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Letter to Security Council Members on Detainees in Iraq

Human Rights Watch is writing on the occasion of your debate on Iraq and review of the mandate of the Multi-National Force-Iraq (MNF). We urge the Security Council and its members, particularly the United States, to take this opportunity to address concerns about the MNF detention system and the rights of persons deprived of their liberty under international law. As the Security Council reviews the MNF mandate in anticipation of its replacement by bilateral agreements between Iraq and the United States, the Security Council should request that any such agreements conform to internationally recognized norms on the rights of detainees.

According to information submitted in a meeting with Human Rights Watch in Baghdad last month, MNF held approximately 22,000 detainees as of May 12. Human Rights Watch shares the concern of the UN Assistance Mission in Iraq that many detainees are held for lengthy periods without judicial review and under review processes that do not meet international standards of due process as applicable during a non-international armed conflict.

In its most recent human rights report, UNAMI cited correspondence from the US embassy in Baghdad to the effect that internationally recognized standards of due process are inapplicable to MNF security detentions in Iraq. Letters attached to Security Council resolutions 1546, 1637 and 1723 allow for “internment where this is necessary for imperative reasons of security.” The United States has maintained that this language, which mimics language in the Fourth Geneva Convention, is the basis for the MNF applying the Fourth Geneva Convention more generally to the treatment of detainees in Iraq.

This expansive reading of resolution 1546 contradicts the requirement under international law to interpret Security Council resolutions as being consistent with existing international norms. The Fourth Geneva Convention has not been applicable to Iraq since the declared end of the belligerent occupation. The detention of individuals pursuant to resolution 1546 and successive resolutions must be read in light of the currently applicable international law in Iraq.

Since the end of the inter-state armed conflict between Iraq and the states of the MNF in 2003, and the declared end of the belligerent occupation in June 2004, the continuing hostilities in Iraq are considered to be a non-international (internal) armed conflict. During such a conflict, the applicable rules for the treatment of persons in custody are found in article 3 common to the Geneva Conventions and international human rights law.

The International Covenant on Civil and Political Rights, which Iraq ratified in 1971, contains provisions on the treatment of persons deprived of their liberty. It requires that all persons arrested be brought promptly before a judge; have access to legal counsel and family members; be charged with a cognizable criminal offense and receive a prompt trial meeting international fair trial standards.

The revised MNF review procedures, though they have facilitated the processing of cases, do not address fundamental concerns about the rights of detainees to counsel or to challenge the basis of their detention, among other fundamental rights. In correspondence with Human Rights Watch of May 24, 2008 regarding review procedures, MNF officials outlined the following: an initial review within seven days of transfer to an internment facility to make an “independent determination of whether the person is an imperative threat.” This review is conducted by an MNF judge advocate on the basis of witness statements, photographs, physical evidence, interrogation reports and classified evidence; it may produce a recommendation for referral to Iraq’s Central Criminal Court. If the detainee is deemed an imperative threat, the detainee “is provided with notice of the same, information about the substance of the evidence against him, and his appeal rights.”

A subsequent review hearing within 90 days with the participation of representatives of Iraqi bodies including the ministries of Interior and Human Rights comprises the Combined Review and Release Board (CRRB) and reviews the documents associated with the case; the detainee does not appear. Subsequent hearings within six months, but sooner in practice, according to the MNF correspondence with Human Rights Watch, are conducted by the MNF Review Committee, which “functions as the appellate review mentioned in Article 78 of the Geneva Convention for Civilians.” This body consists of three US members, meets in the presence of the detainee and can receive detainee submissions of evidence; “as an administrative board, the detainee has no right to counsel.” Certain “especially vulnerable classes of detainees – juveniles, females, third country nations and the mentally infirm” – can be assigned a personal representative at this hearing.

Were the United States still an occupying power in Iraq, these review procedures would likely pass muster under the Fourth Geneva Convention. But the Fourth Geneva Convention is no longer the relevant law and so cannot be the basis for the treatment of persons in custody. Human Rights Watch calls on the Security Council to insist that, for the duration and under the terms of its mandate, the MNF’s detention regime adhere to the requirements of the laws of war for a non-international armed conflict – that is, common article 3 and international human rights law. Detainees should have basic guarantees of due process including impartial judicial review of the basis of detention, access to counsel at the earliest opportunity, and trial before a competent, independent, impartial court.

We recognize the problem of torture and other mistreatment in Iraqi detention facilities. International law prohibits the transfer of individuals to the custody of a state where there are substantial grounds for believing they are in danger of being tortured. No one should be transferred to a detention facility where there are reasonable grounds for believing they would be tortured. It is also important that the MNF devote greater attention to improving conditions in Iraqi detention facilities and bringing the Iraqi justice system in line with international standards.

Further, and in light of past abuses from which the MNF seeks to distance itself, the MNF should make its detention facilities accessible to independent Iraqi and international human rights observers. Such access, in order to be credible, would require unhindered and confidential contact with detainees. The Security Council should also press for the implementation of UNAMI’s own recommendations to grant such access to UNAMI and independent monitors who make their findings public.

It is the stated intention of the US and Iraqi governments to conclude a status-of-forces agreement and other pacts that would replace the Chapter VII mandate for the presence of the MNF. Human Rights Watch urges the Security Council to express its concern that any future provisions establishing a legal basis for detention by non-Iraqi armed forces should reflect the commitments of both parties to an agreement conforming to international law, specifically the International Covenant on Civil and Political Rights. In the event of a request for extension of the MNF mandate, we further urge the Security Council to ensure observance of international standards on the subject of detention.

Thank you for your attention to these matters. We would welcome any request for additional information regarding our concerns over detainee treatment in Iraq.

Yours sincerely,

/s/

Sarah Leah Whitson
Executive Director
Middle East and North Africa division
Human Rights Watch

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