COALITION PROVISIONAL AUTHORITY ORDER NUMBER 23

CREATION OF A CODE OF MILITARY DISCIPLINE FOR

THE NEW IRAQI ARMY

Pursuant to my authority as the head of the Coalition Provisional Authority

(CPA), relevant UN Security Council resolutions including Resolution 1483

(2003), and the laws and usages of war,

Noting that Resolution 1483 appeals to Member States inter alia to assist the

people of Iraq to contribute to conditions of stability and security in Iraq,

Recalling in this regard that CPA Order Number 22 created the New Iraqi Army,

Acknowledging the need to ensure that the New Iraqi Army has a system of

discipline to maintain order,

Noting that CPA Order Number 22 provides for both military and civilian

jurisdiction over members of the New Iraqi Army

I hereby promulgate the following:

SECTION 1

DEFINITIONS

"Accused" means a Member of the New Iraqi Army subject to this Code of

Military Discipline, against whom disciplinary proceedings are conducted in

respect of an allegation of a Military Offense under this Code of Military

Discipline,

"Charge" means a formal accusation in writing, prepared at the direction of the

Disciplinary Officer and signed by a Disciplinary Officer, that a Member of the

New Iraqi Army subject to this Code of Military Discipline has committed a

Military Offense,

"Commander of the New Iraqi Army" means the Iraqi officer appointed by the

Administrator of the CPA to command the New Iraqi Army,

"Disciplinary Proceedings" means the investigation into, hearing of and

the decision reached, under this Code of Military Discipline in respect of an

allegation of a Military Offense and includes any appeal of any such decision,

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"Elements of Military Offenses" means the elements of the Offenses required to

be proved to the required criminal standard before a member of the New Iraqi

Army can be convicted of a Military Offense.

"Junior Disciplinary Officer" means either the officer of at least Captain in rank

who at the time of any part of the Disciplinary Proceedings in respect of an

allegation under this Code of Military Discipline commands the company or

equivalent unit, or battalion or equivalent unit of which the Accused is a member,

or the officer of at least the rank of Captain who is appointed, in accordance with

the provisions of this Order, by an officer in command of a Brigade to be the

Junior Disciplinary Officer of the Accused for the Disciplinary Proceedings,

"Member of the New Iraqi Army" means a person serving in the New Iraqi Army

from the time of attestation until the date of termination of service,

"Military Court" means a civilian court with a civilian judge who has been

appointed as a Military Judge pursuant to Section 5 of this Order,

"Military Judge" means a civilian judge with jurisdiction over Military Offenses in

accordance with the provisions of this Order,

"Military Offense" means an act or omission described in Section 3 of this Code

of Military Discipline,

"New Iraqi Army" means the military forces of Iraq organized for the purposes set

forth in this Order including all components of the national armed forces of Iraq,

specifically including the ground forces recruited, trained, and organized as the

first step in the process of creating a military defense force for the new Iraq.

Unless the context clearly requires otherwise, all references to the "New Iraqi

Army" are references to any element of the national defense forces of Iraq,

"Senior Disciplinary Officer" means either the officer of at least Lieutenant

Colonel in rank who at the time of any part of the Disciplinary Proceedings in

respect of an allegation under this Code of Military Discipline commands the

Battalion of which the Accused is a member, or the officer of at least the rank of

Lieutenant Colonel who is appointed, in accordance with the provisions of this

Order, by the Commander of the New Iraqi Amy to be the Senior Disciplinary

Officer of the Accused for the Disciplinary Proceedings.

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SECTION 2

MILITARY JURISDICTION

1) Members of the New Iraqi Army are subject to this Code of Military

Discipline at all times from the date of their attestation until the date of

termination of service.

2) A Member of the New Iraqi Army who is subsequently determined to have

been ineligible for service in the New Iraqi Army remains subject to the Code of

Military Discipline until discharged.

3) All Members of the New Iraqi Army will remain subject to the jurisdiction

of the civilian courts while serving as Members of the New Iraqi Army; provided,

Members of the New Iraqi Army enjoy immunity from civilian criminal

prosecution or civil liability for acts or omissions arising within the scope of their

duties and authorized operations to the same degree as other governmental

officials.

