards. Secret or unregistered places of enforcement shall be prohibited.
Article (88) — Service Consequences of Judgment
Consequences concerning dismissal, discharge, rank, service and retirement shall apply under the Military Penal Code and Military Service and Retirement Law after the judgment becomes final. Permanent consequences shall not take effect before final determination, without prejudice to temporary removal necessary for proper service functioning.
Chapter Nine — Oversight, Transparency and Protection of Parties
Article (89) — Judicial Inspection
Military courts and judges shall be subject to the Judicial Oversight Commission under rules applicable to the federal judiciary. Oversight shall cover procedural regularity, time limits, detention and file management without interfering with judicial conviction or case outcomes.
Article (90) — Visits to Detention Facilities
Judges, prosecutors, the Judicial Oversight Commission and legally authorized national bodies may visit military detention facilities without unjustified advance-notice requirements, inspect records and interview detainees confidentially within their competence.
Article (91) — Annual Reports
The Supreme Judicial Council shall annually publish aggregate statistics on military case numbers, offence types, detention periods, acquittal, conviction and appeal rates, and case-disposal times, without disclosing operational secrets or personal data.
Article (92) — Parliamentary Oversight
The Council of Representatives shall exercise legislative oversight of military justice through laws, budgets, public reports and hearings with competent bodies. It shall not interfere in pending proceedings or demand that a judge justify judicial conclusions outside lawful appeal procedures.
Article (93) — Electronic Register
The Supreme Judicial Council shall establish a secure system to manage military cases and document arrest and detention orders, notifications, evidence, chain of custody and appeals, with an audit trail preventing undocumented alteration and defining access permissions.
Article (94) — Data Protection
Personal and military data in judicial files shall be processed only for judicial purposes, with retention, access and publication periods governed by law. Principles and judgments may be published after necessary redaction for national security and privacy without concealing the judgment's legal basis.
Article (95) — Liability for Obstruction of Justice
Anyone interfering, threatening, applying pressure, concealing an accused person, witness or evidence, or intentionally refusing to execute an enforceable judicial order shall be punished under applicable laws. Command status shall be an aggravating circumstance when used to obstruct justice.
Chapter Ten — Harmonization, Transition and Entry into Force
Article (96) — Ending Judicial Subordination to the Ministry of Defence
Judicial functions exercised by Ministry of Defence formations under current legislation shall transfer to the federal judiciary according to this Law's transition timetable. Legal advice, administrative discipline and representation of the Ministry's interests before courts shall remain within the Ministry under the law.
Article (97) — Status of Current Personnel
Legally qualified officers and staff of existing military courts shall be reassigned to legal departments, administrative investigations and military judicial police according to qualifications. Those meeting judicial appointment requirements may apply under general judicial laws, without automatic transfer to judicial status.
Article (98) — Transfer of Cases
Cases and investigations within military jurisdiction shall transfer to courts established under this Law pursuant to a Supreme Judicial Council plan. Cases lacking a military character under Articles (27) to (32) shall be referred to ordinary criminal courts without invalidating prior lawful procedures.
Article (99) — Continuation of Valid Procedures
Investigation, notification and seizure procedures and final judgments under the previous law shall remain valid unless they violated a constitutional rule or an essential defence right. Pending appeals shall be completed before the newly competent judicial body.
Article (100) — Amendment of Legislative References
Names of courts and panels established under this Law shall replace those of abolished judicial bodies wherever they appear in the Military Penal Code or other military laws, without altering an offence's characterization or penalty except by express provision.
Article (101) — Review of the Military Penal Code
Within one year of this Law's entry into force, the Government shall submit to the Council of Representatives a bill reviewing Military Penal Code No. (19) of 2007, as amended. It shall precisely distinguish crime from discipline, remove penalties or characterizations incompatible with the Constitution and fundamental rights, and modernize offences concerning contemporary operations and military information under legality and proportionality principles.
Article (102) — Internal Security Forces and Regional Forces
This Law shall not prejudice special laws governing internal security forces or the Region's constitutional powers to organize its internal security forces and regional guards. Within one year, the Government and Supreme Judicial Council shall review interfaces and jurisdictional conflicts and propose legislation ensuring consistency with Article (99) of the Constitution and preventing double jeopardy.
Article (103) — Regulations and Instructions
The Supreme Judicial Council, acting within its competence and in coordination with the Public Prosecution and Ministry of Defence, shall issue technical and administrative instructions necessary for implementation within one hundred and eighty days. Instructions shall not create judicial jurisdiction, an offence, penalty or restriction on a right not prescribed by law.
Article (104) — Repeal
The Military Criminal Procedure Code No. (22) of 2016 shall be repealed upon completion of the transfer of judicial powers, no later than one hundred and eighty days after this Law's entry into force. Conflicting provisions shall be repealed to the extent necessary to remove the conflict.
