April 23, 2003
Lt. General Jay Garner, USA (Ret.)
Office of Reconstruction and Humanitarian Assistance for Post-War Iraq
Office of the Secretary of Defense
Washington, DC 20301-2400
Dear General Garner,
As the coalition begins its new role overseeing Iraq’s transition, we urge you to ensure that human rights protection and accountability for past human rights abuses are central to the country’s reconstruction and rehabilitation.
As the occupying powers in Iraq, the United States and its allies have assumed important legal obligations under international humanitarian law for the protection and welfare of Iraq’s people. In their justifications for military action against Iraq, they have also raised high expectations – both among Iraq’s people and internationally – for the restoration of the rule of law and respect for human rights that now need to be fulfilled.
This letter highlights a number of human rights concerns that should be at the top of the coalition’s agenda. It draws upon our experience of monitoring peace operations and post-conflict reconstruction in a range of places, including Haiti, Kosovo, East Timor, Sierra Leone and Afghanistan. This letter outlines some fundamental principles that should be applied to whatever transitional model emerges in Iraq. These reflect the obligations of the United States as an occupying power, but also areas where the interests of human rights in Iraq would be best served by an international response, and where the United Nations should be given a lead role.
Vetting of local and foreign security personnel
Iraq is likely to experience continued violence, insecurity and instability in the wake of the conflict, given ethnic and sectarian divisions in the country and the legacy of decades of war and repression. As the occupying powers, the United States and its allies have a duty to restore and ensure public order and safety in the territory under their authority. The looting and violence of recent weeks have shown the importance of establishing an effective security presence throughout the country, one committed to protecting basic human rights.
We are aware that the coalition will need to rely on some elements of the existing police forces to maintain security in the immediate situation. But as you set about the task of reconfiguring Iraq’s local law enforcement and armed forces longer term, it will be essential to put in place an effective system for screening and vetting all local officials, police and other security personnel, and judges and other court personnel, and to remove those implicated in serious human rights violations from positions of authority, pending further investigation and prosecution where appropriate. Public officials with a past history of abuse may not only commit further violations, but obstruct broader processes of accountability and reform. This will be a complex undertaking, as due process must be observed, but useful lessons can be learned from the United Nations’ experience in Bosnia and Herzegovina, where the International Police Task Force performed this role. At a minimum, you should solicit information and perform background checks on all applicants, conduct screening interviews where appropriate, make public the names of prospective officers, and investigate public complaints against them.
The United States must also ensure that all U.S. and other foreign personnel hired to work in civilian law enforcement, civilian security, corrections and prisons, and reform of the justice system meet high professional and personal standards. This includes personnel hired through sub-contractors, for whom the United States remains responsible. The criteria and screening process used should be made publicly available. Foreign personnel must not be immune from disciplinary measures or prosecution for committing violations of human rights and applicable criminal law. Contracted personnel should at all times uphold relevant international standards such as the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
The United States should ensure that the Military Extraterritorial Jurisdiction Act of 2000 (MEJA) applies to persons employed by the United States in Iraq. MEJA established U.S. federal jurisdiction over offenses committed outside the United States by persons employed by or accompanying the U.S. armed forces. MEJA grants jurisdiction to U.S. courts for any offense “that would constitute an offense punishable by imprisonment for more than one year if the conduct had been engaged in the territorial jurisdiction of the United States.” All contractors should ensure full cooperation with investigations by authorities, including making company personnel available to investigators for questioning even by postponing their repatriation to their home countries. They should forward information about alleged wrongdoing by employees to the appropriate authorities in order to allow them to investigate whether criminal acts occurred in either Iraq or elsewhere.
In this context, Human Rights Watch is particularly concerned about the contract already awarded to DynCorp to hire 1,000 civilian advisors to help the government of Iraq organize effective civilian law enforcement. In a November 2002 report on trafficking in Bosnia and Herzegovina, Human Rights Watch found that DynCorp's personnel had participated in human rights violations and the company has not done enough to ensure that adequate safeguards are in place to prevent such activities. DynCorp was found liable by a British employment tribunal for firing an employee who blew the whistle on involvement by U.N. police and peacekeepers in the trafficking of women and girls into forced sex work. Another former employee testified during a legal proceeding that eight DynCorp staff members in Bosnia had allegedly admitted to him that they had purchased women and girls in 1999 and 2000.