SECTION 3

MILITARY OFFENSES

1) Any Member of the New Iraqi Army subject to this Code of Military

Discipline who commits any of the following shall commit a Military Offense and

shall be liable on conviction to any punishment laid down in Sections 10 and 13 of

this Order.

(a)

(b)

(c)

(d)

(e)

(i)

(ii)

(f)

(g)

(i)

(ii)

mistreatment of Members of the New Iraqi Army of inferior rank;

causing or engaging in a disturbance or behaving in a disorderly

manner;

behaving in an insubordinate manner;

striking a Member of the New Iraqi Army or a member of another

armed force of superior rank or civilian instructor placed in

authority over the accused;

while on sentry duty either

engaging in misconduct, or

failing to do the Member's duty;

disobeying a lawful order;

drunkenness if, owing to the influence of alcohol or any drug,

whether alone or in combination with any other circumstances, the

Member is:

unfit to be entrusted with his duty,

unfit to be entrusted with any duty which the Member was

reasonably aware that he could be called upon to perform,

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(iii) behaving in a disorderly manner, or;

(iv) behaving in any manner likely to bring discredit on the New

Iraqi Army;

absence without leave;

avoiding the performance of a duty or negligently performing a

duty;

making a false statement concerning any official matter relating to

the New Iraqi Army;

fighting with another Member of the New Iraqi Army;

willfully or by neglect damaging or causing damage to or the loss

of any property of the New Iraqi Army;

conduct to the prejudice of good order or military discipline;

behaving in a manner likely to bring discredit on the New Iraqi

Army.

(h)

(i)

(j)

(k)

(1)

(m)

(n)

2)

Order.

The Elements of the Military Offenses are contained in Annex A to this

3) Any Member of the New Iraqi Army subject to this Code of Military

Discipline who commits a civilian criminal offense shall be guilty, by reason of so

doing, of a Military Offense against this Section and liable to trial, and on

conviction, to any punishment under the provisions of this Order.

4) Any Member of the New Iraqi Army subject to this Code of Military

Discipline or any other person who by the law of war is subject to trial by a

Military Court for any crime or offense against the law of war who commits a

violation of the law of war as adopted by Iraq or recognized as customary

international law shall be guilty, by reason of so doing, of a Military Offense

against this Section and liable to trial, and on conviction, to any punishment under

the provisions of this Order. In the event the law of war convention or treaty was

adopted without specifying the penalty for violations or otherwise fails to specify

the criminal penalty, the maximum penalty shall be the maximum penalty

specified for the most closely analogous offense under the civilian criminal code.

SECTION 4

DISCIPLINARY OFFICERS

1) Junior Disciplinary Officers have jurisdiction over all Military Offenses

created under this Order, with the exception of the Military Offenses created under

Sections 3(3) or 3(4), in respect of Members of the New Iraqi Army below the

rank of Lieutenant.

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2) An officer in the New Iraqi Army, not below the rank of Captain may be

appointed in writing as a Junior Disciplinary Officer by an officer in command of

a Brigade to be the Junior Disciplinary Officer of the accused in respect of the

allegation of the commission of any Military Offense.

3) Senior Disciplinary Officers have jurisdiction over all Military Offenses

created under this Order, with the exception of the Military Offenses created under

Sections 3(3) or 3(4), in respect of members of the New Iraqi Army in the rank of

Lieutenant and above, so long as the Senior Disciplinary Officer is at least one

rank above the Accused. Senior Disciplinary Officers have jurisdiction over all

appeals of decisions of Junior Disciplinary Officers.

4) An officer in the New Iraqi Army, not below the rank of Lieutenant

Colonel may be appointed in writing as a Senior Disciplinary Officer by the

Commander of the New Iraqi Army to be the Senior Disciplinary Officer of the

accused in respect of the allegation of the commission of any Military Offense.

SECTION 5

MILITARY COURTS AND MILITARY JUDGES

1) Military Courts have jurisdiction over those Military Offenses created

under Sections 3(3) and 3(4) of this Order.

2) Military Judges have jurisdiction over those Military Offenses created

under Sections 3(3) and 3 (4) of this Order.

