To Avoid Torture Risk, Include Provision to Challenge Transfer
October 29, 2008
Since the United States made itself synonymous with abuse of detainees in Iraq during the Abu Ghraib scandal, the least it can do now is assure that a security agreement does not pave the way for further abuse.
Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch

(New York, October 29, 2008) - The United States should not transfer detainees in US military custody to Iraqi custody under a US-Iraqi security agreement if they face the risk of torture, Human Rights Watch said today.  

The US government currently holds about 17,000 detainees, most of them Iraqis, citing UN Security Council resolutions that expire at the end of the year as the basis for holding them. The draft security agreement awaiting approval by Iraq's cabinet and parliament would provide for the transfer of detainees to Iraqi custody.  
 
"Since the United States made itself synonymous with abuse of detainees in Iraq during the Abu Ghraib scandal, the least it can do now is assure that a security agreement does not pave the way for further abuse," said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch.  
 
Human Rights Watch called on the US government to ensure that detainees are not in danger of being tortured by establishing a mechanism that would provide each detainee with a genuine opportunity to contest a transfer to Iraqi custody, and by verifying the conditions of Iraqi detention facilities to which they could be transferred, through inspections whose results are made public.  
 
In a 2005 report, Human Rights Watch documented torture and other ill-treatment of detainees by Iraqi police and security forces. The United Nations Assistance Mission in Iraq has documented such abuse, particularly in pre-trial detention, and cited mistreatment of detainees observed during visits to such facilities.  
 
Under the proposed agreement, US forces are to release detainees in their custody after the agreement takes effect; pursuant to a request from Iraqi authorities, US forces may continue to detain them. A separate clause of the agreement requires transfer of detainees to Iraqi custody but does not specify what terms would dictate whether a detainee is held, transferred, or released.  
 
The Convention against Torture, which the United States has ratified, prohibits transfer of a person to another state when there are substantial grounds for believing he faces the risk of torture. The laws of armed conflict also include such protection.  
 
Any detainees who remain in US military custody should have guarantees that their treatment complies with international legal requirements regarding persons deprived of their liberty, Human Rights Watch said. These include the International Covenant on Civil and Political Rights (ICCPR), which the United States and Iraq have ratified. The ICCPR outlines detainees' rights to have a prompt judicial review, have access to legal counsel and to their families, face a cognizable criminal charge and receive a prompt trial meeting international standards of fairness.  
 
Human Rights Watch urged the UN Security Council in April and June 2008 to address its concerns about the access that detainees held by the US-led Multinational Force-Iraq have to these rights. Any future transfer of detainees to the Iraqi legal system should also reflect consideration for the same standards, Human Rights Watch said.  
 
Iraq's government has said it wants revisions to the proposed security agreement, which also deals with the legal status of US troops and contractors in Iraq. The proposed agreement would give the United States jurisdiction over troops and certain Defense Department contractors when they are on duty or when they are within installations and areas to be agreed upon by both governments. They would be subject to Iraqi jurisdiction only in the event of "major," "intentional" crimes that occur outside of specified military installations committed when they are off duty. The agreement would for the first time give Iraq jurisdiction over the remaining US contractors. Joint Iraqi-US committees would determine which jurisdiction applies when the circumstances of an incident are disputed, according to the draft agreement.  
 
Human Rights Watch called on the Iraqi and US governments to ensure that whatever form a security agreement may take, it will not allow a legal vacuum in dealing with military personnel and contractors who commit abuses.