Justice and accountability
Over several decades, the Iraqi authorities have been responsible for genocide, war crimes and crimes against humanity. Ensuring accountability for these abuses will be critical in building respect for the rule of law and securing peace and stability in the country. Although rebuilding the Iraqi judiciary will obviously be a priority for any reconstruction effort, the responsibility of Iraq’s former leadership for a vast array of past crimes will need to be addressed through a separate legal mechanism—one that is seen as legitimate, impartial, fair, and independent. We have written separately to Secretary of State Powell, Secretary of Defense Rumsfeld and National Security Advisor Rice calling for the establishment of an international tribunal for this purpose.
Whatever justice model is adopted, there is an urgent need now to ensure the preservation of evidence that may be of use to future prosecutions, and to help relatives identify what has become of their loved ones. We are already concerned that vital evidence and documentation may have been lost during the looting and destruction of public buildings that has already taken place. We urge the coalition to establish a coordinated effort to secure and preserve all documents and archives relating to the Iraqi state and its security forces. Such documentation may also be important for conducting proper vetting, resolving property disputes, and making citizenship determinations. Further, the coalition should ensure that any mass grave sites are properly marked and secured, and that any exhumations are conducted with appropriate forensic expertise. This is important not just to preserve evidence for future prosecutions, but also so proper forensic analysis can be performed to identify the victims and provide closure to families. As the occupying forces process prisoners of war and other detainees, it will also be important to identify those who may face charges of war crimes, crimes against humanity and other grave violations.
Reform of Iraq’s laws and judicial system will be a major challenge. Under international law, the criminal laws of Iraq remain in effect, and the occupying power may only set aside or modify laws that contradict international legal standards or which pose a security threat to the occupying power. Human Rights Watch urges you to establish a provisional legal and judicial framework that incorporates international human rights standards. We recommend that you establish a special judicial commission, comprising both Iraqi and international jurists, to review and make recommendations for the future Iraqi government on changes to national laws in light of international human rights standards.
As mentioned above, urgent steps must be taken to ensure the proper functioning of regular criminal court sessions with due process safeguards that meet international standards. Under international law, the courts of the occupied territory should continue to function, so long as they can ensure the effective administration of justice. Where this is not possible, the occupying power may set up “properly constituted, non-political military courts” with local or foreign judges to sit in the occupied country. Such courts must apply international fair trial standards. While there may be an immediate need to get Iraqi courts up and running in the short term to help instill a sense of law and order, Human Rights Watch urges the coalition to vet all judges and judicial personnel to exclude those who have been complicit in serious human rights violations. You should also appoint a special commission to review the cases of all those who remain detained or imprisoned, whether political or common law prisoners.
Human rights monitoring
As Iraq’s transition gets underway, we urge the coalition to establish an independent human rights monitoring presence on the ground in Iraq. Human rights monitors would be able to provide authoritative information and analysis on the human rights situation within the country and make recommendations for remedial action, including long-term institutional reform. They would also help to bolster public confidence in the commitment of the occupying power and transitional authorities to bring human rights improvements on the ground. Monitoring missions of this kind have played an important and constructive role in other post-conflict transitions, for instance in Cambodia, East Timor, Bosnia-Herzegovina and Kosovo. This role would most appropriately be taken on by the United Nations Office of the High Commissioner for Human Rights, which has the independence and expertise needed for this task.
Humanitarian coordination and access
Iraq’s civilian population has pressing humanitarian needs. Even before the war, 60 percent of the Iraqi population was dependent on monthly food distributions from the central government. Medical care has been further constrained by the fighting and looting of the past month. A shortage of clean water supplies has the potential to spread water-borne disease.