3) In circumstances in which allegations against an Accused involve Military

Offenses under both Section 3(1) and Section 3(3) or 3(4), then the Military Court

and Military Judge to which such matters are referred will have jurisdiction over

Military Offenses under Section 3(1) in addition to those under Section 3(3) or

3(4).

4) Military Judges will be selected from sitting civil judges. The Senior

Advisor, Ministry of Justice, in coordination with the Interim Minister of the

Justice will appoint such civil judges, as he may deem appropriate, to be Military

Judges on a standing basis who will sit as Military Judges when a Military Offense

is referred to them in accordance with the provisions of this Order.

5) A civil court in which a Military Judge is conducting Disciplinary

Proceedings in respect of a Military Offense will be deemed to be a Military Court

for the duration of those Disciplinary Proceedings.

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SECTION 6

APPELLATE COURTS

In circumstances in which a Member of the New Iraqi Army has been convicted

by a Military Court then the appellate court to which any appeal is made will have

jurisdiction over any Military Offense referred. Appeals will be made to the

appellate court with jurisdiction to hear appeals from the trial court.

SECTION 7

ARREST

1) Any Member of the New Iraqi Army subject to this Code of Military

Discipline found committing a Military Offense, or reasonably suspected of

committing a Military Offense, may be arrested in accordance with the provisions

of this Section.

2) A Member of the New Iraqi Army subject to this Code of Military

Discipline may be arrested by (a) a Member of the New Iraqi Army of superior

rank, (b) by a civilian instructor placed in authority over the accused, (c) by a

civilian police officer acting within the officer's authority, or a Member of the

New Iraqi Army serving in a provost position.

3) As soon as possible, but in any event no later than 24 hours following

arrest, the arrested Member of the New Iraqi Army must be informed of the

reasons for his arrest.

4) Within 24 hours of arrest, unless the exigencies of operational

circumstances prevent it, a Disciplinary Officer must be informed of the arrest and

must consider the necessity of retaining the Member of the New Iraqi Army in

arrest. The Disciplinary Officer shall order the release of the arrested Member of

the New Iraqi Army unless he reasonably believes that if released:

(a) the arrested Member of the New Iraqi Army will absent himself or

flee disciplinary proceedings;

there is a risk that evidence will be lost, tainted or destroyed; or

the arrested Member of the New Iraqi Army will commit further

Military Offenses if released.

(b)

(c)

5) If, in accordance with Section 7(5) of the present Order, the Disciplinary

Officer shall have determined that the member of the New Iraqi Army under arrest

shall be further retained, the period of such further retention shall not, unless the

exigencies of operational circumstances prevent it, exceed 48 hours.

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6) Except for the exigencies of operational circumstances or the referral of the

matter to a Military Court, before the expiration of the period of 72 hours of arrest,

the Disciplinary Officer must have either released the Member of the New Iraqi

Army under arrest from arrest under this Section or dealt with the allegation of the

Military Offense upon which the arrest is based through Disciplinary Officer

action or referral to a Military Court.

7) In circumstances in which a suitable facility within a military location in

which the Accused can be retained under arrest is unavailable, use may be made,

with the agreement of the civilian police, of such civilian police or prison facilities

as may be available.

8) Upon referral to a Military Court, that Military Court will determine

whether an Accused shall remain in arrest on the basis of the civil procedures

applicable in that court.

SECTION 8

INVESTIGATION OF ALLEGATIONS

1) An allegation that a Member of the New Iraqi Army has committed a

Military Offense created under Section 3(1), Section 3(3), or Section 3(4) shall be

reported to a Disciplinary Officer, who shall cause each such allegation to be

investigated.

2) In circumstances involving an allegation of a Military Offense under

Section 3(3) or Section 3(4), the Disciplinary Officer will act in accordance with

Section 13 of this Order.

3) In circumstances in which allegations against an Accused involve Military

Offenses under both Section 3(1) and Section 3(3) or Section 3(4), the

Disciplinary Officer shall, if the Disciplinary Officer considers it is in the interests

ofjusti'ce for the matters to be tried together, refer all allegations to a Military

Judge in accordance with Section 13 of this Order.

