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Iraq Appears Unwilling to Guarantee Detainee Rights

Friday 30 January 2009
by: Nick Mottern and Bill Rau, t r u t h o u t | Perspective

Inside the jail at Camp Cropper in Baghdad, two soldiers escort an Iraqi detainee.

Inside the walls that surround the jail at Camp Cropper, north of Baghdad,
two American soldiers escort an Iraqi detainee. Iraq will soon assume control of such detainees.
(Photo: John Moore / Getty Images)


The Iraqi government will make no commitment to ensure rights of due process for tens of thousands of detainees in its jails and prisons, judging from the response this week of the Iraqi Embassy in Washington, DC, to these questions:

  1. Have all detainees, those in US and Iraqi government custody, been charged, either as prisoners of war, on criminal charges or other charges?
  2. Do all detainees have the right to access to legal counsel whether they can afford it or not?
  3. Do all detainees have the right to access to a private attorney-client relationship?
  4. Do all detainees have access to evidence against them?
  5. Do all detainees have the right to have their cases heard in a public judicial proceeding that meets international standards?
  6. Do Iraqi and international human rights organizations have access to all Iraqi and US prisons and detention facilities on a regular basis and freedom to interview detainees?"

"Unfortunately, we can not provide you with the information you require," said Caitlin Berczik, the embassy's English media coordinator, referring to the above questions, which she said in an e-mail on January 23 had been referred to Samir Sumaida'ie, Iraqi ambassador to the United States.

Berczik continued: "You must appreciate that Iraq is currently in a state of transition. As I said in my last response, the deficiencies in Iraq's judicial system, to the extent that they exist, do not arise from policy issues or defective laws. Rather, due to the challenging circumstances that Iraq currently faces, the country's law enforcement and judicial systems are overwhelmed and have limited capacity."

Asked about this situation, noted international human rights lawyer Karen Parker said that Articles 9 and 14 of the United Nations International Covenant on Civil and Political Rights (which appear in full at the end of this article) define rights that must be accorded to Iraqi detainees. The United Nations' Standard Minimal Rules for the Treatment of Prisoners also apply to Iraqi detainees, she said, and Geneva Convention III, concerning treatment of prisoners of war, applies to persons who are POWs.

As will be discussed, the shortcomings of the Iraqi justice system appear to also include not being able to even keep accurate records on the detainees it holds, assuming it wishes to do so. Indeed, it is unclear how many Iraqis are being held by their own government; estimates range from 25,000 to 60,000 and possibly more.

"Gutted" System

The Iraqi legal system, said State Department spokesman John Fleming, is "literally gutted from inside out." He said, "We have to be very reasonable" about what is asked of the Iraqi government in terms of meeting international legal standards.

As we reported in Truthout December 3, 2008, (Obama Faced With Iraq Human Rights Debacle) the Iraqi prison system has been credibly characterized as one in which prisoners are likely to face inhumane, illegal treatment including severe overcrowding, unsanitary conditions, beatings and torture.

This is the system into which the US military will begin on February 1 to transfer prisoners under the new Status of Forces Agreement (SOFA) between the US and Iraqi government, signed late last year. According to Agence France-Presse (AFP) and other reports, in coming months, the US will give the files of about 1,500 Iraqis a month to Iraqi officials who will either release the prisoner or put him or her into an Iraqi jail. The US currently holds about 15,000 Iraqis in its prisons, according to various reports.

Questions on the protection of due process rights of detainees in US custody, submitted in e-mails to Task Force 134, the US command in charge of US prisons in Iraq, have gone unanswered. A TF-134 spokesperson would say only that the AFP report on the transfer process "is generally accurate." (The questions submitted to TF-134 appear at the end of this article.)

UN and Congressional Concern

On January 22, Navi Pillay, United Nations human rights chief, praised President Barack Obama for committing to close the US prison at Guantanamo Bay and said: "I appeal to President Obama to look into similar detention regimes which have been set up or supported by the US government in Afghanistan and Iraq and ensure that those detainees have judicial review of their detention and their prospects of release and trial."

There is evidence of official US concern for the due process rights of Iraqi detainees in a paragraph in H. Res. 72, introduced in the House of Representatives on January 15, 2009, by Rep. Barbara Lee (D-California), which calls for congressional hearings to "determine the impact, if any, of the Agreement on the status of the nearly 50,000 Iraqi nationals held in preventive detention by the Iraqi government and United States forces as well as any such foreign nationals in Iraq who have been designated as 'protected persons' under the Fourth Geneva Convention."

The resolution has been referred to the House Foreign Relations Committee.

In addition, Rep. Bill Delahunt (D-Massachusetts), chairman of the Subcommittee on International Organizations, Human Rights, and Oversight of the House Foreign Affairs Committee, wrote a letter to Defense Secretary Robert Gates dated September 26, 2008, expressing concern "that the United States may not be fully complying with our obligations under the UN Convention Against Torture when transferring prisoners to detention facilities run by local authorities in these two countries. I am also worried about the implications of relegating detainees to national legal systems in which they may not receive meaningful review of the charges against them, or any review at all."

