July 17, 2007

We are writing to you with regard to the legal status of the five Iranian officials who have been detained in Iraq under the authority and control of the United States military since January 11, 2007. Human Rights Watch remains concerned about the legal basis for the arrest of the five Iranians, who may have been accredited diplomats at a consular office; the unwillingness of the US to transfer the Iranians to Iraqi authorities for prosecution under Iraqi law; and, the US failure to provide the Iranians fundamental due process rights. Human Rights Watch calls upon the US government to address these issues or promptly order their release.

July 16, 2007

Dr. Robert M. Gates
Secretary of Defense
1000 Defense Pentagon
Washington, DC 20301-1000

Dear Secretary Gates:

We are writing to you with regard to the legal status of the five Iranian officials who have been detained in Iraq under the authority and control of the United States military since January 11, 2007. Human Rights Watch remains concerned about the legal basis for the arrest of the five Iranians, who may have been accredited diplomats at a consular office; the unwillingness of the US to transfer the Iranians to Iraqi authorities for prosecution under Iraqi law; and, the US failure to provide the Iranians fundamental due process rights. Human Rights Watch calls upon the US government to address these issues or promptly order their release.

Early on the morning of January 11, 2007, US military forces raided the two-story building of the Iranian liaison office in Arbil, in the Kurdistan region of Iraq. US forces reportedly arrested six Iranian men (one of whom was quickly released) and confiscated computer equipment and other material. US officials told the media that the raid was intended to arrest two senior Iranian officials who were visiting Iraq. The two escaped, and the five arrested were reputedly mid-level members of the Quds force, the foreign operations wing of the Iranian Revolutionary Guards, who were allegedly providing funds, arms and training to insurgents in Iraq. Following their arrest, the detainees were taken to the US airbase at Balad, north of Baghdad. It is unclear if the detainees are still held there. They have been visited by the International Committee of the Red Cross and on July 7 for the first time by Iranian officials. The US military is holding them as “security detainees.”

I.

The US raid on the Iranian liaison office and ensuing arrests raise concerns of the violation of consular immunity and the protection of diplomatic officers. Human Rights Watch takes no position on the legal status of the Iranian liaison office or the five Iranian officials. However, it is our view that at least since the end of the formal occupation of Iraq by United States and other coalition states on June 28, 2004, US forces in Iraq should act in a matter consistent with Iraqi legal obligations under international law.

The Iranian government and the Kurdistan regional government assert that the Iranian liaison office was an official consulate, entitled to consular protection under international law. Since the establishment of the Kurdistan Regional Government in northern Iraq in 1992, Iran has opened bureaus in the major Kurdish cities of Arbil and Sulaimanya. According to the Kurdish Regional Government, these offices issue travel documents to Iraqi Kurds who want to visit Iran for medical treatment, business, education or other social purposes. After the arrests, Iraqi Foreign Minister Hoshyar Zebari told the media that the office was providing consular functions and was in the process of upgrading to a formal consular office. On June 13, Iran filed a complaint about the raid and the arrests with the United Nations. Just days after the incident, the US government stated that the liaison office was not an accredited consulate and thus not entitled to consular protection.

The Vienna Convention on Consular Relations provides for the establishment of consular posts with the consent of the receiving state and for the inviolability of the consular premises. Article 31 of the convention states that authorities shall not enter consular premises without consent and that a receiving state is “under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.”

Similarly, Iranian, Kurdish and Iraqi officials contend that the five detained Iranians are diplomats protected by consular immunity under international law. Iraqi Foreign Minister Zebari said the men were Iranian diplomats who were working officially in Arbil with the approval of the Iraqi government. The US maintains that the five men were not consular officers entitled to special protections.

Under article 41 of the Vienna Convention on Consular Relations, consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. Moreover, they shall not be imprisoned or subject to any other form of restriction on their personal freedom except in execution of a judicial decision of final effect. Where detention of a consular officer is proper, the proceedings against the officer shall be instituted with the minimum of delay.

We urge the US government to provide a legal explanation for its decision to reject claims of consular immunity and the protection of consular officers; to date the US government has only provided conclusory statements that the liaison office and the individuals detained were not entitled to international consular protections.

II.

In the event that the five Iranians are implicated in a criminal offense, they should be turned over to the Iraqi authorities for prosecution in accordance with international fair trial standards. Such a transfer should not be made if there are substantial grounds for believing the detainees would be subject to torture in Iraqi custody.