4) During the course of an investigation into an allegation of a Military

Offense under section 3(1), if it becomes necessary to speak to the Accused, the

Accused shall be offered the opportunity to have an officer of the member's

choice, if reasonably available, and of at least the rank of the investigator present

during the conversation to assist the Accused. It shall be explained that the

Accused is not obliged to say anything unless the Accused wishes to do so. The

answers of the Accused will be written down sequentially, together with the

questions asked and the Accused shall have an opportunity to sign the record as

accurate.

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SECTION 9

DECISION BY DISCIPLINARY OFFICERS ON CHARGING

1) In the case of an allegation against an Accused with respect to of a Military

Offense under Section 3(1), the Disciplinary Officer will decide whether the

evidence discovered during the investigation would support a Charge being

preferred against the Accused.

2) If the Disciplinary Officer determines that a Charge should be preferred, the

Charge shall be reduced to writing, signed by the Disciplinary Officer and a copy

given to the Accused.

3) At the same time or as soon as reasonably practicable thereafter the

Accused shall be provided a copy of all documentary evidence and access to all

real evidence with respect to the charged Military Offense.

SECTION 10

DISCIPLINARY HEARING

1) The Accused shall have at least 24 hours to prepare for the Disciplinary

Hearing. The 24-hour period shall begin when the written Charge or copy of the

evidence is provided to the Accused, whichever is later.

2) The Accused shall have the assistance of an Officer of his choice, subject to

reasonable availability, in preparing for and during the Disciplinary Hearing.

3) Disciplinary Hearings will not be open to the Public.

4) Disciplinary Hearings will be conducted in accordance with the procedures

set forth in Administrative Instructions issued by the Administrator of the CPA or

by a civilian member of the CPA reporting directly to the Administrator and to

whom authority to issue such Administrative Instructions is delegated.

5) Disciplinary Hearings shall be conducted in a manner that provides for the

basic rights of an Accused, including but not limited to the following rights:

(a)

(b)

the Accused shall have the Charge explained by the Disciplinary

Officer;

the Accused shall have the right to question witnesses called to give

evidence against the Accused;

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(c)

(d)

the Accused shall have the right to present evidence in support of his

case, and if convicted, to present evidence or speak in mitigation of his

punishment

the Accused shall have the right to remain silent and have no adverse

consideration taken by the exercise of this right

6) A Disciplinary Officer, having considered all the evidence presented to

him, will only find an Accused guilty of the Military Offense charged if the

Disciplinary Officer is satisfied that Accused committed the Offense in respect of

each of the elements of the Military Offense listed in the Annex to this Order.

SECTION 11

PUNISHMENTS BY DISCIPLINARY 0 FFI CERS

1) In adjudicating cases involving enlisted or non-commissioned personnel, a

Disciplinary Officer may award the following punishments in respect of each

Military Offense of which the member has been found guilty:

(a)

(b)

(c)

(d)

(e)

(f)

Detention for a period not longer than 7 days;

Fine not exceeding 14 days' pay;

A reprimand;

Extra duties to a maximum of 7 days;

In respect of a Private First Class, Corporal, or Sergeant, reduction

by one rank;

Stoppages of pay in respect of damage or loss caused by the act or

acts which formed the basis of the Offense charged, not exceeding

14 days' pay.

2) A Junior Disciplinary Officer may combine those punishments listed in

Sections 11(1)(b) and 11(1)(f), except that no more than 28 days pay may be taken

from the convicted member of the New Iraqi Army in respect of all the Offenses

dealt with by the Junior Disciplinary Officer at one hearing.

3) Detention may only be awarded to a Private, Private First Class, or

Corporal. It may not be combined with any other punishment except stoppages of

pay.

4) Reduction in rank may not be combined with any other punishment.

5) A reprimand and extra duties may be combined with any other punishment

not otherwise excepted under this Section.

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6) In adjudicating cases involving officers, a Senior Disciplinary Officer may

only award the following punishments in respect of each Military Offense of

which the member has been found guilty:

(a)

(b)

(c)

(d)

Fine not exceeding 14 days' pay;

A reprimand;

Extra duties to a maximum of 7 days;

Stoppages of pay in respect of damage or loss caused by the act or

acts which formed the basis of the Offense charged, not exceeding

14 days' pay.