Article (105) — Transitional Phase
During the first ninety days, the Supreme Judicial Council shall determine court locations, judges, prosecutors and security and technical needs. Within one hundred and eighty days, the new courts shall begin full operation and former military judicial bodies shall cease registering new cases.
Article (106) — Entry into Force
This Law shall enter into force thirty days after publication in the Official Gazette, except transitional provisions, which shall apply from publication. All bodies shall undertake the necessary actions within its specified periods.
IV — Statement of Reasons
To implement Article (99) of the Constitution requiring military justice to be regulated and military courts' jurisdiction confined to offences of a military nature; ensure judicial independence and prevent executive interference in justice; unify fair trial and defence safeguards and prevent torture and non-judicial detention; separate military command's disciplinary authority from investigation and adjudication; establish a judicial appeal route within the federal judiciary; and modernize treatment of digital evidence and classified information and protection of witnesses and victims, this Law has been enacted.
V — Explanatory Memorandum
1. Why Transfer Military Justice to the Judiciary?
The Constitution does not exempt military justice from judicial independence. It provides for it after provisions affirming judicial independence and prohibiting special courts. The proposal therefore makes military justice a judicial specialization within the federal system. Military knowledge can be supplied through training and technical expertise; independence cannot be secured if a judge is subject to the authority to which the accused belongs or which controls the judge's promotion and transfer.
2. Why Narrow Jurisdiction?
Article (99) does not place “every offence committed by a service member” within military jurisdiction; it requires the offence to be “of a military nature”. Jurisdiction over ordinary killing, attacks on civilians, corruption, torture, terrorism and other ordinary offences therefore shifts to ordinary courts, while desertion, military disobedience, breach of duty and unit and operational security remain within military justice.
3. Discipline Is Not Criminal Adjudication
The army needs a rapid mechanism for lateness, non-compliance and everyday violations. Speed, however, does not justify turning a commander into a criminal judge. The proposal therefore permits non-custodial disciplinary sanctions and reserves confinement, detention and criminal conviction to the judiciary.
4. Arrest Warrants and the Chain of Command
Judicial independence is incompatible with giving an executive body power to obstruct a judicial arrest warrant. An exceptional operational situation may nevertheless arise where immediately arresting a field commander during ongoing combat directly endangers soldiers and civilians. The proposal addresses this through a very short postponement request decided by the judge, not the commander, under conditions preventing operational necessity from becoming immunity.
5. Military Secrecy and Defence Rights
Military cases may involve operational plans, intelligence sources or sensitive capabilities. Protecting this information is legitimate, but the court must balance security necessity and justice. The proposal adopts alternatives such as closed hearings, redaction, secure summaries and counsel security clearance, with a decisive rule: no conviction resting substantially on evidence whose essential content the defence cannot know and challenge.
6. Relationship with the Military Penal Code
This Law is primarily procedural and institutional. Military Penal Code No. (19) of 2007, as amended, remains in force pending review, but its procedural references are interpreted under the new judicial structure. The proposal requires legislative review within one year to distinguish offences from disciplinary violations and update provisions inconsistent with the Constitution or modern armed forces.
VI — Alignment with Existing Legislation and Institutions
| Reference | Proposed Effect |
|---|---|
| Constitution of the Republic of Iraq, 2005 | Direct implementation of Articles (99) and (19), linking military justice to judicial independence. |
| Military Criminal Procedure Code No. (22) of 2016 | Repeal and replacement after a transition not exceeding 180 days. |
| Military Penal Code No. (19) of 2007, as amended | Remains in force for offences and penalties, with procedural references to this Law and subsequent legislative review within one year. |
| Supreme Judicial Council Law No. (45) of 2017 | Activates the Council's mandate to administer federal justice through a specialized military justice department. |
| Public Prosecution Law No. (49) of 2017 | Creates a military prosecution specialization within the existing service, not a prosecution body subordinate to the Ministry of Defence. |
| Criminal Procedure Code No. (23) of 1971, as amended | Supplementary authority for procedures and safeguards where no provision exists. |
| Internal Security Forces Laws | Not automatically repealed; interfaces and jurisdictional conflicts reviewed within one year to ensure consistency with Article (99). |
| Laws Governing the Counter-Terrorism Service, Popular Mobilization Authority and Other Bodies | Their military personnel are subject to this Law insofar as their governing laws subject them to military laws. |
VII — Transitional Provisions and Implementation Requirements
From Publication to 90 Days: The Supreme Judicial Council issues an establishment plan, identifies courts, premises, judges, prosecutors and technical and security needs, and begins personnel training.