As the occupying power, the coalition is responsible for ensuring that food and medical care is available to the population under its control, and to facilitate assistance by relief agencies. You must provide humanitarian personnel with safe and unimpeded access to populations in need, and allow humanitarian agencies to operate independently from any military or political authority. Where the military directly provides humanitarian assistance, this should be distinguished clearly from the efforts of humanitarian agencies, so as to avoid confusion about the latter's neutrality.
As you know, many humanitarian agencies have expressed concern that they will not be able to operate independently in Iraq. For this reason, Human Rights Watch believes it would be preferable for an independent third party, such as the United Nations and its specialized agencies, to be given the lead role in coordinating the provision of humanitarian assistance in Iraq.
Internally displaced persons
People who have been displaced internally (IDPs) within Iraq have immediate protection needs. Our research inside Iraq has documented new instances of forced displacement since the coalition has assumed the role of occupying power. For current and long-term IDPs, Human Rights Watch has highlighted concerns with freedom of movement; inadequate housing and basic material support for IDPs; and the prospect of violent reprisals as IDPs attempt to return home. Human Rights Watch is also concerned that two of the main organizations specifically designated to provide support to IDPs in Iraq – the International Organization for Migration (IOM) and United Nations Operations (UNOPS) – have neither a protection mandate nor the capacity to monitor, investigate, and remedy protection violations.
The occupation authorities should do everything in their power to prevent new instances of forced or arbitrary displacement, to ensure the protection of IDPs and to create a secure environment for their return. IDP camps must be designed and organized to minimize the threat of sexual and other physical violence against camp inhabitants. A security system must also be established that enables people to move freely and without fear in camps or neighborhoods where displaced persons live, along with a means to investigate and provide a remedy – including adequate health and psychological care – to any IDP who has suffered abuse.
Return and reintegration of refugees and IDPs
Refugees and displaced persons must be allowed to return to their homes voluntarily, in conditions of safety and dignity. Forced returns of refugees from neighboring countries or of internally displaced persons before reception conditions are appropriate would be serious human rights violations. Those refugees or displaced persons who do voluntarily return must be provided with protection and assistance. This may include financial and material assistance, monitoring of human rights conditions, accurate information about conditions in areas of return, family tracing mechanisms, ability to legally register in the new location or municipality, and facilitation of income-generating activities. All of these programs should involve refugees and displaced persons as well as the local population where possible so as to avoid developing tensions between returning individuals and the communities they return to.
After many conflicts, the victims of abusive regimes seek revenge against perceived government supporters. For example, programs aimed at returning displaced populations and re-creating multi-ethnic communities in the Balkans after years of forced displacement faced severe obstacles, including continuing discrimination and violence between ethnic communities. During Iraq’s transition, the coalition must ensure security and stable social conditions for return and reintegration, especially in areas where Iraqi Kurds and other minorities have experienced years of systematic discrimination.
The return of displaced persons has already given rise to property disputes. Human Rights Watch has already documented such problems in Kirkuk, where Arab families have been forcibly expelled from their homes by Kurds returning to the city. There is a considerable body of international law in relation to property rights that should be incorporated into Iraq’s domestic legal framework. One important international legal principle that must be respected is the right to an effective remedy, contained in Article 2 (3) of the International Covenant on Civil and Political Rights. This requires that Iraqis be able to repossess their homes after being deprived of them, or be financially compensated when they are unable to do so. At the same time, the current occupants’ right to housing must also be considered, and it is essential that those facing eviction be re-housed. The resolution of property disputes can be a lengthy process and adequate emergency or temporary housing should be made available to mitigate conflicts and avoid the creation of a large homeless population.
A proper legal and administrative framework will be essential for the peaceful reintegration of displaced Iraqis. A post-conflict property dispute framework should include fair and efficient procedures before an impartial adjudicator, and should be kept separate from the jurisdiction of courts that hear other claims arising under domestic property law. Effective information campaigns for affected groups will also be vital. A system similar to that of the Housing and Property Directorate (HDP) in Kosovo might be workable in Iraq, particularly if designed to avoid some of the failings in the Kosovo setting. The HDP was given exclusive jurisdiction over the most controversial residential property claims, including claims for restitution of property lost through discrimination, claims for registration of informal property transactions, and claims by refugees and IDPs who lost possession of their homes and who wished to return to or transfer their property.
