Legislative gaps in the Iraqi Law No. 11 of 2016 on human organ transplants and the prevention of trafficking
Volume 12, Issue 1, June 2024 , Pages 195-225
Authors
Sulayman Mahmud Kareem 1 ; Zana Rafeeq Saeed 2 ;
1 Department of Law, College of Law, University of Sulaimani - Kurdistan Region - Iraq
2 Department of Law/ College of Law, University of Sulaimani - Kurdistan Region - Iraq
10.17656/jlps.10255
Keywords
Abstract
There is no doubt that the operations of removing, transporting and transplanting human organs directly affect one of the vital interests of the human being, which is the right to protect his physical safety and to be free from any unnecessary interference with it, as these operations may cause him harm and may affect his right to life. In order to regulate the operations of removing and transplanting human organs for therapeutic purposes and purposes and to prevent their exploitation by some people by trading in them (selling or buying), the Iraqi legislator issued the Human Organ Transplantation and Prohibition of Trade Law No. 11 of 2016, which included special rules and provisions for it with the aim of regulating it and imposing punishment on the offender who violates its provisions. However, this law is not immune from criticism, as its penal texts contain many legal loopholes, some of which relate to the uncontrolled formulation of penal texts, as it is noted that it contains redundant and repeated phrases and words that undermine the good legislative formulation of penal legal texts. Most of its texts are also open to different and varied interpretations and explanations, some of which include a clear and blatant violation of the penal criminal policy, as it sees a conflict between the penal texts regarding the amount of the prescribed penalties. Some of the texts of this law also violate an important criminal principle, which is the principle of penal proportionality, as it is assumed that the amount of the penalty is proportional to the seriousness of the crime committed. This is what the Iraqi legislator did not find, as he sometimes imposed a single penalty for multiple and varied criminal acts in terms of impact and seriousness.