The letter also says: "According to credible reports, many prisoners (in Iraq) have been held in detention without charges for years. Others have been found innocent but continue to be held indefinitely."

Then-Under Secretary of Defense for Policy Eric Edelman replied to Delahunt on November 10, 2008, assuring him that it is US policy to "not repatriate or transfer individuals to countries where it is more likely than not they will be tortured." He said also that the US provides "technical assistance, funding and support on rule of law issues, while also keeping the distinct culture and judicial history of each country in mind."

The US has, he said, advisers and trainers "in many Iraqi prisons to which Iraqi nationals are transferred," as well as a prison in Afghanistan. "These advisers and trainers," he said, "provide real-time mentoring and training to assist the host nation in meeting international standards of judicial and human rights. These advisers, as well as US leaders in Iraq and Afghanistan, have repeatedly emphasized the importance of treating detainees with dignity and humanity."

Edelman did not, however, address the issue of due process for Iraqi prisoners raised by Chairman Delahunt.

Advice on "Modern Incarceration"

We attempted in e-mail and telephone inquiries to the Defense Department to get specific information about the prison advisers and trainers mentioned by Edelman. On January 26, 2008, a Defense Department spokesperson wrote: "We have determined that they (the questions, which appear at the end of this article) are best answered by the State Department." We were referred to Fleming. the State Department spokesperson, who was puzzled about why we were passed off to the State Deparers and trainers are controlled by the Defense Department.

Fleming was willing to speak about the Iraqi justice system and the transfer of prisoners from US to Iraqi custody, saying he was chief spokesman for TF-134 before retiring from the military and joining the State Department.

He said that the US has "perhaps a few hundred" trainers in Iraqi prisons providing guidance in "techniques of modern incarceration."

In explaining the difficulty of the Iraqi legal system in meeting international standards, Fleming said the Iraqis are "in a war for God's sake." He noted that Iraq continues to have electrical blackouts, inadequate water and sanitation services and other shortcomings, all affecting prisons.

Asked about the concern that the Iraqi prisons and detention facilities have not been open to human rights groups, Fleming said that the International Committee of the Red Cross has had access. He said that "some of their reports have been pretty harsh ... some of the conditions have been very harsh," but efforts for improvement are ongoing. The ICRC reports are made to governments, but are not available to the public.

In answer to questions about whether the Iraqi prison system can account for all its prisoners, Fleming said that the Iraqis do not have up-to-date computer systems and machines for cataloging prisoners, such the biometric data system used in the US detention system. The Iraqi warders, he said, are "relying on handwritten head counts."

He acknowledged that because of rudimentary record keeping some prisoners might simply get lost in the Iraqi prison system.

He said also that because there are surges in detentions and releases, the detention/prison system is "a very dynamic environment" in which it is difficult to keep track of individuals.

Asked how many Iraqis are being held by their government, Fleming said he has heard "numbers all over the map," ranging from 25,000 to 60,000. The Iraqi government reported, according to IraqUpdates.com of January 22, 2008, that 127,431 detainees had been released since the passage of an amnesty law in February 2008, with about 31,000 remaining in custody. The release figure is astounding, even considering increased detentions during the "surge" in 2007, given that a United Nations report indicated that the Iraqi government held only about 17,500 prisoners in March 2007.

"Our Manual, Not Their Manual"

"We have urged Iraq to adopt our standards," he said, but one has to realize that "great numbers of lawyers and judges have been targeted ... lawyers have left the country."

Asked about whether the US can, given rules in the US Army/Marine Counterinsurgency Field Manual, transfer prisoners into a situation in which their rights are likely to be violated, he said that "we can't conflate" the set of rights that we expect in "a very modern Western rule of law concept" with rights that can be expected within the Iraqi context.

Section D-21 of the field manual says: "There are certain conditions under which U.S. forces may not transfer the custody of detainees to the host nation or any other foreign government. U.S. forces retain custody if they have substantial grounds to believe that the detainees would be in danger in the custody of others. Such danger could include being subjected to torture or inhumane treatment."

The Iraqi government has demanded the return of Iraqis held in US custody, Fleming said, and that is what has to be done under terms of the SOFA. The rule in the counterinsurgency manual "is a laudable goal," he said, but "that's our manual, not their manual."


Due process questions that are unanswered by TF-134:

Article 9

  1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
  2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
  3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and should occasion arise, for execution of judgment.
  4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
  5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article 14

  1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a cr
  2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
  3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
  4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
    1. To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
    2. To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing;
    3. To be tried without undue delay;
    4. To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
    5. To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
    6. To have the free assistance of an interpreter if he cannot understand or speak the language used in the court:
    7. Not to be compelled to testify against himself or to confess guilt.
  5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
  6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such convictions shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
  7. No one shall be liable to be tried or punished for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Nick Mottern is director of ConsumersforPeace.org. Bill Rau is a researcher on development issues based in Washington, DC, and the author of "Feast to Famine: Official Cures and Grassroots Remedies to Africa's Food Crisis."