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Human Rights Watch's letter to Secretary of Defense, Donald Rumsfeld, regarding individuals held by U.S. forces in Iraq for reasons of security or in relation to alleged crimes.

Dear Secretary Rumsfeld:

We are writing regarding individuals held by U.S. forces in Iraq for reasons of security or in relation to alleged crimes. Since the start of the war in Iraq, the United States and other Coalition forces have taken into custody an unknown number of civilians. Human Rights Watch has several concerns regarding the treatment of these persons under international law.

We recognize that U.S. forces face enormous challenges in Iraq. We also recognize that in recent months some steps have been taken to fulfill international legal obligations, such as implementing measures to enhance the availability of information on detainees and family access to detainees. We also note the announcement by Amb. L. Paul Bremer, Administrator of the Coalition Provisional Authority (CPA), to release some 500 detainees of the approximately 9,000-12,800 persons detained.

The U.S. government has indicated that it is treating all detainees in compliance with international humanitarian law. (See, for example, CPA Memorandum Number 3, “Criminal Procedures,” hereinafter “CPA Memo No. 3,” sections 6 and 7, June 18, 2003.) The law on military occupations is governed primarily by the 1907 Hague Regulations and the 1949 Geneva Conventions. The Fourth Geneva Convention allows the United States, as an Occupying Power, to deprive civilians in Iraq of their liberty in only two situations: for “imperative reasons of security,” or for prosecution, either before Iraqi courts or a “properly constituted, non-political military court” set up by the Occupying Power.

To date, the United States has provided the public little information on its treatment of these two categories of persons. This is very troubling, particularly as the United States is seeking to generate support for its policies in Iraq by emphasizing its adherence to the rule of law. Ongoing fighting in Iraq, rather than mitigating legal concerns, makes attentiveness to international legal obligations all the more necessary.

I. Deprivation of Liberty for Reasons of Security
International humanitarian law permits U.S. forces to detain persons who pose a serious security threat to the occupation. Under the Fourth Geneva Convention, “[i]f the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.” Such decisions shall be made according to “a regular procedure” established by the Occupying Power in accordance with the convention (Geneva IV, Art. 78).

The Fourth Geneva Convention requirements seek to ensure that only persons who remain a genuine security risk are detained. Decisions to intern persons for “imperative reasons of security” should be made on an individual basis (ICRC Commentary to Geneva IV, p. 367). The “regular procedure” must include the right to appeal and periodic review, if possible, every six months (Geneva IV, Art. 78). Persons who are interned for “imperative reasons of security” must be released “as soon as the reasons which necessitated [their] internment no longer exist” (Geneva IV, Art. 132).

We are aware that the CPA has issued standards to apply to “all persons who are detained by Coalition Forces when necessary for imperative reasons of security” that are meant to be consistent with the requirements of the Fourth Geneva Convention. These include the right to appeal the decision to intern them, and to have the decision to intern them reviewed “not later than six months from the date of induction into an internment facility by a competent body established for the purpose by Coalition Forces” (CPA Memo No. 3, section 7).

In late September 2003 Col. Marc Warren, the senior U.S. military lawyer in Iraq and head of the Judge Advocate General’s office in Baghdad, informed Human Rights Watch that a board consisting of three members had been set up to provide six-month reviews of determinations of internment on the basis of “imperative reasons of security,” and to review recommendations by Iraqi magistrates to release persons interned on these grounds. According to Col. Warren, a number of persons interned for “imperative reasons of security” had launched appeals, but the board had not heard any appeals as of late September 2003. According to Col. Warren, this board also had not conducted any six-month reviews as of that time, although he said that the board was about to embark on conducting such reviews. As U.S. and U.K. forces began occupying Iraqi territory in March 2003, at least some persons held for “imperative reasons of security” would at present be entitled to a six-month review.

According to press reports, the recent decision to release 506 detainees is a result of a review of 1,200 cases by panels of U.S. military judges, intelligence officers, and military police. Human Rights Watch urges you to ensure that all civilians held by the United States and other Coalition forces for “imperative reasons of security” are interned only after a regular procedure that includes a right to appeal and review at least every six months. Human Rights Watch further urges you to publicly clarify the following:

  • What processes have been established by U.S. forces to make initial individual determinations of internment “for imperative reasons of security” according to a regular procedure?
  • What steps have been taken to implement the provisions of section 7 of CPA Memo No. 3? In particular, what is the status of the three-person board established to hear appeals and conduct six-month reviews? Is this board conducting appeals as well as six-month reviews, and what are the outcomes of these proceedings? Additionally, are the recent releases announced on January 7, 2004, part of determinations of appeals or six-month reviews, or some other process?
  • What information is provided to individuals interned for “imperative reasons of security” to inform them of their right to appeal and six-month review?

II. Deprivation of Liberty for Alleged Crimes
International humanitarian law allows an Occupying Power to prosecute persons implicated in criminal offenses, including past war crimes. The Fourth Geneva Convention provides for the prosecution of individuals for violations of existing penal laws, as well as under penal provisions essential for the Occupying Power to fulfill its international legal obligations and to maintain orderly government and security in the occupied territory (Geneva IV, Arts. 64-68). Trials under existing or duly publicized penal provisions could be held in Iraqi courts or “properly constituted, non-political military courts” set up by the Occupying Power in Iraq (Geneva IV, Arts. 64, 66).