7) A Senior Disciplinary Officer may combine those punishments listed in

Sections 11(6)(a) and 11(6)(d), except that no more than 28 days pay may be taken

from the convicted Member of the New Iraqi Army in respect of all the Offenses

dealt with by the Senior Disciplinary Officer at one hearing.

8) A reprimand and extra duties may be combined with any other punishment

not otherwise excepted under this Section.

SECTION 12

APPEAL FROM DISCIPLINARY OFFICER

1) An Accused who has been convicted by a Junior Disciplinary Officer of a

Military Offense under Section 3(1) of this Code of Military Discipline shall be

entitled to appeal to the Senior Disciplinary Officer. An Accused must submit the

appeal and any supporting evidence in writing to the officer in command of the

convicted member within 14 days of the Disciplinary Hearing.

2) An Accused who is an officer of the New Iraqi Army who is convicted by a

Senior Disciplinary Officer of a Military Offense under Section 3 (1) of this Code

of Military Discipline shall be entitled to appeal to the Commander of the New

Iraqi Army or the senior Commander of the New Iraqi Army. An Accused must

submit the appeal and any supporting evidence in writing to the officer in

command of the convicted member within 14 days of the Disciplinary Hearing.

SECTION 13

REFERRAL FOR TRIAL BY MILITARY JUDGE

1) In the case of an allegation of a Military Offense under Section 3(3) or

Section 3(4) the Disciplinary Officer will refer the allegation, together with all

available evidence relating to the allegation, to a Military Judge for consideration.

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2) Where an investigation into an allegation of a Military Offense under

Section 3(1) discovers evidence of additional Military Offenses under Section 3(3)

or Section 3(4), the Disciplinary Officer shall terminate the investigation and refer

the allegation, together with all available evidence, to a Military Judge for

consideration.

3) In accordance with Section 8(3) of this Order, where there are allegations

against an Accused involving Military Offenses under both Section 3(1) and

Section 3(3) or Section 3(4) the Disciplinary Officer shall, if the Disciplinary

Officer considers it in the interests of justice for the matters to be tried together,

refer all allegations, together with all available evidence, to a Military Judge.

4) The Military Judge will investigate and otherwise deal with the allegation

of the Military Offense referred in accordance with this Section in the manner

applicable for civil Offenses laid down in the Iraqi Law of Criminal Procedure

1971 as amended by Iraqi law and by CPA Orders.

SECTION 14

PUNISHMENTS BY MILITARY JUDGE

The Military Judge will apply the sentences appropriate to the civil Offense

charged under the provisions of Section 3(3) or Section 3(4), except that in

determining the appropriate level of sentence within the sentencing range for the

Offense, the Military Judge may consider the impact that the Military Offense had

on good order and discipline within the New Iraqi Army.

SECTION 15

APPEAL FROM MILITARY JUDGE

1) An Accused who has been convicted by a Military Judge of a Military

Offense shall be entitled to appeal in accordance with civil procedures.

2) The court hearing the appeal will consider the matter appealed in

accordance with the applicable law and procedure for civil Offenses laid down in

the Iraqi Law of Criminal Procedure 1971 with amendments and as amended by

CPA Orders and the Third Edition of the Iraqi Penal Code 1969, with amendments

and as amended by CPA Orders.

SECTION 16

SUSPENSION OF IRAQI LAWS

The Iraqi Military Law Code Number 13 of 1940, the Iraqi Military Procedures

Code Number 44 of 1941, the Code of Legal Notification of Military Personnel

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Number 106 of 1960, Punishment of Military Deserters Law Number 28 of 1972,

and the Penal Code of the Popular Army Number 32 of 1984 have been suspended

under CPA Order Number 21 entitled Creation of a New Iraqi Army.

SECTION 17

ADMINISTRATIVE INSTRUCTIONS

The Administrator of the CPA or a civilian member of the CPA reporting directly

to the Administrator and to whom such authority is delegated may issue

Administrative Instructions not inconsistent with this Order, prescribing all

matters that are necessary or convenient for giving effect to or carrying out the

purposes of this Order.

SECTION 18

ENTRY INTO FORCE

This Order shall enter into force on the date of signature.

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