From 90 to 180 Days: New courts gradually begin receiving cases; files, records and evidence transfer under official records; and former bodies cease opening new cases once the competent court becomes operational.
By Day 180 at the Latest: Military Criminal Procedure Code No. (22) of 2016 is repealed and all judicial functions transfer to the federal judiciary.
Within One Year: A comprehensive review is submitted of the Military Penal Code and its interfaces with laws governing internal security forces and other military formations.
Transition does not require discarding existing legal expertise in the Ministry of Defence. Current legally qualified officers and investigators are valuable resources for technical investigation, advice and judicial service where appointment requirements are met. Judicial status itself, however, must originate in the judicial system, not rank.
VIII — Financial and Implementation Impact
Expected financial impact is moderate and transitional. The proposal creates no new independent judicial authority outside State institutions; it adds a specialization to the Supreme Judicial Council, Federal Court of Cassation and Public Prosecution. Costs centre on appointing or assigning judges and staff, training investigators, creating a secure case-management system, preparing courtrooms for classified information and transferring archives and records.
Existing military court premises and security infrastructure can be reused after judicial administration is separated from the Ministry of Defence. Public data on case numbers, staff and premises are insufficient for a reliable financial figure. A joint inventory by the Supreme Judicial Council and Ministry of Defence is therefore required before the transitional budget is allocated.
IX — Relevant International Comparison
| Model / Standard | Useful element | Application in the Proposal |
|---|---|---|
| International Covenant on Civil and Political Rights — Article 14 and General Comment No. 32 | Fair trial safeguards apply to ordinary, specialized and military courts; military character does not justify reducing them. | Full application of defence, publicity, independence and confrontation safeguards to military justice. |
| Canada — National Defence Act | Military judges exercising independent judicial functions, public trials and functionally independent military prosecution. | Separation of judicial and prosecutorial functions from the chain of command, with a clear military specialization. |
| United Kingdom — Armed Forces Act 2006 | The military court is presided over by an independent legally qualified judge, with a judicial appeal structure separate from operational command. | Specialized federal judges and appeals before the Federal Court of Cassation. |
| Iraqi Constitutional Principle | Article (99) limits military justice to offences of a military nature. | Making the nature of the offence, not the accused's status alone, the jurisdictional criterion. |
X — Compliance and Oversight Indicators
The law's effectiveness is measured through auditable judicial indicators: the proportion of cases referred to ordinary courts for lack of military character; average time before an arrested person is brought before a judge; average pre-trial detention; proportion of accused persons with counsel from first questioning; appeal numbers and reversal rates; ill-treatment complaints and outcomes; case-disposal times; decisions involving classified information and protective measures used; and cases of operational delay in executing arrest warrants, their reasons and judicial review outcomes.
XI — Sources and References
- Constitution of the Republic of Iraq — Iraqi Council of Representatives — Official source
Articles (19), (37) and (87)–(100), particularly Article (99) on military justice. - Ministry of Justice — Iraqi Official Gazette, Issue 4444, 24/4/2017 — Source
Documents publication of Military Criminal Procedure Code No. (22) of 2016. - Ministry of Justice — Iraqi Official Gazette, Issue 4238 — Source
Documents First Amendment Law No. (36) of 2012 to Military Penal Code No. (19) of 2007. - Federal Court of Cassation — Decision 1189/Expanded Criminal Panel/2024 — Source
A recent decision on military jurisdiction under Article (4) of the current Military Criminal Procedure Code. - Supreme Judicial Council — Judicial Institute: Legal Procedures Concerning Security Service Personnel — Source
Explains application of Law No. (22) of 2016 and restrictions on execution of arrest and referral orders concerning service members. - Ministry of Justice — Supreme Judicial Council Law No. (45) of 2017 — Source
An institutional reference for administration of federal judicial affairs. - Ministry of Justice — Public Prosecution Law No. (49) of 2017 — Source
A reference for organization of the Public Prosecution within the judiciary. - United Nations — Iraq's Common Core Document HRI/CORE/IRQ/2025 — Source
Lists Military Criminal Procedure Code No. (22) of 2016 among Iraqi legislation in force reported internationally. - United Nations — Status of the International Covenant on Civil and Political Rights — Source
Documents Iraq's ratification of the Covenant on 23 March 1976. - Human Rights Committee — General Comment No. 32 on Article 14 — Source
Establishes that Article 14 safeguards apply to ordinary, specialized and military courts. - Canada — National Defence Act — Source
A comparative reference for independence of military judges and prosecution, public trials and appeals. - United Kingdom — Armed Forces Act 2006 — Source
A comparative reference for a military court led by a legally qualified judge and a service justice system separate from operational command.
POL-27 · Ali Zuweid's Political Programme · Security, Defence and Sovereignty