The coalition should give priority to the immediate humanitarian and protection needs of women. Special attention should be given to female-headed households. As a first step, we recommend that you establish a special gender unit within your office to consult with Iraqi women on their priorities and ensure their participation in the design, delivery and monitoring of humanitarian assistance programs. You should ensure that acts of sexual violence are prevented, and that past abuses against women are investigated and prosecuted. You should encourage your Iraqi counterparts in any interim authority or advisory body to ensure the full representation and participation of women, and to review laws and policies that discriminate against women.
Half of Iraq’s population is under the age of eighteen. Many children have suffered the cumulative and catastrophic effects of war and sanctions, with one in eight dying before the age of five, and one in four children under the age of five severely malnourished. Thirty-one per cent of girls and 17 per cent of boys are not attending primary school. The protection and development of children will be the very foundation for the future of Iraq. High priority must be given to implementing the special protections for children in both the Geneva Conventions and the Convention on the Rights of the Child (which Iraq has both ratified). This includes ensuring the protection and rehabilitation for former child soldiers, unaccompanied children, and IDP and former refugee children to promote their physical and psychological recovery and social reintegration. High priority should be given to ensuring that children are enrolled at least in primary education at the earliest feasible moment, and that no children face discrimination in access to education. Every effort should be made to preserve official government records that establish children’s identity, and to issue new documents to children whose records have been lost, confiscated, or destroyed. Special attention should be paid to the situation of girl children, including protection from sexual and physical abuse, including by aid workers, peacekeepers and other international personnel.
Clearance of mines and explosive remnants of war
Another priority will be the clearance of landmines, cluster munition duds and other unexploded ordinance, particularly in rural and urban centers where they pose a major risk to civilians. Iraq is still severely affected by residual landmines, cluster munition duds, and other types of unexploded ordnance (UXO) from the 1991 Gulf War, as well as the 1980-1988 Iraq-Iran War and two decades of intermittent internal armed conflict. We have also raised concerns about the use of cluster bombs by U.S. forces during the most recent conflict. Landmines and UXO pose a problem in the north, along the Iran-Iraq border, and throughout the central and southern regions of the country. The International Committee of the Red Cross in 2001 identified unexploded cluster bombs and other UXO as the main threat to communities living in southern Iraq.
Management of oil revenues
Oil revenues will be the major source of funding for Iraq's reconstruction and development. It is essential that Iraq’s oil be managed in a transparent and accountable manner, and that revenues be directed first towards meeting the acute humanitarian needs of Iraq’s people. Every effort should be made to avoid the perception that oil is being used for the benefit of foreign entities. To ensure transparency and independence, Human Rights Watch has recommended that a third party should manage oil revenues if a transparent and accountable Iraqi institution cannot. The United Nations Office of the Iraq Program has been able to manage Iraq’s oil revenue relatively independently despite the competing interests of U.N. member states and could be a useful model for future revenue management.
Regardless of the institution managing Iraq's oil, Human Rights Watch urges that all sources of oil revenue and expenditures should be audited and those results made public. The designated institution should also have the authority to tender and manage an open bidding process for the reconstruction and rehabilitation of Iraqi oil infrastructure. In the case of new exploration and production agreements, the entity responsible for the open tendering and bidding process should ensure that the contracts that it awards are made public, are comparable to similar agreements throughout the world. The companies that receive such contracts should publish all payments made to the authority managing Iraq's oil as a result of their contractual or other agreements in order for the Iraqi public to be aware of these arrangements.
Human Rights Watch will continue to monitor developments on the ground and the progress made on these concerns during Iraq’s transition. We look forward to further dialogue with you on these concerns in the challenging months ahead.
cc: Secretary of State Colin Powell
Defense Secretary Donald Rumsfeld
Rt Hon Jack Straw MP
Rt Hon Geoffrey Hoon MP
Major General Tim Cross CBE