July 23, 2006

Legal Standards

The acts of torture and other cruel and inhumane treatment alleged in this report do not fall within gray areas in the law. During the periods discussed in this report, U.S. and coalition forces in Iraq were bound by various provisions of the 1949 Geneva Conventions, as well as by customary international law.[45] The Geneva Conventions applied not only to the armed conflict between the United States and Iraq during March and April 2003, but also to the period of occupation thereafter. Specifically, the United States continued to be bound as an occupying power by the terms of the Fourth Geneva Convention until at least June 28, 2004, when sovereignty was formally transferred to the Interim Iraqi government.[46]

Article 130 of the Third Geneva Convention and Article 147 of the Fourth Geneva Convention deem torture and other inhumane treatment of persons protected by the respective conventions to be "grave breaches" of those conventions.[47] Acts of torture and other mistreatment that took place against protected persons detailed in this report constituted grave breaches of the Geneva Conventions. The United States is bound to investigate and prosecute grave breaches that are committed by U.S. personnel in Iraq. The Geneva Conventions impose on the United States an obligation to "search for persons alleged to have committed, or order to be committed" grave breaches and to prosecute them.[48]

Other relevant provisions of the laws of war are also applicable. The continuing hostilities in Iraq since the end of the Saddam Hussein government are considered a non-international (internal) armed conflict, governed primarily by Article 3 common to the Geneva Conventions of 1949 ("Common Article 3"), which details minimal standards of treatment for persons during non-international armed conflict.[49](Common Article 3, along with provisions of the 1977 Protocol I to the Geneva Conventions that also protect detainees, are also considered reflective of customary international law.[50])

Common Article 3 prohibits "at any time and in any place whatsoever . . . violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, [and] outrages upon personal dignity, in particular, humiliating and degrading treatment." Additional applicable provisions, similar to those above, exist in the "fundamental guarantees" provided under article 75 of Protocol I to the Geneva Conventions, which as stated above is accepted as reflective of customary law on armed conflict, both international and non-international.

The mistreatment of prisoners as detailed in this report also violated U.S. obligations under international human rights law. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, prohibits both torture and "cruel, inhuman and degrading treatment," and provides that "[n]o exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture."[51] The International Covenant on Civil and Political Rights,[52] which also bans torture and other mistreatment, ensures that the right to be free from torture and other cruel, inhuman or degrading treatment can never be suspended by a state, including during periods of public emergency.[53]

In addition to binding international legal obligations, various provisions of the U.S. Uniform Code of Military Justice subject soldiers to court-martial or disciplinary measures for mistreating prisoners.[54] Applicable UCMJ criminal provisions include article 93 (cruelty and maltreatment), article 128 (assault), and articles 118 and 119 (murder and manslaughter), as well as article 120 (rape and carnal knowledge), article 124 (maiming), and, for officers, article 133 (conduct unbecoming an officer). Superior officers who order the mistreatment of prisoners or who knew or should have known that such mistreatment was occurring and did not take appropriate measures can be prosecuted as a matter of command responsibility.[55]

U.S. federal criminal law is also applicable. The War Crimes Act of 1996 (18 U.S.C. 2441) makes it a criminal offense for any U.S. personnel to commit war crimes, which includes any conduct defined as grave breach of the Geneva Conventions and any conduct which is a violation of Common Article 3. In addition, the federal anti-torture statute (18 U.S.C. 2340A), enacted in 1994, provides for the prosecution of a U.S. national or anyone present in the United States who, while outside the United States, commits or attempts to commit torture. U.S. personnel are also bound by applicable federal provisions on assault, sexual abuse, and homicide.

[45] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 75 U.N.T.S. 31, entered into force Oct. 21, 1950; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 75 U.N.T.S. 85, entered into force Oct. 21, 1950; Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention), 75 U.N.T.S. 135, entered into force Oct. 21, 1950; Geneva Convention relative to the Protection of Civilian Persons in Time of War (Third Geneva Convention), 75 U.N.T.S. 287, entered into force Oct. 21, 1950.

[46]U.S. officials have made statements before and after the transfer stating that they consider the United States bound by the Geneva Conventions. Secretary of State Colin Powell, at the time of handover, wrote that "the forces that make up the MNF are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions." See Letter from Secretary of State Colin Powell to the President of the U.N. Security Council, June 5, 2004, Annex to S/RES/1546 (2004).In October 2005, Condoleezza Rice confirmed that: "The forces that make up the MNF will remain committed to acting consistently with their obligations under international law, including the law of armed conflict." See Letter of October 29, 2005 from Secretary of State Condoleezza Rice to the President of the U.N. Security Council, Annex II to S/RES/1637 (2005).

[47] Prisoners of war, defined in Article 4 of the Third Geneva Convention, are protected persons for the purposes of that Convention. The Fourth Geneva Convention defines persons protected by the convention as all persons not otherwise protected by the first three conventions who, "at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals."

[48] See Art. 130, Third Geneva Convention, Art. 147, Fourth Geneva Convention.

[49] For guidance on applicable rules under customary international law, see study commissioned by the International Committee of the Red Cross, Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law(Cambridge: Cambridge Univ. Press, 2005), in particular, on the law relating to humane treatment of detainees, see pp. 299 - 396. See also U.S. Army Judge Advocate General's Legal Center and School, Law of War Handbook 144 (2004), stating that Common Article 3 "serves as a 'minimum yardstick of protection in all conflicts, not just internal armed conflicts,'" (quoting Nicaragua v. United States, 1986 I.C.J. 14, 218, 25 I.L.M. 1023); Prosecutor v. Tadic, International Criminal Tribunal for the Former Yugoslavia, Case No. IT. 94.1, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, 102 (ICTY App. Chamber, Oct. 2, 1995) ("the character of the conflict is irrelevant" in deciding whether Common Article 3 applies).

[50] See Henckaerts and Doswald-Beck, Customary International Humanitarian Law; see also Hamdan v. Rumsfeld, 548 U. S. (2006), opinion of Justice Stevens: "Although the United States declined to ratify Protocol I, its objections were not to Article 75 thereof. Indeed, it appears that the Government "regard[s] the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled." See also William Taft, "The Law of Armed Conflict After 9/11: Some Salient Features," 28 Yale J. Int'l L. 319, 322 (2003).

[51] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, annex, 39, U.N. Doc. A/39/51 (entered into force June 26, 1987; ratified by the United States on October 21, 1994).

[52] International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (entered into force March 23, 1976, ratified by the United States on June 8, 1992).

[53]See UN Human Rights Committee, general comment No. 29: Article 4: "Derogations during a state of emergency," Adopted at the 1950th meeting, on 24 July 2001, paras. 7, 11, and 13.

[54] The Uniform Code of Military Justice is codified at Title 10, Chapter 47 of the U.S. Code (10 U.S.C. 801 et seq.).

[55] For further details on the doctrine of command responsibility, see Human Rights Watch, "Getting Away with Torture? , Command Responsibility for the U.S. Abuse of Detainees," April 2005, Vol. 17, No. 1 (G), Annex, available at http://www.hrw.org/reports/2005/us0405/10.htm#_Toc101408106.