The Convention enumerates judicial guarantees for those alleged to have committed crimes (Geneva IV, Arts. 64-77). These guarantees include the right to be promptly informed of the charges in writing (Geneva IV, Art. 71), to be tried as rapidly as possible (Geneva IV, Art. 71), and to be assisted by a qualified advocate or counsel of one’s choice, who shall be able to visit freely and enjoy the necessary facilities for preparing a defense (Geneva IV, Art. 72).

We are aware that the CPA has issued standards to apply to persons who are detained “in relation to allegations of criminal acts and who are not security detainees” that are meant to be consistent with the Fourth Geneva Convention. These include the right to consult an attorney; to be promptly informed, in writing, in a language they understand, of the particulars of charges against them; and to be brought before a judicial officer “as rapidly as possible and in no instance later than” ninety days from the induction date into a Coalition force detention facility (CPA Memo No. 3, section 6).

Amb. Bremer stated in his January 7, 2004, announcement concerning the release of some detainees that “[t]his is not a program for those with blood-stained hands. No person involved in the death of or serious bodily harm to any human being, an Iraqi, a citizen of the Coalition or anyone else will be released. Nor will we release anyone accused of torture or crimes against humanity.”

We are aware that some persons have been brought before the Central Criminal Court in Baghdad for alleged common crimes. However, an unknown number of persons held by U.S. forces have reportedly neither been charged nor prosecuted for a crime.

Human Rights Watch urges you to ensure that all civilians held by U.S. forces in relation to alleged crimes be held in accordance with the guarantees defined in the Fourth Geneva Convention. Human Rights Watch further urges you to ensure that such persons are tried in accordance with internationally accepted standards of fair trial, including the right to be tried before a competent, independent and impartial tribunal as enumerated under the International Covenant on Civil and Political Rights.

Human Rights Watch also urges you to publicly clarify the following:

  • What steps are being taken to implement the provisions of section 6 of CPA Memo No. 3, specifically to promptly inform persons in writing and in a language they understand of charges against them, and bring these persons before a judicial officer as rapidly as possible, but no later than ninety days following induction into a detention facility?
  • What steps are being taken to prosecute persons for alleged crimes in accordance with international standards of fair trial, including before a competent, independent, and impartial tribunal?
  • What steps have been taken towards the creation of “properly constituted, non-political military courts” and procedures that meet the due process requirements of international law for persons who will not be tried before Iraqi courts?

III. Information Available on Internees
International humanitarian law requires that an Occupying Power make information available on persons they intern (Geneva IV, Arts. 136, 138-141).

The precise number of persons held by the United States and other Coalition forces is unknown. We understand that a database of information on persons held by United States forces has been established and lists the number of persons detained at 8,968 as of January 24, 2004. Press reports indicate that the number of civilians held is somewhere between 9,000 and 12,800.

We also understand that lists of detainees are now located at various police stations and that databases of such persons are available at General Information Centers (GICs) around Baghdad. However, Human Rights Watch understands that some Iraqi families continue to have difficulty identifying if and where their family members are being held.

According to information we have received, there are several categories of persons whose names are not made publicly available: 1) persons who are referred to as “high security detainees,” estimated at approximately 200 persons; 2) persons under interrogation prior to release or transfer to a detention facility; and 3) detainees who are “lost” during their transfer to a detention facility, often due to a lack of identity documentation on their person. Human Rights Watch understands that the names of some detainees also are not identifiable from the lists of names at police stations and in the GIC database due to poor transliterations.

We understand that while the majority of persons detained are entered into the GIC database within two weeks, a lag of up to a month exists before some persons who are interrogated are entered into the database upon their transfer to a detention facility, and that persons who are released following interrogation are never entered into the database.

Human Rights Watch urges you to take additional measures to ensure that information concerning all persons held by U.S. forces is made publicly available. Human Rights Watch further urges you to clarify the following:

  • What is the current number of individuals held by U.S. forces and the grounds on which these individuals are being held?
  • What steps is the United States taking to ensure that information concerning persons held is promptly made publicly available in an accurate transliteration?

IV. Family Access to Internees
International humanitarian law requires that persons who are interned by an Occupying Power be allowed “to receive visitors, especially near relatives.” (Geneva IV, Art 116)

We understand that families may request a visit with detainees once they are transferred to a detention facility by submitting a request including the person’s name, identification number, and place of detention. However, while some families have reportedly been able to visit with detainees, other families have been refused a visit and told to return to the detention facility at a later time. We understand that, due to limited availability of necessary security at the facilities, there are extremely long delays before some visits can occur and visiting slots at the Abu Ghraib facility are already booked through April 2004.

We note Amb. Bremer’s statement on January 7, 2004, that “greater family access to those detainees not released” will be provided. Human Rights Watch urges you to ensure that family access is provided and to publicly clarify what measures are being taken to ensure that internees have access to visits by family members.

We look forward to your response on these matters.

Sincerely,

Kenneth Roth
Executive Director

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