The US government has stated that it is holding the five Iranians in “coalition detention” in accordance with United Nations Security Council (SC) resolutions 1546, 1637 and 1723. These resolutions endorse the transitional Iraqi government and extend the mandate of the US-led Multinational Force (MNF) into 2007. As with all so-called security detainees held by US forces in Iraq, the specific legal basis for detention are the June 5, 2004 letters between the Prime Minister of the Interim Government of Iraq and the US Secretary of State annexed to Security Council Resolution 1546. The annexed letters provide that “[u]nder the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks" to maintain security in Iraq, including “internment where this is necessary for imperative reasons of security.”

The treatment of persons held in accordance with SC resolution 1546 is found only in a Coalition Provisional Authority memorandum of June 27, 2004. The memorandum states that “[t]he operation, condition and standards of any internment facility established by the MNF shall be in accordance with Section IV of the Fourth Geneva Convention….Security internees who are placed in internment after 30 June 2004, must in all cases only be held for so long as the imperative reasons of security in relation to that internee exist and in any case must be either released from internment or transferred to the Iraqi criminal jurisdiction…” (sec. 6). Thus even under the US government’s own terms, the five Iranians must be held for “imperative reasons of security” or for a cognizable criminal offense, or they must be released.

SC resolution 1546 should be implemented in a manner that is as consistent as possible with the requirements of international law for the treatment of persons in detention. The Fourth Geneva Convention applies during periods of occupation, but that occupation formally ended – according to the United States, the United Nations and others – in June 2004. The Fourth Geneva provisions on the treatment of security detainees are no longer applicable in Iraq.

Since the end of the formal occupation, the ongoing armed hostilities in Iraq can no longer be considered an international armed conflict – that is, an inter-governmental conflict between states parties to the Geneva Conventions – but is a non-international (internal) armed conflict. Persons taken into custody during an internal armed conflict must be treated in accordance with international human rights law, such as is found in the International Covenant on Civil and Political Rights. International human rights law requires that all persons arrested be promptly brought before a judge; be charged with a cognizable criminal offense; have access to legal counsel and family members; and receive a prompt trial in accordance with international fair trial standards. Limited and specific derogations of these rights are only permitted during a declared state of emergency.

Iraq’ s Code of Criminal Procedure (CCP), which applies to all persons in Iraq, provides protections against arbitrary arrest and detention, such as requiring criminal suspects to be brought before an investigating judge within 24 hours of arrest.

Human Rights Watch recognizes that serious human rights violations, including torture and other mistreatment, commonly occur within the Iraqi criminal justice system, and that the right to a fair trial frequently is not met. International law prohibits the transfer of individuals to the custody of another state where there are substantial grounds for believing that the person would be subjected to torture. Given that the Iraqi government has stated that it does not consider the arrest of the five Iranians justified, we have no information to indicate that this is a concern in this case. The Iranians, with the assistance of their lawyers, should be given an opportunity to raise concerns about their safety should their transfer to the Iraqi justice system be considered.

III.

In the event that the transfer of the five Iranian detainees to the Iraqi authorities is not forthcoming, the US government still must respect their fundamental rights as administrative detainees.

International law sets out fundamental rights due all persons in detention, including so-called “security detainees.” The US government should ensure that all persons in its custody be entitled to the following protections:

1) Be provided specific information regarding the reasons for detention.
2) Have the right to challenge, with the least possible delay, the lawfulness of the detention before an independent and impartial body.
3) Have access to legal assistance.
4) Have the right to periodic review – at least every six months – of the lawfulness of continued detention.
5) Be able to attend proceedings in person and with legal counsel.
6) Have contacts with family members, including by correspondence and visits.

US authorities reported to the media that the status of the five Iranians was reviewed in April under the auspices of the Combined Review and Release Board (CRRB), established between the Iraqi government and the Multinational Forces in 2004, and that the five would not be entitled to a new review until six months later, in October. Human Rights Watch remains concerned that the CRRB process does not provide detainees all of the minimal rights set out above, including permitting the participation of a lawyer at the review.

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In conclusion, Human Rights Watch urges the US government to treat the five detained Iranian officials in full accordance with international law. Should there be no diplomatic solution to the matter, the US government should publicly clarify its legal basis for the raid on the liaison office and for determining that the Iranians were not accredited diplomats. In the event the five Iranian officials were implicated in criminal offenses, the US government should promptly turn them over to Iraqi authorities for prosecution in accordance with international fair trial standards. At a minimum, the US government must ensure that the Iranian detainees are afforded the basic rights due all so-called security detainees. The US government should meet these responsibilities or promptly release them.

Thank you for your attention to this matter and we look forward to receiving your response.

Sincerely,

Sarah Leah Whitson
Executive Director
Middle East and North Africa division