The United States and Britain will retain ultimate responsibility for security and human rights in Iraq following the proposed “transfer of sovereignty” on June 30, 2004.
Statements by the Bush administration and the Coalition Provisional Authority have indicated that the proposed transitional government will not have full authority to govern Iraq. The United States will continue to have final say on matters of Iraqi security. The interim Iraqi government also will not be able to enact new legislation or overturn laws imposed during the occupation.
“There is no such thing as ‘sovereignty lite,’” said Kenneth Roth, executive director of Human Rights Watch, “Being sovereign is like being pregnant, you either are or you aren’t. If the new Iraqi government doesn’t have ultimate authority and responsibility for the security of the Iraqi people, then it is not truly sovereign.”
The international law of occupation in the Fourth Geneva Convention of 1949 and the Hague Regulations of 1907 places responsibility for the security of an occupied population on the occupying power. So long as the United States and the United Kingdom retain ultimate responsibility for the actions of Iraqi police and military personnel and the treatment of persons in Iraqi detention facilities, they will continue to bear the legal duties of occupying powers.
The United States today submitted a draft resolution to the United Nations Security Council that endorses the formation of a “sovereign interim government” that would “assume the responsibility and authority for governing a sovereign Iraq.” However, the application of the Geneva Conventions does not depend on formal declarations by states, but on an objective assessment of the situation on the ground. So long as ultimate authority on security and related legislative matters in Iraq effectively rests with the U.S. and the U.K, so too will ultimate responsibility for adherence to the law on occupation, including ensuring, as far as possible, public order and safety in the occupied territory.
Even after sovereignty has been transferred, U.S., U.K. and other military forces in Iraq will be bound to respect and protect the rights of persons under their effective control. This includes respecting international prohibitions on torture and other ill-treatment of persons in custody.
“The U.S. government is learning the painful lesson of the importance of following the international laws of war,” said Roth. “It should not try to shortchange the Geneva Conventions yet again.”
